[Congressional Record Volume 149, Number 31 (Wednesday, February 26, 2003)]
[Senate]
[Pages S2769-S2829]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page S2769]]

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                                 Senate

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

                               Continued

  Mr. REID. Madam President, on the floor today is the former chairman 
of the Judiciary Committee, now the ranking member of the Judiciary 
Committee, the distinguished senior Senator from Vermont. The Senator 
has heard me on a number of occasions boast about the work he has done 
as the leader of the Democrats in the Judiciary Committee and the 
leader of the Senate in the Judiciary Committee. There has been a lot 
of talk about the Democrats holding up judicial nominees during the 
time we were in power in the Senate.
  It is my understanding--I ask the Senator to respond to this 
question--that while the distinguished Senator from Vermont was 
chairman of the Judiciary Committee for a very short period of time--17 
months--he broke all records of the body in approving some 100 Federal 
judges for President Bush.
  Is that a fair statement?
  Mr. LEAHY. Madam President, it is a fair statement. In fact, I think 
in mid-July we finally got an agreement to organize the committee. Ten 
minutes after we got that agreement, I noticed the first hearing and 
set the first hearing on President Bush's judges.
  The Republicans had been in charge up to that time--up until July--
and there were a number of nominees of President Bush, but they had not 
held any hearings whatsoever. I began the process of holding them 
within 10 minutes of the time I became chairman. Then, during the next 
17 months, we held hearings on 103, we voted through 100, voted down 2, 
and had 1 remaining.
  There is no 17-month period under Republican control with President 
Clinton when that was done.
  Mr. REID. Will the Senator also respond to this? It is also my 
recollection that during that 17-month period the Senator from 
Vermont's office received a letter which contained anthrax, Senator 
Daschle's office received a letter which contained anthrax, and 9/11 
occurred. In spite of all that, and the Senate being, in effect, locked 
down and the country being locked down, still the Judiciary Committee, 
led by the distinguished Senator from Vermont, approved a record number 
of judges, in spite of those items I mentioned--two anthrax attacks, 
one on the Senator who is now before me, one on the distinguished 
majority leader, the Democratic leader, and 9/11.
  Is that true?
  Mr. LEAHY. The Senator is absolutely correct. Obviously, we all 
remember how much disruption there was. The letter to the distinguished 
Senator from South Dakota ended up closing the Hart Building and 
temporarily the Dirksen Building. The letter that was sent to me was so 
toxic that two people who touched it died. Died. We had not canceled a 
single hearing. In fact, on one day when the Senate was being evacuated 
because we had scheduled a time to vote out some of President Bush's 
nominees, I literally grabbed Senators and held them here long enough 
to vote out some of President Bush's nominees.
  I say this knowing that when the Republicans were in charge and 
President Clinton was in office, we sometimes went 8 or 9 months 
without even having a vote on nominees. We were doing it several times 
a month.
  I appreciate the Senator asking those questions.
  Mr. REID. Will the Senator also answer this question? When the Hart 
Building was locked down, we were out of space around the Capitol and 
the Senator had every excuse as chairman of that committee not to hold 
hearings. I remember the Senator holding hearings down in the basement 
of the Capitol. There was not room for people. People were jammed into 
that room. But the Senator used no excuse to avoid going ahead with 
President Bush's nominations to the judiciary.

  Is that true?
  Mr. LEAHY. The distinguished Senator is absolutely correct. I might 
say that I commend especially the staff who in some instances were 
working out of their cars, working out of my hideaway or in the 
hallways, just because even our committee rooms were closed. I had 
people working out of the family room in my house. We did all of this 
so we could continue what turned out to be a recordbreaking number of 
hearings and votes on President Bush's nominees.
  Mr. REID. Madam President, I want to make a brief statement to the 
distinguished senior Senator from West Virginia.
  I ask unanimous consent that he be recognized following my very brief 
statement.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. REID. Madam President, I want the Record to reflect that the 
Senator from Vermont has been an exemplary chairman of one of the most 
important committees during one of the most difficult times in the 
history of this country. And for anyone to ever--I have been on this 
floor defending the Senator, as I will continue to do my entire career. 
If anyone ever suggests the Senator from Vermont didn't do stalwart and 
exemplary work, I will take them to task for it. In the most difficult 
of circumstances, in the most partisan times in the history of this 
country, the Senator from Vermont was not partisan. He moved the 
committee along in a nonpartisan, bipartisan basis. As I recall, 100 
judges were approved and only two judges were turned down by the 
committee.
  I think it is remarkable what has been done. I appreciate the Senator 
responding to those brief questions.
  I want to just say briefly there has been some suggestion we have 
been

[[Page S2770]]

trying to hold up things here. The only one holding up things is the 
majority. They can move off this nomination five seconds from now. They 
could give us the information we want or try to invoke cloture. The 
reason we are not off this nomination is they have no plan and nothing 
to do.
  I would like to read into the Record what Bob Novak--we all know Bob 
Novak. He is one of the most conservative--it is his birthday today. I 
heard it on Public Radio. I wish Bob Novak a happy birthday. Bob Novak 
hasn't been very prone to saying good things about Democrats. But here 
is what he said.

       Novak: Well, the Republicans figured that they would be 
     home at their recess last week and find out what the people 
     wanted. Apparently, the people weren't interested in Estrada, 
     because the Republicans have no idea what to do in the 
     Senate. They had a leadership meeting yesterday afternoon, 
     couldn't figure anything out, had a luncheon of all the 
     Republican senators, didn't figure it out. All that's decided 
     is, they're not going to ask for a cloture vote to force an 
     end to the filibuster, because they'd lost that. But they 
     have no strategy for around-the-clock sessions. They don't 
     know what to do. The Democrats are winning.

  That is Bob Novak.
  I want this Record spread with the fact that the Democrats if we 
wanted to hold things up, we could be objecting to committees meeting. 
We could be doing a lot of things just to slow things down. We want to 
speed things up. We want to get to the business of this country dealing 
with the economy.
  I listened to the radio this morning that they were going to have a 
debate in the British Parliament about the Iraqi war. The senior 
Senator from Illinois told me he listened to an hour of that debate 
this morning. I think it is wonderful that the British people are able 
to listen to their leaders debate a war. It does not matter what side 
you are on. Wouldn't it be important to debate the pros and cons of 
this war?
  And I say to my friend--my esteemed friend, somebody I admire 
greatly--the senior Senator from West Virginia, you have been able to 
come here and sneak a little bit of time--sneak it in--to talk about 
the war. It has been hard for the Senator to get floor time to talk 
about this issue.
  I respect and admire both of these Senators on the floor for being 
such great examples to me. But I want everyone to know that we are not 
trying to take advantage of anyone. If we were doing that, there would 
be all kinds of things we could do in a parliamentary sense. We are not 
doing that. We believe the burden is on the majority to move the 
legislation of this country, and it is not being moved.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Madam President, I thank the distinguished Senator from 
Nevada for his kind comments and always for the great services he 
performs for the American people here in this body.
  Madam President, is the Senate in executive session?
  The PRESIDING OFFICER. Yes, it is.
  Mr. BYRD. I ask unanimous consent to speak as in legislative session.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. I thank the Chair.


                  The Budgetary Costs of a War in Iraq

  Mr. BYRD. Madam President, since last August, the administration has 
worked aggressively to convince the American public that Saddam Hussein 
is a brutal dictator who directly threatens the United States. The 
President has been unambiguous, and often dangerously blunt, about his 
passion to use military force to destroy Saddam Hussein's regime.
  The Bush administration has promoted a vision of Saddam's removal 
from power quickly, easily, and bloodlessly. Indeed, part of the 
rationale for support for this war is that America's tremendous 
military superiority over Iraq will confine a military conflict to a 
relatively painless contest between the United States' awesome military 
forces and the relatively weak, conventional military machine of Saddam 
Hussein.
  A swift and simple military victory certainly is one possibility, but 
in our democratic Republic the administration also has a responsibility 
to inform the American people that much less pleasant scenarios are 
also possible and even likely. The Congress has a responsibility to 
explore all possible scenarios with an eye to the eventual costs of 
this war. We must not just accept the rosy projections so far offered 
by the administration. Frankly, I have seen little effort by either the 
administration or the Congress to inform the American taxpayer about 
the likely costs of this war.
  In both dollars and human lives, the administration has been 
ominously quiet about its internal calculations and estimates. What is 
even worse is that the Congress has barely bothered to ask about them.
  Earlier this month, the President unveiled his budget for the fiscal 
year 2004. Even assuming the most primitive and loose definition of the 
term ``fiscal responsibility,'' that budget request should certainly 
have included some rough estimate cost for a war with Iraq. Even a 
range of costs would have been somewhat illuminating.
  But no cost estimate was included in the budget of the President's. 
Now let me repeat that. There is no estimate of the cost of the looming 
war with Iraq in the President's budget--no cost estimate. That is hard 
to believe, isn't it? But that is the case. The possible war has 
dominated the airwaves for months, and yet there is no cost estimate in 
the President's budget. President Bush mentions the looming conflict in 
nearly every public pronouncement, and yet no cost estimate to fight 
the war appears in the President's budget--none. Is the administration 
trying to tell the people of this Nation it is for free?
  When the Defense Secretary presented the President's defense budget 
to the Senate Armed Services Committee, and was asked what the 
administration projected that a war in Iraq would cost, he would only 
say that such costs are ``not knowable.'' Let us contemplate that 
answer: ``not knowable.'' Does the Secretary of Defense mean to say 
that this great Nation does not yet know what its plans include for a 
war with Iraq? Is that why the costs are ``not knowable''? Does he mean 
to say that we do not yet know exactly what we are going to try to 
achieve in Iraq? Is that why the costs are ``not knowable''? Or does he 
simply mean to indicate that he does not want to divulge the potential 
costs, therefore to us they are ``not knowable''?
  One must presume that by now the administration would have made 
several internal forecasts of the military cost of the war using 
various scenarios, and that the White House Council of Economic 
Advisors would have prepared for the President a classified study of 
the projected economic impact of the war. Reportedly, OMB Director 
Mitch Daniels has been working on war estimates for months, and yet we 
are told that these costs are ``not knowable.'' None of this 
information has been made available to the public, nor, I suspect, is 
it likely to be released in the near future. This Congress--these two 
Houses; the people's elected Representatives--has a responsibility to 
demand that information. The people have a right to know. They are 
going to suffer the costs. Congress must not accept the answer, ``not 
knowable.'' The American people, I say, deserve to know. They deserve 
to know the truth.
  There was one cost estimate provided by the administration which came 
from an interview last fall with Larry Lindsey, the President's former 
economic advisor, who said that a war with Iraq could cost between $100 
billion and $200 billion. He went on to opine that that was 
``nothing.''
  Yet the White House quickly distanced itself from that comment, and 
the Director of the Office of Management and Budget rebuked that 
estimate, saying that Lindsey's estimate was ``very, very high.''
  The OMB Director suggested that the cost of the war would be closer 
to $60 billion or $70 billion. The Pentagon recently stretched that 
estimate to $95 billion. I wonder just what we are to make of these 
conflicting estimates.
  How are we to gauge the validity of such widely varying numbers? How 
are the American people to gauge the validity of such widely varying 
numbers? Do these figures contemplate other complications? What if 
casualty estimates grow into the thousands? And they may. What if oil 
prices skyrocket, sparking inflation and lines at the gas pump and 
costing the U.S. economy thousands of American jobs? Suppose the Middle 
East erupts in a tornado of violence, toppling regime after regime in 
the region.

[[Page S2771]]

  Even a rudimentary list of the possible contingencies shows that 
costs may grossly exceed what the administration wants the public to 
believe.
  The Congressional Budget Office reported last September that the 
incremental cost of just deploying a force to the Persian Gulf--that 
is, those costs incurred above those budgeted for routine operations--
could be between $9 billion and $13 billion. Prosecuting a war, 
according to the CBO, could cost between $6 billion and $9 billion per 
month. And after hostilities ended, the cost just to return U.S. forces 
to their home bases could range between $5 billion and $7 billion.
  Regardless of the swiftness of a military victory--it could be swift, 
but it might not be--there remains the cost of a postwar occupation of 
Iraq, which the administration says could last for up to 2 years and 
could mean another $1 billion to $4 billion, or more, per month during 
that period. On top of that, the United States might face a 
humanitarian crisis, including rampant disease and starvation, if 
Saddam Hussein employs a scorched earth strategy in defending his 
regime. What about the need for a cleanup of biological and chemical 
weapons if the Iraqi Republican Guard employs them against U.S. 
soldiers?
  Reconstruction and nation-building costs resulting from installing a 
democratic government in Iraq have to also be thought about. The 
American Academy of Arts and Sciences projected that the minimum 
reconstruction and nation-building cost for Iraq could be as high as 
$30 billion, and that is under the very best of circumstances. Will the 
administration propose something similar to the Marshall plan for Iraq? 
The Academy reported that U.S. investments in Western Europe after 
World War II under the Marshall plan cost a total of $13.3 billion over 
a 4-year period. That is the equivalent of $450 billion over 4 years if 
measured as a percentage of GDP in 2002.
  Mr. SARBANES. Madam President, will the Senator yield for a question?
  Mr. BYRD. Madam President, I am glad to yield.
  Mr. SARBANES. Madam President, let me say how much I appreciate the 
clarion call which the very distinguished Senator from West Virginia 
has been sounding. It is an extremely important issue--actually the No. 
1 challenge facing the country.
  Am I correct that the budget submitted by the administration--and I 
know the very able Senator probably knows more about the appropriations 
process than any Member of this body--did not contain any money for a 
potential war in Iraq or for subsequent reconstruction efforts?
  Mr. BYRD. The distinguished Senator from Maryland is preeminently 
correct. There is no estimate of what the war will cost in the 
President's budget.
  Mr. SARBANES. So the deficits projected in the President's budget, 
which are now going up toward the $300 billion level--and which have 
broken us out of the situation we were in only a couple of years ago 
where we were running surpluses--do not encompass potential costs of 
this military action in Iraq. In other words, the deficits would be 
significantly enhanced by whatever the amount of the cost would be; is 
that correct?

  Mr. BYRD. Astoundingly, the President's budget does not present such 
a cost. The Senator is exactly right.
  Mr. SARBANES. I was listening carefully to the Senator. As I 
understand it--and the estimates are all over the lot--the 
administration represents that it could last 4 days, or it could last 4 
weeks, or it could last 4 months; and you try to get them to pinpoint 
it, and they say: Well, who can tell what is going to happen? I gather 
even the Pentagon--and presumably they want to present the best light--
is estimating a $100 billion cost.
  Mr. BYRD. It is $95 billion, right under that.
  Mr. SARBANES. And you have an estimate for the reconstruction that 
was $30 billion, roughly speaking.
  Mr. BYRD. At a minimum, $30 billion.
  Mr. SARBANES. At a minimum. Of course, that was assuming we would not 
have this kind of devastation out there that might be possible if the 
weapons of mass destruction were to be utilized.
  Mr. BYRD. Yes.
  Mr. SARBANES. Well, these are tremendous costs that are staring us in 
the face, are they not?
  Mr. BYRD. They are indeed. It is amazing.
  Mr. SARBANES. I think it is a very important service the Senator is 
rendering in order to lay this out. Many people seem to be skipping 
right over this dimension, in terms of evaluating the path we should 
follow in dealing with the challenge we confront in the region.
  Mr. BYRD. Scriptures say that the wages of sin is death. We are not 
being told what the wages of this war are going to amount to. There is 
no discussion. One may be led to believe that this is going to be like 
a video game: It will be just over in a matter of moments, in days or 
weeks. There is no discussion of the cost. There is no estimate.
  Now, I find it very hard to believe that the administration has not 
carefully explored the potential cost of what the American people are 
going to be asked to bear; and I think the polls we read about, which 
indicate a pretty high degree of support for the President in his 
passion to lead us into this war--I don't believe those people who are 
asked questions have any idea whatsoever as to what the costs are going 
to be. Why should they? We ourselves don't have any idea. The 
administration is not presenting us with any estimates of the cost. 
This seems to me to be strikingly strange.
  We are being led into a war--led into a war--by an administration 
that makes no effort whatsoever to tell the American people what they 
are likely to pay in treasure, in lives, and especially with regard to 
a postwar Iraq. I think it is going to be like a bottomless pit.
  Mr. SARBANES. I thank the Senator for bringing this to our attention. 
It is an extremely important point, and the Senator is absolutely 
right. It has simply been glossed over in any consideration of this 
matter.
  Mr. BYRD. Oh, yes, glossed over. There seems to be no thought given 
to it. I want to tell the Senator from Maryland that we on the 
Appropriations Committee and the American taxpayers are going to learn 
about it at some point when it is over, and the costs of this war may 
be colossal.
  The time to ask questions is now, not a year from now, not when the 
body bags start coming back, not when the paying of the toll is coming 
due.
  Madam President, I thank the distinguished Senator, one of the most 
able Senators I have ever seen in my 45 years in this body and in my 50 
years on Capitol Hill. He is on committees that know something about 
dollars and cents and how they add up. I thank him for his incisive 
questions.
  Mr. SARBANES. I thank the Senator.
  Mrs. BOXER. Madam President, will my friend yield briefly for a 
followup to Senator Sarbanes' questions?
  Mr. BYRD. Madam President, I do yield.
  Mrs. BOXER. I thank my friend. I wish to add my voice to that of 
Senator Sarbanes and thank the Senator from West Virginia for his great 
leadership. I want him to know that in California, my constituents have 
talked to me about the Senator's statements many times. I spent the 
week in California, and they have received through e-mail a copy of the 
most recent statement Senator Byrd made on the Senate floor. It gives 
them hope to know that he is out here with all his years, his sage 
years here, and it really helps. It is a great help to me as well as a 
newer Senator, although one who has been here for 10 years and 10 years 
on the other side.
  I wish to pick up on the questions of, as we look at the costs of 
this war, to set aside the human costs, about which I have spoken at 
length and about which the Senator from West Virginia has continually 
been so eloquent, there is also the cost, for example, of payments to 
our friend and ally, Turkey, which, as I understand it, also is not in 
the budget request; am I correct?
  Mr. BYRD. The able Senator is correct.
  Mrs. BOXER. We are hearing everything from $6 billion in cash to an 
additional $10 billion to $20 billion in loan guarantees, and yet not a 
word in the budget. I wish to ask a final question of my friend, and 
that is, I was amazed to read that our friend, Carl Levin, on

[[Page S2772]]

the Armed Services Committee, was asking questions of the Pentagon 
about how many troops would be needed in the aftermath of war, 
immediately following perhaps for 2 years, perhaps longer, the number 
of troops that need to be put out there. The answer was 200,000 troops, 
and it took the breath of many of our colleagues. Again, I ask my 
friend a question: Is there any mention of that fact in the 2004 budget 
and the impact of that on our budget?
  Mr. BYRD. No, there is no mention of that fact. I must say, I have 
been informed that figure was inaccurate and that the general who used 
that figure later retracted the figure.
  Mrs. BOXER. Does my friend know what they are talking about in terms 
of the number of troops? I suppose a lot would depend upon whether we 
have a lot of our allies with us, would it not?

  Mr. BYRD. I am sure it would depend in great measure upon that. I do 
not think the administration has made any presentation of such a figure 
at all. I understand the British are going to supply 26,000 personnel, 
but there is no indication of what the other countries--and there are 
supposed to be a considerable number of other countries that would be 
supporting us, but nobody has indicated how many troops those other 
countries are going to present, and I am not sure they could present a 
great number. Angola, Cameroon, there are various and sundry other 
nations, some of which names I am almost unfamiliar with. They are 
included in this array of allies we are going to have supporting the 
effort.
  (Mr. Cornyn assumed the Chair.)
  Mrs. BOXER. In closing, I again thank my friend very much. The fact 
that a general, a very highly placed general, would come out with a 
number that is not correct, is in itself astounding. It means he 
certainly is not informed either. Not only are we uninformed, but he is 
uninformed, and this should give even more pause about this whole 
situation. I thank my friend for the energy he is putting into this 
issue. Again, my people in California are very grateful for what the 
Senator from West Virginia is doing.
  Mr. BYRD. Mr. President, I thank the distinguished Senator, and I 
thank the people of California for their interest in the subject 
matter, and they certainly should be interested in it.
  No one likes to talk about putting a price tag on national security, 
but these costs simply cannot be ignored in light of our current 
sagging economy and given a projected budget deficit of $307 billion 
for the fiscal year 2004. Remember--remember, Mr. President--this 
Government is going to have to borrow the money to finance this war. 
The total price of a war in Iraq could easily add up to hundreds of 
billions of dollars, even a trillion or more, overwhelming a Federal 
budget that is already sliding into deep deficits and warping the U.S. 
economy and impacting the economies of other nations for years to come. 
And, unlike the gulf war in 1991, many of our allies are unlikely to 
want to help much in defraying these costs.
  Right now, the administration is trying to coax other nations to join 
the ``coalition of the willing'' by paying them, not by asking them to 
help us pay for the war. A ``coalition of the willing,'' or a COW for 
short. It appears to me that the U.S. is the ``cow''--the cash cow in 
this instance. We are the ones who are being milked.
  The administration reportedly has negotiated a multibillion-dollar 
package of grants and loans for the Republic of Turkey for use of its 
bases to open a possible northern front against Iraq. The 
administration is negotiating similar multibillion-dollar packages with 
Egypt, Israel, Jordan, and other allies in the Middle East. I wonder if 
Members are aware of the details of any of these deals in the works or 
their projected costs over time.
  I believe the cost of this war will be staggering.
  We know that our Nation's most precious treasure, the lives of our 
young men and women in uniform, will most certainly be threatened. But 
we do not know how great the risk is because the administration will 
not talk about its plans.
  In addition, the cost in terms of taxpayer dollars will be absolutely 
enormous. We hear of negotiations ongoing with Turkey that are in the 
area of $30 billion. We learn of requests from Israel for $12 billion. 
In addition, Jordan wants to be compensated. We read that negotiations 
are underway to provide economic assistance to Mexico, Chile, and 
various African nations, all of which are members of the United Nations 
Security Council.
  Where will this all end? Where? How many nations will be promised 
American economic assistance just for their tacit support? And how 
strong is support that can be bought with promises of American dollars? 
This is no way to operate. This is no way to fight a war.
  If the case against Saddam Hussein were strong enough on its merits 
the United States would not have to buy the support of the 
international community. If the world truly believes that Saddam 
Hussein poses an imminent threat, then let the world say so clearly. 
But do not taint that decision, do not taint the possible sacrifice of 
American soldiers, sailors, and airmen, by prying open the door to war 
with a blank check from the American taxpayers.
  If war is undertaken without U.N. sanction or broad international 
support, the United States taxpayer can expect to pay the costs of the 
war for decades and pay the interest costs for decades more.
  And that is to say nothing about the larger macroeconomic costs to 
the economy. The economic ripples of a war could spread beyond direct 
budgetary costs into international energy markets through higher oil 
prices. The psychological effects of a war in Iraq, especially if it 
initiates new terrorist attacks around the globe, could further scare 
the already jittery financial markets and rattle consumers.
  If the war goes badly--and it could. Who knows? If the war goes 
badly, either through heavier than expected causalities, protracted 
bloody urban warfare, massive foreign denunciations, chemical and 
biological warfare, or major terrorist attacks here and abroad, we may 
be plunging our economy into unfathomable debt which this nation cannot 
easily sustain.
  But even if one discounts these scenarios as unlikely, and sets them 
all aside, the potential costs of a limited war in Iraq could continue 
to pile up for years, depending on the total damage to Iraq, the 
civilian casualties, and the possibility that the war's effects could 
spread into other countries.
  This is a dangerous and damaging game the administration is playing 
with the American public--with you, you who are looking through those 
electronic lenses at the Senate. Glossing over the cost of a war with 
Iraq may make it easier to win short-term support. But without any 
serious attention to costs, the American people cannot be engaged in a 
fulsome public discussion about the eventual wisdom of undertaking this 
war. Public support cannot be sustained to accomplish our post-war 
goals in Iraq if the Nation has been misled about the duration and 
difficulty and costs of such a conflict. We cannot treat the citizens 
of this Nation as if they are children who must be fed a fairy tale 
about fighting a glorious war of ``liberation'' which will be cheap, 
short and bloodless. If the President is going to force this Nation to 
engage in this unwise, potentially disastrous, and alarmingly expensive 
commitment, he must lay out all of the costs and risks to the Nation.
  Now we will come back to these lines again and again. If I am not 
here, the American people will still come back to the record that is 
being written.
  What is particularly worrisome is how naively the idea of 
establishing a perfect democracy in Iraq is being tossed around by this 
administration. If the administration engages in such a massive 
undertaking without the American people understanding the real costs 
and long-term commitment that will be required to achieve this 
visionary scheme, our efforts in Iraq could end with chaos in the 
region. Chaos, poverty, hopelessness, hatred--that is exactly the kind 
of environment that becomes a fertile breeding ground for terrorists.
  The administration is asking the American public and the 
international community to support this war. The administration must 
also put all of its cards on the table. A list of real risks and down 
sides do the Nation no good locked in Donald Rumsfeld's desk drawer. 
They must be brought into the sunshine for the people to assess.
  The American people are willing to embrace a cause when they judge it 
to

[[Page S2773]]

be noble and both its risks and its benefits are explained honestly to 
them. But if information is withheld, long-term political support can 
never be sustained. Once the order is given and the bombs start 
falling, the lives of American troops and innocent civilians on the 
ground hang in the balance. Once ``boots are on the ground,'' concerns 
about the monetary cost of war necessarily take a back seat. This 
nation will not shortchange the safety of our fighting men and women 
once they are in harm's way.
  But our people and this Congress should not have to wait until our 
troops are sent to fight to know what we are facing, including the 
painful costs of this war in dollars, political turmoil, and blood.
  In a democratic-Republic, secrecy has no place. Hiding information 
from the public to rally support behind a war, at the very time when 
the government should be striving for maximum trust will eventually 
undermine our nation's strength. This conflict will be paid for with 
the people's treasure and the people's blood. This is no time to 
affront that sacrifice with beltway spin and secrecy.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, for the past few weeks, we have had a 
vigorous debate on the floor and in the country on this nomination. I 
discussed my reasons for opposing Mr. Estrada's nomination before the 
recess. As I said then, I would probably vote to confirm Mr. Estrada to 
a lower court. But for this crucial court, at this crucial time, he is 
not the right person for the job. I have reached that conclusion in 
part because Mr. Estrada gave us so little to work with in trying to 
understand what kind of judge he would be. When we are talking about a 
lifetime appointment to the second highest court in this country, we 
cannot be expected to take it on faith that Mr. Estrada will be a fair 
and impartial judge, with no ideological axe to grind. The Senate's 
role is too important to just ``hope for the best.'' No, when we are 
asked to confirm a nominee to such a significant post, we have a right 
to expect that nominee to be forthcoming in answering our questions, 
and we have a right to expect the administration to be cooperative in 
providing any information that is relevant to making our decision. That 
is what the advice and consent process is about. Not some kind of phony 
``consultation'', and certainly not a rubberstamp for the President's 
nominees.
  Today I want to respond to some of the arguments that have been 
raised by those who support the nomination. Many of the arguments come 
in the form of twisting and misstating the reasons given by opponents, 
in order to ridicule them. Many have been creating straw men in order 
to knock them down.
  For example, we have heard numerous times that Senators oppose Mr. 
Estrada because he has no judicial experience, and the answer to that 
straw man is that many distinguished judges had no judicial experience. 
That is certainly true. I agree with that. Some great appellate judges 
had no prior judicial experience. Some of them sat or sit on the DC 
Circuit.
  But those of us who note Mr. Estrada's lack of judicial experience 
are not saying that that should disqualify him from serving in this 
position. What we are saying is that his lack of experience means he 
lacks a record to evaluate, unlike many of the other individuals that 
President Bush has nominated to the circuit courts, who have served for 
many years as US District Court judges. At the same time, Mr. Estrada 
has not been a law professor and written scholarly articles for 
publication. His lack of judicial experience is part of his lack of a 
record that we can review in order to see what kind of judge he will 
be.
  That brings me to the Solicitor General memos. In a way, this is 
really the crux of the problem with Mr. Estrada. Because Mr. Estrada 
has no judicial experience, because he has not written articles as a 
law professor, because he is so young and some of his most significant 
legal experience was as a lawyer in the Solicitor General's office, and 
because questions have been raised about his performance in that 
office, we have asked to see the memos that he wrote to his superiors 
on questions such as whether the United States Government should appeal 
an adverse ruling to the Supreme Court or whether it should file an 
amicus brief in a case that the Supreme Court has decided to hear.
  This request was originally made by then Chairman Leahy in May 2002, 
months before Mr. Estrada had his hearing before the Senate Judiciary 
Committee. So the claim that the request for these documents is a last 
minute effort to derail the nomination is patently untrue. We have been 
seeking these documents for nearly a year now, and the administration 
has been stonewalling for nearly a year now.
  I am afraid I have to say it has also been stonewalling in a really 
disingenuous way. The administration, echoed by supporters of Mr. 
Estrada here on the floor, has claimed that our request is 
unprecedented, that no such memos have ever been turned over to the 
Senate. One Senator stated unequivocally:

       Never in the history of the Justice Department have those 
     type of materials that are privileged, confidential work 
     product materials been given to this branch of Government or 
     any other branch.

  That is a pretty strong statement. It is also untrue. For example, 
during the consideration of the nomination of William Bradford Reynolds 
to be Associate Attorney General at the Department of Justice, exactly 
these kinds of memos--recommendations on appeals and amicus briefs 
written by line attorneys--were turned over to the Judiciary Committee. 
Then, during the consideration of the nomination of Robert Bork to the 
Supreme Court, a large amount of material was turned over to the 
Committee, including memos written to or from Judge Bork when he served 
as Solicitor General. In particular, memos to Judge Bork from Judge 
Frank Easterbrook, who then served in exactly the same position as Mr. 
Estrada did when he was in Solicitor General's office, were made 
available to the Senate.
  Still the Justice Department disputed the facts and continued to 
insist that only limited materials were made available during the Bork 
nomination and other materials must have been leaked. But Senator Leahy 
has disclosed a 1988 letter from Acting Assistant Attorney General 
Thomas Boyd to Senator Biden, requesting the return of materials that 
had been turned over during the confirmation proceedings. Mr. Boyd 
states:

       [M]any of the documents provided to the Committee, 
     ``reflect or disclose purely internal deliberations within 
     the Executive Branch, the work product of attorneys in 
     connection with government litigation or confidential legal 
     advice received from or provided to client agencies within 
     the Executive Branch.''
       We provided these privileged documents to the Committee in 
     order to respond fully to the Committee's request and to 
     expedite the confirmation process.

  It is abundantly clear that the Justice Department has provided these 
kinds of materials in the past, despite their confidentiality. And that 
is as it should be. I have enormous respect for some of the former 
Solicitors General who have written to us and given their view that 
these memos should not be released. But with respect, they are not 
Senators. They are not accountable to constituents for the votes that 
they take on whether to confirm judicial nominees. They have never made 
policy for this body, and unless they run for election in the States 
where they live, they never will.
  The White House and some of our colleagues have also argued that 
these kinds of memos have not been requested of all nominees who once 
served in that office or in a similar position in the Department of 
Justice. True enough. But that only underscores how important our 
request is. I say again, it is because Mr. Estrada has no judicial 
experience, because he has not written articles as a law professor, 
because he is so young and some of his most significant legal 
experience was as a lawyer in the Solicitor General's office, and 
because questions have been raised about his performance in that 
office, that we have asked to see these materials.

[[Page S2774]]

  The administration's failure to comply with our legitimate request, a 
request which is strongly supported by precedent in the Judiciary 
Committee's handling of past nominations, frankly leads to the question 
of whether there is something to hide in those memos. We will never 
know until we have a chance to read them. But what we do know is that 
until they are turned over this logjam will continue.

  Now some have made the argument on this floor and in the press that 
our action in delaying a vote on Mr. Estrada is unprecedented. That is 
plainly not the case, and again illustrates the amount of distortion 
that is occurring in this debate. According to CRS, there have been 
cloture motions filed on 14 judicial nominees since 1980. Just three 
years ago, cloture votes were required before two of President 
Clinton's nominees to the Ninth Circuit, Marsha Berzon and Richard 
Paez, could be confirmed. When these nominations were finally reported 
from committee after years and years of delay, motions to proceed to 
their consideration on the floor were defeated by the Republican 
majority. Over 5 months later, the nominations were finally brought to 
the floor. The two nominations were considered and debated together, 
and a cloture motion was required to end the debate on each nominee.
  It is true that both the majority leader at the time, Senator Lott, 
and Senator Hatch, supported cloture on the nominations. But still, 
there certainly was a filibuster on those nominees. That is what 
cloture votes do; they end filibusters. Senator Bob Smith was leading 
the opposition to the nominees. He put out a press release indicating 
that he was filibustering to stop them. Late last week, we heard from 
one Senator that this is the first ``true filibuster'' of a Circuit 
court nominee. I am still waiting to hear an explanation of what a true 
filibuster is compared to what happened with Judges Berzon and Paez. Is 
a ``true filibuster'' only one that seems to have the votes to succeed? 
That is an interesting definition.
  Let us not forget that in so many other cases during President 
Clinton's term in office, there was no filibuster because his nominees 
were never given a hearing or a vote in the Judiciary Committee. That 
is what happened to two nominees to the Circuit to which Mr. Estrada 
has been nominated. Alan Snyder, nominated by President Clinton in June 
of 1999, finally had a hearing in May of 2000, but never received a 
vote in Committee. Elena Kagan, nominated in September 1999, never even 
had a hearing in the Committee. So how exactly is that fairer treatment 
than a filibuster? The claims that this nominee is subject to 
unprecedented unfairness because an up or down vote is not being 
permitted at this time ring hollow.
  It is time for the Administration to face up to what happened over 
the last six years that President Clinton was in office. The DC Circuit 
is a very good place to start. There are two more vacancies on that 
circuit. If President Bush were to resubmit Mr. Snyder and Ms. Kagan's 
names, the court would remain balanced, and the President could really 
change the tone of the judicial nominations issue. For now, we are 
faced with an effort to fill a slot held open for years of a Democratic 
presidency with a nominee whose views are a mystery. That is not 
acceptable and we must continue to resist it.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            medicare equity

  Mr. FEINGOLD. Mr. President, I would also like to address one of the 
most important issues facing my state of Wisconsin, as well as many 
others across the country, the need to restore fairness to the Medicare 
program.
  During any debate of Medicare reform, one of Congress' top priorities 
should be to reduce regional inequalities in Medicare spending and 
support providers of high-quality, low-cost Medicare services.
  The high cost of health care in Wisconsin is skyrocketing: A recent 
survey found that the cost of health benefits for employees in 
Wisconsin rose 14.8 percent last year, to an average of $6,940 per 
employee. That is 20 percent higher than the national average of $5,758 
for workers in businesses with 500 or more employees. These costs are 
hitting our state hard--they are burdening businesses and employees, 
hurting health care providers, and preventing seniors from getting full 
access to the care that they deserve.
  One of the major contributing factors to the high cost of care in our 
state is the inherent unfairness of the Medicare Program. With the 
guidance and support of people across our state who are fighting for 
Medicare fairness, I have proposed legislation to address Medicare's 
discrimination against Wisconsin's seniors, employers and health care 
providers. The Medicare program should encourage the kind of high-
quality, cost-effective Medicare services that we have in Wisconsin. 
But as many in Wisconsin know, that is not the case.
  To give an idea of how inequitable the distribution of Medicare 
dollars is, imagine identical twins over the age of 65. Both twins 
worked at the same company all their lives, at the same salary, and 
paid the same amount to the federal government in payroll taxes, the 
tax that goes into the Medicare Trust Fund. But if one twin retired to 
Louisiana or Florida and the other retired in Eau Claire, Wisconsin, 
they would have vastly different health care options under the Medicare 
system. The twin in Louisiana or Florida would get much more.
  For example, in most parts of Louisiana and Florida, the first twin 
would have more options under Medicare. The high Medicare payments in 
those areas allow Medicare beneficiaries to choose between an HMO and a 
traditional fee-for-service plan, and, because area health care 
providers are reimbursed at such a high rate, those providers can 
afford to offer seniors a broad range of health care services.
  The twin in Eau Claire does not have the same access to care--there 
are no options to choose from in terms of Medicare HMOs, and sometimes 
fewer health care agencies that can afford to provide care under the 
traditional fee-for-service plan.
  How can two people with identical backgrounds, who paid the same 
amount in payroll taxes, have such different options under Medicare?
  They can because the distribution of Medicare dollars among the 50 
states is grossly unfair to Wisconsin, and much of the country. 
Wisconsinites pay payroll taxes just like every American taxpayer, but 
the Medicare funds we get in return are lower than those received in 
many other states. Legislation that I and others have proposed will 
take us a step in the right direction by reducing the inequities in 
Medicare payments to Wisconsin's hospitals, physicians, and skilled 
nursing facilities.
  Last year, with the introduction my Medicare fairness legislation and 
the efforts of many other Senators, including both the chair and 
ranking member of the Finance Committee, we put Medicare fairness 
issues front and center in Congress. We saw many successes. The Senate 
Budget Committee approved my amendment to promote Medicare fairness in 
any Medicare reform package. A wide range of Senators from both parties 
endorsed my proposal to create a Medicare fairness coalition. The House 
passed a number of Medicare fairness provisions that were a result of 
these successes, and both House and Senate leadership endorsed Medicare 
fairness issues.

  Now that we have finally brought these issues the attention that they 
deserve, we need to build on that momentum to pass Medicare fairness 
provisions into law. Some of this increased awareness can be seen in 
the recently passed omnibus spending bill. While I opposed this 
legislation, I was especially pleased that it contained provisions that 
take us a step toward fairness in the distribution of Medicare dollars 
in Wisconsin and other states across the country. By increasing the 
Medicare payments to small urban and rural providers, we are closer to 
reducing the inequities that plague the Medicare system.
  I hope that these provisions are only the first steps that Congress 
takes to restore Medicare fairness for Wisconsin and other affected 
States. Medicare

[[Page S2775]]

shouldn't penalize high-quality providers of Medicare services, and 
most of all, Medicare should stop penalizing seniors who depend on the 
program for their health care. They have worked hard and they have paid 
into the program all their lives, and in return they deserve full 
access to the wide range of benefits that Medicare has to offer.
  So I look forward to working with my colleagues to move legislation 
forward. I believe that we can rebalance the budget, while at the same 
time encouraging efficient, quality-enhancing Medicare services.
  Mr. President, I have one other topic.


                      supporting first responders

  Mr. President, I would also like to take this opportunity to talk 
about the need for Congress to help first responders do what they do so 
well: protect our communities in an emergency.
  The Department of Homeland Security is creating a massive shift in 
the Federal Government. Nobody will feel the impact of this shift more 
than the brave men and women who work in law enforcement, as 
firefighters, as rescue workers, as emergency medical service 
providers, and as first responders. We must make sure that these first 
responders have the resources that they need.
  While I commend the administration for raising the funding dedicated 
to first responders in the President's budget, I am concerned that 
these new layers of bureaucracy and reorganization could reduce these 
funding levels or, just as harmfully, put up barriers to first 
responders actually receiving these funds.
  The Federal agencies in the proposed Department of Homeland Security 
must listen to the priorities of our communities. After all, the needs 
of first responders actually vary among regions, as well as between 
rural communities and urban communities. In Wisconsin, I have heard 
needs ranging from training, to equipment, to more emergency personnel 
in the field, just to name a few.
  So I have proposed legislation, along with my friend from Maine, the 
chair of the Governmental Affairs Committee, that would promote 
effective coordination among Federal agencies under the Department of 
Homeland Security and ensure that our first responders--our 
firefighters, law enforcement, rescue, and EMS providers--can help 
Federal agencies and the new Department of Homeland Security improve 
existing programs and future initiatives.
  This is what it would do: It would first establish a Federal Liaison 
on Homeland Security in each State and coordinate between the 
Department of Homeland Security and State and local first responders. 
This office would serve not only as an avenue to exchange ideas, but 
also as a resource to ensure that the funding and programs are 
effective.
  For example, my hope is that the Homeland Security Department will 
make programs such as the Fire Act a high priority. The Fire Act 
provides grants directly to fire departments across our Nation for 
training and equipment needs. Last year, I visited one excellent 
example of this program in West Allis, WI, where the department 
received a grant in 2001 to implement a wellness and fitness program 
for their firefighters. I am told that it is one of the first 
departments in the State to meet the goals of this program, and I 
commend the department for its efforts.
  Our legislation would also direct the agencies within the Department 
of Homeland Security to coordinate and prioritize their activities that 
support first responders, and at the same time, ensure effective use of 
taxpayer dollars. As part of this coordination, the First Responders 
Support Act would establish a new advisory committee of those in the 
first responder community to identify and streamline effective 
programs.
  Last year, both the original Senate and House homeland security bills 
lacked the provisions needed to ensure that the new Department of 
Homeland Security communicates and coordinates effectively with first 
responders.
  During the Senate Governmental Affairs Committee markup of the 
homeland security bill last year, I was pleased to see the committee 
added our First Responders Support Act to the legislation. It did so 
knowing that we would have to reconcile the overlap between our 
legislation and the language in the chairman's mark creating an office 
for State and local government coordination. Our amendment, which was 
approved by the full Senate, did exactly that. Unfortunately, our 
proposal was dropped from the final bill during conference.
  I hope congress can make enactment of this legislation one of its 
priorities this year. We must be aggressive in seeking the advice of 
our first responders, and helping them to get the resources that they 
need to provide effective services. They are on the front lines, and 
they deserve our support.
  In almost any disaster, the local first responders and health care 
providers play an indispensable role. If the Department of Homeland 
Security is to be effective, we need to ensure that the resources are 
delivered to the front line personnel in an effective and coordinated 
manner. I urge my colleagues to join me in passing this proposal and 
others to support our first responders.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. COLEMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COLEMAN. Mr. President, I have been a Senator for a little less 
than 2 months. The same is true for the Presiding Officer. And we ran 
at a time when I believe the message from the people--and not just of 
Minnesota but I believe the people in America--was one that it is 
important the Senate should get things done. The 170th Congress had not 
passed appropriations bills, had not passed disaster assistance, had 
not passed a prescription drug benefit for seniors, and had not passed 
a budget. A lot of serious work needed to be done. That was the 
message.
  We are here now--in a little less than 2 months--and we are caught up 
in a filibuster. I read about filibusters when I was a kid. This 
basically means the Senate is spending a lot of time debating the 
nomination of Miguel Estrada to be a judge in the Court of Appeals for 
the District of Columbia Circuit, and the distinguished members of the 
minority party are not going to allow that nomination to get to a vote 
unless there are 60 Senators who vote for cloture to put an end to the 
filibuster.
  During the course of the discussion about Miguel Estrada, there have 
been some wonderful presentations on both sides of the aisle about the 
importance of the Constitution, the very sacred obligation of the 
Senate to advise and consent on nominations made by the President of 
the United States on judicial appointments.
  In those wonderful discussions talking about this sacred obligation, 
my fear is that the public may not understand that obligation is not to 
have 60 Senators vote to confirm a nomination, that to require 60 votes 
is what is known as a supermajority. The Constitution reserves 
supermajorities to very specific instances--the approval of treaties--
but not for the confirmation of Presidential nominees to the Federal 
courts. That should take a simple majority.
  So what we are faced with today is the very serious issue of an 
effort to change the constitutional standard for the selection of 
judges. And for all of us who love this Constitution, who understand 
its greatness--and I think through Divine guidance given to those who 
stood before us in chambers and in the Old Senate Chamber--to change 
the standard for Miguel Estrada is simply wrong.
  It is not the right thing to do. What our distinguished colleagues in 
the minority party should do is the right thing and simply give the 
Senate a chance to vote on the nomination of Miguel Estrada--vote and 
say you need 51 votes to confirm this nomination. That is the 
constitutional standard.
  The Web site of one of the most egregious liberal Washington interest 
groups has a number of troubling statements regarding the nomination 
and confirmation process for members of the judiciary. One memorandum 
discusses ``the approaching armageddon on judicial nominations.'' This 
extreme and inflammatory headline suggests an all-out, no-holds-barred, 
anything-goes campaign against judicial nominees by

[[Page S2776]]

those opposing the President's choices. Another headline on the same 
Web site demands its members and visitors to ``tell Senators: 
Filibuster the Estrada nomination.''
  I do not believe there has been, in the history of this esteemed 
body, a filibuster of a circuit judge. I do not believe there has been 
a partisan filibuster of the type we are experiencing right now in the 
Senate.
  On Wednesday, February 5, 2003, the Washington Post published an 
editorial referencing this Web site and condemning such tactics and 
urged a vote on the nomination of Miguel Estrada.
  The editorial in the Washington Post correctly points out that a 
filibuster would be ``a dramatic escalation of the judicial nomination 
wars.'' It states that Democrats who disagree with the nominee may vote 
against him, but they should not deny him a vote. The editorial 
concludes that Mr. Estrada's nomination should not be stalled any 
longer, stating:

       It certainly doesn't warrant further escalating a war that 
     long ago got out of hand.

  As I listen to the debate, it seems that there are a lot of feelings 
that somebody did something in the past and now we are going to pay 
back today. There was an earlier time of feuds between the Hatfields 
and the McCoys, and the Earps and the Youngers. That is not the way to 
act in the 21st century, when we face the challenges of a potential war 
with Iraq and with a struggling economy and with moms and dads worried 
about feeding and clothing their kids and sending their kids to good 
schools. We should not be caught up in this kind of partisan feuding, 
saying you did something in the past to our nominees, so now we are 
going to do the same to yours today. Put it aside.
  I am a product of the sixties philosophy. Let today be the first day 
of your life. We are never going to be younger than we are today, Mr. 
President. I think we have to put the past behind us. I don't know who 
was at fault in the past. I don't know about other nominees and the 
time it took them to get to the floor of the Senate, why they were 
delayed, for whatever reasons. All I know is that, today, Americans are 
crying out for the Senate to simply get the work of the people done. We 
can get the work done if we give Miguel Estrada a chance to simply have 
an up-or-down vote. That is all it is.
  We should not change the constitutional standard. We should not be 
requiring 60 votes to confirm a judicial nominee. That is not what the 
greatness of this institution is about. That is not what the 
Constitution, which has preserved this country and set the standard for 
democracy, intended.
  Let us have a clear understanding of what a modern day filibuster 
means. Those advocating this obstructionist tactic aren't demanding the 
opportunity for extended debate; that is already available to all 
Senators. The practical matter of a filibuster is to prevent a vote on 
the nominee, unless cloture is obtained. Of course, cloture requires 60 
votes. As I said before, those calling for a filibuster on this nominee 
are demanding a supermajority vote. That is not what the Constitution 
says. That is not what the Constitution dictates. That is not the 
precedent and pattern we should be following. This is against the 
traditions and practices of this body. In fact, in only one instance 
did the Senate reject cloture and defeat a judicial nominee. That was 
in 1968, on the nomination of Justice Abe Fortas to be Chief Justice of 
the Supreme Court.

  As I noted before, that was a bipartisan filibuster--not the party-
line filibuster we are seeing waged here today against Mr. Estrada.
  I agree with the previous chairman of the Judiciary Committee, a 
Democrat, who said in a speech on the Senate floor--I believe it was 
the Senator from Vermont:

       I have stated over and over again on this floor . . . that 
     I would object and fight against any filibuster on a judge, 
     whether it is somebody I opposed or supported, that I felt 
     the Senate should do its duty.

  Let the Senate do its duty. Let those who oppose the nomination of 
Miguel Estrada have their right to cast their vote, have a right to 
have their say, for whatever reasons. It is within their discretion to 
choose their reason to say no. On the other hand, let us follow the 
dictates of our Constitution and not change the constitutional 
standard. Let us give Miguel Estrada the opportunity simply for an up-
or-down vote, and let a majority of Senators in the Senate--and I 
believe that a majority, which would be a bipartisan majority, not just 
folks of one party, but distinguished members of the minority party who 
support the nomination, would not change the constitutional standard.
  During the course of this debate, there have been many serious 
misrepresentations of the record on Mr. Estrada. I want to address in 
some detail one of the most serious distortions, which concerns the 
answers that Mr. Estrada gave to questions that members of the 
Judiciary Committee asked him.
  The charge being leveled against Mr. Estrada is that he did not 
answer questions put to him in general, and he did not answer questions 
about his judicial philosophy in particular. I have to say, that charge 
is pure bunk.
  I sat here and listened as some of my colleagues on the other side of 
the aisle said he didn't answer questions. I have the transcript in 
front of me. He was there for a full day. He answered question after 
question. He answered followup questions, written questions. He 
answered the questions.
  Again, it is important to remember the circumstances under which this 
hearing took place. That hearing was held September 26, 2001, chaired 
by my Democratic friend, the senior Senator from New York, with whom I 
went to grade school and high school in Brooklyn. Both Democratic and 
Republican Senators asked scores of questions, which Mr. Estrada 
answered. If any Senator was unsatisfied with Mr. Estrada's answers, 
every member of the committee had an opportunity to ask Mr. Estrada 
followup questions. I believe only two of my Democratic colleagues did 
that.
  A number of questions that Mr. Estrada was asked directly or 
indirectly tried to pry from him a commitment on how he would rule on a 
particular case. Previous judicial nominees who were confirmed by the 
Senate have rightly declined to answer questions on that basis, as Mr. 
Estrada did. Let me give you some examples.

  In 1967, during his confirmation hearing for the Supreme Court, 
Justice Thurgood Marshall responded to a question about the fifth 
amendment by stating:

       I do not think you want me to be in a position of giving 
     you a statement on the Fifth Amendment and then, if I am 
     confirmed and sit on the Court, when a Fifth Amendment case 
     comes up, I will have to disqualify myself.

  If I may digress, one of the other charges against Mr. Estrada is 
that he did not have judicial experience. During the course of this 
debate, it has been highlighted again and again that many distinguished 
judges--Supreme Court Judges and circuit court judges--did not have 
judicial experience before they were appointed to the court. Mr. 
Estrada, in fact, clerked for both a Federal court judge and U.S. 
Supreme Court Justice Anthony Kennedy. When Thurgood Marshall was 
appointed, I believe, to the District Court of Appeals, he did not have 
prior judicial experience. I think it was Justice Holmes who did not 
have it. I could go on and on. So that charge, too, is pure bunk.
  During Sandra Day O'Connor's confirmation hearing, the Senator from 
Massachusetts, the former chairman of the Judiciary Committee, defended 
her refusal to discuss her views on abortion. He said:

       It is offensive to suggest that a potential justice of the 
     Supreme Court must pass a presumed test of judicial 
     philosophy. It is even more offensive to suggest that a 
     potential justice must pass the litmus test of any single-
     issue interest group.

  It is interesting, if you look at Mr. Estrada's response on the 
question of Roe v. Wade, he said very clearly in response to a question 
of the Senator from California that he has his views, but his view of 
the judicial function ``does not allow me to answer that question.'' 
But he said he has a personal view on the subject. Again, he goes back 
to his view of judicial function. Then he goes on to say:

       And the reason I have not done any of those things is that 
     I view a system of law in which me as an advocate and 
     possibly if I am confirmed as a judge, have the job of 
     building on the wall that is already there, not to call it 
     into question. I have no particular reason to go back and 
     look at whether that decision was right or wrong as a matter 
     of law, as I would if I were a judge that was hearing the 
     case for the first time.


[[Page S2777]]


  Then he goes on to say:

       It is there. It is the law and it has subsequently been 
     refined by the Casey case, and I will follow it.

  The Senator from California asked:

       Do you believe it is settled law?

  The answer is:

       I believe so.

  So again, he has done what other nominees have done and he will not 
discuss his personal feelings. He will not discuss his personal 
philosophy on that issue, but he says it is settled law--settled law.
  Likewise, Justice John Paul Stevens testified during his confirmation 
hearing:

       I really don't think I should discuss this subject 
     generally, Senator. I don't mean to be unresponsive, but in 
     all candor, I must say there have been many times in my 
     experience in the past 5 years when I found that my first 
     reaction to a problem was not the same as the reaction I had 
     when I had the responsibility of decisions, and I think if I 
     were to make comments not carefully thought through, they 
     might be given significance they really did not merit.

  Justice Sandra Day O'Connor was confirmed. Justice John Paul Stevens 
was confirmed.
  Justice Ruth Bader Ginsburg also declined to answer certain 
questions, stating:

       Because I am and hope to continue to be a judge, it would 
     be wrong for me to say or to preview in this legislative 
     chamber how I would cast my vote on questions before the 
     Supreme Court. Were I to rehearse here what I would say or 
     how I would reason on such questions, I would act 
     injudiciously.

  In addition, as my colleague from Nevada yesterday noted, Justice 
Ginsburg just last year said in dissent in the case of Republican Party 
of Minnesota v. White:

       In the context of the Federal system, how a prospective 
     nominee for the bench would resolve certain particular 
     contentious issues would certainly be ``of interest'' to the 
     President and the Senate. . . .But in accord with a 
     longstanding norm, every Member of this Court declined to 
     furnish such information to the Senate and presumably to the 
     President as well.

  I believe I recall in reviewing the transcripts of the hearing of Mr. 
Estrada--I am not a member of that committee, but I have taken the time 
to review some of the transcripts--he was asked by one of my 
distinguished colleagues on the other side of the aisle whether he was 
a strict constructionist. I believe his response was he was a fair 
constructionist.
  A further discourse by my distinguished colleague from the other side 
of the aisle, I think from North Carolina: Did the President talk about 
strict constructionist? I am paraphrasing. Mr. Estrada came back and 
said: I did not talk about that with the President, but he talks about 
being a fair constructionist.
  That is the kind of judge the people of the United States want to sit 
on the Circuit Court of Appeals.
  I also note, in contrast to the characterization of my colleague from 
Nevada, however, Justice Scalia in his majority opinion did not take 
issue with that description, as Mr. Gonzales pointed out in his letter. 
Justice Scalia said:

       Nor do we assert that candidates for judicial office should 
     be compelled to announce their views on disputed legal 
     issues.

  Like these previous nominees, all of whom the Senate confirmed, Mr. 
Estrada refused to violate the code of ethics for judicial nominees by 
declining to give answers that would appear to commit him on issues 
that he would be called upon to decide as a judge. Again and again, he 
provided answers in direct response to questions that make his judicial 
philosophy an open book.
  Let me share some specific examples. Responding to a question to 
identify the most important attribute of a judge, Mr. Estrada answered 
that it was to have an appropriate process for decisionmaking. That, he 
said, entails having an open mind, listening to the parties, reading 
their briefs, doing all the legwork on the law and facts, engaging in 
deliberation with colleagues, and being committed to judging, as a 
process that is intended to give the right answer.

  These are not extreme views. I do not think we could ask any more 
from any judge.
  When asked about the appropriate temperament of a judge, he responded 
that a judge should be impartial, openminded, and unbiased, courteous, 
yet firm, and one who will give ear to people who come into his 
courtroom. These are the qualities of Miguel Estrada. He testified that 
he is and would continue to be the type of person who listens with both 
ears and would be fair to all litigants. Again, that phrase he used, he 
would be a fair constructionist.
  Mr. Estrada was asked a number of questions about his views and 
philosophy on following legal precedent. Let me highlight a bit of that 
exchange.
  Question:

       Are you committed to following the precedents of higher 
     courts faithfully and giving them full force and effect even 
     if you disagree with such precedents?

  Answer:

       Absolutely, Senator.

  Question:

       What would you do if you believe the Supreme Court or the 
     Court of Appeals had seriously erred in rendering decision? 
     Would you apply that decision or use your own judgment of the 
     merits, or the best judgment of the merits?

  Answer:

       My duty as a judge and my inclination as a person and as a 
     lawyer of integrity would be to follow the orders of the 
     higher court.

  Question:

       And if there were no controlling precedent dispositively 
     concluding an issue with which you were presented in your 
     circuit, to what sources would you turn to for persuasive 
     authority?

  Answer:

       In such a circumstance, my cardinal rule would be to seize 
     aid from any place where I could get it--related case law, 
     legislative history, custom and practice, and views of 
     academics on analysis of law.

  That is the kind of judge we want. That is the kind of judge I think 
the Constitution intended us to have when it gave us this solemn 
responsibility of advising and consenting on judicial nominations. 
Again, not by changing the constitutional standard, but advising and 
consenting, allowing a majority of Senators in the Senate to advise and 
then consent on a nominee presented by the President but not requiring 
a supermajority.
  These exchanges I have laid out clearly illustrate Miguel Estrada's 
respect for law and his willingness and ability to faithfully follow 
the law.
  He further testified, in response to other questions:

       I will follow binding case law in every case. Even in 
     accordance with the case law that is not binding, but seems 
     instructive on the area, without any influence whatsoever 
     from any personal view I may have about the subject matter.

  This is what we expect judges to do. I can see no good reason why 
anyone would be opposed to a nominee who promised to follow the law, a 
nominee who is highly qualified, a nominee who the American Bar 
Association in rating judges gave a unanimous--every person on the 
committee, and I presume they were not all conservative Republicans, 
every person on that review committee unanimously gave him the highest 
rating, the highest recommendation, which many of my distinguished 
colleagues on the other side of the aisle have called the gold 
standard. That is the way in which we should measure judges.

  Now we have a judge in front of them who has passed the gold standard 
unanimously, who is highly educated, who at 17 years of age came to 
this country from Honduras and did not speak English well, graduated 
magna cum laude from Columbia, graduated magna cum laude from Harvard 
Law School, was editor of the Law Review, clerked for Federal and 
Supreme Court judges, worked, and came back to public service. Talk 
about the American dream.
  Miguel Estrada, being given such great opportunity of education, is 
coming back and saying: I am going to give back to the community; I 
want to work in public service.
  I had the chance to serve as solicitor general of the State of 
Minnesota. It is a solemn, high honor to represent your State or to 
represent your country, to work for your State or your country, to 
uphold its constitution.
  It is important to note that every living former Solicitor General of 
the United States, four of whom are Democrats, stand with Miguel 
Estrada on one of the other issues that my distinguished colleagues 
from the other side have raised. They said they want some of his 
opinion papers. Yet Democrat Solicitors General--every one of them--
say, no, that is not appropriate;

[[Page S2778]]

those should not be given up. That is not Miguel Estrada saying that. 
Those are the Solicitors General of the United States. Again, that is 
another argument that is a bogus argument, if I may be blunt.
  When asked about the role of political ideology in the legal process, 
Mr. Estrada replied with a response that, in my view, was entirely 
appropriate and within the mainstream of what all Americans expect from 
their judiciary. He said:

       [A]lthough we all have views on a number of subjects from A 
     to Z, the first duty of a judge is to self-consciously put 
     that aside and look at each case with an open mind and listen 
     to the parties. And, to the best of his human capacity, to 
     give judgment based solely on the arguments of law. I think 
     my basic idea of judging is to do it on the basis of law and 
     to put aside whatever view I might have on the subject to the 
     maximum extent possible.

  When asked about his views on interpreting the Constitution, Mr. 
Estrada was forthright and complete in his responses. For example, in 
exchange regarding the literal interpretation of the words of the 
Constitution, Mr. Estrada responded:

       I recognize that the Supreme Court has said on numerous 
     occasions in the area of privacy and elsewhere that there are 
     unenumerated rights in the Constitution. And I have no view 
     of any sort, whether legal or personal, that would hinder me 
     from applying those rulings by the Court. But I think the 
     Court has been quite clear that there are enumerated rights 
     in the Constitution. In the main, the Court has recognized 
     them as being inherent in the right of substantive due 
     process and the liberty clause of the fourteenth amendment.

  Mr. Estrada was asked questions about the appropriate balance between 
Congress and the courts. His answers made clear his view that judges 
must review challenges to the statutes with a strong presumption of the 
statute's constitutionality. For example, in responding to a question 
about environmental protection statutes, he stated:

       Congress has passed a number of statutes that try to 
     safeguard the environment. I think all judges would have to 
     greet those statutes when they come to the court with a 
     strong presumption of constitutionality.

  At the same time, he recognized that as a circuit court judge he 
would be bound to follow the precedent established by Lopez and other 
Supreme Court cases. So it is clear from the record that Mr. Estrada 
did answer the questions put to him at his hearing.
  His judicial philosophy is an open book. But if my Democratic 
colleagues are still inclined to vote against him, misguided as I 
believe that choice to be, then they should have that right. Let them 
vote against him. Vote for him, vote against him. Do what their 
conscience dictates. Just vote. Do not change that magnificent, most 
wonderful constitutional standard that has guided us and kept this 
country together for over 200 years. Allow the Senate to exercise its 
duty. Allow each Member to vote their conscience. Just vote and end 
this filibuster.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Madam President, I take this opportunity to address the 
Estrada nomination and a couple of other issues that the people in my 
State care a lot about.
  Before he leaves, I wanted to say to my friend from Minnesota that I 
know he was not in the Senate during the last filibuster on the court 
nominee--actually, there were two including the Abe Fortas nomination 
in the 1960s--and they occurred in the year 2000. They were launched by 
Members of the Republican side of the aisle, and they were directed at 
a woman named Marcia Berzon and a man named Richard Paez.
  In addition to the filibuster----
  Mr. COLEMAN. Madam President, will the Senator from California yield?
  Mrs. BOXER [continuing]. There was actually a vote to indefinitely 
postpone one of those nominees, the Hispanic nominee, Richard Paez.
  Mr. COLEMAN. Madam President, will the distinguished Senator from 
California yield for a question?
  Mrs. BOXER. I would be delighted to.
  The PRESIDING OFFICER (Ms. Collins). The Senator from Minnesota.
  Mr. COLEMAN. I ask the distinguished Senator from California, is it 
not true that in those instances when she talks about ``filibusters''--
and I was not here, but I understand that those ``filibusters'' did not 
last more than a day or two--that in fact both of those nominees had a 
chance to be voted on by this body. Is that true?
  Mrs. BOXER. My friend is incorrect. Here is what happened. It took 4 
years, I say to my colleague, to get the Republicans to bring the 
nomination of Richard Paez to the floor of this Senate. How do I know? 
Because I had recommended Judge Paez first for the district court, 
where he got immediate approval.
  I would like to answer my friend before I yield, and I will be glad 
to yield to my friend all night long, believe me, if he wants to stay 
and engage. So relax and we will get to his questions.
  My friend was not here. It took 4 long years to get the Republicans 
to relent. This is Republicans, the Senator's party, who voted to seat 
him on the district court unanimously. When he was nominated for the 
circuit court, it took 4 years. There was extensive questioning back 
and forth, written questions, oral questions. Then there was a 
filibuster. My friend says it only lasted 2 days. It was 4 years and 2 
days.
  I say to my friend, the only reason in the world that filibuster was 
ended is because we had the votes to stop it. The Senator does not have 
the votes to stop this filibuster. If he did, it could be done in a 
minute. The reason there are not the votes is because this man will not 
answer questions, despite the fact that my friend read some answers. I 
have a lot of other things to put in the Record tonight that will 
challenge that.
  Before he leaves, I say to my friend, in answer to his question and 
before I yield further, this was a clear filibuster. I am going to give 
a quote.

       I must confess to being somewhat baffled that after a 
     filibuster is cut off by cloture the Senate could still delay 
     a final vote on the nomination.

  I say to my friend, who called what happened to Richard Paez a 
filibuster? None other than the Senator's chairman, Orrin Hatch. It is 
in the Congressional Record.
  I am glad to yield to my friend for a further question.
  Mr. COLEMAN. Madam President, I ask the distinguished colleague from 
California again, in both instances is it not true that cloture was 
filed--we are talking about filibuster, not 4 years but filibuster 
debate on this floor--and both nominees were confirmed after cloture 
was invoked?
  Mrs. BOXER. I say to my friend, the day this nomination was brought 
to the floor, the Republican side could have filed cloture, just as we 
did, but they are choosing not to do it. There can be a vote on cloture 
today. It could be tomorrow.
  Not only that, when this man answers questions, the vote is going to 
be won. The Senator is going to have his vote.
  I have been around a long time in public life, 10 years in the House, 
and 10 years in the Senate. I have never seen such a systematic plan 
not to answer basic questions. Can anyone imagine a man who cannot 
answer a question if there was ever a Supreme Court case that he 
disagreed with? I daresay I do not know anyone in the country, lawyer 
or not, who agrees with the Dred Scott decision. I do not know any 
person who is willing to say now that he believes separate but equal, 
Plessey v. Ferguson, was rightly decided.
  This man cannot even say which Justice, dead or alive, he would 
emulate most. It is unbelievable. Except when it is put in the context 
of who was advising this man, and we have seen it time and again on the 
floor. They basically said: Do not answer any questions. This is a 
lifetime appointment. Do not blow it.
  Mr. COLEMAN. Madam President, will the distinguished Senator from 
California yield for two more questions?
  Mrs. BOXER. Absolutely.
  Mr. COLEMAN. Is it not true the Republicans filed cloture for both of 
the distinguished judges my colleague from California has mentioned, 
both Judge Paez and Judge Berzon? Secondly, if that is true, I ask my 
distinguished colleague from California if she would vote for cloture 
and support putting an end to this filibuster on the nomination of 
Miguel Estrada.
  Mrs. BOXER. The bottom line is who can file cloture? The Democrats 
can file cloture on this nomination. The question is, Was there a 
filibuster? My friend stood up and said there has been no filibuster 
since Abe Fortas in the

[[Page S2779]]

1960s, when his own chairman, Orrin Hatch said:

       I must confess to be somewhat baffled that after a 
     filibuster is cut off by cloture the Senate can still delay a 
     final vote on the nomination.

  By the way, there was a filibuster on Marsha Berzon. My friend ought 
to know, in addition to the filibuster, after we had won the cloture 
vote on the Paez nomination, there was an incredible motion filed to 
indefinitely postpone the vote on the nomination. Imagine, there is 
this fight; it lasted 4 years and several days on a filibuster. We win 
this, we get the votes, and then there is a motion from a Republican to 
indefinitely delay the vote, and even Senator Hatch was stunned. He 
said he was baffled that could even happen.
  So for the Senator to say there has not been a filibuster since the 
1960s on a judge is false. His own chairman admitted there was a 
filibuster.
  Not only did his side launch a filibuster--my friend was not here; I 
don't mean to take it out on you--but as someone who knew how fine 
these two nominees were, they faced that filibuster. They answered the 
questions over and over again and finally got a vote.
  That is the system here. It is misleading to the American public to 
hear this day in and day out. ``This is unprecedented to have a 
filibuster.'' What is unprecedented is that we have the votes to keep 
it going. You did not have the votes on your side to keep it going.
  If my friend has no further questions, I will return to my original 
statement.
  Mr. COLEMAN. Madam President, I have no further questions for my 
distinguished colleague from California.
  Mrs. BOXER. I thank my friend.
  The point I make tonight, among several, is that we have been 
charged--those who want more answers from Miguel Estrada--with doing 
something that has never been done before when, in fact, in the year 
2000, two nominees to the Ninth Circuit Court were filibustered and one 
of the two was not only filibustered, but after he won cloture there 
was a motion to indefinitely postpone the actual vote on his 
nomination. I had never seen that. I hope I never see it again. The 
fact is, there have been two filibusters led by Republican Members and 
those were defeated.
  The second fact is that one of those particular individuals was the 
first Mexican American to serve on the Central District Court of 
California and the Republicans held him up for 4 years before we were 
able to break the filibuster.
  It was quite a situation. My friend from Minnesota said--I don't want 
to misquote him--something like ``the judicial philosophy of this 
nominee is an open book,'' I think is what he said. It may be an open 
book, but it looks like this. This is the book. There is nothing on it.
  When a candidate cannot say if there was ever a Supreme Court case 
with which they disagreed, this is going above and beyond stonewalling; 
or cannot say what Justice, dead or alive, he would emulate most, this 
is beyond stonewalling.
  In my State we are very fortunate. We have reached agreement with 
Republicans in our State. We have a wonderful selection process for 
judicial nominees for the district court. Those individuals come before 
us and are screened by a joint committee. It is a great process. They 
answer questions. There are votes taken. Then Senator Feinstein and I 
make a recommendation. It is a bipartisan process.
  This is the point: It is working. And it is a participatory process 
from both parties and both branches of government. I believe questions 
ought to be asked and answered and Senators have a right to ask 
questions and Senators have a right to have those questions answered. 
It is pretty simple.
  I started to talk about Judge Paez who made history as a Hispanic 
because I wanted to make the point for the Senate that he was treated 
in a way that was totally outrageous, having to wait 4 years to get a 
vote. He hung on because of his true grit--hearing after hearing; 7 
months his nomination languished in 1998. The Republican majority 
refused to bring him up for a vote. All we were asking for was a vote. 
And we were refused.
  In 1999, Judge Paez was nominated for the third time, and 6 months 
later the Judiciary Committee approved his nomination, but again we 
could not get the nomination up for a vote. Finally, when the 
nomination was brought up after more than 1,500 days, it was 
filibustered.

  My colleagues say again and again it was not. Senator Hatch, the 
chairman of the Judiciary Committee, said it and it is in the 
Congressional Record. This was a filibuster. We had to get cloture. 
When you have to get cloture, there is a filibuster. That is as simple 
as it is. We had to get 60 votes.
  If my Republican friends want to end this, tell the nominee to answer 
the questions. And believe me, he will get an up-or-down vote and the 
chips will fall where they fall.
  It is very clear to me when I look at the way Judge Paez was treated, 
Marsha Berzon, Margaret Morrow, and a whole slew of others who were 
nominated and eventually confirmed, they had to answer question after 
question after question. I will get to that in a minute, the type of 
questions that Margaret Morrow had to answer just to become a district 
court judge.
  Let's go to the floor of the Senate and take you back to the year 
2000 to this filibuster against Marsha Berzon and against Judge Paez. 
Let me quote Senator Smith, that is Bob Smith, of New Hampshire, then 
Senator: ``it is no secret that I have been the person who has 
filibustered these two nominations, Judge Berzon and Judge Paez.''
  And he goes on to say: ``So don't tell me we haven't filibustered 
judges and that we don't have the right to filibuster judges on the 
floor of the Senate. Of course we do. That is our constitutional 
role.''
  This is a Republican, leading the filibuster, against Clinton 
nominees for the circuit court. He says: ``don't criticize our right to 
do these things and don't say things didn't happen that did happen.''
  And he goes on, more Bob Smith, Republican from New Hampshire, one of 
the leaders of the filibuster, along with Senator Allard, Senator 
Brownback, Senator Bunning, Senator Craig, Senators DeWine, Enzi, 
Frist, Graham, Helms, Hutchinson, Inhofe, Murkowski, and Shelby. And 
Bob Smith said:

       Don't come here on the floor and tell me that if I want to 
     block Judge Paez or Judge Berzon, somehow I'm going down some 
     new path. I am not going down any new path. I am following 
     the tradition and precedent of this Senate.

  That was Republican Bob Smith, one of the leaders of the filibuster, 
against two judges, one Hispanic, nominated by President Bill Clinton 
for the Ninth Circuit Court.
  Senator Bob Smith continues:

       We have a responsibility to make darn sure these judges are 
     going to represent the views of the majority of the American 
     people in terms of the law. I intend to do that as long as I 
     can stand here to do it.

  And the Republican Bob Smith continues, one of the leaders of the 
filibuster, against Hispanic judge Richard Paez. It took him 4 years to 
get a vote. Bob Smith, Republican:

       When a nominee has some controversy about him or her, if it 
     gets to the floor, there are normally quite a few 
     discussions; i.e., a filibuster.

  Now this goes on. I am shocked that my friends on the other side of 
the aisle didn't read recent history--in the year 2000. Here it goes 
on. What were the reasons for the filibuster? According to Senator 
Smith, it was because--what? He didn't get answers to questions.
  Let me quote former Senator Smith again, leading a filibuster against 
a Hispanic judge and Marsha Berzon, two qualified appointees. They got 
the top rating. They were put up by Bill Clinton.

       I think those questions ought to be answered. I think we 
     should know the answers to those questions about what 
     happened before we put this person on the circuit court.

  Let me say that again. A Republican colleague of yours, that side of 
the aisle, leading the charge against these Clinton nominees, leading a 
filibuster:

       I think those questions ought to be answered. I think we 
     should know the answers to those questions about what 
     happened before we put this person on the circuit court.

  More quotes from Bob Smith, in the Congressional Record:

       Filibuster in the Senate has a purpose. It is not simply to 
     delay for the sake of delay. It is to get information.

  It is to get information. And do you know what? I disagreed with the 
filibuster that was led then. It went on

[[Page S2780]]

and on until they didn't have the votes anymore and we had the votes. 
You could say: What goes around comes around.
  Senators on the other side of the aisle launched a filibuster against 
two of President Clinton's nominees for the Ninth Circuit Court, with 
the highest qualifications, and there were those on the other side of 
the aisle who believed they didn't answer questions. They launched a 
filibuster on that ground, and we had to get the votes. And you have to 
get the votes. That is the way it is here.
  We were able to get the votes because--guess what--our nominees 
answered the questions. They answered the questions, every question. I 
had worked to help get Margaret Morrow to a district court judgeship. I 
want to tell you, Margaret Morrow waited 2 to 3 years to get a vote for 
district court. Do you know what she was asked? She was asked a 
question that was so abhorrent, I could not believe it. She was asked 
by one of the Senators on the Republican side of the aisle how she 
voted for the last 10 years on referenda that were on the ballot in 
California.
  Madam President, I know you are not an expert on California. I can 
tell you, there were hundreds and hundreds of these referenda, and they 
were on some tough issues for everything you can imagine.
  No. 1, I always thought this was a secret ballot. When you go in the 
voting booth it is between you and yourself; you are going to decide 
these issues. That is No. 1.
  No. 2, this was an impossible request. How could you even remember 
all these issues, how you voted on them?
  So we went to this particular Senator and said: Senator, this is not 
fair. This is a secret ballot--please. But he wouldn't relent. But he 
relented to this degree. He said: OK, we won't go back 10 years, just 
give us the 10 most controversial votes.
  She did. She did. She respected the process enough, she even went so 
far as to answer those questions which, in my opinion--I don't know 
what I personally would have done. I truly don't know. But I know I 
told her, if she felt she could do it, do it, because a Senator was 
asking.

  That is an amazing comparison, compared to: Can you name any Supreme 
Court Justice who would emulate or any Supreme Court case that you 
disagree with? Those are conventional questions asked over and over 
again.
  As far as memoranda from the Solicitor General's Office are 
concerned, there is precedent for that. There is precedent for that. I 
will give you the people who turned over these previously confidential 
internal documents. I give the names for the record: Robert Bork, 
William Bradford Reynolds, Benjamin Civiletti, Stephen Trott, Judge 
William Rehnquist. These people turned over previously confidential 
internal documents. Do you know why? I think they respected the Senate 
enough to say: Do you know what? I could just argue legalese with you, 
but you have a very important job of advice and consent, and we are 
willing to give you these memoranda. So there is precedent for that.
  I am stunned. We went through the Record and my staff pointed out the 
comments that were made on this floor by Senators over and over again, 
referring to the fact that they were filibustering Judge Paez, they 
were filibustering Marsha Berzon. And then to hear there hasn't been a 
filibuster here since the 1960's--I don't know what to say. It is 
stunning to me.
  The fact that we beat it back, that means it is not a filibuster? You 
get the votes, you beat it back; is it then not going to be a 
filibuster? I have taken to the floor tonight because I am incredulous 
on the point. After seeing these words in the Record myself, with my 
own eyes, after hearing Senator Hatch, who is leading the charge and 
telling us this is unprecedented, what we are doing, this is unfair to 
someone, he himself referring to what happened to Richard Paez as a 
filibuster.
  Bob Smith not only referred to it as a filibuster that he was 
actually leading, but that he was leading in order to get information. 
You could say we took a page out of the book of the Republicans. We 
didn't. Because we are willing to say we will vote for cloture when he 
turns over the information. I never heard, frankly, any of them at that 
time say they were willing to allow a vote if there were more questions 
answered because, frankly, every question was answered that you could 
come up with. There wasn't anything else you could know about those 
nominees--what they thought, or what they dreamed about, or what they 
wanted to do, or what they believed, or whom they admired, or what 
meetings they went to. It was extraordinary.
  I think it was Marsha Berzon who was asked the question--she was on 
the board of an organization. They said to her: We want to know 
everything that happened at every meeting of that organization, whether 
you went to the meeting or not.
  It took her hours. Why? She respected the role of the Senate to 
advise and consent. It is in the Constitution, and she understood that, 
and Miguel Estrada should understand that. I don't care who trained him 
not to say anything. We have those quotes all over the place. I have 
seen one saying: Don't answer any of these questions; this is a 
lifetime opportunity; don't let them see who you are. He was trained 
not to answer questions.
  He ought to respect the Senate. I know the members of the Judiciary 
Committee on our side of the aisle, and I know the members on the other 
side. I know they work hard. They have a lot of pressure on them on 
both sides. When my colleagues tell me they were stunned at the 
stonewalling they received, I believe them because, by the way, I read 
some of the answers Miguel Estrada put into the record. I will give you 
questions and answers here. These are questions asked by Senator 
Schumer:
  Question:

       Other than cases in which you were an advocate, please tell 
     us of three cases from the last 40 years of Supreme Court 
     jurisprudence you are most critical of.

  Answer:

       I'm not even sure that I could think of three that I would 
     be--that I would have a sort of adverse reaction to, if 
     that's what you are getting at.

  Question:

       So, with all of your legal background and your immersion in 
     the legal world, you can't think of three, or even one single 
     case that the Supreme Court has decided that you disagree 
     with?

  Answer:

       I don't know that I'm in a position to say that I disagree 
     with any case that the Supreme Court has ever ruled on or 
     that I think the court got it right.

  Question:

       I'm not asking how you approach cases. That's a legitimate 
     question and some have asked it. I want to know how you feel 
     about cases. And you have said more broadly than any other 
     witness I have come across--you have given us virtually no 
     opinion on anything because it might come up in the future.
  Answer:

       But the problem is the same, Senator Schumer, because 
     taking case A and looking at whether the court got it right 
     or whether I think they got it right I have only the benefit 
     of the opinions. I haven't seen the litigants.

  The litigants have been dead for a long time in Dred Scott. But, for 
God's sake, we ought to know. You can't say that slavery is wrong; that 
you disagree with that decision? You can't say separate but equal was 
wrong because you didn't know the litigants?
  Where are we? I am stunned.
  He said the case is ruled on but he didn't get to see what made it 
into the opinion.
  This is outrageous. He didn't see what made it into the opinion; the 
court ruled that slavery was constitutional and he didn't disagree with 
it? He has to meet the litigants? I am stunned.
  The Senate has a very sacred job. It is in the Constitution. It 
doesn't say roll over and play dead when a President picks a nominee to 
a court. In fact, the Founders disagreed over who should have the 
responsibility to choose justices. And they came out with this very 
balanced decision of equal power. Presidents do not like that. I can 
tell you. I don't know one President who likes the fact we have this 
advise and consent role. It is very annoying to the executive branch 
that we are here. I don't care whether they are Democrats and 
Republicans.
  I say that when our constituents sent us here they want us to do the 
job we swear to do. We hold up our hand here on the Bible and swear to 
uphold the Constitution. The Constitution says advise and consent on 
judicial nominees.

[[Page S2781]]

  It doesn't say roll over and play dead. It doesn't say, oh, give them 
a break. It doesn't say that. We have a lot of other things to do. It 
doesn't say that. It says the Senate shall advise and consent.
  At home in California, the way people pick district court nominees, 
it is true--we advise and consent. I have to say there are a lot of 
people who do not like it. Some conservative groups in California are 
saying they do not like the way we are doing it. But it is fair. We are 
appointing moderate Republican judges to the district bench. That is 
the way the President said he wanted to do it. We are able to do it 
because in our State we have an agreement where Democrats and 
Republicans sit side by side and choose. We have two Democratic 
Senators. That is why this happens.
  But if the President is going to send us judicial nominees who won't 
answer questions, he is not going to get very far. It isn't going to 
work. Frankly, from my perspective, if people are off the charts on the 
right wing, I am not going to vote for them. I will not filibuster 
them. Once they give us the information, I am ready to vote. I will 
retain my right for a Supreme Court Justice, however, on that point on 
the filibuster. But, in general, if people answer questions, I will 
vote no. But I want the answers. I don't want a judicial selection 
process that excludes the Senate. It is the worst thing that can happen 
in this country.
  If you look around, it is the courts that have stood up for the 
rights of our people--free speech, freedom of religion, freedom of the 
press, civil rights, human rights, environmental rights, so many rights 
that we hold dear, and the right to choose.
  Madam President, you and I have worked hard on that. If we didn't 
have a court that found in the early stages of a pregnancy a woman has 
the right to choose, I don't even know where we would be for women. The 
courts have held the line. We know it is very shaky right now.

  The courts play a very important role. It is part of the check and 
balance in our society. It seems to me, if we think that we don't have 
enough information and just sit back and say it would be a lot easier 
to let it go, I will vote no to let it go. I don't think that is right 
for those who come here.
  Bob Smith, a Republican from New Hampshire, said he didn't have 
enough information. I disagreed with him. We beat him on the 
filibuster. But there was a filibuster. I think recent history is 
showing us that there is precedent for asking the important questions.
  I wish to say one more thing about the Paez nomination. After we won 
on the filibuster of both Marsha Berzon and Richard Paez, there was a 
motion made by a Republican Senator to indefinitely postpone the final 
vote on one of the two, the Hispanic, Richard Paez. It was stunning. It 
was unprecedented.
  Let me make a statement. I believe it is a precedent that never 
should be occurring here again because the whole purpose of a 
filibuster is to determine whether you are going to move ahead on a 
vote. Once there is no filibuster, you have to have a vote. Then we had 
this intervening motion about indefinitely postponing the vote. It just 
undercuts what cloture is supposed to be about. I thought that was 
unbelievable.
  Basically a Senator wanted to kill the nomination even after we had 
won cloture. That was so unprecedented that Senator Hatch himself said 
he had never seen it. He had never heard of it, and he was perplexed. 
He was baffled by it.
  Let me quote Senator Sessions who moved to stop the final vote on 
this Hispanic Judge, Richard Paez, after we won cloture. He said:

       I move in a postcloture environment to postpone 
     indefinitely the nomination of Richard Paez--

  Listen to this--

     in order for this body to get the answers I believe every 
     Senator deserves with regard to the concerns I have raised 
     about Judge Paez over the last several days.

  On Judge Paez, because this Senator thought he didn't have the 
information after 4 years, after pages of questions, after cloture was 
invoked then he did something unprecedented and moved to indefinitely 
postpone the final vote.
  At that time, Senator Hatch was perplexed. I was certainly perplexed. 
Colleagues were amazed. And here is in full what Senator Hatch said at 
that time.

       I have served a number of years in the Senate, and I have 
     never seen a ``motion to postpone indefinitely'' that was 
     brought to delay the consideration of a judicial nomination 
     post-cloture. Indeed, I must confess to being somewhat 
     baffled that, after the filibuster is cut off by cloture, the 
     Senate could still delay a final vote on a nomination.

  Senator Hatch was right on the point. He called the filibuster a 
filibuster at that time. He was baffled by the kind of a 
postfilibuster-filibuster in the guise of postponing the final vote. 
Clearly, we had to get the votes for Judge Paez, and we did. And he is 
serving and doing us all proud, I might say, on the Ninth Circuit right 
now.


                                  Iraq

  Mrs. BOXER. Madam President, I have a couple of things to say about 
another subject in a brief period. It has to do with the issue of Iraq.
  I spent a week during the last break in California and doing several 
events--many events, doing the normal things you do when you go home; 
going shopping, taking a walk in the park and around the neighborhood. 
I don't think I have ever seen my people in California as distressed 
and on edge and anxious as they are at this particular point in our 
history.
  I want to tell you that this cuts across party lines.
  As a matter of fact, there was a poll in the paper today about the 
views of Californians very much concerned about going to war. My 
constituents are saying: Senator, is there any way in your mind that 
the President will not take this country into war? And my answer--
because I am searching for it; the President says he has not made a 
decision--but to be as honest as I can, I say: Here is what I think on 
that matter. If the true goal is to disarm Saddam Hussein and Iraq, 
then there is a chance that this could be resolved short of war. But if 
the true desire is to replace Saddam Hussein, have a regime change, 
unless Saddam Hussein agrees to go--which would be a wonderful 
prospect--I do not see how you get there.
  The people in my State are very concerned.
  Then they say: Well, Senator, do inspections really work? And I tell 
them that the facts are out there, that in fact there were more weapons 
of mass destruction dismantled after the gulf war than there were by 
our bombs.
  I asked for the list of weapons of mass destruction that were in fact 
destroyed after the Gulf war. I am going to read the list of weapons 
that were destroyed during the inspections.
  In the missile area: 48 operational long-range missiles, 14 
conventional missile warheads, 6 operational mobile launchers, 28 
operational fixed launchpads, 32 fixed launchpads under construction, 
30 missile chemical warheads, other missile support equipment and 
materiel, supervision of the destruction of a variety of assembled and 
nonassembled supergun components.
  In the chemical area: 38,537 filled and empty chemical munitions were 
destroyed by the inspectors, 690 tons of chemical weapons agent, more 
than 3,000 tons of precursor chemicals, 426 pieces of chemical weapons 
production equipment, 91 pieces of related analytical instruments.
  In the biological area: an entire biological weapons production 
facility called Al-Hakam, a variety of biological weapons production 
equipment and materiel.
  So the fact is, the inspectors discovered and dismantled more weapons 
of mass destruction than were in fact destroyed by our bombs.
  Sadly, there was a period where there were no inspectors in Iraq. And 
I do not trust, for a minute, that Iraq did not start to rebuild these 
stocks. The fact is, Saddam Hussein must be disarmed. That is why I 
supported the Levin resolution that said he must be disarmed--but not 
for us to go it alone, without the world with us, as the world was with 
us in the first gulf war.
  My constituents are coming up to me and saying: What happened here? 
Everything feels out of control. Why? The world isn't even with us 
anymore. We are having fights and sniping with our allies. What 
happened?
  I started to think about that. And I will never forget--none of us 
will ever forget where we were on 9/11, when we were attacked by al-
Qaida. Osama bin Laden, remember his name? He attacked us. He hurt us 
on our own

[[Page S2782]]

shores. I will never forget that. And I will never forget, on 9/12, 
that the whole world was with us.

  There is a song called ``He Has the Whole World in His Hands.'' It is 
a beautiful song. President Bush had the whole world in his hands on 9/
12. Countries around the world--every one of them; even some that we 
really do not have such a close relationship with--expressed that they 
were with us. We had the world in our hands. Yes, we were the leader of 
the free world before 9/11, but on 9/12 the world was so with us and 
against terror. And somehow, some way, this has been squandered. This 
has been squandered. There has been this intensity on Iraq and what I 
call a designed neglect of the rest of the world.
  Even in our own hemisphere, we see what is happening in Colombia, in 
Venezuela. I met with the Mexican Foreign Minister, I say to my friend 
from Nevada, who has a good-sized Hispanic population in his State. And 
the Mexican Foreign Minister told me: We had such high hopes when this 
administration took office, and we see nothing. We are getting no 
attention for our issues. We must work with your country. And, 
actually, he quit his post because there was no communication.
  We then see what is happening in North Korea, amazing developments in 
North Korea. And we cannot seem to get the administration to focus on 
it at all.
  Let me tell you, those of us on the west coast, yes, that is why my 
constituents are coming up to me in the supermarket and pulling at my 
sleeve, because the North Koreans have a missile that can reach 
America. They already have the nuclear weapon. They already have kicked 
out the inspectors. And what is the answer? When the President put them 
in the ``axis of evil,'' I asked, from my seat on the Foreign Relations 
Committee, the State Department: Before the President put North Korea 
in the ``axis of evil,'' was there a conversation about the 
ramifications of that? And the answer came back to me, I say to my 
friend: Well, we did go in and we did see the President--this is the 
highest levels of the State Department--and we said we agreed that 
North Korea deserved to be on the ``axis of evil.''
  I said: That was not my question. There are a lot of people who could 
be termed evil in this world. My question was, did you discuss the 
ramifications? The answer was: No, we did not.
  I asked: Well, did you call up our friends, our allies, with whom we 
share classified information every day--South Korea, Japan--to talk to 
them about the ramifications of putting North Korea in the ``axis of 
evil''? Oh, no, came the answer, we do not share State of the Union 
speeches with other countries.
  Well, that was not the point about the State of the Union speech. It 
is South Korea that looks across the line at North Korea. I have been 
on that line, that DMZ. By the way, what a failure to humankind that 
situation is--one people divided. It is just the saddest situation, one 
of the saddest failures of humanity.
  So we had the situation on 9/12/01, where the whole world was with 
us--the whole world. And after that, that whole situation has been 
squandered.
  I heard Senator Leahy make similar remarks today about this. I think 
we have to understand where we are today. And we need to understand 
there are problems all over this globe, and that for us to go it 
alone--or almost alone--in a war with Iraq will make matters worse, I 
am afraid. As a leader, you have to win over your friends, and others, 
through your reasoning, through your evidence, through your power of 
persuasion, not just buying people off or giving them money.
  There has been a lot of talk about what we are going to give Turkey 
for their cooperation. Look, I understand an ally is an ally, a friend 
is a friend, and so on; but this thing is still not resolved, and the 
costs go up. I don't think the American people understand that this is 
their tax dollars we are talking about--$5 billion in grants, when we 
are about to kick off the rolls almost 600,000 children from 
afterschool programs, according to the President's budget, and not 
fully funding our disabled kids in school, and the cleanup of only 40 
Superfund sites instead of the 87 President Clinton did during his 
tenure.
  These things just don't come about in a vacuum. I thought Senator 
Byrd was so well spoken when he made the point that we don't even know 
the cost. Remember Larry Lindsey, I say to my friend from Nevada, the 
President's economic advisor? He put out--I think last summer--a 
statement saying it is going to cost us between $100 billion and $200 
billion for a war in Iraq.
  Mr. REID. If the Senator will yield. Isn't that the man who was fired 
recently?
  Mrs. BOXER. Fired, let go.
  It is going to cost between $100 billion and $200 billion. Now they 
are saying it is $95 billion. They started off saying it was going to 
be $30 billion, $40 billion, $50 billion, or $60 billion, but that 
doesn't count what they want to pay to Turkey. When you add in the loan 
guarantees and the rest, some people are saying that is $26 billion. 
And we are not reimbursing our States for the work our local police, 
our firemen, and our emergency workers are doing. We are neglecting 
port security.
  I read today--and this is close to my heart--a little article, which 
I will send to my colleagues. It is very important. It says that many 
terrorist groups now have stinger missiles, shoulder-fired missiles. We 
have seen five, six, seven examples of terrorist groups over the years 
aiming at commercial aircraft. Admiral Loy's Deputy has said this is 
worrisome. It is going to cost money to prepare our commercial fleet, 
to have an antimissile system put on, just as the Israelis reportedly 
do. The technology is there. Yes, it is going to cost a million dollars 
per plane, but we are busy giving money out around the world. We are 
busy giving money out. We don't hear the name Osama bin Laden. One of 
my colleagues, Senator Dorgan, calls him Osama ``been forgotten'' 
because you don't hear anything about him.
  Mr. REID. Will the Senator yield for a question?
  Mrs. BOXER. Yes.
  Mr. REID. As a foundation for my question, I want to say I appreciate 
her statement on the floor. Senator Byrd was here earlier. I told him 
the same thing I say to the Senator from California. This is a good 
debate to have. It doesn't matter how you feel about the war. It is 
important to have a debate.
  As I said earlier today on the floor, and I say to the Senator from 
California, are you aware that the British Parliament had a long, 
extended debate today on the Iraq conflict?
  Mrs. BOXER. My staff mentioned that they had watched it. I did not 
see it myself.
  (Mr. ALEXANDER assumed the Chair.)
  Mr. REID. The senior Senator from Illinois said he watched it for an 
hour before work today. He said it was a great debate. They discussed 
the issues relating to the conflict that will probably occur in Iraq. I 
say to my friend from California, it is good that you are speaking to 
alert the American people to some of the problems that may occur with 
this conflict. It is too bad that the Republicans, the majority, are 
holding up other legislation and other debate because of one fully 
employed man, Miguel Estrada, who has a job, as we all know, making 
hundreds of thousands of dollars a year. It has been laid out on this 
floor today that the Bush administration lost 2.8 million jobs. 
Millions are unemployed. But we are hung up on this debate because 
Republicans won't move off of it.

  My question to the Senator is, would it not be good if we had a full 
day's debate set aside so Senators can offer their views about what is 
going on in Iraq?
  Mrs. BOXER. I say to my friend, if we are to be relevant--this is the 
word the President talks about when referring to the U.N.--that is what 
we ought to be doing because, when I went home, people wanted to talk 
about this because they are nervous about it. Frankly, they don't want 
us to go it alone. At least the vast majority of people in my State 
feel that way. They are asking me what it is going to cost. I say I 
have my own guess, but we really have no idea. A man got fired because 
he said it would cost between $100 billion and $200 billion. Now they 
are saying $95 billion. And now they are offering Turkey $26 billion. 
One general said they will need to stay there with 200,000 troops for 
years. Another general said that was wrong. We cannot get an answer to 
that.

[[Page S2783]]

  We don't know if Saddam Hussein will use these weapons of mass 
destruction, or what he will do with the oil fields if we go in there. 
My own view on this is that the American people are very concerned. I 
agree with my friend. We are spending a whole lot of time on the 
nomination of one judicial nominee who, frankly, in my view, cannot 
really want the job that much because he won't answer the questions. He 
will not answer the questions. If he answers the questions, we would 
say immediately, vote cloture, then give him a vote, and that is the 
end of it.
  Mr. REID. Will the Senator yield for another question?
  Mrs. BOXER. Of course.
  Mr. REID. The Senator served in Congress, as I did, when the previous 
war occurred in Iraq, which was more than a decade ago. Does the 
Senator recall--and these numbers may not be exactly accurate, but they 
are close--that the first President Bush reached out and, prior to the 
conflict beginning, there were commitments from various countries to 
give billions and billions of dollars to help fight the war in Iraq--
billions of dollars? And is the Senator also aware that in addition to 
giving billions of dollars to help with the conflict, other countries 
were supplying tens of thousands of troops and airplanes?
  Now, I have pretty reliable sources that say the only country really 
supplying troops is Great Britain. All of the other countries are 
saying they support the war, but most of those are in the category of 
Turkey. They are supporting the war if, in fact, they get certain 
economic benefits. So, in short, is the Senator aware that in the 
previous conflict there were large sums of money that would be given to 
help the U.S. fight that war, and large numbers of troops that were 
being sent to the front lines to help the United States troops fight 
that war? Is the Senator aware that, in fact, basically other than 
Great Britain, this is our war and nobody is helping?
  Mrs. BOXER. My friend, the Democratic whip, is absolutely correct. 
Our records show that the first gulf war cost $61 billion. Remember 
that we stopped well short of Baghdad, when you are thinking what this 
war will cost. That is a long time ago and there has been inflation. It 
was $61 billion then, and $54 billion was paid for by our friends 
around the world. That is more than 80 percent, when you figure it all 
out.
  I further say to my friend that we had many countries sending troops, 
over 20. In this case, the administration is telling us we need 250,000 
troops for this war, and Britain is sending in 26,000 troops. That is 
about right, 26,000 troops and 250,000. That is pretty much in terms of 
combat troops. That's it.
  Mr. REID. Will the Senator yield for a question?
  Mrs. BOXER. Yes.
  Mr. REID. The reports I received today is the United States alone has 
in the gulf area 210,000 troops, plus Great Britain--I do not know how 
many they have there, but, in fact, if they need 240,000 troops, is 
what I am told, the United States is doing it all with the help of 
Great Britain. There are other countries saying they support us. Those 
countries, I repeat to the Senator, and I think she will agree, want 
some economic benefit to even say they support us, even though they are 
not sending any troops.
  Mrs. BOXER. It is an unprecedented handout type of situation, which 
is offensive to me in many ways. This is a go-it-alone situation where 
it stands today.
  I will finish where I started this conversation about Iraq. We had 
everyone with us after 9/11--the whole world. We lost that. People 
around the world are looking at us, and many are saying this was 
something the President had decided and he just went to the United 
Nations because he was kind of pushed there--and as one of the people 
who pushed him there, I am glad he went there. Believe me, I give 
credit where credit is due. I give credit to Colin Powell. But going 
there and winking and nodding and saying, I am going to go to the 
U.N.--but really I know what I want to do--I will give a particular 
case in point.
  Whenever there is a little progress in finding some of these weapons, 
the President says things such as: Oh, that is the tip of the iceberg, 
and he may be right. But wouldn't it be better to say something such 
as: This is the tip of the iceberg, Saddam Hussein, and I am asking you 
to give us the rest of the iceberg, to do it now to avoid war, to avoid 
bloodshed. The world is watching.
  We do not seem to hear those words. What we really hear is: 
Inspections mean nothing. Maybe it means nothing, and if it means 
nothing, then the U.N. eventually is going to call this guy on it. They 
are going to call him on it, just like they did before. By the way, 
these weapons are a threat to the world, and a lot of the world is a 
lot closer to him than we are, and a lot of the world could potentially 
be reached by his missiles.
  The question for me, as one Senator, has never been should Saddam be 
disarmed--absolutely he should. Back in August when the President was 
saying we are going to go to war, I said: Wait a minute, the issue is 
weapons of mass destruction; let's see if we can get intrusive 
inspections back in there and pick up where we left off with the 
inspections which destroyed--and I read the list into the Record 
already--more weapons of mass destruction than we did with our bombs. 
If this is really about that, then we know the proven way to do it. And 
if Saddam ever so much as kicks the inspectors out, does not cooperate 
with them, thwarts them, we will know it, and we will be on the moral 
high ground. We will have the whole world back in our hands, and we can 
move forward with the world community, just as my friend pointed out 
happened in 1990.
  I thank the Presiding Officer.
  I will be glad to yield to the Senator from Nevada for another 
question.
  Mr. REID. I appreciate that.
  Mr. President, I mentioned earlier and I ask the Senator if she is 
aware of a new poll that came out today conducted by a nonpartisan 
public interest group called the Pew Research Center. The Senator has 
heard of that prominent group, is that right?
  Mrs. BOXER. I heard of the group. I do not know of the poll.
  Mr. REID. This poll was conducted between February 12 and February 
18. As the Senator knows, 1,254 participants is a big poll. Will the 
Senator agree with that statement?
  Mrs. BOXER. Correct.
  Mr. REID. Is the Senator aware that when these people were asked in 
this nationwide poll how George W. Bush is handling the economy, only 
43 percent of the people say they like the way he is handling the 
economy, but 48 percent disapprove of the way he is handling the 
economy?
  Mrs. BOXER. I say to my friend, this does not surprise me. We are 
seeing the worst economic record of any administration in 50 years in 
terms of jobs lost, in terms of mortgages defaulted, in terms of loss 
of stock market value. We are talking $8 trillion of loss, in terms of 
fear about retirement, fear about losing health care, fear about the 
cost of health care, fear about cost of prescription drugs, fear about 
being able to afford to send your kids to get an education. My friend 
has given me a number that makes eminent sense, and I say it is going 
to continue to plummet because every plan this President comes up with 
is giving tax breaks to the wealthiest among us in the hopes they will 
trickle down to the working people. It never worked before, and it is 
not going to work.
  I am very worried, and that is why people also are very anxious in my 
State about the war and about the economy. It is a two-front challenge 
we face.
  Mr. REID. If the Senator will extend her usual courteousness and 
allow me to ask another question.
  Mrs. BOXER. Absolutely.
  Mr. REID. The Senator outlined why people likely feel the way they 
do, but does the Senator also acknowledge the fact that we have in the 
last 2 years seen a $7 trillion surplus evaporate? Could that be a 
concern?
  Mrs. BOXER. I left that out in the list of items that have gone 
wrong. A $7 trillion surplus disappeared, and we have deficits as far 
as the eye can see. The last deficit I remember under George Bush 1 was 
headed to $300 billion. As I remember, it was up to $290 billion. We 
all pulled together and said this is an outrage. We worked hard under 
Bill Clinton for 8 years and got that down to a surplus which was 
healthy for our economy, and we had the biggest economic boom in years. 
It

[[Page S2784]]

has all been squandered. World opinion has been squandered. The surplus 
has been squandered.
  Mr. REID. If the Senator will yield, is the Senator aware that this 
same poll, when asked how George Bush is handling tax policy, shows 
that 42 percent of the people approve of the way he is handling tax 
policy? And is the Senator aware that for the first time in this 
Presidency, 44 percent of the people feel he is handling it very badly; 
is the Senator aware of that?
  Mrs. BOXER. My friend is telling me something I was not aware of. I 
did not see the poll, but again, I think it becomes very clear to the 
people that every policy that comes down, whether it is taxation of 
dividends, tax breaks for the people at the top of the economic ladder, 
that we are, in essence, seeing a plan to get this economy revived 
which is going to do nothing but put money in the pockets of people 
whose pockets are stuffed with money. We do not need to do that.
  I was in California with people who were telling me: Senator, we do 
not need a tax break. We are doing fine. Worry about homeland security. 
Worry about nuclear powerplants getting protected. Worry about the 
chemical plants being protected. Worry about the homeland security 
first responders.
  I say to my friend, if, God forbid, we are attacked anywhere in our 
country, people are going to dial 9-1-1, they are not going to dial the 
President, they are not going to dial Senator Reid, Senator Boxer, or 
Senator Hatch. They are going to dial 9-1-1. Those very people are 
telling us they have not received a penny, and it is a very sad 
situation.
  Mr. REID. Will the Senator yield for another question?
  Mrs. BOXER. Yes.
  Mr. REID. Today I told the senior Senator from Illinois about the 
visit I had yesterday with people from Nevada. The woman I remember so 
clearly works for the Las Vegas Metropolitan Police Department. She has 
worked there for 27 years. For the last 20 years, she has been the 
person in charge of the 9-1-1 center. Is the Senator aware that she, 
like many people who work in these entities around the country--and, of 
course, in a State of 35 million people, I am sure California has a 
number of them--she told me that in Las Vegas, this big sprawling urban 
center we now have, that when someone calls 9-1-1 from a telephone, 
such as we see on the desk in the corner or such as we have in the 
cloakroom or the Senator has in her home, they know where that phone 
call comes from.
  They know the address, they know the location, but now when people 
use computers for doing their telephoning in a way that is hard for me 
to understand, but I am beginning to understand it better, and cell 
phones, they have no idea where their emergency calls come from. People 
have died around the country as a result of a call coming into the 911 
center, and they do not know where it is coming from.
  Does the Senator realize that can all be cured with money? The 
technology is here to correct that, but we do not have money to give 
the State and local governments to correct that one thing to make 
homeland security and security generally more satisfactory. Is the 
Senator aware of that?
  Mrs. BOXER. My friend is right. As a matter of fact, the Commerce 
Committee is holding a hearing to address this problem of people 
dialing 911 from a cell phone. We have had people who are in the midst 
of being a victim of a crime dialing 911 and the law enforcement did 
not know where it was from. It is a crucial matter that has to be 
resolved.
  What is amazing is this administration has money to give tax breaks 
to people at the top. The people who earn over a million dollars a year 
are going to get back, oh, gosh, an average of about $80,000 a year 
just from the dividend tax break alone, not to mention an income tax 
break. They have the money for that, but they do not have the money to 
help our homeland defense.
  They have money to give to Turkey--they are talking turkey with 
Turkey--that is for sure. Reports of an aid package for Turkey started 
off as a few billion, then it was $6, then $10, then $16. Now I hear it 
is $26 billion. I think it was Senator Dorgan or Senator Durbin who 
said maybe our States should change their name to Turkey and they will 
do better than they are doing now.
  My friend is right. I have to use a sense of humor because you get 
upset about these things and you cannot keep being outraged.
  Mr. REID. Will the Senator yield?
  Mrs. BOXER. I am happy to yield before I close.
  Mr. REID. What the Senator said in her statement--and she seems to 
agree with me, and I ask if she does--the reason we are not debating on 
the Senate floor Senator Daschle's plan to improve the economy, the 
reason we are not debating homeland security issues, the reason we are 
not debating environmental issues, which I know the Senator from 
California is so passionate about--no one in the Senate believes more 
in doing things to improve the environment than the Senator from 
California--and there are so many things we could be talking about 
dealing with the environment, and the multitude of other issues the 
Senator has talked about today. Is the Senator aware the reason we are 
not doing this is that Republicans do not want us to do it, because 
they have no plan, that this is just an excuse for them to do nothing, 
being hung up on this Estrada thing? Is the Senator aware of that?
  Mrs. BOXER. I am absolutely aware of this. I say to my friend, I went 
through the litany at the beginning of my talk about how other nominees 
have answered a multitude of questions, and as a matter of fact some 
have sent previously confidential opinions that they have written. All 
the other side has to do is say to Mr. Estrada, answer the questions, 
and then there can be a vote.
  When my friend raises the environment, I will take a minute to say 
that we finally got a report that has been languishing in the 
administration since June. Surprise, surprise, it was leaked to the 
Wall Street Journal, and after it was leaked, then the administration 
released it. It has some horrific statistics about what is happening to 
young people and women of childbearing age in terms of ingestion of 
mercury through mercury-tainted fish, and the fact that mercury is now 
emerging as a leading cause of neurological damage and I predict will 
become an issue in this Senate just the way lead was an issue in other 
Senates. We finally got this report. We begged for it and then got it.

  My friend is right: What could be more important than getting this 
economy going than protecting the health of our children by bringing 
that report up for debate and open for discussion? Senator Jeffords has 
a great plan, the Clean Power Act, that will take that mercury out of 
the air, that will save these children from getting neurological 
damage. Let's debate it. Let's debate Senator Daschle's plan, his 
economic stimulus plan, that gives the stimulus to the working people, 
versus the Bush plan that gives it to the people who do not even have 
to work because they live off their dividends. I would like to see that 
debate.
  If Miguel Estrada really wants this job, he will do what Margaret 
Morrow did, he will do what Judge Paez did, he will do what Marsha 
Berzon did, and answer the questions. There were 4 years of questions 
to Judge Paez. He answered them all. We had to break their filibuster, 
I say to my friend, and we did.
  Senator Smith at the time was proud to launch the filibuster. Senator 
Bob Smith said--and I read it into the Record--this is a filibuster 
launched because we need to get questions answered, and it is the right 
thing to do.
  Mr. REID. Would the Senator yield for a question?
  Mrs. BOXER. Yes.
  Mr. REID. I want the Senator to know that in addition to answering 
questions--because Judges Paez and Berzon had a judicial record that 
could be reviewed.
  Mrs. BOXER. Correct.
  Mr. REID. He has none. In addition to answering the questions, we 
asked that he submit the memos he wrote when he was at the Solicitor's 
Office. The Senator will agree with that?
  Mrs. BOXER. I did. I said it. I said there was precedent, and I read 
off the five cases where previously confidential memos were released. I 
named the gentlemen--they happened to be all men--who were willing to 
release it in order to get a vote on their confirmation.
  So there is adequate precedent for that. There is adequate precedent 
for

[[Page S2785]]

answering the questions, and if the Senate has any respect for our work 
and for the Constitution of the United States, which we have been sworn 
to uphold, then we will not roll over when any President, this one or 
any future President, sends a nominee down who cannot even tell if 
there is one Supreme Court case, in all the hundreds of years, that he 
disagrees with, cannot even name what jurist he would most emulate. It 
is beyond the pale, the questions Mr. Estrada refused to answer, 
because clearly he has been told and trained not to answer any 
questions.
  I was proud to come to this Chamber, after my diligent staff went 
back through the Record and got the quotes of Bob Smith who helped lead 
the filibuster, who got the quotes of Senator Sessions who then said we 
should have, after we broke the filibuster, yet another vote to 
indefinitely delay a vote.
  It is extraordinary what has happened. In the Record tonight, for all 
who will read, we have the quotes of Senator Hatch, who called what 
happened to Paez a filibuster, who called what Senator Sessions tried 
to do unprecedented. We have the quotes of Senator Smith who said: All 
I am doing is asking questions to get answers, and now let the people 
decide.

  They are going to run some kind of ads in my State saying: Barbara 
Boxer, shame; she does not like Hispanic nominees.
  Do you want to know something? To say that is like saying I do not 
support women's rights and there is going to be a backlash on that. I 
am the person who recommended the first Mexican-American to sit on a 
district court in Los Angeles, the person who stood on her feet day 
after day trying to get Richard Paez his seat.
  They can do all they want because I think the American people 
understand we are standing on a principle. If I were the only one on my 
feet, I would stay on my feet because I think it is wrong to stonewall 
the Senate and members of the Judiciary Committee who in good will have 
approved, by the way, an enormous number of judges--and who were just 
simply saying: Answer the questions; give us the memos; we do not know 
who you are; we want to have a record; we want to make an informed 
decision. This is the right thing to do.
  I dare say to my constituents--and I did when I was home; I said: You 
may be hearing about this, but I want you to know that you sent me here 
not to be part of the wallpaper behind me--that is pretty easy--not to 
go along to get along, but to stand up and do my job as a Senator, and 
that is not to vote on a judicial nominee who has refused to hand over 
documents, who has refused to answer questions, who has absolutely no 
record on which to judge what he is going to do. Once we have that 
information, I am happy to have a vote and let the chips fall where 
they may.


                                  Iraq

  On Iraq, I make a rhetorical plea to the administration: You had the 
whole world in your hand on 9/12; you don't have it in your hand now. 
Let's get back to being a true leader. Lay out a path for peace. That 
is an American value, to lay out a path for peace. Lay out a path for 
peace, not just the path for war.
  Get this man disarmed, Saddam Hussein, in a way that does not lead to 
the loss of life and blood of our people and innocent people. And if we 
do that, we will be back to where we were on 9/12. If we pay attention 
to other problems in the world, we will be back to where we were on 9/
12.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. DAYTON. We were elected to take an oath of office to uphold the 
Constitution, defend the Constitution from enemies, foreign and 
domestic. That is the oath each member takes very seriously. It is an 
oath that puts on each of our shoulders the responsibility to decide 
what that means.
  Our distinguished Senator from West Virginia, Robert Byrd, presented 
me with a Constitution when I arrived here. I have learned a great deal 
about this document, about what it says and means. I have learned about 
the intentions of the Founders of the country. This document is the 
gospel which each member is required to follow. It says the President, 
by and with the advice and consent of the Senate--it does not say that 
the Senate shall approve or how the Senate shall consider. It says the 
Senate will be an equal partner with the President. The President will 
make a nomination, and it is for the Senate to decide, 100 Senators to 
decide, according to their own values and according to their own 
background experience and according to whatever they want to bring to 
bear on that matter how they will decide.
  I have listened to a lot of these debates in the last couple of weeks 
on this matter. I am not a lawyer. I am not on the Judiciary Committee. 
I take very seriously my responsibility to weigh someone's career, 
weigh someone's character, to try to assess whether this is the kind of 
person I want to support to put on a court where he will be presiding, 
if he chooses, for the rest of his life; where he will be making 
decisions that will affect millions of people, whether someone has the 
right to housing or whether someone has the right to be protected from 
discrimination, whether some schoolchildren can go to school under 
better conditions. I don't know what kind of decisions this man will 
face, but I know they will be important. I know they will last for a 
long time and last beyond his own lifetime.

  In effect, we are making a decision about someone who will be 
impacting the lives of Americans for two or three generations. That is 
the only time this person will be evaluated by his fellow citizens 
before that decision is made, unlike all of us who face our electorate 
every 6 years, or the House Members every 2 years, and the President 
himself every 4 years. This man will be appointed to the bench for 
life. I believe I am within my rights as one of the 100 who will make 
that decision to have sufficient information that I can make an 
informed judgment.
  It is not for me to say to the administration the criteria they 
should use in making this kind of appointment. But I would be 
surprised, frankly, that out of all the vast numbers of highly 
qualified people in the country there would be someone chosen for the 
second highest court in the country without any previous judicial 
experience. If that is the case, I believe we have a special need to 
have information provided, to give each of us the information we seek 
and need to make that determination. That is not forthcoming, either.
  We are told we can have certain information and we cannot have other 
information. I received a note from the White House counselor saying 
Mr. Estrada would meet with me, and I appreciate the gesture. I don't 
want to go back into my office off the record and have a conversation. 
I want to know on the record. This man does not have a judicial record. 
We have to find other means of obtaining that information. I am 
wondering why it is that somebody with no judicial record, no series of 
decisions that we can look to, writings we can look to for guidance as 
to his views, why he would not feel, and why the nominator would not 
feel a special obligation to provide that information.
  If I went before the voters of Minnesota and refused to answer some 
of the questions Mr. Estrada refused to answer before the Judiciary 
Committee, I would be laughed out of the election. Certainly no one 
should vote for me if I would not give voters any information to allow 
them to understand my philosophy, what I value or not, what decisions I 
agreed with or disagreed with in the past, just basic information which 
we do not have about this man because he has no judicial record because 
he has never been a judge.
  We have elected people in Minnesota who have not had prior 
experience, and it is fashionable to say they are not a career 
politician. In fact, we have a Governor who just departed who had that 
view, that was the right kind of qualification.
  If I got on an airplane and the pilot said this is going to be a 
different kind of flight; I have never flown a commercial airline 
before, I would not feel more confident. I would be pretty worried. If 
somebody says they are taking their child in for surgery, and someone 
said that doctor had never performed that kind of surgery before, I 
would be very concerned. I would want to know some information about 
that individual. I would want to know that person's qualifications. I 
would want to

[[Page S2786]]

know if that person had the training and skills to approach that matter 
before I trusted my life or the life of one of my children with that 
person. And we are entrusting the lives of unknown, not-yet-identified, 
very real people, very real Americans who will have to go before that 
court, where that court will review decisions that are made that are 
their last course. If justice is not served, justice will be forever 
denied them and that will be a tragic injustice they will suffer for 
the rest of their lives.

  We cannot foresee all of that. We cannot prevent all of it. We have a 
responsibility to the Constitution of the United States which we swore 
to uphold and defend, which our Founders thought so important that they 
did not even talk about the country; they talked about the 
Constitution. That was our responsibility. Senator Byrd says that our 
responsibility is to uphold the Constitution. That is our 
responsibility. That is the responsibility of each of us.
  I might want something different in terms of information or 
background than other of my colleagues. For some of my colleagues, the 
fact that the President made this nomination, he is of their political 
party, that is all the information they need, well, that is the 
absolute right of all of my colleagues who decide that way.
  I don't question someone else's right to make their decision however 
they determine based on that, the same way I don't want anyone to 
question my right to have the information that I probably need, just 
basic information so I can know the background, qualifications, 
judicial philosophy, and views of this person. I don't believe any 
electorate in any State in this country would elect somebody who wanted 
to serve in a high office--Governor, Senate, member of the House--who 
had no prior political record, no prior involvement in public life, and 
went before the electorate and said: I want to be elected and I am not 
going to tell you where I stand or what I believe or what I do or what 
I agreed with in the past or who I like or do not like. I don't think 
anywhere in America there would be positive reaction to that.
  I don't believe there would be a board of directors in corporate 
America that would hire somebody for an important position--chief 
executive officer, chief operating officer, the No. 2 position--that 
would even consider someone who would not provide the basic information 
that we are asking for here.
  To me this gets into the realm of just being ludicrous, that we are 
in a position of being questioned for taking the particular position 
that says we want information.
  I agree with my colleague from California. If we get the information, 
then there will be a vote. If we get information so those of us who 
have these reservations--and really, in my case, I have not come to a 
final decision because I do not have the information with which to do 
so. But I am not going to make that decision, I am not going to agree 
to this matter coming before this body, if I can help it, until I have 
that information. That is just the way it is. That is the position I 
have taken. Again, that is my right to do so and that is the right of 
any one of my colleagues in this situation.
  We are spending an awful lot of time here, way too much time, on this 
matter, given what is going on in the country today. We ought to be 
setting this nomination aside, giving the nominee the opportunity to 
present in writing the information we have requested. Either do so or 
not. We can assess it accordingly. We ought to turn the attention of 
this body to matters that, when I was in Minnesota last week, certainly 
concerned every one of the citizens I talked and listened to. It was 
not the nomination of Miguel Estrada, important as that is. It is about 
the war in Iraq that is looming. It is people's fears of whether we 
were going in; what is the right thing to do. The fact that the week 
before they were told to go out and buy plastic and duct tape, go out 
and buy bottled water and food. They are not very reassured in 
Minnesota about the ability of their Government to protect them. They 
are not really sure.
  I must say, based on information I have received, what I have heard 
expressed from local law enforcement officials in Minnesota, that what 
we passed in Congress has not gotten out to these first responders--
resources, training, information.
  I had the sheriff of the largest county in Minnesota, Hennepin 
County, in my office today. He cannot get information about what 
happened with the raising of the national security alert. He said he 
found out about it on CNN. He is a sheriff. He is part of the network 
of emergency responders for the city of Minneapolis, the largest city, 
largest county. He does not have any source of information from the 
Federal Government to tell him even that such a code has been 
established, much less what the reasons are, much less what some of the 
circumstances might be.
  He said he tried to find out from the FBI, with which he has a very 
good working relationship, what the circumstances were. They didn't 
know either. They hadn't gotten any prior word. That certainly 
astonished me.
  On the Governmental Affairs Committee and I sat through the hearings 
where this was being discussed. It was my clear understanding that the 
new Department of Homeland Security was going to be in constant 
communication with the FBI and CIA, that information was going to be 
shared, and they would all have that information. I also understood, 
because we certainly provided the funding and we certainly made it 
clear in the hearings on the floor that we intended for that Department 
to be communicating, providing resources, providing training, providing 
expertise and getting that out to the Hennepin counties of Minnesota--
and America.

  Lo and behold, he doesn't know. The FBI district office in 
Minneapolis, MN, doesn't know. So he is watching CNN. He was not very 
confident about how well this administration has done its job to get 
this country prepared for what may lie ahead.
  The citizens of Minnesota, as I said, are certainly alarmed. I 
believe they have an absolute right to expect that this body, this 
institution of the Senate would be turning its attention to these 
matters of concern.
  So I say again, respectfully, to the majority leader, the time has 
come to set this nomination aside to give Mr. Estrada the opportunity 
to respond in writing to the questions which I and others have said 
clearly, again and again, we must have answered to make an informed 
judgment, which is my constitutional obligation to the country and to 
the Minnesota people who elected me. I don't think that is much to ask 
at all. Anyway, it is what I am going to ask and require before I am 
going to proceed.
  Then I ask the majority leader, as I wrote 2 weeks ago in a letter, 
that I and the rest of us turn our attention on this Senate floor to 
these matters of war and peace, whether the United States of America is 
going to commit itself to an invasion of another country, a preemptive 
strike, something that is going to have profound consequences for our 
country--for our world for years to come.
  Our silence here, as again the distinguished senior Senator from West 
Virginia, Mr. Byrd, said the other day, is just profoundly deafening, 
the silence here in the Senate, the absence of debate, the absence of 
100 different views on what we are doing, what we propose to do, what 
might we do.
  Of course the real tragedy, in my view, and the real embarrassment to 
this institution, great as it is, and to the House of Representatives, 
is that this document, the Constitution of the United States, states 
very clearly and definitively that Congress and only Congress shall 
declare war. Not the President. No one else. Just Congress.
  This was very clearly the intention of those who drafted the 
Constitution, whose wisdom and foresight is something I find 
unbelievable, that a group of people back over 200 years ago could 
have, on their first attempt--not that they didn't have drafts, but 
that they could put together a document that would be as brilliantly 
foresighted as this turned out to be, and anticipatory of just these 
kinds of matters: Where the temptation is to let it go somewhere else; 
where the pressures are from some person or groups of people to forget 
something or overlook something or circumvent something. They made the 
President of the United States the Commander in Chief of all the Armed 
Forces--back then of the militia. For that very reason they didn't want 
him, they didn't want any

[[Page S2787]]

one person--it is not just this President; it is any President--they 
didn't want that one person making the decision to commit this Nation 
to war or keep us in peace. Boy, were they ever right. Did they ever 
understand why that should be a decision made by an elected group such 
as the Congress.
  We didn't declare war back in October. The President was not at that 
point himself--and I gather not even today is it appropriate--ready to 
make that final, fateful decision. That was 4 months ago, before we 
even got to this point. We didn't declare war. What we said is we will 
give the President the authority to do whatever he determines needs to 
be done, including the use of force. That is one of those euphemisms 
we use to hide our true intent, which means if he wants to have a war, 
he starts one. We will preapprove it and he can proceed. That is not 
anywhere near what the Constitution says, nor what was intended it say, 
nor how it was intended to be followed.

  Before this Nation is committed to a war, before American men and 
women are sent across our border to fight and some of them to die, 
before possibly people in this country might suffer those grotesque 
experiences, they have the right that their elected officials will give 
this matter their most serious consideration for a length of time that 
is appropriate. It will not take as long as has the squabble over Mr. 
Estrada, but it ought to take a while, because this decision is 
profound.
  The fact that we are here on the Senate floor now, the third day we 
are back from our recess--the fact we had a recess at all last week 
rather than being here debating these issues of war and peace--the fact 
that we are doing something now that, as I said earlier, has its own 
significance, has its own place, but pales in comparison with war and 
peace and the enormity of those decisions about the preparation of the 
country and the Department of Homeland Security, the preparedness of 
this Government to protect all of its citizens--those are the matters 
that concern the people of Minnesota almost to the exclusion of 
anything else; even to the exclusion of the problems with the economy 
with all those difficulties. Those are the matters which we should be 
reviewing on the Senate floor.
  If the President believes we should commit our forces to invade 
another country, to launch a preemptive attack, to start a war against 
another country--which is almost unprecedented in our Nation's history, 
and is certainly unprecedented in the context of leaping forward to cut 
off a threat which is not imminent, not immediate, but rather one which 
we believe would materialize, and probably would if certain lines were 
crossed, to remove the Government, the leader of another country--these 
are decisions which are so enormous in their scope immediately and 
which are going to have such consequence for this world for decades to 
follow that it is wrong for us to turn the other way, for us to refuse 
to fulfill our constitutional responsibility. What we should do is 
bring these matters to the Senate floor and say, Mr. President, that 
was the 107th Congress, this is the 108th Congress, we are a different 
body, we want to recertify that constitutional responsibility that 
Congress and only Congress shall declare war.
  No President is authorized by the Constitution to commit any forces 
in such a way until that decision has been made and voted on by the 
Congress. That is what we ought to be doing here. The American people 
have a right. They elected us, and they sent us here, and they expect 
no less of us and will hold us in the highest reproach if we fail to 
fulfill that responsibility, if we fail to even bring the matter up, or 
if we fail to direct our attention and declare ourselves one after 
another on the record for or against. We owe that to the people who 
founded this country, who sustained this document--many at the cost of 
their own lives. We owe that to the courageous Americans--men and 
women--who are amassed on the borders halfway around the world who will 
have to carry out that decision, if it is made, to proceed to fight. 
Some will be wounded and maimed. Some will lose their lives because of 
that decision.
  We owe them nothing less than to fulfill our responsibility here in 
the Senate at this time or as soon as the President determines that 
matter should be brought to our attention.
  Two weeks ago, think of what we went through. Our citizens were told 
to go out and buy duct tape and plastic sheets and not even told really 
what to do with them. In Minnesota, we are well aware of that. We are a 
cold-weather State. We have quite a bit of experience putting up 
plastic sheeting and filling up drafts around doors and windows. It is 
not something you can do lightly. You can increase the concentration of 
radon in the rooms by closing them up too tightly. The information 
wasn't even in necessarily the best interests and the best health of 
people who would be doing it. They are entitled to a lot more from 
their Government than that. They are entitled to know a lot more than 
to go out and get bottled water or canned food and duct tape and 
plastic sheets, and, good luck and God help us. They deserve a lot more 
than that. That is why on the floor of the Senate we should be bringing 
up homeland security and discussing what more needs to be done and the 
resources that are needed.
  I want to bring forth the voice of the sheriff of Hennepin County, 
MN, and his concerns. I want to know why he wasn't told the country was 
going through the second highest security level and why he had to find 
out about it from television rather than from the Department of 
Homeland Security which was established by this body to provide that 
kind of information--supposedly provide that kind of coordination, 
services, and resources. God forbid that something would happen to 
Hennepin County and they wouldn't have the benefit of that information; 
they would not know what to expect, what it might be, where it would be 
coming from.
  These are critical life-and-death responsibilities that I know the 
Federal Government and Secretary Ridge take very seriously. I have 
nothing but the highest respect and regard for him and the monumental 
task he is undertaking. I hold nothing but the highest respect for the 
sheriff of Hennepin County. The two of them ought to be working and 
coordinating. The sheriff ought to have the resources we provided last 
August in this body. It was vetoed by the President. There is more 
forthcoming from the 2003 appropriations. We want to make sure that 
those resources are getting out to local government first responders 
all over the United States of America so that they have that ability to 
train, to prepare, and to be equipped to respond as much as possible.
  Again, we hope and pray it will never happen. But if it should 
happen, they will have to be brought into action. Every second is going 
to count. Every person is going to have to make the right decision. 
Life depends on how well we help them be prepared.

  I commend the majority leader's request that this nomination of Mr. 
Estrada be set aside and that he be given the time and the opportunity 
to respond in writing to the questions of those of us who do not have 
the information that we believe we need to make the decision--that he 
provide that information to us; that we take a period of time then to 
focus on what is a life-and-death and most urgent concern of every 
citizen in Minnesota whom I met with and heard from last week. Even if 
there was another topic of conversation, they wanted to know about 
Iraq. They wanted to express their own views and own concerns. They see 
us on C-SPAN doing nothing but talking about the nomination, and the 
same the next night and the next night.
  I shudder to think what they must think about our sensibilities and 
our priorities. It is wrong. We owe it to those citizens to do our best 
in everything we stand for to bring this body back to focusing on the 
most critical time of our Nation--the pending war, the decision there, 
the responsibility of the Congress to declare war. And only Congress 
can declare war. Those of us who voted for resolution last fall 
abdicated to the President. It doesn't absolve our responsibility and 
what we must do now to stand up and take that responsibility back and 
make that decision and be held accountable by the people of America.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Talent). The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, I am a new Senator. I am aware of the

[[Page S2788]]

traditions of the Senate, one of which is that a new Senator is not 
expected to say much--at least throughout the year is not expected to 
say much--to begin with until they have something of importance to say. 
So I have not said much.
  I had been planning to make my first remarks on this floor next 
Tuesday on the issues I care most about, which are the education of our 
children and putting the teaching of American history and civics back 
in its rightful place in our schools so that our children can grow up 
knowing what it means to be an American. I planned on doing that next 
Tuesday. But I have decided to make some remarks today--earlier than 
expected because I am disappointed in what I have heard in the debate 
about Miguel Estrada.
  Like my friend from Missouri, I have had the opportunity to preside 
in the last few days. That is one of the honors that are accorded new 
Members of the Senate. I have been listening very carefully. My 
disappointment has increased with each of these 10 days as the debate 
has continued.
  I am disappointed first because I believe our friends on the other 
side of the aisle are being unfair to Miguel Estrada. I am most 
disappointed in them because I believe if the direction of this debate 
continues as it is going--and I heard the comments of my friend from 
Missouri yesterday on this same matter--if we continue in the same 
direction, we run the risk of permanently damaging the process by which 
we select Federal judges and by which we dispense justice in the United 
States. I am disappointed because this is not what I expected when I 
came to the Senate.
  I may be new to the Senate, but I know something about judges. I am a 
lawyer. I once clerked for a U.S. Attorney General. His name was Robert 
Kennedy. I once clerked for a great Federal appellate judge. His name 
was John Minor Wisdom of New Orleans. I once worked in this body 36 
years ago for Senator Howard Baker, a great lawyer. I watched this body 
as it considered and confirmed men and women to the Federal courts of 
this land. As Governor of Tennessee for 8 years, I had the 
responsibility of appointing--and did appoint--nearly 50 men and women 
to judgeships all the way from chancellorships to the supreme court.
  I know pretty well the process we have followed in the Senate and in 
this country for the last couple of centuries.
  It is fairly simple. It can be expressed in plain English. The 
Executive nominates, the Senate considers, and then confirms or rejects 
the nomination; and in doing so, what the Senators have always looked 
for, mainly, has been good character, good intelligence, good 
temperament, a good understanding of the law and the duties of a judge, 
and whether a nominee seems to have courtesy for those who may come 
before him or her. And it has always been assumed that it is 
unnecessary--and, in fact, it is unethical by the standards of most of 
the judicial canons in this country--for the nominee to try to say how 
he or she would decide a case that might come before him or her.
  Then, after all that examination is done in the Senate, there is a 
vote. And under our constitutional traditions, the majority decides.
  I have been listening very carefully, and that is not what is 
happening. The other side has simply decided that it will not allow the 
Senate to vote on the nomination of Miguel Estrada. In doing so, it is 
doing something that has never been done for a circuit court of appeals 
judge in our Nation's history.
  In those hours that I have presided over this body in the last few 
days, I have been listening very carefully to see what reasons our 
friends on the other side could give for coming to such an 
extraordinary conclusion about whom I have come to learn is an 
extraordinary individual, Miguel Estrada.
  I have been listening carefully for the answers, especially to these 
three questions: No. 1, what is wrong with Miguel Estrada? What is 
wrong with him? No. 2, why can't we vote on Miguel Estrada, after 10 
days of debate? And, No. 3--most importantly--why should we change the 
constitutional tradition that a majority of the Senate will decide 
whether to confirm Miguel Estrada? Because what they are saying, 
really, is that he will need to get 60 votes--60 votes--instead of 51.
  I have had the privilege of listening to each of their arguments. As 
my friend from Missouri knows, they first try one argument, and it does 
not go so well. Then they move to another argument, and it does not 
stand the light of day. And then they move to another one.
  But let me tell you what I have heard as I have listened to the 
debate.
  First, they said--it would be hard to imagine that anyone could say 
this with a straight face, but we had many straight faces on the other 
side of the aisle saying this--that he was not qualified to be a 
Federal appellate judge.
  You do not hear that argument very much anymore because that is 
almost a laughable comment if it were not such a serious matter.
  But let's go over this. This man isn't just qualified; if this were 
sports, he would be on the Olympic team, and he would be getting an 
award for ``American Dream Story of the Year.''
  Here is a man who came to this country at age 17 from Honduras. He 
had a speech impediment. He spoke very little English. And within a 
short period of time, he was attending Columbia University, one of the 
most prestigious universities in America.
  Then he went to Harvard Law School. Now, it is really hard to get 
into Harvard Law School. It has great competition. Everyone who is 
applying to a law school around the United States of America this 
year--and I know a great many of them--think about it. This young man, 
in a few years, was admitted to Harvard Law School. And not only that, 
he became an editor of the Harvard Law Review and graduated magna cum 
laude.

  This a dream resume, but it is not even over.
  Then he went to the Second Circuit as a law clerk. Then he became a 
clerk for a Supreme Court Justice. By now he was in the top 1 percent 
of 1 percent of all law school students in the country, with the kind 
of resume for a lawyer every law firm in the country would want to 
hire. He has a record that almost everyone would admire.
  Then he went to the Southern District of New York, one of the most 
competitive places, to be hired for training there.
  Then he was in the Solicitor General's Office. To those who are not 
lawyers or who do not keep up with this sort of thing, just being in 
the Solicitor General's Office might not sound like such a big deal, 
but those are the plum positions. The way I understand that office, 
there are a couple of political appointees there--the Solicitor General 
and his Deputy--and there are about 20 career lawyers. Miguel Estrada 
was one of those lawyers. They are there because they are not just 
good, they are the best in America. They have the best resumes. They 
have been the clerks to the Supreme Court Justices. They are going to 
be the greatest lawyers. It is the most competitive position in which 
you can be.
  And there he is, Miguel Estrada, coming here at age 17, barely 
speaking English, making his way into there. He worked there for the 
Clinton administration and the Bush administration.
  Then he went to one of the major law firms of America. And he has 
argued 15 cases before the Supreme Court of the United States.
  That is an incredibly talented record. There is almost no one who has 
been nominated for any judgeship in our country's history who has a 
superior record. For anyone to have even suggested for 15 minutes that 
Miguel Estrada is not superbly qualified to be a member of the United 
States Court of Appeals--for anyone to even suggest that--it is 
difficult to see how one could do that with a straight face.
  Little has been made about what he did in the Solicitor General's 
Office. I think it is worth talking about that. These talented young 
men and women have the job of helping the Solicitor General make 
decisions about what to do in cases in which the United States is a 
party. That means they review all the decisions that come against us, 
the United States of America. They are the lawyers for us, the United 
States of America.
  They write memoranda and they write opinion and they must argue back 
and forth. And they must argue about every side of every issue. And

[[Page S2789]]

our friends on the other side have come up with straight-face argument 
No. 2, which is that somehow Mr. Estrada, who does not even have all 
those memoranda, should be penalized because the U.S. Government does 
not want to hand those memoranda, that were exchanged back and forth 
between the various Solicitor General's assistants, over to the Senate.
  We have never done that. There are seven living former Solicitors 
General of the United States, and seven--all of them--have written a 
letter to this body saying that has never been done, and it never 
should be done, for obvious reasons. If it were done, you would never 
have any straightforward memoranda left in that office. It protects us, 
the United States. And that never should even be considered to be held 
against Mr. Estrada.

  So is he qualified? It is hard to imagine someone who is better 
qualified. I consider it a great privilege to come to the Senate and 
find a President who discovered such an extraordinary person to 
nominate for the Court of Appeals for the District of Columbia Circuit. 
Such a story should give inspiration to men and women all over America, 
that this is the country to which you can come, regardless of race or 
background or whatever your condition, and dream of being admitted to 
the best universities, finding the best jobs in a short period of time, 
and being nominated by the President of the United States for such a 
court.
  What a wonderful story. And what an embarrassing event it is to have 
our friends on the other side to even take the time of this Senate 
trying to suggest such a person is not qualified. So let's just throw 
that argument away and put it in the drawer.
  Since that argument did not fly, they then moved to argument No. 2, 
which is equally difficult to offer with a straight face, if I may 
respectfully say so. They said he has no judicial experience.
  Now, this argument is still being made. I heard the distinguished 
Senator from New York, last night, in an impassioned address, right 
over on the other side, say he has never been a judge, and we don't 
know what his opinions are. Never been a judge--Miguel Estrada cannot 
be a judge because he has never been a judge.
  Well, I am awfully glad that was not the standard that was applied to 
Justice Felix Frankfurter when President Roosevelt nominated him. He 
would never have been a judge before he was a Justice of the Supreme 
Court.
  I am glad it was not the standard that was applied to Louis Brandeis 
before he was nominated to the Supreme Court. I am glad it was not the 
standard that was applied to Thurgood Marshall, the first African 
American who was ever appointed to the Supreme Court of the United 
States. He had never been a judge. And so should Thurgood Marshall have 
never been a Justice because he had never been a judge?
  When I graduated from New York University Law School, the dean came 
to see me and said I had a chance to be a messenger down in New Orleans 
for a man that my dean, Bob McKay, said was one of the three or four 
best Federal judges in the country. His name was John Minor Wisdom, a 
great man and a great lawyer. He had never been a judge before 
President Eisenhower appointed him. Neither had Albert Tuttle from 
Atlanta or John Brown from Texas. The three of them became three of the 
greatest judges in the South. They presided, having been appointed by a 
Republican President, over the desegregation of the southern U.S. They 
were among the greatest judges we have ever had, and they had never 
been judges.

  Of 108 Supreme Court Justices who have been appointed, 43 of those 
have never been a judge. I have a list somewhere here of judge after 
judge after judge. Earl Warren; Byron White; Justice Powell; Justice 
Rehnquist; Justice Breyer; Judge Wisdom's favorite friend on the second 
circuit, Henry Friendly of New York. He had never been a judge before. 
Charles Clark; Jerome Frank; John Paul Stevens; Warren Burger; Harold 
Leventhal; Spottswood Robinson; Ruth Bader Ginsberg, who had never been 
a judge before she was a Justice. Does that mean she wasn't qualified 
to sit on this Court?
  Why would the other side be taking up the time of the Senate at a 
time when we are concerned with war with Iraq and the economy is 
hurting, by making that kind of argument? They would be asked to sit 
down in any respectable law school in America if they gave that answer. 
Yet they are here in the Senate trying to persuade us that it makes a 
point.
  In 1980, I appointed George Brown of Memphis as the first African 
American justice in the history of the State of Tennessee. If George 
Brown had to be a judge before he had become a justice, I could never 
have appointed an African American justice, because there were no 
African American judges at that time. Even today, given the paucity of 
Hispanics and African Americans and women who are judges, if we were to 
say that in order for someone to be a judge, before he or she becomes a 
judge, we would have a terrible, invidious discrimination against men 
and women who should not be discriminated against, and I am sure my 
friends on the other side don't want to see that happen.
  So even though we have spent days arguing that Miguel Estrada should 
not be considered because he has never been a judge, that argument has 
no merit to it whatsoever. We hear it less and less now that it is on 
the tenth day.
  Well, those two arguments didn't fly because here is a superbly 
qualified person. So they said he didn't answer the questions.
  I just had the privilege of hearing the distinguished Senator from 
California and the distinguished Senator from Minnesota spend a long 
time talking about that, saying he hasn't answered questions. Well, Mr. 
President, I am not a member of the Judiciary Committee, but I know 
they had hearings and I know Members on the other side were in charge 
of the Senate when they had the hearings. I know the hearings could 
have gone on as long as they wanted them to because they were in 
charge. If I am not mistaken, the distinguished Senator from Utah was 
here. I believe they went on all day long. The hearings were unusually 
long. Miguel Estrada was there and he answered their questions. Every 
Senator on the committee had the opportunity to ask followup questions 
in writing, and two did. The Senator from Massachusetts and the Senator 
from Illinois did that. Mr. Estrada gave those answers in writing. He 
has now said to Members of the Senate that he is available for further 
questions. He will be glad to visit with them.
  What does he have to do to answer the questions? Why is there a new 
standard for Miguel Estrada? Why do we say to him, for the first time, 
tell us your views in a particular case before we will confirm you? We 
have tradition rooted in history that it is even unethical to do that. 
I appointed 50 judges, as I said, when I was Governor. When I sat down 
with these judges, I didn't ask: How would you rule on TVA and the rate 
case, or how would you rule on partial-birth abortion, in the abortion 
case; or what would you do about applying the first amendment to the 
issue of whether to take the Ten Commandments down from the courthouse 
in Murfreesboro, TN, or how do you feel about prayer in the schools, or 
if somebody says a prayer before a football game?

  I didn't do that because I didn't think it was right to ask a judge 
to decide a case before the case came before him, which has been the 
tradition in this country. We are not appointing legislators to the 
bench, or precinct chairmen, or think-tank chairmen, or Senators; we 
are appointing judges. They are supposed to look at the facts and 
consider the law and come to a conclusion. But they say he didn't 
answer the questions.
  Mr. President, the only way I know to deal with that--because this 
side says one thing and that side says the other, and since I am not on 
the Judiciary Committee--is to read the questions and the answers. I 
wanted to see whether he was asked some questions and whether he gave 
some answers.
  These are the questions and answers, Mr. President. This is the 
record of the hearing of Miguel Estrada, plus a long memorandum of 
questions from the Senator from Massachusetts and the Senator from 
Illinois that he also answered. I will not take the Senate's time to 
read all of the questions and answers, but since they keep saying he 
didn't answer the questions, let me give some examples.

[[Page S2790]]

  The chairman of the committee says:

       Mr. Estrada, we have heard you have held many strongly-held 
     beliefs. You are a zealous advocate. That is great. You know, 
     lawyers who win cases are not the ones who say ``on the one 
     hand, this, on the other hand, that.'' They are zealous. But 
     you also have to make sure, if you are going to enforce the 
     laws, that your personal views don't take over the law. 
     Senator Thurmond has asked every single nominee I have ever 
     heard him speak to--Republican or Democrat--to speak to that 
     effect. What would you say is the most important attribute of 
     a judge, and do you possess that?

  A very good question.
  Answer:

       The most important quality for a judge, in my view, Senator 
     Leahy, is to have an appropriate process for decisionmaking. 
     That entails having an open mind, it entails listening to the 
     parties, reading their briefs, going back behind the briefs 
     and doing the legal work needed to ascertain who is right in 
     his or her claims. In courts of appeals court where judges 
     sit in panels of three, it is important to engage in 
     deliberations and give ears to the views of colleagues who 
     may have come to different conclusions. In sum, to be 
     committed to judging as a process that is intended to give us 
     the right answer and not a result. I can give you my level 
     best solemn assurance that I firmly think I have those 
     qualities, or else I would not have accepted the nomination.

  ``Does that include the temperament of the judge?'', asked the 
chairman.
  Mr. Estrada said:

       Yes, that includes the temperament of a judge. To borrow 
     somewhat from the American Bar Association, the temperament 
     of a judge includes whether he or she is impartial and 
     openminded, unbiased, courteous, yet firm, and whether he 
     will give ear to people who have come into his courtroom and 
     who don't come in with a claim about which the judge may at 
     first be skeptical.

  The chairman said:

       Thank you.

  I submit that is a good answer. I appointed 50 judges and I would 
have listened to that question. I would give him an A-plus on that.
  Here is the Senator from Iowa:

       Before I make some comment, I want to ask three basic 
     questions.

  This is in the hearing with Mr. Estrada. This is the man who the 
other side says doesn't answer questions.
  The Senator from Iowa:

       In general, Supreme Court precedents are binding on all 
     lower Federal courts, and circuit court precedents are 
     binding on district courts within a particular circuit. Are 
     you committed to following the precedents of the higher 
     courts faithfully, giving them full force and effect even if 
     you disagree with such precedents?

  Mr. Estrada:

       Absolutely, Senator.

  How could you make a better answer than that? You could either say 
yes or no. He said yes.
  The Senator from Iowa:

       What would you do if you believed the Supreme Court or 
     court of appeals had seriously erred in rendering a decision? 
     Would you, nevertheless, apply that decision, or would you 
     use your own judgment on the merits, or the best judgment of 
     the merits?

  Mr. Estrada:

       My duty as a judge, and inclination as a person and as a 
     lawyer of integrity would be to follow the orders of the 
     highest court.

  The Senator from Ohio:

       And if there were no controlling precedent dispositively 
     concluding an issue with which you were presented in your 
     circuit, to which sources would you turn for persuasive 
     authority?

  Mr. Estrada:

       When facing a problem for which there is not a decisive 
     answer from a higher court, my cardinal rule would be to 
     seize aid from any place I could get it. Depending on the 
     nature of the problem, that would include related case law 
     and other areas higher courts had dealt with that had some 
     insights to teach with respect to the problem at hand. It 
     could include history of the enactment, in the case of a 
     statute, legislative history. It could include the custom and 
     practice under any predecessor statute or document. It could 
     include the view of academics to the extent they purport to 
     analyze what the law is instead of prescribing what it ought 
     to be, and, in sum, as Chief Justice Marshall once said, to 
     attempt not to overlook anything from which aid might be 
     derived.

  I give him an A plus for that. That was a good question, and he gave 
a superb answer, just the kind of answer I think an American citizen 
who wants to appear before an impartial court in this country would 
hope to hear. I do not think we want to hear: Welcome to the court, 
Mr./Ms. Litigant. We have here your Democratic court; we have here your 
Republican court. If your views are all right, you might get the right 
hearing. You would want a judge who said what Mr. Estrada said.
  The Senator from Massachusetts, who has been extremely critical of 
Mr. Estrada, asked a more detailed question. Mr. President, you may be 
wondering why I am going into such detail when this is available to the 
whole world, including the Senators on the other side. The problem is 
perhaps someone has not bothered to offer this book to our friends on 
the other side because they keep coming down here while you and I are 
presiding day in and day out for 10 straight days and saying Mr. 
Estrada has not answered the questions. My suggestion is he has 
answered question after question, and he has done a beautiful job of 
answering the questions.
  Let me take a few more minutes and give examples of answering 
questions.
  The Senator from Massachusetts:

       Now, Mr. Estrada, you made the case before the court that 
     the NAACP should not be granted standing to represent the 
     members. As I look through the case, I have difficulty in 
     understanding why you would believe the NAACP would not have 
     standing in this kind of case when it has been so 
     extraordinary in terms of fighting for those--this is the 
     NAACP--and in this case was making the case of intervention 
     because of their concern about the youth in terms of 
     employment, battling drugs, and also voting.

  In other words, Mr. Kennedy was saying: Mr. Estrada, how can you do 
this when the NAACP is on the other side?
  Mr. Estrada's answer:

       The laws that were at issue in that case, Senator Kennedy, 
     and in an earlier case, which is how I got involved in the 
     issue, deal with the subject of street gangs that engage in 
     or may engage in some criminal activity. I got involved in 
     the issue as a result of being asked by the city of Chicago--
     --

  The last time I checked, the mayor of the city of Chicago was a 
Democrat, a good mayor, but just so I would not want anyone to think 
this was a partisan comment----

     which had passed by similar ordinance dealing with street 
     gangs. And I was called by somebody who worked for Mayor 
     Daley when they needed help in the Supreme Court in a case 
     that was pending on the loitering issue. I mention that 
     because after doing my work in that case, I got called by 
     the attorney for the city of Annapolis, which is the case 
     to which you are making reference. They had a somewhat 
     similar law to the one that had been at issue in the 
     Supreme Court. Not the same law. They were already in 
     litigation, as you mentioned, with the NAACP. By the time 
     he called me--

  This is the lawyer for the city--

     he had filed a motion for summary judgment making the 
     argument that you outlined. And he had been met with the 
     entrance into the case by a prominent DC law firm on the 
     other side. He went to the State and local legal center and 
     asked: Who can I turn to to help? And they sent him to me 
     because of the work I had done in the Chicago case. Following 
     that, I did the brief, and the point on the standing issue 
     that you mentioned is that in both Chicago and in the 
     Annapolis ordinance, you were dealing with types of laws that 
     had been passed with significant substantial support from the 
     minority communities. I have always thought that it was part 
     of my duty as a lawyer to make sure that when people go to 
     their elected representatives and ask for those type of laws 
     to be passed to make the appropriate arguments that a court 
     might accept to uphold the judgment of the democratic people. 
     In the context of the NAACP, that was relevant to a legal 
     issue because one of the requirements we argued for 
     representational standing--

  Those who might be listening may think this is awfully detailed, 
awfully specific, awfully long. Mr. President, that is my point. 
Senator Kennedy asked an appropriate and very detailed question about 
an issue involving street gangs in Chicago where Mayor Daley asked Mr. 
Estrada to help, and Mr. Estrada gave Senator Kennedy a very detailed, 
courteous, respectful, specific answer that has taken me 3 or 4 minutes 
to read, and I am not through yet.
  The point is, the other side keeps saying he has not answered 
questions when he has answered the questions. Not only has he answered 
them, he has answered them in a way a superbly qualified lawyer with 
his background might be expected to answer.
  The Senator from Alabama:

       Mr. Estrada, if you are confirmed in this position, and I 
     hope you will be, how do you see the rule of law, and will 
     you tell us, regardless of whether you agree with it or not, 
     you will follow binding precedent?

  Mr. Estrada:

       I will follow binding case law in every case. I don't even 
     know that I can say whether I concur in the case or not 
     without actually having gone through all the work of doing it 
     from scratch. I may have a personal, moral,

[[Page S2791]]

     philosophical view on the subject matter, but I undertake to 
     you that I would put all that aside and decide cases in 
     accordance with the binding case law and even in accordance 
     with the case law that is not binding but seems instructive 
     in the area, without any influence whatsoever from any 
     personal view that I may have about the subject matter.

  What Mr. Estrada was saying to the Senator from Alabama was: Mr. 
Senator, with respect, I may not decide this case the way you would 
like for it to be decided because I will look at the case law and I 
will follow the case law, and I might even decide this case the way my 
personal view would decide it if the case law is different than my 
personal view. In other words, I think Mr. Estrada is giving the answer 
that most Americans want of their judges, regardless of what party they 
are in.

  I will give a couple more examples, and I do this because this has 
gone on now 10 days. All I hear from the other side is he will not 
answer the questions, he is not answering the questions, when, in fact, 
there is a book full of questions and answers to which I believe law 
professors in the law school I attended would give a very high grade.
  Here is the Senator from Wisconsin:

       With that in mind, Mr. Estrada, I would like to know your 
     thoughts on some of the following issues. Mr. Estrada, what 
     do you think of the Supreme Court's effort to curtail 
     Congress' power which began with the Lopez case back in 1995, 
     the Gun-Free School Zone Act. That was a very controversial 
     case. I remember my own view on that. I would have voted 
     against it, even though, obviously, I am for gun-free school 
     zones, but almost every Senator voted for it because they did 
     not want to sound like they were against gun-free school 
     zones, I guess, or whatever the reason might have been, but 
     it was a controversial issue and a hard issue to vote 
     against.

  Mr. Estrada:

       Yes, I know the case, Senator. As you may know, I was in 
     the Government at the time, and I argued a companion case to 
     Lopez that was pending at the same time and in which I took 
     the view that the United States was urging in the Lopez case 
     and in my case for a very expansive view of the power of 
     Congress to pass statutes under the commerce clause and have 
     them to be upheld by the court. Although my case, which was 
     the companion case to Lopez, was a win for the Government on 
     a very narrow theory, the court did reject the broad theory I 
     was urging on the court on behalf of the Government.

  In other words, Mr. Estrada was sticking up for the very people who 
are saying he will not answer their questions. He was there. That was 
his view, and he talks about it, and he answered the question:

       Even though I worked very hard in that case to come up with 
     every conceivable argument for why the power of Congress 
     would be as vast as the mind could see, and told the court so 
     at oral argument, I understand I lost on that issue in that 
     case as an advocate, and I will be constrained to follow the 
     Lopez case.

  Here we are, Mr. President. Mr. Estrada took a position that I would 
have voted against. I think he is wrong, but he really did not take a 
position that I would vote against him. He argued a case before the 
court that made the very best argument he could make, arguing two lines 
of opinions. What our friends on the other side are saying is, when he 
writes a brief or argues a case on behalf of the United States, that 
somehow that reflects the point of view with which they disagree. I 
disagree with his brief. I would not consider voting against him or 
anybody else based on that kind of reason, a very complete answer.
  Then if I may, I will state two more. Again, I would not normally 
think it was necessary for me to read the questions and read the 
answers, except that virtually every Senator from the other side who 
has come in has said he has not answered the questions, so I want the 
American people and my colleagues to know that if they want to know 
whether he has answered the questions all they need to do is go to the 
hearing record and read the question and read the answer.
  Here is a tough one from the Senator from California:

       Do you believe that Roe v. Wade was correctly decided?

  There is no more a difficult question for a judge who comes before 
the Senate, because that is a terribly difficult issue about which we 
all have deeply held moral beliefs, and for all of us almost there is 
only one right way to answer the question, unless one believes that 
what judges are supposed to do is to interpret the law and apply the 
law to the facts.
  Mr. Estrada's answer:

       My view on that judicial function, Senator Feinstein, does 
     not allow me to answer that question.

  Then he goes on to explain what he meant.

       I have a personal view on the subject of abortion, as I 
     think you know. But I have not done what I think the judicial 
     function would require me to do in order to ascertain whether 
     the Court got it right as an original matter. I have not 
     listened to the parties. I have not come to an actual case or 
     a controversy with an open mind. I have not gone back and run 
     down everything that they have cited. And the reason I have 
     not done any of those things is that I view our system of law 
     as one in which both me as an advocate and possibly, if I am 
     confirmed, as judge have the job of building on the wall that 
     is already there and not to call it into question. I have had 
     no particular reason to go back and look at whether it was 
     right or wrong as a matter of law, as I would if I were a 
     judge that was hearing the case for the first time. It is 
     there. It is the law, as has been subsequently refined by the 
     Casey case, and I will follow it.

  That is a complete answer to the most difficult question that could 
be asked of a nominee for a Federal judgeship.

       Senator Feinstein: So you believe it is settled law?
       Mr. Estrada: I believe so.

  As I mentioned, if I understand the committee's rules, every Senator 
on the committee has the ability to ask followup questions. I know when 
I was confirmed by the committee they asked me many followup questions 
and I worked hard answering the questions 10 or 12 years ago when I was 
in the first President Bush's Cabinet. These are serious questions and 
serious answers.
  Here I think is a revealing question, and one which may give us some 
idea of why we are in the 10th day of debate on one of the most 
superbly qualified candidates ever nominated for the court of appeals, 
a man who exemplifies the American dream. The Senator from 
Massachusetts, Mr. Kennedy, asked this question:

       Mr. Estrada, do you consider yourself a ``conservative'' 
     lawyer? Why or why not? Why do you believe that you are being 
     promoted by your supporters as a conservative judicial 
     nominee? Do you believe that your judicial philosophy is akin 
     to that of Justices Scalia and Thomas? Why or why not?

  What Senator Kennedy is looking for is to find out is this a 
conservative lawyer. Is the suggestion that we may want conservative 
decisions or liberal decisions? I thought we wanted fair decisions, 
based on precedent, based on fact. I thought we wanted judges who it 
would be impossible for us to tell where they were coming from before 
they were coming.

  The response from Mr. Estrada is very interesting. He said to the 
Senator from Massachusetts:

       My role as an attorney is to advocate my client's position 
     within ethical bounds rather than promote any particular 
     point of view, conservative or otherwise.

  A-plus for that, I would say.
  Mr. Estrada says:

       I have worked as an attorney for a variety of clients, 
     including the United States Government, State and local 
     governments, individuals charged with criminal activity.

  Are we going to say criminal lawyers cannot be confirmed because they 
represented people who murdered people and that makes them murderers?

       Large corporations, indigent prisoners seeking Federal 
     habeas corpus, in those cases I have advocated a variety of 
     positions that might be characterized as either liberal or 
     conservative.

  Remember, this is from a career employee in the U.S. Solicitor's 
Office in the Clinton and Bush administrations. This is Miguel Estrada:

       While I am grateful for the wide ranging and bipartisan 
     support that my nomination has received, I have no knowledge 
     of the specific reasons that might cause a particular 
     supporter of my nomination to promote my candidacy for 
     judicial office. As a judge I would view my job as trying to 
     reach the correct answer to the question before me without 
     being guided by any preconceptions or speculations as to how 
     any other judge or justice might approach the same issue.

  If all of the Senators would take the time to read Miguel Estrada's 
answers, some of them might end up in a textbook of appropriate 
answers, if they believe a judge's job is to apply precedent and 
consider the facts and come to a fair decision.
  Miguel Estrada is qualified, and he is not just qualified, he is one 
of the most qualified persons ever nominated for

[[Page S2792]]

the Federal court of appeals. If he, by his very candidacy, represents 
the American dream that anything is possible, coming here from Honduras 
at age 17 and making his way through such a distinguished series of 
appointments, if he has answered the questions in what I would argue is 
a superior way, the way most nominees would be capable of answering the 
questions, and I have read just a few of them--I can come back and take 
another 2 or 3 hours and read more because there are hours of questions 
and answers--and if a majority of Members of the Senate have signed a 
letter saying they would vote to confirm him, then why can we not vote 
on Miguel Estrada?
  The only reason can be that our Democratic friends want to change the 
way judges are selected. They want to say it takes 60 votes instead of 
51, and they want to say the criteria for winning those votes is to 
answer the questions the way they want.
  That will give us a Federal judiciary filled with partisans, or an 
empty Federal judiciary because we will be debating night after night 
because we cannot agree on whom to nominate and confirm. Such a 
process, if carried on in subsequent Congresses, will diminish the 
executive. It will diminish the judiciary. It will reduce the 
likelihood that facts will be considered and that binding precedent 
will apply. In other words, it will reduce the chance that justice will 
be done. It will reduce respect for the courts because it will be 
assumed that if partisan views on the case are what it takes to get 
confirmed by the Senate, then partisan views are what it takes to win a 
case before the court.

  It reminds me of the story we tell at home about the old Tennessee 
judge. He was in a rural county up in the mountains and the lawyers 
showed up for a case one morning. He said: Gentlemen, we can save a lot 
of time. I received a telephone call last night. I pretty well know the 
facts. All you need to do is give me a little memorandum on the law.
  We do not want a judiciary where those who come before it believe the 
judges got their political instructions when they were confirmed and 
that there is really no need to argue the case.
  So Miguel Estrada is superbly qualified. Miguel Estrada has answered 
question after question, and he has done it very well. A majority of 
the Senate has signed a letter saying they are ready to vote today to 
confirm Miguel Estrada, and never in our history have we denied such a 
vote by filibuster to a circuit court judge. It is time to vote.
  Before I finish my remarks, I make this pledge. I may be here long 
enough, and I hope it is a while, before I have an opportunity to cast 
a vote for a nominee for a Federal judgeship that is sent over by a 
Democratic President, but I can pledge now how I will cast my vote. It 
will be the same way I appointed 50 judges when I was Governor. I look 
for good character. I look for good intelligence. I look for good 
temperament. I look for good understanding of the law and of the duties 
of judges. I will look to see if this nominee has the aspect of 
courtesy to those who come before the court. I will reserve the right 
to vote against some extremists, but I will assume that it is 
unnecessary and unethical for the nominee to try to say to me how he or 
she would decide a case that might come before him or her. When it 
comes time to vote, when we finish that whole examination, I will vote 
to let the majority decide.
  In plain English, I will not vote to deny a vote to a Democratic 
President's judicial nominee just because the nominee may have views 
more liberal than mine. That is the way judges have always been 
selected. That is the way they should be selected.
  I conclude in equally plain English, and with respect, I hope my 
friends on the other side of the aisle would not deny a vote to Miguel 
Estrada just because they suspect his views on some issues may be more 
conservative than theirs.

  These are the most serious times for our country. Our values are 
being closely examined in every part of the world. Our men and women 
are about to be asked, it appears, to fight a war in another part of 
the world. How we administer our system of justice is one of the most 
important values they are defending. We need to constrain our partisan 
instincts to get them under control. We need to avoid a result that 
changes the way we select judges. In my view, we permanently damage our 
process for selecting Federal judges.
  The PRESIDING OFFICER. Before the Senator from Vermont is recognized, 
the Chair congratulates the Senator from Tennessee for his initial 
speech in this body.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I was about to congratulate the junior 
Senator from Tennessee on the same thing.
  I am sorry that my good friend from Tennessee--whom I admire greatly; 
we worked together when he was in the President's Cabinet; we worked on 
many different things--I am sorry it happens to be a speech where he 
and I are on different sides. It was done with his usual care and 
cogency. He spoke to his experience, both as a former Governor with a 
distinguished record, a former Cabinet member with a distinguished 
record, one who served in business with a distinguished record. I 
appreciate having him here.
  Sometimes debate can get rancorous and personal. To hear someone who 
takes a position, albeit different from mine, who does it with care, 
reflecting his past experience--I compliment the Senator from 
Tennessee.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Vermont.
  Mr. LEAHY. Mr. President, we have heard a lot about Mr. Estrada and 
whether he has or has not answered questions. Obviously, I believe he 
has not. The President of the United States again today asked the 
Senate to do something that no President of either party should ask 
for. He asked the Senate to vote without having straightforward answers 
for a nominee for a lifetime position as a Federal judge on one of the 
most significant courts of this country.
  That is not something that would help the Federal judiciary, but 
instead would set a dangerous precedent that would lessen the 
independence of the Federal judiciary. When a nominee does not answer 
basic questions, the Senate clearly has a constitutional responsibility 
to ask for the answers.
  Mr. Estrada will not answer basic questions about his judicial 
philosophy, yet he has asked the Senate to confirm him to a lifetime 
job to the second highest court in the land where that judicial 
philosophy will determine, in many instances, which way that court will 
rule. That court affects every single American in countless ways 
through its decisions on everything from clean air and water to the 
rights of working men and women, from voting rights to all other civil 
rights law that protect minorities.
  Becoming a Federal judge for a lifetime is a privilege, not a right. 
No nominee should be rewarded for stonewalling the Senate and the 
American people. The Constitution directs Senators to use their 
judgment in voting on judicial nominees, not to rubberstamp them.
  The Democratic-controlled Senate confirmed a record 100 of President 
Bush's judicial nominees, acting faster and more fairly than the 
Republicans did with President Clinton's nominees. We began the process 
of the first hearing within 10 minutes of the time I became chairman of 
the Senate Judiciary Committee.
  But President Bush has also proposed several controversial nominees, 
such as Miguel Estrada, who divide the American people and the Senate. 
The President can end this impasse. I hope he will act to give Senators 
the answers they need to make informed judgments about this nomination. 
The President can also help by choosing mainstream judicial nominees 
who can unite instead of divide the American people. The White House 
knows very well how easily and quickly they can bring this matter 
forward for a vote. They would rather make a political statement than 
to have a vote on a nomination.
  Especially at a time when we have so many other issues before us--it 
has been said a record number of Americans are out of work--when a 
record number of jobs are being lost in this country, when more jobs 
are being lost under the President than any President, certainly in my 
lifetime, we are going to spend week after week in the Senate regarding 
an extremely highly paid lifetime job for one person.
  It would seem a little bit more fair to those who do not have 
lifetime jobs, to

[[Page S2793]]

those who are not paid this amount, to the millions of Americans who 
have lost jobs during the last 2 years, to talk about ways of putting 
them back to work. I hope the President will pay attention to that.
  I said more people have lost jobs during his Presidency than during 
the Presidency of certainly every President I have served with, and I 
believe any President in my lifetime.
  We should be talking about preserving prescription drugs. Senator 
Feingold will introduce the Preserving Prescription Drug Discount Act 
tomorrow. I am pleased to be an original cosponsor of this important 
legislation. It will address an issue of great concern to me and to so 
many of the moderates. American drug companies threaten to stop doing 
business with Canadian pharmacies. How does this affect us? Every one 
of us who is in a State that comes along the Canadian border is 
affected. This legislation is a response to the announcement by 
pharmaceutical giant GlaxoSmithKline to stop supplying Canadian 
pharmacies that provide American consumers the same prices the 
Canadians receive.

  It is a sad commentary that the richest, most powerful nation on 
Earth has so many of our citizens who are forced to choose between 
buying necessities such as food and heat and the prescription drugs 
they need to live healthy, productive lives. Many Vermonters in these 
difficult circumstances cross the border into Canada to purchase 
prescription drugs at dramatically lower prices, sometimes saving up to 
80 percent. There is a need for lower cost prescription drugs. It is 
unconscionable that at a time when pharmaceutical industry profits are 
soaring, a company such as Glaxo targets the most vulnerable consumers 
in order to protect what is for them a very large bottom line.
  When we have 45 million Americans, most of them working Americans, 
who do not have medical insurance in this country, we have millions out 
of jobs and who have lost their jobs in the last 2 years, we ought to 
at least stand up and tell this pharmaceutical giant: Do not cut off 
this lifeline.
  Vermont is so often at the forefront of developing innovative 
strategy to combat high health care costs, including announcing a 
partnership with Michigan and Wisconsin to buy prescription drugs in 
bulk. This will save the residents of these three States millions of 
dollars, and it is a step in the right direction toward making 
prescription drugs more affordable for our citizens.
  Unfortunately, for the same consumers, Glaxo's new proposal 
represents a giant step backward. Both chambers of the Vermont State 
Legislature responded swiftly and passed a resolution regarding Glaxo's 
troubling plan, urging the company to reverse its policies. The Vermont 
lawmakers even went so far as to suggest it may consider requiring all 
of Glaxo's prescriptions to be considered through a review process 
before they could be prescribed to State-funded programs.
  The Preserving Prescription Drug Discounts Act that my friend, 
Senator Feingold, will introduce tomorrow, goes one step further than 
the Vermont House's recommendation.
  Under this bill, companies that discriminate against Canadian 
pharmacies that pass along discounts to American consumers would not be 
allowed to deduct expenses related to research and development from 
their taxes.
  Glaxco's policy would punish American consumers. There is no other 
way to describe it. It is not a policy that American taxpayers should 
support with Government benefits such as tax credits when they openly 
act to punish American consumers. We American consumers are also 
American taxpayers and should not have to give them even further 
benefits.
  I hope the quick passage of this measure will prompt Glaxco to 
reconsider its policy. It is a wrong policy. It is a mean policy. It is 
an irresponsible policy. I hope other companies will think twice before 
copying such a mean and irresponsible policy.
  We have a responsibility to take the steps necessary to ensure that 
our citizens have access to health care, including prescription drugs 
they need and deserve.
  I have worked over the years to ease access to generic drugs, to 
ensure privacy for individuals' medical records, and to continue to 
work to ensure that our seniors and individuals with disabilities would 
soon have a voluntary prescription drug benefit as part of Medicare.
  The health care challenges facing our Nation are complex. The 
solutions are not easy. It may take some time to find the necessary 
solutions to these challenges. In the meantime, we must embrace the 
issues we can promptly address. That is what the Preserving Description 
Drug Discounts Act will do. I hope other Senators will join in 
supporting Senator Feingold.
  Mr. President, as I said, I think it is unfortunate. This matter 
could easily be resolved. The White House is uninterested in doing 
that.
  The President's Counsel almost derisively dismissed a suggestion made 
by one of the respected senior Republicans in this body for resolving 
this issue. It makes me think they do not want to bring this to a vote. 
They would rather talk about bringing this to a vote. That does very 
little for either the independence of the Federal judiciary, and 
certainly the question of the independence of the Senate.
  At times I get the impression the White House considers the Senate 
some kind of a constitutional nuisance to be ignored. It is almost as 
though they issue marching orders, and the Senate should fall in line, 
from how we should organize on through.
  Presidents come and go. I respect all the Presidents and admire their 
willingness to lead our great country. But the Senate stays here long 
after any individual President. We either fulfill our obligations of 
advice and consent or we become a rubberstamp. Prior to my becoming 
chairman, for 6 months the Republican majority of that time did not 
hold a single hearing on any of President Bush's judicial nominees. In 
17 months I held hearings on 103, we confirmed 100, and voted down 2. 
That is on top of hundreds upon hundreds of other nominees for 
everything from U.S. Marshals to the Director of the INS to the head of 
the Drug Enforcement Agency to the U.S. attorneys. It was pretty 
productive.
  When I listen to some of the statements being made by my friends on 
the other side, you would think we did nothing. Maybe they are thinking 
of the months upon months upon months when they would not move any 
judges for President Clinton and do not want to look at the fact that 
we were moving them almost every week. We had to, during 17 months. 
During those 17 months we had recesses, adjournments, anthrax attacks, 
the Senate being closed down after September 11. We kept turning out 
these judges.
  Many were controversial. Most were conservative. We kept turning them 
out. Maybe to obscure the fact that we were moving President Bush's 
judges much faster than the Republicans moved President Clinton's, when 
we actually dared vote against one, the attacks that came. We were 
misquoted for our reasons. We had a judge who was defeated basically on 
questions of competence and willingness to follow the law. The 
Democrats who voted against him had all kinds of motives ascribed to 
them. We were told we called him a racist, even though I heard 
Democratic Senator after Democratic Senator say they did not consider 
him that. We had the religion of the majority of Members, Democratic 
Members in the Senate, attacked--including high officials of the 
Republican Party attacked the religious backgrounds of at least 8 
members of the 10 members, Democrats in the Senate Judiciary Committee. 
But nobody, nobody wanted to discuss the fact that this particular 
judge was voted down because he was not qualified to be a circuit court 
of appeals judge.
  These are the kinds of things. It is almost like no good deed will go 
unpunished. The Democrats moved through judges much faster for 
President Bush than Republicans did for President Clinton, and we are 
the ones being called obstructionists.
  Mr. Estrada's short legal career has been successful. By all accounts 
he is a good appellate lawyer and legal advocate who has had a series 
of prestigious positions and is professionally and financially 
successful. As the grandson of immigrants, as a son, a father and 
grandfather, I know that no matter the

[[Page S2794]]

country of origin or economic background, a family takes pride in the 
success of its children. Mr. Estrada's family has much to be proud of 
in his accomplishments, regardless of the outcome of this nomination.

  Mr. Estrada, who is now 41 years old, has a successful legal career 
at a prominent corporate law firm, which was the firm of President 
Reagan's first Attorney General William French Smith and that of 
President Bush's current Solicitor General Ted Olson. I am told that 
Mr. Olson, along with Kenneth Starr have been among Mr. Estrada's 
conservative mentors. At his relatively young age, Mr. Estrada has 
become a partner in the law firm of Gibson, Dunn & Crutcher having 
previously worked with the Wall Street law firm of Wachtell, Lipton, 
Rosen & Katz. While in private practice his clients included major 
investment backs and health care providers. Mr. Estrada's financial 
statement, which Senator Hatch inserted into the Congressional Record, 
says that he earned more than $500,000 a year two years ago and makes 
him look like a millionaire. At his hearing, Mr. Estrada testified: ``I 
have never known what it is to be poor, and I am very thankful to my 
parents for that. And I have never known what it is to be incredibly 
rich either, or even very rich, or rich.'' I will let his financial 
statement speak for itself on that point.
  Mr. Estrada appears to be a highly successful and well-compensated 
lawyer in a first-rate law firm. As I say, his family and friends 
surely take pride in this success, and rightly so.
  In the almost six years he has been with Gibson, Dunn & Crutcher, 
with its thriving appellate court practice and the successful Supreme 
Court practice developed by his senior partner Ted Olson, who was 
confirmed to be Solicitor General in June 2001, Mr. Estrada has 
apparently had only one argument before the Supreme Court, however. 
That was in connection with a habeas petition on which he worked pro 
bono when he first came to the firm. This is also one of the only pro 
bono cases he has taken in his entire legal career.
  I would also note his role developing legal arguments and writing 
briefs on behalf of Governor Bush following the 2000 election that 
resulted in a 5 to 4 majority of the United States Supreme Court's 
intervention to halt the counting of ballots in Florida and resulting 
in the selection of President George W. Bush. This information failed 
to make it into Mr. Estrada's Judiciary Committee questionnaire and 
list of top 10 legal matters. We know about his involvement in that 
case because the Puerto Rican Legal Defense and Education asked him 
about it and included reference to it in their extensive report on this 
nomination.
  Much has been said of Mr. Estrada's time working in the Office of the 
Solicitor General at the Department of Justice. I understand he was 
hired for that role by Kenneth Starr when he was the Solicitor General 
for the first President Bush in 1992. It was in that government post 
which Mr. Estrada continued during the first term of the Clinton 
administration in which he had 14 opportunities to argue before the 
Supreme Court. Of course, one of the principal functions of the 
Solicitor General's Office is to argue for the Government in behalf of 
the Supreme Court, and in fact argues more than anybody else. So it is 
no surprise when attorneys do so.
  But there comes the rub. Mr. Estrada's supporters make much of his 
four and a half years in the Solicitor General's Office and say this 
qualifies him to an appointment to the DC Circuit. The work that he 
did, according to the supporters in the Solicitor General's Office, 
ipso facto qualifies him for appointment to the District of Columbia 
Circuit. But when we ask, Can we see the work he did? Oh, no, no. Take 
our word for it.
  Interestingly enough, when I asked Mr. Estrada during the first 
meeting we had whether he had any objection to turning over the 
material and the work he did, he said no. He would be glad to. He is 
proud of it. It reflected his views. He would be glad to turn it over. 
When he was asked during the hearings whether he would be willing to 
turn it over, he personally would be willing to do so. He was under 
oath and he said certainly. But the administration says no.
  The Administration is seeking to have it both ways: Credit Mr. 
Estrada with the experience while forbidding the Senate from reviewing 
for itself what he did in that government job. Given the public 
comments of a former Deputy Solicitor General and Mr. Estrada's direct 
supervisor at the Office of Solicitor General, as well as the lack of a 
written record of Mr. Estrada's views and judicial philosophy and Mr. 
Estrada's failure at his hearing to satisfy Senators by responding to 
their questions, there is ample basis on which to request the 
production of government work papers from the time during which Mr. 
Estrada was in the Solicitor General's Office. There is also ample 
precedent for such papers being shared with the Senate in the past.
  It makes you wonder why they won't show us Mr. Estrada's paperwork. 
The same paperwork that was made available during the Carter 
administration. It was made available during the Reagan administration. 
It has been made available actually every time the Senate Judiciary 
Committee has asked for it.
  The Democratic leader pointed out the way to resolve the stalemate in 
his February 11, 2003, letter. It is curious. We asked for materials of 
cases long since decided. We are not asking for material on a pending 
case. Certainly, if there is material on a pending case, I would be 
willing to listen to an argument to hold that back. But how can we 
argue to hold back on material on a case long decided?
  When similar requests were made of material written by William 
Rehnquist, it was forthcoming. When similar requests were made for 
material written by Robert Bork, it was forthcoming. When similar 
material was requested written by Benjamin Civiletti, who became 
Attorney General, it was forthcoming. When similar material was 
requested for the nomination of William Bradford Reynolds, it was 
forthcoming. When similar material was requested for the nomination of 
Steven Trott, it was forthcoming. But then when it is requested of Mr. 
Estrada--and this is the only time I can remember such a request being 
turned down--it is turned down.

  Again, you have to ask why. What is in there that they don't want us 
to see?
  Take the public comments of a former Deputy Solicitor General, Mr. 
Estrada's direct supervisor at the Office of Solicitor General, as well 
as the lack of a written record of Mr. Estrada's views and judicial 
philosophy and Mr. Estrada's failure during hearings to satisfy 
Senators by responding to their questions, then there is ample bases on 
which to request products of Government workpapers during the time in 
which Mr. Estrada was in the Solicitor General's Office--papers put 
together and being paid for by the taxpayers in a job which the 
administration now says shows why he is entitled to be in this lifetime 
position. There is ample precedent for such papers being shared with 
the Senate in the past.
  I cannot think of a time when the papers were requested when the 
administration turned them down.
  Professor Bender, Mr. Estrada's supervisor at the Office of the 
Solicitor General, indicated that when he was supervising Mr. Estrada 
he did not view Mr. Estrada as reading the law fairly. He viewed Mr. 
Estrada as one whose personal views and desires colored his readings 
and presentations of the law, and as someone who might well be an 
ideologue to be appointed to the bench.
  I would think if Senators are going to be fair about this nomination, 
whether they are Republicans or Democrats, they would want to know the 
answer to that before they put somebody in a lifetime position.
  Mr. SANTORUM. Mr. President, will the Senator yield for a question?
  Mr. LEAHY. I would prefer not to until I finish these comments.
  The PRESIDING OFFICER. The Senator from Vermont has the floor.
  Mr. LEAHY. Thank you.
  But the reason we say this, if this work is what qualifies him, then 
we ought to know what he did in this work.
  Now, Professor Bender, Mr. Estrada's supervisor, is reported to have 
stated that Mr. Estrada was so ``ideologically driven that he couldn't 
be trusted to state the law in a fair, neutral way.'' He stated that he 
``could not rely on [Mr. Estrada's] written work to be a neutral 
statement of the law.'' He also

[[Page S2795]]

indicated that he viewed Mr. Estrada as ``smart and charming, but he is 
a right-wing ideologue'' and one who ``lacks judgment.''
  Now, this is somebody who has actually seen his work. Unlike those of 
us who are not allowed to see it, he has seen it.
  Veteran Supreme Court lawyer Carter G. Phillips has also noted that 
Mr. Estrada, while ``extremely self-confident'' is a ``more strident 
personality'' than the other current nominee for this court, John 
Roberts.
  In fact, when Professor Bender ventured these honest opinions, he 
suffered partisan attacks by Republicans. Similar to what happened to 
those of us on the Democratic side on the Judiciary Committee, who had 
our religion attacked by Republican officeholders because we dared to 
vote against one of President Bush's nominees, Professor Bender was 
attacked because he dared to question one of President Bush's nominees.
  He was maligned for serving as the general counsel to a commission 
appointed by President Nixon. He was maligned for legal positions taken 
by the Clinton administration. Republicans have chosen character 
assassination and demonization of Professor Bender. Their approach is 
to deny access to Government records and to seek to destroy anyone who 
would raise a concern about Mr. Estrada's ideology affecting his legal 
work.
  To his credit, Professor Bender was not intimidated by these personal 
attacks. He wrote to Chairman Hatch reaffirming his views just days 
ago. He also did this because he found that he was being misquoted time 
and time again on the floor of the Senate, and he wanted us to know 
exactly what his views are.
  Contrast this to what the Senate Democrats are trying to do. We would 
like to get to the merits of the matter. The administration has 
responded by stonewalling our request. They have attacked us for our 
attempts to reach a fair resolution of this matter.
  I would like to have the papers. I would like to have a hearing where 
we could ask questions from the papers, where we actually know what is 
in these things that they say substantiate the reason for Mr. Estrada's 
nomination.
  The administration wants to have it both ways. They say, if you saw 
these brilliant writings, then you would want him to be a judge. So we 
say: Fine, let's see the writings. They say: Oh, no, you can't see 
them. Take our word.
  You can't really have it both ways. If this is what shows he is 
qualified to be a judge, then let us see what is in it and then let us 
make up our own minds. Then Senators can vote for or against, but at 
least they will know what it is based on.
  One major person in his department says he is not qualified. We are 
not relying on that. We would like to see the papers and make up our 
own mind.
  One of the significant questions raised by this nomination is whether 
Mr. Estrada will be a fair judge without a political agenda. To 
ascertain that, let's review his work when he was serving in a position 
of trust for the United States, paid for by the American taxpayers.
  I believe it is fair to explore whether Mr. Estrada stated the law in 
a fair and neutral way while asked to do so in the Solicitor General's 
Office. Remember, the Solicitor General is not just an advocate before 
the U.S. Supreme Court. The Solicitor General is that unique person, in 
arguing before the U.S. Supreme Court, who is expected--by the Court 
and by the American people--to state the law objectively.

  I have heard the Solicitor General before the U.S. Supreme Court--in 
years past, and even from my days in law school--saying things to the 
effect: Here is the law that would uphold the position of the 
Government, but the Court should be aware that there is another body of 
law on the other side. They are supposed to state it fairly and 
impartially so the Court can rely on them.
  Having said that, we have somebody in the Solicitor General's Office 
preparing this material so that the Supreme Court can be given an 
objective, fair, and evenhanded view of the law. Isn't it fair game to 
ask whether that person fulfilled their duty in the Solicitor General's 
Office? Isn't it fair to ask, when they prepared such material, whether 
they did it in a fair, evenhanded fashion? Or did they do it in an 
ideological manner? Did they do it to carry out an agenda?
  I think it is a particularly significant question. We are faced with 
a nominee for a lifetime appointment to a Federal court, and to a 
Federal court as important as the D.C. Circuit. Usually when somebody 
is being nominated to such an important court, they have been a judge, 
they have been a district court judge, they have had a position where 
you have been able to see how they interpret the law and how they use 
it, and whether they did so fairly.
  That is not the case here. Here we have one place--one place--where 
by law, custom, and practice he is required to state the law in an 
evenhanded fashion, not ideologically driven but impartially driven. 
And the one place where we can ask whether he did that or not, the 
administration says: Trust us. He did, but we will not show you.
  I remember that wonderful saying that President Reagan made up, to 
the great surprise of the Russians, because he said it was a Russian 
saying it; but, still, it is a wonderful saying, where he said: Trust 
but verify. Well, I am tied at the hip with former President Reagan on 
this one. I will trust, but I would like to verify. I would like to 
verify.
  I think Senators should have the opportunity to review for themselves 
the documents Mr. Estrada wrote and make their own independent 
judgments about Mr. Estrada's writings and his ability to apply the law 
without regard to strongly held personal beliefs.
  Objectivity and openmindedness are crucial to appellate deliberations 
and decisionmaking. This is an area where we could answer that 
question. We can answer the question. In the Office of the Solicitor 
General there is a requirement to be objective, not ideological, a 
requirement to be straightforward and not political. But we are not 
allowed to see whether he fulfilled that requirement. Don't you think 
we should at least ask if it was there?
  If he had been a district judge before, and had written opinions, 
which would show whether he was objective and evenhanded, wouldn't we 
say, let's read them? I cannot imagine any Republican or Democrat 
saying we would not read them before we made up our mind.
  Well, he was not a district judge. But he was in a position where he 
was required to be nonideological, where he was required to be honest, 
where he was required to be straightforward, where he was required to 
be nonpolitical, and we are not allowed to see that record.
  Let's see the record. Let us ask questions about it, especially in 
this case, where one of the people who has looked at the record--one of 
his supervisors--questions whether he was objective. Isn't that 
something we should determine? In a job where he was required by law, 
by practice, and by custom to be objective and nonideological, and 
intellectually honest, if you have somebody who says he was not, so 
shouldn't we know that? Because if that is the case--when he is there 
just for a term--how much worse will it be if it is a lifetime 
position?
  Let's have those papers. Let's ask the questions. Then let Senators 
make up their minds. I am never going to vote for a judge if I cannot 
have the answers. I remember when President Clinton had nominees held 
up here for 2, 3, 4 years. My friends on the Republican side asked 
question after question. Some were legitimate, some were not. I 
remember one being asked how she voted on a secret ballot in a State 
election. I think we can all agree that is a question nobody should be 
asked--how they vote in an election in a State. But we waited year 
after year, and they said they must have these answers. Shouldn't we?
  I heard that Mr. Estrada was editor of the Harvard Law Review. Some 
have gone so far as to make it seem as if he was editor in chief or 
president of the review. That would be pretty impressive. Actually, he 
was one of 70 student editors working at the Harvard Law Review in 
1986. That should be impressive enough. I think most law students would 
say that is pretty darn impressive. But you don't have to embellish it, 
as some of his supporters have, and make it far more than what it was. 
I am impressed that he was 1 of 70. You don't have to embellish it to 
say he was the No. 1 editor in chief.

[[Page S2796]]

  We have a lot of people who fall into that category. Claire Sylvia, 
who worked for a time at our Senate legal counsel's office, was one of 
those editors. I never remember her claiming to be the editor in chief.
  Mr. REID. Will the Senator yield for a question?
  Mr. LEAHY. Yes.
  Mr. REID. Did I hear the Senator right that all these statements I 
have heard on the Senate floor that he was the editor--in fact, he was 
one of 70 editors?
  Mr. LEAHY. Yes, 70.
  Mr. REID. That is a distinction, but it is not the editor in chief.
  Mr. LEAHY. That is what I am saying. We have had a lot of people who 
worked for the Senate and for our committees and worked for various 
Senator's offices who have been one of those 70. It is a proud 
achievement. I keep worrying when we are seeing somebody gilding the 
lily on this person, when we see his background and his history change 
constantly to make it better and better. Well, he has things to be 
proud of, but you wonder why his supporters have to constantly change 
it and embellish it.
  Jeff Toobin, who has become a journalist, author, and legal 
commentator, was a student editor there that year. Actually, the 
supervising editor, who had a far more significant position, was none 
other than Elena Kagan. I mention this because my friends on the other 
side said that Mr. Estrada's being one of the 70 editors is reason to 
be on the court. Elena Kagan was a supervising editor. Now, that is 
really significant. Professor Kagan is a Harvard law professor. 
Professor Kagan served as Mr. Estrada's supervising editor, got the 
highest qualification by the ABA; and based on those qualifications, 
President Clinton nominated her to the DC Circuit.
  I mention this because so much has been made by those on the other 
side, who say even if you are one of the 70 editors, and got a high 
qualification from the ABA, that should be enough. Elena Kagan was a 
law professor and was a supervising editor. She was nominated by 
President Clinton, but guess what happened. The Republicans never 
allowed her to even have a hearing, to say nothing of a vote. She was 
humiliated, not even allowed to have a hearing, to say nothing about a 
vote.
  I worry when I hear Mr. Estrada's supporters talk about his family 
history. I was impressed when talking to him about his family. But I 
remember the first stories, and you have heard them repeated here. You 
almost thought he was a barefoot immigrant coming to America, unable to 
speak English, and so on and so forth. Actually, he grew up in a 
relatively wealthy and privileged household. His parents sent him to 
private school in Honduras, where the annual cost was almost the same 
as the annual per capita income for most Hondurans during that period.

  According to news accounts, his late father was a prominent and 
politically conservative lawyer who helped found the country's first 
private university and was also a bank vice president.
  I recall that the Honduran Ambassador took time out from his busy 
schedule last fall to attend a Judiciary Committee hearing, which made 
me think about the rumors that had circulated that Mr. Estrada's family 
included relatives who had been on the country's diplomatic corps. I 
understand his mother was a successful accountant in her own right. She 
should be proud of that. She is the daughter of a teacher-diplomat. Mr. 
Estrada completed 12 years of primary and secondary education at a 
private academy and at a university where he studied English. These are 
all commendable things--but a lot different than the image we are 
given.
  Again I ask, why not just tell the story as it is? Why not tell the 
story straightforward and show us the papers straightforward? Why do 
you have to constantly embellish things? That is why when I am told by 
the administration: Just trust us, we have looked at the papers and he 
was objective and honest and nonideological, take our word for it--I 
haven't been able to take their word for much in this case so far. Why 
should I take it for something that they don't want me to see?
  We do know some things about him. According to news accounts, after 
one of his mentors, Kenneth Starr, left the Office of the Solicitor 
General, he said Estrada was ``left working for a Justice Department 
whose views he didn't always agree with.''
  While at the Solicitor General's Office, Estrada did argue 14 cases 
before the Supreme Court, primarily criminal matters, but sometimes in 
the area of banking law. It is worth noting that Seth Waxman was not 
listed as Solicitor General on the briefs of any of those cases and, 
apparently, did not directly supervise his work.
  When he joined Gibson, Dunn & Crutcher and worked with Ted Olsen, Mr. 
Estrada gave interviews in which he defended Ken Starr's investigation 
of President Clinton. He has a right to do that. Some of us would 
question the $75 million to $100 million that was wasted on the 
investigations, but Mr. Estrada felt they were well worthwhile. He 
helped on then-Governor George Bush's litigation over the election 
results in Florida. He went on to the Justice Department transition 
team.
  I outline this personal history because some partisans have taken 
liberties with Mr. Estrada's personal and professional background in 
order to try to make his case more compelling. There is no doubt that 
Mr. Estrada is a rising star in conservative legal circles. He is a 
Federalist Society member and has been mentored by Kenneth Starr and 
Ted Olson.
  Certainly, he has a right to be involved with the Federalist Society. 
There is nothing wrong with that. In fact, he should probably use the 
membership.
  One judicial nominee at his hearing was honest and said he hadn't 
really heard of the Federalist Society. But he was told if he wanted to 
be a judge with this administration, he better go join it. He did and 
he is a judge. It worked for him. In this case, it has served him well, 
as it has a number of other executive branch nominees.
  This organization is sometimes mischaracterized as a mere debating 
society, and, as I said, one nominee was very honest while under oath 
and said: Yes, he was told to join it.
  They say about themselves:

       The Federalist Society for Law and Public Policy Studies is 
     a group of conservatives and libertarians interested in the 
     current state of the legal order.

  They state one of their goals is the ``reordering of priorities 
within the legal system'' and its objective ``requires restoring the 
recognition of the importance of lawyers, judges, and law professors.''
  I am not sure how Mr. Estrada plans to reorder priorities and values 
if he is confirmed as a judge, but we know he has strongly held views 
he will not share with us. Again, we go back to the one area where he 
is required to be objective, not ideological, and nonpolitical, and 
that it in the Office of the Solicitor General. But those writings we 
are not allowed to see. Those writings would show if he is able to be 
nonideological, nonpolitical, and straightforward because he is 
required to in the Solicitor General's Office, but they will not show 
us what he wrote.
  What worries me is that a man who has had so many embellishments made 
on his record by his supporters, when his supporters question 
everything from the religion to the biases of those who dare question 
him, it makes one wonder why do they hide this.
  In his hearing testimony, Mr. Estrada did admit ``having made some 
pretty ruthless assessments and the legal views of some [government] 
agencies which I'm glad to say were sometimes vindicated in the courts 
later. . . .
  He did not tell us what those assessments were. He did not say which 
cases vindicated his views. We are left to wonder whether given the 
awesome power of a lifetime appointment as a Federal judge that he 
would act on his own ``ruthless assessments'' or on the facts, the 
litigants, and the law before him.
  His friends and supporters acknowledge that Mr. Estrada has strong 
conservative views. In fact, they acknowledge far more than Mr. Estrada 
himself. His classmate Arturo Corrales, a former Presidential candidate 
in Honduras, said Mr. Estrada's socially conservative views were 
already evidenced when he was a teenager, including his opposition to 
abortion. Other colleagues acknowledge his strong views as well. His 
former law school classmate, Ron Klain, supports him even though Mr. 
Estrada is ``politically conservative'' and ``has passionate views

[[Page S2797]]

about legal policy.'' His former colleague Robert Litt supports Mr. 
Estrada's confirmation, even though he disagrees with his ``legal 
philosophy.''
  They do so, however, with the luxury of knowing what Mr. Estrada's 
views of the Constitution are. That is a luxury that 100 Members of 
this body do not have. Mr. Estrada refused to share those views with 
those entrusted by the Constitution with determining whether he should 
be accorded the power of a lifetime Federal judicial appointment. The 
Senate wants to know before making that decision whether he can be 
trusted to apply the law fairly and impartially without regard to his 
deeply held ideas and views, whatever they may be. It is hard to 
imagine that he would freely cast his views aside and be objective in a 
court when he will not even tell us what they are.
  Members of the Congressional Hispanic Caucus who met with him noted 
that Mr. Estrada ``did not demonstrate a sense of inherent `unfairness' 
or `justice' in cases that have had a great impact on the Hispanic 
community.''

  They noted that, in their view, the ``appointment of a Latino to 
reflect diversity is rendered meaningless unless the nominee can 
demonstrate an understanding of the historical role courts have played 
in the lives of minorities in extending equal protections and rights.''
  Similar concerns have been raised by the Latino Vermonters and many 
others. For example, the Puerto Rican Legal Defense and Education 
Fund--this is a national civil rights organization concerned with 
advancing the civil and human rights of the Latino community, also 
submitted a strong statement of opposition, and they reviewed all his 
available writings.
  They conducted dozens of interviews with individuals who have studied 
and worked with Miguel Estrada, and well as those who lived in the same 
communities with him. They also surveyed news reports and public 
materials concerning Mr. Estrada.
  They also interviewed Mr. Estrada. They noted that ``a number of his 
colleagues have said unequivocally that Mr. Estrada has expressed 
extreme views that they believe to be outside the mainstream of legal 
and political thought.''
  They go further to say that he has ``made strong statements that have 
been interpreted as hostile to defendants' rights, affirmative action, 
and women's rights.''
  They also expressed concern about his temperament. They interviewed 
people who described him as ``arrogant and elitist'' and that he 
``harangues his colleagues'' and ``doesn't listen to other people.'' In 
their interview, Mr. Estrada was not even tempered and was 
``contentious, confrontational, aggressive and even offensive in his 
verbal exchanges'' with them.
  After a thorough review, the Puerto Rican Legal Defense and Education 
Fund concluded that Mr. Estrada was not sufficiently qualified for a 
lifetime seat on the Nation's second highest court, and then the PRLDEF 
said ``that his reportedly extreme views should be disqualifying; that 
he has not had a demonstrated interest in or involvement with the 
organized Hispanic community or Hispanic activities of any; and that he 
lacks the maturity and judicial temperament necessary to be a circuit 
judge.''
  Similarly, the Mexican American Legal Defense and Education Fund, 
MALDEF, and California La Raza Lawyers, CLRL, have expressed ``serious 
concerns about whether Mr. Estrada would fairly review issues that came 
before him. MALDEF and CLRL said:

       [I]t is unclear whether he would be fair to Latino 
     plaintiffs as well as others who would appear before him with 
     claims under the first amendment, the fourth amendment, the 
     fifth amendment, and due process clauses in the U.S. 
     Constitution. Further, we found evidence that suggests he may 
     not serve as a fair and impartial jurist on allegations 
     brought before him in the areas of racial profiling, 
     immigration, and abusive or improper police practices where 
     those practices are adopted under a ``broken window theory'' 
     of law enforcement. We have concerns about whether he would 
     fairly review standing issues for organizations representing 
     minority interests, affirmative action programs, or claims by 
     low-income consumers. We are also unsure, after a careful 
     review of his record, whether he would fairly protect labor 
     rights of immigrant workers or the rights of minority voters 
     under the Voting Rights Act.

  These are leading Latino organizations that say that about him.
  We have heard from numerous chamber of commerce-related organizations 
and Republican organizations expressing support, the same Republican 
organizations able to send five people to Vermont to talk about him. 
They were really silent when other Latinos were nominated to the court 
by President Clinton. There are Latino judges out there; 80 percent of 
the Latinos on the courts of appeals now were appointed by President 
Clinton. There actually would have been several more, but they were 
blocked by the Republicans. They were not allowed to have hearings, 
they were not allowed to have votes, and none of these Republican 
organizations that are suddenly concerned about the plight of Latinos 
came forward when one after another was blocked by the Republicans 
during the Clinton administration.
  The spokesperson for the newly minted Coalition for a Fair 
Judiciary--I love these terms--explains that organization is made up of 
70 or more conservative organizations, arose from a similar group 
called Americans for Ashcroft and is supportive of President Bush's 
judicial nominees because of their ideology.
  We are not allowed to question ideology, but the supporters say 
because of their ideology they should be confirmed.
  Diversity is one of the great strengths of our Nation, and that 
diversity and background should be reflected in our Federal courts. I 
only wish some of these same conservative organizations suddenly 
available today were interested in diversity when President Clinton's 
minority women nominees were being delayed and derailed by Senate 
Republicans between 1996 and 2001. They were nowhere to be found or 
worse yet, arguing for delay, obstruction and defeat of those qualified 
Hispanic, African-American and female nominees.

  Race or ethnicity and gender are, of course, no substitutes for the 
wisdom, experience, fairness, and impartiality that qualify someone to 
be a federal judge entrusted with a lifetime appointment. White men 
should get no presumption of competence or entitlement. Hispanic and 
African American men and women should not be presumed to be 
incompetent. All nominees should be treated fairly.
  When one gets down to the bottom line, the burden of proof of 
suitability for lifetime appointment rests on the nominee and the 
Administration. We must carefully examine the records of all nominees 
to high offices, but we know the benefits of diversity and how it 
contributes to achieving and improving justice in America. As Antonia 
Hernandez wrote in the Wall Street Journal: ``The fact that a nominee 
is Latino should not be a shield from full inquiry, particularly when a 
nominee's record is sparse, as in Mr. Estrada's case. It is vital to 
know more about a nominee's philosophies for interpreting and applying 
the Constitution and the laws.'' Members of the Congressional Hispanic 
Caucus has said much the same thing.
  Our freedoms are the fruit of too much sacrifice to fail to assure 
ourselves that the judges we vote to confirm have a commitment to 
upholding the Constitution, following precedent, and listening to 
claims without fear or favor. When a President is nominating 
individuals to tip the balance, stack the deck, or to pack the courts 
with ideologues, the Senate would be abdicating its responsibilities to 
ignore the very criteria that led to selection of such a nominee.
  So, when some organizations come forward and say they are supporting 
a nominee because of their ideology, they cannot at the same time say 
we should not ask about that ideology. When the supporters come forward 
and say his brilliant writings in the Solicitor General's Office 
qualify him to be a judge, they cannot then in the next breath say, but 
you cannot see what those brilliant writings were, you have to take our 
word for it.
  Under our Founders' design, the political branches share the power of 
appointment: the President has the power to nominate or propose judges, 
but the Senate has a corresponding power to confirm or reject those 
nominations. That is one of the ingenious checks and balances of our 
federal system. If a nominee's record, or lack of a record, raises 
doubts, these are matters for

[[Page S2798]]

thorough scrutiny by the Senate, which is entrusted to review all of 
the information and materials relevant to a nominee's record relating 
to fairness, impartiality, bias, experience, or other matters.
  Unlike elected officials, these are lifetime jobs, so the Senate 
Judiciary Committee must undertake an inquiry to be assured that a 
nominee should be confirmed to high office. When there is no judicial 
experience to look to, it is all the more critical that the Committee 
inquire fully into a nominee's experience, record, views and 
understanding of our fundamental rights.
  Now, Chairman Hatch is saying precisely the same thing I am saying. 
The difference is, he said this speaking to the Federalist Society. He 
said this when President Clinton was nominating the judges, not when 
President Bush was nominating them.
  In 1997, he told the Utah Chapter of the Federalist Society that 
``the Senate can and should do what it can to ascertain the 
jurisprudential views a nominee will bring to the bench in order to 
prevent the confirmation of those who are likely to be judicial 
activists. Determining who will become activists is not easy since many 
of President Clinton's nominees tend to have limited paper trails . . . 
. Determining which of President Clinton's nominees will become 
activists is complicated and it will require the Senate to be more 
diligent and extensive in its questioning of nominees' jurisprudential 
views.'' In the case of Mr. Estrada, however, the nominee has refused 
to provide us many answers at all about the types of jurisprudential 
views referenced by Chairman Hatch.
  Sauce for the goose, Mr. Chairman, sauce for the gander. You were 
right then. I take the same position today. I am right.
  The difference is, President Clinton's nominees turned over those 
papers.
  Most Americans want nominees who will be fair and impartial judges. 
An independent judiciary is the people's bulwark against a loss of 
their freedoms and rights. I think the rights at stake are simply too 
important to take a chance on a lifetime appointment to this high 
court, to make a decision we cannot reverse, if Mr. Estrada were to 
turn out to be the activist and ideologues that many of those who have 
heard him speak candidly. What little record we have calls into 
question whether he would be neutral referee or an advocate and 
activist from the bench.
  In closing, he had a job in which he was required by law, by custom, 
by practice, to be impartial and nonideological. He wrote extensively 
in that taxpayer-funded job where he was required to be nonideological, 
impartial, straightforward, but he will not show what he wrote.
  We are told by the administration, trust us. We have looked at it. He 
is impartial. We say, then let us see it. Ah, you say, well, then you 
are a racist, or you have a religious bias, or whatever might be the 
reason of the day. We have heard so many misstatements from the other 
side about Mr. Estrada, let's go to the one thing that can be looked at 
objectively: His writings.
  It can be done. A distinguished member of the other party has 
suggested that it be done. The White House ought to listen to him and 
they should stop saying opposition to the nomination of Miguel Estrada 
is anti-Hispanic. We have risen in this Chamber day after day to 
demonstrate why this is false, referring to, among other things, the 
numbers of well-known and well-respected Latino organizations who also 
oppose this nomination.
  We have introduced into the record letters from organizations such as 
the Mexican American Legal Defense Fund, opposed to Mr. Estrada; the 
Southwest Voter Registration and Education Project, opposed to Mr. 
Estrada; the Puerto Rican Legal Defense and Education Fund, opposed to 
Mr. Estrada; a letter from 52 Latino labor leaders, opposed to Mr. 
Estrada; the Puerto Rican Bar Association of Illinois, opposed to Mr. 
Estrada. Each one of these explain their thoughtful and principled 
opposition to Mr. Estrada's nomination.
  Today we received another letter from another Latino organization 
expressing its opposition to the Estrada nomination. The Hispanic Bar 
Association of Pennsylvania has written that it, too, opposes Mr. 
Estrada's confirmation to the U.S. Court of Appeals for the DC Circuit. 
The Hispanic Bar Association of Pennsylvania did not come to this 
decision lightly.

  As the letter says, they created a special committee on judicial 
nominations. They developed a process to review candidates for the 
Federal judiciary. They examined Mr. Estrada's record. They considered 
a variety of factors in their evaluation. They even asked Mr. Estrada 
to come meet with them. In the end, they conclude they must oppose him. 
I respect what must have been a difficult decision, but I think letters 
from the Hispanic Bar Association of Pennsylvania and all these other 
Latino organizations in opposition to him show that the opposition is 
not just because he is Hispanic.
  I ask unanimous consent that the letter be made a part of the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                      Hispanic Bar


                                  Association of Pennsylvania,

                               Philadelphia, PA, January 28, 2003.
     Re nomination of Miguel A. Estrada.

     Hon. Patrick J. Leahy,
     U.S. Senate Committee on the Judiciary, Dirksen Senate Office 
         Building, Washington, DC.
       Dear Honorable Sir: I am writing on behalf of the Hispanic 
     Bar Association of Pennsylvania (HBA) to inform you that we 
     oppose the appointment of Miguel Angel Estrada to the United 
     States Court of Appeals for the District of Columbia Circuit. 
     For the reasons that follow, we urge you to vote against Mr. 
     Estrada's confirmation.
       The HBA recognizes that Mr. Estrada's nomination was 
     pending for some time prior to his hearing before the Senate 
     Judiciary Committee on September 26, 2002. Nevertheless, it 
     was the Hispanic National Bar Association's public 
     endorsement of this candidate that prompted our organization 
     to initiate its own evaluation of Mr. Estrada.
       To that end, the HBA created a Special Committee on 
     Judicial Nominations to develop a process for reviewing and 
     potentially endorsing not only Mr. Estrada, but also all 
     future candidates for the Judiciary. As part of the process, 
     we contacted Mr. Estrada, asked to interview him, and invited 
     him as a guest of the HBA to meet the members of our 
     organization. Mr. Estrada, for stated good cause, declined 
     our invitations. Notwithstanding Mr. Estrada's non-
     participation, the Committee completed its work and reported 
     its findings to the HBA membership on November 14, 2002. 
     Following the Committee's recommendation, the membership 
     voted not to support Mr. Estrada's nomination.
       The HBA recognizes and applauds Mr. Estrada for his 
     outstanding professional and personal achievements. Indeed, 
     the HBA adopts the American Bar Association's rating of 
     ``well-qualified'' with regard to Mr. Estrada's professional 
     competence and integrity. However, employing the ABA's seven 
     established criteria for evaluating judicial temperament, the 
     HBA finds Mr. Estrada to be lacking. Our organization could 
     find no evidence that Mr. Estrada has demonstrated the 
     judicial temperament required by a nominee for such an 
     important and sensitive judicial position. In addition, the 
     HBA seeks to endorse individuals who have ``demonstrated 
     awareness and sensitivity to minority, particularly Hispanic 
     concerns.'' Sadly, we also could find no evidence of this 
     quality in Mr. Estrada.
       The HBA shares the concern of the President of the 
     Judiciary Committee that only the best-qualified and most 
     suitable individuals be appointed to the federal bench. 
     Furthermore, the HBA appreciates the efforts, as evidenced by 
     Mr. Estrada's nomination, to consider and promote members of 
     the rapidly growing Latino population to positions of high 
     visibility and importance. However, we believe that there are 
     a myriad of other well-qualified Latinos whose integrity, 
     professional competence, and judicial temperament would be 
     beyond reproach and who would therefore be better suited for 
     this position.
       The Hispanic Bar Association of Pennsylvania regrets that 
     it cannot support the nomination of Mr. Estrada to the United 
     States Court of Appeals for the District of Columbia Circuit. 
     We respectfully request that you oppose the confirmation of 
     his nomination.
           Respectfully submitted,
                                        Arlene Rivera Finkelstein,
                                                        President.

  Mr. LEAHY. I see my good friend, the distinguished chairman, on the 
floor. I hope he has had a chance to go out and get a bite to eat, as 
we have been doing. He certainly deserves it.
  (The remarks of Mr. Leahy pertaining to the introduction of S. 459 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. LEAHY. I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I ask unanimous consent that the distinguished Senator 
from

[[Page S2799]]

Ohio speak next for 15 minutes, the distinguished Senator from Oklahoma 
speak after that for 5 minutes, and then I be yielded the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Ohio.
  Mr. VOINOVICH. Mr. President, I rise today to speak on behalf of the 
nomination of Miguel Estrada to the DC Circuit Court of Appeals. I had 
intended to finish my remarks this evening by reading an editorial from 
the Washington Post. I have listened patiently to the distinguished 
Senator from Vermont, and I would like very much to quote from the Post 
editorial because it is looked upon as one of the most objective papers 
in the United States of America. Some of my colleagues think it has a 
liberal tilt to its editorial policies. This is a February 18th 
editorial from the Washington Post:

       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 to 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, 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.

  We all know of Mr. Estrada's illustrious background. I will not 
rehash his stellar credentials. We have already heard many of our 
colleagues come to the floor and tell what I refer to as the ``only in 
America'' story about Estrada's unprecedented rise from his home in 
Honduras to his current position as a partner with one of Washington's 
distinguished law firms.
  My colleagues on the other side of the aisle have leveled many 
complaints against Mr. Estrada, including that he has not had enough 
judicial experience. I note the following: 26 circuit judges had no 
judicial experience when they were nominated by President Clinton; they 
were all confirmed. Of the 108 individuals who have served on the 
Supreme Court, 43 had no judicial experience at all. In fact, in the 
entire history of the Supreme Court of the United States, 8 of the 16 
chief justices in America's history had no prior judicial experience. 
Of those justices appointed in the last 50 years, Justices William 
Rehnquist, Lewis Powell, Jr., Abe Fortas, Arthur Goldberg, and Byron 
White had no prior judicial experience when appointed to the Supreme 
Court.
  On the circuit court to which Mr. Estrada has been nominated, five of 
the eight judges had no previous judicial experience before taking the 
bench, including two Clinton nominees and one Carter nominee.
  On the other hand, Miguel Estrada has a combined level of appellate 
and trial experience that far exceeds that of the average court of 
appeals nominee. Mr. Estrada's experience even exceeds that of many 
Supreme Court nominees. He has argued 15 cases before the U.S. Supreme 
Court, both criminal and civil. He has tried 10 cases as a prosecutor, 
argued 7 cases before the U.S. court of appeals for the second 
district, as assistant U.S. attorney for the southern district of New 
York.
  I emphasize to my colleagues the American Bar Association has rated 
Estrada well qualified, a rating that my colleagues on the other side 
of the aisle have called the gold standard. I heard before: Your 
nominees, Mr. President, are going to have to reach the gold standard 
of the American Bar Association. Judge Estrada has met the gold 
standard of the American Bar Association.
  My colleagues have also launched criticism at Mr. Estrada for not 
turning over documents--I heard that this evening several times--that 
he worked on while he was employed by the Office of the Solicitor 
General. What they do not mention is that these documents are 
confidential. These confidential memos were not requested of the seven 
previous nominees to the court of appeals who had worked in the 
Solicitor General's Office.
  In addition, and I think this is very important, every living 
Solicitor General, both Democrat and Republican, signed a joint letter 
to former Judiciary Committee chairman, Senator Leahy, stating that 
fulfilling this request would have a debilitating effect on the ability 
of the Department of Justice to represent the United States before the 
Supreme Court.
  Mr. VOINOVICH. This is a very bad time to delay the appointment of 
judicial nominees. Our Federal courts are in crisis. The U.S. courts of 
appeals are currently 15 percent vacant, even as case filings in those 
courts reached an all-time high in 2002. Chief Justice Rehnquist has 
warned that this high vacancy level, coupled with the rising caseload, 
threatens the proper functioning of the Federal courts.
  Currently, there are 14 courts of appeals pending nominees, 12 of 
whom were nominated in 2001 and have been waiting for over a year for a 
vote in the Senate. The most egregious example is the Sixth Circuit, 
which includes Ohio, where 6 of the 16 seats are open and classified as 
judicial emergencies. Of these six vacancies, two, Jeff Sutton and 
Deborah Cook, have been pending since May 2001, nearly 2 years, and 
three others have been pending since November 2001, over 2 years. The 
fact is, we do have a crisis in the judiciary in the United States of 
America.
  Now, let's look at the record. When Senator Hatch was chairman during 
the Clinton administration, he considered more than one circuit nominee 
at 11 different hearings. But not once during the 107th Congress did 
the Democrats hold a hearing on more than one circuit court nominee at 
a time. The result is we fell behind in the confirmation of circuit 
nominees.
  Presidents Clinton, Reagan and the former President Bush all received 
confirmations for their first 11 circuit nominees well within 1 year of 
the nominations. This is in stark contrast with the treatment afforded 
to President George W. Bush. Only 3 of his first 11 circuit nominees 
were confirmed within 1 year of their nomination. And only 5--fewer 
than half--were confirmed during the entire 107th Congress. That's 
terrible.
  My friend Senator Hatch is an extraordinary man. After so much 
repetition of the same arguments, I'm amazed that he can even stand up.
  As Senator Hatch has highlighted in the past, during Democrat control 
of the Senate in 2001-2002, only 17 Bush circuit court nominees reached 
the floor for votes. In three of the cases in which they did go to the 
floor--the nominations of Julia Smith Gibbons, Richard B. Clifton, and 
Lavenski R. Smith--cloture motions were filed and the motions easily 
carried.
  However, and this is very important, none of those cloture votes was 
in response to a genuine effort to filibuster a nominee. Rather, 
cloture petitions were filed as a Senate time-management device.

[[Page S2800]]

  If the Estrada nomination is permanently blocked by a filibuster, the 
political baseline shifts forever.
  To understand just how extraordinary the current situation is, one 
only needs to examine the Senate's record of judicial confirmations. 
The first filibuster of a judicial nominee that resulted in a cloture 
vote was in 1968. Since then, the Senate has confirmed approximately 
1,600 judicial nominations--the vast majority of these, nearly 1,500, 
occurred without even a roll call vote, as most are confirmed by 
unanimous consent.
  Indeed, of those 1,600 judicial nominations confirmed by the Senate 
since 1968, only 14 were subject to a cloture vote. And with the 
exception of the bipartisan 1968 filibuster of Abe Fortas' nomination 
to be Chief Justice of the United States, the Senate has never blocked 
by filibuster a judicial nominee to any court--Never.
  The rejection of Abe Fortas to serve as Chief Justice of the United 
States marked the first and only time the Senate has rejected a 
President's judicial nominee by way of a filibuster. Yet Miguel Estrada 
presents none of the concerns that caused a bipartisan coalition of 
Senators to block Justice Fortas' elevation to chief justice.
  Given the Senate's historical unwillingness to filibuster nominees--
even Supreme Court nominees--it is not surprising that the Senate has 
never blocked by filibuster a nominee to any lower court. Furthermore, 
the Senate has never blocked--by a partisan filibuster--any judicial 
nominee. As I noted, the only rejection-by-filibuster was the case of 
Justice Fortas, which was bipartisan. There is no precedent in the 
Senate of a filibuster conducted solely by one Party to deny the 
President his judicial nominee.
  The stakes here are much greater than the fate of a single judicial 
nominee. At issue is whether the Senate should reinterpret its 
constitutional advise and consent obligation to require 60 rather than 
51 votes to confirm a judicial nominee. This is a position the Senate 
has never taken in the context of lower court nominees, and one which 
Republicans have avoided.
  To adopt a new standard would fundamentally alter the balance of 
power between the administration and the Senate in the judicial 
confirmation process. It also would seriously erode the comity that has 
existed between the two branches in the past.
  In effect, we're playing games with the administration of justice, 
acting without regard for the problems of the Judiciary. If Senators 
filibuster Mr. Estrada's nomination to the DC Circuit, and if that 
filibuster results in the rejection of the nomination, Democrats will 
have forced a permanent change to the political and constitutional 
landscape. This in essence, would create a completely new process and 
would, in effect, allow Senators to deny any judicial nominee their 
right to a vote.
  Due to the numerous delays in the Estrada vote, the crisis in the 
Federal courts continues and the Senate can't attend to our pressing 
legislative business. Our country has serious problems today and they 
require serious and thoughtful consideration in the Senate. The 
stalling games that are being played here are really hurting the 
judicial process and to a larger and greater extent the Nation itself.
  While we wait for the minority to make up its mind, we cannot 
accomplish any meaningful debate on the country's pressing problems. 
These are hard times for Americans and my constituents ask me: Do you 
guys in Washington get it? Do you get it? Do you understand what is 
going on?
  We are involved in a war on terrorism abroad and at home. The economy 
is sputtering. The President of the United States has more on his plate 
than perhaps any President in my memory. Some say he has more on his 
plate than FDR, some say Abraham Lincoln. Our constituents believe we 
are behaving like Nero, fiddling around while Rome was burning. They 
continue to ask, don't you get it? Is the Emperor wearing any clothes?
  All of us in this body have priority concerns, yet during this 
stalemate, no one's legislation is moving ahead. Consideration of 
urgent matters that I would like to be addressed, such as prescription 
drugs/Medicare reform, medical lawsuit abuse reform, asbestos 
litigation reform, human capital, the energy bill at a time when the 
cost of natural gas is skyrocketing, or the accelerating deficit.
  I know I am not the only Senator who is concerned about these issues 
and I know some of my colleagues have other priority concerns. At 
present, no one is winning anything by this stalemate and the important 
concerns of the American people are being held hostage.
  This is bigger than a delayed vote on Miguel Estrada. As U.S. 
Senators we need to act like adults. We need to come together and 
create a unanimous consent agreement on how we will handle the approval 
of judges from now on. We have to find a way to reach agreement.
  If my colleagues on the other side of the aisle persist in opposing 
Mr. Estrada, they will have a hard time explaining to their 
constituents why they voted against him since he has met, and I dare 
say surpassed, the ``gold standard'' they asked for by the American Bar 
Association. They also would be hard-pressed to explain why his 
nomination has been held up for so long without a vote.
  I've been receiving letters from my constituents who think the U.S. 
Senate is holding up this vote because Mr. Estrada is Hispanic. My 
Hispanic constituents think he is being used as the whipping boy and 
they are furious. I don't think some of my colleagues realize what this 
means to a minority community. In Ohio, I appointed Jose Feliciano as 
the first Hispanic police commissioner because he was the best 
candidate, but the Hispanic community was very proud and excited. The 
Hispanic community was so proud that one of their boys made it. Can you 
think of what an impact it had on the young people that a Hispanic made 
it to be the police commissioner.

  I remember when I appointed Ken Blackwell to be the treasurer of the 
State of Ohio, the first African American to serve as the treasurer of 
the State of Ohio, a constitutional office, and how much it meant to 
African Americans in our State that someone could hold a constitutional 
office. They had an inspiration. I came up during the years of Carl 
Stokes, the first African American mayor of the city of Cleveland, and 
I remember the impact it had on young people in Cleveland and all over 
America that an African American could be a mayor of a major city. I 
remember Frank Lousche, who was the mayor and Governor of the State of 
Ohio, and Senator, who was a Slovenian--when I was 12 years old, how 
much it meant to me to see Frank Lousche, Slovenian, get to be mayor, 
and then Governor. By that time he wasn't even a Senator. But it 
inspired me and other people of my nationality to say if he can do it, 
I can do it.
  There is more to it here. In this case I think my colleagues should 
understand, particularly my colleagues on the other side of the aisle, 
this is a good man. He has the qualifications. There is not any reason 
why we should not allow a vote on this particularly wonderful human 
being who will make a difference if he has a chance to serve on the 
bench here in the DC District.
  In addition to that, it will mean so much to Hispanics all over the 
United States that one of our boys made it.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Oklahoma has 5 minutes.
  Mr. INHOFE. Mr. President, I can relate to the remarks of the Senator 
from Ohio. He and I had the honor of sharing the same position of mayor 
of a major city. It happens I started--maybe you did--the first 
Hispanic commissioner in the city of Tulsa. We had a sister city in 
Mexico, Ciudad de San Luis Potosi. They would come up there once a year 
for this big exchange program. I can remember standing there in front 
of all of our citizens, our Hispanic citizens of Tulsa, saying: Como 
Acalde de la ciudad de Tulsa, yo quiero decir Bien venidos, bien 
venidos a la ciudad. Creemos la Ciudad de San Luis Potosi es la ciudad 
mas hermosa de todas las ciudades del mundo.
  Their faces shined and they realized we were participating in their 
culture and they in ours. They asked me the question last week, and I 
asked the distinguished Senator from Utah, What do we say to them when 
we go back and talk to them? Why won't they give us a chance, give one 
Hispanic a chance at a high office?
  They asked me that question and I did not have a very good answer for

[[Page S2801]]

them. But they said, You know, there are a lot of us out here who 
really do care. They said, Why don't you kind of visit with us a little 
bit.
  Muchos Hispanos estan eschuchando ahora. . . Y Yo Quiero Decir.
  Por desgracia, hay personas en el senado que no quieren escuchar a ni 
una palabra de la verdad.
  Yo invito a la comunidad hispana para llamar a sus senadores para 
insistir en los derechos de Miguel Estrada y en la confirmacion de 
Miguel Estrada como juez.
  Llame los senadores, todos los senadores, especialmente los 
senadores, de los estados de CA, FL, NY, LA, AR y NM. Llame ahora y 
preguntalos, <> Es su mision. Llame 
ahora! Los Estados Unidos necesitan un hispano . . . y eso hispano es 
Miguel Estrada.
  Vaya, vaya a llamar imediamente. Los hispanos quien estan escuchando 
ahora pueden hacer la diferencia.
  Gracias Mis Amigos.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Warner). Under the previous order, the 
Senator from Utah has the floor.
  Mr. HATCH. Mr. President, I have been here 27 years. I have been on 
the Judiciary Committee 27 years. I have literally seen 1,500, 1,600 
judges confirmed--most all of them without even a debate, just by 
unanimous consent. I have seen very few judges given a rough time and 
hardly anybody given the rough time that Miguel Estrada is being given 
here on the floor. I have never seen anybody in the history of the 
Senate--in all of my studies of the history the Senate--filibuster a 
circuit court of appeals nominee--never, not once. I have never seen 
even where there have been cloture votes for management purposes or 
whatever else--certainly not a filibuster purpose--I have never seen a 
circuit court of appeals nominee pulled down because of a filibuster--
never.
  Why this double standard? Why is Miguel Estrada, with all his 
credentials--and on the other side of the aisle they admit he has 
exceptional credentials, including their gold standard, the American 
Bar Association's most well qualified standard, the highest rating 
anybody can possibly have--why is it that this double standard is being 
used against this Hispanic nominee to one of the most important courts 
in the country, this Hispanic nominee who is by all intents and 
purposes and by all measure the embodiment of the American dream?
  Mr. FRIST. Mr. President, will the Senator yield for a question?
  Mr. HATCH. I would be delighted to without losing my right to the 
floor.
  Mr. FRIST. Is the Senator from Utah aware of any argument against the 
confirmation of Mr. Estrada that he does not have the academic 
credentials to suggest that he will be a fine judge?

  Mr. HATCH. Of course not. They could not. Mr. Estrada graduated magna 
cum laude from Columbia University after coming from Honduras. He was 4 
years old when his parents divorced in Honduras. He was 17 when he came 
to this country, speaking very little English. He taught himself 
English. He graduated magna cum laude from Columbia University, and 
then he graduated magna cum laude from Harvard where he was an editor 
of the Law Review--one of the highest positions you could have in the 
law school. Of course not. There is no way they can say he doesn't have 
the academic credentials to do this job.
  Mr. FRIST. Will the Senator yield for a question?
  Mr. HATCH. Yes, without losing my right to the floor.
  Mr. FRIST. Mr. President, the Senator from Utah has been reviewing 
the records of judicial nominees for 27 years. Does the Senator know of 
many lawyers who have argued 15 cases before the Supreme Court, as has 
Mr. Estrada?
  Mr. HATCH. Of course not. Few lawyers have. Few nominees for 
judgeships have in the history of this country. That is what makes me 
so livid--to see lesser legal minds writing partisan letters suggesting 
he is not a qualified nominee. It drives me nuts, to be honest with 
you. Few lawyers in America have argued 1 case before the Supreme 
Court, let alone 15.
  By the way, Miguel Estrada has a handicap. He has a disability. He 
has a speech impediment. Yet he has risen to the top of the legal 
profession in appellate advocacy and oral advocacy with a speech 
impediment. Nobody can match that.
  Mr. FRIST. Mr. President, will the chairman of the Judiciary 
Committee yield for a question?
  Mr. HATCH. Yes, without losing my right to the floor.
  Mr. FRIST. We know in fact that the American Bar Association has 
given Mr. Estrada its highest rating--in fact, unanimously well 
qualified. Does the Senator know if the Senate has ever obstructed a 
vote on any nominee recommended to the Senate by the Judiciary 
Committee who has received an ABA rating of unanimously well qualified?
  Mr. HATCH. I do not recall anyone who has had this difficulty--in 
fact, anyone with that type of a rating who has not gone through the 
Senate once reported by the Judiciary Committee, and the fact that the 
Democrats are doing this now is outrageous.
  Mr. FRIST. Will the Senator yield for a question?
  Mr. HATCH. Yes, without losing my right to the floor.
  Mr. FRIST. Will the Senator agree that the opposition mounted against 
Mr. Estrada is not about his qualifications?
  Mr. HATCH. No. How could it be?
  Mr. FRIST. If the Senator will yield for a question----
  Mr. HATCH. Without losing my right to the floor.
  Mr. FRIST. Is the Senator aware that it has been suggested a double 
standard is being applied to this nominee with requests being made that 
have never been applied to any other nominee? Does the Senator have any 
explanation for this?
  Mr. HATCH. I agree with the distinguished majority leader that there 
is a double standard being applied to Miguel Estrada. I don't want to 
particularly conjecture at this point as to the motive. But a double 
standard is generally being applied, and it is not fair.
  Mr. FRIST. Will the Senator yield for a question?
  Mr. HATCH. Without losing my right to the floor.
  Mr. FRIST. The chairman of the Judiciary Committee is a 
constitutional law scholar and knows the rules and the practices of the 
Senate. My question is, Has he ever seen a filibuster used against an 
appellate court nominee?

  Mr. HATCH. Not a true filibuster. There have been cloture votes as a 
Senate management device but not a true filibuster. There has never 
been a true filibuster used against a circuit court of appeals nominee, 
no, and certainly not against a circuit court of appeals nominee to the 
Circuit Court of Appeals for the District of Columbia.
  Mr. FRIST. Will the Senator yield for a question?
  Mr. HATCH. Yes, without losing my right to the floor.
  Mr. FRIST. Does the Senator from Utah share my concern that what they 
are doing in filibustering Miguel Estrada is harmful to the institution 
of the Senate and its advise and consent responsibilities?
  Mr. HATCH. I have never been more concerned. We are in danger of 
actually breaking the system. We are in danger of doing lasting harm to 
the Senate, its procedures, and to the President of the United States, 
and to the judiciary; to the executive branch because, if this 
filibuster goes through, that means that on controversial nominees--and 
my colleagues on the other side treated all of the Bush circuit court 
nominees as controversial--that means you have to have 60 votes. That 
would apply to both sides of the floor should they get the Presidency. 
It is a very dangerous thing and something we just definitely should 
not allow to come to fruition.
  Mr. FRIST. Will the Senator yield for one last question?
  Mr. HATCH. Without losing my right to the floor.
  Mr. FRIST. Mr. President, the Washington Post has repeatedly and 
emphatically called on the Democratic leadership to stop these demands 
for confidential memoranda. I was wondering if the Senator had seen the 
Washington Post editorial from last September that said, ``Seeking Mr. 
Estrada's work product as a government lawyer is beyond any reasonable 
inquiry into what sort of judge he would be. Nor is it fair to reject 
someone as a judge because that person's decision to practice law 
rather than write

[[Page S2802]]

articles or engage in politics makes his views more opaque.''
  Does the Senator agree that these demands go beyond any reasonable 
inquiry and are instead a gimmick and an attempt to prevent this 
nominee from ever getting a vote?
  Mr. HATCH. Absolutely. The tactic is to demand documents that they 
know the administration cannot give because the precedent would be so 
earthshaking because these are privileged documents, and then 
filibustering and claiming they are filibustering because they can't 
get the documents. And when they don't get them--it is just typical of 
what they have been doing--they flaunt what really is proper procedure.

  Then they have not only asked for documents but his record, Miguel 
Estrada's recommendations while at the Solicitor General's Office for 
appeals, certiorari matters, and amicus curiae matters.
  Never in the history of this country has anyone given those documents 
out of the executive branch to the Senate or to anybody else. And they 
should not, because it would deter and affect and, in many respects, 
destroy the work of the Solicitor General, the attorney for the people 
of this country.
  Mr. DeWINE. Mr. President, will the Senator from Utah yield for a 
question?
  Mr. HATCH. Yes, without losing my right to the floor.
  Mr. DeWINE. It is my understanding there is substantial opportunity, 
following hearings, to submit followup questions in writing. I wonder 
if the Senator from Utah would tell me whether that is correct or not.
  Mr. HATCH. Absolutely. Not only did they hold one of the longest 
hearings in history for a circuit court appeals nominee--conducted by 
them, which they said was fair, where they had the privilege of asking 
every question they wanted or even extending the hearings if they did 
not believe they got answers to those questions--but afterwards they 
had a right to submit written questions.
  And, by the way, only two people did, the distinguished Senator from 
Illinois and the distinguished Senator from Massachusetts, Mr. Durbin 
and Mr. Kennedy.
  By the way, I do not believe Senator Durbin was even there during the 
hearings to ask questions. And yet I have seen, time after time, the 
distinguished Senator from Illinois take the floor and talk about the 
nonanswers that were supposedly given.
  I refer all of my colleagues to the speech made earlier by the 
distinguished Senator from Tennessee Senator Alexander. He blew that 
contention that Miguel Estrada did not answer these questions into 
oblivion. I recommend everybody in this country read that speech 
because he actually showed the A-plus answers that Miguel Estrada gave 
to Democrat and Republican questions. And they were thorough. They were 
answers that would make anybody proud. They were answers that any 
judicial nominee would be proud to do. And, frankly, he answered them 
better than almost any judicial nominees I have seen in the last 27 
years.
  Mr. DeWINE. Mr. President, will the Senator from Utah yield for an 
additional question?
  Mr. HATCH. Yes, without losing my right to the floor.
  Mr. DeWINE. So would the Senator from Utah agree, if a Senator 
thought that he or she did not have enough information at the hearing 
about Mr. Estrada, or had additional questions that he or she wanted to 
have answered, they could have submitted additional questions?
  Mr. HATCH. No question about it. They were given the right to submit 
additional written questions, and only two Senators did.
  By the way, the administration has even gone further than that. They 
said: Look, we will present Miguel Estrada to any Democrat Senator who 
wants to ask him questions in their personal office on a personal 
basis. They have gone to great lengths for this wonderful nominee.
  Why is it--I ask my distinguished friend and all others who are 
listening--that this Hispanic nominee is being given the business like 
he is? Why is it that we have this double standard? It is one of the 
most difficult things for me to see. It is one of the most difficult 
things to understand.

  Mr. DeWINE. Mr. President, I say to my distinguished colleague from 
Utah, I wonder if you would yield for an additional question.
  Mr. HATCH. Without losing my right to the floor.
  Mr. DeWINE. I want to make sure I understand. I ask my colleague 
whether or not Mr. Estrada did, in fact, answer the questions?
  Mr. HATCH. He answered the questions. Now, he may not have answered 
them the way some of my colleagues wanted him to. It was apparent they 
were trying to get him ensnarled. It reminds me of the Biblical days 
when the pharisees would try to ensnarl Jesus Christ. They would ask 
these questions, trying to ensnarl Him and make Him look ridiculous in 
front of the people.
  It was almost that bad in committee. He answered every question. 
Unfortunately, for them, he answered them precisely the way most 
Democrat nominees did; and that is, instead of going into how he would 
rule on matters that would come before him later in the court, he 
basically said: I will obey the law. I will sustain the law. I will 
follow the law regardless of my own personal views.
  That is what the Democrat nominees have said. And that is a correct 
answer. And it is a very good answer. His answers were more literate, 
more scholarly, more persuasive, in many of the questions that were 
asked than I have seen in most nominees.
  Again, I ask, why the double standard in this case? Why don't we 
recognize how great this young man is and allow him the same privileges 
that we have given to countless Democrats during the Clinton years when 
we confirmed 377 Clinton nominees to the Federal court--the second all-
time highest confirmation rate in history, only 5 below the highest, 
and that was Ronald Reagan, who had 382?
  Mr. DeWINE. Mr. President, will my distinguished colleague from Utah 
yield for an additional question?
  Mr. HATCH. Without losing my right to the floor.
  Mr. DeWINE. It is my understanding that the ABA conducted its own 
very thorough investigation of Mr. Estrada before they decided to give 
him their highest possible rating, well qualified.
  Could the Senator from Utah tell me whether or not that is correct?
  Mr. HATCH. That is correct.
  Mr. DeWINE. Mr. President, I wonder if my colleague will yield for an 
additional question.
  Mr. HATCH. Without losing my right to the floor.
  Mr. DeWINE. Now, the ABA has expressly stated it does not evaluate a 
nominee's ideology because it ``restricts its evaluation to issues 
bearing on professional qualifications.'' But the ABA does investigate 
a nominee's openmindedness and freedom from bias.
  Could the Senator from Utah tell me whether it seems unreasonable to 
believe that the ABA would have unanimously given Mr. Estrada its 
highest rating if it thought he would use his judicial role to advance 
his personal ideology?
  Mr. HATCH. There is no way they would have, no way in this world. In 
fact, there are plenty of Democrats, and I might add, partisan 
Democrats, who do not act in a partisan way--and neither do the 
Republicans--on that standing committee. In fact, if I recall it 
correctly, there are more Democrats on the committee than Republicans. 
And they all unanimously gave Miguel Estrada the highest rating that 
the American Bar Association can possibly give.

  Keep in mind, my colleagues on the other side of the floor said that 
the American Bar Association rating is the gold standard, it is the 
thing that makes the difference as to why they will vote for people. 
And ``qualified'' is normally enough to vote for anybody. Here is a man 
who has been rated unanimously ``well qualified'' by both Democrats and 
Republicans on the standing committee, who I think are doing a good job 
on that committee.
  I have been critical of the committee in the past, but I think during 
the last few years of the Clinton administration, and up to today, that 
they have been doing a good job.
  Mr. DeWINE. Mr. President, I wonder if my distinguished colleague 
will yield for an additional question.
  Mr. HATCH. Without losing my right to the floor.

[[Page S2803]]

  Mr. DeWINE. Can the Senator from Utah tell me whether I am correct in 
understanding that, despite the assurances of those who have worked 
with Mr. Estrada, and the unanimous affirmation of the ABA, some of our 
colleagues continue to be unconvinced that Mr. Estrada would be an 
unbiased interpreter of the law?
  Mr. HATCH. I do not see how any colleague could remain unconvinced of 
that. He will be. He will follow the law. He has said he will follow 
the law. He said he would uphold precedent. He said he would do what is 
right regardless of his own personal beliefs.
  That is all you can ask of any of these nominees. And he has answered 
those questions absolutely accurately, the way the Clinton nominees 
answered those questions.
  Why--again, might I ask--is there a double standard with regard to 
this Hispanic nominee? Why is there? I cannot see any reason for it.
  Mr. DeWINE. Mr. President, I wonder if my colleague will yield for 
one additional question.
  Mr. HATCH. Without losing my right to the floor.
  Mr. DeWINE. I have really tried to understand where some of our 
colleagues are coming from with their adamant opposition to this 
extraordinarily well-qualified nominee. The most common criticism has 
been that there is some concern about whether they know what his 
personal views are.
  I wonder if the Senator from Utah could address that and perhaps 
remind us again of what Mr. Estrada's supervisors at the U.S. Solicitor 
General's Office have said about Mr. Estrada's ability to separate his 
personal views from his analysis of the law.
  Mr. HATCH. Well, he worked for both the Clinton administration and a 
Republican administration. And he got the highest raves and performance 
evaluations by both administrations, meaning that he worked in a 
bipartisan way with both administrations. Unfortunately, in order to 
create a red herring issue that they can hide behind, our colleagues on 
the other side have demanded his recommendations while at the Solicitor 
General's Office--the attorney for the U.S.A., for us citizens, the 
private, privileged memoranda, his recommendations on appeals on 
matters involving certiorari and on matters involving amicus curiae. 
There has never been such a move. To my knowledge, the Justice 
Department, the Solicitor General's Office has never--nor will it 
ever--give up those documents because they are privileged executive 
branch documents.

  I cannot help but believe our colleagues on the other side know as 
much about that as I do. They know that is absolutely accurate, and I 
am just suggesting this is a red herring issue so that they can hold up 
this nominee with a filibuster, of all things--the first in history.
  Let me just go further on that because it is a very important issue, 
the only issue they seem to have. I hate to say it, but some of our 
friends in the media ignore the fact that the seven living former 
Solicitors General wrote a letter to Chairman Leahy that says this:

       We write to express our concerns about your present request 
     that the Department of Justice turn over appeal 
     recommendations, certiorari recommendations, and amicus 
     recommendations that Miguel Estrada worked on while in the 
     Office of the Solicitor General.
       As former heads of the Office of--

  By the way, of these seven former Solicitors General--the only living 
ones--four of them, or better than 50 percent, are Democrats. Three he 
worked for. They said:

       As former heads of the Office of the Solicitor General 
     under Presidents of both parties, we can attest to the vital 
     importance of candor and confidentiality of the Solicitor's 
     decisionmaking process.

  I will read a couple other thoughts here:

       It goes without saying that when we made these and other 
     critical decisions, we relied on frank, honest, and thorough 
     advice from our staff attorneys, like Mr. Estrada. Our 
     decisionmaking process required the unbridled, open exchange 
     of ideas, an exchange that simply cannot take place if 
     attorneys have reason to fear that their private 
     recommendations are not private at all, but vulnerable to 
     public disclosure. Attorneys inevitably will hesitate before 
     giving their honest, independent analysis if their opinions 
     are not safeguarded from future disclosure.
       High-level decisionmaking requires candor, and candor, in 
     turn, requires confidentiality.

  Remember, four of these seven are Democrats. The other three are 
Republicans. All of them are together in this, though.

       Any attempt to intrude into the office's highly privileged 
     deliberations would come at the cost of the Solicitor 
     General's ability to defend vigorously the United States 
     litigation interest, a cost that also would be borne by 
     Congress itself. Although we proudly respect the Senate's 
     duty to evaluate Mr. Estrada's fitness for the Federal 
     judiciary, we do not think that the confidentiality and 
     integrity of internal deliberations should be sacrificed in 
     the process.

  This is signed by Seth B. Waxman, on behalf of himself, Walter 
Dellinger, Drew Days--three Democrats--Kenneth Starr, Charles Fried, 
and Robert H. Bork, all Republicans, and Archibald Cox, of course, a 
Democrat--four Democrats and three Republicans. That speaks for itself. 
I hope it puts to bed this phony red herring argument that has been 
lodged by the other side. It is phony, wrong, and should not be given 
the time of day. I call on the media to start being responsible with 
regard to these matters.

  Mr. CRAIG. Mr. President, will the chairman of the Judiciary 
Committee yield for a question?
  Mr. HATCH. I will, without losing my right to the floor.
  Mr. CRAIG. Mr. President, the Chicago Tribune has strongly condemned 
the filibuster the chairman is speaking to tonight. So has the Chicago 
Sun-Times. Those papers don't agree on a lot of things, but one thing 
they are now agreeing on is that a filibuster is a bad idea. The 
Tribune said, regarding this confidential memo request that you have 
just referred to:

       Anyone who wants a glimpse into Estrada's thinking can 
     scrutinize the briefs he wrote and the oral arguments he 
     made.

  The Sun-Times wrote:

       Our legal system cannot and must not be held hostage to 
     political nitpicking.

  It agrees with President Bush that this would be a shameful event.
  Now, I know the Senator from Illinois is not in the Chamber now, but 
as you referenced him a moment ago, he has been in the Chamber quite 
often demanding these briefs be turned over. You are the chairman of 
the committee. At the time you were the ranking member and were there--
I was not, as I am a new member of the Judiciary Committee. I was not 
there during the core investigation and questioning of Miguel Estrada. 
Can you tell me if the Senator from Illinois was there and if he asked 
any questions at the time? He seems not to know about this man.
  Mr. HATCH. My recollection is that he was not at the hearing and he 
didn't ask any questions. He and every Democrat had a right to do it, 
and it went all day long. Yet the Senator seems to be trying to give 
the impression that he knows everything that went on at the hearings. 
True, he could have read the transcript, but he had every chance to ask 
questions. Why wasn't he there? Why didn't he ask the questions? Why is 
he in the Chamber criticizing Miguel Estrada and criticizing the 
process and using this phony excuse with regard to the confidential, 
privileged memoranda of the Justice Department along with his 
colleagues?
  I don't blame any one person. They are all to blame for using these 
kinds of phony arguments. I think the media is to blame--some of them. 
I have 57 different editorials, 50 of which are for Mr. Estrada.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. Not just yet. You mentioned the Chicago Sun-Times. My 
staff just gave me that. You know, it is interesting--I will quote a 
couple lines.

       Who can look at the spectacle of the 108th Congress and not 
     believe that justice and the basic operation of the Nation is 
     being sacrificed on the altar of ugly obstructionist, 
     partisan politics?

  That is the Chicago Sun-Times, which is not known as a conservative 
newspaper, to my knowledge.
  Let me give one other. I am quoting a couple sentences. I will put 
the whole editorial into the Record, if I can. I ask unanimous consent 
that this be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page S2804]]

              [From the Chicago Sun-Times, Feb. 14, 2003]

         Wheels of Justice Caught in Washington Gridlock, Again

       ``The time has come for the U.S. Senate to stop playing 
     politics with the American judicial system. So bad has the 
     situation become that some Americans wonder whether justice 
     is being hindered. . . '' So began an editorial on this page 
     five years ago, during the now-distant days of the Clinton 
     administration, when Senate Republicans were stonewalling 
     judicial nominees from a Democratic president.
       We mention it because the party in power tends to scream 
     about efficient government, while the party out of power 
     complains about failure to follow procedure. To quote 
     Shakespeare, ``A plague on both their houses.'' The only 
     update we'd make in the opening quote is to change ``some 
     Americans'' into ``many Americans'' or even ``most 
     Americans.'' For who can look at the spectacle of the 108th 
     Congress and not believe that both justice and the basic 
     operation of the nation is being sacrificed on the altar of 
     ugly, obstructionist, partisan politics?
       After dragging their feet on shifting committee 
     chairmanships and the routine operations of the nation's 
     business, Senate Democrats, though in a minority, are 
     threatening to filibuster over the confirmation of Miguel 
     Estrada, a Washington lawyer who seems eminently qualified 
     for the federal appeals bench in every way except for his 
     alacrity to answer questions about his opinions on legal 
     matters that have not yet been presented to him, such as the 
     issue of abortion.
       The entire idea behind disabling the business of the nation 
     is so that the blame for whatever bad situation we find 
     ourselves in come election 2004 can be laid at the feet of 
     the Republicans, since they are in power. But the Democrats 
     forget that, if they manager to torpedo the Republican 
     agenda, then the republicans are not really fully in power, 
     and whatever problems are certain to come are the fault of 
     both parties. And obstructionism hurt Democrats in last 
     November's voting.
       President Bush called the Democratic approach ``shameful 
     politics.'' We are not revealing a bias when we agree--the 
     nation needs good judges, from both parties, of both 
     conservative and liberal outlooks. Our legal system cannot 
     and must not be held hostage to political nitpicking. Estrada 
     deserves to be the first Hispanic on the U.S. Court of 
     Appeals for the District of Columbia,and if his nomination in 
     some way helps to break the political deadlock keeping 
     critical judgeships from being filled, that will be just 
     another accomplishment to add to his record.

  Mr. HATCH. ``Our legal system could not and cannot be held hostage to 
the political nitpicking''--which is exactly what is going on here. I 
admit that my distinguished colleague from Illinois did take the time 
to submit questions. None of the others did, except Senator Kennedy. 
All of them are complaining that he didn't answer the questions. I will 
say that my friend and colleague from Illinois did take the time to 
submit written questions. He deserves credit for that. But as far as I 
know, I don't believe he asked any questions at the hearing.
  Mr. CRAIG. Mr. President, will the Senator yield further for a 
question?
  Mr. HATCH. Yes, without losing my right to the floor.
  Mr. CRAIG. I know the Senator is now in the Chamber. I have 
referenced these two articles. Those papers have condemned the 
filibuster, and they have condemned the strategy being used here to try 
to pry well beyond the oral arguments and briefs of Mr. Estrada.
  I want to also ask, was the Senator also aware that the Freeport 
Journal-Standard, the oldest news source in northwest Illinois, has 
editorialized that this demand for Solicitor General memos would do 
serious damage to the ability of any member of the Justice Department 
to participate in its deliberative process, and that the same paper 
concluded Democrats are free to vote against him if they want, but vote 
they must; to do otherwise is an outrageous abuse of power.
  The question then: Was the Senator aware that this story had reached 
our heartland and that now newspapers all over America are reacting? 
And was he aware that they are speaking to this kind of injustice?
  Mr. HATCH. I am. Many editorials are complaining and pointing out 
that this is terrible politics. It is a terrible thing to do. It is a 
double standard. You quoted the Freeport Journal-Standard. Let me quote 
one paragraph:

       If there is one example today of the worst in American 
     politics, it is the decision by Senate Democrats to 
     filibuster the nomination of Miguel Estrada to the U.S. Court 
     of Appeals for the District of Columbia. President Bush's 
     description of the move as ``shameful politics'' is generous. 
     It is a downright repugnant abuse of the Constitution.

  The rest of the editorial is good as well. I ask unanimous consent 
that it be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          [From the Freeport Journal Standard, Feb. 20, 2003]

               Senate Dems Showing Worst Side of Politics

       The issue: Judicial nominations.
       Our view: For Senate Democrats to filibuster the nomination 
     of Miguel Estrada is an outrageous abuse of power.
       If there is one example today of the worst in American 
     politics, it is the decision by Senate Democrats to 
     filibuster the nomination of Miguel Estrada to the U.S. Court 
     of Appeals for the District of Columbia. President Bush's 
     description of the move as ``shameful politics'' is generous. 
     It is a downright repugnant abuse of the Constitution.
       The chief reasons Democrats give is Estrada, an American 
     success story who went from Honduran immigrant to graduating 
     Harvard magna cum laude to Supreme Court clerk and beyond, is 
     a ``stealth conservative,'' whatever that means. They say his 
     responses to questions at committee hearings on his 
     nomination did not sufficiently reveal his political opinions 
     and demand that confidential memoranda written by Estrada 
     when he was an assistant solicitor general be turned over. 
     This is unprecedented, and if allowed, would do serious 
     damage to the ability of any member of the Justice Department 
     to participate in its deliberative processes.
       Clearly, Democrats are fearful of conservative jurists. But 
     for eight years, Bill Clinton nominated liberal jurists to 
     the bench, including three Supreme Court justices. This is 
     called democracy. The proper recourse is not to bottle up 
     every nomination on the basis of some asinine political 
     litmus test, but to win the presidency. If this continues, we 
     can expect Republicans to use the same tactic and the result 
     will strangle our justice system.
       The Senate has a Constitutional duty to vote on the 
     president's judicial nominees. By all accounts, Estrada is a 
     brilliant scholar, distinguished public servant and 
     outstanding lawyer, rated by the American Bar Association as 
     ``highly qualified.''
       Democrats are free to vote against him if they want, but 
     vote they must. To do otherwise is an outrageous abuse of 
     power.

  Mr. CRAIG. Mr. President, I thank the chairman for yielding for 
questions.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. I will be happy to yield for a question without losing my 
right to the floor.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. I would like to ask the Senator--I was off the floor in 
the cloakroom--it is my understanding my name was raised during the 
course of the debate.
  Mr. HATCH. It was raised in a question to me.
  Mr. DURBIN. I thank the Senator. I ask the Senator, is he aware of 
the fact that I was present for the questioning of Miguel Estrada? I 
came to the hearing room on several occasions and, unfortunately, 
because of the timing of the schedule, I was never called for questions 
and forced to go to other committee hearings and submitted written 
questions to Miguel Estrada?
  Mr. HATCH. I will take the Senator's word on that. There is no 
question the distinguished Senator did submit written questions which 
were answered, but I also answer the Senator that this hearing went on 
all day. It was an extraordinarily long hearing, and if the Senator had 
any questions that he wanted to ask, I think it was his duty and his 
obligation to get there and ask them, by the way, because we can all 
find time during the complete day's hearing to come to the committee.
  I am not trying to find fault. What I am saying is that it is one 
thing to be able to speak from personal experience of having been there 
and asked questions; it is another thing to continually come to the 
floor and berate Mr. Estrada for not answering questions when, if you 
refer to the remarks of the distinguished junior Senator from Tennessee 
earlier this evening, that just is not true. The fact is, he answered 
the questions.
  Mr. DURBIN. Will the Senator yield for another question?
  Mr. HATCH. I will say this--and I compliment my dear colleague from 
Illinois--my colleague from Illinois did submit written questions, but 
there were answers to those written questions as well. I have to say, 
my colleague from Illinois was 1 of 2 out of 9 Democrats--actually 10 
at the time--who submitted questions. All of a sudden to come here with 
crocodile tears----

[[Page S2805]]

  Mr. DURBIN. Will the Senator yield for another question?
  Mr. HATCH. Let me finish my remarks and, of course, I will. But to 
come here with crocodile tears and tell us that he just did not do 
enough and he did not answer the questions when he did, in fact, do so, 
and to misrepresent, as some have done--I am not saying the 
distinguished Senator from Illinois because I have not heard all of his 
remarks; people will have to judge that for themselves. But to come 
here and make those kinds of accusations when this man had one of the 
longest hearings, answered many more questions than almost any Clinton 
circuit court of appeals nominee had to answer when I was chairman, and 
to act like he does not deserve to have an up-or-down vote on the 
Senate floor, which we gave to every Clinton nominee, I think is a 
little bit beyond the pale, and I think that is what has been happening 
around here.
  Personally, I resent it, on behalf of the United States of America 
and on behalf of this Hispanic nominee who has all of these 
qualifications which I believe even the Senator from Illinois has 
acknowledged.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. Without losing my right to the floor.
  Mr. DURBIN. During the course of the hearing on Miguel Estrada, we 
usually have rounds where Senators ask questions. Does the Senator from 
Utah recall the length of the rounds of the questions that each Senator 
could ask of Miguel Estrada?
  Mr. HATCH. I recall that they were lengthy, and I recall that Senator 
Schumer from New York chaired the hearing. I did not chair the hearing. 
He could have set up any kind of rounds he wanted to, and, as I 
understand it, everybody had a full opportunity to ask the questions 
they wanted, both Democrats and Republicans.
  Mr. DURBIN. If the Senator will allow me to ask a question----
  Mr. HATCH. If I can just continue, the Senator himself said Mr. 
Estrada has not answered any questions, and the Senator from Illinois 
at least implied that from time to time.
  Mr. DURBIN. Since my name has been brought up in debate--it becomes a 
debate over the Senator from Illinois rather than Estrada--I hope the 
Senator from Utah will give me a chance to respond.
  Mr. HATCH. Mr. President----
  The PRESIDING OFFICER. The Senator from Utah has the floor and the 
Chair requests that the Senator from Illinois address his questions to 
the Chair.
  Mr. HATCH. I am not accusing my colleague from Illinois of anything 
other than based upon whatever he said on the floor.
  Mr. DURBIN. Will the Senator allow me to ask a question?
  Mr. HATCH. What I do want to make clear is I believe the 
distinguished Senator from Illinois and others have been saying that 
Mr. Estrada did not answer the questions. Let me recall, in case it 
might have slipped the mind of the distinguished Senator, ``Follow-up 
Questions for Miguel Estrada, Senator Richard J. Durbin, Senate 
Judiciary Committee.'' Let me read a few of these.
  One:

       During your nominations hearing, Senator Edwards asked 
     whether you consider yourself a ``strict constructionist'' 
     when it comes to interpreting the Constitution. You described 
     yourself instead as a ``fair constructionist.'' How do you 
     distinguish these two concepts? In what ways are they 
     similar? In what ways are they different?

  That is an intelligent question. I commend my colleague.
  Mr. DURBIN. I thank the Senator.
  Mr. HATCH. The response:

       I do not believe that a legal text, such as the 
     Constitution, should be construed ``strictly'' (i.e., 
     grudgingly) or ``loosely'' (i.e., without careful regard to 
     the text's language so as to achieve a meaning beyond that 
     which the text will fairly bear). In my view, the 
     Constitution, like other legal texts, should be construed 
     reasonably and fairly, to give effect to all that its text 
     contains. Although the phrase ``strict construction'' is 
     often used to reflect a legal philosophy that simply gives 
     appropriate consideration to the text of the Constitution, 
     the phrase is also sometimes used in a pejorative fashion to 
     describe an approach to interpretation that does not fairly 
     reflect the meaning that the words, history, and background 
     of the text will fairly bear. For that reason, I avoided 
     using that phrase in response to Senator Edwards' question.

  The distinguished Senator from Illinois asked if the current members 
of the Supreme Court--this is written because he did not ask oral 
questions during the hearing:

       Of the current members of the Supreme Court, who would you 
     characterize as a strict constructionist? Who would you 
     characterize as a fair constructionist? How would you 
     characterize the remaining Justices?

  Response:

       Although the current members of the United States Supreme 
     Court sometimes emphasize different interpretive tools--
     giving, for example, greater or less prominence to text, 
     history or precedent in a particular case--I believe each of 
     them attempts in good faith to give a fair reading to the 
     constitutional provisions that come before the Court. For 
     that reason, I would characterize each member of the current 
     Court as a ``fair constructionist.''

  The question again from the distinguished Senator from Illinois:

       In terms of judicial philosophy, please name several 
     judges, living or dead, whom you admire and would like to 
     emulate on the bench.

  This is what Mr. Estrada responded:

       There is no judge, living or dead, whom I would seek to 
     emulate on the bench, whether in terms of judicial philosophy 
     or otherwise. If I am fortunate enough to be confirmed, I 
     hope to seek aid from whatever legal materials may shed light 
     on the problem before me, and thus to reach the correct 
     answer to that problem to the best of my abilities, without 
     any preconception about how some other judge might approach 
     the question.
       I have been fortunate to know several great judges and 
     justices in my lifetime. I admire Judge Amalya Kearse and 
     Justice Anthony Kennedy, for whom I was a law clerk. During 
     my time as a law clerk for Justice Kennedy, I also got to 
     work with retired Justice Lewis F. Powell, Jr., for whom I 
     developed a great deal of affection and admiration.

  Amalya Kearse was a Carter appointee to the Second Circuit Court of 
Appeals. In other words, this man has admired a Democratic judge. 
Anthony Kennedy is, of course, considered a moderate conservative on 
the Supreme Court. He served him as a clerk, and admires him. Then he 
admires Lewis F. Powell, Jr., who is considered one of the leading 
moderate judges during his lifetime on the Court.
  I could read all of these questions and answers, and I think any fair 
person would say he gave some very good answers that would pass almost 
any professorial, jurisprudential, legal, or other analysts' reviews.
  I ask unanimous consent that the followup questions for Miguel 
Estrada by Senator Richard J. Durbin and his answers be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Follow-up Questions for Miguel Estrada From Senator Richard J. Durbin, 
                       Senate Judiciary Committee

       (1) During your nominations hearing, Senator Edwards asked 
     whether you consider yourself a ``strict constructionist'' 
     when it comes to interpreting the Constitution. You described 
     yourself instead as a ``fair constructionist.''
       (a) How do you distinguish these two concepts? In what ways 
     are they similar? In what ways are they different?
       Response: I do not believe that a legal text, such as the 
     Constitution, should be construed ``strictly'' (i.e., 
     grudgingly) or ``loosely'' (i.e., without careful regard to 
     the text's language so as to achieve a meaning beyond that 
     which the text will fairly bear). In my view, the 
     Constitution, like other legal texts, should be construed 
     reasonably and fairly, to give effect to all that its text 
     contains. Although the phrase ``strict construction'' is 
     often used to reflect a legal philosophy that simply gives 
     appropriate consideration to the text of the Constitution, 
     the phrase is also sometimes used in a pejorative fashion to 
     describe an approach to interpretation that does not fairly 
     reflect the meaning that the words, history and background of 
     the text will fairly bear. For that reason, I avoided using 
     that phrase in response to Senator Edwards' question.
       (b) Of the current members of the Supreme Court, who would 
     you characterize as a strict constructionist? Who would you 
     characterize as a fair constructionist? How would you 
     characterize the remaining justices?
       Response: Although the current members of the United States 
     Supreme Court sometimes emphasize different interpretive 
     tools--giving, from example, greater or less prominence to 
     text, history or precedent in a particular case--I believe 
     each of them attempts in good faith to give a fair reading to 
     the Constitutional provisions that come before the Court. For 
     that reason, I would characterize each member of the current 
     Court as a ``fair constructionist.''
       (c) In terms of judicial philosophy, please name several 
     judges, living or dead, whom you admire and would like to 
     emulate on the bench.
       Response: There is no judge, living or dead, whom I would 
     seek to emulate on the bench,

[[Page S2806]]

     whether in terms of judicial philosophy or otherwise. If I am 
     fortunate enough to be confirmed, I hope to seek aid from 
     whatever legal materials may shed light on the problem before 
     me, and thus to reach the correct answer to that problem to 
     the best of my abilities, without any preconception about how 
     some other judge might approach the question.
       I have been fortunate to know several great judges and 
     justices in my lifetime. I admire Judge Amalya Kearse and 
     Justice Anthony Kennedy, for whom I was a law clerk. During 
     my time as a law clerk for Justice Kennedy, I also got to 
     work with retired Justice Lewis F. Powell, Jr., for whom I 
     developed a great deal of affection and admiration.
       (2) In an attempt to learn more about your judicial 
     philosophy, several of my colleagues asked for your opinion 
     about constitutional questions that are now settled law and 
     that are unlikely to come before you as an appellate court 
     judge. For example, Chairman Leahy asked for your views on 
     Romer v. Evans, a Supreme Court opinion striking down a state 
     constitutional provision that prohibited municipalities from 
     passing gay rights ordinances. You responded: ``the question 
     as framed is inherently unknowable for somebody in my 
     position who has not sat through the case, listened to the 
     arguments, conferred with the colleagues, and done all of the 
     legwork of investigating every last clue that the briefs and 
     the arguments offer up.''
       Likewise, in response to questioning from Senator Schumer, 
     you stated: ``The only time that I will feel comfortable in 
     opining whether the Court got it right would be if I had done 
     everything that the Court had to do in order to actually 
     issue their ruling.''
       (a) In your role as an Assistant to the Solicitor General, 
     I am sure you read many of the Supreme Court's decisions. 
     Have you ever expressed any opinion on the merits of a 
     Supreme Court decision, to your colleagues or friends, when 
     you had not read the briefs and watched the oral argument in 
     the case? For example, have you ever told anyone that you 
     thought the Romer v. Evans was rightly or wrongly decided?
       Response. During my tenure at the Solicitor General's 
     office, it was not uncommon for lawyers in the office to 
     discuss issues then pending, or recently decided, by the 
     Supreme Court. Such discussions were generally informal 
     (often at the lunch table, since it was the practice of the 
     attorneys in the office to lunch together in the Department's 
     cafeteria) and did not purport to reflect a considered 
     judgment that a particular decision was objectively ``right'' 
     or ``wrong'' based on an appraisal of all briefing, argument, 
     and primary materials--the type of judgment that a sitting 
     judge would have to make in deciding the case. It was 
     probably the case that neither my Justice Department 
     colleagues nor I had read every brief filed in a particular 
     case or attended argument. Generally, my colleagues and I 
     would speak of a particular decision in terms of whether it 
     served the Government's programmatic interests and/or whether 
     the majority opinion set forth better reasons for the outcome 
     than did the dissenting opinion (i.e., whether one of the 
     opinions was a better piece of legal reasoning and writing). 
     I do not have any recollection that I or any of my colleagues 
     ever described any particular decision (including Romer) as 
     ``wrong,'' but it is possible that remarks such as that were 
     made in informal conversations--as shorthand for whether a 
     decision accorded with the Government's interest in an area 
     or whether the outcome urged by a dissenting opinion was 
     advocated better than the result reached by the Court's 
     majority.
       (b) You and I met privately before your hearing, and I 
     asked you for your views on Roe v. Wade. You indicated that 
     you considered the answer to that question to be private 
     matter. But your answer suggested that you do have an 
     opinion. Do you have an opinion on the merits of Roe v. Wade? 
     If so, have you read the briefs and a transcript of the oral 
     argument?
       Response: I stated during our meeting that, like many 
     Americans, I have personal views on the subject of abortion, 
     which views I consider a private matter that I was unprepared 
     to share or discuss with you. I also stated that I do not 
     harbor any personal views of any kind that, if I were a 
     judge, would preclude me from applying controlling Supreme 
     Court case law in the area of abortion. I did not state that 
     I have private views on whether the case of Roe v. Wade was 
     correctly decided. As I stated during my hearing, it would 
     not be appropriate for me to express such a view without 
     doing the intensive work that a judge hearing that case would 
     have to under take--not only reading briefs, and hearing the 
     arguments of counsel, but also independently investigating 
     the relevant constitutional text, case law, and history.
       (3) You serve on the National Board of Directors for a non-
     profit foundation called the Center for the Community 
     Interest, or CCI. According to CCI's website, the group's 
     goal is ``to make communities and neighborhoods safe places 
     to live and raised children and to make the public spaces of 
     our cities secure and inviting places for all by helping to 
     identify common sense, balanced solution to crime and 
     quality-of-life problems and to defend those policies against 
     unreasonable legal attacks.''
       (a) How did you become associated with CCI? For how long 
     have you served on the Board of Directors?
       Response: In the Fall of 1998, Eliot Spitzer was elected 
     Attorney General of New York. Mr. Spitzer was a Board member 
     of CCI (and, through his family foundation, was and is an 
     important financial supporter of CCI). As a result of his 
     election, Mr. Spitzer had to resign his Board position. I was 
     invited to join the board, and fill the ensuing vacancy, by 
     another Board member, Scott Muller has long been involved in 
     CCI, and I knew him as a highly respected attorney who 
     practices in Washington, D.C.and New York City; he was 
     recently confirmed by the Senate as General Counsel of the 
     CIA. I have served on the Board since my election in late 
     1998/early 1999.
       (b) As a director, what role do you plan in the management 
     of the organization? How frequently does the Board meet?
       Response: CCI has a full-time staff that deals with day-to-
     day matters. The Board deals with major policy issues and the 
     general direction and management of the organization.
       It has been a goal of the current Board to increase the 
     number of times we meet. When I first joined the Board, we 
     met only twice a year. We now try to meet three or four times 
     a year. Meetings of the Board may be conducted if a quorum of 
     a majority of the directors is present. Although I try to 
     attend every meeting personally or by telephone, I have not 
     participated in every meeting of the Board that has been held 
     since I joined the Board.
       (4) Although the organization purports to defend ``common 
     sense'' government policies ``against unreasonable legal 
     attacks,'' CCI has adopted some very controversial positions 
     over the last few years. For example, in Dickerson v. United 
     States, CCI filed an amicus brief urging the Supreme Court to 
     overturn the landmark Miranda decision, which ensures that 
     criminal suspects have adequate notice of their legal rights.
       As you know, the position favored by CCI in Dickerson was 
     rejected by a decisive seven member majority of the Supreme 
     Court, in a decision authored by Chief Justice Rehnquist. The 
     only dissenters in the case were Justices Antonin Scalia and 
     Clarence Thomas.
       (a) As a Director of CCI, did you participate in 
     deliberations or play any other role in the group's decision 
     to file an amicus brief in Dickerson?
       Response: Yes. I was one of the Board members who voted on 
     the question whether CCI should file a brief in the case.
       (b) Do you support the group's position in that case? Why 
     or why not?
       Response: I voted in favor of filing an amicus brief in the 
     case. As I saw it, the case primarily involved an important 
     unsettled legal issue that hinged on the constitutionality of 
     an Act of Congress, 18 U.S.C. Sec. 3501, rather than the 
     issue whether Miranda should be superseded because of any 
     disagreement that the current Supreme Court might have with 
     that decision.
       As is widely known, the Supreme Court in Miranda required 
     that certain warnings be given to suspects during custodial 
     interrogations. It is less widely known that, in announcing 
     that ruling, the Supreme Court also stated (384 U.S. at 467): 
     ``It is impossible for us to foresee the potential 
     alternatives for protecting the privilege which might be 
     devised by Congress or the States in the exercise of their 
     creative rule-making capacities. Therefore we cannot say that 
     the Constitution necessarily requires adherence to any 
     particular solution for the inherent compulsions of the 
     interrogation process as it is presently conducted. Our 
     decision in no way creates a constitutional straitjacket 
     which will handicap sound efforts at reform, nor is it 
     intended to have this effect. We encourage Congress and the 
     States to continue their laudable search for increasingly 
     effective ways of protecting the rights of the individual 
     while promoting efficient enforcement of our criminal 
     laws.''
       In 1968, in the wake of that decision and in reliance on 
     the Court's suggestion, Congress enacted 18 U.S.C. Sec. 3501. 
     That statute required federal courts to admit into evidence 
     all voluntary confessions, after assessing the issue of 
     voluntariness in light of all the facts and circumstances 
     surrounding the confession--including whether the suspect 
     received the warnings required by the Miranda case.
       Although some lower courts had assumed that Section 3501 
     was not constitutional, as a CCI Board member I supported the 
     filing of an amicus brief that supported the 
     constitutionality of the statute. I believed that a law duly 
     passed by both Houses of Congress and signed by the President 
     should not be ignored by the lower courts without an 
     authoritative resolution of the constitutional question by 
     the Supreme Court of the United States.
       (c) Do you think that the defendant's challenge of the 
     Fourth Circuit's decision in Dickerson was an unreasonable 
     legal attack?
       Response: No.
       (d) Chief Justice Rehnquist's decision in Dickerson invoked 
     the doctrine of stare decisis. Do you agree with the 
     application of that doctrine in this case? When is it 
     appropriate for the Supreme Court to overturn its own 
     precedents?
       Response: Dickerson reflects a reasonable application of 
     the doctrine of stare decisis. In my view, it is rarely 
     appropriate for the Supreme Court to overturn one of its own 
     precedents. The circumstances that bear on the 
     appropriateness of such a course were summarized by the Court 
     in Agostini v. Felton, 521 U.S. 203, 235-37 (1997), and by 
     the plurality opinion in Planned Parenthood of Southeastern 
     Pa. v. Casey, 505 U.S. 833, 854-55 (1992).
       (5) Dickerson was an alarming case to many of us because 
     the Fourth Circuit Court of Appeals, on its own initiative, 
     determined

[[Page S2807]]

     that Miranda was no longer binding law. They reached this 
     conclusion even though the Supreme Court continued to apply 
     Miranda to criminal cases in both the federal and state 
     systems; and despite the fact that neither the government nor 
     the criminal defendant was willing to argue that Miranda did 
     not apply. The Fourth Circuit's ruling in Dickerson strikes 
     me as a prime example of the conservative judicial activism 
     we sometimes see today.
       (a) What assurances can you give the Committee that you 
     will follow Supreme Court precedent unless and until the 
     Court explicitly overrules itself?
       Response: I can absolutely assure the Committee that I will 
     follow binding Supreme Court precedent until and unless such 
     precedent has been displaced by subsequent decisions of the 
     Supreme Court itself.
       (b) If confirmed to the D.C. Circuit, can you assure us 
     that you will faithfully apply the Supreme Court's ruling in 
     Miranda? What about the Supreme Court's decision in Bakke, 
     which upheld the constitutionality of affirmative action 
     programs in certain circumstances?
       Response. I can assure the Committee that I would 
     faithfully apply the Miranda decision as I would any other 
     Supreme Court case that has not been superseded by the Court. 
     With respect to Bakke specifically, in which there was no 
     majority opinion by the Court, there is arguably a division 
     among the courts of appeals on the question whether the 
     various opinions issued by the individual Justices who 
     participated in the case set forth a rule of law that lower 
     courts are required to follow. Compare Hopwood v. Texas, 78 
     F.3d 932, 944 (5th Cir. 1996), and Johnson v. Board of 
     Regents of Univ. Georgia, 263 F.3d 1234, 1247-50, 1261 (11th 
     Cir. 2001), with Smith v. University of Washington Law Sch., 
     233 F.3d 1188, 1199-1200 (9th Cir. 2000), and Grutter v. 
     Bollinger, 288 F.3d 732, 738-42 (6th Cir. 2002). As I stated 
     during my appearance before the Committee, because that issue 
     might come before me as judge, I do not believe I should 
     express any views on it.
       (6) Let me ask you about two other controversial positions 
     that CCI has adopted in the last few years. In United States 
     v. Knights, CCI argued as an amicus party that warrantless, 
     suspicionless searches of probationers and parolees are 
     constitutional. Likewise, in Department of Housing and Urban 
     Development v. Rucker, CCI defended HUD's so-called ``One-
     Strike'' policy, which permitted automatic eviction of an 
     entire household from public housing if any resident or guest 
     was involved in a drug-related crime.
       (a) As a Director of CCI, did you participate in 
     deliberations or play any other role in the group's decision 
     to file an amicus brief in Knights or Rucker?
       Response. I do not have any recollection of participating 
     in any Board deliberations concerning these two cases. I have 
     made inquiry of the CCI staff, and I have been advised that 
     neither case came before the Board during my tenure as a 
     Board member. In the case of Rucker, it appears that CCI 
     became involved in the litigation while the case was pending 
     in the lower federal courts, and thus the issue whether to 
     participate in the litigation came before the Board before I 
     became a Board member. In the case of Knights, I have been 
     advised that CCI's position echoed the view taken by CCI in a 
     1997 case that presented a similar issue. I am advised that 
     because the issue already had been addressed by the Board in 
     connection with that 1997 case, the Executive Committee of 
     the Board (of which I was not a member) authorized the filing 
     of the brief without further input from other Board members.
       (b) Do you support the group's position in either of these 
     cases? Why or why not?
       Response. I have not made a sufficient, independent study 
     of the issues and briefing in each case to know whether I 
     agree with the positions espoused by CCI in these cases. I 
     would note, however, that each case resulted in a unanimous 
     opinion by the Supreme Court that appears to vindicate the 
     position urged by CCI.
       (7) It is difficult to find a news account about your 
     nomination that fails to mention your status as a potential 
     nominee of President Bush to the Supreme Court. Frankly, I 
     think this speculation is very premature. You do not have any 
     judicial record yet, so it is hard to know what kind of judge 
     you will be on the Court of Appeals.
       (a) Have you given any thought to whether you might like to 
     serve on the Supreme Court someday? What are your aspirations 
     at this point in your career?
       Response. During the pendency of my nomination, my wife and 
     I occasionally have received from friends, acquaintances and 
     well-wishers copies of the types of newspaper articles to 
     which your question refers. I have seen some of those 
     articles in our local newspapers as well. Of course, any 
     lawyer would be honored to be viewed as someone who some day 
     might be considered for a position on the Supreme Court. 
     However, beyond discussing with friends and acquaintances the 
     contents of such press articles, I have not carefully 
     considered the issue. As your question points out, it would 
     be premature for me to do so. My aspirations at this point 
     are to be confirmed as a United States Circuit Judge, and to 
     discharge the duties of that position to the best of my 
     abilities.
       (b) Has anyone from the White House or the Justice 
     Department ever discussed with you the prospect of serving on 
     the Supreme Court someday? If so, what did he or she tell 
     you?
       Response. No one from the White House or the Justice 
     Department has discussed with me the prospect of serving on 
     the Supreme Court of the United States.

  Mr. HATCH. Mr. President, I do not want to read them all, but I will 
if I have to, and I think the distinguished Senator from Illinois ought 
to be fair.
  These answers are very competent, good answers by a very competent, 
well-qualified, terrific nominee for the Circuit Court of Appeals for 
the District of Columbia, the first Hispanic nominee in the history of 
this country. I suggest you read your own answers to your own 
questions, and I think you will be pretty impressed with him.
  (Mr. ENSIGN assumed the Chair.)
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. Without losing my right to the floor.
  Mr. DURBIN. Would the Senator concede it is virtually impossible to 
conduct a debate in this format where every question I ask is 
questioned? Will the Senator be willing to enter into a unanimous 
consent agreement for the next half hour, equally divide the time 
between us, and then return the floor to the Senator from Utah so we 
can have a real debate rather than a contrived attempt to ask questions 
and to make rebuttals to statements made on the floor?
  Mr. HATCH. Of course I will not. First, I have the floor and I am 
retaining the floor because I have questions from both sides. I am 
willing to take questions from your side. I am not ignoring those. It 
is about time the American people hear the truth. We have heard enough 
rubbish. Now we should hear the truth. In all honesty, that is what we 
are going to do this evening.
  I have heard a lot of ridiculous remarks over there that do not 
really deserve listening to. So we are going to hear some remarks 
tonight that deserve being listened to, and we are going to get the 
facts. This unmitigated bullcorn that he has not answered questions is 
exactly that.
  I think the distinguished Junior Senator from Tennessee tore the hide 
off the Democrats tonight. I was so doggone impressed, I want to 
compliment my colleague. But he was not the only one. I have had 
colleague after colleague stand up over here and tell the truth, and I 
have had colleague after colleague over there hide behind these phony 
issues they have raised. They are phony, and it is a double standard. I 
am ashamed of some of the arguments that have been made over there, 
absolutely ashamed, and every Hispanic in America ought to be ashamed 
that they would stoop to this level against a qualified nominee. But 
not just every Hispanic, every American who wants a great judiciary 
ought to be outraged by what is happening.
  I have never seen this type of treatment of anybody who has been 
nominated to a circuit court of appeals. I have seen some pretty shabby 
treatment in my day for some of the people who have been appointed by 
Republican Presidents, but nobody has had to endure the calumny and the 
downright despicable comments that this Hispanic nominee, with all 
these qualifications in the world, has had to endure. It is disgusting.
  I know there are people on the other side who have clear thinking who 
ought to be disturbed by this, and I hope they will rise up in that 
caucus and say, we have had enough of this. We should not be treating 
any American this way, let alone somebody like this Hispanic.
  Mr. REID. Mr. President, parliamentary inquiry.
  The PRESIDING OFFICER. Does the Senator from Utah yield for a 
parliamentary inquiry?
  Mr. HATCH. Not at this point. I would like to finish what I am 
saying.
  The PRESIDING OFFICER. The Senator from Utah has the floor.
  Mr. REID. Parliamentary inquiry, Mr. President.
  Mr. HATCH. Without losing my right to the floor, I am happy to yield 
for a parliamentary inquiry.
  Mr. REID. Mr. President, I would ask the Chair to determine if the 
word ``despicable'' relating to the remarks that we have been making 
for 10 days----
  Mr. HATCH. I withdraw the word. I ask unanimous consent that that 
word be withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S2808]]

  Mr. HATCH. Even though I think it was probably the right word to use.
  The PRESIDING OFFICER. The Senator from Utah has the floor.
  Mr. HATCH. I am happy to yield to the Senator from Virginia without 
losing my right to the floor.
  Mr. ALLEN. I ask the Senator from Utah to yield for a question.
  Mr. HATCH. Without losing my right to the floor.
  Mr. ALLEN. Mr. President, Senator Warner, who was presiding earlier, 
knows the Senator from Utah is not alone in the feelings he is 
expressing. We see it in Virginia. In fact, we see it all the way 
across the Nation, from the San Diego Tribune to all the papers in 
Virginia that have taken a stand on this issue. They state the 
Democrats are creating a new double standard that applies only to the 
nomination of Miguel Estrada. Editorials are unanimous in Virginia, 
whether it is the Fredericksburg Free Lance-Star, the Richmond Times-
Dispatch, even the Winchester Star out in the Shenandoah Valley. They 
all say, stop filibustering, take a stand and confirm this highly 
qualified nominee. The Winchester Star in particular--and, by the way, 
that is a newspaper that is owned by a former colleague of some of our 
Members, Senator Harry Byrd, and they wrote in particular that the 
request for the Solicitor General memoranda is outrageous and that to 
accede to it would compromise that body's ability to properly defend 
the Government's interests.
  Is the Senator from Utah aware that even editorial writers in this 
fine community in the Shenandoah Valley of Virginia found this 
Democratic request so improper?
  Mr. HATCH. I was not aware of that. But I have to say, I served with 
Senator Harry Byrd. He is a marvelous human being. He was an 
Independent who voted mainly with the Democrats, but a very fair, 
honorable, decent man, one of the finest people who ever served. I 
agree with the editorial 100 percent.
  Mr. ALLEN. Will the Senator yield for another question?
  Mr. HATCH. Without losing my right to the floor.
  Mr. ALLEN. Could the Senator share with us what the historical 
practices are as far as the deliberative memoranda are concerned? Have 
they ever been asked for in confirmation hearings? We are talking about 
this double standard. They are asking for something, but what is the 
record? Has this ever been asked for before?
  Mr. HATCH. No one before this nominee, to my knowledge--and I believe 
I am accurate, and we have checked it--no one has ever asked for appeal 
recommendations, certiorari recommendations, and amicus curiae 
recommendations. The reason they never have is that it is--I will use 
the term--despicable to ask for them because they know they cannot be 
given; that no self-respecting Attorney General or President would 
allow that to happen because that is a direct intrusion into the 
deliberative process of the Solicitor General's Office, the attorney 
for the people. Nobody else has ever done that before.
  So we have to ask, why is it being done? And why would seven former 
Solicitors General, four of whom are Democrats, come out and say this 
cannot be done? Because they are right and my colleagues on the other 
side are wrong. They know they are wrong. I think that was geared to 
try to create a red herring issue so they could say, oh, my goodness, 
we do not know enough about him.
  It took them 505 days to hold a hearing. I presume in that 505 days, 
knowing how the Judiciary Committee works--and I really know how it 
works--every Democrat staffer assigned to that was going through every 
document this man has ever had anything to do with. They scrutinized 
him like they scrutinize any criminal, and certainly he is not that. 
But they scrutinized him. That is not a bad thing. I am not criticizing 
them for that. They know everything about Miguel Estrada that is 
knowable, and there is a lot. The transcript of the hearing is that 
big. Gee whiz, they act like there were not any questions or answers. 
Are you kidding? I think they think sometimes they can say these things 
and the American people are just going to buy it. Well, we are going to 
make sure they do not buy it because it is not true. That is what is 
killing me, is that my colleagues are saying things that just simply 
are not true if one looks at the Record.

  Never before have those three areas of recommendations been asked 
for. They cite Robert Bork. They cite Justice Rehnquist. Those 
materials that were given were very limited. They were not anywhere 
near as sensitive as these. They were not necessarily privileged, 
although I believe some of them were given just because they were very 
limited requests. These are broad requests of documents that literally 
should never be given to any other branch of government, if we want a 
functioning Solicitor General's Office.
  This is a game being played. It is a double standard and very unfair 
to this nominee. I think my colleagues are pointing that out in no 
uncertain terms.
  Mr. ALLEN. Mr. President, will the Senator from Utah yield for a 
final question?
  Mr. HATCH. Without losing my right to the floor.
  Mr. ALLEN. I ask the Senator from Utah if he saw the responses that 
all of us were seeing, as this filibuster drags on, this unfair 
consideration of Miguel Estrada, whom Senator Warner and I introduced 
to the committee nearly a year and a half after the President nominated 
him back in September--is he aware as more and more people read about 
this and hear about it that he is getting more support?
  Our senatorial committee Web site has had over 20,000 petitions in 
support of President Bush's nomination of this outstanding hero. Is the 
Senator aware that Miguel Estrada is the American dream, the American 
dream being born these days--not in the days of Horatio Alger, but 
individually came to this country with his own hard work, studiousness, 
and efforts, rose to lead the Law Review at Harvard, and other 
positions in government. Is he aware that support is building by the 
hour for Miguel Estrada and also in opposition to these obstructionist 
tactics denying this man a fair up-or-down vote?

  Mr. HATCH. I have talked to a wide variety of people today and every 
day. I have been on radio shows talking about this. I have been on 
Hispanic radio shows, Latino radio shows. They are getting very angry. 
And they should.
  I am calling upon all Democrats, Independents, and Republicans, as 
well, to come out of the woodwork and let our friends on the other side 
of the floor know this will not last. They resent this. There is a 
price to be paid for this type of obstruction, which is what it is. 
This is unfair obstruction that we did not do to their nominees.
  I cannot understand for the life of me why they are doing it to this 
Hispanic nominee with all these credentials, with the gold standard 
highest rating of the American Bar Association--their gold standard by 
their own definition. I do not understand it personally. I cannot see 
one reason to do it. People are getting very upset. I am getting 
thousands of calls saying: Hang in there; do not let them get away with 
this or the whole judiciary will be hurt; the whole judiciary will be 
hurt if this continues.
  If we have a filibuster that continues like this, our colleagues on 
the other side are risking the complete breakdown of this process, the 
complete breakdown of the judicial nominating process, something that 
we have never done on our side.
  Even when there have been cloture votes where they were not true 
filibusters but still cloture votes, their nominees got votes up and 
down.
  If that is what they are about, I will shut up and not say much more. 
That is all we are saying. Just vote. All this complaining. Yesterday, 
I saw the minority leader come on the floor and say we should be 
getting about all the important business of the country. There is 
nothing more important in this country than having a fair judiciary. It 
is the judiciary that has saved the Constitution through all these 
years. This is a very important nominee and a very important court. If 
we do not do what is right, everything else that is important might not 
be as important in the future because we will not have a Constitution 
to abide by and live by that has kept this country free. This is very 
important.
  To come from that side, when last year for the first time since the 
Budget Act was enacted, they did not pass a

[[Page S2809]]

budget because they had to face what we always did--it is tough to do 
it. They were not willing to put up with it and do the tough things, 
nor did they pass the majority of the appropriation bills. We had to 
wait until we became the majority, and we did it in an omnibus after 
the first of the year, but only after delays caused by the other side.
  It was something I could hardly believe. I said if you want to get to 
the other important things which we do, too, have a vote up and down 
like we did for all of your nominees. Why treat this man differently? 
Why obstruct this nominee? Why play the politics of obstruction? Why be 
so unfair and why have this double standard?
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I am happy to yield to the distinguished Senator from 
North Carolina, and then I will yield to--
  Mr. REID. I object. This is not proper procedure.
  The PRESIDING OFFICER. The Senator from Utah has the floor and may 
yield.
  Mr. HATCH. I yield to the distinguished Senator from North Carolina 
for a question, without losing my right to the floor.
  Mrs. DOLE. Mr. President, in North Carolina the Kinston Free Press 
and the Winston-Salem Journal have called on Democrats to stop this 
filibuster. Even a student writer for the University of North Carolina 
school paper took the time to write about it and criticize the 
filibuster. This obstructionism is being noticed and people are angry.
  On this question of the Solicitor General's memos, the Winston-Salem 
Journal wrote: ``Congress should not be asking for such material.''
  Does the Senator from Utah agree with the journal that ``if Democrats 
have a substantive reason for opposing Estrada's nomination, it is past 
time to produce it. If not, they should let the Senate vote.''
  Does the Senator agree?
  Mr. HATCH. I sure do agree with that. There has not been one 
substantive argument against this man other than the phony arguments 
like getting these privileged documents that everyone knows the 
administration cannot get. There are two reasons for that: They want to 
embarrass the administration by trying to make the administration look 
like they are trying to withhold documents that they should give, when 
they should not give them; and they are trying to defeat Miguel Estrada 
on what is really a red herring issue.
  That particular editorial of the Winston-Salem Journal said: The 
truth is, the Democrats oppose Estrada because they believe he is too 
conservative; an unsavory implication is that they believe Hispanics 
should be liberal.
  I think the editorial got it right on the money.
  Another truth is, as the Senator said: The Constitution gives 
Presidents the right to nominate judges and the Presidents usually 
choose nominees they believe share their political views. If Democrats 
have a substantive reason for opposing Estrada's nomination, it is past 
time to produce it. If not, they should let the Senate vote.
  I ask unanimous consent the Winston-Salem Journal article be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            [From the Winston-Salem Journal, Feb. 20, 2003]

                            Choosing Judges

       Democratic and Republican senators have taken turns for 
     years behaving badly when it comes to federal judicial 
     nominees. Now Democrats have taken the unproductive battles 
     to a new low in their refusal to allow a vote on the 
     nomination of Miguel Estrada to the U.S. Court of Appeals for 
     the District of Columbia.
       It's true that Senate Republicans are guilty of 
     considerable hypocrisy. They bottled up many of President 
     Clinton's nominees in the Judiciary Committee and kept even 
     moderate nominees from having hearings on the Senate floor. 
     Then when President Bush began sending along nominees, 
     Republicans urged Democrats to abandon partisanship and vote 
     for judicial nominees on their merits, not their views.
       But Democrats haven't helped matters any by their 
     determination to get revenge. The result is more delays in 
     filling court vacancies and more harm to the federal judicial 
     system.
       President Bush stoked the fire by nominating some 
     controversial figures, most notably U.S. District Judge 
     Charles Pickering of Mississippi for the 5th Circuit Court of 
     Appeals, while Democrats held their slim majority in the 
     Senate. Pickering was a controversial choice largely because 
     of his record on race. Democrats voted down his nomination in 
     the Judiciary Committee. Their opposition to him was probably 
     justified, but they should have allowed a vote. The entire 
     Senate, not just the members of the Judiciary Committee, are 
     supposed to have the right to confirm a president's judicial 
     choices.
       Now Republicans are back in control of the Senate. 
     Democrats' refusal to allow a vote on Estrada's nomination is 
     worse than their opposition to Pickering, because Estrada 
     does not have any blots on his record comparable to 
     Pickering's. His is an inspiring success story of a Honduran 
     immigrant who became editor of the Harvard Law Review and a 
     clerk for U.S. Supreme Court Justice Anthony Kennedy. He was 
     an assistant solicitor general under Clinton. He's been rated 
     ``highly qualified'' by the American Bar Association.
       Democrats have come up with a variety of objections to 
     Estrada, none of them convincing. They question his youth and 
     lack of judicial experience, but other appeals court judges 
     have been confirmed with similar qualifications. They have 
     demanded that he turn over confidential papers from his years 
     as solicitor general. Congress should not be asking for such 
     material, as all living solicitors general have said in a 
     letter.
       Democrats have said that Bush nominated Estrada just 
     because he is Hispanic.
       The truth is that Democrats oppose Estrada because they 
     believe that he is too conservative. An unsavory implication 
     is that they believe Hispanics should be liberal.
       Another truth is that the Constitution gives presidents the 
     right to nominate judges, and that presidents usually choose 
     nominees who they believe share their political views. If 
     Democrats have a substantive reason for opposing Estrada's 
     nomination, it's past time to produce it. If not, they should 
     let the Senate vote.

  Mr. BUNNING. Will the Senator yield?
  Mr. HATCH. I yield without losing my right to the floor.
  Mr. BUNNING. Mr. President, I say to the Senator from Utah, I have 
read an editorial from the Riverside Press Enterprise in California 
which said in response to this fishing expedition on the confidential 
memoranda that the Democrats claim they want to review Mr. Estrada's 
legal views: One suspects that is not the role the Democrats have in 
mind for their memoranda. They probably hope to expose Mr. Estrada's 
conservative views, which no one doubts he holds, in hopes of defeating 
the nomination or at least scoring some political points.
  Does the Senator agree that is the reason they are doing what they 
are doing, trying to score political points?
  Mr. HATCH. I don't see how they score political points by 
filibustering the first Hispanic nominee ever nominated to the court of 
appeals for the District of Columbia. That is a heck of a way to score 
political points, unless it is with their really far left people who 
seem to be in domination of that party right now. They are pleased.
  People for the American Way, you have to really be on the left to be 
with them. In fact, their biggest support comes from Hollywood. Not 
that we should decry our Hollywood stars as experts on everything. I 
don't think we should always find them not to be. I am sure they are 
experts on some things, but they seem to not fully understand what is 
going on here.
  The Press Enterprise, Riverside, CA, editorial says: The Democrats 
tactic employed last week of filibustering the nomination of Miguel A. 
Estrada to be the U.S. Court of Appeals for the District of Columbia 
Circuit is an anything-goes strategy that ought to be abandoned.
  And then later: A first step would be to not filibuster nominations 
like this one.
  They say: ``Parties need to deescalate.'' I agree with that.
  A first step would be to not filibuster nominations like this one of 
a well-qualified nominees. He's distinctly an American success story, 
having immigrated from Honduras, gone to Columbia and Harvard, and 
served as a clerk to a Supreme Court Justice.
  I ask unanimous consent the Press Enterprise editorial be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       [From the Press-Enterprise (Riverside, CA) Feb. 18, 2003]

       The process of filling a vacancy in the federal judiciary 
     is a political one. The Founding Fathers placed it into a 
     political area. The president nominates and the Senate 
     confirms--or doesn't--but that doesn't mean anything goes.

[[Page S2810]]

       The Democrats' tactic employed last week of filibustering 
     the nomination of Miguel A. Estrada to the U.S. Court of 
     Appeals for the District of Columbia Circuit is an anything-
     goes strategy that ought to be abandoned. However, with 49 
     Democratic senators, they are likely to be able to muster the 
     41 votes needed to maintain a filibuster.
       What makes the filibuster inappropriate is that it is 
     rarely used to block a judicial nominee, and Mr. Estrada 
     hardly qualifies as a target for such a big gun. Yes, he was 
     not completely open with members of the Judiciary Committee 
     when he appeared, and Democratic senators are frustrated by 
     the White House's refusal to release to them memoranda he 
     wrote as solicitor general.
       But in the best of times, such a request would be out of 
     line, and these are closer to the worst than to the best for 
     the nomination process. If the memoranda were to be used as 
     an honest beginning to a discussion of Mr. Estrada's legal 
     views, there might be some justification for releasing the 
     documents that would normally be considered privileged.
       One suspects that's not the role the Democrats have in mind 
     for the memoranda. They probably hope to expose Mr. Estrada's 
     conservative views, which no one doubts he holds, in hopes of 
     defeating the nomination or at least scoring some political 
     points.
       The two parties have been allowing their political battles 
     over judicial nominees to escalate since Robert H. Bork's 
     nomination to the U.S. Supreme Court in 1987. One suspects 
     that Republicans, if they were in the minority, would have 
     done the same with the Estrada nomination. The parties need 
     to de-escalate.
       A first step would be to not filibuster nominations like 
     this one of a well-qualified nominee. He's distinctly an 
     American success story, having immigrated from Honduras, gone 
     to Columbia and Harvard and served as a clerk to a Supreme 
     Court justice.
       Democrats, or Republicans when they are in the minority, 
     may fairly make things tough on a nominee in committee or on 
     the Senate floor, in order to fashion nominations more to 
     their liking. But the process has to stop at some point. It's 
     one of advice and consent, not advise and confront.

  Mr. SESSIONS. Will the Senator yield?
  Mr. HATCH. Without losing my right to the floor.
  Mr. SESSIONS. The Senator, as chairman of the Judiciary Committee, 
disclosed the Department of Justice has declined to produce these 
internal memoranda. I ask the Senator this: Is it a fact those 
memoranda belong to the U.S. Department of Justice and under the 
attorney-client rule they are not Miguel Estrada's and he has no 
ability whatsoever to produce these documents?
  Mr. HATCH. I certainly agree. I have heard the distinguished Senator 
from Illinois say that he should have produced these documents. He has 
no right to produce them. He personally said I am proud of my work. If 
they can give it up, I would be proud to have it given up. But he knows 
they cannot. I believe the distinguished Senator from Illinois knows 
they cannot give up these documents. Everybody knows that. That is why 
it is such a phony red herring issue, but it is the only one they 
really have.
  They started off with he has not had any judicial experience. That is 
the phoniest thing of all, because that means virtually every Hispanic 
lawyer doesn't have a chance to be on the Federal bench because they 
have no judicial experience, in spite of the fact that five of the 
eight judges on the DC Circuit Court of Appeals had no judicial 
experience before they went on the court.
  Why the double standard? Why is it we are requiring this of Miguel 
Estrada but not of them? Why is it when Republicans ran the committee 
we didn't have that difficulty? We never raised that phony issue. Why 
is it raised now?
  Mr. REID. Will the Senator yield for a question?
  Mr. SESSIONS. Mr. President, will the Senator yield for a question?
  Mr. HATCH. Without losing my right to the floor.
  Mr. SESSIONS. Chairman Hatch, I know you chaired the committee and 
you conducted many hearings, both in your recent chairmanship and prior 
to that when you were chairman of the committee. But isn't it a fact 
that the hearing of Miguel Estrada was conducted when the Democrats 
were in control of the Judiciary Committee, Senator Leahy was the 
chairman, and they held the committee hearing as long as they chose and 
could have held even longer hearings had they had any further questions 
to ask?
  Mr. HATCH. It is a fact that they were in control. They chaired the 
hearings. Senator Schumer chaired the hearing at the direction of 
Chairman Leahy, the chairman. It was one of the longest hearings for a 
Circuit Court of Appeals nominee I can recall. They asked every 
question they wanted to. He answered them, and he answered them fairly 
and well, as I have been showing here tonight, and as the distinguished 
Junior Senator from Tennessee, I think, showed in detail earlier in the 
evening. I commend him and ask everybody to read that.
  In all honesty, they controlled the whole doggone process. They even 
said on the floor, even during this debate, that the hearing was fair--
because they conducted it. If it was fair, that means they covered all 
the questions they wanted answered.
  Then we have these phony arguments that he didn't answer the 
question. Read the remarks of the distinguished Senator from Tennessee, 
Senator Alexander, this evening and read the transcript. Read the 
answers to these written questions. I only read a few of them because 
it more than blew away those phony arguments. Why the double standard? 
Why the obstruction? Why are we going through this?
  I said I would yield to my friend and colleague from Nevada, without 
losing my right to the floor.
  Mr. REID. I would say to my friend, I would respectfully submit, you 
don't need to say ``without losing your right to the floor.'' You have 
the floor. You don't have to say that.
  Anyway, I ask my distinguished friend from Utah, the neighboring 
State to Nevada: It is true, is it not, whether you agree or not, we 
have asked that the Justice Department, the administration, release the 
memos written by Miguel Estrada when he worked for the Solicitor's 
Office? You would agree with that?

  Mr. HATCH. I agree Senator Leahy sent a letter to the Department of 
Justice asking for these privileged matters that have never been given 
up before, and will not be given up, and should not be given up; 
knowing, I think, deep down, that they would not be given up.
  Mr. REID. The Senator, of course, is aware----
  Mr. HATCH. I think it is a political game, if you want to know.
  Mr. REID. The Senator has stated in answer to the question of the 
distinguished Senator from Alabama that Miguel Estrada has no ability 
to have these released, is that true?
  Mr. HATCH. That is correct. He doesn't control the Justice 
Department. He is no longer an employee of the Justice Department. Nor 
should he ask the Justice Department for these records.
  Mr. REID. I further ask the Senator, it is true, however, that the 
administration, whether through the counsel's office of the President, 
the President himself, or the Attorney General, could release those 
materials?
  Mr. HATCH. No, it isn't true. I don't believe the Attorney General 
could. I don't think any responsible Attorney General could release 
those. If you are saying is it theoretically possible for somebody to 
disobey the law, the rules, to not live up to the privileged and 
confidential information, to ignore every aspect of the executive 
branch of Government--I suppose somebody could say yes. But I can't. I 
don't think he would have--I don't think the Attorney General has that 
privilege; no, I don't.
  Mr. REID. Let me ask the Senator this question. Are you saying on the 
five occasions we know of, there could be more, when the Attorney 
General released memoranda from the Solicitor's Office relating to 
Rehnquist, Bork, Civiletti, and others, that they were violating the 
law when they released those documents?
  Mr. HATCH. They were completely different documents. They had nothing 
to do with recommendations for appeals, certiorari petitions, or amicus 
curiae matters. No. They have never, ever been asked for before, to my 
knowledge, and they have never, ever been given, nor would they.
  By the way, there have been some limited documents given by the 
Justice Department in some nomination matters, none of them related to 
what were requested by the Senate Democrats in this matter. And there 
are only a couple of cases where the Attorney General did allow that.
  The other cases, they appeared to have been leaked by friends of 
Democrats at the Justice Department. So they were not given up by the 
Justice

[[Page S2811]]

Department. We have more than made that case throughout this debate. 
There is no question about it. And it is just another phony argument. I 
do not blame my colleague from Nevada for not knowing that. But I think 
it is time to learn it.
  Mr. REID. Could I ask the Senator another question?
  Mr. HATCH. Sure.
  Mr. REID. I don't mind the Senator commenting on my intelligence.
  Mr. HATCH. I think the Senator is very intelligent.
  Mr. REID. Let me just complete my question. The Senator has knowledge 
that on occasions there have been memos released from the Solicitor 
General's Office relating to matters before the Senate. I ask the 
question of the Senator from Utah, does that mean on those occasions 
when they were released, a law was violated?

  Mr. HATCH. I am sorry, I missed that.
  Mr. REID. We have established in the dialog between the Senator from 
Utah and the Senator from Nevada that there have been occasions where 
the Solicitor's memos have been given to the Senate. The Senator says 
they have been on rare occasions, two occasions, I think the Senator 
from Utah said. We say five. But on those occasions, does the Senator 
believe that the law was violated, and those people who released those 
memos should have been prosecuted in some way?
  Mr. HATCH. They were not the same papers, they were not privileged, 
confidential documents of the order of magnitude that these are.
  Let me add, the Clinton nominee--this is a Caucasian, by the way, not 
a Hispanic. The Clinton nominee, William Bryce, who was confirmed to 
the Federal circuit in 1994, was an assistant Solicitor General, just 
like Miguel Estrada. But nobody asked for his memoranda from his time 
in the Solicitor General's Office. He is one of eight former Solicitor 
General Office attorneys who have been confirmed at circuit courts 
without disclosure of their memoranda.
  Why the double standard? Why do we do this to the only Hispanic who 
has ever been nominated for the Circuit Court of Appeals? And why are 
the Democrats doing this to this Hispanic man? Why are they being so 
unfair? We never did it. We wouldn't dare do it. The fact of the matter 
is, I don't think anybody who understands the nature of the Solicitor 
General's Office, and apparently some on your side don't seem to 
understand that----
  Mr. REID. If my friend will yield for one final question?
  Mr. HATCH. Let me just finish my remarks and I will go to your final 
question.
  Why the double standard? Is there a specific allegation that my 
colleagues are concerned about for which they want to review these 
highly confidential documents? If there is, I would like to know what 
it is. I don't want a fishing expedition, even if we could give them. I 
don't think there is a good explanation as to why they want these 
documents. I think that is why everyone who looks at this in fairness 
views it as nothing but a fishing expedition, which is exactly what it 
is.
  We couldn't get Miguel Estrada any other way, so why don't we go fish 
through all these documents and find just something to pin our 
antagonism towards him on, so we do not look so doggone bad? Frankly, I 
think the arguments on the other side look terrible.
  Mr. GREGG. Point of order.
  Mr. REID. Will the Senator yield for a final question?
  Mr. HATCH. Let me yield for one final question by the distinguished 
minority whip, and then I will yield to someone on this side.
  The PRESIDING OFFICER. The Senator from Nevada has the floor.
  Mr. REID. Mr. President, I say to the distinguished Senator from 
Utah----
  Mr. HATCH. I want to do this in fairness.
  Mr. REID. Bork, Civiletti, Rehnquist, and two others, none of whom 
are Hispanics--and I think a person's ethnicity has nothing to do with 
the point we have made. The point we have made is on other occasions, 
memos from the Solicitor General's Office have been made public in this 
body.
  Mr. HATCH. Can I correct the Senator? They were not Solicitor General 
memoranda. They had nothing from the Solicitor's Office.
  Mr. REID. I would respectfully submit we have in the Record, admitted 
yesterday, letters exchanged with Senator Biden and the Solicitor 
General at that time, Bolton, who was Solicitor General, that laid out 
in some detail the materials that were obtained, and in addition to 
that we have other materials obtained from the Solicitor General's 
Office that were memoranda. They are either legal or they are not.

  I have to ask the Senator this question: If these memos were 
relevant--I repeat that they were. It is in the Record. We have dates 
on the letters of when they were exchanged between the Solicitors 
General and Senator Biden, who was chairman of the committee at that 
time. I respectfully submit to my friend they are not legal. The 
decision made by the administration is that they are not going to 
release these documents.
  Mr. HATCH. Does the Senator have a question for me?
  Mr. REID. Was not a decision made by this administration that they 
are not going to release these documents even though they have in the 
past?
  Mr. HATCH. Let me answer in this way. Nobody has previously asked for 
appeal recommendations in the Solicitor General's Office--some of the 
most important work that is done; certiorari recommendations in the 
Solicitor General's Office; some of the most important work done by 
that office; or amicus curiae recommendations, some of the most 
important work done in that office.
  Let me read from the letter from the Department of Justice about what 
it has to say about this in response to this type of allegation by the 
Democrats.

       Of the seven cited nominees--

  Remember. We hear all about all of these people who got Department of 
Justice materials. Let us look at the facts. I hope my colleague will 
listen to some. I hope my other colleagues will listen because we have 
had these false arguments made day in and day out. So I am going to put 
them to bed right now.

       Of the seven cited nominees, the hearings of only two, 
     Judge Bork and Judge Easterbrook, involved documents from 
     their service in the Office of the Solicitor General. Senator 
     Schumer placed into Mr. Estrada's hearing record a single, 
     two-page amicus recommendation memorandum that Judge 
     Easterbrook authorized as an Assistant to the Solicitor 
     General. The official record of Judge Easterbrook's 
     confirmation hearing contains no references to this document 
     and based on a comprehensive review of the department's files 
     we do not believe that the department authorized its release 
     in connection with Judge Easterbrook's nomination. Senator 
     Schumer's possession of this memorandum does not suggest that 
     the department waived applicable privileges and authorized 
     its disclosure in connection with Judge Easterbrook's or any 
     other nomination.

  In other words, someone leaked that document illegally. And my 
colleagues have an illegal document leaked. At least that seems to be 
the glaring thing that happened here.
  The Justice Department goes on to say:

       The hearing record of Judge Bork's nomination to the 
     Supreme Court demonstrates that the committee received access 
     to a limited number of documents related to three specific 
     subjects of heightened interest to the committee, two of 
     which were related to Judge Bork's involvement in Watergate-
     related issues and triggered specific concerns by the 
     committee.

  We have not had specific concerns here. All we have is a fishing 
expedition. These are with specific concerns.
  Let us go further with what the Justice Department says:

       The vast majority of memoranda authored or received by 
     Judge Bork when he served as Solicitor General were neither 
     sought nor produced. And the limited category of documents 
     that were produced for the committee did not reveal the 
     internal deliberative recommendations or analysis of 
     assistants to the Solicitor General regarding appeal, 
     certiorari, or amicus recommendations in pending cases. The 
     remaining five nominations cited at the hearings similarly do 
     not justify the disclosure of deliberative material authored 
     by Mr. Estrada. None of the limited documents disclosed in 
     the hearings for these five nominations involved deliberative 
     memoranda from the Office of Solicitor General. The 
     committee, with respect to these five nominations, requested 
     specific documents primarily related to allegations of 
     miscondcut or malfeasance identified by the committee. 
     Moreover, as noted before with respect to the nomination of 
     Judge Trott, the committee requested documents wholly

[[Page S2812]]

     unrelated to Judge Trott's service at the department.

  Again, a vast majority of deliberative memoranda authored or received 
by these nominees were never sought nor received by the committee.

       In sum, the existence of a few isolated examples where the 
     executive branch on occasion called for very specific 
     information does not in any way alter the fundamental and 
     long-standing principle that memoranda from the Office of the 
     Solicitor General and deliberative Department of Justice 
     materials more broadly must remain protected in the 
     confirmation context so as to maintain the integrity of the 
     executive branch's decision-making process.
       In conclusion, we emphasis that the Department of Justice 
     appreciates and profoundly respects the Judiciary Committee's 
     legitimate need to evaluate Mr. Estrada's qualification for 
     the Federal bench. We again suggest, however, that the 
     information currently available is more than adequate to 
     allow the committee to determine whether Mr. Estrada is 
     qualified to be a Federal judge.

  I might just add again that this is more than adequate. This is more 
than has been asked of any nominee in history. Why the obstruction? Why 
the unfairness? Why are we so unfair to this Hispanic man who has all 
these qualifications that normally would blow people's minds--and do 
blow people's minds he is so qualified. Yet here he is being 
filibustered by my colleagues.
  I call on my colleagues of goodwill to quit playing games and start 
doing what is right.
  Mr. CHAMBLISS. Mr. President, will the Senator yield?
  Mr. HATCH. I yield to the distinguished Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, there have been several editorials 
written by newspapers in my State that are very critical of the 
Democrats for the obstructionist attitude and filibustering of this 
particular nomination of Miguel Estrada. One of those editorials was 
written by the Atlanta Constitution, which is extremely critical of the 
process the Democrats are going through tonight as they have for the 
last 3 weeks. The Atlanta Constitution is one of the most liberal 
papers in the United States of America.
  Mr. HATCH. That has been my experience.
  Mr. CHAMBLISS. With respect to this issue of the memoranda that they 
have requested be produced by Mr. Estrada or by the Justice Department, 
I note that the Savannah Morning News in Savannah, GA, has written that 
the ``request is unprecedented''--that ``the Democratic leadership 
wants to continue trolling further and further from shore in a 
desperate attempt to find something--anything--they can hang an 
accusation on.''
  They even write that perhaps they could subpoena a list of videotapes 
that Mr. Estrada rented as they did for Supreme Court nominee Robert 
Bork.
  Does the Senator from Utah agree that this is a true fishing 
expedition as he has previously alluded, and if the Democratic 
leadership doesn't like what they have so far they can still vote 
against Mr. Estrada?
  Mr. HATCH. I have been an attorney for a long, long time. I know a 
fishing expedition when I see one. I have been a Senator for 27 years. 
I have seen fishing expeditions before but never one as blatantly as 
this one, or exploiting a red herring issue like they are trying to do 
on this one.
  I compliment the Senator. Let me read from the editorial in the 
Savannah Morning News just a couple of paragraphs.

       The Democrats are upset because they haven't found a 
     ``gotcha'' moment in Mr. Estrada's testimony or scholarship 
     that would embarrass or contradict him, and thus provide them 
     ammunition to defeat his nomination.

  Then they went on to quote saying what the Senator from Georgia 
quoted.

       They want to continue trolling further.

  This is trolling like you have never seen before.
  Then the next paragraph says:

       The problem is, they've already had ample opportunities. If 
     they weren't happy with his answers at his hearing last 
     September, Democrats could have demanded another hearing. 
     They did not. Nor did they take full advantage of normal 
     procedure and submit written follow-up questions to Mr. 
     Estrada after the hearing--only two of the 10 committee 
     Democrats did so.
       Because they lack the votes to defeat the nomination on the 
     Senate floor they have resorted to manipulating the process 
     by any means necessary--not, mind you, because they have 
     evidence to oppose him, but because they don't.

  Boy, I agree with that editorial.
  Then they conclude by saying:

       Mr. Estrada's nomination deserves an up-or-down vote in the 
     Senate and not be held hostage by bipartisan parliamentary 
     games.

  I tell you, that sentence: Because they lack the votes to defeat the 
nomination on the Senate floor, they have resorted to manipulating the 
process by any means necessary, not, mind you, because they have 
evidence to oppose him, but because they don't.
  This editorial writer and these writers get it accurately. They have 
not laid a glove on Miguel Estrada. Here we are in the third week of a 
filibuster against the only Hispanic nominee in the history of the 
country nominated to the Circuit Court of Appeals for the District of 
Columbia.
  I ask unanimous consent that the Savannah Now editorial be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            [From the Savannah Morning News, Feb. 13, 2003]

                         Democrats Hold Hostage

       Miguel Estrada is President Bush's nominee to serve on the 
     federal appeals court for the District of Columbia, regarded 
     as the second-highest court in the land behind the U.S. 
     Supreme Court.
       He's young (41), a Hispanic immigrant success story (he was 
     born and raised in Honduras before moving to the United 
     States at age 17 and learning English) and generally 
     conservative. That, and the fact that the D.C. appeals court 
     is widely viewed as a stepping stone to the Supreme Court, 
     makes Mr. Estrada public enemy No. 1 to Senate Democrats.
       That a majority of Democrats would oppose putting Mr. 
     Estrada on the bench is not surprising. That they would 
     resort to unprecedented tactics to block a Senate vote to 
     confirm him, however, is appalling overkill and partisan 
     politics at its worst.
       Democrats have threatened to mount a filibuster to prevent 
     a floor vote they know they would lose--all 51 Republicans 
     are believed to support Mr. Estrada's nomination, as do a 
     handful of Democrats (including Georgia's Zell Miller). But 
     the number of supporters apparently falls just short of the 
     60 needed to end debate and force a vote, so Minority Leader 
     Tom Daschle is prepared to talk the nomination to death.
       A filibuster has never been deployed against a lower-court 
     nominee in the history of the Senate. It's akin to waging 
     nuclear war over Bosnia. So why is one needed now to save the 
     republic from Miguel Estrada?
       Democrats argue that he is a ``stealth'' candidate of whom 
     they know too little about his legal views. For example, they 
     complain that during Judiciary Committee hearings on his 
     nomination that he failed to answer questions about which 
     Supreme Court cases he disagreed with.
       But it would be improper for a potential judge on an 
     appeals court to bias himself against cases he might hear. 
     The lower court is obligated to apply the legal precedents 
     set by the Supreme Court, whether the jurists agree or 
     disagree with them. An appeals judge who issues a ruling that 
     reflects his stated bias could be accused of conflict of 
     interest. Judges must follow the law, not their hearts.
       Democrats also are demanding that the Bush administration 
     provide confidential papers Mr. Estrada wrote when he worked 
     in the U.S. Solicitor General's Office. The Justice 
     Department has refused on the grounds that those documents 
     are ``highly privileged.''
       Like the filibuster, that, too, is a Democratic tactic that 
     is virtually unprecedented. Indeed, the Bush administration's 
     position is supported in a letter signed by all seven living 
     former solicitors general, who served in both Republican and 
     Democratic administrations.
       The Democrats are upset because they haven't found a 
     ``gotcha'' moment in Mr. Estrada's testimony or scholarship 
     that would embarrass or contradict him, and thus provide them 
     ammunition to defeat his nomination. They want to continue 
     trolling further and further from shore in a desperate 
     attempt to find something, anything they can hang an 
     accusation on. Perhaps they could subpoena the list of 
     videotapes Mr. Estrada rented, as they did with Supreme Court 
     nominee Robert Bork.
       The problem is, they've already had ample opportunities. If 
     they weren't happy with his answers at his hearing last 
     September, Democrats could have demanded another hearing. 
     They did not. Nor did they take full advantage of normal 
     procedure and submit written follow-up questions to Mr. 
     Estrada after the hearing (only two of the 10 committee 
     Democrats did so).
       Because they lack the votes to defeat the nomination on the 
     Senate floor they have resorted to manipulating the process 
     by any means necessary--not, mind you, because they have 
     evidence to oppose him, but because they don't.
       Is that really how Democrats want to go on record opposing 
     the first Hispanic American nominated to the influential D.C. 
     court of appeals?

[[Page S2813]]

       Mr. Estrada's nomination deserves an up-or-down vote in the 
     Senate, and not be held hostage by partisan parliamentary 
     games.

  Mr. DURBIN. Will the Senator yield?
  Mr. ALLARD. Will the Senator yield for a question?
  Mr. HATCH. Without losing my right to the floor, I yield to the 
Senator from Colorado.
  Mr. ALLARD. Mr. President, is the Senator aware that the two largest 
newspapers in Colorado--the Rocky Mountain News and the Denver Post--
have both called for the Democrat leadership not to filibuster this 
judicial nominee?
  Mr. HATCH. I am aware.
  Mr. ALLARD. Is the Senator aware that the Denver Post, which endorsed 
Al Gore in the 2000 Presidential election, wrote: ``To use a filibuster 
is to impose a new requirement that judges be confirmed by a 
supermajority''?
  And is the Senator aware that the Rocky Mountain News wrote in an 
editorial: ``Keeping others from voting their conscience on this 
particular matter is simply out of line''?
  Mr. HATCH. I am aware of those editorials. And I am also aware, and I 
want my colleagues to know, that there are more than 50 editorials 
throughout the country expressing the same matters.
  I hold in my hand this binder of editorials in favor of Miguel 
Estrada--just editorial after editorial after editorial, saying how 
unfair this process really is, how unfair my colleagues on the other 
side have been, how they have ignored principles of just plain common 
decency, how they are obstructing--obstructing, in an unfair way--of 
course, obstruction, I guess, is always unfair--but how they have been 
obstructing this nominee. Why? Because, as the editorial writers say, 
they do not have anything on him.
  Mr. ALLARD. I thank the Senator from Utah for yielding.
  Mr. GREGG. I ask if the Senator from Utah will yield for a question.
  Mr. HATCH. Without losing my right to the floor.
  Mr. GREGG. I think the point that has been made by the Senator from 
Colorado is an appropriate one, citing the editorial from the Denver 
Post, I guess it was. And it raised a constitutional issue which is an 
issue that has not been discussed here very much.
  Knowing that the Senator is one of the leading authorities in the 
Senate, and really in the Nation, on the issue of constitutional law, I 
would be interested in his interpretation of article II, section 2, of 
the Constitution, which says--and I will simply read it--

       He--

  Referring to the President--

     shall have Power, by and with the Advice and Consent of the 
     Senate, to make Treaties, provided two-thirds of the Senators 
     present concur; and he shall nominate, and by and with the 
     Advice and Consent of the Senate, shall appoint Ambassadors, 
     other public Ministers and Consuls, Judges of the Supreme 
     Court, and all other Officers of the United States. . . . The 
     implication being that it does not take two-thirds to appoint 
     a judge but, rather, a majority.

  Is that your interpretation of the Constitution? And what is the 
implication of moving to a 60-vote majority in order to appoint a 
judge?
  Mr. HATCH. The Senator is absolutely right. In the very same part of 
the Constitution, it mentions that there is a supermajority vote 
required for treaties. By implication, the Senator is correct, advice 
and consent means a vote up and down on the Senate floor. It certainly 
does not mean we should have to have a supermajority vote of 60, which 
is what the Democrats are insisting upon in this body, in order to 
confirm a circuit court of appeals nominee.

  And why is the reason for that? Because the Constitution also talks 
in terms of the coequal branches of Government: the executive, the 
legislative, and the judiciary. All are supposed to be coequal, have 
coequal powers. If we require--because the Democrats will not end the 
filibuster against Miguel Estrada--60 votes before we can confirm any 
judge to a position in the judiciary, that diminishes the coequal power 
and status of the President. It also diminishes the coequal power and 
status of the judiciary, while increasing and augmenting the power of 
the legislative branch.
  That is unconstitutional. And my colleagues are acting in a highly 
unconstitutional manner. And they are creating a constitutional crisis 
by refusing to end the filibuster and the obstructive tactics in this 
very important area of Constitutional law. And I have to tell you, 
there is a way around this, but I prefer that they end these 
obstructive tactics and that we, once and for all, decide that nobody 
is going to filibuster judicial nominees because the President does 
deserve, through his nominating power, a vote up and down--a vote up 
and down--on these judicial nominees.
  That is as far as I am going to go this evening. But I have to say 
that my colleagues are asking for the world to see that the system is 
broken. If they break the system, then no holds barred, if they break 
the system, we have to uphold the Constitution on our side, and we are 
going to do it.
  Now, all I can say is this. We have a clear majority of Senators who 
want to see Miguel Estrada confirmed. And a minority is obstructing--
obstructing--O-B-S-T-R-U-C-T-I-N-G--did I spell it right?--obstructing 
him from being a judge, and obstructing us from exercising our advice 
and consent powers the Constitution provides.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. I am delighted to yield to my colleague from Illinois.
  Mr. DURBIN. I would like to ask the Senator the following question: 
Has he not stated during the course of the day that the memoranda which 
we are seeking, namely, memoranda prepared to the Office of the 
Solicitor General----
  Mr. HATCH. The fishing expedition you are asking for?
  Mr. DURBIN. Pardon me?
  Mr. HATCH. You mean, the fishing expedition you want to have?
  Mr. DURBIN. The Senator may characterize it as he chooses.
  Mr. HATCH. I do characterize it as such.
  Mr. DURBIN. Have you said the memoranda we are seeking in order to 
understand the jurisprudential philosophy of this nominee has not been 
produced except in those instances where it has been leaked or other 
instances where we have questions related to ethical considerations?
  And is the Senator not aware of the fact that I am holding in my hand 
a memorandum from Frank Easterbrook to the Solicitor General relative 
to the Bork nomination, produced for the Senate Judiciary Committee, 
relating not to an ethical case but rather to a civil rights case, and 
that it is in a category that the Senator from Utah has said, 
categorically, this evening, has never been produced; namely, a 
recommendation for an amicus brief participation?
  Is the Senator from Utah aware that the very brief and memorandum 
which he said has never been produced was, in fact, produced to the 
Senate Judiciary Committee during the Bork nomination? And I hold a 
copy in my hand.

  Mr. HATCH. I do not think the Senator knows that came from the Bork 
matter. I don't think you can make that claim.
  Mr. DURBIN. That is exactly where it came from.
  Mr. HATCH. Let me answer the question, and let me address some of the 
specific examples my Democratic colleagues have represented as 
precedent for their demand.
  One, of course, is Frank Easterbrook, who is a judge on the Seventh 
Circuit Court of Appeals, which the Senator is raising. The Democrats' 
mere possession of a single memorandum--a 2-page amicus recommendation 
that Mr. Easterbrook wrote as an assistant to the Solicitor General--
does not suggest that the Justice Department waived any privileges or 
authorized it to be disclosed. It did not.
  The official record of the Easterbrook confirmation hearing contains 
no references to this document. There is nothing in the hearing that 
shows a reference to it, at least as far as I know. And I am quite sure 
about that.
  After comprehensively reviewing its files, the Justice Department 
concluded that it never authorized the document's release.
  Now, last fall, I sent a letter to Senator Schumer, and then to 
Senator Leahy, specifically asking for information about how the 
Democrats obtained this memorandum that the Senator has been waving 
here, with impunity, by the way. To this day, I have not received a 
response to my question.

[[Page S2814]]

There is probably a very good reason for it because he should not have 
that memorandum. I do not know how they got it.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. HATCH. Not yet.
  That single document provides no precedent for the Democrats' 
sweeping request for every document Mr. Estrada ever prepared on appeal 
recommendations, certiorari recommendations, and amicus 
recommendations.
  Now, let me take a clear look at this. The Justice Department has no 
record; the hearing has no record. How is it that the Democrats have 
that? I can guarantee you they don't have it legally--at least I think 
I can guarantee that. That is the reason why I have not received a 
reasonable response. I haven't received any response. I would think if 
they had it legally, they would give me a response on it.
  Mr. DURBIN. Will the Senator yield?
  Mr. HATCH. I asked for it and, as ranking member of the committee, I 
was entitled to it. They ignored my request.
  The Senator made a couple other remarks I find particularly 
offensive. I will get into those other remarks later. The Senator had 
another question.
  Mr. DURBIN. Will the Senator yield for a further question?
  Mr. HATCH. Yes, without losing my right to the floor.
  Mr. DURBIN. The Senator is taking exception to this memorandum that 
the Solicitor General produced during the Bork nomination relating to 
an amicus. I hold in my hand a copy of the transcript of the hearings 
of the Committee on the Judiciary relating to the nomination of William 
Bradford Reynolds to be Associate Attorney General of the United 
States. And written within the committee hearings, you will find on 
page 983 a copy of a memorandum to the Solicitor General, sent by Mr. 
Reynolds relating to the recommendation on an amicus brief. I ask the 
Senator from Utah, would he like to at least modify his earlier 
statement that the Department of Justice has never produced a 
memorandum to the Solicitor General relating to amicus briefs in light 
of the fact that it is part of the official transcript of his 
committee?
  Mr. HATCH. Let me answer that question. The Senate sought and 
received materials in the course of pursuing specific allegations that 
Mr. Reynolds, while Assistant Attorney General for Civil Rights failed 
to enforce the Voting Rights Act and Civil Rights Act--as with Mr. 
Civiletti, by the way. The Department's disclosure was limited to 
specific cases of alleged misconduct--limited.
  The sweeping request by the Democrats in this matter is completely 
different. There have been no allegations that Mr. Estrada engaged in 
any improper behavior or failed to discharge his duties. Significantly, 
although Mr. Reynolds previously had served as an assistant to the 
Solicitor General, the Senate never suggested--never--that his appeal, 
certiorari, or amicus recommendations should be divulged. Never.
  Let's just be honest here. With regard to specific allegations, if 
the Senators have them, bring them out, instead of asking for a fishing 
expedition into what could be thousands of documents that are 
privileged down at the Department of Justice in the Solicitor General's 
Office. No self-respecting Attorney General or President of the United 
States is going to give you those documents. How you got some of these 
documents, I cannot say. I am not suggesting that my colleagues have 
done wrong in getting these documents, but somebody gave them to them 
who didn't have the authorization to do it. The Justice Department did 
not authorize the giving of whatever documents you have. I don't care 
that you have them. It doesn't mean anything to me, except that it is 
phony in my eyes to use them and try to say we ought to have this 
sweeping demand for maybe thousands of documents that we don't know 
what is in there, but we want to be able to fish through them and see 
if we can find something against Mr. Estrada.
  I hope one of these days my Democratic colleagues will wake up and 
realize how ridiculous they look on these arguments. These are terrible 
arguments, phony arguments, if you will.
  Mr. CORNYN. Will the Senator yield for a question?
  Mr. HATCH. Yes, without losing my right to the floor.
  Mr. CORNYN. The Senator from Utah is well versed in the law of 
attorney-client privilege. I believe that earlier I asked--and I am 
asking for clarification now--whether even if Mr. Estrada wanted to 
produce the memos that the Democratic minority wishes to receive, 
whether he has custody of those, or whether it is the client's 
privilege to waive or not to waive, and the client--in this case, the 
Department of Justice--decided not to waive any claim to the privilege 
they may have on these documents.
  Mr. HATCH. Mr. Estrada said he is proud of the work he did. He would 
personally have no real problem. He also recognizes there is a good 
reason not to give those documents based upon law and confidentiality 
and upon client-attorney work product.
  This is the attorney for the American people. If we start giving his 
internal documents out, he cannot function--he or she, whoever it is. 
So, yes, I am aware of that.
  I was interested that over the last weekend, the Senator from New 
York, who has been very vocal in his opposition to Mr. Estrada--the 
conservative party of New York said they didn't know enough about him--
the same arguments the Democrats are using--by the way, this is almost 
2 years they have been examining Mr. Estrada, going through everything 
they possibly can--Supreme Court briefs, all of his arguments, briefs 
in other cases, all kinds of other matters. They have had a full solid 
day of testimony and they asked written questions. Now they are 
complaining they don't know enough.
  The conservative party of New York, as I understand it, wrote a 
letter to Senator Schumer and said: We don't know enough about you. How 
about giving us your internal documents with regard to these matters? 
Maybe he will do that. I don't know. In all honesty, no self-respecting 
attorney who understands this--and this includes the Solicitor General 
and the Attorney General--would give up his work product that he or she 
has been doing for clients. It would be unethical to do so. In this 
particular case, according to seven former Solicitors General--the only 
living ones to my knowledge--it would be a travesty to do it. It would 
undermine the very work of the Solicitor General's Office. Four of 
those were Democrats, three of whom I think he served.
  So these arguments are really red herring, phony arguments. I don't 
know how they have the brazenness to keep bringing them up.
  Mr. CORNYN. If the Senator will yield for a further question, in my 
State of Texas, as in other States that we have heard from here 
tonight, there is overwhelming editorial support for Mr. Estrada's 
nomination. Six separate newspapers have called on the Democratic 
leadership to stop this filibuster, including papers from Waco, El 
Paso, Dallas, Austin, Fort Worth, Victoria, and I believe there is 
another one I saw from Tyler in east Texas.
  Yet we hear that Democrats come to the floor and say, in effect, that 
nobody cares about this issue. And in the case of the senior Senator 
from New York, who earlier today indicated that Democrats really should 
not pay much attention to this, or worry about paying a political price 
because no one is paying attention--well, I would like to tell you that 
is not true in Texas.
  Let me ask the Senator from Utah, would he agree with me that whether 
or not people are paying attention, is that the standard we have come 
to expect from this institution and Members of the Senate when it comes 
to doing the right thing and discharging our constitutional 
responsibilities, when it comes to advice and consent for judicial 
nominees?
  Mr. HATCH. That is an excellent question. There is no question that 
people are paying attention to this. I have been overwhelmed by 
Hispanic concerns, just today, all over the country. They are starting 
to awaken to this. One of the Hispanic nominees--most all of them will 
say he should not be on the court just because he is Hispanic. We would 
not support him just for that, but he is qualified. He made the grade. 
He ought to be treated like everybody else. He will make a great judge. 
These are Democrats speaking,

[[Page S2815]]

and Independents, and Republicans speaking. But editorial writers all 
over the country are speaking as well.
  The Senator raised the Dallas News. In an editorial entitled ``Rush 
to Judgment: Estrada nomination has been blocked too long''--we are in 
the third week of this--let me read a paragraph or two:

       Democrats by now are in full filibuster. Senate 
     proceedings, as carried on C-SPAN, resemble the film 
     Groundhog Day, where the main character has to relive the 
     same day over and over again. Every day, it's the same thing. 
     Democrats get up, march over to the podium, and shuffle 
     papers and recite their main complaint with Mr. Estrada--that 
     he is conservative, unconventional, and unapologetic. That 
     when he had the chance to hand them the rope with which to 
     hang him during his hearing before the Senate Judiciary 
     Committee, he refused to hold up his end.

  I think that is pretty good. Then they say:

       And so they have talked and talked, in hopes that 
     Republicans will back down. They won't. Nor should they.

  I might add, in the El Paso Times, which the Senator noted--let me 
read one line in that:

       Set politics aside, confirm a well-qualified nominee, and 
     work for the good of the country rather than the party.

  In the Austin American Statesman, to mention three Texas newspapers:

       If Democrats have something substantive to block the 
     confirmation of Miguel Estrada's confirmation to the U.S. 
     Circuit Court of Appeals for the District of Columbia, it's 
     past time they share it. Estrada's nomination was announced 
     in May--

  They should have said 2001, almost 2 solid years ago--

     and has been held hostage since by Senate Democrats who have 
     yet to clearly articulate their objections to it.

  I ask unanimous consent that these three editorials be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows

             [From the Dallas Morning News, Feb. 21, 2003]

     Rush to Judgment: Estrada Nomination Has Been Blocked Too Long

       There is a time for talking and a time for voting. The time 
     is past for the U.S. Senate to talk about Miguel Estrada's 
     nomination to the federal Court of Appeals for the District 
     of Columbia circuit. It's time to vote.
       Having emigrated from Honduras as a teenager unable to 
     speak much English, Mr. Estrada went on to graduate magna cum 
     laude from Columbia University and Harvard Law School, to 
     clerk for a Supreme Court justice, to serve two 
     administrations in the U.S. solicitor general's office, to 
     win more than a dozen cases in the Supreme Court. In short, 
     the 42-year-old lawyer is talented. Who knew that talent 
     would extend to tying the Senate in knots for days on end.
       Democrats by now are in full filibuster. Senate 
     proceedings, as carried on C-SPAN, resemble the film 
     Groundhog Day, where the main character; has to relive the 
     same day over and over again. Every day, it's the same thing. 
     Democrats get up, march over to the podium, shuffle papers 
     and recite their main complaint with Mr. Estrada--that he's 
     conservative, unconventional and unapologetic. That when he 
     had the chance to hand them the rope with which to hang him 
     during his hearing before the Senate Judiciary Committee, he 
     refused to hold up his end.
       Democrats haven't liked Mr. Estrada from the beginning. 
     Part of that is due to his ideology--which is decidedly not 
     Democratic. But part of it also has to do with the fellow who 
     nominated him. Democrats don't relish giving President Bush 
     one more thing to brag about when he goes into Hispanic 
     neighborhoods during his re-election campaign next year. They 
     are even less interested in putting a conservative Republican 
     in line to become the first Hispanic justice on the Supreme 
     Court.
       And so they have talked and talked, in hopes that 
     Republicans will back down. They won't. Nor should they.
       Republicans certainly stalled their share of appointments 
     during the Clinton administration. But Democrats are being 
     shortsighted in seeking retaliation. It is precisely these 
     sorts of narrowly motivated temper tantrums--from both sides 
     of the political aisle--that turn off voters and make cynics 
     of the American people. When that happens, it doesn't matter 
     which nominees get confirmed or rejected. Everybody loses.
                                  ____


                 [From the El Paso Times, Feb. 8, 2003]

    Stop the Partisan Delay; Judicial Nomination Should Be Based on 
                             Qualifications

       Senate Democrats, led by Minority Leader Tom Daschle from 
     South Dakota, aren't likely to be cited for obstruction of 
     justice. But that's in effect what they're doing by blocking 
     Senate confirmation of Miguel Estrada for the District of 
     Columbia-based federal appeals court. There were even hints 
     of a filibuster.
       Playing politics to keep a well-qualified nominee from 
     being confirmed is as common as it is often destructive. And 
     it's not peculiar to Democrats; Republicans do the same 
     thing.
       But this time it happens to be Democrats threatening to 
     block the confirmation of an eminently qualified judicial 
     nominee, keeping an important position from being filled in a 
     court system that is in dire need of qualified judges.
       Thankfully, threats of a filibuster don't seem to have 
     universal support even among Senate Democrats. Sen. John 
     Breaux, D-La., said that Estrada is ``uniquely qualified.''
       Democrats oppose Estrada because they believe he is too 
     conservative. Political philosophy can certainly be germane 
     when talking about politicians and political parties, but it 
     shouldn't really have any bearing on the fair administration 
     of justice.
       As Sen. Orrin Hatch, R-Utah and chairman of the Senate 
     Judiciary Committee, said, ``I believe (Estrada) to be 
     moderate to conservative, but I don't know. The important 
     thing is he's qualified, and he ought to be approved.''
       That's what needs to happen now. Set politics aside, 
     confirm a well-qualified nominee, and work for the good of 
     the country rather than the party.
                                  ____


          [From the Austin American-Statesman, Feb. 21, 2003]

        Approve Estrada Nomination or Don't--Just Get on With It

       If Democrats have something substantive to block Miguel 
     Estrada's confirmation to the U.S. Court of Appeals for the 
     District of Columbia, it's past time they share it. Estrada's 
     nomination was announced in May and has been held hostage 
     since by Senate Democrats who have yet to clearly articulate 
     their objections to it.
       Those unschooled in Washington-think--that would be most of 
     us--are bewildered why Estrada, who worked in the Clinton 
     administration, is now deemed unworthy to sit on the bench. 
     So instead of clear reasons, we are treated to a sideshow 
     involving the nominee's ethnicity. Estrada was born in 
     Honduras, immigrated to the United States as a teenager and 
     graduated from Harvard Law School in 1986.
       Democrats and their supporters hint that Estrada may not be 
     ``Hispanic enough''--whatever that means--while his 
     Republican supporters note that the nominee's opponents are 
     ``anti-Latino.'' Though vaguely amusing, the arguments have 
     nothing to do with whether Estrada has the intellectual 
     ability and temperament to become a judge on the second most 
     influential court in the nation.
       Competence, ability and commitment to the law are what 
     should matter, but don't, in winner-take-all ideology fights. 
     In any event, Democrats appear to be the same kind of 
     ideology-driven obstructionists they accused Republicans of 
     being when President Clinton's nominees hit confirmation 
     roadblocks.
       Though partisans may not quite see it, what is really 
     imperiled by this judicial hostage-taking is confidence in 
     the American court system. What we're seeing here is an ugly 
     legal brawl in which the participants use big words instead 
     of bottles to hit the opponents on the head.
       Enough is enough. We don't expect the partisan brawl over 
     judicial appointments to ever end, but Estrada has clocked 
     enough time as a punching bag for Democrats. Call the vote.

  Mr. HATCH. Mr. President, let me say more to my distinguished 
colleague who I think has raised some pretty important issues here. It 
is absolutely astounding to me, because I have heard the same comments: 
We Democrats are not worried about this; nobody is paying attention to 
it; we are not going to pay a political price; we do not care what we 
do to this Hispanic man, even though he is highly qualified--and I 
heard a number of Democrats admit he is highly qualified--we are just 
going to do this.
  I call them my colleagues. Look, I have used some pretty tough 
language here tonight. I do not want to apologize for it because I feel 
deeply, but I will apologize. I feel deeply about this issue. I am 
fighting for this man, as all of us Republicans are. Every one of us is 
concerned. Every one of us wants this man to be confirmed. Every one of 
us wants to see justice here. Every one of us wants to stop the 
obstructive tactics. Every one of us wants to do what is right here. So 
if I have been too enthusiastic this evening, I apologize. I feel so 
passionate about this, so deeply about this that I can hardly stand it.
  I have never seen, other than in Supreme Court nominations, this type 
of shabby treatment. I have never seen it before. I think I have a 
reputation for fairness around here. I think I have a reputation for 
knowing what is going on in the Judiciary Committee. I think I have a 
reputation for putting through the Clinton judges. I see this shabby 
treatment, and I cannot help but get emotionally disturbed by it. I do 
not know how any honest, decent person would not feel the same way.
  I tell you, I feel like I am Hispanic. I am the chairman of the 
Hispanic task

[[Page S2816]]

force on our side. For 13 years I have done that, long before some 
believe the Hispanic people in this country were a political force. I 
have fought for Hispanics every day I have been in the Senate. I 
particularly resent this treatment. I particularly resent the fishing 
expeditions where they cannot come up with one reason for even wanting 
these privileged papers. They have not listed a specific reason. They 
just say: Let us cast our line out there and let us see what we can 
find because we do not have anything on this man and we do not want him 
on the court because he is appointed by a Republican President and he 
is a Republican himself, and he is a conservative, a Hispanic. We do 
not want those kinds on the Federal bench.
  Mr. REID. Will the Senator yield for a question?
  Mr. HATCH. That, in essence, is what this argument is all about.
  Mr. REID. Will the Senator yield for a question?
  Mr. HATCH. Without losing my right to the floor.
  Mr. REID. Is the Senator aware that on August 24, 1987, John Bolton, 
the Republican Assistant Attorney General, wrote a letter to Chairman 
Biden, among other things saying:

       Accordingly, we have decided to take this step of providing 
     the committee access to responsive materials we currently 
     possess except those privileged documents specifically 
     described. Of course, our decision to produce these documents 
     does not constitute a waiver of any future claims of 
     privilege concerning other documents the committee requests 
     or waiver of any claim over these documents with respect to 
     the entities or persons other than the Judiciary Committee.

  Mr. HATCH. Of course, Senator Leahy put that in the Record I believe 
on February 25. Let me answer. This is a letter to Senator Thurmond.
  Mr. REID. Senator Biden.
  Mr. HATCH. The one I have is a letter to Senator Thurmond. I also 
have attached to that two letters to Senator Biden. I have a number of 
letters here. I understand all of these letters the distinguished 
ranking member of the committee has put in the Record.
  I point out to the distinguished Senator from Nevada that all of 
these letters are from the Office of Legal Counsel, not the Solicitor 
General's Office. They refer to--
  Mr. REID. But the Senator would agree the Attorney General released 
memos from the Solicitor General's Office in this letter. That is what 
it does. That is what the letter is about. Is the Senator aware of that 
point?
  Mr. HATCH. These were responses to specific allegations--let me ask 
the Senator on my time, without losing my right to the floor, is the 
Senator aware of any specific allegations justifying the request for 
these records from the Solicitor General? Just answer my question. Are 
you aware of any specific allegations that need to be investigated from 
the Solicitor General's Office? If you are, I would like to know about 
it rather than have a fishing expedition trying to find something to 
murder this guy with.
  Mr. REID. The Senator from Utah made a statement on this floor this 
evening that it is illegal to release documents relating to memos in 
the Solicitor General's Office, and the record is very clear it has 
been done before on more than one occasion.
  Mr. HATCH. Mr. President, if he has a question, I will be happy to 
take it. Gratuitous comments are not fair.
  Mr. REID. You asked me a question, and I was answering.
  Mr. HATCH. I will go with that. The fact is I have not said that. At 
least I do not believe I said that. I said that these documents are not 
given. I said we have never given appeal recommendations and certiorari 
recommendations that were fairly requested except in cases where there 
were specific allegations, and then in a very limited way.
  These letters are responding to Senator Biden's August 6 request for 
certain additional materials referred to in the documents from the 
Office of Legal Counsel, and I have not said that the Attorney General 
will act illegally if the Attorney General gives up documents. I 
suppose the Attorney General can theoretically do anything he wants to 
do, but he will not be acting responsibly if he gives up privileged 
documents that should not be given up by the executive branch.
  I suspect and said earlier theoretically I suppose the Attorney 
General can do that if he wants to. He would not be responsible to do 
it under these circumstances.
  Mr. REID. That is what Senator Durbin and I have been trying to show 
all night. It has been done in the past.
  Mr. HATCH. Let me just make another comment. Is it your desire here 
to trip me up in a multihour debate, or is it your desire to really 
find out something about Miguel Estrada you specifically know exists? 
If that is it, maybe I can accommodate you, I don't know. But the fact 
is, this is just a job of who got whom. I gotcha, Miguel Estrada, 
because I got a complaint that there may be in thousand of documents 
something that might destroy his nomination.
  Am I on trial here? Is that what the Senator is doing? I will be 
happy to say to the Senator, I do make mistakes sometimes. But let me 
tell you something. Give me a reason that really is specific why the 
Justice Department should give you access to these thousands of pages 
of privileged documents that they have never given before except in 
specific requests and then in this case, the Office of Legal Counsel 
matters, not the Solicitor General.
  Come on, let's be fair here. Is there a substantive reason for all of 
this blather on the Senate floor? Is there a substantive reason? Do we 
have a substantive reason to obstruct this man? Do we have a 
substantive reason? I have not seen an argument against him since the 
debate began other than the phony argument that he did not answer the 
questions, which the distinguished Senator from Tennessee, Senator 
Alexander, blew away tonight.
  I think that has been blown away by other Senators as well. My gosh, 
what is fair is fair.
  Mr. REID. Could I respond to the question the Senator asked me 
without losing his right to the floor?
  Mr. HATCH. I will recognize the Senator from North Carolina right 
now--excuse me, South Carolina.
  Mr. REID. The Senator asked me a question.
  Mr. HATCH. I did not ask the Senator a question. Well, I suppose I 
did, theoretically.
  I would like the Senator to think about the answer.
  The PRESIDENT pro tempore. Who is seeking recognition?
  Mr. GRAHAM of South Carolina. Will the Senator from Utah yield for a 
question?
  Mr. HATCH. Without losing my right to the floor.
  Mr. GRAHAM of South Carolina. Mr. President, it is fair to say, like 
many other States, this nomination has not gone unnoticed by the media 
in my State of South Carolina--I have been called worse things than 
being from North Carolina. Both the Spartanburg Herald Journal and Post 
& Courier of Charleston have called for an end to this filibuster, and 
there is one aspect of the Spartanburg Herald Journal editorial I would 
like to ask the senior Senator from Utah about, and it goes as follows:

       No reasonable Congress ought to be seeking such material--

  And talking about legal memorandum written by a lawyer to a client--

     as a letter from all living former Solicitors General 
     attests. . . . They don't want those lawyers to be worrying 
     about how their memos will impact future attempts to win 
     judicial seats.

  Does the Senator from Utah agree that if we start taking memos 
prepared by lawyers to their clients and bring those memos out in a 
fashion as to whether or not a person is qualified to serve one day in 
the future in the judiciary that it may change work product and it will 
be very bad for the Justice Department lawyers to have to be thinking 
about those things? Does the Senator agree this is a road none of us 
should want to go down?
  Mr. HATCH. Seven former Solicitors General agree, four of whom are 
Democrats and three of whom he served with, three of whom understand 
whatever he did, why don't my colleagues ask them? I am sure they have 
in their quest to find some fish around here, and apparently they do 
not have any specific reasons for asking for this huge fishing 
expedition. But even if they did, what responsible attorney would give 
up his work product?
  Now, let's suggest there is a Democrat President and one of our body 
is invited to be a member of the Circuit Court of Appeals for the 
District of Columbia, he decides he is sick and tired

[[Page S2817]]

of the Senate, mainly because of obstructive tactics like this, I am 
sure, and we, as Republicans, then say we are not going to let him 
serve until we get all of his internal memoranda while he was a 
Senator. Do my colleagues think he is going to give that up? He would 
be nuts, because we would then be able to find all kinds of rotten fish 
in there to use against him or her. Do my colleagues see the point?
  I hope our side would not stoop to that level, and I would fight to 
make sure we did not stoop to that level. So I ask, where are the 
specific allegations? They must have talked to at least their four 
Democrat former Solicitors General and said, is there not something 
there? By the way, those Solicitors General are for Miguel Estrada, at 
least have said that he handled himself very well and is ethically 
responsible, and his performance recommendations that they signed are 
the highest form of recommendations. They have all said he has done 
that in the highest sense of the Solicitor General's Office.

  So, yes, the Senator is absolutely right. Seven former Solicitors 
General, four of whom are Democrats, three of whom he worked with in 
the Clinton administration and the Bush administration.
  I would like to share with my colleagues an editorial cartoon which 
really sums it up well. It shows one of two Democrat caricatures 
stating:

       The makeup of the judicial system should look like America, 
     including blacks, Asians and Latinos.

  Then the other asks: What about Estrada? These are two donkeys.
  The other tellingly replies: That is different. He is not a liberal.
  That is what this is all about. He is not a liberal. How could we 
have the temerity to choose a Hispanic nominee for the Circuit Court of 
Appeals for the District of Columbia? How could this President do this 
since he is not a liberal? That is what is involved.
  Mr. SESSIONS. Will the Senator yield for a question?
  Mr. HATCH. Without losing my right to the floor.
  Mr. SESSIONS. Mr. President, I will ask the Senator from Utah--I 
first would say how effective I think he has been tonight in indicating 
there are no reasons to oppose this nomination. I would note that the 
Mobile Register in my State has a fine editorial page, and they wrote:

       All precedent indicates that a filibuster against judicial 
     nominations for any reason but one concerning the nominee's 
     very integrity is essentially dirty pool.

  My question is: Has this nominee's integrity ever been questioned and 
does the Senator agree that this filibuster is dirty pool?
  Mr. HATCH. This nominee's integrity has never been in question. I 
think my colleagues on the other side have acknowledged that. His 
integrity is totally intact. He is an honest, decent, honorable man 
who, in spite of a disability, a speech impediment, has risen to the 
top of the legal world, who is a partner in one of the major law firms 
in this country, who has the highest rating of the American Bar 
Association, unanimous, well-qualified rating. This man's integrity has 
never been called into question, to my knowledge, and I would be very 
ashamed of anybody who tried to call his integrity into question.
  I have been very passionate this evening, and I apologize to my 
colleagues if I have offended anybody, but I have to say this is really 
important stuff. We cannot allow this type of treatment to go on. We 
are talking about a breakdown in the Senate, if a filibuster for the 
first time in history is maintained to defeat a nominee, any nominee, 
let alone the first Hispanic ever nominated to the Circuit Court of 
Appeals for the District of Columbia. I have not wanted to antagonize 
or offend any of my colleagues, and I apologize if I have, but what I 
have said tonight is true.
  I have to say, I am really disturbed by the obstructive tactics that 
are being used. I would be equally upset if they were used on our side, 
but they have not ever been used in this fashion on our side.
  I see the majority leader is in the Chamber, but first I forgot to 
put these letters in earlier, my letter to Senators Leahy and Schumer, 
with regard to the Easterbrook document. I ask unanimous consent that 
they be printed in the Record.
  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, October 1, 2002.
     Hon. Charles E. Schumer,
     U.S. Senate, Committee on the Judiciary,
     Washington, DC.
       Dear Senator Schumer: Thank you for chairing last 
     Thursday's hearing on the nomination of Miguel Estrada to the 
     United States Court of Appeals for the District of Columbia 
     Circuit. I write to seek your clarification on a matter which 
     you raised at the hearing.
       You reiterated your belief that the Department of Justice 
     should turn over certain appeal, certiorari and amicus 
     recommendations that Mr. Estrada authored when he served as 
     an Assistant to the Solicitor General. As precedent for this 
     request, you noted that during the nomination of Judge Frank 
     Easterbrook to the Seventh Circuit Court of Appeals, similar 
     memos were turned over to the Committee. You produced those 
     documents and placed them into the hearing record. When 
     Republican staff requested copies of the documents, only one 
     of the three documents we received appeared to pertain to 
     Judge Easterbrook. That document consists of a two-page 
     memorandum referencing another memorandum prepared by someone 
     else.
       At the hearing, you did not explain whether the Committee 
     had ever formally requested this document, or the other two 
     documents, from the Department of Justice, or whether the 
     Department of Justice consented to their disclosure. The 
     written record of Judge Easterbrook's hearing contains no 
     such documents, or even a mention of them. So that the record 
     of Mr. Estrada's hearing is as complete as possible, please 
     advice whether you have any information that the Committee 
     requested these documents from the Department of Justice and 
     whether the Department consented to their disclosure to the 
     Committee. If the documents were neither requested of nor 
     produced by the Department of Justice, please indicate the 
     manner in which the Committee came to possess them.
       Thank you for your prompt attention to this matter. I look 
     forward to your response.
           Sincerely,
                                                   Orrin G. Hatch,
     Ranking Republican Member.
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

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

  Mr. REID. Mr. President, I have a unanimous consent request.
  Mr. FRIST addressed the Chair.
  Mr. REID. I have a unanimous consent to make and ask if the majority 
leader would yield for that unanimous consent request.
  Mr. FRIST addressed the Chair.
  The PRESIDENT pro tempore. The majority leader has the floor.
  Mr. REID. Of course he does.
  Mr. FRIST. Mr. President, as we have for the past 3 weeks, my 
Republican

[[Page S2818]]

colleagues, as we can see from the Chamber now, and I have stood ready 
to debate the Estrada nomination. Few of our Democrat colleagues have 
been present tonight, although we clearly stand ready to vote on this 
nomination. It appears that most of our colleagues in the minority are 
prepared neither to debate nor to vote on Miguel Estrada. Tonight my 
colleagues have shed light on the immense reaction from newspapers all 
over the country to the obstruction of this nomination. Tonight my 
colleagues have shed light on the fact that the peculiar and truly 
unprecedented obstruction the minority is pursuing is founded upon a 
double standard which is being applied to this particular nominee. 
Tonight we have made clear once again that obstruction is being played 
out in the Senate by a minority that appears far from the mainstream of 
opinion throughout this country.
  I ask unanimous consent that the vote occur on the confirmation of 
the nomination of Miguel Estrada at midnight tonight, provided further 
that the time between now and then be equally divided between the 
chairman and ranking member or their designees, and that at midnight 
the Senate proceed to a vote on the confirmation of the nomination with 
no intervening action or debate.
  Mr. DASCHLE. Mr. President, I ask unanimous consent that the request 
made by the majority leader be modified to include that the Justice 
Department provide the requested documents relative to Mr. Estrada's 
Government service, first requested in May of 2001; that 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 such documents.
  Mr. FRIST. Reserving the right to object to that request for 
modification, let me cite a sample of editorials and what they say 
about my distinguished friend's request with regard to these memoranda. 
Just a couple.
  From the Redding Record Searchlight in California from February 15: 
The administration won't hand over memos he wrote when he was in the 
Solicitor General's Office, say the Senate Democrats. It apparently 
does not matter to them that publicizing them could rob future memos of 
their candor and that every former Solicitor General of either party 
has said the Democrats seek too much.
  Just one other from the Detroit News, February 11, 2003: Democrats 
also demanded that he produce his memos and recommendations while he 
was in the Solicitor General's Office, which had never been done for 
any other candidate who had been an assistant in that office. The 
demand was rejected not only by Estrada but by every former Solicitor 
General still living, including those who served Democratic Presidents.
  I reject the request for modification.
  Mr. DASCHLE. Then I object, as well.
  The PRESIDENT pro tempore. The objection is heard.
  Mr. FRIST. As I said, tonight my colleagues have addressed all the 
many obstacles that have been put forward by the minority one by one by 
one by one through a series of questions handled so ably by our 
chairman of the Judiciary Committee, a nomination that the President of 
the United States sent to this Senate 2 years ago. Thus, I modify my 
request so that each Member on the other side of the aisle would be 
permitted to speak for up to 1 hour on the nomination prior to a vote.
  The PRESIDENT pro tempore. Is there objection?
  Mr. DASCHLE. Mr. President, I again ask unanimous consent that the 
request made by the majority leader be modified to allow for the 
documents requested by the Judiciary Committee members be provided as a 
part of the hearing record and that additional questions proposed by 
Judiciary Committee members be included in the Record at that time.
  Mr. FRIST. Mr. President, in response to the motion, let me cite 
another sample editorial. Again, it has been fascinating to watch the 
editorials over the last 2 weeks.
  The PRESIDENT pro tempore. Is there an objection?
  Mr. DASCHLE. Mr. President, I will ask for regular order. We can 
debate this if the majority leader wishes, but this is a unanimous 
consent request.
  The PRESIDENT pro tempore. Is there an objection?
  Mr. FRIST. Mr. President, I object to the request for the 
modification.
  Mr. President, I have tried, as you can see, on numerous occasions to 
reach an agreement for something very simple, and that is an up-or-down 
vote on this qualified nominee. Once again, there has been an objection 
from the other side of the aisle. It is time to allow the Senate to 
work its will on this nomination, the will of the Senate.
  We are here, as you can see, ready to vote.
  Mr. DASCHLE. I was under the impression I made the objection, but of 
course if I did not, I do it again.
  The PRESIDENT pro tempore. The objection is heard.
  Mr. FRIST. I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll, and the 
following Senators entered the Chamber and answered to their names:

                           [Quorum No. 2 Ex.]

     Allard
     Bayh
     Daschle
     Dorgan
     Durbin
     Frist
     Hutchison
     Leahy
     Lugar
     Pryor
     Reid
  The PRESIDENT pro tempore. A quorum is not present. The clerk will 
call the names of absent Senators.
  The assistant legislative clerk resumed the call of the roll.
  Mr. FRIST. I move that the Sergeant at Arms be instructed to request 
the attendance of absent Senators, and I ask for the yeas and nays.
  The PRESIDENT pro tempore. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDENT pro tempore. The question is on agreeing to the motion 
of the Senator from Tennessee. The yeas and nays were ordered, and the 
clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FRIST. I announce that the Senator from Rhode Island (Mr. 
Chafee), the Senator from Nebraska (Mr. Hager), and the Senator from 
Kentucky (Mr. McConnell) are necessarily absent.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from New Mexico (Mr. Bingaman), the Senator from West Viginia 
(Mr. Byrd), the Senator from Delaware (Mr. Carper), the Senator from 
North Dakota (Mr. Conrad), the Senator from North Carolina (Mr. 
Edwards), the Senator from California (Mr. Feinstein), the Senator from 
Florida (Mr. Graham), the Senator from Iowa (Mr. Harkin), the Senator 
from South Carolina (Mr. Hollings), the Senator from Hawaii (Mr. 
Inouye), the Senator from Vermont (Mr. Jeffords), the Senator from 
South Dakota (Mr. Johnson), the Senator from Massachusetts (Mr. 
Kennedy), the Senator from Massachusetts (Mr. Kerry), the Senator from 
Louisiana (Mr. Landrieu), the Senator from New Jersey (Mr. Lautenberg), 
the Senator from Connecticut (Mr. Lieberman), the Senator from Maryland 
(Ms. Mikulski), the Senator from Rhode Island (Mr. Reed), the Senator 
from West Virginia (Mr. Rockefeller), the Senator from Maryland (Mr. 
Sarbanes), and the Senator from Oregon (Mr. Wyden) are necessarily 
absent
  The PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 73, nays 1, as follows:

                       [Rollcall Vote No. 36 Ex.]

                                YEAS--73

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Campbell
     Cantwell
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Kohl
     Kyl
     Leahy
     Levin
     Lincoln
     Lott
     Lugar
     McCain
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reid
     Roberts
     Santorum
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow

[[Page S2819]]


     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--1

       
     Breaux
       

                             NOT VOTING--26

     Biden
     Bingaman
     Byrd
     Carper
     Chafee
     Conrad
     Edwards
     Feinstein
     Graham (FL)
     Hagel
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Landrieu
     Lautenberg
     Lieberman
     McConnell
     Mikulski
     Reed
     Rockefeller
     Sarbanes
     Wyden
  The motion was agreed to.
  The PRESIDENT pro tempore. The majority leader.
  Mr. FRIST. Mr. President, once again, I state that we are ready to 
vote on this nomination tonight. As you can see, the nomination has 
been pending in the Senate since February 5. We have had speech after 
speech after speech on this qualified nomination. There has been ample 
time for both sides to make their case. As has been said on the floor 
by the minority whip, everything has been said.
  Mr. President, I now ask unanimous consent that the vote occur on the 
confirmation of the nomination of Miguel Estrada at 6 p.m. on Monday.
  The PRESIDENT pro tempore. Is there objection?
  Mr. DASCHLE. Mr. President, reserving the right to object, I ask 
unanimous consent documents requested by members of the Judiciary 
Committee, as well as answers requested by Members to Mr. Estrada, be 
made part of the request as well.
  The PRESIDENT pro tempore. Is there objection?
  Mr. FRIST. Mr. President, I object to the requested modification.
  Mr. DASCHLE. Mr. President, then I object as well.
  The PRESIDENT pro tempore. Objection is heard.
  Mr. FRIST. Mr. President, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll and the 
following Senators entered the Chamber and answered to their names.

                           [Quorum No. 3 Ex.]

     Baucus
     Bayh
     Boxer
     Breaux
     Clinton
     Corzine
     Daschle
     Durbin
     Feingold
     Feinstein
     Frist
     Leahy
     Nelson (FL)
     Pryor
  The PRESIDING OFFICER (Mr. SMITH). A quorum is not present.
  Mr. FRIST. Mr. President, I move that the Sergeant at Arms be 
instructed to request the attendance of absent Senators, and I ask for 
the yeas and nays on the motion.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion of 
the majority leader. The yeas and nays are ordered and the clerk will 
call the roll.
  The legislative clerk called the roll.
  Mr. FRIST. I announce that the Senator from Rhode Island (Mr. 
Chafee), the Senator from Nebraska (Mr. Hagel), the Senator from 
Mississippi (Mr. Lott), and the Senator from Kentucky (Mr. McConnell) 
are necessarily absent.
  Mr. REID. I announce that the Senator from Delaware (Mr. Biden), the 
Senator from New Mexico (Mr. Bingaman), the Senator from West Virginia 
(Mr. Byrd), the Senator from Delaware (Mr. Carper), the Senator from 
North Dakota (Mr. Conrad), the Senator from North Carolina (Mr. 
Edwards), the Senator from Florida (Mr. Graham), the Senator from Iowa 
(Mr. Harkin), the Senator from Hawaii (Mr. Inouye), the Senator from 
Vermont (Mr. Jeffords), the Senator from South Dakota (Mr. Johnson), 
the Senator from Massachusetts (Mr. Kennedy), the Senator from 
Massachusetts (Mr. Kerry), the Senator from Louisiana (Ms. Landrieu), 
the Senator from New Jersey (Mr. Lautenberg), the Senator from 
Connecticut (Mr. Lieberman), the Senator from Maryland (Ms. Mikulski), 
the Senator from Rhode Island (Mr. Reed), the Senator from West 
Virginia (Mr. Rockefeller), the Senator from Maryland (Mr. Sarbanes) 
and the Senator from Oregon (Mr. Wyden) are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 74, nays 1, as follows:

                       [Rollcall Vote No. 37 Ex.]

                                YEAS--74

     Akaka
     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bond
     Boxer
     Brownback
     Bunning
     Burns
     Campbell
     Cantwell
     Chambliss
     Clinton
     Cochran
     Coleman
     Collins
     Cornyn
     Corzine
     Craig
     Crapo
     Daschle
     Dayton
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hatch
     Hollings
     Hutchison
     Inhofe
     Kohl
     Kyl
     Leahy
     Levin
     Lincoln
     Lugar
     McCain
     Miller
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Nickles
     Pryor
     Reid
     Roberts
     Santorum
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner
       

                                NAYS--1

       
     Breaux
       

                             NOT VOTING--25

     Biden
     Bingaman
     Byrd
     Carper
     Chafee
     Conrad
     Edwards
     Graham (FL)
     Hagel
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Landrieu
     Lautenberg
     Lieberman
     Lott
     McConnell
     Mikulski
     Reed
     Rockefeller
     Sarbanes
     Wyden
  The motion was agreed to.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, once again we were unable to reach an 
agreement on the vote for the confirmation of the nomination of Miguel 
Estrada. I want to thank all of the Members who have participated 
tonight in what is an important debate. We have had constructive debate 
through the evening and Members have made themselves available to vote 
on the Estrada nomination. Unfortunately, given the objections from the 
other side of the aisle, we will not be allowed to vote on this 
nomination at this time. Therefore, there will be no further rollcall 
votes tonight.
  I know a number of my colleagues have statements they wish to make, 
and I encourage them to remain in the Chamber and continue to debate 
this evening, even though the hour is late. I do want to notify our 
colleagues that we will convene at noon tomorrow and will continue to 
debate the Estrada nomination at that time.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Mr. President, anybody who might have been watching the 
debate this evening has to come to the realization that we are in a 
filibuster. Personally, I am very concerned about the kind of precedent 
it is going to set for this body as we move forward in future years. I 
think that forcing 60 votes in order to get to a vote up or down on a 
judicial nominee is a very difficult position to put this body in. I am 
disappointed that we were not able to get a straight up-or-down vote 
this evening on Miguel Estrada to the Court of Appeals for the District 
of Columbia.
  I realize that watching the Senate on television is probably not the 
most popular pastime for many Americans, but it should come as no 
surprise to any of my colleagues or students of Congress that the 
current debate and unprecedented filibuster over the confirmation of 
Miguel Estrada, President George W. Bush's nominee to the DC Circuit 
Court, has citizens from across the country tuning in and paying close 
attention. From California to Colorado to New York and beyond, 
Americans have closely watched the DC Circuit Court confirmation, 
because they realize that justice is not issued by an individual court 
or judge, but rather collectively, the integrity of the law depending 
on the ability of each court to function within the whole.
  In the midst of the Democrat-led filibuster, the Senate finds its 
business completely disrupted, unable to proceed to other important 
issues such as prescription drugs and economic relief. The Constitution 
commands that Federal judges are to be appointed with the advice and 
consent of this body. Yet today, thanks to the obstructionist tactics 
of the Democratic leadership, we face a very real possibility of 
shifting this authority in a manner the Framers never intended, 
fundamentally altering the amount of votes required to confirm judicial 
nominations.

  It is clear that the obstructionists are not interested in an up-or-
down

[[Page S2820]]

vote on this nomination. Instead, they prefer to hold the majority and 
the American people hostage to an unacceptable game of entrenchment and 
politics. Their reasons to prolong debate may be enough to justify a 
vote against Miguel Estrada, but I am still waiting for a reason that 
is sufficient to deny a vote entirely.
  Television programs, talk show radio, and newspaper editorials across 
the United States are demanding that the Democrats allow a vote on 
Miguel Estrada, that they proceed to a simple up-or-down vote.
  The media is simply echoing the statement of an outraged public. They 
have rejected this tyranny of the minority, and their demand for a vote 
must be acknowledged. The call for a vote has reached the editorial 
pages of both major newspapers in Colorado. The Rocky Mountain News, in 
an editorial entitled ``Democrats Turn Ugly on Estrada,'' states the 
filibuster is irresponsible. Their editorial also undermines many of 
the various arguments that are being used to prolong the confirmation, 
saying the arguments that we do not know enough about Miguel Estrada is 
implausible because he has a well-known and rather amazing life story. 
Estrada immigrated to this country from Honduras, graduated with honors 
at Columbia College, and was editor of the Law Review at Harvard Law 
School. Then he was a clerk to a Supreme Court Justice and argued 
before the Supreme Court 15 times. He received the highest possible 
recommendation of the American Bar Association.
  The editorial concludes:

       The Democrats have no excuse . . . keeping others from 
     voting their consciences on this particular matter is simply 
     out of line.

  I ask unanimous consent that the article by the Rocky Mountain News 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Rocky Mountain News, Feb. 14, 2003]

                     Democrats Turn Ugly on Estrada

       Miguel Estrada is--oh--a conservative, and if that makes 
     your heart pound with fear you may very well be a U.S. Senate 
     Democrat. Then you may also be among those trying to thwart 
     the Senate's majoritarian decision-making with a filibuster.
       It's irresponsible, this hysteria being acted out to keep 
     Estrada from serving on the U.S. Court of Appeals for the 
     District of Columbia. But Democratic senators do have their 
     excuses, each more petty than the next.
       One excuse is that they don't know enough about Estrada--
     implausible because there's a well-known and rather amazing 
     life history here: Estrada immigrated to this country from 
     Honduras, graduated with honors at Columbia College, was 
     editor of the Law Review and Harvard Law School, a clerk to a 
     Supreme Court justice, argued before the Supreme Court 15 
     times, and received the highest possible recommendation of 
     the American Bar Association.
       Opponents of Estrada are piqued because he stayed true to a 
     widely endorsed tradition of refusing to indicate how as a 
     judge he might decide cases that could come before him. 
     Instead, Estrada merely said he would be an impartial judge 
     loyal to the law.
       The Democrats have no excuse (although it's clear they fear 
     Estrada would be in line for a Supreme Court nomination if he 
     gets this other judgeship first). If liberals in the Senate 
     think conservative will spell the end of civilization if they 
     become judges, they can vote against Estrada. But keeping 
     others from voting their consciences on this particular 
     matter is simply out of line.

  Mr. ALLARD. The News is not the only newspaper to decry the treatment 
of the President's nominee. The Denver Post, which, by the way, 
endorsed Al Gore over George W. Bush for President, in an article 
captioned, ``Give Estrada His Day in Court,'' states those Senators who 
think Estrada is too conservative should vote no. Those who think he 
was unresponsive should vote no. The key point is there should be a 
vote. To do otherwise, to use a filibuster, is to impose a new 
requirement that judges be confirmed by a supermajority.
  The paper agrees the Constitution never intended such a requirement 
and that an up-or-down vote is in order.
  I ask unanimous consent that the Denver Post editorial be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the Denver Post, Feb. 13, 2003]

                     Give Estrada His Day in Court

       Something quite unprecedented is taking place on the floor 
     of the U.S. Senate. The Democratic minority is staging a 
     filibuster against the nomination of Miguel Estrada to the 
     D.C. Circuit Court of Appeals.
       It is the first time in the history of the Senate that a 
     filibuster has been used against a circuit court nominee.
       Under Senate rules, at least 70 senators must agree to shut 
     off debate, and the Democratic leadership says it has 
     sufficient votes to keep the Estrada nomination from being 
     voted upon.
       Judicial nominations have always been controversial, and 
     Senate Democrats have said they harbor resentments over the 
     way Republican-controlled Senates of the past treated 
     nominees of Democratic presidents.
       The debate on the Senate floor this time clearly indicates 
     this is more than a case of tit for tat. The acrimony in the 
     debate over Estrada suggests the Democrats think they have a 
     winning issue in opposing him on grounds that he is too much 
     of an unknown quantity, that he failed to properly answer 
     their questions and that he may just be ``too conservative'' 
     for the D.C. Circuit. They are willing to risk the criticism 
     that they are opposing a highly qualified Hispanic attorney 
     who is a picturebook example of an immigrant pursuing the 
     American Dream.
       There is no question that Estrada is an attractive nominee. 
     His academic and legal credentials are outstanding, and 
     although he lacks judicial experience, so too did a majority 
     of those now sitting on the D.C. circuit.
       The key issue is whether a filibuster should ever be 
     employed to defeat a judicial nominee. We think not. Those 
     senators who think Estrada is too conservative should vote 
     no. Those who think he was unresponsive should vote no. Those 
     who have a beef with the Bush administration for whatever 
     reason should vote no.
       The key point is that there should be a vote. To do 
     otherwise, to use the filibuster, is to impose a new 
     requirement that judges be confirmed by a supermajority. The 
     Constitution has no such requirement. It simply says that 
     judges are appointed with the advice and consent of the 
     Senate. That implies an up-or-down vote. A filibuster should 
     play no part in the process.

  Mr. ALLARD. Another article that appeared in the Denver Post was 
written by Al Knight, which states that if the obstructionists succeed, 
there will only be two kinds of nominees in a Republican 
administration: Those who can be opposed because they have said 
something suspect about a touchy topic, and known conservatives who 
have not said anything inappropriate. The second category can be 
opposed, however, precisely because they have not furnished their 
opponents with a basis for opposing their nomination. The article 
concludes that the Estrada filibuster is a lamentable departure from 
the past.
  I ask unanimous consent that the Al Knight article be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the Denver Post, Feb. 16, 2003]

                   Confusing Politics With Principle

                             (By Al Knight)

       Senate Minority Leader Tom Daschle claims he and his 
     Democratic colleagues are compelled by principle to torpedo 
     the nomination of Miguel Estrada to the D.C. Circuit Court of 
     Appeals.
       No one who has closely followed recent events could 
     possible believe him. What has been happening in the U.S. 
     Senate is not about principle; it is about one-issue 
     politics, specifically the politics of abortion.
       For the first time in history, a filibuster is being used 
     to stop the nomination of a circuit court judge.
       The use of a filibuster for this purpose is especially 
     pernicious because it effectively imposes a supermajority 
     requirement on the Estrada nomination whereas the U.S. 
     Constitution requires only a simple majority.
       Daschle and others of like mind have done everything to 
     avoid discussing this simple fact. Not one of the Democrats 
     opposing the Estrada nomination has bothered to address the 
     question of why his defeat is worth greatly politicizing 
     every future court nomination. They instead have taken to the 
     Senate floor to talk about every topic under the sun except 
     that one.
       To the degree that a central theme has developed, it is 
     this: Miguel Estrada has failed to provide his opponents with 
     a sound basis on which to oppose his nomination. Think about 
     that! Under this method of judicial confirmation, there will 
     be only two kinds of nominees in a Republican administration: 
     those who can be opposed because they have said something 
     suspect about abortion or some other touchy topic and known 
     conservatives who have not said anything inappropriate. This 
     second category can be opposed, however, precisely because 
     they haven't furnished their opponents with a basis for 
     opposing their nomination.
       Recent viewers of C-SPAN know just how ugly this fight has 
     become and how it may yet poison the ability of the two major 
     parties to cooperate on other matters.
       The truth is that Estrada's great crime is he has refused 
     to worship at the altar of the Roe vs. Wade decision and has 
     simply said that he recognizes it as law.
       That, it is now apparent, is not good enough for the 
     Democrats. Daschle has essentially said the party cannot 
     permit a

[[Page S2821]]

     nomination to go forward for someone who refuses to cooperate 
     in his own mugging.
       Democrats continue to insist that there is something 
     extraordinary about the Justice Department's refusal to make 
     available a wide variety of internal memos written by Estrada 
     during his five years in the solicitor general's office. The 
     fact that all seven living solicitors general oppose the 
     release of such confidential documents seems not to matter. 
     The Democrats have seized upon this issue as though it were 
     the only lifeline available, but it is a very slim reed, 
     indeed.
       Republicans--and at least one Democrat, John Breaux of 
     Louisiana--have said over and over again that if a Democratic 
     senator doesn't like Estrada and thinks he would be a poor 
     addition to the federal bench, the proper thing to do is to 
     vote ``no.'' The Constitution, it has been pointed out, 
     anticipates a Senate vote on all nominations.
       The GOP, which is nowhere near as good as the Democratic 
     Party in a streetfight, is obviously hoping that it will 
     become apparent to the public over time that it has the best 
     of this argument and that the use of a filibuster to defeat a 
     judicial nominee would be a terrible precedent.
       That hope can only be realized, however, if the American 
     public takes proper notice of this fight and recognizes what 
     is at stake. But some of the coverage it has attracted is 
     simply inaccurate. The New York Times, for example, said the 
     filibuster resembles those of the past.
       That characterization, which makes matters sound more 
     romantic than they are, is exactly backwards. The Estrada 
     filibuster, in fact, is a lamentable departure from the past. 
     That is why this is a fight the GOP had better win.

  Mr. ALLARD. Mr. President, challenging times are at hand. While I 
believe a full and fair debate of Presidential nominees is of paramount 
importance, obstructing an up-or-down vote fails the public trust and 
is a disservice to our system of justice. The Senate must resist 
temptations to alter the basic tenets of the Constitution. Instead, the 
Senate must move forward with the business of the Nation and can start 
by voting on the nomination of Miguel Estrada.
  Again, we ought to look at the chart and remind ourselves of the key 
point in the editorials. The Denver Post said: The key point is that 
there should be a vote. . . . A filibuster should play no part in the 
process.
  The Rocky Mountain News says: The Democrats have no excuse for 
keeping others from voting their consciences on this particular matter. 
It is simply out of line.
  I yield the floor.
  The PRESIDING OFFICER (Mr. CRAIG). The Senator From Alabama.
  Mr. SESSIONS. Mr. President, I watched with great interest the debate 
tonight. Senator Hatch answered every question relating to this 
nominee. It reminds me of the times when I was a Federal prosecutor 
years ago. You would go through a contentious trial and the defendant 
attacked the prosecutor, would attack the police, and attack the 
witnesses. But at the end of the trial, the evidence would be clear and 
you would have a real fine moment to stand up and challenge the 
defendant to produce any credible evidence that would justify his 
position.
  Senator Hatch repeatedly challenged our colleagues on the other side 
of the aisle. He urged them and pleaded with them to state a legitimate 
basis to reject this fine nominee, Miguel Estrada. They have failed to 
do so. They came up with the weakest, most pitiful, sorry explanation; 
that is, they want memorandums, every memorandum he ever wrote in the 
Justice Department.
  That is so weak, so baseless, so wrong. That is something he cannot 
give. It is not within his power to give. And he should not do it if he 
had the power to do so. The memorandums he produced for the Department 
of Justice belong to the Solicitor General, to the Department of 
Justice, to the people of the United States. The United States of 
America was his client. He has no ability whatsoever to produce those 
documents.
  He said they can have them as far as he is concerned. But as a good 
lawyer, he knows the Department of Justice should not and must not 
produce those documents. And they have never done that absent a 
specific showing of a specialized need.
  It is sad to me to see us get to this point, to see this kind of 
obstructionism. This is what we have seen. It is not fair to this 
nominee. It is not fair to the judicial system.

  I call on my colleagues across the aisle, and I urge them not to make 
this historic step, not to head down this road of filibuster. It is 
something we have not done before, we should not do now, and by all 
means we should not do this to a nominee who has not the slightest bit 
of a challenge to his integrity, not the slightest challenge to his 
legal ability, not any objection by the American Bar Association. In 
fact, they rated him the highest possible rating they can give and 
unanimously gave him that rating. It is really a sad day.
  If Senator Hatch was frustrated, so are a lot of us. What has been 
going on here is not right. It is not right. We need to stop it. The 
Constitution of the United States provides that confirmations are 
advice and consent of the Senate, article II, section 2, by a majority 
vote. That is what it has always been. Now we are trying to convert 
that to a supermajority of 60 votes. It is something we have not done 
before.
  They say: You held up President Clinton's nominee. Let me state 
plainly, we did not unfairly hold up any nominees. We confirmed, under 
President Clinton's tenure as President, 377 of his nominees. One of 
those nominees was voted down on this floor; 377 confirmed. Not once 
was there a filibuster held. In fact, when people talked about that a 
few times, Senator Hatch said no, that is not the right thing to do. We 
ought not to filibuster. That did not occur. We went on anyway and 
confirmed those judges. There were only 41 nominees left when President 
Clinton left office of those he nominated who were not confirmed; 
whereas when former President Bush left office there were 54 nominees 
unconfirmed by the Democratic Congress. So compared to those two 
Congresses, there is no doubt that the Republican Congress under 
Senator Hatch as chairman did a much more favorable job to President 
Clinton's nominees than the Democratic Senate did to President Bush's 
nominees. That cannot be disputed.
  It is amazing we are carrying on and suggest otherwise. Sure, the 
Senate is not a rubberstamp. Sure, it has a right to ask questions and 
demand information that is legitimate. But they are not required and 
should not ask for information that is not legitimate.
  How did we get into this circumstance? How did we get to this point 
where the ground rules have changed, that we are into an obstructionist 
tactic, an unfair procedure? What happened? After the last election 
when President Bush was elected, the New York Times reported that the 
Democrat majority, the Democratic Senators at that time early in 
President Bush's administration had a retreat at some location unknown 
to me, and they heard at that time from three liberal law professors, 
Lawrence Tribe, Cass Sunstein, and Marcia Greenburger. These liberal 
professors at this private retreat told the Democrats at that time, 
they should change the ground rules for nominations. They should 
ratchet up the pressure and they should alter the historic rules of 
courtesy, the historic presumptions in the Senate, and they should 
change how nominees are treated. They said: You have the power to do 
it. Do it, Democrats. Stand up and block these nominees. Do not accept 
the nominees from President Bush, like this Republican Senate accepted 
President Clinton's nominees. Fight every step of the way. That is 
apparently what has happened.
  Shortly after that, when the majority in the Senate changed, I served 
on the Administrative Oversight and the Courts subcommittee. Senator 
Schumer chaired that subcommittee. He held hearings. He held hearings 
to argue the point that the burden of proof for a confirmation of a 
judge should change and it ought to be on the judge to prove he is 
qualified. That has never been done before in the history of this 
country. We had Lloyd Cutler, former Counsel to the White House of 
Democrat Presidents. We had others testify. They testified that it 
would be wrong to shift the burden to the nominee, it was not the right 
thing to do. Then he had hearings to say we ought to just consider your 
politics, your ideology, as he said, and we can consider somebody's 
politics, and we can reject them if we do not agree politically.
  If you happen to be pro-life, you are out. Pro-life, no. No such 
judge gets confirmed here, I suppose that means. So we went through 
those hearings. Lloyd Cutler and Boyden Gray headed up a national 
commission that studied this and the commission rejected this 
contention. They both said this would

[[Page S2822]]

not be the right thing to do; they said no, this would politicize the 
judiciary.
  Most of the people who serve here who are lawyers may not regularly 
have practiced law. I had the opportunity and the honor for almost 12 
years to represent the United States of America as U.S. attorney, 
practicing in Federal court before Federal judges. I practiced before 
Democratic judges. I practiced before Republican judges. It did not 
matter to me which one it was. You presented the law and the facts 
consistently and you would expect them to rule justly. That is what we 
try to do.
  We knew when we researched the law that we were going to win--we 
thought. If we had the right law, we would expect to win. Politics does 
not enter into it. That is the ideal of American justice, that there is 
equal justice under law. It is on the Supreme Court wall here, on the 
facade of the Supreme Court across the street, ``Equal Justice Under 
Law.''
  So I am really frustrated that we would suggest we ought to get into 
a person's politics.
  Of course, with regard to Estrada, to my knowledge, he never 
campaigned for a candidate. To my knowledge, he has never run for 
office. It appears he is a Republican and he has conservative political 
views, but as he has explained, they do not affect his abilities and 
his decision-making process once he puts on that robe and gets in the 
courtroom. That is not the way he does business, and that is not the 
way a judge should do business.
  I think we are doing something here that is quite historic and is 
very wrong.
  I will say one more thing before I refer to some of the comments that 
were made earlier about Solicitor General memoranda. Remember, Miguel 
Estrada is a highly qualified nominee. He graduated magna cum laude 
from Columbia University after having come to this country at age 17 
from Honduras. He went on to Harvard Law School. He finished at the top 
of his class there, magna cum laude, and was chosen an editor of the 
Harvard Law Review.
  Those of us who are lawyers and those of us who know much about the 
legal business know that being an editor of a law review at a good law 
school is one of the highest honors a graduating senior can have. To be 
an editor of the prestigious Harvard Law Review is one of the great 
honors any student can have.
  After graduating from college, he clerked for a Federal appellate 
judge in the Second Circuit Court of Appeals, one of the great courts 
of appeals in America. He did that, served his tenure there. Let me 
say, those are very competitive positions. You are not chosen to be a 
law clerk for a court of appeals judge or even a Federal district judge 
unless you have extraordinary ability and are perceived to be a person 
people can get along with, pleasant to work with, and have great 
ability. So he did that.
  Remember, he is being nominated for a Federal court of appeals judge. 
He will do the very same work on the Court of Appeals for the DC 
Circuit as he would did at the Second Circuit Court of Appeals in New 
York, as he did there. So he has had great experience sitting at the 
right hand of a Federal circuit judge, helping him write the opinions 
dealing with the Federal issues that come before him. I think that is 
important.
  After that, he became an assistant U.S. attorney in the Southern 
District of New York, a very prestigious U.S. attorney's office, the 
one in which Rudy Guiliani was U.S. Attorney and ran that office. By 
the way, Rudy Guiliani has written a very vigorous editorial supporting 
Miguel Estrada.
  He performed superbly there and was taken to the Department of 
Justice. He was asked to serve as a deputy in the Solicitor General's 
Office of the United States Department of Justice. The Solicitor 
General is often referred to as the people's lawyer. The Solicitor 
General has been called the greatest lawyer's job in the world. The 
Solicitor General of the United States of America represents the United 
States of America in court before the Supreme Court of the United 
States of America. Most lawyers can think of no greater honor, nor can 
I, than to be able to represent the United States of America before 
America's greatest Court.
  He served there. He came in the tail end of 1992, in the Bush 
administration, and stayed for 5 years in the Clinton administration. 
During that time the Clinton administration evaluated his performance. 
In every possible evaluation, they gave him the highest possible 
rating. It was not President Bush's administration, not some other 
Republican administration; the Clinton administration Department of 
Justice gave him the highest possible performance evaluation.
  Then he left there and went to a great law firm, one of America's 
greatest law firms. He has argued 15 cases before the United States 
Supreme Court. Let me tell you, I asked a lawyer earlier tonight, we 
were sitting at a round table, and I said, How many lawyers in America 
do you think have argued 15 cases before the Supreme Court?
  He said, You know, I bet they could all sit at this table. I suggest 
to you, you could count on your fingers the names of the practicing 
lawyers today, in practice today, who actually have argued that many 
cases. Arguing a case before the Supreme Court is a great honor. Very 
few people get selected. It is big time law business. Only the best are 
asked to do that. And he has done that 15 times.
  That shows that in private practice he has the ability and the 
respect to carry on weighty matters before the Nation's highest Court.
  So the American Bar Association comes along. They are asked to 
evaluate this nominee, to see how well the lawyers and bar members and 
all, evaluate his performance. They talk to lawyers who have practiced 
with him. They talk to the lawyers who have opposed him in his biggest 
cases. They talk to judges before whom he has practiced. They talk to 
lawyers for whom he has worked. And they ask people confidentially, 
also, to express their opinion if they know of anything that affects 
his integrity, legal ability, temperament, and those kinds of matters. 
They take it very seriously. They particularly take a court of appeals 
nomination very seriously.
  So they did all that for Miguel Estrada. They checked his background. 
They probably talked to his law professors and the judges he worked for 
and lawyers he litigated against as well as with. They evaluated him, 
and 15 or so of them came together and voted, and they unanimously gave 
him their highest possible rating. This doesn't happen to most 
nominees. Far fewer than 50 percent of the nominees for this court get 
a ``well qualified'' rating. And even fewer get a unanimous vote of 
``well qualified'' by the lawyers who evaluate them.
  So then he came before the Senate. President Bush nominated him in 
May, 2 years ago. Quickly--by that time, the Democrats have taken back 
control of the Senate when Senator Jeffords switched parties. So they 
chaired the Judiciary Committee. They refused to give him a hearing. 
They had all his records and all his files. I am sure they were looking 
at him very closely because they heard he was a conservative Republican 
Hispanic, and somebody even said, You know, he might be a good Supreme 
Court nominee. He could be a real good nominee. Maybe we better beat 
this guy up a little bit.
  As a matter of fact, the more I studied his record, I saw his 
testimony, I think he would be a great Supreme Court nominee. He has 
the background, the academics, the integrity, the judgment, the record 
of accomplishment that would make a great Supreme Court Justice. There 
is no doubt about it in my mind.
  Whatever the reason is, they decided to block him, so they would not 
give him a hearing. Finally, after almost 2 years, a year and a half or 
so, they have a hearing. Remember now, they conduct the hearing. 
Senator Leahy is the chairman of the committee. Senator Schumer 
presided over the hearing. It went almost all day long. They could have 
had 3 days worth of hearings if they chose. They got to ask any 
questions they wanted to. He answered question after question after 
question. I thought he answered the questions brilliantly. I thought it 
was interesting tonight that Lamar Alexander, Senator Alexander, went 
back and read his answers. Far from agreeing with those on the other 
side who said he did not answer the questions, he thought he answered 
them brilliantly. He thought he answered them exactly the

[[Page S2823]]

way a judge should answer them. And he did.
  I saw him do that, and he was a great witness. He does have a speech 
impediment, but he handled it with such grace. He testified with such 
smoothness and so much judgment and wisdom. I remember distinctly him 
being asked. You know President Bush said he wanted a strict 
constructionist on the bench.

  That is a layman's term for a judge who follows the law and doesn't 
make up law--not an activist the way people talk around the country.
  They asked Estrada: Are you a strict constructionist? He said: Well, 
I wouldn't say that. He said: I would call myself a fair 
constructionist. I think you should give a fair meaning to the language 
of the statute and Constitution that we deal with. That is what I will 
try to do.
  They later asked him written questions how he would evaluate Justices 
on the Supreme Court--all of them. Some of them are liberal and some 
are conservative. He said in his view they all try to be fair 
constructionists and he respects all of them but may differ on a few 
things but fundamentally they are in agreement.
  So we had the hearing. He testified well. There were no complaints 
against him. There were suggestions that he had acted in a politically 
hostile or partisan way. There was no suggestion that he had any lack 
of integrity. In fact, his integrity has never been challenged. They 
never challenged his legal ability or scholarship.
  They said he didn't have enough experience. That is just 
fundamentally false. I don't see how anybody on this floor can stand up 
and say he is not qualified by background and training and experience 
to be a court of appeals judge. That is ludicrous. He has one of the 
finest backgrounds any person I have seen for a court of appeals judge. 
He clerked for a court of appeals judge. He clerked for Anthony Kennedy 
on the Supreme Court, which I failed to mention, and he served in the 
Solicitor General's Office and the appellate division of the Attorney 
General's Office of the Southern District of New York--unbelievably 
good experience for this kind of a position.
  So now, tonight, when we moved to go forward and end the obstruction 
and just vote, what kind of objection do we hear? Well, the objection 
was he didn't turn over his memoranda when he was an attorney in the 
Solicitor General's Office. He wrote internal memoranda, and we want to 
see what he said. He might have said something that we can get him on. 
So, Mr. Estrada, you won't turn over your memos, we will not confirm 
you.
  Let us be truthful about this thing. They are not his memos. He has 
no authority whatsoever to turn over the Department of Justice 
memoranda--absolutely none. The Department of Justice says these are 
work products of the Department of Justice. Seven former Solicitors 
General--three of them Democratic Solicitors General--have said they 
must not be turned over; it is the wrong thing to do; we do not need to 
encroach on the executive branch's deliberating procedures. We don't 
need to chill free debate in the Solicitor General's Office. They must 
not be turned over. The Attorney General is not going to turn them 
over. So, therefore, they say: ``We gotcha.'' OK. Now we have an excuse 
not to vote for Estrada.
  What is the excuse? He won't turn over the memoranda? They are not 
his to turn over. They are the Department of Justice memos. It is an 
unfair charge. He is being treated unfairly. The burden of proof is 
being put on him. They are accusing him of some ideological bent, but 
they never explain what it is they are unhappy with. Not one political, 
not one philosophical, not one theological position have I heard them 
criticize him for. It is absolutely baseless--just absolutely wrong to 
say he must turn over those memoranda. They are not his to turn over. 
He can't turn them over, and the Attorney General would violate high 
standards of ethics if he did. Oh, well, they said, you know, they 
turned them over for other people. You heard that argument.

  Let me mention this first. Let us stop and slow down a minute and 
talk about some of the people who served as Solicitor General under 
Democratic administrations. The Solicitor General is a great lawyer 
position, as I stated before. But also the Solicitor General must be 
compatible with the President's philosophy and must advocate the views, 
insofar as he is able, that the President supports. The Solicitors 
General are attuned to their President.
  Let me read what some Democratic Solicitors General said about Miguel 
Estrada.
  Seth Waxman, former Solicitor General, Democrat, well respected 
throughout the country said:

       During the time Mr. Estrada and I worked together--

  They worked together when he was Solicitor General--

     he was a model of professionalism and competence.

  And he added:

       In no way did I ever discern that the recommendations Mr. 
     Estrada made or the analyses he propounded were colored in 
     any way by his political views.

  What a compliment from a Democratic Solicitor General for whom he 
worked.
  By the way, they want these memoranda. To whom are they written? They 
were written to Seth Waxman, Democratic Solicitor General under 
President Clinton.
  What does Mr. Waxman say, Mr. Clinton's Attorney General?

       In no way did I ever discern that the recommendations Mr. 
     Estrada made or the analyses he propounded were colored in 
     any way by his personal views. During the time Mr. Estrada 
     and I worked together he was a model of professionalism and 
     competence.

  I am telling you that there is no basis to object to this nominee.
  Drew Days, another former Solicitor General under a Democratic 
administration and an African American, he wrote in support of Mr. 
Estrada:

       I think he is a superb lawyer.

  When he worked for Drew Days, Mr. Days' signature was on his 
performance reviews giving Mr. Estrada the highest possible rating each 
year--the outstanding rating in every category on the evaluation sheet.
  In the Department of Justice where I served, you have an evaluation 
form. Every supervisor has to fill it out and you can give them the 
rating. The highest rating is outstanding. In every category of rating 
Mr. Estrada got ``outstanding'' in the Clinton Department of Justice.
  How can this man be an extreme person, some stealth candidate out of 
the right wing of America who can't be trusted on the bench? That is 
bogus and false and wrong. It is just unfair.
  Robert Litt in the Department of Justice, former Deputy Assistant 
Attorney General, was considered by most people to be one of the more 
partisan members of the Department of Justice, a capable attorney, 
however, and certainly a Democrat. Mr. Litt said this:

       I have never felt that the arguments he made were in any 
     way outside the scope of legitimate legal analysis.

  Randolph Moss, former Assistant Attorney General, another Democrat:

       He has a near encyclopedic knowledge of the law.

  Isn't that wonderful? Think of it.

       He has a near encyclopedic knowledge of the law, a powerful 
     intellect and an ability to bring coherence to even the most 
     complicated legal document.

  I am telling you that is what a judge does. A judge must be able to 
bring coherence to complex legal matters to get to the heart of the 
matter, to get it to the simplest bases and make a just decision. I 
think that is an extremely high compliment.
  I don't know what the Democratic Senators would look for in this 
nominee. It is beyond my comprehension how this man who is so qualified 
and with such a compelling life story would be blocked here. It really 
is stunning to me.
  I have a lot of other things that I could say at this time. I will 
not go into all of them. I want to make the point about the certain 
memoranda that have been produced or have leaked out of the Department 
of Justice with regard to previous nominees.
  Now, first, even if a prior Attorney General, at some moment of 
weakness, unwisely just produced all the memoranda and the work product 
of some nominee, that would not mean, to me, that we ought now to 
continue to violate an absolutely clear principle.
  But, as I have seen the facts--and we have looked at them--not one 
Attorney General in history has responded to the

[[Page S2824]]

fishing expedition set forth here. This is clearly a fishing 
expedition. They don't say there is one thing they want for a specific 
reason. What do they say? They say: We want everything you ever wrote. 
And it is not going to happen. It is not going to happen--nada.
  What about Easterbrook? They said they found a two-page memo he wrote 
when he was in the Department of Justice. Well, the official record of 
the Easterbrook hearing contains no reference to this document at all. 
The Department of Justice cannot find any records they ever authorized 
releasing this document. I am not sure how the people on the other side 
got it. The Justice Department said they did not release it. So 
something is fishy about that fishing expedition.
  As for the documents on Robert Bork, I was here, and one of my 
colleagues across the aisle said: Oh, the documents have been given 
before. And he went on and on. He did not mention Judge Bork's name, 
and he waved around this document, that he was going to introduce it 
into the Record.
  I have been in courtrooms a little bit. He said he was going to 
introduce it, but he never did. So I said: Are you going to introduce 
it into the Record? He said: Yes, yes, he would. So he introduced it 
into the Record. And I went and got it. I like to read these things.
  Well, some can still remember--I don't know if the Presiding Officer 
was here when the Bork matter was before this body, but I think he was 
here. He remembers some of the intensity of the debate over the Bork 
matter.
  He was the then-Solicitor General. You had the Attorney General and 
the deputy, and they would not fire Archibald Cox, the special 
prosecutor. The Attorney General quit, and the Deputy Attorney General 
quit, and it fell to Robert Bork; he fired Archibald Cox on behalf of 
President Nixon. There were all kinds of allegations that there were 
secret agreements and that Bork had done all kinds of corrupt things. 
And it was at the height of Watergate, so they demanded all kinds of 
documents, but they were specific.
  Look, this is the document request. They wanted documents generated 
during the period from 1972 through 1974--not every year he was there--
and constituting, describing, referring or relating in whole or in part 
to the so-called Watergate affair.
  Well, people were concerned about Watergate. They were alleging 
everybody in the Government was a crook. So Bork was in there, and he 
fired Archibald Cox. They had some specific reasons, and they got some 
of these documents. I don't think they got them all. They wanted any 
communications between Robert Bork and any person or entity relating in 
whole or in part to the Office of Watergate Special Prosecution Force.
  They wanted any documents related to the dismissal of Archibald Cox, 
the abolition of the Office of Watergate Special Prosecution Force, and 
so on, the designation of Leon Jaworski as Watergate Special 
Prosecutor, the enforcement of the subpoena at issue in Nixon v. 
Sirica, and those kinds of matters.
  So that is a specific request. At least it had some colorable basis 
because people were concerned about Watergate. And Mr. Bork had been in 
the center of a very controversial decision that history records as one 
of the most controversial matters ever to come before the Department of 
Justice. So maybe they had a basis for that. And they got that. But 
they did not ask for everything he wrote. And the Department of Justice 
did not give it.

  Well, I will just say this to my colleagues. I do not believe this 
has been lost on my colleagues. I think they know that this request is 
unprecedented. How could they not know that? How could they not know?
  They come and say: Well, here is a memorandum that was produced. And 
they don't show it may have been, and was, in fact, in every instance, 
a reference to a specific allegation of misconduct or wrongdoing. So 
that is an argument without basis. It has been demonstrated by Senator 
Hatch. It has been demonstrated by the facts.
  Anybody who is fair and objective, and will listen, will know there 
is no basis whatsoever for demanding that Miguel Estrada produce these 
documents. And that is what the distinguished Democratic leader 
objected on. His basis for objection was solely that Miguel Estrada 
would not produce the memoranda he wrote while he was in the Department 
of Justice.
  This is a big time principle. It is a major issue. It is not an itty-
bitty thing. The Department of Justice is not going to give them, and 
Miguel Estrada has no power whatsoever to give them because they are 
not his. They are the work product he made for his client. His client 
was the United States of America. The United States of America is 
entitled to the best efforts of its assistants and Assistant Solicitors 
General, and they ought to be able to express their opinions to their 
supervisors, as they wish.
  So, Mr. President, I think we have had enough time on this 
nomination. He has waited almost 2 years. The hearing was conducted by 
the Democrats, and it was a long hearing. They followed up with further 
questions. He has agreed to meet with any single Senator to answer any 
questions they have.
  He is a man of extraordinary talent, incredible achievement, a man 
who came here, and he has lived the American dream. I am exceedingly 
proud of Miguel Estrada. I think he is indeed qualified to be on the 
Supreme Court. He ought to be confirmed for this Court of Appeals 
position without any further debate whatsoever. And he ought to be, I 
hope, one day considered for the Supreme Court. He is certainly that 
qualified.
  I hope we will avoid this filibuster, move forward in this Senate 
back in accordance with our traditions of comity and respect and 
courtesy, in which nominees are presumed to be confirmable unless 
something is shown to be wrong, and that the President is able to move 
nominees forward, because we need them on the bench today.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, this will be a tough act 
to follow. The Senator from Alabama has done a wonderful job going 
through the nuances of where we find ourselves and explained the career 
of Miguel Estrada better than I could possibly do and has talked about 
the factors that bring us here at 1:10 in the morning.
  All I can add to it is that I am new to the body. I was hoping my 
first engagement with the Senate would be about Social Security and 
talking about saving that system. But I find myself in the middle of 
something very historic; that is the filibustering of a circuit court 
of appeals judge--apparently, the only time in the history of our 
Nation such tactics have been employed. And you ask yourself, Why? What 
has gotten us here? Why have they chosen to do this?
  One thing about being a Presiding Officer of the Senate is you get to 
learn a lot and hear a lot. One thing I have learned is that in the 
past the abuses of the judicial nomination process have sometimes been 
striking, and apparently both sides have engaged in some practices that 
just really do not seem right.
  There are all kinds of cases where judges were never given a chance 
to be voted on and left in committee for years. And people did not like 
one judge, and they decided to make sure they never got a vote. And 
they were in the majority. It goes on and on and on. I guess that is 
politics. I do not suggest that the Republican party, in the past, has 
not done some things that were probably unfair to people, too.
  But what we are about to engage in will become the mother of all 
abuses. It will take the country in a direction that it need not go in 
terms of judicial nominations. And the country, I hope, will wake up 
and listen a little closer to what we are doing over time. Editorial 
writers are beginning to write, and they are beginning to understand 
what is at stake. And from a Republican point of view, it is very 
unusual to have all these papers siding with us and criticizing our 
friends on the other side. That is normally not the case. What we are 
doing does affect the future of the country in a very dramatic way.

  A courtroom--unlike the business of politics that we all chose to 
engage in--is a place for quiet reflection. All of us here as Senators 
have something in common. Our goal is to get 50 plus one vote, or 50 
percent of the vote plus one. We engage in a business that is

[[Page S2825]]

loud, expensive, nasty, and sometimes unpleasant but very important and 
very rewarding. Our objective, when it comes to election years, is to 
convince people to vote for us, call attention to what we have done, to 
how we are different from our opponent, and that we are better for your 
family and your business than the other person running. We have a big 
deal made about it, and we spend a lot of money, and we beat each other 
up, and the public votes and they get to express themselves. The 
majority wins.
  Well, the courtroom is a different place. Our Founding Fathers 
understood that. There has to be someplace in a democracy where 
somebody who feels they have been wronged by a large group has a place 
to go other than the ballot box, because the ballot box sometimes is 
not the best place to ensure that justice is done in an individual 
case. So in our system the weak can sue the strong. They can go to a 
court, be judged by a jury of their peers, and the case will be 
presided over by somebody with a lifetime appointment, who doesn't have 
any polls to worry about, or any particular constituency to please. The 
only person to be pleased is Lady Justice.
  The appeals process sends the case forward, and the courtroom itself, 
in terms of a trial, can be a pretty loud place, because you have 
witnesses, and a lot of testimony, and a lot of cross-examination. It 
can be a very flamboyant place. But whether or not that case will 
withstand scrutiny is determined by a panel of judges at the appeals 
level. And there is no quieter place in our legal system than the 
courts of appeals and the Supreme Court itself. People who are there 
for life listen to very well-constructed arguments by lawyers, who look 
at the precedents involved in the case, look at the Constitution, and 
try to render a fair verdict.
  Our Founding Fathers understood that the judiciary needs to be an 
independent, separate branch of Government, immune, as much as it can 
be, from popular opinion, so that the unpopular may have a just 
verdict, or they may not get one otherwise.
  Unfortunately, in this particular instance, the political trends to 
be set, if this filibuster is successful, will do great damage to the 
process of trying to pick qualified men and women to serve in this 
capacity in the future. The Constitution recognizes that the 
independent judiciary also needs a check and balance. Our judges at the 
Federal level are nominated by the President, the executive branch, and 
the Constitution has conferred upon this body the advise and consent 
role, a check and balance to the executive branch.
  The Constitution envisioned supermajority votes of the Senate in a 
very few cases, and confirming a judge is not one of them. The 
Constitution envisions that nominees of any particular President will 
come to this body, and the Constitution envisions that a majority vote 
will determine the fate of that nominee.
  The Senate rules, over time, have allowed the minority to be able to 
stop any particular matter, unless the majority can gather 60 votes. 
That is not part of the Constitution; that is part of the way the 
Senate works. For some reason, our friends on the Democratic side have 
chosen to filibuster a circuit court of appeals nominee for the first 
time in the history of our country. They have chosen Miguel Estrada for 
some reason. Well, I am not privy to their caucus conversations, but I 
have a feeling this goes back to last year's election. The Republican 
party picked up seats in last year's senatorial election that even we 
could not have envisioned as a party 2 years ago. Something happened in 
the 2002 election that allowed us to get 51 seats.

  For every Member of the body, there is probably a different opinion 
as to what did happen in 2002. I argue to my friends on the other side 
that 100 years from now people will not write much about the 2002 
election; they really won't care to know why Lindsey Graham got elected 
with nine other Republican freshman Senators. Unless I can do the 
Senator Thurmond thing, I will be long gone myself. But they will care 
and they will write about what happened to our country if we filibuster 
controversial judicial nominees as a matter of political practice. That 
will have taken us down a road that no one, so far, has gone down.
  I am afraid that road would be a very unpleasant journey for our 
Nation. I think our friends on the other side of the aisle lost seats 
in 2002 because we had a popular Republican President, serving right 
after one of the most horrific events of our time--the tragedy of 9/
11--a President Americans liked and trusted to make hard decisions. He 
was able to make the case to enough American voters in the 2002 
election that the Senate in the hands of our Democratic colleagues was 
not producing in an appropriate fashion.
  Now, I know people will disagree with that analysis, but that is what 
I believe. In my campaign, we talked about a homeland security bill 
that was held up because of special interest labor union politics. We 
talked about an antiterrorism insurance bill that would allow people to 
build buildings without having to absorb the risk of a terrorist attack 
by themselves because of legal provisions that trial lawyers wanted.
  Also, we talked about judges who could not get a vote on the Senate 
floor. I am convinced that resonated, that after 9/11 people wanted us 
to work together and, rightly or wrongly, enough people in the country 
believed the Democratic-controlled Senate was not working as an 
efficient body and helping a President the public liked and wanted to 
be successful.
  Right after the election in November, we had a special election in 
Louisiana in December. Our friends on the other side of the aisle were 
able to hold a seat. I argue that the momentum of the 2002 election was 
a moment in time, and that those in the Democratic Party who believe 
they must stand up to George W. Bush at every turn and take him on 
personally with every agenda he has control of must understand there is 
a limit to that strategy. The limit to that strategy has to be the 
common good. I argue that we have gone into an area where the common 
good is not being served. That the filibustering of Miguel Estrada's 
nomination to the DC Circuit Court of Appeals is not only 
unprecedented, I believe it is part of an overall strategy. I believe--
and I hope I am wrong--that we will see this happen time and again this 
year; that this is part of a strategy by our friends on the other side 
to further obstruct the ability of the President to move judicial 
nominees through the system.

  By employing this tactic, they have set a course that will be hard to 
turn. Politics being what it is, people have long memories, and there 
will come a day when a Democrat will occupy the White House and the 
Republican Party will be in the minority in the Senate, and it will be 
talked about: Remember what they did to Miguel Estrada.
  There is a certain part of politics that appeals to our basic 
instincts, not the common good, and I hope, and I literally pray, that 
our friends on the other side of the aisle will find a different tactic 
to take to make their points of view known about President Bush's 
agenda, including judges, rather than engaging in a tactic that will 
basically supplant the constitutional role of confirming judges by 
requiring Senates of the future to have to gather 60 votes to confirm a 
controversial judicial nominee.
  This tactic will hurt us all. This tactic will belittle and demean 
the judicial nomination process. This tactic will change the 
constitutional process we have lived with for well over 200 years in 
confirming judges. This tactic will allow a bitter minority of the 
greatest body in democratic history to act in a way that will make it 
very hard for good men and women to serve. And that bitter minority one 
day may be a Republican minority.
  I hope that reason will prevail; that we can reach a compromise of 
some sort that will allow everybody to walk away from this in good 
faith and say they fought the good fight and that Miguel Estrada will 
have a vote up or down, and that this tactic of filibustering, 
requiring a supermajority vote for judicial nominees, will give way for 
the sake of the common good.
  It has been amazing to me to see the transformation of the arguments 
against Miguel Estrada and how they have changed over time. Being a 
member of the Judiciary Committee, I can recall being shocked by 
hearing the phrase from someone--and I cannot remember who--``he's not 
Hispanic

[[Page S2826]]

enough.'' Obviously, I am not Hispanic, and I do not know what being 
``Hispanic enough'' means. It was a phrase that just really did not 
sound nice, was not befitting of the experience we are all in, and was 
used to explain the fact that Miguel Estrada, by going to a private 
school, somehow did not share the Hispanic experience. That sounded 
offensive, and it was offensive. Nobody says it anymore, and that is 
the good news.
  When the Hispanic groups that came out against Mr. Estrada's 
nomination first rallied around this cause, they were pretty hard on 
him as a person. Once one understands who he is and what he has gone 
through, it really is unfair to be hard on him as a person because he 
is a good person and he has overcome obstacles that everybody should be 
proud of, that I could only imagine.
  He truly has lived the American dream. He made something of himself 
in the most difficult of circumstances. We do not hear much about that 
anymore. As a matter of fact, we hear from our friends on the other 
side of the aisle that this has nothing to do with his ethnic 
background. Good. Because it should not. It should be about who is 
qualified. We should enjoy and relish the fact that diversity is part 
of the American dream, and that for the first time, we will have a 
Hispanic member on the Circuit Court of Appeals for the District of 
Columbia, the second highest court in the land. That would be a good 
thing for America, and we should rejoice in it if it does happen.

  Then the attacks moved to a different level: He has never been a 
judge. When I first heard that, it made me wonder. To be on the circuit 
court of appeals, maybe it is a good thing to be a judge before you get 
promoted. Then I learned that Justice Rehnquist and untold numbers of 
men and women serving in the Federal judiciary were promoted to very 
important positions without ever having any previous judicial 
experience, which makes sense because being a judge is a cocktail of 
several items: Temperament, intellect, the ability to understand human 
behavior, the ability to reason and to have a kind and compassionate 
disposition. That is what I am looking for, and people can bring those 
qualities to the table without ever having worn a robe.
  That argument, that he has never been a judge, fell by the wayside 
when the untold numbers of judges who never had any experience before 
came forward. So he is like so many others. It makes no sense to say no 
because of that.
  The next argument is he is ideologically driven; that there is 
something about this man that would not allow him to look at my case or 
your case or anyone else's case fairly because he is so driven by his 
ideology that he cannot see justice, that he cannot see facts, and he 
cannot see prior decisions. I am assuming this ideology is one of some 
extreme view of the law that only a radical conservative could have; 
that he is ideologically not equipped to serve in such an important 
job.
  That has to be analyzed in terms of the man's life. It is easy to say 
something, but it should be a requirement that it be true. I will just 
offer one fact for people to consider. If he is so ideologically driven 
that he cannot fairly render justice, how in the world could he have 
worked for the Bill Clinton administration? I would argue that any 
ideologically driven conservative would have had a hard time working 
for Bill Clinton. Not only did Miguel Estrada work in the Clinton 
administration's Justice Department, he performed in an outstanding 
manner.
  One of the gentlemen who accused him of being ideologically driven 
happened to be the person who rated his performance, and during the 
reporting periods involved, he said he was an outstanding lawyer who 
always applied the law and the facts based on reason and not personal 
agendas.
  The idea that Miguel Estrada is some right-wing ideologue makes 
absolutely no sense, and he is being supported by the people who know 
him the best--by Democrats and Republicans who understand that he is a 
man of great credentials. I will assure my colleagues of one thing, if 
you do not believe anything else I have said, that the American Bar 
Association is never going to unanimously support somebody who is an 
ideologue on the conservative side, and he received a most highly 
coveted rating, well qualified, by the American Bar Association. That 
argument that he is an ideologue that cannot see reason is stupid.

  The next one is: We do not know enough about him and the only way we 
are only going to know about him is for us, our friends on the other 
side, to have access to all the memoranda he has ever written as a 
lawyer when he worked for the Department of Justice.
  There is a reason that all the Solicitors General have come out 
unanimously against the idea of producing legal memorandum in that 
Department to the Congress. Nobody would want the lawyers who worked 
for them, who advise them with written or oral opinions, to have that 
work product disclosed to the public in a fashion that would change 
people's opinions and change the way they would advise. If it ever 
becomes the law of the land, if this case results in internal memos 
written by lawyers to clients, if that becomes part of how a judge is 
chosen, then I would argue that Government lawyers who have any 
aspirations of being a judge are going to find themselves in a very 
difficult circumstance.
  There is a reason that every Solicitor General living today has said 
that the memos requested by our friends on the other side should not be 
released. What I find most astonishing is that the last administration, 
and some who know me understand that I was probably not their biggest 
fan, time and time again used privilege after privilege, mostly made 
up, to protect everything they touched. I thought they abused the 
privilege doctrines, but here is something we should all be able to 
agree upon: That when a lawyer writes a memo to a client, that should 
stay between the client and the lawyer. And if the client does not want 
the memo released, for the good of us all, for the sake of the 
attorney-client privilege, for the sake of good government, that 
request should be denied. We do not know enough about him because we 
really have not had a chance to talk to him.
  I was in the Judiciary Committee. The man was there all day. There is 
a volume that was produced from the hearings. He has been around for a 
year and a half. He has answered questions. I think he has given good 
answers. This is not about not knowing enough about him, not being able 
to answer the questions that were not properly asked, because the 
people who want this information are going to vote no anyway.
  This is about conservative versus liberal. This is about politics. 
This is about trying to rectify the losses in 2002. I am convinced that 
our friends on the other side of the aisle have decided that the only 
way they can get back into the game is to oppose President Bush. 
Instead of learning from the 2002 elections that obstruction was not 
the way to a majority, I think they have blinders on now in that they 
have engaged in a political dynamic that not only will not allow them 
to regain the majority of this body but could do irreparable damage to 
our country in the future.
  I know that each and every one of them believes that there is a high 
purpose for what they are doing; they love their country as much as I 
do and would disagree with my assessment. But this I am sure of: if 
this filibuster is successful, 100 years from now we will have changed 
the way business is done in the Senate in regard to confirming 
controversial judicial nominees. And 100 years from now, people, if 
they could, would come back to each and every one of us and say: Why 
did you do that? I wish you would have not done that. We are paying a 
price for your desire to get a political advantage that you could not 
even envision.
  I am hopeful that over time there will be Members on the other side 
of the aisle sufficient enough in number who will say: I will not 
engage in this practice to the point that I am legitimizing a 
filibuster of a circuit court nominee that will set in motion forces of 
the future that will change the way the Constitution works.
  I am hopeful we will eventually get enough votes not to confirm 
Miguel Estrada but to allow a vote to be had to confirm Miguel Estrada. 
If that vote is had, he will win, I am convinced. For the sake of the 
future of this country, I hope that some time in the near future this 
tempting practice of making

[[Page S2827]]

it hard for President Bush to get forward any judicial nominee our 
friends on the other side do not like will be abandoned because I am 
convinced they will look back in their political career with great 
regret that they ever did this.
  Several of them are on record of having said in the past, just give 
him a vote. I will never engage in a filibuster of a judge because I 
think it is wrong, I think it is bad for the country. When Senator 
Leahy said it, he was right. When Senator Kennedy said it, he was 
right. When Senator Feinstein said it, she was right. At the time they 
saw very clearly the consequences of what could happen.
  We are too close to the 2002 election for some of our friends on the 
other side of the aisle to see clearly. All they see is a majority lost 
and a real desire to get it back. Please reflect, please do not be 
blinded by the political moment. Please do not take our country down a 
road that we will all regret.
  Mr. KOHL. Mr. President, I rise today to explain again my reasons for 
supporting a filibuster on the nomination of Miguel Estrada. At the 
outset, let me state that my opposition to bring his nomination to a 
vote is not a decision I have reached causally or without serious 
reflection. Our power to extend debate on a nomination should only be 
undertaken in extraordinary circumstances, when we have no other 
choice. We have reached that unfortunate state of affairs today.
  In the case of Mr. Estrada, we are presented with a nominee for a 
lifetime appointment to our Nation's second most powerful court. This 
nominee has refused to answer our questions regarding his views and 
judicial philosophy, and indeed has obstructed our efforts to evaluate 
his fitness to serve on the D.C. Circuit. His repeated evasions subvert 
our solemn constitutional duty to advise and consent to judicial 
nominations. We should not permit a vote on a judicial nominee who has 
so fundamentally attempted to obstruct our confirmation process in this 
way.
  I am aware of the criticism that our action is unprecedented. This is 
simply not true. While such a step is not--and should not--be done 
routinely, filibusters of judicial nominations have been undertaken 
under the leadership of both parties several times in recent years. 
According to the Congressional Research Service, the Senate has 
attempted to invoke cloture in response to extended debate on judicial 
nominees 13 times since 1968. Indeed, cloture was sought after extended 
debate in response to Republican-led opposition to no fewer than four 
of President Clinton's judicial nominees.
  These statistics do not take into account the silent filibuster known 
as a ``hold''--often anonymous--which permits one objector to block 
consideration of a judicial nominee. President Clinton's nominees were 
routinely defeated by anonymous holds. And those holds only defeated 
the nominees who were lucky enough to even get a hearing and a 
committee vote. It seems that the same forces complaining about the 
``unfairness'' of extended debate on the Estrada nomination were 
enthusiastic in blocking President Clinton's nominees without any 
debate just a few short years ago.
  I also am distressed at the false and misleading charges and 
accusations that Mr. Estrada's supporters have leveled during this 
debate. The most outrageous is the cynical charge that our opposition 
to Mr. Estrada is somehow motivated by the fact that he is Hispanic. 
Nothing could be further from the truth. Our opposition to him is 
solely based on his consistent obstruction of our review of his 
nomination and his unwillingness to provide us with the information 
needed to evaluate his fitness.
  No observer can doubt that we support and indeed make diversity a 
priority in our courts, including appointing Hispanic Americans to fill 
these positions. And let's remember that the confirmation of at least 
three highly qualified appellate court nominees of Hispanic origin 
nominated by President Clinton--two for the Fifth Circuit and one for 
the Ninth Circuit--were blocked by the same people who complain today 
about our opposition to Mr. Estrada. One thing is perfectly clear: This 
nomination has nothing to do with ethnicity and everything to do with 
duplicity.
  When Mr. Estrada refuses to candidly share his views with us, we are 
left with his record. And this record leaves us with grave concerns 
about confirming him to this crucial judgeship. A few examples from Mr. 
Estrada's career highlight these concerns. Mr. Estrada devoted 
substantial time and energy to defending, on behalf of pro bono 
clients, anti-loitering statutes, laws which often result in the 
arrests of a disproportionate number of African-Americans and Latinos. 
These laws have been repeatedly struck down for violating free speech 
rights. On the other hand, Mr. Estrada has argued on behalf of the 
First Amendment rights of a large pharmaceutical company charged with 
engaging in a deceptive advertising campaign. These two cases make it 
appear that Mr. Estrada is more comfortable with asserting the First 
Amendments rights of giant corporations than average citizens. He has 
also argued in Federal court against the standing of civil rights 
organizations to vindicate the constitutional rights of their members.
  When one reviews Mr. Estrada's professional record, then, there 
appears to be little to rebut the opinion offered by Paul Bender, his 
supervisor for three years at the Solicitor General's office, that Mr. 
Estrada is a ``right-wing ideologue'' who ``lacks [the] judgment . . . 
to be an appeals court judge.'' This view, from the one person at the 
Solicitor General's office who knew his work best, is damning.
  Of course, if we had access to Mr. Estrada's memorandums and opinions 
at the Solicitor General's office, we could evaluate for ourselves 
whether Mr. Bender's opinion is unduly harsh or not. But we do not have 
such access. If Mr. Estrada was willing to candidly discuss his views 
and judicial philosophy with us, our concerns about whether he was 
outside the mainstream might be assuaged. But this he is also not 
willing to do so. We have no choice but to rely on his record, and this 
record convinces us that he does not warrant confirmation to the D.C. 
Circuit.
  Anyone who reviews my record on judicial nominations knows that I 
have not reached my decision to support extended debate here--indeed my 
decision to oppose Mr. Estrada's confirmation--lightly. In my entire 14 
years in the Senate, I have voted to oppose the confirmation of 
judicial nominations only seven times. But this nominee's evasions and 
gross disrespect for our nomination process, when combined with the 
disturbing evidence from his public record of his extreme ideology, 
leave me no choice.
  One of the most important tasks we perform is our constitutional duty 
to ``advise and consent'' on judicial nominations. Once their 
nominations are confirmed by the Senate, these men and women serve 
lifetime appointments, unanswerable to Congress, the President, or the 
people. They will become the guardians of our liberties, of our 
Constitution, and of our civil rights. Our duty to ``advise and 
consent'' is the only check we will ever have on the qualifications and 
fitness of those chosen to serve as Federal judges.
  When a nominee subverts and impedes this vital process by declining 
to answer our questions so that we cannot evaluate his fitness to 
serve, he has disqualified himself for consideration by this body. We 
simply cannot vote up or down on a nominee who both has no judicial 
record and refused to provide us with the information necessary for us 
to gain even the most basic understanding of his opinions, his outlook, 
or judicial philosophy. For these reasons, I oppose his confirmation.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Graham of South Carolina). Without 
objection, it is so ordered.
  Mr. FRIST. Mr. President, as majority leader, I have not taken the 
opportunity today to discuss the nomination of Miguel Estrada, although 
I did have the opportunity to participate in the debate and the 
discussion that we had earlier this evening.
  Of course it always on my mind, because the filibuster that is being 
maintained is very troubling.
  Well, I wanted to find some time and it is now 1:45 in the morning 
here in

[[Page S2828]]

Washington, and this time works for me.
  As we have heard tonight, the leading obstacle to Miguel Estrada's 
confirmation are unprecedented requests by the minority of documents 
written by Mr. Estrada when he worked for the Clinton Reno Justice 
Department.
  Well, since we have time, I would like to read at length from a 
letter just released, this will be the first time anyone has heard this 
letter to my colleague the Senator from New York from Alberto Gonzales, 
President Bush's White House Counsel, and like Miguel Estrada, a fine 
legal mind.
  The letter is dated February 24, 2003, and it begins:

       Dear Senator Schumer: Based on your public comments 
     yesterday, I am concerned that you may have inaccurate and 
     incomplete information about Miguel Estrada's qualifications 
     and about the historical practice with respect to judicial 
     confirmations. Therefore, I write to respectfully reiterate 
     and explain our conclusion that you and certain other 
     Senators are applying an unfair double standard--indeed, a 
     series of unfair double standards--to Miguel Estrada.
       First, your request for confidential attorney-client 
     memoranda Mr. Estrada wrote in the Office of Solicitor 
     General seeks information that, based on our review, has not 
     been demanded from past nominees to the federal courts of 
     appeals. We are informed that the Senate has not requested 
     memoranda such as these for any of the 67 appeals court 
     nominees since 1977 who had previously worked in the Justice 
     Department--including the seven nominees who had previously 
     worked in the Solicitor General's office.
       Nor have such memoranda been demanded from nominees in 
     similar attorney-client situations: The Senate has not 
     demanded confidential memoranda written by judicial nominees 
     who had served as Senate lawyers, such as memoranda written 
     by Stephen Breyer as a Senate counsel before Justice Breyer 
     was confirmed to the First Circuit in 1980. Nor has the 
     Senate demanded confidential memoranda written by judicial 
     nominees who had served as law clerks to Supreme Court 
     Justices or other federal or state judges. Nor has the Senate 
     demanded confidential memoranda written by judicial nominees 
     who had worked for private clients.
       The very few isolated examples you have cited were not 
     nominees for federal appeals courts. Moreover, those 
     situations involved Executive Branch accommodations of 
     targeted requests for particular documents about specific 
     issues that were primarily related to allegations of 
     malfeasance or misconduct in a federal office. We 
     respectfully do not believe these examples support your 
     request. Our conclusion about the general lack of support and 
     precedent for your position is buttressed by the fact that 
     every living former Solicitor General (four Democrats and 
     three Republicans) has strongly opposed your request and 
     stated that it would sacrifice and compromise the ability of 
     the Justice Department to effectively represent the United 
     States in court. In short, the traditional practice of the 
     Senate and the Executive Branch with respect to federal 
     appeals court nominations stands in contrast to your request 
     here and supports our conclusion that an unfair double 
     standard is being applied to Miguel Estrada. (Also, contrary 
     to your suggestion yesterday, please note that no one in the 
     Executive Branch has reviewed these memoranda since President 
     Bush took office in January 2001.)
       Second, you suggested that ``no judicial nominee that I'm 
     aware of, for such a high court, has ever had so little of a 
     record.'' I respectfully disagree. Miguel Estrada has been a 
     very accomplished lawyer, trying cases before federal juries, 
     briefing and arguing numerous appeals before federal and 
     state appeals courts, and arguing 15 cases before the Supreme 
     Court, among his other significant work. His record and 
     breadth of experience exceeds that of many judicial nominees, 
     which is no doubt why the American Bar Association--which you 
     have labeled the ``gold standard''--unanimously rated him 
     ``well-qualified.'' In noting yesterday that Mr. Estrada's 
     career had been devoted to ``arguing for a client,'' you 
     appeared to imply that only those with prior judicial 
     service (or perhaps ``a lot of [law review] articles'') 
     may serve on the federal appeals courts. But five of the 
     eight judges currently serving on the D.C. Circuit had no 
     prior judicial service at the time of their appointments. 
     Indeed, Supreme Court Justices Rehnquist, White, and 
     Powell--to name three of the most recent--had not served 
     as judges before being confirmed to the Supreme Court. And 
     like Mr. Estrada, two appointees of President Clinton to 
     the D.C. Circuit (Judge David Tatel and Judge Merrick 
     Garland) had similarly spent their careers ``arguing for a 
     client,'' but were nonetheless confirmed.
       Now the letter goes on to quote from the Chief Justice:
       As the Chief Justice noted in his 2001 Year-End Report, 
     moreover, ``[t]he federal Judiciary has traditionally drawn 
     from a wide diversity of professional backgrounds.'' The 
     Chief Justice cited Justice Louis Brandeis, Justice John 
     Harlan, Justice Byron White, Judge Thurgood Marshall (as 
     nominee to the Second Circuit), Judge Learned Hand, and Judge 
     John Minor Wisdom as just a few examples of great judges who 
     had spent virtually their entire careers ``arguing for a 
     client'' before becoming Supreme Court Justices or federal 
     appeals court judges.

       As these examples show, had the ``arguing for a client'' 
     standard been applied in the past, it would have deprived the 
     American people of many of our most notable appellate judges. 
     Based on our understanding, this standard has not been 
     applied in the past. This further explains why we have 
     concluded that an unfair double standard is being applied to 
     Miguel Estrada.
       Third, you stated that ``when you went to those hearings, 
     Mr. Estrada answered no questions.'' The record demonstrates 
     otherwise. Mr. Estrada answered more than 100 questions at 
     his hearing, and another 25 in follow-up written answers. He 
     explained in some detail his approach to judging on many 
     issues, and did so appropriately without providing his 
     personal views on specific legal or policy questions that 
     could come before him--which is how previous judicial 
     nominees of Presidents of both parties have appropriately 
     answered questions. Indeed, at his hearing, Mr. Estrada was 
     asked and answered more questions, and did so more fully, 
     than did President Clinton's appointees to this same court. 
     Judge David Tatel was asked a total of three questions at his 
     hearing. Judges Judith Rogers and Merrick Garland were each 
     asked fewer than 20 questions. The three appointees of 
     President Clinton combined thus answered fewer than half the 
     number of questions at their hearings that Mr. Estrada 
     answered at his hearing.
       What is more, like Mr. Estrada, both Judge Rogers and Judge 
     Garland declined to give their personal views on disputed 
     legal and policy questions at the hearing. Judge Rogers 
     refused to give her views when asked about the notion of an 
     evolving Constitution. And Mr. Garland did not answer 
     questions about his personal views on the death penalty, 
     stating that he would follow precedent. In short, we believe 
     that your criticism of Mr. Estrada's answers at his hearing 
     reveals that another unfair double standard is being applied 
     to Mr. Estrada.
       Fourth, you stated that the Founding Fathers ``came to the 
     conclusion that the Senate ought to ask a whole lot of 
     questions'' of judicial nominees. We respect the Senate's 
     constitutional role in the confirmation process, and we agree 
     that the Senate should make an informed judgment consistent 
     with its traditional role and practices. But your 
     characterization of the Senate's role with respect to 
     judicial nominations is not consistent with our reading of 
     historical or traditional practice.
       Alexander Hamilton explained that the purpose of Senate 
     confirmation is to prevent appointment of ``unfit characters 
     from State prejudice, from family connection, from personal 
     attachment, or from a view to popularity.'' The Federalist 
     76. The Framers anticipated that the Senate's approval would 
     not often be refused unless there were ``special and strong 
     reasons for the refusal.'' Id. Moreover, the Senate did not 
     hold hearings on judicial nominees for much of American 
     history, and the hearings for lower-court nominees in modern 
     times traditionally have not included the examination of 
     personal views that you have advocated. (My letter of 
     February 12, 2003, to Senators Daschle and Leahy contains 
     more detail on this point.) Indeed, just a few years ago, 
     Senator Biden made clear, consistent with the traditional 
     practice, that he would vote to confirm an appeals court 
     judge if he were convinced that the nominee would follow 
     precedent and otherwise was of high ability and integrity.
       In short, it appears that you are seeking to change the 
     Senate's traditional standard for assessing judicial 
     nominees. We respect your right to advocate a change, but we 
     do not believe that the standard you seek to apply is 
     consistent with the Framers' vision, the traditional Senate 
     practice, or the Senate's treatment of President Clinton's 
     nominees. Rather, we believe a new standard is being devised 
     and applied to Miguel Estrada.
       Fifth, you stated yesterday that a ``filibuster'' is not an 
     appropriate term to describe what has been occurring in the 
     Senate. We respectfully disagree. Democrat Senators have 
     objected to unanimous consent motions to schedule a vote, and 
     they have indicated that they will continue to do so. That 
     tactic is historically and commonly known as a filibuster, 
     and is a dramatic escalation of the tactics used to oppose 
     judicial nominees. Indeed, in 1998, Senator Leahy stated:
       I have stated over and over again on this floor that I 
     would refuse to put an anonymous hold on any judge; that I 
     would object and fight against any filibuster on a judge, 
     whether it is somebody I opposed or supported; that I felt 
     the Senate should do its duty. If we don't like somebody the 
     President nominates, vote him or her down. But don't hold 
     them in this anonymous unconscionable limbo, because in doing 
     that, the minority of Senators really shame all Senators.'' 
     144 Cong. Rec. S6522 (June 18, 1998). In

[[Page S2829]]

     our judgment, the tactics now being employed again show that 
     Miguel Estrada is receiving differential treatment.
       Now Judge Gonzales Concludes this way, addressing himself 
     to Senator Schumer:
       As I have said before, I appreciate and respect the 
     Senate's constitutional role in the confirmation process. You 
     have expressed concern that you do not know enough about Mr. 
     Estrada's views, but you have not submitted any follow-up 
     questions to him. We respectfully submit that the Senate has 
     ample information and has had more than enough time to 
     consider questions about the qualifications and suitability 
     of a nominee submitted more than 21 months ago. Most 
     important, we believe that a majority of Senators have now 
     concluded that they possess sufficient information on Mr. 
     Estrada and would vote to confirm him. We believe it is past 
     time for the Senate to vote on this nominee, and we urge your 
     support.
           Sincerely,
                                               Alberto R. Gonzales
                                          Counsel to the President

  Now as we heard earlier an enormous number of editorials, over 60 
editorials all over the country have opposed the Democrat filibuster 
and support Miguel Estrada. Only eight have taken the Democrat view of 
things--only eight.
  It is clear to anyone that what the minority is doing in 
filibustering Miguel Estrada's nomination is far from the mainstream of 
what thoughtful people are thinking across this country.
  Mr. President, I will read from just a few of these:
  First, on the question of the Solicitor General memos:
  Boston Herald, 2/14/03:

       The latest [bad argument] has to do with the White House's 
     refusal to release memos and documents written by Estrada 
     during his tenure in the solicitor general's office. Now all 
     of the living former solicitors general--four Democrats and 
     three Republicans--happen to agree with the White House 
     position. There is such a thing as attorney-client privilege, 
     even for the solicitor general.

  South Carolina's Spartenburg Herald Journal, 2/14/03:

       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. They have asked the White House 
     to release internal legal memos he wrote while working for 
     the Solicitor General's Office. These are documents that are 
     usually kept within the White House. In fact, every living 
     former solicitor general, four Democrats and three 
     Republicans, are against releasing the memos. Presidents rely 
     on the Solicitor General's Office to give them legal advice. 
They don't want those lawyers to be worrying about how their memos will 
impact future attempts to win judicial seats. The White House has 
refused to release the documents.

  California's Redding Record Searchlight, 2/15/03:

       Well, but the administration won't hand over memos he wrote 
     when he was in the solicitor general's office, say the Senate 
     Democrats. It apparently does not matter to them that 
     publicizing them could rob future memos of their candor and 
     that every former solicitor general of either party has said 
     the Democrats seek too much.

  Rhode Island's Providence Journal-Bulletin, 2/14/03:

       [Democrats] have demanded not only supplementary detailed 
     responses to political inquiries, but also Mr. Estrada's 
     confidential memoranda written while he was an assistant 
     solicitor general. Every living solicitor general, Democratic 
     and Republican, has gone on record to oppose this unwarranted 
     intrusion into the deliberative process in the Justice 
     Department. And the Bush administration has been correct to 
     resist Democratic demands.

  Chicago Tribune, 2/10/03:

       The Justice Department has refused to release Estrada's 
     memos, noting that such documents have always been regarded 
     as confidential. Every living former solicitor general, 
     Democratic and Republican, has publicly endorsed that 
     position. They say making the documents public would 
     discourage government lawyers from offering candid advice. 
     Anyone who wants a glimpse into Estrada's thinking can 
     scrutinize the briefs he wrote and oral arguments he made.

  Detroit News, 2/11/03:

       Democrats also demanded that he produce his memos and 
     recommendations while he was in the solicitor general's 
     office--which had never been done for any other candidate who 
     had been an assistant in that office. The demand was rejected 
     not only by Estrada, but by every former solicitor general 
     still living, including those who served Democratic 
     presidents.

  Tampa Tribune, 2/10/03:

       Yet the Democrats claim they don't know enough about 
     Estrada. They have demanded to see copies of his work in the 
     Justice Department, intentionally seeking papers they knew to 
     be confidential. Because Estrada did not turn them over, they 
     have attempted to crucify him, this despite letters from 
     former solicitors general complaining that their demand 
     amounted to legislative overreach and that acceding to it 
     would set a dangerous precedent.

  St. Louis Post-Dispatch, 2/7/03:

       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.

  Washington Post, 2/5/03:

       Mr. Estrada's nomination in no way justifies a filibuster. 
     The case against him is that he is a conservative who was 
     publicly criticized by a former supervisor in the Office of 
     the Solicitor General, where he once worked. He was not 
     forthcoming with the committee in its efforts to discern his 
     personal views on controversial issues--as many nominees are 
     not--and the administration has (rightly) declined to provide 
     copies of his confidential memos from his service in 
     government.

  Also from the Washington Post, September 29 of last year:

       Democrats are still pushing to see confidential memos Mr. 
     Estrada wrote in the solicitor general's office and 
     trumpeting criticism of him by a single supervisor in that 
     office--criticism that has been discredited by that same 
     colleague's written evaluations. Seeking Mr. Estrada's work 
     product as a government lawyer is beyond any reasonable 
     inquiry into what sort of judge he would be. Nor is it fair 
     to reject someone as a judge because that person's decision 
     to practice law, rather than write articles or engage in 
     politics, makes his views more opaque. And it is terribly 
     wrong to demand that Mr. Estrada answer charges to which 
     nobody is willing to attach his or her name.

  The Press-Enterprise, Riverside, CA, entitled ``Advice and 
Filibuster,'' 2/18/03:

       Democratic senators are frustrated by the White House's 
     refusal to release to them memoranda he wrote as solicitor 
     general. But in the best of times, such a request would be 
     out of line, and these are closer to the worst than to the 
     best for the nomination process. If the memoranda were to be 
     used as an honest beginning to a discussion of Mr. Estrada's 
     legal views, there might be some justification for releasing 
     the documents that would normally be considered privileged. 
     One suspects that's not the role the Democrats have in mind 
     for the memoranda. They probably hope to expose Mr. Estrada's 
     conservative views, which no one doubts he holds, in hopes of 
     defeating the nomination or at least scoring some political 
     points.

  Winston-Salem Journal, 2/20/03:

       [Democrats] have demanded that [Mr. Estrada] turn over 
     confidential papers from his years as solicitor general. 
     Congress should not be asking for such material, as all 
     living solicitors general have said in a letter.

  Mr. President, as I said, over 60 editorials share this view. Only 8 
have expressed an opposite view.
  Mr. President, the hour is late, or early, depending on how you see 
it. I hope that my friends on the other side of the aisle will see 
differently tomorrow in the light of day.

                          ____________________