[Congressional Record Volume 149, Number 32 (Thursday, February 27, 2003)]
[Senate]
[Pages S2879-S2881]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Unanimous Consent Request

  I ask unanimous consent that the pending nomination be set aside and 
that the Senate take up and begin debate on Calendar No. 21, S. 414, a 
bill to provide an immediate stimulus to our Nation's economy.
  The ACTING PRESIDENT pro tempore. Is there objection?
  The Senator from Nevada.
  Mr. ENSIGN. Reserving the right to object, the way to resolve the 
nomination is to schedule an up-or-down vote.
  I object.
  The ACTING PRESIDENT pro tempore. The objection is heard.
  The Senator from New Jersey has the floor.
  Mr. CORZINE. With full expectation and understanding of the position, 
I am disappointed with the objection that has been raised, but I am not 
surprised. We have a critical need to get focused on our economy in 
this country. The needs of the American people are not being addressed. 
It is not because we are having this debate. We could move off this 
debate and move to the economy today, then come back to it like we did 
with regard to the omnibus appropriations.
  The American people should know there are proposals on the table that 
would stimulate this economy and get it moving, instead of seeing 
unemployment rates skyrocket, instead of seeing deficits as far as the 
eye can see being

[[Page S2880]]

put in place, with no attention being drawn to them, without dealing 
with the core things that matter in families' lives, in real people's 
lives. We could do that and still come back to this and have a full 
constitutional and responsible debate about what is needed to review a 
candidate and get on with the real needs facing our country.
  I find it very difficult to understand where we are with regard to a 
lot of these priorities at this point in time, and I hope we will see 
the light before we have to go further with more of these serious 
problems that our American families face with their economic security.
  I yield the floor, and I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ENSIGN. 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the quorum call be rescinded.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. ENSIGN. Mr. President, it is my pleasure today to come before the 
Senate to lend my support to a man of tremendous character and 
extraordinary legal credentials, Mr. Miguel Estrada. We have heard a 
lot about this nominee. We have heard a lot about why we should be 
focusing, why we shouldn't. As I discussed before, I would like to see 
us get on to things like the economy, like the budget. The simplest way 
to do that is to have an up-or-down vote on Miguel Estrada.
  I will share a few facts about Mr. Estrada and the importance of the 
nomination to our legal system. Mr. Estrada is an American success 
story. He came to this country at the age of 17 as an immigrant from 
Honduras, speaking very little English. He overcame amazing obstacles 
to rise to the top of the legal profession. After graduating magna cum 
laude from Harvard Law School, Miguel became a law clerk to the Supreme 
Court Justice Anthony Kennedy. Since that time, he served as a Federal 
prosecutor in New York and Assistant Solicitor General of the United 
States for 1 year in the Bush Administration and 4 years in the Clinton 
administration. He was handed nothing, and his achievements are the 
product of hard work, perseverance, and a commitment to education. He 
is actually living the American dream.
  Among other accomplishments, Mr. Estrada has argued 15 cases before 
the Supreme Court of the United States, including one case in which he 
represented a death row inmate pro bono. The American Bar Association 
unanimously rated Mr. Estrada as well qualified for the DC Circuit. 
This is the ABA's highest possible rating, and the rating typically 
used as the gold standard for judicial nominees in the Senate Judiciary 
Committee, especially on the Democrat side.
  Mr. Estrada served as a member of the Solicitor General's Office in 
both the Bush and Clinton administrations. He is enthusiastically 
supported by both President Bush and President Clinton. The long list 
of Hispanic groups backing Miguel Estrada's nomination includes the 
League of United Latin American Citizens, the U.S. Hispanic Chamber of 
Commerce, the Latino Coalition, the Hispanic Bar Association, and the 
National Association of Small Disadvantaged Businesses.
  Sadly, Mr. Estrada's extraordinary accomplishments and his desire to 
serve our country have not been enough to protect him from the 
baseless, vicious, and partisan attacks he has endured through this 
process. Now is not the time to play partisan games with the United 
States judicial system. America is facing a judicial vacancy crisis in 
our Federal courts. The U.S. Courts of Appeals are currently 15 percent 
vacant, with 25 vacancies out of 167 authorized seats. The DC court, 
which is the court we are trying to get Miguel Estrada onto, has four 
vacancies on a 12-judge court.
  Adding to this crisis, caseloads in the Federal courts continue to 
grow dramatically. Filings in the Federal appeals court reached an all-
time high last year. The Chief Justice recently warned that the current 
number of vacancies, combined with the rising caseloads, threatens the 
proper functioning of the Federal courts. He has asked the Senate to 
provide every nominee with a prompt up-or-down vote.
  Chief Rehnquist is right. Every judicial nominee deserves a prompt 
hearing and a chance at an up-or-down vote on the Senate floor. This 
nominee is not being assessed by the traditional standards of quality 
or by his ability to follow the law as a judge. There is no question 
that this nomination is being delayed and possibly blocked because of a 
distorted analysis of his qualifications, policies, and personal views. 
My colleagues on the other side of the aisle are blocking this 
nomination simply because he is President Bush's nominee. This is a 
detriment to the integrity of this body. It is unfair to the nominee. 
And it is unfair to the American people.

  I am asking my colleagues in the Senate today to do what we were 
elected to do, to allow this body to work its will, and to give Mr. 
Estrada the up-or-down vote he deserves. I add that the precedent we 
are setting, this 60-vote threshold for circuit court nominees, is a 
dangerous precedent. Right now the Republicans are in the majority and 
we have the Presidency. At some point the Democrats are going to be 
back in the majority. At some point the Democrats are going to hold the 
Presidency again. Paybacks are very ugly. But make no mistake about it, 
with the precedent being set here, unless this can be worked out, those 
paybacks will come back to haunt the other side of the aisle.
  It is vitally important we work this out for the health of the 
judiciary in this country. It should not become a political tool to be 
bandied about just because somebody thinks that somebody may have a 
particular ideology.
  We realize that having a Republican Hispanic on the DC Circuit Court 
of Appeals is something the other side does not like.
  But just because they don't like the politics of that does not mean 
that they should object to him getting on the court. He deserves this. 
He is qualified for it. He has the integrity to carry it out. And we, 
as a body, should give this man an up-or-down vote. If we give him an 
up-or-down vote he will be confirmed by the Senate.
  I believe it is our constitutional duty to give him an up-or-down 
vote. He has had all the hearings he needs to have. We have been doing 
this for almost 2 years now. We need to give this well-qualified 
candidate the vote he deserves.
  I want to raise a couple of points. The Senator from New Jersey was 
talking about the economy. He says we have to get on the economy. I 
agree, we need to take care of the economy. I have some proposals. The 
President has some proposals. There are going to be other Senators who 
will have proposals to try to stimulate the economy. The Senator from 
New Jersey indicated he doesn't think what the President is doing is 
going to have enough of an impact. I have a proposal that actually, the 
first year alone, according to the Joint Tax Committee, will bring $135 
billion worth of investment into this country. I hope the other side of 
the aisle is going to join us in that. That is significant even in the 
size economy that we have.
  What the President has laid out as part of his plan--I don't agree 
with all of it, but there are some good things in it. He has laid out a 
plan, not only for this year but for solid growth and, in future years, 
to have good, solid, long-term fiscal policy and long-term growth.
  I agree with some of the things the other side of the aisle is 
talking about with respect to budget deficits. We do have a problem in 
the outyears with budget deficits. But if we do not fix the economy, we 
know we will never fix the deficits. We will continue to go further and 
further into debt. That is why it is critical for us to fix the 
economy, so we produce more tax revenues so we don't have these huge 
deficits and threats to Medicare and threats to Social Security and 
threats to our defense spending in the future.
  We have proven here in Washington, DC, we can't cut spending. We can 
maybe slow down the rate of growth sometimes, but we can't cut 
spending. As Ronald Reagan talked about--I don't remember the exact 
quote, but as he said in the early 1980s: The best way to eternal life 
is to become a Federal agency or department in Washington. He said that 
because he realized once a program starts, it develops a constituency 
and it is impossible to cut it. So I believe if the other side is 
concerned

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about the deficit, they should join some of us on this side of the 
aisle and start cutting out some of the waste and overspending in 
certain parts of our Government.
  Having said that, let me conclude by saying let's have an up-or-down 
vote on Miguel Estrada so we can get on to some of the other important 
issues. Make no mistake about it, though; the judiciary and this part 
of what we do is a very important part of our role as Senators in 
fulfilling our obligation, our oath of obligation to defend and support 
the Constitution. We can get on to other things. The budget was not 
enacted last year. For the first time since 1974 we did not have a 
budget. Because of that, we ended up with some serious problems last 
year. The appropriations bills didn't get finished until just a couple 
of weeks ago.
  We are asking the other side to not continue to obstruct the will and 
the work of this body, to join us, have an up-or-down vote, let the 
Senate work its will on this nomination so we can get on to other 
important business of the country. We have a lot of things to do. Let's 
join together. Let's work across the aisle. Let's join hands. There are 
a lot of good things we can do for the American people.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Bunning). The Senator from South Dakota.
  Mr. JOHNSON. Mr. President, I rise to express my great dismay at the 
policy of the President of the United States that he seems to be 
attempting to impose on the Senate, which would require each and every 
one of us in this body to betray the Constitution, to betray our oath 
of office, and to ignore the constitutional mandate that we give 
meaningful advice and consent on judicial nominees coming before this 
body.
  I will never betray the Constitution and my oath. I don't care 
whether we have to be here night after night. I am not going to go down 
that road. I speak as a Senator who has voted in favor of somewhere in 
the range of 100 judicial nominees that President Bush has sent to this 
body, virtually all conservative Republicans. I wish it were different. 
I wish there were more progressive judges before us. But I understand 
the President's prerogative, and I respect his right to nominate 
whomever he may wish.
  But this nomination before us is unprecedented. It is not only a 
matter of Mr. Estrada, it is a matter of the sanctity of our 
Constitution. It goes to the very oath of office we have taken. It 
would make a travesty of this body and of the Constitution for us to do 
otherwise than to object to the manner in which this particular nominee 
has been presented to the Senate.
  The other nominees who have come before this body--for whom I have 
voted over and over again, somewhere in the range of 100 already--we at 
least knew what was their legal philosophy. They tended to be 
conservative Republicans and that is the President's prerogative and I 
voted for them, but they had either been Federal judges or State 
judges, allowing us to look at their rulings in the past, or they had 
been legal scholars with a significant body of work that allowed us to 
view what the inner workings of their minds were and allowed us to 
determine whether they were, in fact, within the mainstream of American 
jurisprudential thought. This nominee stands unique. The precedent 
would be catastrophic to our Republic if we start, for the first time 
ever, to approve secret judges, stealth judges, judges who have no 
record and who will disclose no record to the Senate.
  We have no way of knowing what this individual's legal philosophy 
might be. We have reason to believe he is undoubtedly a capable lawyer, 
in terms of his technical skills as a Solicitor, but we have no idea 
where he stands otherwise. The question is not whether we will have 
Hispanic Republican judges on the District of Columbia Court of 
Appeals. That is irrelevant. I voted repeatedly, as have my colleagues 
on my side of the aisle, for Hispanic judges and other high officials 
in our Government. I am proud to have played a role in supporting our 
Hispanic colleagues in issue after issue, and position after position. 
But this, this is a sham. This is a travesty. I believe any Senator who 
thinks seriously about his oath and reads the Constitution, the 
obligation--not the right but the obligation of the Senate to provide 
advice and consent on these offices is a profoundly important role.
  It is one thing to approve or not approve Cabinet appointees and 
other advisers to the President; they come and they go. It is a serious 
matter, but at least there is not a lifelong appointment involved. In 
this case, we have a lifetime appointment to the second highest court 
in the land. What is worse, if we submit to this failure to abide by 
our constitutional obligations to make a meaningful decision about 
advice and consent, we will have opened the floodgate because it will 
become apparent to this President that the strategy to use from here on 
out is to continue to find individuals who have no track record, who 
may have a secret ideological agenda, and to send them one after 
another through the Senate to be rubberstamped by this institution. 
That is not acceptable. This is a matter of enormous importance.
  These individuals, and this particular individual about whom we are 
debating today, if confirmed, will likely serve on this bench for the 
rest of our lifetimes, for many of us in this body. President Bush may 
come and he may go, but these appointments will last a lifetime.
  So it is with enormous concern that I rise to express my opposition 
to this strategy because that is what this is about. It is about a 
strategy. It is not about whether a Hispanic Republican should be on 
the bench. It is not about whether a conservative should be on the 
bench, so long as they fall within the mainstream of American juris 
prudential thought. The question is, Should this Senate be allowed any 
idea about this individual's ideology, about his legal 
philosophy? There we know nothing. We would be surrendering our 
constitutional prerogatives and our constitutional obligations were we 
to respond any other way than we have attempted to do on this side. 
Obviously, we can move on to other agenda items, whether it be 
stimulating the economy, education, health care, or what have you. All 
that is required is for leadership of our colleagues on the other side 
of the aisle in support of the President to either withdraw this 
nominee or to have him respond to reasonable questions about his 
philosophy. There is no effort here to require this individual to 
answer questions that have not been put to other judges. The question 
is not his response to specific items before the Court. It would be 
inappropriate to ask those kinds of questions. But this is astonishing. 
This is stonewalling. That is what this is. It is unacceptable.

  Again, over 100 judges that President Bush has nominated have been 
confirmed by this body, and most have gone through with my support. 
Most of them were conservative Republican judges. That is fine. But 
this is different. I hope the American public understands the profound 
consequences that would flow from our surrendering of our 
constitutional obligation to at least make meaningful decisions about 
whether to confirm a particular nominee.