[Congressional Record Volume 149, Number 32 (Thursday, February 27, 2003)]
[Senate]
[Pages S2884-S2893]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                Southwest Regional Border Authority Act

  Mr. President, let me also talk about a bill I introduced yesterday. 
This is a bill entitled Southwest Regional Border Authority Act. We 
offered this same bill last May. I am very pleased this year I am 
joined by Senator Kay Bailey Hutchison, and also Senator Barbara Boxer. 
This legislation would create an economic development authority for the 
Southwest border region that would be charged with awarding grants to 
border communities in support of local economic development projects. 
The need for a regional border authority is acute. The poverty rate in 
the Southwest border region is over 20 percent, nearly double the 
national average of 11.7 percent. The unemployment rate in Southwest 
border counties can reach as high as six times the national 
unemployment rate. The per capita personal income in the region is 
greatly below the national average. In many border counties, the per 
capita personal income is less than 50 percent of the national average. 
There is a lack of adequate access to capital that has made it 
difficult for businesses to get started in this region.

  In addition, the development of key infrastructures, such as water, 
waste water, transportation, public health, and telecommunications--all 
of these areas of infrastructure need have failed to keep pace with the 
population explosion and the increase in commerce across our border 
with Mexico.
  Mr. President, the counties in the Southwest border region are among 
the most economically distressed in the Nation. It should be noted that 
there are only a few such regions of economic distress throughout the 
country. Virtually all of the other regions that face this same 
economic distress are, in fact, served by regional economic development 
commissions today. These commissions include the Appalachian Regional 
Commission, the Delta Regional Authority, the Denali Commission in 
Alaska, and the Northern Great Plains Regional Authority.
  In order to address the needs of the border region in a similar 
fashion, we are proposing this Regional Economic Commission for the 
Southwest border. The bill is based on four guiding principles.
  First, it starts from the premise that people who live on the 
Southwest border know best when it comes to making decisions as to how 
to improve their own communities.
  Second, it employs a regional approach to economic development and 
encourages communities to work across county and State lines where 
appropriate. All too often in the past, the efforts to improve our 
region have hit roadblocks as a result of poor coordination and 
communication between communities.
  Third, it creates an independent agency, meaning it will be able to 
make decisions that are in the best interest of the border communities, 
without being subject to the politics of Federal agencies.
  Finally, it brings together representatives of the four Southwest 
border States and the Federal Government as partners to work on 
improving the

[[Page S2885]]

standard of living for people living on the border.
  This is not just another commission, and it is certainly not just 
another grant program. I believe this Southwest regional border 
authority not only will help leverage new private sector funding, it 
will also help to better target the Federal funds that are available to 
those projects that are most likely to produce results.
  The legislation accomplishes this through a sensible mechanism of 
development planning. The purpose of the planning process is to ensure 
that priorities are reflected in the projects funded by the authority. 
It also is to provide flexibility to the authority to fund projects 
that are regional in nature.
  I think the process has various advantages, and there are great 
benefits that can be derived from setting up this border authority. I 
believe very strongly this legislation is overdue. It is something that 
should have happened several years ago. For too long, the needs of the 
Southwest border have been ignored, overlooked, and underfunded.
  I am confident the creation of a Southwest regional border authority 
not only will call attention to the great needs that exist on the 
border, but will help us to meet those needs. I urge my colleagues to 
give attention to this legislation that we have introduced. I hope 
other colleagues will choose to support it. I hope we can have a 
hearing on it in the near future and move the legislation through the 
Senate and through the House to the President for signature.
  Mr. President, let me say a few words about the Estrada nomination as 
well. I know that is a subject of great concern to many on both sides 
of the aisle. I have taken some time in the last couple of days to 
review the transcript of the testimony that Mr. Estrada gave in the 
Judiciary Committee.
  I have been struck by his position, as stated numerous times in that 
testimony, that he was not willing to share his views on any issue 
related to judicial philosophy or court decisions with the committee.
  I was particularly struck by the discussion he had with our 
colleague, Senator Schumer. Senator Schumer was asking about Mr. 
Estrada's earlier statement that he saw as part of his job working for 
Justice Kennedy recommending law clerks and asking them questions, of 
course, interviewing them before he made the recommendation.
  Senator Schumer said:

       Isn't it appropriate that you would ask those questions? 
     Isn't it also appropriate that we would be asking you some 
     questions to try to determine your views?

  Mr. Estrada said in response to that question:

       Questions that I asked in doing my job for Justice Kennedy 
     were intended to ascertain whether there were any strongly 
     felt views that would keep that person from being a good law 
     clerk to the Justice.

  That is entirely appropriate, in my view, and a very well-stated 
position. That, in my view, is the exact job we have to perform as we 
screen and consider the various nominees for Federal court positions 
that the President sends us. We need to determine whether they have any 
strongly felt views that would keep them from being good members of the 
Court of Appeals for the District of Columbia, good members of the 
district court, or good members of the Supreme Court.
  My own position is that I am willing, and have demonstrated many 
times on the Senate floor my willingness, to support conservative 
nominees to the court. I believe many of those people are making 
excellent judges in our Federal court system. But I also want to be 
sure their views on issues that relate to their duties are mainstream, 
that they are not extreme. The only way I know to carry out that 
responsibility is to ask some questions to determine whether they have 
strongly felt views, as Mr. Estrada said, that would keep them from 
being, as he said in the case he was referring to, a good law clerk to 
the Justice.
  In the Senate, when we are considering people for lifetime 
appointments to the Federal judiciary, we have a heavier responsibility 
to be sure there are no strongly held views that would keep these 
individuals from being good judges in our Federal court system for the 
remainder of their lives. That is what I believe we should be trying to 
do. I think that is what many members of the Judiciary Committee were 
trying to do in the hearing that took place on Mr. Estrada.
  His view was that he would not respond to questions that were put to 
him about any such views, and he repeatedly said he did not think it 
was appropriate for him to comment on any personal views he might have. 
Since, of course, he would not comment on his personal views, there is 
no way to determine whether any of them are extreme.
  I do not think that is an adequate carrying out of responsibilities 
by the Judiciary Committee. I do not think it is an adequate carrying 
out of responsibilities by the Senate. And I think we do need more 
information. That has been my position. Before we move ahead with this 
nomination, we should get more information.
  I hope the Judiciary Committee will consider reconvening a hearing, 
once again providing the nominee with an opportunity to respond, as 
other nominees have traditionally responded. That is all we are asking, 
not that he give us information others were not asked to give or others 
did not give, but that he essentially provide basic information.
  He may express some views with which I do not agree. That is fine. 
Many judges for whom I have voted also, I believe, expressed views with 
which I did not agree. At least I was confident their views were not 
extreme. At least I was confident their views were mainstream and that 
they were within the mainstream as far as their conception of where the 
law is and where the law ought to go.
  I hope very much we can get the additional information we have been 
asking for and can proceed to dispose of this nomination. That would be 
my great hope. I do not know what the intent of the majority leader is 
at this point or the intent of the Judiciary Committee. I hope we can 
proceed in that manner.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Allard). Without objection, it is so 
ordered.
  Mr. REID. Mr. President, last evening, there was a lot of talk about 
whether memos at the Solicitor General's Office had ever been made 
public. I am going to talk about that, but I think we should put this 
whole debate involving Miguel Estrada in a framework that people who 
are watching the debate who are not familiar with Senate procedure can 
better understand what is going on.
  In effect, Miguel Estrada has asked his employer, the Federal 
Government, to give him a job to last for life. As with any job, one 
usually has to have an interview. In this instance, in addition to an 
interview, you bring whatever papers you have, whether it is a resume 
or other documents that your employer may want to find out if you 
should be hired. In the instance of Miguel Estrada, he simply has not 
filled out the requisite papers, he has not answered the questions or 
supplied the necessary information.
  An employer in Nevada, whether a company that sold tires or a company 
that sold food--it would not matter what it is--if somebody applied for 
a job, they would have to answer the questions that employer asked and 
give the requisite papers. In this instance, Democratic members of the 
Judiciary Committee believe he has not answered the questions. By 
reading the transcript, it is quite clear that is true.
  But yesterday, the distinguished Senator from Utah, Mr. Hatch, 
engaged in extensive discussion regarding the release of Solicitor 
General memoranda. As everyone by this time knows, we have asked that 
Miguel Estrada release memos he wrote while he was an attorney in the 
Solicitor General's Office. The administration has refused to provide 
these documents.
  There are two basic charges raised by my distinguished colleagues on 
the other side of the aisle about these memoranda: First, the 
distinguished chairman of the committee, Senator Hatch, has argued that 
when such

[[Page S2886]]

memos were provided in the past, they were leaked.
  My colleague argued that they have never, ever been given to anyone 
on Capitol Hill.
  Second, he qualified his remarks by saying to the extent memos had 
been provided, they were provided because there was some allegation of 
improper behavior by the nominee in connection with the memo.
  I will place in the Record a series of correspondence between the 
Judiciary Committee and the Justice Department from 1987 that 
demonstrates in fact such documents were provided. This is only one 
instance. These letters show that these memoranda were not leaked. They 
show that they were in fact provided freely by the Justice Department.
  In a letter dated August 10, 1987, then Judiciary Committee Chairman 
Biden set forth a request for several types of documents relating to 
the nomination of Judge Bork to the Supreme Court. In the letter, 
Senator Biden requested four classes of Bork-related memos: He 
requested those that related to the Watergate controversy; second, all 
documents generated or involving Solicitor General Bork relating to the 
constitutionality, appropriateness, or use of the pocket veto; third, 
all documents generated to or involving then Solicitor General Bork 
regarding school desegregation; fourth, all documents generated to or 
involving then Solicitor General Bork in forming the U.S. position in a 
series of specific cases.
  These requests involved memoranda provided by attorneys in the 
Solicitor General's Office to the Solicitor General recommending such 
things as whether to file amicus briefs in particular cases.
  In this instance, what happened to Senator Biden's request? Well, in 
fact a letter came to him dated August 24 from then Republican 
Assistant Attorney General Bolton to Democratic Senator Joe Biden. In 
that letter, the Justice Department declined to provide documents 
relating to the Watergate controversy. This denial of documents was 
based on executive privilege. The documents involved did not include 
Bork but, rather, related to communications between and among close 
advisers to the President and the President.
  Yesterday, Senator Crapo made reference to the fact that some 
documents were not turned over to the committee during this time. While 
it is true that the Watergate documents were not turned over, and this 
is based on executive privilege, that does not affect our debate. 
Solicitor General memoranda from Estrada to his supervisors are not 
covered by executive privilege. No one has ever claimed they are.
  In 1987, however, the Justice Department did provide the other 
documents I described above which were requested in the Biden letter. 
In these materials, the Justice Department noted in the letter: The 
vast majority of the documents that have been requested reflect or 
disclose internal deliberations within the executive branch. We wish to 
cooperate to the fullest extent with the committee and to expedite 
Judge Bork's confirmation process. The letter concludes that the 
documents referred to above would be provided. The letter confirms the 
nature and circumstances under which the Solicitor General memoranda 
were provided to the Judiciary Committee during Bork's hearings.
  So what about the argument that to the extent memoranda have been 
provided, they were only provided when the request alleged misconduct 
or malfeasance on the part of the nominee or other attorneys involved 
in the matter? This simply is not true.
  I have a list of internal attorney memoranda provided during the 
Bork, Reynolds, and Rehnquist nominations. These documents, some of 
which are from the Solicitor's Office, others from other parts of the 
Justice Department, were made public and given to Senator Biden, and in 
other instances given to others. For example, all documents related to 
school desegregation between 1969 and 1977 relating to Bork in any way, 
there was no allegation of misconduct; documents related to Halpren v. 
Kissinger, no allegation of misconduct.
  I have about 14 of these that were made a part of proceedings before 
the Senate.
  I ask unanimous consent that this list be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       All documents related to school desegregation between 1969 
     and 1977 relating to Bork in any way (disclosure included, 
     among others, the SG Office memos about Vorcheimer v. 
     Philadelphia, known as ``the Easterbrook memo''; United 
     States v. Omaha; United States v. Demopolis City (school 
     desegregation in Alabama)): No allegation of misconduct or 
     malfeasance by the nominee or anyone else at the Justice 
     Department.
       Documents related to Halperin v. Kissinger (civil suit for 
     4th Amendment violations for wiretapping): No allegation of 
     misconduct or malfeasance by the nominee.
       Memos about whether to file an amicus brief in Hishon v. 
     King & Spaulding (gender discrimination at a law firm): No 
     allegation of misconduct or malfeasance by the nominee or 
     anyone else at the Justice Department.
       Memos regarding Wallace v. Jaffree (school prayer in 
     Alabama): No allegation of misconduct or malfeasance by the 
     nominee or anyone else at the Justice Department.
       Memos about Congressional reapportionment in Louisiana and 
     one-person, one-vote standard: No allegation of misconduct or 
     malfeasance by the nominee or anyone else at the Justice 
     Department.
       Memos regarding possible constitutional amendment in 1970 
     to overturn Green v. New Kent County, and preserve racial 
     discrimination in Southern schools: No allegation of 
     misconduct or malfeasance by the nominee or anyone else at 
     the Justice Department.
       Memo of November 16, 1970 from John Dean: No allegation of 
     misconduct or malfeasance by the nominee.
       Memos of William Ruckelshaus of December 19, 1969 and 
     February 6, 1970: No allegation of misconduct or malfeasance 
     by the nominee.
       Memos of Robert Mardian of January 18 1971: No allegation 
     of misconduct or malfeasance by the nominee.
       Memos of law clerk to Justice Jackson: No allegation of 
     misconduct or malfeasance by the nominee or anyone else at 
     the Justice Department.
       Memos about whether or not to seek Supreme Court review in 
     Kennedy v. Sampson (pocket veto): No allegation of misconduct 
     or malfeasance by the nominee or anyone else at the Justice 
     Department.
       Memos about Hills v. Gautreaux (racial discrimination in 
     housing in Chicago): No allegation of misconduct or 
     malfeasance by the nominee or anyone else at the Justice 
     Department.
       Memos about DeFunis v. Odegaard (affirmative action program 
     at the University of Washington law school): No allegation of 
     misconduct or malfeasance by the nominee or anyone else at 
     the Justice Department.
       Memos about Morgan v. McDonough (public school 
     desegregation in Boston): No allegation of misconduct or 
     malfeasance by the nominee or anyone else at the Justice 
     Department.
       Memos about Pasadena v. Spengler (public school 
     desegregation): No allegation of misconduct or malfeasance by 
     the nominee or anyone else at the Justice Department.
       Memos about Barnes v. Kline (military assistance in El 
     Salvador): No allegation of misconduct or malfeasance by the 
     nominee or anyone else at the Justice Department.
       Memos about Kennedy v. Jones (pocket veto and the mass 
     transit bill and bill to assist the disabled): No allegation 
     of misconduct or malfeasance by the nominee or anyone else at 
     the Justice Department.
       Documents related to Supreme Court selection process of 
     Nixon and Reagan: No allegation of misconduct or malfeasance 
     by the nominee or anyone else at the Justice Department.

  Mr. REID. I say respectfully that the statements made by the 
distinguished Senator from Utah were without basis of fact. Here we 
have records that were not leaked, they are directly as we said they 
were last night. We were unable to get the floor, but in fact that is 
what the story was.
  So now that we do have the floor, I ask unanimous consent that the 
letter dated August 10, 1987, to Attorney General Ed Meese from Joseph 
Biden 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, August 10, 1987.
     Hon. Edwin Meese III,
     Attorney General, Department of Justice,
     Washington, DC.
       Dear General Meese: As part of its preparation for the 
     hearings on the nomination of Judge Robert Bork to the 
     Supreme Court, the Judiciary Committee needs to review 
     certain material in the possession of the Justice Department 
     and the Executive Office of the President.
       Attached you will find a list of the documents that the 
     Committee is requesting. Please provide the requested 
     documents by August 24, 1987. If you have any questions about 
     this request, please contact the Committee staff director, 
     Diana Huffman, at 224-0747.
       Thank you for your cooperation.
           Sincerely,
                                             Joseph R. Biden, Jr.,
                                                         Chairman.

[[Page S2887]]

     
                                  ____
Request for Documents Regarding the Nomination of Robert H. Bork to Be 
          Associate Justice of the United States Supreme Court

       Please provide to the Committee in accordance with the 
     attached guidelines the following documents in the 
     possession, custody or control of the United States 
     Department of Justice, the Executive Office of the President, 
     or any agency, component or document depository of either 
     (including but not limited to the Federal Bureau of 
     Investigation):
       1. All documents generated during the period from 1972 
     through 1974 and constituting, describing, referring or 
     relating in whole or in part to Robert H. Bork and the so-
     called Watergate affair.
       2. Without limiting the foregoing, all documents generated 
     during the period from 1972 through 1974 and constituting, 
     describing, referring or relating in whole or in part to any 
     of the following:
       a. any communications between Robert H. Bork and any person 
     or entity relating in whole or in part to the Office of 
     Watergate Special Prosecution Force or its predecessors- or 
     successors-in-interest;
       b. the dismissal of Archibald Cox as Special Prosecutor;
       c. the abolition of the Office of Watergate Special 
     Prosecution Force on or about October 23, 1973;
       d. any efforts to define, narrow, limit or otherwise 
     curtail the jurisdiction of the Office of Watergate Special 
     Prosecution Force, or the investigative or prosecutorial 
     activities thereof;
       e. the decision to reestablish the Office of Watergate 
     Special Prosecution Force in November 1973;
       f. the designation of Mr. Leon Jaworski as Watergate 
     Special Prosecutor;
       g. the enforcement of the subpoena at issue in Nixon v. 
     Sirica;
       h. any communications on October 20, 1973 between Robert H. 
     Bork and then-President Nixon, Alexander Haig, Leonard 
     Garment, Fred Buzhardt, Elliot Richardson, or William 
     Ruckelshaus;
       l. any communications between Robert H. Bork and then-
     President Nixon, Alexander Haig and/or any other federal 
     official or employee on the subject of Mr. Bork and a 
     position or potential position as counsel to President Nixon 
     with respect to the so-called Watergate matter;
       m. any action, involvement or participation by Robert H. 
     Bork with respect to any issue in the case of Nader v. Bork, 
     366 F. Supp. 104 (D.D.C. 1975), or the appeal thereof;
       n. any communication between Robert H. Bork and then-
     President Nixon or any other federal official or employee, or 
     between Mr. Bork and Professor Charles Black, concerning 
     Executive Privilege, including but not limited to Professor 
     Black's views on the President's ``right'' to confidentiality 
     as expressed by Professor Black in a letter or article which 
     appeared in the New York Times in 1973 (see Mr. Bork's 
     testimony in the 1973 Senate Judiciary Committee hearings on 
     the Special Prosecutor);
       o. the stationing of FBI agents at the Office of Watergate, 
     Special Prosecution Force on or about October 20, 1973, 
     including but not limited to documents constituting, 
     describing, referring or relating to any communication 
     between Robert H. Bork, Alexander Haig, or any official or 
     employee of the Office of the President or the Office of the 
     Attorney General, on the one hand, and any official or 
     employee of the FBI, on the other; and
       p. the establishment of the Office of Watergate Special 
     Prosecution Force, including but not limited to all documents 
     constituting, describing, referring or relating in whole or 
     in part to any assurances, representations, commitments or 
     communications by any member of the Executive Branch or any 
     agency thereof to any member of Congress regarding the 
     independence or operation of the Office of Watergate Special 
     Prosecution Force, or the circumstances under which the 
     Special Prosecutor could be discharged.
       3. The following documents together with any other 
     documents referring or relating to them:
       a. the memorandum to the Attorney General from then-
     Solicitor General Boark, dated August 21, 1973, and its 
     attached ``redraft of the memorandum intended as a basis for 
     discussion with Archie Cox'' concerning ``The Special 
     Prosecutor's authority'' (typeset copies of which are printed 
     at pages 287-288 of the Senate Judiciary Committee's 1973 
     ``Special Prosecutor'' hearings);
       b. the letter addressed to Acting Attorney General Bork 
     from then-President Nixon, dated October 20, 1973., directing 
     him to discharge Archibald Cox;
       c. the letter addressed to Archibald Cox from then-Acting 
     Attorney General Bork, dated October 20, 1973, discharging 
     Mr. Cox from his position as Special Prosecutor;
       d. Order No. 546-73, dated October 23, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Abolishment of 
     Office of Watergate Special Prosecutor Force'';
       e. Order No. 547-73, dated October 23, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Additional 
     Assignments of Functions and Designation of Officials to 
     Perform the Duties of Certain Offices in Case of Vacancy, or 
     Absence therein or in Case of Inability or Disqualification 
     to Act'';
       f. Order No. 551-73, dated November 2, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Establishing 
     the Office of Watergate Special Prosecution Force'';
       g. the Appendix to Item 2.f., entitle ``Duties and 
     Responsibilities of Special Prosecutor'';
       h. Order No. 552-73, dated November 5, 1973, signed by 
     then-Acting Attorney General Bork, designating ``Special 
     Prosecutor Leon Jaworski the Director of the Office of 
     Watergate Special Prosecution Force'';
       i. Order No. 554-73, dated November 19, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Amending the 
     Regulations Establishing the Office of Watergate Special 
     Prosecution Force''; and
       j. the letter to Leon Jaworski, Special Prosecutor, from 
     then-Acting Attorney General Bork, dated November 21, 1973, 
     concerning Item 2.i.
       4. All documents constituting, describing, referring or 
     relating in whole or in part to any meetings, discussions and 
     telephone conversations between Robert H. Bork and then-
     President Nixon, Alexander Haig or any other federal official 
     or employee on the subject of Mr. Bork's being considered or 
     nominated for appointment to the Supreme Court.
       5. All documents generated from 1973 through 1977 and 
     constituting, describing, referring or relating in whole or 
     in part to Robert H. Bork and the constitutionality, 
     appropriateness or use by the President of the United States 
     of the ``Pocket Veto'' power set forth in Art. I, section 7, 
     paragraph 2 of the United States Constitution, including but 
     not limited to all documents constituting, describing, 
     referring or relating in whole or in part to any of the 
     following:
       a. The decision not to petition for certiorari from the 
     decision of the United States Court of Appeals for the 
     District of Columbia Circuit in Kennedy v. Sampson, 511 F.2d 
     430 (1947);
       b. the entry of the judgment in Kennedy v. Jones, 412 F. 
     Supp. 353 (D.D.C. 1976); and
       c. the policy regarding pocket vetoes publicly adopted by 
     President Gerald R. Ford in April 1976.
       6. All documents constituting, describing, referring or 
     relating in whole or in part to Robert H. Bork and the 
     incidents at issue in United States v. Gray, Felt & Miller, 
     No. Cr. 78-00179 (D.D.C. 1978), including but not limited to 
     all documents constituting, describing, referring or relating 
     in whole or in part to any of the exhibits filed by counsel 
     for Edward S. Miller in support of his contention that Mr. 
     Bork was aware in 1973 of the incidents at issue.
       7. All documents constituting, describing or referring to 
     any speeches, talks, or informal or impromptu remarks given 
     by Robert H. Bork on matters relating to constitutional law 
     or public policy.
       8. All documents constituting, describing, referring or 
     relating in whole or in part either (i) to all criteria or 
     standards used by President Reagan in selecting nominees to 
     the Supreme Court, or (ii) to the application of those 
     criteria to the nomination of Robert H. Bork to be Associate 
     Justice of the Supreme Court.
       9. All documents constituting, describing, referring or 
     relating in whole or in part to Robert H. Bork and any study 
     or consideration during the period 1969-1977 by the Executive 
     Branch of the United States Government or any agency or 
     component thereof of school desegregation remedies. (In 
     addition to responsive documents from the entities identified 
     in the beginning of this request, please provide any 
     responsive documents in the possession, custody or control of 
     the U.S. Department of Education or its predecessor agency, 
     or any agency, component or document depository thereof.)
       10. All documents constituting, describing, referring or 
     relating in whole or in part to the participation of 
     Solicitor General Robert H. Bork in the formulation of the 
     position of the United States with respect to the following 
     cases:
       a. Evans v. Wilmington School Board, 423 U.S. 963 (1975), 
     and 429 U.S. 973 (1976);
       b. McDonough v. Morgan, 426 U.S. 935 (1976);
       c. Hills v. Gautreaux, 425 U.S. 284 (1976);
       d. Pasadena City Board of Education v. Spangler, 427 U.S. 
     424 (1976);
       e. Roemer v. Maryland Board of Public Education, 426 U.S. 
     736 (1976);
       f. Hill v. Stone, 421 U.S. 289 (1975); and
       g. DeFunis v. Odegaard, 416 U.S. 312 (1975).


                               GUIDELINES

       1. This request is continuing in character and if 
     additional responsive documents come to your attention 
     following the date of production, please provide such 
     documents to the Committee promptly.
       2. As used herein, ``document'' means the original (or an 
     additional copy when an original is not available) and each 
     distribution copy of writings or other graphic material, 
     whether inscribed by hand or by mechanical, electronic, 
     photographic or other means, including without limitation 
     correspondence, memoranda, publications, articles, 
     transcripts, diaries, telephone logs, message sheets, 
     records, voice recordings, tapes, film, dictabelts and other 
     data compilations from which information can be obtained. 
     This request seeks production of all documents described, 
     including all drafts and distribution copies, and 
     contemplates production of responsive documents in their 
     entirety, without abbreviation or expurgation.
       3. In the event that any requested document has been 
     destroyed or discarded or otherwise disposed of, please 
     identify the document as completely as possible, including 
     without limitation the date, author(s), addressee(s), 
     recipient(s), title, and subject matter, and the reason for 
     disposal of the document and the identity of all persons who 
     authorized disposal of the document.

[[Page S2888]]

       4. If a claim is made that any requested document will not 
     be produced by reason of a privilege of any kind, describe 
     each such document by date, author(s), addressee(s), 
     recipient(s), title, and subject matter, and set forth the 
     nature of the claimed privilege with respect to each 
     document.

  Mr. REID. Mr. President, this outlines seven pages of documents he 
wants and certain guidelines that would be followed so that the 
Attorney General's Office would be protected.
  In addition, I ask unanimous consent that a letter dated August 24 of 
that same year to Joseph R. Biden from Mr. Bolton, the Assistant 
Attorney General, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         U.S. Department of Justice, Office of Legislative and 
           Intergovernmental Affairs,
                                                   Washington, DC.
     Hon. Joseph R. Biden, Jr.
     Chairman, Senate Judiciary Committee, Washington, DC.
       Dear Chairman Biden: This responds further to your August 
     10th letter requesting certain documents relating to the 
     nomination of Judge Robert Bork to the Supreme Court. 
     Specifically, this sets forth the status of our search for 
     responsive documents and the methods and scope of review by 
     the Committee.
       As we have previously informed you in our letter of August 
     18, the search for requested documents has required massive 
     expenditures of resources and time by the Executive Branch. 
     We have nonetheless, with a few exceptions discussed below, 
     completed a thorough review of all sources referenced in your 
     request that were in any way reasonably likely to produce 
     potentially responsive documents. The results of this effort 
     are as follows:
       In response to your requests numbered 1-3, we have 
     conducted an extensive search for documents generated during 
     the period 1972-1974 and relating to the so-called Watergate 
     affair. We have followed the same procedure, in response to 
     request number 4, for all documents relating to consideration 
     of Robert Bork for the Supreme Court by President Nixon or 
     his subordinates. We have completed our search of relevant 
     Department of Justice and White House files for documents 
     responsive to these requests. The Federal Bureau of 
     Investigation also has completed its search for responsive 
     documents, focusing on the period October-December 1973 and 
     on references to Robert Bork generally.
       Most of the documents responsive to requests numbered 1-4 
     are in the possession of the National Archives and Records 
     Administration, which has custody of the Nixon Presidential 
     materials and the files of the Watergate Special Prosecution 
     Force. The Archives staff supervised and participated in the 
     search of the opened files of the Nixon Presidential 
     materials and the files of the Watergate Special Prosecution 
     Force, which was directed to those files which the Archives 
     staff deemed reasonably likely to contain potentially 
     responsive documents.
       Pursuant to a request by this Department under 36 C.F.R. 
     1275, the Archives staff also examined relevant unopened 
     files of the Nixon Presidential materials, and, as required 
     under the pertinent regulations, submitted the responsive 
     documents thus located for review by counsel for former 
     President Nixon. Mr. Nixon's counsel, R. Stan Mortenson, 
     interposed no objection to release of those submitted 
     documents that (a) reference, directly or indirectly, Robert 
     Bork, or (b) were received by or disseminated to persons 
     outside the Nixon White House. Mr. Mortenson on behalf of Mr. 
     Nixon objected to production of the documents which are 
     described in the attached appendix. Mr. Mortenson represents 
     that these documents constitute purely internal 
     communications within the White House and contain no direct 
     or indirect reference to Robert Bork.
       Mr. Mortenson also objected on the same grounds to 
     production of unopened portions of two documents produced in 
     incomplete form from the opened files of the Nixon 
     Presidential materials:
       1. First page and redacted portion of fifth page of 
     handwritten note of John D. Ehrlichman dated December 11, 
     1972.
       2. All pages other than the first page of memorandum from 
     Geoff Shepard to Ken Cole dated June 19, 1973.
       Mr. James J. Hastings, Acting Director of the Nixon 
     Presidential Materials Project, has reviewed these two 
     documents and has advised us that the unopened portions of 
     neither document contain any direct or indirect reference to 
     Judge Bork.
       Our search has not yielded a copy of the document 
     referenced in paragraph ``a'' of your request numbered 3, 
     which, as you correctly note, is printed at pages 287-288 of 
     the Judiciary Committee's 1973 ``Special Prosecutor'' 
     hearings.
       Among the documents collected by the Department are certain 
     documents generated in the defense of Halperin v. Kissinger, 
     Civil Action No. 73-1187 (D. D.C.), a suit filed against 
     several federal officials in their individual capacity, which 
     remains pending. The Department has an ongoing attorney-
     client relationship with the defendants in Halperin, which 
     precludes us from releasing certain documents containing 
     client confidences and litigation strategy, without their 
     consent. 28 C.F.R. 50.156(a)(3).
       All documents responsive to request number 5, concerning 
     the pocket veto, have been assembled.
       All documents responsive to request number 6 have been 
     assembled. The exhibits filed by counsel for Edward S. Miller 
     on July 12, 1978 and referred to in your August 10 letter, 
     remain under seal by order of the United States District 
     Court for the District of Columbia. However, a list of the 
     thirteen documents has been unsealed. We have supplied 
     copies of eleven of these documents, including redacted 
     versions of two of the documents (a few sentences of 
     classified material have been deleted). We have supplied 
     unclassified versions of two of these eleven documents, as 
     small portions of them remain classified. We are precluded 
     by Rule 6(e) of the Rules of Criminal Procedure from 
     giving you access to two other exhibits--classified 
     excerpts of grand jury transcripts--filed on July 12, 
     1978. We also searched the files of several civil cases 
     related to the Felt and Miller criminal prosecution, as 
     well as the documents generated during the consideration 
     of the pardon for Felt and Miller.
       With respect to request number seven, Judge Bork has 
     previously provided to the Committee a number of his 
     speeches, which we have not sought to duplicate. We have 
     sought and supplied any additional speeches, press 
     conferences or interviews by Mr. Bork, as well as any 
     contemporaneous documents which tend to identify a date or 
     event where he gave a speech or press interview during his 
     tenure at the Department.
       On request number eight, there are no documents in which 
     President Reagan has set forth the criteria he used to select 
     Supreme Court nominees, or their application to Judge Bork, 
     other than the public pronouncements and speeches we have 
     assembled.
       Our search for documents responsive to request number nine 
     has been time-consuming and very difficult, and is not at 
     this time entirely complete. In order to conduct as broad a 
     search as possible, we requested the files in every case 
     handled by the Civil Rights Division or Civil Division, 
     between 1969-77, which concerned desegregation of public 
     education. Although most of these case files have been 
     retrieved, several remain unaccounted for and perhaps have 
     been lost. We expect to have accounted for the remaining 
     files (which may or may not contain responsive documents) in 
     the next few days. We have also assembled some responsive 
     documents obtained from other Department files. The 
     Department of Education is nearing completion of its search 
     of its files, and those of its predecessor agency, HEW.
       We have assembled case files for the cases referred to in 
     question ten, with the exception of Hill v. Stone, for which 
     there is no file. We have no record of the participation of 
     the United States in Hill v. Stone, or consideration by the 
     Solicitor General's office of whether to participate in that 
     case.
       A few general searches of certain front office files are 
     still underway, and we expect those searches to be concluded 
     in the next few days. We will promptly notify you should any 
     further responsive documents come into our possession.
       As you know, the vast majority of the documents you have 
     requested 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. The disclosure of such sensitive and 
     confidential documents seriously impairs the deliberative 
     process within the Executive Branch, our ability to represent 
     the government in litigation and our relationship with other 
     entities. For these reasons, the Justice Department and other 
     executive agencies have consistently taken the position, in 
     response to the Freedom of Information Act and other 
     requests, that it is not at liberty to disclose materials 
     that would compromise the confidentiality of any such 
     deliberative or otherwise privileged communications.
       On the other hand, we also wish to cooperate to the fullest 
     extent possible with the Committee and to expedite Judge 
     Bork's confirmation process. Accordingly, we have decided to 
     take the exceptional step of providing the Committee with 
     access to responsive materials we currently possess, except 
     those privileged documents specifically described above and 
     in the attached appendix. Of course, our decision to produce 
     these documents does not constitute a waiver of any future 
     claims of privilege concerning other documents that the 
     Committee request or a waiver of any claim over these 
     documents with respect to entities or persons other than the 
     Judiciary Committee.
       As I have previously discussed with Diana Huffman, the 
     other documents will be made available in a room at the 
     Justice Department. Particularly in light of the voluminous 
     and privileged nature of these documents, copies of 
     identified documents will be produced, upon request, only to 
     members of the Judiciary Committee and their staff and only 
     on the understanding that they will not be shown or disclosed 
     to any other persons. Please have you staff contact me to 
     arrange a mutually convenient time for inspection of the 
     documents.
       As I stressed in my previous letter, if the Committee is or 
     becomes aware of any documents it believes are potentially 
     responsive but have not been produced, please alert us as 
     soon as possible and we will attempt to locate them.

[[Page S2889]]

       Should you have any questions or comments, please contact 
     me as soon possible. Thank you for your cooperation.
           Sincerely,

                                                  Laura Wilson

                                    (for John R. Bolton, Assistant
                                                 Attorney General)

                                Appendix


         Documents Subject to Objection by Mr. Nixon's Counsel

       1. Memorandum to Buzhardt and Garment, from Charles Alan 
     Wright, January 7, 1973. Subject: June 6th meeting with the 
     Special Prosecutor. (Document No. 8)
       2. Memorandum to Buzhardt and Garment, from Charles Alan 
     Wright, January 7, 1973. Subject: June 6th meeting with the 
     Special Prosecutor. (Document No. 9)
       3. Memorandum to Garment, from Ray Price, July 25, 1973. 
     Subject: Procedures re: Subpoena. (Document No. 13)
       4. Memorandum to General Haig, from Charles A. Wright, July 
     25, 1973. Subject: Proposed redrafts of letters. (Document 
     No. 14)
       5. Draft letter to Senator Ervin, dated July 26, 1973. 
     Subject: two subpoenas from Senator Ervin. (Document No. 15)
       6. Draft letter to Judge Sirica, dated July 26, 1973. 
     Subject: subpoena duces tecum. (Document No. 16)
       7. Memorandum to The Lawyers, from Charlie Wright, dated 
     July 25, 1973. Subject: Thoughts while shaving. (Document No. 
     17)
       8. Memorandum to The President, from J. Fred Buzhardt, 
     Leonard Garment, Charles A. Wright, dated July 24, 1973. 
     Subject: Response to Subpoenas. (Document No. 18)
       9. Memorandum to Ray Price, from Tex Lezar, dated October 
     17, 1973. Subject: WG Tapes. (Document No. 20)
       10. Memorandum to Leonard Garment and J. Fred Buzhardt, 
     from Charles A. Wright, dated August 3, 1973. Subject: 
     Discussions with Philip Lacovara. (Document No. 25)
       11. Memorandum to the President, from Leonard Garment, J. 
     Fred Buzhardt, Charles A. Wright, dated August 2, 1973. 
     Subject: Brief for Judge Sirica. (Document No. 26)
       12. Memorandum to Len Garment, Fred Buzhardt, Doug Parker 
     and Tom Marinis, From Charlie Wright, dated August 1, 1973. 
     Subject: note regarding brief. (Document No. 27)
       13. Memorandum to The President, from J. Fred Buzhardt, 
     Leonard Garment and Charles A. Wright, dated July 24, 1973. 
     Subject: Response to Subpoenas. (Document No. 28)
       14. Draft letter to Senator Ervin, dated July 26, 1973. 
     Subject: two subpoenas issued July 23rd. (Document No. 29)
       15. Draft letter to Judge Sirica, dated July 26, 1973. 
     Subject: subpoena duces tecum. (Document No. 30)
       16. Memorandum to J. Fred Buzhardt, Leonard Garment and 
     Charles Alan Wright, from Thomas P. Marinis, Jr. (undated). 
     Subject: Appealability of Cox Suit. (Document No. 31)
       17. Notes (handwritten) (undated). Subject: [appears to be 
     notes of oral argument]. (Document No. 32)
       18. Memorandum to The President, from Charles Alan Wright, 
     dated September 14, 1973. Subject: Response to Court's 
     memorandum. (Document No. 34)
       19. Handwritten notes. (Document No. 36)
       20. Memorandum to J. Frederick Buzhardt, from Charles Alan 
     Wright, dated June 2, 1973. Subject: Executive privilege. 
     (Document No. 41)
       21. Memorandum to J. Frederick Buzhardt and Leonard 
     Garment, from Charles Alan Wright, dated June 7, 1973. 
     Subject: June 6th meeting with Special Prosecutor. (Document 
     No. 42)
       22. Memorandum to J. Fred Buzhardt from Robert R. Andrews, 
     dated June 21, 1973. Subject: Executive Privilege. (Document 
     No. 43)
       23. Memorandum to J. Fred Buzhardt and Leonard Garment, 
     from Thomas P. Marinis, Jr., dated June 20, 1973. Subject: 
     Professor Wright's attempt to obtain document. (Document No. 
     44)
       24. Memorandum to J. Fred Buzhardt and Leonard Garment, 
     from Charles Alan Garment (sic), dated June 7, 1973. Subject: 
     June 6th meeting with the Special Prosecutor. (Document No. 
     46)
       25. Draft letter to Senator, from Alexander Haig, dated 
     December 12, 1973. Subject: Response to letter of the 5th. 
     (Document No. 60)
       26. Draft Letter to Senator, from Alexander Haig, dated 
     December 12, 1973. Subject: Response to letter of the 5th. 
     (Document No. 61)
       27. Proposal re: transcription of tapes, dated October 17, 
     1973. (Document No. 63)
       28. Typed note with handwritten notation: Sent to Buzhardt 
     12/11/73, undated. Subject: papers Buzhardt sent to Jaworski. 
     (Document No. 66)
       29. Chronology--Presidential Statements, Letters, 
     Subpoenas, dated March 12, 1973. Subject: chronology of same. 
     (Document No. 71)
       30. Handwritten note, dated 1/31/74 (January 31, 1974). 
     Subject: Duties and responsibilities of Special Prosecutor. 
     (Document No. 82)
       31. Memorandum to Fred Buzhardt, from William Timmons, 
     dated 7/30/73 (July 30, 1973). Subject: refusal to release 
     taped conversations. (Document No. 91)
       32. Memorandum to Fred Buzhardt, from Paul Trible, dated 
     October 30, 1973. Subject: Cox's diclosure of Kleindienst's 
     confidential communication. (Document No. 92)
       33. Proposal regarding transcription of tape conversations, 
     dated 10/17/73 (October 17, 1973). (Document No. 94)

  Mr. REID. These clearly indicate that Bolton acknowledged materials 
would be forthcoming.
  The reason these are important is that we have said this man who has 
no judicial record whatsoever--and I heard the distinguished Presiding 
Officer give a statement yesterday about the many judges who have been 
distinguished who have not had judicial experience. We have never 
debated that. We agree, one does not have to have judicial experience 
to be a good judge. If that were the case, there would never be any 
good judges, quite frankly. Somebody has to start someplace. In fact, 
we would never have judges. That is what is referred to as a red 
herring.
  We have never alleged that Miguel Estrada is disqualified from being 
a judge because he has not been a judge. That is something that the 
majority has talked about a lot, but we have never raised that as an 
issue.
  What we have said is that those instances where we can learn 
something about his political philosophy and his philosophy as it 
relates to jurisprudence, we need to know something about that. The 
only place we can go to look is in relation to when he worked at the 
Solicitor's Office because he has not answered the questions we have 
asked him about the cases he prepared and took to trial when he was an 
Assistant Attorney General or when he argued cases before appellate 
courts.
  As I have said on a number of different occasions, I have been to 
court lots of times. I have represented all kinds of different people. 
In all the cases I took, when I argued a case before a jury and before 
a court, one could not find out what my political or judicial 
philosophy was. The reason was I was being paid to represent somebody 
and carrying out my responsibilities as a lawyer.
  So the fact that he has been before the Supreme Court and other 
appellate courts and has tried cases adds to someone's capabilities, 
but it does not allow us to find out about a person who is going to the 
second highest court in the land, if he passes this test. That is not 
enough. We need to know something about him. That is the reason we have 
raised these issues.
  One thing my friend from Vermont raised, and I thought it was so good 
last evening: One does not have to graduate first in their class at 
Harvard to be a judge, but we heard assertions that Miguel Estrada has 
graduated first in his class. He has not. But he could graduate last in 
his class. He went to Harvard, which is one of the top two or three law 
schools in the entire country. The mere fact he went to Harvard means 
he is really smart.
  He did not graduate first in his class. He was not editor of the Law 
Review. He was, with 71 other men and women at Harvard, part of the Law 
Review. He was 1 of 71. That is a pretty large group. As I have 
indicated, they are all smart.
  The fact that he was an editor adds to his qualifications, but do not 
try to puff him up to make him something that he is not. He was not 
editor of the Law Review.
  I think we are off on a lot of tangents. As Senator Hatch laid out so 
clearly last night, I think it is tremendous that a man came from 
Central America when he was 17 years old, went to Columbia University, 
also a school that is hard to get in, so he must have done well on his 
tests. I think it is tremendous that he was able then to go to Harvard. 
But let's not try to make this a rags-to-riches story because it was 
not. He did well, and that is tremendous. He is an immigrant to 
this country who has done well academically, but let's not build this 
up to some kind of a Horatio Alger story as some have said. I think the 
guy has done very well, and that is commendable. But we have heard all 
of these assertions that he graduated first in his class and he was 
editor of the Law Review, which is not true. It does not take away from 
what a smart man he must be.

  We heard a lot last night, with Senators asking questions of Senator 
Hatch about all the editorials from around the country. Of course, 
there are lots of editorials that oppose Miguel Estrada. There is no 
need to read all of them, but I would like to read one from the New 
York Times. It may only be one newspaper, but the circulation makes up 
for a lot of smaller newspapers.

[[Page S2890]]

  This editorial is 411 words long and is entitled ``Full Disclosure 
for Judicial Candidates.''

       The Constitution requires the Senate to give its advise and 
     consent on nominees for federal judgeships. But in the case 
     of Miguel Estrada, the Bush administration's choice for a 
     vacancy on the powerful United States Court of Appeals for 
     the District of Columbia Circuit, the Senate is not being 
     given the records it needs to perform its constitutional 
     role. The Senate should not be bullied into making this 
     important decision in the dark.
       Mr. Estrada, who has a hearing before the Senate Judiciary 
     Committee tomorrow, has made few public statements about 
     controversial legal issues. But some former colleagues report 
     that his views are far outside the legal mainstream.
       The best evidence of Mr. Estrada's views is almost 
     certainly the memorandums he wrote while working for the 
     solicitor general's office, where he argued 15 cases before 
     the Supreme Court on behalf of the federal government. In 
     these documents, he no doubt gave his views on what position 
     the government should take on cases before the Supreme Court 
     and lower federal courts. Reading them would give the Senate 
     insight into how Mr. Estrada interprets the Constitution, and 
     in what direction he believes the law should head.
       There are precedents for this. When Robert Bork was 
     nominated to the Supreme Court in 1987, the Senate was given 
     access to memos prepared while he was solicitor general. The 
     administration has no legal basis for its refusal to supply 
     these documents. Congress has oversight authority over the 
     solicitor general's office, which is part of the Justice 
     Department, and therefore has a right to review its records. 
     Attorney-client privilege and executive privilege are 
     inapplicable for many reasons, including their inability to 
     override the Senate's constitutional duty to investigate 
     fully this judicial nomination.
       This is an administration that loves secrecy, on issues 
     ranging from the war in Iraq to Vice President Dick Cheney's 
     energy task force. And it seems to think that if Congress is 
     ignored, it will simply go away. Congress must insist on 
     getting the documents it needs to evaluate Mr. Estrada, and 
     it should not confirm him until it does.
  There are three things that can be done and we have been saying this 
for the 3 weeks we have been on this matter. No. 1, pull the 
nomination. What does that mean? That means go to something else. No. 
2, try to invoke cloture. File a motion to invoke cloture and to do 
that you need 60 votes. That certainly is within the framework of the 
Senate for these many years. I also recognize the other way to do this 
is for Mr. Estrada to come before the Senate and answer the questions 
that we ask and also supply the memoranda that the New York Times says 
he should supply. That would be the way to get over this.
  We have had now for several days statements made that we should not 
be on this, that Miguel Estrada is making hundreds of thousands of 
dollars a year as a lawyer, fully employed at a large law firm here in 
Washington, DC. We believe that for the many people who are unemployed, 
the many people who have lost their jobs, 2.8 million during the 2 
years of this administration, we should be dealing with those people 
who are not employed and underemployed people with no health insurance 
or who are underinsured, people who are trying to make it educationally 
and otherwise in this society. That is what we should be dealing with. 
Rather than spending 3 weeks on a man who is fully employed, making 
hundreds of thousands of dollars a year, we think we should get off 
this and go to something else.
  We are, as has been indicated, here for the duration. If the majority 
decides they would rather spend the Senate's valuable time on Miguel 
Estrada, they can do that. But I say that idle time is time we cannot 
make up later. There is a limited amount of time and a limited amount 
of legislative days that we have. We could be going to something else.
  These filibusters occur very infrequently. I have been here more than 
two decades now and filibusters are very rare. Once in a while you have 
to stand for what you believe is right. As the New York Times 
indicated, we believe we are right.
  Now, there was a lot of name calling last night. Both my friend from 
Colorado and my friend from Tennessee have the absolute right to voice 
their opinion. I don't think any less of Members for voicing opinions 
because they disagree with me. I don't think this is the time to name 
call. We have an actual factual dispute in the Senate. It is now in a 
procedural bog. We have to figure a way out of this. It should be a 
debate that is worthy of the traditions of the Senate. That is what 
this is all about. The Senate traditionally has had debate we read 
about in our history books. That is what I want the people who read 
about this debate to see in years to come--not calling each other 
names, negative in nature but, rather, referring to a person's position 
as one of conviction.
  I listened to the speech of the Presiding Officer who indicated he 
would wait until next Tuesday to give his maiden speech, but he felt so 
passionate--that is my word, not his--about this issue that he wanted 
to give it a few days early. More power to the Senator from Tennessee. 
That is certainly fine. That is tremendous that the Senator from 
Tennessee made his speech and he feels strongly about the issue. It 
does not mean I have to agree with him. But I admire and respect his 
position.
  Everyone on the other side should understand we also have conviction 
and feel passionately about this issue, and sometimes there are 
stalemates. This may be one of those. There may be a very tough 
decision that the majority leader has to make to pull this nomination. 
If he wants to go through a cloture vote, second cloture vote, a third 
cloture vote, eat up more time of the Senate, we are here. We are here 
for the duration. I don't think because we are involved in this debate 
that people suddenly need to say the Senate will never be the same. Of 
course it will be the same. We survived the filibuster with the Abe 
Fortas nomination. We survived that. It was very tough at the time. I 
watched that from the sidelines. We survived the filibusters conducted 
against President Clinton's nominees. The problem the Republicans had 
at that time, they did not have enough votes to stop cloture from being 
invoked because there were Republicans of good will who decided it was 
the wrong thing to do. That is good.

  The fact there were filibusters and some people felt so strongly is 
hard to comprehend, but even after the filibuster was ended with the 
cloture vote then people still moved to postpone that nomination. It 
went that far.
  The Senate survived that. And the Senate will survive this little 
dustup that is going on here.
  The point I am trying to make, let's feel good about other people's 
positions. You do not have to be mean spirited about someone 
disagreeing with you. I hope, however long this debate takes, whether 
it is ended today, Friday, next week, or a month from now, that people 
will speak well about each other in the Senate and not resort to name 
calling. That is not good at all.
  I hope we can move on to some of the other important issues now 
facing this country.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Colorado.
  Mr. ALLARD. Mr. President, I stand in support of Miguel Estrada, and 
the need for a vote on his nomination. I listened to the comments of my 
colleague from Nevada, and I ask myself, what is this debate really 
about? The debate is about whether a majority of Senators should have 
the opportunity to voice their opinion through a vote on Miguel 
Estrada. I, for one, feel like I have adequate information. There is 
more than a majority of Senators in this body who obviously feel they 
have adequate information to take a vote on Miguel Estrada.
  This filibuster is unprecedented. We have never had a filibuster of 
this nature before on a circuit court judge up for consideration before 
this body. I think it is time we recognize that in the Constitution 
there is an advise and consent provision. Many of us feel the debate 
has reached the point where enough questions have been asked and now 
the full body of the Senate is ready to proceed to a vote.
  When a judge starts through the nomination process, he is introduced 
to the Senate through resolution. The nomination goes to the committee. 
There is also a process where individual Senators can express their 
concerns through a blue slip process. Then there are hearings and votes 
in committee, and then the nomination comes to the floor for a vote.
  Miguel Estrada has gone through this process. He has even received 
the highest recommendation from the American Bar Association. That is a 
body of peers, peers he has done business with on a regular basis, who 
understand his

[[Page S2891]]

record, who know him personally, and who appreciate and respect his 
professional competence to the point they are willing to give him the 
highest rating the American Bar Association will give to any nominee.
  I think he has a great story. He came to this country with a limited 
English language ability at the age of 17. He could speak Spanish 
hardly any English at all. If you come here at 17 and don't know the 
language and you graduate from a university magna cum laude and then go 
and serve on the Harvard Law Review--it is simply an outstanding 
academic accomplishment.
  This individual's accomplishments did not stop with graduation; they 
continued through his professional life. Not just anybody gets to argue 
before the Supreme Court of the United States. That is a select group 
of people. So as far as I am concerned, let's simplify this debate, as 
my colleague suggested. Let's have a vote. That is what we are talking 
about. Let's just bring up Miguel Estrada for a vote in the Senate. I 
think it is time. I think a lot of debate has been going on. There are 
some differences of opinion about things that can be argued about. But 
if we have a vote, each individual Senator has an opportunity to make 
up his or her mind as to how they feel, as to whether or not there is 
enough information, to make up their minds as to whether they think 
this is the quality of person they would like to have on the DC Court 
of Appeals.
  The assistant Democratic leader suggested there are three ways to 
resolve this problem. He said we can pull the nomination, file cloture, 
or submit the nominee to additional questioning. I suggest another: To 
do what we do for most nominees; that is, have the debate, which we are 
having and have done, set a time certain for a vote, which the other 
side simply has refused to do, and then vote up or down. Unfortunately, 
they are not going to permit that to happen.
  Last night I joined a majority of my colleagues to display our unity 
in support for Miguel Estrada, a display of support that is 
particularly important in the midst of this Democrat-led filibuster. 
But last night was more than just a display. It was an attempt to break 
the logjam, a good will invitation to carry out the Senate's duties as 
commanded by the advice and consent clause of the Constitution. My 
colleagues and I gathered here on the floor last night, ready to act. A 
majority of this body is willing to move forward on the nomination of 
Miguel Estrada by taking a simple up-or-down vote. That is all we are 
asking for, a simple up-or-down vote on a nominee who is more than 
qualified to assume the judgeship of the DC Circuit Court, the second 
most important court in the United States.
  Hoping to proceed, my colleagues and I participated in a dialog with 
Chairman Hatch, a back-and-forth exchange of questions and answers. I 
admire, I have to say, the ability and knowledge of Chairman Hatch and 
his dedication to this cause, especially as it became apparent that we, 
once again, would be denied the opportunity to vote, held hostage by a 
game of entrenchment politics.
  Every time I hear one of my colleagues address the nomination of Mr. 
Estrada, I cannot help but to be both impressed and shocked, impressed 
with the character and integrity, the intellect and principles of Mr. 
Estrada; and shocked that such a capable man, who has the opportunity 
to become the first Hispanic judge on the DC Circuit Court, cannot even 
receive a vote, a simple up-or-down vote.
  The majority of my colleagues are ready to move forward on the 
nomination. We are ready to vote. I cannot cast judgment on those who 
oppose Mr. Estrada. If they want to vote no, that is their choice. I 
respect that. It is their right. I understand that. I voted against 
judges whom I believed were not fit to serve. But it is implausible to 
think he should be denied a vote entirely.
  Newspapers, radio stations, television programs across the country 
are demanding that the stalemate end, and that the minority party allow 
the Senate to proceed and to break off a filibuster that could amount 
to a major shift in constitutional authority.
  Last week I spent the Presidents Day recess traveling across the 
State of Colorado. In every community, big or small, concerned citizens 
shared their beliefs on the importance of this nomination and the need 
to provide a vote for Miguel Estrada. They were appalled that we were 
not moving forward, that their representative in the Senate would not 
have an opportunity to vote on a very important consideration for the 
judiciary. Perhaps some disagree on whether he should be confirmed, but 
they all agree there should be at least a vote, and they agree it 
should be done without shifting constitutional authority in a manner 
that imposes a supermajority requirement on all judicial nominations. I 
am afraid that is where we are headed.
  Let me share with you a couple of editorials that ran in Colorado's 
two major newspapers, one published in the Denver Post, the other 
appearing in the Rocky Mountain News.
  The Denver Post, a paper that endorsed Al Gore in 2000, and by no 
means an arm of the Republican party, demands that Estrada be given his 
day in court, that the Senate be provided a vote. The paper confirms 
the outstanding quality of the nominee, noting that he is a picture 
book example of an immigrant pursuing the American dream.
  The Denver Post also recognizes his outstanding credentials, stating 
that while he may lack judicial experience, so, too, do a majority of 
those now sitting on the DC Circuit Court, some of whom were nominated 
by Presidents Carter and Clinton.
  I have a statement here from the editorial in the Denver Post on the 
posterboard beside me.

       The key point is that there should be a vote . . . a 
     filibuster should play no part in the process.

  The Rocky Mountain News simply described the Democrats tactics as 
``ugly,'' commenting on their attempt to thwart the Senate's 
majoritarian decisionmaking.
  The editorial calls the filibuster:

       . . . irresponsible, a hysteria being acted out to keep 
     Estrada from serving on the US Court of Appeals for the 
     District of Columbia.

  On the chart I have a quote from both papers highlighting the need to 
end the filibuster and to proceed to a vote.
  The Denver Post:

       The key point is that there should be a vote . . . a 
     filibuster should play no part in the process.

  The Rocky Mountain News concludes that:

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

  Editorial boards across the country echo this very same sentiment. 
More than 60 major newspapers are calling for an end to the filibuster.
  I would like to share with my colleagues here this afternoon a few of 
those. Let me name a few:
  The Arkansas Democrat-Gazette; in California, Redding, and The Press 
Enterprise; The Hartford Courant; The Washington Post; in Florida, The 
Tampa Tribune and The Florida Times-Union; The Atlanta Journal 
Constitution and the Augusta Chronicle; the Chicago Tribune in 
Illinois, along with the Chicago Sun-Times, and Freeport Journal 
Standard; The Advocate in Baton Rouge, Louisiana; The Boston Herald; 
The Detroit News and Grand Rapids Press; in New Mexico the Albuquerque 
Journal; in Nevada, the Las Vegas Review Journal; the Winston-Salem 
Journal in North Carolina; in North Dakota, the Grand Forks Herald; the 
Providence Journal in Rhode Island; in West Virginia, the Wheeling News 
Register/Intelligencer; and nationally, the Investor's Business Daily 
and the Wall Street Journal.
  I would also like to refute one of the arguments being put forward by 
the Democrats against Mr. Estrada.
  For 11 days we have heard statements that the nominee is not 
qualified to serve because he lacks judicial experience. This standard 
is simply ridiculous.
  Had it applied to their own Democratic nominees, it would have 
prevented some of the most capable attorney's from being seated on the 
federal bench.
  Under the experience litmus test, the late Justice Byron ``Whizzer'' 
White, a great Coloradan, who was nominated to the Supreme Court by 
President John F. Kennedy, would never have been confirmed.
  Nor would another great Coloradan, Judge Carlos Lucero, who was 
nominated by President Bill Clinton to the

[[Page S2892]]

Tenth Circuit Court of Appeals, have been confirmed.
  To consider a lack of judicial experience as the poison pill of the 
Estrada nomination while ignoring the confirmation of Democratic 
nominees Justice White and Judge Lucero, is a double standard of the 
highest order.
  The majority of this body, a majority elected by the American people, 
is ready to proceed with the nomination of Miguel Estrada.
  I have no doubt that the obstructionists have their own reason to 
vote against the nominee. But they have no reason to prevent a vote 
entirely.
  I hope that my colleagues will realize the danger of the path they 
have chosen, and will end this course of obstruction.
  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.
  I know how I am going to vote. I am voting for a highly qualified 
individual. A nominee who the American Bar Association has stated is 
``highly-qualified.'' That individual is Miguel Estrada, and he 
deserves a vote by the United States Senate.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. CLINTON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                title ix

  Mrs. CLINTON. Mr. President, yesterday, the President's Commission on 
Opportunity in Athletics released its recommendations for Title IX and 
some of the findings are a haunting reminder of the way things used to 
be.
  It seems that many of the Commissioners believe that men's sports 
have suffered because of women's programs. They believe that it is okay 
to count ``slots'' instead of actual women players. And some believe 
that since men are better ``naturally'' at sports compared to women--
that is their word and not mine. That is a true statement if it comes 
from me, but it is not a true statement when it comes from other women 
who are more athletically different--and, therefore, men deserve more 
funding and support. I don't think we should forget that was the excuse 
used for decades and for generations to keep women out of college, out 
of math and science classes, and out of the workplace.

  I remember as a young girl reading stories of the first women back in 
the 19th century who wanted to go to medical school to become a doctor 
or to a law school to become lawyers and who wanted to go to college to 
further their education. There were court decisions which said women 
naturally were not suited for higher education. It will wear out their 
brain. It will undermine their health, and they certainly are not fit 
to go into the courtroom or into the operating room. Thank goodness we 
have come a long way from those days.
  But I think about it frequently because my mother was born before 
women could vote. Lest we forget that many of the changes which we now 
take for granted did not come about just because somebody changed their 
mind. It is because we had to fight for work and for the kind of 
progress which we can see all around us.
  For 30 years, title IX has encouraged millions of girls and women to 
participate in sports. In 1972, only 1 out of every 27 women 
participated in sports. Today, that number is 1 in 2. The program 
works. I think we should recognize the extraordinary progress we have 
made.
  I remember very well that although I loved playing sports and 
athletics as a young girl, I was never very good at it. But I played 
hard, and it was a major influence on my understanding of my abilities, 
my limits, teamwork, and sportsmanship. It was hard for me to accept 
the fact that many of my friends and colleagues who were more talented 
really hit a wall. There were not the kind of interscholastic teams 
available at the high school level which we now take for granted. There 
were not scholarships available in most sports for most girls who had 
the capacity to compete and be good. The colleges were in no way 
fulfilling the need and desire that young women had to further their 
athletic pursuits. There really wasn't anything that you could point to 
as being professional athletic options for extremely well-qualified and 
motivated women.
  I believe passionately that title IX changed the rules on the playing 
field and opened up the opportunities so more girls and women could see 
themselves on that field--and create conditions that would encourage 
our institutions actually to respond to those needs and desires.
  I was very pleased to hear last night that Secretary Paige announced 
he would only consider the recommendations of the Commission that the 
Commission unanimously agreed upon. And I applaud that announcement.

  But I believe that the minority report, which was written by Julie 
Foudy, the captain and 9-year veteran of the U.S. Women's National 
Soccer Team, and Donna de Varona, an Olympic swimmer with two gold 
metals, raises questions about whether any of these recommendations can 
actually be described as unanimous.
  The introduction of the report reads as follows:

       After . . . unsuccessful efforts to include . . . our 
     minority views within the majority report, we have reached 
     the conclusion that we cannot join the report of the 
     Commission.

  And Julie Foudy and Donna de Varona go on to say:

       Our decision is based on our fundamental disagreement with 
     the tenor, structure and significant portions of the content 
     of the Commission's report, which fails to present a full and 
     fair consideration of the issues or a clear statement of the 
     discrimination women and girls still face in obtaining equal 
     opportunity in athletics--

  They go on to say:

     [secondly,] our belief that many of the recommendations made 
     by the majority would seriously weaken Title IX's protections 
     and substantially reduce the opportunities to which women and 
     girls are entitled under current law; and, [third,] our 
     belief that only one of the proposals would address the 
     budgetary causes underlying the discontinuation of some men's 
     teams, and that others would not restore opportunities that 
     have been lost.

  Their goal in issuing this minority report was to make sure it was 
included in the official record of the Commission. Unfortunately, it is 
my understanding that the Secretary of Education today has refused to 
include the minority report. I think that is fundamentally unfair. To 
me, that report should belong with the majority report, especially 
since those two women, probably between them, have more direct personal 
experience in what athletics can mean to a woman's life and what it was 
like before IX, when Donna was competing, and what it was like after IX 
was enacted, when Julie helped to lead our women's soccer team to the 
World Cup Championship.
  Therefore, Mr. President, I am going to ask unanimous consent to have 
printed in the Record this minority report. I am doing so because I 
believe it is important that on this issue we hear from the people who 
have the most to lose: women athletes, women students. Julie and Donna 
were invited to join the Commission to represent that point of view, 
and their voices should be heard. For the information of my colleagues, 
the minority report can be found at http://www.womensports 
foundation.org/binary-data/WSF--Article/pdf--file/944.pdf.
  Now, along with my colleagues, Senator Daschle, Senator Kennedy, 
Senator Murray, Senator Snowe, and Senator Stevens, who care so deeply 
about this issue, we will continue to keep a watchful eye on the 
Department of Education because the truth is, they do not need 
permission from the Commission or anyone else to adopt the changes the 
Commission has proposed; they can propose to change the regulations or 
offer guidance at any time.
  So I am here today in the Chamber to say that I, and many of my 
colleagues on both sides of the aisle--men and women alike; athletes 
and nonathletes alike--will fight to protect title IX for our daughters 
and our granddaughters and generations of girls and women to come.
  But let me also add, my support of title IX and my support of the 
right of the minority to be heard with respect to the Commission's 
recommendations does not, in any way, suggest that I do not believe in 
the importance of sports for young men, because I do. I strongly 
support sports for all young people.

[[Page S2893]]

  In fact, I think it is very unfortunate that physical education has 
been dropped from so many of our schools, that so many of our 
youngsters not only do not have the opportunity to discharge energy and 
engage in physical activities, but to learn about sports, to find out 
that maybe something would inspire their passion and their commitment.
  There are other ways to ensure that all boys and girls, all men and 
women have the opportunity for athletic experiences, to participate on 
teams.
  I was somewhat distressed, when the Commission was appointed, with 
the number of Commissioners who represented an experience that is not 
the common experience; namely, the experience of very high stakes, big 
college and university football, which of course is important; I very 
much believe that. But that is only one sport, and it is a very 
expensive sport.
  I think there are ways, without taking anything away from anyone--
boys, girls, men, women--that we can listen to the voices of 
experience, such as Julie's and Donna's, and come to recognize that 
there may be other reasons, besides the law, that some men's teams have 
been discontinued, which I am very sorry about and wish did not have to 
happen and believe should not have happened if there had been a fairer 
allocation of athletic resources across all sports.
  So I think we can come to some agreements that would serve perhaps to 
create additional opportunities, but we should not do it to the 
detriment of girls and women.
  I appreciate the opportunity to come to the floor to recognize this 
very important piece of legislation which has literally changed the 
lives of girls and women and should continue to do so. What we ought to 
be doing is looking for ways we can enhance the physical activity, the 
athletic, competitive opportunities of boys and girls.
  One of the biggest problems we have confronting us now is obesity 
among young people. We need to get kids moving again. We need to get 
them in organized physical education classes, intramural sports, 
interscholastic sports, afterschool sports, and summer sports, so they 
can have an opportunity to develop their bodies and their athletic 
interests, as well as their minds and their academic pursuits.
  Mr. KYL. Mr. President, also, for the information of my colleagues, 
``Open to All,'' the report of the Secretary of Education's Commission 
on Opportunity in Athletics can be found at http://ed.gov/pubs/
titleixat30/index.html.