[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
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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.
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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.