Congressional Record, Volume 149 Issue 32 (Thursday, February 27, 2003)

[Congressional Record Volume 149, Number 32 (Thursday, February 27, 2003)]
[Senate]
[Pages S2893-S2903]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Homeland Security

Mrs. CLINTON. Now, Mr. President, on another issue that is of deep
concern to me, I come also to raise questions about our commitment to
homeland security. This is something I have come to this Chamber to
address on numerous occasions, starting in those terrible days after
September 11, 2001. And it is an issue I will continue to address in
every forum and venue that I possibly can find because, unfortunately,
I do not believe we have done enough to protect ourselves here at home.
On February 3, Mitch Daniels, the Director of the Office of
Management and Budget, said:

There is not enough money in the galaxy to protect every
square inch of America and every American against every
conceived threat.

This statement bothered me at the time. It has continued to bother
me. I suppose, on the face of it, it is an accurate statement. Not only
isn't there enough money in the United States, the world, or the galaxy
to protect every square inch, but what kind of country would we have if
we were trying to protect every square inch? That would raise all sorts
of issues that might possibly change the character and quality of life
here in America.
But I do not think that is what really motivated the statement. The
statement was a kind of excuse, if you will, as to why this
administration has consistently failed to provide even the rudimentary
funding that we have needed for our first responders and to deal with
national security vulnerabilities.
We have learned, in the last few months, that threats do exist all
over our country. It is not just New York City or Washington, DC, that
suffered on September 11. We know that in the months since then, we
have seen many other parts of our country respond to alerts--our latest
orange alert--which have required huge expenditures of resources in
order to protect local water supplies, bridges, chemical plants,
nuclear powerplants, to do all that is necessary to know that we have
done the best we can.
Life is not certain. There is no way any of us knows where we will be
in an hour or in a day or in a year. But what we try to do is to plan
for the worst, against contingencies that might undermine our safety.
And then we have to just hope and trust and have faith that we have
done enough. But if we do not try, if we do not make the commitment, if
we do not provide the resources, then we have essentially just put up
our hands and surrendered to what did not have to be the inevitable.
When I heard Mr. Daniels make that comment, I thought to myself, if
you had made a list of every community in America that might possibly
be a site for an al-Qaida terrorist cell, I am not sure that
Lackawanna, NY, would have made that list. It is a small community
outside of Buffalo where the FBI, in cooperation with local law
enforcement, uncovered such a cell of people who had gone to Bin
Laden's training camps in Afghanistan and then come back home, most
likely what is called a sleeper cell. Their leader was in Yemen where
one of our predator aircraft found him and took action against him and
his compatriots who are part of the al-Qaida terrorist campaign against
us. If we were just thinking, where should we put money to protect
ourselves, I am not sure Lackawanna, NY, would have been on that list.
Yet we have reason to believe it should be on any list anywhere. Just
yesterday four men in Syracuse, NY, were accused of sending millions of
dollars to Saddam Hussein.
I don't know that we can sit here in Washington and say: Well, we
can't possibly protect everybody so we shouldn't protect anybody. But
that seems to be the attitude of this administration. That is what
concerns me most. We should be doing everything we possibly can to make
our country safer. We should be thinking 24 hours a day, 7 days a week
about new steps, smart steps that we should be taking. Why? Because
that is what our enemies do when they think about how to attack us. If
somebody is on CNN or the Internet, it doesn't stop at our borders.
That is viewed and analyzed in places all over the world. We know that
they are working as hard as they possibly can to do as much harm to us
and our way of life as they possibly can.
Since September 11, our first responders, our mayors, police and fire
chiefs have said over and over again they need Federal support so they
can do their jobs to protect the American people. During this recent
code orange alert, they have done a remarkable job. They have responded
to their new responsibility as this country's frontline soldiers in the
war against terrorism with grace, honor, and a dedication that
Washington should emulate.
We have had the opportunity to do so. We could have already had in
the pipeline and delivered more dollars to pay for needed training,
personnel, overtime costs, equipment, whatever it took as determined by
local communities that they require to do the job we expect them to do.
But every time the Senate has tried to do more for our first
responders, the administration and some in Congress have said we should
do less.
Senator Byrd stood right over there last summer and offered an
amendment, which the Senate supported, that would have provided more
than $5.1 billion in homeland security funding. It included $585
million for port security; $150 million to purchase interoperable radio
so that police, firefighters and emergency service workers can
communicate effectively, a problem we found out tragically interfered
with communication on September 11 in New York City; another $83
million to protect our borders. But in each case, despite having passed
it in the Senate, the administration and Republican leaders settled for
far less. They called such spending ``unnecessary.'' In some cases,
such as the funding for interoperable radios, not only did we not get
the increase to buy this critical equipment, the funding was cut by $66
million.
It was during that debate that we needed the administration's
support. But instead, they opposed such efforts,

[[Page S2894]]

and the President himself refused to designate $5.1 billion last August
as an emergency to do the kinds of things that mayors and police chiefs
and fire chiefs and others have been telling me and my colleagues they
desperately need help doing.

The paper today says the President acknowledges we need to do more. I
welcome that acknowledgment. But I have learned that we have to wait to
see whether the actions match the words. We have to make sure this new
awareness about having shortchanged homeland security doesn't translate
into taking money away from the functions that firefighters and police
officers are called upon to do every day, transferring it across the
government ledger, relabeling it counterterrorism, and wiping our hands
of it and saying: We did it.
That just doesn't add up. That is what they tried to do for the last
year, take money away from the so-called COPS program, which put police
on the beat onto our streets, which helped to lower the crime rate
during the 1990s, taking money away from the grants that go to fire
departments to be well prepared to get those hazardous materials,
equipment, and suits that will protect them and claiming that we take
that money away, we put it over here, and we say we have done our job.
That is just not an appropriate, fairminded response.
We cannot undo the past, but every day we don't plan for the future
is a lost day. I don't ever want to have a debate in the Senate about
what we should have done or we could have done or we would have done to
protect ourselves, if only we had taken as seriously our commitment to
homeland security as the administration takes our commitment to
national security.
Last month I issued a report about how 70 percent of the cities and
counties in New York are not receiving any Federal homeland security
funding. I commissioned this study because I wanted to know for myself
whether maybe some money had trickled down into their coffers that I
was not aware of. Well, 70 percent say they had gotten nothing; 30
percent say they had gotten a little bit of the bioterrorism money that
we had appropriated. But then I also asked them, how much did they need
and what did they need it for and how did they justify their needs. And
I must say, most of the requests were very well thought out, prudent
requests for help that in this time of falling revenues and budget
crunches, city and county governments just cannot do themselves.
When that orange alert went out a week or so ago, what happened? I
know in New York City, if you were there, you would have seen an
intense police presence because our commissioner of police, our mayor,
knew they had to respond. They had to get out there and keep a watchful
eye. But there was no help coming from Washington for them to do that.
It may be a national alert, but it is a local response. And we are not
taking care of the people we expect to make that response for us.
Then I was concerned to see that in so many of the discussions of
potential weapons of mass destruction, doctors and nurses and hospital
administrators are saying: We are not ready. We do not have the
funding. We don't even have the funding to do the preventive work, the
smallpox vaccination. We don't have the means to be ready for some kind
of chemical or biological or radiological attack.
When we had the incident a few months ago of the shoulder-fired
missile that was aimed at the Israeli airline in Kenya--thankfully it
missed--I called the people in the new Department of Homeland Security.
I said: What are our plans? How do we respond to the threat posed by
shoulder-fired missiles?

The response I got back was: Well, that is a local law enforcement
responsibility.
Are we going to provide more funding so we can have more police
patrols on the outskirts of large airports similar to the ones we have
in New York and other States have?
Well, no, that is not in the cards. You just go out there and keep an
eye out for those shoulder-fired missiles.
Time and time again we hear about a threat. We hear the conversations
from our government officials. We listen to the experts tell us what we
have to be afraid of. And if you are a police chief or a fire chief
sitting in any city in our country, you are sitting there in front of
the television set saying to yourself: My goodness, how am I going to
protect my people? How am I possibly going to do the work I need to do
when my State budget is being cut, when my local budget is being cut,
when the Federal budget is not providing me any resources? How am I
going to do that?
It is a fair question. Yet when we dial 911, we expect that phone to
be answered, not in this Chamber, not down at the other end of
Pennsylvania Avenue in the White House, but right in our local precinct
and our local firehouse. Yet in place after place around America, we
read stories about police being laid off or being enticed into early
retirement to save money, firehouses being closed or firefighters being
encouraged to take early retirement, not filling classes in the police
and fire academy.
There is something wrong with this picture. Now, we have done all we
know to do to give our men and women who wear military uniforms every
bit of support we believe they need. If we are going to put them in
harm's way, then we owe it to them, to their families, to equip them
and train them, and give them the best possible protection so they can
fulfill their mission without harm to themselves.
But this is a two-front war. We hear that all the time. My gosh,
there is nothing else coming across the airwaves except about what is
happening in the Persian Gulf and on the Korean peninsula and what is
happening with al-Qaida. We know we are in a global war against terror
and against weapons of mass destruction. That is good offense. We need
to be out there trying to rid the world of weapons of mass destruction,
rid the world of tyrants and dictators who would use such weapons.
But what about defense? What about what happens here at home? We have
not done what we need to do to protect our homeland or our hometowns.
That is absolutely unacceptable. The one thing we have learned from the
horrors of September 11 is that in this new globalization of
transportation and information we now live in, boundaries mean very
little. Part of the reason we were immune from attack through many
decades--with the exception of Pearl Harbor and the attack on this city
and on Baltimore in the War of 1812--is we were protected by those big
oceans, and with friendly neighbors to the north and south. But those
days are gone. You can get on a jet plane from anywhere. You can be in
a cave in Afghanistan and use your computer. You can transfer
information about attacks and about weapons of mass destruction with
the flick of a mouse.
So we have to upgrade and transform our homeland defense, just as we
have to think differently about our military readiness and capacity.
This does not come cheaply. This is not easy to do. I spend a lot of
time talking with police, firefighters, hospital administrators, and
front line doctors and nurses; they are ready to make the sacrifice to
perform in whatever way they are expected to do so to protect us. But
we are not giving them the help they need.
Now, we can remedy this. It was a good sign when the President
admitted today that he and his administration have not funded homeland
security, and I am glad to hear they have finally admitted that. But
now we have to do something about that admission. It cannot be just a
one-day headline. We have to figure out, OK, now that you are seeing
what we see, what we have been worried about, let's do something. Let's
make sure that whatever budget is sent up here has money in it for
these important functions, so we can look in the eyes of our police
officers, firefighters, and emergency providers, and say we have done
the best we know how to do.
That doesn't mean we are 100 percent safe. There is no such thing.
That is impossible. That is not something we can possibly achieve. But
we have to do the best we can. I believe it is probably a good old
adage to ``hope for the best, but prepare for the worst.'' When you
have done all you knew how to do, when something does happen,
hopefully, you are prepared to deal with it.
From my perspective, Mr. President, this is a national priority that
cannot wait. Many of the commentators and pundits of the current theme
talk about the likely military action necessitated by Saddam Hussein's
refusal to

[[Page S2895]]

disarm, and point to the possibility that such action will trigger an
upsurge in potential attack not only here at home but on American
assets and individuals around the world. It would be impossible
to write any scenario about the next 10 years without taking into
account the potential of future terrorism.

But what is not impossible--in fact, what is absolutely necessary--is
for us to be able to say to our children and the children of
firefighters and police officers and emergency responders that we did
all we knew to do; we were as prepared as we possibly could be. That is
what I want to be able to say, and I know we cannot do that without the
resources that will make it a real promise of security, instead of an
empty promise.
So, Mr. President, it is my very strong hope that in the wake of the
administration's recognition of the failure thus far to fund homeland
security, now we can get down to business; that we not only can fund
it, but do it quickly, get the money flowing, and get local communities
ready to implement it, and we can get about the business of making
America safer here at home. I will do everything I can to realize that
goal. I look forward to working with my colleagues on both sides of the
aisle as we provide the kind of homeland security Americans deserve.
Mr. President, 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.
Mr. PRYOR. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so
ordered.
Mr. PRYOR. Mr. President, I ask unanimous consent that I be permitted
to speak in morning business for up to 25 minutes.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered. The Senator from Arkansas is
recognized.
(The remarks of Mr. Pryor are printed in today's Record under
``Morning Business.'')
Mr. SUNUNU. Mr. President, 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.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, I rise once again to speak in support of
the confirmation of Miguel Estrada, an exceptionally well qualified
nominee who does not deserve to have his nomination obstructed by this
filibuster. I have been a strong supporter of Mr. Estrada's since he
came before the Judiciary Committee last year. At that time, I argued
that his nomination should come up for a floor vote, but we were not
allowed to vote on his nomination then. Here we are a year later, and I
am still strongly supporting Mr. Estrada, and I am still arguing for a
floor vote, and that vote is still being refused. I think it is
shameful to continue holding up the vote on this very qualified
judicial nominee, who, by the way, will make an excellent member of the
US Court of Appeals for the DC Circuit.
I know my colleagues heard Mr. Estrada's credentials many times last
week. In fact, I am pretty sure that some of my colleagues could quote
his credentials in their sleep. However, I think it is important that
the Senate is reminded of how qualified this nominee is who is being
filibustered. Not only is he regarded as one of the Nation's top
appellate lawyers, having argued 15 cases before the Supreme Court of
the United States, but the American Bar Association, which I think
Democrats consider the gold standard of determination of the person's
qualifications to be a judicial nominee, has given him a unanimous
rating of, in their words, ``well qualified.'' This happens to be the
highest American Bar Association rating. It is a rating they would not
give to just any lawyer who comes up the pike. According to the
American Bar Association, quoting from their standard:

To merit a rating of well qualified, the nominee must be at
the top of the legal profession in his or her legal
community, having outstanding legal ability, breadth of
experience, the highest reputation for integrity and either
have demonstrated or exhibited the capacity for judicial
temperament.

We ought to demand that more qualified people like Miguel Estrada be
appointed to the bench rather than fighting his nomination.
As my colleagues know, I am not a lawyer. There is nothing wrong with
going to law school, but I did not. I have been on the Judiciary
Committee my entire time in the Senate. I know some of the
qualifications that are needed to be a Federal judge, particularly a
Federal judge on this DC Circuit that handles so many appeals from
administrative agencies and is often considered, by legal experts, to
be the second highest court of our land.
Mr. Estrada's academic credentials are stellar. He graduated from
Columbia University with his bachelor's degree magna cum laude and was
also a member of Phi Beta Kappa. Then he earned his juris doctorate
from Harvard University, also magna cum laude, where he was editor of
the Harvard Law Review. Mr. Estrada did not just attend Harvard Law
School; he graduated with honors. He also served as the editor of the
Harvard Law Review. To be selected as the editor of a law review is a
feat that only the most exceptional of law students attain.

While Mr. Estrada certainly has the intellect required to be a
Federal judge, his professional background also gives testament to his
being qualified for a Federal Court of Appeals judgeship as opposed to
just any judgeship.
After law school, Mr. Estrada served as a law clerk to the Second
Circuit Court of Appeals and as a law clerk to Justice Kennedy, on the
United States Supreme Court. Subsequently, he served as an Assistant US
Attorney and deputy chief of the appellate section of the US Attorney's
Office of the Southern District of New York, and then as assistant to
the Solicitor General of the United States of America.
Mr. Estrada has been in the private sector as well. He is a partner
with the Washington, DC, office of the law firm of Gibson, Dunn &
Crutcher. In this exceptional career, Mr. Estrada has argued 15 cases
before the United States Supreme Court. He won nine of those cases. Mr.
Estrada is not just an appellate lawyer; he is one of the top appellate
lawyers in the country. So for a young lawyer, I think I can give my
colleagues a person who can truly be labeled an American success story.
In fact, instead of degrading his ability to serve as a circuit court
judge, we should all be proud of Mr. Estrada's many accomplishments.
This is the nominee that the Democrats are filibustering. I fail to
understand why a nominee of these outstanding qualifications, and who
has been honored by the ABA with its highest rating, would be the
object of such obstruction. In all my years on the Judiciary
Committee--and that has been my entire tenure in the Senate--
Republicans never once filibustered a Democratic President's nominee to
the Federal bench. There are many I may have wanted to filibuster, but
I did not do it--we did not do it--because it is not right.
In fact, as I understand it, in the entire history of the Senate
neither party has ever filibustered a judicial nominee. Going back over
200 years, Republicans and Democrats have resisted the urge to obstruct
a nominee by filibustering. Good men of sound judgment have come to the
conclusion that to use this tool of last resorts to obstruct a
nomination is, at best, inappropriate, and, at worst, just down right
wrong.
This nominee, like all nominees, deserves an up-or-down vote.
Anything less is absolutely unfair. I hope my colleagues on the other
side of the aisle will reconsider this filibuster. The Senate should
not cross this Rubicon and establish new precedent for the confirmation
process.
Over 40 newspapers from across the country have published editorials
advocating that the Senate give Mr. Estrada a vote. Even the Washington
Post, which is not exactly a bastion of conservatism, published an
editorial last week entitled, ``Just Vote.'' In that editorial, the
Post correctly characterized the Democrats obstructionist efforts. With
regard to the Democrat request for the internal memos Mr. Estrada
drafted while he was in the Solicitor General's Office, the Post said

[[Page S2896]]

that this filibuster of Mr. Estrada goes beyond the normal political
confirmation games, because,

Democrats demand, as a condition of a vote, answers to
questions that no nominee should be forced to address--and
that nominees have not previously been forced to address.

I agree with the Post:

It's long past time to stop these games and vote.

I make a unanimous consent request that this Washington Post
editorial, ``Just Vote'' be printed in the Record after my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
[See exhibit 1.]
Mr. GRASSLEY. Those denying the Senate an up-or-down vote on Mr.
Estrada's nomination claim that he has not answered questions or
produced documentation, and so he should not be confirmed to the
Federal bench. I can think of a number of Democratic nominees who did
not sufficiently answer question that I submitted to them, but that did
not lead me to filibuster. As far as I know, Mr. Estrada has answered
all questions posed to him by the Judiciary Committee members.
His opponents claim that he has refused to hand over certain in-house
Justice Department memoranda. What actually is happening is that the
Democrats on the Judiciary Committee have requested that the Department
of Justice submit to the Committee, internal memoranda written by
Miguel Estrada when he was an attorney in the Solicitor General's
Office. These internal memos are attorney work product, specifically
appeal, certiorari, and amicus memoranda, and the Justice Department
has rightly refused to produce them.
The Department of Justice has never disclosed such sensitive
information in the context of a Court of Appeals nomination. These
memoranda should not be released, because they detail the appeal,
certiorari and amicus recommendations and legal opinions of an
assistant to the Solicitor General. This is not just the policy of this
administration, the Bush administration, a Republican administration.
This has also been the policy under Democratic Presidents.
The inappropriateness of this request prompted all seven living
former Solicitors General to write a bipartisan letter to the Committee
to express their concern regarding the Committee's request and to
defend the need to keep such documents confidential. The letter was
signed by Democrats Seth Waxman, Walter Dellinger, Drew Days III and
Republicans Ken Starr, Charles Fried, Robert Bork and Archibald Cox.
The letter notes that when each of the Solicitors General made
important decisions regarding whether to seek Supreme Court review of
adverse appellate decisions and whether to participate as amicus curiae
in other high profile cases, they:

relied on frank, honest and thorough advice from [their]
staff attorneys like Mr. Estrada . . .

and that the open exchange of ideas which must occur in such a
context

Simply cannot take place if attorneys have reason to fear
that their private recommendations are not private at all,
but vulnerable to public disclosure.

The letter concludes that

Any attempt to intrude into the Office's highly privileged
deliberations would come at a cost of the Solicitor General's
ability to defend vigorously the United States litigation
interests, a cost that also would be borne by Congress
itself.

The Democratic committee member's request has even drawn criticism
from the editorial boards of the Washington Post and Wall Street
Journal. On May 28, 2002, in an editorial entitled ``Not Fair Game''
the Washington Post editorialized that the request

For an attorney's work product would be unthinkable if the
work had been done for a private client. . . . [and] legal
advice by a line attorney for the federal government is not
fair game either.

According to the Post editorial

. . . In elite government offices such as that of the
solicitor general, lawyers need to speak freely without
worrying that the positions they are advocating today will be
used against them if they ever get nominated to some other
position.

On May 24, 2002, the Wall Street Journal in an editorial entitled
``The Estrada Gambit'' also criticized the request, calling it ``one
more attempt to delay giving Mr. Estrada a hearing and a vote.'' The
Journal further criticized the Committee's request in a later
editorial, entitled ``No Judicial Fishing'', calling the request
``outrageous'' and noting that the goal of the request ``is to delay,
trying to put off the day when Mr. Estrada takes a seat on the D.C.
Circuit Court of Appeals.''
Mr. President, I ask unanimous consent that these two editorials also
be printed in the Record after my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
[See exhibit 2.]
Mr. GRASSLEY. Mr. Estrada is not the only former deputy or assistant
to the Solicitor General nominated to the Federal bench. In fact, there
are seven others now serving on the Federal Courts of Appeals. None had
any prior judicial experience, and the committee did not ask the
Justice Department to turn over any confidential internal memoranda
those nominees prepared while serving in the Solicitor General's
Office. The seven nominees were: Samuel Alito on the 3rd Circuit, Danny
Boggs on the 6th Circuit, William Bryson and Daniel Friedman on the
Federal Circuit, Frank Easterbrook and Richard Posner on the 7th
Circuit, and A. Raymond Randolph on the D.C. Circuit. Why should Mr.
Estrada be treated any differently?
During Mr. Estrada's hearing, Judiciary Committee Democrats alleged
that the committee has reviewed the work product of other nominees,
including memos written by Frank Easterbrook, by Chief Justice
Rehnquist when he served as a clerk to Justice Jackson, and by Robert
Bork when he was an official at the Justice Department.
For the record, there is no evidence that the Department of Justice
ever turned over confidential memoranda prepared by Frank Easterbrook
when he served in the Solicitor General's Office. There also is
no evidence that the committee even requested such information.

During Robert Bork's hearings, the Department did turn over memos
Judge Bork wrote while serving as Solicitor General, but none of these
memos contained the sort of deliberative materials requested of Mr.
Estrada and the Justice Department. The Bork materials include memos
containing Bork's opinions on such subjects as the constitutionality of
the pocket veto, and on President Nixon's assertions of executive
privilege and his views of the Office of Special Prosecutor. None of
the memos contain information regarding internal deliberations of
career attorneys on appeal decisions or legal opinions in connection
with appeal decisions. Moreover, the Bork documents reflected
information transmitted between a political appointee, namely the
Solicitor General, and political advisors to the President, rather than
the advice of a career Department of Justice attorney to his superiors,
as is the case with Mr. Estrada.
You see, the Judiciary Committee has never requested and the
Department of Justice has never agreed to release the internal memos of
a career line attorney. To ask that Mr. Estrada turn over his memos is
unprecedented, and frankly unfair. No Member of this body would ever
condone a request to turn over staff memos. What my staff communicates
to me in writing is internal and private. I am sure every other Senator
feels the same way as I do. This Democrat fishing expedition needs to
stop. Miguel Estrada is a more than well qualified nominee and he
deserves a vote on his nomination, today.
In conclusion, we are again seeing an attack on another very
talented, very principled, highly qualified legal mind. It all boils
down to this, Mr. Estrada's opponents refuse to give him a vote because
they say they do not know enough about him. They further contend that
the Justice Department memos, which they know will never be released,
are the only way they can find out what they need to know about Mr.
Estrada. It is a terrible Catch-22.
These obstructionist efforts are a disgrace and an outrage. We must
put a stop to these inappropriate political attacks and get on with the
business of confirming to the Federal bench good men and women who are
committed to doing what judges should do, interpret law as opposed to
making law from the bench, because it is our responsibility to make law
as members of the legislative branch.
I yield the floor.

[[Page S2897]]

Exhibit 1

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

Just Vote

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

Exhibit 2

[From the Wall Street Journal, May 24, 2002]

The Estrada Gambit

Senate Judiciary Chairman Patrick Leahy keeps saying he's
assessing judicial nominees on the merits, without political
influence. So why does he keep getting caught with someone
else's fingerprints on his press releases?
The latest episode involves Miguel Estrada, nominated more
than a year ago by President Bush for the prestigious D.C.
Circuit Court of Appeals. Mr. Estrada scares the legal briefs
off liberal lobbies because he's young, smart and
accomplished, having served in the Clinton Solicitor
General's office, and especially because he's a conservative
Hispanic. All of these things make him a potential candidate
to be elevated to the U.S. Supreme Court down the road.
Sooner or later even Mr. Leahy has to grant the nominee a
hearing, one would think. But maybe not, if he keeps taking
orders from Ralph Neas at People for the American Way. On
April 15, the Legal Times newspaper reported that a
``leader'' of the anti-Estrada liberal coalition was
considering ``launching an effort to obtain internal memos
that Estrada wrote while at the SG's office, hoping they will
shed light on the nominee's personal views.''
Hmmm. Who could that leader be? Mr. Neas, perhaps? Whoever
it is, Mr. Leahy seems to be following orders, because a
month later, on May 15, Mr. Leahy sent a letter to Mr.
Estrada requesting the ``appeal recommendations, certiorari
recommendations, and amicus recommendations you worked on
while at the United States Department of Justice.''
It's important to understand how outrageous this request
is. Mr. Leahy is demanding pre-decision memorandums, the kind
of internal deliberations that are almost by definition
protected by executive privilege. No White House would
disclose them, and the Bush Administration has already turned
down a similar Senate request of memorandums in the case of
EPA nominee Jeffrey Holmstead, who once worked in the White
House counsel's office.
No legal fool, Mr. Leahy must understand this. So the
question is what is he really up to? The answer is almost
certainly one more attempt to delay giving Mr. Estrada a
hearing and vote. A simple exchange of letters from lawyers
can take weeks. And then if the White House turns Mr. Leahy
down, he can claim lack of cooperation and use that as an
excuse to delay still further.
Mr. Leahy is also playing star marionette to liberal
Hispanic groups, which on May 1 wrote to Mr. Leahy urging
that he delay the Estrada hearing until at least August in
order to ``allow sufficient time . . . to complete a
thorough and comprehensive review of the nominee's
record.'' We guess a year isn't adequate time and can only
assume they need the labor-intensive summer months to
complete their investigation. (Now there's a job for an
intern.) On May 9, the one-year anniversary of Mr.
Estrada's nomination. Mr. Leahy issued a statement
justifying the delay in granting him a hearing by pointing
to the Hispanic group's letter.
These groups, by the way, deserve some greater exposure.
They include the Mexican American Legal Defense and
Educational Fund as well as La Raza, two lobbies that claim
to represent the interests of Hispanics. Apparently they now
believe their job is to help white liberals dig up dirt on a
distinguished jurist who could be the first Hispanic on the
U.S. Supreme Court.
The frustration among liberals in not being able to dig up
anything on Mr. Estrada is obvious. Nam Aron, president of
the Alliance for Justice, told Legal Times that ``There is a
dearth of information about Estrada's record, which places a
responsibility on the part of Senators to develop a record at
his hearing. There is much that he has done that is not
apparent.'' Translation: We can't beat him yet.
Anywhere but Washington, Mr. Estrada would be considered a
splendid nominee. The American Bar Association, whose
recommendation Mr. Leahy one called the ``gold standard by
which judicial candidates have been judged,'' awarded Mr.
Estrada its highest rating of unanimously well-qualified.
There are even Democrats, such as Gore advisor Ron Klaim, who
are as effusive as Republicans singing the candidate's
praises.
When Mr. Estrada worked in the Clinton-era Solicitor
General's office, he wrote a friend-of-the-court brief in
support of the National Organization of Women's position that
anti-abortion protestors violated RICO. It's hard to paint a
lawyer who's worked for Bill Clinton and supported NOW as a
right-wing fanatic.
We report all of this because it reveals just how poison
judicial politics have become, and how the Senate is
perverting its advise and consent power. Yesterday the
Judiciary Committee finally to help fellow Pennsylvania
Brooks Smith.
Mr. Estrada doesn't have such a patron, so he's fated to
endure the delay and document-fishing of liberal interests
and the Senate Chairman who takes their dictation.

Ms. MIKULSKI. Mr. President, I rise in opposition to the nomination
of Miguel Estrada to the United States Circuit Court of Appeals for the
District of Columbia.
The President has the right to make judicial nominations. The Senate
has the Constitutional responsibility to advise and consent. I take
this responsibility very seriously. This is a lifetime appointment for
our nation's second most important court. Only the Supreme Court has a
greater impact on the lives and rights of every American.
The District of Columbia Circuit is the final arbiter on many cases
that the Supreme Court refuses to consider. That means it's responsible
for decisions on fundamental constitutional issues involving freedom of
speech, the right to privacy and equal protection.
In addition, the D.C. Circuit has special jurisdiction over Federal
agency actions. That means the D.C. Circuit is responsible for cases on
issues of great national significance involving labor rights,
affirmative action, clean air and clear water standards, health and
safety regulations, consumer privacy and campaign finance. The
importance of this court highlights the importance of placing skilled,
experienced and moderate jurists on the court.
I base my consideration of each judicial nominee on three criteria:
competence, integrity and commitment to core Constitutional principles.
I don't question Mr. Estrada's character or competence. He is clearly
a skilled lawyer. Yet the Senate does not have enough information to
judge Mr. Estrada's commitment to core Constitutional principles.
He has refused to answer even the most basic questions during his
hearing in Senate Judiciary Committee. For example, he was asked to
give examples of Supreme Court decisions with which he disagreed. He
refused to answer. He was asked basic questions on his judicial
philosophy. He refused to answer.
The Constitution gives the Senate the responsibility to advise and
consent on judicial nominations. This consent should be based on
rigorous analysis. The nominee doesn't have to be an academic with a
paper trail. Yet the nominee must be open and forthcoming. He or she
must answer questions that seek to determine their commitment to core
Constitutional principles.

[[Page S2898]]

This is a divisive nomination--at a time when our Nation should be
united. Our Nation is preparing for a possible war in Iraq. We are
already engaged in a war against terrorism. We are also facing a weak
economy. Americans are stressed and anxious. The Senate should be
working to reduce this stress--to make America more secure; to
strengthen our economy and to deal with the ballooning cost of health
care.
I urge the administration to nominate judicial candidates who are
moderate and mainstream--and to instruct those nominees to be
forthright and forthcoming with the Senate so the Senate can address
the significant issues that face our Nation today.
The PRESIDING OFFICER (Ms. Murkowski). The Senator from Oklahoma.
Mr. NICKLES. Madam President, I ask unanimous consent to proceed as
if in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Nickles pertaining to the introduction of S. 2
are located in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, one of our most important
responsibilities as Senators is the confirmation of Federal judges.
Federal judges are appointed for life, and they will be interpreting
laws affecting the lives of all our citizens for many years to come.
Yet my colleagues across the aisle suggest that something far less than
a full review of a nominee's record is warranted. Republican Senators
pretend that by seeking additional information to help us understand
Mr. Estrada's views and judicial philosophy, we are upsetting the
proper constitutional balance between the Senate and the executive
branch. They claim the Senate has to consent to the President's
judicial nominees, as long as they have appropriate professional
qualifications.
In fact, the Constitution gives a strong role to the Senate in
evaluating nominees. The role of the Senate is fundamental to the basic
constitutional concept of checks and balances at the heart of the
Federal Government. And when we say ``check'' we don't mean blank
check.
The debates over the drafting of the Constitution tell a great deal
about the proper role of the Senate in the judicial selection process.
Both the text of the Appointments Clause of the Constitution and the
debates over its adoption make clear that the Senate should play an
active and independent role in selecting judges.
Given recent statements by Republican Senators, it is important to
lay out the historical record in detail. The Constitutional Convention
met in Philadelphia from late May until mid-September of 1787. On May
29, 1787, the Convention began its work on the Constitution with the
Virginia Plan introduced by Governor Randolph, which provided ``that a
National Judiciary be established, to be chosen by the National
Legislature.'' Under this plan, the President had no role at all in the
selection of judges.
When this provision came before the Convention on June 5, several
members were concerned that having the whole legislature select judges
was too unwieldy. James Wilson suggested an alternative proposal that
the President be given sole power to appoint judges.
That idea had almost no support. Rutledge of South Carolina said that
he ``was by no means disposed to grant so great a power to any single
person.'' James Madison agreed that the legislature was too large a
body, and stated that he was ``rather inclined to give [the appointment
power] to the Senatorial branch'' of the legislature, a group
``sufficiently stable and independent'' to provide ``deliberate
judgements.''
A week later, Madison offered a formal motion to give the Senate the
sole power to appoint judges and this motion was adopted without any
objection. On June 19, the Convention formally adopted a working draft
of the Constitution, and it gave the Senate the exclusive power to
appoint judges.
July of 1787 was spent reviewing the draft Constitution. On July 18,
the Convention reaffirmed its decision to grant the Senate the
exclusive power. James Wilson again proposed ``that the Judges be
appointed by the Executive'' and again his motion was defeated.
The issue was considered again on July 21, and the Convention again
agreed to the exclusive Senate appointment of judges.
In a debate concerning the provision, George Mason called the idea of
executive appointment of Federal judges a ``dangerous precedent.'' The
Constitution was drafted to read: ``The Senate of the United States
shall have power to appoint Judges of the Supreme Court.''
Not until the final days of the Convention was the President given
power to nominate Judges. On September 4, 2 weeks before the
Convention's work was completed, the Committee proposed that the
President should have a role in selecting judges. It stated: ``The
President shall nominate and by and with the advice and consent of the
Senate shall appoint judges of the Supreme Court.'' The debates, make
clear, however, that while the President had the power to nominate
judges, the Senate still had a central role.
Governor Morris of Pennsylvania described the provision as giving the
Senate the power ``to appoint Judges nominated to them by the
President.'' The Constitutional Convention adopted this reworded
provision giving the President the power, with the advice and consent
of the Senate, to nominate and appoint judges.
The debates and the series of events proceeding adoption of the
``advise and consent'' language make clear, that the Senate should play
an active role. The Convention having repeatedly rejected proposals
that would lodge exclusive power to select judges with the executive
branch, could not possibly have intended to reduce the Senate to a
rubber stamp role.
The reasons given by delegates to the Convention for making the
selection of judges a joint decision by the President and the Senate
are as relevant today as they were in 1787. The framers refused to give
the power of appointment to a ``single individual.'' They understood
that a more representative judiciary would be attained by giving
members of the Senate a major role.
From the start, the Senate has not hesitated to fully exercise this
power. During the first 100 years after ratification of the
Constitution, 21 or 81 Supreme Court nominations--one out of four--were
rejected, withdrawn, or not acted on. During these confirmation
debates, ideology often mattered. John Rutledge, nominated by George
Washington, failed to win confirmation as Chief Justice in 1795.
Alexander Hamilton and other Federalists opposed him, because of his
position on the controversial Jay Treaty. A nominee of President James
Polk was rejected because of his anti-immigration position. A nominee
of President Hoover was rejected because of his anti labor view. Our
Republican colleagues are obviously aware of this. Their recent
statements attempting to downplay the Senate's role stand in stark
contrast to the statements when they controlled the Senate during the
Clinton administration. At that time, they vigorously asserted their
right of ``advice and consent.''
Indeed, while public debate and a demand to fully review a nominee's
record is consistent with our duty of ``advice and consent,'' many of
the actions by Republicans were damaging to the nominations process.
Democrats have made clear our concerns about whether Mr. Estrada has
met the burden of showing that he should be appointed to the DC
Circuit, but Republicans resorted to tactics such as secret holds to
block President Clinton's nominees. For instance, it took four years to
act on the nomination of Richard Paez, a Mexican-American, to the Ninth
Circuit. Senate Republicans repeatedly delayed floor action on Judge
Paez through use of anonymous holds.
Republicans voted to indefinitely postpone action on Judge Paez's
nomination. Finally, in March 2000, 4 years after his nomination and
with the Presidential election on the horizon, Judge Paez was
confirmed, after cloture was invoked.
Reviewing Mr. Estrada's nomination is our constitutional duty. We
take his nomination particularly seriously because of the importance of
the DC Circuit, the Court to which he has been nominated. The important
work we do in Congress to improve health care, protect workers rights,
and protect civil rights mean far less if we fail to fulfill our
responsibility to provide the

[[Page S2899]]

best possible advice and consent on judicial nominations. Tough
environmental laws mean little to a community that can't enforce them
in our federal courts. Civil rights laws are undercut if there are no
remedies for disabled men and women. Fair labor laws are only words on
paper if we confirm judges who ignore them.
What we know about Mr. Estrada leads us to question whether he will
deal fairly with the range of important issues affecting everyday
Americans that came before him.
Mr. Estrada has been actively involved in supporting broad anti-
loitering ordinances that restrict the rights of minority residents to
conduct lawful activities in their neighborhoods. Mr. Estrada has
sought to undermine the ability of civil rights groups like the NAACP
to challenge these broad ordinances which affect the ability of
minority citizens to conduct activities such as drug counseling and
voter outreach in their communities.
Information we need to know about Mr. Estrada's record has been
hidden from us by the Department of Justice. Democratic Senators have
asked for Mr. Estrada's Solicitor General Memoranda. We have moved for
unanimous consent to proceed to a vote on his nomination, after those
memoranda are provided. Yet, the White House refuses to provide any of
Mr. Estrada's memos, even though there is ample precedent for allowing
the Senate to review these documents.
Even as Republicans refuse to allow us to see Mr. Estrada's memos
from his time in public office--and even as Mr. Estrada declined to
answer many basic questions about his judicial philosophy and
approach--Republicans repeatedly make clear that they are familiar with
Mr. Estrada's views and judicial philosophy.
Since his nomination, Republican Senators have repeatedly praised Mr.
Estrada as a ``conservative.'' A recent article from Roll Call states
that the Republican Party is confident that Mr. Estrada will rule in
support of big business. The article also states that the Republican
Party has asked lobbyists to get involved in the battle over Mr.
Estrada's nomination.
I have spoken in recent days about the importance of the DC Circuit
and it's shift to the right in the 1980s and 1990s. In the 1960s and
1970s, the DC Circuit had a significant role in protecting public
access to agency and judicial proceedings, protecting civil rights
guarantees, overseeing administrative agencies, protecting the public
interest in communications regulation, and enforcing environmental
protections. In the 1980s, however, the DC Circuit changed dramatically
because of the appointment of conservative judges. As its composition
changed, it became a conservative and activist court--striking down
civil rights and constitutional protections, encouraging deregulation,
closing the doors of the courts to many citizens, favoring employers
over workers, and undermining federal protection of the environment.
It seems clear that Mr. Estrada has been nominated to the DC Circuit
in the hope that this court will continue to be more interested in
favoring big business than in protecting the rights of workers,
consumers, women, minorities, and other Americans.
Mr. Estrada's nomination is strongly opposed by those concerned about
these rights. Republicans repeatedly praise Mr. Estrada as a Hispanic--
but many Hispanic groups oppose his nomination. The Congressional
Hispanic Caucus, the Mexican American Legal Defense Fund, the Southwest
Voter Registration Project, 52 Latino Labor Leaders representing
working families across the country, the California League of United
Lationo Citizens, the California La Raza, the Puerto Rican Legal
Defense Fund and fifteen past presidents of the Hispanic National Bar
Association, whose terms span from 1972 until 1998 have stated their
opposition to Mr. Estrada. As these Presidents write:

Based upon our review and understanding of the totality of
Mr. Estrada's record and life's experiences, we believe that
there are more than enought reasons to conclude that Mr.
Estrada's candidacy falls short. [These] reasons include: his
virtually non-existent written record, his verbally expressed
and un-rebutted extreme views, his lack of judicial or
academic teaching experience (against which his fairness,
reasoning skills and judicial philosophy could be properly
tested), his poor judicial temperament, his total lack of
connection whatsoever to, or lack of demonstrated interest in
the Hispanic community, his refusals to answer even the most
basic questions about civil rights and constitutional law,
his less than candid responses to other straightforward
questions of Senate Judiciary Committee Members.

I would like to include in the Record statements at the end of my
remarks of two of the past National Presidents of the League of United
Latin American Citizens opposing Mr. Estrada's nomination. The first
statement is from Belen Robles, a native Texas who has a long and
active involvement in the Latino civil rights community. He writes that
he is ``deeply troubled with the nomination of Miguel Estrada.'' He is
troubled by the positions that Mr. Estrada has taken on racial
profiling, and on whether the NAACP had standing to put forward the
claims of African-Americans arrested under an anti-loitering ordinance.
Mr. Robles writes:

As a former National President of LULAC, I know very well
that on many occasions LULAC has been a champion of the
rights of its membership in civil rights cases. We asserted
those rights on behalf of voters in voting cases in Texas,
and in many other civil rights cases. Under his view, Mr.
Estrada could decide that a civil rights organization such as
LULAC would not be able to sue on behalf of its members. NO
supporter of civil rights could agree with Mr. Estrada's
confirmation.

Ruben Bonilla, an attorney in Texas who is also a past National
president of LULAC, opposes the confirmation of Mr. Estrada.
Mr. Bonilla writes:

I am deeply troubled with the double standard that
surrounds the nomination of Mr. Estrada. It is particularly
troubling that some of the Senators have accused Democrats or
other Latinos of being anti-Hispanic, or holding the American
dream hostage. Yet, these same Senators in fact prevented
Latinos appointed by the Clinton Administration from ever
being given a hearing. Notably, Corpus Christi lawyer Jorge
Rangel, and El Paso attorney Enrique Moreno, and Denver
attorney Christine Arguello never received hearings before
the judiciary committee. Yet, these individuals who came from
the top of their profession were schooled in the Ivy League,
were raised from modest means in the Southwest, and in fact
truly embodied the American Dream. These highly qualified
Mexican-Americans never had the opportunity to introduce
themselves and their views to the Senate, as Mr. Estrada did.

Mr. President, the Senate is entitled to see Mr. Estrada's full
record. Both the Constitution and historical practices require us to
ignore the Administration's obvious ideological nominations. Judicial
nominees who come before the Senate should have professional
qualifications and the right temperament to be a judge. They should be
committed to basic constitutional principles. Many of us have no
confidence that Mr. Estrada has met this burden. I urge the Senate to
reject this nomination.
I ask unanimous consent that supporting material be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

HNBA's Past Presidents' Statement, February 21, 2003

We the undesigned past presidents of the Hispanic National
Bar Association write in strong opposition to the nomination
of Miguel A. Estrada for judgeship on the Court of Appeals
for the District of Columbia Circuit.
Since the HNBA's establishment in 1972, promoting civil
rights and advocating for judicial appointments of qualified
Hispanic Americans throughout our nation have been our
fundamental concerns. Over the years, we have had a proven
and respected record of endorsing or not endorsing or
rejecting nominees on a non-partisan basis of both Republican
and Democratic presidents.
In addition to evaluating a candidate's professional
experience and judicial temperament, the HNBA's policies and
procedures governing judicial endorsements have required that
the following additional criteria be considered: The extent
to which a candidate has been involved in, supportive of, and
responsive to the issues, needs and concerns or Hispanic
Americans, and the candidate's demonstrated commitment to the
concept of equal opportunity and equal justice under the law.
Based upon our review and understanding of the totality of
Mr. Estrada's record and life's experiences, we believe that
there are more than enough reasons to conclude that Mr.
Estrada's candidacy falls short in these respects. We believe
that for many reasons including: his virtually non-existent
written record, his verbally expressed and un-rebutted
extreme views, his lack of judicial or academic teaching
experience, (against which his fairness, reasoning skills and
judicial philosophy could be properly tested), his

[[Page S2900]]

poor judicial temperament, his total lack of any connection
whatsoever to, or lack of demonstrated interest in the
Hispanic community, his refusals to answer even the most
basic questions about civil rights and constitutional law,
his less than candid responses to the other straightforward
questions of Senate Judiciary Committee members, and because
of the Administration's refusal to provide the Judiciary
Committee the additional information and cooperation it needs
to address these concerns, the United States Senate cannot
and must not conclude that Mr. Estrada can be a fair and
impartial appellate court judge.
Respectfully submitted,

John Roy Castillo, et al.
____

[From The Oregonian, Feb. 24, 2003]

Estrada Would Destroy Hard-Fought Victories

(By Dolores C. Huerta)

As a co-founder of the United Farm Workers with Cesar
Chavez, I know what progress looks like. Injustice and the
fight against it take many forms-from boycotts and marches to
contract negotiations and legislation. Over the years, we had
to fight against brutal opponents, but the courts were often
there to back us up. Where we moved forward, America's courts
helped to establish important legal protections for all farm
workers, all women, all Americans. Now, though, a dangerous
shift in the courts could destroy the worker's rights,
women's rights, and civil rights that our collective actions
secured.
It is especially bitter for me that one of the most visible
agents of the strategy to erase our legal victories is being
called a great role model for Latinos. It is true that for
Latinos to realize America's promise of equality and justice
for all, we need to be represented in every sector of
business and every branch of government. But it is also true
that judges who would wipe out our hard-fought legal
victories--no matter where they were born or what color their
skin--are not role models for our children. And they are not
the kind of judges we want on the federal courts.
Miguel Estrada is a successful lawyer, and he has powerful
friends who are trying to get him a lifetime job as a federal
judge. Many of them talk about him being a future Supreme
Court justice. Shouldn't we be proud of him?
I for one am not too proud of a man who is unconcerned
about the discrimination that many Latinos live with every
day. I am not especially proud of a man whose political
friends--the ones fighting hardest to put him on the court--
are also fighting to abolish affirmative action and to make
it harder if not impossible for federal courts to protect the
rights and safety of workers and women and anyone with little
power and only the hope of the courts to protect their legal
rights.
Just as we resist the injustice of racial profiling and the
assumption that we are lesser individuals because of where we
were born or the color of our skin, so too must we resist the
urge to endorse a man on the basis of his ethnic background.
Members of the Congressional Hispanic Caucus met with Miguel
Estrada and came away convinced that he would harm our
community as a federal judge. The Mexican American Legal
Defense and Educational Fund and the Puerto Rican Defense and
Education Fund reviewed his record and came to the same
conclusion.
Are these groups fighting Miguel Estrada because they are
somehow anti-Hispanic? Are they saying that only people with
certain political views are ``true'' Latinos? Of course not.
They are saying that as a judge this man would do damage to
the rights we have fought so hard to obtain, and that we
cannot ignore that fact just because he is Latino. I think
Cesar Chavez would be turning over in his grave if he knew
that a candidate like this would be celebrated for supposedly
representing the Hispanic community. He would also be
dismayed that any civil rights organization would stay silent
or back such a candidate.
To my friends who think this is all about politicians
fighting among themselves, I ask you to think what would have
happened over the last 40 years if the federal courts were
fighting against worker's rights and women's rights and civil
rights. And then think about how quickly that could become
the world we are living in.
As MALDEF wrote in a detailed analysis, Estrada's record
suggests that ``he would not recognize the due process rights
of Latinos,'' that he ``would not fairly review Latino
allegations of racial profiling by law enforcement,'' that he
``would most likely always find that government affirmative
action programs fail to meet'' legal standards, and that he
``could very well compromise the rights of Latino voters
under the Voting Rights Act.''
Miguel Estrada is only one of the people nominated by
President Bush who could destroy much of what we have built
if they become judges. The far right is fighting for them
just as it is fighting for Estrada. We must fight back
against Estrada and against all of them. If the only way to
stop this is a filibuster in the Senate, I say, Que viva la
filibuster!
____

Statement of Ruben Bonilla, in Opposition to the Confirmation of Miguel
Estrada

I write to join other Latinos in opposing the confirmation
of Miguel Estrada to the DC Circuit Court of Appeals. I have
a long history of involvement in the Latino civil rights
community. I am an attorney in Corpus Christi, Texas, and am
a past National President of LULAC. I am deeply concerned
with the betterment of my community.
I am deeply troubled with the double standard that
surrounds the nomination of Miguel Estrada. It is
particularly troubling that some of the senators have accused
Democrats or other Latinos of being anti-Hispanic, or holding
the American dream hostage. Yet, these same senators in fact
prevented Latinos appointed by the Clinton Administration
from ever being given a hearing. Notably, Corpus Christi
lawyer Jorge Rangel, and El Paso attorney Enrique Moreno, and
Denver attorney Christine Arguello never received hearings
before the judiciary committee. Yet, these individuals who
came from the top of their profession were schooled in the
Ivy League, were raised from modest means in the Southwest,
and in fact truly embodied the American Dream. These highly
qualified Mexican Americans never had the opportunity to
introduce themselves and their views to the Senate, as Mr.
Estrada did.
In addition to my concerns regarding this double standard.
I am also concerned that Mr. Estrada showed himself unwilling
to allow the Senate to fully evaluate his record. He was not
candid in his responses. Yet, Mr. Estrada, as every other
nominee who is a candidate for a lifelong appointment, must
be prepared to fully answer basic questions, particularly
where there is no prior judicial record or scholarly work to
scrutinize. By declining to give full and candid responses,
he frustrated the process. Individuals with values should be
called to explain those values honestly and forthrightly. We
can demand no less from those who would hold a lifelong
appointment in our system of justice.
Finally, I am also concerned with some of the answers that
Mr. Estrada did give when he was pressed. For example, I
understand that as an attorney he argued that the NAACP did
not have legal standing to press the claims of African
Americans who had been arrested under a particular ordinance.
As a former National President of LULAC, I know that on many
occasions LULAC has represented the rights of its membership
in voting cases, and in other civil rights matters. I would
be troubled that if he were confirmed, Mr. Estrada would not
find a civil rights organization to be an appropriate
plaintiff, and would uphold closing the courthouse door on
them.
Given these concerns, I oppose the confirmation of Mr.
Miguel Estrada.

Statement of Belen Robles in Opposition to the Confirmation of Miguel
Estrada

I write to join other Latino leaders and organizations in
opposing the confirmation of Miguel Estrada to the DC Circuit
Court of Appeals. As a native Texan, I have a very long and
active involvement in the Latino civil rights community and
have worked hard to ensure that Latinos have real choices
about their lives. I am a past National President of the
League of United Latin American Citizens (LULAC).
I am deeply troubled with the nomination of Miguel Estrada.
I am very troubled with the positions he seems to have taken
about our youth being subjected to racial profiling. As I
understand his position, he does not believe that racial
profiling exists, and has many times argued that the
Constitution gives police officers unbridled authority and
power. In our communities, racial profiling does exist and
our children have been subjected to it. This is an issue that
Latino organizations, including LULAC have long cared about.
In all of the years that I was involved with civil rights,
LULAC always stood to protect our community, including our
youth when law enforcement exceeds their authority.
I am also concerned that Mr. Estrada did not allow the
Senate to fully evaluate his record. He was not open in his
responses, but instead was evasive. Yet, anyone appointed to
a lifelong position has to be willing to answer questions
fully. The American people have a right to know who sits in
our seats of justice. And to demand that the person be fair.
Mr. Estrada has also taken actions against organizations
that make me believe that he would not be fair. For example,
as an attorney he argued that the NAACP did not have legal
standing to put forward the claims of African Americans who
have been arrested under a particular ordinance. As a former
National President of LULAC, I know very well that on many
occasions LULAC has been a champion of the rights of its
membership in civil rights cases. We asserted those rights on
behalf of voters in voting cases in Texas, and in many other
civil rights cases. Under his view, Mr. Estrada could decide
that a civil rights organization such as LULAC would not be
able to sue on behalf of its members. No supporter of civil
rights could agree with Mr. Estrada's confirmation.
I oppose the confirmation of Mr. Miguel Estrada.
____

Hispanic Bar Association

of Pennsylvania,

Philadelphia, PA, January 28, 2003.
Hon. Senator Edward M. Kennedy,
Senate Committee on the Judiciary, Dirksen Senate Office
Building, Washington, DC.
Dear Honorable Sir: I am writing on behalf of the Hispanic
Bar Association of Pennsylvania (HBA) to inform you that we
oppose the appointment of Miguel Angel Estrada to the United
States Court of Appeals for the District of Columbia Circuit.
For the reasons

[[Page S2901]]

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

Mr. KENNEDY. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Crapo). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LAUTENBERG. Mr. President, today is the 12th day, as remarkable
as that seems, that the Senate is debating this nomination instead of
doing what it has to for the important business of the American people,
as I see it. It is quite clear the other side is just not going to get
cloture on this nomination. So the choice is either bring forward a
cloture motion or move on to other business.
The Nation's Governors are in Washington meeting with President Bush
and Members of Congress to discuss critically important issues, such as
homeland security, rising unemployment, and increasing State deficits.
These are serious issues that need attention, but we are delaying
tending to the needs of the American people with endless debate on a
judicial nominee who is refusing to tell the Senate almost anything
about his judicial philosophy or decisionmaking process.
This hide-the-ball strategy being used by Mr. Estrada, frankly, I
think is an affront to the Senate and the American people. We have the
right to get complete and thoughtful answers to legitimate concerns
about his approach to his interpretation of the U.S. Constitution and
the laws of the country.
I was formerly a businessman. Sometimes there are processes that are
not dissimilar to our functions here. One of them is to be able to
understand what a nominee or an appointment of a high-ranking executive
might include and a review of that person's potential, that person's
experience, that person's attitude before you put him to work.
My fellow Senators on the other side of the aisle would have the
Senate, considered the most deliberative body in world history--and, I
assume, also considered one of the most thoughtful places in the world
in terms of Government and deliberative bodies--vote to confirm a
nominee to a lifetime--lifetime, and it is important people realize
that means you cannot be fired from the job; this means you can go as
long as you want to, and when you are finished with your service, your
salary continues at exactly the same level it did when you went to work
every day--a lifetime appointment without disclosure of what I and my
colleagues consider required information.
In the business world, this practice would have been unheard of, and
the American people deserve better. If someone were seeking a post and
they appeared before a congressional committee or a department head and
said, I would like the job, but I am not willing to answer that
questionnaire, that would make that aspirant unacceptable under any
condition. It should be a requirement when a lifetime-tenured job is
under discussion, something so important as the circuit court of
appeals where people, after getting a decision from district court, go
to get the judgment of wise and experienced people. His unwillingness
to answer questions, to talk about what he stands for, and what he
believes is a shocking disregard for appropriate behavior.
Responsible business owners do not hire senior managers without first
conducting a complete and thorough review of that candidate's job
application. The candidate would answer questions that give
interviewers an opportunity to measure the candidate's decisionmaking
process and views on work-related issues. A candidate cannot simply
refuse to answer important questions of fitness, philosophy, or
temperament. No business executive would hire a candidate who refused
to answer basic inquiries. These are not private matters. They become
the matters of the employer, be it government or business. Those in
business would put their businesses at risk and leave themselves
susceptible to future lawsuits based on negligent hiring practices.
No one is doubting the fact Mr. Estrada is bright and intelligent,
but his repeated refusal to provide the Senate with any insight into
his views on the law and the U.S. Constitution is incomprehensible. I
just cannot understand it. How can we make an informed decision about a
judicial nominee if the nominee refuses to provide the Senate with
sufficient information about his judicial philosophy and, therefore,
his temperament?
The questions being asked are not prohibited by law or judicial or
professional ethics codes. Instead of entertaining continuing with
these dilatory tactics, the Senate should simply move on to the
important business of the American people concerned about the
protection of their homeland; move on to repair a hemorrhaging Federal
budget that under this administration has been converted from a $5.6
trillion surplus into a 2.$1 trillion deficit; move on to provide
States that are experiencing dire economic conditions with more Federal
assistance that would help them weather the storms during these times
of increasing unemployment, threatening war with Iraq, and a sustained
fear of potential terrorist acts.
In the most recent CNN Gallup poll, 50 percent of Americans believe
the economy is the most pressing issue confronting the Nation. Thirty
percent of Americans believe the war with Iraq is the most important
issue, second to jobs and the economy.
The nomination of Mr. Estrada did not make the list of important
concerns facing the Nation. Since January 2001, the number of
unemployed Americans has increased by nearly 40 percent, with nearly
8.3 million Americans out of work.
Since President Bush took office, 2.3 million private sector jobs
have been lost and the unemployment rate for Latinos by way of example
has increased 33 percent. According to the Department of Labor, there
are now 2.4 jobseekers for every job opening. So rather than focusing
on creating jobs for 8.3 million Americans, the Senate is targeted on
the job of one attorney, a very successful attorney who made a lot of
money. But how does that influence what the American people see as
their need?

[[Page S2902]]

This is the same thinking that has produced an economic stimulus
package that overwhelmingly favors the top 1 percent of American
taxpayers while giving very little to those who really need some
economic help.
The Senate needs to move on to the important work of protecting the
homeland. CIA Director Tenet and FBI Director Mueller have both
testified that America is still vulnerable to terrorist attack, and we
keep on hearing alarms described in different colors. The American
public does not understand what the difference between red and yellow
is. They just know it scares them. It panics them. They do not know
what to do. I get phone calls from people in New Jersey asking, Should
we stay out of New York City? Should we not take our children on a
trip? Should we stay home? The answer to all of those is that we do not
really know, but we ought to get on with finding out.
The omnibus appropriations bill provides less than half of the $3.5
billion in funding promised to law enforcement people, firefighters,
and emergency medical personnel. Meanwhile, America's ports, borders,
and critical infrastructure remain dangerously unprotected.
Once again, instead of focusing on protecting the homeland and
funding our first responders, the work of the Senate is being delayed
in order to secure the appointment of a judicial nominee who refuses to
share his views with the American people.
I do not intend to demean or diminish the importance of this
nomination. It is very important. To the contrary, the nomination at
issue is to the U.S. Court of Appeals for the DC Circuit, which is the
most powerful intermediate Federal appellate court, second only to the
U.S. Supreme Court. The DC Circuit is more powerful, it is observed,
than other Federal courts because it has exclusive jurisdiction over a
broad array of far-reaching Federal regulations that enforce critical
environment, consumer, and worker protection laws.
As history has shown, DC Circuit Court judges are often tapped to
serve on the Supreme Court. Presently, three of the nine Supreme Court
Justices--Justices Antonin Scalia, Clarence Thomas, and Ruth Bader
Ginsburg--previously served on the DC Circuit.
The Senate has a constitutional responsibility. The constitutional
judicial confirmation process grants authority to the President of the
United States to make the nominations and gives the Senate an equally
significant role to agree by advising and consenting with the
President's recommendation before a nominee can sit on the Federal
bench. These important, mutually coexisting roles of the President and
the Senate are central to the democratic system of separation of powers
and checks and balances.

Mr. Estrada must provide the Senate with a full and complete
understanding of his views of the law and the Constitution, including
important civil rights laws that protect all Americans, especially
minorities, women, the elderly, and the disabled. However, if he is
unwilling or the White House is unwilling to nominate judicial nominees
who are willing to answer reasonable, nonintrusive, and legitimate
inquiries of the Senate, then these nominees should not be confirmed.
The role of the Senate in the confirmation process is advise and
consent. It does not say anyplace to rubberstamp all Presidential
nominations. The Senate should not abdicate its responsibility to
thoroughly review judicial nominations. It is a responsibility, it is
an obligation, for each one of us. Rather, the Senate is dutybound to
ensure that each nominee maintains the utmost commitment to upholding
the Constitution of our country--following precedent, listening to
arguments without fear or favor, and rendering judgment without
personal bias. Miguel Estrada has failed to respond to legitimate
inquiries to the Senate and the American people.
As I said before, it is time to move on to the important work of the
American people, and let this appointment fall as it should unless Mr.
Estrada has a reckoning with himself and his obligation and comes to
the Senate to discuss his views in response to questions posed by the
Senate.
Mr. REID. Will the Senator yield for a question?
Mr. LAUTENBERG. Yes.
Mr. REID. The Senator is from the State of New Jersey. Of course, the
State of New Jersey is very aware of the news that is put out in the
New York Times and the editorials put out in the New York Times. Is
that a fair statement?
Mr. LAUTENBERG. It is a very important paper, yes.
Mr. REID. I do not know if the Senator is aware that I read into the
Record this morning a New York Times editorial from last fall dealing
with Estrada. I ask the Senator if he is aware of the first paragraph
of an editorial written February 13, 2003, in the New York Times?
Is the Senator also aware that last night the majority read into the
Record a number of editorials from around the country?
Mr. LAUTENBERG. I am aware of that.
Mr. REID. Does the Senator from New Jersey know the circulation of
the New York Times?
Mr. LAUTENBERG. I do not know precisely, but it is in the----
Mr. REID. It is in the millions.
Mr. LAUTENBERG. I am sorry?
Mr. REID. It is over a million.
Mr. LAUTENBERG. Over a million certainly on the weekends.
Mr. REID. Yes, I am sure it is.
Is the Senator aware of this editorial that says, paragraph No. 1,
``The Bush administration is missing the point in the Senate battle
over Miguel Estrada, its controversial nominee to the powerful DC
Circuit Court of Appeals. Democrats who have vowed to filibuster the
nomination are not engaging in 'shameful politics,' as the President
has put it, nor are they anti-Latino, as Republicans have cynically
charged. They are insisting that the White House respect the Senate's
role in confirming judicial nominees''?
Mr. LAUTENBERG. I am. I am also aware of the fact that there are
Latino organizations that are unalterably opposed to this nomination.
Mr. REID. If the Senator will yield for a question, is he aware that
it is led by the Congressional Hispanic Caucus?
Mr. LAUTENBERG. I am aware of all that.
Mr. REID. If the Senator will yield for a further question, it would
be difficult, would it not, to say that the Congressional Hispanic
Caucus was anti-Hispanic?
Mr. LAUTENBERG. I absolutely agree that there would typically be a
determination by them to support the nomination, but they are not. If
the Senator will help sharpen my memory, I think they said keep on
talking in the close of that editorial piece.
Mr. REID. We are going to find out. If the Senator would yield for
another question?
Mr. LAUTENBERG. I would be happy to.
Mr. REID. I ask if the Senator from New Jersey agrees with that first
paragraph of the editorial that I just wrote--read. I wish I had
written it, but I read it.
Mr. LAUTENBERG. I agree with the Senator and wish I had written it as
well.
Mr. REID. It is a short editorial. It is only three paragraphs. I
will ask the Senator a question if he would yield.
Mr. LAUTENBERG. Yes.
Mr. REID. ``The Bush administration has shown no interest in working
with Senate Democrats to select nominees who could be approved by
consensus, and has dug in its heels on its most controversial choices.
At their confirmation hearings, judicial nominees have refused to
answer questions about their views on legal issues. And Senate
Republicans have rushed through the procedures on controversial
nominees. Mr. Estrada embodies the White House's scorn for the Senate's
role. Dubbed the `stealth candidate,' he arrived with an extremely
conservative reputation but almost no paper trail. He refused to answer
questions, and although he had written many memorandums as a lawyer in
the Justice Department, the White House refused to release them.''

Does the Senator from New Jersey agree with the statement made in
this editorial, second paragraph, by the New York Times?
Mr. LAUTENBERG. I agree with it fully. I read that editorial. I was
in total agreement with their logic, coming from New Jersey where we
had candidates who were recommended for the

[[Page S2903]]

appeals court languish--nothing happening for months and months and
months. The protests we hear now from our friends on the other side
about the process are a bit shameless because we had a nominee from
California, Mr. Paez, who waited, I believe, 1,500 days.
Mr. REID. One thousand five hundred four days.
Mr. LAUTENBERG. Waiting for a review by the committee, and could not
get that.
If we talk about obstinate approaches to the process about deliberate
obstruction, the record is very clear.
When we presented candidates, when the Democrats were a majority,
they could not move them because the Republican side of the Senate
would not permit any action at all.
Mr. REID. Will the Senator yield for an additional question?
Mr. LAUTENBERG. I am happy to yield to my friend from Nevada.
Mr. REID. The final paragraph of this short but powerful editorial,
does the Senator from New Jersey agree with this:

The Senate Democratic leader, Tom Daschle, insists that the
Senate be given the information it needs to evaluate Mr.
Estrada. He says there cannot be a vote until senators are
given access to Mr. Estrada's memorandums and until they get
answers to their questions. The White House can call this
politics or obstruction. But in fact it is Senators doing
their jobs.

Would the Senator agree with this statement?
Mr. LAUTENBERG. I agree 100 percent with that statement, and I think
we ought to get on with the business of the American people.
Mr. REID. If the Senator will yield for another question before he
leaves the floor. The Senator mentioned there were aspirants to be
appellate judges, and is the Senator aware that a number of these
people were from New York? Is that true?
Mr. LAUTENBERG. Indeed, that is true.
I just got a letter from a district court judge in New Jersey,
considered one of the most brilliant and able district court judges,
who was recommended for the circuit court of appeals in our district
and decided after a long wait that he was not going to get a chance to
be heard for a circuit court job. He informs me in his letter that he
is going back to the law firm after 10 years on the Federal bench--a
distinguished jurist, a great loss. He could not get a hearing, so he
decided to withdraw rather than sit there and be dangled like a kite in
the wind.
Mr. REID. Is the Senator aware of the names of 79 Clinton judicial
nominees who were not confirmed by the Republicans?
Mr. LAUTENBERG. I am fully aware of that. I listened when the
distinguished Democratic whip read that list the first time, and I took
the liberty of reading the list a second time to make sure it was
clearly understood.
Mr. LAUTENBERG. 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.
Mr. THOMAS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. THOMAS. Mr. President, it is very interesting to hear the
discussions. It is very similar to what we have heard now for a couple
of weeks. I could not agree more with the Senator from New Jersey who
says let's get on with it. I have a suggestion as to how we can do
that. There are more than a majority in this Senate who are satisfied
with this candidate and ready to vote. All we need to do is have an up-
or-down vote. Those who are opposing that are in the minority. They can
study as many things as they choose. The fact is, the majority of the
people on this floor are satisfied this candidate is the right
candidate and it is time to go. I could not agree more.
We have a lot of things to do. We have gone through the hearings, we
have gone through all the background, and certainly most of us would
like to get away from this delay tactic and get on with our work. I
have to say that when the majority is ready to go, that is what we
ought to do. I suggest that.
I will discuss another subject for a moment.
THE PRESIDING OFFICER. The Senator from Wyoming is recognized.
Mr. THOMAS. I thank the Chair.
(The remarks of Mr. Thomas pertaining to the introduction of S. 475
are located in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
Mr. THOMAS. Mr. President, again I hope we find ourselves in a
position to move forward. I don't think there is a soul here who would
not admit we have talked enough about this judicial nomination. I don't
think there is a soul here who would deny we have all made up our
minds, we all know exactly what we are going to do. It is very clear
that the majority on this floor is prepared to vote for this nominee
and we are being held up over here by a minority that simply continues
to ask for something that is not necessary because the majority has
already been determined. So I hope we can move on and do the business
of this country for these people.
I yield the floor.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAPO. Mr. President, I rise today to submit a resolution.
(The remarks of Mr. Crapo pertaining to the submission of S. Con.
Res. 11 are printed in today's Record under ``Submission on Concurrent
and Senate Resolutions.'')