[Congressional Record Volume 149, Number 34 (Tuesday, March 4, 2003)]
[Senate]
[Pages S3054-S3058]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
The PRESIDING OFFICER. Under the previous order, the Senate will now
go into executive session and resume consideration of Executive
Calendar No. 21, which the clerk will report.
The legislative clerk read the nomination of Miguel A. Estrada, of
Virginia, to be United States Circuit Judge for the District of
Columbia Circuit.
Mr. REID. Mr. President, before my friend starts, we have other
people who wish to speak who can come this afternoon. I am curious as
to roughly how long the Senator wishes to speak.
Mr. ALLEN. I suspect 15 to 20 minutes.
Mr. REID. I thank the Senator.
The PRESIDING OFFICER (Mr. Sessions). The Senator from Virginia.
Mr. ALLEN. Mr. President, I rise once again to support Miguel
Estrada's nomination to serve on the United States Court of Appeals for
the District of Columbia. Miguel Estrada is being treated unfairly by
Senators on the other side of the aisle who continue to practice such
blatant obstructionism in an effort to score petty partisan points.
Indeed, the obstructing Senators are shirking, in my view, their duty
by avoiding a vote on this gentleman, Miguel Estrada, who was nominated
22 months ago by President Bush.
This is not mere payback; it is an escalation in a bitter battle by
the Senate Democrats to keep judges off this court who properly
construe the Constitution and respect the laws duly enacted by the
elected legislature. That is disappointing, and it is dangerous.
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The Senate Democrats' filibuster is a recipe for endless gridlock and
a terrible disservice to the American people and the administration of
justice.
Our protracted debate on the nomination of Miguel Estrada to the
Court of Appeals for the District of Columbia makes clear the
importance of sound reasoning judges on our circuit courts. For
example, look at the recent denial of a rehearing decision by another
circuit court, the Ninth Circuit Court of Appeals. I object to the
decision by the Ninth Circuit Court of Appeals which will strip the
Pledge of Allegiance from classrooms and over 9,600,000 students in
Western United States. This decision is a miscarriage of justice.
The majority opinion lacks a clear reading of the constitutional
intent and the legal precedent, and there is clearly a lack of common
sense. This decision, frankly, is an abuse of power by the majority of
those judges who sit on the Ninth Circuit Court of Appeals.
We all know well the history of our Nation and the fundamental ideas
of freedom, particularly those of religious freedom, which in Virginia
we call the first freedom. It was because of the desire to worship
freely, to escape religious persecution in European countries that many
came to settle in the American Colonies, from Pilgrims to French
Huguenots. From New England to Virginia to South Carolina, many came to
settle in this country to get away from Europe, ruled in large part by
monarchs who served not by any talent, quality, or the consent of the
people, but, as they called it, divine right. That divine right was
generally conferred upon them by the exclusive monopoly of one church.
So there was a co-conspiracy of a monarchy and an exclusive religion.
In the Virginia Colony, it was the Anglican Church that was forced
upon the people. Baptists, in particular, were forced to pay to that
established church. Indeed, when they talk about the Danbury letter to
the Baptists, the Baptists were very happy when Thomas Jefferson was
elected President. If one looks at what is in the Virginia statute of
religious freedom, which was the predecessor of part of the first
amendment of the Bill of Rights in the U.S. Constitution, one gets a
better sense of what religious freedom and the so-called establishment
clause is all about.
I will read from article I, section 16, in the Virginia Constitution
that still remains and, of course, is built upon Mr. Jefferson's
statute of religious freedom which was also involved in the Virginia
Declaration of Rights which became eventually the first amendment to
the Constitution.
It reads:
That religion or the duty which we owe to our Creator, and
the manner of discharging it, can be directed only by reason
and conviction, not by force or violence; and, therefore, all
men are equally entitled to the free exercise of religion,
according to the dictates of conscience; and that it is the
mutual duty of all to practice Christian forbearance, love,
and charity towards each other. No man shall be compelled to
frequent or support any religious worship, place, or ministry
whatsoever, nor shall be enforced, restrained, molested, or
burthened in his body or goods, nor shall otherwise suffer on
account of his religious opinions or belief; but all men
shall be free to profess and by argument to maintain their
opinions in matters of religion, and the same shall in nowise
diminish, enlarge, or affect their civil capacities. And the
General Assembly shall not prescribe any religious test
whatever, or confer any peculiar privileges or advantages on
any sect or denomination, or pass any law requiring or
authorizing any religious society, or the people of any
district within this Commonwealth, to levy on themselves or
others, any tax for the erection or repair of any house of
public worship, or for the support of any church or ministry;
but it shall be left free to every person to select his
religious instructor, and to make for his support such
private contract as he shall please.
That, in my view, is the full historical context, from the founding
documents since Virginia first passed the Statute of Religious Freedom,
of what the first amendment should be.
Obviously, the first amendment of our Constitution is but a few
sentences, but this gives the historical and the legal grounding of the
Statute of Religious Freedom.
We all know well the words written by Thomas Jefferson proclaiming
our independence from the religiously oppressive British monarchy.
These words allowed our young Nation to:
Assume the powers of the Earth, the separate and equal
station to which laws of nature and of nature's God.
These are words that tell all of us, as Americans, that all men are
endowed by their Creator with certain unalienable rights, that among
these are life, liberty, and the pursuit of happiness. These words
still stir our hearts. They inspire us to continue to build that
shining city on a hill, to be that beacon of freedom, religious or
otherwise, for people all around the world.
Our Constitution, the hallowed document, can be summed up by one word
and one idea: Freedom. The Constitution and the institution and the
formation of this Government to protect those God-given rights and
those freedoms states that Congress shall make no law respecting the
establishment of religion.
While some conveniently use this to perpetrate actions such as those
we saw out in San Francisco last week, it is often forgotten that the
Constitution just as clearly states that the Congress shall make no law
prohibiting the free exercise thereof.
I feel confident that the scholarly Miguel Estrada, who was editor of
the Harvard Law Review, would have views similar to the dissent written
by Judges O'Scannlain and Ferdinand Fernandez. As Judge O'Scannlain
notes in his well-reasoned and thoughtful dissent, this decision of the
Ninth Circuit Court is wrong on many levels. It is wrong because
reciting of the Pledge of Allegiance is simply not a religious act, as
the two-judge majority asserts. The decision is wrong as a matter of
Supreme Court precedent as properly understood. The decision is wrong
because it denies the will of the people of California as expressed in
section 52720 of the California education code, and it is wrong as a
matter of common sense.
I trust the Supreme Court of the United States will grant a writ of
certiorari and promptly hear and decide this case. I, of course, hope
they will reverse it. Parenthetically, I support the resolution of
Senator Lisa Murkowski of Alaska expressing support for the Pledge of
Allegiance, and I ask unanimous consent that I be added as a cosponsor
of that measure.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ALLEN. In the realm of public education, the Supreme Court--and
the Presiding Officer of the Senate right now is well aware of
precedent in the various decisions the Supreme Court has made when
dealing in the realm and the issue of public education and prayer, or
the religious tests. There are at least three different but
interrelated tests used to analyze alleged violations of the
establishment clause--in other words, the establishment of a religion.
It is a three-pronged test, first articulated in the case of Lemon v.
Kurtzman, called the Lemon test, and that is to determine whether that
public activity had a primarily secular purpose. Here, the Pledge of
Allegiance is primarily a patriotic event and purpose.
The second test is called the endorsement test. Here, there is no
endorsement of any denomination of any religion. So that test is
passed.
The third test is called the coercion test, and there is no coercion
here for students.
The Supreme Court of the United States has commented that the
presence of ``one nation under God'' in the Pledge of Allegiance is
constitutional. The Supreme Court will have an opportunity to clearly
resolve this because sometimes there are judges who have to be reversed
on many occasions before they understand the plain intent of the law,
of previous opinions and the history of our country.
I will not discuss how the Ninth Circuit erred in the applications of
the facts of this case to the establishment clause, but I do commend to
my colleagues the dissent of Judge O'Scannlain, which I hope will give
guidance to the Justices of the U.S. Supreme Court when they do review
this case.
As a resource, I direct the attention of my colleagues to some
outstanding historical analysis prepared by a gentleman from Texas,
David Barton, and an organization called Wall Builders.
If reciting the pledge is truly a religious act, in violation of the
establishment clause, then so the recitation of our Constitution itself
would be, which refers to the ``year of our Lord'' and our Declaration
of Independence, which
[[Page S3056]]
contains multiple references to God. Our Founders claimed the right to
dissolve the political bands based on the laws of nature and of
nature's God.
The most famous passage, of course, is the ``all men are created
equal'' and they are ``endowed by their Creator with certain
unalienable rights.'' Subsequently, the signatories ``appeal to the
Supreme Judge of the world to rectify their intentions''; our national
motto, which is ``in God we trust''; and the singing of the national
anthem, a verse which says: ``And this motto: In God we trust.''
Furthermore, the Supreme Court, even the Ninth Circuit Court of
Appeals, opens sessions with a call that says, ``God save the United
States and this honorable court.''
There is an undeniable and historical relationship between God and
our Founders and the Government leaders throughout our history. In
fact, it was Congress in 1837, acting on the will of the people, that
authorized the motto ``In God We Trust'' to be printed on our currency.
We can cite the actions of the entire body of Founding Fathers. For
example, in 1800 when Washington, DC, became the Nation's Capital and
the President moved to the White House and Congress into the Capitol,
Congress approved the use of the Capitol Building as a church building
for Christian worship services. In fact, Christian worship services on
Sunday were started at the Treasury Building and at the War Office.
A scant review of the legislative history in States and the Federal
Government and the intent of our Founders, from George Washington to
Thomas Jefferson, lays out the utter absurdity--no; actually, the
arrogance--of this Ninth Circuit Court of Appeals and this decision.
Each of us who has the high privilege to sit in this Chamber is very
well aware of the circumstances by which the phrase ``one nation under
God'' became a part of the pledge in 1954. It was the will of the
Congress, the will of the people, that put it there, and today it is a
will, unfortunately, of a few unelected judges who seek to remove it.
The State of California is not unique in encouraging students to
engage in appropriate patriotic exercise. My Commonwealth of Virginia
has a statute requiring the daily recitation of the Pledge of
Allegiance in every classroom. It is thoughtfully crafted. The Virginia
statute provides that:
No student shall be compelled to recite the Pledge if he,
his parent or legal guardian, objects on religious,
philosophical or other grounds to his participating in this
exercise. Students who are thus exempt from reciting the
Pledge shall remain quietly standing or sitting at their desk
while others recite the Pledge. . . .
As Governor of the Commonwealth of Virginia, I was proud to have been
able to sign into law a commonsense provision to develop guidelines for
reciting the Pledge of Allegiance in public schools in 1996.
While we can go on about this, the point is that the pledge is a
patriotic exercise. Thomas Jefferson, who authored the Statute of
Religious Freedom, had no intention of allowing the Government to
limit, restrict, regulate, or interfere with public religious
practices. He believed, along with the other Founders, that the first
amendment had been enacted only to prevent the Federal establishment of
a national denomination. This patriotic pledge establishes no religious
denomination.
These Ninth Circuit Court judges discredit, in my view, the
judiciary. This is an example of government overreach in a very
different and harmful way. It is judicial activism at its very worst.
It is activism by unelected judges who, through this decision, and
decisions such as this, usurp the policymaking role given to this body
and to the people of the States, the rights that are guaranteed to all
of us and the people in the States by the U.S. Constitution.
Let me take a moment to put this decision into context. The Ninth
Circuit Court of Appeals has a long recent record of issuing decisions
that are clearly out of step with most Americans--I daresay, reality--
and out of the bounds of American jurisprudence.
The court has become famous--maybe I should say infamous--for several
decisions. The Ninth Circuit Court is the most overturned appeals court
in the country. The decisions issued by this court have been reversed
by the U.S. Supreme Court more frequently and by a larger margin than
any other court of appeals in the Nation. In recent years, the reversal
rate has hovered around 80 percent.
In one recent session of the Supreme Court alone, an astonishing 28
out of 29 appeal decisions of the Ninth Circuit Court of Appeals were
overturned--97 percent were overturned.
What is the next decision out of this Ninth Circuit Court of Appeals?
Will they ban the singing of ``God Bless America'' in our schools? Will
they redact our founding documents, some of which are the greatest
documents in all the history of mankind and civilization? Will the
Congress, the Supreme Court, and State legislatures across the land be
prohibited from opening their sessions by saying the pledge because
that somehow might offend the sensibilities of someone watching a
legislative body open with the Pledge of Allegiance?
The fact is, this is not an argument of God or no God. It is not an
argument about separation of church and state. It is not an argument of
the establishment of a religious denomination. Saying the pledge is no
more a religious act than is purchasing a candy bar with a coin that
says ``In God We Trust.''
Let us understand the fact is this, and I think most Americans agree:
The Pledge of Allegiance should remain in our schools and other public
functions. As it is today, it should be a voluntary matter of personal
conscience. On this issue and so many others, the Ninth Circuit Court
of Appeals is out of touch and flatout wrong. This errant decision
clearly points out the need to put commonsense, reasonable, well-
grounded judges on the Federal bench, rather than dangerous activists
who ignore the will of the people of the States, who ignore common
sense, and apparently disagree with or are pitifully ignorant of the
foundational principles of these United States.
This is a wake-up call, a wake-up call for those on the other side of
the aisle who are holding up the confirmation of people like Miguel
Estrada, while at the same time maybe signing on to Senator Murkowski's
resolution or maybe at the same time coming down to the floor to rail
against activist decisions such as the one that came out of the Ninth
Circuit last week.
I have come to this floor many times, as I know the Presiding Officer
has, to advocate for Mr. Estrada. The fact is, he is qualified. He has
earned the unanimous highest rating from the American Bar Association,
the rating that my friends on the other side of the aisle have
previously, on other nominees, described as a gold standard for
judicial nominees.
Mr. Estrada embodies the modern-day American dream that we so fondly
talk about. He, like many others who came to this country in recent
decades, came from a Latin American country. He, like those who came to
Jamestown, VA, in 1607, or in a later year, Cajuns, Irish, Scottish,
German, Scandinavian, Italian, Polish, Korean, Vietnamese, Pakistani,
Indian, Lebanese, Persians, or even my own mother, all came to this
country to seek out a better life. He has overcome tremendous
obstacles. He has worked hard. He has embraced the opportunity that
became available to better himself and found a fulfilling life in
this land of opportunity.
Now Miguel Estrada stands at the precipice of service on an important
DC Court of Appeals. He is ready, qualified, and more than able to take
the next step, and for no other reason than scoring political points
his nomination is being obstructed, delayed, and denied.
Let me say very clearly, those who deny Mr. Estrada a vote by this
body are doing more harm than they realize. For Miguel Estrada and
every other person who believes the American dream can happen, that
shining city on the hill is dimmed today because of the partisan games
taking place in this body. I respectfully encourage those on the other
side of the aisle to take a lesson today. Do the right thing. Work your
will and constitutional responsibilities. Have the gumption to take a
stand and cast your vote.
I have no problem in taking a stand in explaining why I support
Miguel Estrada. For those who are opposed, have the gumption to vote no
and then explain your vote rather than perpetrating this irresponsible,
duplicitous filibuster, which is thwarting the will of the majority of
the Senators.
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Concerning both the Pledge of Allegiance and the confirmation of
Miguel Estrada, the power of the dream and the promise of America is
rooted in one idea: that the direction of our Nation is and will always
be determined by the consent and will of the people. The consent and
will of the people is not being effectuated by the irresponsibility of
a few, whether they be judges on the Ninth Circuit Court of Appeals or
the Senate. Senators need to exercise their responsibilities to advise
and consent on nominees.
I hope and pray the U.S. Supreme Court will reverse this egregious
decision to ban the Pledge of Allegiance in the Western States of our
country. I also hope and pray that Senators will exercise their duty,
take a stand, vote yes or no, explain it to their constituents, and the
will and the consent of the majority of the people of this country will
be effectuated.
I close by saying, God bless America.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, the procedure in the Senate, one of long
standing, is that we as Senators have the right to keep what we believe
is our ability to have our voices heard. In this instance we have said
now for some time, if the majority wants to go forward on Miguel
Estrada, we should have him come back before the Judiciary Committee,
answer questions, and with him bring the memos from the Solicitor's
office. They have been supplied on other occasions. It has been
mentioned in the Record specifically how it was done.
I am not here, though, to debate the qualifications of Miguel
Estrada. I am here to talk about my becoming a vocal critic of the
American Bar Association rating process for judicial nominees. I have
to say, frankly, I have never been a big fan of the American Bar
Association. I know they do some good things. I have lost significant
respect for the operation of rating judges. I do this not in any way to
denigrate Miguel Estrada. My statement I make today is in no way to
denigrate Miguel Estrada.
I have said before, Miguel Estrada graduated from Harvard. He could
have graduated at the bottom of his class at Harvard and he still would
be one of the more credible, more qualified people to go to law school.
It is hard to get into Harvard. But he did not graduate at the bottom.
He was one of 71 editors they had at the Law Review, and he was one of
their better students. This is in no way to denigrate the academic
qualifications of Miguel Estrada. It is to talk about and to criticize
the American Bar Association.
What the Estrada case has done is lifted the veil on how the ratings
of the American Bar Association are made, revealing partisanship that
has no place in a process that should be as impartial as the judges it
helps to select. My criticism goes beyond the specific Estrada case. It
demonstrates that we cannot rely on the American Bar Association to
give us impartial ratings.
This may surprise some, but I will say I support the Republicans'
stand on what should be done with the American Bar Association as it
relates to judges. I think we can and should take them out of the
process. I don't think we need them. I am a convert to that.
Some asked why didn't I say I felt that way when Republicans did it
initially. I didn't have enough knowledge to do that. I recognize I was
wrong.
So we have this funnel for all Presidential nominees, and when we
were a country of a few million people, that funnel was able to put
everybody through very quickly. But the bigger the country becomes and
the more judges we authorize, the more Cabinet officers, the more
subcabinet people we authorize, this funnel becomes clogged.
The ABA is only one additional way of clogging that as it relates to
judges. I feel we should get rid of them.
The Estrada case most starkly reveals that the ABA process is fatally
flawed, that its gold seal is, indeed, tarnished. The gold seal of
impartiality has been replaced by a stealth seal of partiality. In my
view, the ABA rating should not be relied on until the process is
fixed.
Unfortunately, as I will discuss in a moment, the ABA is defending
this flawed process and its inherently flawed recommendation for Mr.
Estrada. It defends both in the face of a case that very clearly
violates its own conflict of interest rules.
As many of my colleagues know, the ABA delegates that review of
potential nominees to one individual ABA member of the ABA committee
for each circuit. In effect, one person is given responsibility to
recommend to the committee this person's qualifications. That
individual interviews colleagues who know the nominee, evaluates each
nominee, and reports to the ABA with a recommended rating for the
nominee.
The ABA has three ratings: Not qualified, qualified, and well
qualified. Mr. Estrada received a well-qualified rating. The ABA
Committee member who recommended Mr. Estrada for that rating was Mr.
Fred Fielding. Given the sensitive nature of these recommendations, ABA
rules specifically prohibit ABA committee members like Mr. Fielding
from engaging in partisan activities while working for the ABA. The
rules note that:
[T]he integrity and credibility of its process and the
perception of these processes are of vital importance.
The ABA rules go on to implement this important principle by
providing:
No member of the Committee shall participate in the work of
the Committee if such participation would give rise to the
appearance of impropriety or would otherwise be incompatible
with the purposes served and functions performed by the
Committee.
The rules then get even more specific:
As a condition of appointment, each member agrees while on
the Committee and for at least one year thereafter not to
seek or accept [a] federal judicial appointment and agrees
while on the Committee not to participate in or contribute to
any federal election campaign or engage in partisan political
activity. Partisan political activity means that a member,
while on the Committee, agrees not to host any fund-raiser or
publicly endorse a candidate for federal office. . . .
The rule concludes:
In view of the confidence reposed in the Committee and the
vital importance of the integrity and credibility of its
processes, these constraints are strictly enforced.
These rules were not enforced in the case of Mr. Estrada. Mr.
Fielding violated them. While on the ABA Committee, Mr. Fielding played
a high-level role in President Bush's transition team. He helped the
President and the White House counsel clear the President's highest
level executive branch appointments in 2000 and 2001. Certainly these
are far more partisan roles than hosting a fund-raiser or endorsing
candidates for Federal office.
While on the ABA Committee, Mr. Fielding accepted an appointment from
President Bush to an international center that settles trade dispute, a
job that pays $2,000 a day plus expenses; $2,000 a day, $14,000 a week,
that's a lot of money.
While on the ABA Committee, Mr. Fielding helped co-found the partisan
Committee for Justice to run ads against Senators who oppose Mr.
Estrada. Mr. Fielding's partisan activities, in fact, span back
decades. He served as deputy counsel to President Nixon. He served on
the Reagan-Bush campaign in 1980, the Thursday night group. He served
on the Lawyers for Reagan advisory group, the Bush-Reagan transition in
1980-1981. He served as the conflict of interest counsel, ironically
enough.
He served in the Office of Counsel to the President, as deputy
counsel to President Reagan. He served on the Bush-Quayle campaign in
1988; as campaign counsel to Senator Quayle; as Republican National
Conventional legal advisor; as campaign counsel to Senator Quayle; and
as deputy director of the Bush-Quayle transition team. He served on the
Bush-Quayle campaign in 1992; as senior legal advisor and conflict of
interest counsel to the Republican National Committee. He served as the
legal advisor to the Dole-Kemp campaign in 1996. Just from these
statements it would appear he should understand something about
conflict of interest.
The ABA couldn't have picked a Republican with better partisan
credentials than Mr. Fielding. And Mr. Fielding didn't just give Mr.
Estrada a well-qualified rating, every rating Mr. Fielding has handled
for President Bush to the D.C. Circuit has resulted in a ``well-
qualified.'' All of those ratings, in my view, should be held suspect.
By contrast, Mr. Fielding did not give any of President Clinton's
nominees to the D.C. Circuit--nominees who had similar qualifications
as Mr. Estrada--a well-qualified rating.
[[Page S3058]]
What has the ABA had to say about all of this? On Thursday, February
26, 2003, the head of the ABA, Alfred P. Carlton, Jr. sent a letter to
Senators Frist and Daschle. I was deeply disappointed by its content.
In that letter, the ABA declares that our criticism of Mr. Estrada's
case is ``unfair'' The ABA goes on to say that we seek to:
Impugn the integrity of members of the Committee and of its
process during the current Senate debate. . . .
I was also a little disappointed that Mr. Carlton failed to tell me
about this letter when he met privately with me a day after the letter
had been sent. I didn't ask for that meeting. He asked for it.
In that meeting, I strongly encouraged the ABA to strengthen its
rules and disavow the process that led to Mr. Estrada's recommendation
and possibly scores more of tainted recommendations. Mr. Carlton told
me he would consider such a step.
I also encouraged Mr. Carlton to write to Senators Frist and Daschle
and tell them that the ABA would clean up its act. Mr. Carlton also
told me he would consider sending such a letter.
He not only failed to mention that just the day before he had sent
the leaders a letter, but also that the letter was a strongly worded
defense of an indefensible process.
If the head of the ABA cannot be straight with me, what hope do we
have for this process? The letter he sent the leaders reveals that we
shouldn't have much hope.
The ABA says in the letter that we have been critical of Mr.
Fielding's role based solely on the fact that he co-founded the
Committee for Justice. The ABA letter implies that this fact is not
problematic because the Committee for Justice was formed after Mr.
Fielding made his glowing recommendation of Mr. Estrada. The letter
fails to mention several things: First, that even this post-Estrada
activity violates ABA's clear rules. Second, that Mr. Fielding was
engaged in the Bush transition partisan activities at the time he was
making his Estrada recommendation. The letter concludes that our
attacks on this process are ``baseless'' . . .
If this is so, then the ABA's own rules are baseless. The ABA cannot
claim that our criticism of the way Mr. Estrada's recommendations was
handled is baseless when that recommendation violates the ABA's own
rules. Is the ABA disavowing its own rules? Does it find them baseless?
Conflict of interest rules such as the ones that ABA has adopted are
not just designed to prevent the actual exercise of a bias in a way
that influences an outcome. These rules are also adopted to prevent the
appearance of a conflict. Preventing the appearance of impropriety is
important to assure the Senate and the American people that the process
of evaluating our judges is as impartial as people expect judges to be.
Before we rely upon the judgment of the ABA in evaluating nominees
for lifetime judicial appointments, the ABA should not just pledge to
enforce existing rules but should strengthen those rules. They should
revise them to provide that individuals so heavily steeped in partisan
activities not be permitted to serve in these crucial roles at all.
That is, the rules should be expanded to prevent partisans from passing
judgment on judicial nominees. This shouldn't be limited merely to the
time period during which the individual is serving on the ABA
Committee.
It strains credulity to believe that someone who occupied partisan
roles in the last several Republican administrations could be viewed as
impartial in this case. If Mr. Fielding had started the committee for
Justice after he left the committee would the specter of bias really be
any less? Mr. Fielding moved seamlessly from passing judgment on Mr.
Estrada to becoming a leading advocate for his nomination.
The fact that the advocacy followed the judgment doesn't render the
judgment any less suspect. Much has also been made of the fact that the
full ABA Committee endorsed Mr. Fielding's view of Mr. Estrada's
qualifications. This doesn't cleanse the Fielding recommendation of its
taint. Mr. Fielding is an important person, a powerful man.
Mr. President, the hour of 12:30 is nearly here. I guess he left--I
saw my friend from Kansas here. I just have a couple of more minutes
and it will run past 12:30. I ask unanimous consent I be allowed to
finish my statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. It is impossible for us to know one way or another whether
members of the committee felt pressure to endorse Mr. Fielding's view.
It is certainly possible. And that possiblity--like Mr. Fielding's
clear conflict of interest--is the problem in this case.
There are thousands of lawyers in the United States, thousands who
are not steeped in partisan politics--Democrat of Republican. That is
every obvious because the poorest contributors to campaigns of any
group in America are lawyers. So most of them are not involved at all
in politics.
We rightly cast a skeptical eye on judicial nominees who are heavily
involved in partisan activities. We do that because we want those who
would define the breadth and depth of our constitutional protections to
be impartial and without bias.
Regardless of what side of the aisle you are on--Democrats or
Republican--we should be able to agree that those who occupy the most
partisan roles of either party should not be part of the ABA process.
This does not, in the words of the ABA, impugn those partisans. It is
to say that the fact of those partisan activities creates a clear
appearance of improperity. It is that appearance that is impossible to
avoid. It is that appearance--and the doubt that it creates in the
underlying process--that is the heart of all conflict of interest
rules.
This issue goes well beyond the nomination of Miguel Estrada. His
nomination has simply brought to light a fatally flawed process that
should not be relied upon in the case of any of our nominees.
As I have said before, I now agree with the majority that the ABA
should be out of the process. I hope that the ABA will rethink the
staunch defense it made of its flawed process and flawed
recommendations. I hope that the head of the ABA will not continue to
be disingenuous when he meets with Members privately. Perhaps then the
ABA would merit the trusted role that it has long held by that, in my
view, it no longer deserves.
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