[Congressional Record Volume 149, Number 35 (Wednesday, March 5, 2003)]
[House]
[Pages H1614-H1617]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               OPPOSING THE NOMINATION OF MIQUEL ESTRADA

  The SPEAKER pro tempore (Mr. Bishop of Utah). Under the Speaker's 
announced policy of January 7, 2003, the gentleman from Texas (Mr. 
Gonzalez) is recognized for the balance of the minority leader's hour, 
32 minutes.
  Mr. GONZALEZ. Mr. Speaker, it is a great honor again to appear before 
the House on this most important and weighty topic.
  The nomination of Mr. Estrada means a great deal to all Americans, 
but especially to the minority communities. The President should be 
commended and applauded for seeking diversity in all departments, 
agencies and branches of government. To the extent that he actually 
accomplishes that is the true question that lies before us in the 
Miguel Estrada nomination.
  I want to start off with, I guess, my understanding of how Federal 
judges gain their positions, which in many ways are the most powerful 
positions held by any public official. To start with, it is a lifetime 
appointment. There is no election, there is no review. That individual, 
once appointed, will remain there for an indefinite period of time.
  Constitutionally, the President of the United States does have the 
authority, the duty and the responsibility to nominate individuals to 
the Federal bench, all the way up to the Supreme Court of the United 
States. Constitutionally, though, that nomination, not the appointment, 
but the nomination itself, because there is never an appointment 
actually until the Senate acts, and that other body under the 
Constitution of the United States has the power to advise and consent, 
without which the nomination would not proceed to the appointment and 
finalization.
  The scheme of things and the brilliance of our Founding Fathers as 
reflected in this document is all part of a checks and balances scheme. 
That is, we have three equal branches of government. We have the 
legislative branch, obviously, the executive branch and the judicial 
branch.
  Many will argue which is the most powerful of all those branches. My 
own opinion is that it is the judicial branch. The reason I say that 
is, in the final analysis, they actually interpret the laws that we 
pass in this Chamber. They actually interpret the laws that we pass in 
this Congress, and they apply the law.
  So the very will of the people as expressed through their elected 
representatives could be frustrated by a judicial branch that did not 
give life and meaning and substance to what we do in the legislative 
branch. The executive branch proposes, obviously, and leads in great 
measure, and then we obviously will legislate. But none of it will ever 
bear fruit without the judicial branch.
  It is one of the most important duties that the legislative branch 
has as part of the checks and balances system to review these nominees. 
My colleague from California, I think, put it very well, it is a job 
interview. It a little more sophisticated. There is pomp and 
circumstance, it is ceremonial in nature, but that particular hearing 
really is a job interview. The advise and consent function is a job 
interview, no more and no less. Important, yes.
  There is an individual who, for whatever reason, seeks this 
nomination and appointment. It seems only fair that those 
qualifications of that individual will be subject to scrutiny. So we 
will have a formal hearing in the other Chamber.
  It is so important that anyone appearing in this process that will 
subject himself or herself to that process be forthcoming. You ask, 
well, what is relevant, what would be relevant that one would ask 
someone who aspires to put on those black robes and interpret and apply 
the laws of the United States, statutory and constitutional?
  You can have a good faith disagreement as to what might be 
appropriate or not, but we have not had that debate. No one has really 
said that the questions posed to Miguel Estrada are inappropriate. No 
one has said that these questions should not be answered. They have not 
been answered, but no one has said these are not relevant to judging 
this individual's qualifications to hold this particular

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judgeship, which truly is the second most powerful court in the United 
States of America, second only to the Supreme Court of the United 
States. We have never gotten to that.
  The duty and responsibility of advise and consent has to be done 
knowledgeably and informed, and that is where we are today. We are at 
an impasse, because we have certain individuals that are saying we do 
not have the necessary information in order to fulfill our 
constitutional duties, and that is what this argument is all about.
  I will go into detail, into the questions that the Congressional 
Hispanic Caucus were able to pose to Mr. Estrada, and I believe we 
probably got more information than anybody else that has ever 
interviewed Mr. Estrada for this particular position.
  But this job interview, if you are interviewing somebody, the first 
thing you are going to ask is what do you know about this job that you 
seek? Is that so unusual? In this case you would say, what is your 
judicial philosophy. What is your understanding of the workings of the 
court? What is your understanding of this third branch of government? 
Is there something so foreign, so inappropriate, so irrelevant, so 
immaterial to that question? Of course not.
  But you would be surprised that we have not really had anything 
definitive in response to the question of that nature, which I think 
goes to the very heart of how one views himself or herself in a 
particular role. But in the bigger picture as a member of a co-equal 
branch of government, how you view the job, how you view it, but also a 
historical perspective.
  Are we holding a minority to a higher standard or a different 
standard than anyone else? No. The President of the United States has 
indicated, and in this particular appointment has made it very clear, 
that this is important to the Hispanic community and important to the 
entire United States because it represents diversity. That wonderful 
word, diversity. But, standing alone, it has no meaning.

                              {time}  1600

  Diversity means that an individual brings a particular viewpoint or 
experience which enriches that particular job, that particular 
environment, those particular duties and responsibilities. Otherwise, 
what is diversity all about? We seek diversity because someone brings a 
different viewpoint or life experience to round out and make more full 
and complete that environment; in this case, the judicial branch.
  This is not to say that a minority nominee had to have suffered 
through extreme poverty and hardship; has to be completely fluent in a 
foreign language, Spanish. No, not at all. It does not mean they have 
to be a Democrat or a Republican, a liberal or a conservative.
  What it does mean, though, is that they have an appreciation for the 
Hispanic or Latino experience in the United States of America and the 
direct roles that the courts have taken in shaping that experience for 
the good and for the bad.
  Where are we today? History is prologue, and we have to have an 
appreciation for what the legal system has meant to minorities in this 
country. No matter how well intentioned a chief executive may have 
been, no matter how well intentioned a legislature may have been, it 
has been the courts, in the final analysis, that have really provided 
the equal rights, the civil rights, the opportunities to minorities in 
this country of ours. It looms large, larger than it ever has, because 
we finally are saying that all branches of government should reflect 
the diversity of this great country. That is all we are asking here.
  So it is interesting that when the Congressional Hispanic Caucus 
interviewed Mr. Estrada that we did ask these questions. We did ask him 
how he viewed his role as a judge by the fact that he is a Hispanic and 
was touted as a Hispanic nominee by President Bush. The response was 
that it would be irrelevant.
  To a certain extent, I understand that response. It does not 
necessarily define one, it should not limit one; but, by the same 
token, it should not render one irrelevant. What one brings to the 
table is an appreciation for the roles of the courts in the minority 
communities. One did not have to experience it oneself. One did not 
have to be a plaintiff, but surely one understands the landmark cases 
on which our communities rely day in and day out to make sure that the 
children in our homes are extended equal opportunity in the schools and 
for health care, jobs, on and on. That did not happen.
  If someone comes in and we are interviewing him for a job, we would 
think there was a tremendous interest and desire for that job; that 
somehow they ended up before us because they were seeking it. When we 
asked Mr. Estrada about his aspirations and desires, career 
aspirations, he said he did not seek this position; that they sought 
him, that the administration sought him out.
  Standing alone, that is fine, but it is cumulative in nature. Why did 
the administration go out on such a search when we have many qualified 
Hispanics out there who would do anything for this type of nomination, 
highly qualified people, experienced, with judicial experience?
  Mr. Estrada does not have any judicial experience; but on that alone 
I would stand here and tell Members that I do not think it is an asset, 
but I do not think it should be determinative of whether he would 
become a Federal judge or not. We have many judges that have had no 
judicial experience who, seeking appointment, are appointed and 
confirmed, and have made wonderful jurists.
  But it is cumulative, because there is no record there. When an 
individual is not forthcoming in responding to questions that are posed 
that are relevant and material, and there is no record, no judicial 
decisions and so on, what do we have?
  We do have memoranda that were prepared by this particular nominee, 
but they are not going to be released for review by Members of the 
other Chamber. There is not enough information at this point for them 
to truly, responsibly, and on an informed basis fulfill their duty of 
advise and consent.
  But the specific questions we did ask Mr. Estrada, I think, are very 
telling. There should be some understanding of that great body of law 
that has impacted minorities more so than anyone else. That was not 
present. There has to be an appreciation for the legal difficulties 
that minorities still face in this country, because that is a fact. It 
is a sad fact, but one that we address day in and day out in our 
courtrooms. That was not present.
  Based on that interview of over an hour, the Congressional Hispanic 
Caucus unanimously wrote to the committee in the other Chamber saying 
that we would oppose Mr. Estrada's nomination to the circuit Court of 
Appeals for the District of Columbia. We feel more strongly today than 
we did then. That was back in June and July of last year. There has 
been no new information that addresses any of the concerns of the 
caucus; and we do represent the minority communities, Latino minority 
communities, in this country. The caucus is comprised of 20 of the 24 
Latino Members of this House.

  Why should we know an individual's philosophy and understanding as it 
relates to the third branch of government, the judicial branch? It is 
not complicated. All judges take an oath that they will uphold the 
Constitution of the United States and such. All judges will say they 
will be fair and impartial. All judges say they will strictly interpret 
the Constitution and the statutes, and follow the common law to the 
extent that it has been codified one way or the other. That is nothing 
new. They all say that.
  But the truth of the matter is that judges are human beings. They are 
the sum total of their life experiences and their education. When they 
discuss that judicial philosophy, we learn a great deal. We are not 
asking them how they will rule on a case, because that would be truly 
improper.
  Felix Frankfurter said this: ``Law touches every concern of man. 
Nothing that is human is alien to it.'' Judges have tremendous power. 
They have tremendous discretion. They have powers of logic and 
rationale, deductive reasoning, and interpretation and application of 
the law. If it was a simple matter of opening the law book or reading 
the case and reaching a conclusion, then we would have machines simply 
judging all cases; but there is discretion, and there are varying 
degrees of interpretation and application.
  The President of the United States today enjoys that office as a 
result of a

[[Page H1616]]

five to four Supreme Court decision. If the law was so simple and the 
facts were so clear, how could we have five to four decisions? Because 
there is discretion, because there are different philosophies and 
views.
  What we are hoping is that a judge will keep an open mind on an 
issue. That is what we seek in this particular nomination. Remember, 
and I will say it again, as Justice Frankfurter once said, ``Law 
touches every concern of man. Nothing that is human is alien to it.'' 
The judge is human, and what he does touches every activity of our 
lives.
  The Circuit Court of Appeals for the District of Columbia is a 
lightning rod. It will hear cases that will resonate and affect 
individuals throughout the United States, more so than any other 
circuit court, if Members understand the scheme of the circuit courts, 
because jurisdictionally, venue will lie with them when it comes to 
major decisions regarding governmental policy, the execution and 
implementation by the regulatory agencies, the departments of our 
government. This is a most important nomination and appointment 
process, and we must not fail to fulfill our duties. That is what this 
debate is all about. Some have cast it in some terrible terms.
  When I was first elected and I was there with some of my fellow 
freshmen in the back, we all in our previous lives had been lawyers. I 
had been a State district judge, and we had a former district attorney 
and another prosecutor. We were talking about what a great honor it is 
to serve in the legislative branch, but we were wondering which of the 
three branches of government was the most powerful.
  I was outnumbered. My dear colleague, the gentleman from Oregon, and 
my dear colleague, the gentleman from Kansas, pointed simply to the 
fact that this House appropriates. We hold those strings to that money 
bag; and if we wanted to, we could simply starve another branch of 
government, if we wanted to.
  That is not exactly true, by the way. When it comes to the courts, 
there is something referred to as the ``inherent power of the courts.'' 
It is understood that, by mandate and fiat, a court can order what it 
takes for it to survive. I am not sure on the Federal level, because we 
ran into this on the State level, whenever we had commissioners or 
legislators on the State level and county level that would not fund the 
courts properly for many reasons. The inherent power of the court is 
that it will not depend financially on another branch of government for 
its existence. So I was telling them, take that argument away.
  Let us go to the next one. I earlier touched on that. It does not 
matter what the President may propose in his agenda, it does not matter 
what we adopt in the House or in the Senate, if it is well intended and 
it reflects the will of the people, because we were properly elected; 
but it will be an appointed individual who will breathe life into our 
legislation, that will interpret it and will apply it, who will decide 
whether what we have done in this Chamber is constitutional or 
unconstitutional.
  They will pass judgment on the legitimacy of our actions in this 
body. As a matter of fact, they will also determine whether someone 
will sit in this body. They will determine how our districts are 
configured. They will determine who is eligible to vote. They will even 
determine who has won an election.
  I still like to think that I won that debate; but if we ask my 
colleagues, I believe they still believe that the strongest and most 
powerful branch of government remains the legislative. I do not share 
that. We could be stopped in our tracks today by a ruling from a 
Federal court. We could be stopped in our tracks today by a ruling from 
the Supreme Court of the United States.
  That is as it should be. This Nation is really about the rule of law 
and not of man. We have heard that often. What do we mean by that? Let 
us harken back to December of 2000, when the Supreme Court ruled, based 
on Florida statute and the Constitution of the United States of 
America, that the winner in essence would be George Bush and that he 
would ascend to the Presidency.
  If that does not demonstrate what power the courts have in this 
country, I have no idea what would be a better example.
  But that is the issue before us today. That is why our Founding 
Fathers, in the scheme of our constitutional system, said we cannot let 
one branch really dictate how the other is going to be composed. Should 
we have the executive branch independently determine what a third 
branch of government will look like, the judicial branch? The answer 
was no. We will bring in the legislative branch, one of the chambers, 
to advise and consent. Checks and balances. It has served us well. It 
has served us well when the nominees are forthcoming in answering 
questions that are relevant and material to their performance. That is 
the argument today. That is how we are framing this debate, unlike many 
others out there.

  I want to end this as far as describing what is going on and what is 
really at stake. This is not an attack, this is not a criticism, of an 
individual's integrity or character; that is not the issue. It is a 
given that anyone nominated by the President of the United States to a 
Federal bench is a man or woman of integrity and character. It is a 
given that anyone nominated to the Federal bench by the President of 
the United States has had a good education, got out of law school, 
passed the bar, and distinguished himself or herself in private 
practice or in Federal service or State or county service.
  Those are givens. Let us expect that. The people expect that. We have 
the best and the brightest available, so let us take them.
  But where we start drawing that line, just because you are bright, 
you graduated from law school, passed the bar and such, and you were 
successful in your profession does not mean that you will make a good 
judge. I guarantee Members, talk to any practitioner out there. There 
is judicial temperament, there is understanding of the role, there is 
relevancy, there is history, all combined.

                              {time}  1615

  And that is where we find ourselves today with this particular debate 
and it is a legitimate one. And we should be taking the high road 
rather than casting aspersions as certain individuals have. Let us not 
politicize this. Let us all meet the challenge of our responsibilities 
and duties under the Constitution. That is what we should be doing.
  There should not be one nominee for any bench, whether it is a 
municipal court, a county court, a district court or any State court, 
or on the Federal level, that does not understand what I am about to 
read. There is a wonderful book ``The Fixer'' by Bernard Malamud. It 
takes place in Russia. And we have an individual who was of the Jewish 
faith, who is basically a handy plan. He is a fixer. He fixes all these 
things. He ventures out of his small town to strike out on a new 
adventure to improve his life, and he is wrongly accused of a crime, 
and he is imprisoned with no hope, no hope that he is going to get any 
fair treatment.
  The state actually investigates you and the chances that the state is 
going to be impartial and fair are barely nil, but there is this 
investigator person who takes a great interest in the life of this man 
and wants to exonerate him because he is truly innocent, and this man 
does not understand why someone would take such an interest in his 
life. And this is what this government official investigator, 
prosecutor, whatever you want to call him. This is what he tells that 
prisoner behind those bars:
  ``There is so much to be done that demands the full capacities of our 
hearts and souls, but truly where shall we begin? Perhaps I will begin 
with you. Keep in mind that if your life is without value so is mine. 
If the law does not protect you, it will not, in the end, protect me. 
Therefore, I dare not fail you. And that is what causes me anxiety, 
that I must not fail you.''
  This is what this nomination is all about. Individuals that will be 
nominated to courts, such as the Circuit Court of Appeals for the 
District of Columbia, need to understand the essence of this quote, the 
essence of this lesson here, and that is that the world is much bigger 
than all of us, but still part of us, and that our individual 
experience is brought to bear every day and that we should have some 
sort of understanding of the leadership of our role when we put those 
black robes on, the experience of individuals that come before us, 
especially minorities. For if

[[Page H1617]]

you protect and understand the rights of the minority, the majority 
will always be well served.

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