Congressional Record, Volume 149 Issue 35 (Wednesday, March 5, 2003)

[Congressional Record Volume 149, Number 35 (Wednesday, March 5, 2003)]
[Senate]
[Pages S3118-S3128]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page S3118]]
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 assistant legislative clerk read the nomination of Miguel A.
Estrada, of Virginia, to be United States Circuit Judge for the
District of Columbia Circuit.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, during the course of the debate on Miguel
Estrada, there have been many serious misrepresentations of the record
on Mr. Estrada. I want to address in some detail one of the more
serious distortions which concerns the answers Mr. Estrada gave during
his extensive hearing, one of the longest hearings for a circuit court
of appeals nominee, to questions members of the Judiciary Committee
asked him.
The charge being leveled against Mr. Estrada is that he did not
answer questions put to him in general and did not answer questions
about his judicial philosophy in particular. That charge is pure bunk.
It is important to remember the circumstances under which this
hearing took place. The hearing was held on September 26, 2002. It was
chaired by my Democratic friend, the senior Senator from New York, Mr.
Schumer. It lasted all day, which was unusual in and of itself. Both
Democratic and Republican Senators asked scores of questions which Mr.
Estrada answered. If any Senator was dissatisfied with Mr. Estrada's
answers, every member of the committee had the opportunity to ask Mr.
Estrada followup questions, although only two of my Democratic
colleagues did.
Now, a number of the questions Mr. Estrada was asked sought directly
or indirectly to pry from him a commitment on how he would rule in a
particular case. Previous judicial nominees confirmed by the Senate
have rightly declined to answer questions on that basis, just as Mr.
Estrada did. Virtually every Clinton nominee refused to answer
questions about how they would decide cases or what they would do in
certain circumstances. I will give some examples.
In 1967, during his confirmation hearing for the Supreme Court,
Justice Thurgood Marshall responded to a question about the fifth
amendment by stating:

I do not think you want me to be in a position of giving
you a statement on the fifth amendment and then if I am
confirmed and sit on the court when a fifth amendment case
comes up I will have to disqualify myself.

During Justice Sandra Day O'Connor's confirmation hearing, the
Senator from Massachusetts, Mr. Kennedy, the former chairman of the
Judiciary Committee, defended her refusal to discuss her views on
abortion. He said:

It is offensive to suggest that a potential Justice of the
Supreme Court must pass some presumed test of judicial
philosophy. It is even more offensive to suggest that a
potential Justice must pass the litmus test of any single
interest group.

Senator Kennedy was concerned perhaps Justice O'Connor might possibly
have difficulty with the conservative side or the pro-life side because
she may have been pro-choice. The fact is nobody really knew, and there
were some concerns about that, but Senator Kennedy was right when he
said:

He was right then. But why is there today a different standard for
Miguel Estrada? Why the comments and remarks by some on the committee
who are saying Mr. Estrada should have answered these types of
questions?
Likewise, I will give another. Justice John Paul Stevens testified
during his confirmation hearing for the Supreme Court:

I really don't think I should discuss this subject
generally, Senator. I don't mean to be unresponsive but in
all candor I must say there have been many times in my
experience in the last 5 years where I found that my first
reaction to a problem was not the same as the reaction I had
when I had the responsibility of decisions and I think that
if I were to make comments that were not carefully thought
through they might be given significance that they really did
not merit.

It was an excellent answer, but it was basically the same answer that
Miguel Estrada gave to similar questions, and that almost every other
nominee of Democrat and Republican administrations, since I have been
on the committee, have given.
Why the double standard for Miguel Estrada? Why are we expecting him
to answer questions that we did not expect leading Democrat judges, or
other leading judges, to answer? Justice Ruth Bader Ginsburg, now
sitting on the Supreme Court, also declined to answer certain
questions, stating: Because I am and hope to continue to be a judge, it
would be wrong for me to say or to preview in this legislative chamber
how I would cast my vote on questions the Supreme Court may be called
upon to decide. Were I to rehearse here what I would say and how I
would reason on some questions, I would act injudiciously.
Like these previous nominees, all of whom the Senate confirmed, Mr.
Estrada refused to violate the code of ethics for judicial nominees by
declining to give answers that would appear to commit him on issues he
will be called upon to decide as a judge. Again and again, he provided
answers in direct response to questions that make his judicial
philosophy an open book. I will share some specific examples.
Responding to a question to identify the most important attribute of
a judge, Mr. Estrada answered that it was to have an appropriate
process for decision-making. That, he said, entails having an open
mind, listening to the parties, reading their briefs, doing all of the
legwork on the law and facts, engaging in deliberation with colleagues,
and being committed to judging as a process that is intended to give
the right answer.
Now, these are not extreme views. I do not think we could ask more
from any nominee for a judgeship.
When asked about the appropriate temperament of a judge, he responded
that a judge should be impartial, open minded, and unbiased, courteous
yet firm, and one who will give ear to people who come into his
courtroom.
These are the qualities of Miguel Estrada. He testified that he is
and would continue to be that type of a person who listens with both
ears and who is fair to all litigants.
Mr. Estrada was asked a number of questions about his views and
philosophy on following legal precedent. Let me highlight a little of
those exchanges.
Question:

Are you committed to following the precedents of higher
courts faithfully and giving them full force and effect even
if you disagree with such precedents?

Answer:

Absolutely, Senator.

Question:

What would you do if you believed the Supreme Court or the
court of appeals had seriously erred in rendering a decision?
Would you apply that decision or would you use your own
judgment of the merits or the best judgment of the merits?

Answer:

My duty as a judge and my inclination as a person and as a
lawyer of integrity would be to follow the orders of the
higher court.

Question:

And if there were no controlling precedent dispositively
concluding an issue with which you were presented in your
circuit, to what sources would you turn for persuasive
authority?

Answer:

In such a circumstance, my cardinal rule would be to seize
aid from anyplace where I could get it, related case law,
legislative history, custom and practice and views of
academics on analysis of law.

Pretty good answers. These are better answers than most of the
judgeship nominees who have come before the committee over the last 27
years.
These exchanges illustrate clearly Miguel Estrada's respect for the
law and his willingness and ability to faithfully follow the law. He
further testifies in response to other questions: I will follow binding
case law in every case, even in accordance with the case law that is
not binding but seems instructive on the area, without any influence
whatever from my personal

[[Page S3119]]

view I may have about the subject matter.
This is what we expect good judges to do. I can see no reason anyone
would be opposed to a nominee who promised to follow the law.
When asked about the role of political ideology and the legal
process, Mr. Estrada replied with a response that, in my view, was
entirely appropriate and within the mainstream of what all Americans
expect from their judiciary. He said: Although we all have views on a
number of subjects from A to Z, the first duty of the judge is to self-
consciously put that aside and look at each case with an open mind and
listen to the parties, and to the best of his human capacity to give
judgment based solely on the arguments on the law. I think my basic
idea of judging is to do it on the basis of law and to put aside
whatever view I might have on the subject, to the maximum extent
possible.
Pretty good answer. Why isn't that answer good enough for my
colleagues on the other side? It is better than most answers given by
their nominees when their President controlled the White House and the
nomination process.
Mr. Estrada was asked about his views on interpreting the
Constitution. Mr. Estrada was forthright and complete in his responses.
For example, in an exchange regarding the literal interpretation of the
words of the Constitution, Mr. Estrada responded:

I recognize that the Supreme Court has said on numerous
occasions, in the area of privacy and elsewhere, that there
are unenumerated rights in the Constitution, and I have no
view of any sort, whether legal or personal, that would
hinder me from applying those rulings by the court. But I
think the court has been quite clear that there are
unenumerated rights in the Constitution. In the main, the
court has recognized them as being inherent in the right of
substantive due process and the liberty clause of the 14th
amendment.

That is a pretty good answer, a lot better answer than many of the
Clinton nominees made, although I am not meaning to criticize them. It
is just that there is a different standard being applied here, a double
standard. They were not expected to give these great answers he has
given, that my colleagues on the other side have said he didn't give.
Read the record. It is replete with decent, good, honorable, and
intelligent answers to their questions.
Mr. Estrada was asked questions about the appropriate balance between
Congress and the courts. His answers made clear his view that judges
must review challenges to statutes with a strong presumption of the
statute's constitutionality. For example, in responding to a question
about environmental protection statutes he stated:

Congress has passed a number of statutes that try to
safeguard the environment. I think all judges would have to
read those statutes when they come to court with a strong
presumption of constitutionality.

At the same time, he recognized that as a circuit court judge he
would be bound to follow the precedents established by Lopez and other
Supreme Court cases. Now, some of my colleagues do not like Lopez and
they wish he would be an activist judge and not follow it. But he said
he would be bound by it, as he would the other Supreme Court
pronouncements. That is all you can ask of a nominee.
Why the double standard? Why is it that Miguel Estrada is being held
to a different standard than the Clinton judgeship nominees were?
Mr. President, it is clear from the record that Mr. Estrada did
answer the questions put to him at his hearing. His judicial philosophy
is an open book. But if my Democratic colleagues are still inclined to
vote against him, as misguided as I believe that choice to be, they
should do so in an up-or-down vote. Vote for him or vote against him or
do whatever your conscience dictates. Just vote. And stop this unfair
filibuster. It is unfair.
Let me make one more point. Even if my colleagues believed, despite
the facts and precedent, that Mr. Estrada should answer more questions,
well, they have had that chance. And in a February 27 letter, White
House Counsel Al Gonzales made an offer. A copy of Mr. Gonzales' letter
has already been printed in the Record.
I don't know what more the administration can do other than say we
will make him available to you, you ask him whatever questions you
want, and you can find out for yourself whether you want to support him
or not.
To my knowledge, not one of our colleagues on the other side has
taken advantage of this offer. Not one. How interested are they in
getting the real story? Not one. Yet we had Senators on the floor
yesterday saying all he has to do is answer our questions. Here is an
offer: He will come right to your office and answer the questions for
you. Not one has asked him to come to the office, which makes me
question how serious they are about the merits of Mr. Estrada's
nomination.
That brings me to another point. Mr. Estrada's hearing was held under
Democratic control of the committee on September 26, 2002. If there was
any question about the quality of Mr. Estrada's testimony, they could
have held another hearing, they could have extended the hearing, and
they could have held another hearing since they controlled the
committee for another 3 months. Why didn't they hold another hearing?
Why didn't they ask these questions that are so crucial? Because they
thought they could kill the nomination by never bringing it up.
Unfortunately for them and fortunately for the country, the election
turned the other way and Mr. Estrada, of course, was nominated by the
new President.
I think there is some hypocrisy, especially with regard to these
responses that Mr. Estrada gave, because they are deemed sufficient for
Clinton judges but they are not good enough now. Why this double
standard for this Hispanic man? Some Democrats have railed against
Estrada for his responses to questions from the Judiciary Committee, as
I have said. The fact is, however, the Democrats routinely voted in
favor of Clinton nominees who gave similar responses, maybe not as good
but similar responses. These were nominees who had never been judges
and had few published writings. In their responses to questions they
acknowledged the law, said they would follow it, and confirmed that
they would not let their personal views get in the way--responses just
like Miguel Estrada gave. Not one of these nominees, however, was
denied a vote on the floor, not one.
Take, for example, Blane Michael, a Clinton nominee for the Fourth
Circuit. He was asked what he would do if his personal beliefs and the
law collided. He said he would uphold the Constitution and the law
without question. As to whether he would follow Supreme Court
precedents, he said: It is not my job to circumvent or shade what the
Supreme Court has done.
Was he asked to expound on his favorite or least favorite Supreme
Court cases? No. The record is less than four pages on his questioning.
Sid Thomas was another Clinton nominee not subjected to the same
level of interrogation as Estrada. In fact, none of them were. Thomas,
who had never been a judge or even a judicial clerk, was asked what he
thought about the constitutionality of capital punishment.
He said:

I believe the Supreme Court has spoken . . . on the death
penalty.

That was it. Thomas, who I should add had very few published
writings, added:

I do not possess any personal convictions which would cause
me to not apply the death penalty in an appropriate case.

The Thomas hearing takes up less than 2 pages in the Record.
Why were they treated differently by my colleagues on the other side
than Miguel Estrada? Why is it? I don't see any reason, unless they are
just not going to allow this President to nominate, as all Presidents
in the past have done, the people he thinks are best for these jobs; or
unless they just do not want to have a conservative Hispanic nominee
appointed to this important court; or maybe they just do not want
Miguel Estrada to get confirmed because they believe he is on the fast
track to the Supreme Court and could be the first Hispanic nominated
and confirmed to the Supreme Court; or maybe it is because he is
Hispanic, but he is conservative; or maybe it is because he is Hispanic
and he is Republican and he is conservative; or maybe it is because he
is Hispanic, he is Republican, he is conservative, and they think he
may be pro-life.
It is one of those. I personally do not believe there is racism
involved, although there are those who do--but I am not one of them. I
believe there is

[[Page S3120]]

a double standard being applied to this Hispanic nominee, the first
Hispanic nominee to the Circuit Court of Appeals for the District of
Columbia, and I think it is a crying shame.
Merrick Garland, a Clinton nominee to the Fourth Circuit, was asked
if he personally favored the death penalty. I personally was very much
in favor of Merrick Garland, but there were some on our side who were
not very much enthused about him. He was a controversial nominee, as
were these others. But he was a Clinton nominee to the Fourth Circuit.
He was personally asked if he favored the death penalty. He responded
by saying it is a matter of settled law. When asked about the
independent counsel law, Garland said that, too, was settled and that
he would follow that ruling.
These sound an awful lot like the responses of Miguel Estrada, the
ones he gave, responses that Democrats say do not give them enough
information. These Clinton nominees were all not only voted out of
committee but were allowed an up-or-down vote on the floor, regardless
of the fact that some of them were controversial--to borrow some of the
language of my colleagues on the other side.
My colleague from New York has stated that according to an article
that appeared in the Legal Times in April 2002, DC Circuit Judge
Laurence Silberman has advised President Bush's judicial nominees to
``keep their mouths shut.'' As the rest of the article explains, in
fact, Judge Silberman simply explained that the rules of judicial
ethics prohibit nominees from indicating how they would rule in a given
case or on a given issue--or even appearing to indicate how they would
rule.
As the same article reported, Judge Silberman stated:

It is unethical to answer such questions. It can't help but
have some effect on your decisionmaking process once you
become a judge.

A copy of this article has also been printed in the Record.
Yet I heard my colleagues on the other side yesterday blowing smoke
over there, using a quote out of context to try to indicate that Judge
Silberman was giving them radical advice. The fact is, he gave them
advice that every Democrat President and every Democrat President's
Justice Department has given to the Democrat nominees for these courts.
It is proper advice.
This advice is consistent with Canon 5A(3)(d) of the ABA's Model Code
of Judicial Conduct, which states that prospective judges:

[S]hall not . . . make pledges or promises of conduct in
office other than the faithful and impartial performance of
the duties of office . . . [or] make statements that commit
or appear to commit the candidate with respect to cases,
controversies, or issues that are likely to come before the
court.

Justice Thurgood Marshall made the same point in 1967 when he
refused, as I mentioned before, to answer questions about the fifth
amendment during his confirmation hearing for the Supreme Court. I
referenced that quote earlier.
Let me go to this letter from Seth Waxman, on behalf of Seth Waxman,
Walter Dellinger, Drew S. Days, Kenenth W. Starr, Charles Fried, Robert
Bork, and Archibald Cox. That is seven of the living former Solicitors
General. Seth Waxman, Walter Dellinger, Drew Days, and Archibald Cox
are Democrat former Solicitors General.
Here is what they said, and they said it in response to the
Democrats, who have been saying we have to get these privileged
materials because we do not know enough about Miguel Estrada, even
though we have had a full day of hearings conducted where we could have
asked any questions we wanted to, where we could have held additional
hearings, we could have filed written questions--only two of them did--
we could have asked additional questions, only two of them did. They
even said the hearing was fair and fairly conducted. But this is a
letter.
Let me just go back. They are hiding behind this red herring,
demanding papers they know no self-respecting administration can give
because it would interrupt, disturb the flow, and make it more
difficult for the Solicitor General of the United States to do his or
her job. I think this letter says it all. It was a letter written to
the Honorable Patrick J. Leahy on June 24, 2002, better than 18 months
ago:

Dear Chairman Leahy: We write to express our concern about
your recent request that the Department of Justice turn over
``appeal recommendations, certiorari recommendations, and
amicus recommendations'' that Miguel Estrada worked on while
in the Office of the Solicitor General.
As former heads of the Office of Solicitor General--under
Presidents of both parties--we can attest to the vital
importance of candor and confidentiality in the Solicitor
General's decisionmaking process. The Solicitor General is
charged with the weighty responsibility of deciding whether
to appeal adverse decisions in cases where the United States
is a party, whether to seek Supreme Court review of adverse
appellate decisions, and whether to participate as amicus
curiae in other high-profile cases that implicate an
important Federal interest. The Solicitor General has the
responsibility of representing the interests not just of the
Justice Department, nor just of the executive branch, but of
the entire Federal Government, including Congress.
It goes without saying that, when we made these and other
critical decisions, we relied on frank, honest and thorough
advice from our staff attorneys like Mr. Estrada. Our
decisionmaking process required the unbridled open exchange
of ideas--an exchange that simply cannot take place if
attorneys have reason to fear that their private
recommendations are not private at all, but vulnerable to
public disclosure. Attorneys inevitably will hesitate before
giving their honest, independent analysis if their opinions
are not safeguarded from future disclosure. High-level
decisionmaking requires candor, and candor in turn requires
confidentiality.
Any attempt to intrude into the Office's highly privileged
deliberations would come at the cost of the Solicitor
General's ability to defend vigorously the U.S. litigation
interests--a cost that also would be borne by Congress
itself.
Although we profoundly respect the Senate's duty to
evaluate Mr. Estrada's fitness for the Federal judiciary, we
do not think that the confidentiality and integrity of
internal deliberations should be sacrificed in the process.

Four of those former Solicitors General were Democrat Solicitors
General. Mr. Estrada served three of those Democrat Solicitors General
because he served, as I recall, 4 years in the Clinton administration
in the Solicitor General's Office without any bad reaction. Then he
served 1 year in the Bush administration.
Most people would say Archibald Cox is a person of the highest legal
integrity and highest legal abilities. Knowing him personally, I have
to say that is true. Most people would say Drew Days is one of the fine
lawyers and law professors in this country. Most people would say--in
fact, I think everybody would say with regard to these Democrat former
Solicitors General who have said these records should be privileged,
that Walter Dellinger was one of the great law professors at Duke, also
a great public servant, and now one of the leading lawyers in one of
the major law firms in the country, himself mentioned for the Supreme
Court from time to time, a man I have to admit I have gained increasing
respect for through the years.
It is pretty hard to find a better lawyer than Seth Waxman. He is a
great lawyer. And he is somebody on whom I think the Democrats could
rely. Have those colleagues on the other side asked those four people?
The fact is those four people have basically said Miguel Estrada did a
great job at the Solicitor Generals's Office. In fact, Seth Waxman, in
particular, said he did a fine job there. The performance evaluations
that described Mr. Estrada's work there are of the highest laudatory
evaluation of staff. The only person who has raised any conflict is
Professor Paul Bender, who gave those glowing performance evaluations
at a time closest to the service of Miguel Estrada, but who is a very
left-wing liberal Democrat law professor who has entered into this
debate--and in an improper way, in my opinion--to try to smear Mr.
Estrada, which he has done. He is the only one they can point to who
has any real criticism of Miguel Estrada's work at the Solicitor
General's Office.

I think those Democrat Senators on the other side of the floor would
do very well to talk to Seth Waxman, Walter Dellinger, Drew S. Days,
III, and Archibald Cox to say what is wrong with Mr. Estrada. I think
they won't do it because they know these people will say Mr. Estrada is
an exceptionally fine lawyer, which he, of course, is.
This is a man who has the highest rating from the American Bar
Association--the gold standard of our friends, the Democrats--and, of
course, he has

[[Page S3121]]

all the credentials in the world as one of the leading appellate
lawyers in the country. Even though he suffers from a disability, a
speech impediment, he has still risen to the top of the appellate
court.
I know my colleague from Vermont is waiting. So I yield the floor at
this time.
The PRESIDING OFFICER. The Senator from Vermont is recognized.

THE PRICE OF WAR

Mr. JEFFORDS. Mr. President, for many months now, the administration
has shown its determination to wage war against Saddam Hussein.
I am very concerned that the Bush administration's intense focus on
Iraq has blinded it to the critical needs here at home.
While the administration prepares for a war with sky-rocketing cost
estimates now in the range of $100 billion or more, it pleads poverty
when it comes to funding our domestic needs.
While the administration fixates on Iraq, the economy teeters, the
stock market tumbles, the terrorist threat at home persists, and
schools are threatened with premature closings for lack of money.
Last week, our Nation's governors met here in Washington and issued a
troubling warning. They told us our States are hurting. They told us
they do not have the money they need to do their jobs and serve the
people of their States. They told us their situations would only worsen
if the President were to enact his tax-cutting plans.
They told us they would need more than $15 billion this year alone in
emergency funds for schools and domestic security. And as the headline
in the New York Times put it, ``Governors Get Sympathy From Bush, But
No More Money.''
Sympathy will not pay our Nation's bills. We have the obligation to
address the crisis in America's schools with the same urgency as the
crises abroad. Our children deserve at least that much.
We have fallen woefully short in our commitment to our students, our
teachers and our parents. We have failed to meet a promise that we made
to our States nearly three decades ago to provide our fair share of
special education funding.
And now, only 1 year after passage of the No Child Left Behind Act,
we are hearing that States don't have the money they need to make that
law work.
Yet the administration continues to devote extraordinary resources to
its campaign against Iraq, and to its pursuit of allies for that
campaign.
While critical education needs go unmet, the administration was able
to cobble together the necessary funds to offer almost $30 billion
dollars to enlist Turkish support for the war.
I suspect untold billions are also being promised to other nations
around the globe. The President apparently is confident that all of
these expenses can be borne along with a significant tax cut. I
sincerely question that logic.
There is no doubt that Saddam Hussein's rule in Iraq has been marked
by brutality. He is an evil dictator with clearly evil intentions, and
is a long-term threat to the United States and its allies in the Middle
East.
Yet despite the well-documented atrocities associated with his rule
and his clear flouting of U.N. resolutions, there still is no evidence
of an imminent threat to the United States that justifies the
administration's march to war.
Iraq is of obvious importance to the United States and the world
because of its geographical location and its oil reserves. Much of the
world depends upon fair access to Iraq's oil.
We went to war a decade ago to throw Iraq out of Kuwait and restore
Kuwait's right to control its oil. Similarly, control of Iraq's oil
must be put in the hands of the Iraqi people.
I praise the administration for abandoning its initial go-it-alone
strategy toward Iraq. I congratulate the President for his willingness
to work through the United Nations and for the results he and the U.N.
have achieved since that decision.
An increasingly robust inspection process is under way, U2 planes are
flying over Iraq under U.N. supervision, illegal missiles are being
destroyed by Iraq, and additional measures are under consideration to
more aggressively seek out illegal Iraqi weapons and programs.
The administration should continue to work with the U.N. to
strengthen the inspection efforts and seek peaceful means for achieving
the disarmament of Iraq. Instead, the administration appears bent on
cutting this process short.
The administration has displayed a troubling lack of focus in
articulating a rationale for military action in Iraq. Initial
discussion of ``regime change'' shifted for some time to talk of
disarmament.
However, recent comments from the White House now indicate that we
are back to ``regime change.''
The administration's expectations for post-Saddam Iraq are equally
troubling.
I am worried that the administration nurtures a naive belief that
there will be rapid transformation of the Middle East from an area in
which autocratic governments and Islamist opposition forces vie for
power to one in which democracy and Western ideals carry the day.
Talk of installing an American as temporary administrator of Iraq is
also very troubling. We should be sending the message to the Iraqi
people that we plan to put them in control of their country. The
American people are not interested in becoming Iraq's overlord. We
should be clear that we do not plan to rule Iraq as an American
protectorate.
We need to be much more explicit in setting forth the goals and
timetable for any post-war Western presence in Iraq.
Intelligence assessments make clear that the greatest threat today to
the United States is the threat posed by terrorist attacks.
We know that the fight against terrorism and the fight against the
proliferation of weapons of mass destruction can only be waged
successfully with a robust set of international institutions and
relationships.
The administration's push for war with Iraq undermines our relations
with other countries and the strength of our international bodies at
precisely the moment when they are most important to the United States.
We must ensure that any action against Iraq does not jeopardize our
counterterrorism and counterproliferation fights.
President Bush has sought for many months to rally this Nation and
the world community behind the notion that the threat from Iraq is
imminent and that preemptive military action is required. He has not
succeeded in making his case.
With no clear evidence of an imminent threat from Iraq, and with no
credible plan for postwar Iraq, we should be supporting the U.N. in its
work on the ground to bring about Iraqi compliance with U.N.
resolutions.
Going to the U.N. must not be viewed merely as a cynical, tactical
move designed to justify and aid preparations for war. Instead, the
United States owes it to the world community, and to the institutions
it worked so hard to establish in the period since World War II, to
make a sincere effort to work with the U.N. to resolve the threat posed
by Iraq in a peaceful fashion.
American Presidents have labored for many decades to construct
relationships and international bodies capable of handling situations
such as this.
They, the American people, and our allies deserve a patient,
balanced, and considered approach to the current situation.
More importantly, the American people deserve an Administration that
devotes the same degree of energy and concentration to the crises here
at home.
I think, on more careful inspection, the President will realize that
the domestic crises are truly imminent, and that they actually pose
more of a threat to America's long-term security than the situation
today in Iraq.
I urge the President to stop before he has irrevocably committed us
to the destruction and rebuilding of Iraq, which will draw away the
resources that are so badly needed here at home.
It will take courage and true leadership, but I implore him to act in
this regard before it is too late.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant bill clerk proceeded to call the roll.
Mr. JEFFORDS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.

[[Page S3122]]

The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. JEFFORDS. Mr. President, I would like to direct my colleagues to
a few of the more than 40 editorials or op-eds from around the Nation
expressing concerns about Mr. Estrada's nomination to the D.C. Circuit.
Here are just a few of them. I ask unanimous consent that the
following be printed in today's Record: the editorial of the Rutland
Daily Herald of Vermont on February 24, 2003; the editorial of the
Boston Globe on February 15, 2003; the recent editorial of the New York
Times; and the op-ed in the Washington Post on February 14, 2003.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Rutland Daily Herald, Feb. 24, 2003]

Partisan Warfare

Senate Democrats are expected to continue their filibuster
this week against the appointment of Miguel Estrada, a 41-
year-old lawyer whom President Bush has named to the federal
appeals court in Washington, D.C.
Sen. Patrick Leahy, ranking Democrat on the Judiciary
Committee, is in the middle of the fight over the Estrada
appointment. He and his fellow Democrats should hold firm
against the Estrada nomination.
Much is at stake in the Estrada case, most importantly the
question of whether the Democrats have the resolve to resist
the efforts of the Bush administration to pack the judiciary
with extreme conservative judges.
The problem with the Estrada nomination is that Estrada has
no record as a judge, and senators on the Judiciary Committee
do not believe he has been sufficiently forthcoming about his
views. It is their duty to advise and consent on judicial
nominees, and Estrada has given them no basis for deciding
whether to consent.
President Bush has called the Democrats' opposition to
Estrada disgraceful, and his fellow Republicans have made the
ludicrous charge that, in opposing Estrada, the Democrats are
anti-Hispanic. For a party on record against affirmative
action, the Republicans are guilty of cynical racial politics
for nominating Estrada in the first place. He has little to
qualify him for the position except that he is Hispanic.
Unless the Democrats are willing to stand firm against
Bush's most extreme nominations. Bush will have the
opportunity to push the judiciary far to the right of the
American people. Leahy, for one, has often urged Bush to send
to the Senate moderate nominees around whom Democrats and
Republicans could form a consensus. In a nation and a
Congress that is evenly divided politically, moderation makes
sense.
But Bush's Justice Department is driven by conservative
ideologues who see no reason for compromise. That being the
case, the Senate Democrats have no choice but to hold the
line against the most extreme nominees.
Leahy has drawn much heat for opposing Bush's nominees. But
he has opposed only three. In his tenure as chairman of the
committee, he sped through to confirmation far more nominees
than his Republican predecessor had done. But for the Senate
merely to rubber stamp the nominees sent their way by the
White House would be for the Senate to surrender its
constitutional role as a check on the excesses of the
executive.
The Republicans are accusing the Democrats of partisan
politics. Of course, the Republicans are expert at the game,
refusing even to consider numerous nominees sent to the
Senate by President Clinton.
The impasse over Estrada is partisan politics of an
important kind. The Republicans must not be allowed to shame
the Democrats into acquiescence. For the Democrats to give in
would be for them to surrender to the fierce partisanship of
the Republicans.
The wars over judicial nominees are likely to continue as
long as Bush, with the help of Attorney General John
Ashcroft, believes it is important to fill the judiciary with
extreme right-wing judges.
The Democrats, of course, would like nothing better than to
approve the nomination of a Hispanic judge. But unless the
nominee is qualified, doing so would be a form of racial
pandering. That is the game in which the Republicans are
engaged, and the Democrats must not allow it to succeed.
____

[From the Boston Globe, Feb. 15, 2003]

Rush to Judges

The Senate Judiciary Committee ought to come with a warning
sign: Watch out for fast-moving judicial nominees. Controlled
by Republicans, the committee is approving President Bush's
federal court nominees at speeds that defy common sense.
One example is Miguel Estrada, nominated to the US Court of
Appeals for the District of Columbia. Nominated in May 2001,
Estrada has been on a slow track, his conservative views
attracting concern and criticism.
Some Republicans called Democrats anti-Hispanic for
challenging Estrada. He came to the United States from
Honduras at the age of 17, improved his English, earned a
college degree from Columbia, a law degree from Harvard, and
served as a Supreme Court clerk for Justice Anthony Kennedy.
What has raised red flags is Estrada's refusal to answer
committee members' questions about his legal views or to
provide documents showing his legal work. This prompted the
Senate minority leader, Thomas Daschle, to conclude that
Estrada either ``knows nothing or he feels he needs to hide
something.''
Nonetheless, Estrada's nomination won partisan committee
approval last month. All 10 Republicans voted for him; all
nine Democrats voted against. On Tuesday Senate Democrats
began to filibuster Estrada's nomination, a dramatic move to
block a full Senate vote that could trigger waves of
political vendettas.
It's crucial to evaluate candidates based on their merits
and the needs of the country.
Given that the electorate was divided in 2000, it's clear
that the country is a politically centrist place that should
have mainstream judges, especially since many of these
nominees could affect the next several decades of legal life
in the United States.
Further, this is a nation that believes in protecting
workers' rights, especially in the aftermath of Enron. It's
an America that struggles with the moral arguments over
abortion but largely accepts a woman's right to make a
private choice. It's an America that believes in civil rights
and its power to put a Colin Powell on the international
stage.
Does Estrada meet these criteria? He isn't providing enough
information to be sure. And the records of some other
nominees fail to meet these standards.
Debating the merits of these nominees is also crucial
because some, like Estrada, could become nominees for the
Supreme Court.
The choir--Democrats, civil rights groups, labor groups,
and women's groups--is already singing about how modern-day
America should have modern-day judges. It's time for moderate
Republicans and voters to join in so that the president can't
ignore democracy's 21st-century judicial needs.
____

[From the New York Times]

Keep Talking About Miguel Estrada

The Bush administration is missing the point in the Senate
battle over Miguel Estrada, its controversial nominee to the
powerful D.C. 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.
The Bush administration has shown no interest in working
with Senate Democrats to select nominees who could be
approved by consensus, and had 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.
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.
____

[From the Washington Post, Feb. 14, 2003]

Estrada's Omerta

(By Michael Kinsley)

Like gangsters taking the Fifth, nominees for federal
judgeships have reduced their reason for not talking to a
mantra. Repeat after me: ``My view of the judicial function,
Senator, does not allow me to answer that question.'' Miguel
Estrada, President Bush's nominee for the U.S. Court of
Appeals for the D.C. Circuit, used variations on that one
many times in refusing to express any opinion on any
important legal topic during Judiciary Committee hearings
last fall. Democrats are now trying to block the Estrada
nomination with a filibuster.
Estrada's ``view of the judicial function'' is shared by
President Bush, congressional Republicans and conservative
media voices hoarse with rage that Democratic senators want
to know what someone thinks before making him or her a judge.
The Estrada view is that judges should not prejudge the
issues that will come before them. As Estrada amplified in
this testimony, ``I'm very firmly of the view that although
we all have views on a number of subjects from A to Z, the
job of a judge is to subconsciously put that aside and look
at each case . . . with an open mind.''
Obviously, Estrada's real reason for evasiveness is the
fear that if some senators knew what his views are, they
would vote against him. However, this kind of high-minded
bluster is a powerful weapon in the ongoing judicial wars.
Over the past couple of decades, talk like this has
intimidated many a senator who aspires to a reputation for
thoughtfulness. And it does sound swell. Until you think
about it.
Potential judges should not reveal their views on legal
issues because a judge should

[[Page S3123]]

have an open mind? Hiding your views doesn't make them go
away. If the problem is judges having views on judicial
topics, rather than judges expressing those views, then
allowing people to become judges without revealing their
views is a solution that doesn't address the problem. And if
the problem is judges who fail to put their previous views
aside, rather than judges having such views to begin with,
then allowing judicial nominees to hide those views until
it's too late is still a solution that is logically unrelated
to the problem.
So Estrada's Rule of Silence does not solve the problem,
And the supposed problem--of ``prejudging''--makes no sense
either. To see why, consider--or reconsider--Justice Clarence
Thomas. In his 1991 confirmation hearings, Thomas testified
that he had no ``personal opinion'' about Roe v. Wade,
probably the most controversial Supreme Court decision of the
20th century. In 1992 Justice Thomas joined in a minority
opinion calling for Roe to be overturned. By 2000 he was
writing that the Roe decision was ``grievously wrong'' and
``illegitimate'' and part of ``a particularly virulent strain
on constitutional exegesis'' and generally not something he
cared for the least little bit.
This does not prove that Thomas was lying under oath in
claiming that he hadn't prejudged Roe in 1991 (though no
reasonable person could doubt that). It does prove that
Thomas had prejudged Roe in 1992. But this is a point tht
Justice Thomas needn't bother to lie about, because no one
objects. It's perfectly okay for a sitting judge to have and
express views about an issue that comes before his or her
court. That is his job.
In fact it's inevitable that anyone who has been an
appellate judge for a while will have published opinions that
touch on many of the issues he or she must decide in the
future. There is not even an expectation of open-mindedness.
Although a willingness to reconsider your own assumptions is
regarded as admirable, no one is accused of prejudging a case
just for ruling the same way this year as last year. Quite
the opposite: Intellectual consistency is the hallmark of a
fine legal mind. And following precedent is a sign of
judicial professionalism.
Most legal rulings come from judges who have been on the
bench for a while. If that is not a problem, why is it a
problem if they have thought and reached conclusions on some
important legal issues before they join the bench? The answer
is that it is not a problem. It ought to be a problem if a
potential judge has not thought about important legal issues
and has no views on them. But instead, the problem is how to
keep a judgeship candidate's opinions hidden until he or she
is safely confirmed for a lifetime appointment, and the phony
issue of ``prejudging'' is a strategy for doing that.
Judgeship nominations bring out the hypocrite in
politicians of both parties, but the Republican hypocrisy
here is especially impressive. When Bill Clinton was
appointing judges, the senior Judiciary Committee Republican,
Sen. Orrin Hatch, called for ``more diligent and extensive .
. . questioning of nominees' jurisprudential views.'' Now
Hatch says democrats have no right to demand any such thing.
President Bush fired the American Bar Association as official
auditor of judicial nominations because the ABA gave some
Republican nominees a lousy grade. Now Hatch cites the ABA's
judgment as ``the gold standard'' because it unofficially
gave Estrada a high grade.
The seat Republicans want to give Estrada is open only
because Republicans successfully blocked a Clinton nominee.
Two Clinton nominations to the D.C. Court were blocked
because Republicans said the circuit had too many judges
already. Now Bush has sent nominations for both those seats.
Hatch and others accuse Democrats of being anti-Hispanic for
opposing Estrada. With 42 circuit court vacancies to fill,
Estrada is the only Hispanic Bush has nominated. Clinton
nominated 11, three of whom the Republicans blocked.
I could go on and on. Which is just what Senate Democrats
are doing.

Mr. LEAHY. Mr. President, as I have previously mentioned before the
Judiciary Committee and here before the Senate, I have significant
concerns about Mr. Estrada's nomination. Significant concerns have been
raised and not answered. Many of us would like to have sufficient
confidence based on a record and a strong confidence about the type of
judge he would be. Sadly that record is not there and the
administration continues to deny us access to Government files that
might be helpful to us.
While he has some experience arguing appeals in criminal cases, he
appears to have little experience handling the types of civil cases
that make up the majority of the docket of the D.C. Circuit, a court on
which Republicans blocked appointments during the last 4-year term of
the Clinton administration in order to shift the ideological balance of
the court.
His confirmation has been opposed by many including people and groups
who represent the Latino community. The opposition of so many Hispanic
organizations and the Congressional Hispanic Caucus should be of
concern.
Mr. Estrada's selection for this court has generated tremendous
controversy across the country and within the Hispanic community. For
more than 2 years I have been calling upon the President to be a uniter
and not a divider. Here is another matter on which the White House has
chosen divisive, partisanship and narrow ideology over what is best for
the Senate, the D.C. Circuit, the Hispanic community and the American
people. This has been yet another in a string of controversial
nominations that has divided, not united, the American people and the
Senate.
Senate Democrats demonstrated in the last Congress that we would bend
over backwards to work with the Administration to fill judicial
vacancies.
We proceeded with more than 100 nominations in 17 months, held
hearings and confirmed nominees at a pace almost twice that of
Republicans with a Democratic President. Unlike President Clinton,
however, this President has continued to insist on doing things his way
and only his way and simply refuses to work with us.
Last May, at the behest of a number of Senators seeking a solid basis
on which to evaluate this nomination, I wrote to the nominee and to the
Attorney General requesting access to his work while employed by the
Government at the Department of Justice between 1992 and 1997. In that
capacity he worked for the government of which Congress is a part.
Similar papers have been provided to the Senate in connection with a
number of previous nominations, including those of William Rehnquist,
Robert H. Bork, William Bradford Reynolds, Benjamin Civiletti, and
Stephen Trott. Despite this precedent, over 300 days have passed
without cooperation from the administration.
The administration has unfortunately, chosen to treat the request for
relevant information of a coequal branch like a litigation discovery
request that it must resist at all costs. Their approach reminds me of
how the tobacco companies treated requests for information about what
they knew about the cancer causing properties of cigarettes for years
and years. In connection with this nomination, the administration took
three weeks to study the files then dismissed the request out of hand
and called it without precedent.
The administration claimed that no administration had ever provided
such materials in connection with a nomination. As we have now
demonstrated over and over that precedent exists going back over the
last 20 years.
When presented with irrefutable evidence that these types of
materials had been provided, the administration shifted its defense to
trying to distinguish those past nominations and even claimed that the
documents previously produced by the Department of Justice to the
Senate had, instead, been ``leaked'' to the Senate. They all but called
Senator Schumer a liar in response to his January letter seeking to
resolve the matter.
Then we provided documents from the Department of Justice that
conclusively demonstrate that the materials had been furnished in
response to Senate requests. This refutes the second round of
misrepresentations by the Department of Justice. The proof is in a
letter from Acting Assistant Attorney General Thomas Boyd to Chairman
Biden in May 1988 which notes that:

[M]any of the documents provided to the Committee, `reflect
or disclose purely internal deliberations within the
Executive Branch, the work product of attorneys in connection
with government litigation or confidential legal advice
received from or provided to client agencies within the
Executive Branch.' We provided these privileged documents to
the Committee in order to respond fully to the Committee's
request and to expedite the confirmation process.

It is now beyond dispute that ``the work product of attorneys in
connection with government litigation or confidential legal advice''
has provided to the Senate in connection with past nominations.
Rather than admit their errors and work with us to resolve this
impasse, the administration simply shifts ground while remaining
recalcitrant. The longstanding policy of the Justice Department, until
now, has been a practice of accommodation with the Senate in providing
access to materials requested in connection with nominations.
On February 11, the Democratic leader and I wrote the President
urging cooperation. Instead, we received another

[[Page S3124]]

diatribe from the White House Counsel's office. It is as if this
administration thinks it has a blank slate and a blank check
notwithstanding tradition, history, precedent or the shared powers
explicitly provided by our Nation's Constitution. There is certainly a
nexus between our request and the powers committed to the legislative
branch, yet the Department has failed to take any efforts to try to
resolve this dispute. There is part of a pattern of hostility by this
administration to requests for information by Congress acting pursuant
to powers granted to it by the Constitution, regarding nominees and
other important matters.

Despite the stonewalling by the administration, the Judiciary
Committee proceeded with a hearing on the Estrada nomination toward the
end of the last session. I had said in January that I intended to
proceed with such a hearing. The administration took advantage of my
good faith declaration and my willingness to proceed on some of their
most controversial nominees, including Mr. Estrada. Of course, in
addition to Mr. Estrada we also proceeded with hearing on Judge Dennis
Shedd, Professor Michael McConnell, Judge Charles Pickering, Judge D.
Brooks Smith, Justice Priscilla Owen and many others. In spite of all
our good faith efforts to make progress, the administration continues
its hostile and partisan ways.
Confirmation of 100 judicial nominations in record time, proceeding
on nearly twice as many confirmations as Republicans had in the recent
past, confirming new judges for the Fifth, Sixth and Tenth Circuits
after years of Republican delays, counted for naught with this
administration. Still, in spite of the administration's stonewalling,
the committee fulfilled my commitment by proceeding with a hearing last
September after waiting in vain for six months for the Administration
to show some sign of accommodation to us.
Senator Schumer chaired that hearing for Mr. Estrada last September.
I was hoping that the hearing might allay concerns that have been
raised about this nomination, but I was left with more questions than
answers after all of the steps Mr. Estrada took to avoid answering
questions at that hearing. I was also left with little hope that he
would ever answer any of the concerns raised about entrusting him for
the rest of his life with the responsibility for deciding cases fairly
and without favor toward any ideological agenda.
When President Clinton was nominating moderates to judicial
vacancies, Republicans insisted on considering the judicial philosophy
and ideology of the nominees. Many took a pledge not to vote for anyone
that might turn out to be an activist. In those years any concern among
Republicans could forestall a hearing or committee vote. Anonymous
holds were the order of the day. The committee proceeded with few
hearings on few nominees and voted on even fewer. In the entire 1996
legislation session not a single circuit judge was approved by the
Republican-led Senate all year not one.
Overall, during the 6\1/2\ years of prior Republican control, the
Senate averaged only seven circuit court confirmations a year. During
the recent 17 months in which Democrats led the Senate, by contrast we
confirmed 17 circuit court nominees for a President of another party
who nominated a string of highly controversial nominees. In fact, we
held hearings on 20 circuit court nominees. Two of the most
controversial, on whom we proceeded at the request of Republican
Senators, were voted down before the committee last year. This year Mr.
Estrada's nomination was reported even though all Democrats on the
Committee voted against it.
Much like the administration's false claim that materials like those
requested with regard to the Estrada nomination had no precedent when,
if fact, there is ample precedent, the administration and Senate
Republicans are now claiming that this Senate debate is without
precedent. That, too, is false. In fact, a number of judicial
nominations have been subjected to extensive debate over the years
since Senator Thurmond filibustered the nomination of Justice Fortas to
be Chief Justice in 1968. More than a dozen nominations have resulted
in almost one and one-half dozen cloture votes on judicial nominations.
Among those nominations ``filibustered'' by Republicans were Stephen
G. Breyer's nomination to the First Circuit; Rosemary Barkett's
nomination to the Eleventh Circuit; H. Lee Sarokin's nomination to the
Third Circuit; Marsha Berzon's nomination to the Ninth Circuit; and
Richard Paez's nomination to the Ninth Circuit. In addition, the
Democratic leadership of the Senate had to overcome Republican
objection and obtain a cloture to proceed with three of President
Bush's nominations in 2002, Richard Clifton to be a Ninth Circuit
judge, Julia Smith Gibbons to be a Sixth Circuit judge, and Lavenski
Smith to be a Eighth Circuit judge.
Of course, during the previous six and one-half years of Republican
control of the Senate, Republicans often chose less public methods to
end nominations. Almost 80 of President Clinton's judicial nominations
were not confirmed by the Congress during which they were first
nominated and more than 50 were never accorded a Senate vote. Most
often Republicans would just refuse to proceed to a hearing or a
committee vote on a nomination without explanation. Anonymous holds
before the committee ended almost a dozen Clinton judicial nominations
without anyone having to take a vote. Anonymous holds on the Senate
floor delayed consideration of nominations for months and months
without debate, explanation or accountability. Democratic opposition
has not taken that route. Instead, we ended the secrecy of the home
State Senators' blue slips and did not allow anonymous holds to long
delay Senate consideration of nominations.
The Republican spin machine is repeatedly asserting that cloture
votes and the use of the filibuster are ``unprecedented'' with respect
to judicial nominees. Such assertions are false and misleading.
Cloture, the Senate's procedure to end a filibuster, was sought on more
nominations during the 103rd Congress, from 1993 to 1994, when
President Clinton was President and Republicans used the filibuster
when they were in the Senate minority than at any other time in our
history. In that Congress, cloture was sought on 12 nominations--
judicial and executive. For the remainder of President Clinton's
presidency, Republicans controlled the Senate and defeated scores of
judicial nominations by deliberate inaction or anonymous holds in
committee and on the floor. By using other extreme delaying tactics,
they did not need to use filibusters, they defeated nominations without
public explanation through other tactics available to them in the
Senate majority.
Individuals from all parties have sought cloture and used the
filibuster in response to judicial and other nominees. In fact, the use
of the filibuster and cloture has increased in recent years.
Congressional Research Services reports that the filibuster and cloture
are used much more regularly today than at any time in the Senate's
past. Approximately two-thirds of all identifiable Senate filibusters
have occurred since 1970.
Cloture votes on judicial nominees are well-precedented in recent
history. Both Democrats and Republicans have sought cloture in response
to debate or objections to judicial nominees since the cloture rule was
extended to nominations in 1949. I would note that cloture was not
sought on any nomination until 1968, because, prior to then, concerns
over nominees were resolved, or the nominee was defeated, behind closed
doors. From 1968 to 2000, there were 13 cloture attempts on judicial
nominees. For the record, I should also note that last Congress,
cloture was sought on four of President Bush's circuit court nominees.
I further note that it was the Democratic leadership of the Senate that
sought to invoke cloture and proceed. The objection that was overcome
last Congress was that of a Republican Senator who was concerned with
the White House's refusals to act on certain executive nominations.
Cloture votes have occurred on judicial nominees submitted by
Presidents of both parties and on nominees to the U.S. District Courts,
the U.S. Courts of Appeal, and the U.S. Supreme Court. Of these 13
cloture attempts on judicial nominees, in six of them, the Democrats
were in the majority and in seven the Republicans were in the majority.
The opposition has been based on objections to the judicial philosophy
of

[[Page S3125]]

the nominee, concerns about whether the nominee would treat all parties
fairly and on procedural grounds.
I would like to take a moment to shed some light on filibusters and
the practices used to block nominees when the Republicans were last in
the majority. Some Republicans have been taking a quote of mine out of
context from June 1998 about judicial nominations, replacing my actual
words with an ellipse, then distributing it widely and misusing it.
Here is what Republicans keep quoting: ``I have stated over and over
again . . . [ellipse] that I would object and fight against any
filibuster on a judge, whether it is somebody I opposed or supported.''
What the Republican talking points omit with their ellipse is the
essential context of that quote. My actual comment was made during
floor discussion about an anonymous Republican hold on yet another of
President Clinton's nominees. Here was his actual comment:

I have stated over and over again on this floor that I
would refuse to put an anonymous hold on any judge; that I
would object and fight against any filibuster on a judge,
whether it is somebody I opposed or supported; that I felt
the Senate should do its duty.

The context of my comment--the subject of that very debate--and my
reference even within the quote itself were about anonymous holds used
by Republicans to defeat President Clinton's judicial nominations--
anonymous filibusters, in essence. This was another instance in which
sometimes only one or a handful of Republican Senators prevented Senate
votes on President Clinton's judicial nominations.
The process of the anonymous holds with which Republicans prevented
action on Clinton judicial nominees required not just a majority or a
super-majority for the Senate to proceed to votes; Republicans were
defeating President Clinton's nominees by requiring unanimity. And they
were doing it anonymously, without accountability to the public. In the
case of the Estrada nomination, Senate Democrats are seeking the
information that the Judiciary Committee began requesting nearly a year
ago, before proceeding to a vote.
It is clear from the language Republicans deliberately omit that what
I was referring to the widespread Republican practice of blocking a
nominee anonymously.
The debate from which my comment was taken was over the anonymous
Republican hold on a Hispanic nominee, Judge Sonia Sotomayor, who was
nominated by the first President Bush to a district court and who
President Clinton nominated to the Second Circuit Court of Appeals.
Immediately after making this comment, I placed in the record a
newspaper editorial criticizing these anonymous holds as ``Partisan
Nonsense.'' That editorial notes that, ``In blunt terms, Leahy has
criticized the Republicans who, behind the scenes and not for
attribution, are seeking to scuttle Sotomayor's nomination.'' That
editorial goes on to note:

``Their reasons are stupid at best and cowardly at worst,''
Leahy told a New York Times reporter. ``What they are saying
is that they have a brilliant judge who happens to be a woman
and Hispanic and they haven't the guts to stand up and argue
publicly against her on the floor. They want to hide in their
cloakrooms and do her in quiet.'''

This again makes clear that I was talking about--anonymous holds.
Judge Sotomayor was reported out of the Judiciary Committee on March 5,
1998, but anonymous Republican holds had prevented her nomination from
being scheduled for a vote.
On June 18, after her nomination had been pending on the floor for
more than three months, I went to the floor to protest the anonymous
hold against her. Republicans refused to bring her to a vote for four
more months. That is, Judge Sotomayor's nomination was pending on the
floor for seven months, seven times longer than Mr. Estrada's
nomination, and no Republicans claimed that denying an immediate vote
was somehow unconstitutional or amending the Constitution, as they have
claimed in these recent days. Once Judge Sotomayor was finally allowed
a vote, 23 Republicans voted against her, yet none put any statement in
the record or made a statement accounting for their holds or votes.
The real double standard evident during the Estrada debate is that
during the prior years of Republican control, Republicans in practice
required unanimous consent to allow a vote on a judicial nominee--not a
majority or even a super-majority. One or more Republicans could refuse
to allow an up or down vote on a nominee, with no accountability to the
public. Thus, even if as many as 80 or 90 or even 99 Senators did not
object to a judicial nominee, the objection of any Republican was used
to prevent an up or down vote. Republican complaints about Democratic
objections and insistence on following Senate rules ring hollow in
light of their own repeated practices with President Clinton nominees.
They often required the consent of 100 Senators, and certainly all of
the Republicans, to bring a judicial nominee to a vote.

To hold a nominee anonymously, without any accountability, is what I
objected to in my full statement and full comment and in the full
context of my statement during that debate. In contrast, the extended
debate on the Estrada nomination is occurring in the light of day.
Republicans and the White House can bring this matter to resolution by
providing the documents requested and by providing responsive answers
to Senators' questions. This is not a filibuster through anonymous
holds. This is a public debate that Republicans can end through
cooperation.
The nomination of Judge Richard Paez starkly displays this Republican
double standard. Judge Paez is a Mexican American who had served for
years on the bench in Los Angeles before being appointed to the Federal
district court by President Clinton in 1994. Judge Paez was nominated
to the 9th Circuit in January 1996. He was one of only four circuit
court nominees to get a hearing that year. His hearing was in July but
he was not allowed to be reported to the floor that year. No circuit
court nominees were given floor votes that year by the Republicans.
Only 17 judges were confirmed that session, none of them circuit
judges. This was the lowest number of confirmations during an election
year in modern history. Judge Paez was then renominated in January
1997, after President Clinton's reelection.
Chairman Hatch required a second hearing on the Paez nomination in
1998, 25 months after his initial nomination. Judge Paez was reported
to the floor again in March 1998, but Republicans did not schedule him
for a vote in April, May, June, July, August, September, or October
that year. So in contrast to the Estrada nomination, by the end of that
year, Judge Paez's nomination had waited on the floor for more than 8
months. That is eight times longer than the Estrada nomination has been
pending on the floor and Judge Paez still did not get a vote, due to
anonymous, unaccountable Republican holds. His nomination was returned
to the President without action at the end of that Congress. By then
his nomination had been pending for almost three years.
Judge Paez was renominated again in January 1999. Chairman Hatch
refused to place him on the committee's agenda for a vote until July
1999--another 6 months of delay, after his nomination had then been
pending for more than 1000 days. Republicans continued anonymously to
block a vote on the Paez nomination and refused to schedule him for a
vote in July, August or September. By that time his nomination had been
before the Senate for more than 1,300 days.
On September 21, 1999, Democratic Senators, having spent months and
then years pleading for a vote on the Paez nomination, made a motion to
proceed to his nomination. All Republicans voted against bringing his
nomination up for a vote, including Chairman Hatch.
Finally, in March 2000, after his nomination had been pending for
more than 1,500 days, Republicans failed in their effort to stop
cloture from being invoked. The next day, Judge Paez was confirmed, and
39 Republicans voted for confirmation--two shy of the number necessary
to prevent cloture or to filibuster the nomination. If they had two
more votes, I wonder whether they would have ever allowed Judge Paez's
nomination to come to a vote.
Mr. Estrada's nomination has been pending on the floor for less than
one month. Judge Paez's nomination was pending on the floor for more
than 20

[[Page S3126]]

months before Republicans allowed him a vote. The result was that Judge
Paez's nomination waited on the floor for a vote for almost two years,
and his nomination was before the Senate for more than four years,
before he was given an up or down vote on confirmation. Mr. Estrada's
nomination has been on the floor for less than one month--not 20
months--and Senate Democrats have raised serious and legitimate
concerns about the Senate proceeding to a final vote, concerning the
incompleteness of the record, the lack of responsive answers to basic
questions and the refusal to turn over memos equivalent to those
provided in other nominations.
It was no secret that the Republicans delayed the nominations of
Judge Marsha Berzon and Judge Richard Paez to the U.S. Court of Appeals
for the Ninth Circuit for years, culminating in filibusters in 2000,
just three years ago. After the Republican-controlled Senate repeatedly
delayed action on their nominations--over four years for Judge Paez and
over two years for Judge Berzon--Republicans engaged in a filibuster
and cited the filibusters of Justice Fortas, Justice Rehnquist and
others as precedents. At that time, Republicans argued that they were
not setting new precedent.
As Senator Robert Smith stated during the debate on these two
nominees:

[I]t is no secret that I have been the person who has
filibustered these two nominees, Judge Berzon and Judge Paez.
The issue is, why are we here? What is the role of the Senate
in judicial nominations? The Constitution gave the Senate the
advise-and-consent role. We are supposed to advise the
President and consent if we think the judge should be put on
the court. . . .
I was criticized by some for filibustering, that `we are on
a dangerous precedent' of filibustering judges. . . .
Filibuster in the Senate has a purpose. It is not simply to
delay for the sake of delay. It is to get information. It is
to take the time to debate and to find out about what a
judge's thoughts are and how he or she might act once they
are placed on the court.

So, those who came before the Senate just prior to our recent recess
and said that no Republican ever filibustered a Clinton judicial
nominee were wrong, dead wrong. Senator Smith was characteristically
forthright about what he was doing.
Senator Smith went on to explain:

As far as the issue of going down a dangerous path and a
dangerous precedent, that we somehow have never gone before,
as I pointed out yesterday and I reiterate this morning, since 1968, 13
judges have been filibustered by both political parties appointed by
Presidents of both political parties, starting in 1968 with Abe Fortas
and coming all the way forth to these two judges today.

It is not a new path to argue and to discuss information
about these judges. In fact, Mr. President . . . [w]hen
William Rehnquist was nominated to the Court, he was
filibustered twice.
Then, after he was on the Court, he was filibustered again
when asked to become the chief Justice. In that filibuster,
it is interesting to note, things that happened prior to him
sitting on the Court were regurgitated and discussed. So I do
not want to hear that I am going down some trail the Senate
has gone down before by talking about these judges and
delaying. It is simply not true.

This straight-forward Republican from New Hampshire proclaimed:

Don't pontificate on the floor and tell me that somehow I
am violating the Constitution . . . by blocking a judge or
filibustering a judge that I don't think deserves to be on
the court. That is my responsibility. That is my advise-and-
consent role, and I intend to exercise it.

Thus, the Republicans' claim that Democrats are taking
``unprecedented'' action, like the White House claim that our request
for Mr. Estrada's work while paid by taxpayers was ``unprecedented,''
is simply untrue. Republicans' desire to rewrite their own history is
understandable but unavailing.
They cannot change the plain facts to fit their current argument and
purposes. I note in passing how many Republicans now demanding a vote
on Mr. Estrada, opposed cloture on Judge Berzon and Judge Paez. I have
already noted how every Republican, many of whom are now insisting on a
vote on the Estrada nomination, opposed even proceeding to consider the
Paez nomination.
I also recall a motion that truly was unprecedented, the motion of
Senator Sessions to recommit the Paez nomination to the Judiciary
Committee after it had twice been voted out over a period of four
years. In fact, Senator Sessions made a motion to indefinitely postpone
the nomination of Judge Paez, and 31 Republicans voted in support of
that motion, including most of the people on the other side of the
aisle who have come to the floor to claim that the Constitution
requires an immediate up or down vote on Mr. Estrada's nomination.
After cloture was invoked, Senator Sessions made a motion to
indefinitely postpone a vote on Judge Paez's nomination. The motion to
indefinitely postpone failed by a vote of 31 to 67. After this motion
failed on March 9, 2000 the day Paez was ultimately confirmed--Senator
Hatch spoke about the unprecedented nature of that motion and admitted
that there had been a filibuster on Paez's nomination. Here is what he
said:

I have to say, I have served a number of years in the
Senate, and I have never seen a ``motion to postpone
indefinitely'' that was brought to delay the consideration of
a judicial nomination post-cloture.
Indeed, I must confess to being somewhat baffled that,
after a filibuster is cut off by cloture, the Senate could
still delay a final vote on a nomination. A parliamentary
ruling to this effect means that, after today, our cloture
rule is further weakened.

While some Republicans would prefer to ignore that filibuster of this
Ninth Circuit nominee in their quest to move as quickly as possible on
the Estrada's nomination, but that would be to ignore the recent
history of their conduct.
There were likewise two judicial nominees in 1994 whom the
Republicans filibustered. Judge H. Lee Sarokin, nominated by President
Clinton to the Third Circuit, was a qualified nominee who served as a
Federal district judge for 15 years. He was opposed by conservative
Republicans who argued, among other things, that he was too liberal.
Senator Thurmond led the filibuster against Judge Sarokin in calling
him a ``liberal judicial activist.'' That effort to defeat Judge
Sarokin failed.
In 1994, the Republicans also used delay tactics to block the
nomination of Judge Rosemary Barkett to the U.S. Court of Appeals for
the Eleventh Circuit. Judge Barkett was criticized by those on the
other side of the aisle as being a judicial activist. Senators Thurmond
and Specter led the opposition to Barkett. After announcing the
Republican intention to filibuster the nomination, Democratic Majority
Leader George Mitchell stepped in and filed a cloture motion.
I could describe other filibusters in detail, such as the Republican
filibuster of Justice Breyer to be on the U.S. Court of Appeals for the
First Circuit in 1980. And I could quote those on the other side of the
aisle, who have said time and time again how important it is to debate
a nominee and to scrutinize a nominee's record and views. In 1997,
Senator Hatch said that he had ``no problem with those who want to
review these nominees with great specificity'' and, in fact, he
supported such efforts while chairman of the Judiciary Committee and
reviewing the nomination of a Democratic President.
So, when Republicans say that a filibuster or extended debate on
judicial nominees is unprecedented, I would like to ask them about
their filibusters and extended debates on Judge Berzon, Judge Paez,
Judge Sarokin, Judge Barkett. And, I would like to ask them about all
the other judicial nominees and executive nominees that they defeated
through deliberate inaction, anonymous holds, or other extreme delaying
tactics.
Of course, this debate on the Estrada nomination is not, given the
definition used by Republicans, a ``true filibuster.'' As the
statements of the Democratic Leader and the exchange that I had with
Senator Bennett and Senator Reid on February 12 made clear and as
should be plain to all, we are seeking cooperation and information
before proceeding to a vote. The current debate could have been
shortened had the Administration at any time since last May shown any
interest in working with us. It has not. Despite the efforts we have
made, including the Democratic leader's letter on February 11 seeking
accommodation and pointed the way out of this impasse, the
Administration has steadfastly refused all of our efforts to work
through these difficulties. The administration is intent on forcing
this confrontation and division. That is too bad.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that editorials
concerning the Estrada nomination from

[[Page S3127]]

the Portland Oregonian, the Omaha World, and the Los Angeles Times, and
an article on the same topic by Chris Mooney that appeared in
TomPaine.com, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Los Angeles Times, Jan. 13, 2003]

Bush's Full-Court Press

There are at least two explanations--one even more cynical
than the other--for President Bush's renomination last week
of Judge Charles W. Pickering, a man the Senate rightly
rejected last year for a seat on the federal appeals court.
Perhaps Bush really didn't mean it last month when he
denounced as ``offensive . . . and wrong'' Mississippi Sen.
Trent Lott's nostalgic musings about the segregated South.
The Republican Party has long tried to have it both ways on
race: ardently courting minority voters while winking at
party stalwarts who consistently fight policies to establish
fairness and opportunity for minorities. Even Bush has not
always been above such doublespeak, encouraging African
Americans to vote GOP and touting his Spanish-language
facility on the campaign trail as a come-on to Latino voters
even as he dropped in at Bob Jones University, which, until
three years ago, barred interracial couples from sharing a
pizza.
Bush's renomination of Pickering, a man whose law career is
unremarkable but for his longtime friendship with Lott and
his dogged defense of Mississippi's anti-miscegenation laws,
throws another steak to the far right and sand in the eyes of
most Americans.
There could be another explanation for Bush's decision,
just weeks after denouncing Lott, to again shove Pickering on
the American people. Perhaps the president doesn't really
care whether Pickering, whom he's indignantly defended as ``a
fine jurist . . . a man of quality and integrity,'' is
confirmed.
Maybe Bush calculates that Sens. Edward M. Kennedy (D-
Mass.), Charles E. Schumer (D-N.Y.) and others, justly
incensed that the judge is back before them, will embarrass a
Republican or two into joining them and defeat his nomination
a second time. The president may be figuring that if they can
call in enough chits on Pickering, the Democrats won't have
the votes to stop the many other men and women he hopes to
place in these powerful, lifetime seats on the federal bench.
None of those nominees can be tarred with Pickering's in-
your-face defense of segregation. But many, including Texas
Supreme Court Justice Priscilla Owen, lawyers Miguel Estrada
and Jay S. Bybee, North Carolina Judge Terrence Boyle and Los
Angeles Superior Court Judge Carolyn B. Kuhl, share a disdain
for workers' rights, civil liberties guarantees and abortion
rights. Their confirmations would be no less a disservice to
the American people than that of Pickering, who now has been
nominated two times too many.
____

[From the Omaha World-Herald Feb. 13, 2003]

Answers, Please

Nominee Estrada refuses to disclose judicial views, philosophies to the
Senate

A filibuster is a drastic tactic. In regard to federal
judicial nominees, we would typically be against it. Now,
Senate Democrats have promised to use it to stall a
confirmation vote on judicial nominee Miguel Estrada. Yet
given the current tight-lipped atmosphere, we understand what
is pushing them in that direction.
Both sides agree that Estrada, nominated by President Bush
to the District of Columbia Court of Appeals, has exceptional
legal credentials. However, he has refused to answer many
basic yet important questions, giving senators scarcely any
way to assess his judicial temperament. Democrats contend,
rightly or wrongly, that Bush seeks to pack the federal
courts with hard-right ``stealth'' activists, and Estrada
personifies that goal.
Estrada would not tell senators which judges he might uses
as role models if he were appointed to the bench, for
instance. That is a forthright question. The answer sheds
light on a nominee's thinking and potential judicial
approach. He also declined to say which Supreme Court
opinions he disagreed with, another fundamental query.
Most judicial candidates won't, and shouldn't, give their
personal views on a broad-brush basis--in effect judging
hypothetical cases in advance. But Estrada, who has been
mentioned as a potential Supreme Court justice, went beyond
that--refusing to discuss well-known prior cases because, he
said, he had no firsthand knowledge.
Judicial philosophy is important as senators considers an
appointment to the court that has been called the second most
important in the land after the Supreme Court. The D.C.
appeals court considers, among other issues, many challenges
to federal environmental regulations. And Estrada's views of,
for instance, federalism vs. states' prerogatives would be
crucial.
The president and Republican leaders have charged that
Democrats don't want to approve a Hispanic conservative, an
implicit accusation of racism. But Estrada isn't universally
popular with Hispanic groups, either. One, the Puerto Rican
Legal Defense and Education Fund, said he has ``made strong
statements that have been interpreted as hostile to criminal
defendants' rights, affirmative action and women's rights.''
In fairness, Democrats aren't above playing their own
political games. They change that Estrada ``lacks judicial
experience,'' as if that were a disqualifying flaw. Before
their appointments, most of the members of the D.C. appeals
court ``lacked judicial experience'' much as Estrada does.
We agree with a statement made by one senator several years
ago: ``I believe the Senate can and should do what it can to
ascertain the jurisprudential views a nominee will bring to
the bench in order to prevent the confirmation of those who
are likely to be judicial activists. . . . It will require
the Senate to be more diligent and extensive in its
questioning of nominees' jurisprudential views.''
That was Republican Sen. Orrin Hatch, today an Estrada
booster, in regard to former President Bill Clinton's
nominees. The sentiment was valid then, and it's valid now.
____

[From Tompaine.com]

Benching Congress--The Rising Power of the Judiciary

(By Chris Mooney)

When it comes to President Bush's judicial appointees, Sen.
Joe Biden of Delaware has traditionally been one of the most
deferential Democrats; he opposed only three out of 102
nominees during the 107th Congress. So Biden's recent speech
at a hearing on the appointment of Jeffrey Sutton, a staunch
states' rights defender named to the U.S. Court of Appeals
for the Sixth Circuit, came as something of a surprise. ``You
seem to have an incredibly restrictive view of the Congress'
prerogatives,'' Biden warned Sutton. Noting that the Supreme
Court reviews only a tiny fraction of cases from courts like
the Sixth Circuit, Biden announced he was rethinking how the
Senate should handle circuit court nominees. ``[Appellate
judges] have become the final arbiters in areas where I used
to be able to say, `I know the Court will review this,'''
Biden said, adding that his staff was preparing a list of
roughly 200 cases where courts of appeal have changed ``basic
law'' without any review by the Supreme Court.
As the showdown begins over Bush's conservative judicial
nominees--and Senate Democrats contemplate using their
filibuster powers to block Miguel Estrada from a place on the
U.S. Court of Appeals for the District of Columbia Circuit--
it is important to remember this exchange. Sutton's history
of states' rights advocacy, which included filing a brief on
the winning side when the Supreme Court overturned part of
the Violence Against Women Act (which Biden drafted), had
clearly left Biden feeling leery about giving him a lifetime
appointment to the bench. The senator got a taste of
conservative judicial activism first hand, and he didn't like
it one bit.
If more elected Democrats awaken to how their legislative
powers are being snatched away by the federal judiciary the
way Biden did, perhaps they too will resolve to fight harder
against Bush's more radical conservative nominees. The key
factor, after all, is the one Biden cited: The Supreme Court
hears only about 80 cases a year, from all the circuit courts
and state supreme courts combined. This compares with the
tens of thousands of cases considered by Federal appellate
courts. And because of the extreme rarity of Supreme Court
review, ``one could argue that the powerful actors in the
United States who have the fewest real checks on what they
do are federal appellate judges,'' as Georgetown law
professor David Vladeck puts it. One existing check is the
U.S. Senate's advice and consent role, yet from Michael
McConnell to D. Brooks Smith, Senate Democrats thus far
have allowed conservative after conservative to reach the
federal bench.
Appellate judges interpret a huge chunk of the law that we
live by. Even in simply applying Supreme Court precedent,
they have immense sway, and they have it for life. The
Supreme Court only ``knocks out the broad contours'' of the
law, notes American University's Herman Schwartz; courts of
appeal then fill in the blanks. For example, the conservative
U.S. Court of Appeals for the Fourth Circuit recently ruled
that the Clean Water Act allows mining companies to dump huge
amounts of mountaintop rubble into rivers and streams, a
process known as creating ``valley fills.'' This ``major
victory for the mining industry,'' as The Washington Post put
it, is precisely the sort of case that the Supreme Court
never reviews. Due to the conservative tilt taken by the
federal bench over the past two decades, environmental groups
have become more or less resigned to these pro-business
rulings. So have labor, civil-rights groups, and other
liberal constituencies.
Appellate judges can't initiate legislation or make policy
decisions, of course, But that's about the only sense in
which they don't wield considerably more power than House
members or even some senators. Whereas legislators have to
sway a large group of colleagues in order to get a law
passed, appellate judges need only one ally on a three-judge
panel in order to rule the way they want. And most laws
passed by legislators, at least controversial ones,
inevitably end up being challenged in federal court and heard
on appeal. Given all this, plus the fact that seven of the
nine current Supreme Court justices were appellate judges
first, it's something of a wonder how little attention has
been paid to the ongoing

[[Page S3128]]

battle over the judiciary, especially compared with the
extensive press coverage leading up to--and following--last
year's elections. Instead all we get from the mainstream
media are one-shot stories that have much more to do with how
the nomination battles are waged than what's really at stake.
And appellate judges don't merely exert their power over
Congress by overturning laws. They also police the federal
regulatory state. Congress, after all, delegates a
significant part of its lawmaking mandate to regulatory
bodies like the Environmental Protection Agency. Indeed,
Congress regularly sets up entire new agencies, like the
Department of Homeland security, to implement its wishes. But
when these expert agencies try to carry out their
mandates, they frequently find their actions challenged in
federal court. Once again, appellate judges make the
difference when it comes to whether a regulation will be
allowed. They often second-guess laboriously prepared
administrative rules, but rarely have their actions
reviewed by the Supreme Court.
For precisely this reason, the appellate court most
responsible for ruling on federal agency decisions, the U.S.
Court of Appeals for the District of Columbia Circuit, is
also considered the second most powerful court in the nation.
Many Senate Democrats know this. That's why they're having
such a tough time weighing the pluses and minuses of
filibustering Estrada's nomination. The Wall Street Journal
editorial page, which rallies the right's troops on judicial
nominations, recently wrote that Democrats ``have no reason
to oppose Mr. Estrada other than the fact that he is a
conservative who also happens to be Hispanic.'' Well, what
about the fact that Estrada could be in a position to gut
laws Democrats pass?
Take a closer look at the sort of cases Estrada will be
deciding if he makes it to the D.C. Circuit. One well known
D.C. Circuit environmental case was 1994's Sweet Home Chapter
of Communities for a Great Oregon v. Babbitt, a case over
applications of the Endangered Species Act. In this case, a
conservative-leaning panel of the D.C. Circuit overturned a
Department of the Interior regulation protecting species
habitat, ruling that the Department couldn't consider
``significant habitat modification that leads to an injury to
an endangered species'' as ``harm'' under the act. The ruling
stood for over a year before being overruled by the Supreme
Court. But then, most D.C. Circuit rulings are never reviewed
at all--Sweet Home v. Babbitt was exceptional in that
respect. In other cases, the D.C. Circuit has rolled back
regulations to protect wetlands, corporate average fuel
economy (CAFE) standards, and much more. And that's just in
the environmental arena.
The D.C. Circuit has recently regained a degree of
ideological balance. But that won't last if Bush's nominees
reach the court. And with a conservative D.C. Circuit
prepared to upend regulatory actions as it sees fit,
legislators would be foolhardy to assume that administrative
agencies will actually be able to implement the laws they
pass intact.
Of course, some will inevitably object to the power
comparison between appellate judges and members of Congress,
and perhaps even consider it demeaning to the judiciary. They
will point out that appellate judges have a duty to apply
Supreme Court precedent, and in many or most cases these
judges probably do just that. But even the majority of
judges, acting in good faith, have considerable wiggle room
under the ``broad contours'' laid out by the Supreme Court.
That's what Sen. Joe Biden seems to have figured out, anyway.
Moreover, it has become increasingly clear just how often
appellate judges are completely on their own--and how willing
they are to use their powers. In the past decade we have
witnessed an unprecedented push among conservative judges to
invalidate acts of Congress on the basis of a radical
reinterpretation of the constitutional relationship between
the states and the federal government, sometimes called the
``New Federalism'' (though it has its origins in the
philosophy of the original opponents of the U.S.
Constitution, the anti-Federalists). This push has had plenty
of legal cover, of course, but in effect it has been a clear
attempt to wrest power away from Congress. Why shouldn't
Senators try to wrest some of that power back?
They can start with Miguel Estrada.
____

[From the Oregonian, Mar. 3, 2003]

Judicial Power Trip

The partisan battle in the Senate over one of President
Bush's nominees to a federal judgeship escalated last week
with the addition of three more conservative nominees.
This is a high-stakes contest that encompasses more than a
handful of judicial appointments; it represents a naked grab
at power and an attempt to stack the federal courts in favor
of an ultra-conservative ideology.
For nearly three weeks, Democrats have delayed a vote on
Miguel Estrada, Bush's nominee to the U.S. Court of Appeals,
District of Columbia Circuit. In Senate Judiciary Committee
hearings, Estrada simply refused to answer many of Democrats'
questions.
The battle has led to ugly name-calling, including the
charge that Democrats are treating Estrada differently
because he is Latino.
That's simply preposterous. Eight of the 10 Latino
appellate judges currently seated in the federal courts were
appointed during the Clinton administration.
Republicans should be more careful using the ethnic card.
They had no trouble holding up hearings on Latino candidates
who were nominated by President Clinton. They used every
tactic available to stall scads of Clinton nominees,
including anonymous holds on Judge Sonia Sotomayor to the
Second Circuit and a four-year delay on Judge Richard Paez to
the Ninth Circuit.
Some critics have charged the Democrats are trying to
extract payback. Of course, they may have overlooked that the
Senate has confirmed 100 of Bush's judicial nominees.
Raising the stakes late last week, Senator Orrin Hatch, R-
Utah, chairman of the Judiciary Committee forced committee
approval of three more of Bush's controversial nominees.
While the tactic seems designed to get some of the
president's conservative nominees approved, this isn't a
fight about one nominee or three or four.
The fight shows a majority trying to install one point of
view and a president who has shown himself to be more
doctrinaire than he gave any inkling of before his narrow
success in the 2000 election.
In the case of Estrada, it is hard to know what he believes
or how he would behave as a judge. He is a graduate of
Harvard Law School and was a clerk for U.S. Supreme Court
Justice Anthony Kennedy, but little is known about his views.
He has an obligation to explain himself.
Ironically, Hatch was outspoken about the need for inquiry
into nominees' view when Clinton was in office.
In the best of all possible worlds, it is better to have a
judiciary of nonpartisan independent thinkers. But the
process of nominating and confirming court appointments has
always been far from ideal.
Democrats mustn't cave on this. The fairness and
credibility of the nation's courts depend on senators finding
a reasonable compromise. Moderates within the president's
party should also reconsider their lockstep loyalty.
The balance of power between the executive and the
legislative branches is being tested. As Senator Ted Kennedy
pointed out last work, the Founding Fathers ``did not intend
for the Senate to be a rubber stamp.''
Mr. JEFFORDS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant bill clerk proceeded to call the roll.
Mr. FRIST. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Ms. Murkowski). Without objection, it is so
ordered.

____________________