[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:

       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 a litmus test of any single-issue 
     interest group.

  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.

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