[Congressional Record Volume 149, Number 36 (Thursday, March 6, 2003)]
[Senate]
[Pages S3211-S3218]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.

[[Page S3217]]

  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 21, the nomination of Miguel A. Estrada to be 
     United States Circuit Judge for the District of Columbia 
     Circuit.

  By unanimous consent the mandatory quorum call is waived.
  The question is, Is it the sense of the Senate that debate on 
Executive Calendar No. 21, the nomination of Miguel A. Estrada, of 
Virginia, to be United States Circuit Judge for the District of 
Columbia, shall be brought to a close?
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Florida (Mr. Graham) is 
necessarily absent.
  The PRESIDING OFFICER (Mr. Burns). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 55, nays 44, as follows:

                       [Rollcall Vote No. 40 Ex.]

                                YEAS--55

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--44

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--1

       
     Graham (FL)
       
  The PRESIDING OFFICER. On this question, the yeas are 55, the nays 
are 44. Three-fifths of the Senators duly chosen and sworn, not having 
voted in the affirmative, the motion is rejected.
  Mr. REID. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BINGAMAN. Mr. President, I would like to take a few moments to 
discuss the recent cloture vote in relation to the nomination of Miguel 
Estrada to the Court of Appeals for the DC Circuit.
  The Constitution provides that the President shall nominate 
candidates for the Federal bench and the Senate shall give advice and 
consent regarding those candidates. We cannot yet proceed to a vote on 
this nominee because we take this constitutional obligation--not right, 
but obligation--seriously. An up-or-down vote on this nominee is 
premature, because we have yet to get disclosure of critical 
information regarding this nominee.
  I believe that it is our obligation to ensure that--to the best of 
our knowledge--each judicial nominee is capable of setting aside 
extreme views that he or she may hold when interpreting the law and 
deciding cases. We must do our best to ensure that the person will be a 
fair and impartial judge.
  Miguel Estrada may very well be able to do that. But before we can 
make that determination, we have a right to full disclosure of 
information that will assist us in ascertaining that this is the case. 
We have a right to expect the nomineee to be forthcoming in answering 
our questions, and we have a right to expect the administration to be 
cooperative in providing any information that is relevant to making our 
decision. The advice and consent process is not a rubber stamp but a 
meaningful process.
  Mr. Estrada is not a sitting judge and has not published any legal 
articles. Written judicial decisions and published legal writings often 
provide us with the evidence that we need to determine whether a 
nominee will objectively enforce the laws and the Constitution. We have 
neither here to guide us.
  Added to this, we have a situation where a person in the Solicitor 
General's Office who had direct supervisory authority over the nominee 
when he worked there, Mr. Paul Bender, has stated that he does not 
believe Mr. Estrada can be trusted to decide cases without being 
clouded by his extreme views. He said that Mr. Estrada was so 
``ideologically driven that he couldn't be trusted to state the law in 
a fair, neutral way . . . Miguel is smart and charming, but he is a 
right-wing ideologue.''
  Now this is just one man's opinion and certainly should not be 
dispositive, but it certainly gives us cause for concern and an even 
stronger desire to have access to all available information regarding 
Mr. Estrada's judgment and skills. We could judge for ourselves whether 
there is any basis for Mr. Bender's assessment of Mr. Estrada by 
reviewing the work that he did while working at the Solicitor General's 
Office. If we had the ability to do so, we could judge for ourselves 
whether the nominee objectively presented the facts and the law while 
working in that capacity, which would be a good indication of his 
ability to do so as a judge.
  To this end, my colleagues on the Judiciary Committee sought access 
to the memoranda written by Mr. Estrada to his superiors at the 
Solicitor General's Office on questions such as whether the United 
States government should appeal an adverse ruling to the Supreme Court 
or whether it should file an amicus brief in a case that the Supreme 
Court has decided to hear. The administration has categorically refused 
to provide these documents, despite the fact that it is accepted 
practices to make these types of documents available to the Senate in 
the context of a nomination inquiry.
  Initially, the administration refused to provide any of these work 
samples, incorrectly stating that it was the practice of the executive 
branch to do so. When my colleagues were able to point out that in 
every prior case where similar work samples were requested they were 
provided, the administration claimed that were not officially provided 
but ``leaked'' to Congress. When my colleagues were able to demonstrate 
that in every prior case where similar documents were requested, the 
Department of Justice officially released them to Congress after an 
exhaustive search, the administration claimed similar documents were 
released previously only in order to clear up an allegation of 
wrongdoing, but again my colleagues on the Judiciary Committee 
demonstrated that this simply was not true. Prior precedent clearly 
demonstrates a policy of cooperation with respect to previous requests.
  The administration continues to refuse to provide any of the work 
products from the Solicitor General's Office despite the fact that 
there is no legal basis for their refusal and despite the fact that 
similar information was disclosed in every other instance that it was 
requested. We cannot help but be left with the feeling that there is 
something to hide in this case.
  We also might be able to make a judgment regarding the nominees's 
ability to be a fair judge through questioning the nominee regarding 
his judicial philosophy and regarding his analysis of previously 
decided cases. These questions are commonly asked of judicial nominees 
in order to examine whether the nominee's views are outside the 
mainstream and whether he can set his or her personal views aside in 
analyzing cases. When my colleagues on the Judiciary Committee pursued 
this practice, Mr. Estrada refused to provide meaningful answers to 
their questions. I have carefully reviewed the transcript from that 
hearing and am quite frankly amazed at Mr.

[[Page S3218]]

Estrada's refusal to answer questions that many prior judicial 
nominees--both those nominated by Democratic and Republican 
Presidents--have answered as a matter of course.
  As I have mentioned before, this refusal is particularly perplexing, 
given that this same individual admitted that he asked similar 
questions of candidates for a clerkship with Justice Kennedy in order 
to ``ascertain whether there are any strongly felt views that would 
keep that person from being a good law clerk to the Justice.'' This is 
exactly what my colleagues on the Judiciary Committee sought to do with 
respect to Mr. Estrada. If this type of information is relevant to the 
process of hiring a Supreme Court law clerk, isn't it infinitely more 
important to the process of appointing an appellate judge--someone who 
has a lifetime appointment to the bench?
  It may be the case, that if this information were to be made 
available, I would support Mr. Estrada. I have voted in favor of 100 of 
the 103 nominees that President Bush has sent forward to the Senate 
since he took office. In many of these cases, I did not agree with the 
nominee's views on many issues. Nevertheless, I had enough information 
to determine that they were not out of the mainstream of American 
jurisprudence. I believe we have the right to have access to the 
information that we need to make that judgment on this nominee.
  It is unfortunate that before I finish that I feel I must respond to 
the allegations of some that the debate surrounding this particular 
nominee relates to his ethnicity. This is a preposterous notion. It is 
a smoke and mirrors argument designed to cloud the legitimate debate 
about the nominee's qualifications for the bench.
  To infer--or to outright state as has been the case--that my 
colleagues would be motivated by the fact that Mr. Estrada is Hispanic 
is outrageous. One need only look to recent history to see just how 
wrongheaded that notion is. During the last Democratic administration, 
over 30 Hispanics were nominated for judgeships. I supported all of 
them. Unfortunately, approximately one-third of them were not 
confirmed--and some didn't even get the courtesy of a hearing--due to 
opposition from some of my Republican colleagues. It was, in fact, 
during the last Democratic administration that the first Latina to 
serve at the district court level was confirmed. She continues to serve 
in my State.
  By contrast, this administration has nominated a total of eight 
Hispanics. Six of them have already been confirmed and are now serving 
on the bench and the other nominee is expected to move ahead as soon as 
the necessary paperwork is in order. That leaves only Mr. Estrada, and 
I have stated the reasons I feel it is inappropriate to go forward with 
his nomination.
  The debate in this case is about preserving the Senate's 
constitutional role in judicial nominations. It transcends this 
particular nomination because if we were to proceed to a vote after 
this nominee has refused to answer routine questions about his views 
and his judicial philosophy, and after the administration has refused 
to respond to a routine request for samples of this nominee's work 
product, we would essentially be conceding that the Senate's role in 
judicial nominations is that of providing a rubber stamp to the 
President's nominations. This is clearly not the role envisioned by the 
Framers of our Constitution.

                          ____________________