[Congressional Record Volume 149, Number 38 (Monday, March 10, 2003)]
[Senate]
[Pages S3375-S3383]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

   NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES 
           CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

  The PRESIDING OFFICER. Under the previous order, the Senate will go 
into executive session and resume consideration of the 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.
  Mr. FRIST. Mr. President, 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. HOLLINGS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.

[[Page S3376]]

  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.
  Mr. HOLLINGS. Mr. President, with respect to the Estrada nomination, 
this Senator has no reason to vote to confirm and everyone should 
understand up front that I have treated my responsibility with serious 
purpose, always giving the benefit of the doubt to the President. I was 
one of the two Democrats who voted for Robert Bork, and I am 
particularly proud that I did vote for him. Robert Bork was an 
outstanding jurist. He answered the questions.
  So when these folks come up and apply for a job, they ought to treat 
the advise and consent responsibility that we have as Senators with 
respect. They should not go to the committee and give the rope-a-dope 
runaround and then come back later and have the White House calling 
Senators saying: Would you like to see the gentleman?
  I have heard the whining cry again and again that this is all 
unconstitutional. I wish they would have been present when Justice 
Fortas, the Associate Justice for the Supreme Court, was nominated by 
President Lyndon Johnson to become the Chief Justice. My senior 
colleague at the time, the distinguished Senator Thurmond, led the 
filibuster. There was extended debate, and please note it in the Record 
that they had a cloture vote. They could not get cloture and--read it 
in the Record--they then withdrew the nomination.
  The leadership in the Senate should get on with the important 
business of this Government at a time of war, at a time of dreadful 
deficit spending, at a time when they will not even pay for the war. I 
can say now that every President, every Congress, has paid for wars, 
and I am embarrassed to be a Senator at this particular time to go home 
to my state and report that we are not going to pay for this war. It 
was Abraham Lincoln, in order to pay for the Civil War, who put a tax 
on dividends. And now this President says the need of the hour is to 
take the tax off dividends.

  During World War I we had a marginal income tax rate that went up to 
77 percent. In World War II, it was 79 percent to 94 percent. In the 
Korean War, it was 91 percent, and the country sustained. The country 
did not break up. The country did not go poor. The country was 
stimulated by a sense of responsibility. This Mickey Mouse idea that 
dividends are going to stimulate the economy--come on. In the Vietnam 
War, we had a marginal tax rate up to 77 percent. But we have the 
unmitigated gall to now say we need to stimulate the economy with a 
dividend tax cut, with doing away with the marriage penalty, and with 
eliminating the estate tax.
  It is quite obvious what is on course is tax reform. There is no 
sense of responsibility for this position. It helped when, with Senator 
Muskie, we passed in 1973 and it was finally signed in 1974 the Budget 
Committee process. I have served on that Budget Committee for the past 
25, 26 years, including as Chairman. I am the author, along with 
Senator Gramm and Senator Rudman, of Gramm-Rudman-Hollings when 
President Reagan said we were not going to have to run deficits 
anymore. We had truth in budgeting.
  On Saturday, we got the truth from the Congressional Budget Office. 
It projected the pending deficit for the fiscal year which we are in 
now, 2003, on page 21, at the back of the document would be $469 
billion. The distinguished Presiding Officer knows this by heart 
because he has served on the Budget Committee on the House side. This 
is important because that is the actual debt increase, that is the 
actual deficit.
  I ask unanimous consent to have printed in the Record the lead 
editorial from today's Washington Post, ``Digging the Budget Hole.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Mar. 10, 2003]

                        Digging the Deficit Hole

       The deficit numbers grow ever grimmer. The Congressional 
     Budget Office on Friday put out a new estimate for this 
     fiscal year in which the projected deficit is 24 percent 
     higher than the CBO had anticipated two months ago, mostly 
     owing to the faltering economy. Meanwhile, Congress this week 
     will begin outlining a course for federal spending and tax 
     cuts that would push the country further into a deficit hole. 
     So it seems like an opportune moment to pause for a reminder 
     of how we got into this mess, how bad it is and how bad it 
     could be if President Bush's tax wishes come to pass.
       First, what happened to the surplus? It was only two years 
     ago that the CBO foresaw a surplus of $5.6 trillion through 
     2011. Back then, administration officials, insisting that Mr. 
     Bush's $1.3 trillion tax cut was easily affordable, dismissed 
     warnings that the surplus could be illusory. The forecasts 
     could ``just as easily be wrong on the low side as the high 
     side,'' said White House budget director Mitchell E. Daniels 
     Jr. Now, even without new tax cuts, the surplus has 
     evaporated and the administration is airbrushing its previous 
     statements. ``We didn't squander a surplus. We never had 
     it,'' Treasury Secretary John W. Snow told the House Budget 
     Committee. ``It wasn't real dollars in hand.''
       The biggest reason those dollars failed to materialize, 
     particularly in the short term, is the faltering economy. But 
     over 10 years, according to CBO projections, the major drag 
     on the nation's fiscal health will be the cost of the 2001 
     tax cut and increased spending. A sobering report last week 
     by the Committee for Economic Development (CED), a 
     nonpartisan group of business leaders, spelled this out: ``In 
     short, while a substantial portion of the current fiscal 
     deterioration can be blamed on the economy, responsibility 
     for the fiscal set-back in later years lies squarely on the 
     shoulders of policymakers.''
       Now build in the effect of Mr. Bush's $1.5 trillion in new 
     tax proposals. The part that Congress will take up 
     immediately, projected to cost $726 billion through 2013, 
     includes the immediate implementation of the 2001 tax cuts, 
     much of which was to have been phased in over time, and the 
     elimination of the individual income tax on corporate 
     dividends. But Mr. Bush also wants Congress to make his 2001 
     tax cuts permanent; currently they're scheduled to expire in 
     2010. In interest costs alone, the Bush proposals would 
     impose an additional $530 billion. Overall, according to the 
     new CBO figures, the administration's tax and spending 
     proposals would cost $2.7 trillion. The bottom line, 
     according to the CBO: cumulative deficits of $1.8 trillion 
     through 2013 if Mr. Bush gets his way.
       But the real fiscal picture is even worse. Remember the 
     Social Security lockbox? It has been broken open. The deficit 
     numbers above are cushioned by including $2.6 trillion from 
     the Social Security trust fund. In other words, if that money 
     were placed out of reach, the deficit would be $4.4 trillion 
     through 2013. Moreover, those numbers don't reflect the cost 
     of fixing the alternative minimum tax, which was designed to 
     prevent the wealthy from wriggling out of taxes but is 
     projected to apply to a third of all taxpayers by 2010. The 
     administration has proposed a short-term fix; extending that 
     fix through 2013 would cost $750 billion. Likewise, these 
     figures don't take into account the likely increases in 
     spending to cover an Iraq war and its aftermath, homeland 
     security or a prescription drug benefit for seniors. Nor do 
     they include the growing demands on Social Security and 
     Medicare that will materialize when baby boomers start to 
     reach retirement age just five years from now.
       ``The first step in climbing out of a hole is to stop 
     digging,'' the CED report said. ``We cannot afford economic 
     policy decisions today that further raise deficits 
     tomorrow.'' Congress ought to put down that shovel.

  Mr. HOLLINGS. Everyone can read the entire article, but let me read 
the sentence: ``The deficit numbers above are cushioned by including 
$2.6 trillion from the Social Security trust fund.'' I have to read 
that again: ``The deficit numbers above are cushioned by including $2.6 
trillion from the Social Security trust fund.''
  The following sentence: ``In other words, if that money were placed 
out of reach, the deficit would be $4.4 trillion through 2013.'' Now, 
that is just the Social Security trust fund. The Social Security trust 
fund is not the only one being expended. There is the Medicare trust 
fund. They take the surpluses, and they are going to say we have to do 
something on Medicare, but they have been spending the moneys on 
anything and everything other than Medicare. The same can be said with 
the highway trust funds, the airport trust funds, and the military and 
public service retirees. We have all kinds of trust funds, and if they 
were all included, rather than the $4.4 trillion, it would be $5.7 
trillion.
  This Enron-like accounting operation is right in the President's 
budget book. If you look at page 1--and I hold within my hand the 
budget for the fiscal year 2004 that was just released last month--it 
says: ``My administration firmly believes in controlling the deficit 
and reducing it as the economy strengthens and our national security 
interests are met. Compared to the overall Federal budget and the $10.5 
trillion national economy, our budget cap is small by historical 
standards.''
  That is on page 1. Now, Kenny Boy Lay, when he put out his Enron 
corporate report to the stockholders, that

[[Page S3377]]

is exactly the way he would start off. Make the stockholders feel good. 
Make the taxpayers feel good. Make the public servants feel 
responsible. But where is the truth? You will have to go all the way 
through to page 332.
  I ask unanimous consent that page 332, by itself, be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                          TABLE S-14.--FEDERAL GOVERNMENT FINANCING AND DEBT--Continued
                                            [In billions of dollars]
----------------------------------------------------------------------------------------------------------------
                                                                            Estimates
              Function                  2002   -----------------------------------------------------------------
                                       actual      2003       2004       2005       2006       2007       2008
----------------------------------------------------------------------------------------------------------------
Debt outstanding, end of year:
    Gross Federal debt \7\:
        Debt issued by Treasury....      6,171      6,725      7,294      7,811      8,327      8,832      9,363
        Debt issued by other                27         27         27         26         26         26         25
         agencies..................
                                    ----------------------------------------------------------------------------
            Total, gross Federal         6,198      6,752      7,321      7,837      8,353      8,858      9,388
             debt..................
    Held by:
        Debt held by Government          2,658      2,874      3,155      3,451      3,751      4,061      4,385
         accounts..................
        Debt issued by the public        3,540      3,878      4,166      4,387      4,603      4,797      5,003
         \8\.......................
----------------------------------------------------------------------------------------------------------------
\7\ Treasury securities held by the public and zero-coupon bonds held by Government accounts are almost all
  measured at sales price plus amortized discount or less amortized premium. Agency debt securities are almost
  all measured at face value. Treasury securities in the Government account series are measured at face value
  less unrealized discount (if any).
\8\ At the end of 2002, the Federal Reserve Banks held $604.2 billion of federal securities and the rest of the
  public held $2,936.2 billion. Debt held by the Federal Reserve Banks is not estimated for future years.

  Mr. HOLLINGS. Mr. President, you will see the total gross Federal 
debt whereby it goes from $6.198 trillion at the end of last fiscal 
year to, as projected at the end of this fiscal year, $6.752 trillion, 
for a deficit of $554 billion. And they are running around here, in 
this newspaper, continuing to say $300 billion deficits. We already are 
projecting, without the cost of Iraq--this does not include the cost of 
going to war in Iraq--a $554 billion deficit. And if you look at next 
year, the 2004 debt is increased from $6.752 trillion to $7.321 
trillion, for a deficit of $569 billion for next year.
  On Wednesday, at the Budget Committee, the fix will be in. We used to 
have some moderates on the Budget Committee, but the leadership took 
the moderates off, so it will be bam-bam.
  On Wednesday the Committee will have a conference and then on 
Thursday we will have amendments. It will be the Democrats who will 
have amendments because the Republicans are a fixed jury. They are a 
fixed jury, and they are not going to go along with any amendments, and 
they are going along with the President's budget and the President's 
tax cut because that is the makeup of the Republicans when they got rid 
of the moderates.
  Before that we at least had a chance to talk and discuss with each 
other, but now the budget process that we instituted back in 1974 is 
pure sham. Their goal is to get those reconciliation instructions that 
by majority vote they will have. Then by majority vote they can pass 
all these tax cuts and everything else that they have, under limited 
time. You can't have extended debate. So the fix is on--unfortunately 
for the country.
  According to the Committee for Economic Development, ``The first step 
in climbing out of a hole is to stop digging. We cannot afford economic 
policy decisions today that further raise deficits tomorrow.''
  Congress ought to put down that shovel. That is the most important 
thing we have going, even more important than war. I think we can win 
the war. I don't think we are going to win this. This is terrible.
  I ask unanimous consent to have printed in the Record the ``Hollings' 
Budget Realities'' chart.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                               HOLLINGS' BUDGET REALITIES
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                              Annual
                                                            U.S. budget   Borrowed trust      Unified     Actual deficit                   increases in
                     Pres. and year                        (outlays) (in       funds       deficit with    without trust   National debt   spending for
                                                             billions)      (billions)      trust funds        funds        (billions)       interest
                                                                                            (billions)      (billions)                      (billions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Truman:
    1947................................................            34.5            -9.9             4.0           +13.9           257.1  ..............
    1948................................................            29.8             6.7            11.8            +5.1           252.0  ..............
    1949................................................            38.8             1.2             0.6            -0.6           252.6  ..............
    1950................................................            42.6             1.2            -3.1            -4.3           256.9  ..............
    1951................................................            45.5             4.5             6.1            +1.6           255.3  ..............
    1952................................................            67.7             2.3            -1.5            -3.8           259.1  ..............
Eisenhower:
    1953................................................            76.1             0.4            -6.5            -6.9           266.0  ..............
    1954................................................            70.9             3.6            -1.2            -4.8           270.8  ..............
    1955................................................            68.4             0.6            -3.0            -3.6           274.4  ..............
    1956................................................            70.6             2.2             3.9            +1.7           272.7  ..............
    1957................................................            76.6             3.0             3.4            +0.4           272.3  ..............
    1958................................................            82.4             4.6            -2.8            -7.4           279.7  ..............
    1959................................................            92.1            -5.0           -12.8            -7.8           287.5  ..............
    1960................................................            92.2             3.3             0.3            -3.0           290.5  ..............
Kennedy:
    1961................................................            97.7            -1.2            -3.3            -2.1           292.6  ..............
    1962................................................           106.8             3.2            -7.1           -10.3           302.9             9.1
Johnson:
    1963................................................           111.3             2.6            -4.8            -7.4           310.3             9.9
    1964................................................           118.5            -0.1            -5.9            -5.8           316.1            10.7
    1965................................................           118.2             4.8            -1.4            -6.2           322.3            11.3
    1966................................................           134.5             2.5            -3.7            -6.2           328.5            12.0
    1967................................................           157.5             3.3            -8.6           -11.9           340.4            13.4
    1968................................................           178.1             3.1           -25.2           -28.3           368.7            14.6
Nixon:
    1969................................................           183.6             0.3             3.2            +2.9           365.8            16.6
    1970................................................           195.6            12.3            -2.8           -15.1           380.9            19.3
    1971................................................           210.2             4.3           -23.0           -27.3           408.2            21.0
    1972................................................           230.7             4.3           -23.4           -27.7           435.9            21.8
    1973................................................           245.7            15.5           -14.9           -30.4           466.3            24.2
    1974................................................           269.4            11.5            -6.1           -17.6           483.9            29.3
Ford:
    1975................................................           332.3             4.8           -53.2           -58.0           541.9            32.7
    1976................................................           371.8            13.4           -73.7           -87.1           629.0            37.1
Carter:
    1977................................................           409.2            23.7           -53.7           -77.4           706.4            41.9
    1978................................................           458.7            11.0           -59.2           -70.2           776.6            48.7
    1979................................................           504.0            12.2           -40.7           -52.9           829.5            59.9
    1980................................................           590.9             5.8           -73.8           -79.6           909.1            74.8
Reagan:
    1981................................................           678.2             6.7           -79.0           -85.7           994.8            95.5
    1982................................................           745.8            14.5          -128.0          -142.5         1,137.3           117.2
    1983................................................           808.4            26.6          -207.8          -234.4         1,371.7           128.7
    1984................................................           851.9             7.6          -185.4          -193.0         1,564.7           153.9

[[Page S3378]]

 
    1985................................................           946.4            40.5          -212.3          -252.8         1,817.5           178.9
    1986................................................           990.5            81.9          -221.2          -303.1         2,120.6           190.3
    1987................................................         1,004.1            75.7          -149.8          -225.5         2,346.1           195.3
    1988................................................         1,064.5           100.0          -155.2          -255.2         2,601.3           214.1
Bush:
    1989................................................         1,143.7           114.2          -152.5          -266.7         2,868.3           240.9
    1990................................................         1,253.2           117.4          -221.2          -338.6         3,206.6           264.7
    1991................................................         1,324.4           122.5          -269.4          -391.9         3,598.5           285.5
    1992................................................         1,381.7           113.2          -290.4          -403.6         4,002.1           292.3
Clinton:
    1993................................................         1,409.5            94.2          -255.1          -349.3         4,351.4           292.5
    1994................................................         1,461.9            89.0          -203.3          -292.3         4,643.7           296.3
    1995................................................         1,515.8           113.3          -164.0          -277.3         4,921.0           332.4
    1996................................................         1,560.6           153.4          -107.5          -260.9         5,181.9           344.0
    1997................................................         1,601.3           165.8           -22.0          -187.8         5,369.7           355.8
    1998................................................         1,652.6           178.2            69.2          -109.0         5,478.7           363.8
    1999................................................         1,703.0           251.8           124.4          -127.4         5,606.1           353.5
    2000................................................         1,789.0           258.9           236.2           -22.7         5,628.8           362.0
Bush:
    2001................................................         1,863.9           268.2           127.1          -141.1         5,769.9           359.5
    2002................................................         2,011.0           270.7          -157.8          -428.5         6,198.4           332.5
    2003................................................         2,120.7           222.3          -199.2           468.6         6,619.9           324.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note.--Historical Tables. Budget of the US Government: Beginning in 1962, CBO's The Budget and Economic Outlook: Fiscal Years 2004-2013, January 2003.

  Mr. HOLLINGS. What will happen when we have the budget debate is they 
will have leadership amendments. They will have something on 
prescription drugs and they will have something on some other thing, 
whatever it is. Then the real important ones you submit for 2 minutes. 
You describe your amendment and everybody votes. Senators will not get 
the opportunity to see this, so I hope they will all get this out of 
the Congressional Record.
  When you talk about digging that hole, let me show you the hole we 
are really in. If, we have a deficit of $554 billion for this year, and 
last year we had a $428 billion deficit, and next year they project a 
$569 billion deficit--that, added together, is $1.5 trillion. That is 
$1.5 trillion of stimulus. We don't need a little dividend cut, or a 
little marriage penalty elimination to stimulate the economy. What we 
need is money and certainly not tax cuts, certainly not digging the 
hole. You are in a dickens of a hole if you are already in $1.5 
trillion in deficit without the cost of Iraq.
  For my colleagues, let me try to put this in perspective. If you add 
up all the deficits from Harry Truman in 1945 to Gerald Ford in 1975--
if you take the 30 years cumulative of all deficits, which include the 
cost of World War II, the cost of Korea, the cost of Vietnam--it adds 
up to $358 billion. We are already talking, not $300 some billion over 
30 years, but we are talking about $554 billion this year without the 
cost of Iraq.
  You are in real trouble when you have to estimate that and you see 
the interest cost now. Lyndon Johnson was the last President to balance 
the budget. In 1968-1969 he had a surplus. That is the last time. I was 
here.
  In fact, we met over on the House side, the distinguished chair--
George Mahon was chairman of the Appropriations Committee. We didn't 
have a Budget Committee. I am almost convinced that we ought to go back 
to that because there was a conscience. This whole budget process has 
now become a charade.
  But George Mahon said, you know the President is very, very sensitive 
about this guns and butter. We have to do something else, a little bit 
more if we are really going to balance it. He said, Call over to Marvin 
Watson and ask the President if we can cut another $5 billion, and we 
cut another $5 billion. If I am not mistaken, the budget at that time 
for guns, butter, the war in Vietnam was $178 billion.
  Now we have a budget of almost $2.1 trillion. We pay $324 billion in 
interest per year--it is estimated that when the interest rates go back 
up, it will be back up to a billion a day in interest.
  The first thing the Government does every morning at 8 when the banks 
open is borrow another $1 billion, every morning except Sunday this 
year. They are going to go down every day, including Saturday, 
including holidays. They will go down and borrow and add it to the 
debt. That is why we are running this $554 billion deficit.
  But these interest costs are just saddling us, when we are paying 
over $300-some billion in interest, as much as the defense budget, and 
all just waste just because we didn't pay our way. We used to pay our 
way. We used to pay for the war. Yes, tell my friend Robert Novak when 
he constantly says we are going to pay for the war by borrowing just 
like we did for guns and butter in Vietnam--no, no. President Lyndon 
Johnson paid and balanced the budget then.
  You have seen exactly what the score is with respect to digging a 
hole. I want to get right into the point of this so-called tax cut 
because nobody was better at stopping digging the hole and recognizing 
it, of course, than Mr. David Stockman. I had just come off the 
chairmanship of the Budget Committee, and I went over with Mr. Alan 
Greenspan to the Blair House and briefed President Reagan in December 
of 1980. I will never forget, the President said:

       Whoops, I had promised to balance the budget in 1 year. 
     From what you gentlemen are telling me it is going to take 3 
     years.

  That is when we went from a 1-year budget to 3 years. In 1981, I 
opposed those tax cuts, Reaganomics, what George Bush senior called 
voodoo. I opposed voodoo I. I opposed the increase in spending at that 
time because we all had a sense of responsibility. In order to stick it 
out and be able to serve around here, you have to go with the flow like 
the traffic in downtown Hanoi.
  Listen to this, from page 342 of ``The Triumph of Politics'':

       The President had no choice but to repeal or substantially 
     dilute the tax cut that would have gone far toward restoring 
     the stability of the strongest capitalist economy in the 
     world. Ronald Reagan chose not to be a leader but a 
     politician. His obstinacy was destined to keep America's 
     economy hostage to the errors of his advisers for a long, 
     long time.

  So under President Reagan, we had an $85.7 billion deficit in 1981, 
and it went up to $142.5 billion in 1982. That is when he was cutting 
taxes.
  The next thing you know it was up to $234 billion and he ended up 
with a $252 billion deficit by his eighth year in office.
  Then President George Herbert Walker Bush came in and he ended up 
with a $403 billion deficit. We never had over $100 billion in deficit 
until voodoo I came along.
  Let me talk about voodoo II. I watched that because I have been in 
the budget lead now for quite some time. I come from a State where in 
order to be elected governor you have to promise to pay the bill. But 
in that same State, in order to be elected to the Senate you have to 
promise not to pay the bill. I am against the government of let us cut 
taxes. So I know whereof I speak. I have experience in the budget.
  What happened when Governor Bush in September of 2000 said on the 
campaign trail said he was going to cut taxes. I sort of shook my head 
and smiled. I said, Well, that is campaign talk. That is not going to 
happen for the simple reason that we can't afford to be cutting taxes. 
But I sort of sobered up on the Friday after the election--on Tuesday 
in November 2000.

[[Page S3379]]

That is when Vice President-elect Cheney said, Yes, that is what we are 
going to do. When Vice President-elect Cheney said we were going to cut 
taxes, there was no recession yet.
  Please listen. Harken all. Lend me your ears, for I can tell you what 
really started that recession in 2001. It was when Alan Greenspan, the 
chairman of the Federal Reserve, came on January 25, 2001 before the 
Budget Committee and he attested to the fact that we were paying down 
too much debt. He gave title and interest to the young President George 
W. Bush. He gave him the go-ahead with this $5.6 trillion debt.
  Secretary of Treasury John Snow, former head of CSX and who used to 
head up the Business Roundtable, was always coming into my office 
because we were big admirers of CSX. He was always coming in worried 
about the budget and the deficits. When I talked to him on the phone 
before he became Secretary, I said, ``John, I see you are giving up two 
things.'' He said, ``What's that?'' I said, ``You are giving up your 
membership at Augusta National Golf Club, and you have given up any 
chance of balancing the budget and getting this Government out of the 
red. You are giving up on the deficit now, and you are going to head 
for deficits.''
  I ask unanimous consent to have this 2001 debt time line schedule 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                           2001 Debt Timeline

       On January 25, 2001, we were $65 billion in the red.
       On February 27, 2001, we were $53 billion in the red.
       On April 15, 2001, we were $94 billion in the red.
       On April 30, 2001, we were $13 billion in the black.
       On May 1, 2001, we were $23 billion in the black.
       On June 1, 2001, we were $4 billion in the black.
       On June 7, 2001, the President signed the $1.7 trillion tax 
     cut.
       On June 15, 2001, we were $41 billion in the black.
       On June 28, 2001, we were $52 billion in the red.
       On September 10, 2001, we were $99 billion in the red.
       On September 30, 2001, the end of the fiscal year, we were 
     $141 billion in the red.

  Mr. HOLLINGS. Mr. President, we have on January 25 the chairman of 
the Federal Reserve, Alan Greenspan, saying we are paying down too much 
debt.
  On February 27, 2001, the President submitted his budget for the 
first time, and he said, in essence, I protect Social Security. I have 
$2.6 trillion to protect Social Security. I have $2 trillion for 
defense and domestic programs, and I have $1 trillion for unforeseen 
circumstances.
  At the time Chairman Greenspan spoke, we were still in the red in 
deficits--$65 billion. When the distinguished President spoke on 
February 27 for the first time to Congress, we were $53 billion in the 
red. On April 15, the income tax time to make the returns, we were $94 
billion in the red. But with all the tax payments coming in on April 
15, by April 30 we were in the black by $13 billion. On May 1, we were 
$23 billion in the black. On June 1, we were $4 billion in the black. 
From the end of April to the first of June, we were in the black. But 
on June 7, the President signed the $1.7 billion tax cut, and by June 
28, 20 days after he put his signature to the tax cut, we were $52 
billion in the red. On September 10, we were $99 billion in the red.
  They all said 9/11 caused this deficit. No. The day before 9/11, we 
were already, as a result of the tax cut, $99 billion in the red when 
the President was talking about $1 trillion for unforeseen 
circumstances. We have only authorized since 9/11 for the 2002 war on 
terrorism $20 billion. At the Congressional Budget Office they say 9/11 
will only cost us $34 billion. Give them the double amount--some $60 
billion that 9/11 may have cost. But it didn't cost any trillion 
dollars, and it didn't cause us to go back into the red. The tax cut is 
what we are suffering from. And thereby, as the Washington Post said, 
the first rule is to stop digging. But we will be meeting on Wednesday 
and Thursday with the Budget Committee, and there they will be 
determined to come in with shovels and dig as deep as they possibly 
can.
  I happened to have fought with the French in World War II, and they 
are outstanding fighters. We are talking about NATO, how brave we are, 
how we are going into Iraq. I wish we had the courage to pay the bill. 
They say it is small by historical standards; that is, the deficit is 
2.7 percent of the gross domestic product. But when you look at the 
actual debt, when they don't use Social Security, then the deficit as a 
percent of the gross domestic product is 5.7 percent.
  The Greenspan Commission recommended that you are not to use Social 
Security trust funds, as the editorial points out, and that is exactly 
how they have lowered the deficit.
  You see, when the editorial says, ``The deficit numbers above are 
cushioned by including $2.6 trillion from the Social Security trust 
fund,'' that is against the law, Senator. That is against, section 13-
301, which passed the Senate 98 to 2.
  I wanted it to pass unanimously, but I could not get Senator 
Armstrong's vote. That is the one I missed, along with Senator 
Boschwitz's. I had the greatest--and still have the greatest--respect 
for both Senator Boschwitz and Senator Armstrong. I could not get their 
vote, but I got everyone else's. It went to President Bush senior on 
November 5, 1990, and he signed that into law.
  So under law, you are not supposed to be spending Social Security 
moneys on anything other than Social Security.
  For the Social Security trust funds, you can see that here we have 
spent $1.489 trillion. Everybody is running around saying: Save Social 
Security. We are going to have to reform Social Security. We are going 
to have to do this and do that. All they need to do is quit spending 
Social Security moneys on any and everything but Social Security. That 
is the whole problem.
  Of course, you can see what they are spending for Medicare, military 
retirement to civilian retirement, the unemployment compensation fund, 
the highways, the airports, the railroad retirement, and others.
  We are spending some $2.7 trillion already of all of these other 
trust funds. Yet we are going to do something on account of the baby 
boomers? I want to do something on account of the adults and get some 
conscience to this group up here and some awareness to the media and 
everybody to understand, let's have truth in budgeting.
  The Secretary of the Treasury puts it out every day--the public debt, 
to the penny--and you can see how much the debt goes up. The debt clock 
is running every second in New York for the people to see. But we give 
them Enron accounting. It is small here, and we have another figure 
here, and everything else. So you can see we are spending a little over 
$40-some billion per month.
  I think with that chart, and the distinguished Senator from Utah 
being here, I am sure I am using the Hatch rule on Estrada. Under the 
Hatch rule, you said, on another Hispanic nominee we had at one time, 
that you were worried she would be an activist and would legislate from 
the bench. That is exactly what I am worried about with Estrada.
  I appreciate the time of the body. I would be glad if somebody wants 
to debate Mr. Estrada. Tell them I know very little about him except 
for the fact that when he was given the opportunity to come up to get 
my vote for confirmation, he elected to rudely not answer. I know the 
gimmick, and I know what they are doing. I voted for Robert Bork. David 
Boren of Oklahoma and myself were the two Democrats who voted for 
Robert Bork. I am delighted to vote for conservatives. My State is 
conservative. But don't send a fellow up and think he can engage in 
that kind of monkey business of not even answering the questions.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I understand that we are on the Executive 
Calendar under the executive order; is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. CRAIG. And that we are considering the nomination of Miguel 
Estrada to the Tenth Circuit.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. CRAIG. I thank the Presiding Officer.

[[Page S3380]]

  Mr. President, I listened to my colleague from South Carolina for a 
good number of minutes and have always been fascinated by his review of 
the budget and budget processes.
  I am also always frustrated by the reality of a general fund budget, 
in a comprehensive budget policy under which we operate, and the 
fungibility of moneys, and the broad general system in which we take 
Social Security moneys, once appropriately registered in the trust 
funds of Social Security, and then it being moved into the general fund 
of our country; that, in fact, Social Security money is spent and bonds 
are taken out or loans are made against the trust funds and interest is 
bearing and money is replaced. So to suggest that trust fund moneys 
cannot be spent once they have been appropriately accounted for is a 
frustration.
  But let me stop there because I came to the floor this afternoon to 
once again speak about Miguel Estrada and his nomination and, of 
course, where the Senate is at this moment in time, which is not only 
important for all of us but important for the judiciary of our country, 
that we are able to bring to the floor of the Senate highly qualified 
men and women who have been appropriately vetted by the 
administration--no matter what administration it is--and that the 
nominations of these people are reviewed by the Judiciary Committee and 
then brought to the floor for a vote.
  What has gone on here for well over 4 weeks is the denial of that 
opportunity to vote. We did have a vote last week. It was a cloture 
vote. It is part of the inside ball game of the Senate that oftentimes 
those who are observers of what we do do not understand.
  We got 55 votes, if you will, for Miguel Estrada. My goodness, that 
is 50 percent plus 5 of a 100-member body. Surely, that would confirm 
this fine judicial nominee.
  Quite to the contrary, it was a cloture vote. Under a cloture vote, 
with a supermajority rule in the rules of the Senate, it simply says 
you have to get 60 before you have the right to get 50 plus 1 of those 
present and voting.
  That has to be awfully confusing for anyone listening or observing. 
Clearly, the rules of the Senate are to make sure that our Constitution 
is upheld, or at least a prescription of our Constitution, that 
requires that all States enter in and are members of the United States 
under our Constitution and are equal in the Senate. Therefore, we have 
historically, and appropriately so, erred on the side of protecting the 
minority. And that, of course, is the cloture process: to make sure 
that a supermajority finally decides it is time to vote on an issue.
  I hope that over the course of the next several weeks we can gain 
cloture and that we can get to the real vote, the honest vote, the fair 
vote, the appropriate vote of 50 plus 1 of those present and voting for 
the confirmation of Miguel Estrada under the advice and consent clause 
of our Constitution.
  Let me recap, for a few moments, some of the arguments we have heard 
on the floor of the Senate over the last several weeks about this fine 
nominee: We are asked, if you will, to rubberstamp everyone the 
President sends up, and we should not inquire, we should not be 
probative, we should not look into the individual's background.
  Well, that is an interesting argument, but it echoes in such a hollow 
way on the floor of the Senate when you look at the reality and the 
fact that Mr. Estrada has been before the Judiciary Committee for over 
2 years and that we have had now a very extensive filibuster--or shall 
I say extended debate--that has talked about almost every aspect of 
Miguel Estrada's professional life--his career and his life in general; 
that he was thoroughly investigated by the FBI, and those records were 
brought to the Judiciary Committee for all of us to examine, and 
somehow we are no ``rubberstamping,'' after literally hundreds and 
hundreds of pages of material, and the process of this investigation is 
now compiled in the Judiciary Committee on Mr. Estrada.
  Rubberstamping? I think not. Rubberstamping is not when any Senator 
can vote how he or she wishes. We are not suggesting that everybody 
vote yes. We are suggesting that everybody vote--yes or no, up or 
down--and that Mr. Miguel Estrada be given his day, as should the 
President be given the right to have his or her nominees brought to the 
floor for an up-or-down vote.
  I say to my colleagues on the other side, that ain't a rubberstamp; 
that is doing what you are asked to do when you are sworn in as a 
Member of the Senate--to vote up or down on the issue, face the tough 
votes, face the easy votes. I have one job here, as do 99 other 
Senators, and that is to come to the floor of the Senate and vote. That 
is what my State asks. That is the role I play for my State. That is 
all our President asks. I am quite sure that is what Miguel Estrada 
would like.
  Our colleagues have complained that Mr. Estrada is a ``blank slate;'' 
that there is not enough information for Senators to be able to make a 
responsible judgment about his ability to serve.
  You have heard my colleague from South Carolina say not all the 
questions have been answered. Well, Miguel Estrada has literally called 
every Senator's office and said, ``I will come and visit with you and I 
will respond to your questions.'' But, no, that is not good enough. We 
don't want him in our office; we want him before the committee again 
responding to the questions that the committee would choose to ask and, 
of course, we would like more of the record that he compiled while 
serving in the Justice Department under both Democrat and Republican 
Presidents.
  It is a very frustrating time we have here when, in fact, that which 
they argue has been answered not only once but twice or a hundred times 
over. When you, therefore, compile all of this and analyze the record, 
there has to be something more than just the background, just the 
information. I think it is, in fact, the politics of the issue today, 
and the effort on the part of the far left to cause the Democrat Party 
to try to deny Miguel Estrada his day on the floor of the Senate in an 
up-or-down vote with Members present and voting.
  Let me talk a little bit about some of the questions asked. I am 
quoting from a phenomenally comprehensive letter which was sent to the 
Senate by the legal counsel at the White House. I have it here. It is 
15 pages. Counsel to the President, Judge Gonzales, sent this up on 
February 12. It goes into great detail. I thought for a few moments I 
would, once again, for the record, talk of some of that detail and some 
of the answers that both Miguel Estrada has responded to and that Judge 
Gonzales, legal counsel to the White House, has responded to--only for 
those who are concerned about the Congressional Record that we compile 
here to clearly understand that the arguments placed by the other side 
are so hollow, they have hardly no echo today, because questions have 
been asked and answers have been given.

  Miguel Estrada answered the committee's questions--and this is 
according to Judge Gonzales. I was not there at the time. I now serve 
on the Judiciary Committee, but these questions were leveled at Miguel 
Estrada in the 107th Congress. I was not a member of the committee at 
that time.

       Miguel Estrada answered the Committee's questions 
     forthrightly and appropriately. Indeed, Miguel Estrada was 
     more expansive than many judicial nominees traditionally have 
     been in Senate hearings, and he was asked a far broader range 
     of questions than many previous appeals court nominees were 
     asked.

  He goes on to catalog the questions and the answers in the area of 
rights, privacy and abortion, unenumerated rights.

       When asked by Senator Edwards about the Constitution's 
     protection for rights not enumerated in the Constitution, Mr. 
     Estrada replied: ``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 a number of 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 Fourteenth Amendment.
       When asked by Senator Feinstein whether the Constitution 
     encompasses a right to privacy and abortion, Mr. Estrada 
     responded, ``The Supreme Court has so held, and I have no 
     view of any nature whatsoever, whether it be legal, 
     philosophical, moral, or any other type of view that would 
     keep me from applying that case law faithfully.'' When asked 
     whether Roe v. Wade was ``settled law,'' Mr. Estrada replied, 
     ``I believe so.''


[[Page S3381]]


  That is a pretty straightforward answer. That is as clear as you can 
get on issues of privacy and abortion. I cannot understand why the 
other side cannot accept that as a responsible and clear answer.

       General approach to judging.

  In other words, what is your philosophy? How do you react?

       When asked by Senator Edwards about judicial review, Mr. 
     Estrada explained: ``Courts take the laws that have been 
     passed by you [meaning the Senate] and give you the benefit 
     of understanding that you take the same oath that they do to 
     uphold the Constitution, and therefore they take the laws 
     with the presumption that they are constitutional. It is the 
     affirmative burden of the plaintiff to show that you have 
     gone beyond your oath. If they come into court, then it is 
     appropriate for courts to undertake to listen to the legal 
     arguments--why it is that the legislature went beyond [its] 
     role as a legislature and invaded the Constitution.''
       Mr. Estrada stated to Senator Edwards that there are 200 
     years of Supreme Court precedent and that it is not the case 
     that ``the appropriate conduct of the courts is to be guided 
     solely by the bare text of the Constitution because that is 
     not the legal system that we have.

  In other words, he was talking to that precedent in relation to the 
strictness of the Constitution.

       When asked by Senator Edwards whether he was a strict 
     constructionist, Mr. Estrada replied that he was ``a fair 
     constructionist,'' meaning that, ``I don't think that it 
     should be the goal of the courts to be strict or lax. The 
     goal of the court is to be right. . . . It is not necessarily 
     the case in my mind that, for example, all parts of the 
     Constitution are suitable for the same type of interpretive 
     analysis. . . . [T]he Constitution says, for example, that 
     you must be 35 years old to be our chief executive. . . . 
     There are areas of the Constitution that are more open-ended. 
     And you adverted to one, like the substantive component of 
     due process clauses, where there are other methods of 
     interpretation that are not quite so obvious that the court 
     has brought to bear to try to bring forth what the 
     appropriate answer should be.

  That is an understandable answer when the law is as specifically as 
35 years; that is interpretive. When the Constitution gives you the 
opportunity for some interpretation, of due process, then of course 
that goes to the fairmindedness of the individual judge involved within 
the framework of precedent so ruled.
  When Senator Kohl asked him about the environmental statutes, for 
example, Mr. Estrada explained that those statutes come to court with a 
``strong presumption of constitutionality.'' In other words, there is a 
presumption that those laws that the Congress of the United States 
passes are constitutional by their passage, only later to be tested in 
the courts to find out how constitutional or if they can withstand that 
test.
  In response to Senator Leahy, Mr. Estrada described the most 
important attributes of a judge:

       The most important quality for a judge, in my view, Senator 
     Leahy, is to have an appropriate process for decisionmaking. 
     That entails having an open mind. It entails listening to the 
     parties, reading the briefs, going back beyond those briefs 
     and doing all of the legwork needed to ascertain who is right 
     in his or her claims as to what the law says and what the 
     facts [are]. In a court of appeals court, where judges sit in 
     panels of three, it is important to engage in deliberation 
     and give ear to the views of colleagues who may have come to 
     different conclusions. And in sum, to be committed to judging 
     as a process that is intended to give us the right answer, 
     not to a result.

  In other words, not to what had been planned or anticipated but the 
right answer in relation to the law and the Constitution.

       And I can give you my level best solemn assurance that I 
     firmly think I do have those qualities or else I would not 
     have accepted the nomination.

  Here, of course, he is talking about his own character, his own 
makeup, the thinking processes that have allowed Miguel Estrada over 
the years to rise as far as he has and to be recognized by most as a 
very brilliant legal mind.
  In response to Senator Durbin, Miguel Estrada stated that:

       The Constitution, like other legal texts, should be 
     construed reasonably and fairly, to give effect to all that 
     its text contains.

  Mr. Estrada indicated to Senator Durbin that he admires the judges 
for whom he clerked: Justice Kennedy, Judge Kearse, as well as Justice 
Lewis Powell.
  Miguel Estrada stated to Senator Durbin:

       I can absolutely assure the committee that I will follow 
     binding Supreme Court precedent until and unless such 
     precedent has been displaced with subsequent decisions by the 
     Supreme Court itself.

  That is an interesting and a very important response to a question 
that many will argue he has not been asked or he has denied or refused 
to answer. Let me repeat that. When asked about how he will respond to 
certain cases brought before the court as it relates to decisions made 
by the Supreme Court, he said:

       I can absolutely assure the committee that I will follow 
     binding Supreme Court precedent until and unless such 
     precedent has been displaced by subsequent decisions of the 
     Supreme Court itself.

  In response to Senator Grassley, Mr. Estrada stated:

       When facing a problem for which there is not a decisive 
     precedent from a higher court, my cardinal rule would be to 
     seize aid from any place where I can get it. Depending on the 
     nature of the problem, that would include related case law in 
     other areas that higher courts had dealt with that had some 
     insight to teach with respect to the problem at hand. It 
     could include the history of the enactment, including 
     a statute's legislative history. It should include the 
     custom and practice under any statute or document. It 
     should include the views of the academicians to the extent 
     they purport to analyze what the law is, instead of 
     prescribing what it should be. And in sum, as Chief 
     Justice Marshall once said, to attempt not to overlook 
     anything from which aid might be derived.

  There is a very open, probative, bright mind responding to that kind 
of question. You go to the resources at hand to ultimately compile the 
information from which to make a decision, to make judgment.
  In response to Senator Sessions, Mr. Estrada said:

       I am firmly of the view that although we all have views on 
     a number of subjects from A to Z, the first duty of a judge 
     is to self-consciously put that aside and look at each case 
     by starting withholding judgment with an open mind and an 
     answer to the parties. So I think the job of a judge is to 
     put all of that aside and, to the best of his human capacity, 
     to give a judgment based solely on the arguments and the law.

  Again, straightforward, very clear answers with which I think all 
should be satisfied.
  In response to Senator Sessions, Mr. Estrada stated:

       I will follow binding case law in every case. I may have a 
     personal, moral, philosophical view on the subject matter, 
     but I undertake to you that I would put all that aside and 
     decide in accordance with binding case law and even in 
     accordance with the case law that is not binding but seems 
     constructive on that area, without any influence whatsoever 
     from my personal view I may have about the subject matter.

  The letter goes on to deal with Miranda, with congressional 
authority, ethnicity, racial discrimination, right to counsel, 
congressional authority to regulate firearms--phenomenally complete 
responses to very critical questions that speak to the mind and the 
legal training of a tremendous talent whose nomination we now have 
before us.
  Somehow that is not good enough. Somehow our colleagues on the other 
side, time and again, have said: No, no, we need to go back to the 
committee to ask the questions. We need now all of the legal drafts and 
the memos that are a part of Mr. Estrada's record at the Justice 
Department when he worked there for both Presidents Bush, Sr. and 
President Clinton and, of course, Democrats and Republicans alike have 
said those are simply off the record and we cannot go there, nor should 
we go there.
  The question is: Why go there at this time when we now have such a 
very complete record that speaks to the mind, the temperament, the 
judgment, the talent of Miguel Estrada? I think the answer is quite 
simple: We should not.
  There is a simpler answer, and it is one we seek and one we have 
asked our colleagues for, and that is the right for an up-or-down vote 
on the floor of the Senate. Under the advise and consent clause of our 
Constitution, I am one who firmly believes that is the responsibility 
of the Senate, to review, to analyze, to be probative, as we have, but 
ultimately to bring a President's nominee to the floor for the purpose 
of a vote, a 50-percent plus 1 vote of those present and voting. I 
firmly believe that.
  We are going to continue to pursue the confirmation of Miguel 
Estrada, as we must. We can simply not allow a nominee to come to the 
floor and for those who are in opposition to simply

[[Page S3382]]

filibuster until all are exhausted and we all retreat into the shadows 
because no one wants to vote up or down. That is quite the opposite in 
this case. We clearly do need a vote. We want a vote. Let us not hide 
behind the supermajority in this instance. That is not an excuse for 
the ultimate oath of office that we have taken and the responsibility 
that we have at hand as Senators.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Ms. Mikulski are printed in today's Record under 
``Morning Business.'')
  Ms. MIKULSKI. Mr. President, 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. JEFFORDS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. JEFFORDS. Mr. President, I ask unanimous consent to speak for 5 
minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Jeffords are found in today's Record under 
``Morning Business.'')
  Mr. JEFFORDS. I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I inquire of the Presiding Officer, are we 
now automatically returned to the period of time allocated to the 
pending nomination for the circuit court of appeals?
  The PRESIDING OFFICER. The Senate is now in executive session on the 
Estrada nomination. That is the pending order of business.
  Mr. WARNER. I thank the distinguished Presiding Officer.
  Mr. President, article II, section 2 of the Constitution provides 
that the President:

       Shall nominate by, and by and with the Advice and Consent 
     of the Senate, shall appoint . . . Judges of the supreme 
     Court, and all other Officers of the United States. . . .

  As I read that historic phrase, and reflect and study on the history 
behind it, I reach the conclusion that these are coequal powers as it 
relates to the Federal judiciary responsibilities. They are balanced 
powers and, as such, they give strength to that time-honored doctrine 
of checks and balances between the three separate but coequal branches 
of our Federal Government.
  The debate before us today goes to the very heart of our Constitution 
and the doctrine of checks and balances. As such, we should examine the 
very roots of our Republic to determine these respective 
responsibilities of the three branches of our Government.
  The magnificence of the ``great experiment,'' a term used by the 
skeptics of the work of our Founding Fathers, is what has enabled our 
Republic to stand today, after over 200 years, as the longest surviving 
democratic form of government still in existence.
  I remember one time I used that phrase in an audience of some very 
erudite individuals. One person jumped to their feet and said: Oh, no, 
Switzerland. And I reminded them that Napoleon crossed the Alps and 
severed the continuity of that wonderful government.
  So there we are, these proud States, forming our Republic known as 
the United States. The survival of that great experiment is dependent 
upon the continuous fulfillment of the balanced, individual 
responsibilities of the three branches of our Government.
  I reflect now on the history of that clause ``advice and consent.''
  During the Constitutional Convention, the Framers labored extensively 
over this clause, deferring for several months a final decision on how 
to select Federal judges. Some of the Framers argued that the President 
should have absolute and total authority to choose members of the 
judiciary. Others thought both the House of Representatives and the 
Senate should be involved in providing advice and consent. Ultimately, 
a compromise plan put forth by that distinguished Virginian, James 
Madison, won the day where the President would nominate the judges, and 
only the Senate, only one branch of the Congress, would render advice 
and consent. Such a process is entirely consistent with the system of 
checks and balances, that inherent doctrine in the Constitution that 
the Framers carefully placed throughout many provisions of the 
Constitution.
  Presidents select those who should serve on the judiciary, thereby 
providing a philosophical composition of that President and the times 
in which he is privileged to serve in that office. However, the Senate 
has a check on the President because it is the final arbiter with 
respect to a nominee. But I look at those responsibilities as coequal, 
a check and a balance, but neither branch of Government, executive nor 
the legislative, has a power greater. I think they are coequal in the 
exercise of joint responsibility to, in fact, create the third branch, 
the Federal judiciary, through this process.

  Historically, judicial nominations have needed only a majority of 
votes in the Senate for confirmation. I think that long history is for 
good reason. It is to preserve the inherent checks and balances and the 
coequal responsibility between the two branches in creating the 
judiciary. Only once, in these 200-plus years, has a judicial nominee 
been rejected by the Senate due to a filibuster. That was Abe Fortas, a 
nominee for the Supreme Court.
  Indeed, a simple majority of votes in support of the confirmation of 
a nominee is also consistent with the Constitution which specifically 
spells out instances where, for example, a supermajority of votes is 
needed. For example, under the Constitution, two-thirds of the Senate 
must vote to ratify a treaty. Two-thirds of the Senate must vote to 
convict on an article of impeachment. Two-thirds of a House of Congress 
must vote to expel a Member of that body. Two-thirds of each House of 
Congress must vote to override a President's veto, and two-thirds of 
each House must vote to propose an amendment to the Constitution.
  So when the Framers wanted to change the power structure as it 
relates to the respective duties of the branches, it did so expressly 
by creating the two-thirds supermajority vote.
  In this instance, we are talking about a Senate rule which requires 
60 votes to stop a filibuster. It is not constitutional. It is a Senate 
rule. The Framers did not think a supermajority was needed. The Framers 
probably did not have in mind the possibility someday of a 60-vote 
filibuster.
  So I come back that it is clear that the Constitution wanted to have 
a coequal responsibility and balance of power between the two branches 
as it related to their respective functions in forming and creating the 
Federal judiciary.
  If the Framers intended judicial nominees to be subjected to a 
supermajority vote, they would have included such language in the 
Constitution. In my view, the reason they did not include a 
supermajority requirement in regard to judicial confirmations is that 
otherwise it might prove too difficult for certain judicial nominees to 
be confirmed. If the bar was set too high, then the Senate would have 
far more power in the judicial process than the President. The checks 
and balances concept of our Founding Fathers would cease.
  Is this what the Framers intended, that that inherent balance of 
power should in any way be violated? Absolutely not. We do not want the 
checks and balances concept to cease in the case of judicial 
nominations.
  I recognize the filibuster, a rule created by the Senate itself and 
not by the Constitution, obviously does require the Senate to have 60 
votes in certain circumstances in order for it to proceed. But in the 
context of judicial nominations, use of the filibuster to defeat a 
nominee would thwart the carefully crafted system of checks and 
balances put into place in our Constitution by the infinite wisdom of 
the Framers of that Constitution.

[[Page S3383]]

  Throughout the quarter of a century I have been privileged and had 
the honor of representing the Commonwealth of Virginia in the Senate, I 
have conscientiously in each of those years under all of the Presidents 
I have served with made the effort to work on judicial nominations in a 
fair and objective way, recognizing the doctrine of checks and balances 
and the coequal authority of the two branches.
  Whether our President was President Carter, President Ronald Reagan, 
President George Bush, President Clinton, or President George W. Bush, 
I have been privileged to accord equal weight to the nominations of all 
Presidents, irrespective of party. I have done so because of my belief 
that if the concept of equal power sharing and the concept of checks 
and balances was lost in the judicial confirmation process, then we may 
ultimately discourage many highly qualified men and women nominees from 
offering to serve in our judiciary.
  Certainly each Senator is entitled to vote for or against a 
particular nominee for any reason he or she deems important. And it is 
clear our Framers did not intend the Senate's role in the advice and 
consent process to be a rubberstamp. No one is suggesting that. 
Exercise your authority. Exercise your judgment. Do it fairly. Do it 
consistently with the doctrine of checks and balances inherent in the 
Constitution.
  This much is evident from history. Soon after the Constitution was 
ratified, the Senate rejected a nomination put forward by our first 
President, our founding father, George Washington.
  President Washington nominated John Rutledge to serve on the U.S. 
Supreme Court. Even though Mr. Rutledge had previously served as a 
delegate to the Constitutional Convention, the Senate rejected his 
nomination. It is interesting to note many of those Senators who voted 
against the Rutledge nomination were also delegates to the 
Constitutional Convention.
  The key differences between the Rutledge nomination of over 200 years 
ago and the Estrada nomination of today is that Mr. Rutledge received 
an up-or-down vote. A simple majority controlled. The early Members of 
our Senate, some of whom participated in the Constitutional Convention, 
allowed an up-or-down vote on Mr. Rutledge even though they opposed 
him.
  On the other hand, Mr. Estrada has not received a vote and he is 
being subjected to a filibuster-proof majority for confirmation.
  Our Founding Fathers, I say to my colleagues, were not so prudent of 
the requirement for the 60 votes.
  Mr. Estrada is being opposed simply because of his political 
ideology. In the view of this Senator we ought to accord equal weight 
to a President's nominees, irrespective of party. I have tried to abide 
by this principle throughout my 25 years in the U.S. Senate.
  For example, in the 106th Congress and the 107th Congress, I was 
honored to support the nomination of Roger Gregory. Judge Gregory was 
originally nominated by President Clinton and he was supported by 
Virginia's former Democratic Governor Doug Wilder.
  Regardless of political ideologies, and regardless of which President 
nominated him, Judge Gregory was highly qualified to sit on the bench. 
We are fortunate to have him on the United States Court of Appeals for 
the Fourth Circuit. Judge Gregory is now the first African American 
Judge to ever serve on the United States Court of Appeals for the 
Fourth Circuit, and he is serving with distinction.
  Judge Gregory's qualifications were clear cut. Regardless of which 
President nominated him, he deserved the support of the United States 
Senate.
  Like Judge Gregory, Miguel Estrada's nomination is also a clear-cut 
case.
  Mr. Estrada has received a unanimous ranking of ``well qualified'' by 
the American Bar Association. In my view, his record indicates that he 
will serve as an excellent jurist.
  Mr. Estrada's resume is an impressive one. Born in Honduras, Miguel 
Estrada came to the United States at the age of 17. At the time, he was 
able to speak only a little English. But, just 5 years after he came to 
the United States, he graduated from Columbia College with Phi Beta 
Kappa honors.
  Three years after he graduated from Columbia, Mr. Estrada graduated 
from Harvard Law School where he was an editor of the Harvard Law 
Review.
  Mr. Estrada then went onto serve as a law clerk to a Judge on the 
United States Court of Appeals for the 2nd Circuit and as a law clerk 
to Judge Kennedy on the United States Supreme Court.
  After his clerkships, Mr. Estrada worked as an Assistant United 
States Attorney, as an assistant to the Solicitor General in the 
Department of Justice, and in private practice for two prestigious law 
firms.
  Throughout his career, Mr. Estrada has prosecuted numerous cases 
before federal district courts and federal appeals courts. He has 
argued 15 cases before the U.S. Supreme Court.
  Without a doubt, Mr. Estrada's legal credentials make him well 
qualified for the position to which he was nominated. I am thankful for 
his willingness to resume his public service, and I am confident that 
he would serve as an excellent jurist.
  In closing, Mr. President, it is clear to me that the Senate's role 
in the confirmation process is more than just a mere rubber-stamp of a 
President's nomination; but it is the Senate's constitutional 
responsibility to render ``advice and consent'' after a fair process of 
evaluating a President's nominee. After that process is complete, 
nominees who emerge from the Judiciary Committee ought to be accorded 
up or down vote.
  Should a Senate rule overrule the Constitutional responsibilities of 
checks and balances? I think it should not.
  Thomas Jefferson once remarked on the independence of our three 
branches of government by stating, ``The leading principle of our 
Constitution is the independence of the Legislature, Executive, and 
Judiciary of Each other.''
  I would add that each branch of government must perform its 
respective responsibilities in a fair and timely manner to ensure that 
the three branches remain independent.
  In my view, we must ask ourselves:
  Is the current filibuster of Miguel Estrada's consistent with our 
country's last 200 plus years since our Constitution was ratified?
  Are we fulfilling our constitutional responsibilities to preserve the 
doctrine of checks and balances?
  In my view, we don't want to set a precedent that alters the inherent 
responsibilities of checks and balances in the judicial confirmation 
process.
  But, these questions are for each Senator to decide upon.
  I for one, though, fear the precedent that would be set if the Senate 
does not support cloture for Miguel Estrada and I fear what it might 
mean for the future of our Judiciary, and the future of our Republic.
  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. SANTORUM. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SANTORUM. Mr. President, I ask unanimous consent that the 
scheduled vote this evening on the Frost nomination now occur at 5:45, 
provided that debate time from 5 p.m. to 5:45 p.m. be equally divided 
as under the earlier order.
  Mr. REID. No objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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