[Congressional Record Volume 149, Number 39 (Tuesday, March 11, 2003)]
[Senate]
[Pages S3429-S3454]
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 VICE PRESIDENT. Under the previous order, the hour of 11 a.m. 
having arrived, 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 VICE PRESIDENT. Under the previous order, the time until 12:30 
p.m. shall be equally divided between the two leaders or their 
designees.
  The majority leader is recognized.
  Mr. FRIST. Mr. President, thank you for presiding this morning. I 
appreciate your participation as our Presiding Officer in what we all 
recognize is an important moment for the Senate, the Senate that we all 
serve.
  I have asked for this session over approximately the next hour and a 
half because one of our most important roles as Senators is to vote on 
executive nominations, including judges, lifetime appointees, who serve 
such a vital role in our constitutional design.
  Because of the current debate, I have looked to our Founders for some 
guidance. John Adams, who helped create our Federal judiciary with his 
independence and its lifetime appointments, gave us a guide. He wrote 
that judges should be:

       Men of experience on the laws, of exemplary morals, 
     invincible patience, unruffled calmness, indefatigable 
     application. . . (and) subservient to none.

  This is a high standard for a nominee and one I believe that Miguel 
Estrada has met. But it is also a charge for our Senate as the steward 
of an independent judiciary. Has the Senate met

[[Page S3430]]

the Adams test or has this unprecedented filibuster and delay brought 
us all to the point of failing to meet that charge of John Adams?
  Elected by my constituents, I am a Senator. Selected by my 
colleagues, I serve as Republican leader. Recognized by the Chair, I 
act as majority leader. With these responsibilities, I am entrusted as 
a guardian of the Senate. Its institutions, its traditions, its 
obligations are my unique charge, not only as leader but as a Member.
  I am sensitive to this serious responsibility and I look forward to 
the discussion over the next hour and a half as we elevate the debate 
to what was intended under advise and consent as spelled out in the 
Constitution. As we move forward in the conversation over the course of 
the morning, with not just this nomination at issue but, really, our 
overall function as an institution under scrutiny, I will listen to all 
to hear their concerns and ideas about how best to move forward in a 
way that does justice to this nominee, but also to our institution and 
our Constitution.
  To that end, our president, George Bush, has sent a letter to Senator 
Daschle and myself on this topic. Among his observations, he wrote the 
following:

       I ask Senators of both parties to come together to end the 
     escalating cycle of blame and bitterness and to restore 
     fairness, predictability, and dignity to the process. I ask 
     that the Senate take action, including adoption of a 
     permanent rule, to ensure timely up or down votes on judicial 
     nominations both now and in the future, no matter who is 
     President or which party controls the Senate. This is the 
     only way to ensure that our judiciary works and that good 
     people remain willing to be nominated to the Federal bench.
       All senators should have a chance to have their voices 
     heard and their votes counted. All Presidents should have 
     their judicial nominees considered and voted upon in a 
     reasonable time. All nominees considered and voted upon in a 
     reasonable time. All nominees should have the certainty of an 
     up-or-down Senate vote within a reasonable time. All judges 
     should have the assurance that vacancies on their courts will 
     not persist for years. And all Americans should have the 
     assurance that the federal courts will remain open and fully 
     staffed to resolve their disputes and protect their rights 
     and liberties.

  As leader, I tend to listen closely and patiently to the deeply held 
opinions expressed on the floor in hopes we can rise above the moment 
and act as our Founders intended. I ask unanimous consent the letter 
dated March 11 to myself and Senator Daschle from the President of the 
United States be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              The White House,

                                   Washington, DC, March 11, 2003.
     Hon. Bill Frist,
     Majority Leader, U.S. Senate, Washington, DC.
       Dear Senator Frist: The Senate is debating the nomination 
     of Miguel A. Estrada to be a Judge of the United States Court 
     of Appeals for the District of Columbia. Miguel Estrada's 
     life is an example of the American Dream. He came to this 
     country from Honduras as a teenager barely speaking English 
     and went on to graduate with honors from Harvard Law School. 
     He has argued 15 cases before the Supreme Court of the United 
     States and served in the United States Department of Justice 
     under Presidents of both political parties. The American Bar 
     Association has given him its highest rating. When appointed, 
     he will be the first Hispanic ever to serve on the D.C. 
     Circuit.
       I submitted Mr. Estrada's nomination to the Senate on May 
     9, 2001. But his nomination has been stalled for partisan 
     reasons for nearly 2 years in which the Senate has not held a 
     vote either to confirm or to reject the nomination.
       The Senate has a solemn responsibility to exercise its 
     constitutional advice and consent function and hold up or 
     down votes on judicial nominees within a reasonable time 
     after nomination. Senators who are filibustering a vote on 
     Miguel Estrada are flouting the intention of the United 
     States Constitution and the tradition of the United States 
     Senate. The filibuster is the culmination of an escalating 
     series of back-and-forth tactics that have marred the 
     judicial confirmation process for years, as many judicial 
     nominees have never received up or down Senate votes. And 
     now, a minority of Senators are threatening for the first 
     time to use ideological filibusters as a standard tool to 
     indefinitely block confirmation of well-qualified nominees 
     with strong bipartisan support. This has to end.
       The judicial confirmation process is broken, and the 
     consequences for the American people are real. Because of the 
     Senate's failure to hold timely votes, the number of judicial 
     vacancies has been unacceptably high during my Presidency and 
     those of President Bill Clinton and President George H.W. 
     Bush. The Chief Justice has warned that the high number of 
     judicial vacancies, when combined with the ever-increasing 
     caseloads, leads to crowded courts and threatens the 
     administration of justice. When understaffed, the Federal 
     courts cannot act in a timely manner to resolve disputes 
     that affect the lives and liberties of all Americans. The 
     courts cannot decide constitutional cases promptly, which 
     harms people seeking to vindicate and protect their 
     rights, and the courts cannot rule on commercial cases 
     efficiently, which hurts the economy, businesses, and 
     workers. Our system of equal justice under law 
     administered fairly and efficiently is at risk. The 
     American Bar Association in 2002 accurately described the 
     situation as an ``emergency.''
       My concern about the state of the judicial confirmation 
     process is not new. In June 2000, I proposed timely votes for 
     all nominees, stating that the confirmation process ``does 
     not empower anyone to turn the process into a protracted 
     ordeal of unreasonable delay and unrelenting investigation.'' 
     In May 2001, when I announced my first judicial nominations, 
     I urged the Senate to rise above the bitterness of the past 
     and again asked that every judicial nominee receive a timely 
     up or down vote. In October 2002, after nearly two additional 
     years in which too many nominees did not receive votes, I 
     proposed a specific, commonsense plan involving all three 
     Branches that, among other steps, would ensure that all 
     judicial nominees receive an up or down Senate vote within 
     180 days of nomination.
       Over the years, many Senators of both political parties 
     have publicly agreed with the principle that every judicial 
     nominee should receive a timely up or down Senate vote. 
     Similarly, the Federal Judiciary, speaking through the Chief 
     Justice in his 2001 Year-End Report, has stated that the 
     Senate should ``schedule up or down votes on judicial 
     nominees within a reasonable time after receiving the 
     nomination.''
       I ask Senators of both parties to come together to end the 
     escalating cycle of blame and bitterness and to restore 
     fairness, predictability, and dignity to the process. I ask 
     that the Senate take action, including adoption of a 
     permanent rule, to ensure timely up or down votes on judicial 
     nominations both now and in the future, no matter who is 
     President or which party controls the Senate. This is the 
     only way to ensure that our Judiciary works and that good 
     people remain willing to be nominated to the Federal bench.
       All Senators should have a chance to have their voices 
     heard and their votes counted. All Presidents should have 
     their judicial nominees considered and voted upon in a 
     reasonable time. All nominees should have the certainty of an 
     up or down Senate vote within a reasonable time. All Judges 
     should have the assurance that vacancies on their courts will 
     not persist for years. And all Americans should have the 
     assurance that the Federal courts will remain open and fully 
     staffed to resolve their disputes and protect their rights 
     and liberties.
       As I stated last October, the current state of affairs in 
     the United States Senate is not merely another round of 
     political wrangling. It is a disturbing failure to meet a 
     responsibility under the Constitution. Our country deserves 
     better, the process can work better, and we can make it 
     better. The Constitution has given us a shared duty, and we 
     must meet that duty together. Thank you for your attention to 
     this important matter.
           Sincerely,
                                                   George W. Bush.

  Mr. FRIST. Mr. President, I will designate Senator Hatch to be in 
control of the remaining time on the Republican side.
  With that, I yield the floor.
  The VICE PRESIDENT. The Democratic leader is recognized.
  Mr. DASCHLE. Mr. President, I regret to say that the White House and 
many of our Republican colleagues have twisted this debate beyond all 
recognition. It is sadly ironic that Republicans now seek to cast this 
as a debate about constitutionality, for it is Republicans who 
evidently are quite ready to throw over our Constitution's enduring 
principles merely because they do not fit the politics of the moment.
  Democrats have been accused of subverting the Constitution for mere 
political gain. We have been accused of subjecting a nominee to 
``unprecedented obstructionism.'' We have been accused of employing 
these tactics in the service of racism. Enough is enough. It is time to 
call the rhetoric of some of our Republican colleagues for what it is: 
Rank hypocrisy and cynical manipulation of fact.
  While in the majority, Democrats facilitated the confirmation of 100 
of the President's nominees to the Federal bench. After proving our 
cooperation, we now have the temerity to ask one nominee a series of 
simple questions that go directly to the question of his qualifications 
and judicial temperament.
  We asked the administration to provide the documents the nominee 
drafted during his tenure at the Department

[[Page S3431]]

of Justice, documents that have been provided by both Democratic and 
Republican administrations in the past. We ask these questions not to 
score cheap political points but to fulfill our solemn obligations 
under the Constitution.
  The Senate, not just the Senate majority but the entire Senate, is 
required under the Constitution to provide advice and consent to the 
President on his nominations. All we have asked is that we be given the 
information necessary to provide that informed consent. Mr. Estrada, 
however, has chosen not to cooperate.
  That is his right. But it is our constitutional duty to reserve our 
judgment until we know the whole picture.
  Imagine a job applicant refusing to fill out the last four pages of a 
five-page application.
  You couldn't get a job flipping burgers with that response. Surely, 
the American people would not reward such intransigence with a lifetime 
appointment to the second-most powerful court in the land.
  Republicans disagree, and so it is the recalcitrance of the nominee 
and the administration, not Democratic opposition, that is responsible 
for this delay today.
  Today, Republicans, one after another, will come to this chamber to 
claim that they are shocked that any nominee could be treated to this 
unprecedented obstructionism.
  Let me be charitable and say that only willful amnesia allows our 
colleagues to levy such charges.
  In 1994, Senate Republicans stood before this chamber trying to 
persuade their colleagues to filibuster one of President Clinton's 
nominations to the Federal bench.
  The current Chairman of the Judiciary Committee said then that the 
minority has to protect itself and those the minority represents.''
  In 2000, the Senate was forced to vote on cloture because for 4 
years, Republicans filibustered judicial nominee, Richard Paez and, for 
two years, Marsha Berzon.
  Fifteen Republican Senators, including Senator Frist, Senator Inhofe, 
Senator Craig, Senator Brownback, Senator DeWine, and others voted to 
continue the filibuster of Richard Paez.
  Thirty Senators voted to ``indefinitely postpone``--quoting from the 
resolution--Mr. Paez's nomination, which had then been pending for more 
than 1,500 days. That's right, 1,500 days.
  No Republicans objected then. No Republican expressed concern for the 
unprecedented obstructionism that could endanger the Constitution that 
we are likely to hear about this morning.
  No Republican dared to castigate his colleagues by calling the 
opposition to Mr. Paez ``anti-Hispanic.''
  But the truth is, by comparison to the treatment of other nominees by 
the Republican majority, Mr. Paez and Ms. Berzon could almost be 
considered fortunate; at least their nominations made it to the floor.
  Under the Republican majority, more than 50 different Clinton 
administration judicial nominees saw their nominations killed, not 
because of the shared objections of 41 Republican Senators, but because 
a single Senator chose to place an anonymous hold on their nomination. 
These nominations never received a hearing or a vote in the Judiciary 
Committee, let alone consideration on the floor of the Senate.
  By describing this sad history, I do not mean to indicate how the 
confirmation process should work. It should not.
  The President promised he would work with us on his judicial 
nominees. But instead he continues to nominate many extraordinarily 
controversial candidates.
  We stand ready to cooperate in the nomination and confirmation of 
qualified judges who will enforce the law and protect the rights of all 
Americans. We demonstrated that on many occasions already in this 
Congress.
  But we fear that we will be kept waiting.
  The suggestion that the Democratic request for information is 
inappropriate is equally ludicrous.
  When Robert Bork was nominated to the Supreme Court, the Senate 
sought and received his memos as Solicitor General, including one to 
the President on the application of Executive privilege to the case of 
the Nixon audiotapes.
  When Justice William Rehnquist was nominated to the Supreme Court, 
the Senate sought and received all of the memos that he had written as 
a clerk to Justice Robert Jackson.
  When Stephen Trott was nominated to the Ninth Circuit, the Senate 
sought and received line attorney memos regarding the appointment of 
special prosecutors.
  When Benjamin Civiletti was nominated to be Attorney General, the 
Senate sought and received his line attorney memos regarding anti-trust 
settlement recommendations.
  And when William Bradford Reynolds was nominated for Associate 
Attorney General, the Senate sought and received his memos to the 
Solicitor General regarding a discrimination case, a school prayer 
case, and internal legal memos on a redistricting case.
  Our request for information from Mr. Estrada is both appropriate and 
well-grounded in precedent. Yet because that precedent stands in the 
way of their political ends, Republicans now seek to deny their own 
words and their own actions.
  They are here today claiming that the Constitution is threatened by 
the very same procedures they themselves employed. They are here today 
claiming that the Constitution can be threatened by the very same 
powers that it grants.
  The Constitution is secure. The Democrats support it by refusing to 
let one third of our Government become a rubber stamp.
  Alexander Hamilton, foremost among the Framers in his support for a 
strong presidency, wrote in the Federalist Papers that the Senate's 
role in confirmations was an indispensable check on executive power.
  In explaining the advise and consent clause, he wrote:

       Might not [the President's nomination] be overruled? I 
     grant that it might. . . . [but] if by influencing the 
     President be meant restraining him, that is precisely what 
     must have been intended.

  Mr. President, every Member of this body took an oath ``to uphold and 
defend the Constitution of the United States.'' That is exactly what 
Democrats are doing.
  I yield the floor.
  The VICE PRESIDENT. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I have listened to the distinguished 
majority leader, and I have been very interested in what he has had to 
say. The fact is, in spite of what he has said, there has never been a 
filibuster that has been successful against a circuit court of appeals 
nominee--never--in the history of the Senate.
  During the time President Clinton was President of the United States, 
I was chairman of the committee for 6 years. I admit there were some on 
our side who wanted to filibuster some of his nominees. I worked very 
hard and diligently to make sure no filibuster could succeed. As a 
matter of fact, I don't think there was a serious, true filibuster at 
any time against any of the Clinton nominees.
  I suppose people can have their own viewpoint, but the fact is that 
we helped to make sure no filibuster would succeed. We on this side 
made sure--the leadership on this side, including myself as leader of 
the Judiciary Committee--that no filibuster would succeed.
  In fact, there is only one filibuster in the history of the country 
that has succeeded, and that was against Justice Fortas, back in 1968. 
I do not agree with that. I think it was the wrong thing then. It is 
the wrong thing now. It is really the big issue we are talking about 
today.
  With regard to the request for additional information from Mr. 
Estrada and the unfortunate claim that he has not cooperated with the 
other side, look at the transcript--almost 300 pages long. It is one of 
the longest hearings on a circuit court of appeals nominee in history. 
Just look at the transcript. He answered question after question after 
question.
  Then every Democrat on the committee was given an opportunity to 
submit written questions. Only two did. The others didn't avail 
themselves of that opportunity. They called that hearing a very fair 
hearing. It was conducted by them. It could have gone on longer. They 
could have gone on another day if they had wanted to, or more than 1 
day, more than 2 days. They didn't do it. The reason they

[[Page S3432]]

didn't is that they thought they would never call him up anyway. 
Unfortunately for them, they lost the election and today the 
Republicans are in control and he has been called to the floor. Once 
called to the floor, he deserves an up-or-down vote under our laws.
  They are saying that, in spite of an almost 9-hour committee hearing, 
in spite of having all of his briefs and his oral arguments before the 
Supreme Court in 15 cases, in spite of the fact that he has the 
unanimously well qualified highest recommendation of their gold 
standard, the American Bar Association, in spite of the fact that they 
have numerous other documents and records and have documented his 
cases, they are saying they do not know enough about Mr. Estrada so 
they have to go into the highly privileged matters concerning 
recommendations for appeals, certiorari, and amicus curiae matters, 
some of the most privileged documents in the history of the country, in 
the Solicitor General's Office, in spite of the fact that seven living 
former Solicitors General have said that should never be allowed.
  In each of the cases that the distinguished majority leader has cited 
where some documents have been given, these documents were given 
pursuant to specific requests for documents.
  In this case, we have the generalized request of a fishing expedition 
into virtually every document he ever worked on at the Solicitor 
General's Office. No one has ever allowed a fishing expedition into 
these privileged documents of the Justice Department, let alone the 
Solicitor General's Office.
  I join my colleagues here to voice grave concern over what appears to 
me to be a system in serious danger of breaking. I am talking about the 
system by which the Senate exercises its constitutional obligation to 
provide advice and consent on judicial nominees.
  At the outset of my remarks, let me take a moment to set straight the 
proper role of the Senate in the confirmation of judicial nominees, 
starting with the text of the Constitution. In its enumeration of 
presidential powers, the Constitution specifies that the confirmation 
of judges begins and ends with the President. The Senate has the 
intermediary role of providing advice and consent. Here is the precise 
language of Article II, Section 2:

       The President . . . shall nominate, 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, whose Appointments are not herein otherwise provided 
     for, and which shall be established by Law.

  There is no question that the Constitution squarely places the 
appointment power in the hands of the President. As Alexander Hamilton 
explained in The Federalist No. 66:

       It will be the Office of the President to nominate, and, 
     with the advice and consent of the Senate, to appoint. There 
     will, of course, be no exertion of choice on the part of the 
     Senate. They may defeat one choice of the Executive, and 
     oblige him to make another; but they cannot themselves 
     choose--they can only ratify or reject the choice he may have 
     made.

  It is significant that the Constitution outlines the Senate's role in 
the appointments process in the enumeration of presidential powers in 
Article II, rather than in the enumeration of congressional powers in 
Article I. This choice suggests that the Senate was intended to play a 
more limited role in the confirmation of Federal judges.

  Hamilton's discussion of the Appointments Clause in The Federalist 
No. 76 supports this reading. Hamilton believed that the President, 
acting alone, would be the better choice for making nominations, as he 
would be less vulnerable to personal considerations and political 
negotiations than the Senate and more inclined, as the sole decision 
maker, to select nominees who would reflect well on the presidency. The 
Senate's role, by comparison, would be to act as a powerful check on 
``unfit'' nominees by the President. As he put it,

       [Senate confirmation] would be an excellent check upon a 
     spirit of favoritism in the President, and would tend greatly 
     to prevent the appointment of unfit characters from State 
     prejudice, from family connection, from personal attachment, 
     or from a view to popularity.

  This is a far cry from efforts we've seen over the past couple of 
years to inject ideology into the nominations process, and to force 
nominees to disclose their personal opinions on hot-button and divisive 
policy issues like abortion, gun control, and affirmative action which 
undoubtedly will come before the courts.
  Historically, deliberation by the Senate could be quite short, 
especially when compared to today's practice. Take, for example, the 
1862 nomination and confirmation of Samuel F. Miller to the United 
States Supreme Court. He was nominated, confirmed, and commissioned all 
on the same day! The Senate formally deliberated on his nomination for 
only 30 minutes before confirming him. His experience was not the 
exception. Confirmations on the same day, or within a few days, of the 
nomination were the norm well into the 20th century.

  Contrast the Estrada nomination. He waited nearly a year and a half 
for his confirmation hearing, which lasted for hours. His nomination is 
now in its fifth week of debate on the Senate floor, nearly 2 years 
after the President nominated him. Clearly, this is a far cry from the 
role for the Senate that the Framers contemplated. What was enumerated 
in the Constitution as advice and consent has in practice evolved to 
negotiation and cooperation in the best cases, and delay and 
obstruction in the worst cases--like that of Mr. Estrada.
  The Estrada nomination illustrates what is wrong with our current 
system of confirming judicial nominees. Despite a bipartisan majority 
of Senators who stand ready to vote on his nomination, a vocal minority 
of Senators is precluding the Senate from exercising its advice and 
consent duty. This is tyranny of the minority, and its is unfair.
  It is unfair to the nominee, who must put his life on hold while he 
hangs in endless limbo, wondering whether he will be confirmed. It is 
unfair to the judiciary, our co-equal branch of government, which needs 
its vacancies filled. It is unfair to our President, who has a 
justified expectation that the Senate will give his nominees an up-or-
down vote. And it is unfair to the majority of Senators who are 
prepared to vote on this nomination.
  The filibuster of Mr. Estrada's nomination also represents a new low 
in the annuals of judicial confirmations. If Mr. Estrada is not 
confirmed, he will be the first lower court judicial nominee defeated 
through a filibuster. More broadly, he will be the first judicial 
nominee, period, defeated through a party-line filibuster, since the 
filibuster of the Fortas nomination for Chief Justice was supported by 
Democrats and Republicans alike. This bipartisan opposition was 
apparently well grounded, since Justice Fortas ultimately resigned from 
the Supreme Court amid allegations of ethical misconduct.
  Of course, no such allegations of misconduct surround Mr. Estrada--
only pure partisan politics can be blamed for the obstruction of a vote 
on his nomination. Let me take a moment to illustrate.
  What does it take? There are so many Republican efforts to confirm 
Miguel Estrada that the nomination is in the fifth week of debate on 
the Senate floor. There is no end in sight. Seventeen attempts for 
unanimous consent to end the debate and have the vote were all rejected 
by our colleagues on the other side. The White House offer for Mr. 
Estrada to answer written questions was rejected by all but one 
Democratic Senator--all but one when they offered him to answer written 
questions. The White House offer for Estrada to meet with Senators was 
rejected by all but one Democratic Senator.
  It doesn't sound to me as if they really want to know what is on his 
mind. In my opinion, they could easily do so by merely meeting with him 
and asking him any questions they want.
  Of course, cloture filed to end the debate was rejected.
  The system is broken. This case illustrates it more than any other 
case that has ever come before the Senate.
  There can be little doubt that the breakdown in the Senate's advice 
and consent role is not limited to Mr. Estrada's nomination. All 
nominees for the circuit courts of appeals have suffered, as these 
charts illustrate.
  Let me just go through this. I am talking about a system in danger of 
breaking. I think it is broken. This

[[Page S3433]]

shows the average days pending for circuit court nominees for the first 
2 years of a President's tenure. In the case of Ronald Reagan, it took 
an average of 51 days for circuit court nominees to be pending before 
they got to a vote on the floor. In the case of President George 
Herbert Walker Bush, it took an average of 83 days in order to get a 
judge pending. In the case of President Clinton, it did go up. It took 
an average of 107 days. With George W. Bush, the current President, it 
has taken 355 days.
  That is a system in need of repair. What we are seeing is a slowdown 
in the confirmation of Federal judges.
  Look at this: Again, a system in danger of breaking.
  The confirmation rate of circuit court nominees for the first 2 
years: Reagan, 95 percent; Bush, 96 percent; and, Clinton, 86 percent 
of his circuit court nominees were confirmed. George W. Bush has 53 
percent.
  Mr. SARBANES. Mr. President, will the Senator yield for a question? 
Does the Senator have a chart that would indicate the very same 
information but would take the Clinton nominees in the first 2 years 
when the control of the Senate was in the Senator's party?
  Mr. HATCH. I don't have that chart.
  Mr. SARBANES. Wouldn't that be a more pertinent chart?
  Mr. HATCH. Let me put it this way: If we had not gone through--
  Mr. SARBANES. The Senator picked the Clinton years when his own party 
was in the majority.
  Mr. HATCH. That is right.
  Mr. SARBANES. What is happening here--my perception, at least--is 
that what the Senator is now complaining about is a tactic which was 
instituted by the other side of the aisle in the very recent past.
  Now we are being told this isn't the right way to do business. But no 
one on that side of the aisle said it wasn't the right way to do 
business only a few years ago when they were doing exactly the same 
thing.
  Mr. HATCH. May I reclaim my time?
  The VICE PRESIDENT. The Senator from Utah has the floor.
  Mr. HATCH. If the Senator has questions, I will be happy to take 
them. In the case of President Clinton, yes, in the first 2 years it 
was 86 percent. Yes, Joe Biden was chairman at that time. Yes, the 
Republicans cooperated to make sure those circuit court nominees went 
through. In the first 2 years of George W. Bush, the Democrats were in 
control of the committee. We cooperated all we could. That is the best 
we could get done. I think those statistics still stand up very 
strongly.
  What we are seeing is a slowdown in the confirmation of Federal 
judges--a systematic and calculated effort to block the nominees of the 
President of this country from the Federal bench. It is time to stop 
it. It is time to reform the system, to de-escalate. The first step, of 
course, is to vote on Mr. Estrada's confirmation. But there is much 
more that we can do to ensure that no other judicial nominee repeats 
this experience. I urge my colleagues to join me in my efforts to put 
an end to partisan politics in the confirmation process.
  I have to say, both sides have not been right in this process in the 
past years. I am not trying to just find fault there, but one fault I 
can find: Never in the history of this country has there been a 
filibuster succeed against a circuit court of appeals nominee. To argue 
that he has not provided enough documentation or enough answers when 
they refused to meet with him, refused to submit written questions, 
when they had one of the longest hearings on record for a circuit court 
of appeals nominee, when they have a massive amount of documents, not 
only all the arguments he made before the Supreme Court but his briefs 
as well and a tremendous, almost 300-page record of proceedings before 
the committee, it certainly makes my point.
  To come here and say that we now have to have privileged records on a 
fishing expedition that doesn't name anything specifically seems to me 
to fly in the face of what is right and proper.
  As I understand it, we will go back and forth. I yield the floor.
  The VICE PRESIDENT. Under the previous order, the Senator from 
Massachusetts is recognized for 10 minutes.
  Mr. KENNEDY. Mr. President, Republicans claim that we do not have a 
right to an extended debate on a judicial nominee lacks any foundation. 
The Constitution gives a strong role to the Senate in confirming 
federal judges. Both the text of the Appointments Clause of the 
Constitution and the debates over its adoption make clear that the 
Senate should play an active and independent role in selecting judges.
  The Constitutional Convention met Philadelphia from late May until 
mid-September of 1787. On May 29, 1787, the Convention began its work 
on the Constitution with the Virginia Plan introduced by Governor 
Randolph, which provided ``that a National Judiciary be established, to 
be chosen by the National Legislature.'' Under this plan, the President 
had no role at all in the selection of judges.
  When this provision came before the Convention on June 5th, several 
members were concerned that having the whole legislature select judges 
was too unwieldy. James Wilson suggested an alternative proposal that 
the President be given sole power to appoint judges. That idea had 
almost no support. Rutledge of South Carolina said that he ``was by no 
means disposed to grant so great a power to any single person.'' James 
Madison agreed that the legislature was too large a body, and stated 
that he was ``rather inclined to give [the appointment power] to the 
Senatorial branch'' of the legislature, a group ``sufficiently stable 
and independent'' to provide ``deliberate judgments.''
  A week later, Madison offered a formal motion to give the Senate the 
sole power to appoint judges and this motion was adopted without any 
objection. On June 19, the Convention formally adopted a working draft 
of the Constitution, and it gave the Senate the exclusive power to 
appoint judges.
  On July 18, the Convention reaffirmed its decision to grant the 
Senate the exclusive power. James Wilson again proposed ``that the 
Judges be appointed by the Executive'' and again his motion was 
overwhelmingly defeated. The issue was considered again on July 21, and 
the Convention again agreed to the exclusive Senate appointment of 
judges. In a debate concerning the provision, George Mason called the 
idea of executive appointment of Federal judges a ``dangerous 
precedent.''

  Not until the final days of the Convention was the President given 
power to nominate Judges. On September 4, 2 weeks before the 
Convention's work was completed, the committee proposed that the 
President should have a role in selecting judges. It stated: ``The 
President shall nominate and by and with the advice and consent of the 
Senate shall appoint judges of the Supreme Court.''
  The debates, make clear, however, that while the President had the 
power to nominate judges, the Senate still had a central role. That is 
what the debate made clear. For instance, Governor Morris of 
Pennsylvania described the provision as giving the Senate the power 
``to appoint Judges nominated to them by the President.
  The Convention, having repeatedly rejected proposals that would lodge 
exclusive power to select judges with the executive branch, could not 
possibly have intended to reduce the Senate to a rubber stamp role.
  The reasons given by delegates to the Convention for making the 
selection of judges a joint decision by the President and the Senate 
are as relevant today as they were in 1787. The Framers refused to give 
the power of appointment to a ``single individual.'' They understood 
that a more representative judiciary would be best served by giving 
Members of the Senate a major role.
  The Senate has never hesitated to fully exercise this power. During 
the first 100 years after ratification of the Constitution, 21 of 81 
Supreme Court nominations--one out of four--were rejected, withdrawn, 
or not acted on. During these confirmation debates, ideology often 
mattered. John Rutledge, nominated by George Washington, failed to win 
confirmation as Chief Justice in 1795. Alexander Hamilton and other 
Federalists opposed him because of his position on the controversial 
Jay Treaty. A nominee of President James Polk was rejected because of 
his anti-immigration position. A nominee of President Hoover was 
rejected because of his anti-labor view.
  A very substantial number of us believe that we are facing another 
historic constitutional confirmation which only the Senate's power and 
processes can resolve. Our President

[[Page S3434]]

has embarked on a course that threatens the balance of powers and the 
independence of the judiciary. His legal advisors have set him on a 
course to stack the U.S. Courts with judges who will judge in 
accordance with a narrow and extreme set of views, views outside of the 
judicial mainstream and aimed at making draconian and sudden changes in 
the direction of life and liberty in this Nation. President Bush is not 
the originator of this court-stacking plan. It began decades ago with 
his predecessors in the White House and Justice Department. It has been 
enabled by the successful efforts of some in our own body to retard the 
filling of judicial vacancies over the past two presidential terms.

  The White House and its allies have not been bashful about admitting 
their radical goal. Our own respect for the judiciary leaves no doubt 
that our President was lawfully elected. But there is not the slightest 
basis for the argument that any popular mandate supports such a massive 
shift in judicial direction.
  As Senators we have the power, and the responsibility to ourselves, 
our constituencies and our institution, to resist revolutionary change 
in the balance of power. We have the power--and responsibility--to 
reject the notion that a President can suddenly fashion the judiciary 
in his own image. We have a special responsibility to do so when the 
Senate is so evenly divided that, after due consideration and debate 
based on all the necessary information, the switch of a few votes could 
change the result. We certainly have the obligation to do so when the 
Executive Branch prevents us from exercising our assigned 
constitutional powers of advice and consent by depriving us of any 
access to the only documents which might tell us what kind of a judge a 
nominee will be--the very documents which the President's lawyers used 
to select and vet the nominee.
  The issue before us today is about much more than Miguel Estrada. It 
is about the essential nature of our government; it is about the core 
values of the Senate; it is about our history and our legacy.
  We must not let the Founders down. We must not let our predecessors 
down. We must not let our constituents down. We must not let our Nation 
down.
  The VICE PRESIDENT. Who yields time?
  Mr. HATCH. Mr. President, I yield 5 minutes to the Senator from 
Pennsylvania.
  Mr. SPECTER. Mr. President, I begin by taking direct issue with the 
arguments by the Senator from Massachusetts. The advice and consent 
function set forth in the Constitution has been consistently 
interpreted for 216 years to confirm Presidential nominations, unless 
there is a reason not to. That has been the practice. Now we have a new 
position advocated by the Democrats, saying if there are 41 
obstructors, then the Democrats want an equal share in the process of 
judicial selection.
  The Senator from South Dakota raised the consideration that no one on 
this side of the aisle had spoken up, when in effect the shoe was on 
the other foot when the Democrats controlled the White House and 
Republicans controlled the Senate. There were those on this side of the 
aisle who spoke up and said worthy nominees submitted by President 
Clinton should be confirmed. I was one of them. We did confirm a number 
of contested nominations: Judge Richard Paez, Marsha Berzon, Roger 
Gregory, and others.
  So it is true there have been delays when one party has controlled 
the White House and the other party has controlled the Senate. And 
Republicans are not blameless in this process. But I submit that in the 
107th Congress, with President Bush in the White House and the 
Democrats in control of the Senate, the process has been carried to 
great extreme. This year, with the Republicans controlling both the 
White House and the Senate, we have had the unprecedented position of a 
filibuster on a judge for the court of appeals.
  In the history of the judicial confirmation process, there has been 
only one prior filibuster, and that was on Justice Abe Fortas, 
nominated to be Chief Justice. That involved an issue of integrity, and 
that was a bipartisan filibuster. We had, perhaps, the most bitter 
contest on confirmation when Circuit Judge Clarence Thomas was up for 
confirmation to the Supreme Court. Within 50 minutes, let alone 5 
minutes, I could not begin to summarize the contest there on the 
bitterness of the proceedings. Justice Thomas was confirmed 52-48. But 
no one suggested there ought to be a filibuster. The regular rule was 
followed. Even though there was a tie vote in the Judiciary Committee, 
which would not customarily, under Judiciary Committee rules, permit 
the matter to be advanced to the full body, it did come to the full 
Senate and there was no filibuster, and Justice Thomas was confirmed.
  When the Democrats--and I very much deplore the partisan nature of 
this debate, but it is a matter of Democrats versus Republicans, and it 
is my hope we will find a way to solve it. When the Democrats raise 
issues about Miguel Estrada answering more questions, or raise the 
contention that his work as an assistant Solicitor General ought to be 
disclosed, they are, pure and simple, red herrings.
  A long litany of nominees have come before the Judiciary Committee 
who have declined to answer questions and have been confirmed. In the 
judicial process, judges are not expected to give opinions until there 
is a case in controversy, until there are facts, until briefs are 
submitted, until there is oral argument, until there is deliberation 
among the judges, then a decision is made--not to answer a wide variety 
of hypothetical questions that are posed in nomination proceedings.
  On the confirmation process of Merrick Garland, I asked the question: 
Do you favor, as a personal matter, capital punishment?

  Mr. Garland replied: This is really a matter of settled law now. The 
Court has held that capital punishment is constitutional and lower 
courts are expected to follow the rule.
  Because of time limitations, I shall not go into detail on that. When 
Marsha Berzon appeared before the committee, she was asked by Senator 
Robert Smith about the abortion issue. Marsha Berzon was later 
confirmed.
  I ask for 2 additional minutes.
  Mr. HATCH. Mr. President, I yield the Senator 2 more minutes.
  Mr. SPECTER. Marsha Berzon responded that the matter was settled, 
regardless of what her views were. A similar response was given by 
Judith Rogers to questions by former Senator Cohen.
  With respect to Miguel Estrada's work as an Assistant Solicitor 
General, seven former Solicitors General wrote to Senator Leahy, laying 
out the fact that it is of ``vital importance of candor and 
confidentiality in the Solicitor General's decision-making process that 
Miguel Estrada's work should not be disclosed.''
  I am delighted that we have been joined by a number of Senators from 
the other side of the aisle. It is my hope that we will yet get five 
additional Senators who will break the deadlock and we will move to 
cloture and we will end this debate.
  This controversy is poisoning the Senate beyond any question. It is 
distracting the Senate from other very important business. I hope we 
will find a way out promptly and ultimately establish a protocol so 
many days after a nomination is submitted, a hearing by the Judiciary 
Committee; so many days later, a committee vote; so many days later, 
floor action; so that regardless of what party controls the White House 
and what party controls the Senate, the public business will be 
attended to and the partisanship will be taken out of the selection and 
confirmation of Federal judges.
  I yield the floor.
  The VICE PRESIDENT. Under the previous order, the Senator from Nevada 
is recognized for 5 minutes.
  Mr. REID. My colleagues on the other side of the aisle argue that the 
Senate's extended debate over Mr. Estrada's nomination is somehow 
unconstitutional. This is, at the very least, curious. They say Senate 
rule XXII, which allows for cloture on judicial nominations, is 
unconstitutional. Very curious. That rule provides that a vote of 60 
Members of this body may end debate.
  They point to the Constitution which provides several examples where 
a supermajority is required to approve a measure. Since nominations are 
not mentioned, they argue, only a simple majority should be required.
  But the majority's focus on the vote count misses the point. If 
cloture had

[[Page S3435]]

not been extended to nominations, among other things, in 1949, what 
would be the result? Well, maybe a single Senator could engage in 
unlimited debate. There would be no provision whatsoever to cut off 
that debate. There would be no provision to get to a vote--whether it 
be a supermajority or a majority vote.
  Surely my colleagues do not argue that extended debate in the world's 
greatest deliberative body is unconstitutional.
  We will continue to exercise our right to debate this nominee until 
he answers the Judiciary Committee's questions and provides the 
committee with his memoranda.
  The vigorous debate we continue to have on the Estrada nomination 
reflects our fidelity to our constitutional obligations to advise and 
consent to Presidential judicial nominees.
  It is that role that is the proper subject of a constitutional 
debate.
  What did the Founding Fathers have in mind when they made that 
provision? In the Federalist Paper No. 47, James Madison, quoting 
Montesquieu, stated:

       There can be no liberty where the legislative and executive 
     powers are united in the same person, or body of magistrates.
  In Federalist No. 76, Alexander Hamilton was more specific when he 
explained that the Senate's role:
       [w]ould be an excellent check upon a spirit of favoritism 
     in the President, and would tend greatly to prevent the 
     appointment of unfit characters [while serving as an] 
     efficacious source of stability in the Administration.

  In a lecture at the Heritage Foundation in 1993, David Forte said, in 
Federalist No. 10 and 51, Madison proposed division within the central 
government into a complex separation of powers. Forte said:

       The liberties of the people would therefore be protected, 
     first by the residuum of sovereignty left to the states, and 
     secondly, by tying different constituencies to separate parts 
     of the federal government--House of Representatives, Senate, 
     Executive, and Judiciary--and giving each branch some part of 
     each other's powers in order to defend itself against any 
     branch's aggrandizement of its own powers.
  As Justice Brandeis said in Myers v. United States:

       The doctrine of separation of powers was adopted by the 
     Convention of 1787 not to promote efficiency, but to preclude 
     the exercise of arbitrary power.

  Justice Brandeis went on to say:

       The purpose was not to avoid friction, but, by means of the 
     inevitable friction incident to the distribution of the 
     governmental powers among three departments, to save the 
     people from autocracy.

  Indeed, this is the heart of the Estrada debate. The administration 
has advised this nominee not to answer our questions. It refuses to 
turn over documents which have been provided in the past and which 
would help evaluate this nominee.
  The administration has made it impossible for the Senate to fulfill 
its constitutional duty. The White House seeks to wield unchecked power 
over the appointment of lifetime Federal judges, but that is not what 
the Founders of our country had in mind or what the Constitution 
provides. The Constitution divides power over nominations between the 
President and the Senate.
  In an article in the Emory Law Journal, Professor Carl Tobias 
discussed how that intent of the Constitution's drafters has been 
carried out:

       The Senate has actively participated in naming judges since 
     the chamber's creation because members of this body have a 
     significant stake in affecting . . . appointments.

  He continued:

       There has also been a venerable tradition in the senatorial 
     involvement in the choice of nominees. . . . The state's 
     senators or senior elected officials who are members of the 
     President's political party have ordinarily recommended 
     candidates whom the Chief Executive in turn has nominated.
       In short, judicial selection has been a shared 
     responsibility of the President and the Senate. . . .

  I would add that this is as the Founders intended.
  The Cato Institute's ``Handbook for Congress'' puts it quite nicely:

       More important than knowing a nominee's ``judicial 
     philosophy'' is knowing his philosophy of the Constitution. 
     For the Constitution, in the end, is what defines us as a 
     nation.

  The Constitution defines the role of the President and the role of 
the Senate--
  The VICE PRESIDENT. The Senator has spoken for 5 minutes.
  Mr. REID. Mr. President, Senator Kennedy used all his time. I ask for 
an additional minute.
  The VICE PRESIDENT. The Senator is recognized.
  Mr. REID. Continuing with the quote:

       More important than knowing a nominee's ``judicial 
     philosophy'' is knowing his philosophy of the Constitution. 
     For the Constitution, in the end, is what defines us as a 
     nation.

  The Constitution defines the role of the President and the role of 
the Senate in the process of selecting lifetime Federal judges. It is a 
shared responsibility. This administration and this nominee seek to 
exercise near total power over that process. If there is something 
unconstitutional afoot in the consideration of Mr. Estrada's 
nomination, it is that the President seeks to prevent the Senate from 
exercising its constitutional duty.
  Mr. HATCH. Mr. President, I yield up to 5 minutes to the 
distinguished Senator from Texas.
  The VICE PRESIDENT. The Senator from Texas is recognized.
  Mr. CORNYN. I thank the Chair.
  Mr. President, Daniel Webster once said that ``justice is the 
greatest interest of man on Earth.'' I cannot help but think of that 
phrase as I read from today's letter from President George W. Bush, 
which was previously admitted as part of the Record, when he says:

       The Chief Justice warns that the high number of judicial 
     vacancies, when combined with the ever-increasing caseloads, 
     leads to crowded courts and threatens the administration of 
     justice.

  It has also long been recognized that ``justice delayed is justice 
denied,'' and that is exactly what is happening to American citizens 
throughout this country, while President Bush's judicial nominees are 
being filibustered and slow boated. The President is being denied his 
prerogative of choosing his nominees for Federal benches subject to the 
advice and consent, the proper constitutional role of the Senate, being 
exercised.
  I rise this morning with great concern about the state of our 
judicial confirmation process, something that Senator Specter and 
others have commented on. They have called for reform, for a fresh 
start, and I believe that is called for.
  The Constitution makes clear that the President appoints judges with 
the advice and consent of the Senate. It has long been established, by 
constitutional text, by Senate tradition, and by Supreme Court 
precedent, that that means a majority of the Senate. But today, a 
bipartisan majority of the Senate is being denied the opportunity to 
vote on Miguel Estrada, by a minority that is intent on changing the 
rules, applying a double standard, and denying Miguel Estrada an up-or-
down vote in this Chamber.
  Somehow, this process has disintegrated to the point where a partisan 
minority of the Senate will not even allow a bipartisan majority to 
vote. This, of course, is not what the Constitution says or what the 
Founders had in mind. Our Founders never intended that the judicial 
confirmation process would become so poisonous as it has today.
  This filibuster, this act of preventing a bipartisan majority from 
expressing its consent to Mr. Estrada's nomination, is, as we have 
heard, without precedent.
  I could not help but think also about last year's debate over the 
confirmation of another nominee of President Bush, someone with whom I 
served on the Texas Supreme Court, and that is Justice Priscilla Owen, 
who will come up again this Thursday for another hearing in the Senate 
Judiciary Committee.
  Some people during that process criticized the Texas system of 
electing judges, one that has been established in our constitution 
since Reconstruction and which also is replicated in the constitutions 
of other States.
  Justice Owen has, as I have, long been an advocate for reforming the 
way in which Texas selects judges. But, Mr. President, whatever the 
problems the various States may have in their judicial selection 
systems, nothing--absolutely nothing--compares to how badly broken the 
system of judicial confirmation is here in Washington, DC.
  In Texas, at least, the people are given a choice of judicial 
nominees and there is an opportunity for debate and

[[Page S3436]]

discussion and, at long last, there is a vote. Whatever you can say 
about the process, we always get there. We always hold a vote.
  Somehow we have lost our way in the Senate. When the President 
nominates individuals of high caliber to serve the American people 
through an appointment to the Federal bench, and bipartisan majorities 
of the Senate stand enthusiastically ready to confirm those 
individuals, the process of confirming these highly qualified nominees 
is simply obstructed.
  As I say, I have long believed we need a fresh start, as articulated 
by others, to the judicial confirmation process, and the first step 
would be to bring this fine judicial nominee, Miguel Estrada, to a 
vote. It has already been too long. It is time to vote.
  I yield the floor.
  The VICE PRESIDENT. Who yields time?
  Under the previous order, the Senator from Illinois is recognized for 
5 minutes.
  Mr. DURBIN. I thank the Chair.
  Mr. President, this is a curious situation: A person with an 
extraordinary background, Miguel Estrada, coming to the United States 
as an immigrant with limited knowledge of English, in a few years rises 
to the top of the Harvard Law School; he then goes on to work in the 
Solicitor General's Office dealing with Supreme Court decisions, 
working in the Department of Justice at the very highest levels.
  It is an extraordinary story of personal achievement, academic 
achievement, and professional achievement. That is why the conduct of 
Miguel Estrada during this confirmation process has been so puzzling.
  I believe he has received bad advice. I think the people at the 
Department of Justice who said to him, whatever you do do not answer 
questions directly, they were not fair to Miguel Estrada.
  When you consider the questions which he refused to answer, these 
were not unreasonable questions. My colleague and friend from Alabama, 
Senator Sessions, regularly asked Democratic nominees the same 
questions we asked of Miguel Estrada in reference to Supreme Court 
Justices whom he admired, in reference to Supreme Court decisions with 
which he agreed or disagreed. No one argued that this was out of bounds 
or unfair. They said Senator Sessions was entitled to ask that of 
judicial nominees.
  I have before me Richard Paez, Marsha Berzon, all of the different 
Democratic nominees who faced those very questions and answered them, 
as they should have.
  When the same questions were posed to Miguel Estrada, his handlers at 
the Department of Justice said: Stay away from those questions. Do not 
answer those questions.
  When Senator Schumer of New York asked Miguel Estrada about Supreme 
Court decisions that he would take exception to within the last 40 
years, or even beyond, he went on to say:

       I ought not to undertake to, in effect, hold the Court to 
     task for the purpose of having gotten something wrong when I 
     haven't been in their shoes in the sense of having had access 
     to all of the materials, argument, research, and deliberation 
     that they had.

  He ducked the question, a question so basic that a law student in a 
constitutional law course would answer that question. But Miguel 
Estrada refused. And that raises another question. I think he has 
received poor advice from the White House, because the White House has 
said that he cannot produce for us documentation that really tells the 
story of his legal views, documentation that has been presented by many 
nominees. They have said, no, we are stonewalling it; we are not going 
to release that information to Congress. So now Miguel Estrada is 
stalled in the Senate because he has refused to cooperate in the 
questioning, refused to produce the documents, refused to answer basic 
questions which Republican Senators asked time and again of Democratic 
nominees, fair questions, reasonable questions.
  This last weekend, I went to Alabama. It was my first visit to that 
State ever. I went with a group known as Religion in Politics, with 
Congressman John Lewis and Senator Sam Brownback, to visit in 
Montgomery, Selma, and Birmingham, the sites of some of the most 
dramatic historic events in the civil rights movement in America. It 
was something to stand on Edmund Pettus Bridge in Selma with John Lewis 
on Saturday near the 38th anniversary of that march, at the exact spot 
where he was beaten down, hit in the head, suffered a concussion. John 
Lewis said to me: There never would have been a Selma to Montgomery 
march were it not for the courage of one Federal district court judge, 
Frank Johnson. Frank Johnson, a Republican appointee under the 
Eisenhower administration, stood up for what was right in the civil 
rights movement. With his courage, he not only had death threats on a 
regular basis, his mother's home was fire bombed. This man had the 
courage to stand up for the right thing.
  When he passed away, Senator Hatch was right to introduce a 
resolution honoring Frank Johnson for his courage, saying that he had 
the courage to stand up against Plessy v. Ferguson, separate but equal. 
He had the courage to argue for one man one vote before its time had 
come.
  I put that experience in the context of this conversation. This is 
not a routine decision. This is not another thing that the Senate 
should consider as part of some process that really we do not have to 
dwell on. We are appointing men and women to positions on the bench 
where they can make historic decisions. Frank Johnson did.
  The court that Miguel Estrada aspires to is an even higher court, the 
second highest court in the land. Would it not have been reasonable for 
Miguel Estrada to have said that he disagreed with Plessy v. Ferguson, 
the basis of segregation in America for almost 100 years? He refused, 
and that is why his nomination languishes.
  I yield the floor.
  The VICE PRESIDENT. The Senator from Utah.
  Mr. HATCH. I yield 4 minutes to the distinguished Senator from South 
Carolina.
  The VICE PRESIDENT. The Senator from South Carolina is recognized.
  Mr. GRAHAM of South Carolina. Mr. President, I have been in the 
Senate now for a couple of months at most--it seems longer--and I am 
bearing witness to a change in the Constitution I never envisioned I 
would be a witness to.
  The minority on the other side, not all of them because some of them 
voted to allow Miguel Estrada a vote up or down, are, in effect, 
changing the Constitution. We can have an academic debate whether it is 
legal or not, but there are five situations in the Constitution where 
the Framers required a supermajority vote. Confirming a judge was not 
one of them. We are witnessing and we are part of a change to our 
Constitution by the fact that they are filibustering this judge 
requiring 60 votes to confirm a judge.
  Why is this happening? What is going on? It is not about the way 
questions were answered. It is not about getting memos that no 
Solicitor General would allow to be released on their watch, Democrat 
or Republican. This is a calculated effort by our friends on the other 
side post-2002 election to go after our President.
  They had a meeting before Miguel Estrada had a hearing, and their 
meeting was about: You are laying down too much for President Bush. You 
need to stand up to him.
  They made a calculated decision to stand up to him by going after his 
judges. They are, in effect, changing the Constitution, and this is 
wrong. It is wrong politically and it is wrong constitutionally. 
Whether it is illegal, I do not know, but I know it is going to hurt 
our country and history will judge us poorly for allowing this to 
happen.
  This is an effort to go after the President in a way that no other 
party has ever gone after a President before, and we will pay a price 
as a nation if this is successful.
  I know my colleagues are better than this. I know they are capable of 
doing better than this because I can read what they said on other 
occasions when the shoe was on the other foot.
  When I came to the Chamber a few minutes ago, the Senator from 
Massachusetts was giving us a history lesson about the role of the 
Senate and the President in confirming judges. This is what he said on 
March 7, 2000: Over 200 years ago, the Framers of the Constitution 
created a system of checks and balances to ensure that excessive power 
is not concentrated to any branch of the Government. The President was 
given the authority to nominate Federal judges with the advice

[[Page S3437]]

and consent of the Senate. The clear intent was for the Senate to work 
with the President, not against him, in the process. In recent years, 
however, by refusing to take timely action on so many of the 
President's nominees, the Senate has abdicated its responsibility.
  He was right then. He could see at that moment the problems that were 
being created for this country if we overly played politics with 
judicial nominations. He is wrong today because he is blinded by the 
politics of 2002.
  We owe it to Americans across the country to give these nominees a 
vote. If our Republican colleagues do not like them, do not like their 
answers, do not like the way they are behaving, do not like the advice 
they are getting--I am adding this now--vote against them, but give 
them a vote. That was Senator Kennedy, February 3, 1998.
  If Senators want to vote against somebody, vote against them. I 
respect that. State their reasons. I respect that. But do not hold up a 
qualified judicial nominee.
  Senator Leahy said: I have stated over and over again on this floor 
that I would object and fight against any filibuster on a judge, 
whether somebody I opposed or somebody I support. I thought the Senate 
should do its duty by giving them a vote.
  They were right then. They could see clearly.
  Mr. LEAHY. The Senator happened to mention my name. I ask if the 
Senator will yield?
  Mr. GRAHAM of South Carolina. Yes.
  Mr. LEAHY. Would the Senator be willing to state the whole quote? He 
has left out a very significant part in that quote. Is he willing to 
put the whole quote, the accurate quote?
  Mr. GRAHAM of South Carolina. Absolutely.
  The VICE PRESIDENT. The time has expired.
  Mr. GRAHAM of South Carolina. I will be glad to do that. Could I, in 
turn, ask the Senator a question?
  The VICE PRESIDENT. The Senator's time has expired.
  Who yields time?
  Mr. HATCH. I will yield time for the question.
  Mr. GRAHAM of South Carolina. Is Senator Leahy willing to answer my 
question?
  Mr. LEAHY. Mr. President, whose time is this on?
  The VICE PRESIDENT. The time of the Senator from Utah.
  Mr. LEAHY. Is the Senator from North Carolina going to answer the 
question I asked him? Is he willing to read the whole quote? The 
Senator from South Carolina.
  Mr. GRAHAM of South Carolina. South Carolina.
  Mr. LEAHY. I beg your pardon. I apologize. Will the Senator from 
South Carolina be willing to read the whole quote?
  Mr. GRAHAM of South Carolina. Absolutely. Rather than taking the 
time, I will put it in the Record.
  Mr. LEAHY. If the Senator would read the whole quote in context, I am 
happy to answer any questions he has. If he is unwilling--
  Mr. GRAHAM of South Carolina. Absolutely, I will. I do not have it, 
but if somebody will give it to me.
  Mr. LEAHY. It is obvious that the Senator from South Carolina did not 
have the whole quote or he would not have quoted me out of context so 
badly.
  The VICE PRESIDENT. The additional time of the Senator from South 
Carolina has expired.
  Who yields time? Under the previous order, the Senator from New York 
is recognized.
  Mr. HATCH. I yield time for the distinguished Senator from South 
Carolina to complete his question, and I hope the distinguished Senator 
from Vermont will answer his question.
  The VICE PRESIDENT. The Senator from South Carolina is recognized.
  Mr. GRAHAM of South Carolina. I do not want to misquote the Senator. 
I do not want to put words in his mouth. I do not want to take one part 
of his quote to suggest it means something that it really does not.
  My question simply put: In June 1998, was the Senator trying to tell 
the Senate that it is wrong to filibuster a judge?
  Mr. LEAHY. Mr. President, am I responding on the time of the Senator 
from Utah?
  The VICE PRESIDENT. The Senator is correct.
  Mr. LEAHY. If the Senator would read the whole quote, he would 
understand I was talking about the anonymous holds on Judge Sotomayor, 
and anonymous holds were being used as a filibuster. I made that very 
clear in that statement.
  Interestingly enough, even though we have corrected the record a 
number of times on the floor, pointing out when that misstatement has 
been made, apparently those were times when the distinguished Senator 
from South Carolina was not on the floor.
  The VICE PRESIDENT. The time of the Senator is expired. Under the 
previous order, the Senator from New York is recognized for 5 minutes.
  Mr. SCHUMER. Mr. President, I am so glad to see so many of my 
colleagues in the Chamber today, although I wish they were here to 
debate the issues the American people are asking us about. What is 
happening with the impending war in Iraq? How will we pay for it? What 
is happening with stimulating the economy? What are we going to do to 
have average working men and women gain jobs? We have lost 2 million 
jobs.
  Let the record show the reason we are not talking about those issues 
and we are continuing to talk about Mr. Estrada is that is what the 
Republican majority wants to do.
  Mr. Estrada has a job. I think he probably gets paid a very nice 
salary, and he deserves it. But what about the 2 million Americans who 
do not have jobs, who have lost jobs since President Bush became 
President? Why can't we be debating that issue? I urge my colleagues to 
start talking about that and how we will stimulate the economy; and to 
start talking about how we will gain more allies in our struggle with 
Iraq; and to start talking about how we will pay for postwar Iraq.
  It is at the insistence of my colleagues that we continue to debate 
this issue, although we have reached an impasse. We are not going to 
yield on something we think is a constitutional principle. We can sit 
here and debate and debate and debate, but you will not change anyone's 
voting. The reason is very simple. The reason is we believe sincerely 
and firmly this is not about any one individual, but this is about the 
constitutional process of advise and consent. This is about learning 
what potential judges think before they go to the bench to make 
decisions that affect our lives for a generation. We are entitled to do 
that. That is what the Founding Fathers intended, it is clear.
  In the first nomination to the Supreme Court, where many of the 
original Founding Fathers who wrote the Constitution were present, Mr. 
Rutledge, the nominee of President Washington, was turned down because 
they did not agree with his views on the Jay Treaty.
  The other side wanted debate; when they had nominees, they 
questioned. People asked, what is the difference? My colleagues on the 
other side knew Judge Paez's record and they knew Judge Berzon's 
record, and they chose to vote against him. That is fair. We all let 
ideology enter into the way we vote. Those who deny it are being less 
than candid. Otherwise, the votes would be sprinkled evenly between 
Democrats and Republicans.
  When the other side was there, let me read a quote from Senator 
Hatch, a man I greatly respect and regard as a friend.

       The careful scrutiny of judicial nominees is one important 
     step in the process, a step reserved to the Senate alone . 
     . . I have no problem with those who want to review these 
     nominees with great specificity.

  My colleagues on the other side of the aisle, we are simply carrying 
out what Senator Hatch said was perfectly appropriate, what he had no 
problem with. We have not learned anything about Miguel Estrada's views 
with great specificity. And what we fear--and you will regret it if 
there comes a Democratic president--is that nominees will refuse to 
answer all questions, as Miguel Estrada did, and they will have no 
track record, and Presidents will endeavor to find people who have no 
known views when they nominate them to the bench.
  My guess is the White House knows Miguel Estrada's views. My guess is 
they carefully researched it. When it comes time to make those views 
public, part of the constitutional process,

[[Page S3438]]

we are denied that right by a nominee who stonewalls and does not 
answer the most obvious questions, and by a White House that will not 
release documents that have been released--in the cases of Mr. Bork, 
Justice Rehnquist, Mr. Civiletti, and Mr. Reynolds. All of them 
released the same documents the White House refuses to release now.
  I ask the American people, ask yourselves a question, my friends. Why 
are they so afraid to reveal Miguel Estrada's record? If he proves to 
be a mainstream conservative, he will pass this Chamber. I have voted 
for over 100 of the 110 nominees. I disagree with most of them, but I 
don't think they are out of the mainstream, and the President deserves 
some benefit. But if Mr. Miguel Estrada's record shows he is so far 
beyond the mainstream that he will try to make law from the bench and 
not interpret the law, which those who are on the far left and far 
right tend to do, he should not be made a judge. The bottom line is, we 
have no way of answering that question until we follow Senator Hatch's 
mandate.
  Mr. WARNER. Will the Senator yield?
  The VICE PRESIDENT. The time of the Senator has expired.
  Mr. WARNER. I ask if the manager will give me a minute or two?
  Mr. REID. Will the Senator from Virginia yield so we can enter into a 
unanimous consent request?
  The VICE PRESIDENT. Who yields time?
  Mr. REID. Mr. President, I ask unanimous consent debate on this 
matter be extended until the hour of 12:50 with the time equally 
divided between both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I yield to the Senator from Virginia.
  Mr. WARNER. I say to my colleague--
  Mr. SCHUMER. I am delighted to yield for a question.
  Mr. WARNER. You brought up the history of Rutledge. I discussed this 
at length last night on the Senate floor.
  Mr. SCHUMER. Mr. President, that is on the time of the Senator from 
Utah.
  Mr. WARNER. You brought up the very important case of George 
Washington's nomination, Rutledge, who had been a constitutional 
Framer, and his colleagues in this Chamber, some of whom were 
constitutional Framers, turned him down, correct--but they did it by a 
vote. Am I not correct on that?
  Mr. SCHUMER. You are correct.
  Mr. WARNER. That is the essence of what we are trying to establish 
here, namely that a vote is what the Framers envisioned when they put 
in the supermajority, as the Senator from South Carolina put it. They 
did not put a supermajority in for nominations, the concept being that 
the President and the Senate would work together. Otherwise, the 
President could thwart the process by putting no one up for judicial 
nomination, thinking that the Senate would be arbitrary, and the Senate 
could arbitrarily, as I think we are doing now, turn them down.

  As I mentioned last night on the Senate floor, unless we work 
together under the doctrine of checks and balances, which is inherent 
in the Constitution, we could thwart the ability of this Nation having 
any Federal judiciary.
  Mr. SCHUMER. If I might answer briefly, my colleague.
  Mr. HATCH. On your own time.
  Mr. SCHUMER. I was asked a question.
  The VICE PRESIDENT. The time of the Senator has expired. Who yields 
time?
  Mr. LEAHY. I yield 1 minute to the Senator.
  Mr. SCHUMER. If I might answer my good friend from Virginia, I have 
tremendous respect for his integrity.
  Yes, there was a vote on Mr. Rutledge--after he revealed his views on 
the Jay Treaty and other issues. Of course, we should have a vote on 
Miguel Estrada. I don't disagree with that. But not until we know how 
he feels on the vital issues of the day.
  How does he feel about the first amendment? How does he feel about 
the commerce clause? Does he believe, like some on the bench, that the 
commerce clause has been expanded too broadly and we ought to go back 
to regulation by the 50 States?
  I have no idea, I say to my friend from Virginia. I have no idea of 
how he feels.
  Mr. LEAHY. I yield one more minute to the Senator.
  Mr. SCHUMER. I have no idea how he feels about the first amendment or 
about the 11th amendment, and the balance between the Federal 
Government and the States, the very issues the Founding Fathers wanted 
us to know.
  The judiciary, and I know my colleague knows this, is the one 
nonelected branch of the government. The advice and consent clause----
  Mr. HATCH. I can speak for Mr. Estrada. I know he feels very good 
about the first amendment. All of us do. I don't think that is the 
question.
  The Senator has a right to ask written questions and meet with him 
personally to ask how he feels about something. I am sure he feels very 
good about him.
  The VICE PRESIDENT. Who yields time?
  Mr. SCHUMER. Mr. President, may I have 1 minute?
  Mr. LEAHY. I yield an additional 1 minute.
  The VICE PRESIDENT. The Senator from New York is recognized.
  Mr. SCHUMER. If Mr. Estrada feels good about the first amendment, I 
ask my colleague, why can't he tell us? And why can't he elaborate? 
What does he feel about Buckley v. Valeo, a case we debated here for a 
long time? It is a past case. How far does he feel the first amendment 
ought to go?
  It is certainly not good enough, not only for the Senators but for 
the American people to hear my friend from Utah say he feels good about 
the first amendment, I say to my colleagues, or the second, or the 
fourth, or any of the other vital amendments.
  I say to my colleagues, this is not a laughing matter. This is 
serious stuff about the one nonelected branch of Government.
  The Founding Fathers wanted, in the advice and consent process, 
serious questions. Just as Senator Hatch said, it was a part of the 
process to ask those questions when President Clinton's nominees were 
before us. What is good for the goose is good for the gander. I yield.
  The VICE PRESIDENT. The Senator from Utah.
  Mr. HATCH. I yield up to 3 minutes to the Senator from Missouri.
  Mr. TALENT. Mr. President, I want to place this debate in historical 
context. The tradition of the Senate has been to confirm judicial 
nominations of the President if the nominees were competent, if they 
were qualified, if they were honest, if they had a record and 
background in the law, in the practice of law or on the bench or in 
academia, that suggested they could live up to the standards of the 
judiciary. If they did, they were confirmed and confirmed without 
having to answer questions that nobody ever has had to answer and would 
usurp and undermine the executive branch and the Solicitor General's 
Office if they had to answer it. Under those standards, hundreds of 
people in Miguel Estrada's circumstances have been confirmed without 
even any controversy, much less a filibuster, and everybody here knows 
it.
  You can always invent a reason to be opposed to somebody. Senators on 
the other side have been good at doing that with regard to Miguel 
Estrada, but he ought to be confirmed. At least he ought to have a 
vote, if we are going to follow the traditions of the Senate.
  Now those traditions have broken down to the point we not only are 
voting not to confirm people, we are not even allowing a vote. We have 
Senators conducting a filibuster on somebody because they suspect they 
might disagree with his jurisprudence.
  What is it we are so afraid Miguel Estrada might believe; a man who 
went to Harvard Law School, was an editor of the Law Review, served in 
the Solicitor General's Office, has been given high marks by everybody 
who has ever supervised him? Of course he is in the mainstream.

  In the past, we gave people the benefit of the doubt. We don't have 
time, with every judicial nominee, to go through everything they might 
believe about every particular judicial issue. The fact is, if we were 
applying the traditions of the Senate, or anything close, this man 
would be confirmed and we could move on. Now we cannot even get a vote, 
and everybody here knows that.

[[Page S3439]]

  The Senate is broken. It is broken at a time where we may be going to 
war. The economy is in trouble. Of course we need to move on. I hear 
Senators from the other side saying we should not be debating this, we 
should be moving on. Yes. Exactly. But you can't stand up and conduct a 
filibuster and then say you are not obstructing. You are. Let us have a 
vote on this man. He will probably carry. Other nominees we have votes 
on may not carry. Let's get the Senate working together.
  It is not the end of the world if somebody gets on the court of 
appeals that you don't like. He is not going to change the 
Constitution. He is on the court of appeals. Let's vote on him and 
let's move on.
  What concerns me is something to which the Senator from New York 
referred. I am concerned that a few years from now a Democratic 
President may get elected and he is going to start nominating people 
and we are going to get back on this, except from this side of the 
aisle. It would be wrong.
  I have three kids. They are 12, 10, and 6.
  The VICE PRESIDENT. The time of the Senator has expired.
  Mr. TALENT. Can I have another minute to talk about my family?
  Mr. HATCH. I grant the Senator 1 more minute.
  The VICE PRESIDENT. The Senator is recognized.
  Mr. TALENT. I appreciate it. Sometimes I go down to our little rumpus 
room and they are arguing about something, and the one thing I tell 
them I don't want to hear is: They started it. He started it.
  There is a code of conduct to which you should adhere. Let's adhere 
to it. That is in the interest of this Senate. It is in the interests 
of the Constitution and the interests of the people. What must the 
people think when they see us doing this on an appellate court 
nomination? I ask my friends from the other side of the aisle, I know 
it was done--not to this extent but from this side of the aisle--to 
some of President Clinton's nominees. Let's go back to the standard we 
always followed. Let's make the Senate work. Let's keep it from being 
broken.
  I thank the Senator for yielding.
  The VICE PRESIDENT. Who yields time? The Senator from Vermont is 
recognized.
  Mr. LEAHY. Mr. President, how much time is available to both sides?
  The VICE PRESIDENT. The majority has 10 minutes 13 seconds; the 
minority, 14 minutes 11 seconds.
  Mr. LEAHY. I thank the distinguished Presiding Officer.
  I welcome the distinguished Presiding Officer to the Senate today in 
his capacity as President of the Senate. It is not often we see the 
Vice President in the chair of the Senate. With the U.N. Security 
Council meeting today, the OPEC meeting, the unsettled and threatening 
circumstances in so many parts of the world from the Middle East to the 
Korean peninsula to Iran and Iraq, we should feel very honored that the 
Vice President would take time out of his schedule related to those 
kinds of issues to be with us today.
  I hope he will come back to the Senate when we debate the disastrous 
economic situation in the country, the loss of 2.5 million jobs in the 
last 2 years following 8 years of a million new jobs being added every 
year, or the 300,000 lost last month.
  I know Senator Daschle sought for weeks to proceed to debate on S. 
414, the Economic Recovery Act of 2003, which among other things 
includes the First Responders Partnership Grant Act, something that we 
could use in Vermont and Utah and Wyoming and everywhere else, but the 
Senate Republican majority has blocked debate and action on the 
Economic Recovery Act.
  So, today, instead of debating the international situation, the need 
to pass an economic stimulus package, the need for an increased 
commitment to homeland defense, the need for legislation to provide a 
real prescription drug benefit for seniors or the many other matters so 
deeply concerning Americans, Republicans are insisting on returning 
again in some form to debate the nomination of Miguel Estrada.
  I wonder if I might have order, Mr. President?
  The VICE PRESIDENT. The Senate will be in order.
  Mr. LEAHY. I note that what has impeded a Senate vote on the Estrada 
nomination has been the political game being played by the White House 
with this nomination. It is part of an effort to pack the Federal 
courts.
  In many ways, the debate has been in the hands of the White House. 
This is a debate that could have ended at any time the White House 
wanted it to end. We wonder, is there something in Mr. Estrada's 
writings that the White House doesn't want us to see? The White House 
could have long ago solved this impasse by letting the Senate have 
access to Mr. Estrada's memos, especially since Mr. Estrada said he is 
perfectly willing to have us see those memos. We have plenty of 
questions we wanted to ask about it but we have to have the paperwork. 
He told us even though he said under oath he is willing to let us see 
it, the White House told him he could not.
  So really this debate is in the control of the White House, not in 
the control of the leaders of the Senate. Past administrations provided 
legal memos in connection with the nominations of Robert Bork, William 
Rehnquist, Brad Reynolds, Stephen Trott, and Benjamin Civiletti, and 
this administration actually provided White House Counsel's office 
memos of its nominee to the EPA.
  Our request for his memos was made nearly one full year ago, Mr. 
President. The White House also could have helped resolve this impasse 
through instructing the nominee to answer questions about his views at 
his hearing, to act consistent with last year's Supreme Court opinion 
by Justice Scalia in a case the Republican Party won to allow judicial 
candidates to share their views, and to stop the pretense that he has 
no views. The White House is using ideology to select its judicial 
nominees but is trying to prevent the Senate from knowing the ideology 
of these nominees when it evaluates them.

  Instead, it appears that the Senate Republican majority, at the 
direction of the White House, chose to extend this debate because its 
political operatives hope to use it to falsely paint those who will not 
be steam rolled as somehow being ``anti-Hispanic.'' The Republicans' 
resort to partisanship regarding this nomination disregards the 
legitimate concerns raised by many Senators as well as by respected 
Hispanic elected officials and Hispanic civil rights leaders. Moreover, 
the Republican approach and the President's approach has been to 
divide: to divide the Senate, to divide the American people and, on 
this particular nomination, to divide Hispanic Americans against each 
other.
  That is wrong. It is wrong because the President campaigned on a 
platform of uniting, not dividing. It is wrong because our country 
needs us to build consensus and work together, especially in these most 
challenging times.
  Instead of bringing up legislation that could unite us or setting 
aside time for debate on the international and domestic challenges our 
country is facing, the Republicans have again returned to the 
nomination of Mr. Estrada and they have set aside an hour and one-half 
this morning for a constitutional debate. Many Democratic Senators have 
already spoken about the Senate's proper role in the confirmation 
process under the Constitution. I recall, in particular, statements by 
Senators Daschle, Reid, Bingaman, Boxer, Clinton, Corzine, Dodd, 
Dorgan, Durbin, Edwards, Feingold, Feinstein, Harkin, Johnson, Kennedy, 
Kohl, Lautenberg, Levin, Mikulski, Sarbanes and Schumer, among many 
others.
  What is disconcerting about the recent debate is what appears to be 
the Republican majority's willingness to sacrifice the constitutional 
authority of the Senate as a check on the power of the President in the 
area of lifetime appointments to our federal courts. I fear, Mr. 
President, that the Republican majority's efforts to re-write Senate 
history in order to rubber-stamp this White House's federal judicial 
nominees will cause long-term damage to this institution, to our 
courts, to our constitutional form of government, to the rights and 
protections of the American people and to generations to come. I have 
served in the Senate for 29 years, and until recently I have never seen 
such stridency on the part of an executive administration or such 
willingness on the part of a Senate majority to cast aside tradition 
and upset

[[Page S3440]]

the balances embedded in our Constitution so as to expand presidential 
power.
  In the time set aside by the Republican majority for this debate 
today, I welcome the opportunity to shed light on the fiction that 
cloture votes, extended debate, and discussion of the views of nominees 
are anything new or unprecedented. What I do find unprecedented is the 
depths that the Republican majority and this White House are willing to 
go to override the constitutional division of power over appointments 
and longstanding Senate practices and history. It strikes me that some 
Republicans seem to think that they are writing on blank slate and that 
they have been given a blank check to pack the courts. They show a 
disturbing penchant for reading our Constitution in isolation from its 
history and the practices that have endured for two centuries, in order 
to suit their purposes of the moment.

  A few years ago, when Republicans were in the Senate minority and a 
democratically elected Democratic President was in the White House, 
columnist George Will, for example, had no complaint about a super-
majority of 60 votes being needed to get an up or down vote on 
legislation or nominations proposed by the President. In fact, 
reflecting Republican sentiment at the time, what he said in his 
defense of the Republican filibuster of President Clinton's proposals, 
was the following:

       The Senate is not obligated to jettison one of its defining 
     characteristics, permissiveness regarding extended debate, in 
     order to pander to the perception that the presidency is the 
     sun about which all else in American government--even 
     American life--orbits.

  This is from the Washington Post on April 25, 1993. It apparently did 
not trouble him or other Republicans when they were in the Senate 
minority that the Constitution expressly requires more than a simple 
majority for only a few matters. In fact, Mr. Will wrote: ``Democracy 
is trivialized when reduced to simple majoritarianism--government by 
adding machine. A mature, nuanced democracy makes provision for 
respecting not mere numbers but also intensity of feeling.''
  Of course, that was in 1993 and President Clinton's proposals and a 
Democratic Senate majority were being contested by Republican 
filibusters. What is different a mere 10 years later? Just that the 
parties have switched roles and this year Democrats are in the Senate 
minority and a Republican occupies the White House. I ask unanimous 
consent that a recent article by Edward Lazarus that critiques Mr. 
Will's new position be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

               [From the Washington Post, Apr. 25, 1993]

George Will, Miguel Estrada, and the Cloture Vote: How Will's Flip-Flop 
 of Positions Illustrates the Increasing Collapse of the Politics/Law 
                              Distinction

                           By Edward Lazarus

       The flurry over Miguel Estrada's controversial nomination 
     to the U.S. Court of Appeals for the District of Columbia 
     continues on. So does the Senate Democrats' filibuster to 
     stop Estrada from being confirmed.
       Meanwhile, a rarely-invoked Senate Rule on the cloture vote 
     has once again become a hot political football. Senate Rule 
     XXII requires 60 votes of the Senate's 100 to stop debate, 
     and break a filibuster.
       Rule XXII's constitutionality is debated. Some believe that 
     votes must be by a simple majority of 51, not a supermajority 
     of 60, except in the limited cases in which the Constitution 
     imposes a different rule.
       Attorney Lloyd Cutler has put the argument as follows: 
     ``The text of the Constitution plainly implies that each 
     house must take all its decisions by majority vote, except in 
     the five expressly enumerated cases where the text itself 
     requires a two-thirds vote: the Senate's advice and consent 
     to a treaty, the Senate's guilty verdict on impeachments, 
     either house expelling a member, both houses overriding a 
     presidential veto and both houses proposing a constitutional 
     amendment.''
       It's an interesting argument. Even more interesting is that 
     the high priest of conservative columnists, George F. Will, 
     has, over time, taken both sides of it--first attacking it, 
     and now recently embracing it.
       What spurred Will's change of mind? Sadly, it seems to be 
     purely politics. That would be fine if it were an issue of 
     policy, and politics. But it's not: It's an issue of 
     constitutional law, which is supposed to have an answer 
     deriving from history and precedent--an answer that 
     transcends politics.


              George Will's Flip-Flop on the Cloture Vote

       Will, a historian of sorts, frequently opines on legal and 
     constitutional issues. He generally holds himself out, as 
     most commentators do, as an honest broker of ideas, albeit a 
     broker with a distinct perspective.
       In that role, Will has twice addressed the issue of Rule 
     XXII.
       The first time was in 1993. At the time, Democratic 
     stalwarts, such as Cutler, were challenging Rule XXII. They 
     feared that, despite Democratic majorities in both the House 
     and Senate, Republicans would use the filibuster to frustrate 
     the agenda of the new Democratic president, Bill Clinton.
       At the time, Will took Cutler to task for his doubts about 
     the constitutionality of Rule XXII. He complained that taking 
     issue with the Rule was ``institutional tinkering'' that 
     ``would facilitate the essence of the liberal agenda--more 
     uninhibited government.'' And he took direct aim at Cutler's 
     argument about the Rule.
       Specifically, Will argued that the five instances of 
     supermajority votes listed in the Constitution were the only 
     time supermajority votes could be used for externally-
     oriented legislation--``the disposition by each house of 
     business that has consequences beyond each house, such as 
     passing legislation or confirming executive or judicial 
     nominees.'' However, ``procedural rules internal to each 
     house,'' according to Will, ``are another matter.'' And in 
     that sphere, a supermajority cloture vote was fine.
       Indeed, Will pointed out, history supports this view: 
     ``[T]he generation that wrote and ratified the Constitution--
     the generation whose actions are considered particularly 
     illuminating concerning the meaning and spirit of the 
     Constitution--set the Senate's permissive tradition regarding 
     extended debate. There was something very like a filibuster 
     in the First Congress.''
       Fair enough. Until one reads the column Will published last 
     week in The Washington Post regarding the Estrada nomination. 
     Here's what Will has to say now (with emphases added):
       ``The president, preoccupied with regime change elsewhere, 
     will occupy a substantially diminished presidency unless he 
     defeats the current attempt to alter the constitutional 
     regime here. If at least 41 Senate Democrats succeed in 
     blocking a vote on the confirmation of Miguel Estrada to the 
     U.S. Court of Appeals for the D.C. Circuit, the Constitution 
     effectively will be amended.''
       If Senate rules, exploited by an anti-constitutional 
     minority, are allowed to trump the Constitution's text and 
     two centuries of practice, the Senate's power to consent to 
     judicial nominations will have become a Senate right to 
     require a 60-vote supermajority for confirmations. By thus 
     nullifying the president's power to shape the judiciary, 
     the Democratic Party will wield a presidential power 
     without having won a presidential election.
       Wait a second. So Will now agrees with Cutler? And not only 
     that, he reads both the Constitution's text and ``two 
     centuries of practice'' relating to filibusters entirely 
     differently than he once did? What's prompted his change of 
     mind? And doesn't he owe Cutler an apology?
       Obviously, conscientious commentators do change their views 
     when they re-examine them and find them in error. I am no fan 
     of a ``foolish consistency'' in such matters. But this kind 
     of change of mind--without explanation or apology--is quite 
     troubling.
       Also troubling is the fact that Will's close analysis of 
     the Constitution and the First Congress's proceedings, so 
     important to him in 1993, is entirely missing here. And his 
     venom--once directed at Cutler--now draws on Cutler (without 
     attribution) instead. Only one conclusion seems possible: 
     This is an exquisitely brazen example of intellectual flip-
     floppery that has nothing to do with law or the Constitution, 
     or American history, and everything to do with conservative 
     politics.


          what the flip-flop means for will, and for all of us

       The flip-flop is an embarrassment to Will and his 
     reputation. Sadly, it may also be more than that as well. I 
     fear that Will's adventure in hypocrisy is emblematic of what 
     may well be the worst truth in American political discourse: 
     nothing is shameful anymore. And no sense of integrity--an 
     integrity that transcends politics--remains.
       It seems especially ironic (or perhaps appropriate) that 
     Will should come to represent this problem. After all, he--
     and commentators of his ilk--have spent the last decade or 
     two bemoaning the rise of moral relativism in our society. 
     They mourn the death of ``shaming'' as an instrument of 
     behavior modification for politicians and citizens alike.
       In the culture wars, Will and others like him have been the 
     army defending such concepts as objective truth and personal 
     responsibility. They have been the ones saying there is a 
     right thing to do, independent of politics, independent of 
     the times. They have carried the banner of integrity, in 
     short. Now it's plain, though, that Will has torn up that 
     banner even while pretending to uphold it.
       I confess that I'm a sucker. I believe in these kinds of 
     things--integrity, truth, certain absolute moral values, a 
     right thing to do. Maybe it's all that Plato I read in 
     college. I've always believed there is such a

[[Page S3441]]

     thing as a ``true'' answer (even if we cannot know it with 
     certainty), and that there are ways of discerning better 
     from worse, whether in argument or music or literature.
       Nowhere did these beliefs seem to be more important than in 
     the field of law. Courts wield great power to shape the 
     social order and control the destiny of individuals. Their 
     integrity rests ultimately on the belief that their decisions 
     are not merely just that--exercises of power--but are, in 
     addition, principled attempts to discern the proper meaning 
     of the law. And the idea that there is a ``proper meaning'' 
     in the first place, in turn presumes a universe that 
     recognizes a genuine ability to choose better arguments over 
     weaker ones, regardless of what one thinks of the results the 
     arguments lead us to.
       In according with these principles, I've critiqued legal 
     reasoning even when I agree with its result, if I've felt the 
     reasoning itself was flawed. For instance, though I support 
     abortion rights, I've expressed strong qualms about Roe.
       Now, however, it seems integrity is being radically 
     redefined, as pure loyalty--fealty to the party, the 
     political beliefs, the results that one prefers. Lying in the 
     service of a cause has become, in some circles, honorable to 
     do.


    changing times have ushered in a norm of intellectual dishonesty

       Intellectual dishonesty is pure poison to the enterprise of 
     the law. Yet countless examples show intellectual dishonesty 
     has now become a routine, expected part of American 
     discourse. The most obvious half-truths and hypocrisies are 
     greeted with shrugged shoulders and a grunt of ``what did you 
     expect?''
       These dishonesties that we have come to accept too easily 
     range from the non-reasoning of Bush v. Gore, to the logic-
     defying economic rationale for more tax cuts, to the ever-
     shifting justification of war in Iraq. And they extend to 
     just about every other significant issue of law and policy 
     that affects American life.
       Why does this happen? It cannot be because all the people 
     perpetrating these intellectual frauds are bad people. It's 
     been my experience (limited, I admit) that most people who go 
     into government or devote themselves to a life of public 
     policymaking or intellectualism, do so for the best of 
     reasons--because they want to help shape the world for the 
     better.
       Then why? I found a partial answer watching, last night, an 
     old clip of Daniel Ellsberg being interviewed by Walter 
     Cronkite, in the wake of Ellsberg's controversial release of 
     the Pentagon Papers. To paraphrase, Ellsberg contended that 
     our society had become so divided, with each side so bent on 
     perpetuating itself in power, that government and the world 
     around it imposed a sustained and terrible pressure on good 
     people to make a choice. They could either leave that world 
     or, far worse, give up the search for truth, in exchange for 
     the search for victory.
       That was more than 30 years ago. Has anything much changed?

  Mr. LEAHY. As Mr. Will noted in 1993, one of the key attributes of 
the Senate is the venerable tradition of extended debate and 
deliberations. In fact, not until 1917 was there even a provision in 
the Senate rules to allow for cloture, a procedure by which the Senate 
acts to cut off debate. The Senate first adopted the cloture rule in 
1917. At that time, cloture was limited to and could only be sought on 
legislative matters. The cloture rule was extended in 1949 to include 
measures and matters, which includes judicial nominations. Thus, prior 
to 1949, there was no mechanism to limit debate on nominations, and in 
fact, disputes over nominations--to the few hundred seats in the 
federal judiciary--were handled and resolved by Senators behind closed 
doors.
  Earlier in this debate today, one Senator indicated that all prior 
Supreme Court nominees had been given votes. I will just name a few 
judicial nominees who were not acted upon by the Senate earlier in 
American history: John M. Read, nominated by President Tyler on 
February 7, 1845; Edward Bradford, nominated by President Fillmore on 
August 16, 1852; Henry Stanbery, nominated by President Andrew Johnson 
on April 16, 1866; and Stanley Mathews, nominated by President Hayes on 
January 26, 1881. The facts are that many judicial or executive 
nominations were defeated in the Senate by inaction or by the threat of 
a filibuster over the years.
  Republicans resurrected and amplified those tactics in the years 
1995-2001 to defeat more than 50 of President Clinton's judicial 
nominees and to delay for years the confirmation of many others. In 
1999, only 22 percent of President Clinton's circuit court nominees 
were confirmed. That was the first time in recent memory that a circuit 
court nominee was substantially more likely not to be confirmed than to 
be confirmed. For all of 1999 and 2000, only 44 percent of President 
Clinton's circuit court nominees were confirmed, making it more likely 
than not that his circuit court nominees would not be confirmed, unlike 
the nominees of the prior three Presidents, even during their last 
years in office. That is why vacancies on the circuit courts more than 
doubled from 16 in 1995 to 33 when the Senate reorganized in the summer 
of 2001. That is why this President has had so many circuit vacancies 
to fill, and he has shown little bipartisanship in his choices. In 
fact, rather than uniting people with his choices for lifetime 
appointments, he has sent forward a slate of circuit court nominees 
that has generated tremendous controversy and division.
  In essence, until Republicans had a Republican President, Republicans 
interpreted the Advice and Consent Clause of the Constitution to allow 
a handful of anonymous Republican Senators to prevent an ``up or down'' 
vote by the full Senate on scores of qualified and moderate, mainstream 
judicial nominees of President Clinton. Now, when Democratic Senators 
have expressed genuine concerns about the lack of information regarding 
Mr. Estrada and have made a well-founded request to see his writings as 
a public servant, Republicans claim it is wrong and unconstitutional 
for Senators to act in accordance with Senate rules and tradition and 
their longstanding role as a check and balance on the President's 
appointment power.
  The disregard for rules and traditions is especially unfortunate when 
what is at stake in judicial nominations are lifetime appointment for 
judges who will have the power to change how the Constitution is 
interpreted and whether civil rights, environmental protections, 
privacy and our fundamental freedoms will be upheld. With respect to 
the Estrada nomination, what is at stake is a seat on the second 
highest court in the country and the swing vote on that important 
court.

  Most of the decisions issued by the D.C. Circuit in the nearly 1,400 
appeals filed per year are final because the Supreme Court now takes 
fewer than 100 cases from all over the country each year. This court 
has special jurisdiction over cases involving the rights of working 
Americans as well as the right to a cleaner environment. This is a 
court where federal regulations will be upheld or overturned, where 
privacy rights will either be retained or lost, and where thousands of 
individuals will have their final appeal in matters that affect their 
financial future, their health, their lives and their liberty.
  This is a court that has vacant seats due to anonymous Republicans 
blocking the last two nominees to this court by a Democratic President. 
Those nominees had outstanding legal credentials and qualifications but 
during President Clinton's last term, the Republican-controlled Senate 
would not proceed to an up or down vote on either of them.
  The word ``filibuster'' derives from the Dutch word for piracy, or 
taking property that does not belong to you. Under that ordinary 
definition, it would be accurate to say that at least two of the 
vacancies on the D.C. Circuit, for which Republicans blocked qualified 
nominees, were filibustered, as well. Republicans, who exploited every 
procedural rule and practice to block scores of Clinton nominees 
anonymously from ever receiving an up or down vote, now want to change 
the rules midstream, to their partisan advantage, again so that all of 
their nominees get votes as quickly as possible. The whole reason this 
President has so many circuit vacancies to fill is because this was the 
booty of their piracy, their filibustering of judicial seats that arose 
during the Clinton Administration while they prevented votes on that 
President's qualified nominees.
  For example, a Mexican-American circuit court nominee of President 
Clinton, Judge Richard Paez, was forced to wait more than 1,500 days to 
be confirmed. Even after the Republican filibuster was broken by a 
cloture vote to end debate, many Republicans joined an unsuccessful 
motion to indefinitely postpone his nomination. None of the more than 
30 Republicans who voted against cloture in connection with that 
nomination or who voted in favor of Senator Sessions unprecedented 
motion ``to indefinitely postpone'' the vote on Judge Paez's 
nomination, which had been pending for more than 1,500 days, should be

[[Page S3442]]

heard to complain if Democratic Senators seek more information about 
this President's nominees before proceeding to a vote for a lifetime 
appointment.
  Senator Bob Smith, a straight talker from New Hampshire, outlined the 
Senate's history of filibusters of judicial nominees and said:

       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 regarding the circuit court nomination of Mr. 
Estrada--much like the bogus 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 wrong. They 
should come clean and tell the truth to the American people about their 
past practices on nominations. They cannot change the plain facts to 
fit their current argument and purposes.

  Back in 2000, Senator Hatch candidly admitted after cloture was 
invoked on the Paez nomination and Senator Sessions made his 
unprecedented motion to indefinitely postpone any vote on that judicial 
nomination that Judge Paez's nomination had been filibustered. He said:

       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.

  Republicans should not have come to the floor and told the American 
people over the last month that Democratic Senators had done something 
unprecedented in debating and opposing the Estrada nomination. They 
themselves did it quite recently and have done it repeatedly. Let us be 
honest about this and straight with the American people. Given the time 
allotted for today's debate, I cannot discuss them all but I will 
include in the record some of the other examples of Republican 
filibusters of presidential nominations from the nomination of Justice 
Abe Fortas to be Chief Justice of the United States Supreme Court 
through the nominations of Stephen G. Breyer, now Justice Breyer, to 
the First Circuit; Rosemary Barkett to the 11th Circuit; H. Lee Sarokin 
to the 3rd Circuit; and Marsha Berzon and Richard Paez to the 9th 
Circuit.
  Even more frequent during the years from 1995 through 2001, when 
Republicans controlled the Senate majority, were Republican efforts to 
defeat President Clinton's judicial nominees through inaction and 
anonymous holds for which no Republican Senator could be held 
accountable. Republicans held up almost 80 judicial nominees who were 
not acted upon during the Congress in which President Clinton first 
nominated them, Republicans eventually defeated more than 50 judicial 
nominees without a recorded Senate vote of any kind, just by refusing 
to proceed with hearings and Committee votes due to the anonymous acts 
of one or more Republicans.
  Beyond the question of judicial nominees, Republicans also 
filibustered President Clinton's nomination of Dr. Henry Foster to 
become Surgeon General of the United States. This was an Executive 
Branch nominee that Republicans filibustered successfully in spite of 
two cloture votes in 1995. Dr. David Satcher's subsequent nomination 
also required cloture but he was successfully confirmed.
  Other executive branch nominees who were filibustered by Republicans 
included Walter Dellinger, whose name has been invoked with approval by 
Republicans during the debate on the Estrada nomination. Mr. Dellinger 
was nominated to be Assistant Attorney General for the Office of Legal 
Counsel and two cloture petitions were required to be filed and both 
were rejected by Republicans. In this case we were able finally to 
obtain a confirmation vote after significant efforts and Mr. Dellinger 
was confirmed to that position with 34 votes against him. He was never 
allowed to be a confirmed Solicitor General because Republicans had 
made clear their opposition to him.
  In addition, in 1993, Republicans objected to State Department 
nominations and even the nomination of Janet Napolitano to serve as the 
U.S. Attorney for Arizona, resulting in cloture petitions. In 1994, Sam 
Brown was nominated to be an Ambassador. After three cloture petitions 
were filed, his nomination was returned to President Clinton without 
Senate action. This was another successful filibuster by Republicans, 
and this was to a short-term appointment to serve in the Executive 
Branch, not to a lifetime appointment. Also in 1994, Derek Shearer was 
nominated to be an Ambassador and it took two cloture petitions to get 
to a vote before he was confirmed. In 1994, Ricki Tigert was nominated 
to chair the FDIC and it took two cloture petitions to get to a vote 
and confirmation of that executive nomination.
  In addition, some remember Republican unwillingness to allow a Senate 
vote on the nomination of Bill Lann Lee to serve as the Assistant 
Attorney General for the Civil Rights Division at the Department of 
Justice. He told the Judiciary Committee that he would follow the law 
and enforce the law. He was the choice of the President to serve in 
that President's administration, but Republicans would not accord him 
an up or down vote before the United States Senate.
  Republicans now claim that extended debate on this nomination is 
somehow unprecedented. I would point out that we have had a lot of 
extended debates and cloture votes over the last decade. I lost count 
of the number of times we had to vote on cloture when President Clinton 
was making nominations. This chart shows some of the Republican 
filibusters of nominations, leaving out their filibusters of 
legislation.
  So when Republican Senators now talk about the Senate Executive 
Calendar and presidential nominees, it must be remembered that they 
recently filibustered several nominees and they succeeded in blocking 
many nominees by cloture votes and through anonymous holds. Here is a 
more complete list of recent Republican filibusters:

                   REPUBLICAN FILIBUSTERS OF NOMINEES
------------------------------------------------------------------------
                                                                Cloture
  Year                   Nominee and position                  petitions
                                                                 filed
------------------------------------------------------------------------
  1968   Abe Fortas, Supreme Court...........................         *1
  1980   William Lubbers, NLRB...............................          3
  1980   Don Zimmerman, NLRB.................................          3
  1980   Stephen Breyer, 1st Circuit.........................          2
  1987   Melissa Wells, Ambassador...........................          1
  1987   William Verity, Commerce............................          1
  1993   Walter Dellinger, Justice...........................          2
  1993   Five State Department Nominees......................          2
  1993   Janet Napolitano, Justice...........................          1
  1994   Larry Lawrence, Ambassador..........................          1
  1994   Rosemary Barkett, 11th Circuit......................          1
  1994   Sam Brown, Ambassador...............................         *3
  1994   Derek Shearer, Ambassador...........................          2
  1994   Ricki Tigert, FDIC..................................          2
  1994   H. Lee Sarokin, 3rd Circuit.........................          1
  1995   Henry Foster, Surgeon General.......................         *2
  1998   David Satcher, Surgeon General......................          1
  2000   Marsha Berzon, 9th Circuit..........................          1
  2000   Richard Paez, 9th Circuit...........................          1
------------------------------------------------------------------------

  I would note that the Fortas, Brown and Foster cloture votes resulted 
in effect in the defeat of their lifetime or short-term appointments. 
Some of these filibusters occurred when the Republicans were in the 
minority--as with Senator Helms' filibuster of a State Department 
appointee of President Reagan, and some were while Republicans were in 
the majority--as with the filibuster of Judge Paez's nomination.
  Notwithstanding the recent Republican efforts to filibuster that 
Hispanic circuit court nominee and their failure to give hearings or 
votes to three other Hispanic circuit court nominees of President 
Clinton in addition to other nominees, Republicans have come to this 
floor and made unfounded attacks against Democrats who have expressed 
concerns about Mr. Estrada's nomination. It appears the Senate 
Republican majority, at the direction of the White House, chose to 
extend this debate because political operatives hope to use it to 
falsely paint those who were not to be steamrollered as somehow anti-
Hispanic. The Republican's approach of crass partisanship regarding 
this nomination----
  Mr. SANTORUM. Mr. President, will the Senator yield for a question? 
These were not times when Republicans were in charge, is that correct?
  Mr. LEAHY. Once I finish my speech I will be glad to yield to 
questions. I control the floor. Once I have finished my speech I will 
be glad to.
  Mr. SANTORUM. Will he yield for a question?
  Mr. SCHUMER. Regular order, Mr. President.
  Mr. SANTORUM. I just want to make sure the Record is correct because 
the Senator said Republicans were in charge at that time.

[[Page S3443]]

  The PRESIDING OFFICER (Mr. Sessions). The Senator from Vermont has 
the floor.
  Mr. SANTORUM. I just want to make sure the Record is correct.
  Mr. LEAHY. The partisanship regarding this nominee disregards the 
legitimate concerns raised by many Senators. It is wrong because 
distinguished Latino leaders, who have spent their lives seeking 
justice and greater representation of Hispanic lawyers as judges, have 
been attacked by Republicans for showing courage and honesty in their 
judgment that this nomination is wanting. Joining the League of United 
Latin American Citizens, which previously wrote to the Senate 
disassociating itself with Republican attacks on Democratic Senators, 
yesterday the National Council of La Raza issued a statement condemning 
the treatment of Congressional Hispanic Caucus by Republicans. The NCLR 
statement notes how ``deeply offended'' it is by Mr. Estrada's 
supporters calling Congressional Hispanic Caucus members 
``tyrannical,'' ``racist,'' and ``anti-Latino''.
  Moreover, the Republican approach and the President's approach have 
been to divide the Senate, to divide the American people--may I have 
order, Mr. President? May I have order?
  Mr. SCHUMER. Mr. President, may we have order?
  The PRESIDING OFFICER. The Senator from Vermont has the floor. He may 
or may not yield.
  Mr. LEAHY. That is wrong. The President campaigned on a platform of 
uniting, not dividing. It is wrong because our country needs us to 
build consensus and we should work together especially in these most 
challenging times. These are the years of Republican filibusters of 
judicial or executive branch nominees: 1968, 1980, 1980, 1980, 1987, 
1987, 1993, 1993, 1993, 1994, 1994, 1994, 1994, 1994, 1994, 1995, 1998, 
2000, 2000.
  For Republicans to claim that they have never filibustered a circuit 
court nominee is just incorrect. For them to claim that they have never 
``successfully'' filibustered a lifetime or short-term appointee's 
nomination is also incorrect. The debate on Mr. Estrada's nomination is 
important.
  I think in the debate on this nomination, this is not a nomination 
that unites rather than divides. Certainly within the Hispanic 
community itself, highly respected members of the Hispanic community 
oppose Miguel Estrada.
  Mr. HATCH. Mr. President, will the Senator yield for a question?
  Mr. LEAHY. I would be glad to. Let me finish these comments, and then 
I will yield on the time of the Senator from Utah.
  In this case, it appears to me that the White House really wants to 
play politics. They could end this debate today if they wanted to. They 
can make these papers available so that Miguel Estrada can be asked 
questions based on them. Miguel Estrada has said under oath that he is 
perfectly willing to answer the questions, but the White House told him 
he is not allowed to. Once they are willing to, let us have a hearing 
and then let us go forward on questions based on what is in there.
  The administration, however, seems to believe that somehow the Senate 
is their own unit to be used for whatever type of politicking they 
want. They renominated Judge Charles Pickering despite his ethical 
lapses. They renominated Justice Priscilla Owen despite her record as a 
conservative activist judge and after being rejected by the Judiciary 
Committee. Both of these nominees were rejected by the Senate Judiciary 
Committee after fair hearings and open debate last year. Sending these 
renominations to the Senate is unprecedented. No judicial nominee who 
has been voted down in Committee has ever been renominated to the same 
position by the President. The White House in tandem with the new 
Republican majority in the Senate is choosing these battles over 
nominations purposefully. Dividing rather than uniting has become their 
modus operandi.
  Among the consequences of this partisan strategy is that for the last 
month, the Senate has been denied by the Republican leadership 
meaningful debate on the situation in Iraq. I commend Senator Byrd, 
Senator Kennedy and the other Senators on both sides of the aisle who 
have nonetheless sought to have the Senate fulfill its constitutional 
role as a forum for debate and careful consideration of our nation's 
foreign policy in accordance with the shared power provided in the 
Constitution. The decision by the Republican Senate majority to focus 
on controversial nominations rather than the international situation or 
the economy says much about their mistaken priorities. The Republican 
majority sets the agenda and they schedule the debate, just as they 
have here this morning.
  Among the consequences of this partisan strategy, of course, what has 
happened by the Republican scheduling of debate on this nomination is 
we don't have sufficient time to debate the Iraq situation. We don't 
talk about war in Iraq even though there is great division in this 
country. We don't talk about an administration which inherited the 
largest surplus any administration has ever inherited. The Clinton 
administration left the largest budget surplus to this administration 
than any administration ever had, and now Republicans are creating the 
largest deficit in history. The Clinton administration created a 
million new jobs a year. This administration is losing a million jobs a 
year. But if the Republican controlled Senate continues to schedule 
debate on Miguel Estrada, they will not have to talk about that.

  That kind of tells me why they are doing this. Here is the greatest 
deliberative body in the world, and we don't have a debate on the war 
in Iraq. The Canadian Parliament does. The British Parliament does. The 
U.S. Senate does not.
  I would be willing to yield to the Senator from Utah on his time.
  Mr. HATCH. I will ask the question on my time. Will the Senator 
answer on his time?
  Mr. LEAHY. On the time of the Senator from Utah.
  Mr. HATCH. Let me ask the question on my time. I would like the 
answer on the Senator's time.
  As to the number of circuit court of appeals judges, No. 1, who was 
in charge of the Senate when Abe Fortas was defeated by a filibuster? 
No. 2, were any of those circuit court nominees defeated by filibuster, 
or were they all confirmed?
  Mr. LEAHY. Mr. President, I will refer to this in my statement. All 
of these were Republican filibusters and a few times a few Democrats 
joined with the Republicans in their efforts to block these nominees. 
Some of the Republican filibusters were successful, and some were not, 
but they all were filibusters and they all involved cloture petitions. 
A filibuster is still a filibuster even if it does not succeed in 
blocking the nominee forever. The Republican filibuster of Judge Paez's 
circuit court nomination proves that.
  I fear that what the Republican majority is trying to do is rewrite 
Senate history in order to rubberstamp the Federal judicial nominees of 
this White House and that this will cause long-term damage to the 
Senate and the courts.
  I have served in the Senate for 29 years. I have never seen a 
President so eager to divide rather than unite. I have never seen such 
stridency on the part of an executive administration or such 
willingness as this Senate majority's to cast aside tradition, the 
rules, and those things that give us a check and balance. It is 
unfortunate because the country expects more of us.
  We see the most deliberative body on Earth--the Senate--not even 
debating the war we are about to go to in a matter of days, if the news 
accounts are correct, and we are talking about this because this is the 
Republican agenda, packing the courts.
  In the debate Republicans have insisted upon, a number of fictions 
have been told. The cloture votes, the extended debate, and the 
discussion of the views of nominees is not anything new or 
unprecedented. What is going on here is unprecedented--with the 
Republican blank slate, no past history, and they think they can do 
whatever they want to do.
  During the time when President Clinton was here and the Republicans 
were in charge, there were scores of nominees on which we didn't even 
have a vote. We had anonymous holds by Republicans. We didn't have up-
or-down votes. Now, when we express genuine concern, now, when we say 
why can't Mr. Estrada show us the writings that he has said under sworn 
testimony he is willing to show us but the White House blocks him from 
showing us, somehow we are blocking. Maybe it appears that the 
Republicans like the

[[Page S3444]]

rules when they are using them, but they don't like the rules when we 
are using them.

  Even though Republicans blocked some Hispanic nominees of President 
Clinton and scores of others, I must add that the debate on the 
nomination of Mr. Estrada is not part of any retaliation. We have 
genuine concerns about his nomination, his answers and the documents we 
have requested to better understand his unvarnished views. In addition, 
we worked hard to move quickly on the vast majority of this President's 
judicial nominations, to demonstrate our fairness and bipartisanship. 
In just 17 months, the Democratic-led Senate confirmed 100 of President 
Bush's judicial nominees, even though Republicans averaged only 38 per 
year. We more than doubled the rate of confirmation. We also held 
hearings for 20 circuit court nominees and confirmed 17 of them in just 
17 months, following on the heels of a Republican average of just 7 
circuit nominees confirmed per year, and one year in which they allowed 
zero circuit court nominees to be confirmed. So, we worked very hard to 
return the nomination process to a more consistent and steady pace, 
after the obstruction in prior years. So far this year, 5 judicial 
nominees of this President have already been confirmed.
  The confirmation of 100 judges nominated by this President was not 
enough for Republicans to be satisfied. They want every one of this 
President's judicial nominees to be confirmed no matter their ethical 
record or record of activism or their controversy. They want every 
judicial nominee on the courts immediately despite the serious concerns 
raised by Senators and citizens alike. They want to pack the court with 
many divisive judicial nominees who will tilt the balance of the courts 
for decades to come.
  The fact is, it appears to me, the decision is being made not here in 
the Senate but by a political arm of the White House.
  They have made these controversial appointments despite the recent 
history of the moderate nominees to these circuits of President Clinton 
who were blocked. If we use the ordinary definition of filibuster, we 
could say that at least two of the vacancies on the District of 
Columbia Circuit were filibustered despite the well-qualified nominees 
sent up by President Clinton. They were never allowed to be voted on. 
They didn't make it to the floor. Republicans blocked nominees in a far 
easier way. They didn't even bring them up. They were nonpersons--
almost like the old Soviet Union. When you looked at the picture of the 
Politburo, you would find out the next year when the picture was shown 
they were X'd out.
  Mr. SCHUMER. Mr. President, will my colleague yield for a question?
  Mr. LEAHY. Certainly.
  Mr. SCHUMER. How many of these nominees were never brought up even 
for debate? Does my colleague think it is even worse than trying to 
figure out what his views are than never having the debate on the floor 
and never bringing them up and never giving them a chance?
  Mr. LEAHY. The Republicans wouldn't allow over 50 of President 
Clinton's nominees to ever have a hearing or ever have a vote. Many of 
these individuals were nominated years earlier. We never got to know 
what the reasoning behind the anonymous Republican holds was. Even when 
we finally did, for example, a Mexican-American circuit court nominee 
of President Clinton, Judge Richard Paez, was forced to wait more than 
1,500 days to be confirmed. And even then, we had to vote in favor of 
cloture to get the up or down vote on his nomination. Fifteen 
Republicans voted against cloture--after he waited more than 20 months 
for a floor vote during the four-plus years he was pending before the 
Senate. In fact, one Republican Senator moved to indefinitely postpone 
Judge Paez's nomination, even though he had waited for 1,500 days, and 
31 Republicans voted in favor of indefinitely postponing that 
nomination in March of 2000. If they had had the votes they never would 
have let him be confirmed. Not one Republican came to the floor during 
the time Judge Paez was waiting for a vote and suggested that the 
Republican filibuster during any of those 1,500 days was 
unconstitutional or anti-majoritarian.

  In fact, today made me think of this when we have the two 
distinguished Presiding Officers, the distinguished Vice President and 
the distinguished Senator from Alabama. The distinguished Senator from 
Alabama actually objected to the Vice President at that time being in 
the chair in the closing moments of the debate on Judge Paez's 
nomination because the executive branch had nominated him and that was 
a conflict of interest in his view. Of course, Republicans did not make 
a similar motion today when it was a Republican Vice President in the 
chair during a debate about a Republican nominee.
  Let us just be a little bit honest about what is going on here. This 
is sauce for the goose and sauce for the gander. And yet this 
Administration and many Republicans have not acknowledged our effort to 
turn the other cheek and confirm 100 of this President's judicial 
nominees in the prior 17 months of Democratic leadership of the Senate. 
Many of those nominations were to seats that were blocked from being 
filled during the prior period of Republican control of the Senate.
  It cannot be that only the rules Republicans like at the times that 
they like them are the rules that are followed in the Senate, but more 
and more that seems to be what the Republican majority is demanding. 
They should not pretend the rules no longer apply simply because the 
Republican majority finds them inconvenient, but that is happening more 
and more in the Senate. Regrettably, it has occurred recently in 
connection with judicial nominees before the Judiciary Committee, when 
the Republicans insisted on breaching Rule IV, a longstanding rule of 
our Committee that allows for extended debate, as well.
  I would like to address a most troubling development that 
demonstrates how Republicans are violating longstanding Senate rules to 
suit themselves. Two weeks ago in a meeting of the Senate Judiciary 
Committee, the Chairman unilaterally declared the termination of debate 
on two controversial circuit court nominations. Senator Daschle termed 
it deeply troubling and a ``reckless exercise of raw power by a 
Chairman,'' and he is right. The Democratic Leader observed that the 
work of this Senate has for over 200 years operated on the principle of 
civil debate, which includes protection of the minority. When a 
Chairman can on his own whim choose to ignore our rules that protect 
the minority, not only is that protection lost, but so is an 
irreplaceable piece of our integrity and credibility.
  The Democratic Leader noted that faithful adherence to rules is 
especially important for the Senate and for its Judiciary Committee. He 
noted ``how ironic that in the Judiciary Committee, a Committee which 
passes judgment on those who will interpret the rule of law,'' that it 
acted in conscious disregard of the rules that were established to 
apply to its proceedings. If this is what those who pontificate about 
``strict construction'' mean by that term, it translates to winning by 
any means necessary. If this is how the judges of the judicial nominees 
act, how can we expect the nominees they support as ``strict 
constructionists'' to behave any better? Given this action in 
disrespect of the rights of the minority, how can we expect the 
Judiciary Committee to place individuals on the bench who respect the 
rule of law? In my 29 years in the Senate and in my reading of Senate 
history, I cannot think of so clear a violation of Senators' rights.

  I am gravely concerned about this abuse of power and breach of our 
Committee rules. When the Judiciary Committee cannot be counted upon to 
follow its own rules for handling important lifetime appointments to 
the federal judiciary, everyone should be concerned. In violation of 
the rules that have governed that Committee's proceedings since 1979, 
the Chairman chose to ignore our longstanding Committee Rules and 
short-circuit Committee consideration of the nominations of John 
Roberts and Deborah Cook. Senator Daschle spoke to that matter that 
day. Senator Feinstein, Senator Schumer and Senator Durbin have also 
spoken to the Senate about this breach of our rules as well as a number 
of other liberties that Republicans have been taking with the rules.

[[Page S3445]]

  This protection for the minority has been maintained by the Judiciary 
Committee for the last 24 years under five different chairmen--Chairman 
Kennedy, Chairman Thurmond, Chairman Biden, under Chairman Hatch 
previously and during my tenure as chairman.
  Rule IV of the Judiciary Committee provides the minority with a right 
not to have debate terminated and not to be forced to a vote without at 
least one member of the minority agreeing. That rule and practice had 
until last month always been observed by the Committee, even as we have 
dealt with the most contentious social issues and nominations that come 
before the Senate.
  Until last month, Democratic and Republican Chairmen had always acted 
to protect the rights of the Senate minority. The rule has been the 
Committee's equivalent to the Senate's cloture rule. It had been 
honored by all five Democratic and Republican chairman, including 
Senator Hatch, until last month.
  It was rarely utilized but Rule IV set the ground rules and the 
backdrop against which rank partisanship was required to give way, in 
the best tradition of the Senate, to a measure of bipartisanship in 
order to make progress. That is the other important function of the 
rule.
  Besides protecting minority rights, it enforced a certain level of 
cooperation between the majority and minority in order to get things 
accomplished. That, too, has been lost as the level of partisanship on 
the Judiciary Committee and within the Senate reached a new low when 
Republicans chose to override our governing rules of conduct and 
proceed as if the Senate Judiciary Committee were a minor committee of 
the House of Representatives.

  In fact, the only occasion I recall when Senator Hatch was previously 
faced with implementing Committee Rule IV, he did implement it. In 1997 
Democrats on the Committee were seeking a Senate floor vote on 
President Clinton's nomination of Bill Lann Lee to be the Assistant 
Attorney General for Civil Rights at the Department of Justice. Then, 
Senator Hatch acknowledged: ``Rule IV of the Judiciary Committee rules 
effectively establishes a committee filibuster right . . . .'' In 1997, 
Chairman Hatch acknowledged: ``Absent the consent of a minority member 
of the Committee, a matter may not be brought to a vote.'' In that 
case, in 1997, Chairman Hatch followed the rules of the Committee.
  Last month the bipartisan tradition and respect for the rights of the 
minority ended when Chairman Hatch decided to override the rule rather 
than follow it. He did so expressly and intentionally, declaring: 
``[Y]ou have no right to continue a filibuster in this committee.'' He 
decided, unilaterally, to declare the debate over even though all 
members of the minority were prepared to continue the debate and that 
debate was, in fact, terminated prematurely. Senator Hatch completely 
reversed his own position from the Bill Lann Lee nomination and took a 
step unprecedented in the history of the Committee.
  In his recent letter to Senator Daschle, Senator Hatch now contends 
that he ``does not believe the Committee filibuster should be allowed 
and [he] thinks it is a good and healthy thing for the Committee to 
have a rule that forces a vote.'' I ask that the exchange of letters 
between Senator Hatch and the Democratic Leader be included in the 
Record.
  Our Committee rule, while providing a mechanism for terminating 
debate and reaching a vote on a matter, does so while providing a 
minimum of protection for the minority. It is even that minimum 
protection that Chairman Hatch will no longer countenance. It is 
Senator Hatch who has ``turned Rule 4 on its head'' last month, after 
24 years of consistent interpretation and implementation by five 
chairmen. Never before his letter to Senator Daschle has anyone since 
the adoption of the rule in 1979 ever suggested that its purpose was to 
be narrowed and redirected to thwart what he called ``an obstreperous 
Chairman who refuses to allow a vote on an item on the Agenda.'' After 
all, as Senator Hatch recognizes in his letter, it is the chairman's 
prerogative to set the agenda for the mark-up.
  This revisionist reading of the rule is not justified by its adoption 
or its prior use and appears to be nothing other than an after the fact 
attempt to justify the obvious breaches of the longstanding Committee 
rule and practice that occurred last month. That novel interpretation 
was not even articulated contemporaneously at the business meeting.
  The Committee and the Senate have crossed a threshold of partisan 
overreaching to rubber-stamp judicial nominees that should never have 
been crossed. I urge the Republican leadership to recommit the 
nominations of Deborah Cook and John Roberts to the Judiciary Committee 
so that they can be considered in accordance with the Committee's 
rules. The action taken last month should be vitiated and order 
restored to the Senate and to the Judiciary Committee. I urge the 
Judiciary Committee and the Senate to rethink the misstep taken last 
month and urge the Chairman and the Committee to disavow the 
misinterpretation and violations of Rule IV that occurred. Order and 
comity need to be restored to the Judiciary Committee. An essential 
step in that process is the restoration of minority rights under Rule 
IV and recognition of minority rights thereunder.

  During the last four years of the Clinton Administration, his entire 
second term in office after being reelected by the American people, the 
Judiciary Committee refused to hold hearings and Committee votes on his 
qualified nominees to the D.C. Circuit and it refused to give hearings 
to three Sixth Circuit nominees in those four years as well as to 
numerous other circuit nominees. Last month, in sharp contrast, this 
Committee was required to proceed on two controversial nominations to 
those circuit courts in contravention of the rules and practices of the 
Committee. This can only be seen as part of a concerted and partisan 
effort to pack the courts and tilt them sharply out of balance.
  In circumstances such as these, when the rights of the minority are 
being violated and Senate rules and longstanding practices are 
breached, the minority is left with very few options and very little 
choice in how it must proceed. This President has been the most 
politically aggressive and the most unilateralist President I have seen 
in my 29 years in the Senate in his nominations. The Republican 
majority is now choosing to abet his efforts at the expense of the 
Senate minority's rights and the constitutional role of the Senate. 
That is most regrettable.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, how much time remains on both sides?
  The PRESIDING OFFICER. Nine minutes, 42 seconds; the other side has 
40 seconds.
  Mr. HATCH. I would like to correct the Record. When all of those 
circuit court judges were approved and confirmed, during the time when 
the filibuster occurred on Fortas--the only filibuster which was really 
a true filibuster--it was bipartisan and the Democrats controlled the 
Senate.
  I yield 2 minutes to the distinguished Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, the Senator from Illinois earlier 
brought up the distinguished late Judge Frank Johnson of Alabama and 
commended him for doing the right thing. I wanted to remind the Senate 
of why Judge Johnson was able to do the right thing in desegregating 
the south. It was because of John Minor Wisdom of Louisiana and John 
Brown of Texas and Elbert Tuttle of Georgia, who were Republican 
appellate court judges appointed by a Republican President named 
Eisenhower at a time in the 1950s when the Democratic side of the 
Senate was using the filibuster to kill every important piece of civil 
rights legislation that was proposed in the Senate.
  Senator Eastland of Mississippi, Senator Stennis of Mississippi would 
never have approved Judge Wisdom's nomination or never have agreed with 
it if they had known that he and Judge Brown and Judge Tuttle would 
order the admission of James Meredith to the University of Mississippi.
  So at a time when these distinguished former Democratic Senators were 
filibustering every piece of civil rights legislation in the Senate, 
they didn't even consider filibustering an appellate judge. That way 
Judge Wisdom, Judge Brown, and Judge Tuttle all were confirmed, and all 
ordered James Meredith to be admitted.

[[Page S3446]]

  The relevance of the point of the Senator from Illinois is that 
today's Democrats, our friends on the other side, are going further 
than the Democratic filibusters against the civil rights bills in the 
1950s. They are denying the President the traditional right to nominate 
and appoint judges. I don't know what happened in the past, but I know 
what this one Senator will do in the future. If there is a Democratic 
President and I am in this body, and if he nominates a judge, I will 
never vote to deny a vote on that judge. If two or three more Senators 
on both sides will do the same thing, we could go back to having more 
respect for our judicial nominating process.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I yield 2 minutes to the distinguished 
Senator from Texas.
  Mrs. HUTCHISON. Mr. President, when the Founding Fathers wrote our 
Constitution, they said that judicial nominees would be confirmed by 
the advice and consent of the Senate. Clearly that has always been a 
majority vote. They specified in the Constitution when a larger vote 
was necessary, such as treaties, which require two-thirds. In fact, 
when the 25th amendment to the Constitution was approved by the Senate 
in 1965, the Vice President of the United States, if appointed, would 
be required to receive a majority vote of the House and Senate for 
confirmation. So to say that a judge should require a supermajority is 
to amend the Constitution without going through the process.
  That is what is happening today with Miguel Estrada. We are being 
required to muster 60 votes. We know we have 55 because we have had a 
vote now. We have had a cloture vote, and 55 people in the Senate 
believe Miguel Estrada should be confirmed for the Federal bench. And 
yet he is not confirmed because we have a higher threshold.
  We can't amend the Constitution through a filibuster. We cannot take 
away the power of the President's appointments that are given in the 
Constitution with a filibuster. This is different from any other 
filibuster. A filibuster on an issue is a legitimate tool. But a 
filibuster on a judicial nominee takes the balance of power and skews 
it in favor of the legislature over the President's right to have his 
people appointed to the Federal bench.
  The Senate needs to look carefully at the precedent being set. It is 
not right in a judicial nomination to hold a 60-vote threshold when the 
Constitution clearly says 51.
  The PRESIDING OFFICER. The Senator's 2 minutes have expired.
  Mr. HATCH. Mr. President, I yield 2 minutes to the distinguished 
Senator from Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. Mr. President, many years ago when the Senate was the 
Supreme Court's upstairs neighbor in this building, a significant event 
took place which provides us with a warning. A young Architect of the 
Capitol wanted to improve the sight lines in the Supreme Court Chamber 
on the first floor. Calculating that one of the support pillars was 
unnecessary, he brought in a crew to remove it. Halfway through the 
project, the ceiling fell in on the Supreme Court Chamber, which was 
also the floor of the Senate above, destroying both Chambers for a 
period of time. The lesson is that when you tamper with one branch of 
Government, it can affect others in a way you cannot anticipate, and 
any attempt to tamper with the delicate balance of power must be met 
with suspicion and repelled with conviction.
  We are tampering with that balance when we now, through filibuster, 
require a supermajority to confirm a Federal court of appeals judge.
  President Bush did not get all the popular votes or all the electoral 
votes. The election was decided in an unprecedented manner. But when he 
was sworn in, he received all the constitutional powers of the 
Presidency. His ability to be the Commander in Chief is not partial. 
His ability to sign or veto legislation is not compromised. His ability 
to submit judicial nominees to this body for an up-or-down vote, 
something every President has exercised for over 200 years, is in no 
way limited.
  Politics has its place, but not to the extent of stopping a vote on a 
judge at any and all costs. Let's discuss the merits of this nominee, 
his qualifications, his judicial temperament, but then let us follow 
the constitutional process we have followed for two centuries and vote 
yes or no on advice and consent for the President's nominee to the 
court of appeals.
  For my colleagues who have concerns about Mr. Estrada's answers, or 
if you didn't like the things he didn't answer, vote against him. But 
give him a vote. Let's follow the Constitution. Let's not change the 
constitutional standing.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I yield the remainder of my time to the 
distinguished Senator from South Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. GRAHAM of South Carolina. Mr. President, I am now going to read a 
June 18, 1998 statement of the Senator from Vermont involving Clarence 
Sundram and other judges who were subject to discussion on that day:

       If Senators are opposed to any judge, bring them up and 
     vote against them. But don't do an anonymous hold, which 
     diminishes the credibility and respect of the whole U.S. 
     Senate.
       I have had judicial nominations by both Democrats and 
     Republican Presidents that I intended to oppose. But I fought 
     like mad to make sure they at least got a chance to be on the 
     floor for a vote.
       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.
       If we don't like somebody the President nominates, vote him 
     or her down. But don't hold them to this anonymous 
     unconscionable limbo, because in doing that, the minority of 
     Senators really shame all Senators.

  My statement is simply this: We are bearing witness to a 
constitutional change. And having looked at the statement of Senator 
Leahy and his present conduct, we are bearing witness to a change on 
his part. He was right in 1998 to oppose the filibusters. He is wrong 
today to engage in one.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I thank the Senator for being the first 
person on his side of the aisle to actually read my whole statement. It 
is obvious I was speaking of a filibuster by an anonymous hold.
  I welcome the Vice President to the Senate today in your capacity as 
President of the Senate. It is not often that we see the Vice President 
in the chair. With the meeting of the United Nations Security Council 
today and the OPEC meeting and the unsettled and threatening 
circumstances in so many parts of the world, from the Middle East to 
the Korean peninsula to Iran and Iraq, the Vice President has chosen to 
be in the Senate this morning. I look forward to seeing him as well if 
the Senate ever turns its attention to the disastrous economic 
situation in this country and the loss of more than 2.5 million jobs in 
the last two years and more than 300,000 last month. Senator Daschle 
and the Democratic leadership have sought for weeks to proceed to 
debate on S. 414, the Economic Recovery Act of 2003, which includes the 
First Responders Partnership Grant Act, but the Senate Republican 
majority has blocked debate and action. This morning, instead of 
debating the international situation, the need to pass an economic 
stimulus package, the need for increased commitment to homeland 
defense, legislation to provide a real prescription drug benefit for 
seniors or the other matters so deeply concerning Americans, we are 
returning in some form to debate a nomination that we have debated for 
over a month and on which cloture was defeated last week.
  I note that what has impeded a Senate vote on the Estrada nomination 
has been the political game being played by the White House with this 
nomination as part of its effort to pack the Federal courts. The White 
House could have long ago solved this impasse by honoring the Senate's 
role in the appointment process through providing the Senate access to 
Mr. Estrada's legal work--just as past administrations have provided 
legal memos in connection with the nominations of Robert Bork, William 
Rehnquist, Brad Reynolds, Stephen Trott, and Ben Civiletti and this 
administration did with a

[[Page S3447]]

nominee to the EPA--and through instructing the nominee to answer 
questions about his views--consistent with last year's Supreme Court 
opinion by Justice Scalia--and to stop pretending that he has no views. 
The White House is using ideology to select its judicial nominees but 
trying to prevent the Senate from knowing the ideology of these 
nominees when it evaluates them.
  Instead, it appears that the Senate Republican majority, at the 
direction of the White House, chose to extend this debate because its 
political operatives hope to use it to falsely paint those who will not 
be steam rolled as somehow ``anti-Hispanic.'' The Republican's approach 
of crass partisanship regarding this nomination disregards the 
legitimate concerns raised by many Senators as well as by respected, 
Hispanic elected officials and Hispanic civil rights leaders. Moreover, 
the Republican approach and the President's approach have been to 
divide: to divide the Senate, to divide the American people and, on 
this particular nomination, to divide Hispanics against each other.
  That is wrong. It is wrong because the President campaigned on a 
platform of uniting not dividing. It is wrong because our country needs 
us to build consensus and work together, especially in these most 
challenging times. It is wrong because distinguished Latino leaders, 
who have spent their lives seeking justice and greater representation 
of Hispanic lawyers as judges, have been attacked by Republicans for 
showing courage and honesty in their judgment that this nomination is 
wanting. Joining the League of United Latin American Citizens, which 
previously wrote to the Senate disassociating itself with Republican 
attacks on Democratic Senators, yesterday the National Council of La 
Raza issued a statement condemning the treatment of the Congressional 
Hispanic Caucus by Republicans. The NCLR statement notes how ``deeply 
offended'' it is by Mr. Estrada's supporters calling Congressional 
Hispanic Caucus members ``tyrannical,'' ``racist,'' and ``anti-
Latino.''
  This Administration has also shown disrespect for the concerns of 
Senators in renominating both Judge Charles Pickering, despite his 
ethical lapses, and Justice Priscilla Owen, despite her record as a 
conservative ``activist'' judge, both of whom were rejected by the 
Senate Judiciary Committee after fair hearings and open debate last 
year. Sending these re-nominations to the Senate is unprecedented. No 
judicial nominee who has been voted down has ever been re-nominated to 
the same position by any President. The White House in conjunction with 
the new Republican majority in the Senate is choosing these battles 
over nominations purposefully. Dividing rather than uniting has become 
their modus operandi.
  Among the consequences of this partisan strategy is that for the last 
month, the Senate has been denied by the Republican leadership 
meaningful debate on the situation in Iraq. I commend Senator Byrd, 
Senator Kennedy and the other Senators on both sides of the aisle who 
have nonetheless sought to have the Senate fulfill its constitutional 
role as a forum for debate and careful consideration of our Nation's 
foreign policy. The decision by the Republican Senate majority to focus 
on controversial nominations rather than the international situation or 
the economy says much about their mistaken priorities. The Republican 
majority sets the agenda and they schedule the debate, just as they 
have here this morning.
  Many Democratic Senators have already spoken to the Constitution and 
the Senate's proper role in the confirmation process. I recall, in 
particular, statements by Senators Daschle, Reid, Bingaman, Boxer, 
Clinton, Corzine, Dodd, Dorgan, Durbin, Edwards, Feingold, Feinstein, 
Harkin, Johnson, Kennedy, Kohl, Lautenberg, Levin, Mikulski, Sarbanes 
and Schumer, among many others.
  What is disconcerting about the recent debate is what appears to be 
the Republican majority's willingness to sacrifice the constitutional 
authority of the Senate as a check on the power of the President in the 
area of lifetime appointments to our Federal courts. I fear, Mr. 
President, that the Republican majority's efforts to re-write Senate 
history in order to rubber-stamp this White House's Federal judicial 
nominees will cause long-term damage to this institution, to our 
courts, to our constitutional form of government, to the rights and 
protections of the American people and to generations to come. I have 
served in the Senate for 29 years, and until recently I have never seen 
such stridency on the part of an executive administration or such 
willingness on the part of a Senate majority to cast aside tradition 
and upset the balances embedded in our Constitution so as to expand 
presidential power.

  In the time set aside by the Republican majority for this debate 
today, I am glad to have an opportunity to shed light on the fiction 
that cloture votes, extended debate, and discussion of the views of 
nominees are anything new or unprecedented. What I do find 
unprecedented is the depths that the Republican majority and this White 
House are willing to go to override the constitutional division of 
power over appointments and longstanding Senate practices and history. 
It strikes me that some Republicans seem to think that they are writing 
on blank slate and that they have been given a blank check to pack the 
courts. They show a disturbing penchant for reading our Constitution in 
isolation from its history and the practices that have endured for two 
centuries to suit their purposes of the moment.
  A few years ago, when Republicans were in the Senate minority and a 
democratically elected Democratic President was in the White House, 
columnist George Will, for example, had no complaint about a super-
majority or 60 votes being needed to get an up or down vote on 
legislation or nominations proposed by the President. In fact, 
reflecting Republican sentiment at the time, what he said in his 
defense of the Republican filibuster of President Clinton's proposals, 
was the following:

       The Senate is not obligated to jettison one of its defining 
     characteristics, permissiveness, regarding extended debate, 
     in order to pander to the perception that the presidency is 
     the sun about which all else in American government--even 
     American life--orbits. (Washington Post, April 25, 1993.)

  It apparently did not trouble him or other Republicans when they were 
in the Senate minority that the Constitution expressly requires more 
than a simple majority for only a few matters. In fact, Mr. Will wrote:

       Democracy is trivialized when reduced to simple 
     majoritarianism--government by adding machine. A mature, 
     nuanced democracy makes provision for respecting not mere 
     numbers but also intensity of feeling.

  Of course, that was in 1993 and President Clinton and a Democratic 
Senate majority were being contested by Republican filibusters. What is 
different a mere 10 years later? Just that the parties have switched 
roles and this year Democrats are in the Senate minority and a 
Republican occupies the White House. I ask unanimous consent that a 
recent article by Edward Lazarus that critiques Mr. Will's new position 
be included in the Record.
  As George Will noted in 1993, one of the key attributes of the Senate 
is the venerable tradition of unlimited debate. In fact, not until 1917 
was there even a provision in the Senate rules to allow for cloture, a 
procedure by which the Senate acts to cut off debate. The Senate first 
adopted the cloture rule in 1917. At that time, cloture was limited to 
and could only be sought on legislative matters. The cloture rule was 
extended in 1949 to nominations by amending it to include measures and 
matters, which included judicial nominations. Thus, prior to 1949, 
disputes over nominations--to the 100 seats in the Federal judiciary--
were handled and resolved by Senators behind closed doors and many 
judicial nominations were defeated in the Senate by inaction or the 
threat of a filibuster. Republicans resurrected those tactics in the 
years 1995-2001 to defeat more than 50 of President Clinton's judicial 
nominees.
  In essence, until they had a Republican President, Republicans 
interpreted the Advice and Consent Clause of the Constitution to allow 
a handful of anonymous Republican Senators to prevent an ``up or down'' 
vote by the full Senate on scores of qualified judicial nominees. Now, 
when Democratic Senators have expressed genuine concerns about the lack 
of information regarding Mr. Estrada and have made a well-founded 
request to see his

[[Page S3448]]

writings, Republicans claim it is wrong and unconstitutional for 
Senators to act in accordance with Senate rules and tradition and their 
longstanding role as a check and balance on the President's appointment 
power.
  It cannot be that only the rules Republicans like at the times that 
they like them are the rules that are followed in the Senate, but more 
and more that seems to be what the Republican majority is demanding. 
They should not pretend the rules no longer apply simply because the 
Republican majority finds them inconvenient, but that is happening more 
and more in the Senate. Regrettably, it has occurred recently in 
connection with judicial nominees before the Judiciary Committee, when 
the Republicans insisted on breaching Rule IV, a longstanding rule of 
our Committee that allows for extended debate, as well.

  What is at stake in judicial nominations are lifetime appointment for 
judges who will have the power to change how the Constitution is 
interpreted and whether civil rights, environmental protections, 
privacy and our fundamental freedoms will be upheld. With respect to 
the Estrada nomination, what is at stake is a seat on the second 
highest court in the country and the swing vote on that important 
court.
  Most of the decisions issued by the D.C. Circuit in the nearly 1,400 
appeals filed per year are final because the Supreme Court now takes 
fewer than 100 cases from all over the country each year. This court 
has special jurisdiction over cases involving the rights of working 
Americans as well as the right to a cleaner environment. This is a 
court where Federal regulations will be upheld or overturned, where 
privacy rights will either be retained or lost, and where thousands of 
individuals will have their final appeal in matters that affect their 
financial future, their health, their lives and their liberty.
  This is a court that has vacant seats due to anonymous Republicans 
blocking the last two nominees to this court by a Democratic President. 
Those nominees had outstanding legal credentials and qualifications but 
during President Clinton's last term, the Republican-controlled Senate 
would not proceed to an up or down vote on either of them.
  The word ``filibuster'' derives from the Dutch word for piracy, or 
taking property that does not belong to you. Under that ordinary 
definition, it would be accurate to say that at least two of the 
vacancies on the D.C. Circuit, for which Republicans blocked qualified 
nominees, were filibustered, as well. Republicans, who exploited every 
procedural rule and practice to block scores of Clinton nominees 
anonymously from ever receiving an up or down vote, now want to change 
the rules midstream, to their partisan advantage, again. The whole 
reason this President has so many circuit vacancies to fill is because 
this was the booty of their piracy, their filibustering of judicial 
seats that arose during the Clinton Administration while they prevented 
votes on that President's qualified nominees.
  For example, a Mexican-American circuit court nominee of President 
Clinton, Judge Richard Paez, was forced to wait more than 1,500 days to 
be confirmed, and even after the Republican filibuster was broken by a 
cloture vote to end debate, many Republicans joined an unsuccessful 
motion to indefinitely postpone his nomination. None of the more than 
30 Republicans who voted against cloture in connection with that 
nomination or who voted in favor of Senator Sessions' unprecedented 
motion ``to indefinitely postpone'' the vote on Judge Paez's 
nomination, which had been pending for more than 1,500 days, should be 
heard to complain if Democratic Senators seek more information about 
nominations before proceeding to a vote for a lifetime appointment.
  I also recall that during the closing moments of that debate Senator 
Sessions objected that the Vice President of the United States was 
presiding over the Senate in his capacity as the President of the 
Senate. The Senator from Alabama objected that he should not be allowed 
to preside. I have not raised that objection to the Vice President 
presiding here today but have, instead, welcomed the Vice President. 
This is further demonstration that Democrats have been more moderate 
and much more cooperative with this Administration than Republicans 
were with the prior Democratic Administration.
  I will include in my full statement for the Record the words of the 
Republican Senators who filibustered President Clinton nominees. 
Senator Bob Smith, a straight talker from New Hampshire, outlined the 
Senate's history of filibusters of judicial nominees and said:

       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--much like the bogus 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 wrong. They should come clean and tell the truth 
to the American people about their past practices on nominations. They 
cannot change the plain facts to fit their current argument and 
purposes.
  Senator Hatch candidly admitted after cloture was invoked on the Paez 
nomination and Senator Sessions made his unprecedented motion to 
indefinitely postpone any vote on that judicial nomination:

       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.

  Republicans should not have come to the floor and told the American 
people over the last month that Democratic Senators had done something 
unprecedented in opposing the Estrada nomination. They themselves did 
it quite recently and have done it repeatedly. Let us be honest about 
this and straight with the American people. Given the time allotted for 
today's debate, I cannot discuss them all but I will include in the 
Record some of the other examples of filibusters of presidential 
nominations from the nomination of Justice Abe Fortas to be Chief 
Justice of the United States Supreme Court through the nominations of 
Stephen G. Breyer, now Justice Breyer, to the First Circuit; Rosemary 
Barkett to the 11th Circuit; H. Lee Sarokin to the 3rd Circuit; and 
Marsha Berzon and Richard Paez to the 9th Circuit.
  Even more frequent during the years from 1995 through 2001, when 
Republicans controlled the Senate majority, were Republican efforts to 
defeat President Clinton's judicial nominees through inaction and 
anonymous holds for which no Republican Senator could be held 
accountable. Republicans held up almost 80 judicial nominees who were 
not acted upon during the Congress in which President Clinton first 
nominated them and eventually defeated more than 50 judicial nominees 
without a recorded Senate vote of any kind, just by refusing to proceed 
with hearings and Committee votes.

  Beyond the question of judicial nominees, Republicans also 
filibustered the nomination of Dr. Henry Foster to become Surgeon 
General of the United States. This was an executive branch nominee that 
Republicans filibustered successfully in spite of two cloture votes in 
1995. Dr. David Satcher's subsequent nominaton also required cloture 
but he was successfully confirmed. Other executive branch nominees who 
were filibustered by Republicans included Walter Dellinger, whose name 
has been invoked with approval by Republicans during the debate on the 
Estrada nomination. Mr. Dellinger was nominated to be Assistant 
Attorney General and two cloture petitions were required to be filed 
and both were rejected by Republicans. In this case we were able 
finally to obtain a confirmation vote after significant efforts and Mr. 
Dellinger was confirmed to that position with 34 votes against him. He 
was never confirmed to his position as Solicitor General because 
Republicans had made clear their opposition to him.
  In addition, in 1993, Republicans objected to State Department 
nominations and even the nomination of Janet Napolitano to serve as the 
U.S. Attorney for Arizona, resulting in cloture petitions. In 1994, Sam 
Brown was nominated to be an Ambassador. After three cloture petitions 
were filed, his nomination was returned to President

[[Page S3449]]

Clinton without Senate action. Also in 1994, Derek Shearer was 
nominated to be an Ambassador and it took two cloture petitions to get 
to a vote before he was confirmed. In 1994, Ricki Tigert was nominated 
to chair the FDIC and it took two cloture petitions to get to a vote 
and confirmation of that executive nomination.
  So when Republican Senators now talk about the Senate Executive 
Calendar and presidential nominees, they must be reminded that they 
recently filibustered many, many qualified nominees. [chart] In 
addition, some of us remember Republican unwillingness to allow a 
Senate vote on the nomination of Bill Lann Lee to serve as the 
Assistant Attorney General for the Civil Rights Division at the 
Department of Justice. He told the Judiciary Committee that he would 
follow the law and enforce the law. He was the choice of the President 
to serve in that President's administration, but Republicans would not 
accord him an up or down vote before the United States Senate.
  Now let me turn to a most troubling development that demonstrates how 
Republicans are violating longstanding Senate rules to suit themselves. 
Two weeks ago in a meeting of the Senate Judiciary Committee, the 
Chairman unilaterally declared the termination of debate on two 
controversial circuit court nominations. Senator Daschle termed it 
deeply troubling and a ``reckless exercise of raw power by a 
Chairman,'' and he is right. The Democratic Leader observed that the 
work of this Senate has for over 200 years operated on the principle of 
civil debate, which includes protection of the minority. When a 
Chairman can on his own whim choose to ignore our rules that protect 
the minority, not only is that protection lost, but so is an 
irreplaceable piece of our integrity and credibility.
  The Democratic Leader noted that faithful adherence to rule is 
especially important for the Senate and for its Judiciary Committee. He 
noted ``how ironic that in the Judiciary Committee, a Committee which 
passes judgment on those who will interpret the rule of law,'' that it 
acted in conscious disregard of the rules that were established to 
apply to its proceedings. If this is what those who pontificate about 
``strict construction'' mean by that term, it translates to winning by 
any means necessary. If this is how the judges of the judicial nominees 
act, how can we expect the nominees they support as ``strict 
constructionists'' to behave any better? Given this action in 
disrespect of the rights of the minority, how can we expect the 
Judiciary Committee to place individuals on the bench that respect the 
rule of law? In my 29 years in the Senate and in my reading of Senate 
history, I cannot think of so clear a violation of Senators' rights.
  I am gravely concerned about this abuse of power and breach of our 
Committee rules. When the Judiciary Committee cannot be counted upon to 
follow its own rules for handling important lifetime appointments to 
the federal judiciary, everyone should be concerned. In violation of 
the rules that have governed that Committee's proceedings since 1979, 
the Chairman chose to ignore our longstanding Committee Rules and 
short-circuit Committee consideration of the nominations of John 
Roberts and Deborah Cook. Senator Daschle spoke to that matter that 
day. Senator Feinstein, Senator Schumer and Senator Durbin have also 
spoken to the Senate about this breach of our rules as well as a number 
of other liberties that Republicans have been taking with the rules.
  The protection for the minority has been maintained by the Judiciary 
Committee for the last 24 years under five different chairmen--Chairman 
Kennedy, Chairman Thurmond, Chairman Biden, under Chairman Hatch 
previously and during my tenure as chairman.
  Rule IV of the Judiciary Committee provides the minority with a right 
not to have debate terminated and not to be forced to a vote without at 
least one member of the minority agreeing. That rule and practice had 
until last month always been observed by the Committee, even as we have 
dealt with the most contentious social issues and nominations that come 
before the Senate.
  Until last month, Democratic and Republican Chairmen had always acted 
to protect the rights of the Senate minority. The rule has been the 
Committee's equivalent to the Senate's cloture rule. It had been 
honored by all five Democratic and Republican chairmen, including 
Senator Hatch until last month.
  It was rarely utilized but Rule IV set the ground rules and the 
backdrop against which rank partisanship was required to give way, in 
the best tradition of the Senate, to a measure of bipartisanship in 
order to make progress. That is the other important function of the 
rule.
  Besides protecting minority rights, it enforced a certain level of 
cooperation between the majority and minority in order to get anything 
accomplished. That, too, has been lost as the level of partisanship on 
the Judiciary Committee and within the Senate reached a new low when 
Republicans chose to override our governing rules of conduct and 
proceed as if the Senate Judiciary Committee were a minor committee of 
the House of Representatives.
  In fact, the only occasion I recall when Senator Hatch was previously 
faced with implementing Committee Rule IV, he did so. In 1997, 
Democrats on the Committee were seeking a Senate floor vote on 
President Clinton's nomination of Bill Lann Lee to be the Assistant 
Attorney General for Civil Rights at the Department of Justice. Then, 
Senator Hatch acknowledged: ``Rule IV of the Judiciary Committee rules 
effectively establishes a committee filibuster right. . . .'' In 1997, 
Chairman Hatch acknowledged: ``Absent the consent of a minority member 
of the Committee, a matter may not be brought to a vote.'' In that 
case, in 1997, Chairman Hatch followed the rules of the Committee.
  Last month the bipartisan tradition and respect for the rights of the 
minority ended when Chairman Hatch decided to override the rule rather 
than follow it. He did so expressly and intentionally, declaring: 
``[Y]ou have no right to continue a filibuster in this committee.'' He 
decided, unilaterally, to declare the debate over even though all 
members of the minority were prepared to continue the debate and it 
was, in fact, terminated prematurely. Senator Hatch completely reversed 
his own position from the Bill Lann Lee nomination and took a step 
unprecedented in the history of the Committee.
  In his recent letter to Senator Daschle, Senator Hatch now contends 
that he ``does not believe the Committee filibuster should be allowed 
and [he] thinks it is a good and healthy thing for the Committee to 
have a rule that forces a vote.'' I ask that the exchange of letters 
between Senator Hatch and the Democratic Leader be included in the 
Record.
  Our Committee rule, while providing a mechanism for terminating 
debate and reaching a vote on a matter, does so while providing a 
minimum of protection for the minority. It is even that minimum 
protection that Chairman Hatch will no longer countenance. It is 
Senator Hatch who has ``turned Rule 4 on its head'' last month, after 
24 years of consistent interpretation and implementation by five 
chairmen. Never, before his letter to Senator Daschle, has anyone since 
the adoption of the rule in 1979 ever suggested that its purpose was to 
be narrowed and redirected to thwart ``an obstreperous Chairman who 
refuses to allow a vote on an item on the Agenda.'' After all, as 
Senator Hatch recognizes in his letter, it is the chairman's 
prerogative to set the agenda for the mark-up.
  This revisionist reading of the rule is not justified by its adoption 
or its prior use and appears to be nothing other than an after the fact 
attempt to justify the obvious breaches of the longstanding Committee 
rule and practice that occurred last month. It was not even articulated 
contemporaneously at the business meeting.
  The Committee and the Senate have crossed a threshold of partisan 
overreaching that should never have been crossed. I urge the Republican 
leadership to recommit the nominations of Deborah Cook and John Roberts 
to the Judiciary Committee so that they can be considered in accordance 
with the Committee's rules. The action taken last month should be 
vitiated and order restored to the Senate and to the Judiciary 
Committee. I urge the Judiciary Committee and the Senate to rethink the 
misstep taken last month and urge

[[Page S3450]]

the Chairman and the Committee to disavow the misinterpretation and 
violations of Rule IV that occurred. Order and comity need to be 
restored to the Judiciary Committee. An essential step in that process 
is the restoration of minority rights under Rule IV and recognition of 
minority rights thereunder.
  During the last four years of the Clinton Administration, his entire 
second term in office after being reelected by the American people, the 
Judiciary Committee refused to hold hearings and Committee votes on his 
qualified nominees to the D.C. Circuit and the Sixth Circuit. Last 
month, in sharp contrast, this Committee was required to proceed on two 
controversial nominations to those circuit courts in contravention of 
the rules and practices of the Committee. This can only be seen as part 
of a concerted and partisan effort to pack the courts and tilt them 
sharply out of balance.
  In circumstances such as these, when the rights of the minority are 
being violated and Senate rules and longstanding practices are 
breached, the minority is left with very few options and very little 
choice in how it must proceed. This President has been the most 
aggressive and unilateral I have seen in my 29 years in the Senate in 
his nominations. The Republican majority is now choosing to abet his 
efforts at the expense of the Senate minority's rights and the 
constitutional role of the Senate. That is all most regrettable.
  I yield back my time.
  Mr. KYL. Mr. President, in order to understand the constitutional 
problem we face with the filibuster of Miguel Estrada, it is important 
for the Senate and the public to focus on what is really going on here.
  This filibuster is not a dispute about Mr. Estrada's answers to 
questions. If it were about unanswered questions then more than two 
Democrats would have taken up the White House's offer to pose new 
written questions to Mr. Estrada or to meet with him privately and ask 
them in person. But they did not, and it is now clear that the repeated 
refusal even to ask questions has exposed the emptiness of that 
argument. I hope we hear no more of it.
  This filibuster also is not a dispute about confidential documents 
from the Solicitor General's office. Our filibustering colleagues must 
know that for the administration to comply with this demand is to 
undermine the effectiveness of the Department of Justice and its 
ability to defend the American people's interests in court. They must 
know that the President will not jeopardize the people's interests and 
that these confidential documents cannot be disclosed. So this document 
request is an unserious demand made precisely because the 
administration will not comply--just as four former Democrat Solicitors 
General have advised. No, this dispute is not about confidential memos.
  The fact is that there is plenty of information available--more than 
enough information for a thoughtful Senator to make a decision whether 
to vote up or down. But don't take my word for it. Take Minority Leader 
Daschle's word for it. Last week the distinguished minority leader said 
that Mr. Estrada is too conservative and that he opposes his 
confirmation. How could the minority leader possibly have reached that 
conclusion if the record is so bare? How could he have reached any 
conclusion? The answer is obvious: Mr. Estrada's record is more than 
ample for Senators to explore. Just as over 51 Senators have reviewed 
the record to their satisfaction and concluded that Mr. Estrada is 
qualified and should be confirmed, so must Senator Daschle have 
reviewed the record and concluded that he should not be confirmed. He 
did not need more information.
  So, why are we still here? Why is does this debate continue? Let us 
put aside these arguments about supposedly unanswered questions and 
disclosure of confidential memoranda, and let's focus on what this is 
really about: power. An unprecedented power-play by a partisan minority 
to re-define our constitutional ``advice and consent'' obligation at 
least for circuit court judicial nominees. This filibuster is about 
changing the rules of the game forever.
  For 214 years, the Senate has interpreted ``advice and consent'' to 
require majority approval for any judicial nominee who reaches the 
Senate floor. But if filibustering Democrats prevail here, that rule 
will forever be changed. No longer will the ``advice and consent'' 
clause mean majority rule. Instead, it will mean 60 votes.
  Now, my filibustering colleagues may say, ``well, no--we're not 
trying to change the standard; we just want more information.'' The 
time for dodging the essence of this constitutional moment has passed. 
There can no longer be any question that the true goal of this 
filibuster is to defeat Mr. Estrada's nomination by preventing a vote, 
to change the standard from a simple majority to a 60-vote requirement.
  A month ago the Senior Senator from Pennsylvania called this power-
play a ``constitutional revolution,'' and it saddens me to say that I 
must agree. A key part of our Constitution is its ordering of power 
between the different branches and parts of Government. Our 
Constitution is written, but we rely upon more than just the written 
word to understand its meaning. We rely upon the considered opinions of 
those who are charged with its interpretation. In most cases, that is 
the Supreme Court and the inferior courts that Congress establishes. 
But the Supreme Court is not the only body charged with interpreting 
the Constitution, because some areas of the Constitution are not 
subject to conventional judicial review. One of those areas is the 
``advice and consent'' obligation of Congress. To understand that 
clause, the Senate must do the interpreting. The Senate has long had 
the constitutional obligation to decide what those words mean.
  Throughout our history the Senate has had one consistent answer to 
the question of what ``advice and consent'' meant for lower court 
judicial nominees. That settled, bipartisan constitutional 
understanding of ``advice and consent'' was that only a majority vote 
is required. Now, a determined minority is determined to change the 
meaning of those words. And that is indeed a ``constitutional 
revolution,'' just as Senator Specter has said.
  Let's turn to the Constitution. I know some of my Republican 
colleagues have argued that the Constitution mandates ``advice and 
consent'' by a simple majority vote. They may be right. As has been 
said, the Constitution contains seven provisions calling for a 
supermajority from the legislature: overriding a veto, convicting on 
impeachment, expelling members of the House or Senate, ratifying 
treaties, proposing constitutional amendments, establishing 
Presidential incapacity, and during the Civil War era, removing the 
disabilities of rebellious officeholders. But the Constitution is 
silent as to ``advice and consent.'' The U.S. Supreme Court has 
observed that a simple majority is the background rule in legislatures. 
It is therefore understandable that many have concluded that ``advice 
and consent'' mandates a simple majority for confirmation. Certainly as 
a democratically-elected body we should always have a strong 
presumption in favor of rule by simple majority. Only when an 
alternative supermajority rule is clear should we depart from that 
democratic tradition.
  I also appreciate the argument that a filibuster in this context is 
different than a filibuster on legislation because the appointment and 
confirmation of judges is a shared responsibility we have with the 
President. Respect and comity demand that we give proper deference to 
presidential prerogatives. I certainly agree that filibustering a 
presidential judicial nominee endangers the traditional respect between 
the branches of Government, and that as Senators we have a 
responsibility to protect the relationship between the branches both 
for present and future Senators and Presidents.
  So it might be the case that the constitutional text and structure 
mandate a simple majority, but I must say that I am not 100 percent 
convinced. It is possible that the Constitution's silence on this 
question was exactly that: silence. And it is possible that by 
remaining silent, the Founding Fathers intended to leave the question 
open for its own interpretation. I think we should allow for that 
possibility. But my skepticism does not change my conclusion, which is 
that we should apply a simple-majority requirement for confirmations.
  Why do I reach this conclusion? Because the weight and precedent of 
the

[[Page S3451]]

Senate's longstanding constitutional interpretation of its own ``advice 
and consent'' obligation compels it. Thus, even if the question was 
open in 1789, we have 214 years of experience and tradition to tell us 
what the right interpretation was. And the right interpretation is that 
the same interpretation that bipartisan majorities of the Senate have 
forever believed--that only a simple majority is required to confirm a 
lower court nominee.
  The most obvious evidence of this tradition is the history itself. No 
lower court nominee has ever been rejected due to a heightened, 60-vote 
requirement. To be sure, some Senators have contemplated this change 
before. Over 30 Democrats tried to filibuster J. Harvie Wilkinson in 
1984, Sidney Fitzwater in 1986, and Edward Carnes in 1992. A much 
smaller group of my fellow Republicans tried to filibuster Marsha 
Berzon and Richard Paez in 2000. So the issue has been raised before, 
although never in such a dramatic and pointed fashion as it is today.
  Let me address for a moment the unique case of Abe Fortas. In 1968, 
Justice Abe Fortas was nominated for the Chief Justice position. 
Opposition was roughly divided between the political parties, based 
significantly upon alleged improper financial dealings and other 
ethical issues that eventually drove him to resign under threat of 
impeachment. Unlike the case at hand, there is no record in that case 
of a Senate majority willing to confirm Mr. Fortas. The single cloture 
vote failed 45-43. So it cannot be said that the will of the majority 
was thwarted, because no majority appears to have existed to confirm 
that nomination. The President withdrew the nomination before we ever 
found out the answer to that question. So unlike in the present case, 
the majority was not thwarted by filibuster.
  But returning to the more recent history, it is important to point 
out that in every one of those cases, however, cooler heads prevailed. 
The Senate stepped back from that precipice and said ``No, this we will 
not do. We will not filibuster judicial nominees.'' Senators such as 
the ranking member of the Judiciary Committee, Senator Leahy, were so 
opposed in principle to such a constitutional change that he declared 
that he would ``object and fight against any filibuster on a judge, 
whether it is somebody I opposed or supported.'' The Washington Post 
reports that in 1991 during the Clarence Thomas nomination battle, 
Senator Leahy declared himself ``totally opposed'' to a filibuster, 
even as abortion activists urged such a step. And in 2000 a clear 
majority of Republicans joined with Democrats and invoked cloture on 
the Berzon and Paez nominations.
  This is our tradition. We do not block judicial nominees by 
filibuster. This isn't a Republican constitutional interpretation. It 
isn't a Democrat constitutional interpretation. It is the Senate's 
interpretation. And in the Senate, where so much is based upon 
tradition, sometimes tradition is all we have to enforce constitutional 
norms. We rely upon our colleagues to say, as Senator Leahy said, that 
they will fight on principle against the abuse of process regardless of 
whose particular ox is being gored. That is why I voted for cloture on 
the Paez nomination, and against confirmation. I refused to upset 214 
years of settled constitutional interpretation and change our 
constitutional norms forever. I was unwilling to risk the damage to the 
Senate and to the nominations process that would result.
  Let there be no mistake about it: If a minority of Senators are able 
to force a change to our 214-year-old constitutional tradition, we do 
great damage to this body and to the process by which judges are 
nominated and confirmed. And those changes will be permanent.
  Now, I am a conservative, and I naturally resist unnecessary 
tinkering with our constitutional system. But I also understand that 
constitutional changes do happen, and that they are not always bad. I 
am an original sponsor of a constitutional amendment, S. 1, in this 
very Congress. But we have an amendment process for changes to the 
Constitution. We require 2/3 of each House of Congress, and then \3/4\ 
of the States. We have a process, and our constitutional stability 
depends on respecting that process.
  This constitutional issue is unique, because the issue is probably 
not justiciable. I do know that a few professors have concluded that a 
judicial nominee in Mr. Estrada's shoes may have standing to challenge 
a filibuster, but the last thing we want is for a court to get 
involved. This is a Senate matter. And as a Senate matter, all we have 
is our wisdom and respect for a 214-year tradition to guide us. Can 
traditions change? Of course they can. We should be very wary of 
upsetting settled traditions because for the most part, traditions 
exist for a reason, but we should always be open to improvement.
  However, if we are going to upset 214 years of constitutional 
interpretation and institutional tradition, shouldn't we require 
something more than the intransigence of 44 Senators who won't even 
admit that they are trying to change the constitutional rule? The 
Founding Fathers recognized that when we change constitutional rules, 
we should do so based on supermajority votes, not minorities' refusals 
to votes. As I said a moment ago, when we amend the Constitution, it 
takes two-thirds of both Houses of Congress. Then if it passes, it 
cannot be enacted until three-quarters of the States support it. That 
is not minority rule, but supermajority rule. I might add that even 
when the Supreme Court changes its constitutional interpretations 
through its decisions, they have to act by majority vote or new law is 
not created. Without a majority, there is no change to the 
constitutional rule.
  What is happening here is dramatically different. Here, a minority--
not a simple majority, and certainly not a supermajority--seeks to 
change a settled constitutional rule and overturn 214 years of the 
Senate's constitutional interpretation. I submit that this fundamental 
change to our constitutional understanding of the ``advice and 
consent'' power must not be allowed to take effect. And it certainly 
should not be undertaken by a minority of Senators for short-term gain. 
To do so jeopardizes not only the Senate's relationship with the 
President, who has the constitutional obligation to make judicial 
nominations, and the Judiciary, which is understaffed and in desperate 
need for a fair process consistent with our longstanding constitutional 
norms. It jeopardizes the respect that future Senates will give to our 
traditional constitutional norms. And it calls into question whether 
the Senate can be trusted with its stewardship over those norms in the 
future. Will the Supreme Court ultimately become involved in Senate 
affairs? I certainly hope not, but I have less confidence today than I 
did a month ago that no court would involve itself in these matters. 
And that is a day I do not want to see.
  So, as I said, this is not about needing more information. The 
distinguished minority leader made that clear last week. Senator 
Daschle has enough information. He opposes the nominee. This is about 
power--the power of the minority to change 214 years of constitutional 
norms and interpretation. I urge my filibustering colleagues on the 
other side of the aisle to step back, look at the history, and ask 
themselves whether they truly believe that it should take 60 votes to 
confirm a judge. And, equally important, whether they believe that a 
minority of Senators should be able to wash away the Senate's 
longstanding traditional understanding of its advice and consent 
obligations. I submit that our obligation to the Constitution and to 
the institution of the Senate demands more than what we are seeing 
today.
  Mr. HATCH. Mr. President, I rise in response to my colleagues' 
assertions about the Senate's role in the judicial confirmation 
process. I am compelled by their statement to provide a more complete 
record on the origins of the Senate's constitutional obligation to 
provide advice and consent on judicial nominees.
  The constitutional duty of the President to nominate and appoint, and 
the intervening duty of the Senate to provide advice and consent, is 
set forth in Article II, Section 2:

       The President . . . shall nominate, 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, whose Appointments are not herein otherwise provided 
     for, and which shall be established by Law.


[[Page S3452]]


  Some of my Democratic colleagues have argued that the record of the 
debate of the Constitutional Convention leads to the conclusion that 
the Senate plays the central role in this process. This assertion is 
based on the Convention's initial--and, I should add, temporary--
adoption of proposals that a national judiciary be established to be 
chosen by the national legislature, and its concurrent rejection of 
proposals that the President be given the sole power to appoint judges. 
My colleagues suggest that only in the final days of the Convention was 
the President given a role--the power to nominate judges--and that 
somehow this time line of events signals a more central role for the 
Senate than the actual text of the Constitution suggests.
  It is first important to note that, contrary to the impression that 
my colleague from Massachusetts may have left, the record of the 
Convention indicates that the discussion of the establishment of the 
judiciary was limited to only a few actual days. During that time there 
were, indisputably, competing views as to how the judiciary should be 
established--by the Executive or by the legislature. But a careful 
review of the notes of the Constitutional Convention leads to the 
conclusion that the Framers bestowed on the President the paramount 
role in appointing judges.
  There was significant opposition to the proposals to place the 
appointment power exclusively in the Senate. For example, according to 
the notes from the Convention for July 18, 1787, a delegate from 
Massachusetts, Nathaniel Ghorum, suggested ``that the Judges be 
appointed by the Executive with the advice & consent of the 2d. branch, 
in the mode prescribed by the constitution of Masts. This mode had been 
long practiced in that country, & was found to answer perfectly well.'' 
James Wilson, one of the leading figures at the Convention, made a 
motion ``that the Judges be appointed by the Executive.'' Mr. Wilson 
later wrote, ``Instead of controlling the President still farther with 
regard to appointments, I am for leaving the appointment of all the 
principal officers under the Federal Government   solely   to   the   
Presi-
dent. . . .''
  Thus the debate progressed over exclusive appointment by the 
legislature versus exclusive appointment by the President. James 
Madison sought a compromise when he suggested the power of appointment 
be given to the President with the concurrence of 1/3 of the Senate. 
This is an interesting suggestion, given that we now face a virtual 
veto by a minority. Madison's proposed compromise has been turned on 
its head. Rather than a supermajority to disapprove the President's 
nominee, this Senate is demanding a supermajority for approval.
  Some of my colleagues on the other side of the aisle seem to want to 
continue the debate of the Constitutional Convention. That debate is 
over. The resolution of the respective roles of the President and the 
Senate are found in the language of the Constitution, which in Article 
II vests the nomination and appointment powers in the President.
  As Alexander Hamilton explained in The Federalist No. 66:
  It will be the Office of the President to nominate, and, with the 
advice and consent of the Senate, to appoint. There will, of course, be 
no exertion of choice on the part of the Senate. They may defeat one 
choice of the Executive, and oblige him to make another; but they 
cannot themselves choose they can only ratify or reject the choice he--
may have made.
  The distinguished Assistant Democratic Leader referred to The 
Federalist No. 76, wherein Alexander Hamilton discussed the appointing 
power of the Executive. Hamilton stated ``To what purpose then require 
the co-operation of the Senate? I answer, that the necessity of their 
concurrence would have a powerful, though, in general, a silent 
operation. It would be an excellent check upon a spirit of favoritism 
in the President, and would tend greatly to prevent the appointment of 
unfit characters from State prejudice, from family connection, from 
personal attachment, or from a view to popularity. In addition to this, 
it would be an efficacious source of stability in the administration.'' 
This passage indicates the Founders' understanding of a limited role 
for the legislature in the confirmation process. That role is for the 
Senate to act as a check on improper appointments resulting from 
favoritism or unfit character by the President.
  The treatment of Mr. Estrada by the Senate is far different from the 
advice and consent role contemplated by the Framers. A vocal minority 
of Senators is blocking the majority, which stands ready to vote on his 
nomination. This is tyranny of the minority and it is unfair to all--to 
the Senate, to the President, to the nominee, and to the Judiciary.
  Mr. President, I call upon my colleagues who are denying an up or 
down vote on the nomination of Mr. Estrada to let the Senate work its 
will. The President has done his duty in nominating Mr. Estrada. It is 
now our duty to consent or to withhold consent by an up or down vote. 
Let's end the debate on this nomination and proceed to that vote.
  Thank you, Mr. President. I yield the floor.
  Mrs. FEINSTEIN. Mr. President, I rise to speak about charges that the 
ongoing filibuster against Miguel Estrada is somehow unconstitutional, 
as some have claimed.
  I take this job very seriously, and it is not often that I support 
preventing an up or down vote on any issue. In fact, this is the only 
time I have ever supported a filibuster against a judicial nominee, and 
I do so for very specific reasons, as do so many of my Democratic 
colleagues.
  Contrary to the charges we have been hearing over the last few days, 
I believe this filibuster is precisely what the Founders of this Nation 
had in mind when they created a three-branched system of government 
with checks, balances, advice and consent.
  This filibuster is not about preventing a conservative nominee from 
getting onto the court. Rather, this filibuster is about a failure of 
this administration to adequately seek the advice and participation of 
the U.S. Senate in the judicial nominations process, particularly with 
regard to this nominee.
  I have spoken several times about Mr. Estrada specifically, and each 
time I have been clear, as have my colleagues--this is a nominee about 
whom we know very, very little, and he and this administration have 
simply not done enough to give us the kind of information we need to 
properly perform our constitutional duty of advice and consent. Because 
we are prevented from performing this constitutional duty, we have been 
forced to resort to a procedure, well within the Senate rules and by no 
means unprecedented, to enforce those rights.
  The filibuster is one of the key devices throughout our nation's 
history that has protected the right of the minority party, or even of 
one Senator. Without a filibuster right on nominations, there might 
never be advice and consent at all. And that would turn the 
Constitution on its head.
  My colleagues on the other side of the aisle have attempted to make 
much of the fact that the Constitution does not provide for a ``super-
majority'' vote on nominations, unlike constitutional amendments or 
treaties. This is true--the Constitution is silent on the issue of how 
many votes a nomination should take.
  But the Constitution is equally silent about how many votes it would 
take to proceed to other measures as well--a patient's bill of rights, 
for example. Or a ban on human cloning. Or the assault weapons ban. Or 
education bills. Or even major civil rights legislation. Yet nobody 
argues that it would be unconstitutional for one or more Senators to 
filibuster these bills. Unwise, perhaps. Subject to public outcry, 
maybe. A legitimate subject of reasoned debate, absolutely. But 
unconstitutional? No.
  Now let me address the issue of whether this filibuster is 
``unprecedented,'' as some have charged. If we look at the facts, we 
soon see that the only really unprecedented aspect of this filibuster 
may be its success. Many have tried, but few have succeeded. And this 
may be a good indication of how strongly we feel about enforcing our 
constitutional role of advice and consent to this and other nominations 
now before us.
  The majority now argues that any filibuster of a judicial nominee is 
unconstitutional because it essentially establishes a new, 60-vote 
threshold for judicial nominees. But this 60-vote threshold has long 
been in place for

[[Page S3453]]

controversial nominees facing objections from one or more Senators.
  Again, the only real difference between the situation with Miguel 
Estrada and the situations where cloture votes were required on other 
nominees is that here, today, there are not enough votes to meet that 
60-vote threshold.
  The procedure is the same--a cloture vote.
  The debate is the same--over a nomination to the federal judiciary.
  Only the outcome is different, and I don't see how the outcome can 
determine the constitutionality of the process.
  Let me list some other filibusters and cloture votes throughout 
recent history.
  In 1968, Abe Fortas was actually prevented from becoming Chief 
Justice of the Supreme Court by filibuster. The other side may argue 
that this was a bipartisan filibuster, and they are right--but this is 
not the point. The point is, a filibuster was used as a tool, and the 
nomination failed.
  In 1980, Stephen Breyer had to go through two cloture motions to 
obtain a seat on the First Circuit--to debate, Miguel Estrada has only 
had one cloture vote.
  In 1994, a cloture vote finally stopped a filibuster against Rosemary 
Barkett, a nominee to the 11th Circuit.
  In 1994, H. Lee Sarokin's nomination to the Third Circuit required a 
cloture vote before it could proceed.
  In 2000, the nominations of both Marsha Berzon and Richard Paez to 
the Ninth Circuit Court of Appeals--nominations which had been stopped 
dead in their tracks literally for years by that time--underwent 
cloture votes. Richard Paez had waited for more than 1,500 days before 
he was given that cloture vote.
  To be perfectly frank, hearing these charges from the other side of 
the aisle is surprising given how many other Clinton nominees were 
stopped cold by secret holds and other parliamentary tactics, both in 
committee and on the floor.
  For instance, Elena Kagan was a Clinton nominee to the D.C. Circuit 
Court of Appeals--the same circuit to which Miguel Estrada is now 
nominated. In fact, Ms. Kagan was Miguel Estrada's supervising editor 
on the Harvard law review, yet Republicans stopped her nomination cold 
without even getting to the point of a filibuster, or a public 
accounting of who was for, and who was against, that nominee.
  Elena Kagan was never filibustered on the floor, but she was 
effectively ``filibustered'' in committee by one or two Senators who 
prevented a hearing or a committee vote.

  Other nominees to the circuit courts who were denied hearings or 
committee votes include Helene White for the Sixth Circuit, Jorge 
Rangel for the Fifth Circuit, Bonnie Campbell for the Eighth Circuit, 
and the list goes on and on. In fact, dozens of Clinton nominees were 
blocked in committee by anonymous holds or other obstructionist 
tactics, so there was no need for a filibuster on the floor.
  It is most surprising to hear these charges of unconstitutionality 
from the other side of the aisle, given that many of my Republican 
colleagues actually participated in filibusters against Clinton 
nominees.
  Richard Paez, for example, was one of President Clinton's Hispanic 
nominees to the circuit court, and he could not move on the floor until 
a cloture petition was filed. When the vote finally came to end the 
filibuster, the majority of the Senate voted to do so and Richard Paez 
is now a federal judge.
  But many of my Republican colleagues voted to continue that 
filibuster, just three short years ago. Indeed, almost exactly three 
years ago, on March 8, 2000, fourteen Republican Senators voted to 
continue the filibuster against Richard Paez, including some of those 
who now argue that filibusters themselves are unconstitutional.
  And when the cloture vote came on that same day for Marsha Berzon, 
another Clinton nominee who waited years for a hearing and up or down 
vote, thirteen Republican Senators voted to continue that filibuster as 
well.
  How can these Senators now argue that this filibuster is 
unconstitutional? Is it only unconstitutional when Democrats filibuster 
a nominee, but constitutional for Republicans to do the same? Is it 
only unconstitutional if the filibuster succeeds?
  The fact is, this filibuster is very constitutional, and in fact it 
may even be necessary to enforce the constitution's other provisions, 
such as the advice and consent power granted to the U.S. Senate.
  I do not relish where we find ourselves today, nor do any of my 
colleagues--on either side of the aisle.
  We stand poised to enter a war against Iraq, and under the constant 
threat of international terrorism. Our budgets are running at record 
deficits, the economy is still in trouble, and we recently reorganized 
our entire homeland security apparatus. All of these issues require the 
attention in this body.
  The nominations debate is clearly very important to the future of our 
judiciary and to the rule of law for decades to come, and there is no 
question that this issue should not, can not, and will not, be ignored.
  But we should be concentrating our efforts, and our limited resources 
in terms of time, staff and attention, on these other important issues 
as well.
  It is clear now that Miguel Estrada will not become a federal judge 
unless our requests are met. Any further debate on this nominee is 
really a distraction from the many other important issues we should 
address.
  I appreciate the attendance of the distinguished Vice President of 
the United States here today, and I appreciate the gravity of this 
debate.
  But I urge the Republican leader and my colleagues to move beyond 
this debate so we can resolve these other, very important issues.
  The PRESIDING OFFICER. The Senate majority leader.
  Mr. FRIST. Mr. President, I appreciate the consideration of both 
sides of the aisle. We extended the debate for an additional 20 
minutes. Normally we would have completed at 12:30. I think that 
represents the fact that the debate has been valuable, informative, and 
I do appreciate so many Members on both sides of the aisle coming 
forward and speaking during this period of time where my objective, as 
I said 2 hours ago, was to elevate the debate and talk about advice and 
consent as spelled out in the Constitution.
  Much of what we have heard about is larger than any single nominee, 
even one as distinguished and compelling as Miguel Estrada. I think 
most of us would agree that the process of advise and consent has gone 
awry. I suspect most of us will probably have different viewpoints on 
why that has happened, why it has evolved to the point where we are 
today. I respect those differing views.
  One thing is clear to me--the system is not working well, it is 
broken, and that is a disheartening thought on my part. But to America 
it is an unfortunate truth. I think it is coming to the time we need to 
stop blaming each other and find a way to fix the system itself. With 
17 unanimous consent requests, 100 hours of debate, still the nominee 
being subjected to a filibuster, where we don't see an end in sight, an 
up-or-down vote, I conclude the system is not working.
  As has been pointed out, filibusters on executive nominations--until 
now, recently--has been exceedingly rare. As leader, that strikes me as 
a good thing. But it seems to be changing, and that is why it is 
important for us to carefully examine advise and consent as spelled out 
in the Constitution and our interpretation of that.
  I do want to make a proposal for the other side of the aisle and I 
ask the assistant minority leader to think about it. The proposal is 
not in the form of a unanimous consent request at this point but 
possibly after lunch today. The proposal recognizes the context in 
which we find ourselves. It may be possible in the near future that we 
will have a military conflict, although I hope and pray that is not the 
case. But we need to begin later this week, and aggressively next week, 
addressing the issue surrounding the Federal budget. We want to focus 
on the economy and get it moving again. We have Medicare and 
prescription drugs, which we must address. We have a lot to do. The 
proposal that I will make--and I would like for the other side of the 
aisle to consider this--to the chairman and ranking member is that 
arrangements will be made for Miguel Estrada to appear again before the 
Senate Judiciary

[[Page S3454]]

Committee in exchange for a date certain for an up-or-down vote on his 
nomination.
  The second hearing is something we had not believed was appropriate, 
but I want to show both sides of the aisle that we are trying to reach 
out to do everything possible to go that extra mile and try to get an 
answer that works.
  This is not a formal unanimous consent request at this time, but I do 
want to offer that opportunity. Again, it would be in exchange for a 
vote, up or down, at a time certain--to actually have another formal 
Judiciary Committee hearing with Miguel Estrada. It is my hope the 
other side of the aisle will decide it is time to conclude the debate 
and that we can focus on the challenges that lie ahead.
  Mr. REID. Will the leader allow me to respond? Otherwise, I will use 
leader time.
  Mr. FRIST. Yes.
  Mr. REID. I appreciate that since being chosen majority leader the 
Senator from Tennessee has gone out of his way to make sure we have 
ample debate. He has used the cloture motion rarely, and we appreciate 
that very much. But I say, regarding the Estrada matter, we have been 
very consistent in our requests. No. 1 is that he answer questions. The 
Senator said he would try to satisfy that. But until he supplies the 
memoranda from the Solicitor's office, it is not going to change the 
position of the people on this side of the aisle. So if he makes the 
unanimous consent request, we will simply renew our unanimous consent 
request, as we have done on other occasions.
  Mr. FRIST. Mr. President, I yield the floor.
  Mr. LEAHY. Mr. President, would the distinguished majority leader 
take a moment just to make a quick observation?
  Mr. FRIST. Mr. President, I will yield for 1 minute, and then we will 
go to lunch.
  Mr. LEAHY. Mr. President, I appreciate very much the distinguished 
majority leader trying to figure out a way to get through this impasse. 
It is in the tradition of majority leaders, and I have served with 
every majority leader since the time of Mike Mansfield. Majority 
leaders try to work these matters out, and I appreciate that.
  I urge him, in doing so, to look at the fact that Miguel Estrada has 
said he is willing to discuss his papers and find a way that that could 
be done. I think his suggestion of a hearing where questions would be 
asked based on that would be very workable. But I commend the 
distinguished majority leader for doing what is the tradition of 
leaders--to try to find a way through this.
  Mr. FRIST. Thank you, Mr. President.

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