[Congressional Record Volume 149, Number 41 (Thursday, March 13, 2003)]
[Senate]
[Pages S3668-S3678]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT
The PRESIDING OFFICER. Under the previous order, the Senate will now
go into executive session to resume consideration of Executive Calendar
No. 21, which the clerk will report.
The legislative clerk read the nomination of Miguel A. Estrada, of
Virginia, to be United States Circuit Judge for the District of
Columbia Circuit.
The PRESIDING OFFICER. The time until 12:30 p.m. shall be equally
divided between the chairman and the ranking member of the Judiciary
Committee or their designees.
Mr. REID. Mr. President, I suggest the absence of a quorum and ask
unanimous consent that the time run equally between both sides.
The PRESIDING OFFICER. Without objection, the clerk will call the
roll.
The legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, what is the parliamentary situation?
The PRESIDING OFFICER. The Senate is on the Estrada nomination.
Mr. LEAHY. I thank the distinguished Presiding Officer.
Senator Graham's Return
I see the distinguished senior Senator from Florida in the Chamber.
First, I will say on a personal basis, I am delighted to see him back.
He is looking as healthy as he did before he left. I understand he is
even more healthy now. For someone like myself who has probably a
couple pounds more than I would like to be carrying, I noticed that he
has found a way of losing a little weight. I suspect that what he has
gone through is not something that is going to catch on with the
various diet fads.
I had a chance to chat with the distinguished senior Senator last
night, and he not only sounds even healthier than when he left, but he
has the same sense of verve and sense of humor as he had before he
left.
I yield to the distinguished Senator from Florida, if he would like
to take the floor at this point, such time as he needs.
The PRESIDING OFFICER. The Senator from Florida.
Mr. GRAHAM of Florida. Mr. President, I extend to you and to my
colleagues deep appreciation from me and my family for the many
expressions of concern and best wishes which have flowed to us over the
past 6 weeks. I report to the Senate that this is my second day back on
the job since my operation. I feel increasingly strong and energetic,
sufficiently so that I feel this is the time to come to the Senate
floor and talk about the issue before us.
Before I do that, I especially extend my appreciation to the
Republican leader and our colleague and friend, Senator Bill Frist. As
we know, before becoming a Senator, it was Dr. Bill Frist. He happened
to be a cardiac surgeon. When it was clear to me I was going to have to
have cardiac surgery, and when that fact became known by a number of my
friends, I had an almost mountain of suggestions as to what I should
do, where I should go, who the surgeon should be.
Finally, my friend and former colleague, Connie Mack, called me and
suggested I should talk to Senator Frist, who actually knows something
about this, which I did. He gave me excellent advice and a substantial
amount of reassurance. Then after the operation, while I was still in
the hospital, he came and visited. That was a touching moment for Adele
and myself that he would make that effort.
I particularly thank Senator Frist for his display of humanity during
this period.
I am here to discuss my vote on the motion to invoke cloture on the
nomination of Miguel Estrada to the District of Columbia Circuit Court
of Appeals.
It will be my vote today to not invoke cloture. I want to explain the
reasons for this. There are many issues raised by this nomination. I
consider the most fundamental issue is the issue of the independence of
the judiciary. That has been a matter of concern to thoughtful
Americans from before our country was a country.
In the brilliant and Pulitzer Prize-winning book by David McCullough,
``John Adams,'' John Adams is quoted from a paper he wrote called
``Thoughts on Government.'' This was written before the War for
Independence, anticipating that after a successful independence, there
would be the need to establish a government. And these were some
principles John Adams thought government should contain. Let me read
one paragraph:
``Essential to the stability of government and to enable an
impartial administration of justice,'' Adams stressed, ``with
separation of judicial power for both legislative and the
executive, there must be an independent judiciary, men of
experience on the laws, of exemplary morals, invincible
patience, unruffled calmness, indefatigable application, and
should be subservient to none and appointed for life.''
Those were the characteristics John Adams laid out as crucial to the
essential stability of government and to have an able and impartial
administration of justice. Those words, written before the war, then
became the guiding star for our Founding Fathers at the Constitutional
Convention in 1787.
In order to preserve the political independence of judges, the
Constitution provides they shall, as John Adams suggested they should,
serve a lifetime appointment. In order to protect from economic
intrusion into the
[[Page S3669]]
judiciary, this Congress is prohibited from reducing the salary of
judges, so that they will be free of intimidation. But maybe the most
difficult issue the Constitutional Convention faced--and it was one of
the last matters to be resolved by that convention--was how should
judges secure their place on the bench. Up until the very end of the
Constitutional Convention, the idea was that this Senate would directly
appoint Federal judges. However, late concern arose that this very
principle of the independence of the judiciary might be at risk if one
branch were solely responsible for the appointment of Federal judges.
And so a compromise was struck. That compromise was that the President
would nominate persons to be Federal judges, and that the role of the
Senate would be to advise and then consent, through the confirmation
process, to those nominations.
So the issue we are debating today--the relative role of the
executive and legislative--is not a trivial issue. It goes to the
heart, as John Adams said, of the stability of government, because it
goes to the independence of the judiciary.
Having said that and having read some words from the 18th century, I
would like to read you some words from the 21st century as printed in
the New York Times Magazine of last Sunday. It is an article on one of
our Federal intermediate appellate courts, a court of almost, but not
quite, the same influence as the DC Circuit Court. One of its justices
is J. Michael Luttig. It says this:
Luttig told me that he thinks the politics surrounding
judicial appointments makes judges hyperconscious of their
political sponsors. ``Judges are told, `You're appointed by
us to do these things.' So then judges start thinking, well,
how do I interpret the law to get the result that the people
who pushed for me to be here want me to get?''
Judge Luttig continued:
I believe that there is a natural temptation to line up as
political partisans that is reinforced by the political
process. And it has to be resisted, by the judiciary and by
the politicians.
Mr. President, I believe we are at a time when we are being called
upon to resist an effort to inappropriately utilize the executive power
to the exclusion of the legislative role in the appointment of Federal
judges. I consider myself to be a pragmatist. I find very few things in
life that are black and white. I do not think this issue is black and
white.
I have been dealing with this issue in another dimension over the
past weeks of recuperation. In my State of Florida, we have had for
over 20 years a process of nominating Federal judges through a citizen-
based judicial nominating commission. Persons who want to be a Federal
judge in Florida submit their application to the judicial nominating
commission, which reviews their submission and has personal interviews
with those candidates that it believes are eligible for Federal
judicial consideration. Then that commission used to recommend three
people to the Senators. Senator Mack and myself worked for over 12
years in a very collaborative, nonpartisan manner to determine what
recommendations should be made to the President. Under the system now,
the number of persons to be recommended will be increased from three to
six, and the role Senator Nelson and I will play--recognizing the fact
that we are Democrats and the administration is Republican--is we will
review those six nominations and make a judgment as to whether, in our
opinion, any of those nominations would have difficulty being confirmed
by the Senate. If that is not the case, then all six will go to the
President for his consideration.
I highly commend to my colleagues the article I quoted from in The
New York Times Magazine of March 9, 2003, written by Deborah Sontag.
I ask unanimous consent that some materials about this recent
agreement that has been reached between the White House, the chairman
of the Florida Judicial Commission, and Senator Nelson and myself,
which I believe will well serve the Federal judiciary and the people of
Florida, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[News From Bob Graham]
White House Commits To Honor Florida Nominating System
Graham Says Judiciary Needs to Maintain Independence
Washington (March 12, 2003).--Senator Bob Graham, D-
Florida, announced today that the White House has committed
to honor Florida's non-partisan process for selecting
nominees for federal judgeships, federal prosecutors and U.S.
marshals. The agreement culminates months of discussion about
the importance of the role of the state's nominating
commissions.
``This is an important assurance from Chief of Staff Andy
Card that the White House will abide by the nominating
process that has allowed the federal court system in Florida
to retain public confidence and maintain its independence
from political influence,'' Graham said. ``For nearly two
decades, this merit-based process has produced judges and
other officials of the highest caliber, while allowing our
state to outpace the nation in filling vacancies. We need to
ensure that this tradition continues.''
Graham released a letter from White House Chief of Staff
Andrew H. Card Jr., that reads, in part: ``I want to
reiterate that the President is committed to following the
commission process in Florida and intends to abide by the
rules of procedure of the Florida Federal Nominating
Commission, consistent with `the Constitutional and statutory
powers, duties, or prerogatives of the President of the
United States or the Senate in the filling of vacancies by
nomination and confirmation' (Rule 30).''
Graham said it was agreed that the White House commitment
to following the reformed rules of the nomination process
will be prospective, meaning that persons already nominated
or who are under consideration for a vacancy will not be
subject to the new process.
Upon receiving Card's letter, Graham said he would
encourage prompt consideration of and support before the
Senate Judiciary Committee the pending nominee for a District
Court judgeship in the Southern District of Florida, as well
as the nominees for U.S. marshal in the three federal
judicial districts in Florida.
If confirmed, judicial nominee Cecilia M. Altonaga would be
the first Cuban-American woman to sit on the federal bench.
The pending nominees for U.S. marshal are Dennis A.
Williamson in the Northern District; Thomas Hurlburt Jr., in
the Middle District; and Christina Pharo in the Southern
District.
``My complaint has never been with the qualifications of
these individual nominees, but with the fact that the White
House deviated from the nominating process which has so well
served Floridians,'' Graham said.
``I am hopeful that, with the White House commitment, we
will to return to a selection process that gives assurances
of merit-based and non-partisan selection of jurists,
expedites non-partisan consideration of those jurists by the
Senate and maintains the independence of the judiciary.''
____
The White House,
Washington, March 12, 2003.
Dear Senator Graham: Thank you for the numerous
opportunities to discuss our mutual efforts to ensure that
Florida's judicial vacancies are filled through an orderly
process.
I know that you and Judge Gonzales have communicated
previously about the important work and role of Florida's
Federal Judicial Nominating Commission. I want to reiterate
that the President is committed to following the commission
process in Florida and intends to abide by the rules of
procedure of the Florida Federal Judicial Nominating
Commission, consistent with ``the Constitutional and
statutory powers, duties, or prerogatives of the President of
the United States or the Senate in the filling of vacancies
by nomination and confirmation'' (Rule 30).
The Administration shares your desire to promptly fill the
federal judicial and United States Marshals vacancies in
Florida.
Sincerely,
Andrew H. Card, Jr.
Chief of Staff to the President.
____
Colson Hicks Eidson,
Coral Gables, Florida, March 12, 2003.
Hon. Bob Graham,
U.S. Senate,
Washington, DC.
Dear Senator Graham: I want to thank you for your support
of the nomination of Judge Cecilia Altonaga for United States
District Court Judge for the Southern District of Florida.
Your substantial personal involvement and leadership in the
nomination of Federal Judges, U.S. Attorneys and U.S.
Marshals, throughout your years of service in the United
States Senate, have been exemplary and have been responsible
for the high qualifications of the men and women who serve in
the three federal districts in the State of Florida. You have
my admiration and respect.
With warm personal regards, I remain,
Sincerely,
Roberto Martinez.
____
[From the Miami Herald, Jan. 16, 2003]
Florida's Judicial-Nomination Process Under Threat
(By Bob Graham)
For more than a decade, through both Democratic and
Republican presidencies, Florida had an outstanding record of
filling federal judicial vacancies through a nonpartisan,
merit-based process.
[[Page S3670]]
The process was driven by the judicial nominating
commissions, which took applications, interviewed candidates
and submitted three names for consideration for each judicial
vacancy. These commissions, appointed by the two senators,
were made up of volunteers who represented a cross-section of
our state: lawyers and lay persons, Democrats and
Republicans. Both Florida senators interviewed the three
finalists and passed their recommendations onto the White
House.
The process worked. Over 10 years, we filled 26 District
Court vacancies without a single significant controversy.
Because of the confidence that the Senate Judiciary Committee
vested in the Florida judicial-nominating process, between
the 101st and 106th Congress, those vacancies were filled in
an average of 108 days. This compares to the average time for
all U.S. District Court vacancies of 151 days.
The process attracted highly qualified candidates for
federal judicial vacancies. This is sometimes difficult
because the open process makes all the information submitted
by the candidates publicly available. However, because
decisions were made on merit, candidates of the highest
quality from private practice as well as the state courts and
federal magistrates were attracted to apply.
Raising Concerns
After George W. Bush became president, the process changed.
Now the governor, along with the most senior Republicans in
our state's congressional delegation, are responsible for
naming the nominating commission's members.
While Sen. Bill Nelson and I can interview the candidates,
we cannot make recommendations to the White House anymore. We
can only indicate whether any of the candidates might
encounter difficulty in winning Senate confirmation.
Since this new system has taken effect, there have been two
instances that raise concerns about the politicization of the
judicial-nominating process, threatening to undermine the
credibility of our judiciary.
A year ago, the nominating commission announced groups of
three finalists to fill three U.S. marshals positions in
Florida, including one in the Southern District of Florida.
In March 2002, my office was informed that the three
finalists for the position in the Southern District were
being put aside in favor of a candidate who had not even
applied. This candidate has been renominated in the 108th
Congress and is now awaiting action by the Senate Judiciary
Committee.
In February 2002, the Judicial Nominating Commission
announced that it had selected three finalists for a Southern
District court vacancy. The candidates included two state
circuit-court judges and the sitting U.S. attorney for the
Southern District, who were interviewed by the Judicial
Nominating Commission and found to be qualified. Nelson and I
informed the White House that, if nominated, any of the three
would be expeditiously confirmed.
By April, however, the process took a mystifying turn. The
nominating commission's chairman informed the fellow
commissioners that the White House had requested three
additional names, effectively disregarding the three initial
candidates. A month later, at the direction of the governor
and two U.S. House members, the commission met again and
selected three new finalists. A nominee is expected from the
White House any day now.
The qualifications of these three new candidates are not to
be questioned. Rather, the concern is the deviation from a
process that has been successful for more than a decade. The
independence and integrity of our judicial system are at
stake.
The legal counsel to the president, Alberto Gonzalez, said
that the initial panel had been rejected because of
inadequate diversity. I found this surprising because half of
the federal court officers nominated in Florida by the
Republican-appointed Judicial Nominating Commission and
selected by the president were minorities.
With this record, if this recent set of recommendations by
the Judicial Nominating Commission was found by the president
to be insufficient, what recommendation would Gonzalez make
to satisfy the diversity sought by the president?
PROUD TRADITION
We must live up to the words said by former Florida Bar
President Herman J. Russamanno about our federal courts:
``Florida has been blessed with competent, experienced,
compassionate and highly professional judges. These
distinguished individuals bring to the court the highest
standards and strong commitments to the administration of
justice.''
I am committed to this proud tradition, which is why we
must honor a system of nonpartisanship and cooperation in the
selection of Florida's federal judges.
Mr. GRAHAM of Florida. Having said that, I believe the standard for
the kind of information the Senate has a right and a need for in order
to be able to carry out its advise and consent function is not an
ideological or even a precedential standard but, rather, a pragmatic
standard. If a person has been, for instance, an academic and has
written, as they typically do, extensive articles or books, there is
some means by which you can get below and beneath the resume and get
some feel of the person who is being considered.
Similarly, if a person has been a judge at the State level, or at
other levels within the Federal judiciary, it is likely that they have
written opinions or other statements of their jurisprudential feelings
which, again, would give you means by which to evaluate and cast an
informed vote to consent to a Presidential nomination.
I have been away from the Senate most of the time this matter has
been under consideration. I do not serve on the Judiciary Committee,
but colleagues whose judgment I respect have indicated they do not feel
that as of today we have the information to, in an informed manner,
provide that consent.
I believe this is an issue upon which honorable men and women can
reach agreement, just as after a series of negotiations, Senator Nelson
and I have reached an agreement on the means by which the Florida
judicial nominating process will be ordered and respected.
I urge those of my colleagues who have been particularly involved in
this to not see today's vote as the last chapter but, rather, as a call
to find an honorable way to provide us with the information, given the
status of this nominee and the dearth of information which might
otherwise be available.
Let me say, Mr. President, I find some irony in the issues with which
this Senate is currently dealing. We may be at war as early as next
week. This Senate has already voted to authorize that war. There have
been a number of rationales submitted for the war.
One of the rationales that has been recently advanced with a great
deal of intellectual fervor has been the concept that by taking down
Saddam Hussein, we could create a new climate throughout the region of
the Middle East and that in that new climate could sprout the seeds of
democratic institutions which would, in turn, lead to democracy. That
would be a very admirable consequence.
The irony is that at the same time we are hoping that our actions of
war will lead to democracy in a region of the world thousands of miles
away which has little history of democracy, we are today debating a
process that, in my judgment, if not carefully balanced between the
executive and legislative branches, has the prospect, as John Adams
suggested, of destabilizing one of the key institutions of our more
than two centuries of democracy.
I return to my hope that people of good will can find a way to
provide to this institution the information that it legitimately
requires, and which the Constitution imposes upon us, to make an
informed consent to the President's nomination.
I offer as an example of that spirit of cooperation the good deeds
that were extended to me by Senator Frist. Maybe some people who
observe this debate observe the Senate in other highly partisan
conflicts, such as the one we voted on earlier today, to believe that
we are warring armies. Yes, we are people who have strong views and
opinions, and we will express those views and support them with our
votes. But we also are people who have a respect for our colleagues and
a humanity towards them. I think this is the time to draw upon that
respect and appreciation for humanity, as well as our responsibilities
under the Constitution, to see if we can find a means to close this
impasse and move on to the other important business of the Senate.
Mr. President, I appreciate this opportunity. I again thank you and
my colleagues for all the expressions of good will during my absence.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I thank my good friend from Florida for his
statement. I again welcome him back. I heard in his absence statements
from both Republicans and Democrats worried about him. I am glad to see
him back. The Senator and his wife are dear and close friends of mine
and my wife.
Sometimes people forget the Senate is a family. There are only 100 of
us. We tend to know each other and spend time with each other. No
matter what political positions we take, we worry about each other's
health. We talk about each other's children and where they are going to
school.
This is an example of those who were concerned about a very popular
Senator. I am glad to see him looking in such great health. I welcome
him back.
[[Page S3671]]
I thank him, of course, for his very thoughtful statement. I am glad to
hear the quotes from a book that I probably enjoyed as much as any in
the last 10 years, David McCullough's book on John Adams. I do not own
the publishing company or anything else, but I recommend that book to
anyone who wants to read it.
Mr. REID. Will the Senator yield for a question?
Mr. LEAHY. Of course.
Mr. REID. Mr. President, this is not a question, but I wish to say,
Senator Graham and I came to the Senate together. I have been so
impressed with Bob Graham his entire tenure in the Senate because he
never does anything halfway; it is always all the way. Whenever he
comes to the floor to speak, he is prepared and has thought about what
he is going to talk about. Today is no different.
Of course, I am happy to see him back stronger than ever and
certainly wish him well in his ambitions politically, even though he
may have had a slight setback, but knowing how hard the Senator from
Florida works, I am sure he will catch up with the pack.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, it was just 2 days ago we welcomed the Vice
President to the Senate for debate scheduled by the majority. I said at
that time that I am always glad to see the Vice President here, even
though it is a rare appearance for a Vice President of either party.
I wish he had been here for debate about the impending war with Iraq.
We are probably the only parliamentary body in the democratic world
that has not had a major debate during the past few weeks on Iraq and
the war. Or he might have been here for debate on terrorism or homeland
defense or the need for action to stimulate the economy and improve the
lives of the millions of Americans who have lost jobs over the last 2
years. Actually, there are more Americans losing jobs in a 2-year
period than I think has occurred since I have been old enough to vote.
Or the Senate might have been acting on a prescription drug benefit for
seniors.
Apparently, we are not here to have that debate today nor did the
majority schedule debate in the Senate on Tuesday on those important
matters. Instead, we are here to hear again the arguments about Mr.
Estrada. But not much has changed since last week or since this
Tuesday. The administration's obstinacy continues to impede Senate
consideration of this nomination.
The distinguished Democratic leader, Senator Daschle, pointed a way
out of this impasse in a letter to the President on February 11. It is
regrettable the President did not respond to that reasonable letter to
resolve the issue. Instead, the letter sent this week to the
distinguished majority leader, Senator Frist, was not a response to
Senator Daschle's realistic approach, but a further effort to minimize
the Senate's role in this process by proposing radical changes in
Senate rules.
I have great respect for the Office of the Presidency, for whoever
holds it. One thing I have learned in 29 years is that Presidents come
and Presidents go. The Office of the Presidency exists with its
responsibilities, its duties, its rules, its traditions. Just as
Senators come and go. No Senator holds a seat for life. No Senator owns
a seat in the Senate. But the Senate stays, and the Senate has its
rights, and it has its privileges, and it also has its obligations. It
has its constitutional duties.
I have been in the Senate with six different Presidents. I have never
been in the Senate with a White House that seems to have less
understanding of the role of the Senate or more of a desire to overturn
well over 200 years of practice and procedures in the Senate. I have
never known a White House that thinks more just for the moment and not
for the long term.
This may be why we are fast approaching the point where, as some
suggest, the White House may get half of its goal of regime change, but
they may get it in Great Britain. But I digress.
The real double standard in the matter of the Estrada nomination is
that the President selected Mr. Estrada in large part based upon his
4\1/2\ years of work in the Solicitor General's Office, as well as for
his ideological views. The administration undoubtedly knows what those
views are and have seen those work papers. They know what he did. They
picked him based on that, but they said even though we picked him based
on that, we do not want the Senate to know what it was. We in the
Senate cannot read his work, the work papers that would shed the most
light on why this 41-year-old should have a lifetime seat on the
Nation's second highest court.
We are to a point where the White House simply says, trust us, we
know what he wrote and how he thinks and will make decisions, but we do
not want you to know what he wrote, just rubberstamp him.
Actually, I would remind them of that made-up quote that President
Reagan used to such effect--I happen to agree with President Reagan on
it--trust but verify. We would like to verify. President Reagan said,
``Trust but verify.'' They say, trust us. We say, let us verify.
So actually this whole matter is in the hands of the White House.
They could move forward with Mr. Estrada easily if they wanted to.
Instead, the White House has taken on the attitude that they want to
carry out the responsibilities of the Presidency, as awesome as they
are, but they also want to carry out the responsibilities of the
Senate.
I think they have their hands full carrying out the duties of the
White House, with the impending war. We have millions of Americans out
of work. We have a stock market that has tanked. We have runaway budget
deficits. This is an administration that inherited the largest
surpluses in history, and they are about to create the largest deficits
in history; an administration that inherited a robust stock market, and
we are about to see the stock market go to an all-time low. They have
enough to worry about. Let us worry about carrying out the duties of
the Senate.
If they would simply cooperate, we could go forward with Mr. Estrada.
I mention this because I do not want anybody to make a mistake. The
control and the scheduling of whether there will be a vote on Mr.
Estrada is in the hands of the White House.
There seems to be a perversion to require the Senate to stumble in
the dark about Mr. Estrada's views when he shared these views quite
freely with others, and when the administration selected him for this
high office based on these views.
Justice Scalia wrote just last year:
Even if it were possible to select judges who do not have
preconceived views on legal issues, it would hardly be
desirable to do so. Proof that a Justice's mind at the time
he joined the Court was complete tabula rasa in the area of
constitutional adjudication would be evidence of lack of
qualification, not lack of bias.
It was just a week ago that I thanked the Democratic leader and
assistant leader and Democratic Senators for speaking and voting in
favor of preserving the integrity of the confirmation process. We are
acting to safeguard our Constitution and the special role of the Senate
in ensuring that our Federal courts have judges who will fairly
interpret the Constitution and the statutes we pass for the sake of all
Americans.
The administration's obstinacy continues to impede progress to
resolve this standoff. The administration remains intent on packing the
Federal circuit courts and on insisting that the Senate rubber-stamp
its nominees without fulfilling the Senate's constitutional advice and
consent role in this most important process. The White House could have
long ago helped solved the impasse on the Estrada nomination by
honoring the Senate's role in the appointment process and providing the
Senate with access to Mr. Estrada's legal work. Past administrations
have provided such legal memoranda in connection with the nominations
of Robert Bork, William Rehnquist, Brad Reynolds, Stephen Trott and Ben
Civiletti, and even this administration did so with a nominee to the
EPA. Senator Durbin noted this week that the administration is giving
Mr. Estrada bad advice. Instead, the administration should instruct 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.
[[Page S3672]]
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. It was not so long ago when then-
Senator Ashcroft was chairing a series of Judicial Committee hearings
at which Edwin Meese III testified:
I think that very extensive investigations of each
nominee--and I don't worry about the delay that this might
cause because, remember, those judges are going to be on the
bench for their professional lifetime, so they have got
plenty of time ahead once they are confirmed, and there is
very little opportunity to pull them out of those benches
once they have been confirmed--I think a careful
investigation of the background of each judge, including
their writings, if they have previously been judges or in
public positions, the actions that they have taken, the
decisions that they have written, so that we can to the
extent possible eliminate people eliminate persons who would
turn out to be activist judges from being confirmed.
Timothy E. Flanigan, an official from the administration of the
President's father, and who more recently served as Deputy White House
Counsel, helping the current President select his judicial nominees,
testified strongly in favor of ``the need for the Judiciary Committee
and the full Senate to be extraordinarily diligent in examining the
judicial philosophy of potential nominees.'' He continued:
In evaluating judicial nominees, the Senate has often been
stymied by its inability to obtain evidence of a nominee's
judicial philosophy. In the absence of such evidence, the
Senate has often confirmed a nominee on the theory that it
could find no fault with the nominee.
I would reverse the presumption and place the burden
squarely on the shoulders of the judicial nominee to prove
that he or she has a well-thought-out judicial philosophy,
one that recognizes the limited role for Federal judges. Such
a burden is appropriately borne by one seeking life tenure to
wield the awesome judicial power of the United States.
Although the Senate Judiciary Committee has long recognized
correctly, in my view, that positions taken as an advocate
for a client do not necessarily reflect the nominee's own
judicial philosophy, a long history of cases in which a
nominee has repeatedly urged courts to engage in judicial
activism may well be probative of a nominee's own philosophy.
Now that the President is not a popularly elected Democrat but a
Republican, these principles seem no longer to have any support within
the White House or the Senate Republican majority. Fortunately, our
constitutional principles and our Senate traditions, practices and
governing rules do not change with the political party that occupies
the White House or with a shift in majority in the Senate.
Along with this current impasse, the administration has shown
unprecedented disregard for the concerns of Senators in taking other
unprecedented actions, including renominating both Judge Charles
Pickering, despite his ethical lapses, and Judge Priscilla Owen,
despite her record as a conservative ``activist'' judge. Both 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. This morning
the Republican majority took another unprecedented step in holding a
hearing on the re-nomination of Judge Owen, whose nomination had been
rejected earlier by the committee. 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 make the Senate 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 again here today.
One of the most disconcerting aspects of the manner in which the
Senate is approaching these divisive judicial nominations 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.
It should concern all of us and the American people 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
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. What I find
unprecedented are the excesses that the Republican majority and this
White House are willing to indulge 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
the Constitution to suit their purposes of the moment rather than as it
has functioned for over 200 years to protect all American through
checks and balances.
The Democratic Leader pointed the way out of this impasse again in
his letter to the President on February 11. It is regrettable that the
President did not respond to that reasonable effort to resolve this
matter. Indeed, the letter he sent this week to Senator Frist was not a
response to Senator Daschle's reasonable and realistic approach, but a
further effort to minimize the Senate's role in this process by
proposing radical changes in Senate rules and practices to the great
benefit of this administration. A distinguished senior Republican
Senator saw the reasonableness of the suggestions that the Democratic
leader and assistant leader have consistently made during this debate
when he agreed on February 14 that they pointed the way out of the
impasse. Sadly, his efforts and judgment were also rejected by the
administration.
More recently, in its edition for next Monday, March 17, a writer in
The Weekly Standard suggests that other Senate Republicans, ``several
veteran GOP Senate staffers'' and ``a top GOP leadership aide'' asked
the White House to shown some flexibility and to share the legal
memoranda with the Senate to resolve this matter, but were rebuffed. I
ask unanimous consent that a copy of the article from The Weekly
Standard be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Weekly Standard, Mar. 17, 2003]
Filibuster Si, Estrada No!--The Great Republican Divide Over How To
Fight for Bush's Judicial Nominee
(By Major Garrett)
It's not clear whether the constitutional definition of
``advice and consent'' will become a casualty of Miguel
Estrada's fight for a seat on the D.C. Circuit Court of
Appeals, but the possibility is serious and sobering. In a
55-44 vote, Democrats last week defeated a Republican attempt
to break their unprecedented partisan filibuster of Estrada's
nomination, opening the way for the simple-majority standard
for Senate confirmation of judicial nominees to be replaced
with a super-majority requirement. The Republic isn't there
yet. But it's close.
``If we go very much further there will be obvious
consequences,'' said Sen. Jon Kyl, an Arizona Republican.
``This standard will have to be applied to both parties and
by both parties. This is very close to the point where you
can't pull it back.''
The strain on the Constitution and Senate precedent is now
obvious. Less obvious is the toll the Estrada fight has taken
on the relationship between the new Senate GOP leadership
team and the Bush White House. While GOP senators are loath
to admit it, the Estrada debate has drifted on this long
because the White House and the GOP leadership could not
fashion a cohesive strategy.
Estrada is not the first fight new majority leader Bill
Frist would have chosen--at least not under the restrictions
imposed by the White House. Senate Republicans believe the
White House has severely limited their room to negotiate.
Early on, several veteran GOP Senate staffers warned the
White House and Justice Department to prepare for a brawl.
They then gingerly asked two questions: Would Estrada answer
more questions from Democrats? And was there any flexibility
in the
[[Page S3673]]
White House's objection to releasing the working memos
Estrada wrote while deputy solicitor general in the Clinton
Justice Department?
Senior Senate GOP staff told White House and Justice
Department officials that cutting a deal on limited
Democratic access to Estrada's working papers could lead to
his confirmation. The White House refused. There would be no
access to Estrada's working papers. Period. This adamantine
posture, in the eyes of some in the Senate GOP leadership
circles, handcuffed Frist.
``There's some frustration,'' said a top GOP leadership
aide. ``From the very beginning we told them that was the
only way out and a face-saver for everyone. But it came down
to the fact that no one on the White House or Justice team
wanted to walk into the Oval Office and say to the president,
`You might have to give up these memos.' ''
The administration's position on the memos reflects its
deeply held ethic of aggressively defending executive branch
prerogatives. Though the White House has never
characterized the Estrada matter as one of executive
privilege (it is more akin to lawyer-client privilege), it
falls into the broad category of executive branch
muscularity. And while most Republicans generally support
this posture, some Bush allies on and off Capitol Hill
have come to question the administration's fastidiousness
in the Estrada fight.
``I understand the principle, and I support it, but on this
one it feels belligerent,'' said a longtime Republican
lobbyist and ally of the Bush White House.
When a reporter last week asked Sen. Rick Santorum, the GOP
conference chairman, if opposition to divulging Estrada's
Justice Department memos was permanent, he snapped, ``Ask the
White House.''
Conservatives like Sen. Kyl see the Estrada fight as purely
ideological and strongly oppose cutting any deal on access to
his working papers.
``It's a phony issue, a manufactured issue,'' said Kyl.
``We want to win this, but you don't win it by breaking a
principle that has served this nation well for 200 years. And
if we deal on the papers, it will be something else.''
But Sen. Harry Reid, the Senate's No. 2 Democrat, has said
he will support Estrada if the papers are turned over and
nothing objectionable emerges. Enough Democrats to break the
filibuster would surely follow Reid, senior Democratic
sources say.
``Their guy's not going to get confirmed without them,''
said a top Democratic lawyer who backs Estrada. ``This is not
complicated. The White House is not going to confirm him
without paying a price.''
If that price seems too high, the White House may want to
reexamine the price of the alternative, an increasingly
bitter filibuster fight. While protecting the privacy of
internal memos at the Justice Department, the White House may
be sacrificing the 50-vote majority as the historic benchmark
of constitutional fitness for the federal bench. Some Senate
Republicans believe a new 60-vote standard for judicial
appointments could severely hamper this president and all
future presidents. And some Senate Republicans wonder why
it's more important to protect executive privilege than a
president's power to have judicial nominees confirmed by
simple majority vote.
The White House wants the fight to drag out and political
pressure to build on centrist Democrats. The White House
likes the Hispanic dimension of the Estrada fight and is
counting on the weight of editorial and public opinion to
turn the tide.
But numerous Republican senators say the Estrada fight, for
all its constitutional implications, has yet to resonate with
the public. Democratic senators report no political backlash
at home and see it as their duty to defend Daschle.
``This is an ideological fight, and this is a fight for
Daschle to be taken seriously,'' said a senior aide to a
Democratic senator who has teamed up with the White House on
economic policy. ``And my boss is with Daschle. He knows he's
taken, and will take, enough flak on fiscal policy. This is a
fight he's prepared to stick with.''
Absent a deal on the working memos, all Estrada can bank on
is White House and Republican promises to fight until they
prevail. But no one in the GOP Senate leadership or the Bush
White House can explain how or when that will happen.
Mr. LEAHY. It is too bad that the White House will not listen to
reason from Senate Democrats or Senate Republicans. If they had, there
would be no need for this cloture vote. The White House is less
interested in making progress on the Estrada nomination than in trying
to make political points and to divide the Hispanic community.
The Supreme Court, in an opinion authored by none other than Justice
Scalia, one of this President's judicial role models, instructs that
judicial ethics do not prevent candidates for judicial office or
judicial nominees from sharing their judicial philosophy and views.
With respect to ``precedent,'' Republicans not only joined in the
filibuster of the of Abe Fortas to be Chief Justice of the United
States Supreme Court, they joined in the filibuster Stephen Breyer to
the 1st Circuit, Judge Rosemary Barkett to the 11th Circuit, Judge H.
Lee Sarokin to the 3rd Circuit, and Judge Richard Paez and Judge Marsha
Berzon to the 9th Circuit. The truth is that filibusters on nominations
and legislative matters and extended debate on judicial nominations,
including circuit court nominations, have become more and more common
through Republicans' actions.
Of course, when they are in the majority Republicans have more
successfully defeated nominees by refusing to proceed on them and have
not publicly explained their actions, preferring to act in secret under
the cloak of anonymity. From 1995 through 2001, when Republicans
previously controlled the Senate majority, Republican efforts to defeat
President Clinton's judicial nominees most often took place 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 judicial nominees, Republicans also filibustered the
nomination of Executive Branch nominees. They successfully filibustered
the nomination of Dr. Henry Foster to become Surgeon General of the
United States in spite of two cloture votes in 1995. Dr. David
Satcher's subsequent nomination to be Surgeon General also required
cloture but he was successfully confirmed.
Other Executive Branch nominees who were filibustered by Republicans
included Walter Dellinger's nomination 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 a number of 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, Republicans
successfully filibustered the nomination of Sam Brown to be an
Ambassador. After three cloture petitions were filed, his nomination
was returned to President Clinton without Senate action. Also in 1994,
two cloture petitions were required to get a vote on the nomination of
Derek Shearer to be an Ambassador. And it likewise took two cloture
petitions to get a vote on the nomination of Ricki Tigert to chair the
FDIC. 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.
Nonetheless, in spite of all the intransigence of the White House and
all of the doublespeak by some of our colleagues on the other side of
the aisle, I can report that I believe the Senate will by the end of
this week have moved forward to confirm 111 of President Bush's
judicial nominations since July 2001. That total would include 11
judges confirmed so far this year and of those, seven would be
confirmed this week. With the time agreement on the controversial
nomination of Jay S. Bybee to the United States Court of Appeals for
the Ninth Circuit in place for later today, it also includes a circuit
judge. Those observing these matters might contrast this progress with
the start of the last Congress in which the Republican majority in the
Senate was delaying consideration of President Clinton's judicial
nominees. In 1999, the first hearing on a judicial nominee was not
until mid-June. The Senate did not reach 11 confirmations until the end
of July of that year. Accordingly, the facts show that Democratic
Senators are being extraordinarily cooperative with a Senate majority
and a White House that refuses to cooperate with us. We have made
progress in spite of that lack of comity and cooperation.
Indeed, by close of business today, we will have reduced vacancies on
the federal courts to under 55, which includes
[[Page S3674]]
the 20 judgeships the Democratic-led Senate authorized in the 21st
Century Department of Justice Appropriations Authorization Act last
year. That is an extremely low vacancy number based on recent history
and well below the 67 vacancies that Senator Hatch termed ``full
employment'' on the federal bench during the Clinton Administration.
Our D.C. Circuit has special jurisdiction over cases involving the
rights of working Americans as well as the laws and regulations
intended to protect our environment, safe work places and other
important federal regulatory responsibilities. This is a court 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, as well
as the lives of their children and generations to come.
If a nominee's record or responses raise doubts or concerns, these
are matters for thorough scrutiny by the Senate, which is entrusted to
review all of the information and materials relevant to a nominee's
fairness and experience. No one should be rewarded for stonewalling the
Senate and the American people. Our freedoms are the fruit of too much
sacrifice to fail to assure ourselves that the judges we confirm will
be fair judges to all people and in all matters.
It is unfortunate that the White House and some Republicans have
insisted on this confrontation rather than working with us to provide
the needed information so that we could proceed to an up-or-down vote.
Some on the Republican side seem to prefer political game playing,
seeking to pack our courts with ideologues and leveling baseless
charges of bigotry, rather than to work with us to resolve the impasse
over this nomination by providing information and proceeding to a fair
vote. I was disappointed that Senator Bennett's straightforward
colloquy with Senator Reid and me on February 14, which pointed to a
solution, was never allowed by hard-liners on the other side to yield
results. I am disappointed that all my efforts and those of Senator
Daschle and Senator Reid have been rejected by the White House. The
letter that Senator Daschle sent to the President on February 11
pointed the way to resolving this matter reasonably and fairly.
Republicans would apparently rather engage in politics.
The Republican majority is wedded to partisan talking points that are
light on facts but heavy on rhetoric. There has often been an absence
of fair and substantive debate and a prevalence of name calling by the
other side.
I urge the White House and Senate Republicans to end the political
warfare and join with us in good faith to make sure the information
that is needed to review this nomination is provided so that the Senate
may conclude its consideration of this nomination. I urge the White
House, as I have for more than two years, to work with us and, quoting
from a recent column by Thomas Mann of The Brookings Institute, to
submit ``a more balanced ticket of judicial nominees and engag[e] in
genuine negotiations and compromise with both parties in Congress.''
The President promised to be a uniter not a divider, but he has
continued to send us judicial nominees that divide our nation and, in
this case, he has even managed to divide Hispanics across the country,
unlike any of the prior nominees of both Democratic and Republican
presidents. The nomination and confirmation process begins with the
President, and I urge him to work with us to find a way forward to
unite the nation on these issues, instead of to divide the Nation.
The presiding officer. The Senator from Utah.
Mr. HATCH. Mr. President, this is the fifth week of debate on Mr.
Estrada's nomination. My Democratic colleagues have had unlimited
opportunities to make their case. Some of them oppose him; others
support him. But one thing has remained clear through this debate:
There is no good reason to continue this route of obstruction by
denying Mr. Estrada an up or down vote.
If my count is accurate, we have sought more than 17 times to come to
an agreement with the Democratic leadership for a time to vote on Mr.
Estrada's nomination. Each time, they rejected our efforts.
Yet, the Democratic leadership has complained that the Senate should
move on to consider other important matters. All the while, they have
continued to fight voting on Mr. Estrada's nomination--the very thing
that would allow the Senate to focus its energies on other matters.
This filibuster of Mr. Estrada's nomination is just another step in a
calculated effort to stall action on President Bush's judicial
nominees. A few weeks ago, I spoke at length on the Senate floor about
the Senate Democrats' weapons of mass obstruction. I mentioned that
when the Democrats controlled the Senate, we saw them bottle up
nominees in committee despite more than 100 vacancies in the federal
judiciary. They have continued to try to inject ideology into the
confirmation process by demanding that nominees like Miguel Estrada
answer questions that other nominees rightly declined to answer, but
were nevertheless confirmed. They have sought production of all
unpublished opinions of nominees who are sitting Federal judges--a
demand that has resulted in the production of hundreds of opinions and
required the expenditure of a significant amount of resources, money,
effort, the time. Most recently, they have demanded that a nominee, Mr.
Estrada, produce confidential internal memoranda that are not within
his control. Although this tactic made its debut with Mr. Estrada, I
expect that we will see it repeated with other nominees.
Each of these weapons of obstruction were at their most potent when
Democrats controlled the Judiciary Committee. Now things have changed,
and Democrats can no longer keep nominees like Miguel Estrada bottled
up in committee while they made demands for answers to questions that
are unanswerable, and for confidential documents that are not subject
to production. Democrats no longer control the committee, and as a
result Miguel Estrada nomination has made it to the Senate floor. This
means that the obstructionists among the Senate Democrats have turned
to their ultimate weapon--the filibuster.
Filibusters of judicial nominees allow a vocal minority to prevent
the majority of Senators from voting on the confirmation of a Federal
judge--a prospective member of our third, coequal branch of Government.
It is tyranny of the minority, and it is unfair to the nominee, to the
judiciary, and to the majority of the Members of this body who stand
prepared to fulfill their constitutional responsibility by voting on
Mr. Estrada's nomination.
I have taken to the floor time and time again, for Democratic and
Republican nominees alike, to urge my fellow Senators to end debate by
voting to invoke cloture, which requires the vote of 60 Senators. Most,
if not all, of these occasions did not represent true filibusters, but
were situations in which nominees were nevertheless forced to overcome
the procedural obstacle of a cloture vote. And no lower court nominee
has ever been defeated through use of a filibuster--all previous lower
court nominees who endured a cloture vote were ultimately confirmed.
I am not alone in my disdain for forcing judicial nominees through a
cloture vote. I think that it is appropriate at this point to note that
many of my Democratic colleagues argued strenuously on the floor of the
Senate for an up-or-down vote for President Clinton's judicial
nominees.
The distinguished minority leader himself once said:
As Chief Justice Rehnquist has recognized: ``The Senate is
surely under no obligation to confirm any particular nominee,
but after the necessary time for inquiry it should vote him
up or vote him down.'' An up or down vote, that is all we ask
. . . .
The ranking member of the Judiciary Committee echoed these sentiments
when he said:
. . . I, too, do not want to see the Senate go down a path
where a minority of the Senate is determining a judge's fate
on votes of 41.
Another one of my Democratic colleagues, Senator Kennedy, himself a
former chairman of the Judiciary Committee, had this to say:
Nominees deserve a vote. If our Republican colleagues do
not like them, vote against them. But do not just sit on
them--that is obstruction of justice.
[[Page S3675]]
The distinguished Senator from California, Mrs. Feinstein, who also
serves on the Judiciary Committee, likewise said in 1999:
A nominee is entitled to a vote. Vote them up; vote them
down.
She continued:
It is our job to confirm these judges. If we do not like
them, we can vote against them. That is the honest thing to
do. If there are things in their background, in their
abilities that do not pass muster, vote no.
My other colleague from California, Senator Boxer, said in 1997:
It is not the role of the Senate to obstruct the process
and prevent numbers of highly qualified nominees from even
being given the opportunity for a vote on the Senate floor.
My colleague from Delaware, Senator Biden, also said in 1997:
I . . . respectfully suggest that everyone who is nominated
is entitled to have a shot, to have a hearing and to have a
shot to be heard on the floor and have a vote on the floor.
I could go on, but I think I have made my point. I had hoped that I
could count on each of my Democratic colleagues who made statements
supporting an up-or-down vote for President Clinton's judicial nominees
to join me in voting for cloture on Miguel Estrada. I had hoped that
their remarks in the past were not merely about partisanship, but about
the fairness that should be extended to all judicial nominees,
regardless of which President nominated them.
Last week, I was wrong. But today, there is a second chance--another
chance to set aside partisanship for fairness.
For this cloture vote to succeed, a supermajority of 60 Senators must
vote to end the filibuster of Mr. Estrada's nomination. I regret that
it has come to this, because forcing a supermajority vote on any
judicial nominee is a maneuver that needlessly injects even more
politics into the already over-politicized confirmation process. I
believe that there are certain areas that should be designated as off-
limits from political activity. The Senate's role in confirming
lifetime-appointed article III judges--and the underlying principle
that the Senate perform that role through the majority vote of its
members--are such issues. Nothing less depends on the recognition of
these principles than the continued, untarnished respect in which we
hold our third branch of Government--the one branch of Government
intended to be above political influence.
So I now say once again to my Democratic friends: Vote for Miguel
Estrada or vote against him. Do as their conscience dictates you must.
But do not prolong the obstruction of the Senate by denying a vote on
his nomination. Do not cast their vote against cloture today. Do not
continue to treat the third branch of our Federal Government--the one
branch intended to be insulated from political pressures--with such
disregard that we filibuster its nominees. Do not perpetuate this
campaign of unfairness. Vote for him or vote against him, but just
vote.
This first filibuster in the history of the Senate on a substantive
judgeship for a circuit court of appeals nominee is unprecedented,
something that should never happen, that we prevented from happening
when I was chairman of the committee during the Clinton administration.
My friends on the other side are using a fiction that they know the
administration cannot fulfill, and that is demanding a fishing
expedition into all of the papers in the Solicitor General's Office
pertaining to Mr. Estrada's recommendations on appeals, certiorari, and
amicus curiae. They know the administration cannot do that. They knew
that when they wrote the letter making that unreasonable demand. This
is what we call fiction, a red herring, so they can justify the
filibuster they are undergoing and act very pious, that they are really
trying to learn more about this man, in spite of the fact that they
conducted the hearings.
The hearings went all day. The transcript is almost 300 pages. They
have all of his Supreme Court briefs. They have all of his Supreme
Court arguments. They know more about Mr. Estrada than they know about
any circuit court of appeals judgeship nominee we have had over the
last 27 years that I have been in the Senate, as far as I know. There
might be one or two they might know as much about as they do Mr.
Estrada, but this is a fiction. It is a red herring. We have a letter
from seven former Solicitors General, all living former Solicitors
General, from Archibald Cox to Seth Waxman, four of the seven Democrat
Solicitors General, three of who worked with Miguel Estrada in the
Solicitor General's Office, because he worked, I might add, 4 years for
the Clinton administration and 1 year for the Bush administration.
Those former Solicitors General say these types of documents should
never be given, because it would chill the ability of the Solicitor
General to get honest and decent opinions on very important matters for
the people's business, and the people's business does not make any
delineation between Democrats and Republicans. The Solicitor General
represents all of the people.
I will now say a few words about Priscilla Owen before I go back to
the hearing.
I rise for the purpose of reading a Dear Colleague letter that I have
written and distributed today concerning the nomination of Justice
Priscilla Owen of Texas to be a judge on the US Court of Appeals for
the Fifth Circuit. I have distributed this to every Senator in the
Senate.
Dear Colleague: On September 4 of last year I took the
unusual step of writing to the entire Senate to express my
outrage at the untruthful and misleading attacks made against
Justice Priscilla Owen of Texas, who was nominated by
President Bush to serve on the Fifth Circuit Court of
Appeals. As you know, Justice Owen enjoyed the support of
both of her home-state Senators last Congress, and again
enjoys such support. I am writing today so that you have all
information related to this important information.
In September, I expressed my concern that a continued
pattern of misinformation about a nominee, like the one
generated about Justice Owen, could undermine the integrity
both of the judiciary and of the branch of government in
which we are privileged to serve. A day later, the Judiciary
Committee refused to allow Justice Owen a vote by the whole
Senate on a party-line vote of 10 to 9.
Notably, one week later The Washington Post joined scores
of other newspapers across the country in expressing support
for Justice Owen and severely criticized the Committee's
conduct. I have enclosed its editorial. The Post described
the Committee's vote as ``a message to the public that the
confirmation process is not a principled exercise but an
expression of political power.'' The Post also noted that
although they disagreed with some of her opinions, ``none
seems beyond the range of reasonable argument.''
Despite the independent support of dozens of newspapers,
prominent Democrats, and fourteen past Texas bar presidents,
critics have portrayed Justice Owen as being ``far from the
mainstream.'' Yet Texas voters have twice elected her
overwhelmingly to statewide office. The American Bar
Association has unanimously rated her well qualified, its
highest rating. In fact, Justice Owen was the first judicial
nominee with the ABA's highest rating to be voted down by the
Judiciary Committee.
In my opinion, Justice Owen is perhaps the best sitting
judge I have ever seen nominated. She is brilliant as well as
compassionate. Justice Owen's record of applying the law as
written is among the very best of any judicial nominee ever
presented to the Senate. This is particularly true in her now
famous decisions concerning the Texas law requiring parental
notification when minor children obtain abortions. In
these cases, no one's right to choose was implicated. The
only right at stake was the right articulated by the Texas
legislature of parents to have knowledge of, and an
opportunity for involvement in, one of the most important
decisions of their children's lives. In those cases,
Justice Owen did exactly what any restrained judge should
do: She applied Texas statutory law as directed by Supreme
Court's precedent, including Roe v. Wade. Ironically, it
is Justice Owen's opponents--the same ones who accuse her
of being an ``activist''--who would have her ignore the
legislature and the Supreme Court in order to reach a
political result.
Justice Owen is also accused of deciding cases against
consumers, workers, and the injured and sick. This charge is
not only factually without basis, but also belies the
accusation of ``activism.'' Only those obsessed with
outcomes, rather than the law governing the facts of a
particular case, would be compelled by a mere counting up of
wins and losses among categories of parties before a judge.
Working as a judge is like being an umpire; Justice Owen
cannot be characterized as pro-this or pro-that any more than
an umpire can be analyzed as pro-strike or pro-ball. I hope
you will agree that a judge's job is to apply the law to the
case at hand, not to mechanistically ensure that court
victories go 50/50 for plaintiffs and defendants, consumers
and corporations.
Justice Owen was also notably assailed by her critics using
incorrectly the words of one of her biggest supporters,
Alberto Gonzales, President Bush's White House Counsel. Judge
Gonzales served with Justice Owen on the Texas Supreme Court
and has written publicly that she is ``extraordinarily well
[[Page S3676]]
qualified to serve as a judge on the federal appeals court.''
Rather than focus on his ringing endorsement, however,
detractors instead sensationalized a disagreement that Judge
Gonzales had not with Justice Owen, but with other dissenting
judges in a case involving the Texas parental notification
law.
Justice Owen is an excellent judge. Her opinions, whether
majority, concurrences, or dissents, could be used as a law
school text book illustrating exactly how an appellate judge
should think, write, and do the people justice by effecting
their will through the laws adopted by their elected
legislatures. She clearly approaches these tasks with both
scholarship and mainstream American common sense.
As a new Congress takes a fresh look at this nomination, I
hope you will join me in informing the American people of the
truth about Justice Owen and in warning them of the grave
danger posed by an uninformed politicization of the federal
judiciary. I hope you will urge our colleagues to do the
right thing when Justice Owen is again voted on by the
Committee and goes to the Senate floor for confirmation.--
Signed, Orrin G. Hatch.
We are holding a hearing today on Justice Owen's nomination. I invite
all of my colleagues to attend. In fact, I encourage them to do so. I
want everyone to get to know Justice Owen and have the opportunity to
hear from her firsthand. This is a very unusual invitation, I know. But
these are unusual times in the Senate for judicial nominations, and
Justice Owen is a particularly important and impressive nominee. I urge
my colleagues to come to the hearing taking place in Dirksen 106 and
see for themselves what an extraordinary person and jurist she is.
We are having difficulty with the President's judicial nominees.
Every one of these circuit nominees is being contested, some more than
others, but all of them are quite rabidly being contested. Miguel
Estrada is a perfect illustration of someone who is totally competent,
totally equipped to do the job, honest, decent, has earned his stripes,
has the highest rating from the American Bar Association, the gold
standard, according to our colleagues on the other side. Yet he is
being filibustered here now in the fifth or sixth week.
We have a cloture vote today. I hope my colleagues will consider
this. I hope we can get some of the more clear thinking colleagues on
the other side to start voting for Mr. Estrada, to start voting for
cloture, so we can end this outrageous debate and put a qualified
person on the court. Let's not hide behind a fishing expedition to get
documents they know no self-respecting administration is going to give
to them, and using that as a basic shield to say they are not doing
something unjust to Miguel Estrada. They are being very unjust, very
unfair. It is not right. We ought to stop it.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. LOTT. Let me take this opportunity, first, to express my
appreciation and the appreciation of the Senate for the outstanding
work that is being done by Senator Hatch as chairman of the Judiciary
Committee. That is a tough job. It always has been. It seems to be
getting tougher with every passing Congress. I know from personal
experience during my tenure as the Republican Leader, both in the
majority and the minority, of the diligent work and good work that has
been done by Senator Hatch to move judicial nominations through the
process.
Quite often, it was very difficult in the committee and on the floor.
There have been accusations that, perhaps, he had unfairly delayed
judges in the past. But I can tell you this: My knowledge was, and
memory is, that he worked very hard to move a lot of judges, several of
whom were highly controversial but were eventually confirmed anyway.
Yes, at the end of the last term some judicial nominees of the
Clinton administration were not completed, but if you compare the
number that were left over to similar situations in the past, it was a
smaller number. When you look at the number of judges that have been
confirmed under the stewardship and leadership of Senator Hatch, it has
to be a record in terms of overall numbers compared with previous
chairmen and previous administrations.
I will talk more about specifics, but while Senator Hatch is here I
wanted to recognize the untiring and patient and effective efforts of
the Senator from Utah on this very worthwhile effort.
Mr. HATCH. Will the Senator yield?
Mr. LOTT. I am happy to yield.
Mr. HATCH. I thank my dear colleague for those kind remarks. As he
knows, there have been some on our side that did not want hardly any of
the Clinton judges, especially the more liberal ones, some of whom have
gone to circuit court of appeals.
Mr. LOTT. If the Senator will allow me to interject, I remember the
Senator from Utah received some criticism from this side of the aisle,
and so did I, as we tried to move some of these judges through the
process. We may have voted against them, which I did in at least a
couple of instances, but I thought they deserved a vote. And we made
sure that those votes took place.
Mr. HATCH. We did that.
I thank my colleague because as the leader he helped me to do the job
for the Clinton administration. The President deserved the best we
could do. Do we get everything done? No one has ever gotten everything
done at the end of anyone's administration.
He is right. Our record was much superior to when the Democrats
controlled the committee.
I thank my colleague.
Mr. LOTT. I again thank Senator Hatch for the effort. I remember even
last year at one point I think we had approximately 70 judges on the
calendar, a large number, and there was disagreement about how to
proceed. There was an indication we would have to have a recorded vote
on every one of them, even though many of them could be moved on a
voice vote with no problem. It looked like we were not going to be able
to move them, but Senator Daschle and I kept talking about them and
kept working on it, and we began to move them in blocks. We finished
the process and we had moved, I think, almost all of them, if not all
of them. That was an example of how there can be cooperation in this
very important area of confirmation of judges.
Mr. HATCH. Will the Senator yield?
Mr. LOTT. I am happy to yield.
Mr. HATCH. I ask the Senator on our side, when he concludes, Senator
Kennedy has 2 minutes. We yielded our time.
Mr. LOTT. I will be happy to yield to the Senator from Massachusetts
when I have finished my remarks.
Mr. LOTT. Let me talk briefly about the situation we find ourselves
in, specifically, the nomination of Miguel Estrada to be a DC Circuit
Court of Appeals Judge.
I made a brief speech about a month ago saying I thought this was a
highly qualified candidate, one who had lived the American dream,
having been born in Honduras, coming here when he was 17, and
highlighting the phenomenal life he has lived. I thought it was a
matter we would do pro forma. I assumed we would have some debate and
some disagreement, but since he is a great nominee, I thought he would
be confirmed a month ago or more. But here we are still.
I will not go back and recount all of his qualifications. All the
Senators know, and most of America knows now, Miguel Estrada is
certainly qualified to be a circuit court of appeals judge. He is
qualified by education. He went to some of the best schools in America
where he was Phi Beta Kappa, a Magna Cum Laude graduate, editor of the
Harvard Law Review at that citadel of great conservative legal
thinking. Now, he is accused of being conservative; a committed
conservative, despite his broad background. He was editor of the
Harvard Law Review, if you will. So by education he is qualified.
There are some points and comments from the Federalist Papers, a
couple of considerations, that you should look into when you consider a
judge. One is whether or not they are fit in the area of character.
This is a man that has lived an exemplary life. There is no allegation
of impropriety, no allegation of ethical misconduct. None whatsoever.
So by education, by character, by ethics, and by experience he is an
incredible nominee.
Some say he has not been a lower court judge. That is not always the
criteria. We have a lot of people who have gone to the circuit court of
appeals, even the Supreme Court, without having earlier been a judge in
another court. But he has been involved by working with the Federal
judiciary, and by serving as an Assistant to the Solicitor General. He
has argued 15 cases before the Supreme Court. I have only been able to
witness one case where I sat in the audience and listened to the snail
darter case before
[[Page S3677]]
the Supreme Court. Listening to the arguments in that one case was
enough for me. I left and never returned. But surely, clearly, everyone
in this body knows this man is qualified to be a judge on the circuit
court of appeals.
So what is the problem? What are they saying?
There is the suggestion that maybe he has a certain philosophy or a
certain ideology, and that is a disqualification. If that were a
disqualification, there are many judges I voted on during the Clinton
years and at other points during my service in this chamber whom I
would have voted against. I voted for Justice Ruth Bader Ginsburg even
though I didn't agree with her philosophy and knew I probably wouldn't
agree with a lot of her decisions, but she was qualified. She was the
President's choice.
I think the burden is on the Senate to show why we should not confirm
a nominee if they are qualified, have the proper experience, and don't
have ethical problems. She met those criteria. I voted for her.
What is the problem here? Some Senators want more questions asked?
Alright, that is a legitimate point. It is part of the advice and
consent role of the Senate. Let's hear what the nominees have to say.
He had a long hearing before the Judiciary Committee. Every question
in the world that could be thought of was asked of this nominee. He was
asked hypothetical cases to which I personally would not respond. I
thought that on a lot of things he was asked, he was very careful in
how he responded. You don't want to prejudice your decision. You don't
want to pass judgment on a Supreme Court decision on which your future
decisions as a judge may be based. The number one factor for the Senate
to keep in mind on this point, however, is that he has offered to meet
with any Senator personally who wants to meet with him.
Secondly, Senators on both sides have been told if you want to ask
more questions, then submit the questions, and he will answer the
questions.
Finally, even a day or so ago, Senator Frist--against some advice
that perhaps this pattern should not be started--said Mr. Estrada would
be willing to go back to the Judiciary Committee so that interested
Senators could ask him some more questions, with an understanding he
would get a vote. Unfortunately, that offer was turned down, too. They
say they want to ask him more questions, but when they are given a
chance to meet with the nominee or a chance to ask more questions, they
don't ask them. When we say he is willing to go back for another
hearing under these circumstances--no, they don't want that either.
What do they say they want? They want internal memos from the time that
he was working as an Assistant to the Solicitor General.
I believe that maybe something can be worked out on that. But you
cannot set that precedent. Let me tell you why. If all these internal
memos are made public in this instance, I guarantee future young
attorneys in the Solicitor's Office, they will not be giving honest
advice. No, no, they will pull their punches because they will know,
anything I say in this written document may someday be used against me
being confirmed as a Federal judge or in some other way. So this is not
an insignificant request.
Should we try to find a way to work it out? I think so. But then I
have been accused in the past of trying to get things done.
If everybody wants to make a statement around here to make their
constituency happy, great. This is the way to do it. The People for the
American Way and other liberal organizations--if Estrada is blocked--
they will be happy. These political reasons are why many Senators on
the other side of the aisle are opposing Mr. Estrada, but I want to
point out that there are some notable exceptions, and I hope there will
be more.
But on our side, we are able to say: This is an Hispanic nominee, and
our core constituency groups are going to be happy. Republicans are
happy, with us duking it out for this nominee to be on the Circuit
Court of Appeals. Many will say that they are taking a stand, which is
great.
How great is it when he is not confirmed? That is the goal here. I am
not interested in blaming somebody or appeasing someone on our side.
This man is qualified. We have vacancies on this court that should be
filled. It is irresponsible for us not to find a way to work this out
and get this nominee on the court.
So I say a pox on everybody's house if we are just trying to find a
way to score political points with this man's life on hold while we do
this thing that we are doing here. I really do think we are setting a
dangerous precedent here, one we did not set in the past. We have not
filibustered Federal judicial nominees. It is clearly not in the
Constitution. I think advice and consent means 51 votes, not two-
thirds; not 60--51.
You might say the Constitution doesn't make that clear. In the
Constitution, article II, section 2, when the Framers of the
Constitution were writing this out, when they intended supermajority
votes, they said so. It clearly says in article II, section 2: To make
treaties provided two-thirds of the Senators present concur. They
specify two-thirds. When they said advice and consent, I believe they
intended and expected, unless there were serious problems, that these
nominees to the Federal judiciary would be confirmed with a vote, an
up-or-down vote of 51.
I think what we are doing here is questionable constitutionally. We
have never done this on a district or circuit court nominee before. Now
we are about to do it.
Let me tell you what is scary. It may not be just about nominee
Estrada. Next it is going to be Priscilla Owen. They are going to
filibuster Priscilla Owen, a qualified woman who is a brilliant Supreme
Court Justice in the State of Texas. I am sure they will extend it to
other nominees, as well--maybe Sutton, maybe Cook, maybe Pickering. Is
this a pattern?
Who in this room, and outside this room, believes that this tit-for-
tat will not continue? Do they think that once we, Heaven forbid, ever
have another Democrat President, that Republicans are not going to
return the favor? We are going to filibuster them.
We have to stop this. I think we, the leaders, the Republicans, the
Democrats, past and present, have to assume responsibility for how this
has continued to escalate.
Did we do some things during the Clinton years with judges that we
should not have done? Yes. But did we take up the cause and try to do
the right thing on many occasions? Yes. That is why I am here today,
because I do believe I have been a part of the solution and part of the
problem in the past. I acknowledge it. But when I was the Majority
Leader, I called up nominations that were controversial.
I remember on one occasion we did have a threatened filibuster and a
cloture vote which was defeated. I made a speech standing right there
saying: My colleagues, we don't want to do this. This was a judge
nominated by President Clinton, but really it was a judge whom Orrin
Hatch recommended. His name was Brian Theodore Stewart. Unfortunately,
though, cloture was defeated. So we started talking about that, and
cooler heads prevailed. Shortly thereafter, we confirmed this judge.
That was the only time we came close, during the past 7 years, to
having a filibuster on a judge. We got right up to it, but we didn't do
it, because we knew we couldn't do it and that it was wrong. So,
fortunately we backed away from it.
In terms of what was done in the past, again, I resisted filibusters.
I didn't want to have filibusters, even though I voted against Judges
Paez and Berzon on their up-or-down confirmation votes. But Senator
Hatch and I took a lot of grief. We said, no, they have come out of
committee, they deserve an up-or-down vote. They got the vote, and they
were confirmed. They each got an up-or-down vote, not a filibuster.
Some people thought they should have been filibustered. I didn't think
they should have been, and they weren't.
My colleagues, I ask us here today: Where do we go from here? What is
next?
The argument can be made that you filibuster a lot of different ways.
You don't let them out of committee; I know about that approach. The
last Congress, I know two judges who were defeated on a straight party-
line vote in the Judiciary Committee. They were not allowed to come to
the floor to have a vote, and I believe the Constitution requires they
should come here
[[Page S3678]]
and have a vote, not be killed by 11 Senators in the Judiciary
Committee, or 10, or whatever the number may be.
So, I accept part of the blame. I acknowledge that Republicans have
not always handled judges in the right way. But I ask the question
again, what next? We are going to kill them in committee? We are going
to kill them by filibuster? This is wrong, my colleagues. We should not
do this.
We are starting down a trail that is unfair, and it is going to come
back to haunt this institution, haunt both parties, and damage the
lives of innocent men and women.
I urge my colleagues, find a way to move this judicial nominee,
Miguel Estrada. He deserves better. He should be confirmed.
Some people say: Wait, if we don't stop him now, he may be on the
Supreme Court. Well let's test him. Let's confirm him. Let's see how he
does. We might be surprised. We might even be disappointed. I have been
surprised at times. I voted for a couple of Supreme Court Justices and
wished I could take the vote back because when they got there, they
were not what I thought they were going to be. Men and women can do
surprising things when they become Federal judges for life.
So I just felt a need to come down and recall some of the things that
have happened, admit some of the mistakes, try to sober this
institution up. This is a great institution that does pay attention to
precedents. It does, sometimes, start in the wrong direction, but most
of the time we pull ourselves back from the brink; we find a way to get
it done. I hope and I certainly feel down deep we are going to find a
way to not set this precedent and not defeat this qualified nominee
with a filibuster.
I yield the floor.
Mr. KENNEDY. Mr. President, I want to make a brief response to the
points made by our colleagues on the floor and in the press during the
past week.
It is not true that majority rule is the only rule in our country.
The purpose of the great checks and balances under the Constitution is
to protect the country from the tyranny of the majority. As far as
shutting off debate in the Senate is concerned, majority rule has not
been the rule since 1806. Even in our presidential elections, majority
rule is not the rule, or we would have a different President today.
There is nothing even arguably unconstitutional about the Senate Rule
providing for unlimited debate unless and until 60 Senators vote to cut
off debate. The same Constitution which gave the Senate the power of
advice and consent gave the Senate the power to adopt its own rules for
the exercise of all of its powers, including the rules for exercising
our advice and consent power.
The Constitution does not say that judges shall be appointed by the
President as he wishes. It says that they shall be appointed by the
President with the advice and consent of the Senate. We are not potted
plants decorating one end of Pennsylvania Avenue. We play a very
special role under the Constitution. The Founders gave us numerous
powers to balance and moderate the powers of the President. They gave
us longer terms than the President, and staggered our terms, so we
would be less subject to the passions of the time. Clearly, we have the
power and the responsibility to oppose the President when he refuses to
provide us with the only documentation that can tell us what kind of
person he has nominated for a lifetime appointment on the Nation's
second highest court.
The PRESIDING OFFICER. Under the previous order, the Senate will now
proceed to the consideration of Executive Calendar No. 36, which the
clerk will report.
____________________