[Congressional Record Volume 149, Number 43 (Tuesday, March 18, 2003)]
[Senate]
[Pages S3826-S3834]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The PRESIDING OFFICER. The hour of noon having arrived, the Senate 
will go into executive session and resume consideration of Executive 
Calendar No. 21.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, as you all know, we are going to vote on 
the Estrada nomination one more time with regard to cloture. The fact 
of the matter is, I am very concerned about this because I think the 
Senate is placing itself into a serious procedural set of problems that 
literally could come back to haunt the Senate for many years to come. 
You see, this is the first filibuster in history of a circuit court of 
appeals nomination.
  It is a shame that there has to be a filibuster against one of the 
leading Hispanic legal thinkers in America--especially since I don't 
believe there has been a glove laid on Miguel Estrada from the 
beginning of this debate right up until today.

[[Page S3827]]

  Everybody knows this man is highly qualified, having received the 
highest rating from the American Bar Association of unanimously well-
qualified. Very few judgeship nominees receive that type of unanimously 
well-qualified rating from the American Bar Association.
  Miguel Estrada has lived an American dream life. He came here from 
Honduras at age 17. He hardly understood English, and taught himself 
English. He graduated from high school and went on to Columbia 
University where he graduated magna cum laude. He then went on to 
Harvard Law School and graduated magna cum laude. He was editor of the 
Law Review at Harvard. Miguel Estrada became a law clerk to Judge 
Amalya Kearse on the Second Circuit Court of Appeals, one of the most 
coveted spots for young law graduates who are of exceptional ability, 
and then he became a law clerk for Justice Anthony Kennedy on the U.S. 
Supreme Court. Certainly, one of the most coveted jobs any young law 
graduate can have is to clerk for a Justice on the U.S. Supreme Court.
  Miguel Estrada became a prosecutor in the Manhattan office and tried 
appeals there for the prosecutor's office. He went on to become a 
member of the Solicitor General's Office as Assistant Solicitor 
General. He worked there for 5 years--4 years for the Clinton 
administration, 1 year for the Bush administration--where, according to 
performance reviews, he was given the highest ratings one could 
possibly receive from his superiors and where he argued cases before 
the Supreme Court. This man has argued 15 cases before the U.S. Supreme 
Court, winning 10 of them. Most attorneys never have an opportunity to 
argue before the Supreme Court, let alone have the experience Miguel 
Estrada had.
  He went through one of the most detailed hearings on record before 
the Senate Judiciary Committee last September, conducted by the 
distinguished Senator from New York, Mr. Schumer. My friends on the 
other side have said this hearing was conducted fairly; it was a decent 
hearing. They had every opportunity to ask any questions they wanted. 
If they wanted to go longer, they could have gone longer. They did not. 
Afterwards everyone had the opportunity to file written questions. Only 
two Democrats filed written questions: Senator Kennedy of Massachusetts 
and Senator Durbin of Illinois.
  Now we find ourselves, because the Republicans have taken control of 
the Senate, with a nominee before the Senate who probably would never 
have gotten here had it been left up to my colleagues on the other side 
and whose nomination now hangs in the balance because of a first-time 
filibuster in history against a circuit court of appeals nominee. In 
fact, we have only had one successful filibuster in the history of this 
country against a judicial nominee, and that was Abe Fortas back in 
1968 when it was a bipartisan filibuster; both Republicans and 
Democrats filibustered Fortas. I did not agree with that filibuster 
then. I do not think it was right then, and I certainly do not agree 
with the filibuster now. I think it is very dangerous.
  More importantly, if we continue to filibuster this nominee, it will 
show once and for all that the Senate is broken with regard to 
Executive Calendar nominees and, in particular, judicial nominees. If 
we are going to filibuster nominees we do not care for on either side 
of this august room, if the Democrats received a Democrat President and 
we filibuster his nominee because our nominee has been filibustered, 
then I think this system will be totally broken, will break down, and 
be very hard to repair.

  I hope my colleagues on the other side will think through what they 
are doing. I hope there are a number of clear-thinking people on the 
other side who will realize that this is a dangerous procedure to do. 
It flies in the face of the Constitution because the President has the 
nomination power, and he has the appointment power, and we have the 
advise and consent power. But advise and consent means an up-or-down 
vote. It means once a person comes to the floor, there comes a time 
when debate has to end and there should be an up-or-down vote. In this 
case, that vote has been prohibited by our colleagues on the other side 
through this mechanism of a filibuster for the first time in history.
  I believe what they are doing is blatantly unconstitutional because 
by requiring 60 votes to have an Executive Calendar nominee pass 
through the Senate, we are diminishing the executive branch of 
Government and the judicial branch of Government vis-a-vis the 
legislative branch of Government. All three are supposed to be coequal 
branches of Government.
  This practice is dangerous. In my view, it is unconstitutional. We 
have to face this one way or the other, and all because my colleagues 
on the other side claim they do not know enough about Miguel Estrada, 
after all of these experiences, all of this knowledge we have about 
him, after one of the longest hearings on record in the history of 
circuit court of appeals nominations. In addition they are hiding 
behind a red herring, a false demand to go on a fishing expedition 
through all of the appeals certiorari and amicus curiae recommendations 
that Miguel Estrada worked on while at the Solicitor General's Office 
for 5 years. That has never been allowed before, it should never be 
allowed, and, frankly, I do not believe any self-respecting 
administration will ever allow that type of a fishing expedition into 
the most confidential, privileged papers in the Justice Department 
itself.
  Seven former living Solicitors General, four of whom are Democrats, 
three of whom worked with Miguel Estrada as Democrat Solicitors General 
in the Clinton administration, have said it is highly inadvisable to 
allow this type of a demand by the Democrats to be approved by anybody 
because it would certainly damage the information on which so many of 
our Solicitors General have come to rely.
  Yet this day people are saying they just do not know enough about 
this man. There has hardly been a nominee to any circuit court of 
appeals in this country in history who is more well known than Miguel 
Estrada.
  The problem really comes down to this: He is conservative, and I 
think my colleagues on the other side believe he is pro-life. I 
personally do not know what he is with regard to the abortion issue, 
but I can tell you this, Mr. President: I do believe he is basically a 
good, strong conservative but a conservative who worked in the Clinton 
Justice Department for 4 solid years with the highest recommendations 
of his supervisors while he was at the Clinton Justice Department in 
the Solicitor General's Office. So this phony red herring issue is 
exactly that.
  If we continue to filibuster this man, I believe we will have a 
Senate that is broken, a system that is broken, and we are going to 
have to do whatever we have to do to see that Executive Calendar 
nominees get up-or-down votes when they come before the Senate. 
Presidents of the United States deserve that consideration and they 
should have it.
  If one reads the advise and consent clause in article II of the 
Constitution, just a few lines above it, it was made clear that you can 
have supermajority votes, and I think there are seven mentioned in the 
Constitution. But just a few lines above the advise and consent clause 
is a requisite two-thirds vote for ratification of treaties. If the 
Founding Fathers wanted to allow or require supermajority votes with 
regard to the advise and consent clause, they would have said so. They 
did not. The natural conclusion from any constitutional scholar would 
be that we are entitled to an up-or-down vote as the exemplification of 
the advise and consent clause.
  The fact is, that is not being allowed because of a filibuster on the 
other side with the phoniest of excuses that they do not know enough 
about this very well-known young Hispanic man of high quality, high 
ability, with the highest recommendation possible, not only from the 
American Bar Association but from Democrat attorneys as well, such as 
Seth Waxman, for whom I have great affection and respect, a former 
Solicitor General of the United States.
  I hope our colleagues will think it through and we vote for cloture 
so we can have an up-or-down vote on Mr. Estrada, and if they do not, 
we will have to see what happens in the future.
  With this third cloture vote, we will have reached the most cloture 
votes ever given or ever required in the history of the Senate for an 
executive calendar nominee. Should cloture not be invoked, we will 
still go to further cloture votes, as we should. We need to

[[Page S3828]]

fight for this nominee because he deserves the right to sit on the 
Circuit Court of Appeals for the District of Columbia.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Mr. President, with respect to this issue of Mr. Estrada, 
if those who come to the floor to make speeches about Mr. Estrada are 
trying to put together a puzzle for us, they are missing about six or 
eight key pieces. Let me use some information and some time to describe 
what those pieces are.
  I do not want anyone to tell me that we have folks in this Chamber 
who do not support the President and the process by which we nominate 
and confirm judges. I think we have voted on 111 Federal judges in the 
Senate and I believe I voted for 110 of them. Now, I am a little weary 
of people coming to the floor and misstating the facts. They say, this 
is the first filibuster we have ever had. Not true. That is just not 
the case. Mr. Paez waited 4 years in the Senate, under the leadership 
of those who are now concerned about moving Mr. Estrada through this 
Chamber, and in order to get Mr. Paez through this Chamber there had to 
be a cloture vote. So I am a little weary of these stories about 
cloture.
  We had a cloture vote on Mr. Paez. Why? Because that was required in 
order to move his nomination, which waited 4 years.
  Mr. HATCH. Will the Senator yield on that?
  Mr. DORGAN. I am happy to yield to the Senator on his time, if that 
is all right with the Senator.
  Mr. HATCH. Yes. Is the Senator aware that there has never been a 
cloture vote to prevent somebody from having an up-or-down vote for the 
circuit court of appeals or the district court in this country, and 
further, no one has ever been stopped by a cloture vote in this country 
prior to this other than Abe Fortas?
  Further, let me ask the Senator this additional question: If the 
Senator is referring to me as misstating the facts, I was the one who 
put Paez through. I was the one who put Berzon through. I was the one 
who put through a whole raft of them who were criticized on our side. I 
hope the Senator is not referring to me on this matter.
  Does the Senator know of anyone, other than Abe Fortas, who was 
stopped by a filibuster who did not, once they got to the floor, have 
an up-or-down vote?
  Mr. DORGAN. Mr. President, the Senator asks an interesting and a good 
question. He talks about people who got to the floor of the Senate. I 
could bring out a chart that shows candidate after candidate for the 
circuit court who never got a hearing in the committee, not one hearing 
on the committee, let alone a vote in the committee or a vote on the 
floor.
  Mr. HATCH. Will the Senator yield on that?
  Mr. DORGAN. Let me continue my statement. Let me say this with 
respect to cloture votes and a filibuster: Mr. Paez waited 4 years. The 
only way he got to the floor for a vote was with a cloture vote. That 
is called a filibuster, a cloture vote to break a filibuster.
  Let me say this about Mr. Estrada: Having voted for every Federal 
judge but one who has been nominated by President Bush, I am prepared 
to have a vote on Mr. Estrada as soon as Mr. Estrada and all of those 
who support him say to this administration and to this candidate for a 
lifetime appointment, answer the questions. I would say to the Senator 
from Utah--on the day he had Mr. Estrada's hearing, he also had a 
hearing for another candidate for a judgeship. His name is Judge 
Hovland. He is in the Western District of North Dakota, a Republican, 
someone I supported strongly. I came that day and spoke for him. I say 
to the Senator from Utah, on the same day Mr. Hovland appeared before 
the committee, Mr. Estrada appeared before the committee. Does the 
Senator know that Mr. Hovland answered the very questions Mr. Estrada 
would not? Does the Senator know that Mr. Estrada refused to answer the 
questions Mr. Hovland answered?

  Mr. HATCH. Will the Senator yield?
  Mr. DORGAN. I ask the question of the Senator: Why is that the case? 
And I would simply say this: As soon as Mr. Estrada answers the 
questions and provides the information, I believe there ought to be 100 
votes for cloture and we ought to have an up-or-down vote on Mr. 
Estrada. Until that time, no one who aspires to a lifetime on the 
Federal bench ought to be able to say to this Senate we are going to 
withhold information that has been requested.
  I do not think the Senator from Utah should want that. I do not want 
it, and at least speaking as one Senator, I will not allow it. I will 
not vote for cloture until Mr. Estrada provides the information that 
has been requested of him.
  I am happy to yield on the time of the Senator.
  Mr. HATCH. I think the Senator has a splendid record with regard to 
voting for Federal judges, and I personally appreciate that.
  Is the Senator aware that no true filibuster has ever succeeded 
against any Federal court nominee, other than Abe Fortas, in the 
history--
  Mr. DORGAN. Well, I say--
  Mr. HATCH. Let me ask my full question--of this country?
  Secondly, is the Senator aware that Mr. Estrada, and the White House, 
have not only offered to come up and speak personally and answer every 
question of any Senator, they have offered to answer any questions in 
writing. He has answered all of those questions in writing for this 
body. And is the Senator aware that we have also offered to even have 
another day of hearing, as long as we get an up-or-down vote, where any 
Senator who wants to can ask any question he wants to on the committee?
  I would even go broader than that. I invite any Senator on the 
Democrat side who wants to ask any question to come to the committee 
and ask him. But we would want a vote certain in order to do that. No 
candidate nominated in the history of this country has ever made that 
offer, and I am just saying I think he has answered the questions and I 
think the Senator just is not aware of it.
  Mr. DORGAN. I am happy to yield to the Senator on his time. The 
Senator from Utah has had a generous amount of time on the floor of the 
Senate to make his case on many occasions, and he makes his case in a 
very persuasive way for those on his side of the aisle, perhaps. But 
having voted for all but one of the nominees sent by this President, I 
am a little weary of hearing anybody stand up and say those of us who 
vote against cloture are somehow obstructing at this point because the 
Senator knows full well why cloture has not been achieved. The answer 
is very simple. We have asked for only two things of this nominee: One, 
answer the questions that were put to him in that hearing.
  Mr. HATCH. Which he has done.
  Mr. DORGAN. Well, that is not the case. That has not been done. But 
No. 2, release the information that is available with respect to his 
service at the Justice Department for the Solicitor General's Office.
  The fact is, when those conditions are met, I will be on the floor 
saying, let us have a final vote on Mr. Estrada. If those conditions 
are not met, neither the Senator nor anyone else in the Senate ought to 
demand that we give up our rights and opportunities to ask questions 
for those who seek a lifetime appointment to the Federal bench.
  Mr. HATCH. Will the Senator yield one more time?
  Mr. DORGAN. I say this, I am a little weary of the campaign that is 
going on around the country, letters to the editor, and talk shows, and 
all the rest that forget about two, three, or four key pieces to the 
puzzle, and the key pieces to the puzzle are this: This President has a 
right to nominate candidates to Federal judgeships. He has done two in 
North Dakota, both Republicans, both wonderful people. I supported them 
strongly. They are both now on the Federal bench. Our country is better 
because of it. I have voted for other Federal judges whose philosophy I 
disagree with because I think by and large they were qualified to serve 
on the Federal bench, and I have voted for all but one of those 
nominees sent by President Bush.
  Let me come back to this point. On the very day the Senator from Utah 
presided over a hearing in the Judiciary Committee, Judge Hovland from 
North Dakota answered questions that Mr. Estrada did not answer. I do 
not understand why a committee chairman is not the first one on the 
floor of the

[[Page S3829]]

Senate to say we ought not move this until we get all the information 
we requested.
  I am not someone who will stand in the way of a final vote on Mr. 
Estrada because of philosophical or other concerns. I will not do that. 
But as long as I am in the Senate with Republican or Democratic 
candidates for the Federal bench, I will demand they answer the 
questions put to them. In this case, Mr. Estrada has not done that.
  One last time I will yield on your time.
  Mr. HATCH. He has answered the questions in writing as well as orally 
in a very lengthy hearing. Is the Senator aware at any time in 
history--I am sure he is not--where a fishing expedition has been 
allowed into the Solicitor General's confidential privileged memoranda, 
on all appeals, certiorari, and amicus curiae recommendations? That has 
never happened in the history of this country.
  I have offered to the side of the distinguished Senator to make 
available, if there are specific questions, I would go to the White 
House and see what I can do. But never has there ever been allowed a 
fishing expedition into all of these very privileged documents without 
some reason for authorizing it, and there is no reason offered by my 
colleagues on your side.
  Mr. DORGAN. Reclaiming my time, a fishing expedition is not at all 
what this is about. The Senator from Utah knows that. I have listened 
to him at great length and voted with him on almost all judgeships. The 
Senator from Utah ought to demand what I demand and others demand: 
Candidates who aspire to a lifetime appointment to the bench ought to 
respond to the request for information from this Congress. That has not 
happened in the case. You can assert it until you are blue in the face. 
It is not the case that the information has been made available. Other 
candidates made it available. Mr. Estrada has not. When he does, I 
believe he ought to get his vote. Until he does, he should not get that 
vote.
  I am weary that those who support this President's nominees almost 
universally are told we are somehow obstructing. That is not the case. 
Especially in circumstances where there were a good many fine people in 
this country who were nominated for the Federal judgeships, including 
circuit courts, who never got a hearing before the committee, I didn't 
hear anyone on the floor of the Senate, especially from that side, 
talking about it at great length. These are good men and women. They 
never got a hearing. This is not payback as far as I am concerned.
  Mr. Estrada should get his vote as soon as he complies with the 
request for information from the Senate, which he has not done. He can 
do it this afternoon, and we can have a vote tomorrow, as far as I am 
concerned.
  Mr. FRIST. Mr. President, the Senator from Massachusetts earlier made 
comments as to the Solicitor General memoranda requested for Miguel 
Estrada that are not well informed and have been refuted by a letter 
from the Department of Justice, sent to me, dated today, March 18, 
2003. I ask unanimous consent that this letter be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            Department of Justice,


                                Office of Legislative Affairs,

                                   Washington, DC, March 18, 2003.
     Hon. Bill Frist,
     Majority Leader, U.S. Senate, Washington, DC.
       Dear Mr. Leader: I write to correct a significant and 
     recurring misstatement of fact regarding the nomination of 
     Miguel Estrada, which has been repeated several times on the 
     Senate floor in the past several weeks. As noted below, 
     several Democrat Senators have asserted or implied their 
     belief that the White House and the Department of Justice 
     reviewed Mr. Estrada's appeal, certiorari and amicus 
     recommendations authored during his tenure in the Bush and 
     Clinton Solicitor General's Offices before deciding whether 
     to nominate him to the D.C. Circuit, and that the decision 
     not to disclose these memoranda is based on the 
     Administration's knowledge of their contents. Nothing could 
     be further from the truth. Despite the fact that counsel to 
     the President Alberto Gonzales explained in a February 24th 
     letter to Senator Schumer that ``[n]o one in the Executive 
     Branch has reviewed these memoranda since President Bush took 
     office in January 2001,'' Senators continue to repeat this 
     allegation, which warrants this additional response. An 
     identical letter will be sent to Minority Leader Daschle.
       Because the professional opinions of attorneys in the 
     Solicitor General's office are--and always have been--
     confidential, no one in the White House, the Department of 
     Justice or anywhere else in the Executive Branch reviewed 
     these privileged documents--not before Mr. Estrada's 
     nomination on May 9, 2001, and not since then. Unfortunately, 
     the mistaken notion that the Administration has reviewed Mr. 
     Estrada's memoranda has grown rapidly from speculation to 
     rumor to purported fact. In order that your colleagues might 
     have the most accurate information available during your 
     deliberations on Mr. Estrada's nomination, we wish to point 
     out specific misstatements and erroneous assumptions on this 
     issue and to set the record straight.
       In a February 12, 2003, floor speech, Senator Leahy 
     speculated that the Administration knows what is in Mr. 
     Estrada's confidential memoranda: ``Regarding the document 
     request related to Mr. Estrada's nomination, he has told both 
     Senator Hatch and myself, as well as several Members of the 
     Senate, that he is perfectly willing to show us his writings 
     and respond to them and answer questions about them, but he 
     has been told by the administration that he cannot; the 
     administration, however, would review those writings. They 
     are the only ones who know whether this direct evidence of 
     his views, the interpretation of law, is accurate or 
     misleading--they are the only ones who have access to it 
     and they say, basically: Trust us.'' Congressional Record, 
     Feb. 12, 2003, at S2251. Senator Durbin elevated the 
     speculation to a conclusion on February 26: ``Mr. Gonzales 
     in the White House said, no, we will not consider 
     producing anything. It leads members to conclude on this 
     side of the aisle that there is something very damaging in 
     these materials that they do not want disclosed. It is the 
     only conclusion you can draw .  .  . this White House, 
     tentative and concerned about whether or not Miguel 
     Estrada has said some things that could jeopardize his 
     nomination, refuses to disclose.'' Congressional Record, 
     Feb. 26, 2003, at S2756.
       Several days later, Senator Schumer repeated the mistaken 
     assumption that the Administration has reviewed Mr. Estrada's 
     memoranda: ``Why won't Mr. Estrada or the administration--
     which is his sponsor, his mentor--in this particular 
     situation why won't he give up these documents? I will tell 
     you what most people think when they hear about it. And I 
     have talked to my constituents, the few who ask me about 
     this. They say he is hiding something. Do I know he is hiding 
     something. Do I know he is hiding something? Absolutely not. 
     I have not seen the documents. But I tell you one thing: The 
     great lengths that the administration and my colleagues on 
     the other side have gone to not give up these documents makes 
     one suspect there is something there they do not want people 
     to see. So the documents are crucial.'' Congressional Record, 
     Mar. 4, 2003, at S3064.
       Senator Kennedy extended the error when he suggested that 
     the Administration reviewed Mr. Estrada's memoranda in the 
     selection and vetting process prior to nomination: ``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.'' 
     Congressional Record, Mar. 11, 2003, at S 3434.
       In a March 13, 2003, floor speech, Senator Leahy completes 
     the cycle of misstatements when he asserted that the 
     Administration reviewed Mr. Estrada's memoranda in deciding 
     whether to nominate Mr. Estrada.
       ``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 now 
     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.
       ``. . . 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 his high office based on 
     these views.'' Congressional Record, Mar. 13, 2003, at S3671.
       These assertions are simply wrong. First, each statement is 
     based on the fundamentally erroneous premise that officials 
     in this Administration have seen Mr. Estrada's memoranda. Let 
     me assure you unequivocally--and permanently put to rest any 
     misunderstanding--that at no time has this Department of 
     Justice or the White House ever reviewed the memoranda that 
     Miguel Estrada wrote during his tenure in the Solicitor 
     General's office.
       Second, the statements above mistakenly suggest that the 
     Department of Justice has declined to release Mr. Estrada's 
     memoranda

[[Page S3830]]

     because of concerns over their content. In reality, as we 
     have explained, the Department has chosen to keep these 
     documents confidential for the reason articulated by all 
     seven living former Solicitors General--including four 
     Democrats: ``Any attempt to intrude into the Office's highly 
     priveliged deliberations would come at the cost of the 
     Solicitor General's ability to defend vigorously the United 
     States' litigation interests.''
       Thank you for allowing me to set the record straight on 
     this important point. I appreciate the opportunity to assure 
     you and your colleagues that we in the Administration have 
     never examined Miguel Estrada's confidential memoranda. I 
     hope that by clearing up this misunderstanding, we will have 
     taken an important step toward ending the filibuster of Mr. 
     Estrada--the first filibuster of a lower-court nominee in 
     American history--and allow the bipartisan majority of 
     Senators who support Mr. Estrada to vote on his confirmation.
           Sincerely,
                                                   Jamie E. Brown,
                                Acting Assistant Attorney General.

  Mr. FRIST. Mr. President, today's third cloture vote on Miguel 
Estrada's confirmation breaks through a new barrier--not the barrier 
that some may have hoped for with this exceptional nominee.
  It is unprecedented that a circuit court nominee be subjected to a 
third cloture vote. A no vote today remains unfair to this nominee who 
has been pending over 700 days, it is unfair to the bipartisan majority 
that wants to end this debate and have a vote, and it is unfair to the 
President, who deserves better from this Senate.
  Eighteen times the majority has requested unanimous consent to vote 
on the Estrada confirmation. Eighteen requests have been denied, even 
though Senators have debated this confirmation for over 100 hours. 
Twice before today, a bipartisan majority has likewise requested to end 
debate by voting for cloture.
  Others, too, have expressed their desire that we end this debate. 
Over 113 editorials in 31 States have called for an end to this 
filibuster and expressed their support for this nominee. Only 11 have 
expressed the opposite.
  The filibuster to this nomination continues despite the unprecedented 
accommodations that have been offered:
  Repeatedly, the White House has offered the nominee up to answer more 
written questions; only one Senator took them up on it.
  Repeatedly, the White House has offered the nominee up to meet 
privately to answer more questions; only one Senator took them up on 
it.
  I have offered the nominee up for a second hearing. The offer was 
rejected.
  Now that the minority has stopped saying that Mr. Estrada is 
unresponsive they now focus on their unlimited request for confidential 
and privileged memoranda. They do this even though all living past 
Solicitors General, including four Democrats, have opined that this 
request is improper.
  We will not give up. This nominee will be confirmed and we will keep 
on voting if necessary. The minority's position on this is 
unreasonable. I hope they will be as accommodating as we have been.
  Mr. HATCH. Mr. President, it is disturbing to me that much of the 
debate regarding the nomination of Miguel Estrada to the U.S. Court of 
Appeals for the D.C. Circuit has focused on previous nominations 
considered by this Senate. In particular, the nominations of Judge 
Richard Paez and Judge Marsh Berzon, who now sit on the Ninth Circuit 
Court of Appeals, have been raised over and over again by Senators 
opposed to Mr. Estrada.
  The discussion of previous nominations is troubling for a number of 
reasons. First, Judge Paez and Judge Berzon were confirmed by the 
Senate. They were not subjected to a filibuster as is the case for 
Miguel Estrada. Second, on a personal level, it is disappointing to me 
that these two judges should be used as examples of alleged Republican 
obstructionism, when I worked hard for their confirmation, argued 
against delay, and supported their nominations.
  To continue to inject prior nominations into the Estrada debate 
indicates to me that the opposition is more interested in some sort of 
retribution for misperceived wrongs rather than fulfilling the Senate's 
constitutional duty of advice and consent. I have heard it stated on 
the Senate floor, referencing the so-called filibuster of Judge Paez, 
``what goes around comes around.'' I certainly hope that it is not the 
case that the refusal to give a vote to Miguel Estrada is some sort of 
payback.
  The distinguished Minority Leader described the Senate's 
responsibility very well nearly three years ago as we were concluding 
debate on the nominations of Judge Paez and Judge Berzon. He stated on 
March 9, 2000, `` . . . [T]here is a time and a place for us to 
consider any nominee and, once having done so, we need to get on with 
it.''
  I agree with the Democratic leader. We have considered the nomination 
of Mr. Estrada and now we need to get on with the vote--up or down, as 
Senators choose to cast their vote.
  Senator Daschle continued, ``I do not know who is going to be 
President next. I do not know who is going to be in the majority in the 
next Congress. But let's just assume that the roles are reversed . . . 
and we have a Republican President--which I do not think is going to 
happen. Do we want to pay back our colleagues for having made these 
people wait as long as they have? . . . I do not want to hear about 
that in this body. There is going to be no payback. . . . Will we have 
votes and vote against nominees on the basis of whatever we choose? 
Absolutely.''
  So again, as the Democratic leader stated, Senators are free to vote 
against the nominee on the basis of whatever they choose, but let us 
have a vote.
  Now, as Chairman of the Judiciary Committee, I worked hard for the 
ultimate confirmation of Judge Paez and Judge Berzon. Nevertheless, 
there were some significant difficulties with their nominations which 
took time to resolve. I agree that they took too much time. However, 
these nominees did receive a vote, they were confirmed, and they now 
sit on the Ninth Circuit. These two nominees were not filibustered as 
Mr. Estrada is now being filibustered. It is true that cloture motions 
were filed on the nominations. Let me emphasize that it was the 
Republican Leader who filed a cloture petition, so there would be 
limited debate and a vote up or down. Furthermore, those cloture 
motions passed by wide margins, 86-13 in the case of Judge Berzon, and 
85-14 in the case of Judge Paez. The record is clear that a true 
filibuster did not occur with regard to these nominations.
  Following the cloture votes, the Majority Leader, Senator Lott, made 
the following comments: ``As you know, cloture was just invoked on two 
Ninth Circuit judges. I still hope we have not set a precedent. I don't 
believe we have because it was such an overwhelming vote to invoke 
cloture and stop the filibuster. We should not be having filibusters on 
judicial nominations and having to move to cloture. But we had to, and 
it was an overwhelming vote.''
  Senator Leahy's response to the Majority Leader's statement is 
noteworthy. He said: ``I was struck by the comments of the 
distinguished leader in saying we should not have the precedents of 
filibusters and requiring cloture. I commend him for supporting the 
cloture motion and moving this forward so we would not have that 
precedent.''
  As I have said, the confirmations of Judge Paez and Judge Berzon were 
not without delay. There was considerable opposition to their 
nominations. But that delay did not amount to anything sort of a 
filibuster of these nominees.
  The debate on both Judge Paez and Judge Berszon took place on March 
7, 8 and 9 under time agreements. The final day of debate, when they 
were confirmed, was 4\1/2\ hours total. The Republican leadership did 
file cloture to get time agreements and to ensure a final vote on these 
two nominees of President Clinton. I have asked for similar treatment 
for Miguel Estrada--a time agreement and an up or down vote but this 
has been denied repeatedly.

  So the record is clear that this was not a true filibuster. There was 
limited debate with time agreements. Cloture was filed as a floor 
management tool and was overwhelmingly approved. The nominees did 
receive an up or down vote both were confirmed. Let's give Miguel 
Estrada that same courtesy.
  Now with regard to the nominations of Judge Paez and Judge Berzon, I 
do not want to rehash the debate on these nominees, but I do want to 
put their confirmation into some perspective, since my Democratic 
colleagues keep bringing them up.
  Judge Paez's opponents were very concerned about statements he made 
in

[[Page S3831]]

1995, while a sitting federal district judge, regarding two California 
ballot initiatives--Proposition 187 to limit public assistance to 
illegal immigrants, and Proposition 209 to end racial and gender 
preferences in California. Legitimate questions were raised concerning 
whether his comments were consistent with the Judicial Canon governing 
judges' extra-judicial activities. There was genuine concern about 
these remarks on matters that would likely be the subject of 
litigation. Many of my colleagues viewed this as evidence of his 
inability to render fair decisions on these issues.
  A second area of concern regarding Judge Paez involved what some saw 
as his activist views of the judiciary. Judge Paez had stated, ``I 
appreciate the need for courts to act when they must when the issue has 
been generated as a result of the failure of the political process to 
resolve a certain political question. There is no choice but for the 
courts to resolve a question that perhaps ideally and preferably should 
be resolved through the legislative process.'' Now, this statement did 
raise concerns that Judge Paez would use his position to legislate from 
the bench.
  A third issue regarding Judge Paez was his rulings in certain cases. 
In particular, there was legitimate concern over the judge's role in 
two cases related to illegal fundraising during the 1996 presidential 
campaign--those of John Huang and Maria Hsia. You may recall Ms. Hsia 
was associated with fundraising and money laundering through Buddhist 
nuns, while Mr. Huang was associated with illegal campaign fundraising, 
mostly from foreign sources. Judge Paez was assigned to both of these 
cases.
  In the case of John Huang, Judge Paez accepted a very lenient plea 
agreement. Mr. Huang pled guilty to a felony charge of conspiracy to 
violate Federal election law and was sentenced to no jail time. He was 
ordered to pay a $10,000 fine and was required to serve 500 hours of 
community service.
  Many of my colleagues found it suspicious that Judge Paez would be 
assigned to both of these cases. There was criticism about the handling 
of these cases. At a minimum, there was concern about the propriety of 
his involvement in these cases, which pointed back to the Clinton-Gore 
campaign.
  Despite all the concerns regarding the involvement of Judge Paez in 
these cases, my own view was there was no reasonable basis to further 
delay the vote on Judge Paez. I was vigorous in my call for an 
independent prosecutor to investigate all alleged illegalities in the 
1996 campaign. However, I also did not believe Judge Paez was 
implicated and I pressed forward with his nomination. I am asking the 
same treatment for Miguel Estrada--give him a vote.
  There were also questions over Judge Paez's ruling on a Los Angeles 
city ordinance prohibiting aggressive panhandling at specified public 
places and passed in response to the death of a young man who refused 
to give a panhandler 25 cents. Judge Paez found the ordinance 
unconstitutional under the California constitution because the law 
constituted ``content-based discrimination.'' The Supreme Court of 
California, asked by the Ninth Circuit Court of Appeals to rule on the 
holding, held that the Los Angeles ordinance was constitutional and 
valid.
  Another troubling case was a decision issued by Judge Paez in 1997, 
John Doe I v. Unocal, in which he ruled that American companies can be 
held liable for human rights abuses committed by foreign governments or 
overseas companies owned by the foreign governments with which they do 
business. These cases, and others, persuaded many of my colleagues that 
Judge Paez was well out of the mainstream.
  With regard to Judge Berzon, I voted for her confirmation, finding 
her to have the intellect, integrity, and impartiality to serve as a 
Federal judge.
  Those opposed to Judge Berzon pointed out that her entire legal 
experience was in one narrow field--labor law. Her opponents also 
pointed out that she had been very vocal in the expression of her 
political views, with membership and leadership in several 
organizations that many considered activist.
  The fact remains that, regardless of the opposition and careful 
scrutiny of these nominees, both Judge Berzon and Judge Paez each were 
given an up or down vote. In the case of Judge Paez, he was confirmed 
by a vote of 59-39. Judge Berzon was confirmed by a vote of 64-34. 
Miguel Estrada deserves the same courtesy. If Senators are opposed, let 
them vote no. But to refuse a vote is unfair to the nominee, harmful to 
the Senate, and destructive to the notion of an independent judiciary.
  Mr. LEAHY. Mr. President, this is not a day, in my view, when the 
Senate majority should be pressing forward on this divisive matter. Nor 
has anything changed since last Thursday or since March 6 when the 
Republican majority scheduled two earlier cloture votes on this 
nomination. 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 
advise and consent role in this most important process. The White House 
could have long ago helped solve 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 Environmental Protection Agency.
  We have the statement of Attorney General Robert H. Jackson, who 
later became one of our finest Supreme Court Justices, when he wrote an 
Attorney General Opinion in 1941 acknowledging that among the occasions 
when exceptions should be made and executive Department files would be 
produced to the Congress would be confirmations. As Attorney General 
Jackson noted:

       Of course, where the public interest has seemed to justify 
     it, information as to particular situations has been supplied 
     to congressional committees by me and by former Attorneys 
     General. For example, I have taken the position that 
     committees called upon to pass on the confirmation of persons 
     recommended for appointment by the Attorney General would be 
     afforded confidential access to any information that we 
     have--because no candidate's name is submitted without his 
     knowledge and the Department does not intend to submit the 
     name of any person whose entire history will not stand light.

  Senator Durbin noted last week that the administration has poorly 
served this nominee and given Mr. Estrada very bad advice. I agree.
  The Bush administration claimed that no administration had ever 
provided materials like Mr. Estrada's work papers in connection with a 
nomination. We have now demonstrated over and over that precedents 
exist going back over the last 20 years.
  Today, I would like to mention additional examples of similar 
materials that were provided to Congress. On February 1, 1982, the 
Senate Finance Committee held a hearing to consider legislation to deny 
Federal tax-exempt status to private schools practicing racial 
discrimination, after the Reagan administration decided to reverse a 
long-standing policy and grant exemptions to segregationist schools. A 
number of Justice Department memoranda, as well as communications 
between high-level officials, were turned over by the Reagan 
administration to the Senate Finance Committee in connection with the 
hearing, just months after the documents were first written.
  The issues at that hearing reveal that some of the documents turned 
over were much more sensitive than those requested of Mr. Estrada, but 
they were still provided to Congress by the Reagan administration. 
After a long and intense debate in the Reagan Justice Department and 
among high-level Justice and Treasury Department officials and White 
House counsel, on January 8, 1982, the Reagan Justice Department 
announced that it would discontinue the IRS's long-standing policy of 
denying tax-exempt status to racially discriminatory private schools. 
The Justice Department also changed its position in the Bob Jones case 
before the Supreme Court, abandoning its defense of the policy that 
prohibited tax exemptions for discriminatory schools. One of President 
Bush's current circuit court nominees, Carolyn Kuhl, was an aide to 
Attorney General William French Smith at the time and participated in 
urging reversal of the policy.

[[Page S3832]]

  After the Justice Department decision was announced, more than 200 
lawyers and others in the Justice Department's civil rights division 
sent a letter to William Bradford Reynolds, who then headed the civil 
rights division, expressing ``serious concerns'' about the Reagan 
administration's decision that racially discriminatory private schools 
are entitled to tax exemptions. And they questioned the division's 
commitment to vigorously enforce the Nation's civil rights laws.
  In response to such protests, President Reagan proposed legislation 
to make it illegal to grant tax exemptions to schools that discriminate 
on racial grounds. The Senate Committee on Finance, and the House 
Committee on Ways and Means, scheduled public hearings on the Federal 
Government's policy regarding the effect of racial discrimination on 
the tax-exempt status of private schools.
  The Senate Finance Committee held its hearing on February 1, 1982. In 
connection with this hearing, the committee requested high-level 
Justice Department memoranda, correspondence, deliberations, and other 
documents related to the reversal of the administration's position. The 
documents turned over to the Senate Finance Committee included:
  Letters from Representative Trent Lott to Secretary Regan, IRS 
Commissioner Egger, and Solicitor General Lee, urging change in the 
administration's position on Bob Jones;
  memorandum from Associate Deputy Attorney General Bruce Fein to 
Deputy Attorney General Edward Schmults, advising Schmults on private 
schools;
  memorandum from Carolyn Kuhl, Special Assistant to the Attorney 
General, to Ken Starr, noting Reagan/Bush campaign statements on 
private schools;
  memorandum from Peter Wallison, Treasury General Counsel, to 
Secretary Regan briefing him on meeting with Representative Lott;
  memorandum from Treasury General Counsel Wallison to Deputy Secretary 
McNamar and Secretary Regan on Government's position in Bob Jones case;
  memorandum from Civil Rights Division Head, William Bradford 
Reynolds, to Attorney General Smith justifying changes in 
Administration's position on Bob Jones;
  memorandum from Treasury Assistant Secretary for Public Affairs, Ann 
McLaughlin, to Deputy Secretary McNamar on ``press strategy'' for 
releasing Bob Jones decision;
  memorandum from IRS Chief Counsel Gideon to Treasury Deputy General 
Counsel Government's statement in Bob Jones;
  letter from IRS Chief Counsel Gideon to Civil Rights Division Head 
Reynolds on formulation of Government's statement in Bob Jones; and
  memorandum from Assistant Attorney General Theodore Olson from the 
Office of Legal Counsel to Attorney General Smith and Deputy Attorney 
General Schmults responding to the analysis in Reynolds' memo on Bob 
Jones.
  Clearly, in 1982, the Republican administration at that time released 
to the Senate documents that included internal memoranda among high-
level Justice Department officials, inter-agency communications, and 
documents relating to the government's position in an important Supreme 
Court case. They also included letters to the Solicitor General.
  Moreover, the Reagan administration turned over these documents 
within months after being written, and no harm was done to the workings 
of the Justice Department or the administration. The Bush 
administration is claiming that it is unprecedented to turn over such 
documents--and that the release of documents written by Mr. Estrada 6 
to 10 years earlier would irreparably harm the government. I urge the 
administration and Republican Senators to consider this additional 
precedent. Certainly legislation is different from a nomination. While 
both are matters for the Senate, legislation is different in that it 
can be amended or revised. A nomination is a lifetime appointment.
  In 2001, this White House agreed to give access to memoranda written 
by Jeffrey Holmstead, nominated to be an Assistant Administrator of the 
Environmental Protection Agency. The Senate Committee on Environment 
and Public Works requested memoranda from Holmstead's years of service 
in the White House counsel's office under former President Bush. In 
particular, the committee was interested in materials related to 
Holmstead's handling of an amendment to the Clean Air Act and other 
environmental issues. In the summer of 2001, the Bush administration 
resolved an impasse with the committee over the nomination by 
permitting committee staffers to review memoranda that Holmstead wrote 
while in the White House counsel's office. In sum, the administration 
allowed access to documents from the White House counsel's office--a 
more sensitive post than the one Mr. Estrada held when he was in the 
Department of Justice.

  In another situation, in 2001, this White House allowed Senator 
Lieberman and the Senate Government Affairs Committee access to 
documents regarding environmental rulemaking, although I would note 
that such access was allowed only after Senator Lieberman threatened to 
subpoena the information. Faced with this threat, the Bush 
Administration worked to reach an accommodation, and allowed access to 
documents, including documents that the administration characterized as 
``high-level deliberative documents,'' as part of an oversight 
investigation of the Bush administration's regulatory rollbacks.
  So, despite this administration's continued insistence on 
confidentiality, it has turned over, allowed access or worked to reach 
an accommodation on access to documents similar to those requested in 
connection with the Estrada nomination in other cases and for other 
committees. And, again, in the instance of the Estrada nomination, the 
matter before the Senate concerns a lifetime appointment to the second-
highest court in the land.
  Last Thursday, the former Republican leader accepted ``part of the 
blame'' for how the Senate has come to consider judicial nominations. I 
appreciate that because it is one of the few times a Republican Senator 
has accepted responsibility for what happened during the years in which 
the Republican majority in the Senate blocked and delayed so many of 
President Clinton's judicial nominees. The Senator from Mississippi 
also acknowledged that ``you filibuster a lot of different ways.'' I 
thank the Senator from Mississippi for trying to be constructive and 
for suggesting that ``something can be worked out'' on the request for 
Mr. Estrada's work papers from the Department of Justice.
  In yesterday's edition of The Weekly Standard, a report suggests that 
other Senate Republicans, ``several veteran GOP Senate staffers'' and 
``a top GOP leadership aide'' asked the White House to show some 
flexibility and to share the legal memoranda with the Senate to resolve 
this matter, but they were rebuffed. It is regrettable 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 score political points and to divide the 
Hispanic community.
  The real ``double standard'' here is that the President selected Mr. 
Estrada based in large part on his work for 4\1/2\ years in the 
Solicitor General's Office as well as for his ideological views, but 
the administration says that the Senate may not examine his written 
work from the office that would shed the most light on his views. The 
White House says that the Senate should not consider the very ideology 
the White House took into account in selecting a 41-year-old for a 
lifetime seat on the country's second-highest court. Another double 
standard at work here is that this is a nominee who is well known for 
having very passionate views about judicial decisions and legal policy 
and is well known for being outspoken, and yet he has refused to share 
his views with the very people charged with evaluating his nomination.
  It seems to be a perversion of the constitutional process to require 
the Senate to stumble in the dark about his views, when he shares his 
views quite freely with others and when this Administration has 
selected him for the privilege of this high office, and for life, based 
on those views.

[[Page S3833]]

  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.
  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 Judiciary 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.

  Now that the occupant of the White House no longer is 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.
  The White House, in conjunction with the new Republican majority in 
the Senate, is purposeful in choosing these battles over judicial 
nominations. Dividing rather than uniting has become their modus 
operandi. The decision by the Republican Senate majority to focus on 
controversial nominations says much about their mistaken priorities. 
The Republican majority sets the agenda and they schedule the debate, 
just as they have again here today.
  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, in order 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 a 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 more 
than 200 years to protect all Americans through its 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 last 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. Regrettably, his efforts and 
judgment were also rejected by the administration.
  The Supreme Court, in an opinion authored last year 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 nomination of Abe Fortas to be Chief Justice of the 
United States Supreme Court, they joined in the filibuster of Stephen 
Breyer to the First Circuit, Judge Rosemary Barkett to the Eleventh 
Circuit, Judge H. Lee Sarokin to the Third Circuit, and Judge Richard 
Paez and Judge Marsha Berzon to the Ninth 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' own 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. In effect, these were anonymous filibusters.
  Republicans held up almost 80 judicial nominees who were not acted 
upon during the Congress in which President Clinton first nominated 
them, and they 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 
include Walter Dellinger's nomination to be Assistant Attorney General, 
and two cloture motions were required to be filed and both were 
rejected by Republicans. In this case we were able finally to obtain a 
confirmation vote after elaborate effort, 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 motions.
  In 1994, Republicans successfully filibustered the nomination of Sam 
Brown to be an Ambassador. After three cloture motions 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 motions to get a vote on the nomination of Ricki Tigert to 
chair the FDIC. So when Republican Senators now talk about the

[[Page S3834]]

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 the Senate has moved forward to confirm 
111 of President Bush's judicial nominations since July 2001. That 
total includes 11 judges confirmed so far this year, and of those, 
seven were confirmed last week. The Senate last Thursday moved forward 
on the controversial nomination of Jay S. Bybee to the United States 
Court of Appeals for the Ninth Circuit.
  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.
  We worked hard to reduce Federal judicial vacancies to under 55, 
which includes 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.
  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.
  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 2 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. 
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.


                             cloture motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 21, the nomination of Miguel A. Estrada to be 
     United States Circuit Judge for the District of Columbia 
     Circuit:
         Bill Frist, Orrin Hatch, Robert F. Bennett, James Inhofe, 
           John Ensign, Sam Brownback, Michael B. Enzi, Wayne 
           Allard, Mike Crapo, Susan Collins, Pete Domenici, 
           Conrad Burns, Kay Bailey Hutchison, John E. Sununu, 
           Norm Coleman, Charles Grassley.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call under the rule is waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Miguel A. Estrada, of Virginia, to be the United States 
Circuit Judge for the District of Columbia Circuit shall be brought to 
a close? The yeas and nays are required under the rule.
  The clerk will call the roll.
  The senior assistant bill clerk called the roll.
  The PRESIDING OFFICER (Mr. Ensign). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 55, nays 45, as follows:

                       [Rollcall Vote No. 56 Ex.]

                                YEAS--55

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

                                NAYS--45

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden
  The PRESIDING OFFICER. On this vote, the yeas are 55, the nays are 
45. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  Mr. REID. Mr. President, I move to reconsider the vote.
  Mr. NICKLES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________