[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.
____________________