[Congressional Record Volume 149, Number 64 (Thursday, May 1, 2003)]
[Senate]
[Pages S5633-S5639]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE SESSION
______
NOMINATION OF EDWARD C. PRADO, OF TEXAS, TO BE UNITED STATES CIRCUIT
JUDGE FOR THE FIFTH CIRCUIT
The PRESIDING OFFICER (Mr. Bunning). Under the previous order, the
Senate will now proceed to the consideration of Executive Calendar No.
105, which the clerk will report.
The assistant legislative clerk read the nomination of Edward C.
Prado, of Texas, to be United States Circuit Judge for the Fifth
Circuit.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
Mr. DeWINE. Mr. President, I ask unanimous consent to proceed for the
next 15 minutes as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. DeWine are printed in today's Record under
``Morning Business.'')
The PRESIDING OFFICER. Who yields time?
The Senator from Ohio is recognized.
Mr. DeWINE. Mr. President, on behalf of the majority leader Frist, I
ask unanimous consent that the vote on Executive Calendar No. 105, the
nomination of Edward C. Prado, occur at 2:05 p.m. today.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I am pleased we are going to move to the
nomination of Judge Edward Prado. While my friend, the distinguished
senior Senator from Ohio, is on the floor, I want to extend early
congratulations because it appears that on Monday we are going to
approve a judge on which he has worked so hard. Because of his advocacy
and a number of others, we have been able to move through this circuit
court process a little more quickly. The Senator from Ohio told me how
much he thought of Judge Cook, and being the fine lawyer the Senator
is, I am certain we are going to get a good addition to the court. His
recommendation goes a long way with me. I congratulate the Senator from
Ohio for his advocacy on the part of someone he knows and speaks so
well of.
Mr. President, I am pleased we now are on the nomination of Judge
Edward Prado, a well-qualified nominee for the Fifth Circuit Court of
Appeals. Judge Prado is being considered for the same court as Justice
Priscilla Owen, a nominee we on this side find to be a divisive choice
for the circuit court. The swift consideration of Judge Prado's
nomination illustrates again how the nomination process can work when
the President sends up fairminded and mainstream choices for lifetime
seats on our Federal bench. It happens quickly.
This came about as a result of our being involved in another judicial
nomination that was not going anywhere, and on this side we moved to
the nomination of Judge Prado. I think that and other reasons moved us
along the path very quickly.
While some have decried the confirmation process is broken, certainly
the numbers belie that charge. With the two district court judges
confirmed before we recessed and Mr. Sutton on Tuesday, the number of
confirmations has already risen to 120. This afternoon it will be 121.
These numbers dwarf the confirmations achieved by my Republican
colleagues under President Clinton.
Last year alone, in an election year, the Democratic-led Senate
confirmed 72 judicial nominees, more than in any of the prior 6 years
of Republican control. Overall, in the 17 months of Senate Democratic
control, we were able to confirm 100 judges and vastly reduce judicial
vacancies. We were able to do so despite the refusal of the
administration to consult with Democrats on circuit court vacancies and
many district court vacancies.
As I have indicated, if we confirm Judge Prado, which I am confident
we will do, he will be the 121st judge. He will also be the 11th Latino
judge serving in our circuit courts. Judge Prado is supported by the
Congressional Hispanic Caucus, the Mexican American Legal Defense Fund,
and many others.
I ask unanimous consent that a letter from the Congressional Hispanic
Caucus expressing their unanimous support be printed in the Record.
[[Page S5634]]
There being no objection, the material was ordered to be printed in
the Record, as follows:
April 29, 2003.
Hon. Bill Frist,
U.S. Senate Majority Leader,
U.S. Senate, Washington, DC.
Dear Majority Leader Frist: On behalf of the Congressional
Hispanic Caucus (CHC), we write today regarding Edward
Charles Prado's nomination to the United States Court of
Appeals for the Fifth Circuit. Earlier this year, the CHC
voted unanimously to endorse the nomination of Judge Prado.
Subsequently, Judge Prado received the unanimous bipartisan
support of the Senate Judiciary Committee, and it is our
understanding that Senate Democratic leadership has since
asked that this non-controversial nomination be immediately
called up for a vote.
Unfortunately, it is now being reported that Senate
Republican leadership is holding up confirmation of Judge
Prado as part of a political ploy to characterize Democratic
opposition to certain individual judicial nominees as a
Democratic assault on women and minorities. If this in fact
is the case, then it is reprehensible that the Senate
Republican leadership would engage in such offensive and
malicious tactics for mere political gain.
It is ironic that although Judge Prado has received
bipartisan and unanimous support so far, Republican
leadership has not yet allowed the full Senate a final vote
on his nomination. Intentionally delaying a vote on this
nomination casts doubt on the sincerity of Republican
rhetoric about supporting and confirming qualified Hispanic
judges.
Furthermore, it would be a travesty for Judge Prado, a
qualified and respected Hispanic judicial nominee, to fall
victim to a disingenuous politically motivated campaign to
label Democrats as anti-minority by highlighting Democratic
opposition to a select few while ignoring Democratic support
for the vast majority of President Bush's Hispanic judicial
nominees.
President Bush's nominations of Jose Martinez to a District
Court in Florida, Jose Linares to a District Court in New
Jersey, Christina Armijo to a District Court in New Mexico,
James Otero to a District Court in California, as well as
Alia Ludlum, Philip Martinez, and Randy Crane to District
Courts in Texas all received Democratic support and all were
confirmed by the U.S. Senate. In addition to Judge Prado,
another pending Hispanic judicial nominee, Cecilia Altonaga
of Florida, is also expected to be confirmed by the Senate
with Democratic support.
Clearly, Senate Democrats have displayed a willingness to
support President Bush's Hispanic nominees, and any
assertions to the contrary are unnecessary and
counterproductive to efforts to increase diversity on our
Nation's federal courts.
As you know, the judicial nomination process is important
to the CHC because we believe that our Nation's courts should
reflect the diversity of thought and action that enrich
America. To that extent, we established the Hispanic
Judiciary Initiative to further formalize our involvement in
this issue by establishing a set of evaluation criteria and
an internal process for endorsing nominees. Since its
inception the CHC Hispanic Judiciary Initiative has worked to
improve diversity within the federal judiciary. For this
effort to be hindered due to political maneuvering, absent
concern for the best interest of the Hispanic community, is
both irresponsible and neglectful.
Once again, we believe that Judge Prado's qualifications
and distinguished career in law, as well as his dedication to
the Hispanic community make him a judicial nominee deserving
of confirmation. We respectfully urge you to schedule a vote
to conform Edward Charles Prado to the United States Court of
Appeals for the Fifth Circuit without any further delay.
Sincerely,
Ciro D. Rodriguez,
Chair, Congressional Hispanic Caucus
Charles A. Gonzalez,
Chair, CHC Hispanic Judiciary Initiative.
Mr. REED. Judge Prado has served 19 years in the United States
district court. As some of my colleagues have noted, it is sometimes
more challenging to review nominees who come to us from private
practice and universities. We have to extrapolate from their record in
those different roles as to how they would perform as a judge. With
Judge Prado, we certainly do not have that problem. We know how he has
performed as a judge.
With the nomination of Priscilla Owen, the same applies. We have the
Priscilla Owen and Judge Prado judicial records we can directly
evaluate. In the case of Justice Owen, it is a record many on our side
find troubling. If all the Members had been present today, it would
have been 47 people voting against cloture.
In the case of Judge Prado, it is a record we find evinces an
evenhandedness and fairness befitting a circuit court judge. Not that I
would decide every case the way Judge Prado has--I would not--but
overall he has won the support of all Democratic Senators, as far as I
know, on the Judiciary Committee, and other Democratic Senators,
because they found his record one of balance and fairness. Unlike
Justice Owen and Mr. Estrada, no colleague or supervisor has questioned
his ability to apply the law faithfully. Unlike Justice Owen and Mr.
Estrada, no single person or organization has submitted a letter of
concern or opposition to Judge Prado's nomination.
Judge Prado has generated no controversy. He is experienced. While I
am sure he is conservative, it does not matter; He is an evenhanded
judge.
There is something to be said for conservative judges. If
conservatism means the law is followed, stare decisis, the precedent
set, I think that is good.
Judge Prado will be confirmed today because he is a fine person and
an excellent judge. As I have noted in the past, eight of the sitting
Latino judges were appointed by President Clinton. Several of these
judges were denied Senate consideration for years while the Republicans
controlled the Senate. Judge Richard Paez, nominee for the Ninth
Circuit, waited over 1,500 days. He was well qualified, had the support
of his hometown Senators, and 39 Republicans voted against his
nomination. There is nothing wrong with that. They had different views
as to how he would serve as a judge.
Judge Sonia Sotomayor, a nominee to the Second Circuit, was similarly
stalled. Her confirmation took 433 days. Then there were the Hispanic
nominees who were denied hearings or votes by Republicans during the
Clinton administration: Jorge Rangel, Enrique Moreno, Christine
Arguello, Richard Morado, Anabelle Rodriquez.
These facts and the expected confirmation of Judge Prado belie the
anti-Hispanic charges some have made in the context of the Estrada
debate. The extended debate Democrats have sought to have on just a
handful of judicial nominees affects our constitutional advice and
consent duty.
While the number of judges who have been confirmed demonstrates our
good faith in working with our colleagues and the President, we will
not simply rubberstamp ideologically driven individuals for lifetime
seats on our Federal courts.
I am pleased that today we are moving forward on this qualified
judge, Edward Prado. I believe the way Judge Prado's nomination has
been received in the Senate points the way through some of the conflict
that has occurred in the Senate over a very small number of judicial
nominees.
If my math is correct, by today's end there will be 121 versus 2.
That is a good record in anyone's book.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HATCH. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, as I understand it we are on the Prado
nomination.
The PRESIDING OFFICER. The Senator is correct.
Mr. HATCH. Mr. President, I am pleased that we are considering the
nomination of Edward C. Prado, who has been nominated by President Bush
to serve on the United States Court of Appeals for the Fifth Circuit.
He has an outstanding record of distinguished public service and will
be a great addition to the Fifth Circuit, especially since the seat to
which he has been nominated has been designated a judicial emergency by
the Judicial Conference of the United States.
Judge Prado currently serves as a United States District Judge for
the Western District of Texas, having been unanimously confirmed by the
Senate in 1984. His 18 years on the bench, plus prior service as a
Texas state court district judge has given him the experience and
background to make an outstanding Fifth Circuit Judge.
In addition to his judicial experience, Judge Prado has had a
distinguished legal career. After graduating from the University of
Texas School of Law in 1972, he began his legal career as an Assistant
District Attorney in the Bexar County, TX, District Attorney's Office.
In 1976 he accepted a position with the Federal Public Defender's
Office for the
[[Page S5635]]
Western District of Texas where he served as an Assistant Federal
Public Defender representing indigent criminal defendants in the
federal courts.
During 1980, he served as a Texas state district judge, filling the
unexpired term of the incumbent. In this position, he presided over
several hundred cases, including felony criminal trials. In 1981, he
was unanimously confirmed by the Senate and appointed as United States
Attorney for the Western District of Texas, where he managed one of the
largest United States Attorney's Offices in the Nation. In 1984,
President Reagan nominated and the Senate confirmed Judge Prado as a
United States District Judge for the Western District of Texas. In this
capacity he has handled thousands of cases and hundreds of trials.
Judge Prado is a man of exceptional character, impeccable ethics, and
is well qualified to serve as a Circuit Judge. He has received many
honors and awards for his work in the law, including the St. Thomas
Moore Award from St. Mary's University School of Law in 2000, the LULAC
State Award for Excellence in 1981, the Achievement Award from the U.S.
Attorney General in 1980, and recognition as an Outstanding Federal
Public Defender in 1978.
Judge Prado is a native of San Antonio, Texas and has served his
community, state and nation in a variety of ways. Not only has he
served in his professional capacity, but also he believes in community
service and has been involved in community service organizations such
as St. Mark's Catholic Church, Witte Museum Community Advisory
Committee, the Philosophical Society of Texas, the Rotary Club of San
Antonio, and Leadership San Antonio. Additionally, Judge Prado served
in the U.S. Army Reserve as an Infantry Officer from 1972-1987.
In addition to his public and community service, Judge Prado has been
actively involved in efforts to improve the legal and judicial process.
He has been a leader in numerous bar associations and law-related
organizations. For example, he has been a member of the Texas and San
Antonio Bar Associations since 1972, including service as President,
and later Director and Chairman of the Board of Trustees, of the San
Antonio Bar Foundation. Judge Prado serves on the Texas State Bar Crime
Victims Committee, and was appointed by Chief Justice Rehnquist to
serve as the Chairman of the Criminal Justice Act Review Committee from
1991-1993.
As a District Judge, he has made efforts to reach out to youth groups
to help them learn about the law and the judicial process. He gives
motivational speeches and conducts events in his courtroom as an
introduction to the law.
Judge Prado comes highly recommended by those with whom he serves and
by those who appear in his courtroom. Let me read a few statements made
by Texas attorneys, as reported in the Texas Lawyer, February 10, 2003.
Laurence R. Macon said of Judge Prado, ``I've known him for 30 years,
and he doesn't have any outrageous positions. He won't be there trying
to make law.'' Seagal Wheatley stated, ``If the Judiciary Committee
looks at his qualifications, he should be a shoo-in. I'm not aware of
any recent opinion that will cause him problems.'' A third attorney,
Van Hilley, said, ``Judge Prado has a varied background and an open
mind about things. The reason his docket ran so smooth is he wasn't
viewed as pro-government or pro-defense.''
The legal bar's wide regard for Judge Prado is reflected in his
evaluation by the American Bar Association. The ABA evaluates judicial
nominees based on their professional qualifications, their integrity,
their professional competence, and their judicial temperament. The ABA
has bestowed upon Judge Prado its highest rating of Unanimously Well
Qualified.
Furthermore, Judge Prado has been endorsed by his hometown newspaper,
The San Antonio Express-News, which declared, ``The Senate should
confirm Prado's nomination without undue controversy or delay. . . .
His credentials are unquestioned.'' Mr. President, I ask unanimous
consent that the complete San Antonio Express-News editorial be printed
in the Record, following my remarks.
The PRESIDING OFFICER. Without objection it is so ordered. (See
exhibit No. 1)
Mr. HATCH. Mr. President, the record is clear that Judge Prado is a
man of ability and character. This Senate, on two previous occasions,
has found Judge Prado worthy of confirmation for positions of high
responsibility in the government, and I am confident it will do so
again today. I strongly support his confirmation and urge my colleagues
to do likewise.
Exhibit No. 1
U.S. District Judge Edward C. Prado has compiled an
admirable record in his almost two decades on the federal
trial bench.
Last week, President Bush nominated the San Antonio judge
for a well-deserved promotion to the 5th U.S. Circuit Court
of Appeals.
The Senate should confirm Prado's nomination without undue
controversy or delay.
Prado, a graduate of Edgewood High School, was appointed to
his federal district court post by President Reagan in 1984
and has performed consistently as a non-ideological moderate.
His credentials are unquestioned. Prado first became a
judge in 1980 when Gov. Bill Clements named him to a state
district court bench.
In addition, U.S. Sens. Kay Bailey Hutchison and John
Cornyn of Texas swiftly recommended a solid replacement for
Prado if he is elevated.
The lawmakers forwarded the name of former Texas Supreme
Court Justice Xavier Rodriguez of San Antonio to the White
House to fill Prado's seat.
Gov. Rick Perry appointed Rodriguez to the state's high
court, but he was defeated in last year's GOP primary.
A bright lawyer with solid legal qualifications, Rodriguez
was apolitical before being appointed to the Texas Supreme
Court, and that is one of many factors that make him a strong
candidate for a federal bench.
We urge Bush to accept the recommendation of the Texas
senators and nominate Rodriguez when Prado's post is
officially vacated.
Mr. KOHL. Mr. President, I rise today in support of the nomination of
Judge Edward Prado to be a Circuit Court Judge for the Fifth Circuit
Court of Appeals. Judge Prado has earned my support and that of my
colleagues for his distinguished record in public service and for the
integrity with which he has gone through the Senate confirmation
process.
Judge Prado has been a public servant for his entire professional
life. From the assistant district attorney position he took just after
receiving his law degree, to his experience as a U.S. attorney for the
Western District of Texas, to the 19 years he has served as a district
court judge for the Western District of Texas, Judge Prado's commitment
to public service is evident.
During his tenure as a Federal district court judge, Judge Prado has
heard and decided hundreds of cases. This experience helps make him a
well-prepared and well-qualified nominee to the Fifth Circuit. He has
developed an extensive record of achievement for the Senate to consider
and review in our endeavor to evaluate his nomination.
Further, Judge Prado should be commended both for his willingness to
be honest and forthcoming in the questionnaire he submitted to the
committee, and for his comportment at his committee confirmation
hearing. Judge Prado directly and fully addressed some of his more
controversial rulings in his questionnaire, and provided honest,
complete answers to all questions asked of him at his hearing. I do not
agree with all of Judge Prado's decisions; in fact, we may hold
different views on significant issues. Yet I am convinced that he will
apply the law in a capable and responsible manner.
Finally, it should be noted that I support the elevation of Judge
Prado to the Court of Appeals for the same reasons that make me unable
to support the nomination of Miguel Estrada to the D.C. Circuit. Where
Judge Prado has 19 years of experience on the Federal bench, Mr.
Estrada has no experience of any kind as a judge. And, more
importantly, Judge Prado has voluntarily and directly addressed any
controversial issues in his record, while Mr. Estrada has made a habit
of concealing such information and refusing to submit documents which
would be of substantial assistance to the committee.
Mr. Prado is the kind of experienced, well-qualified nominee that the
Senate can confirm with speed and ease. I support his nomination.
Mr. LEAHY. Will the Senator yield?
Mr. HATCH. I am happy to yield.
[[Page S5636]]
Mr. LEAHY. I know we have set a time. I wonder if the Senator from
Vermont might have a minute or so to speak about this nomination.
The PRESIDING OFFICER. Each side has 3 minutes remaining at this
time.
Mr. HATCH. I will yield to the distinguished Senator from Vermont,
and I yield my remaining 3 minutes to the distinguished Senator from
Texas.
Mr. LEAHY. Mr. President, I begin by thanking the democratic leader
and assistant leader for going to bat for Judge Edward Prado and
working out this arrangement with the Republican leadership so that
this consensus nomination can be considered without further delay. I
appreciate that the majority leader and Senator McConnell have been
willing to work with us to allow this nomination to go forward today.
I was disappointed to hear on Tuesday that the Republican position
was that this matter should be further delayed and I did not understand
the logic or motivation behind that position.
I cannot recall a time when the Senate or either party leadership
insisted on strict adherence to consideration of nominations based on
their calendar number. Indeed, during the period 1995 through 2001,
quite the opposite was true and Democrats had to work very hard to get
the Republican leadership to take up nominations that were stalled on
the Senate Executive Calendar for weeks, months and sometimes years.
This year we have continued to make progress on filling judicial
vacancies not by holding up all nominations reported after that of Mr.
Estrada but, on the contrary, by moving to those on which there is
agreement and on which we can proceed most efficiently.
In fact, all 20 judicial confirmations this year were nominations
reported and considered after that of Mr. Estrada and after debate on
the Estrada nomination had begun.
We still do not know who on the Republican side delayed consideration
of the consensus nomination of Judge Prado for the last month. I thank
the Congressional Hispanic Caucus for its support of this nomination
and for working with the Senate to bring this matter forward at this
time. I also want to thank the Republican leadership for changing
position and working with us to move forward.
I came to the floor on Monday to make the point that the nomination
of Judge Edward Prado to the United States Court of Appeals for the
Fifth Circuit was cleared on the Democratic side and that we were
prepared to proceed. Senator Daschle and Senator Reid came before the
Senate on Tuesday to urge that the Prado nomination be considered
rather than be held captive on the Senate calendar. All Democratic
Senators serving on the Judiciary Committee voted to report this
nomination favorably. All Democratic Senators had indicated that they
were eager to proceed to this nomination and, after a reasonable period
of debate, voting on the nomination. I am confident this nomination
will be confirmed by an extraordinary majority--maybe unanimously.
It is most unfortunate that so many partisans in this administration
and on the other side of the aisle insist on bogging down consensus
matters and consensus nominees in order to focus exclusively on the
most divisive and controversial of this President's nominees as he
continues his efforts to pack the courts. Democratic Senators have
worked very hard to cooperate with this administration in order to fill
judicial vacancies. What the other side seeks to obscure is that
effort, that fairness and the progress we have been able to achieve
without much help from the other side or the administration.
This week, again, despite Democratic willingness to proceed to a vote
on the controversial nomination of Jeffrey Sutton to the Sixth Circuit,
the other side then insisted we proceed to the unprecedented
renomination of Priscilla Owen. Mr. Sutton was confirmed with the
fewest votes in favor of any judicial nominee in the last 20 years and
with more than enough negative votes to have sustained a filibuster.
Rather than proceed to a consensus nominee and fill a judicial
emergency vacancy on the Fifth Circuit with an experienced and
respected Hispanic federal judge, Judge Prado, Republicans insisted on
pressing forward with another of the President's most controversial and
divisive nominations.
The fact is that when Democrats became the Senate majority in the
summer of 2001 we inherited 110 judicial vacancies. Over the next 17
months, despite constant criticism from the administration, the Senate
proceeded to confirm 100 of President Bush's nominees, including
several who were divisive and controversial, several who had mixed peer
review ratings from the ABA and at least one who had been rated not
qualified. Despite the additional 40 vacancies that arose, we reduced
judicial vacancies to 60, a level below that termed ``full employment''
by Senator Hatch. Since the beginning of this year, in spite of the
fixation of the Republican majority on the President's most
controversial nominations, we have worked hard to reduce judicial
vacancies even further.
As of today, the Senate Judiciary Committee website lists the number
of judicial vacancies at 48. That is the lowest it has been in 13
years. That is lower than at any time during the entire eight years of
the Clinton administration. We have already reduced judicial vacancies
from 110 to 48, in less than two years. We have reduced the vacancy
rate from 12.8 percent to 5.6 percent, the lowest it has been in the
last two decades. With some cooperation from the administration think
of the additional progress we could be making.
Even after the consideration of Judge Prado, for example, there is
another distinguished Hispanic nominee who was reported unanimously by
the Judiciary Committee last month on which the Senate will not yet
have acted: on the Senate executive calendar is the nomination of
Cecilia Altonaga to be a Federal judge in Florida. We expedited
consideration of this nominee at the request of Senator Graham of
Florida. She will be the first Cuban-American woman to be confirmed to
the Federal bench when Republicans choose to proceed to that
nomination. Indeed, Democrats in the Senate have worked to expedite
fair consideration of every Latino nominee this President has made to
the Federal trial courts in addition to the nomination of Judge Prado.
Another example may be the nomination of Consuelo Callahan to the
Ninth Circuit Court of Appeals. Unlike the divisive nomination of
Carolyn Kuhl to the same court, both home State Senators returned their
blue slips and support a hearing for Judge Consuelo Callahan. I have
asked that she receive a hearing in the near future and look forward to
learning more about her record as an appellate judge for the State of
California. Rather than disregarding time-honored rules and Senate
practices, I urge my friends on the other side of the aisle to help us
fill more judicial vacancies more quickly by bringing those nominations
that have bipartisan support to the front of the line for Committee
hearings and floor votes.
As I have noted throughout the last 2 years, the Senate is able to
move expeditiously when we have consensus, mainstream nominees to
consider. Nationally-respected columnist David Broder made this point
in an April 16 column that appeared in the Washington Post. I
referenced this column earlier this week and inserted it in the
Congressional Record. In his column, Mr. Broder noted that when he
asked Alberto Gonzales if there might be a lesson in Judge Prado's easy
approval, Mr. Gonzales missed the point. In Mr. Broder's mind: ``The
lesson seems obvious. Conservatives can be confirmed for the courts
when they are well known in their communities and a broad range of
their constituents have reason to think them fair-minded.''
To date the Senate has proceeded to confirm 120 of President Bush's
nominees, 100 in the 17 months in which Democrats made up the Senate
majority. The lesson that less controversial nominees are considered
and confirmed more easily was the lesson of the last two years and that
lesson has been lost on this White House.
Unfortunately, far too many of this President's nominees raise
serious concerns about whether they will be fair judges to all parties
on all issues. Those types of nominees should not be rushed through the
process. I regret the administration's refusal to work
[[Page S5637]]
with us to end the impasse it has created in connection with the
Estrada nomination.
The partisan politics of division that the administration is
practicing with respect to that nomination are not helpful and not
respectful of the damage done to the Hispanic community by insisting on
so divisive a nominee.
I invite the President to work with us and to nominate more
mainstream individuals like Judge Prado. His proven record and
bipartisan support makes it easier for us to uphold our constitutional
duty of advise and consent. I encourage those on the other side of the
aisle to allow us to consider his nomination. I look forward to casting
a vote in favor of his confirmation.
Judge Prado is an exceptional candidate for elevation to the appeals
court. He has significant experience as a public servant in west Texas.
Perhaps the fact that he has bipartisan support is the reason why he is
not being brought forward at this time for a floor vote. That does not
fit the Republican message but reveals the truth: That Democratic
Senators, having already acted on 120 judges nominated by President
Bush, are prepared to support even more of his nominations when they
are mainstream, consensus nominees. Perhaps the fact that Democrats
unanimously supported his nomination in committee is seen as a drawback
for Mr. Prado in the Republican world of nomination politics. I hope
that is not the case.
I also hope the fact that Judge Prado is Hispanic has not been a
factor in the Republican delay. Some have suggested that Judge Prado
has been delayed because Democratic Senators are likely to vote for him
and thereby undercut the Republican's shameless charge that the
opposition to Miguel Estrada is based on his ethnicity. Republican
partisans have made lots of partisan hay attacking Democrats in
connection with the Estrada nomination. We all know that the White
House could have cooperated with the Senate by producing his work
papers and the Senate could have proceeded to a vote on the Estrada
nomination months ago. The request for his work papers was sent last
May.
Rather than respond as every other administration has over the last
20 years and provide access to those papers, this White House has
stonewalled. Rather than follow the policy of openness outlined by
Attorney General Robert Jackson in the 1940's, this administration has
stonewalled. And Republican Senators and other partisans could not wait
to claim that the impasse created by the White House's change in policy
and practice with respect to nominations was somehow attributable to
Democrats being anti-Hispanic. The charge would be laughable if it were
not so calculated to do political damage and to divide the Hispanic
community. That is what Republican partisans hope is the result. That
is wrong.
So some have come to the conclusion that Republican delay in
connection with the consideration of Judge Prado's nomination may be
related to the political strategy of the White House to characterize
Democrats unfairly. Might the record be set straight if Democrats were
seen to be supporting this Hispanic nominee to the Fifth Circuit? Might
the Republicans' own record of opposing President Clinton's nominations
of Judge Jorge Rangel and Enrique Moreno to that same circuit court be
contrasted unfavorably with Democrats' support of Judge Prado?
Might Judge Prado, a conservative from Texas with a public record of
service as a Federal district court judge, become the first Hispanic
appointed by President Bush to the circuit courts with widespread
support from Senate Democrats? Might this more mainstream, consensus
nominee stand in stark contrast to the ideological choices intended to
pack the courts on which the White House and Senate Republicans
concentrate almost exclusively?
Judge Prado has 19 years of experience as a U.S. District Court
judge, which provides us with a significant judicial career to
evaluate. A review of Judge Prado's actions on the bench demonstrates a
solid record of fairness and evenhandedness.
While I may not agree with each and every one of his rulings or with
every action he has taken as a lawyer or judge, my review of his record
leads me to conclude that he will be a fair judge. No supervisor or
colleague of Judge Prado's has questioned his ability or willingness to
interpret the law fairly. Judge Prado enjoys the full support of the
Congressional Hispanic Caucus and the Mexican American Legal Defense
and Education Fund. Not a single person or organization has submitted a
letter of opposition or raised concerns about Judge Prado. No
controversy. No red flags. No basis for concern. No opposition. This
explains why his nomination was voted out of the Judiciary Committee
with a unanimous, bipartisan vote on an expedited basis.
To understand the importance of Judge Prado's nomination, we must put
it in the context of prior nominations to the Fifth Circuit Court of
Appeals. Until Judge Prado's hearing, it had been more than a decade
since a Latino nominee to that Court had even been allowed a hearing by
the Senate Judiciary Committee, let alone a vote on the floor. I recall
President Clinton's two Hispanic nominations to the Fifth Circuit and
the poor treatment they received from the Republican-led Senate.
Judge Jorge Rangel was a former Texas State judge and a dedicated
attorney in private practice in Corpus Christi, TX when President
Clinton nominated him to the United States Court of Appeals for the
Fifth Circuit in 1997. Judge Rangel is a graduate of the University of
Houston and the Harvard Law School and earned a rating of ``Well
Qualified'' by the American Bar Association. Yet, under Republican
leadership, he never received a hearing on his nomination, let alone a
vote by the Committee or by the full Senate. His nomination languished
without action for 15 months. Despite his treatment, this outstanding
gentleman has recently written us in support of a judicial nominee of
President Bush.
After Judge Rangel, disappointed with his treatment at the hands of
the Republican majority, asked the President not to resubmit his
nomination, President Clinton nominated Enrique Moreno, a distinguished
attorney in private practice in El Paso, TX. Mr. Moreno is a graduate
of Harvard University and the Harvard Law School. He was given the
highest rating of unanimously ``Well Qualified'' by the ABA. Mr. Moreno
also waited 15 months, but was never allowed a hearing before the
Senate Judiciary Committee. President Clinton renominated him at the
beginning of 2001, but President Bush, squandering an opportunity for
bipartisanship, withdrew the nomination and refused to renominate him.
In addition, President Clinton nominated H. Alston Johnson to the
Fifth Circuit in 1999. This talented Louisianan came to the Senate with
the support of both of his home state Senators but he never received a
hearing on his nomination or a vote by the Committee or the full Senate
in 1999, 2000, or the beginning of 2001. His nomination languished
without action for 23 months.
In contrast, when I served as Chair of the Judiciary Committee last
Congress, we granted Edith Clement a hearing within months of her
nomination. At that time there had been no hearings on Fifth Circuit
nominees since 1994 and no confirmations since 1995.
We also proceeded to hearings, committee debate and committee votes
on the divisive and controversial nominations of Judge Priscilla Owen
and Judge Charles Pickering. We granted hearings and votes on all four
of this President's nominees to the Fifth Circuit in spite of the
treatment Republicans accorded President Clinton's qualified nominees
to that same circuit. Under Republican leadership, none of President
Clinton's nominees to this Court received a hearing during his entire
second term of office.
Some of my friends on the other side of the aisle have made the
outrageous claim that Democratic Senators are anti-Hispanic or anti-
Latino. I think it is important to set the record straight.
Of the ten Latino appellate judges currently seated in the Federal
courts, 8 were appointed by President Clinton. Three other Latino
nominees of President Clinton to the appellate courts were blocked by
Republicans--as well as several others for the district court. In fact,
in contrast to the President's selection of only one Latino circuit
[[Page S5638]]
court nominee in his first 2 years in office, 3 of President Clinton's
first 14 judicial nominees were Latino, and he nominated more than 30
Latino nominees to the Federal courts.
During President Clinton's tenure, 10 of his more than 30 Latino
nominees, including Judge Rangel, Enrique Moreno, and Christine
Arguello to the circuit courts, were delayed or blocked from receiving
hearings or votes by the Republican leadership.
Republicans delayed consideration of Judge Richard Paez for over
1,500 days, and 39 Republicans voted against him. The confirmations of
Latina circuit nominees Rosemary Barkett and Sonia Sotomayor were also
delayed by Republicans. Judge Barkett was targeted for delay and defeat
by Republicans based on claims about her judicial philosophy, but those
efforts were not successful. After significant delays, 36 Republicans
voted against the confirmation of this nominee who received a ``Well
Qualified'' rating by the ABA. Additionally, Judge Sotomayor, who also
received a ``Well Qualified'' rating and had been appointed to district
court by President George H.W. Bush, was targeted by Republicans for
delay or defeat when she was nominated to the Second Circuit. She was
confirmed, although 29 Republicans voted against her.
The fact is that the Latino nominations that the Senate has received
from this administration have been acted upon in a expeditious manner.
They have overwhelmingly enjoyed bipartisan support. Under the
Democratically-led Senate, we swiftly granted hearings for and
eventually confirmed Judge Christina Armijo of New Mexico, Judge
Phillip Martinez and Randy Crane of Texas, Judge Jose Martinez of
Florida, U.S. Magistrate Judge Alia Ludlum, and Judge Jose Linares of
New Jersey to the district courts.
This year, we also confirmed Judge James Otero of California, and we
would have held his confirmation hearing last year if his ABA peer
rating had been delivered to us in time for the scheduling of our last
hearing. As I have noted, we also have the nomination of Cecilia
Altonaga to be a Federal judge in Florida already on the Senate
Executive Calendar.
I, again, urge those on the other side of the aisle to help us fill
more judicial vacancies more quickly by bringing those nominations that
have bipartisan support to the front of the line for Committee hearings
and floor votes. As I have noted throughout the last 2 years, the
Senate is able to move expeditiously when we have consensus, mainstream
nominees to consider.
That is the way to achieve 100 confirmations in 17 months and 120 in
less than 2 years. The lesson that less controversial nominees are
considered and confirmed more easily was the lesson of the last 2 years
and that lesson has been lost on this White House.
Unfortunately, far too many of this President's nominees raise
serious concerns about whether they will be fair judges to all parties
on all issues. Those types of nominees should not be rushed through the
process. I invite the President to nominate more mainstream individuals
like Judge Prado. His proven record and bipartisan support makes it
easier for us to uphold our constitutional duty of advise and consent.
I encourage those on the other side of the aisle to allow us to
consider his nomination. I look forward to casting a vote in favor of
his confirmation.
I, again, thank the Senate Republican leadership for working with us
to proceed to this consensus nomination, to provide adequate time for
debate and to proceed to a vote without further delay. Judge Prado's
nomination has been delayed on the Senate executive calendar for
several weeks, unnecessarily in my view. I recall all too vividly when
anonymous Republican holds delayed Senate action on the nomination of
Judge Sonia Sotomayor to the Second Circuit for 7 months. Let us work
together. I thank all Senators, even those Republicans who have
anonymously held up consideration of Judge Prado's nomination for the
last month, for agreeing to proceed with this nomination at this time.
I congratulate the nominee and his family on his elevation to the Fifth
Circuit and look forward to his continuing judicial service.
Again, I thank the Congressional Hispanic Caucus for its support of
this nomination and for working with the Senate to bring this matter
forward at this time. I do thank the Republican leadership for changing
its position and working with us to move forward.
I see the distinguished senior Senator from Texas in the Chamber, and
if I have further time, I withhold it. I yield the floor.
The PRESIDING OFFICER (Mr. Alexander). The Senator from Texas.
Mrs. HUTCHISON. I would like to be notified when I have 1 minute
remaining so Senator Hatch can take that last minute of our 3 minutes.
The PRESIDING OFFICER. The Senator will be notified.
Mrs. HUTCHISON. Mr. President, I am pleased, of course, the Senate
will be voting on Judge Ed Prado to move to the Fifth Circuit Court of
Appeals. He has been a judge on the district bench for a number of
years--actually, since 1984--and he has an outstanding record. He was a
great choice by the President, and this is a circuit that needs these
vacancies filled. There is no question it is a judicial emergency. We
hope to fill this seat with Judge Prado, and then we hope Justice
Priscilla Owen will also fill the other vacancy for the Fifth Circuit,
that is open, from Texas.
Judge Prado has an outstanding record. He graduated from the
University of Texas and the University of Texas Law School, a great
university in our Nation. He also has served as U.S. Attorney for the
Western District. He served as judge on the State district court. This
is a man who has made public service his career, and an outstanding one
at that. He is so well regarded in San Antonio and by the people who
have gone before him. They know they will get fair and impartial
justice in his court. That is why I am pleased to support his
nomination.
This nomination has moved very quickly. We are very pleased because
of the vacancies on the Fifth Circuit. But the ABA agreed that he had
the ``well qualified'' unanimous approval of their committee.
There is just no controversy at all with this wonderful judge. It is
my pleasure as a Texan to support and urge my colleagues to support the
nomination of Judge Ed Prado.
The PRESIDING OFFICER. One minute remains.
Who yields time?
The Senator from Utah.
Mr. HATCH. Mr. President, I ask for an additional 2 minutes equally
divided in addition to the 1 minute I have remaining.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, I am pleased that my Democratic colleagues
are willing to join us in confirming Judge Prado to the Fifth Circuit
Court of Appeals.
I regret that there has been any discussion that somehow the
Republican leadership has held up this nominee. That is not true. What
is particularly troubling is the suggestion that there is some
Republican delay in the consideration of Judge Prado's nomination
related to the Estrada nomination.
I would point out that Democrats who support the nomination of Judge
Prado to the Fifth Circuit are leading the opposition to Mr. Estrada,
nominated to the D.C. Circuit. Those Democrats have characterized the
D.C. Circuit as ``the second most important court in the land.''
Senator Kennedy stated recently that the D.C. Circuit makes decisions
with national impact on the lives of all of the American people.
Senator Schumer echoed these sentiments just yesterday. It does seem to
me that there is a different standard being applied to Miguel Estrada--
a nominee to the second highest court in the land--than to Judge
Prado--a nominee to one of twelve other Circuit Courts--although they
are important.
In any event, neither the confirmation of Judge Prado nor the
confirmation of any judge justifies or excuses the continued
obstruction on Miguel Estrada. I repeat that the arguments put forth by
opponents of Mr. Estrada just do not hold up under scrutiny. Their
repeated accusations that he failed to answer the questions has been
refuted again and again. The demand for confidential memoranda he
authored as a line attorney for the Department of Justice is both
extraordinary and ill-advised, as I and others, including all the
living former Solicitors General, have repeatedly demonstrated.
[[Page S5639]]
So my Democratic colleagues have had unlimited opportunities to make
their case on Mr. Estrada. Some of them oppose him; others support him.
But one thing has remained clear through this debate: There is no good
reason to deny Mr. Estrada an up or down vote on his nomination.
The time has come to end the debate on Mr. Estrada's nomination and
give him and up or down vote, as the Senate will now do on Judge Prado.
It is the fair thing to do.
I urge all of my colleagues to join me in voting for Judge Prado's
nomination at this time.
I yield the remainder of my time.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. I am glad my friends on the Republican side now allow
Judge Prado's nomination to go forward. I intend to vote for him.
I yield the remainder of my time.
The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Edward C. Prado, of Texas, to be United
States Circuit Judge for the Fifth Circuit?
Mr. HATCH. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from Oklahoma (Mr. Inhofe)
is necessarily absent.
Mr. REID. I announce that the Senator from Connecticut (Mr.
Lieberman) and the Senator from Maryland (Mr. Sarbanes) are necessarily
absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 97, nays 0, as follows:
[Rollcall Vote No. 138 Ex.]
YEAS--97
Akaka
Alexander
Allard
Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Byrd
Campbell
Cantwell
Carper
Chafee
Chambliss
Clinton
Cochran
Coleman
Collins
Conrad
Cornyn
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Dole
Domenici
Dorgan
Durbin
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham (FL)
Graham (SC)
Grassley
Gregg
Hagel
Harkin
Hatch
Hollings
Hutchison
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Nickles
Pryor
Reed
Reid
Roberts
Rockefeller
Santorum
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
Wyden
NOT VOTING--3
Inhofe
Lieberman
Sarbanes
The nomination was confirmed.
The PRESIDING OFFICER. The President will be notified of this action.
____________________