[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.

                          ____________________