[Congressional Record Volume 149, Number 65 (Monday, May 5, 2003)]
[Senate]
[Pages S5714-S5718]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
[[Page S5714]]
NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE A UNITED STATES
CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to consider the nomination of Miguel A. Estrada, which the
clerk will report.
The assistant legislative clerk read the nomination of Miguel A.
Estrada, of Virginia, to be United States Circuit Judge for the
District of Columbia.
The PRESIDING OFFICER. Under the previous order, the time until 6
p.m. shall be equally divided between the chairman and the ranking
member or their designees.
The Senator from Utah.
Mr. REID. Mr. President, if the Senator will yield for a brief
statement, we have had a number of people on this side of the aisle who
have indicated we are to object to any extension of time beyond 6. Even
though the vote took a little longer than expected, we cannot extend
the time past 6.
Mr. HATCH. That is fine.
Nomination of Priscilla Owen
I yield 1 minute to the Senator from California on their time. She
wanted to make a statement and put something in the Record, but it
should come on their time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. I thank my friend, Chairman Hatch. When Chairman Hatch
and I were debating the Owen nomination, which is not before us, he
questioned two statements I made. One was that she did not write a
dissenting opinion in Doe and the second was that Judge Gonzales never
referred to her as a judicial activist. I ask unanimous consent to have
these documents printed in the Record, the dissenting opinion, the
first page, which shows that she, in fact, did file a dissenting
opinion. Secondly, an article that appeared about a week ago in the New
York Times which says that Judge Gonzales said he was referring to
Justice Owen when he said she was an activist. He did say it was merely
heated language but, in fact, he said he was referring to her.
There being no objection, the material was ordered to be printed in
the Record, as follows:
. . . Texas interpreting the state's law allowing a
teenager to obtain an abortion without notifying her parents
if she can show a court that she is mature enough to
understand the consequences.
In the dissent, Justice Owen said the teenager in the case
had not demonstrated that she knew that there were religious
objections to abortion and that some women who underwent
abortions had experienced severe remorse.
One of the other justices on the court at the time was
Alberto R. Gonzales, now the White House counsel. He wrote
that the reading of the law by the dissenters was ``an
unconscionable act of jusdicial activism.''
Justice Owen has said that Justice Gonzalez was not
referring to her. Mr. Gonzales has, in interviews,
acknowledged he was referring to her and said that his
description of her as a judicial activist was merely heated
language among judges who disagreed.
While the first floor fight over the Owen nomination was
occurring, another judicial nomination drama was being played
out across the street in the Judiciary Committee, which was
considering President Bush's nomination of J. Leon Holmes to
be a district judge in Arkansas.
Senator Orrin G. Hatch, the Utah Republican who is chairman
of the committee, did not ask for a vote on approving the
Holmes nomination as is customary. Instead, he took the
extraordinary step of asking that the committee vote to send
the nomination to the full Senate without a recommendation.
Mr. Hatch was apparently concerned that some Republicans on
the committee were not completely comfortable with the
nomination after disclosures that Mr. Holmes, an ardent
opponent of abortion, had made several notable comments about
the role of women in society.
In 1997 Mr. Holmes wrote that ``the woman is to place
herself under the authority of the man.'' He had also written
that abortion should not be available to rape victims because
conceptions from rape occur with the same frequency as snow
in Miami.
Most of the combat over judicial confirmations has been
over appeals court judges, the level just below the Supreme
Court, and the nomination of Mr. Holmes, to the trial court
had initially attracted little notice.
But at a committee session last week, Senator Dianne
Feinstein, Democrat of California, said that she had never
voted against a district court nominee but that she found Mr.
Holmes's remarks shocking.
``I do not see how anyone can divine from these comments
that he has either the temperament or the wisdom to be a
judge,'' Senator Feinstein said.
Senator Hatch said today that he was concerned about some
of those remarks and that Mr. Holmes had expressed regret for
some. But the most important factor, the senator said, was
that many people in Arkansas, including the state's two
Democratic senators, Mark Pryor and Blanche Lincoln, still
supported the nomination.
____
IN RE JANE DOE, No. 00-0224, SUPREME COURT OF TEXAS
19 S.W.3d 346; 2000 Tex. LEXIS 67; 43 Tex. Sup. J. 910
June 22, 2000, Delivered
DISPOSITION: [**1] Reversed the court of appeals' judgment
and rendered judgment granting Doe's application for a
judicial bypass.
JUDGES: JUSTICE O'NEILL delivered the opinion of the Court,
jointed by JUSTICE ENOCH, JUSTICE BAKER, JUSTICE HANKINSON,
and JUSTICE GONZALES and by CHIEF JUSTICE PHILLIPS as to
Parts II and III. JUSTICE ENOCH filed a concurring opinion,
joined by JUSTICE BAKER, JUSTICE GONZALES filed a concurring
opinion, joined by JUSTICE ENOCH. JUSTICE HECHT filed a
dissenting opinion. JUSTICE OWEN filed a dissenting opinion.
JUSTICE ABBOTT filed a dissenting opinion.
OPINION BY: Harriet O'Neill.
OPINION: [*349] APPEAL UNDER SECTION 33.004(F), FAMILY
CODE.
This is an appeal from an order denying a minor's
application for a court order authorizing her to consent to
an abortion without notifying a parent. After remand from
this Court, see In re Jane Doe, 19 S.W.3d 249, 2000 Tex.
LEXIS 21 (Tex. 2000) (``Doe 1(I)''), the trial court
conducted another hearing and found that Jane Doe failed to
prove by a preponderance of the evidence that she is
sufficiently well informed to have an abortion without
parental notification. The court of appeals affirmed. After
reviewing the record, we determined that Doe conclusively
[**2] established the statutory requirements and that she was
entitled to consent to the procedure without notifying a
parent. We issued an order on March 10, 2000, reversing the
court of appeals' judgment, with opinions to follow on the
concern that Doe be able to undergo a less risky abortion
procedure, if that option was still available to her and that
was her decision. The following is our opinion holding that
the evidence Doe presented conclusively established that she
was ``mature and sufficiently well informed'' to consent to
an abortion without parental notification. See TEX. FAM. CODE
Sec. 33.003(i).
I
Abortion is a highly-charged issue that often engenders
heated public debate. Such debate is to be expected and,
indeed, embraced in our free and democratic society. It is
through this very type of open exchange that our Legislature
crafted and enacted the particular statutory scheme before
us. Our system of government requires the judicial branch to
independently review and dispassionately interpret
legislation in accordance with the Legislature's will as
expressed in the statute. We begin our analysis with an
overview of the Parental [*350] Notification [**3] Act's
judicial bypass procedure and our role in interpreting it.
A. The Proper Role of Judges
``[Courts] are under the constraints imposed by the
judicial function in our democratic society. . . . The
function in construing a statute is to ascertain the meaning
of words used by the legislature. To go beyond it is to usurp
a power which our democracy has lodged in its elected
legislature. . . . A judge must not rewrite a statute,
neither to enlarge nor to contract it.''--Felix Frankfurter
(RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
213 (1947), reprinted in COURTS, JUDGES, AND POLITICS, at 414
(Walter F. Murphy & C. Herman Pritchett, eds., 2d ed. 1974).
Mrs. BOXER. When I come to speak on the Senate floor, I do my
homework. I felt very badly about that, and now I have the
documentation. I thank my friend for yielding. I know it does not make
him happy, but he was very generous to me to allow this minute to send
these documents to the desk.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Rather than take time to respond, I will write a letter to
the distinguished Senator and point out where she is in error on the
Owen matter. As a matter of fact, I think it has been outrageous the
way some of the arguments have been made on the other side against this
really excellent justice from the State of Texas, who has a unanimous
well qualified, the highest rating, from the American Bar Association.
I think we have had pure, unadulterated, raw politics involved with
regard to Justice Owen.
This debate we are now having is about the raw politics that are
being used against Miguel Estrada, the first Hispanic ever nominated to
the Circuit Court of Appeals for the District of Columbia.
Today is Cinco de Mayo, the Fifth of May, commemorating the victory
of
[[Page S5715]]
the Mexican army over the French army at the Battle of Puebla in 1862.
This battle came to represent a symbol of Mexican unity and patriotism.
The victory demonstrated to the world that Mexico and all of Latin
America were willing to defend themselves against any foreign
intervention. Cinco de Mayo is now viewed as a festive day to celebrate
freedom and liberty.
The fifth of May, 2003, in the Senate, unfortunately is also the 3-
month anniversary of the beginning of the debate on Miguel Estrada. I
would hope that we would be celebrating the liberation of his
nomination and the freedom to vote on final passage on this Cinco de
Mayo. But instead, the nomination of Miguel Estrada has been captured
by a minority of Senators who refuse to allow a final vote on his
nomination. They insist on their unprecedented filibuster, following
their game plan of obstruction. In fact, they have compounded their
obstructionist tactics by engaging in a second filibuster, this time on
Priscilla Owen, nominated to the Fifth Circuit Court of Appeals. She
also has a unanimous well-qualified rating from the American Bar
Association, the badge of honor, the gold standard, that our colleagues
on the other side of the aisle, have said that rating is.
I must admit, the Democrat game plan of delay and obstructionism is
not surprising, but it is getting somewhat contradictory. In the case
of Mr. Estrada, Democrats say they cannot vote for the nominee because
they do not know enough about him. They allege he did not answer their
questions and therefore they must have Department of Justice
confidential memoranda he wrote while he was a line attorney in the
Solicitor General's office; memoranda that have never been given in any
way, shape or form to anybody in the Senate in a confirmation battle
before, or anybody else for that matter. Even the White House has not
seen these matters because they are so highly privileged, not Judge
Gonzales, not anybody else in the White House.
There are no such claims about Justice Owen. Democrat opponents admit
they know enough about her, that she did answer the questions, and that
she has a record they can review. There are no phony excuses. They
simply oppose her on philosophical grounds, namely, her interpretation
of the Texas parental notification statute that applies to minor girls
seeking an abortion.
This double standard demonstrates that some Senate Democrats are
willing to use whatever obstructionist tactics it takes, based on any
convenient rationale, to defeat the President's nominees.
While the rationales may be different, the motivation in both cases
is the same. I think that a recent editorial appearing in the Atlanta
Journal-Constitution said it best: ``The fear with Owen and Estrada is
that one or both will be nominated to the U.S. Supreme Court should a
vacancy occur. Senate Democrats are determined to keep off the Circuit
Court bench any perceived conservative who has the credentials to serve
on the U.S. Supreme Court.'' I ask unanimous consent that a copy of
this editorial be printed in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. HATCH. As far as Mr. Estrada goes, there is an additional factor
that is not based on any substantive objection to his nomination. I
believe that some Senate Democrats do not want the current President, a
Republican President, to appoint the first Hispanic as United States
Circuit Judge for the District of Columbia Circuit.
Let me read from an editorial published by the Dallas Morning News
addressing this point. On February 17, 2003, the News wrote:
Democrats haven't liked Mr. Estrada from the beginning.
Part of that is due to his ideology--which is decidedly not
Democratic. But part of it also has to do with the fellow who
nominated him. Democrats don't relish giving President Bush
one more thing to brag about when he goes into Hispanic
neighborhoods during his re-election campaign next year. They
are even less interested putting a conservative Republican in
line to become the first Hispanic justice on the Supreme
Court.
I ask unanimous consent that the entire editorial be printed in the
Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I don't know if Mr. Estrada is a conservative Republican,
but I do know he is qualified for the position to which he is
nominated, and it is well past time to vote on his nomination. This
Friday will mark the two-years anniversary of his nomination on May 9,
2001. The Majority leader has made every attempt to obtain time
agreements or use other procedures to bring this matter to a
resolution. Each of these attempts has been rebuffed by a minority of
this body. Some Senate Democrats have used every delay and
obstructionist tactic available. Yet they still cannot identify one
substantive issue that would justify or excuse their refusal to permit
a final vote.
Mr. President, on this day, 141 years ago, the Mexican Army defeated
forces which represented tyranny and defended the liberty of their
nation. I urge my colleagues, on this day of celebration, to defeat the
tyranny of the minority by voting to bring the debate on the nomination
of Miguel Estrada to a close.
I yield the floor.
Exhibit 1
[From the Atlanta Journal-Constitution, May 4, 2003]
Democrats Use Wrong Route to Win South
(By Jim Wooten)
U.S. Senator John Kerry (D-Mass.) brought his presidential
aspirations to the South last week, promising in Alabama that
he will make the national party competitive here once again.
Make competitive, he neglected to mention, a party that has
positioned itself in opposition to the war in Iraq and
anything other than token tax cuts, and as Democrats reminded
the nation once again about the elevation of conservatives to
the federal bench. While the White House may appeal to some
as inside work with no heavy lifting, getting there through
the South toting this party's agenda will be a task requiring
Herculean labor.
Just this week, for example, Kerry's Democratic
colleagues--Georgia's Zell Miller excepted--began to
filibuster the nomination of Texas Supreme Court Justice
Priscilla Owen to the New Orleans-based 5th U.S. Circuit
Court of Appeals.
Kerry and other Democrats are already filibustering the
nomination of Miguel Estrada to the District of Columbia
Circuit Court of Appeals--the first time simultaneous
filibusters against judicial nominees have occurred in the
U.S. Senate.
Both Owen and Estrada are superbly qualified in every
respect. Yet on Owen, those who complain that a ``glass
ceiling'' exists for women of achievement are busily
constructing one to keep her in her place. And those who
complain that the federal bench lacks ``diversity'' find
Estrada to be too much diversity for their taste. He is
considered to be a conservative, and the interest groups that
drive the Democratic Party nationally fear Owen is, too, at
least on their abortion litmus test.
The fear with Owen and Estrada is that one or both will be
nominated to the U.S. Supreme Court should a vacancy occur.
Senate Democrats are determined to keep off the Circuit Court
bench any perceived conservative who has the credential to
serve on the U.S. Supreme Court.
Kerry, then, and the legions of presidential soundalikes
who campaign with him, have to come to a region where
conservatism is the mainstream to explain how reducing
federal taxes is bad and cheating exemplary women and
minorities of the fair hearing they have earned before the
U.S. Senate because they might be conservative is good.
``I can help you wage a fight down here and rebuild this
party for the long run,'' Kerry said in Birmingham.
Republicans have carried Alabama in all but three
presidential elections in the past 50 years. Jimmy Carter in
1976 was the last Democrat to carry the state. George W. Bush
carried every Southern state in 2000, including Tennessee,
his Democratic opponent's home state. Al Gore Jr. thought so
little of his Southern prospects that he actively campaigned
in just three states--Tennessee, Florida and West Virginia.
Some Democrats, said Kerry, were ``surprised'' that he
visited Alabama.
No surprise that he visited. The real surprise is the party
baggage he hauled.
Opposition to tax cuts is comprehensible. Politicians
loathe interruption in the flow of spendable revenues.
Opposition to the war is, too. Too confrontational. Angers
adversaries. Provokes understandable aggression, for which we
bear unexpurgated sin.
While some positions are understandable, not so their
party-line opposition to Owen and Estrada. Owen, the new
filibusteree, drew the American Bar Association's highest
rating. She is a cum laude graduate of the Baylor University
Law School who scored the top grade in Texas on the bar exam.
She practiced 17 years before becoming a judge and has been
widely praised for her integrity and ability. Liberal groups
say, unconvincingly except when they are talking to each
other and Senate Democrats, that she is anti-abortion and
pro-business.
Being a neighborly people, Southerners of course welcome
Kerry to visit the region and
[[Page S5716]]
to indulge himself in its hospitality. But the senator should
not indulge himself into believing that a party that opposes
tax cuts and filibusters nominees such as Owen and Estrada
has the slightest chance of carrying this region.
____
Exhibit 2
[From the Dallas Morning News, Feb. 21, 2003]
Rush to Judgment: Estrada Nomination Has Been Blocked Too Long
There is a time for talking and a time for voting. The time
is past for the U.S. Senate to talk about Miguel Estrada's
nomination to the federal Court of Appeals for the District
of Columbia circuit. It's time to vote.
Having emigrated from Honduras as a teenager unable to
speak much English, Mr. Estrada went on to graduate magna cum
laude from Columbia University and Harvard Law School, to
clerk for a Supreme Court justice, to serve two
administrations in the U.S. solicitor general's office, to
win more than a dozen cases in the Supreme Court. In short,
the 42-year-old lawyer is talented. Who knew that talent
would extend to tying the Senate in knots for days on end.
Democrats by now are in full filibuster. Senate
proceedings, as carried on C-Span, resemble the firm Goundhog
Day, where the main character has to relive the same day over
and over again. Every day, it's the same thing. Democrats get
up, march over to the podium, shuffle papers and recite their
main complaint with Mr. Estrada--that he's conservative,
unconventional and unapologetic. That when he had the chance
to hand them the rope with which to hang him during his
hearing before the Senate Judiciary Committee, he refused to
hold up his end.
Democrats haven't liked Mr. Estrada from the beginning.
Part of that is due to his ideology--which is decidedly not
Democratic. But part of it also has to do with the fellow who
nominated him. Democrats don't relish giving President Bush
one more thing to brag about when he goes into Hispanic
neighborhoods during his re-election campaign next year. They
are even less interested in putting a conservative Republican
in line to become the first Hispanic justice on the Supreme
Court.
And so they have talked and talked, in hopes that
Republicans will back down. They won't. Nor should they.
Republicans certainly stalled their share of appointments
during the Clinton administration. But Democrats are being
shortsighted in seeking retaliation. It is precisely these
sorts of narrowly motivated temper tantrums--from both sides
of the political aisle--that turn off voters and make cynics
of the American people. When that happens, it doesn't matter
which nominees get confirmed or rejected. Everybody loses.
Mr. HATCH. I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, for some reason the Republican leadership
is forcing what may be the fifth vote on a cloture motion on this
divisive and controversial nomination.
I mention that because none of these cloture motions would have been
needed if the administration had simply cooperated with the Senate as
did prior administrations, Democratic and Republican. I have been here
with six different administrations. The previous five always, no matter
who was President, no matter who was in the majority in the Senate,
always showed cooperation on judicial nominations as, I believe, has
every President in the last century. Not this one.
I mention that because we are having this vote yet nothing has
changed since the last cloture vote. No effort has been forthcoming by
the administration to accommodate Senators' requests for access to the
executive branch documents requested last May, almost a year ago.
Everybody says Mr. Estrada is perfectly willing to come up and answer
Senators' questions but not to answer the only questions the Senators
really want to ask him.
Remember, this man was appointed based on what the administration
knows of his writings while employed in the government. They have
access to these writings. They say, in effect: Trust us. I am a strong
supporter of Ronald Reagan's position: Trust but verify. I would like
him to verify what was in these writings. We have not had access to
them. If we did, we wouldn't be needing all these cloture votes.
Since the beginning of this year, despite the fixation on the
President's most controversial nominations, we have worked hard to
reduce judicial vacancies even further. As of today, the number of
judicial vacancies is 49. That is the lowest it has been in many years.
That is lower than at any time during the entire 8 years of the Clinton
administration. We have already reduced judicial vacancies from 110,
when I became chairman of the Senate Judiciary Committee, to 49. We did
this in less than 2 years. We have reduced the vacancy rate from 12.8
percent to 5.7 percent, the lowest it has been in a decade. If we could
get even a modicum of cooperation from the administration, think of the
additional progress we could be making.
The Nation's unemployment rate rose last month to 6 percent, but the
vacancy rate in the Federal judiciary dipped to 5.7 percent. While the
number of private sector jobs lost since the beginning of this
administration is 2.7 million, and while almost 9 million Americans are
now out of work, and unemployment has risen by more than 45 percent
during this administration, Democrats in the Senate have cooperated,
moving forward to confirm 121 of the President's judicial nominees to
reduce judicial vacancies to the lowest level in more than a decade and
to reduce Federal judicial vacancies by more than 60 percent.
Apparently, the majority in the Senate remains obsessed in seeking to
force through the most divisive of this President's controversial,
ideologically chosen nominees. While they have pushed the Nation's
unemployment rate up to 6 percent, they have focused their energies on
dropping the vacancy rate of the Federal judiciary to below that.
I think it is unfortunate that the White House and some of my friends
on the other side of the aisle have insisted on this confrontation
rather than working with us to provide the needed information so we
could proceed on the Estrada nomination. Some seem to prefer political
game playing, seeking to pack the courts with ideologues and leveling
baseless charges of bigotry at those who may disagree with them, rather
than working with us on this nomination by providing information and
proceeding to a fair vote.
We have spent day after day on this nomination that will not go any
further until the nominee is given permission to provide answers to us
regarding the same questions that were obviously asked by the
administration. What was it he wrote that made the administration want
to appoint him to the second highest court in the land?
On one level, I admire their efforts to get this high-paying lifetime
job for this nominee. Maybe they should talk about the 9 million
Americans who do not have any lifetime job, who now don't have any job;
or the 2.7 million Americans who have lost their jobs since this
administration came into office. Maybe we should be debating that.
Maybe we should be working to put them back to work. Apparently, the
administration believes it is more important to have this one job.
In that regard, just as any employer would want to know why they
should hire a particular person, we in the Senate have a right to ask
what is it in this man's record that made the administration want to
appoint him to the second highest court in the land. But they don't
want us to see what it was on which they based their decision. Maybe
they believe the Senate is irrelevant.
That is not the way I read the advise and consent clause. Let us see
what brought them to their conclusion, and then let us go forward.
Let's actually take those steps that would unite us rather than divide
us, and then maybe the administration will be able to turn to the lives
of the millions upon millions of Americans who are out of work--the
highest unemployment rate in a decade.
To reiterate, today the Republican leadership in the Senate is
forcing what may be the fifth vote on a cloture motion on this divisive
and controversial nomination. None of these motions would have been
needed if the administration had cooperated with the Senate as have
prior administrations, Democratic and Republican. Nothing has changed
from the last cloture vote. No effort has been forthcoming by the
administration to accommodate Senators' requests for access to the
executive branch documents requested last May, almost 1 year ago. The
White House continues to obstruct any progress toward resolving this
matter
[[Page S5717]]
by its unprecedented refusal to turn over documents requested to
determine whether or not Miguel Estrada should sit on the second
highest court in the land, for life. Mr. Estrada's nomination is
apparently being sacrificed by the administration for its own partisan,
political purposes.
I do want to thank the Democratic leadership in the Senate for
working with us and helping press for a vote on the nomination of Judge
Edward Prado to the Fifth Circuit last week. We had been seeking that
vote for several weeks, since his nomination was favorably reported
with the support of every Democratic member of the Judiciary Committee.
Last Thursday, the Republican leadership at last agreed to schedule
that nomination for Senate consideration. Judge Prado's nomination was
confirmed 97 to zero. This nomination is another example of how quickly
the Senate is able to proceed on consensus, mainstream nominees. Judge
Prado has 19 years of experience as a U.S. District Court judge. Our
review of his actions on the bench showed him to have a solid record of
fairness and evenhandedness. No supervisor or colleague of Judge Prado
has questioned his willingness to interpret the law fairly. Judge Prado
enjoyed the full support of the Congressional Hispanic Caucus and the
Mexican American Legal Defense and Education Fund. Not a single person
or organization submitted a letter of opposition or raised concerns
about Judge Prado.
Judge Prado is now the second nominee of this President to be
confirmed by the Senate to the Fifth Circuit after years during which
President Clinton's nominees were denied hearings and consideration by
a Republican Senate majority. Although Republicans had refused to
proceed on three of President Clinton's nominees to that court--two
from Texas and one from Louisiana--during his entire second term,
Democrats proceeded with hearings and committee votes on all three of
President Bush's nominees. Judge Prado is the fourth nominee of this
administration to receive a hearing and consideration.
Still stalled on the Senate Executive Calendar is the nomination of
Judge Cecilia Altonaga to be a Federal judge in Florida. Senator Graham
requested that the Judiciary Committee expedite the consideration of
her nomination, and we did. All Democratic members of the Judiciary
Committee supported this nomination. She will be the first Cuban-
American woman to be confirmed to the Federal bench, whenever the
Republican majority is willing to proceed on her nomination. In my
view, the Senate's time would be better spent this evening voting on
this nomination than another unsuccessful cloture vote on the Estrada
nomination. Unfortunately, that is not how the Republican leadership
has chosen to proceed.
The administration remains intent on packing the Federal circuit
courts and on insisting that the Senate rubberstamp its nominees
without fulfilling this body's constitutional advise and consent role
in this most important process. The White House could have long ago
helped solve the impasse on the Estrada nomination by honoring the
Senate's role in the appointment process and providing the Senate with
access to Mr. Estrada's legal work. Past administrations have provided
such legal memoranda in connection with the nominations of Robert Bork,
William Rehnquist, Brad Reynolds, Stephen Trott and Ben Civiletti, and
even this administration did so with a nominee to the Environmental
Protection Agency. In my statement in connection with an earlier
cloture petition, I outlined additional precedent for sharing the
requested materials with the Senate, as did Senator Kennedy. I am
disappointed that the White House refuses to end this problem and,
instead, continues to politicize the process.
We understand that the President's nominees will be Republicans. We
understand they will be conservative. We understand that they will have
positions with which we disagree. I have voted for hundreds of nominees
who were conservative Republicans.
In just the last 2 years, 121 of the President's judicial nominees
have been confirmed. One hundred of those confirmations came during the
17 months of Democratic leadership of the Senate. No fair-minded
observer could term that obstructionism. By contrast, during the 6\1/2\
years during which Republicans controlled the Senate and President
Clinton's nominations were being considered, they averaged only 38
confirmations a year. During the last two years of the Clinton
administration, the Senate confirmed only 73 Federal judges--the Senate
confirmed 72 judges nominated by President Bush last year alone.
Combining the 1996 and 1997 sessions, Republicans in the Senate allowed
only 53 judges to be confirmed in 2 years, including only seven new
judges to the Circuit Courts.
It is a shame that the White House refuses to work together with us
to do even more to help the Federal judiciary. This week, we have
already had a debate and vote on yet another controversial circuit
court nominee, Deborah Cook, for the Sixth Circuit, and now a cloture
vote on the nomination of Miguel Estrada.
The fact is that when Democrats became the Senate majority in the
summer of 2001, when we inherited 110 judicial vacancies, there was a
dire need to fill 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 number of judicial vacancies
is at 49. That is the lowest it has been in 7 years. That is lower than
at any time during the entire 8 years of the Clinton administration. We
have already reduced judicial vacancies from 110 to 49, in less than 2
years. We have reduced the vacancy rate from 12.8 percent to 5.7
percent, the lowest it has been in a decade. With some cooperation from
this administration, think of the additional progress we could be
making.
While the Nation's unemployment rate rose last month to 6 percent,
the vacancy rate on the Federal judiciary dipped to 5.7 percent. While
the number of private sector jobs lost since the beginning of the Bush
administration is 2.7 million, almost 9 million Americans are now out
of work, and unemployment has risen by more than 45 percent, Democrats
in the Senate have cooperated in moving forward to confirm 121 of this
President's judicial nominees, to reduce judicial vacancies to the
lowest level in more than a decade, and to reduce Federal judicial
vacancies by almost 60 percent. Yet the Republican-led Senate remains
obsessed with seeking to force through the most divisive of this
President's controversial, ideologically-chosen nominees.
It is unfortunate that the White House and some Republicans have
insisted on this confrontation rather than working with us to provide
the needed information so that we could proceed on the Estrada
nomination. Some on the Republican side seem to prefer political game
playing, seeking to pack our courts with ideologues and leveling
baseless charges of bigotry, rather than to work with us to resolve the
impasse over this nomination by providing information and proceeding to
a fair vote.
I was disappointed that Senator Bennett's straightforward colloquy
with Senator Reid and me on February 14, which pointed to a solution,
was never allowed by hard-liners on the other side to yield results. I
am disappointed that all my efforts and those of Senator Daschle and
Senator Reid have been rejected by the White House. The letter that
Senator Daschle sent to the President on February 11 pointed the way to
resolving this matter reasonably and fairly. Republicans would
apparently rather engage in partisan politics.
Republican talking points will undoubtedly claim that this is
``unprecedented.'' They will ignore their own recent filibusters
against President Clinton's executive and judicial nominees in so
doing. The only thing unprecedented about this matter is that the
administration and Republican leadership have shown no willingness to
be
[[Page S5718]]
reasonable and accommodate Democratic Senators' request for information
traditionally shared with the Senate by past administrations. That this
is the fifth cloture vote on this matter is an indictment of Republican
intransigence on this matter, nothing more. What is unprecedented is
that there has been no effort on the Republican side to work this
matter out as these matters have always been worked out in the past.
What is unprecedented is the Republican insistence to schedule cloture
vote after cloture vote without first resolving the underlying problem
caused by the administration's inflexibility.
I urge the White House and Senate Republicans to end the political
warfare and join with us in good faith to make sure the information
that is needed to review this nomination is provided so that the Senate
may conclude its consideration of this nomination. I urge the White
House, as I have for more than 2 years, to work with us and, quoting
from today's New York Times editorial:
The answer is not to try to twist the rules or demonize
Democrats. It is for the White House to consult with the
Senate and agree on nominees that senators from both parties
can in good conscience confirm.
The President promised to be a uniter not a divider, but he has
continued to send us judicial nominees that divide our nation and, in
this case, he has even managed to divide Hispanics across the country.
The nomination and confirmation process begins with the President, and
I urge him to work with us to find a way forward to unite, instead of
divide, the Nation as well as the Senate on these issues.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The 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, the Senator from Vermont made a point that
the White House has seen these privileged documents in the Solicitor
General's Office. If they have any evidence of that, I would like to
see it because I know they haven't looked at those records. Those are
the most highly privileged records in the Justice Department. I am not
sure that a Solicitor General wouldn't resign before giving up those
records.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, if I have any remaining time, I yield it.
Mr. HATCH. Likewise.
Cloture Motion
The PRESIDING OFFICER. All time has been yielded. Under the previous
order, the clerk will report the motion to invoke cloture.
The legislative clerk read as follows:
Cloture Motion
We the undersigned Senators, in accordance with the
provisions of Rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Executive
Calendar No. 21, the nomination of Miguel A. Estrada to be
United States Circuit Judge for the District of Columbia
Circuit.
Bill Frist, Orrin Hatch, Judd Gregg, Norm Coleman, John
E. Sununu, John Cornyn, Larry E. Craig, Saxby
Chambliss, Lisa Murkowski, Jim Talent, Olympia Snowe,
Mike DeWine, Michael B. Enzi, Peter G. Fitzgerald,
Lindsey Graham, Jeff Sessions.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call is waived.
The question is, Is it the sense of the Senate that debate on the
nomination of Miguel A. Estrada to be United States Circuit Judge for
the District of Columbia Circuit shall be brought to a close?
The yeas and nays are mandatory under the rule. The clerk will call
the roll.
The legislative clerk called the roll.
Mr. McCONNELL. I announce that the Senator from Alaska (Ms.
Murkowski) and the Senator from Pennsylvania (Mr. Specter) are
necessarily absent.
Mr. REID. I announce that the Senator from Washington (Ms. Cantwell),
the Senator from Florida (Mr. Graham), the Senator from Massachusetts
(Mr. Kerry), the Senator from Connecticut (Mr. Lieberman), the Senator
from Maryland (Ms. Mikulski), the Senator from Georgia (Mr. Miller),
and the Senator from Washington (Mrs. Murray) are necessarily absent.
I further announce that, if present and voting, the Senator from
Massachusetts (Mr. Kerry) would vote ``no.''
The PRESIDING OFFICER (Mr. Graham of South Carolina). Are there any
other Senators in the Chamber desiring to vote?
The yeas and nays resulted--yeas 52, nays 39, as follows:
[Rollcall Vote No. 140 Ex.]
YEAS--52
Alexander
Allard
Allen
Bennett
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Chafee
Chambliss
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
DeWine
Dole
Domenici
Ensign
Enzi
Fitzgerald
Frist
Graham (SC)
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Kyl
Lott
Lugar
McCain
McConnell
Nelson (FL)
Nelson (NE)
Nickles
Roberts
Santorum
Sessions
Shelby
Smith
Snowe
Stevens
Sununu
Talent
Thomas
Voinovich
Warner
NAYS--39
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Byrd
Carper
Clinton
Conrad
Corzine
Daschle
Dayton
Dodd
Dorgan
Durbin
Edwards
Feingold
Feinstein
Harkin
Hollings
Inouye
Jeffords
Johnson
Kennedy
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
Pryor
Reed
Reid
Rockefeller
Sarbanes
Schumer
Stabenow
Wyden
NOT VOTING--9
Cantwell
Graham (FL)
Kerry
Lieberman
Mikulski
Miller
Murkowski
Murray
Specter
The PRESIDING OFFICER. On this vote, the yeas are 52, the nays are
39. Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
VOTE EXPLANATION
(At the request of Mr. Daschle, the following statement was ordered
to be printed in the Record.)
Ms. CANTWELL. Mr. President, I have the great honor of being
in Washington State today in order to welcome home the USS Lincoln and
USS Camden. After a 10-month deployment, including valuable service in
the recent war against Iraq, the men and women of the USS Lincoln and
her carrier strike group will finally reach Everett and Bremerton, WA
in the next few hours. Unfortunately, in order to be present for this
important homecoming in my State--it was necessary to miss two votes
today.
Mr. HATCH. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________