[Congressional Record Volume 149, Number 115 (Wednesday, July 30, 2003)]
[Senate]
[Pages S10196-S10203]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




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

  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, I believe the regular order is for the 
minority to be given a half hour on the proposal to proceed with the 
Estrada nomination; is that correct?
  The PRESIDING OFFICER (Mr. Hagel). The Senator from New York has one-
half hour under his control.
  Mr. SCHUMER. Mr. President, we are back to voting on whether to 
proceed with the Estrada nomination. Before I get into the merits of 
Mr. Estrada, I want the record to show that we have now confirmed 140 
of the President's nominees. By the end of the week, it could be over 
150. By the end of the week, we may be blocking as many as 4. So right 
now it is 140 to 4 and could be at the end of the week 150 to 4. That 
is a record that even Yankee fans would be jealous of.
  We have this view of some, including the White House, that we are 
obstructionist because we have tried to block 4 out of 140 nominees. My 
guess is if James Madison or George Washington or Benjamin Franklin or 
any of the Founding Fathers were looking down on this Chamber, they 
would say: Why are they blocking so few? We wanted the President and 
the Senate to come together on judicial nominees.
  It outlines in the Federalist Papers that the Founding Fathers didn't 
want the President to have sole power to choose judges, nor did they 
want the Senate to be a rubber stamp. In fact, one of the first 
nominees, John Rutledge from South Carolina, was rejected by the 
Senate, which contained a goodly number of the Founding Fathers 
themselves because they were appointed to the Senate in those days 
right from the Constitutional Convention. Rutledge was rejected because 
of his views on the Jay Treaty.
  So this idea that unless we find the candidate to have some kind of 
criminal record or has done something unethical, we should not be 
examining that record or speaking to that record makes a good deal of 
sense. President Bush is a classic case of what the Founding Fathers 
were worried about in the way he has chosen his nominees because the 
Founding Fathers, I believe, wanted nominees to be from the American 
mainstream. They wanted them to interpret the law, not to make law.
  There have been times when judges have leaned to the far left--the 
1960s and 1970s--and they now lean to the far right. The bench becomes 
infused with ideologues and ideologies, and those judges want to make 
law, not interpret law--very much against what our Founding Fathers 
wanted. That has been the case of President Bush. I don't think it is 
disputed that he has nominated judges through an ideological prism more 
than any President in our history. You don't have a sprinkling of 
Democrats or liberals or even moderates--you have a few moderates, but 
the overwhelming majority of the President's judges have been hard 
core, hard right. A few of them have been so far over that they don't 
deserve nomination. They include Miguel Estrada and Priscilla Owen, and 
they include, in my opinion, two nominees we may vote on later this 
week: Carolyn Kuhl, and the attorney general of Alabama, Pryor.
  If you look at the records of these judges and you put scales, left 
to right, 10 being the most liberal and 1 being the most conservative, 
these judges are ones, to be charitable. When Bill Clinton nominated 
judges, he nominated mainly sixes and sevens, people who tended to be a 
little more liberal, but were moderate and mainstream--very few legal 
aid lawyers or ACLU charter members, much more prosecutors and partners 
in law firms.

  This President, for whatever reason, has chosen to nominate judges 
way over to the far right side.
  I am proud of what we have done in this Chamber. I am proud that we 
are bringing some moderation to the bench. I am proud that we are 
following the wishes of the Founding Fathers and not just being a 
rubber stamp. For those who try to beat us with a two-by-four, by 
calling names, by saying we are anti-Black, anti-Hispanic, anti-
Catholic, anti-women, when we oppose a judge who happens to be of that 
description, we are not going to win. We believe in what we are doing. 
We believe it is mandated by the Constitution. We believe we are 
following the will of the American people who don't want judges either 
too far left or too far right.
  I assure you, Mr. President, and I assure President Bush, and I 
assure my colleagues in the Senate that we will continue to do this. 
You can prolong this and put up all the visuals and nasty ads you want, 
like the one just run by one of the President's associates in Maine, 
accusing those who will vote against Mr. Pryor of being anti-Catholic, 
including good Catholics in this Chamber. That is wrong. In fact, I 
think it is reprehensible. But I tell the other side, not only will it 
not work, if anything it strengthens our desire to do the right thing.
  Let's talk about Miguel Estrada. This nominee was unusual in this 
sense: He had no real record because he had not been a judge 
previously, nor written law articles. By many reports, his views were 
very extreme. But when I approached the hearings for his nomination, 
and when many colleagues did, we were willing to see what he thought. 
The bottom line is that he didn't tell us what he thought. The bottom 
line is that when he was asked very simple questions on issues that he 
had an obligation to expound upon, such as: What is your view of the 
first amendment; how broad or narrow should it be; what is your view of 
the commerce clause; what is your view of the relationship between the 
States and the Federal Government; he kept hiding behind this idea that 
canon 5 of lawyers ethics says you should not comment on a pending case 
if you are nominated to be a judge, so that he could not comment on 
anything. If Mr. Estrada were asked how should Enron be treated, he 
would rightfully say: I cannot answer that because I might judge Enron 
on the bench. But if he is asked what his views on corporate ethics 
are, of course, he has an obligation to answer that question. He did 
not. And doing so was an affront, not to any one individual, but to our 
Constitution.
  If Mr. Estrada were correct, then probably most of the judges we have 
nominated in the last two decades should be cited for violation of 
canon 5. They all answered these questions. Judges nominated by 
President Bush before and after Estrada have answered these questions. 
So why would Mr. Estrada not come clean and tell people what he 
thought? Why would he not do what every American has to do?
  When every American applies for a job, the employer says: Please fill 
out this questionnaire. Can you imagine someone saying I refuse to fill 
out the questionnaire in getting the job? It would be rare to do that. 
That is what he did. He is applying for a job--not just any job, but 
one of the most important jobs this Government has--a Federal judge, 
with awesome power. He kept refusing to fill in the job application 
form by answering the questions we had asked.

  We then came to the question: How could we tell what his views were? 
We

[[Page S10197]]

did not stop. We asked him, and we asked the Justice Department to give 
us some documents about issues on which he had worked when he was in 
the Solicitor General's Office. There were some in that office who 
reported, again, that his views were way over, that they were extreme, 
and we were refused our request.
  I will tell you this, Mr. President, and I will tell every Member of 
this Chamber, as long as Mr. Estrada refuses to answer questions about 
issues over which he is going to have virtual life and death power in 
terms of governing the American people and we do not know how he feels, 
we are going to continue to block him. We are proud of that fact.
  At first when it started, most people said: Don't do it; politically 
they will attack you--and this and that. I told my colleagues I thought 
we ought to do it because it is the right action to take, regardless of 
politics.
  A funny thing has happened. Politics seems to be rolling in our 
direction. People are beginning to understand that this President is 
not nominating mainstream, moderate judges. People are beginning to 
understand that there is a desire to pack the courts and turn the clock 
back.
  Congress will not turn the clock back. The President himself will not 
turn the clock back. We are elected. But if you put judges in, they can 
turn the clock back for a whole generation. There is a view out there 
that this is happening.
  What started out as something done out of a deep conviction remains a 
deep conviction, and our view about the direction of this country, our 
view about the appropriate role of the Senate in the nomination process 
of judges is not ending up to be the political loser that some 
prognosticated.
  We will continue to block this nomination. If nominees stubbornly and 
arrogantly refuse to answer legitimate questions of members of the 
committee, we will not allow them to become judges. That is not our 
doing in an ultimate sense; it is their own doing. If nominees are so 
far out of the mainstream that it is quite clear they will make law, 
not interpret the laws that others have made, we will oppose them as 
well.
  We will vote on the nomination of Mr. Estrada for the seventh time. I 
make the point that my good friend from New Mexico was saying we have 
to move the Energy bill forward. Our majority leader is saying we have 
to move the Energy bill forward, but we are taking out time to vote on 
this nomination again. The purpose I do not know, a purpose grander 
than I can think of. But we are here and we are doing it.
  No one has changed his or her minds. Mr. Estrada has not answered the 
questions, and as long as he continues not to answer these important 
vital questions, he will not be approved.
  Mr. President, I reserve the remainder of my time and 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. DASCHLE. 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. DASCHLE. Mr. President, I will use some of the allocated time on 
the nomination to make a comment. We have been debating the Energy bill 
for the last couple of days and, of course, for good reason; the 
distinguished majority leader has said he wants to move this 
legislation forward and that we ought to do all we can to find a way to 
resolve the many issues that are still pending on energy prior to the 
end of the week.
  I cannot think of a more counterproductive effort, a more 
counterproductive device, than to bring back a nomination that has 
already been before the Chamber six times. I certainly am not 
questioning the majority's motives. I do not question their desire to 
finish the Energy bill, but I do question the management of our time 
when I think with every bit of sincerity our Republican friends tell us 
they want to finish this bill.
  We are now in a quorum call in the middle of the day on a nomination 
that has already been before the Senate six separate times this year. 
Six times we have debated whether Miguel Estrada ought to be required 
to do what every nominee is required to do, which is answer the 
questions and fill out the job application. Six times, without 
equivocation, Senators said you do that and we will take another look 
at your nomination.
  Here we are now for the seventh time, in the middle of an energy 
debate that we are told by the majority must be done, debating once 
more this very issue.
  That is not all. Yesterday we debated Priscilla Owen, and I think 
that was for the third time. Tomorrow we may debate another nominee, 
William Pryor, for the first time. Who knows what could come on Friday.
  The majority needs to show us they are truly intent on working with 
us through these many important issues before they can convince us that 
they want to finish the job on energy.
  It is 1:25 and for the life of me I cannot understand why we are in 
the middle of a quorum call on a judicial nomination that has come 
before us on six other occasions. That is not good time management. It 
is not a good practice. It obviously has not generated much interest, 
and I think it is a huge waste of time.
  I only come again to express my disappointment and my puzzlement, my 
lack of ability to answer the question why is this happening now, when 
we have so much work to be done.
  I will make another prediction. This vote will not change. If we do 
it 18 more times, it will not change. So we can continue to waste our 
time or we can continue to find ways to work together to use our time a 
lot more effectively than we are using it now.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I thank the minority leader for his 
comments on this Miguel Estrada nomination.
  As a member of the Senate Judiciary Committee, I can say we have been 
very cooperative with the Bush administration. Of the 146 judges, if I 
am not mistaken--the minority leader can correct me but I think it is 
in the range of 140, and then there are five or six judges in another 
lifetime category that some add in, but whatever the number, 140, 146, 
it is significant--only two nominees to date have been held.
  We have a responsibility under the Constitution, as Members of the 
Senate, to advise and consent to the President's nominees, and that 
means more than a rubberstamp. In the Miguel Estrada case, he is a 
person with extraordinary academic credentials and an extraordinary 
legal background who has refused to provide the Senate and members of 
the Judiciary Committee important writings he generated which would 
reflect on his view of the law. He has said we cannot see them.
  A few months ago, when we first considered this nomination, the 
Republican Senator from Utah came to the floor--not Senator Hatch but 
his colleague Senator Bennett--and suggested maybe the answer to this 
impasse is for the White House to release these documents for us to 
review, and once having reviewed them we can decide whether to move 
forward with this nomination.
  I was here and I said I applaud that; I think that is a reasonable 
standard of conduct. Within hours, the White House came out and said 
publicly, we will not release them. We do not believe we have to, and 
we are not going to generate this kind of paperwork that may make 
Estrada's nomination more controversial. That was the end of the story. 
That has been the end of his nomination. So it was a conscious decision 
by the White House not to release documents which may give us an 
insight into Miguel Estrada and his lifetime appointment to one of the 
highest Federal courts in the land.
  In the Priscilla Owen situation, she is a classic judicial activist. 
We have nominated and approved scores of conservative judges for the 
Bush administration. She reached a new level, a level of judicial 
activism which has put her in a special category with Miguel Estrada.
  Now because of those two nominees being held up, we see practices in 
the Senate Judiciary Committee that are unprecedented. Rule 4, which is 
this obscure rule of the committee, was put in place by Senator Strom 
Thurmond

[[Page S10198]]

years ago to protect the minority. It is now being ignored on a regular 
basis, twice in the last few months by Senator Hatch. This rule 
basically says if the majority wants to, they are going to move a 
nominee regardless of whether there is minority opposition. That was 
never the practice of the committee. It is now. It is an effort by the 
Bush administration and their supporters and the Senate Judiciary 
Committee to basically ignore the precedent.
  In the next couple of days, we are going to consider two other 
nominees, and they are fraught with controversy. William Pryor of 
Alabama has become a lightning rod on Capitol Hill. If one looks at his 
background, what he has done as attorney general in the State of 
Alabama, they can understand why. This is a man who goes far beyond 
conservatism. His positions on issues far and wide are so 
controversial. I said during the course of the committee, when one 
looks at the controversial positions that have been taken by William 
Pryor, the Attorney General of Alabama, it is like an all-you-can-eat 
buffet. You do not want to fill up your plate early on with his 
controversial statements, discriminating against women, because you 
have to save room for his controversial statements when it comes to the 
environment and to civil rights.

  When it is all over, you are going to need more than one plate to get 
through the William Pryor all-you-can-eat buffet of controversial 
positions.
  This man is headed for the floor. How did he get here? He got here by 
circumventing an ethics investigation which was not completed. A 
decision was made by the Republicans in the Senate Judiciary Committee 
that we do not need to finish that investigation; we are just going to 
send him to the floor. Then they went through that shameful display on 
the issue of his religion, which I hope never again is brought up in 
the Senate Judiciary Committee but was brought up for William Pryor. 
Finally, they jammed it through, strong-armed his nomination to the 
floor, under rule 4.
  So here we sit in the minority and what are we supposed to do? Are we 
supposed to ignore these tactics, this departure from the precedent of 
the Senate Judiciary Committee? Are we supposed to ignore the fact that 
at least two, maybe four or five, of these nominees clearly would never 
have passed through the Senate Judiciary Committee under any other 
circumstances but for these tactics? I think if we did that, we would 
be ignoring our constitutional responsibility.
  Whether the nominee is William Pryor, Miguel Estrada, or Priscilla 
Owen, time and again we have to stand and accept our constitutional 
responsibility to really stand in judgment as to whether these 
individuals deserve a lifetime appointment to the Federal court. Miguel 
Estrada, until he is ready to come clean with his writings so we 
understand who he is and what he believes, I am afraid is going to face 
the same fate over and over again.
  The Republicans can call this to a vote as often as they want.
  Our Senate Democratic leader, Senator Daschle, is right: The 
Democrats will hold fast to the position. Until he is forthcoming and 
honest and open as to who he is and what he believes, he does not 
deserve this high appointment to a Federal circuit court. That spells 
out why we are here.
  I also add, I listened for days last week and this week as the 
Republicans complained we were not spending enough time on the Energy 
bill; we were finding all sorts of excuses not to get down to the work 
of the Energy bill. We are certainly not on the Energy bill right now. 
We were not yesterday when we voted on Priscilla Owen, nor will we be 
later in the week when other judicial nominations come to the Senate. 
Any excuse will do to get off that bill, it seems. I had hoped we would 
stay on it and do our work. I offered my amendment early. Others have 
done the same. We will continue to make the symbolic votes.
  If we are going to have true comity in this institution, if we are 
going to have a cooperative relationship, it will require us to deal 
with this on a bipartisan basis. I urge my colleagues to continue to 
oppose the nomination of Miguel Estrada.
  Mr. LEAHY. Mr. President, yesterday the assistant minority leader 
made some cogent observations about how the Senate is being required to 
expend hours on matters that are leading nowhere and take away from 
debate on the Energy bill. If the Republicans were truly serious about 
finishing the Energy bill this week, they would not be scheduling hours 
of debate on contentious judicial nominations. Nor for that matter 
would they break for several hours yesterday to have a pep rally at the 
White House. From the Senate schedule, an objective observer would have 
to think it is more driven by partisanship and trying to score 
political points than a desire to make progress on the business of the 
Senate and on the issues that are the most important to the American 
people.
  This week we have not proceeded to the foreign operations 
appropriations bill, which contains a number of matters of overriding 
importance to the country and the world, although Chairman McConnell 
and I have been ready to proceed. We have not proceeded to the energy 
and water appropriations bill or the other appropriations matters that 
need to be concluded soon for the Government and Government programs to 
continue to operate in the fiscal year that will soon be upon us. 
Usually we devote July to appropriations matters but the Republican 
leadership has chosen to take this week off in that regard.
  Today we must again return to the controversial nomination of Miguel 
Estrada to the U.S. Court of Appeals for the D.C. Circuit. The last 
cloture vote on this nomination was scheduled on May 8. The only thing 
that has changed since that unsuccessful vote is that the 
administration and some Republicans in the Senate have ratcheted up 
their unprecedented partisanship and the use of judicial nominees for 
partisan political purposes.
  I spoke yesterday about the new low to which some Republican 
partisans have stooped in political ads and charges that should offend 
all Americans. I again challenged Republicans and the administration to 
disavow those despicable efforts but, instead, they are choosing to 
continue to support the smear campaign of insult and division. 
Yesterday I inserted into the Congressional Record some of the articles 
and editorials that comment upon this most troubling development.
  Yesterday I also had the opportunity to meet with representatives of 
the Interfaith Alliance. I thank them for condemning these unwarranted 
attacks and for standing up for the Constitution and the first 
amendment rights of all Americans. Reverend Gaddy, Father Drinan, 
Reverend Veazy, Right Reverend Dixon, and Rabbi Moline understand what 
is afoot and have spoken out in the best tradition of this country, and 
I thank each of them.
  I do not expect the vote on this nomination to change today. Nothing 
has been done to accommodate Senators' concerns. No arrangements have 
been made to provide access to the documents requested in connection 
with this nomination that are available to the administration and that 
Mr. Estrada said he had no objection be provided. Thus circumstances 
have not changed since the first vote on this nomination or the most 
recent vote back in May.
  There continues to be, in the phrase favored by the White House, 
``revisionist history'' regarding the precedent of providing the Senate 
with legal memos to the Solicitor General and by the Solicitor General 
and similar documents in connection with nominations for both lifetime 
and short-term posts. Senator Schumer, Senator Kennedy, and I have 
detailed those earlier precedent in earlier debate. It has not been 
refuted. It cannot be refuted. Facts are stubborn things. Nonetheless 
the administration and Republicans continue to ignore the facts seeking 
political gain and have chosen to use Mr. Estrada as a pawn in their 
efforts. That is unfortunate and regrettable.
  We have worked hard to try to balance the need for judges with the 
imperative that they be fair judges for all people, poor or rich, 
Republican or Democrat, of any race or religion. This has been 
especially difficult because a number of this President's judicial 
nominees have records that do not demonstrate that they will be fair 
and impartial. In response, the White House and its allies have 
bombarded the airwaves with all manner of misleading information to try 
to bully the

[[Page S10199]]

Senate into rolling over and rubber-stamping every one of its these 
nominees.
  The claims that we are anti-Hispanic or anti-Catholic or anti-woman 
or anti-Christian are part of Republican politics of attack and 
division as taught by Presidential advisor Karl Rove and as implemented 
by the administration's allies in the Senate and C. Boyden Gray and his 
so-called Committee for Justice, who paid for the most recent volley of 
ads. These dirty tricks are nothing new to this gang. Earlier this 
year, Mr. Gray and his group ran ads insinuating that Democrats oppose 
the nomination of Mr. Estrada because he is Hispanic, ads which were 
refuted by the courage of many Latino leaders and Latino civil rights 
groups which spoke out against confirming Mr. Estrada. Mr. Gray's group 
recently ran print and radio ads calling Democratic Senators anti-
Catholic because they oppose President George W. Bush's most 
controversial and divisive appellate nominee, Alabama Attorney General 
Bill Pryor. These are despicable and false charges intended to distract 
the public from the serious evidence that Mr. Pryor was chosen because 
he would be an unfair, results-oriented judge. This type of 
demagoguery, in its shameful effort to mislead and inflame, should be 
disavowed.
  The cynical political games are all the more disappointing from a 
President who campaigned claiming that he was going to be a uniter not 
a divider and set a new tone in Washington. The reality is that on 
nominations this administration goes out of its way to choose divisive 
nominees. The tone set by the White House has been unilateral and been 
marked by a refusal to consult with Senators in advance of nominations 
and to accommodate concerns raised.
  Senate Democrats have more than demonstrated our good faith. We 
inherited 110 vacant seats in the Federal judiciary in July 2001, 
vacancies that were increased and perpetuated under Republican control 
of the Senate. In 17 months, Democrats worked hard to have the Senate 
confirm 100 of President Bush's judicial nominees.
  Second, as of July 28, 2003, the Senate has confirmed 140 of 
President Bush's judicial nominees, including 27 circuit, or appellate, 
nominees. This is more circuit court judges confirmed at this point in 
his Presidency than for his father, President Clinton, or President 
Reagan at the same point in their Presidencies. It is more judges than 
a Republican-controlled Senate allowed be confirmed in any 3-year 
period serving with President Clinton.
  We are finally below the number of vacancies Republicans inherited in 
1995, and earlier this year we reached the lowest number of vacancies 
in the Federal courts in 13 years. This from the 110 vacancies that 
Democrats inherited from Republican obstruction. Indeed, today there 
are more full-time Federal judges serving on the Federal courts than at 
any time in U.S. history.
  These confrontations and problems with nominations are of the White 
House's own making. It is true that some of this President's judicial 
nominees with troubling records have not been confirmed. It is also 
true that Democrats have supported as many nominees as we could 
responsibly. Democrats have not been spoiling for a fight.
  We did not seek out the nomination of Judge Pickering or Judge Owen. 
But we treated them fairly and much more fairly than Republicans had 
treated President Clinton's nominees to the Fifth Circuit by according 
them hearings, debate, and a committee vote. They were rejected. For 
the first time in history a President nonetheless renominated those 
rejected by the Senate Judiciary Committee. That it was unprecedented 
is part of the difficulty with these controversial and divisive 
nominees. Justice Owen is someone whom Republican judges on the Texas 
Supreme Court criticized as a judicial activist.
  We did not seek out the nomination of Miguel Estrada, but we accorded 
him a hearing and sought to consider the nomination responsibly. We are 
being required to vote without all the information we need. The 
committee did vote, which was more than was accorded President 
Clinton's nominees to the DC Circuit. The Senate is resisting a vote 
without knowing more about Mr. Estrada's work and judgment. Democrats 
did proceed to vote on and confirm the nomination of another to the DC 
Circuit in spite of Republican obstruction of President Clinton's 
nominations to that important court.
  We did not seek the controversial nominations of Jeffrey Sutton, 
Timothy Tymkovich, or Dennis Shedd, but we proceeded with them. They 
each received more negative votes than required to prevent cloture, but 
we proceeded. We proceeded on Deborah Owen, Michael McConnell, and a 
number of strongly conservative and controversial nominees.
  We have not chosen these fights this week. They have been staged by 
the Republican leadership. We have fought them for the sake of the 
American people, the independence of the Federal courts, and to 
preserve the Senate as a check on this expansive court packing by the 
Executive.
  Republican partisans have responded to the sincere concerns of 
numerous Senators about the records of controversial nominees by 
demanding that Senate rules be changed to force votes on the most 
extreme nominees. This effort is in the wake of repeated violations by 
Republicans of longstanding committee rules and agreements to allow 
sufficient time to review the FBI investigations and legal careers of 
the President's nominees for these powerful positions with lifetime 
tenure. With the Constitution's guarantee of lifetime jobs for judges, 
we cannot correct mistakes made in a slipshod confirmation process.
  In their quest to limit public scrutiny, Republicans have invented 
interpretations of the Constitution without any basis in tradition or 
history. Although they now contend that the Constitution requires an 
up-or-down vote on every judicial nominee, the plain facts are that 
they blocked up-or-down votes on more than 60 of President Clinton's 
judicial nominees and more than 250 of his nominees to short-term 
positions in his administration.
  Did they engage in wholesale constitutional violations during 
President Clinton's Presidency? I did think their one-person 
filibusters by anonymous, secret holds were unfair, and that is why I 
made blue slips public as chairman and have supported ending anonymous 
holds.
  Our Democratic Senate leadership worked hard earlier this year to 
correct some of the problems that arose from some of the earlier 
hearings and actions of the Judiciary Committee in violation of rules 
that have served the committee and the Senate well for a quarter of a 
century. However, once again just last week, the Republican members of 
the Judiciary Committee decided to override the rights of the minority 
and violate longstanding committee precedent under rule IV in order to 
rush to judgment even more quickly for this President's most 
controversial nominees. That was another sad day in committee. And yet 
Republicans persist in their obstinate and single-minded crusade to 
pack the Federal bench with right-wing ideologues, regardless of what 
rules, longstanding practices, personal assurances, or relationships 
are broken or ruined in the process.
  These rules and precedents are not just ``inside baseball.'' They are 
the core of the rule of law in our system of government. If those 
elected will not follow rules to confirm judges or create statutes, 
then we have little hope that the rule of law will prevail in our 
courts and in our country. Republicans in the Senate seem intent on 
sacrificing the role of the Senate as a check on the Executive for the 
short-term political gain of this White House.
  The Framers expressly protected Members' freedom of debate in the 
Constitution. The Constitution also gives the Senate the power to 
devise its procedural rules. There is no requirement in the 
Constitution that matters be decided by simple majorities or that all 
bills or nominations be brought to a vote.
  As the Supreme Court has recognized that ``Certainly any departure 
from strict majority rule gives disproportionate power to the minority. 
But there is nothing in the language of the Constitution, our history 
or our cases that requires a majority to always prevail on every 
issue.'' Gordon v. Lance, 403 U.S. 1 at 6, 197l, finding constitutional 
local voting rules requiring a majority of 60 percent to pass a 
measure. The notion that every nominee is

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entitled to a vote on the Senate floor is defied by decades of practice 
over the past two centuries.

  Filibusters and other parliamentary tactics to delay matters were 
known to the Framers. There was even a filibuster in the first Congress 
over locating the Capitol.
  More importantly, the Framers created the Senate to be unique from 
the House in the protections for the rights of each Senator and the 
stability and continuity in this body. Unlike the House, the Senate is 
not reborn every 2 years but two-thirds of its Members remain through 
every election. The Framers gave the Senate special powers, as a check 
on the executive branch, to confirm nominees or to decline to do so, 
affirmatively or by inaction.
  History shows that since the early 19th century, nominees for the 
highest court and to the lowest short-term post have been defeated by 
delay, while others were voted down. Not even President Washington's 
nominees were all confirmed. One of President Washington's short-term 
nominees, Mr. Benjamin Fishbourn's nomination to the port of Savannah, 
was defeated on the floor of the Senate because of the opposition of 
both Georgia Senators. Many Supreme Court nominations were defeated 
through inaction or delay, rather than by failed confirmation vote.
  For 160 years, until 1949, there was no way, other than through 
unanimous consent, to bring a judicial or executive nomination to a 
vote. For the past 86 years, the Senate has required a vote of two-
thirds to end debate on changing any rule of procedure, made explicit 
in 1959. For the past 54 years, the Senate has required more than a 
simple majority, ranging from two-thirds to three-fifths, to bring a 
judicial nomination or legislation to a vote. For the past 25 years, 
the Senate has required three-fifths of the Members sworn to vote to 
end debate on any matter, other than amending the rules, two-thirds.
  The Senate and the Nation not only have survived all of these years 
while respecting freedom of debate but have thrived, strengthening our 
democracy by ensuring a forum that honors the passionate views and 
interests of a minority of its members while checking the caprice of 
temporary majorities, particularly regarding the lifetime appointments 
to our Federal courts.
  As the late, eminent Professor Lindsay Rogers observed, ``the fact of 
the matter is . . . that, as the much vaunted separation of powers now 
exists, unrestricted debate in the Senate is the only check upon 
president and party autocracy.'' The American Senate 164, 1926. We 
would all do well to remember that, as the scholar Charles Black 
observed, ``If a President should desire, and if chance should give him 
the opportunity, to change entirely the character of the Supreme Court, 
shaping it after his own political image, nothing would stand in his 
way except the United States Senate.''
  If we give up the genius of the checks and balances of the 
Constitution as embodied in the role of the Senate exercising its 
independent judgement to confirm or reject lifetime appointees, by vote 
or inaction, the American people will be the losers. Yet some 
Republicans seem intent on inflicting more damage, to the process, to 
the Senate, and to the independence of the Federal courts.
  Republicans claim there has never been a filibuster of a circuit 
court judge. This is false. As recently as 2000, Senator Frist and his 
Republican colleagues filibustered two of President Clinton's circuit 
court nominees. One of those nominees, Judge Richard Paez, a Mexican 
American nominated to the Ninth Circuit was subject to filibuster 
procedures and other blocking tactics that prevented him from being 
confirmed for more than 1,500 days. That was a circuit court 
filibuster, even though it was ultimately unsuccessful. At the same 
time, Republicans were simultaneously filibustering the nomination of 
Ninth Circuit nominee Marsha Berzon. This was in addition to nearly 2 
dozen other circuit court nominees who were languishing or defeated in 
committee without a vote in committee or on the floor as well as dozens 
of other district court nominees.
  Republicans who now claim that the Constitution requires a majority 
vote on every judicial nominee should explain how Republicans through 
secret objections, blocked votes on more than 60 of President Clinton's 
judicial nominees, including nearly 2 dozen circuit court nominees. For 
Republicans to claim that the process is now broken because a few of 
President Bush's circuit court nominees are being debated in the light 
of day, rather than defeated in the dark of night, is breathtaking in 
its hypocrisy.
  Republicans also blocked more than 250 of President Clinton's 
nominees to short-term positions in his administration. For example, 
they successfully debated to death his nominations of an ambassador, 
Sam Brown, and of Dr. Henry Foster to be Surgeon General, in addition 
to the other more than 300 judicial or executive branch nominees 
blocked in the dark of night by one of more Republicans. I mention this 
because I just cannot imagine how they can get away with these false 
claims, which the most recent history of nominations clearly refutes. 
This data is publicly available.
  The Senate, unlike the House, has never had a rule allowing a simple 
majority to force a vote on any matter. Only for the past 54 years have 
Senate rules allowed fewer than the agreement of all Senators to force 
a vote on a nomination, reducing the number needed to end debate from 
unanimous agreement to the current number, 60 votes. These rules help 
ensure that lifetime appointees have wide, rather than narrow, support 
because consensus nominees are more likely to be fair than extremely 
divisive ones.
  The nomination we vote on today, that of Mr. Estrada, is another 
divisive nomination of this President. Despite the overtures that have 
been made to the White House to ask them to honor past precedent and 
provide Mr. Estrada's memos to the Senate, the White House has refused 
to budge. Instead of honoring that precedent, the White has sought to 
break other precedents and understandings in the quest to win 
confirmation at any cost.
  Just last week, the White House signaled again its refusal to seek 
compromise or accommodation for the sake of the fairness of the courts. 
The President nominated two more controversial individuals to the DC 
Circuit. This is just one more sign in a long line that this White 
House is determined to continue to divide the American people with its 
nominations and to pack the courts in order to win judicial victories 
for its ideological agenda and its allies at the expense of fairness 
for all.
  Since the administration has not provided the information requested 
more than a year ago with respect to Mr. Estrada, nothing has been done 
to alleviate concerns about this nomination.
  Mr. HATCH. Mr. President, I rise today to speak on the nomination of 
Miguel Estrada for the United States Court of Appeals for the District 
of Columbia Circuit. It is truly a sad record that the Senate is now 
being obstructed by multiple filibusters on judicial nominees and that 
we are required to conduct an unprecedented seventh cloture vote on 
this particular extremely qualified nominee.
  Let me state that a clear majority of this body supports this 
nomination, as has been demonstrated in the past six cloture votes. So 
it is regrettable that a minority number of Senators have followed 
their script of extraordinary obstructionism to prevent the Senate from 
concluding the debate on this nomination and proceeding to a final 
vote.
  It has now been 6 months since Mr. Estrada's nomination was reported 
by the Judiciary Committee and placed on the Senate Executive Calendar. 
It has been nearly 8 months since he was renominated by President Bush. 
It has been more than 10 months since his hearing before the committee, 
and I has been more than 2 years since he was first nominated by 
President Bush on May 9, 2001.
  In all of that time my Democratic colleagues have had unlimited 
opportunities to make their case. Some of them oppose him; others 
support him. But one thing has remained clear through this debate: 
There is no good reason to continue this route of obstruction by 
denying Mr. Estrada an up-or-down vote.
  We are at a troubling point in Senate history. Over the past few 
months I have spoken frequently on the calculated effort to stall 
action on President Bush's judicial nominees. There

[[Page S10201]]

have been efforts to bottle up nominees in committee, to inject 
ideology into the confirmation process, to delay by demanding 
production of all unpublished opinions of nominees who are sitting 
Federal judges and making demands for answers to questions that are 
unanswerable. And, in the case of Mr. Estrada, opponents have demanded 
he produce confidential internal memoranda that are not within his 
control. When these tactics have failed, opponents have turned to their 
ultimate weapon--the filibuster.
  Filibusters of judicial nominees allow a vocal minority to prevent 
the majority of Senators from voting on the confirmation of a Federal 
judge, a prospective member of our third, coequal branch of Government. 
It is tyranny of the minority, and it is unfair to the nominee, to the 
judiciary, and to the majority of the Members of this body who stand 
prepared to fulfill their constitutional responsibility by voting on 
Mr. Estrada's nomination.
  I am not alone in my disdain for delaying or defeating judicial 
nominees through a cloture vote. I think that it is appropriate at this 
point to note that many of my Democratic colleagues argued strenuously 
on the floor of the Senate for an up-or-down vote for President 
Clinton's judicial nominees.
  The distinguished minority leader himself once said, ``As Chief 
Justice Rehnquist has recognized: `The Senate is surely under no 
obligation to confirm any particular nominee, but after the necessary 
time for inquiry it should vote him up or vote him down.' An up-or-down 
vote, that is all we ask. . . .''
  The ranking member of the Judiciary Committee echoed these sentiments 
when he said, ``. . . I, too, do not want to see the Senate go down a 
path where a minority of the Senate is determining a judge's fate on 
votes of 41.''
  Another one of my Democratic colleagues, Senator Kennedy, himself a 
former chairman of the Judiciary Committee, had this to say: ``Nominees 
deserve a vote. If our Republican colleagues don't like them, vote 
against them. But don't just sit on them--that's obstruction of 
justice.''
  The distinguished Senator from California, Senator Feinstein, who 
also serves on the Judiciary Committee, likewise said in 1999, ``A 
nominee is entitled to a vote. Vote them up; vote them down.'' She 
continued, ``It is our job to confirm these judges. If we don't like 
them, we can vote against them. That is the honest thing to do. If 
there are things in their background, in their abilities that don't 
pass muster, vote no.''
  My other colleague from California, Senator Boxer, said in 1997, ``It 
is not the role of the Senate to obstruct the process and prevent 
numbers of highly qualified nominees from even being given the 
opportunity for a vote on the Senate floor.''
  My colleague from Delaware, Senator Biden, also said in 1997, ``I . . 
. respectfully suggest that everyone who is nominated is entitled to 
have a shot, to have a hearing and to have a shot to be heard on the 
floor and have a vote on the floor.''
  The qualifications of Miguel Estrada are well known to the Senate. 
However I would like to briefly remind my colleagues of his outstanding 
record of accomplishment. Miguel Estrada represents an American success 
story. Born in Honduras, he immigrated to the United States as a 
teenager to join his mother. Overcoming a language barrier and speech 
impediment, he graduated magna cum laude and Phi Beta Kappa in 1983 
from Columbia College. At Harvard Law School he was an editor of the 
Harvard Law Review and graduated magna cum laude in 1986.
  Mr. Estrada's professional career has been marked by one success 
after another. After graduation he clerked for Second Circuit Judge 
Amalya Kearse--a Carter appointee--then Supreme Court Justice Anthony 
Kennedy. He worked as an associate at the distinguished firm of 
Wachtell Lipton in New York. He then worked as a Federal prosecutor in 
Manhattan, rising to become deputy chief of the appellate division. In 
recognition of his appellate skills, he was hired by the Solicitor 
General's Office during the first Bush administration. He stayed with 
the SG's Office for most of the Clinton administration. When he left 
the SG's Office, he joined the D.C. office of Gibson, Dunn & Crutcher, 
where he has continued to excel as a partner and has risen to the top 
of the ranks of oral advocates nationwide, having argued fifteen cases 
before the Supreme Court.
  The legal bar's wide regard for Mr. Estrada 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. Based on 
its assessment of these factors, the ABA has bestowed upon Mr. Estrada 
its highest rating of unanimously well qualified.
  His supporters include a host of well-respected Clinton 
administration lawyers, including Ron Klain, former Vice President 
Gore's chief of staff; Robert Litt, head of the Criminal Division in 
the Reno Justice Department; Randolph Moss, former Assistant Attorney 
General; and Seth Waxman, former Solicitor General. I have, on previous 
occasions, placed letters of support in the record. I would refer my 
colleagues to previous statements regarding Mr. Estrada's 
qualifications and endorsements.
  Yet, despite the superb record, qualifications, temperament and 
experience of Mr. Estrada, he continues to be blocked in his 
nomination. In support of their obstruction, our Democratic colleagues 
have repeatedly raised red-herring issues with two demands that Mr. 
Estrada answer their questions, and that the administration release 
confidential memoranda he authored at the Solicitor General's Office.
  With regard to the first demand, the record is clear that Mr. Estrada 
spent hours during a day-long hearing answering my Democratic 
colleagues' questions. He answered written questions submitted after 
the hearing. He gave answers to questions that were substantially 
similar to answers given by Clinton nominees who were confirmed. Yet my 
Democratic colleagues still complain that he has not answered their 
questions. Really, their complaint is that, in answering their 
questions, Mr. Estrada did not say anything that gives them a reason to 
vote against him. Simply put, they are not interested in his answers to 
their questions--they are interested in defeating his nomination.
  This is why every effort to make Mr. Estrada available to answer 
additional questions has gone virtually unacknowledged. He has been 
made available to answer written questions and to meet with individual 
senators. There has even been an offer to make Mr. Estrada available to 
answer questions in a second hearing. But only one Democratic Senator 
has met with Mr. Estrada since these offers were extended, and only one 
has submitted written questions since the floor debate began, to which 
Mr. Estrada has responded. We have met our Democratic colleagues more 
than halfway on this, but they insist on continuing down this path of 
obstructionism.
  Their second demand, for the Solicitor General memoranda, has been 
fully debated. The short response is that never before has a 
Presidential administration released confidential appeal, certiorari, 
and amicus recommendations on the scale that my Democratic colleagues 
seek for Mr. Estrada. This is a full-scale fishing expedition, pure and 
simple, and the Justice Department is right to oppose it.
  Despite these supposed reasons for denying an up-or-down vote on Mr. 
Estrada's nomination, I think there are other factors. Last fall a 
Democratic staffer on the Judiciary Committee was quoted in The Nation 
magazine as saying, ``Estrada is 40, and if he makes it to the circuit, 
then he will be Bush's first Supreme Court nominee. He could be on the 
Supreme Court for 30 years and do a lot of damage. We have to stop him 
now.''
  So it appears that the real reason for this filibuster is the threat 
of a Justice Estrada on the Supreme Court. An 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.''
  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,

[[Page S10202]]

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 reelection 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.''
  Miguel Estrada will be an excellent Federal judge. Today, once again, 
we have a choice either to continue to block another highly qualified 
nominee for partisan reasons or to allow each Senator to decide the 
merits of the nomination for himself or herself. I choose to vote 
against obstructionist tactics and permit an up-or-down vote on the 
nominee. I urge my colleagues to do likewise.
  I ask unanimous consent the Atlanta Journal-Constitution editorial to 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          [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 
     colleeagues--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,'' 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 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.
                                  ____


             [From the Dallas Morning News, Feb. 17, 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 
     Groundhog 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.

  The PRESIDING OFFICER. The distinguished majority leader.
  Mr. FRIST. All time has expired?
  The PRESIDING OFFICER. That is correct.
  Mr. FRIST. I will use a couple minutes prior to the vote in response 
to some of the comments that have been made, specifically in response 
to the Democratic leader's comments which I understand really are two.
  Are we committed to addressing energy issues and completing this 
bill? We are. We will continue to work aggressively on this bill 
starting earlier than we normally would and continuing later tonight. 
Again, I ask for amendments to come forward. We are going to address 
them one by one in a systematic way with adequate time for debate and 
amendment.
  Second, the question has been raised as to why we are considering 
these votes today, such as cloture on Miguel Estrada. The answer is, 
the American people deserve it. They understand we are not fulfilling 
our responsibility in this body without an up-or-down vote. That is our 
job. That is our responsibility. It is advice and consent of the 
judicial nominees sent by the President of the United States. That is 
being denied by the other side of the aisle. That is unacceptable to 
us. That is why that is being voted on today.
  I made it very clear in my request both publicly and otherwise that 
we would like to stack these votes as we are voting on other energy 
amendments; it is not us who requested the time.
  The complaint was made we were in a quorum call; why were we sitting 
in a quorum call in the middle of this bill? It should be made very 
clear that they requested that time and it was on their time that we 
were in a quorum call. I, once again, make this plea for a vote like 
today. When the initial request was made, it was that we have

[[Page S10203]]

the vote and not spend a lot of time discussing the issue.
  Second, let me reinforce a point I made this morning; that is, we are 
being required by the other side of the aisle to use a lot of our 
valuable time, time that is increasingly valuable as we get closer and 
closer to the recess, to rollcall votes on district judges. That has 
not been done in the past. Once again, I ask and, in fact, plead with 
the other side to change this request they have made that we spend so 
much time on rollcall votes which historically have been unnecessary.
  On the issues of Chile and Singapore, I have made it very clear that 
we will move those to a time after energy unless we are not dealing 
with an issue on energy. I will talk to the other side of the aisle. If 
there is debate on Chile and Singapore, we will probably do it after we 
have the final energy votes this week. Then we will take up Chile and 
Singapore trade issues at that point.
  The same issue will come up tomorrow because we will be voting on 
Judge Pryor. I am sure the same issues will come up about spending time 
and people will come to the floor and spend time.
  I make it clear, our request last night was to set aside time, some 
time in the future--not necessarily this week--to debate and discuss 
Pryor and have an up-or-down vote on Pryor. That was refused. Again, it 
would not have been this week--it could be sometime during September--
but there was an objection to that unanimous consent request. Thus, we 
will proceed with a vote tomorrow.
  Again, I make it clear my initial request is not to use a lot of time 
simply to be able to go to Pryor but that we proceed aggressively on 
energy. The American people deserve it. We will do it in an orderly way 
as we go forward today. I am confident we can complete this Energy bill 
if we stay focused, work together. The American people deserve it. I am 
confident we can do that.
  I yield the floor.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The bill 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 G. 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, Lindsey Graham of South 
           Carolina, Jeff Sessions, Lincoln Chafee, Wayne Allard.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been 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. REID. I announce that the Senator from Massachusetts (Mr. 
Kennedy) and the Senator from Massachusetts (Mr. Kerry) are necessarily 
absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``nay.''
  The PRESIDING OFFICER (Mrs. Dole). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 55, nays 43, as follows:

                      [Rollcall Vote No. 312 Ex.]

                                YEAS--55

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

                                NAYS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (FL)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--2

     Kennedy
     Kerry
       
  The PRESIDING OFFICER. On this vote, the yeas are 55, the nays are 
43. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.

                          ____________________