[Congressional Record Volume 149, Number 120 (Thursday, September 4, 2003)]
[Senate]
[Pages S11096-S11100]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WITHDRAWAL OF ESTRADA NOMINATION
Mr. HATCH. Madam President, I rise today to speak on the unfortunate
[[Page S11097]]
withdrawal of 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, for the first time ever, has terminated a
circuit court nomination by filibuster rather than by an up-or-down
vote. It is particularly troubling that political tactics were used to
destroy this extremely qualified nominee.
Let me state that a clear majority of this body supported this
nomination, as has been demonstrated in the unprecedented seven cloture
votes which have taken place. So it is regrettable that a minority of
Senators followed their script of extraordinary obstructionism to
prevent the Senate from concluding the debate on this nomination and
proceeding to a final vote. It goes against all the honorable
traditions of this body for Senators to rest behind a veil of
procedural votes rather than taking a public stand on the merits of
this outstanding nominee.
After all, all he or any of us wanted was an up-or-down vote,
something we have always given every nominee who has come to the Senate
floor and has been called up on the Senate floor.
While it is shameful that Miguel Estrada was subjugated to political
whims, it is not entirely surprising. Opponents from the very outset,
for their own ideological purposes, have been determined to defeat this
nomination. 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 the filibuster against Miguel
Estrada was the concern by opponents of a possible Justice Estrada on
the U.S. 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 United States 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 United States Supreme Court.
There is an additional factor not based on any substantive objection
to his nomination. I believe some Senate Democrats do not want the
current President, a Republican President, to appoint the first
Hispanic as the U.S. Circuit Court 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 when he goes into
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.
In an effort to prevent Mr. Estrada's confirmation, his opponents
resorted to a number of troubling tactics. During his hearing there
were frequent attempts to inject political ideology into the judicial
nomination process. This was most evident as related to questions about
his views on Roe v. Wade, the apparent litmus test for many Senate
Democrats.
In response to this concern, he offered cases he had taken on as an
attorney to illustrate his commitment to following the law instead of
imposing any political agenda. He also testified under oath that he
would follow Roe and Casey if he were confirmed. But even his
outstanding record and testimony before the committee was apparently
not enough to satisfy those determined to destroy his nomination.
Opponents repeatedly raised red herring issues with two additional
demands. One was that Mr. Estrada answer their questions, though the
record is clear that his responses were complete. Mr. Estrada spent
hours during a day-long hearing answering my Democratic colleagues'
questions. He answered written questions submitted after the hearing,
although only two, only two committee Democrats bothered to ask him
written questions.
He gave answers to questions that were substantially similar to
answers given by Clinton nominees who were confirmed. Yet my Democratic
colleagues continue to complain that he had not answered their
questions. Really, their complaint is that in answering their
questions, Mr. Estrada did not say anything that gave them a reason to
vote against him. Simply put, they were not really interested in his
answers to their questions. They were interested only in defeating his
nomination.
This is why every effort to make Mr. Estrada available to answer
additional questions has gone virtually unacknowledged. Only one
Democratic Senator met with Mr. Estrada and only one submitted written
questions to Mr. Estrada after the floor debate on his nomination
began.
Their second demand was the unreasonable request that the
administration release confidential internal memoranda he authored at
the Solicitor General's office. This issue 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 sought from Mr. Estrada. They
attempted a full-scale fishing expedition, pure and simple, and the
Justice Department was right to oppose it.
Furthermore, this demand constituted a double standard for Miguel
Estrada. The Judiciary Committee confirmed numerous Clinton circuit
court nominees who, like Miguel Estrada, had no prior judicial
experience. A number of these nominees had worked in the Justice
Department or other branches of the Federal Government, but Senate
Democrats made no demands for their confidential memoranda or
privileged work product. Yet Senate Democrats persisted in this demand,
knowing full well that for sound reasons the administration, with the
support of all seven living former Solicitors General, both Democrat
and Republican--four of them were Democrats--would not and could not
accede to that request.
When all other tactics failed, opponents turned to their ultimate
weapon, the filibuster. Filibusters of judicial nominees allow a vocal
majority 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, and to the President. The unprecedented
filibuster of Mr. Estrada was certainly unfair to a majority of
Senators who stood ready to fulfill their constitutional responsibility
by voting on Mr. Estrada's nomination.
It has been more than 2 years since Miguel Estrada was nominated by
President Bush, on May 9, 2001, and nearly a year since his hearing
before the committee. In all of that time, my Democratic colleagues had
unlimited opportunities to make their case. Some of them opposed him.
Others supported him. But one thing remained clear through this whole
debate: There was no good reason to deny Mr. Estrada an up-or-down
vote, the dignity of an up-or-down vote.
On the merits, Mr. Estrada was extremely qualified to serve on the
court to which he was nominated. The qualifications of Miguel Estrada
are well known to the Senate. He represents an American success story.
After immigrating to the United States, after overcoming a language
barrier and speech impediment, he graduated magna cum laud 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 and then Supreme Court Justice
Anthony Kennedy. He worked as an associate in 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 Solicitor General's office for most of the Clinton administration.
When he left
[[Page S11098]]
the Solicitor General's office, he joined the DC office of Gibson, Dunn
& Crutcher, one of the great law firms in this country, where he
continued to excel as a partner and rose to the top of the ranks of
oral advocates nationwide, having argued 15 cases before the U.S.
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
an assessment of all of those factors, the ABA bestowed upon Mr.
Estrada its highest rating of ``unanimously well qualified.''
Yet despite the superb record of Miguel Estrada, opponents chose to
deny him a simple up-or-down vote, injecting politics into the judicial
confirmation process. Opponents have not only treated Miguel Estrada
unfairly; they have further damaged this process.
One casualty is enough. I hope all Senators will consider the
dangerous ramifications of the actions of the Senate in causing Miguel
Estrada to withdraw his nomination through the use of the filibuster.
This should never happen again.
Just one other thing on this. He was asked to comply when he couldn't
do it, with a fishing expedition into the Solicitor General's most
privileged documents, documents that have never been given in toto as
requested by the Democrats, never before. Four Democrat former
Solicitors General said they would never give these documents. Those
Democrat former Solicitors General and three others said they opposed
the release of these documents.
If this was a legitimate request, why didn't they ask for similar
documents in the case of John Roberts? In other words, Miguel Estrada
was treated completely different from other people. Why didn't Senate
Democrats ask for these documents in the case of others through the
years who worked in the Solicitor General's office? It was just a red
herring that some in the media bought off on, to prevent this man from
ever having the dignity of an up-or-down vote on the Senate floor.
The reason they prevented that is because they knew he would have won
and he would have won a bipartisan vote in the Senate.
Frankly, filibusters should never occur again. Yet more judicial
nominees face continuing filibusters on the Senate floor. We will soon
once again put to the test the respect the Members of our body have for
our constitutional duty to advise and consent on judicial nominations.
We will continue to file for cloture to end debate and to give
Priscilla Owen, Bill Pryor, and other judicial nominees that the left
is intent on blocking the up-or-down votes they deserve.
These are outstanding nominees. Priscilla Owen broke through the
glass ceiling, becoming one of the great partners of a major law firm
in this country, and broke through the glass ceiling for women, yet she
is being treated like dirt on the Senate floor. Also, Bill Pryor, who
has more than shown his propensity to always follow the law, even
though the law may differ from his own personal, deeply held beliefs.
There are, no doubt, factions of far left interest groups that are
delighted to see Miguel Estrada has withdrawn his nomination. These
same groups no doubt will declare victory and mount even more vigorous
campaigns in an effort to ensure that other judicial nominees suffer
the same fate. From what I understand, some of my colleagues in the
Senate share those sentiments. But let me tell you right now, this is
no occasion for celebration. We should be embarrassed that Miguel
Estrada, having had enough of serving as a political football instead
of as a Federal judge, decided to end his nomination. And we should be
embarrassed of the continued attempts to usurp the nomination function
from the President and the consent function from the Senate majority.
We should not stand back and allow a minority of Senators to prevent
an up-or-down vote on any judicial nominee and especially those once
they have come to the floor.
We should not inflict upon Priscilla Owen, Bill Pryor, or any others
the same shabby treatment that led Miguel Estrada to withdraw his
nomination. These all deserve better. And nominees in the future
deserve better. The majority of the Senate that stands ready to confirm
the ones I have mentioned deserve better. Most importantly, the
American people expect their Senators to hold up-or-down votes on
judicial nominees and deserve the opportunity to hold their Senators
accountable for the votes they cast on the President's judicial
nominees.
I have been around here a long time. Both sides have committed errors
with regard to judicial nominees over the years. But nothing has ever
reached the dimensions of what has been done to Miguel Estrada. Nothing
has even come close. He has been treated in an especially onerous way
that no other nominee I know of in the history of the Senate has been
treated. He has been singled out primarily because he was viewed as
being on the fast track to the Supreme Court, and because he is a
conservative Republican Hispanic who might be pro-life and who is on
the fast track to the Supreme Court. I don't think anybody who is
honest can refute that statement.
I think it is pitiful what has happened. I just hope we wake up in
this body and start treating people with fairness which the advise and
consent clause of the Constitution demands. I hope that works on both
sides.
There were those who wanted to filibuster on our side during the
Clinton years. We stopped it. We were not going to set that precedent,
nor were we going to do that type of activity. Frankly, everyone who
came to the floor had a vote, and only one, if I recall correctly, was
defeated by an up-and-down vote. But at least he had a vote. And Miguel
Estrada deserved that just as much as any of the past nominees.
Mr. McCONNELL. Madam President, will the Senator yield?
Mr. HATCH. Yes, I yield for a question.
Mr. McCONNELL. I ask my friend from Utah, the chairman of the
Judiciary Committee, if it is the case that the President's nominee,
John Roberts, and the President's nominee, Miguel Estrada, both served
in the Solicitor's Office at some point in their careers?
Mr. HATCH. They both did, and both were nominated at the same time,
over 2 years ago.
Mr. McCONNELL. I ask my friend from Utah, the chairman of the
Judiciary Committee, if it is also true that the internal work product
documents that were requested of nominee Miguel Estrada were not
requested of nominee John Roberts.
Mr. HATCH. Absolutely right. They were not requested. There was a
different standard used with regard to Mr. Estrada--a very unfair
standard knowing that the Solicitor General's Office could not allow a
fishing expedition into those documents.
Mr. McCONNELL. Is it not the case that every former Solicitor--most
of whom are Democrats--had the view that these internal working
documents should not be shared?
Mr. HATCH. That is correct. Four of the seven former Solicitors
General who are living today are Democrats, and all seven of them came
out and said that these documents should not be given to the Senators
of the United States because of their sensitivity and their privileged
nature.
Mr. McCONNELL. Is it also not true that nominee John Roberts was
confirmed unanimously?
Mr. HATCH. It is true that he was confirmed unanimously.
Mr. McCONNELL. We all know that Miguel Estrada was filibustered to
the point where he subsequently withdrew today.
Mr. HATCH. The Senator is correct.
Mr. REID. Madam President, will my friend from Utah yield for a
question?
Mr. HATCH. If my friend from Kentucky has concluded.
Mr. McCONNELL. I thank the chairman of the committee for yielding so
we could point out the differences in treatment between these two
nominees with very similar backgrounds and who were nominated for the
same court at the same time.
Mr. HATCH. The illustration should not be limited to just John
Roberts and Miguel Estrada. There are a number of people who are on the
Federal bench and who have served on the Federal bench who also served
in the Solicitor's Office who were never asked those questions, and
rightly so. They should
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never have been asked. It was a red herring that many of my colleagues
hid behind to justify this outrageous and, I think, shabby treatment of
Miguel Estrada.
I yield to my friend for a question.
Mr. REID. Madam President, I understand the strength and feeling of
the Senator from Utah and the Senator from Kentucky. The record has
been spread with that for many months now. I would only say if the
Senator wants to speak more, we have no problem.
Mr. HATCH. I yield the floor.
Mr. REID. Madam President, I draw the attention of my colleagues to
the same statement which I made earlier today in response to the
remarks of Senator Frist about Miguel Estrada.
Madam President, I ask unanimous consent that a Congressional Record
statement made by Senator Feinstein on February 13, 2003, on the
nomination of Miguel Estrada be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Mrs. FEINSTEIN. Mr. President, I had an opportunity to come
to the floor once before and express my views about the
nominee who is before the Senate for confirmation, Miguel
Estrada. But I want to make a few additional points at this
time, and I hope I don't repeat myself.
I want to say for my part and for the part of many others
in the body that this is not a debate we were eager to begin;
this is not a debate we are eager to continue; but this is a
debate that really goes to the heart of the separation of
powers and the checks and balances that the Founders of this
Nation so carefully crafted more than 200 years ago.
The President makes nominations to the Federal judiciary.
This is true. But it is a judiciary that Congress fashioned,
and it is a judiciary that the Senate has been given the
constitutional responsibility to help fill, through our
advice and consent role.
I am one who has always believed that every nominee should
get a full and fair hearing and that every nominee should
then get an up-or-down vote. For too long, I watched one
after another Clinton nominee languish without any such
courtesy, and with no explanation as to why. Many of his
nominees were minorities who never even got the chance to
speak to the Committee.
Chairman Hatch and I had many conversations during that
time about moving more nominees through the committee. And I
know he did more than many in his caucus would have liked him
to do to move nominees. For that, I thank him. I believe deep
in his heart he also believes nominees should move through
and get a hearing. But still, too many nominees were stopped
from even the most basic of rights during the nomination
process--a hearing--a basic right for someone who is
nominated to the Judiciary Committee. They should have a
right to have a hearing, in my view.
In this case, the Democrat-controlled Senate gave Miguel
Estrada a full and fair hearing and every opportunity to show
the committee what kind of judge he would be. But he did not
use that opportunity well.
Although I believe that every nominee deserves an up-or-
down vote, an up-or-down vote on final confirmation should
only occur after the Senate has had a full opportunity to
learn about the nominee and to properly judge whether or not
that nominee can serve impartially in the Federal judiciary.
In this case, I don't believe we have enough information to
make such a decision, as a direct result of the lack of
cooperation by this nominee and by the White House. As a
result, we should not be asked to make such an important
decision.
I want to clearly state this is not an issue of
retaliation, as some have suggested. It is true that the
Republican Senate did block a number of very qualified
Hispanic nominees--female nominees, and so on--under
President Clinton.
And it is true that many on this floor have mentioned those
nominees--Enrique Moreno, for instance. But they were
mentioned not to begin some tit-for-tat exchange of blocked
nominations. Quite the contrary. Under Chairman Leahy, the
Judiciary Committee and the Democrat-controlled Senate
confirmed 100 nominees in just over a year.
Mr. Estrada has already been given far better treatment
than many were given by the other side in the recent past.
All we ask for is some basic answers to the most basic of
questions. Think about this: Before us now, we have a 41-
year-old nominee about whom we know little. He has been
nominated to a crucial appellate court, the DC Circuit, which
is, at present, evenly split. That raises the question, Do we
have a right to know if this judicial nominee can be
impartial? I believe we do.
In this case, this nominee, for some reason, has been very
controversial from the beginning. We have heard from many who
have worked with Mr. Estrada or even supervised him, and many
who have watched him work throughout the years.
Without exception, all of these individuals believe Mr.
Estrada is bright. And I am confident that every Democrat in
this body agrees with that assessment. But that is not the
problem. And that is not the question today.
Without exception, all these individuals believe Mr.
Estrada to be well educated, as my colleagues on the other
side of the aisle have indicated throughout the last few
days. But that, too, is an issue that is not in doubt, and it
is not the problem.
And essentially, without exception, all of these
individuals believe Mr. Estrada is conservative. Some believe
him to be very conservative, some less so, but all recognize
him to be a conservative. Even Mr. Estrada himself, as I
understand it, would likely describe himself in this manner.
But make no mistake, this is not about whether or not Miguel
Estrada is conservative.
I have already voted for nominees whom I know to be
conservative, as have most, if not all, of my Democratic
colleagues.
At the present time, I have just given my proxy to the
Judiciary Committee that is considering three nominees to
appellate courts who are, in fact, conservative. And I will
vote yes on those nominees.
So the question is not whether this nominee--or any
nominee--is liberal or conservative, White or Hispanic,
Jewish or Catholic, or any other group or inclination. The
question with this nominee--and with every nominee--is
whether the nominee can put aside personal beliefs to rule
fairly and impartially on the cases that come before him or
her.
In some cases, we can get a clear idea of how a nominee
would handle the responsibilities of a Federal judgeship. But
in this case, as we tried to get a clear idea of how this
nominee would handle these responsibilities, we were really
stymied at every turn.
On the one hand, we have letters, phone calls. To my
office, we have received almost 8,000 phone calls in
opposition to this nominee; and less than 400 in favor. All
these phone calls seem to indicate the belief that Mr.
Estrada is an ideologue who cannot be trusted with a circuit
court judgeship.
We have Professor Paul Bender, Mr. Estrada's direct
supervisor at the Department of Justice, who said to the
press that he believed Estrada to be so ``ideologically
driven that he couldn't be trusted to state the law in a
fair, neutral way.'' Mr. Bender recently sent a letter to the
chairman of the Judiciary Committee essentially reaffirming
this statement.
We have major Hispanic organizations--just those groups one
might expect to most strongly support Mr. Estrada--strongly
opposing him instead.
On the other hand, as we look for facts to counteract such
serious concerns, we have almost nothing.
Miguel Estrada has never been a judge, so we have no record
of judicial decisionmaking to examine. This in itself is not
dispositive, but it is the first area where we find no record
to help us in our decisions.
Mr. Estrada is not a prolific writer, so again, unlike
many, we have no real record of writings or speeches to
examine. Again, this alone would not be dispositive, but, as
I said earlier this week, in a sense, it is strike two in
terms of where we can get information about this nominee.
We have not been granted access to the memos he wrote at
the Department of Justice, so we can only take the word of
the man who supervised him that those memos were
ideologically driven and could not be trusted. That is strike
three.
Mr. Estrada refused to adequately participate in his own
confirmation hearing, so we have no real answers to these
questions. And the questions are legitimate.
Even when given time to think about his answers, even when
he was given questions in written form, he refused to answer
those questions, using precisely the same language he used to
refuse to answer at his hearing.
For instance, when Senator Durbin asked this nominee, in
writing: ``Do you have an opinion on the merits of Roe v.
Wade?'' Mr. Estrada responded, as he did to me in committee,
``it would not be appropriate for me to express such a view
without doing the intensive work that a judge hearing the
case would have to undertake--not only reading briefs and
hearing the arguments of counsel, but also independently
investigating the relevant constitutional text, case law, and
history.''
In the hearing, I asked him: Do you believe Roe was
correctly decided? And he said he could not answer that
question.
When Senator Kennedy asked Mr. Estrada, in writing, how he
would have resolved a case that came before the DC Circuit
and was then decided by the Supreme Court--Hoffman Plastics--
Mr. Estrada again answered that because he had not read the
briefs and was not present at oral argument, he could not
answer.
When Senator Kennedy asked him about the Maryland/DC/
Delaware Broadcasters case, again Mr. Estrada said he could
not, or would not, answer.
When Senator Durbin asked Mr. Estrada to name any judge,
living or dead, whom he would seek to emulate, Mr. Estrada
said he could name not one judge he would emulate.
In contrast, let me take a moment to talk about Judge
Richard Paez, a well-qualified Hispanic nominee sent to the
Senate by President Clinton and eventually confirmed to the
Ninth Circuit Court of Appeals.
Judge Paez spent more than 1,500 days before this Senate
before he finally got a vote. And this came despite the fact
that he answered every question put to him.
For instance, Senator Sessions asked him: ``Which Supreme
Court Justice or federal judge has most influenced your
judicial philosophy?'' Judge Paez named Judge Harry Hupp, a
man he appeared before as a litigator, and a colleague of his
on the district court bench.
[[Page S11100]]
Senator Sessions asked Richard Paez: ``In your opinion what
is the greatest Supreme Court decision in American history?''
Judge Paez did not refuse to answer, or claim that he could
not give an answer because he had not been present at oral
arguments. Instead, he simply named Brown v. Board of
Education.
Senator Sessions then asked: ``What is the worst Supreme
Court decision?'' Judge Paez answered: ``Dred Scott.'' This
is the decision where the Supreme Court ruled, essentially,
``once a slave, always a slave.''
Miguel Estrada, on the other hand, would not answer these
types of questions.
Senator Schumer asked him to name any Supreme Court case he
thought was wrongly decided.
He did not simply say he thinks Plessy v. Ferguson was
wrongly decided. That is the case that upheld the concept of
separate but equal. And even the Supreme Court has since
overturned it. I know of few people who would claim Plessy
was correctly decided. But Miguel Estrada apparently thinks
he could not say so without having heard the oral arguments.
He did not say he disagreed with the Dred Scott decision,
which upheld slavery. He did not say he believed Korematsu,
which upheld the right of the United States to put American
citizens of Japanese descent into internment camps. He named
none of these cases. He simply said he could not answer the
question.
This is in direct contrast to a recent experience with
Jeffrey Sutton during his hearing less than 2 weeks ago. Mr.
Sutton is also a controversial nominee, but he answered every
question put to him. We got a good sense of how he would
think and act as a judge. I, myself, who was concerned about
him initially, felt he was a strong advocate, but he knew the
difference. He could separate himself from the positions of
advocacy and become a fair and impartial judge. So I have
given my proxy right now to be carried out to vote yes for
Judge Sutton. Mr. Estrada, on the other hand, did his best to
keep from putting himself on record on any issue of real
substance.
Quite frankly, there are options. One, return this nominee
to the Judiciary Committee for answers. The Senate deserves
the answers. Democratic nominees were asked by distinguished
Republican Senators to answer questions such as this, and
they did. Even of those, many had judicial records. Many had
prolific writings. Many had speeches so that there were tools
we could go to to understand what their thinking was. But in
this case we have no speeches. We have no writings. We have
no record. Therefore, the answers to the questions become
extraordinarily dispositive. They also become meaningful to
any Senator who wants to cast an informed vote.
It is that simple. That is what this debate is about. We
cannot possibly fulfill our constitutional duty to advise and
consent to nominees if we are not given the necessary
information about the nominee.
In a case where you have a critical circuit such as the DC
Circuit, not only the plumbing grounds for the U.S. Supreme
Court, but handling environmental appeals, Superfund appeals,
wetlands appeals, OSHA appeals, all kinds of administrative
case law appeals, how this court is tilted becomes important
to us, particularly if we take this job of confirmation of
nominees seriously.
There is another option. That option is appoint Miguel
Estrada to a district court. Give him an opportunity to gain
that record. He is 41 years old. He is younger than my
daughter. Give him an opportunity to gain that record.
Remember, this is a man who will serve for 30, 40, possibly
even 50 years. It is a lifetime appointment. We are entitled
to answers to these questions.
In Miguel Estrada's questionnaire, he admitted to having
written no books, articles, or reports of any kind, save one
Law Review article in law school. That was titled ``The
Policies Behind Lending Limits.'' He wrote that in 1985. At
Miguel Estrada's hearing, he would not comment on whether any
case had ever been wrongly decided, even cases that have been
overturned. He would not name any single judge he would want
to emulate on the bench in any way. He would not answer
written questions put to him that would help us learn more
about how he thinks about cases and how he would judge them.
He would not even try to convince the Justice Department to
turn over some of the memos he wrote for the Solicitor
General's Office, nor would he himself turn them over.
If this nominee is confirmed, we believe we would be
sending a signal that stonewalling the Judiciary Committee
and the full Senate is the way to succeed on the way to a
judgeship. That is the wrong signal and the wrong message.
In effect, we would be abdicating our constitutional role,
our constitutional duty to advise and consent to nominees,
because we would never again be able to learn enough about a
nominee to make reasoned decisions.
Nominees could become increasingly young, increasingly
ideological, and increasingly silent. The courts would soon
be packed with judges of unknown disposition, unknown
temperament, and unknown proclivities to judge fairly and
impartially.
We should take our constitutional duties more seriously
than that. We simply are determined not to let that happen.
I would like to read the concluding sentence from the
editorial in today's New York Times: 6
The White House can call this politics or obstruction. But
in fact it is Senators doing their jobs.
I yield the floor.
Mr. REID. Madam President, the reason I am not going to give a
statement is because we have Members here on the Senate floor today who
could give a long statement on the misfortune of Miguel Estrada. But we
have been asked by the two leaders to try to get some votes lined up
for tomorrow. We have a manager of the bill who has been waiting. We
have a Senator from New York who has been waiting.
I just simply say before we go to the Senator from Ohio and the
Senator from New York, who have amendments to offer, that we have
debated Miguel Estrada a lot. I don't know how many votes we have had--
10 or 12--and not a single vote was changed.
We can debate this ad infinitum. The fact is, Miguel Estrada didn't
respond to questions that we thought appropriate and didn't divulge
information in the form of memos from the Solicitor's Office. The
reason he is different than some others who worked in that same office
is because we got the full information.
For example, we reviewed Judge Roberts off and on for more than 10
years. So he and Miguel Estrada are totally different.
The real victim in all of this is Miguel Estrada. I acknowledge that
by virtue of the fact that the White House had the theory they were not
going to allow questions nor submit information from the Solicitor's
Office.
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