[Congressional Record Volume 151, Number 27 (Wednesday, March 9, 2005)]
[Senate]
[Pages S2297-S2304]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MAJORITY RULE FOR CONFIRMING JUDGES
Mr. ALEXANDER. Mr. President, during the last session of Congress,
Senators on the other side of the aisle blocked an up-or-down vote 20
times on 10 of President Bush's nominees for the Federal appellate
courts. Filibusters were threatened against five more judicial
nominees. With one possible exception, this has never happened before.
The Senate has a 200-year tradition of majority rule when it comes to
confirming judges. In fact, until the last session of Congress, the
idea of not voting on a President's judicial nominee once it reached
the floor was unthinkable.
It would be difficult to imagine a case in which passions ran higher
than during the confirmation proceedings for Justice Clarence Thomas in
1991. Yet President Bush nominated Clarence Thomas in July of 1991, and
3
[[Page S2298]]
months later the Senate voted to confirm him, 52 to 48. There was never
any discussion of blocking his nomination by blocking an up-or-down
vote.
So in the spirit of compromise, I would like to, once again, offer my
solution for avoiding what some in the minority call the ``nuclear
option'' that would change Senate rules to prevent filibusters of
President Bush's judicial nominees.
In an address on this floor 2 years ago, on March 17, 2003, I said I
would reserve the right to vote against any judicial nominee of any
President but that I would not filibuster the qualified court nominee
of any President. That was before I knew whether the President would be
named Bush or Kerry.
This is what I said then:
Before I finish my remarks, I make this pledge. I may be
here long enough, and I hope it is a while, before I have an
opportunity to cast a vote for a nominee for a Federal
judgeship that is sent over by a Democratic President, but I
can pledge now how I will cast my vote. It will be the same
way I appointed 50 judges when I was Governor. I look for
good character. I look for good intelligence. I look for good
temperament. I look for good understanding of the law and of
the duties of judges. I will look to see if this nominee had
the aspect of courtesy to those who come before the court. I
will reserve the right to vote against some extremists, but I
will assume that it is unnecessary and unethical for the
nominee to try to say to me how he or she would decide a case
that might come before him or her. When it comes time to
vote, when we finish that whole examination, I will vote to
let the majority decide.
That is what I said 2 years ago. I also said:
In plain English, I will not vote to deny a vote to a
Democratic President's judicial nominee just because the
nominee may have views more liberal than mine. That is the
way judges have always been selected. That is the way they
should be selected.
Mr. President, that was my pledge 2 years ago. That is my pledge
today. And if a few other Senators of both parties would individually
make this same pledge to eventually allow up-or-down votes on all
judicial nominees, then there would be an end to this discussion of the
so-called nuclear option.
I have no doubt that changing the Senate's cloture rule by a majority
vote is clearly constitutional. Some have argued that the Senate's
cloture rule, which allows just 41 of us to block up-or-down votes,
carries over from one Congress to the next by rule V. But no less an
authority than the distinguished Senator from West Virginia, when he
was majority leader, argued very persuasively and with great common
sense that this is not true. He said:
This Congress is not obliged to be bound by the dead hand
of the past. The first Senate, which met in 1789, approved 19
rules by a majority vote. Those rules have changed from time
to time. . . . So the Members of the Senate who met in 1789
and approved that first body of rules did not for one moment
think, or believe, or pretend, that all succeeding Senates
would be bound by that Senate. . . . It would be just as
reasonable to say that one Congress can pass a law
providing that all future laws have to be passed by two-
thirds vote. Any Member of this body knows that the next
Congress would not heed that law and would proceed to
change it and would repeal it by majority vote.
That was the Senator from West Virginia talking. So, very simply, the
Constitution provides that 51 Senators can change Senate rules to allow
a majority to cut off debate on a President's nominee of an appellate
court judge.
Now, that does not mean that we ought to rush to make a change in
that way. To extend the analogy, nuclear weapons have been effective in
world history because of the threat of their use, not because of their
actual use. And that has been true here on this Senate floor.
In the debates on the adoption of Rule XXII on the Senate floor in
1917, and later modifications in 1953 to 1959, and then 1960 to 1975,
the debate and eventual compromises were driven by the threat of the
constitutional option, which we are discussing today.
The chairman of our Judiciary Committee, Senator Arlen Specter, has
said he ``intends to exercise every last ounce of [his] energy to solve
this problem without the nuclear option.'' I hope he will continue that
effort.
The Senate protects the minority party's rights for a reason. In
writings about early America, Alexis De Tocqueville warned that one of
the potential failings of democracy would be the ``tyranny of the
majority.'' South Africa succeeded in creating a constitutional
government because the new Black majority was willing to protect the
minority rights of White citizens. As we watch the people of Iraq
struggle to create a constitutional government, we know that a major
sign of their success will be whether they are able to include and
protect the rights of Sunnis who are only 20 percent of the country but
who formerly dominated the country.
I can remember back when I came here as a legislative assistant to
Howard Baker in the Senate in 1967, Republicans were the ones worrying
about protecting minority rights then. There were 64 Democrats and 36
Republicans. And then, 10 years later, when I came back to the Senate
as an aide to Senator Baker for a few months, when he was elected
Republican leader, there were 38 Republicans. In 1979, when the
distinguished Senator from West Virginia made his persuasive argument
that a majority of the Senate could change Senate rules, there were 58
Democrats and 41 Republicans.
So just as our Republican majority should be cautious about making
changes that would lessen minority rights, I would respectfully suggest
that the Democratic minority should be equally cautious about provoking
such a change.
One way, of course, to avoid provoking rules changes would be for the
Democratic Senators who opposed the President's nominees in the last
session to look them over again and reconsider their basis for
opposition.
For example, I believe if some of the Senators on the other side
would really study the record of Judge Charles Pickering of
Mississippi, they would be impressed with his commitment to civil
rights. At a time when it was hard to do, he testified against a grand
wizard of the Ku Klux Klan in 1967, and did it in open court. At the
same time, he put his children in public schools when many White
Mississippians were putting their children in what were called
``segregation academies.''
Any Senator who carefully looks at the record of former Attorney
General Bill Pryor of Alabama, I believe, would admire his record on
civil rights. He was a law clerk for Judge John Minor Wisdom, probably
the leading civil rights Federal judge of the last century. Bill Pryor
showed, as attorney general, he could take a position on abortion, on
prayer before football games, on reapportionment, and on displaying the
Ten Commandments that were at odds with his personal views because he
believed the decisions of the Supreme Court and the U.S. Constitution
required it.
Both Judge Pickering and Judge Pryor have served in recess
appointments and have even more of a record now to consider favorably.
But the other way to avoid a lengthy and damaging procedural battle
is simply for individual Senators now to declare their willingness to
support allowing an up-or-down vote of any qualified nominee for the
bench by any President. This would apply to this Republican President's
nominees or to some future Democratic President's nominees.
I do not know what terrible grievances in the past have caused such
strong feelings on the other side causing them to take these
unprecedented steps to block an up-or-down vote on nominees once the
nominee gets to the floor. As I say, there is a 200-year tradition--a
200-year tradition--in this body of then moving to an up-or-down vote.
It never happened before like this. And if it continues, even though
I hope it does not, it will almost certainly force a Senate rules
change. I hope we don't come to that. I have suggested two ways to
avoid it. I have taken a step myself to forgo some of my rights as an
individual Senator as one way to help solve the problem. I hope others
will do the same.
I ask unanimous consent that my remarks from March 17, 2003, be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Mr. President, I am a new Senator. I am aware of the
traditions of the Senate, one of which is that a new Senator
is not expected to say much--at least throughout the year is
not expected to say much--to begin with until they have
something of importance to
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say. So I have not said much. I had been planning to make my
first remarks on this floor next Tuesday on the issues I care
most about, which are the education of our children and
putting the teaching of American history and civics back in
its rightful place in our schools so that our children can
grow up knowing what it means to be an American. I planned on
doing that next Tuesday. But I have decided to make some
remarks today--earlier than expected because I am
disappointed in what I have heard in the debate about Miguel
Estrada.
Like my friend from Missouri, I have had the opportunity to
preside in the last few days. That is one of the honors that
are accorded new Members of the Senate. I have been listening
very carefully. My disappointment has increased with each of
these 10 days as the debate has continued.
I am disappointed first because I believe our friends on
the other side of the aisle are being unfair to Miguel
Estrada. I am most disappointed in them because I believe if
the direction of this debate continues as it is going--and I
heard the comments of my friend from Missouri yesterday on
this same matter--if we continue in the same direction, we
run the risk of permanently damaging the process by which we
select Federal judges and by which we dispense justice in the
United States. I am disappointed because this is not what I
expected when I came to the Senate.
I may be new to the Senate, but I know something about
judges. I am a lawyer. I once clerked for a U.S. Attorney
General. His name was Robert Kennedy. I once clerked for a
great Federal appellate judge. His name was John Minor Wisdom
of New Orleans. I once worked in this body 36 years ago for
Senator Howard Baker, a great lawyer. I watched this body as
it considered and confirmed men and women to the Federal
courts of this land. As Governor of Tennessee for 8 years, I
had the responsibility of appointing--and did appoint--nearly
50 men and women to judgeships all the way from
chancellorships to the supreme court.
I know pretty well the process we have followed in the
Senate and in this country for the last couple of centuries.
It is fairly simple. It can be expressed in plain English.
The Executive nominates, the Senate considers, and then
confirms or rejects the nomination; and in doing so, what the
Senators have always looked for, mainly, has been good
character, good intelligence, good temperament, a good
understanding of the law and the duties of a judge, and
whether a nominee seems to have courtesy for those who may
come before him or her. And it has always been assumed that
it is unnecessary--and, in fact, it is unethical by the
standards of most of the judicial canons in this country--for
the nominee to try to say how he or she would decide a case
that might come before him or her.
Then, after all that examination is done in the Senate,
there is a vote. And under our constitutional traditions, the
majority decides.
I have been listening very carefully, and that is not what
is happening. The other side has simply decided that it will
not allow the Senate to vote on the nomination of Miguel
Estrada. In doing so, it is doing something that has never
been done for a circuit court of appeals judge in our
Nation's history.
In those hours that I have presided over this body in the
last few days, I have been listening very carefully to see
what reasons our friends on the other side could give for
coming to such an extraordinary conclusion about whom I have
come to learn is an extraordinary individual, Miguel Estrada.
I have been listening carefully for the answers, especially
to these three questions: No. 1, what is wrong with Miguel
Estrada? What is wrong with him? No. 2, why can't we vote on
Miguel Estrada, after 10 days of debate? And, No. 3--most
importantly--why should we change the constitutional
tradition that a majority of the Senate will decide whether
to confirm Miguel Estrada? Because what they are saying,
really, is that he will need to get 60 votes--60 votes--
instead of 51.
I have had the privilege of listening to each of their
arguments. As my friend from Missouri knows, they first try
one argument, and it does not go so well. Then they move to
another argument, and it does not stand the light of day. And
then they move to another one.
But let me tell you what I have heard as I have listened to
the debate.
First, they said--it would be hard to imagine that anyone
could say this with a straight face, but we had many straight
faces on the other side of the aisle saying this--that he was
not qualified to be a Federal appellate judge.
You do not hear that argument very much anymore because
that is almost a laughable comment if it were not such a
serious matter.
But let's go over this. This man isn't just qualified; if
this were sports, he would be on the Olympic team, and he
would be getting an award for ``American Dream Story of the
Year.''
Here is a man who came to this country at age 17 from
Honduras. He had a speech impediment. He spoke very little
English. And within a short period of time, he was attending
Columbia University, one of the most prestigious universities
in America.
Then he went to Harvard Law School. Now, it is really hard
to get into Harvard Law School. It has great competition.
Everyone who is applying to a law school around the United
States of America this year--and I know a great many of
them--think about it. This young man, in a few years, was
admitted to Harvard Law School. And not only that, he became
an editor of the Harvard Law Review and graduated magna cum
laude.
This is a dream resume, but it is not even over.
Then he went to the Second Circuit as a law clerk. Then he
became a clerk for a Supreme Court Justice. By now he was in
the top 1 percent of 1 percent of all law school students in
the country, with the kind of resume for a lawyer every law
firm in the country would want to hire. He has a record that
almost everyone would admire.
Then he went to the Southern District of New York, one of
the most competitive places, to be hired for training there.
Then he was in the Solicitor General's Office. To those who
are not lawyers or who do not keep up with this sort of
thing, just being in the Solicitor General's Office might not
sound like such a big deal, but those are the plum positions.
The way I understand that office, there are a couple of
political appointees there--the Solicitor General and his
Deputy--and there are about 20 career lawyers. Miguel Estrada
was one of those lawyers. They are there because they are not
just good, they are the best in America. They have the best
resumes. They have been the clerks to the Supreme Court
Justices. They are going to be the greatest lawyers. It is
the most competitive position in which you can be.
And there he is, Miguel Estrada, coming here at age 17,
barely speaking English, making his way into there. He worked
there for the Clinton administration and the Bush
administration. Then he went to one of the major law firms of
America. And he has argued 15 cases before the Supreme
Court of the United States.
That is an incredibly talented record. There is almost no
one who has been nominated for any judgeship in our country's
history who has a superior record. For anyone to have even
suggested for 15 minutes that Miguel Estrada is not superbly
qualified to be a member of the United States Court of
Appeals--for anyone to even suggest that--it is difficult to
see how one could do that with a straight face.
Little has been made about what he did in the Solicitor
General's Office. I think it is worth talking about that.
These talented young men and women have the job of helping
the Solicitor General make decisions about what to do in
cases in which the United States is a party. That means they
review all the decisions that come against us, the United
States of America. They are the lawyers for us, the United
States of America.
They write memoranda and they write opinion and they must
argue back and forth. And they must argue about every side of
every issue. And our friends on the other side have come up
with straight-face argument No. 2, which is that somehow Mr.
Estrada, who does not even have all those memoranda, should
be penalized because the U.S. Government does not want to
hand those memoranda, that were exchanged back and forth
between the various Solicitor General's assistants, over to
the Senate.
We have never done that. There are seven living former
Solicitors General of the United States, and seven--all of
them--have written a letter to this body saying that has
never been done, and it never should be done, for obvious
reasons. If it were done, you would never have any
straightforward memoranda left in that office. It protects
us, the United States. And that never should even be
considered to be held against Mr. Estrada.
So is he qualified? It is hard to imagine someone who is
better qualified. I consider it a great privilege to come to
the Senate and find a President who discovered such an
extraordinary person to nominate for the Court of Appeals for
the District of Columbia Circuit. Such a story should give
inspiration to men and women all over America, that this is
the country to which you can come, regardless of race or
background or whatever your condition, and dream of being
admitted to the best universities, finding the best jobs in a
short period of time, and being nominated by the President of
the United States for such a court.
What a wonderful story. And what an embarrassing event it
is to have our friends on the other side to even take the
time of this Senate trying to suggest such a person is not
qualified. So let's just throw that argument away and put it
in the drawer.
Since that argument did not fly, they then moved to
argument No. 2, which is equally difficult to offer with a
straight face, if I may respectfully say so. They said he has
no judicial experience.
Now, this argument is still being made. I heard the
distinguished Senator from New York, last night, in an
impassioned address, right over on the other side, say he has
never been a judge, and we don't know what his opinions are.
Never been a judge--Miguel Estrada cannot be a judge because
he has never been a judge.
Well, I am awfully glad that was not the standard that was
applied to Justice Felix Frankfurter when President Roosevelt
nominated him. He would never have been a judge before he was
a Justice of the Supreme Court.
I am glad it was not the standard that was applied to Louis
Brandeis before he was nominated to the Supreme Court. I am
glad it was not the standard that was applied to
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Thurgood Marshall, the first African American who was ever
appointed to the Supreme Court of the United States. He had
never been a judge. And so should Thurgood Marshall have
never been a Justice because he had never been a judge?
When I graduated from New York University Law School, the
dean came to see me and said I had a chance to be a messenger
down in New Orleans for a man that my dean, Bob McKay, said
was one of the three or four best Federal judges in the
country. His name was John Minor Wisdom, a great man and a
great lawyer. He had never been a judge before President
Eisenhower appointed him.
Neither had Elbert Tuttle from Atlanta or John Brown from
Texas. The three of them became three of the greatest judges
in the South. They presided, having been appointed by a
Republican President, over the desegregation of the southern
U.S. They were among the greatest judges we have ever had,
and they had never been judges.
Of 108 Supreme Court Justices who have been appointed, 43
of those have never been a judge. I have a list somewhere
here of judge after judge after judge. Earl Warren; Byron
White; Justice Powell; Justice Rehnquist; Justice Breyer;
Judge Wisdom's favorite friend on the second circuit, Henry
Friendly of New York. He had never been a judge before.
Charles Clark; Jerome Frank; John Paul Stevens; Warren
Burger; Harold Leventhal; Spottswood Robinson; Ruth Bader
Ginsberg, who had never been a judge before she was a
Justice. Does that mean she wasn't qualified to sit on this
Court?
Why would the other side be taking up the time of the
Senate at a time when we are concerned with war with Iraq and
the economy is hurting, by making that kind of argument? They
would be asked to sit down in any respectable law school in
America if they gave that answer. Yet they are here in the
Senate trying to persuade us that it makes a point.
In 1980, I appointed George Brown of Memphis as the first
African American justice in the history of the State of
Tennessee. If George Brown had to be a judge before he had
become a justice, I could never have appointed an African
American justice, because there were no African American
judges at that time. Even today, given the paucity of
Hispanics and African Americans and women who are judges, if
we were to say that in order for someone to be a judge,
before he or she becomes a judge, we would have a terrible,
invidious discrimination against men and women who should not
be discriminated against, and I am sure my friends on the
other side don't want to see that happen.
So even though we have spent days arguing that Miguel
Estrada should not be considered because he has never been a
judge, that argument has no merit to it whatsoever. We hear
it less and less now that it is on the tenth day.
Well, those two arguments didn't fly because here is a
superbly qualified person. So they said he didn't answer the
questions.
I just had the privilege of hearing the distinguished
Senator from California and the distinguished Senator from
Minnesota spend a long time talking about that, saying he
hasn't answered questions. Well, Mr. President, I am not a
member of the Judiciary Committee, but I know they had
hearings and I know Members on the other side were in charge
of the Senate when they had the hearings. I know the hearings
could have gone on as long as they wanted them to because
they were in charge. If I am not mistaken, the distinguished
Senator from Utah was here. I believe they went on all day
long. The hearings were unusually long. Miguel Estrada was
there and he answered their questions. Every Senator on the
committee had the opportunity to ask followup questions in
writing, and two did. The Senator from Massachusetts and the
Senator from Illinois did that. Mr. Estrada gave those
answers in writing. He has now said to Members of the Senate
that he is available for further questions. He will be glad
to visit with them.
What does he have to do to answer the questions? Why is
there a new standard for Miguel Estrada? Why do we say to
him, for the first time, tell us your views in a particular
case before we will confirm you? We have tradition rooted in
history that it is even unethical to do that. I appointed
50 judges, as I said, when I was Governor. When I sat down
with these judges, I didn't ask: How would you rule on TV
A and the rate case, or how would you rule on partial-
birth abortion, in the abortion case; or what would you do
about applying the first amendment to the issue of whether
to take the Ten Commandments down from the courthouse in
Murfreesboro, TN, or how do you feel about prayer in the
schools, or if somebody says a prayer before a football
game?
I didn't do that because I didn't think it was right to ask
a judge to decide a case before the case came before him,
which has been the tradition in this country. We are not
appointing legislators to the bench, or precinct chairmen, or
think-tank chairmen, or Senators; we are appointing judges.
They are supposed to look at the facts and consider the law
and come to a conclusion. But they say he didn't answer the
questions.
Mr. President, the only way I know to deal with that--
because this side says one thing and that side says the
other, and since I am not on the Judiciary Committee--is to
read the questions and the answers. I wanted to see whether
he was asked some questions and whether he gave some answers.
These are the questions and answers, Mr. President. This is
the record of the hearing of Miguel Estrada, plus a long
memorandum of questions from the Senator from Massachusetts
and the Senator from Illinois that he also answered. I will
not take the Senate's time to read all of the questions and
answers, but since they keep saying he didn't answer the
questions, let me give some examples.
The chairman of the committee says: Mr. Estrada, we have
heard you have held many strongly-held beliefs. You are a
zealous advocate. That is great. You know, lawyers who win
cases are not the ones who say ``on the one hand, this, on
the other hand, that.'' They are zealous. But you also have
to make sure, if you are going to enforce the laws, that your
personal views don't take over the law. Senator Thurmond has
asked every single nominee I have ever heard him speak to--
Republican or Democrat--to speak to that effect. What would
you say is the most important attribute of a judge, and do
you possess that?
A very good question.
Answer: The most important quality for a judge, in my view,
Senator Leahy, is to have an appropriate process for
decisionmaking. That entails having an open mind, it entails
listening to the parties, reading their briefs, going back
behind the briefs and doing the legal work needed to
ascertain who is right in his or her claims. In courts of
appeals court where judges sit in panels of three, it is
important to engage in deliberations and give ears to the
views of colleagues who may have come to different
conclusions. In sum, to be committed to judging as a process
that is intended to give us the right answer and not a
result. I can give you my level best solemn assurance that I
firmly think I have those qualities, or else I would not have
accepted the nomination.
``Does that include the temperament of the judge?'', asked
the chairman.
Mr. Estrada said: Yes, that includes the temperament of a
judge. To borrow somewhat from the American Bar Association,
the temperament of a judge includes whether he or she is
impartial and openminded, unbiased, courteous, yet firm, and
whether he will give ear to people who have come into his
courtroom and who don't come in with a claim about which the
judge may at first be skeptical.
The chairman said: Thank you.
I submit that is a good answer. I appointed 50 judges and I
would have listened to that question. I would give him an A-
plus on that.
Here is the Senator from Iowa: Before I make some comment,
I want to ask three basic questions.
This is in the hearing with Mr. Estrada. This is the man
who the other side says doesn't answer questions.
The Senator from Iowa: In general, Supreme Court precedents
are binding on all lower Federal courts, and circuit court
precedents are binding on district courts within a particular
circuit. Are you committed to following the precedents of the
higher courts faithfully, giving them full force and effect
even if you disagree with such precedents?
Mr. Estrada: Absolutely, Senator.
How could you make a better answer than that? You could
either say yes or no. He said yes.
The Senator from Iowa: What would you do if you believed
the Supreme Court or court of appeals had seriously erred in
rendering a decision? Would you, nevertheless, apply that
decision, or would you use your own judgment on the merits,
or the best judgment of the merits?
Mr. Estrada: My duty as a judge, and inclination as a
person and as a lawyer of integrity would be to follow the
orders of the highest court.
The Senator from Ohio: And if there were no controlling
precedent dispositively concluding an issue with which you
were presented in your circuit, to which sources would you
turn for persuasive authority?
Mr. Estrada: When facing a problem for which there is not a
decisive answer from a higher court, my cardinal rule would
be to seize aid from any place I could get it. Depending on
the nature of the problem, that would include related case
law and other areas higher courts had dealt with that had
some insights to teach with respect to the problem at hand.
It could include history of the enactment, in the case of a
statute, legislative history. It could include the custom and
practice under any predecessor statute or document. It could
include the view of academics to the extent they purport to
analyze what the law is instead of prescribing what it ought
to be, and, in sum, as Chief Justice Marshall once said, to
attempt not to overlook anything from which aid might be
derived.
I give him an A-plus for that. That was a good question,
and he gave a superb answer, just the kind of answer I think
an American citizen who wants to appear before an
impartial court in this country would hope to hear. I do
not think we want to hear: Welcome to the court, Mr./Ms.
Litigant. We have here your Democratic court; we have here
your Republican court. If your views are all right, you
might get the right hearing. You would want a judge who
said what Mr. Estrada said.
The Senator from Massachusetts, who has been extremely
critical of Mr. Estrada, asked a more detailed question. Mr.
President, you may be wondering why I am going into such
detail when this is available to the whole world, including
the Senators on the
[[Page S2301]]
other side. The problem is perhaps someone has not bothered
to offer this book to our friends on the other side because
they keep coming down here while you and I are presiding day
in and day out for 10 straight days and saying Mr. Estrada
has not answered the questions. My suggestion is he has
answered question after question, and he has done a beautiful
job of answering the questions.
Let me take a few more minutes and give examples of
answering questions.
The Senator from Massachusetts: Now, Mr. Estrada, you made
the case before the court that the NAACP should not be
granted standing to represent the members. As I look through
the case, I have difficulty in understanding why you would
believe the NAACP would not have standing in this kind of
case when it has been so extraordinary in terms of fighting
for those--this is the NAACP--and in this case was making the
case of intervention because of their concern about the youth
in terms of employment, battling drugs, and also voting.
In other words, Mr. Kennedy was saying: Mr. Estrada, how
can you do this when the NAACP is on the other side?
Mr. Estrada's answer: The laws that were at issue in that
case, Senator Kennedy, and in an earlier case, which is how I
got involved in the issue, deal with the subject of street
gangs that engage in or may engage in some criminal activity.
I got involved in the issue as a result of being asked by the
city of Chicago--the last time I checked, the mayor of the
city of Chicago was a Democrat, a good mayor, but just so I
would not want anyone to think this was a partisan comment--
which had passed by similar ordinance dealing with street
gangs. And I was called by somebody who worked for Mayor
Daley when they needed help in the Supreme Court in a case
that was pending on the loitering issue. I mention that
because after doing my work in that case, I got called by the
attorney for the city of Annapolis, which is the case to
which you are making reference. They had a somewhat similar
law to the one that had been at issue in the Supreme Court.
Not the same law. They were already in litigation, as you
mentioned, with the NAACP. By the time he called me--this is
the lawyer for the city--he had filed a motion for summary
judgment making the argument that you outlined. And he had
been met with the entrance into the case by a prominent DC
law firm on the other side. He went to the State and local
legal center and asked: Who can I turn to to help? And they
sent him to me because of the work I had done in the Chicago
case. Following that, I did the brief, and the point on the
standing issue that you mentioned is that in both Chicago and
in the Annapolis ordinance, you were dealing with types of
laws that had been passed with significant substantial
support from the minority communities. I have always thought
that it was part of my duty as a lawyer to make sure that
when people go to their elected representatives and ask for
those type of laws to be passed to make the appropriate
arguments that a court might accept to uphold the judgment of
the democratic people. In the context of the NAACP, that was
relevant to a legal issue because one of the requirements we
argued for representational standing--those who might be
listening may think this is awfully detailed, awfully
specific, awfully long. Mr. President, that is my point.
Senator Kennedy asked an appropriate and very detailed
question about an issue involving street gangs in Chicago
where Mayor Daley asked Mr. Estrada to help, and Mr. Estrada
gave Senator Kennedy a very detailed, courteous, respectful,
specific answer that has taken me 3 or 4 minutes to read, and
I am not through yet.
The point is, the other side keeps saying he has not
answered questions when he has answered the questions. Not
only has he answered them, he has answered them in a way a
superbly qualified lawyer with his background might be
expected to answer.
The Senator from Alabama: Mr. Estrada, if you are confirmed
in this position, and I hope you will be, how do you see the
rule of law, and will you tell us, regardless of whether you
agree with it or not, you will follow binding precedent?
Mr. Estrada: I will follow binding case law in every case.
I don't even know that I can say whether I concur in the case
or not without actually having gone through all the work of
doing it from scratch. I may have a personal, moral,
philosophical view on the subject matter, but I undertake to
you that I would put all that aside and decide cases in
accordance with the binding case law and even in accordance
with the case law that is not binding but seems instructive
in the area, without any influence whatsoever from any
personal view that I may have about the subject matter.
What Mr. Estrada was saying to the Senator from Alabama
was: Mr. Senator, with respect, I may not decide this case
the way you would like for it to be decided because I will
look at the case law and I will follow the case law, and I
might even decide this case the way my personal view would
decide it if the case law is different than my personal view.
In other words, I think Mr. Estrada is giving the answer that
most Americans want of their judges, regardless of what party
they are in.
I will give a couple more examples, and I do this because
this has gone on now 10 days. All I hear from the other side
is he will not answer the questions, he is not answering the
questions, when, in fact, there is a book full of questions
and answers to which I believe law professors in the law
school I attended would give a very high grade.
Here is the Senator from Wisconsin: With that in mind, Mr.
Estrada, I would like to know your thoughts on some of the
following issues. Mr. Estrada, what do you think of the
Supreme Court's effort to curtail Congress' power which began
with the Lopez case back in 1995, the Gun-Free School Zone
Act. That was a very controversial case. I remember my own
view on that. I would have voted against it, even though,
obviously, I am for gun-free school zones, but almost every
Senator voted for it because they did not want to sound like
they were against gun-free school zones, I guess, or whatever
the reason might have been, but it was a controversial issue
and a hard issue to vote against.
Mr. Estrada: Yes, I know the case, Senator. As you may
know, I was in the Government at the time, and I argued a
companion case to Lopez that was pending at the same time and
in which I took the view that the United States was urging in
the Lopez case and in my case for a very expansive view of
the power of Congress to pass statutes under the commerce
clause and have them to be upheld by the court. Although my
case, which was the companion case to Lopez, was a win for
the Government on a very narrow theory, the court did reject
the broad theory I was urging on the court on behalf of the
Government.
In other words, Mr. Estrada was sticking up for the very
people who are saying he will not answer their questions. He
was there. That was his view, and he talks about it, and he
answered the question: Even though I worked very hard in that
case to come up with every conceivable argument for why
the power of Congress would be as vast as the mind could
see, and told the court so at oral argument, I understand
I lost on that issue in that case as an advocate, and I
will be constrained to follow the Lopez case.
Here we are, Mr. President. Mr. Estrada took a position
that I would have voted against. I think he is wrong, but he
really did not take a position that I would vote against him.
He argued a case before the court that made the very best
argument he could make, arguing two lines of opinions. What
our friends on the other side are saying is, when he writes a
brief or argues a case on behalf of the United States, that
somehow that reflects the point of view with which they
disagree. I disagree with his brief. I would not consider
voting against him or anybody else based on that kind of
reason, a very complete answer.
Then if I may, I will state two more. Again, I would not
normally think it was necessary for me to read the questions
and read the answers, except that virtually every Senator
from the other side who has come in has said he has not
answered the questions, so I want the American people and my
colleagues to know that if they want to know whether he has
answered the questions all they need to do is go to the
hearing record and read the question and read the answer.
Here is a tough one from the Senator from California: Do
you believe that Roe v. Wade was correctly decided?
There is no more a difficult question for a judge who comes
before the Senate, because that is a terribly difficult issue
about which we all have deeply held moral beliefs, and for
all of us almost there is only one right way to answer the
question, unless one believes that what judges are supposed
to do is to interpret the law and apply the law to the facts.
Mr. Estrada's answer: My view on that judicial function,
Senator Feinstein, does not allow me to answer that question.
Then he goes on to explain what he meant.
I have a personal view on the subject of abortion, as I
think you know. But I have not done what I think the judicial
function would require me to do in order to ascertain whether
the Court got it right as an original matter. I have not
listened to the parties. I have not come to an actual case or
a controversy with an open mind. I have not gone back and run
down everything that they have cited. And the reason I have
not done any of those things is that I view our system of law
as one in which both me as an advocate and possibly, if I am
confirmed, as judge have the job of building on the wall that
is already there and not to call it into question. I have had
no particular reason to go back and look at whether it was
right or wrong as a matter of law, as I would if I were a
judge that was hearing the case for the first time. It is
there. It is the law, as has been subsequently refined by the
Casey case, and I will follow it.
That is a complete answer to the most difficult question
that could be asked of a nominee for a Federal judgeship.
Senator Feinstein: So you believe it is settled law?
Mr. Estrada: I believe so.
As I mentioned, if I understand the committee's rules,
every Senator on the committee has the ability to ask
followup questions. I know when I was confirmed by the
committee they asked me many followup questions and I worked
hard answering the questions 10 or 12 years ago when I was in
the first President Bush's Cabinet. These are serious
questions and serious answers.
Here I think is a revealing question, and one which may
give us some idea of why we are in the 10th day of debate on
one of the most superbly qualified candidates ever nominated
for the court of appeals, a man who exemplifies the American
dream. The Senator from Massachusetts, Mr. Kennedy, asked
this question:
Mr. Estrada, do you consider yourself a ``conservative''
lawyer? Why or why not?
[[Page S2302]]
Why do you believe that you are being promoted by your
supporters as a conservative judicial nominee? Do you believe
that your judicial philosophy is akin to that of Justices
Scalia and Thomas? Why or why not?
What Senator Kennedy is looking for is to find out is this
a conservative lawyer. Is the suggestion that we may want
conservative decisions or liberal decisions? I thought we
wanted fair decisions, based on precedent, based on fact. I
thought we wanted judges who it would be impossible for us to
tell where they were coming from before they were coming.
The response from Mr. Estrada is very interesting. He said
to the Senator from Massachusetts: My role as an attorney is
to advocate my client's position within ethical bounds rather
than promote any particular point of view, conservative or
otherwise.
A-plus for that, I would say.
Mr. Estrada says: I have worked as an attorney for a
variety of clients, including the United States Government,
State and local governments, individuals charged with
criminal activity.
Are we going to say criminal lawyers cannot be confirmed
because they represented people who murdered people and that
makes them murderers?
Large corporations, indigent prisoners seeking Federal
habeas corpus, in those cases I have advocated a variety of
positions that might be characterized as either liberal or
conservative.
Remember, this is from a career employee in the U.S.
Solicitor's Office in the Clinton and Bush administrations.
This is Miguel Estrada: While I am grateful for the wide
ranging and bipartisan support that my nomination has
received, I have no knowledge of the specific reasons that
might cause a particular supporter of my nomination to
promote my candidacy for judicial office. As a judge I would
view my job as trying to reach the correct answer to the
question before me without being guided by any preconceptions
or speculations as to how any other judge or justice might
approach the same issue.
If all of the Senators would take the time to read Miguel
Estrada's answers, some of them might end up in a textbook of
appropriate answers, if they believe a judge's job is to
apply precedent and consider the facts and come to a fair
decision.
Miguel Estrada is qualified, and he is not just qualified,
he is one of the most qualified persons ever nominated for
the Federal court of appeals. If he, by his very candidacy,
represents the American dream that anything is possible,
coming here from Honduras at age 17 and making his way
through such a distinguished series of appointments, if he
has answered the questions in what I would argue is a
superior way, the way most nominees would be capable of
answering the questions, and I have read just a few of them--
I can come back and take another 2 or 3 hours and read more
because there are hours of questions and answers--and if a
majority of Members of the Senate have signed a letter saying
they would vote to confirm him, then why can we not vote on
Miguel Estrada?
The only reason can be that our Democratic friends want to
change the way judges are selected. They want to say it takes
60 votes instead of 51, and they want to say the criteria for
winning those votes is to answer the questions the way they
want.
That will give us a Federal judiciary filled with
partisans, or an empty Federal judiciary because we will be
debating night after night because we cannot agree on whom to
nominate and confirm. Such a process, if carried on in
subsequent Congresses, will diminish the executive. It will
diminish the judiciary. It will reduce the likelihood that
facts will be considered and that binding precedent will
apply. In other words, it will reduce the chance that justice
will be done. It will reduce respect for the courts because
it will be assumed that if partisan views on the case are
what it takes to get confirmed by the Senate, then partisan
views are what it takes to win a case before the court.
It reminds me of the story we tell at home about the old
Tennessee judge. He was in a rural county up in the mountains
and the lawyers showed up for a case one morning. He said:
Gentlemen, we can save a lot of time. I received a telephone
call last night. I pretty well know the facts. All you need
to do is give me a little memorandum on the law.
We do not want a judiciary where those who come before it
believe the judges got their political instructions when they
were confirmed and that there is really no need to argue the
case.
So Miguel Estrada is superbly qualified. Miguel Estrada has
answered question after question, and he has done it very
well. A majority of the Senate has signed a letter saying
they are ready to vote today to confirm Miguel Estrada, and
never in our history have we denied such a vote by filibuster
to a circuit court judge. It is time to vote.
Before I finish my remarks, I make this pledge. I may be
here long enough, and I hope it is a while, before I have an
opportunity to cast a vote for a nominee for a Federal
judgeship that is sent over by a Democratic President, but I
can pledge now how I will cast my vote. It will be the same
way I appointed 50 judges when I was Governor. I look for
good character. I look for good intelligence. I look for good
temperament. I look for good understanding of the law and of
the duties of judges. I will look to see if this nominee has
the aspect of courtesy to those who come before the court. I
will reserve the right to vote against some extremists, but I
will assume that it is unnecessary and unethical for the
nominee to try to say to me how he or she would decide a case
that might come before him or her. When it comes time to
vote, when we finish that whole examination, I will vote to
let the majority decide.
In plain English, I will not vote to deny a vote to a
Democratic President's judicial nominee just because the
nominee may have views more liberal than mine. That is the
way judges have always been selected. That is the way they
should be selected.
I conclude in equally plain English, and with respect, I
hope my friends on the other side of the aisle would not deny
a vote to Miguel Estrada just because they suspect his views
on some issues may be more conservative than theirs.
These are the most serious times for our country. Our
values are being closely examined in every part of the world.
Our men and women are about to be asked, it appears, to fight
a war in another part of the world. How we administer our
system of justice is one of the most important values they
are defending. We need to constrain our partisan instincts to
get them under control. We need to avoid a result that
changes the way we select judges. In my view, we permanently
damage our process for selecting Federal judges.
The PRESIDING OFFICER (Mr. Vitter). The Senator from New Mexico.
Mr. DOMENICI. Mr. President, before Senator Alexander leaves the
Chamber, I am pleased that I was late so he had to speak first and I
could listen to him. His remarks were thoughtful, thought provoking,
and conclusive. If Senators on the other side of the aisle will listen
to what he said and think it through, they will understand that this
situation is going to be resolved. If they continue to insist it be
resolved their way, I believe the Senate will decide that they will
change procedural rules.
Having said that, I remind those who are listening and those who have
lived through very recent history that there have been some contentious
nominees that we have considered in recent times and that the American
people can vividly remember. Let me remind those listening: We had the
nomination of Judge Carswell years past. That was a highly debated
nomination. All kinds of things were said about his qualifications, his
capacity. There was enough enthusiasm against him--rancor--that if the
filibuster had been used and brought to fruition, he probably never
would have gotten enough votes to break the filibuster. He would have
been defeated that way. But that did not happen. There was an up-or-
down vote, and he was defeated.
Remember recently when we thoroughly debated Clarence Thomas, how
many weeks that went on; how many days the debate went on. That
controversial nomination was not filibustered. There was an up-or-down
vote, just as we Senators on this side of the aisle are almost begging
the Democrats to let happen for current nominees. It happened in the
case of Clarence Thomas and he won by two votes. It is obvious, that if
those who opposed him--and they opposed him with a great deal of
certainty that he should not go on the bench--would have chosen the
course of today, they would have used a filibuster. Why didn't they?
They didn't because historically in the Senate, traditionally in the
Senate, where there is majority support for a nominee, a filibuster is
not used.
Having said that, it is obvious to this Senator that somehow or
another in the last 4 years there has been a new idea promulgated that
the advice and consent function, which the Constitution says is our
prerogative to give to Presidential nominees, allows the other side,
when it has an objection to a nominee, to filibuster that nominee.
There have been more filibusters in the last 4 years against judges
than in all of this body's previous history. It appears that every time
there is a contentious nominee, that tactic will be used. That idea was
not in this body before 2000. That tactic was not used before to the
same degree it is used now. It is an invitation, I say to my friends on
the other side of the aisle, for the majority to decide that enough is
enough.
The idea that we want to protect the minority goes both ways. Senator
Alexander is right. Many of us have been in the Senate on this side of
the aisle when we were in the minority. I came here when we only had 38
Republicans. We were the ones crying out for protection. But we didn't
filibuster Federal judgeships. We didn't filibuster district
[[Page S2303]]
or circuit or Supreme Court nominees. That was for a number of years,
not just one or two. For a number of years we were in the minority.
But the problems with requiring a super-majority is a concept that
has been discussed by our Founding Fathers. Alexander Hamilton wrote:
To give the minority a negative upon the majority (which is
always the case where more than a majority is requisite to a
decision) is, in its tendency, to subject the sense of the
greater number to that of the lesser.
Obviously, that is the case. Obviously, when we look at judges and
history, the Constitution talks about advice and consent and clearly
requires that a majority of the Senate consent. Our rules are not the
only things that talk about advice and consent. The Constitution does.
Our Founding Fathers, fully aware of this Hamiltonian quote, provided
in the Constitution the events when more than a majority is required.
The Constitution said to override Presidential vetoes required more
than a majority; to remove Federal officers under impeachment required
more than a majority; to ratify treaties required more than a majority;
to expel a House or Senate member required more than a majority; and to
propose constitutional amendments required more than a majority. It did
not say such was required when we are exercising our advice and consent
power. Had that been a situation in our governance that required a
supermajority, it would have been easy for the Founding Fathers to
write that in. But they did not.
From this Senator's standpoint, the other side of the aisle, which
talks so much about closing down Government if they don't get their way
on this, ought to think it through carefully. Closing down the
Government is something that ought to be used rarely. Even the words
ought to be used carefully. ``Closing down the Government'' could mean
we are going to stop funding education. It could mean we are going to
close down all the national parks. It could mean we are not going to
have enough money appropriated for our military. Closing down the
Government, a threat from the other side of the aisle which they think
would make us change our minds about this issue, is at least a two-
edged sword and probably only a one-edged sword. That sword will be:
Woe to those who close down Government over issues such as this.
Recall within the last 15 years, closing down Government was a
threat, I regret to say, made by and carried out by some leadership in
the House. The issue was thought by them to be paramount. But the
public prevailed. The public said: The paramount issue is to keep your
Government open, even if your cause is one you believe whole-heartedly
in. From my standpoint, the threat is sufficient for me to seriously
consider using this constitutional option so that advice and consent
will be majoritarian instead of requiring 60 votes in the Senate.
The reason is easy for me. The Senate as an institution--its rules,
its process--is marvelous. I have been here a long time. I support it.
It is set apart by free debate, by opportunity to amend. But there also
is precedent in our rules. There are requirements that the Senate think
carefully about what they are doing regarding as important an issue as
advice and consent. Some think, that Senator from New Mexico has been
here too long; he has frequently said he admires and respects the rules
of the Senate and has become accustomed to them. I have frequently
said, for those who don't like the rules, wait until you are here 3 or
4 years--you will think they are great. Freshmen think we ought to get
things done right now; forget the rules and the procedures. But let
them stay here a term, and they understand what the Senate rules mean.
Understanding all that and feeling as I do about these issues, it
seems to me we cannot continue to deny a man like Miguel Estrada a seat
in the judiciary when there is more than a majority of the Senate who,
after hours of debate, is willing to have a vote. The other side knows
that such a vote has a majority of support so they prevent a vote from
occurring. You can't keep doing that and expect the majority to sit by
and say: It is just the current rules, you can't change them; don't
worry about it. In fact, that is a dangerous proposition.
The bell will toll. If this is continued, there will be Members such
as this Senator who will end up saying: We have had enough. We are
willing to abide by the same rules when we are in the minority. It will
apply to both Democrats and Republicans. We know some say we will be in
the minority one day. Some of us are willing to say: Let it be the case
for both, and let us rule by majority vote with reference to judicial
appointees.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. Mr. President, I rise to offer an historical
perspective on the very important issue of the Senate exercising its
advice and consent responsibilities on judicial nominations. It has
been the subject of considerable discussion, and I wanted to offer some
thoughts on the subject myself. I have been around here long enough, in
both the majority and the minority, to understand that a Senator may
from time to time use a vote on a judicial nomination to protest the
nomination or a particular course of action. But what we saw in the
108th Congress was a wholesale departure from the norms and the
traditions of the Senate, whereby the use of the judicial filibuster
became a commonplace device to stop the President's circuit court
nominees.
For the first time in history, a minority of Senators, on a repeated,
partisan, and systematic basis, has prevented the Senate as a whole
from discharging its constitutional obligation to provide advice and
consent on judicial nominations.
This level of obstructionism is truly unprecedented. As
justification, those who support this approach have pointed to several
nominees of President Clinton on whom it was necessary to file cloture.
I was here during that period. I remember exactly what happened.
The fact is it was the Republican leadership in the majority who
filed cloture on these very controversial Clinton nominees. This does
not show that the Republican Conference was trying to prevent their
consideration. Rather, Republicans, who were Members of the opposition
party of the President, filed cloture to advance their consideration--
to advance their consideration.
If there is any doubt, one need only look at the cloture votes on two
of the most controversial Clinton nominees, Marsha Berzon and Richard
Paez, and then compare those cloture votes with the votes on the
nominations themselves. Doing so reveals two important points.
First, the cloture vote on these nominees was overwhelmingly in favor
of ending debate--of ending debate--and proceeding to their
confirmation. The cloture vote on the Berzon nomination was 86 to 13.
So obviously there were 13 Senators trying to prevent Ms. Berzon from
becoming a Federal judge. The cloture vote on the Paez nomination was
85 to 14. Indeed, the vast majority of the Republican Conference--in
fact, a supermajority of about 70 percent of our conference--voted for
cloture. These plain facts dispute the notion that the Republican
Conference was filibustering the Berzon and Paez nominations.
In short, if I could be a bit poetic, a cloture vote does not a
filibuster make. A cloture vote does not a filibuster make.
A second point is even more telling. Many of the very same members of
our conference who voted for cloture on these nominations then turned
around and voted against confirmation because we had serious concerns
about the Paez and Berzon nominations. Senator Lott, who was
majority leader at the time, did that, and so did I, voted for cloture,
believing that judges should not be filibustered for the purpose of
ending their nomination--and then voted against the judge on the up-or-
down vote to which all judges are entitled. The confirmation vote on
the Berzon nomination was 64 to 34. The
[[Page S2304]]
confirmation vote on the Paez nomination was 59 to 39. Obviously, the
opponents of Paez could have killed that nominee by a filibuster if
they had chosen to do so. Both times we approached the filibuster level
of 41 votes. I know how to count votes, and if we had wanted to
filibuster the Paez and Berzon nominations, I suspect we could have and
probably stopped them both. But the Republican leadership did not whip
our caucus to filibuster these two nominations. In fact, it did the
opposite. To his great credit, Senator Lott urged our colleagues not to
filibuster these two nominations despite the strong opposition to them
within our conference.
That is why Judge Paez and Judge Berzon have been sitting on the
ninth circuit for the last 5 years. In fact, today is the fifth
anniversary of their confirmation. They were confirmed on March 9,
2000. And for those who point to the Paez and Berzon nominations to try
to justify their filibusters, I emphasize again we are talking about
Judge Paez and Judge Berzon. So given that many of my Republican
colleagues and I opposed both the Berzon and Paez nominations as shown
by our votes against the nominations themselves, why did we vote for
cloture? We did so because we were mindful of a longstanding Senate
norm and precedent that the Senate does not filibuster judicial
nominations. That is an unwritten Senate rule. Even if one strongly
disagrees with the nomination, the proper course of action under Senate
norms and traditions, as they have consistently been understood and
applied, is not to filibuster the nominee but to vote against him or
her. That is precisely what a supermajority of my conference and I did
on the Paez and Berzon nominations, who were two of the most
controversial--these were extraordinarily controversial judges that
President Clinton had named to the ninth circuit. My Republican
colleagues and I honored Senate tradition. We followed the
constitutional directive set forth in article II, section 12, that the
Senate as an institution as reflected by the will of the majority of
its Members, render its advice and consent on the President's nominees.
We put propriety over partisanship.
But that precedent has now been changed. Those norms and traditions
have been upset.
Therefore, I ask my colleagues to consider the ramifications of
continuing down this path of institutionalizing this use of the
judicial filibuster as a tool of obstruction. For more than 200 years
we have recognized the careful balance our Founding Fathers struck
among our three branches of Government. Judicial filibusters pose a
danger to this constitutionally required separation of powers.
I believe it is not too late to turn back. It is in the best
interests of both great parties and the Senate itself that we restore
the norms, traditions, and precedents of the past 200 years that have
served this country so well. It is extraordinarily shortsighted. Our
friends on the other side of the aisle will have the White House again
one day, and the shoe will be on the other foot. They will rue the day,
if this precedent is allowed to prevail, that they set this precedent.
I think it is time we stood back, took a breath and thought about this
institution and respected its norms and traditions.
Mr. President, I yield the floor.
____________________