[Congressional Record (Bound Edition), Volume 149 (2003), Part 15]
[Senate]
[Pages 21071-21074]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    WITHDRAWAL OF ESTRADA NOMINATION

  Mr. FRIST. Mr. President, a few moments ago we received a message 
from the White House. I will read the message and I have comments to 
make on that particular message, and it will explain the interruption 
of the debate on this very important bill that we are addressing.
  The message from the White House reads:

       To the Senate of the United States:
       I withdraw the nomination of Miguel A. Estrada, of 
     Virginia, to be United States Circuit Judge for the District 
     of Columbia Circuit.

  That message was signed by President George W. Bush.
  It was 29 months ago that the President of the United States 
nominated Miguel Estrada. Today, we have received this message that 
Miguel Estrada's name has been withdrawn from further consideration by 
the Senate. I expect that many on the other side of the aisle will be 
glad of this. Indeed, we have seen our Democrat colleagues block the 
entire Senate from having a very simple, honest up-or-down vote for 29 
months--well over 2 years.
  Today is a shameful moment in the history of this great institution. 
The Senate has been denied the right to confirm or reject a brilliant 
and a well-qualified nominee because of the obstruction of the few--a 
hard-working and honorable immigrant American who has excelled in the 
pursuit of the law and risen to the very top of his profession has been 
turned away because of the rankest political partisanship.
  In rising today, I wish to take a moment to express my regret to Mr. 
Estrada and to his family and to express my regret to the American 
people who have been denied the service of this extraordinarily 
talented and accomplished man.
  The record, however, is clear--it is crystal clear: Miguel Estrada 
was and is superbly qualified to serve on the bench. He was, in fact, 
unanimously well qualified, according to the rating by the American Bar 
Association, a rating Democrats once called the gold standard.
  Miguel Estrada graduated with honors from Columbia University and 
then from Harvard Law School where he was editor of the Law Review. He 
went on to public service, including 2 years of service in the Clinton 
administration. No one--no one--can claim this man is not qualified to 
serve on the Federal judiciary, and I fully expect that some day he 
will stand for a vote by this Senate again.
  Mr. President, as you know, earlier this year the Senate engaged in 
an unprecedented month-long debate on the Estrada nomination. This 
debate has continued for months thereafter and, indeed, before the 
August recess we took the seventh--the seventh--cloture vote to end 
debate and to allow the Senate--a very simple request--a simple up-or-
down vote, as the Constitution requires. No nominee has ever had this 
many cloture votes.
  As a result of the Estrada debate, the Senate has had the opportunity 
to consider the proper nature of the advise-and-consent role of the 
Senate and to question the propriety of the filibuster as applied to 
judicial nominees. That self-examination is far from over. The fact is 
that the use of unprecedented filibusters to deny the Senate the 
freedom to give advice and consent has, I believe, done great harm to 
the Senate and to, more generally, public discourse.
  Mr. President, let me review the lengthy saga of Miguel Estrada's 
confirmation process.
  Miguel Estrada was nominated by President Bush on May 9, 2001, 29 
months ago. He was among the very first nominees to be sent to the 
Senate for consideration, as the Constitution requires, for this body, 
the Senate, to advise and consent.
  It is worth noting since that time Miguel Estrada was nominated, our 
country has fought two wars and changed the regimes of two nations.
  For the first 505 days of the Estrada nomination, the Democrat 
leadership refused even to hold a hearing. They defended this delay by 
arguing that they knew nothing about the candidate, as if a hearing 
were not the usual and customary way to resolve such a concern of 
hearing about the candidate. In truth, there was more in Mr. Estrada's 
record than in the records of many judicial nominees Democrats had 
comfortably confirmed in previous years.
  Opponents also argued at the time that Estrada lacked judicial 
experience, despite the fact this was not an impediment to the Clinton 
nominees who had never served on the bench, nominees, it should be 
noted, who went on to serve on the very same court to which Estrada was 
nominated. In fact, Earl Warren, William Rehnquist, William Douglas, 
Lewis Powell, and Thurgood Marshall--none of these great jurists had 
any judicial experience when first nominated to a Federal court. But no 
matter, our Democrat colleagues continued to obstruct. They continued 
their obstructionist tactics. Then after finally giving Mr. Estrada a 
hearing a year ago, they announced it was too late in the year to give 
Mr.

[[Page 21072]]

Estrada a vote in the Judiciary Committee.
  After the Republicans won the majority in 2002 and Democrats no 
longer controlled the calendar or the committee, opponents moved to 
plan B, to level baseless charges.
  First came the accusation that Mr. Estrada had ``refused to answer a 
single question'' at his hearing. At best, that is hyperbole. In fact, 
Mr. Estrada answered over 125 questions. The transcript from Mr. 
Estrada's 7-hour long hearing weighs nearly 3 pounds. Admittedly, the 
transcript is heavy with questions my colleagues knew full well Mr. 
Estrada could not answer. They knew he could not answer and also 
maintain his respect for the independent judiciary and abide by the 
code of judicial ethics.
  We learned through the course of a lengthy debate that, in truth, 
some nominees of President Clinton answered fewer than 20 questions. 
One nominee answered only three questions, and he was smoothly 
confirmed by a Republican-led Senate.
  In truth, Mr. Estrada answered more than twice as many questions as 
all three of President Clinton's appointees to the same circuit court 
were asked at their hearings--all three combined.
  Such facts as these naturally raise the serious question as to why 
our Democrat colleagues imposed a double standard on this particular 
nominee with his particular background. In fact, the only questions Mr. 
Estrada declined to answer, as previous nominees had similarly declined 
to answer, involved how he would rule on cases that might come before 
him. During his hearing, Mr. Estrada explained why. He told the 
committee members that he prizes the independence of the judiciary; 
that he believes a judge must put aside his personal views and maintain 
impartiality. In my mind, rather than being a reason or a cause for 
opposing his nomination, his integrity only strengthened the case for 
supporting him.
  Since that hearing, Democrats had almost 12 months to ask further 
questions of him--any at all. Repeatedly, the White House offered Mr. 
Estrada to answer any written question posed to him. To my knowledge, 
only one Democrat Senator took up that extraordinary offer. 
Additionally, the White House offered Mr. Estrada to meet with any 
Senator. To my knowledge, only two Democrat Senators took up that 
particular offer. But unlimited availability in writing and in person 
was simply not enough.
  Mr. Estrada's opponents continued that partisan drumbeat and 
continued to obstruct a simple up-or-down vote by their colleagues so 
we would have that opportunity to express advice and consent.
  At the end, when all the false arguments were exposed, our Democrat 
colleagues fell back on one last carbuncle. They denied Mr. Estrada a 
vote, they said, because the Justice Department refused to hand over to 
them Mr. Estrada's workpapers from the years while he was in the Office 
of the Solicitor General in the Clinton administration.
  This was their asking price, despite the fact that every--every--
single living Solicitor General, both Democrat and Republican, told the 
Senate that such a release of documents would create a harmful new 
precedent against the interest of the American people.
  All of this now has passed. What the American people now deserve is 
an explanation of why. I suspect many know the answer. The saga of 
Miguel Estrada is a tale of great and unbridled Democratic 
partisanship, and the American people, sadly, are the losers.
  In the course of the Estrada debate, I observed and I listened and I 
have reached my own conclusion. I do not believe anyone in the Senate 
would block a nominee based solely on ethnicity. I do not believe any 
of my colleagues harbor this kind of rank bigotry. I do believe, 
however, that what happened to Mr. Estrada was due to base politics.
  To date, the President has nominated a greater percentage of Hispanic 
nominees to the Federal bench than any President before him. The 
President has made clear that he shares the aspiration of the American 
people to see a Latino serve on the Supreme Court. I believe Miguel 
Estrada's incredible abilities and special talents would have 
eventually led him down this path. I believe, as many do, that given 
his strong credentials, he would be a superb candidate should there be 
an opening on that Court.
  Many Democrats and hard-left Washington special interests fear that 
possibility. They do not want this President to have a Hispanic nominee 
of Miguel Estrada's extraordinary abilities named to the Supreme Court 
should a vacancy arise. I believe when all is said and done, the 
American people, who are sensible and fair, will reach a similar 
conclusion about this sorry chapter.
  The fight is not over. We will continue to press for an up-or-down 
vote for the President's nominees. We will continue to press for 
fairness. We will continue our fight to put qualified women, men, and 
minorities on our courts.
  We will fight the obstructionist tactics of the Democrats and the 
liberal special interest ideologues that drive them.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I thank the distinguished majority leader 
for those comments and express my own personal regret on the withdrawal 
of the nomination of Miguel Estrada. It is not too long ago that I was 
in college, in law school, and to hear the academic record of Miguel 
Estrada is enormously impressive. One does not go to Columbia and rank 
cum laude and one does not go to Harvard and serve as editor of the Law 
Review there without very substantial academic achievements.
  Miguel Estrada is a man with a superb record beyond his academic 
achievements. When the issue was raised about not disclosing the 
contents of memoranda which he had written when he was an assistant in 
the Solicitor General's Office is absolutely specious. It is just a red 
herring. There is no reason for that at all. If one is going to ask to 
have a lawyer's work product made available, there would be an enormous 
chilling effect on lawyers who are working day in and day out 
expressing their views, giving their opinions in an honest and candid 
way so their superiors can make an evaluation and a judgment as to what 
to do.
  Having gone to college and law school, and having been a lawyer 
writing memoranda, which I wrote plenty of, I know the indispensable 
quality of being able to say what you believe without having somebody 
look over your shoulder years later in an attempt to deny some 
appointment. If you are going to have to play defense all the time, you 
cannot have the kind of ingenuity, assertiveness, independence, and 
intelligence which is what has made our country strong.
  I believe the country is much weaker for the withdrawal of Miguel 
Estrada as a potential Federal judge. There have been a lot of 
objections raised to a lot of nominees, but the situation with Estrada 
was uniquely unmeritorious in what his detractors had to say.
  He is a young man, and I agree with the majority leader that he will 
be back.
  I yield the floor.
  Mr. ALLEN. Mr. President, will the Senator from Pennsylvania yield?
  Mr. SPECTER. I do.
  Mr. ALLEN. I say to my good colleague from the Commonwealth of 
Pennsylvania that I know he is on the Judiciary Committee. Since Miguel 
Estrada lives in Virginia, my colleague, John Warner, and I presented 
Miguel Estrada to the Judiciary Committee. The Democrat leader was then 
in charge.
  Was the Senator from Pennsylvania present at that committee meeting?
  Mr. SPECTER. I was.
  Mr. ALLEN. I remember him being there. I remember the joy of that 
committee meeting. Miguel Estrada was there. His wife was there. His 
mother Clara and his sister Maria were all there. They were so proud of 
this young man, who came to this country from Honduras as a teenager. 
He was unable

[[Page 21073]]

to speak English. He applied himself, worked hard, and went on to an 
Ivy League school for undergraduate studies. He then went to Harvard 
Law School, where he graduated magna cum laude. He later worked in the 
Solicitor General's Office under President Clinton, where he argued 15 
cases before the Supreme Court of the United States, winning most of 
them. He also clerked for Supreme Court Justices. The American Bar 
Association unanimously recommended him with their highest 
qualifications. It was really a day of joy. It was uplifting.
  There were four vacancies on the court. I remember saying 
``adelante'', come, ``Miguel Estrada.'' So people were charged up about 
this country seeing that a Horatio Alger story still was possible. 
Seeing that if someone worked hard in this country and applied 
themselves, that if someone recognizes them, like President Bush, and 
allows them to serve their country on the second most important court 
in this country, which is the D.C. Court of Appeals, that everyone 
would say, this is what America is all about; there is opportunity for 
all people, regardless of their background, so long as they have that 
record of performance.
  Then we saw obstruction month after month. It took everything the 
Senator could do on the Judiciary Committee to even get him out of 
committee. When the Senator from South Dakota, Mr. Daschle, was Leader, 
we could not even get it out of committee. So this hold continued, 
these personal fouls.
  Now we come to this day, 28 months after President Bush nominated 
Miguel Estrada. I have not served as long as the Senator from 
Pennsylvania, Mr. Specter, or our great leader, Senator Frist of 
Tennessee, but I know my colleagues all look at history. Today I think 
is a very sad, dark day in the history of the Senate. An injustice has 
been perpetrated, an injustice to this gentleman with impeccable 
credentials, who is an inspiration to all Americans.
  In particular, this was an opportunity for a Hispanic American for 
the first time ever to serve on the D.C. Court of Appeals. The real 
motive of this obstructionism is not his qualifications, not his 
judicial philosophy, not claims that Miguel Estrada would be an 
activist or does not understand the proper role of a judge, but the 
reality is they want to deny him that added aspect on his record of 
performance that he served on the Court of Appeals. They fear that, 
should a vacancy arise on the Supreme Court of the United States, 
President Bush would like to make history and appoint someone who has 
the proper judicial philosophy and is also a Hispanic American to the 
Supreme Court.
  This is a sad day for America. As the Senator from Pennsylvania says, 
he is a young man. He is willing to serve in the future and we are 
going to still champion Miguel Estrada. I know Senator Specter, Senator 
McConnell, Senator Frist, and those on this side of the aisle, and a 
few on the other side of the aisle, such as Senator Miller of Georgia, 
Senator Nelson of Florida, Senator Nelson of Nebraska, and Senator 
Breaux of Louisiana, we are going to keep fighting for well-qualified 
judges such as Miguel Estrada.
  I hope and pray some day in the future we will have another 
opportunity to vote on Miguel Estrada to serve this country, because we 
are going to stand for people of quality, of character, of performance, 
and of competence. This sort of obstruction needs to stop. Senators do 
not have to vote in favor of judges if they so desire, but they should 
vote one way or the other--not delay, not hold, not obstruct. It is 
wrong to treat people in such an unjust, unfair, and inequitable way.
  I thank the Senator from Pennsylvania, Mr. Specter, for his great 
leadership in getting Miguel Estrada out of the Judiciary Committee. It 
is a shame and I think a disgraceful day that Miguel Estrada has been 
forced to withdraw his name so he can focus, with his family, on his 
future.
  He has a bright future. I know Senators share my view that he has a 
great future for service in this country someday when the Senate stops 
its obstruction.
  Mr. SPECTER. I have been on the Judiciary Committee for 23 years, and 
very few nominees have come with Miguel Estrada's record. When a man 
comes to Washington to serve with that record, we ought to welcome him, 
not send him packing.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, on the day of the withdrawal of Miguel 
Estrada, it is important to keep in mind we have approved 145 of the 
President's judicial nominees. We have worked with the President to do 
so in a swift and unprecedented pace. Despite the anti-Hispanic 
rhetoric surrounding Mr. Estrada's nomination generated by some on the 
other side of the aisle, a Democratic President appointed the vast 
majority of Latino Americans serving now in our Federal courts.
  Mr. Estrada's withdrawal presents a positive opportunity for the 
President.
  I have worked with the Presiding Officer. The President should look 
at what we have done in Nevada as a model for selecting nominees. 
Senator Ensign and I have worked closely on recommending nominees to 
the White House. I have worked with the junior Senator from Nevada, who 
is a representative of the President's party, in selecting four judges.
  Larry Hicks, who has waited 10 years to become a judge, was selected 
previously by the first President Bush. He patiently waited. He was 
nominated again by the Senator from Nevada and confirmed and is now 
sitting as a judge.
  Jim Meehan, I practiced law in the same community as Judge Meehan. He 
was a fine lawyer. He has made a fine judge.
  In the Ninth Circuit, Jay Bybee. Jay Bybee was criticized by some as 
being too idealistic, but his background is superb, an academic, 
someone who worked not only in academia but worked in various 
administrations of at least two Presidents. He was approved very 
quickly and swiftly.
  Yesterday, we completed a hearing on Robert Clive Jones to be a 
district court judge.
  We do not need the furor surrounding judicial nominations. We have 
approved 145 judges. We should work to have bipartisan support of these 
judges. There are lots of judges who have more conservative ideology 
who do not draw a lot of attention. One hundred forty-five judges have 
been approved and three have not been approved.
  The victim in this has been Miguel Estrada. Miguel Estrada has stated 
publicly that he would answer the questions, but we were told by the 
President's counsel that he was not going to answer the questions. We 
were told by the President's counsel, Mr. Gonzales, that Mr. Estrada 
would not be allowed to come forward with the memorandums he had 
written while in the Solicitor's Office. He was taking directions from 
the President's lawyer, Mr. Gonzales.
  If there is a victim in all this, it is Miguel Estrada--I acknowledge 
that with the majority--but it is caused by the President and the 
people surrounding him, not caused by us. All we wanted was to have him 
answer questions and supply the memo while in the Solicitor's Office.
  I heard a statement as I walked in the room saying we have to stop 
this kind of obstructionism. One hundred forty-five judges are now 
serving, and we have approved those judges--we have turned down three--
but 145 to 3 is not bad. It is overwhelmingly positive.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I hope our colleagues listen carefully to 
the statement of my friend and colleague from Nevada in outlining the 
factual situation regarding the consideration of Mr. Estrada. He states 
it quite accurately as a member of the Judiciary Committee.
  The real issue is whether the Senate is going to perform as our 
Founding Fathers expected us to perform. Any fair reading of the 
Constitutional Convention indicates quite clearly until the final few 
weeks of the Constitutional Convention that appointed power of all 
United States judges was in the Senate. Only in the last few

[[Page 21074]]

weeks was the decision made to make it a shared power. It was never 
understood that we were to be a rubber stamp for anything that the 
Executive posed in terms of judicial nominees.
  The members of the Judiciary Committee in the Senate take that 
responsibility very carefully and closely. Part of fulfilling the 
responsibility after the President makes a nomination is for us to make 
a balanced and informed judgment. In order to make a balanced and 
informed judgment, we ought to know, the people ought to know, the 
Senate ought to know the information the White House knows; that the 
President knows when he is going to make a nomination to the district 
court, in this case.
  When the nominee comes before the Judiciary Committee and says, look, 
I am quite prepared to share that information, and where Members of the 
other side of the aisle implore the White House to make that 
information available so that there could be a complete understanding 
of the positions taken by Mr. Estrada, and then a movement toward the 
completion of the nominee, the White House indicated they were not 
going to comply with that particular request. They are the ones who 
made the judgment that it was more important for them not to have that 
information shared than the consideration for the Senate of the United 
States to make a balanced and informed judgment about the complete 
positions, understanding, and awareness of this nominee and how they 
view the Constitution of the United States.
  I am very hopeful, as the Senator from Nevada pointed out, since 
there has been sufficient and overwhelming acceptance of so many of the 
White House nominees, that in the future we will be able to work out 
the process so we can have someone who is qualified, someone who can 
command the kind of strong support in the Senate as so many other 
nominees have. And, in particular, this is an enormously important 
court, as the Senator from Nevada knows, the DC Circuit Court. It has 
very special jurisdiction. The considerations of the rights to workers, 
those appeals from the NLRB go to the DC Circuit Court. The 
interpretations of the environmental laws go to the DC Circuit Court. 
Protections and matters regarding the Patriot Act go directly to the DC 
Circuit Court.
  It has an extremely important role in terms of our whole judicial 
system which increases the responsibility we have in ensuring this 
information about the nominee is going to be available to the American 
people.
  I wish the best to Mr. Estrada. I agree with the characterization of 
the Senator from Nevada that he has been the victim of the decision 
made by the White House to refuse to cooperate with the Senate.

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