[Congressional Record (Bound Edition), Volume 149 (2003), Part 15]
[Senate]
[Pages 21107-21111]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    WITHDRAWAL OF ESTRADA NOMINATION

  Mr. HATCH. Madam President, I rise today to speak on the unfortunate 
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

[[Page 21108]]

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 unac- knowledged. 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 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

[[Page 21109]]

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 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.

[[Page 21110]]

       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.
       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.

[[Page 21111]]

       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:

       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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