[Congressional Record (Bound Edition), Volume 149 (2003), Part 15]
[Senate]
[Pages 21118-21120]
[From the U.S. Government Publishing Office, www.gpo.gov]




                             MIGUEL ESTRADA

  Mr. SESSIONS. Madam President, it is a sad day for the Senate today. 
Miguel Estrada, after having been nominated by the President to the 
Court of Appeals of the DC Circuit, after having waited 28 months, 
almost 2\1/2\ years, felt it imperative that he get on about his 
private business, his law practice. He has asked the President to 
withdraw his name. It is with great sadness that occurred.
  For many in this body, Miguel Estrada is one of the finest nominees 
to come before this Senate. The American Bar Association evaluated him. 
This is certainly no rightwing group. They evaluated him and 
unanimously concluded he was well qualified for the Court of Appeals. 
Indeed, he is.
  The sad thing about it was the ground rules of Senate confirmation 
have been changed. Miguel Estrada was a victim of a sustained 
filibuster. It was for the first time in history that a sustained 
filibuster had defeated a circuit or district court judge. He was the 
first one subjected to a filibuster in this Congress. He is the first 
one to be forced to withdraw because he has to get on with his life. 
And he had 55 votes in the Senate for an up-or-down vote and a like 
number, I am sure, for confirmation.
  For the first time, 45 Senators have blocked and defeated a nominee. 
This is an unprecedented change in our Senate policy. It is something 
that is not good for this Senate. It has diminished the independence of 
the judiciary. It has diminished the power of the executive branch to 
nominate and it has harmed the Senate when we change the historical 
rule from 50 votes to 60 votes for a confirmation. It is not good 
public policy.
  I ask why it is that this Senate, for all these years since the 
founding of this Republic, has not had a filibuster for one of these 
nominees? The reason is pretty clear. The Senators believe the 
Constitution suggests confirmation should be by majority vote. For 
example, the Constitution says the Senate shall advise and consent on 
treaties provided two-thirds agree and shall advise and consent on 
certain nominees, including judges. From that implication it is clear 
that two-thirds were required for advice and consent on treaties but 
only a majority for the judicial nominees. That is what we have done 
until this year. This plan to block nominees was designed after 
President Bush was elected and the Democrat Senators had a retreat with 
a number of liberal law professors, including Lawrence Tribe, Cass 
Sunstein, Marcia Greenberg. These liberal professors they talked of 
changing the ground rules for confirmation and Democrat Senators 
decided to change the historic rules of this Senate and block more 
nominees.
  Of course, President Bush nominated nine judicial candidates when he 
took office. Two were Democrats. One was a renomination of a Clinton 
nominee, a Democrat, and the renominated Clinton nominee was promptly 
confirmed. Nine out of the 11 sat. The Democrats had the majority in 
the Senate and they refused to bring those candidates up for hearing in 
the Judiciary Committee.
  Finally, when the election occurred and one of the issues in the 
election was the obstructionism in the Senate by the Democratic 
majority and a new majority was constituted with the Republicans in the 
majority, they moved some of these nominees forward. Estrada was moved 
out of committee, Priscilla Owen and others were moved forward. We then 
found ourselves facing for the first time in history a filibuster of 
Miguel Estrada.
  Let me mention some things about this extraordinary nominee. He was 
born in Honduras and came here as a teenager. He struggled with the 
language. He was able to get himself into Columbia University where he 
finished and graduated with honors. He then went to Harvard Law School 
where he was an editor of the Harvard Law Review, one of the highest 
honors for any graduating law senior. He then clerked for the Court of 
Appeals, the same level court he was nominated to. He served as a law 
clerk to a Court of Appeals judge in New York, as I recall, and then 
clerked for the Supreme Court. Very few lawyers ever get selected to 
clerk for a Justice of the United States Supreme Court. What a great 
honor. He was selected by Justice Anthony Kennedy, one of the moderate 
swing justices in the Supreme Court, as he is viewed.
  After that, he took a position with the Department of Justice and he 
was in the Solicitor General's Office of the Department of Justice. The 
Solicitor General's Office is where the Department of Justice has the 
top appellate lawyers arguing the position of the United States of 
America in circuit courts and in the United States Supreme Court. What 
a great position. Most lawyers say the Solicitor General of the United 
States is the greatest lawyer position in the world. Every day you go 
to court and represent the United States of America in the highest 
court in the land.
  Miguel Estrada was there for 6 years. Every year he was there he got 
the highest possible rating the Department of Justice evaluators give 
to an employee. This is particularly important to note. In 5 of the 6 
years he was in the Solicitor General's Office, it was in the Clinton 
Department of Justice. He served by far the great majority of his time 
in the Clinton Department of Justice and was given each year the 
highest possible ratings. Since then, he has been highly successful in 
law practice. He has argued as many as 10 or 15 cases before the 
Supreme Court. Most lawyers in America will never argue a case before 
the United States Court of Appeals, much less have 15 cases before the 
Supreme Court. He was selected for those arguments because he was known 
to be an extraordinarily skilled appellate lawyer.
  I saw his testimony. He was open and candid and brilliant in his 
answers. I remember one Senator tried to pin him down and said, you are 
a strict constructionist, aren't you? Mr. Estrada said, I am not sure I 
would call myself that. And he said, the President wants to nominate 
strict constructionists and President Bush has nominated you so you 
must be one. First, he said, the President didn't say anything to me 
about that, but I would call myself a fair constructionist. I believe 
we ought to fairly construe the law as it comes before us. I don't use 
the word strict constructionist. He was open and candid with the people 
asking questions.
  Then there was constructed an event and a circumstance that put Mr. 
Estrada in a bad light. It was deliberate and premeditated and 
calculated, in my view. The Democrat said, well, you served on the 
staff of the Solicitor General and you wrote all kinds of memoranda 
that were relevant to important issues before America. We demand you 
produce every memoranda you wrote while you were in the Solicitor 
General's Office. And he answered this exactly correctly, but I am not 
sure the American people and the press and those who asked questions 
paid attention to his answer. His answer was, Senator, those are not my 
papers. I was a lawyer in a law firm of the Department of Justice. The 
papers I prepared belong to the Department of Justice. I do not have 
the power to reveal to the public such private, legal memorandum from 
my client, the United States of America.
  So the question was, then, well, let's have the Department of Justice 
produce them. And the Department of Justice was absolutely correct in 
saying unequivocally, no, we are not going to produce those documents. 
The reason is that those are confidential, internal memoranda of the 
U.S. Government involving litigation in cases in the United States.
  In fact, it outraged former Solicitors General of the United States 
of both parties. All four former Solicitors General of the United 
States who had served under Democrat administrations wrote a letter 
that the Department of Justice should not reveal those memoranda, that 
it was work product and would chill free debate by young

[[Page 21119]]

lawyers who were asked to submit written memoranda. And every other 
Solicitor General I know of, who is alive, Republican and Democrat, 
agreed that the Department of Justice should not produce them.
  So now we have this viewed as Mr. Estrada wasn't open with the 
committee because he wouldn't produce all these documents. How bogus 
can that be? That is really unfortunate, that Members of this Senate 
would actually suggest that Mr. Estrada somehow has the authority and 
should, even if he did have the authority, produce and turn over to the 
public documents that remain part of the work product of the Department 
of Justice. It would be unethical for him to do so. He should not do 
so.
  So that is how we got into this, I suppose. But surely that is not a 
basis to turn down a nominee of this extraordinary ability. Why would 
they pick on him? Why would they construct this idea that he is somehow 
unqualified? It really baffles me. It is a matter I find difficult to 
fathom.
  But I would just share a few things that strike me. Yes, he was a 
Hispanic. Does that mean Democratic Members of this body are prejudiced 
against Hispanics? I hope not. I would never accuse them of that and 
don't believe that is so. What I do believe is that President Bush had 
made clear that he would like to give Hispanics an opportunity to be 
judges and he would like to see a Hispanic on the Supreme Court of the 
United States. He made that clear. Everybody knows he would like to see 
that occur, if possible.
  Here we were, 2\1/2\ years ago, nominating one of the most brilliant 
Hispanic lawyers, one of the most brilliant lawyers in America of any 
background, Miguel Estrada. He was nominated, and had he been confirmed 
back then as he should have been according to the American Bar 
Association, rating him unanimously well qualified, their highest 
qualifications, well qualified; he would had already had 2\1/2\ years 
of experience writing opinions, proving his skill and ability. At that 
point, I submit, he would clearly be one of the preeminent nominees 
under consideration for appointment to the U.S. Supreme Court. This is 
the quality of this man.
  So, he has been denied an opportunity to achieve a prestigious 
appointment to the court of appeals, and that has in fact denied him 
the opportunity to again prove his excellent integrity, legal skill, 
and ability on that bench. And, who knows, maybe that is why some of 
those thought he would be a perfect nominee for the bench and they 
would just block him now. If that is so, that is wrong and should not 
have occurred. I am very frustrated about it.
  I would also, just one more time, note that he had a majority of the 
Members of this Senate prepared to vote to confirm him--55 votes he 
had. Prior to this year, throughout the history of this country, that 
would have confirmed him easily to this position. So it was by a 
filibuster. We voted cloture I think six, seven, eight times to try to 
get him up for an up-or-down vote, blocked each time by the procedural 
technique of a filibuster that was never before used on a circuit judge 
in the history of this country. It is just really sad that that has 
occurred.
  Let me just say this finally. President Bush wants judges on the 
bench who follow the law. He wants judges on the bench who care about 
the law, who believe they are not postmodernist relativists. He 
believes we have judges who can read words and give those words plain 
meaning and follow those words. That is what a judge should do. A judge 
is not empowered to make law. A judge is not empowered to impose their 
political views or to set public policy. That is not what a judge does. 
A judge rules on the law.
  Make no mistake, a Federal judge is a lifetime appointment. They are 
not able to be voted out of office, as we can if we pass a bad law. We 
can be voted out of office. We are subject to the will of the public. 
But a judge is not. So what we want in a judge is one who follows the 
law and has the history and the discipline to show that he or she will 
follow the law. Miguel Estrada has that. In fact, that is his guiding 
legal philosophy, that a judge should show restraint, should follow the 
law and do the right thing, whether they agree with it or not. That is 
what we need.
  Now we have judges who have declared the California three strikes law 
unconstitutional. They have been in effect for 20 years and no doubt 
are a major factor in the plummeting of crime rates in California and 
other States that had those laws. They are helping to reduce crime 
there. So we have Federal judges saying that is unconstitutional.
  We have a Federal judge in the Ninth Circuit saying the Pledge of 
Allegiance is unconstitutional.
  We have Federal judges just recently overturning 170 death penalty 
matters after juries and judges and appellate courts have ruled on 
them. They just blithely come in and say: We don't like the way you do 
this now, and we are just going to wipe out those death penalty 
decisions.
  We have bizarre verdicts on litigation. Everybody knows about the 
coffee case and other things.
  We are having hearings now on asbestos. The litigation over asbestos 
has gotten completely out of hand. What is occurring there is one of 
the saddest eras in legal history, in my view. Only 40 percent of the 
money paid out by the asbestos companies is getting to the victims. 
What a horrible stain on the legal system in America. We cannot defend 
that. These kinds of things impact the American economy. They drive up 
the cost of insurance. They drive up the cost of doing business. No 
nation in the world has the legal costs on their economy that this 
country has.
  So we need judges with common sense. We need judges who will follow 
the law. We need judges who show fidelity to the rule of law. That is 
what President Bush wants. That is what Miguel Estrada is. That is what 
he has committed his life to. And that is why they don't like him. It 
will mess up the game where people want the courts to do for them what 
they cannot win at the ballot box with elected representatives.
  Now we have Priscilla Owen, also under filibuster. She made the 
highest possible score on the Texas bar exam, was one of the greatest 
lawyers in Texas, was elected this last time to the Texas Supreme Court 
with 87 percent of the vote, and is serving her second term, endorsed 
by every major newspaper in the State of Texas. She was rated 
unanimously well qualified by the American Bar Association. And they 
are filibustering her?
  I will tell you something else. Priscilla Owen is quite capable of 
serving on the U.S. Supreme Court. Is that why they are picking on her? 
And Bill Pryor, the attorney general of Alabama, whom I know and have 
seen operate, one of the finest, most brilliant people I have known. I 
have never met a person who has more commitment to the rule of law, 
doing the right thing, evaluating matters on a legal basis, and doing 
what the law says regardless of politics, which is why he has, for 
example, the support of most of the Democrats in leadership in the 
State.
  He has the support of four of the very top African-American leaders 
in the State, including Joe Reed, a member of the Democratic National 
Committee and vice president of the Teachers Union, Alvin Holmes, one 
of the most outspoken African Americans in the State legislature, 
Congressman Artur Davis, and Chris McNair, former county commissioner 
in the State's largest county and whose daughter was killed in that 
tragic church bombing event many years ago.
  Those are the kinds of people who support Bill Pryor. He was editor 
in chief of the Tulane Law Review--a brilliant lawyer of the highest 
possible ethics and integrity, a man of deep religious faith, a man who 
has proven that he will follow the law regardless of what his personal 
beliefs are and has handled himself again in recent days in a very 
difficult situation involving the chief justice of the State of Alabama 
and the Ten Commandants. He has agonized over it. I know.
  He has studied the law and he simply has done what Bill Pryor has 
always done. He has followed the law regardless of what people may say 
about it. That is his life. That is what he believes in. And that is 
what he will do if

[[Page 21120]]

he is put on the bench. You can't find a person in America better 
qualified.
  These filibusters unprecedented in the history of this Senate.
  It is a very sad day that we are here today to see the success of the 
first filibuster of a circuit judge in history--to be successful with 
the withdrawal of Miguel Estrada. What a sad, sad day.
  This Senate needs to think through what we have done. This knife can 
cut both ways. We do not need to establish this as a policy of this 
Senate.
  I urge my colleagues to reevaluate what they have been doing and not 
to continue down this road because it is not going to go away lightly. 
Those on this side will use that same knife and use those same tactics 
in the future. We are not going to go away quietly on this when we see 
nominees of this ability and of this character and integrity--with 
sound judicial philosophies that believe in following the law and not 
using the bench as a forum for a personal agenda.
  I conclude by expressing my appreciation to Miguel Estrada for 
offering himself in service. I hope he will have an opportunity in the 
future to serve this country which he has adopted in some other 
capacity--maybe even in this capacity in the future. He certainly is 
qualified. He would make a great judge at any number of levels. My 
respect for him after watching him testify and after seeing how he 
handled this difficult time has only increased.
  I thank the President. I yield the floor.
  The PRESIDING OFFICER. The Democratic whip.
  Mr. REID. Madam President, I echo the statement I made earlier today 
following the statement by Senator Allen with simply this caveat: I 
would say that statement is totally accurate with the exception of the 
fact that we now have approved an additional judge.
  Now the record stands at 146 judges approved during President Bush's 
Presidency, and 3 have been rejected. One-hundred and forty-six to 
three is not a bad record.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Madam President, I would add that during the 8 years 
President Clinton was President, 377 judges were confirmed. This Senate 
voted down only one. Most of the time the Republicans were in the 
majority and we did not vote down his nominees. Forty-one were left 
pending when President Clinton left office. There were 54 left pending 
when former President Bush left office.
  But anyway, I know we can talk about that off and on. But I did want 
to make that point.

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