[Congressional Record (Bound Edition), Volume 149 (2003), Part 16]
[Senate]
[Pages 21977-21983]
[From the U.S. Government Publishing Office, www.gpo.gov]




                  WITHDRAWAL OF THE ESTRADA NOMINATION

  Mr. LEAHY. Mr. President, earlier this month the President withdrew 
the nomination of Miguel Estrada to the U.S. Court of Appeals for the 
District of Colombia Circuit. This was a nomination for a lifetime 
appointment to the second highest court in the land. The Constitution 
accords the Senate the duty to make informed judgments for these 
lifetime appointments to our Federal courts. Senators cannot make 
informed judgments if the White House stonewalls the Senate.
  This withdrawn nomination is another example of the White House's 
insistence on dividing instead of uniting the American people over the 
President's decisions for the Federal courts. Ultimately, the 
nomination was a casualty of that divisive policy. For more than a 
year, the White House has consistently spurned many private and public 
bipartisan appeals to resolve this matter by working with the Senate to 
provide access to requested information. Mr. Estrada's work at the 
Justice Department was at the core of the administration's claims for 
his qualification to serve on this court. Despite the questions raised 
about his work at the Justice Department and the ample precedents from 
similar document requests involving earlier nominations, this 
administration decided to stonewall the Senate. This stone-
walling, combined with Mr. Estrada's reluctance to answer substantively 
Senators' questions, prompted this impasse. The White House always had 
the key to unlock this stalemate.
  In the absence of cooperation from the White House, and with the 
persistence of the White House's stonewalling, Mr. Estrada has 
concluded that this impasse will continue. He is probably right, and he 
and his family can now move on with their lives.
  In the aftermath of the announcement on September 4, some Republican 
Members of the Senate have come to the Senate floor and sought out the 
airwaves to renew their offensive and untrue rhetoric about this 
nomination. I must take a few moments to set the historical record 
straight.
  First, some Republicans have repeated their false assertion that 
Democrats opposed Mr. Estrada's nomination because of his ethnicity. 
That is

[[Page 21978]]

absurd. In the last Congress, Senate Democrats swiftly acted to confirm 
six Latino judicial nominees--Christina Armijo, NM; Judge Phillip 
Martinez, TX; Randy Crane, TX; Judge Jose Martinez, FL; Magistrate 
Judge Alia Ludlum, TX; and Jose Linares, NJ. During this Congress, 
Democrats have unanimously supported the confirmation of six other 
Latino judicial nominees--Edward Prado, Fifth Circuit; Consuelo 
Callahan, Ninth Circuit; S. James Otero, CA; Cecilia Altonaga, FL; 
Xavier Rodriguez, TX; and Frank Rodriguez Montalvo, TX. All of these 
nominees received the unanimous support of the Senators in the 
Democratic caucus.
  Moreover, it was Democrats who worked to clear the nominations of 
Judge Prado and Judge Callahan to the circuit courts over delays and 
initial objections from the Republican side of the aisle. Yet some 
Republican Senators assert that those who opposed Mr. Estrada's 
confirmation to the circuit court did so ``because he's Hispanic.'' 
That is obviously false, demeaning and divisive.
  These partisans may need to be reminded that, in addition to 
supporting the confirmation of two other Latinos nominated to the 
appellate courts by President Bush, Democrats supported the appointment 
of 11 Latinos nominated by President Clinton to the appellate courts. 
It was Republicans who blocked three of those Latino circuit court 
nominees of President Clinton. Those qualified and distinguished Latino 
nominees were never given hearings by the Republican majority and never 
allowed to come before the full Senate. They were not opposed through 
debate and votes in the light of day; instead, their nominations were 
filibustered and killed by delay, in the dark of night, without any 
meaningful explanation of any substantive concerns about their 
nominations. This all begs the rhetorical question: Do the current 
Republican charges mean that Republicans are anti-Hispanic for having 
blocked three Hispanic nominees to the circuit courts and for having 
opposed, delayed and voted against numerous others nominated by 
President Clinton? The facts are clear and the facts are indisputable, 
and the facts belie the false charges that we have heard from some on 
the other side of the aisle.
  Republicans blocked three Latino nominees of President Clinton to the 
appellate courts from ever receiving a vote: Enrique Moreno, who was 
nominated to the 5th Circuit; Jorge Rangel, who was nominated to the 
5th Circuit; and Christine Arguello, who President Clinton nominated to 
the 10th Circuit. In addition, Republicans refused to allow votes on 
three of President Clinton's Hispanic district court nominees, Ricardo 
Morado, R. Samuel Paz, and Anabelle Rodriguez. Republicans did not 
allow a hearing or a vote in the Judiciary Committee or on the floor in 
a cloture vote or confirmation vote on any of these six Latino 
nominees. I will include for the Record a letter from Judge Rangel, a 
well-regarded nominee of President Clinton, who never received a 
confirmation vote from the Republican majority at that time.
  Republicans did not just block those six Latino judicial nominees of 
President Clinton from receiving votes, they also dragged their feet on 
the confirmation of others who were left pending for a long time, often 
without any public statements identifying the concerns that were 
delaying those nominees, in contrast to Mr. Estrada's nomination which 
has been debated in the light of day. When they unsuccessfully 
filibustered Judge Rosemary Barkett and Judge Richard Paez, were they 
doing so because the nominees were Hispanic? When they delayed and 
opposed the confirmation of Judge Sonia Sotomayor, do recent Republican 
statements mean that they did so because she is Hispanic?
  Overall, during President Clinton's tenure, 10 of his more than 30 
Hispanic nominees were delayed or blocked from receiving hearings or 
votes by Republican leaders. The Hispanic judicial nominees denied a 
vote by Republicans are Moreno, Rangel, Arguello, Morado, Paz, and 
Rodriguez. The four Hispanic judicial nominees delayed but ultimately 
confirmed over Republican opposition are Judges Richard Paez, a 
Mexican-American nominated to the Ninth Circuit; Judge Hilda Tagle, a 
Mexican-American nominated to the Texas district court; Judge Rosemary 
Barkett, an immigrant from Mexico nominated to the Eleventh Circuit; 
and Judge Sonia Sotomayor, whose family hails from Puerto Rico. Of 
these 10, three waited more than 2 years to receive a vote or were 
never accorded one. Republicans delayed consideration of the nomination 
of Judge Richard Paez for more than 1,500 days yes, that is correct, 
more than 1,500 days and then when he finally did get a vote, 39 
Republicans voted against his confirmation to the Ninth Circuit. He was 
unsuccessfully filibustered by Republicans. Senator Sessions moved to 
indefinitely postpone the vote after we overcame the Republican 
filibuster, after Judge Paez had been waiting for more than 4 years, 
and 31 Republicans voted with Senator Sessions on that motion after 
their filibuster failed. Of course, now Republicans have the temerity 
to assert that it is unprecedented to filibuster a circuit court 
nomination. What short memories they must believe the American people 
have. I discussed this in more detail in the Congressional Record of 
February 10, 2003.
  The nomination of Judge Hilda Tagle to a District Court seat in Texas 
was pending before the Senate for 943 days, before Republicans finally 
allowed her a vote on the floor of the Senate. After failing to defeat 
her nomination through anonymous delay, not a single Republican 
explained the delay. Republican delays such as these on Clinton 
nominees are discussed in more detail in my statements published in the 
Congressional Record on May 1, 2003, as well as in statements about Mr. 
Estrada's nomination by Senator Reid, Senator Kennedy, Senator Schumer 
and others.
  I hope these facts will finally put to rest the untruths that have 
been manufactured and perpetrated to attack those who opposed the 
confirmation of Miguel Estrada. For Republicans to claim that those who 
opposed the Estrada nomination were motivated by anti-Hispanic 
sentiment is wrong. It is offensive, base and baseless. Indeed, I have 
spoken about the extensive opposition to the Estrada nomination from 
Hispanic leaders and organizations. That opposition of Latino leaders 
from around the country who opposed the Estrada nomination included our 
colleagues in the Congressional Hispanic Caucus, CHC. According to the 
CHC scorecard, Mr. Estrada failed most of the factors for their 
evaluation of judicial nominees. Furthermore, Mr. Estrada told members 
of the Caucus:

       [H]e has never provided any pro bono legal expertise to the 
     Latino community or organizations. Nor has he ever joined, 
     supported, volunteered for or participated in events of any 
     organizations. Nor has he ever joined, supported, volunteered 
     for or participated in events of any organization dedicated 
     to serving and advancing the Latino community. As an attorney 
     working in government and the private sector, he has never 
     made efforts to open doors of opportunity to Latino law 
     students or junior lawyers . . . [and] he never appealed to 
     his superiors about the importance of making such efforts on 
     behalf of Latinos.

  These are just a few of the concerns raised by the Members of the 
CHC, which are detailed in several statements I have made, including my 
statements in the Congressional Record on February 5, 2003; February 
10, 2003; February 24, 2003; February 25, 2003; as well as on July 30, 
2003.
  Mr. Estrada was also opposed by the Puerto Rican Legal Defense and 
Education Fund, PRLDEF, a national civil rights organization concerned 
with advancing the civil and human rights of the Latino community. 
After interviewing Mr. Estrada, like the CHC, and also reviewing his 
public record and his reputation, PRLDEF concluded that Mr. Estrada was 
not sufficiently qualified for a lifetime seat on the nation's second 
highest court and that, among other concerns about his poor temperament 
for the job, ``he has not had a demonstrated interest in or any 
involvement with the organized Hispanic community or Hispanic 
activities of any kind.'' Their letter was included in the 
Congressional Record and discussed on the dates I just noted. I also

[[Page 21979]]

included for the Congressional Record, the serious concerns raised by 
the Mexican American Legal Defense and Education Fund, MALDEF, and 
California La Raza Lawyers, CLRL, which also opposed Mr. Estrada's 
confirmation. They wrote:

       [I]t is unclear whether he would be fair to Latino 
     plaintiffs as well as others . . . we found evidence that 
     suggests he may not serve as a fair and impartial jurist on 
     allegations brought before him in the areas of racial 
     profiling, immigration, and abusive or improper police 
     practices where those practices are adopted under a 'broken 
     window theory' of law enforcement . . . We have concerns 
     about whether he would fairly review standing issues for 
     organizations representing minority interests, affirmative 
     action programs or claims by low-income consumers. We are 
     also unsure, after a careful view of his record, whether he 
     would fairly protect labor rights of immigrant workers or the 
     rights of minority voters under the Voting Rights Act.

  In the Congressional Record of February 24, 2003, I also included the 
announcements of the opposition to this nomination by most of the past 
Presidents of the Hispanic National Bar Association. In the face of the 
facts about our confirmation of a dozen Hispanic candidates nominated 
by President Bush to the circuit or district courts and the breadth and 
depth of the opposition of most of the Latino civil rights groups, it 
is astonishing that Republicans continue to assert that those who 
oppose Mr. Estrada's confirmation are anti-Hispanic. That is such an 
outright and obvious untruth. Yet we see some of these untruths 
recycled again and again in news reports and commentaries, despite the 
facts. These baseless allegations for purposes of wedge politics and 
partisan advantage are wrong and dangerous.
  The facts are that of the 12 Latino appellate judges currently seated 
on the Federal courts, eight were appointed by President Clinton and 
two, Judges Prado and Callahan, were nominated by President Bush and 
confirmed with unanimous Democratic support. I discussed the problems 
with the Estrada nomination in contrast to the nominations of Judge 
Prado and Judge Callahan in the Congressional Record of April 28, 2003 
and May 22, 2003, respectively, as well as in contrast to less 
controversial district court nominees on March 27, 2003, March 31, 
2003, and May 6, 2003.
  I have included in the record almost seven dozen editorials or 
commentaries in opposition to the Estrada nomination or in support of 
the Democratic filibuster. Those editorials were mentioned in the 
Congressional Record on March 6, 2003, and April 2, 2003. At the end of 
my remarks today, I will include excerpts from additional editorials 
and op-ed columns in opposition to the Estrada nomination or in support 
of the Democratic filibuster of this nomination. In particular, I note 
the editorial of The New York Times this week entitled, ``Straight Talk 
on Judicial Nominees.''
  On the issue of the history of the use of filibusters in connection 
with nominations, some Republicans would now have the public believe 
that a filibuster of a nominee is, in their words, ``unprecedented.'' 
This is another deception. As some of these same Republicans well know, 
they filibustered the nominations of Judge Paez and Judge Berzon on the 
floor of the Senate in 1999 and 2000, as they conceded at that time. By 
way of example, I note that several Republicans currently serving voted 
against cloture, the motion to close debate, after the Paez nomination 
had been pending before the Senate for more than four years. I have 
already noted that even after losing the cloture vote, Republicans led 
by Senator Sessions moved to indefinitely postpone a vote on Judge 
Paez's nomination, and a number of Republican Senators currently 
serving voted to continue to block action on the Paez nomination in 
2000. Yet some Republican Senators now claim that it is unprecedented 
to filibuster or deny a circuit court nominee an up or down 
confirmation vote on the Senate floor.
  Their filibuster of Judge Paez's nomination is just one example of 
Republican filibusters of Democratic nominees. Others include Dr. David 
Satcher to be Surgeon General in 1998; Dr. Henry Foster to be Surgeon 
General in 1995; Judge H. Lee Sarokin to the Third Circuit in 1994; 
Ricki Tigert to the Federal Deposit Insurance Corporation in 1994; 
Derek Shearer to be an Ambassador in 1994; Sam Brown to an ambassador-
level position in 1994; Rosemary Barkett, born in Mexico, nominated to 
the Eleventh Circuit, 1994; Larry Lawrence, to be ambassador in 1994; 
Janet Napolitano at the Justice Department in 1993; and Walter 
Dellinger to be Assistant Attorney General for the Office of Legal 
Counsel at the Justice Department in 1993.
  The nominations of Dr. Foster and Mr. Brown were successfully 
filibustered on the Senate floor by Republicans. Similarly, the 
nomination of Abe Fortas by President Lyndon B. Johnson to the Supreme 
Court of the United States was successfully filibustered by Republicans 
with help from some southern Democrats.
  In addition, to the short-term and life-time appointees of Democrats 
whose nominations were subject to sometimes fatal delay on the floor, 
Republicans made an art form of killing nominations in Committee so 
that they would never have a vote on the floor. According to the public 
record, more than 60 of President Clinton's judicial nominees were 
defeated by willful refusal to allow them a vote and more than 200 
executive branch nominees of President Clinton met the same fate, 
including several Latinos, with their nominations nixed in the dark of 
night without any accountability. They were filibustered and never 
allowed a vote on the Senate floor. I discussed this history in more 
detail on February 26, 2003, in the Congressional Record.
  In addition, in the Congressional Record on March 5, 2003, March 11, 
2003, and March 13, 2003, I summarized the history of filibusters of 
nominees. I also spoke on May 19, 2003, about the history of Senate 
debate and the constitutionality of Rule XXII of the Senate rules. The 
fact of the matter is that many nominees have been blocked from 
receiving votes throughout the Senate's history. For example, 25 
Supreme Court nominees were not confirmed in the history of our Nation. 
Eleven of those nominations were defeated by delay, not by confirmation 
votes on the Senate floor, including the nomination of Justice Fortas. 
Since the early 19th Century, nominees for the highest court and to the 
lowest short-term post have been defeated by delay, while others were 
voted down. Not even all of President Washington's nominees were 
confirmed or those of other presidents, often for political or 
ideological reasons. Filibusters and other parliamentary tactics to 
delay matters were known to the Framers. There was even a filibuster in 
the first Congress over locating the capital.
  The plain truth is that Democrats opposed the nomination of Mr. 
Estrada to the DC Circuit based on serious and legitimate concerns 
regarding the stonewalling of the Senate by this White House and this 
nominee. The DC Circuit is the nation's second most important court, 
because it has exclusive or special jurisdiction over a broad array of 
far-reaching federal regulations, such as the rights to safe 
workplaces, fair employment practices, clean air and water, and other 
important laws--areas with which Mr. Estrada had very little 
experience.
  Republicans lean heavily on the rating of the ABA, a group that 
Republicans helped oust from the pre-nomination process and a group 
which ever since then has sometimes seemed overly eager to get back 
into their good graces. Yet, as Senator Reid noted in the Congressional 
Record in February and March of this year, there were certainly 
irregularities in the rating given to this nominee by the American Bar 
Association, with the person who recommended a well qualified rating 
working closely with the Bush administration on high-level appointments 
and co-founding the Committee for Justice to run attack ads against 
Democrats, while still serving on the ABA rating committee. Other 
nominees with similar records did not receive the high rating Mr. 
Estrada did, in this or past administrations. In fact, people with 
similar records received partial not qualified ratings, when the 
process was conducted more fairly and

[[Page 21980]]

with more candor, and when the candidate did not already have the 
imprimatur of the President through his nomination.
  I would also note that before the hearing on the Estrada nomination, 
Federalist Society insiders gave a special seminar on how to get 
through the confirmation process and urged President Bush's judicial 
nominees to say as little as possible. Mr. Estrada appears to have 
followed those marching orders to a ``T'' and to his own detriment. 
During the hearing on his nomination he often refused to answer 
questions or provided evasive answers. He declined to share his views 
on important Supreme Court cases and his judicial philosophy. For 
example, Senator Schumer asked Mr. Estrada to name a single case from 
the entire history of Supreme Court law that he disagreed with, Mr. 
Estrada refused. He claimed he could not comment on any case if he had 
not read the briefs, listened to oral argument, done independent 
research and conferred with colleagues.
  Most who knew Mr. Estrada personally seemed to agree that he was 
actually a very opinionated person. He admitted in his testimony that 
he could be ``ruthless'' in his criticism of legal and political 
opinions. Yet, before the Senate Judiciary Committee, he would not 
describe those views and claimed to have no views he could or would 
share with the only people entrusted with reviewing his record and 
recommending his nomination for a lifetime job on the Federal bench.
  Then Republicans even tried to assert that it would be unethical for 
Mr. Estrada to answer questions by Senators. However, the Supreme Court 
held in 2001 that it does not violate judicial ethics for judicial 
candidates to comment on legal issues, as long as they do not promise 
how they will rule. Ironically it was the Republican Party that had 
sued the State of Minnesota to ensure that their candidates for 
judicial office could give their views on legal issues without 
violating judicial ethics, the State counterpart to the ABA model rule. 
Republicans took the case all the way to the Supreme Court and won. In 
an opinion by Justice Scalia, the Supreme Court ruled that the ethics 
code did not prevent candidates for judicial office from expressing 
their views on cases or legal issues. Justice Scalia said that anyone 
coming to a judgeship is bound to have opinions about legal issues and 
the law, and there is nothing improper about expressing them. 
Specifically, in Republican Party of Minnesota v. White, 122 S. Ct. 
2528 (2002), the Supreme Court overruled ABA modeled restrictions 
against candidates for judicial office from expressing their views on 
legal issues while seeking judicial office. Justice Scalia explained in 
that majority opinion:

       Even if it were possible to select judges who do not have 
     preconceived views on legal issues, it would hardly be 
     desirable to do so. ``Proof that a Justice's mind at the time 
     he joined the Court was complete tabula rasa in the area of 
     constitutional adjudication would be evidence of lack of 
     qualification, not lack of bias.''. . . And since avoiding 
     judicial preconceptions on legal issues is neither possible 
     nor desirable, pretending otherwise by attempting to preserve 
     the ``appearance'' of that type of impartiality can hardly be 
     a compelling state interest either.

  Id. at 2536 (quoting Justice Rehn-
quist's opinion in Laird v. Tatum, 409 U.S. 824 (1972)).
  Judicial ethical rules do not prevent Senators from learning about a 
judicial candidate's views. Senators are trying to evaluate whether a 
nominee should be given a lifetime position, and the Senate hearing 
room should not be the only place where a judicial candidate cannot or 
will not discuss his views of the law and his opinions.
  Especially problematic was the stand taken by the administration on 
the Senate's request to examine the memoranda written by Mr. Estrada at 
the Justice Department. Because Mr. Estrada has no record and because 
his impartiality was called into question by one of his direct 
supervisors at the Justice Department, these memoranda would have 
provided important insights into Mr. Estrada's approach to issues 
involving individual rights and the weight of precedent. I discussed 
the precedent for this request in my remarks reprinted in the 
Congressional Record of February 5, 2003; February 12, 2003; February 
13, 2003; March 5, 2003; March 18, 2003; and May 8, 2003. Senator 
Durbin and Senator Kennedy also addressed this issue at length in their 
remarks. History makes clear that internal legal memos were requested 
and provided to the Senate in connection with, among others, the 
nominations of Robert Bork to the Supreme Court, Brad Reynolds to be 
Associate Attorney General, William Rehnquist to the Supreme Court, 
Stephen Trott to the Ninth Circuit, and Ben Civiletti to be Attorney 
General. In each of these appointments, internal legal memos to or from 
the nominees were requested and provided to the Senate.
  Basically, the Bush administration's response to our request has been 
contemptuous from the beginning. The initial response of the Justice 
Department was that the request was unprecedented. That is abundantly 
inaccurate. This administration has itself shared White House Counsel 
records in connection with a nomination. There is simply no legal or 
historical basis for denying the Senate access to the memoranda 
requested here. The historical precedent for the Senate's request 
actually supports it. Scores of legal memos to and from Robert Bork 
when he was Solicitor General were provided to the Senate during his 
judicial nomination. Walter Dellinger himself advised the Senate during 
Justice Rehnquist's judicial nomination when he reviewed memos provided 
to the Senate by the Justice Department which were written by and to 
Rehnquist when he was the head of the Office of Legal Counsel. Indeed, 
the long-standing policy of the Justice Department, prior to this 
administration, regarding Congressional requests for memos and other 
non-public information was a ``policy of accommodation.'' Former 
administrations cooperated with countless requests for internal 
documents sought by Members of Congress as well as more recently by 
Kenneth Starr, who sought and obtained documents containing the advice 
of the President's attorneys and closest advisors.
  The administration also objected that some other Justice Department 
attorneys who have been nominated to other positions were not the 
subject of memo requests. However, they fail to acknowledge that those 
nominees were not the subject of allegations by their supervisor of 
many years that they could not keep their ideological views out of 
their memos and their work for the Department, unlike Miguel Estrada. 
The fact that the Senate does not always request such memos does not 
diminish its power to do so and the precedent to request such documents 
when Senators believe it is important to examine them. Indeed, the 
Senate would be abdicating its responsibilities to serve as a check on 
nominations if it had ignored the serious concerns raised about Mr. 
Estrada's writings before giving him a lifetime appointment as a judge 
with immense power over the lives of all Americans. Mr. Estrada told 
the Senate that he was proud of his writings and that he did not object 
to their being shared with the Senate but the administration refused 
every attempt at compromise. Additionally, as Republicans readily 
admitted when a Democrat was in the White House, it has been the long-
standing practice of the Senate not to recognize attorney-client, work-
product, or deliberative process privilege claims.
  As for the generic claim that people working for the federal 
government in the Solicitor General's office would be chilled from 
candidly expressing their views, it seems unlikely that Mr. Estrada was 
chilled by the revelation of legal memoranda during the Bork, 
Rehnquist, Trott and Reynolds nominations in the few years before he 
joined the Solicitor General's office. Indeed, as the Supreme Court 
noted in the Nixon tapes case, it is quite unlikely ``that advisors 
will be moved to temper the candor of their remarks by the infrequent 
occasions of disclosure.'' U.S. v. Nixon, 418 U.S. 683 at 712, 1974. 
Thus, while the desire for candor in the Executive Branch may be 
strong, it is not an absolute right against disclosure in response to 
requests from a co-equal branch pursuant to its express powers under 
the Constitution.

[[Page 21981]]

  In my previous statements on the floor of the Senate about the 
document request, I have put into the record numerous examples of legal 
memos provided to the Senate by other administrations, so I will not 
list them again. I will only say that it is clear to me and other 
Senators who have examined the record or remember the history that past 
requests of the Senate for legal memos from the Justice Department were 
honored, that many of these memos involved decisions about appealing 
cases or other significant legal or policy issues, that these memos 
were written by line attorneys to the Solicitor General as well as by 
the Solicitor General or Assistant Attorney General, that some memos 
were provided on a confidential basis while others were made public and 
placed in hearing records and other congressional documents, and that 
all these claims about this request being unprecedented are just so 
much false rhetoric. Congress was not required to stumble in the dark 
in connection with other nominations where memos were sought, and I am 
glad that the Senate did not cave in here, despite all of the attacks, 
intimidation and false claims the Bush administration and its allies 
have made.
  In sum, this administration treated the concerns of members of this 
co-equal branch with contempt at nearly every turn. As I stated at the 
outset of this debate, I would have welcomed a record on which I could 
have had strong confidence about the type of judge Mr. Estrada would 
be. Senators were denied adequate information to make an informed 
judgment about whether to entrust this nominee with the powerful 
position to which he was nominated. As I mentioned in the Congressional 
Record of July 30, 2003, it is regrettable that this Administration did 
not choose to cooperate and act in good faith in this nomination and 
instead sought to use this nominee as a pawn in its high stakes game of 
wedge politics. I am certain that this process must have been a 
difficult one for Mr. Estrada and his family. It is too bad that White 
House and Justice Department advisors did not follow the approach they 
took with another Bush nominee, Jeffrey Holmstead who was nominated to 
the EPA, and whose White House Counsel's Office memos this very 
administration shared with the Senate in order to accommodate the 
concerns of Senators. Instead, the Administration ignored precedent and 
common sense in stonewalling the Senate, ignored the suggestions of 
compromise by Republican and Democratic Senators, and chose the path 
and the tactics of unilateralism.
  As I mentioned, earlier this year, on March 6, and April 2, 2003, I 
placed into the record excerpts from 45 editorials and 34 op-eds in 
support of the position of Democratic Senators on the nomination of Mr. 
Miguel Estrada's nomination to the Court of the Appeals for D.C. 
Circuit, because Republicans had been asserting that there were only a 
few editorials or op-eds in support of our concerns. Here are some 
excerpts from 14 additional editorials or op-eds expressing concerns 
about Mr. Estrada's nomination, bringing the total to nearly 100. This 
controversial nomination clearly divided, rather than united, the 
American people. I ask unanimous consent to print in the Record 
excerpts of 11 recent editorials and 3 op-eds, as well as the New York 
Times piece entitled ``Straight Talk on Judicial Nominees.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Straight Talk on Judicial Nominees, The New York Times, 
     September 10, 2003: ``When Miguel Estrada withdrew his 
     nomination for a federal judgeship last week, his backers 
     blamed anti-Hispanic bias. Republicans are regularly tossing 
     around such charges over judicial nomination setbacks, 
     calling them anti-Hispanic, anti-Catholic, anti-woman. But 
     these battles have been over ideology, and the scope of the 
     Senate's questioning of nominees. The name-calling is puerile 
     and divisive . . . [S]ome of the stiffest opposition to Mr. 
     Estrada . . . came from Hispanic leaders, including the 
     Congressional Hispanic Caucus. And while many Democratic 
     senators opposed Mr. Estrada, they have voted to confirm 12 
     of President Bush's other Hispanic judicial nominees. The 
     Republicans' record is worse. In the Clinton era, they denied 
     confirmation votes to six Hispanic judicial nominees, and 
     delayed others for years. Jorge Rangel, who went 15 months 
     without a hearing on his federal appeals court nomination, 
     wrote to Senate Democrats last week to ask where Republican 
     senators' ``cry for diversity on the bench'' was when he was 
     forced to withdraw in 1998. . . . Diversity is not the only 
     issue on which Republicans are not talking straight. During 
     the Clinton administration, prominent Republicans argued that 
     there were too many judges on the District of Columbia 
     Circuit, and opposed Clinton nominees on the grounds that 
     confirming them would be a waste of tax dollars. But now that 
     a Republican president is nominating people like Mr. Estrada 
     to the court, these objections to its size have withered.''
       No Tears Needed Over Estrada's Withdrawal, The Post-
     Standard (Syracuse, NY), September 7, 2003: ``Conservatives 
     engaged in over-the-top condemnation of Estrada's opposition 
     after he resigned. Bush called Estrada's treatment 
     disgraceful. Senate Majority Leader Bill Frist, R-Tenn., 
     called it a shameful moment in the history of this great 
     institution. Hardly. Never mind that conservatives have done 
     the same thing to liberal nominees. Estrada, however, was 
     secretive about his views, refusing to answer many questions 
     the Senate needed to evaluate him. The Senate wisely declined 
     to rubber-stamp him for such a key post. Also troubling was 
     the GOP claim that Democrats were anti-Hispanic for rejecting 
     Estrada. Fact is that most Hispanic leaders also rejected 
     Estrada, believing his views were too conservative and 
     detrimental to Hispanics, as well.''
       Estrada Was a Bad Pick, Capital Times (Madison, WI), 
     September 5, 2003: ``When the president nominates responsible 
     conservatives to fill judicial vacancies, they are approved 
     with little trouble. When he nominates judicial activists who 
     put their politics above the law, however, they run into 
     trouble. That's what happened with Estrada. America has been 
     well served by the senators who blocked this bad 
     nomination.''
       Estrada is Out: Perhaps Future Federal Judicial Nominees 
     Will Be More Cooperative, Omaha World Herald (Nebraska), 
     September 5, 2003: ``His refusal to discuss such basics as 
     his views of federalism vs. states' prerogatives, for 
     instance, was disturbing because it was virtually impossible 
     to assess his fitness for the job. It's unfortunate that his 
     legal practice and his family life were disrupted in such a 
     manner. . . . But senators concerned about the federal 
     judiciary could hardly do less when they knew so little about 
     him.''
       Miguel Estrada Bows Out, The New York Times, (September 5, 
     2003: ``The Constitution requires not only the Senate's 
     consent but also its advice, and it is on this score that the 
     Bush administration has been most recalcitrant. The White 
     House has resisted Senate Democrats' requests to be brought 
     into the process earlier. If the administration insists on 
     having conservative ideologues choose its judicial nominees 
     in secret, it should not be surprised when Mr. Estrada, and 
     others like him, fail to be confirmed.''
       Estrada Case Shows How Not to Nominate a Judge, Newsday 
     (New York), September 11, 2003: ``Bush should have advised 
     Estrada not to stonewall legitimate Senate inquiries. And he 
     should have allowed senators a look at Estrada's legal 
     writings from his time in the solicitor general's office. 
     Lacking any real sense of what Estrada thinks about the legal 
     issues of the day, senators were right to block his 
     appointment to the powerful U.S. Circuit Court of Appeals for 
     the District of Columbia. Stealth nominees shouldn't be 
     rewarded with lifetime jobs on the federal bench. Neither 
     should nominees with ideologies outside the broad mainstream 
     of political thought, like the handful currently being 
     blocked, as Estrada was, by Democratic filibusters.''
       A Shame, But Nothing New, Columbus Ledger-Enquirer, 
     September 9, 2003: ``In fact, Congress has both the right and 
     the duty to advise and consent--not merely to obstruct, and 
     not merely to rubber-stamp. And maybe it shouldn't be enough 
     that a nominee is `qualified' in a nominal sense, if his or 
     her ideology or interpretation of the Constitution should 
     strike a lawmaker as outrageous or unconscionable.''
       Bush Team Should Look In The Mirror, The Berkshire Eagle, 
     September 8, 2003: ``The White House can fume all it wants at 
     the Democrats whose Senate filibuster blocked the nomination 
     of Miguel Estrada to the powerful U.S. Court of Appeals for 
     Washington, D.C. but if it truly wants to find the source of 
     the blame for the failed nomination it should look in the 
     mirror. The Bush administration's penchant for secrecy, 
     contempt for the legislative branch of government and 
     determination to force radical justices onto the courts, 
     doomed the nomination from the start.
       Some Judicial Picks Aren't Lightning Rods, San Antonio 
     Express-News, September 6, 2003: ``When presidents insist on 
     nominating strongly ideological candidates to the judiciary, 
     they provoke this kind of frustrating action. Republicans 
     bottled up a full 60 percent of President Clinton's nominees. 
     The Senate Judiciary Committee never voted on two of his 
     choices for the D.C. appeals court.''

[[Page 21982]]

       Democrats Mustn't Allow Bush to Pack Courts With 
     Extremists, Charleston Gazette (West Virginia), August 10, 
     2003: ``As for the others, Democrats would be remiss in 
     exercising their ``advice and consent'' responsibility if 
     they did not block Pryor, Owen and Kuhl. All have records of 
     ideological extremism inconsistent with respect for tolerance 
     and diversity. . . . Republicans and Democrats share blame 
     for the rancorous standoff--one that the president has shown 
     no inclination to ameliorate despite suggestions that he 
     confer with the minority party, as other presidents have 
     done, to seek their advice on his candidates. The Democrats' 
     filibuster is our only hope that this administration won't 
     pack the courts with judges eager to reverse precedents that 
     reflect the American mainstream.''
       When All Else Fails, Throw Mud, It Might Stick, Roanoke 
     Times & World News, August 6, 2003: ``When far-right 
     appellate candidate Miguel Estrada failed to get through, it 
     was a case of anti-Hispanic bias, they claimed. . . . The 
     charges might be humorous if not for their potential harm to 
     the public sphere. Most immediately, the threat is that they 
     would actually succeed in their purpose, mislead Americans 
     into an uproar and pressure Democrats to abandon opposition 
     for which they had valid reason: Each of the candidates had 
     either an extremist record or, in Estrada's case, little 
     record at all and no inclination to enlighten the Senate on 
     his views. Over the longer term, the danger is that repeated 
     false accusations such as these, however ludicrous, will 
     provoke ethnic and sectarian divisions as well as increase 
     cynicism among the many Americans already estranged from the 
     political process.''
       Estrada's Dream Lost Out to King's, Mary Sanchez, Kansas 
     City Star, September 9, 2003: ``The cries from Senate 
     Republicans came quickly and were not so thinly veiled. 
     Appalled, several accused their filibustering colleagues of 
     bias against Hispanics. It is not that some members of the 
     Senate don't want Hispanic nominees. They just didn't want 
     this Hispanic nominee. The facts do not support the 
     accusation of bias.''
       Bush's `Good Hispanic' Has Telling Record, Cindy Rodriguez, 
     Denver Post, September 5, 2003: ``Bush hoped the 38 million 
     Latinos across the country would cheer his pick. Bush's 
     people depicted Estrada as a humble immigrant from Honduras 
     who struggled, learned English, then made his way into 
     Columbia University, then Harvard Law School. That's what we 
     call una gran mentira. A big lie.''
       Dem's Judicial Objections Valid, Richard J. Condon, Seattle 
     Post-Intelligencer, August 7, 2003: ``Miguel Estrada refused 
     to answer pertinent questions about his judicial philosophy 
     and the Bush administration refused to provide significant 
     background on Estrada's judicial work; Estrada has never 
     served as an appellate judge. Democrats rightly view that the 
     Senate cannot ``advise and consent'' to a nomination without 
     substantive information to support the nominees' 
     qualifications for the bench. Although Bush seems willing to 
     wait until after Estrada is confirmed to a lifetime 
     appointment to the federal appellate bench to measure his 
     qualifications, I agree with Senate Democrats that it is 
     prudent to get that issue resolved beforehand.''
       In addition, there have been many dozen letters to the 
     editor submitted and published in opposition to editorials or 
     reports supporting the Republican position on this 
     nomination. Here is just a few recent examples of many 
     letters from across the country:
       Scrutiny In Order, Amanda S. Mattingly, Argus Leader (Sioux 
     Falls, SD), May 29, 2003: ``In South Dakota, we would never 
     hire anyone for a job without an interview or an application. 
     That simply makes no sense. Yet, that is exactly what people 
     want done with Miguel Estrada. Estrada has failed to provide 
     the Senate with even the most basic information. A federal 
     judgeship is a lifetime appointment. That means they can't 
     ever be fired. It seems incredibly irresponsible to hire 
     someone for a lifetime job without knowing everything about 
     them.''
       A Perfectly Appropriate Filibuster, George Immerwahr, 
     Christian Science Monitor (Boston, MA), September 9, 2003: 
     ``What was so bad about the Senate Democrats' filibuster to 
     deny Estrada's confirmation? Over the course of a four-year 
     term, a president will submit a great number of nominees to 
     the Senate. Most of them are readily confirmed by large 
     majorities, some even with the unanimous vote of each party. 
     So when a nominee refuses, as this one did, to answer key 
     questions, the opposition party's use of legitimate ways to 
     reject him is far from improper.''
       A Judicial Nominee, Derailed, Shirley Zempel, The New York 
     Times, September 6, 2003: ``Should our senators blindly vote 
     to approve a nomination without knowing all that they need to 
     know about him? I hope not. All information should be 
     available for scrutiny.''
       A Judicial Nominee, Derailed, Harold House, The New York 
     Times, September 6, 2003: ``A more cynical view may be that 
     the Bush administration simply put Miguel Estrada forth 
     knowing that the combination of his views and the 
     stonewalling for information would cause the delay and 
     resultant fight. Could this have been nothing more than a 
     talking point in a Republican effort to fractionalize 
     Hispanic voters?''
       Checks, Balances Fulfilled Objective, D.B. Decot, The 
     Arizona Republic, September 7, 2003: ``Our system was 
     deliberately designed to enable the minority to thwart the 
     tryanny of the majority as it deemed necessary. The Senate 
     gave its `advice' on Estrada; a sufficient number did not 
     `consent' to his lifetime appointment to the federal bench. 
     So the Bush administration has to go back to the drawing 
     board and nominate someone who is able to gain the 
     ``consent'' of at least 60 senators. Big deal. There are 
     plenty of qualified prospects who are not extremists, as 
     Estrada is.''
       Schumer Made His Case, Carol Jigarjian, The Journal News 
     (Westchester County, NY), July 31, 2003: ``The Bush people 
     are still whining about delayed approval for federal judges 
     and promoting the canard that Estrada is being opposed 
     because he is Hispanic. Estrada is being opposed because, 
     during his hearings, he refused to answer questions about 
     whether his ideology would get in the way of the objectivity 
     required of a federal judge. Bush compounded the problem by 
     refusing to release information he has regarding Miguel 
     Estrada's judicial positions. Estrada's silence and Bush's 
     refusal to release pertinent and critical information on 
     Estrada's views raise justifiable suspicion that this is just 
     one more attempt by Bush to get a committed radical appointed 
     to a powerful lifetime position, under the radar.''
       Uncover His Record, Evelyn J. Griesse, Argus Leader (Sioux 
     Falls, SD), June 11, 2003: ``Our justice system needs to be 
     filled with qualified judges who are at least comfortable 
     with having the public informed of their philosophy and 
     interpretation of the Constitution. To Estrada, I say, let 
     the light shine on his record.''
       Supreme Struggle: Advise and Consent Require Elucidation, 
     Josh Hayes, The Seattle Times, September 4, 2003: ``And sure, 
     the Republican-controlled Senate did not use the filibuster 
     to block Bill Clinton's nominees, because they were in the 
     majority and could deep-six them without resort to a 
     filibuster and of course, they did. . . . [Estrada] declines 
     to answer any questions about his legal philosophy. How can a 
     senator claim, in good conscience, to ``advise and consent'' 
     on an appointment when the candidate is a complete blank? His 
     ethnic background is, of course, irrelevant, or is Korrell 
     suggesting we need a quota system on the federal bench? (And 
     if you want to make it an issue, it's worth pointing out that 
     the Mexican-American Legal Defense Fund (MALDEF) opposes 
     Estrada's appointment.)''
       A Judicial Nominee, Derailed, Richard Cho, The New York 
     Times, September 6, 2003: ``It seems clear that survival for 
     the Democrats will have to come from outside the game of 
     party politics. They must hope that Hispanic-Americans can 
     see through the Republicans' shallow use of racial politics 
     to overshadow their utter lack of commitment to real issues, 
     like job creation, health care and immigration issues.''

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the New York Times, Sept. 10, 2003]

                   Straight Talk on Judicial Nominees

       When Miguel Estrada withdrew his nomination for a federal 
     judgeship last week, his backers blamed anti-Hispanic bias. 
     Republicans are regularly tossing around such charges over 
     judicial nomination setbacks, calling them anti-Hispanic, 
     anti-Catholic, anti-woman. But these battles have been over 
     ideology, and the scope of the Senate's questioning of 
     nominees. The name-calling is puerile and divisive. The 
     administration and its supporters should argue for their 
     nominees on the merits.
       The House majority leader, Tom DeLay, called the effort to 
     defeat Mr. Estrada a ``political hate crime.'' Yet some of 
     the stiffest opposition to Mr. Estrada, who was nominated to 
     the United States Court of Appeals for the District of 
     Columbia Circuit, came from Hispanic leaders, including the 
     Congressional Hispanic Caucus. And while many Democratic 
     senators opposed Mr. Estrada, they have voted to confirm 12 
     of President Bush's other Hispanic judicial nominees.
       The Republicans' record is worse. In the Clinton era, they 
     denied confirmation votes to six Hispanic judicial nominees, 
     and delayed others for years. Jorge Rangel, who went 15 
     months without a hearing on his federal appeals court 
     nomination, wrote to Senate Democrats last week to ask where 
     Republican Senators' ``cry for diversity on the bench'' was 
     when he was forced to withdraw in 1998.
       Hispanic leaders did not oppose Mr. Estrada because he is 
     Hispanic. Catholic senators like Richard Durbin and Patrick 
     Leahy do not oppose William Pryor, a nominee to the United 
     States Court of Appeals for the 11th Circuit, because he is 
     Catholic. Senators Dianne Feinstein and Barbara Boxer do not 
     oppose Priscilla Owen, a nominee to the United States Court 
     of Appeals for the 5th Circuit, because she is a woman. Mr. 
     Estrada would not answer Senators' questions. Mr. Pryor and 
     Ms. Owens have met resistance for their archconservative 
     views.
       Diversity is not the only issue on which Republicans are 
     not talking straight. During the Clinton administration, 
     prominent Republicans argued that there were too many

[[Page 21983]]

     judges on the District of Columbia Circuit, and opposed 
     Clinton nominees on the grounds that confirming them would be 
     a waste of tax dollars. But now that a Republican president 
     is nominating people like Mr. Estrada to the court, these 
     objections to its size have withered.
       Charing discrimination may score political points, but the 
     confirmation of federal judges is too important to be treated 
     so cynically. Republican and Democratic senators know what 
     they are fighting over: legitimate disagreements over how to 
     interpret the Constitution and define the role of a federal 
     judge. They owe it to the American people to be honest about 
     their differences.

  Mr. LEAHY. I ask unanimous consent to print the following 
correspondence from Jorge C. Rangel which I earlier referenced.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                    The Rangel Law Firm, P.C.,

                            Corpus Christi, TX, September 5, 2003.
     Hon. Patrick Leahy,
     Russell Senate Office Building,
     Washington, DC.
     Hon. Charles Schumer,
     Hart Senate Office Building,
     Washington, DC.
       Dear Chairman Leahy and Senator Schumer: Where was the 
     outrage from your Republican colleagues when Enrique Moreno 
     and I were denied the courtesy of a hearing on our 
     nominations? Where was their disappointment and cry for 
     diversity on the bench when I was compelled to submit the 
     enclosed letter withdrawing my nomination to the Fifth 
     Circuit? The American people deserve better.
           Your truly,
     Jorge C. Rangel.
                                  ____



                                              Jorge C. Rangel,

                                                 October 22, 1998.
     The President,
     The White House,
     Washington, DC.
       Dear Mr. President: Fifteen months ago, you nominated me to 
     the United States Court of Appeals for the Fifth Circuit. I 
     enthusiastically welcomed the nomination and eagerly awaited 
     a hearing before the Judiciary Committee of the United States 
     Senate to have my qualifications reviewed. I patiently waited 
     for months, but I never received a hearing. My nomination 
     died when the Senate adjourned yesterday.
       Our judicial system depends on men and women of good will 
     who agree to serve when asked to do so. But, public service 
     asks too much when those of us who answer the call to service 
     are subjected to a confirmation process dominated by 
     interminable delays and inaction. Patience has its virtues, 
     but it also has its limits.
       Many friends and colleagues have urged me to stay in the 
     process by requesting that my name be resubmitted to the 
     Senate next year. Even if you were to decide to renominate 
     me, I have no reason to believe that the Senate would act 
     promptly on the nomination. I am not willing to prolong the 
     continued uncertainty and state of limbo in which I find 
     myself. As a professional, I can no longer postpone important 
     decisions attendant to my law practice.
       Therefore, I would ask that you not resubmit my nomination 
     next year. There is a season for everything, and the time has 
     come for my family to get on with our lives and for me to get 
     on with my work.
       Thank you for your trust and confidence in nominating me to 
     the Fifth Circuit. I pray that you will continue to recognize 
     and honor the diversity that is America, so that, one day, 
     our great country can realize its full potential.
           Yours truly,
     Jorge C. Rangel.

                          ____________________