[Congressional Record (Bound Edition), Volume 149 (2003), Part 2]
[Senate]
[Pages 2551-2564]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

   NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES 
           CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

  The PRESIDING OFFICER (Ms. Murkowski). Under the previous order, the 
Senate will return to executive session to resume consideration of 
Executive Calendar No. 21, which the clerk will report.
  The legislative clerk read the nomination of Miguel A. Estrada, of 
Virginia, to be United States Circuit Judge for the District of 
Columbia Circuit.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. Madam President, it is ironic that one of the arguments 
against Miguel Estrada, the President's nominee for the D.C. Circuit 
Court, center around prior judicial experience. This argument is 
nothing but hollow political rhetoric aimed at obstructing the Senate's 
constitutional duty to confirm judges. It is also a double standard of 
the highest order. To illustrate this point, I bring a Colorado legend 
to the attention of my colleagues. Byron ``Whizzer'' White may have 
passed away almost a year ago, but the Centennial State will forever 
feel his commanding presence. Mr. White was born in Fort Collins, CO, 
not far from where I live and where my family lives, and was raised in 
nearby Wellington. He went on to become his high school's 
valedictorian, All-American football star, college valedictorian, 
Rhodes scholar, professional football player, and a decorated World War 
II soldier. Noting his many significant achievements, President John F. 
Kennedy nominated him to the Supreme Court in 1962, saying, Byron White 
``excelled at everything he has ever attempted.'' White, at only 44 
years of age, ascended to the bench of our Nation's highest court and 
went on to serve for three decades.
  Why is this significant? It is significant because had President 
Kennedy adhered to such a rigid litmus test, Byron White would never 
have been seated on the bench of the United States Supreme Court. 
Adherence to the experience litmus test would mean that five of the 
eight judges currently serving on the D.C. Circuit would not have been 
confirmed because they had no previous judicial experience--including 
two of President Clinton's nominees, Merrick Garland and David Tatel, 
and one appointed by President Carter, Judge Harry Edwards, who was 
younger than Mr. Estrada currently is.
  It is obvious that the opposition to Miguel Estrada is not concerned 
with merit or intellect. They are more concerned with partisan 
politics. Their work is concentrated on holding our Nation hostage to 
their rigid ideology, unprecedented in the consideration of judges. 
While caseloads in the Federal courts continue to increase dramatically 
and filings reach all-time highs, the opposition pursues an agenda of 
obstruction, aimed at disrupting the justice that is guaranteed by our 
Constitution, and creating a vacancy crisis in the Federal courts. 
Chief Justice William Rehnquist recently warned that the current number 
of vacancies, combined with the rising caseloads, threatens the proper 
functioning of the Federal courts.
  This is a time in our Nation's history when our courts ought to be 
fully up and functioning. It is a time when there are lots of national 
security concerns centered around terrorist threats. These 
extraordinary delays must end. Miguel Estrada is a highly qualified and 
respected individual who deserves the Senate's consideration.
  Mr. Estrada is a man of legal experience, a man of keen intellect and 
strong character. He has argued 15 cases before the Supreme Court and 
has served both as a Federal prosecutor and Assistant United States 
Solicitor General. If confirmed, he will be the first Hispanic to serve 
on the DC Circuit. I think that is significant. And he will be a 
principal asset to our system of justice.
  Miguel Estrada has received the highest rating from the American Bar 
Association. He has received strong support from those who know him the 
best--the Hispanic legal community, including the Hispanic National Bar 
Association. I believe he has earned a vote in the Senate. He has 
earned my respect and my support, and I plan to vote for Miguel 
Estrada.
  I thank the Chair.
  I suggest the absence of a quorum.

[[Page 2552]]

  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DORGAN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Madam President, I ask unanimous consent that I be able 
to proceed for 20 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Dorgan are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Madam President, I am happy to be able to take the floor 
this morning to argue in favor of Miguel Estrada. Miguel is one of the 
finest lawyers in the country. He has arrived at this position and 
status, where he is approved by the American Bar Association as 
``unanimously well qualified,'' the highest rating that the American 
Bar Association can give. He has had his critics, but only in 
generalized terms. He has had his critics who I don't think have a leg 
to stand on in the criticism they are raising.
  One of the more ridiculous assertions that I have heard about Miguel 
is that he was not especially or sufficiently responsive at his hearing 
and therefore we need to have a second hearing to evaluate him. Keep in 
mind, the Democrats were in control of the Judiciary Committee. They 
called the hearing, they controlled the hearing, they controlled the 
timing of the hearing, they controlled the time for questions by 
Senators. And at least one Democrat said the hearing was conducted in a 
fair and responsible manner, and I personally agree with that. Senator 
Schumer was the person who chaired that particular hearing. I give him 
a lot of credit because it was a fair hearing and they asked every 
question they wanted to ask.
  Secondly, after the hearing, on the Judiciary Committee we have a 
right to ask questions in writing. Only two Democrats asked questions 
in writing. Miguel Estrada had waited 631 days before he was given the 
privilege of having a hearing. Then the hearing was held.
  Now we are hearing the same old wornout complaints that he wasn't 
sufficiently responsive and that, therefore, we need a second hearing 
to evaluate him.
  Since Mr. Estrada didn't say anything at the hearing that could be 
used to besmirch him--that is the real problem; they could not find 
anything wrong with him; there is not one thing that anybody has said, 
other than generalizations, that has any merit at all--since they could 
not find anything at his hearing that could be used to criticize him, 
his opponents resorted to the tactic of alleging that he did not say 
enough. That is ridiculous. They controlled everything. They could have 
asked him anything, and I think they did. Now, he didn't say enough.
  The fact is that Mr. Estrada correctly refused to answer questions 
that called upon him to prejudge issues that may very well come before 
him as a judge. That is what every nominee with any brains has done 
from time immemorial. No nominee wants to have to recuse himself in a 
serious case later because of something he said before the Senate 
Judiciary Committee. Well, let me repeat that. The fact is that Mr. 
Estrada correctly refused to answer questions that called upon him to 
prejudge issues that may very well come before him as a judge. This 
includes his opinion on whether established precedent was correctly 
decided and how he would decide these cases if he were working from a 
clean slate.
  Lloyd Cutler, who was the White House chief counsel in both the 
Carter and Clinton administrations, and one of the premier lawyers in 
the country--certainly in this town--and one of the great public 
servants of all time, in my opinion, put it best when he said:

       [I]t would be a tragic development if ideology became an 
     increasingly important consideration in the future. To make 
     ideology an issue in the confirmation process is to suggest 
     that the legal process is and should be a political one. This 
     is not only wrong as a matter of political science; it also 
     serves to weaken public confidence in the courts. Just as 
     candidates should put aside their partisan political views 
     when appointed to the bench, so too should they put aside 
     ideology.

  This is Lloyd Cutler, who was chief White House counsel for 
Presidents Carter and Clinton. He goes on to say:

       To retain either is to betray dedication to the process of 
     impartial judging. Men and women qualified by training to be 
     judges generally do not wish to and do not indulge in 
     partisan or ideological approaches to their work.

  Mr. Cutler concluded:

       Candidates should decline to reply when efforts are made to 
     find out how they would decide a particular case.

  I agree with him, and so did all the Democrats on the committee when 
President Clinton's nominees came before the committee. Now all of a 
sudden, they are applying a double standard or a different standard to 
Miguel Estrada and, I might add, other Republican nominees who are 
coming before the committee.
  We should be commending Mr. Estrada for refusing to take the bait and 
answer these questions. Instead he is being criticized for it and, I 
think, in the view of any impartial observer, is being criticized 
unfairly for one reason: They just do not want a Republican 
conservative Hispanic to sit on the Circuit Court of Appeals in this 
country. That is wrong. We all know it is wrong, and yet that is what 
is behind much of the antagonism toward Mr. Estrada.
  As a fundamental matter, I am perplexed by the charges that Mr. 
Estrada's record is blank. That is what we call bullcorn out in Utah. 
The truth is, Mr. Estrada's record is replete with material we used to 
evaluate his qualifications for the bench and how he would go about 
deciding cases. He has written numerous complex and thorough briefs for 
the courts, and he has argued on a wide range of subjects.
  His briefs, all of which are publicly available--and I know the 
Democrat staffers have pored over every one of them--provide tremendous 
insight into his legal reasoning and thinking on constitutional and 
statutory interpretation. His achievement of having argued 15 cases 
before the U.S. Supreme Court provides a record of how he has responded 
to focused interrogation on the most important matters to America's 
highest court. The transcripts from these oral arguments are also 
publicly available. Where is the legitimate complaint by the other side 
about this blank-slate business?
  Still further, Mr. Estrada not only said at his hearing he would 
support established law, but he proved this when he wrote an amicus 
brief at the Solicitor General's office in support of the National 
Organization for Women. I do not hear any compliments from the other 
side on his work there. His support of a law that backed a reproductive 
choice side in that case indicates there is no reason to expect he 
would not follow Roe and Casey as a DC Circuit Court judge, and yet 
that has underlined many of the complaints by my friends on the other 
side. They are so afraid that somebody on these Circuit Courts of 
Appeals might possibly do something to overrule Roe v. Wade or Planned 
Parenthood v. Casey, two very important abortion cases.
  I have not heard one President Bush nominee say he or she will not 
uphold the laws of this land, including Roe v. Wade and Planned 
Parenthood v. Casey. The truth is, many on the other side have not even 
liked Planned Parenthood v. Casey because it does take a more moderate 
position with regard to abortion. Now it is the law of the land and, of 
course, it is one of the cases they certainly do not want to have 
overruled.
  Mr. Estrada's opponents are so eager to distort his record that they 
do not mention this case or any one of many other cases which reveal 
his legal reasoning and willingness to follow the law.
  It needs to be explained to everybody that not only do they have 
access to all these briefs he has written, both in the Supreme Court 
and other courts of the land, but they could have asked any question 
they wanted of Mr. Estrada. Any member of the committee can do that. 
Some may be ill-advised and not

[[Page 2553]]

very fair, but we allow them to ask any questions they want. Then they 
can ask any questions in writing. In almost every case, Mr. Estrada 
asked to meet with individual Senators beforehand so they could meet 
privately and ask any questions they had.
  Mr. Estrada today is known all over the country by those who really 
understand important lawyers and understand the success of lawyers--
working with one of the most important law firms in the country as a 
full partner, and he has both Democrat and Republican partners. I might 
add, some of the leading people in support of Mr. Estrada today are 
Democratic attorneys--not just attorneys, but top attorneys--and we 
have mentioned them, from Ron Klain to Seth Waxman, Klain having been 
Vice President Gore's chief counsel, both as Vice President and in his 
campaigns. Ron Klain used to work on the Judiciary Committee as one of 
the top judiciary staff people. He is an excellent lawyer and a 
wonderful person. We all care for him. I personally care for him, and 
one reason I do is because he is honest, not just honest enough to say 
how good Miguel Estrada is and to back him, but honest in his dealings 
in legal matters as well. I have a lot of respect for him. Seth Waxman 
is one of the premier lawyers in the country, no question about it. He 
knows I have a lot of respect for him, and it is not just because of 
work on the Judiciary Committee. He is a fine lawyer, one of the best 
and former Solicitors General of the United States in the Clinton 
administration.
  Some have advanced the preposterous argument that Miguel Estrada is 
not qualified to serve on the DC Circuit because he has no prior 
judicial experience. That is one of the most ridiculous arguments of 
all. Of all the ridiculous arguments his opponents have drummed up, to 
me this is the most ludicrous. There are literally hundreds of examples 
of judicial nominees who have gone on to serve as great Federal judges 
at both the Court of Appeals and Supreme Court levels despite having no 
prior judicial experience.
  Chief Justice Rehnquist in his 2001 yearend report on the Federal 
judiciary noted:

       The Federal judiciary has traditionally drawn from a wide 
     diversity of professional backgrounds with many of our well-
     respected judges coming from private practice.

  Such Justices included Louis Brandeis, who spent his whole career in 
private practice before he was named to the U.S. Supreme Court in 1916 
and came to be known as ``the people's attorney'' for his pro bono 
work.
  Supreme Court Justice Byron White--I knew Byron White very well. He 
was very friendly to me throughout my career. He spent 14 years in 
private practice and 2 years at the Justice Department before his 
appointment to the Court by President Kennedy in 1962. He is a 
wonderful man. Byron White served this country well and his memory will 
always be a good memory. Byron White moved from the left to the center 
to even a little bit to the right on the Court, and that did not please 
a lot of our friends on the other side.
  Supreme Court Justice Thurgood Marshall had no judicial experience 
when President Kennedy recess-appointed him to his first judgeship in 
the Second Circuit Court of Appeals in 1961. Justice Marshall had 
served in private practice and as special counsel and director of the 
NAACP prior to his appointment. I do not think anybody would doubt he 
made a very important contribution to the jurisprudence of this 
country.
  Several well-respected members of the DC Circuit, including two of 
President Clinton's three appointments to that court, arrived with no 
prior judicial experience.
  Merrick Garland: I have a lot of regard for Merrick Garland. I helped 
to see him get through when there was some opposition to him. He was a 
Clinton appointee. He served at the Department of Justice and was in 
private practice. He was never on the bench prior to his appointment.
  David Tatel, also a Clinton appointee, had served in private practice 
for 15 years prior to his appointment. In fact, only three of 18 judges 
confirmed to the DC Circuit before President Carter's term began in 
1977 previously served as judges.
  For example, Abner Mikva, appointed by President Carter, was in 
private practice for 16 years in Chicago, served in the Illinois 
Legislature and in the U.S. Congress and had no judicial experience 
prior to his appointment in 1979 to the Circuit Court of Appeals for 
the District of Columbia.
  Other Democrat-appointed DC Circuit judges with no prior judicial 
experience include Harry Edwards, Patricia Wald, and notably Ruth Bader 
Ginsburg, now sitting on the Supreme Court.
  Several other Clinton appointees to the Courts of Appeals received 
their appointments despite having no prior judicial experience: Ninth 
Circuit appointees Richard Tallman, Marsha Berzon, Ronald Gould, 
Raymond Fisher, William Fletcher--who was a law professor at Boalt Hall 
at Berkeley--Margaret McKeown, Sidney Thomas, and Michael Hawkins all 
had no judicial experience prior to taking the bench.
  Seven of these eight, all but Fletcher, were in private practice when 
they were nominated by President Clinton.
  Second Circuit appointees Robert Katzmann, Robert David Sack, and 
Chester Straub had no judicial experience prior to their appointments. 
Third circuit nominee Thomas Ambro, Fourth Circuit nominees Robert King 
and Blane Michael, and Sixth Circuit nominee Eric Clay and Karen Moore 
also had no prior judicial experience.
  What is the point? Is it that it is all right for Democrat Presidents 
to appoint people without prior judicial experience, who become very 
good judges on the bench, but it is not all right for Republican 
Presidents to do so? Is it all right to have more moderate-to-liberal 
appointees who have never had any judicial experience, but it is not 
all right to have moderate-to-conservative appointees appointed by a 
Republican President? It is all right to have liberal Hispanics 
appointed to the courts--I agree with that--but it is not all right to 
have a Republican Hispanic who, perish the thought, Democrats think may 
be conservative?
  Given this illustrious group of former practitioners like Mr. 
Estrada, who were not Federal judges, I find it hard to swallow that 
Mr. Estrada's lack of prior judicial service should somehow be counted 
as a strike against him.
  I noticed this morning in the New York Times--now, I read the New 
York Times regularly. It is a very important paper in this country, and 
I have a great deal of respect for most of the people who work at the 
New York Times, but their editorial department has been almost 
amazingly inaccurate--not almost amazingly, it has been amazingly 
inaccurate.
  Today, they have an editorial dated February 6, 2003, entitled 
``Steamrolling Judicial Nominees.'' They say:

       The new Senate Republican majority is ushering in an era of 
     conveyer-belt confirmations of Bush administration judicial 
     nominations. No matter which party holds the gavel, the 
     Federal courts are too important for the Senate to give short 
     shrift to its constitutional role of advice and consent.

  I agree with that. I do not think we should give short shrift to any 
degree. These are important positions. They are lifetime appointments. 
We ought to do a thorough examination of them.
  So everybody understands, and I want the New York Times editorial 
board to understand, before a person even comes up to the Senate, that 
person has been evaluated by the White House, by the White House 
Counsel's Office, by the Justice Department. There has been a complete 
FBI review of that person's life. The FBI interviews just about 
everybody who wants to be interviewed and some who do not want to be 
interviewed. The interviews range from people who love the candidate or 
the nominee to people who hate his or her guts.
  There are people who make scurrilous comments, all kinds of anonymous 
things. These are raw reports that come into the FBI file. They report 
it all. Then it comes to the Judiciary Committee, and the chairman and 
ranking member and our staffs go through those FBI reports with a fine-
tooth comb.

[[Page 2554]]

  To the credit of both the Republicans and Democrats--or Democrats and 
Republicans, I should say--both sides have worked very well to get rid 
of the chaff and to do what is in the best interest of this country and 
to be fair to these nominees. That is a very arduous process. The 
minute they decide to pick one of these people, or even maybe before 
sometimes, they then tell the American Bar Association--not because 
they have a formal role in the process but because we want to have the 
leading bar association in the country involved. At least the Democrats 
have always wanted to have them involved. I have to admit I did not 
want to have them involved when they were not being very fair, when 
there was bias and bigotry, but there is none of that now. I think they 
are doing a terrific job now, and as long as they do it fairly and down 
the middle, without bias and without being political, they are going to 
have my support, and I support them right now. But we then have the 
American Bar Association look into these people and they go right into 
the person's hometown. They talk to the attorneys who know him. They 
talk to their top attorneys whom they know are people of integrity and 
ability and leaders in the bar in their community. They talk to just 
about everybody who has any interest in the nominee, and this has all 
been done for Mr. Estrada. Then they sit down and they have their 
standing committee make an evaluation of these nominees.
  These evaluations are tough evaluations, especially on those who do 
not come out of them very well. In this case, Mr. Estrada has a 
``unanimously well-qualified'' rating from the Standing Committee of 
the American Bar Association--I should say from the American Bar 
Association because they represent the whole bar. That is something 
that does not always happen. In fact, it does not happen very often, to 
have ``unanimously well-qualified.''
  All of that is unbelievably difficult for the nominee. The nominee 
has to sign a disclosure form that just about lays bare everything in 
that nominee's life. One can see why some people do not even want to 
become judges anymore. Some of the greatest lawyers in the country, who 
would serve on the bench, do not want to go through this process. The 
investigation of the nominee includes Finances and everything, it is 
all laid out; cases are laid out. They are asked questions that are 
very intrusive into their lives. I think the questionnaire is too 
strong, but it has been very difficult to change over the years. That 
is what they go through. Then they are nominated. The Judiciary 
Committee then starts its work, and we go through every one of these 
documents.
  We go through that FBI report with a fine-tooth comb. If there is 
anything left undone, we then ask the FBI to follow up. We do not leave 
anything undone to the extent that we can. If there are some particular 
problems, we bring both sides of the Judiciary Committee together and 
tell them these are problems. We disclose it to the members of the 
Judiciary Committee. The ranking member will disclose it to his side. 
The Chairman discloses it to his or her side.
  Once that is done, then we set it for a hearing. The hearings usually 
do not last days at a time for circuit court nominees or district court 
nominees. They are generally a 1-day affair, as they should be, because 
we have all this information. Anybody can cull through all that 
information, and their staffs really do. Sometimes they are looking for 
dirt, looking for things they can raise that might make the process 
better in some cases or that might scuttle a President's nominee in 
other cases. There is a lot of partisanship sometimes. That is not all 
bad because we want the best people we can get to serve on the Federal 
bench in this country.
  This editorial indicates this is just a steamrolling of nominees. 
Now, that is crazy. In the case of Estrada, his nomination has been 
pending for 631 days, having had every aspect of his life combed over 
and because they cannot find anything to smear him with or find fault 
with--it depends on who the person is--or to criticize, all of a sudden 
he is being steamrolled.
  Well, 631 days is almost 2 years. It is way too long. I have to 
admit, there were some mistakes when I was chairman during the Clinton 
years, but nobody should doubt for a minute that President Clinton was 
treated fairly. President Reagan was the all-time confirmation champion 
with 382 judges confirmed in his 8 years, and he had a Republican 
Senate to help him do it. President Clinton had virtually the same 
number, 377, as the all-time champion, and he had 6 years of an 
opposition party to help him do it. I know. I was the chairman during 
that time, and I did everything I could personally to help the 
President because he was our President. There was only one person voted 
down in that whole time, and I have to admit I do not feel good about 
that. And there were less people left holding at the end than there 
were when Democrats had control of the committee.
  Going back to this editorial, because I want to help my friends at 
the New York Times to be a little more accurate--frankly, I think they 
can use some help because their editorials, especially in this area, 
have been awful. And this is a perfect illustration.
  Going to the second paragraph:

       Republicans on the Judiciary Committee held a single 
     hearing last week for three controversial appeals court 
     nominees.

  Just for information, that was Jeffrey Sutton. That was John Roberts, 
and a wonderful woman named Cook--Sutton and Cook and Bill Roberts from 
DC Court of Appeals.
  By the way, all three are well known. Sutton is one of the top 
appellate lawyers in the country; Roberts, who was considered if not 
the top, one of the two top appellate lawyers before the Supreme Court 
of the United States; and Cook is a Supreme Court justice in Ohio.

       Republicans on the Judiciary Committee held a single 
     hearing last week for three controversial appeals court 
     nominees. There was no way, given the format, for Senators to 
     consider each nominee with care.

  We held one of the longest hearings ever on record, from 9:30 in the 
morning until 9:30 that night. I was willing to stay longer. I told the 
Committee we would finish that hearing that day and I would stay as 
long as it took.

       There was no way, given the format, for senators to 
     consider each nominee with care. A fourth nominee had a 
     hearing yesterday, and a fifth is likely to have one next 
     week.

  What is wrong with that? They have been sitting there for months and 
months and they are high-quality people. They have gone through this 
horrendous process to get to where they have a hearing.

       During the Clinton years, the committee took six months or 
     more to consider the number of appeals court nominees this 
     committee is hearing from in two weeks.

  I would add that many nominees have been waiting longer, not 6 months 
or more, 2 years, in the ones we have called up.
  By the way, Mr. Roberts had been sitting there since 1990 or 1991 or 
1992. I know he has been sitting there for at least 11 years. He has 
been nominated three times. This is too much of a rush? Give me a 
break. They took a lot longer than 6 months to consider the Bush 
nominees.

       The nominees being whisked through all have records that 
     cry out for greater scrutiny.

  I have covered how scrutinizing we are in the committee. We do not 
miss anything. My friends on the other side do not miss anything. We 
don't either.

       One, Jeffrey Sutton, is a leading states' rights advocate 
     who in 2001 persuaded the Supreme Court to rule against a 
     nurse with breast cancer on the ground that the Americans 
     With Disabilities Act does not apply to state employers.

  I was one of the authors of the Americans with Disabilities Act. I 
was not enthused about that case. But the fact is, it was a legitimate 
legal matter and he had every right to represent the States in that 
matter. The attitude around here is, if he represented the States, it 
must have been wrong. Or, if he represents big corporations, he must be 
wrong.
  Sometimes the States are right. Sometimes the corporations are right.
  Mr. SESSIONS. Will the Senator yield?

[[Page 2555]]

  There is some statement in there that sounds odd to me. They 
criticize Mr. Sutton for persuading the Supreme Court, like it is 
something bad. And I make a note that the Supreme Court ruled with him 
and agreed with his position.
  I know the Senator is so knowledgeable about these issues. I just 
ask, Is there something wrong, is it disqualifying for an attorney to 
prevail on the Supreme Court?
  Mr. HATCH. Apparently to the New York Times. The fact is, that case 
was written by the Supreme Court. He advocated, as any advocate, and he 
was representing, as I recall, one of the States.

       Another, Deborah Cook, regularly sides, as a state judge, 
     with corporations.

  Oh, my goodness. You mean we have somebody who will be on the Federal 
bench who occasionally finds corporations might be right? What a 
terrible thing that must be, that corporations are right? Let's be 
honest about it. A lot of employment cases, almost every one that is 
good, is settled before it gets to court. It is only the hard cases 
that basically have to be tried. And in many instances, those cases are 
not good cases. Some on the other side seem to think, well, she sides 
with corporations. My gosh, she sides with who is right. And that is 
what we should do.
  Admittedly, sometimes it was a dissent, and she was known for the 
dissent. That is not bad. Dissenting judges play a noble role. You can 
disagree with cases but you cannot disagree with her integrity. No one 
would attack her integrity.

       In one case she maintained that a worker whose employer 
     lied to him about his exposure to dangerous chemicals should 
     not be able to sue for his injuries.

  That is the most oversimplification I have ever seen. It is wrong.

       Jay Bybee, who was heard from yesterday, has argued that 
     United States senators should be elected by state 
     legislators, not the voters.

  That is purely wrong; it is bunk. The fact is, this system we have is 
a good system. But we know one time Senators were elected by State 
legislatures. He has expounded on that.

       Questions have also been raised about whether, as a White 
     House aide, Mr. Bybee attempted to suppress a criminal 
     investigation of financing of Iraqi weapons purchases.

  Come on. That is totally bunk. They have not talked to Mr. Bybee and 
given him any consideration. That, first, should never have been 
disclosed. But it was. And not one person asked a question about it. I 
am sure they will say they were watching Colin Powell's speech. I was 
not. I was sitting there in committee, making sure they had a chance to 
ask any questions they wanted. We delayed the committee until after 
Colin Powell finished to enable any Democrat to come, and at least two 
said they would come, to come back and question. They did not come 
back.

       The committee's new leadership showed similar recklessness 
     when it waved Miguel Estrada through on a straight party-line 
     vote.

  What are we suppose to do if the other side plays politics with the 
judges? They did not have one good argument through the whole process, 
and we have had a horrendous process to begin with that took 631 days 
before he came to the committee. The only reason he came then was 
because the Republicans took control of the Senate. Thank goodness for 
that or he would never have come up. He would never have had a chance. 
We all know it around here.
  ``Mr. Estrada, a conservative lawyer''--who knows if he is. I don't 
know his ideology. I know he is a great lawyer. And I presume, as I am 
sure the President does, that he is probably moderate to conservative.
  ``Mr. Estrada, a conservative lawyer with almost no paper trail,''--I 
just made the case there is a paper trail on him--``refused to answer 
senators' questions on crucial issues like abortion.'' Give me a break. 
He did answer. He said that he would apply the law regardless of his 
personal viewpoints.
  This is a man who argued the case for NOW. Who knows where he 
stands--I don't know. All I can say is that is a ridiculous statement. 
I guess editorials can be ridiculous, but this one is particularly.

       Meanwhile, the White House refused to hand over memos Mr. 
     Estrada wrote as a government lawyer that could have shed 
     light on his beliefs.

  They wanted memos on that side because they could not find anything 
else to give him a rough time about. They wanted memos on that side 
from the Solicitor General's office and seven former Solicitors 
General, four of whom are Democrats, came in and said that would be a 
very inadvisable thing to do because it would chill the work of the 
Solicitor General's office. People would not give their honest opinions 
if they knew that later they would be pilloried with those in the 
Senate of the United States.

       Meanwhile, the White House refused to hand over memos Mr. 
     Estrada wrote as a government lawyer that could shed light on 
     his beliefs.

  Mr. Estrada said it would have been all right with him. He is proud 
of his work.
  I have to say that the greater approach would be to recognize that 
there are some things that have to be privileged. As I say, all seven 
living former Solicitors General have said that.
  ``The Bush administration is naturally going to nominate candidates 
for the bench who are more conservative than some Democrats would 
like,''--that is fair--``and the Republican majority in the Senate is 
going to approve them.'' That is fair. ``That does not mean, however, 
that the administration should be allowed to act without scrutiny,''--
that is not fair, because it is tremendously scrutinized--``and pack 
the courts with new judges who hold views that are out of whack with 
those of the vast majority of Americans.''
  Now, come on.

       We fear that that is what the hasty hearing process is 
     trying to--

  Come on. Hasty--631 days before he even gets a hearing with all of 
that scrutinization that has gone on? It is not fair. This editorial is 
not fair.
  I call on my friends at the New York Times: be fair about the judges. 
I know the paper is more liberal than I, and I expect you to be more 
liberal. But I expect you to be fair. This business about three judges 
being called at one time--they have been sitting there for 631 days or 
more; actually more. They have been sitting there since May 9, 2001. 
They have been scrutinized to death. We gave every opportunity to 
question and every opportunity to file additional questions.
  By the way, I remember during the Carter years, when Senator Kennedy 
was chairman of the committee, if I recall correctly we had seven 
circuit nominees on one hearing. Is it wrong for Republicans to try to 
move these judges after all of these delays when they have the 
opportunity to do so, but not wrong for the Democrats to move the 
judges they want moved when they have control of the White House and 
the Judiciary Committee? I don't think there should be a double 
standard. I wanted to move as many of those May 9 judges as we could. 
If you will take note, the next week we had only one and that was Jay 
Bybee. That was this week. And next week we will probably only have one 
more.
  We are doing the best we can to try help solve judicial problems in 
this country. Just for the information of the New York Times, there are 
around 25 judicial emergencies in this country--emergencies. The 
Circuit Court of Appeals for the District of Columbia is one. The Sixth 
Circuit Court of Appeals in Ohio is another. We need to do something 
about that if we want justice in this country, if we want to have cases 
heard and tried and resolved--and that is what we want. That is what 
good lawyers want, fair judges who will fairly listen to their case and 
give them a fair trial. And these judges will. That is why they are so 
highly rated by the American Bar Association and that is why Miguel 
Estrada has the highest rating possible.
  I think it is time for the New York Times to be more fair in its 
reporting on these judges. I noticed the day before they were reporting 
as though Paul Bender's opinion really amounted to something. It may in 
some areas,

[[Page 2556]]

but certainly I think the opinions he gave at the Solicitor's office 
are more important than politically motivated opinions that he gives 
later as a liberal Democrat--and, I might add, a very liberal Democrat.
  I have taken enough time. I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Madam President, I ask unanimous consent to speak as in 
morning business for 25 minutes.
  The PRESIDING OFFICER. Is there objection?
  Mr. SESSIONS. Madam President, reserving the right to object, I 
assume the Senator will be speaking on a subject other than the Estrada 
nomination?
  Mrs. MURRAY. That is correct.
  Mr. SESSIONS. I will say, I was down here to speak on the Estrada 
nomination. I think the individuals who oppose him say they want to 
talk about it. I would like to hear what they have to say. This morning 
there is nobody down from the other side, the opposition, to speak 
against him. I don't know what they could say if they came. So it is 
frustrating to me.
  I know the Senator has some issues she cares about deeply and wants 
to talk. I suppose that is appropriate at this time, although in 
reality I think we ought to be engaged in a debate about this 
nomination and why it should be held up, why he does not qualify for 
the bench, and why there is something wrong with an individual who was 
given the highest possible rating, unanimously, by the American Bar 
Association.
  Having said that, I withdraw my objection to the unanimous consent 
request.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Washington.
  (The remarks of Mrs. Murray are printed in today's Record under 
``Morning Business.'')
  Mrs. MURRAY. I yield the floor.
  The PRESIDING OFFICER (Mr. Burns). The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I assume we are on the business of the 
Estrada nomination.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. SESSIONS. Mr. President, that is the pending business before the 
Senate today. It is a matter of importance. The Court of Appeals of the 
United States are important judicial offices. We need good people for 
those offices.
  There is no doubt in my mind that Miguel Estrada is one of the finest 
nominees we have seen in years. He has an impeccable record, with 
extreme capability, and wonderful integrity. He had a great demeanor in 
the committee when he testified. So I am very impressed with him.
  It is very disturbing to me that we would have a blockage, an 
obstruction being carried on here by the members of the Democratic 
Party. They stalled him in committee. They failed to give him and 
several other superb President Bush nominees to the court of appeals a 
hearing at all--over 600 days. It would have been 2 years in May since 
they were nominated, and there was not a hearing even held.
  So when the majority switched, Senator Hatch had hearings on Mr. 
Estrada. I thought he testified just superbly, with such a winning 
manner. He is a low-key person, but he has a brilliant mind. He 
analyzed the questions carefully, and gave responsible answers time and 
again in a way that few could disagree with, in my view.
  If we are going to slow down the work of the Senate, if we are going 
to stop what we are doing to talk about a nominee for the court of 
appeals, I would like to hear people step up to the plate and talk 
about that nominee. Let's see what the problems are. I haven't seen 
them. We have had two speakers today from the other side who talked 
about asbestos and hydrogen automobiles, not the subject at hand. We 
have agreed to that. I don't know how long we ought to agree to that. 
Maybe we should just say, if you want to slow down the Senate, then so 
be it. We will just talk about that day after day. I am concerned about 
that.
  I did misspeak in saying that Estrada didn't have a nomination 
hearing under the Democratic majority. He did get a hearing late in the 
process. Three of the nominees we had last week who were nominated with 
him in May 2 years ago got their first hearing just last week. He was 
not part of that group.
  Mr. Estrada came to this country at 17. He went to Columbia College 
where he graduated with honors magna cum laude. Then he went on to 
Harvard Law School. He grew up in Honduras. His mother came here. She 
could not speak English. He has done exceedingly well. He is a 
tremendous American success story. He is a great American, the kind of 
person we all respect because of his merit, his humility, his strength 
of character, his hard work, and his intellect.
  After going to the Harvard Law School, which many consider the most 
prestigious law school in the world, he not only finished at the top of 
his class, he was chosen to be editor of the Harvard Law Review. The 
editor of the Harvard Law Review or any law review at a good law school 
is considered to be one of the most outstanding honors a graduate can 
have. It is probably more significant in the minds of many people than 
who had the highest grade point average, who finished No. 1 in the 
class. Being editor of the law review is something you are chosen for 
by your classmates and the faculty. It is a great honor. It requires 
exceptional academic excellence. He finished magna cum laude at 
Harvard. It also requires leadership skills and analysis, the kind of 
skills that most people think make a good lawyer. He was successful in 
that.
  After doing that, he was an assistant U.S. attorney in the Southern 
District of New York. I was an assistant U.S. attorney in my prior 
life, and a U.S. attorney. But those in the Southern District of New 
York, rightly or wrongly, considers themselves to be the premier U.S. 
attorney's office in the country. They hire only the highest achieving 
assistant U.S. attorneys. They are very proud of that. Just being 
chosen at that office is a great honor. I would suspect there are more 
than 100 applicants for every vacancy they have. It is an office that 
handles complex matters. Some of the biggest financial and 
international matters often get handled in the Southern District of New 
York.
  While he was there, he became active in and chairman of the appellate 
litigation section. That means he wrote briefs that would be presented 
to the Second Circuit Court of Appeals in New York. The Second Circuit 
is considered one of the great circuits in America. So he was chosen to 
represent the United States in the attorney's office, to write their 
appellate briefs before one of the great circuit courts.
  One reason he was chosen for that is that Miguel Estrada, after 
graduating from Harvard, clerked for a U.S. Court of Appeals judge for 
the Second Circuit there in New York and had a good record. After 
having clerked for the Second Circuit, he was chosen to be a clerk for 
the U.S. Supreme Court, Justice Anthony Kennedy.
  For lawyers graduating from Harvard, or from any law school in 
America, being chosen to be a law clerk for a Justice on the Supreme 
Court is an exceedingly great honor. It is sought by thousands and 
thousands, and very few are selected. He was selected because of his 
excellent record, his background, and expertise. It is a great 
compliment to him that he was chosen to clerk for Justice Anthony 
Kennedy, who is considered to be a swing Justice on the Court.
  After that, he went to the U.S. attorney's office, where they 
prosecute criminal cases and work on the appeals that arise from those 
kind of cases and other matters relating to U.S. litigation in court. 
That is what they do there. He did a good job there.
  Then he was chosen to come to the Solicitor General's Office of the 
U.S. Department of Justice. Inside the Department of Justice, one of 
the oldest Cabinet positions in our Government, one of the founding 
Cabinet positions, there is the Litigation Division. Inside the 
appellate litigation section is the Solicitor General's Office. The 
Solicitor General has often been referred to as the Government's 
lawyer. The position of Solicitor General has been

[[Page 2557]]

called one of the finest lawyer jobs in the world, because the 
Solicitor General and his team get to appear before the Supreme Court 
and represent the United States.
  I used to be thrilled when I could stand in a courtroom in the 
Southern District of Alabama and say: I represent the United States of 
America. The United States is ready, Your Honor.
  That was a great honor for me. To be able to do that in the highest 
court in the land and represent the United States before the Supreme 
Court is a premier honor for any lawyer.
  Miguel Estrada was chosen for that. He served over 5 years in that 
capacity. During that time, overwhelmingly, he served in the Clinton 
Department of Justice. During that time, every single year while he 
served in the Department of Justice, he got the highest possible 
evaluation that the Department of Justice evaluators give--year after 
year. They said he was cooperative, a leader; he inspired other lawyers 
to do their best. They said he followed the policies of the Department 
of Justice, not someone running off doing independent things and nutty 
things.
  He was a solid, committed attorney to the Solicitor General's Office, 
to the ideals of the Solicitor General's Office. He was commended in 
his evaluations for following the policies of that office.
  That is quite an achievement. He left there and joined the 
prestigious law firm of Gibson, Dunn & Crutcher, one of the great law 
firms in the world, no doubt. He has been highly successful there, and 
the President has now nominated him for the court of appeals.
  He has, in the course of his career, argued 15 cases before the U.S. 
Supreme Court. You could count on both hands probably the number of 
practicing lawyers today who have ever argued 15 cases before the 
Supreme Court.
  That is a reflection of the confidence that clients and his law firm 
had in him. This isn't politics. When you have a big case before the 
Supreme Court of the United States and you have to have somebody there 
arguing that case, you don't want second rate, you want the best person 
you can get. The Supreme Court hears less than 100 cases per year. They 
select only a very few. Whenever your case is chosen for the Supreme 
Court, there is no doubt about it, the clients start looking around for 
superior appellate lawyers to represent their interests in a case that 
may set national policy for generations to come. We still cite many of 
those Supreme Court cases time and again to indicate the importance of 
them and how much they impact our daily lives. So he was chosen 15 
times to appear before the Supreme Court. I think that is a tremendous 
testament to his merit, his capability.
  I will tell you something else. You don't hotdog before the Supreme 
Court of the United States. You have to know what you are talking 
about. You have to be disciplined and you must understand the rulings 
of the Supreme Court, how they impact the case at hand, and you have to 
argue to the Justices within the realm of their existing philosophy and 
the existing status of the case law as to why you think your client 
should prevail or why the opponent should not prevail. That is a great 
compliment to him.
  Now, for some time, our Democratic colleagues have complained we did 
not give enough prominence to the opinions of the American Bar 
Association. They evaluate judges. They are not any official body. The 
American Bar Association is just an institution out there that does 
legal matters and represents lawyers as a group. They evaluate these 
judges. So they want to do it and they do it. They have every right to 
do it. I, frankly, value their opinions. I have always thought they 
were good. Some have felt they were biased a bit to the left. The 
positions the ABA takes at conferences consistently are liberal 
positions, which irritates a lot of lawyers and conservatives in the 
country. They have felt the ABA could not be trusted to evaluate judges 
objectively. In fact, I have noted some tendency to be less favorable 
to conservative judges than to liberal judges, but I feel their 
contributions are valuable--I always have--and I continue to believe 
they are valuable. So that was a complaint from our friends on the 
other side of the aisle, that we ought to listen to them more.
  The ABA has reviewed Miguel Estrada's nomination. They have conducted 
a thorough review of it. They give several different kinds of ratings. 
They give ratings of nonqualified, unqualified, qualified, and a well-
qualified rating. Very few people get the well-qualified rating. This 
is what it requires to get it, according to the ABA manual:

       To merit a rating of well qualified, the nominee must be at 
     the top of the legal profession in his or her legal community 
     . . .

  The ``top'' of the profession . . .

       . . . have outstanding legal ability, breadth of 
     experience, the highest reputation for integrity, and either 
     have demonstrated or exhibited the capacity for judicial 
     temperament.

  That is what is required for a person to get the well-qualified 
rating. They have 15 or so lawyers study and talk to judges and to the 
lawyers in the firm with the person, and they talk to lawyers on the 
other side of cases from the nominee; they make the nominee list the 
top 10 or so cases they have handled, and they talk to the lawyers and 
judges to see how well they performed in handling those cases, and so 
forth. When all of that was done, Miguel Estrada was unanimously voted 
well qualified, which is the highest possible rating for the court of 
appeals. In fact, he is one of the finest young lawyers in America 
today, a man of extraordinary capabilities, and I think a man who would 
be perfect for the court of appeals. He will be handling cases in a 
number of different aspects. These will be the kinds of matters he has 
spent his life handling, because the kinds of cases they have here in 
DC are cases he has worked with both as an Assistant U.S. Attorney when 
he represented the United States of America, and at the Solicitor 
General's office, and also the kind of appellate cases he has had in 
private practice before the Supreme Court. I am proud of him. I have 
observed no complaint that in any way damages his qualities and 
capabilities.
  Miguel Estrada has support across the aisle from Democrats and 
Republicans. He is the kind of person who ought to move forward. I 
remain utterly baffled about why such a fine nominee would be given the 
kind of grief he has gotten so far, and to be held up the way he has 
been held up, and how people say they are going to fight it for weeks, 
perhaps. I hope that is not so. I hope we don't have a filibuster. At 
the time the Republicans had the majority in the Senate, and when 
President Clinton was nominating judges, we never had a filibuster. 
During that time, we confirmed 377 of President Clinton's nominees and 
voted only one down. Not one nominee was ever blocked in committee, and 
in less than 2 years we have had two nominees blocked in the committee 
already, when the Democrats had the majority.
  Regardless of that, this nominee ought to move forward. He is the 
kind of person we need on the bench. We should celebrate the fact that 
an individual of his quality, with his potential to create high income 
in one of the finest law firms in the country, right here in one of the 
most prestigious practices in the country, is willing to give that up 
for public service because he loves his country and the principles of 
our country.
  I think he is the kind of person we need on the bench, and I think it 
is time for us to give him a vote. I am sure we will and, when we do, I 
believe he will be confirmed.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. BENNETT. Mr. President, I have been an observer of all of these 
debates about judges because I am not a lawyer and I don't sit on the 
Judiciary Committee, but I have been interested to note that when 
President Bush became the President, he announced he would not allow 
the American Bar Association to, in effect, veto Presidential nominees. 
He said the Constitution doesn't give the American Bar Association any 
right to determine who should be on the Federal bench and who should 
not, and that he would not bow

[[Page 2558]]

to the American Bar Association for their recommendations.
  Our friends on the Democratic side of the aisle, in the popular 
phrase of the teenagers, went ballistic. They said the American Bar 
Association was the gold standard by which everybody should be judged. 
And Senator Leahy, when he was chairman of the Judiciary Committee, 
made it very clear that even though a recommendation from the American 
Bar Association is extraconstitutional, he would apply that 
extraconstitutional test to everyone who came up; and if they did not 
pass that test--extraconstitutional though it is--they could not be 
confirmed. He made that very clear. I am grateful to him for his 
candor. I appreciate the fact he was open with this body and the 
American public that that particular test was being added to the 
constitutional test that a nominee should pass.
  Now we have someone before us who passes not only the constitutional 
test but the extraconstitutional test laid down by the Democrats. He is 
not only qualified--according to the American Bar Association, ``well 
qualified''--he was found unanimously well qualified by the American 
Bar Association. Yet Senator Leahy is leading a form of filibuster 
against this nominee that gives rise to this question, which I have 
asked on the floor before and, undoubtedly, in this extended debate I 
will ask again. I would ask Senator Leahy, Senator Kennedy, and the 
others: What additional, extraconstitutional test have you devised that 
you are applying to nominees for the judiciary? You have told us the 
first one. You have been very up front about it and tell us what 
additional, extraconstitutional test you have determined must be passed 
by a nominee because there is no obvious reason this nominee should be 
objected to; there is no obvious reason every single Democrat on the 
Judiciary Committee should have voted against him and we should see the 
coming of a filibuster against his nomination.
  The Senators are exercising their rights. I do not object to them 
exercising their rights, but I do ask them very respectfully to tell us 
the nature of the test they are applying to these nominees so that we 
can know in advance in future circumstances which nominees will not 
pass their test, which nominees will fail that test. In order to do 
that, we need to know what that test is.
  The PRESIDENT pro tempore. The Senator from Kentucky.
  Mr. BUNNING. Mr. President, I ask unanimous consent that further 
materials be printed in the Record following my remarks.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. BUNNING. I thank the Chair.
  Mr. President, today I rise in support of the nomination of Miguel 
Estrada to sit on the DC Circuit Court of Appeals. As has been said 
many times in this Chamber, Mr. Estrada is highly qualified to sit on 
this court and deserves a fair hearing and a vote in the Senate.
  There are four vacancies on the DC Circuit's 12 seats. Most lawyers 
consider the DC Circuit to be the second most important court in the 
United States. That means the court is missing one-third of its judges.
  That is alarming. The seat for which Mr. Estrada has been nominated 
has been designated as a judicial emergency by the Judicial Conference 
of the United States. To leave the seat empty for any longer is 
unacceptable and dangerous.
  In Kentucky, we know a little bit about vacancies. We are part of the 
Sixth Circuit Court of Appeals, and that panel has 6 vacancies right 
now out of 16 total seats. That is a little better from not too long 
ago when we had 8 openings, but it is not much better. In all, the U.S. 
Courts of Appeals have 25 vacancies, totaling 15 percent of the entire 
system.
  The situation is so bad the American Bar Association has described it 
as an emergency. Fortunately, the Judiciary Committee held hearings on 
four appellate court nominees recently, and one of those nominees is 
now before the Senate. At least we are starting to see some progress.
  Recently, Chief Justice Rehnquist delivered his annual report on the 
state of the Federal judiciary. One of the key points he emphasized was 
promptly filling vacancies. With this nomination, we have the 
opportunity to begin filling empty seats on the bench.
  Case filings in the Federal court system hit a new record high last 
year, and I believe that trend will continue this year also. The record 
number of cases in the court system, combined with judicial vacancies, 
led the Chief Justice to warn Congress that proper functioning of the 
court system is in jeopardy. The Senate cannot and must not allow that 
to happen.
  In concluding his remarks on judicial vacancies, the Chief Justice 
said:

       We simply ask that the President nominate qualified 
     candidates with reasonable promptness and that the Senate act 
     within a reasonable time to confirm or reject them.

  I cannot imagine a clearer signal to the Senate to fulfill its 
responsibility to confirm judges.
  President Bush has done his part in nominating candidates of the 
highest moral integrity and legal expertise. Each of his nominees has 
been carefully selected, and each deserves a hearing and a vote, which 
leads us to the nomination before us today.
  Mr. Estrada was nominated by President Bush in early 2001. Although 
he did get a hearing in the Judiciary Committee after well over a year, 
he was not granted a vote. It took almost 2 years for him just to get 
his day in court. In fact, when the 107th Congress ended last year, 31 
nominees were still waiting in committee for a vote. We had not even 
had hearings in the Judiciary Committee.
  Twelve of the 14 pending nominees for the court of appeals were 
nominated in 2001, and six of them, including Miguel Estrada, were 
among the first group of nominees submitted to the Senate nearly 2 
years ago.
  The judicial nomination situation in the Senate is totally 
unacceptable. Fifteen of President Bush's appellate nominees have had 
to wait more than a year for a hearing--not even a vote, just a 
hearing. According to the Justice Department, 15 of President Bush's 
appellate court nominees have had to wait over a year for a hearing. 
This is a higher total than the combined total that had to wait over a 
year for the past 50 years.
  Almost 90 percent of the appellate court nominees made in the first 2 
years of the Reagan, George H. W. Bush, and Clinton administrations 
were confirmed by the Senate. But in the first 2 years of this 
administration, only 54 percent were confirmed.
  Chief Justice Rehnquist is not exaggerating when he says the status 
of judicial nominations threatens the very function of our court system 
and justice itself.
  As for Mr. Estrada, he is a fitting nominee to break this logjam. Mr. 
Estrada is an inspiration. He has lived the American dream. He will 
become the first Hispanic to serve on that prestigious court. He is a 
fine example of the quality nominees President Bush has sent to the 
Senate.
  Mr. Estrada came to the United States when he was 17 years old, 
growing up in Honduras. He spoke little English when he arrived in 
America, but that did not keep him from graduating magna cum laude from 
Columbia College and Harvard Law School. He is no stranger to the 
appellate court system.
  After law school, he clerked for a judge at the Second Circuit Court 
of Appeals. After that, he was a clerk for Justice Kennedy at the 
Supreme Court. Mr. Estrada then served as an assistant U.S. attorney in 
New York and a deputy chief of the appellate section of the U.S. 
Attorney's Office. Those jobs required him to try cases in the district 
courts and argue before the Second Circuit Court of Appeals.
  Next, he served in the Office of the Solicitor General during William 
Jefferson Clinton's administration. Now he is a partner in the 
Washington, DC, law firm of Gibson, Dunn, & Crutcher.
  It has been said many times, but I think it is worth repeating, Mr. 
Estrada earned the American Bar Association's highest rating for a 
nominee, a ``unanimously well-qualified'' rating.

[[Page 2559]]

  He has been endorsed by a long list of political, business, and civil 
rights organizations. I have yet to hear any detractors make credible 
arguments that he is not qualified. I can see no obstacle to his being 
confirmed. He is supported by Seth Waxman, a Solicitor General under 
former President Clinton, as well as the former chief legal counsel to 
Vice President Gore. There is no question in my mind that Mr. Estrada 
will make a fine judge once confirmed. His life story is an inspiration 
for minorities, and all of us, throughout America. His hard work and 
dedication is obvious. His academic and legal achievements cannot be 
denied.
  I urge the Senate to quickly hold a vote on this nomination, and I 
urge my colleagues to support Miguel Estrada.
  I yield the floor.

                               Exhibit 1


                                                  U.S. Senate,

                                 Washington, DC, February 4, 2003.
       Dear Colleague: I write to urge you to support the 
     confirmation of Miguel A. Estrada, who has been nominated for 
     a seat on the United States Court of Appeals for the District 
     of Columbia Circuit. If he is confirmed, he will be the first 
     Hispanic to sit on this court, which is widely considered to 
     be the second most important court in the country.
       Mr. Estrada represents an immigrant success story. Born in 
     Tegucigalpa, Honduras, his parents divorced when he was only 
     four years old. Mr. Estrada remained in Honduras with his 
     father while his sister immigrated to the United States with 
     his mother. Years later, as a teenager, Mr. Estrada joined 
     his mother in the United States. Although he had taken 
     English classes during school in Honduras, he actually spoke 
     very little English when he immigrated. He nevertheless 
     taught himself the language well enough to earn a B- in his 
     first college English course. In a matter of years, he not 
     only perfected his English skills, but he exceeded the 
     achievements of many persons for whom English is their native 
     tongue. He graduated with a bachelor's degree magna cum laude 
     and Phi Beta Kappa in 1983 from Columbia College, then 
     received a J.D. degree magna cum laude in 1986 from Harvard 
     Law School, where he was editor of the Harvard Law Review.
       Mr. Estrada's professional career has been marked by one 
     success after another. He clerked for Second Circuit Judge 
     Amalya Kearse--a Carter appointee--then Supreme Court Justice 
     Anthony Kennedy. He worked as an associate at Wachtell Lipton 
     in New York--as high powered a law firm as they come. 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 Department of Justice 
     Solicitor General's Office in 1992. He stayed with that 
     office for most of the Clinton Administration. When he left 
     that office in 1997, he joined the Washington, D.C., office 
     of Gibson, Dunn & Crutcher, where he has continued to excel 
     as a partner. He has argued an impressive 15 cases before the 
     United States Supreme Court, and the non-partisan American 
     Bar Association has bestowed upon him its highest rating of 
     Unanimously Well Qualified.
       I take the time to offer up this brief recitation of Mr. 
     Estrada's personal and professional history because I think 
     it illustrates that he is, in fact, far from the right-wing 
     ideologue that some have portrayed him to be. He clerked for 
     Judge Kearse, a Carter appointee, then Justice Kennedy, a 
     moderate by any standard. He joined the Solicitor General's 
     Office during the first Bush Administration, but stayed on 
     through much of the Clinton Administration. His supporters 
     include a host of well-respected Clinton Administration 
     lawyers, including Ron Klain, former Vice President Gore's 
     Chief of Staff; Robert Litt, head of the Criminal Division in 
     the Reno Justice Department; Randolph Moss, former Assistant 
     Attorney General; and Seth Waxman, former Solicitor General 
     for President Clinton. He has defended pro bono convicted 
     criminals, including a death row inmate whom he represented 
     before the Supreme Court in an effort to overturn his death 
     sentence. He has broad support from the Hispanic community, 
     including the endorsement of the League of United Latin 
     American Citizens (which is the country's oldest Hispanic 
     civil rights organization), the Hispanic National Bar 
     Association, the U.S. Hispanic Chamber of Commerce, the 
     Hispanic Business Roundtable, the Latino Coalition, and many 
     others.
       Mr. Estrada has been unfairly criticized by some for 
     declining to answer questions at his hearing about whether 
     particular Supreme Court cases were correctly decided. Lloyd 
     Cutler, who was White House counsel to both President Carter 
     and President Clinton, put it best when he testified before a 
     Judiciary Committee subcommittee in 2001. He said, 
     ``Candidates should decline to reply when efforts are made to 
     find out how they would decide a particular case.'' He 
     further explained, ``What is most important is the 
     appointment of judges who are learned in the law, who are 
     conscientious in their work ethic, and who possess what 
     lawyers describe as `judicial temperament.''' Mr. Estrada's 
     academic achievement, his professional accomplishments, and 
     the letters of bipartisan support we have received from his 
     colleagues all indicate that Mr. Estrada fits this 
     description.
       Several opponents of Mr. Estrada have attempted to block 
     his confirmation by boldly demanding that the Department of 
     Justice release internal memoranda he authored while he was 
     an Assistant to the Solicitor General. All seven living 
     former Solicitors General--four Democrats and three 
     Republicans--oppose this request. Their letter to the 
     Committee explains that the open exchange of ideas upon which 
     they relied as Solicitors General ``simply cannot take place 
     if attorneys have reasons to fear that their private 
     recommendations are not private at all, but vulnerable to 
     public disclosure.'' They concluded that ``any attempt to 
     intrude into the Office's highly privileged deliberations 
     would come at a cost of the Solicitor General's ability to 
     defend vigorously the United States' litigation interests 
     cost that also would be borne by Congress itself.'' The Wall 
     Street Journal and the Washington Post have also criticized 
     the attempts to obtain these memoranda.
       These misguided efforts should not prevent our confirmation 
     of a well-qualified nominee who has pledged to be fair and 
     impartial, and to uphold the law regardless of his personal 
     convictions. I have no doubt that Mr. Estrada will be one of 
     the most brilliant federal appellate judges of our time, and 
     I urge you to join me in voting to confirm him.
           Sincerely,
                                                   Orrin G. Hatch,
     Chairman.
                                  ____

                                                  Latino Coalition


                                           for Miguel Estrada,

                                 Washington, DC, February 5, 2003.
     Hon. Jim Bunning,
     Member, U.S. Senate,
     Washington, DC.
       Dear Senator Bunning: At a time of a serious judicial 
     vacancy crisis in our country, it is simply disingenuous that 
     the Senate Democratic leadership is threatening to filibuster 
     a nominee to the U.S. Court of Appeals, with impeccable 
     credentials and a unanimous ``well qualified'' rating from 
     the American Bar Association.
       On May 9, 2001, President Bush nominated Miguel A. Estrada 
     to fill a vacancy on the United States Court of Appeals for 
     the District of Columbia Circuit. Mr. Estrada would be the 
     first Hispanic in history to sit on that court, which is 
     widely viewed as the most important and prestigious Court of 
     Appeals in the nation. No wonder George Herrera, President 
     and Chief Executive Officer of the United States Hispanic 
     Chamber of Commerce, concludes that ``Estrada's nomination 
     can be a historic event for the Hispanic community. Latinos 
     in this country have worked hard to break the barriers and 
     obstacles that have stood in our way for too long and we now 
     have the opportunity to do so. Estrada's appointment will 
     also be a role model for Latino youth by demonstrating that a 
     Latino can be appointed to one of the highest courts in the 
     nation.'' He is just one of the overwhelming majority of 
     national Hispanic grassroots organizations that are 
     enthusiastically supporting his nomination, not just because 
     he is Hispanic, but because he is superbly qualified.
       Mr. Estrada is unique in another respect, too. As his 
     colleagues can attest, both conservatives and liberals alike, 
     Mr. Estrada is one of the most brilliant and effective 
     appellate lawyers in the country. Having worked at the 
     Justice Department under Republican and Democratic 
     Administrations, he has demonstrated a commitment to 
     upholding the integrity of the law and a dedication to public 
     service. During his career, he has argued fifteen cases 
     before the Supreme Court--all before reaching the age of 40. 
     He richly deserves the unanimous ``well qualified'' rating 
     the American Bar Association bestowed on him--the 
     organization's highest possible evaluation.
       Miguel Estrada is more than just a talented lawyer. He 
     represents the potential of a growing population and what is 
     possible in the United States. A native of Honduras, Mr. 
     Estrada arrived in the United States at age 17, unable to 
     speak much English. Yet he graduated magna cum laude from 
     Columbia University and magna cum laude from Harvard Law 
     School, where he was an editor of the Harvard Law Review. He 
     clerked for Supreme Court Justice Anthony Kennedy--one of the 
     more moderate Republican appointees who continues to be 
     Estrada's mentor. Mr. Estrada's own journey from immigrant to 
     successful attorney has inspired him to devote much of his 
     career to serving his fellow Americans. Both in government 
     service and in private practice, he has sought to ensure that 
     all citizens receive the law's fullest protections and 
     benefits, whether they are death-row inmates or abortion 
     clinics targeted by violent protestors.
       Never has a judicial nominee that has been voted out of the 
     Judiciary Committee been successfully filibustered in the 
     Senate. Estrada's opponents argue that he is a Hispanic in 
     name only and is an ideologue. This is absolute non-sense.
       Miguel Estrada is considered by all who have worked with 
     him to be a brilliant attorney who has demonstrated the 
     ability to set

[[Page 2560]]

     aside any personal beliefs he may have and effectively argue 
     cases based on the US constitution and the law. Perhaps the 
     most compelling praise in support of Mr. Estrada's nomination 
     has come from Democratic political appointees who worked with 
     him in the Clinton Administration.
       Prominent Democrats including Ron Klain, the former Chief 
     of Staff of Vice President Gore; Seth Waxman, Clinton's 
     Solicitor General; Robert Litt, Associate Deputy Attorney 
     General in the Criminal Division; Drew Days III, Solicitor 
     General; and Randolph Moss, Assistant Attorney General in the 
     Office of Legal Counsel have all praised Miguel Estrada for 
     his brilliance, compassion, fairness and respect for 
     precedent (quotes attached).
       It would be an ironic travesty of justice for any member of 
     the US Senate--a body without a single Hispanic member--to 
     vote against Mr. Estrada with the excuse that he is a 
     Hispanic in name only or that he does not understand or 
     represent the values of our community? Under normal 
     circumstances, this argument would be so absurd that we would 
     have ignored it. But under the current partisan environment, 
     we cannot stand by and allow Mr. Estrada's ethnic background 
     to be used against him.
       Miguel Estrada was nominated on May 9, 2001. He did not 
     receive his first hearing until September 26, 2002, 16 months 
     after his nomination. Now his opponents complain that they 
     have not enough time to evaluate his record and that his 
     nomination should not be rushed to a vote. We believe that a 
     nominee should not have to wait for 21 months for a vote and 
     that the Senate has had plenty of opportunity to consider 
     Miguel Estrada's qualifications. This same tactic was used to 
     delay Richard Paez's nomination for more than 4 years. It was 
     unfair then and it is unfair now.
       Any attorney who has argued 15 cases before the US Supreme 
     Court has an extensive legal track record that can be 
     analyzed for accuracy, quality, effectiveness and bias. Yet, 
     incredibly, Mr. Estrada's detractors claim that his legal 
     record is too skimpy for them to make an informed decision on 
     his nomination. This ridiculous claim underscores the 
     opposition's real problem . . . that there is nothing in 
     Miguel Estrada's record that would lead a reasonable person 
     to conclude anything other than this nominee is an 
     exceptionally well qualified, highly principled attorney, who 
     will make a fine judge on the DC Circuit.
       The Hispanic National Bar Association, the League of United 
     Latin American Citizens (LULAC), The Latino Coalition, the 
     United States Hispanic Chamber of Commerce, the American 
     Association for the Advancement of Mexican Americans, MANA--a 
     national Latina organization, and the Mexican American 
     Grocers Association are among the many Hispanic organizations 
     supporting the nomination of Miguel Estrada.
       Miguel Estrada is a perfect example of an American success 
     story, who deserves an up or down vote on the Senate floor. 
     He brings to the court a distinguished and extensive legal 
     record based on his many years of work in the public and 
     private sector. Mr. Estrada also brings unique perspective 
     and human experience understood only by those who have 
     migrated to a foreign land.
       It is for this cultural depth and his unique legal 
     qualifications that on behalf of an overwhelming majority of 
     Hispanics in this country, we urge the leadership of both 
     parties in the U.S. Senate to put partisan politics aside so 
     that Hispanics are no longer denied representation in one of 
     the most prestigious courts in the land.
           Sincerely,
       League of United Latin Americans Citizens, the Hispanic 
     National Bar Association, the U.S. Hispanic Chamber of 
     Commerce, the Association for the Advancement of Mexican 
     Americans, The Latino Coalition, Mexican American Grocers 
     Association, the Hispanic Contractors Association, the 
     Interamerican College of Physicians & Surgeons, the American 
     G.I. Forum, the Federation of Mayors of Puerto Rico, the Casa 
     De Sinaloense, the Cuban American National Foundation, the 
     Hispanic Business Roundtable, the Cuban Liberty Council, the 
     Congregacion Cristiana y Misionera ``Fe y Alabanza'', the 
     MANA, a National Latina Organization, theNueva Esperanza Inc. 
     Cuban American Voters National Community, the Puerto Rican 
     American Foundations

  The PRESIDENT pro tempore. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I compliment the Senator from Kentucky 
for his excellent remarks. He said much of what I wanted to say, 
outlining the extraordinary qualifications of Miguel Estrada. He very 
clearly laid out the case that there is no legitimate reason to 
filibuster his nomination, but that appears to be the tactic that is 
being contemplated and maybe even being engaged in by many on the other 
side of the aisle, certainly not all on the other side of the aisle. We 
are certainly grateful for Members who are discerning enough to 
understand, as has been quoted many times--the Washington Post has 
suggested that filibustering this nomination would be unjustifiable, I 
think is their term, and certainly beneath the standards in the Senate. 
The standard is that we do not filibuster judges for the circuit 
courts, that it would be an unprecedented move to filibuster a judge.
  In the 220-odd-year history of the Senate, what makes this judge so 
unique? And that is what it would be, it would be unique because it is 
the first time in the history of this country a filibuster would be 
conducted on a circuit court nominee.
  What makes this nominee so unique to warrant--and I am not using this 
term in a pejorative sense but in a factual context--an extreme 
reaction, extreme by the definition that it is the first time in almost 
230 years of American history that this would occur, that this would be 
an extreme reaction because it has never been done before.
  What has this nominee done, or what about this nominee causes such an 
overreaction, or extreme reaction, that raises the bar to this high 
level?
  Let's look at this nominee. The Senator from Kentucky noted he is 
intellectually clearly qualified. He got into colleges I was not able 
to get into, I can say that. As the Senator from Kentucky said, he is a 
man who was raised in Honduras. English was not his first language. He 
was able to perform at the highest levels at some of the most rigorous 
universities in the country, Columbia and then Harvard Law School. He 
was on Law Review, it is my understanding, at Harvard Law School. These 
are truly lofty attainments and a demonstration of not only a powerful 
intellect but a rigorous attitude toward his studies and a commitment 
to excellence.
  He clerked for the appellate court, which is a high honor very rarely 
bestowed upon graduates of law school, and even a more rare honor is to 
clerk for a Supreme Court Justice. He obviously has the intellectual 
capability, even at a young age; that was established. He has gone on 
with a distinguished career in law, public service, and in the private 
sector. He has argued numerous cases before the Supreme Court, which, 
frankly, standing up before a panel of Supreme Court Justices is hard 
enough but, in all candor, standing up when you have a speech 
impediment has to be a thoroughly paralyzing experience. To have the 
courage to persuasively make arguments, nonetheless, and deal with the 
bench under this context is a testament not only to his intellectual 
capability and to the hard work he puts into his job but to the 
personal courage and determination this man has.
  So we have in this nominee someone who has overcome adversity in 
language, adversity in disability, and performed at the highest levels 
of the legal profession in this country.
  As the Senator from Kentucky mentioned, he has a unanimous well-
qualified rating. I am sure this has been repeated many times, but the 
other side has said this is the gold standard, this is the stamp of 
approval, getting a qualified rating from the American Bar Association.
  This was not a qualified rating. This was not a well-qualified 
rating. This was a unanimously well-qualified rating.
  So what is it? What could it possibly be that this nominee has done 
in his life to potentially warrant the first ever filibuster of a 
circuit court judge in the history of the Senate? What has he done? 
What are the arguments on the other side?
  One of the arguments on the other side is he does not have sufficient 
experience. Well, I am a lawyer, and I can say I do not have near the 
experience Miguel Estrada has. I have not performed nearly in the arena 
of the law he has. His experience is abundant.
  He has never been a judge. He is being nominated for a position on a 
court where there are eight judges right now. Five of the eight 
confirmed by this Senate had no prior judicial experience. So if 
judicial experience was so important for this court, then why do over 
half the members on this court have no prior judicial experience? One 
could make that argument, but the cup the water is being held in is as 
empty as the top. It flows straight through. It does not hold any 
water.

[[Page 2561]]

  He has refused to disclose his judicial philosophy. Since when do we 
expect people who are applying for judicial nominations to tell us how 
they would rule on future cases? That would truly be an extreme view, 
an unprecedented view, for the consideration of judges in the Senate. 
We do not require people to prejudge cases. In fact, part of the canons 
is one does not prejudge cases. So to ask a judge-nominee how he would 
rule or what his feeling is on these matters is inappropriate and that 
is why most judges, if not--well, maybe some give opinions, but most 
nominees who come before the Senate for confirmation do not answer that 
question. They can talk general judicial philosophy, but to go through 
and talk about how they would rule on certain cases is something that 
is an inappropriate question, in my mind, and should not be answered.
  The other side is saying he did not turn over his work papers. Now, I 
did practice a little bit of law, and there is a privileged work 
product of lawyers that is not available to the other side in a case. 
Generally speaking, it is not available for discovery. Why? Because 
when you are working on a case--having worked in my capacity for a 
senior partner in most cases, as is the case here, because Miguel 
Estrada was an Assistant Solicitor; he was not the Solicitor General; 
he was working for someone in the capacity of the Solicitor's office--
you are preparing the case and trying to share his opinions, his candid 
opinions about what his boss should do.
  His boss may make a different decision, but his boss needs, as my 
senior partner needed, my candid opinion about what I thought of the 
merits of our argument or the facts in the case or whatever the case 
may be. He needed my candid assessment. Why? Because I understood the 
issue better than he or she did. That work product was essential for 
coming to the decisionmaking with all the best information that 
decisionmaker needed to make the property assessment of the case and to 
move forward.
  Mr. BENNETT. Will the Senator yield?
  Mr. SANTORUM. I am happy to yield.
  Mr. BENNETT. It is my understanding that Mr. Estrada was employed 
during the Reno Justice Department; is that the Senator's 
understanding?
  Mr. SANTORUM. That is correct.
  Mr. BENNETT. Is it not then the case that some of these papers the 
committee is demanding are papers that were submitted to a Clinton 
Presidential appointee who acted as Solicitor General; is that not the 
case?
  Mr. SANTORUM. That is correct.
  Mr. BENNETT. So is it not true that it is a Clinton appointee, former 
Solicitor General, who is now saying it would be inappropriate for Mr. 
Estrada's material to be made public?
  Mr. SANTORUM. That is correct, including, I believe, six other 
Solicitor Generals who have said it would threaten the viability of the 
Solicitor General's office if this information were discoverable 
through this nomination process.
  Mr. BENNETT. If I could comment on the question, I find it 
interesting for those who supported Janet Reno for Attorney General and 
supported President Clinton's Presidential nominees in that office, 
which nominees, after confirmed, are saying Estrada's notes should not 
be made public, are saying those nominees are wrong.
  Mr. SANTORUM. I find that incongruous. I find, frankly, all of the 
arguments to be specious, at best.
  What is confounding is that such an extreme measure appears to be in 
the offing, which is a filibuster, on such a pathetically weak case 
against this nominee.
  So one has to step back and ask, Why? What is going on here? Why is 
this nominee being singled out? What is it about this nominee that is 
unusual, that has raised the fear or the ire of so many in this 
Chamber?
  Mr. BENNETT. Will the Senator yield?
  Mr. SANTORUM. I am happy to yield.
  Mr. BENNETT. I recall in the last Congress where the Democratic 
members of the Judiciary Committee, and particularly the Democratic 
leader, then majority leader, along with the then-chairman of that 
committee, Senator Leahy, attacked Republicans for being insufficiently 
supportive of nominees who were women or members of minorities. We were 
given quotas, if you will, at least the language of quotas, that we 
should have so many women and so many minorities, and we were attacked 
in the strongest possible language. Indeed, it came close to violating 
Senate rules, of implying that everyone on this side of the aisle was 
either sexist or racist because we did not support a sufficient number 
of minority nominees or female nominees.
  Mr. SANTORUM. I suggest it went further. We were accused, if we voted 
against any minority--they would single out any negative vote against 
any minority member--it was the equivalent of having some sort of 
antiracial agenda; that somehow we harbored ill feelings toward 
whatever particular race or gender happened to be the subject of that 
nominee.
  Mr. BENNETT. The Senator's memory is correct. We were told if we 
voted against any nominee who happens to be either a woman or a 
minority, we were, indeed, guilty.
  Now we have one who happens to be a minority. I do not believe 
nominations should be made on the basis of gender or minority status. 
But when we have a nominee based on quality, who happens to be in a 
minority status, I find it disingenuous of those who made the point of 
the minority status. We didn't; they did. Those who made the point of 
the minority status now are insisting that the minority status should 
not be considered. I wish they would be consistent. Either minority 
status does not matter or it does, and if it does, as they insist, it 
should be a reason for them to vote for this nominee.
  Mr. SANTORUM. I stand here, as the Senator from Kentucky and the 
Senator from Utah, and ask the question, Why this nominee? The Senator 
may have--I hope he has not--may have uncovered what may be the 
underlying cause of this obstruction. We have passed and considered 
judges who, through their nominating process, have disclosed their 
conservative ideology equal to Miguel Estrada. It is accepted that 
Miguel Estrada is conservative in answering his questions and how he 
interprets the law. It seems to be consistent with, frankly, most if 
not all of President Bush's nominees. President Bush believes in 
commonsense judges who take the Constitution for what it says and who 
follow the law.
  As Miguel Estrada has said in his testimony, he would follow the law. 
The Supreme Court says this is the law; he will follow the law. That is 
all this President wants. That is all most Members, certainly on our 
side, would like to see--which is, judges who are not Supreme Court 
Judges now, because they are making more law than following law--judges 
on the district court and appellate courts and their responsibility to 
follow the higher court. Miguel Estrada said, without question, he will 
do so.
  It is not that he will not follow precedent. The objection must be 
philosophy. If it is philosophy, look at all the nominees of this 
President. They are overwhelmingly almost universally more conservative 
than they are liberal. I don't know how you measure conservatism, but 
certainly they are almost all generally right around where Miguel 
Estrada is as far as his philosophy is concerned of government and of 
jurisprudence. Yet none of them have been filibustered on the floor of 
the Senate.
  So, again, you come back: What is different about Miguel Estrada than 
all the other conservative district court judges, appellate court 
judges, who have been confirmed by the Senate? They have been given a 
vote. I won't even go to confirmed. They have just been given the 
opportunity for a vote.
  I can speak from personal experience, one I know very well. We had 
probably the most contentious nominee to hit the floor the last session 
of Congress, a judge from Pennsylvania, Judge Brooks Smith. He was from 
the western district of Pennsylvania. Judge

[[Page 2562]]

Brooks Smith is a conservative judge, very much in the mainstream of 
ideology on the court and America. But he tracks more conservatively in 
his opinions than those more activist in nature, or more liberal.
  Did they oppose him on that? No, they found a few issues having to do 
with him being involved with a club, years ago, that excluded women. So 
they began to make this case that he was antiwoman. So that was the 
reason for this whole thing, even though we had the local chapter of 
NOW in his own county come out and suggest this is a good guy. It 
didn't matter. They had a hook. So they stuck the hook in. But they 
gave him a vote. They reported him out of committee and we gave him a 
vote on the Senate floor and he passed with 60-plus votes here on the 
floor of the Senate.
  I know Judge Smith well and have tremendous respect for him. But I 
suggest Judge Smith and Miguel Estrada, when it comes to judicial 
philosophy, are pretty much two peas in a pod. It's pretty hard to tell 
the difference between how they would approach the issues. Judge Smith 
got a vote, even though, arguably--even though I think it was a red 
herring--he had some other issue out there that could have been used to 
discolor or discredit him.
  What issue does Miguel Estrada have that could potentially disqualify 
him? What has he done in his legal career that could be used against 
him? I have not heard anything that, through his experience or 
education or actions, has disqualified him from this position. I 
haven't heard of any clubs he belonged to. He is a minority, so it's 
hard to belong to a club that excluded minorities, if he was one, so we 
can't run into that problem.
  Maybe that is the problem. Maybe that is the problem, that we have 
someone who is a conservative and a minority. Is that the combination 
that is lethal?
  Mr. BENNETT. Will the Senator yield?
  Mr. SANTORUM. I am happy to yield.
  Mr. BENNETT. As the Senator from Pennsylvania seeks to find a reason 
for opposing Mr. Miguel Estrada, I suggest to him one that comes out of 
yesterday's editorial in the Washington Post, as the Washington Post 
points out that Mr. Estrada did not cooperate with the Democrats in 
producing a case against him. Then it says,

       Because it stems from his own and the administration's 
     discourteous refusal to arm Democrats with examples of the 
     extremism that would justify their opposition, they are 
     opposed to him.

  The editorial concludes:

       Such circular logic should not stall Mr. Estrada's 
     confirmation any longer.

  I agree with the Washington Post in this circumstance. It may be they 
were hoping he would be cooperative enough to give them something to 
use against him and when he refused to do that, and indeed his 
background says there is nothing in there he could have given them, in 
anger they decided to turn against him.
  As the Senator looks for some reason why they are opposed to him, 
maybe they are just disappointed over the fact he passed?
  Mr. SANTORUM. I know when you try to bully someone into doing 
something and they don't do it, it can be pretty frustrating. But that 
is no reason to go to such an extreme unprecedented measure of 
filibustering an obviously competent, well-qualified--unanimously 
supported by the American Bar Association--nominee for the circuit 
court.
  I would just say this in closing. It is my intention as a Senator to 
see this nominee through to a vote. I think this nominee deserves a 
vote. There has been no reason, no legitimate judicial reason why this 
nominee should not be given an opportunity to be voted on. So I will 
make this statement. It is this Senator's intention to do everything I 
can do to keep the Senate on this issue for as long as it takes for a 
vote to occur.
  When I say ``as long as it takes,'' let me underscore what I mean: As 
long as it takes.
  If the other side likes to stand up and criticize Miguel Estrada and 
wants to filibuster his nomination, let me assure you, we will provide 
you plenty of opportunity and time to do that if that is what you want 
to do. If you want to make the next days, weeks, months, years an 
opportunity to talk about Judge Estrada's qualifications for this job, 
it is this Senator's intention to give you the opportunity to do that. 
He deserves, through his outstanding record of accomplishment, 
overcoming language, disability, and prejudice heretofore and 
potentially now, to get this vote.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Graham of South Carolina). The Senator 
from Nevada.
  Mr. REID. Mr. President, because of the statements made by my friends 
on the other side of the aisle relative to Mr. Estrada, I would like to 
take a few minutes and rebut some of what they have stated during 
today's session of the Senate.
  It is true there is a conflict in our country as to whether or not he 
should be approved by the Senate. We have newspapers saying yes, 
newspapers saying no. My friend from Pennsylvania, the junior Senator 
from Pennsylvania, who stated he could not understand why there was a 
filibuster, first has to understand there has never been a statement on 
the floor to the effect there is a filibuster. A decision has not been 
made by the leadership on this side as to whether or not there will be 
a filibuster. But let me just say I think something as controversial as 
this nomination should have some consideration.
  We just started this process at 2:45 p.m. yesterday. There was good 
debate on Wednesday. We had a memorial service for the Columbia this 
week in Houston. We had another one this morning. Many Senators 
attended the two services. There is no session this afternoon or Friday 
because of the majority being engaged in a retreat. There is nothing 
wrong with having a retreat. We are going to have one in May. We will 
have to take some time off.
  But we should not rush to judgment. There will be a decision made as 
to whether or not there will be a filibuster, but that decision has not 
been made, to my knowledge.
  Let me say there are people who care a great deal about our country 
who oppose this nomination. There are people who care a great deal 
about our country who favor this nomination. That is the reason our 
Founding Fathers established the Senate of the United States.
  We do not live in a dictatorship. President Bush is President Bush, 
not King George. He knows that, I hope, and I am confident he does.
  Take, for example, the New York Times which said, among other things:

       The Senate Judiciary Committee is scheduled to vote 
     tomorrow on Miguel Estrada, a nominee to the D.C. Circuit 
     Court of Appeals. Mr. Estrada comes with a scant paper trail 
     but a reputation for taking extreme positions on important 
     legal questions. He stonewalled when he was asked at his 
     confirmation hearings last fall to address concerns about his 
     views. Given these concerns, and given the thinness of the 
     record he and his sponsors in the administration have chosen 
     to make available, the Senate should vote to reject his 
     nomination.

  Mr. President, this is the New York Times. It is a newspaper that has 
circulation not in the tens of thousands or hundreds of thousands but 
in the millions.
  Among other things, this editorial states:

       Mr. Estrada has put few of his views in the public record. 
     One way to begin to fill this gap, and give the Senate 
     something to work with, would be to make available the 
     numerous memorandums of law that Mr. Estrada wrote when he 
     worked for the solicitor general's office, as other nominees 
     have done. But the White House has refused senators' 
     reasonable requests to review these documents.
       Mr. Estrada, now a lawyer in Washington, also had an 
     opportunity to elaborate on his views, and assuage senators' 
     concerns, at his confirmation hearing, but he failed to do 
     so. When asked his opinion about important legal questions, 
     he dodged. Asked his views of Roe v. Wade, the landmark 
     abortion case, Mr. Estrada responded implausibly that he had 
     not given enough thought to the question. Mr. Estrada's case 
     is particularly troubling because the administration has more 
     information about his views, in the form of his solicitor 
     general memos, but is refusing to share it with the Senate.

  Finally, the article says:


[[Page 2563]]

       The very absence of a paper trail on matters like abortion 
     and civil liberties may be one reason the administration 
     chose him. It is also a compelling--indeed necessary--reason 
     to reject him.
  It is not as if the objection to this man is out of nowhere. We have 
editorials and newspapers that are transmitted to millions of people 
every day that take the position this man shouldn't be confirmed as a 
circuit court judge. We can't discount those opinions, or think there 
are some left-wing kooks who have decided for reasons which are not 
substantive not to go with this man.
  I would also say that there have been a number of Senators talking 
about how unusual it is--how unusual it is--that we are talking about a 
judge's qualifications. I think if there is anything in the extreme, 
all we need to do is look at the newspaper of today--the Roll Call: 
``GOP Calls on K Street to Boost Estrada.''
  What this is all about is getting the lobbyists involved--to put 
pressure on Senators to move forward on this nomination and approve 
him. This Roll Call story documents special interests being told by 
members of the Republican leadership that they have a stake in this 
nomination process.
  I think if there is anything untoward, it is the pressure being put 
on these people.
  I also note that one of the Senators in the majority complained today 
about vacancies in the Federal court system. We are talking about the 
D.C. Court of Appeals. We Democrats tried to fill those. We were not 
allowed to do so. Why? Among other reasons, we were told by the 
majority that the D.C. Court of Appeals was too big and the people we 
wanted to put on would be just unnecessary baggage; that it wasn't 
necessary to fill those vacancies.
  What our friend on the other side of the aisle complained about was 
OK, but he failed to explain that the vacancies on the two courts he 
mentioned--the D.C. Court of Appeals and the Sixth Circuit--were caused 
by the Republicans' failure to act, or their success in blocking 
nominees to the DC court.
  Allen Snyder, who was a nominee voted qualified by the ABA, was never 
given a hearing, and never had a committee vote for a seat on the 
District of Columbia Circuit.
  Elena Kagan, a well-respected law professor, was never given a 
hearing and was never given a committee vote for her nomination to the 
District of Columbia Circuit Court.
  On the Sixth Circuit, Kathleen McCree Lewis--I am only giving you 
examples--waited for more than a year, was never given a hearing, and 
was never given a committee vote on the Sixth Circuit.
  Kent Markus--no hearing and no vote; Helene White waited 4 years--no 
hearing and no vote.
  We have said here--Senator Daschle when he was majority leader and I 
have said--that this isn't get even time for when we were in the 
majority. We tried to treat the minority then as we wanted to be 
treated when we were in the minority. We expect to be treated as we 
treated the minority when we were in the majority for approximately 18 
months. That is what we are asking.
  Mr. President, the majority leader is on the floor. I would be happy 
to yield to the majority leader and then would retain the floor when 
the majority leader completes his statement.
  The PRESIDING OFFICER. Without objection, the majority leader is 
recognized.
  Mr. FRIST. Mr. President, I ask unanimous consent that on Monday 
there be an additional 6 hours for debate on the Estrada nomination; 
provided further that the time be equally divided between the chairman 
and ranking member or their designees, and that following the 
conclusion of that time, the Senate proceed to a vote on the 
confirmation of the nomination, with no intervening action or debate.
  Mr. DASCHLE. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. FRIST. Given the objection, Mr. President, I ask my colleagues on 
the other side of the aisle if they need additional time, which I 
assume they do? And if so, would they be willing for me to modify the 
request to 8 hours or 10 hours or 12 hours?
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, I would be happy to respond to the 
distinguished Republican leader, the majority leader. As he knows, we 
began this debate yesterday afternoon. We had a good debate yesterday, 
I think, for 3 or 4 hours. I thought it was a constructive debate.
  There are strong feelings on both sides of the aisle with regard to 
this nomination. I think our colleagues, of course, would have been 
prepared to continue the debate this week, and, for good reason, we are 
unable to do that because of the Republican conference. Our conference 
is later on this spring. Theirs is now. That precludes our opportunity 
to continue the debate. But clearly, very few Senators have had a 
chance to be heard. Few Senators have had the occasion to look more 
carefully at these facts.
  We cannot prescribe a particular time, at least at this point. We 
will continue to discuss this matter with our colleagues, and I will be 
in touch with the distinguished Republican leader at a later date. But 
clearly this nomination deserves careful consideration, with ample time 
for debate.
  I would hope colleagues on both sides of the aisle could be afforded 
their chance to speak to this nomination. It is a controversial 
nomination and, therefore, requires perhaps more time than others. So 
for that reason, I object.
  I, of course, would not be able to say how much additional time we 
would require, but certainly some time next week will be required.
  Mr. REID. Will the majority leader yield so I can ask a question of 
the Democratic leader?
  Mr. FRIST. I am happy to yield, Mr. President.
  Mr. REID. I say to the distinguished Senator from South Dakota, there 
has been talk here by the majority that there is a filibuster taking 
place. I said, just a few minutes ago, unless I missed something you 
said, there has been no decision made from you as to whether or not 
there is going to be a filibuster. Is that a fair statement?
  Mr. DASCHLE. I say to the Senator from Nevada, that is correct. As I 
said, I think I recall there were only three or four Senators who were 
able to speak yesterday. There are many others who wish to have the 
opportunity to speak. And certainly to cut off debate prior to the time 
they have had that occasion, especially with a nomination of this 
import, would be unwise. But there is no filibuster as we speak.
  Mr. FRIST. Mr. President, I very much appreciate the comments made by 
the assistant Democratic leader and the Democratic leader on the 
importance of this nomination and the importance of having adequate 
time for debate and discussion, in part because this is the first judge 
to come through in this Congress, and it is important that it be 
handled well and it be handled fairly and it be handled in a 
cooperative spirit, which has been demonstrated over the last 2 days.
  The reason for extending the unanimous consent request for Monday, 
which was objected to--I do want to state very clearly we need to have 
people on the floor talking and debating and discussing as much as 
possible for the times that are made available. I will shortly announce 
we will come back Monday. I would hope we could go through Monday and 
Monday evening, if necessary, and use that time effectively so we do 
have adequate discussion and debate.
  This is an important nomination. There has been good debate to date. 
I encourage all of our colleagues to take advantage of the opportunity 
we are making available. We will extend the hours, starting earlier and 
going later, in order to make sure people do have that ample 
opportunity.
  In terms of the allegations of a filibuster--and certainly even the 
use of the term yet--individual Senators can express themselves, but I 
think it does show the desire to have good debate, useful debate, to 
have the points made on both sides of the aisle, and then to allow an 
up-or-down vote on this nominee. I think we are on course for that.

[[Page 2564]]

I would appreciate, in the early part of next week--after checking with 
your side of the aisle; and I will do likewise--for us to try to get 
some sort of time certain so we can further plan the business of the 
Senate.
  Mr. REID. Mr. President, can I ask the distinguished majority leader 
a couple questions?
  Mr. FRIST. Yes.
  Mr. REID. First question. I believe you will announce it later. Do 
you expect any votes on Monday?
  Mr. FRIST. Yes. We will have votes on Monday.
  Mr. REID. Second question: Let's say there is something worked out 
and we have a vote on this on Tuesday. What are we going to take up 
after that?
  Mr. FRIST. We will have other judges we will go to, and there are a 
number of bills that are being considered. There is a children's bill 
that is related to pornography we will be taking up at some point. 
There are other bills that have come through. There is an antitheft 
bill that is being considered right now we might be able to take up on 
Monday.
  Mr. REID. Those bills have been reported out of committee?
  Mr. FRIST. The military tax bill has been reported out. We have the 
Moscow treaty, which is very important, that we passed through the 
Foreign Relations Committee. We would like to address that as soon as 
possible. There are other pieces of legislation that are being looked 
at now. So we do have a number of items we can go to.
  Mr. REID. One final question, Mr. President: What time do you expect 
the vote to be on Monday? We have people on our side, and I am sure on 
your side, who are interested in that.
  Mr. FRIST. Approximately 5 o'clock.
  Mr. REID. I would just say, if we could make that 5:15, it helps one 
of our Senators.
  Mr. DASCHLE. Mr. President, I thank the distinguished assistant 
Democratic leader. I know that our Republican colleagues are hoping to 
adjourn shortly so they can accommodate their schedule. I want to 
respect that, but I know Senator Biden also wanted to come to the floor 
for some brief remarks with regard to North Korea, which is why I 
originally came to the floor.
  I wish to comment for a moment and thank the distinguished Senator 
from Nevada for his comments on the Estrada nomination. I think it may 
arguably be the most serious of all nominations which has been 
presented to the Senate by this administration--the seriousness of 
knowing so little with so little information having been provided, and 
with so significant a level of intransigency with regard to a 
willingness to provide the information we seek. We have a 
constitutional obligation to advise and consent.
  For the life of me, I don't understand how anybody could be called 
upon to vote on the qualifications of this or any other individual with 
so little information provided, and with the arrogance demonstrated by 
this nominee and in this case by the administration with regard to our 
right to that information.
  I am very troubled. I know when you look at the array of Hispanic 
organizations that have now publicly declared their opposition to a 
Hispanic nominee, you get some appreciation of the depth of feeling 
about this issue, about this candidate, about his qualifications, and 
about the stakes as we consider filling a position in the second 
highest court in the land.
  I will have a lot more to say about this next week.

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