[Congressional Record (Bound Edition), Volume 149 (2003), Part 2]
[Senate]
[Pages 2640-2684]
[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

  The ACTING PRESIDENT pro tempore. The Senate will now resume 
executive session and the 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.
  Mr. HATCH. Mr. President, of course, there are not going to be any 
games played. Nobody on this side wants to play games. This is 
important stuff. We understand there are those on the minority side who 
do not agree with this nomination. They have a right to not agree. But 
they have a right to vote against Miguel Estrada if that is what they 
really think is right.
  On the other hand, should there be a filibuster it will be the first 
filibuster in history against an inferior court, the circuit court of 
appeals or the district court.
  With regard to the 100 nominees that made it through in the last few 
years, that was a very good record, primarily just for judges. I am 
more interested in how many are left over. I am more interested in how 
we reduce the number of holdovers. Let us hope we can do that. I am 
going to do everything in my power to do it, and I hope I will have the 
cooperation of those on the minority side in trying to do what is 
really our job; that is, to put the President's--whoever the President 
is--nominees through. We always have someone on both sides who wants to 
slow the process down. We understand that. But hopefully we can get 
people of goodwill to not slow the process down and to not filibuster 
this wonderful Hispanic judge named Miguel Estrada.
  Mr. President, in that regard, I ask unanimous consent that a 
Washington Post editorial entitled ``Filibustering Judges'' be printed 
in the Record.
  There being no objection, the material was ordered to printed in the 
Record, as follows:

                [From the Washington Post, Feb. 5, 2003]

                          Filibustering Judges

       ``Tell Senators: Filibuster the Estrada Nomination!'' cries 
     the Web site of People for the American Way. The subject is 
     President Bush's nomination of Miguel A. Estrada to a seat on 
     the U.S. Court of Appeals for the DC Circuit. Democratic 
     senators may not need much encouragement. With the Estrada 
     nomination due to come to the Senate floor today, they are 
     contemplating a dramatic escalation of the judicial 
     nomination wars. They should stand down. Mr. Estrada, who is 
     well qualified for the bench, should not be a tough case for 
     confirmation. Democrats who disagree may vote against him. 
     They should not deny him a vote.
       Senators have on occasion staged filibusters on judicial 
     nominees, but none has ever prevented a lower-court nominee's 
     confirmation, the White House says. And that's good, It's 
     hard enough to get swift Judiciary Committee action and floor 
     votes for judicial nominees. The possibility of a filibuster 
     probably checks rash or overly partisan nominations; one can 
     imagine candidates so wrong or offensive that the tactic 
     would be justified. but a world in which filibusters serve as 
     an active instrument of nomination politics is not the either 
     party should want.
       Mr. Estrada's nomination in no way justifies a filibuster. 
     The case against him is that he is a conservative who was 
     publicly criticized by a former supervisor in the Office of 
     the Solicitor General, where he once worked. He was not 
     forthcoming with the committee in its efforts to discern his 
     personal views on controversial issues--as many nominees are 
     not--and the administration has (rightly) declined to provide 
     copies of his confidential memos from his service in 
     government. Having failed to assemble a plausible case 
     against him, Democrats are now arguing that this failure is 
     itself grounds for his rejection--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. Such circular logic should not stall Mr. 
     Estrada's nomination any longer. It certainly doesn't warrant 
     further escalating a war that long ago got out of hand.

  Mr. HATCH. I would like to take a few moments this morning to respond 
to some of the allegations that Miguel Estrada lacks support in the 
Hispanic community. Nothing could be further from the truth.
  Young men and women from Mexico, Central and South America, who come 
to the United States--sometimes with their parents, sometimes without--
have helped to build this country. There is no question about it. They 
have mined our mines. They have built our railroads. They have worked 
on the roads. They have advanced themselves in education. They are now 
doctors, lawyers, and filling positions in virtually every walk of life 
in this country, and rightly so.
  They struggled in a foreign country to make a better life, and the 
gifts they have brought to this Nation are what has made this Nation a 
great nation. And they still do today. The Hispanic community leaders I 
have worked with over the years consider Miguel's success as their 
success. And they know that all young Latinos across the country--
whether they live in border town colonia, a barrio in Chicago, or 
Miami's Calle Ocho--need role models such as Miguel to emulate.
  Miguel arrived in this country with his mother at age 14. He lived in 
a modest home, and his parents worked hard to send him to private 
schools. There is no crime in that. In fact, many Latino families work 
two and three jobs just to be able to send their children to private 
schools, which are usually Catholic schools. That is no crime. In fact, 
the Catholic schools are among the best schools in this country. I do 
not blame any parent for wanting to send their children to Catholic 
schools. They learn a lot of important things in Catholic schools. It 
is a sign of a Hispanic parent's love and dedication, and it is a 
manifestation of Latino values at their best.
  Latino groups that oppose Miguel's confirmation--notably, the Mexican 
American Legal Defense and Education Fund, the Puerto Rican Legal 
Defense and Education Fund, and the Democratic Congressional Hispanic 
Caucus--argue that the courts lack Hispanic representation. That is 
always interesting to me. They are constantly arguing that there are 
not enough Hispanics on our Federal courts, but they are not looking 
for diversity--these three groups. They only want Hispanic judges who 
look, think, and act like them. That is pretty apparent in this case.
  A good judge is one who understands that there are competing 
interests which must be balanced within the rule of law. Miguel Estrada 
is exceedingly capable of making that assessment. And every Latino in 
this country--and every person in this country--ought to appreciate 
that fact and ought to be very proud of what this young man has done 
with his life. Of course, he wants to administer the law fairly. And I 
know he will.
  A review of the Congressional Hispanic Caucus's statement in 
opposition is most disappointing to me. It was issued in advance of 
Miguel Estrada's hearing. My colleagues in the House, who have argued 
persuasively for a fair process, decided that Miguel Estrada was not so 
entitled. They pronounced judgment beforehand. But that should not 
surprise us. That caucus is a Democratic machine, or a Democratic Party 
machine, to be a little more accurate.
  The Republican members of the caucus were forced out because they did 
not think and act like their Democratic counterparts. So you have a 
purely partisan Democrat Party machine over in the House that did not 
even listen to Estrada before they made this pronouncement and this 
judgment.
  There are no Republican members of the Congressional Hispanic Caucus. 
You would think they would want to get together with Republicans and, 
in a joint way, in a bipartisan way, work not only for and on behalf of 
the Hispanic community, but for and on behalf of everybody in this 
country.

[[Page 2641]]

  The Democrat Congressional Hispanic Caucus may oppose Miguel Estrada, 
but the Republican Congressional Hispanic members--Lincoln Diaz-Balart, 
Ileana Ros-Lehtinen, Henry Bonilla, Mario Diaz-Balart--they all support 
his confirmation, and they support him very strongly, as they should--
and so should our Democratic friends in the House.
  Ordinarily, I would think they would come out of their chairs in 
leading the charge to try to help Miguel Estrada, but, for some reason, 
they are not doing it. And I suspect that the reason is Miguel does not 
look, think, and act like they do.
  There is a lesson in this, and it is a hard one to take. Hispanic 
Americans have fought hard to counter injustices, to demand respect and 
equality of opportunity. They have fought hard all these years they 
have been in this country. Indeed, the second oldest Hispanic 
organization in the country, the American GI Forum, came into existence 
in 1948, when a fallen war hero was refused a proper burial in Texas 
because he was a Mexican. Similarly, LULAC, established in 1927, and 
the National Council of La Raza, established in 1968, came into 
existence to ensure equality of opportunity for all Hispanic Americans, 
leaving a legacy for generations to come.
  But today that legacy is threatened as this community, once united by 
a common vision and a shared experience--sadly, one of discrimination--
finds itself divided along party lines in what appears to be purely 
political purposes--at least on the side of those who oppose Miguel 
Estrada. In the process, it is subjecting one of their own, Miguel 
Estrada, to a ``Latino'' litmus test, and subjecting him to the very 
type of discrimination they have fought so hard to eradicate. There is 
no place in the judicial nomination process for single litmus tests.
  I have taken that position the whole time I have been on the Senate 
Judiciary Committee, or at least have tried to. Others may disagree 
with me, but I do not believe any single litmus test should stop a 
person who is otherwise qualified. And Miguel Estrada is not only 
qualified, Miguel Estrada is one of the most qualified people we have 
ever seen to come before the Judiciary Committee.
  I think the judicial process is one that must remain free of single-
issue litmus tests and politicization, in particular. I urge groups 
such as MALDEF and the Congressional Hispanic Caucus to think back a 
couple of years to the pending nomination of Richard Paez. I was not 
happy with the way that was handled, and I was the one who was trying 
to get him through.
  As chairman of the Judiciary Committee, I worked hard to ensure the 
process was fair. In the early stages it was not fair, in my opinion. 
He deserved a vote, and I made sure he got one. It took years to get 
it. And there were some reasons--some legitimate reasons--why some 
opposed Paez. I do not see one legitimate reason why anybody would 
oppose Miguel Estrada. Miguel deserves a vote.
  Reasonable people can disagree on how one might vote in this 
instance, but I call upon these organizations to step forward with the 
same fervor and intensity that drove their campaigns to call for a vote 
for Richard Paez. I urge them and my colleagues to recommit to a 
process that is fair, that is free from double standards and partisan 
politics.
  Look at this I have in the Chamber. Yes, there are three 
organizations--and there may be a few more; they are certainly all the 
left-wing anti-Bush judge organizations that crop up on every circuit 
court of appeals nominee--that are opposed to Miguel Estrada. But the 
Latino people are for him, and they do not like these games being 
played.
  Some have suggested he is not Hispanic enough. That is a joke: He is 
not Hispanic enough; he has not been in this country long enough--even 
though he has been here since he was 14 years of age, and earned his 
way, and graduated with honors from Columbia University, and in the 
highest part of his class in law school at Harvard University. Not many 
people can claim that.
  He worked for two judges, and yet one of the arguments is that he 
does not have any judicial experience. We, more or less, blew that away 
last week when we brought out how many judges, great judges in our 
country's history, never were judges before they were nominated and 
confirmed.
  But what they ignore is that Miguel Estrada has been a clerk for two 
judges. His judicial experience is a lot more than that of most people 
who come through the Judiciary Committee, I will tell you that right 
now. But it is not critical that a person have judicial experience. It 
may be helpful in certain cases, but it is not critical. Some of the 
greatest judges in history--and I will just cite Brandeis as an 
illustration--never had prior judicial experience other than 
peripherally. And in Miguel's case, he was actually a law clerk for two 
major Federal judges.
  He clerked for the U.S. Supreme Court. Talk about judicial 
experience. How many have clerked for the U.S. Supreme Court? Not very 
many. You can go down through the ridiculous arguments they are using 
against him, and it is pitiful. This man has the highest rating--I 
might add it is unanimously the highest rating--of the American Bar 
Association, which, according to my colleagues on the other side when 
they were upset about some of the others, was their gold standard.
  I have to admit I did not think the American Bar Association did a 
very good job in bygone days. I have to admit today I think they are 
doing a better job, and I support them for it. I applaud them for it. 
But it is not easy to get a unanimously well-qualified, highest rating 
from the ABA, and that is a lot more than some of the critics would 
ever get.
  Let's go to the Clinton circuit judges with no prior judicial 
experience:
  Judge David Tatel, Judge Merrick Garland, both on the DC Circuit, 
where Miguel Estrada will go; Sandra Lynch, First Circuit; Guido 
Calabresi, Second Circuit Court of Appeals; Robert Sack, Second 
Circuit; Sonia Sotomayor, Second Circuit; Robert Katzman, Second 
Circuit--these are all pretty darn good judges--Thomas Ambro, Third 
Circuit; Blane Michel, Fourth Circuit; Robert King, Fourth Circuit; 
Karen Nelson Moore, Sixth Circuit; Eric L. Clay; Dianne Wood; Kermit 
Buye; Eighth Circuit; Sidney Thomas; M. Margaret McKowen, Ninth 
Circuit; William Fletcher, Ninth Circuit; Raymond Fisher, Ninth 
Circuit; Ronald Gould; Marcia Berzon; Richard Talman, Ninth Circuit; 
John E. Rawlinson, Ninth Circuit; B. Robert Henry; Carlos Lucero; 
William Bryce on Federal Circuit; Arthur Gajarsa; Richard Lynn; Anthony 
B. Dyk.
  Many of these judges were appointed by Democratic Presidents--all 
without judicial experience and serving well in the circuit courts of 
this country. That is not even talking about the Judge Brandeis, and 
others who have served with such distinction throughout the years.
  I would like to go to the other chart. I will make one or two points 
there. I want to talk about those who support Miguel Estrada. These are 
great organizations:
  League of United Latin American Citizens, the oldest Hispanic 
organization in the country; Hispanic National Bar Association, which 
works very hard to try to get good Hispanics nominated in both parties; 
U.S. Hispanic Chamber of Commerce, one of the oldest and most 
prestigious Hispanic associations in the country; Association for the 
Advancement of Mexican Americans--they are all important to 
associations--the Latino Coalition; Mexican American Grocers 
Association; Hispanic Contractors Association; IntraAmerican College of 
Physicians and Surgeons; Congregacion Cristiana y Misionera ``Fey 
Alabanza''; American GI Forum; Casa De Sinaloense; Cuban American 
National Foundation; Hispanics Business Roundtable; Nueva Esperanza, 
Inc.; MANA, a national Latino organization; Cuban American Voters 
National Community; Cuban Liberty Council; Federation of Mayors of 
Puerto Rico; Puerto Rican American Foundation.
  I wonder why there is one Puerto Rican organization that is not for 
him when the rest are. It is not hard to see

[[Page 2642]]

why the Democrat-controlled Hispanic Caucus in the House is not for 
him--because they are partisan, and they are controlled, in large 
measure, in these matters by left-wing groups in Washington and are 
continually unfairly interfering with President Bush's nominees. They 
are against everybody President Bush nominates for the circuit court of 
appeals--or at least almost everybody. So far, my impression is that 
they are against every one of his circuit court nominees, unless they 
have been Democrats.
  This President has nominated more Democrats, as I understand it, than 
any Republican President in recent years, in order to reach out to 
Democrats and try to bring them along. They have been good people, and 
I have certainly supported them, as have I think all of my colleagues.
  Now, it is outrageous for some of these partisan Hispanic leaders to 
say that Miguel Estrada is ``not Hispanic enough'' or that he has no 
judicial experience and therefore he should not serve. Let's just think 
about that. He has no judicial experience; therefore, he should not 
serve. What does that say to all of the Hispanic lawyers in this 
country who don't have any judicial experience and might want to serve 
in the Federal circuit courts someday? It basically says you don't have 
a chance, in the eyes of the people who take that attitude, because you 
don't have any judicial experience--in spite of the fact that many 
Federal judges didn't have any experience and some of the greatest 
judges in history have not had judicial experience.
  Miguel Estrada had judicial experience in serving two Federal judges, 
one a Supreme Court Justice. I get a little tired of some of this 
``anti-Miguel-Estrada syndrome'' that seems to be going on. I know 
Miguel Estrada. He is a terrific human being, and he is qualified. He 
has been given the highest rating the ABA gives. He has the support of 
virtually all the Hispanic groups in the country, except for the few I 
have mentioned. Miguel Estrada would make a wonderful Federal Circuit 
Court of Appeals judge. He would add a great deal to the Circuit Court 
of Appeals for the District of Columbia, which only has 8 judges of the 
12 seats there right now, and they cannot keep up with the workload.
  We ought to all be working hard to put Miguel Estrada on the bench. I 
am afraid there are those who don't want him there because they are 
afraid he would be on the fast track to the Supreme Court. That may be, 
but the fact is we are talking right now of the Circuit Court of 
Appeals for the District of Columbia.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized.
  Mr. LEAHY. Mr. President, I have listened with interest as my friend 
from Utah has made arguments against the Democrats using the old thing 
of the straw man debate. I have heard a lot of arguments the Senator 
from Utah says we make against Mr. Estrada, but I have not heard them 
from us. I did hear some interesting things. He has expressed his 
support for Judge Richard Paez. After blocking it for several years, 
the Senator from Utah did vote for him. I commend him for that. It is 
interesting, however, that he does not speak of the strong opposition 
to Judge Paez by the Republicans. A very large number of their votes 
were against him, and the fact that he was blocked by the Republicans 
year after year after year, while the nominee was here, that, the 
Senator from Utah suggests, is legitimate; whereas there seems to be a 
strong suggestion that if Democrats were to talk only a few days about 
Mr. Estrada, and some may even vote against him, that is not 
legitimate.
  I also note that it is easy to accept the arguments if you don't put 
all the facts forth. For example, the charge of the distinguished 
Senator from Utah--take one judge, Sonia Sotomayor of the Second 
Circuit. He puts her down as a Clinton circuit judge with no prior 
judicial experience. In fact, she did have prior judicial experience. 
She had been appointed originally by the first President Bush as a 
Federal court judge.
  In an example, when time and time and time again President Clinton 
nominated people for the court of appeals and other judicial nominees 
who had been appointed by Republican Presidents--something we have 
never seen in this administration and probably won't--but I know of at 
least three members of the Second Circuit Court of Appeals who were 
appointed by Republican Presidents versus district court judges, two by 
President Bush, one by President Reagan. All were then elevated to the 
court of appeals by President Clinton.
  Judge Sotomayor, of course, was held up by Republicans for a 
considerable period of time, even though she had originally been 
appointed to be a Federal judge by President Bush, contrary to what the 
chart of my friends, the Republicans, says. It is in absolute 
contradiction to what they said. She was blocked for a very long time 
by Republicans, and when she finally was able to get a vote, 29 voted 
against her.
  Let's be honest about what happened. Judge Sotomayor, a superb judge, 
was appointed first by a Republican to the district court bench, not, 
as my friends say, someone with no experience, and President Clinton 
nominated her to the Second Circuit Court of Appeals. She was blocked 
initially by the Republicans, and they finally allowed it through, but 
29 voted against her.
  With Judge Paez, 39 voted against him. In fact--this is an 
interesting fact on Judge Paez. I wonder if everybody is aware of the 
fact that initially Republicans filibustered a motion to proceed to his 
appointment to the Circuit Court of Appeals. I heard mention somewhere 
that this never happened, that there were not any kind of delaying 
tactics on district court or Circuit Court of Appeals nominees, but on 
a motion to proceed, something Democrats did not block in any way with 
Judge Estrada, Republicans did. Fifty-three of them voted against that 
motion. I am surprised the Senator from Utah does not remember that 
fact because he is one of the 53 who voted against proceeding to bring 
up Judge Paez. I say this just to make sure we have accuracy in our 
debate.
  Debate on this nomination began last week on Wednesday, within 
seconds of the Senate adopting S. Res. 45, to honor the Space Shuttle 
Columbia astronauts, and after we observed a moment of silence. Many of 
us were not on the floor Thursday because we were attending a memorial 
for the space shuttle astronauts at the National Cathedral.
  I thank those who did participate in the debate last week. I commend 
to the Senate and to the American people the remarks of Senator Reid, 
Senator Kennedy, and Senator Schumer, each of whom added important 
dimensions and perspectives to this debate.
  I also wish to take a personal moment to commend the senior Senator 
from Nevada, Harry Reid. While he is not a member of the Judiciary 
Committee, he spoke so eloquently on this subject and was able to carry 
on the debate while others of us, as I said, had to be at the very 
sorrowful memorial service for our astronauts.
  I had hoped that at some point in the last 2 years or so we would 
have seen an effort on the part of the President and others to seek to 
unite rather than divide. Instead, we see a continuation of dividing 
the American people, as deeply as we have seen the 19 members of the 
Judiciary Committee divided. Many of us would like to know the record, 
would like to have a strong confidence in the type of judge Mr. Estrada 
will be, and be able to vote in favor of this nomination.
  Since I have been in the Senate, I have voted on hundreds of 
nominees--Republican nominees--to the Federal judiciary. I suspect I 
have voted for more Republican nominees to the Federal judiciary than 
most of my friends on the other side of the aisle have voted for 
Democratic nominees. I do not need any lectures on how we should be 
bipartisan. In fact, when I was chairman, we were able to get 100 
nominations through the committee and to the floor, any one of which of 
President Bush's nominees could have been stopped simply by not 
bringing the person up for a vote. We got through 100. Whether I agreed 
with or

[[Page 2643]]

was against the person, I felt that at least we had a record so we knew 
what this person thought. We are being asked, after all, to uphold our 
oath of office and vote to confirm somebody to a lifetime position. The 
reason we are asked to do that is the judiciary is supposed to be 
outside the political realm. The judiciary is supposed to be 
independent and is supposed to be for all Americans and is supposed to 
be lifetime positions, positions for which most of us who vote on them 
will not be in the Senate for the full terms of these judges. So we 
have to at least look at the nominees if we are going to answer to the 
American people. There are 275 million Americans. They expect an 
independent Federal judiciary. They know this country has a reputation 
of having the most independent Federal judiciary, and there are only 
100 of us, however, who can represent those 275 million Americans and 
use our imprimatur and our vote to confirm. We put forth an imprimatur 
for the whole country that this is somebody who will maintain the 
independence of the judiciary and will not be somebody who comes to the 
Federal bench with an ideological agenda, and we say that because we 
have looked at the people.
  That is not the record before the Judiciary Committee, and it is not 
the record before the Senate on Miguel Estrada. I remain concerned he 
is going to be an activist on the court, especially when one looks at 
the very determined efforts, not only of the nominee but of the 
administration, to keep information from the Senate. It is typical of 
so many of these nominees. The White House has made absolutely no 
effort--absolutely no effort--to try to work out any kind of a 
bipartisan understanding on these judges. In fact, it has done just the 
opposite. They have stonewalled any request for information.
  Frankly, I am sorry my friends on the other side of the aisle are 
willing to accept this with absolutely no information, even to having a 
vote in the committee with several members of the committee never even 
having sat in on what hearing there was on Miguel Estrada. It is a case 
of ``don't ask because we know you won't tell, so we will just go along 
with it.'' ``Don't ask, you're not going to tell, we'll just go along 
with it.''
  There was an interesting editorial cartoon in Roll Call this morning 
showing, like a meatpacking business, Federal judges coming down this 
assembly line and the Republicans on the Senate Judiciary Committee 
stamping OK, OK, OK, similar to the way beef is stamped for the USDA.
  Unfortunately, that does not help the American public. People can 
vote for or against Mr. Estrada as they want, but they should at least 
have some idea of on what they are voting, not this ``don't ask because 
we won't tell.''
  We are being asked to consider a nominee with no judicial experience, 
with little relevant practical experience, who is opposed by many 
Hispanic leaders and organizations and many other Americans.
  While he counts Justice Scalia, former Judge Kenneth Starr, and Ted 
Olson among his friends and mentors, information about his 
decisionmaking or what his values are, what he brings to this court, 
are locked away from any Senate consideration.
  Last week I met with leaders of the Congressional Hispanic Caucus, 
the Mexican American Legal Defense and Education Fund, the Puerto Rican 
Legal Defense and Education Fund, Hispanic labor leaders, and they all 
told me they oppose this nomination. I was impressed by that because 
these are leaders who have come to me and other Senators over the years 
and have strongly backed Hispanic judicial nominees.
  We have 10 Hispanic judges on the courts of appeals now. Eight of 
them were appointed by President Clinton. I know they were all backed 
by these Hispanic leaders. In fact, there were a number of other 
Hispanic judges who were also nominated by President Clinton who were 
also backed by the organizations, and unfortunately, the Republicans 
would not allow them to even come to a vote in the committee, say 
nothing about coming to a vote on the floor of the Senate.
  Notwithstanding the number who were blocked by Republicans from ever 
even coming to a vote, President Clinton did appoint more Hispanics to 
the Federal bench than any President before him.
  I ask unanimous consent to print in the Record letters in opposition 
to Mr. Estrada from MALDEF and other Hispanic organizations.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Mexican American Legal Defense and Educational Fund and 
           Southwest Voter Registration and Education Project,
                                                 January 29, 2003.
     Re opposition to the nomination of Miguel Estrada to the D.C. 
         Circuit Court of Appeals.

     Hon. Orrin Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman and Ranking Member: On behalf of the 
     Mexican American Legal Defense and Educational Fund (MALDEF) 
     and Southwest Vote Registration and Education Project 
     (SVREP), we write you on a matter of great importance to not 
     only the Latino community but all Americans--the nomination 
     of Miguel Estrada to the D.C. Circuit Court of Appeals. As 
     you may know, our organizations weigh in on judicial 
     nominations with varying frequency; although we are 
     consistently and firmly committed to the view that the 
     selection of federal judges for life-long appointments who 
     will serve as the balance to the legislative and executive 
     branches is critically important to our community. As a 
     community, we recognize the importance of the judiciary, as 
     it is the branch to which we have turned to seek protection 
     when, because of our limited political power, we are not able 
     to secure and protect our rights through the legislative 
     process or with the executive branch. This has become perhaps 
     even more true in light of some of the actions Congress and 
     the executive branch have taken after 9/11, particularly as 
     these actions affect immigrants.
       After an extensive review of the public record that was 
     available to us, the testimony that Mr. Estrada provided 
     before the Senate Judiciary Committee, and the written 
     responses he provided to the Committee, we have concluded at 
     this time that Mr. Estrada would not fairly review issues 
     that would come before him if he were to be confirmed to the 
     D.C. Circuit Court of Appeals. As such, we oppose his 
     nomination and urge you to do the same.
       While the appointment to any Federal bench is important to 
     our community, appointments to circuit courts become even 
     more important when the Supreme Court accepts fewer than 100 
     cases a year to hear. Thus, circuit courts are often the last 
     arbiters on determining the rights of individuals and 
     communities. The D.C. Circuit is perhaps even more important 
     than the other circuit courts because of the role it plays in 
     reviewing an extensive amount of Federal agency actions, from 
     regulatory actions to the orders and decisions of various 
     Commissions and Boards. It has been reported that nearly half 
     of the D.C. Circuit's caseload consists of appeals from 
     federal regulations or decisions.
       In the memorandum attached, we outline a number of the 
     areas which lead us to oppose Mr. Estrada's nomination. Our 
     research and analysis cover a wide array of constitutional 
     legal issues that affect not only the Latino community, but 
     all Americans, including the First Amendment, the Fourth 
     Amendment, the Fifth Amendment (Miranda), and due process 
     clauses of the U.S. Constitution. Our review also covers such 
     additional issues as racial profiling, affirmative action 
     programs, immigration, and abusive or improper police 
     practices, particularly when those practices are adopted 
     under the ``broken windows'' theory of law enforcement. 
     Finally, our critique of Estrada includes an analysis of his 
     views on such issues as standing for organizations 
     representing minority interests, claims by low-income 
     consumers, labor rights or immigrant workers, and the right 
     of minority voters under the Voting Rights Act.
       MALDEF sent the full Senate Judiciary Committee and the 
     White House a memorandum outlining these concerns prior to 
     Mr. Estrada's hearing. We believe the burden to address the 
     concerns we raised rested with the nominee, Mr. Estrada, and 
     the Judiciary Committee gave Mr. Estrada ample opportunity to 
     address them. Ultimately, Mr. Estrada had the affirmative 
     obligation to show that he would be fair and impartial to all 
     who would appear before him. After reviewing the public 
     record, the transcript of the hearing, and all written 
     responses submitted by Mr. Estrada, we conclude that he 
     failed to meet this obligation. He chose one of two paths 
     consistently at his hearing and in his written responses: 
     either his responses confirmed our concerns, or he chose not 
     to reveal his current views or positions.
       We must in good conscience oppose the nomination of Miguel 
     Estrada to the D.C.

[[Page 2644]]

     Circuit Court of Appeals. Based on the record available, we 
     conclude that he would not fairly review matters before him 
     as a judge in a number of areas that will have a great impact 
     on our community. We urge you to oppose this nomination to a 
     life-long appointment to the second most important court in 
     the country. The power is too great to place in the hands of 
     someone who has not shown that he would be fair in all cases 
     that come before him.
           Sincerely,
     Antonio Gonzalez,
       President, Southwest Voter Registration and Education 
     Project.
     Antonia Hernandez,
       President and General Counsel, Mexican American Legal 
     Defense and Education Fund.
                                  ____

                                    Mexican American Legal Defense


                                         and Educational Fund,

                                 Washington, DC, January 27, 2003.

        Press Statement by Marisa J. Demeo, Regional Counsel, DC


   maldef expresses serious concerns about state of federal judicial 
 nominations--announces opposition to nomination of miguel estrada to 
                    the dc circuit court of appeals

       (Washington, DC).--The U.S. government system is set up as 
     a checks and balances system, among the executive, 
     legislative and judicial branches of our government. Since 
     the founding of this country, the interests and rights of 
     minorities, whether they be religious minorities, racial 
     minorities, or other groups of people who do not have the 
     power of the majority on their side, have been difficult to 
     protect. During the civil rights struggle in this country, it 
     was the courts which ensured that the values contained in our 
     Constitution were preserved even for those who did not have 
     equal representation or an equal voice in the legislative or 
     executive process.
       Today, Latinos number 37 million residents in the U.S. 
     Despite this growing demographic presence, we have never had 
     someone serve as the President of this country, and we remain 
     the only minority group that is underrepresented in our 
     federal work force. We have no Latinos serving in the Senate, 
     and only twenty-two Latinos in the House of Representatives. 
     At the state level, we have a little more representation but 
     still are significantly underrepresented. For example, out of 
     all the Governors in this country, only one is Latino.
       MALDEF serves as the lawyer for the Latino community across 
     this country in our courts. As such, we have established two 
     major goals for our community to shape the federal 
     judiciary--often, the only place where we have a chance to be 
     heard and have our rights protected. The first goal is to 
     increase the presence of Latino lawyers on the federal bench. 
     Only about 5% of those serving as judges in our federal 
     courts are of Hispanic background. When we number 12.5% of 
     the population, there is a lot of room for improvement. On 
     this score, President Bush has to do a better job.
       Our second goal, which is as important as the first, is 
     that we want judges appointed to the federal courts who will 
     be fair to our community and the issues we must bring before 
     the courts. The issues we must bring to the court are often 
     complex and controversial--including such issues as 
     discrimination, affirmative action, racial profiling, and use 
     of excessive force by law enforcement. We need judges who 
     will approach these issues by objectively and fairly 
     evaluating the law and the facts, and not judges who come to 
     the courtroom already convinced that our arguments are 
     without merit. President Bush has failed our community on 
     this score as well, as too many of his nominees come to the 
     process with set ideological beliefs that they cannot set 
     aside.
       The most difficult situation for an organization like mine 
     is when a President nominates a Latino who does not reflect, 
     resonate or associate with the Latino community, and who 
     comes with a predisposition to view claims of racial 
     discrimination and unfair treatment with suspicion and doubt 
     instead of with an open mind. Unfortunately, the only Latino 
     who President Bush has nominated in two years to any federal 
     circuit court in the country is such a person. President Bush 
     nominated Miguel Estrada to the D.C. Circuit Court of 
     Appeals. After a thorough examination of his record, his 
     confirmation hearing testimony, and his written answers to 
     the U.S. Senate, we announce today our formal opposition to 
     his nomination. We cannot in good conscience stand on the 
     sideline and be neutral on his nomination or others like his. 
     We oppose his nomination and that of others that will prevent 
     the courts from serving as the check and balance so 
     desperately needed by our community to the actions being 
     taken by the executive and legislative branches.
                                  ____

                                      Washington, DC, May 1, 2002.
     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Mr. Chairman: As national Latino civil rights 
     organizations, we write on a matter of great importance to 
     U.S. Latinos, and all Americans--the nomination of Miguel 
     Estrada to the D.C. Circuit Court of Appeals. Although 
     historically we have expressed our views on judicial nominees 
     with different levels of frequency, we are united in our view 
     that all federal judicial appointments are important because 
     they are life-long appointments, because they are positions 
     of great symbolism, and because federal judges interpret the 
     U.S. Constitution and federal laws serving as the balance to 
     the legislative and executive branches of the federal 
     government. While the Supreme Court is the highest court, the 
     appellate courts wield considerable power. During its most 
     recent term, the Supreme Court heard only 83 cases, while the 
     circuit courts decided 57,000 cases. As a practical matter, 
     circuit courts set the precedent in most areas of federal 
     law.
       We are united at this time around our belief that Mr. 
     Estrada's nomination deserves full, thoughtful, and 
     deliberate consideration. The President proposes to place Mr. 
     Estrada, who has no judicial experience, on arguably the 
     single most important federal appeals court to decide a 
     myriad of statutory and regulatory issues that directly 
     affect the Latino community. Every appointment to a powerful 
     court is important as we recently witnessed in the Supreme 
     Court's 5-4 decision in Hoffman Plastics that stripped 
     undocumented workers of certain labor law protections. This 
     decision, which inevitably will result in increased 
     exploitation of the undocumented, as well as weaker labor 
     standards for all low-wage workers, underscores the 
     importance of nominations such as this one, not just to 
     Hispanics, but all Americans.
       This decision comes on the heels of a series of Supreme 
     Court decisions which, in our view, have unnecessarily and 
     incorrectly narrowed civil rights and other protections for 
     Latinos. While we look to see if judicial nominees meet 
     certain basic requirements such as honesty, integrity, 
     character, temperament, and intellect, we also look for 
     qualities that go beyond the minimum requirements. We look to 
     see if a nominee, regardless of race or ethnicity, has a 
     demonstrated commitment to protecting the rights of ordinary 
     U.S. residents and to preserving and expanding the progress 
     that has been made on civil rights, including rights 
     protected through core provisions in the Constitution, such 
     as the Equal Protection Clause and Due Process Clause, as 
     well as through the statutory provisions that protect our 
     legal rights.
       We are aware that some are demanding a commitment from you 
     and the Judiciary Committee to announce a date certain for 
     action on Mr. Estrada's nomination. We agree with the 
     proposition that every nominee deserves timely consideration. 
     For this reason, we urged the Senate to act on the nomination 
     of Judge Richard Paez to the Ninth Circuit Court of Appeals, 
     who was forced to wait for four years before being confirmed. 
     We also believe, however, that if a nominee's record is 
     sparse the Judiciary Committee should allow sufficient time 
     for those interested in evaluating his record, including the 
     U.S. Senate, to complete a thorough and comprehensive review 
     of the nominee's record. We therefore respectfully request 
     that you consider scheduling a hearing no earlier than 
     August, prior to the scheduled recess. This leaves sufficient 
     time for action prior to adjournment if his record is strong 
     enough to receive substantial bipartisan support.
       In the interim, we pledge to conduct a fair and thoughtful 
     assessment of Mr. Estrada's record, and to communicate our 
     views on his nomination to you, Ranking Member Hatch, and 
     other Committee members in a timely manner.
           Sincerely,
     Antonia Hernandez,
       President and General Counsel, Mexican American Legal 
     Defense and Educational Fund.
     Manuel Mirabal,
       President, National Puerto Rican Coalition.
     Raul Yzaguirre,
       President, National Council of LaRaza.
     Juan Figueroa,
       President and General Counsel, Puerto Rican Legal Defense 
     and Education Fund.
     Arturo Vargas,
       Executive Director, National Association of Latino Elected 
     and Appointed Officials.
                                  ____

         California LaRaza Lawyers & Mexican American Legal 
           Defense and Educational Fund,
                                               September 24, 2002.
     Hon. Patrick Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: On behalf of Latino legal and civil 
     rights organizations, we write you on a matter of great 
     importance to not

[[Page 2645]]

     only the Latino community but all Americans--the nomination 
     of Miguel Estrada to the D.C. Circuit Court of Appeals. As 
     you may know, our organizations weigh in on judicial 
     nominations with a variety of frequency; however, we are all 
     firmly committed to the view that the selection of federal 
     judges for life-long appointments who will serve as the 
     balance to the legislative and executive branches is 
     critically important to our community. As a community, we 
     recognize the importance of the judiciary, as it is the 
     branch to which we have turned to seek protection when, 
     because of our limited political power, we are not able to 
     secure and protect our rights through the legislative process 
     or with the executive branch. This has become even more true 
     in light of some of the actions of the legislative and 
     executive branches after 9/11 as these actions affect 
     immigrants in particular.
       After an extensive review of the public record that was 
     available to us, we have concluded at this time that we have 
     serious concerns about whether Mr. Estrada would fairly 
     review issues that would come before him if he were to be 
     confirmed to the D.C. Circuit Court of Appeals. While the 
     appointment to any federal bench is important to our 
     community, appointments to circuit courts become even more 
     important when the Supreme Court accepts fewer than 100 cases 
     a year to hear. Thus, circuit courts are often the last 
     arbiters on determining the rights of individuals and 
     communities. The D.C. Circuit is perhaps even more important 
     than the other circuit courts because of the role it plays in 
     reviewing an extensive amount of federal agency actions, from 
     regulatory actions to the orders and decisions of various 
     Commissions and Boards. It has been reported that nearly half 
     of the D.C. Circuit's caseload consists of appeals from 
     federal regulations or decisions.
       Some of us have stated during the previous Administration 
     that we believe in a nominee's right to have a hearing. Many 
     of us pushed in the past for hearings, with mixed success, 
     for such Latino nominees as Richard Paez, Sonia Sotomayor, 
     Enrique Moreno and Jorge Rangel. We still believe it is right 
     to give a nominee a hearing once his or her public record has 
     been explored to the fullest extent possible. That is why we 
     support the Judiciary Committee's decision to have a hearing 
     on Mr. Estrada. This public hearing will give Mr. Estrada, 
     the Senate and the public a chance to hear from Mr. Estrada 
     himself about the concerns that we and others have about his 
     nomination.
       In the memorandum attached, we outline a number of the 
     areas which lead us to have our grave concerns about Mr. 
     Estrada's nomination. Based on our research, but is unclear 
     whether he would be fair to Latino plaintiffs as well as 
     others who would appear before him with claims under the 
     First Amendment, the Fourth Amendment, the Fifth Amendment 
     (Miranda), and the process clauses of the U.S. Constitution. 
     Further, we found evidence that suggests that he may not 
     serve as a fair and impartial jurist on allegations brought 
     before him in the areas of racial profiling, immigration, and 
     abusive or improper police practices where those practices 
     are adopted under the ``broken window theory'' of law 
     enforcement. We also have concerns about whether he would 
     fairly review standing issues for organizations representing 
     minority interests, affirmative action programs, or claims by 
     low-income consumers. We are also unsure, after a careful 
     review of his record, whether he would fairly protect the 
     labor rights of immigrant workers or the rights of minority 
     voters under the Voting Rights Act.
       We believe the burden to address these concerns lies with 
     the nominee, Mr. Estrada. The Judiciary Committee should ask 
     questions about these issues and give Mr. Estrada an 
     opportunity to address the concerns. Ultimately, Mr. Estrada 
     has the affirmative obligation to show that he would be fair 
     and impartial to all who would appear before him. We hope you 
     will be able to gather information at the hearing as to 
     whether he meets this affirmative burden.
       We look forward to the hearing and anticipate we could have 
     further recommendations to you once we have had a chance to 
     fully evaluate the answers that Mr. Estrada provides to the 
     Committee at the hearing and afterward.
           Sincerely,
     Chistopher Arriola,
       California LaRaza Lawyers.
     Antonia Hernandez,
       Mexican American Legal Defense and Educational Fund.

  Mr. LEAHY. Latino labor leaders made this point: They say Mr. Estrada 
is a stealth candidate whose views and qualifications have been hidden 
from the American people and from the Senate. He has refused to answer 
important questions about his views and his judicial philosophy. They 
say it would be simply irresponsible to put him on the bench, and that 
is true.
  To go back to some of the judges my good friend from Utah, the senior 
Senator from Utah, has talked about, Judge Richard Paez was a man 
strongly supported by his home State Senators. He was supported by 
every single Hispanic organization, and he was made to wait 1,500 days 
for a vote. I think a lesser person would have said: I am not going to 
stand, I am not going to do it. But with the very strong support he had 
from the Hispanic community, he did not want to let them down. He did 
not want to let down his family.
  I talked with him many times during that time and encouraged him to 
stay with it. Elections came and went and he held on. Finally, he was 
given a vote. President Clinton had to get reelected as President to 
have this happen. When we hear how great it was that they put him 
through finally, after 5 years of total humiliation, and that is 5 
years during which he was endorsed by every single Hispanic 
organization that spoke, he was allowed to come to a vote, but almost 
40 Republicans voted against him.
  I talked about Judge Sonia Sotomayor. This is somebody who had a 
unanimous well-qualified rating from the ABA, the highest rating 
possible. One would think this would have been a slam dunk. She was 
supported by every Hispanic organization. She had first been appointed 
to the Federal bench by the first President Bush. This should have been 
very easy, but every time we wanted to bring her up for a vote on the 
floor, there was an anonymous hold on the Republican side. Nobody 
wanted to step forward.
  I will step up and state my opposition to Miguel Estrada. I feel that 
is only fair. I do not believe in anonymous holds. But every time we 
tried to bring up Sonia Sotomayor, a person who is listed by my friend 
from Utah as being one of the marks of excellence, a Republican would 
put on an anonymous hold, not even come forward and say, look, I want a 
debate against this person.
  She finally came to a vote. Twenty-nine Republicans voted against 
this outstanding person. To his credit, my friend from Utah voted for 
her. I do appreciate that, and I complimented him at that time.
  Even though President Clinton appointed 80 percent of the Hispanic 
circuit judges that are now on the court, there would have been more. 
He appointed two from Texas to the Court of Appeals for the Fifth 
Circuit, Jorge Rangel and Enrique Moreno of Texas. What happened? No 
Republican voted against them, to their credit. But why? They never 
received a hearing or a vote. They were never allowed to come to a 
vote. So nobody had to vote against them. They were backed by every 
single Hispanic group that I know of.
  Before we say, oh, my gosh, what are we doing to this poor Hispanic 
American, here are two who were backed by every single Hispanic group, 
had high ratings, nominated to the Court of Appeals for the Fifth 
Circuit, and they were never allowed to have a vote.
  Christine Arguello of Colorado was nominated to the Tenth Circuit. As 
I recall, she was backed by every single Hispanic group there was. She 
was never allowed to have a vote.
  What I tried to do during the slightly over a year I was able to be 
chairman of the Judiciary Committee, I wanted to bring back some 
fairness to the confirmation process. I tried to address the vacancies 
we inherited as a result of a refusal to have votes on President 
Clinton's nominees. I brought a number of them forward. I also said I 
would not agree to this idea of anonymous holds, something that had 
blocked so many of these Hispanic judges.
  Late last week President Bush nominated one more Hispanic American to 
the Fifth Circuit. That is good; he has now nominated two, which is, of 
course, a fraction, two-thirds, of those who were blocked from votes 
during the last administration.
  It is not Senate Democrats who have created a confrontation over the 
Estrada nomination. It begins on the other end of Pennsylvania Avenue. 
I told this to the distinguished majority leader again this morning, 
that I have tried to work with the White House to see if there is some 
way we might move this process back to the kind of bipartisan process 
it was when I first came to the Senate, and that it was under

[[Page 2646]]

both Republican and Democratic leadership for a long time but which it 
is not now.
  I have urged the White House to make an effort to unite rather than 
divide and then we might go somewhere, but there is a deafening silence 
from the other side of the Pennsylvania Avenue. I do not think they 
really care. I think they see court packing as being an answer to 
right-wing ideologues. I think they see that there should be a 
political move on the major Federal courts that, even though that would 
destroy their independence, even though that would diminish 
substantially the integrity of the Federal courts, they think it should 
be an ideological court packing.
  We see this coordinated effort to impose a narrow ideology on our 
Federal courts. The President campaigned saying that Justices Scalia 
and Thomas are his model nominees, and that is what he would use as a 
model for whomever he appoints. The Estrada nomination is evidence of 
that. Justice Scalia particularly was a nominee who is not only 
strident in his views but refused to share them with the Senate before 
his confirmation. Senators on both sides of the aisle stood up and said 
they were concerned with this stonewalling and they would not stand for 
it in the future. At least one side of the aisle has stuck with that.
  Now, last year there was a panel discussion at the Federalist Society 
luncheon in which Lawrence Silberman and others discussed the strategy 
of saying nothing in confirmation hearings. The report was that Judge 
Silberman offered the same advice he had given Antonin Scalia when 
Scalia was nominated to the Supreme Court in 1986: Keep your mouth 
shut. Mr. Estrada has followed that to the letter.
  I ask, why is the record for the Senate's consideration being kept so 
thin? The answer is, so the White House can have it both ways. They 
choose nominees based on narrow judicial ideology but insist the Senate 
proceed without considering it and, if possible, without knowing it. 
Secrecy and intimidation are the preferred methods of operation.
  Anyone who had any remaining doubt about the criteria used by the 
White House to select judicial nominees need only consider the 
admissions, including news reports over the last couple of weeks 
following the reports in late January of Robert Novak and White House 
Counsel Alberto Gonzales's role in crafting the administration's brief 
opposing the University of Michigan affirmative action case. There have 
been a series of reports of a ``loud whispering campaign'' in which 
right-wing conservatives touted Miguel Estrada as a safer, more 
reliable, conservative Hispanic for the President to nominate to the 
Supreme Court in lieu of Alberto Gonzales.
  Why? Pure and simple: Ideology; and a belief that you can nominate 
somebody who will vote not as an independent member of the Judiciary 
but as a Republican and--more than that--be part of the small, very 
conservative coterie of the Republican Party, and do it consistently 
and predictably.
  I went to law school. As a lawyer, I argued a lot of cases before 
Federal courts. You assume the judge will be independent and will not 
treat anyone one way or the other depending upon their political party, 
but that he or she will decide the case based on the facts. This 
apparently is no longer enough for this administration. They want a 
Republican judge who will vote as a Republican who will be consistent 
and predictable. In other words, if you are a Democrat coming before 
the Federal court or if you do not eschew a particular Republican 
ideology when you come before that court, you are not going to get 
independent treatment. That is wrong.
  USA Today noted that when the Bush administration did not go as far 
as GOP hardliners wanted in opposing the University of Michigan's 
affirmative action program, some blamed Gonzales. That has led to an 
unusually aggressive whispering campaign. Conservative activists have 
been successful in persuading President Bush to nominate hardline 
candidates, but lower courts made it clear to reporters that George W. 
Bush and others do not believe Gonzales is Supreme Court material. They 
go on to report conservatives also touting Miguel Estrada, native of 
Honduras and former Justice Department lawyer, who has been nominated 
by President Bush to serve on the U.S. appeals court in Washington, DC.
  The administration seeks to have it both ways. They want to take 
credit with the Federalist Society when they nominate ideological 
nominees, but they also want to pretend to the American public that 
ideology does not matter.
  I ask this: If ideology does not matter to the Republicans, why did 
they obstruct scores of President Clinton's nominees to the courts, 
including several to the DC Circuit? If ideology does not matter, why 
did Republicans vote in lockstep against Justice Ronnie White of 
Missouri to be confirmed to the district court? If ideology does not 
matter, why did Republicans filibuster the nominations of Justice 
Rosemary Barkett to the Fifth Circuit, Judge H. Lee Sarokin to the 
Third Circuit in 1994, Judge Richard Paez and Marsha Berzon to the 
Ninth Circuit in 2000? To say we would never do this obscures the 
record and blurs the rationale.
  Let me share with the Senate an account of Republican use of ideology 
in connection with judicial nominations. There was a column in the Wall 
Street Journal in the summer of 1998 explaining the anonymous 
Republican holds on the nomination of Judge Sonia Sotomayor to the 
Second Circuit Court of Appeals. I worked hard for 2 years on that 
nomination. It is my circuit. It is the circuit court I argued in front 
of when I was in private practice. I was astounded when Republicans 
held her up for months without a vote. I could not understand why such 
an outstanding nominee was being stalled by Republicans. After all, she 
initially was appointed to the Federal bench by a Republican President. 
Not only that, she had an outstanding record as a judge and, before 
that, an outstanding record in private practice and an outstanding 
record as a prosecutor.
  What was not to like about this Hispanic woman appointed initially by 
a Republican and now nominated by a Democrat? She had been confirmed by 
the Senate to the U.S. District Court for the Southern District of New 
York in 1992 after being nominated by the first President Bush. She 
started in a housing project in the Bronx. She then attended Princeton 
University and Yale Law School. She worked for more than 4 years at the 
New York District Attorney's Office as assistant district attorney. She 
was in private practice in New York.
  So then Mr. Gigot explained to all what was the problem behind the 
closed doors of the Republican Cloakroom. Republicans were fearful, if 
she were confirmed quickly, she could be in line to be nominated to the 
U.S. Supreme Court. Mr. Gigot wrote:

       If liberals do prevail, the president could turn to 43-
     year-old district court judge Sonia Sotomayor. She's every 
     Republican's confirmation nightmare--a liberal Hispanic woman 
     put on the district bench by George Bush.

  That was what the Republicans and the Wall Street Journal editorial 
writers said.
  Then the Wall Street Journal followed up, based on what they had been 
told by the Republican Cloakroom. They editorialized a few days later 
and issued these instructions. I recall, when we were issued 
instructions and the majority leader, George Mitchell, put together a 
plan that brought about a balanced budget, they said it would bring 
about economic ruin. We then had 8 years of the most spectacular rise 
in our economy and the highest employment we ever had.
  They issued instructions on June 8, 1998. We would like to think the 
Republicans may be having second thoughts and are deliberately delaying 
her confirmation to see whether Justice Stevens announces his 
retirement when the current Court term ends this month.
  The reason for the delay was confirmed by a subsequent report in the 
New York Times. That is just one of scores of nominations the 
Republicans have delayed or stalled or defeated because of ideology in 
recent years.
  I ask unanimous consent to have printed in the Record the May 29, 
1998,

[[Page 2647]]

column and the June 8, 1998, editorial in the Wall Street Journal.
  There being no objection, the material was ordered to be printed in 
the record, as follows:

             [From the Wall Street Journal, June 18, 2002]

              Visible Absence of Latinos on Federal Courts

(By Antonia Hernandez, President and General Counsel, Mexican American 
Legal Defense and Education Fund, Los Angeles
                                  ____


       Your editorials claim that Senate Judiciary Chairman 
     Patrick Leahy is taking too long to confirm Miguel Estrada to 
     the D.C. Circuit Court of Appeals position that is often 
     viewed as a stepping stone to the Supreme Court (``No 
     Judicial Fishing,'' June 11 and ``The Estrada Gambit,'' May 
     24).
       Yet no mention was made of the delays for Latino-nominated 
     judicial candidates to the circuit courts during the Clinton 
     administration under a Republican-controlled Senate. It took 
     four years to confirm the nomination of Judge Richard Paez to 
     the Ninth Circuit Court of Appeals, and he had to be 
     nominated three times. In two instances, the Senate did not 
     even schedule a hearing for two eminently qualified Latinos 
     to the Fifth Circuit Court of Appeals: Enrique Moreno and 
     Jorge Rangel, whose nominations languished and died in the 
     Judiciary Committee.
        The Mexican American Legal Defense and Education Fund 
     (MALDEF) believes it is unfortunate the federal judiciary 
     remains predominantly white and male. Latinos are visibly 
     absent from the Supreme Court and many of the federal 
     appellate courts. but just being Latino is not enough. At the 
     end of the day, the decisions made by these individuals apply 
     to all regardless of race, ethnicity, gender or immigrant 
     status.
       The fact that a nominee is Latino should not be a shield 
     from full inquiry, particularly when a nominee's record is 
     sparse, as in Mr. Estrada's case. It is vital to know more 
     about a nominee's philosophies for interpreting and applying 
     the Constitution and laws.
       It is also important for Latinos to raise questions about 
     how a nominee's views might affect our community. MALDEF is 
     not seeking to stall Republican nominees. During President 
     Bush's first year, two Latinos whom MALDEF supported were 
     nominated and have been confirmed. We have met with White 
     House officials and asked them to nominate more Latinos. To 
     date, President Bush has nominated only one Latino to the 
     circuit court.
       We firmly believe that all judicial nominees should have 
     hearings once their records have been adequately examined in 
     a fair and impartial manner.
       Individuals appointed to the federal bench, a lifetime 
     appointment, must meet basic requirements such as honesty, 
     integrity, character and temperament.
       But the inquire must not stop there. We must also look to 
     the nominee's record as it reflects his/her demonstrated 
     understanding and commitment to protecting the rights of 
     ordinary residents and to preserving and expanding the 
     progress that has been made on civil rights, including rights 
     protected through core provisions in the Constitution, such 
     as the equal protection clause and the due process clause, as 
     well as through the statutory provisions that protect our 
     legal rights.
       Since 9/11, America has been embroiled in a serious public 
     debate about who we are as Americans and what are the limits 
     of our freedoms, who should enjoy the protections of our 
     laws, and what rights are to be extended or denied to 
     Latinos.
       When the Supreme Court recently stripped immigrant workers 
     of important employee protections (Hoffman Plastics), Latinos 
     inquired why their voices mattered so little when so much was 
     at stake. Many asked why Latinos have had so little 
     representation in a judiciary that has the power to shape 
     their lives. Legitimate debate is integral to the judicial 
     selection process, and therefore it is legitimate to have 
     this debate within the context of confirming individuals who 
     are supposed to serve as impartial referees in this public 
     debate.
                                  ____


              [From the Wall Street Journal, May 29, 1998]

            Supreme Politics: Who'd Replace Justice Stevens?

                           (By Paul A. Gigot)

       President Clinton could soon make his third Supreme Court 
     appointment, and his political play will be to trump Senate 
     Republicans by naming the first Hispanic justice.
       Such speculation is in high gear among Republicans because 
     the White House is already floating the names of potential 
     replacements should Justice John Paul Stevens pack it in when 
     the high court's term ends in the next month.
       Retirement for the flinty, independent 78-year-old justice 
     is no sure thing. Merely hearing such speculation could cause 
     him to stay on, and by all accounts he's in good mental and 
     physical health. It's also clear from his Clinton v. Jones 
     opinion that he's no great admirer of this president.
       But friends who've spoken with Justice Stevens say that for 
     the first time he seems like a man seriously contemplating 
     retirement. He already spends much of his time in Florida, 
     where his wife wouldn't mind seeing him more. He's also 
     talked about the subject with more than one of his bench 
     colleagues.
       The timing would certainly make ideological sense for the 
     court's ranking liberal. By retiring this year, he'd shelter 
     his successor's confirmation from the presidential politics 
     that will be going strong next summer. A Clinton nominee next 
     year would also probably face a Senate with even more 
     Republicans than the current 55.
       If Mr. Stevens waits until the summer of 2000, he'd run the 
     risk that his successor would be named by a conservative 
     president. While the justice appointed by Gerald Ford likes 
     to claim GOP credentials, you can bet he doesn't want to be 
     replaced by another Antonin Scalia. If he wants to preserve 
     the current court's precarious liberal-conservative balance, 
     this is the year to depart.
       The biggest beneficiary would be Mr. Clinton, who is eager 
     to pad his lackluster legacy. That argues for naming the 
     first Hispanic justice, an act of symbolic politics that 
     would enhance Democratic ties to the nation's fastest growing 
     ethnic group.
       The move would also mousetrap Senate Republicans, who will 
     be loathe to oppose anyone with a Hispanic surname. Still 
     smarting from the backlash against their anti-immigration 
     idiocy of 1994-96, some Republicans would vote to confirm 
     Geraldo Rivera.
       And the problem is, they might have to vote on the judicial 
     equivalent. The lineup of qualified Hispanic Democratic 
     judges is shorter than admirers of Monica Lewinsky's lawyer 
     William Ginsburg. A list submitted to the White House (and 
     delivered in person to Vice President Al Gore) by the 
     Hispanic National Bar Association contains only six mostly 
     minor-league names.
       Voters recalled Cruz Reynosos from the California bench 
     along with Rose Bird in 1986. Vilma Martinez has been a 
     liberal civil-rights litigator. Gilbert Casellas ran the 
     Equal Employment Opportunity Commission but has been passed 
     over by Mr. Clinton for the appellate bench.
       The list's one genuine legal heavyweight is Jose Cabranes, 
     a Puerto Rican immigrant named to the federal Second Circuit 
     by Mr. Clinton in 1994. A former Yale general counsel, Judge 
     Cabranes was advertised as a finalist when the president made 
     his last Supreme Court pick. He's a judicial moderate and his 
     confirmation would be a bipartisan breeze.
       But his very moderation is making him less acceptable to 
     many Clintonites this time. White House aides are already 
     telling Senate sources and others that Mr. Cabranes isn't 
     reliably liberal enough to replace Justice Stevens. He's 
     especially suspect on the liberal orthodoxy of classifying 
     everyone by racial and ethnic identity. He's no conservative, 
     but he's spoken out publicly for the ``Western civilization 
     curriculum'' attacked by the left.
       Liberals also fret about the influence of Mr. Cabranes's 
     daughter, whose sin is to have belonged to the Federalist 
     Society and to have clerked for Judge Ralph Winter, a Reagan 
     appointee. It may seem odd to blame a father for the beliefs 
     of his daughter, but Clinton liberals believe in guilt by 
     conservative association.
       If liberals do prevail, the president could turn to 43-
     year-old New York district court judge Sonia Sotomayor. She's 
     every Republican's confirmation nightmare--a liberal Hispanic 
     woman put on the district bench by George Bush (at the 
     request of Democratic Sen. Pat Moynihan).
       Her willingness to legislate from the bench was apparent in 
     her recent decision that a private group giving work 
     experience to the homeless must pay the minimum wage. Never 
     mind if this makes them that much harder to employ. Mr. 
     Clinton has nominated Judge Sotomayor to join Mr. Cabranes on 
     the Second Circuit, and she's said to be a favorite of 
     Hillary Rodham Clinton.
       All of which means that a Stevens retirement would put a 
     large political burden on the protean shoulders of Judiciary 
     Chairman Orrin Hatch. His own choice would probably be Judge 
     Cabranes. And the Utah Republican has privately explained his 
     brisk approval of Clinton lower-court nominees as a way to 
     gain leverage and credibility for the more significant 
     Supreme Court pick. But Mr. Clinton has fooled Republicans 
     before. Maybe Republicans are better off begging Justice 
     Stevens to stay.

  Mr. LEAHY. When the Republicans now protest that the Senate can only 
look at where a person went to school, and the rating the newly 
compliant ABA provides, they are disregarding their own past practices. 
A young conservative activist spilled the beans quite explicitly 
recently on the ``Crossfire'' television program in which he said:

       . . . the second [he] gets in there he'll overrule 
     everything you love--

  Everything moderates have worked to enact over the years.
  That seems to be the badly kept secret, as to why the White House 
chose Mr. Estrada for this nomination--precisely because of his 
ideology. Keeping that secret is apparently what motivated the strategy 
that resulted in his

[[Page 2648]]

extraordinary lack of responsiveness to substantive questions regarding 
his views and judicial philosophy.
  Nobody can look at opinions of the Supreme Court and believe that 
Justice Scalia and Justice Thomas do not have an agenda, the two stated 
by the President to be his model for nominees. But I am left with a 
fear that Mr. Estrada, likewise, comes to this nomination with a hidden 
agenda.
  Maybe it is the nature of the beast, but I have never seen so many 
crocodile tears in my life from the other side of the aisle as they 
ask: Why are we asking these questions? How can you possibly question 
this man? How can you possibly question this man?
  I am going to tell the Senate a secret as to why it is we asked for 
this. I know my friends on the other side may not want to let this out, 
so I will tell it just to those in this room where we learned to look 
into this. We heard it from a speech given to the Federalist Society in 
which the Senator speaking said:

       [T]he Senate can and should do what it can to ascertain the 
     jurisprudential views a nominee will bring to the bench in 
     order to prevent the confirmation of those who are likely to 
     be judicial activists. Determining who will become activists 
     is not easy since many of President Clinton's nominees tend 
     to have limited paper trails . . . Determining which of the 
     President's nominees will become activists is complicated and 
     it will require the Senate to be more diligent and extensive 
     in its questioning of a nominee's jurisprudential views.

  I read that speech. In a sense of bipartisanship, I want you to know 
that I agree exactly with what Senator Hatch said in Utah when he gave 
that speech to the Utah branch of the Federalist Society. When Senator 
Hatch said that we have to prevent the confirmation of those who are 
likely to be judicial activists; the Senate must be more diligent and 
extensive in its questioning of nominees' jurisprudential views, I 
think my friend from Utah had it absolutely right and, guess what, that 
is exactly what we are doing here.
  In fact, when a Democratic President was sending judicial nominees to 
the Senate, the man who would later become the principal Deputy White 
House Counsel for the President, the man who played a significant role 
in the selection of President Bush's judicial nominees, Tim Flanigan, 
said, the Judiciary Committee and the Senate must be extraordinarily 
diligent in examining the judicial philosophy of judicial nominees.
  This man, who went on to help the current President Bush pick 
judicial nominees, said:

       In evaluating judicial nominees, the Senate has often been 
     stymied by its inability to obtain evidence of a nominee's 
     judicial philosophy. In the absence of such evidence, the 
     Senate has often confirmed a nominee on the theory they could 
     find no fault with the nominee. I would reverse the 
     presumption and place the burden squarely on the judicial 
     nominee to prove that he or she has a well-thought-out 
     judicial philosophy, one that recognizes the limited role of 
     Federal judges. Such a burden is appropriately borne by one 
     seeking life tenure to wield the awesome judicial power of 
     the United States.

  I agree with that. What I do not agree with is that we say we must 
have a standard of impartiality on judges, that they cannot be 
activists, that they must answer their questions--we can say that is 
the standard if it is a Democrat referring them to the Judiciary 
Committee, but that all goes out the window when it is a Republican.
  I agree that we must ask what their judicial philosophy is and they 
must answer the questions. That is the standard that the Republicans 
set over and over again, both those who went on to serve in the White 
House and my friend from Utah when he was chairman of the Senate 
Judiciary Committee. It is a standard on which we should all agree.
  But what I do not agree on is when it is a Republican making the 
nomination, no standards are required--no standards are required. We 
can't ask about philosophy. We can't ask about temperament. We can't 
ask what they are going to do with this lifetime appointment.
  In this case specifically, Mr. Estrada refused to provide us the 
answers about the types of jurisprudential views that Chairman Hatch 
and Mr. Flanigan said they must--they must--answer. At least they said 
they must answer when it was a Democrat nominating them. But I guess if 
it is a Republican nominating them we get kind of a pass; that there is 
going to be jurisprudential purity.
  Extensive questioning of this nominee's jurisprudential views have 
been forestalled and short circuited. He does have a paper trail but it 
has been kept secret by the White House. There is a paper trail that 
says what his jurisprudential views are, but the White House has kept 
it secret.
  We want judges to be fair and impartial. That is what I believe most 
Americans want. An independent judiciary is a bulwark against us losing 
our rights and our freedoms. I say it again. The vast majority of 
people, if they go into Federal court, want to be treated fairly. They 
want to look at that judge and say, it doesn't make a difference 
whether I am Democratic or Republican, conservative, liberal, rich, 
poor, what my color is, or what my creed is, or anything else; I am now 
before the Federal courts, the most respected judicial system in the 
world, and I am going to be treated fairly.
  But, whether they know it or not, whether they think of it or not, 
they have that sense that it is going to be a fair treatment because 
historically the Senate has maintained that integrity and independence 
of the Federal judiciary.
  From the first part of our Nation's history when the Senate even 
turned down judges nominated by President George Washington, the most 
popular President in our history, the Senate has maintained the 
integrity and independence of the Federal judiciary.
  As I said before, I have voted on hundreds of judges. I voted for 
hundreds of judges of Republican Presidents--President Ford, President 
Reagan, former President Bush, and the current President Bush, just as 
I have for Democratic Presidents. I have also voted against judges, 
those nominated by Democratic Presidents as well as by Republican 
Presidents. I do this because I know it is a lifetime appointment and 
we want to make sure of what we do. Most I voted for confirmation.
  As I said before, we set an all-time record--certainly the record for 
the last 10 or 15 years--during the year and a half or so that I was 
chairman of the Senate Judiciary Committee, sending out 100 Federal 
judges, both circuit and district, including, I say to the Senator from 
Alabama and the Senator from Utah who is in the Chamber, judges from 
their States--not Democrats. They were Republicans. I think a lot of 
their philosophy is different than mine. I trusted their integrity, and 
they answered the questions.
  But here, the little record we have calls into question whether this 
person can be a neutral referee or an advocate and activist from the 
bench. That is really where we are.
  We have a duty to the American public to say when we give our 
imprimatur by voting to confirm somebody to a lifetime position on the 
Federal courts that we have made every effort possible to make sure we 
are going to maintain the integrity and the independence of the Federal 
judiciary; that we are not going to turn the Federal judiciary into a 
political arm.
  We elect Presidents. In electing them, we say they can be political. 
I said I wish Presidents would be uniters and not dividers. In this 
case, they have been a divider and not a uniter--but the nature of it 
is they are expected to be political.
  We elect men and women to the House of Representatives and to the 
Senate to carry a political agenda, but we put people on the Federal 
judiciary to be independent and nonpolitical. Here we are being told 
that we are going to fill out a political agenda.
  My friend from Alabama wishes to speak. I will speak further but give 
him a chance to speak.
  Mr. President, I ask unanimous consent that several editorials and 
letters opposing Mr. Estrada's nomination be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Jan. 29, 2003]

                        An Unacceptable Nominee

       The Senate Judiciary Committee is scheduled to vote 
     tomorrow on Miguel Estrada, a

[[Page 2649]]

     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. Estrada, a native of Honduras and graduate of Harvard 
     Law School, has a strong legal resume. But people who have 
     worked with him over the years, at the solicitor general's 
     office and elsewhere, report that his interpretation of the 
     law is driven by an unusually conservative agenda. Paul 
     Bender, a law professor and former deputy solicitor general, 
     has called Mr. Estrada an ideologue, and said he ``could not 
     rely on his written work as a neutral statement of the law.'' 
     In private practice, Mr. Estrada defended anti-loitering laws 
     that civil rights and groups have attacked as racist.
       Unlike many nominees who are named to an appeals court 
     after years as a trial judge or professor, 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 senator's 
     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.
       Senators have a constitutional duty to weight the 
     qualifications of nominees for the federal judiciary. But 
     they cannot perform this duty when the White House sends them 
     candidates whose record is a black hole. 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.
       If Mr. Estrada is confirmed, he is likely to be high on the 
     administration's list for the next Supreme Court vacancy. The 
     D.C. circuit is a traditional feeder to the Supreme Court, 
     and it is widely thought that for political reasons the 
     administration would like to name a Hispanic.
       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.
                                  ____


              [From the Los Angeles Times, Jan. 13, 2003]

                        Bush's Full-Court Press

       There are at least two explanations--one even more cynical 
     than the other--for President Bush's renomination last week 
     of Judge Charles W. Pickering, a man the Senate rightly 
     rejected last year for a seat on the federal appeals court.
       Perhaps Bush really didn't mean it last month when he 
     denounced as ``offensive .  .  . and wrong'' Mississippi Sen. 
     Trent Lott's nostalgic musings about the segregated South. 
     The Republican Party has long tried to have it both ways on 
     race: ardently courting minority voters while winking at 
     party stalwarts who consistently fight policies to establish 
     fairness and opportunity for minorities. Even Bush has not 
     always been above such doublespeak, encouraging African 
     Americans to vote GOP and touting his Spanish-language 
     facility on the campaign trail as a come-on to Latino votes 
     even as he dropped in at Bob Jones University, which, until 
     three years ago, barred interracial couples from sharing a 
     pizza.
       Bush's renomination of Pickering, a man whose law career is 
     unremarkable but for his longtime friendship with Lott and 
     his dogged defense of Mississippi's anti-miscegenation laws, 
     throws another steak to the far right and sand in the eyes of 
     most Americans.
       There could be another explanation for Bush's decision, 
     just weeks after denouncing Lott, to again shove Pickering on 
     the American people. Perhaps the president doesn't really 
     care whether Pickering, Whom he's indignantly defended as ``a 
     fine jurist .  .  . a man of quality and integrity,'' is 
     confirmed.
       Maybe Bush calculates that Sens. Edward M. Kennedy (D-
     Mass.), Charles E. Schumer (D-N.Y.) and others, justly 
     incensed that the judge is back before them, will embarrass a 
     Republican or two into joining them and defeat his nomination 
     a second time. The president may be figuring that if they can 
     call in enough chits on Pickering, the Democrats won't have 
     the votes to stop the many other men and women he hopes to 
     place in these powerful, lifetime seats on the federal bench.
       None of those nominees can be tarred with Pickering's in-
     your-face defense of segregation. But many, including Texas 
     Supreme Court Justice Priscilla Owen, lawyers Miguel Estrada 
     and Jay S. Bybee, North Carolina Judge Terrence Boyle and Los 
     Angeles Superior Court Judge Carolyn B. Kuhl, share a disdain 
     for workers' rights, civil liberties guarantees and abortion 
     rights. Their confirmations would be no less a disservice to 
     the American people than that of Pickering, who now has been 
     nominated two times too many.
                                  ____


               [From the Los Angeles Times, Feb. 5, 2003]

                     Latino Would Set Back Latinos

                         (By Antonia Hernandez)

       It is ironic the President Bush, whose lawyers excoriated 
     affirmative action at the University of Michigan, would 
     nominate Miguel Estrada, an unqualified Latino, to the U.S. 
     Court of Appeals for the District of Columbia in order to 
     achieve diversity. The full Senate takes up the nomination 
     this week.
       The Mexican American Legal Defense and Educational Fund, or 
     MALDEF, and other Latino and civil rights organizations 
     believe that in a nation of more than 37 million Latinos, the 
     federal judiciary should not remain overwhelmingly white and 
     male. The nation needs judges who understand us, the Latinos 
     are visibly absent from the Supreme Court and many of the 
     federal appellate courts. The judiciary is the branch of 
     government to which we have turned to seek protection when, 
     because of our limited political power, we are not able to 
     secure and protect our rights through the legislative process 
     or the executive branch.
       However, Estrada has neither demonstrated that he 
     understands the needs of Latino Americans nor expressed 
     interest in the Latino community. A thorough review of his 
     sparse record indicates he would probably make rulings that 
     roll back the civil rights of Latinos. Simply being a Latino 
     does not make one qualified to be a judge.
       The decisions made by judges apply to all, regardless of 
     race, ethnicity, gender or immigrant status. Individuals 
     appointed to the federal branch, a lifetime appointment, must 
     meet basic requirements such as honesty, open-mindedness, 
     integrity, character and temperament. They must also go a 
     step beyond that and affirmatively demonstrate that they will 
     be fair to all who appear before them in court.
       Estrada's lack of qualifications has prompted many 
     prominent Latino organizations and others to oppose him, 
     including MALDEF, the Puerto Rican Legal Defense and 
     Education Fund, the Southwest Voter Registration and 
     Education Project, Latino union leaders, the Leadership 
     Conference on Civil Rights and Congress' Hispanic and Black 
     causes.
       The available record of Estrada's legal positions raises 
     grave concerns about how he might rule on constitutional 
     matters affecting Latinos. For example, his work in the area 
     of criminal justice raises serious doubts as to whether he 
     would recognize the 1st Amendment rights of Latino urban 
     youths and day laborers, and it casts serious doubt on 
     whether he would fairly review Latino allegations of racial 
     profiling.
       In 1977 he worked pro bono to defend the city of Chicago's 
     ban on loitering, which was designed to curb gangs and drug 
     activity. Instead, the ban resulted in police harrassment of 
     Latino and African American youths. After the Supreme Court 
     struck down the ordinance as unconstitutional, Estrada 
     volunteered to defend a similar one in Annapolis, Md., which 
     was also found to be unconstitutional.
       As a government attorney, he argued that police discretion 
     was wide, that officers could execute a search warrant in a 
     felony drug investigation without knocking and announcing who 
     they were. This indicates his disdain for the protections of 
     the 4th Amendment.
       In other areas, Estrada has stated that he has never raised 
     the issue of diversity in any of his workplaces and that he 
     would not seek to help Latinos by hiring them as clerks, and 
     he dismissed concerns about the lack of diversity among 
     Supreme Court law clerks. In 2001, in the Annapolis anti-
     loitering case, Estrada argued that the NAACP had no standing 
     to represent the interests of African Americans. This 
     indicates he probably would question the right of access to 
     the courts of groups that have historically represented the 
     interests of Latinos.
       Our opposition is not partisan. MALDEF has supported 
     President Bush's nomination of well-qualified Latinos who are 
     conservative and will continue to do so. However, when a 
     nominee, like Estrada, is an ideologue who hides his views 
     and who is so lacking in experience, we have little choice 
     but to oppose the nomination. The courts and the job of 
     justice are too important.

  Mr. LEAHY. Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Alabama is 
recognized.
  Mr. SESSIONS. Mr. President, I believe Senator Kyl was in the line to 
speak next. I think probably he will be here shortly.
  I would like to say one thing about this issue of ideology. We had 
hearings on it. I know Senator Schumer advocated that we ought to 
consider ideology--I guess he meant politics--of the nominee. Some of 
my friends across the aisle asked: Why do Republicans nominate 
Republicans and

[[Page 2650]]

Democrats Democrats, if ideology doesn't matter?
  We voted for those nominees. President Clinton had confirmed during 
his tenure as President of the United States 377 Federal judges. This 
Senate voted down one judge. That is all we voted down on the floor of 
the Senate. None were blocked in committee. All were voted out of 
committee, unless they had objections from home State Senators and came 
up until the last of the administration. And 41 judges had been 
nominated and were pending either in committee or on the floor when 
President Clinton left office. Comparing that to when President Bush 
left office and the Democrats controlled the Senate, there were 54 
nominees pending and unconfirmed.
  I think all of us need to take a deep breath and to remember that the 
judiciary is made up of human beings. They are appointed by the 
President. Our President believes in judicial restraint. He believes 
that judges should not enact political agendas from the bench. That is 
the criteria he has used--that and excellence and integrity. Miguel 
Estrada, probably as much as any nominee we have ever had, represents 
excellence, integrity, and experience that would qualify him for the 
job. Indeed, he unanimously won the highest rating from the American 
Bar Association, ``well qualified.''
  But I will just say that we did, in fact, vote overwhelmingly for 
President Clinton's judges--377, and one we voted down. Only 41 were 
left pending when he left office, which is well within the tradition of 
this Senate.
  Frankly, if people get nominated late, they don't have time for 
hearings. Sometimes the Senate will think, let's see how the election 
comes out and leave some hanging. That has always happened here. That 
can be criticized. But we do that. What we are seeing now is a slowdown 
of nominees at the beginning of the process.
  I also note that as we considered these nominees we had hearings on 
the burden of proof. A group of liberal professors met with the 
Democratic leadership soon after President Bush was elected President. 
They made a proposal that the ground rules of judicial nominations 
should be changed. They didn't propose it while President Clinton was 
nominating his nominees, many of which were ACLU members, and many of 
which were strongly pro-abortion, and those kinds of things. They 
didn't raise that then. But as soon as the election was over, they 
proposed changing the ground rules, according to the New York Times 
report of that event. One of the things was that they would consider 
ideology. Another one was that they would change the burden of proof--
that for the first time in history the burden would be on the nominee 
to somehow prove that they were worthy of the appointment instead of 
having the Senate review the presumptive power of the President to make 
the nominee and then if disagreeing object to them. That was a big 
deal. We had hearings on that in the court subcommittee of the 
Judiciary, of which I am a member.
  Senator Schumer was an advocate of both of these positions. But the 
hearings he held were fair, and we had an interesting debate about it.
  I will just say, being the ranking Republican during that time, that 
the witnesses and the evidence we took to me clearly did not support 
changing the ground rules. People such as Lloyd Cutler, who was counsel 
to the White House under Presidents Carter and Clinton, opposed that. 
He believed that nominees should be given also the presumption of 
confirmation. I thought it was pretty successful in how we handled it, 
and that the evaluations we considered on the issue should not be 
changed. The rules ought not to be changed to going to a different way 
of considering nominations.
  Senator Hatch--I have to agree, and I think my colleague, Senator 
Leahy, would agree with this--set forth a principal position for 
evaluating judges. He said we should consider judicial philosophy. He 
did not say we should consider their politics. He talked about judicial 
philosophy and the danger. The issue that concerned him and concerned 
most Americans was the question of judicial activism. This was a 
philosophy taught in law school for many years. I think maybe hopefully 
that it is a little less prominent today than it was 15 or 20 years 
ago--that good judges shove the envelope, good judges should be 
activists, they should promote good causes and use the power of their 
office to further causes which they believe are just and to strike 
blows for the poor, and that kind of thing. It was a strong philosophy.
  But the truth is that is a dangerous philosophy. When you are talking 
about a lifetime appointment of a person to the Federal bench, they 
should understand that they are not empowered to render rulings that go 
beyond the plain meaning of the law. They should not render rulings 
that twist the meaning of words--giving words new and different 
meanings than were intended when the Congress passed legislation, or 
when the Constitution was written. That is a very important issue to 
me.
  On this question of activism, when you give an unelected judge and an 
unelected court lifetime appointments with no accountability to the 
people, the power to redefine the meaning of words and to change 
historic understandings of our clauses and phrases in our statutes and 
in our Constitution, we have diminished democracy because they are 
democratically accountable. If we changed the law, they can vote us out 
of office. The next group of Senators or Congressmen can change the law 
if we vote badly. But if they declare that the Constitution says you 
can't do this or you must do that, then it is much, much more difficult 
to deal with.
  Certainly, in this Congress we do not want to impeach judges because 
we disagree with their opinion. What we need are judges on the bench 
who are honorable, intelligent, capable, and who understand their role, 
which is to enforce the law as written. And that is the kind of judge 
we ought not have fear of, as one witness said.
  Why should we fear a judge who shows restraint? Our liberties are not 
at risk by a judge who shows restraint. Our liberties are at risk when 
we have a judge who believes they have the ability to go beyond what 
statutes say and to do what they think is right. You have heard them 
say: Well, the legislature would not act, so the judges had to act. 
That is not legitimate. If the legislature did not act, that is a 
decision of the legislature, a decision not to act. It is no less valid 
than a decision by a legislature to act on a matter.
  Judges ought to follow the law as written. They ought to understand 
the great power of that branch of Government. They ought to be 
independent. They should strike down laws that are unconstitutional. 
That is not being activist. If a law is in violation of the 
Constitution, a conservative or liberal judge, I hope, will strike it 
down. We have accepted that since Marbury v. Madison, since virtually 
the beginning of this country. But that is not activist.
  What is activist is to misrepresent what the Congress intended, to 
twist the meaning of the words of the Congress, or to alter the meaning 
of the words of the Constitution to promote a short-term political 
agenda. I really think that is our problem. Activism can be defined in 
a number of ways, but it is quite different from a person's political 
philosophy.
  To me, the high water mark of judicial activism was when we had two 
members of the U.S. Supreme Court dissent on every single death penalty 
case. Their dissent was, they believed the death penalty was cruel and 
unusual punishment and the Constitution prohibits the imposition of 
cruel and unusual punishment. They said, according to the changing 
standards they live in today, this was no longer compatible with humane 
or legal systems or modern thought, and therefore they just found it 
cruel and unusual to execute anyone by any means, and therefore the 
whole death penalty statute should be struck down.
  The reason that was particularly ill advised, in my view, is that at 
the time the Constitution was adopted, it had the cruel and unusual 
punishment language in it but it also had six or eight references in an 
approving way to a

[[Page 2651]]

death penalty. They talked about capital crimes and what the rules 
should be in a capital crime. And capital crimes are death penalty 
cases. They said life, liberty, and property cannot be taken without 
due process of law--you can't take life. That means a death penalty.
  Every State in the Union at the time the Constitution was written had 
a death penalty, and so did the Federal Government have death 
penalties. So for those two judges to actually dissent in case after 
case after case, to me, was merely imposing their personal views at one 
moment in time over the established will of the legal system that had 
been from the beginning. It is also contrary to the views of the 
majority of the States in the United States. And the polls have shown--
if they want to go to evolving standards of decency that the American 
people oppose the death penalty--that, in fact, overwhelmingly they 
favor the death penalty. So I think we do need to watch that.
  (Mr. CHAMBLISS assumed the chair.)
  Mr. SESSIONS. One of the big issues we have before us, as we consider 
President Bush's nominees, is: Are we looking to have people on the 
bench to further our political agenda, or are we just looking for a 
neutral arbiter, someone who can evaluate the cases between litigants 
and make a fair and just rendering of an opinion on it? That is what it 
is all about.
  One of the things that was raised in complaint about Miguel Estrada 
was he would not answer all their questions about his views on cases 
and lawsuits, and so forth. They said he would not produce his internal 
memoranda when he was a part of the Solicitor General's Office of the 
Department of Justice. Every living former Solicitor General of the 
United States, Republican and Democrat, to my knowledge, has written 
that he ought not to do that. Lawyers ought to be encouraged to write 
to their clients, the Department of Justice superiors, and give their 
opinions.
  Let me add one thing about that issue. The memoranda that he wrote 
were not to John Mitchell. The memoranda that he wrote were for Janet 
Reno and the Clinton Department of Justice. He was in the Solicitor 
General's Office during that time. And he was evaluated and given the 
highest possible evaluation by the Clinton Department of Justice 
attorneys. One of them specifically noted in that evaluation that he 
followed the procedures and policies of the Clinton Department of 
Justice. So I do not see how it can be suspected that he was writing 
right-wing extremist memoranda within that Department of Justice while 
having the kind of respect and high evaluations that he had. So I 
believe that is important.
  There is a real reason that judicial nominees--and I know the 
Presiding Officer is a lawyer and understands these issues--why someone 
thrown into a hearing ought to be reluctant to answer questions about 
complex cases when we have a hearing on the confirmation of a nominee 
to the Federal courts of the United States. If they are confirmed, they 
will be given important cases on which to rule. I hope and I pray they 
will spend many hours reading the briefs of the parties, reading 
personally the major cases in the country that deal with that issue, 
and they give it sincere thought and prayerful consideration before 
they render a verdict. That is what we want.
  To throw somebody in a hearing and to start asking them how they are 
going to rule on this matter or that matter is improper. And asking 
them that would bind them, if they got in. In other words, let's say 
that they said: Well, I favor this, Mr. Senator; I hope that makes you 
happy; and I agree with you. And then they become a judge, and they get 
a stack of briefs, and they start reading the opinions, and they come 
back out with the belief that that is wrong. What have they done then? 
No. The history of our confirmation process and the strong opinion of 
the American Bar Association, an independent arbiter in these matters, 
is that they should not be lured into expressing opinions on cases that 
are likely to come before them on the bench. That is so fundamental and 
so sound a principle that I cannot imagine anyone would suggest it be 
changed.
  Lloyd Cutler, White House Counsel to Presidents Clinton and Carter, 
wrote this:

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

  That was his testimony in our hearing as we discussed these issues in 
the Judiciary Committee. That certainly is correct to me. I believe 
that is sound policy, whether we have a Republican President or a 
Democratic President. I do not recall that Senator Hatch ever insisted 
a judge tell him how he was going to rule.
  My good friend Senator Leahy, he likes to talk about the Federalist 
Society and Senator Hatch making a speech at the Federalist Society. 
They take no position over any of these legal issues. They are a forum 
for debate. Most of the members, perhaps, believe in a restrained 
judiciary, but they have a lot of different ideas and vigorous debate, 
and they publish articles that disagree with one another.
  But we confirmed a host of Federal judges under President Clinton who 
were members of the American Civil Liberties Union. You may say: Well, 
you know the American Civil Liberties Union. They do some good work. I 
don't think we should just vote against them for that reason. And we 
didn't. We confirmed almost all of them. As a matter of fact, I am not 
sure any of them who were members did not get confirmed.
  Look at the Web site of the ACLU. It takes positions on issues. The 
ACLU believes there should be total separation of church and State. I 
am sure they agree with the proposal that we ought to take ``under 
God'' out of the Pledge of Allegiance. They believe in the legalization 
of drugs. They believe pornography laws should not be on the books and 
are unconstitutional. They believe even that child pornography laws are 
unconstitutional. That is a stated position.
  Out of deference to President Clinton's nominees and his power and 
prerogative of appointment, we confirmed a bunch of them who were 
members of the ACLU, one of whom was a litigation committee chairman 
for the ACLU. Others had been State directors of the ACLU.
  What did we do? We asked them in the hearing: Do you personally 
support all those views? They would usually say they didn't.
  We would say: Well, whether you agree or not on drug legalization, 
let me ask you this: If we pass a law that says drugs are illegal, will 
you enforce it? Will you take your office as judge and use it to 
undermine the established law of the land? And they would all say: We 
will enforce the law.
  That is how they came to be confirmed. I hope and trust to this day 
they are complying with that. Our system would not work were it 
otherwise.
  I reiterate my growing admiration for Miguel Estrada's capabilities. 
He came here as a teenager, was an honors graduate, the highest 
possible honors at Columbia College. He went to Harvard Law School 
where he finished at the top of his class and was chosen editor of the 
Harvard Law Review. For a graduating law senior from a law school to be 
editor of the Law Review is one of the highest, probably the highest, 
honor that can be received. He was chosen that by his fellow members.
  He didn't clerk for a Second Circuit Court of Appeals judge. They say 
he doesn't have judicial experience. He sat at the right hand of a 
Federal circuit judge, doing the kind of work he will be doing as a 
judge today, for 2 years. Not only that, he was such an astoundingly 
qualified and capable young lawyer, he was chosen to be a law clerk for 
Justice Anthony Kennedy on the Supreme Court of the United States. 
Anybody who knows anything about the legal profession knows being 
chosen as a law clerk by a Supreme Court judge is a great honor, 
something very few people ever get the opportunity to do. It is 
considered a matter of great significance.
  Of course, Justice Kennedy is considered one of the swing justices on 
the Supreme Court, not one my colleagues like to talk about as an 
extreme conservative. That is who he clerked for,

[[Page 2652]]

and remains close to Justice Kennedy to this day. He is admired by him.
  Then he went to the Department of Justice to the Solicitor General's 
office. The Solicitor General's office is the law firm for the United 
States before the Supreme Court. It is within the Department of 
Justice. They prepare the arguments before the Supreme Court, the 
appellate courts. Of course, that is what Miguel Estrada will be 
considered for, an appellate court judge, not a trial judge, but an 
appellate court judge. He did a remarkable job there, receiving the 
highest possible evaluations by the Department of Justice.
  After that, he went into practice with one of the premier law firms 
in the world in Washington, DC, and was evaluated by the American Bar 
Association. The American Bar Association takes its evaluation 
seriously. They do an independent background check. They make the 
nominee submit a list of their most significant cases. They have to 
give the names and addresses of the judge who tried the case, names and 
addresses of the opposing counsel, and maybe even cocounsel, and to 
summarize the case.
  When that is done, the ABA interviews them. They don't interview just 
their friends. They interview the lawyers on the other side of the 
cases. They want to know, was this person a fair litigator; did he 
understand the law; were his arguments coherent; did he have integrity; 
did you respect him in the course of this litigation. Out of that 
evaluation, the American Bar Association unanimously voted he was well 
qualified for the court of appeals, and ``well qualified'' is the 
highest evaluation given.
  We are proud of his achievements. President Bush has nominated an 
extraordinary judge. As I study more about Miguel Estrada and see more 
of his record, the more confident I am he will be not just a good 
justice but a great one. I believe that strongly.
  I see Senator Kyl is here. We have been going back and forth, so if 
you were able to allow him to speak at this time, that would be good.
  Mr. LEAHY. Mr. President, if the Senator from Arizona has something 
else, of course, I will be here a lot longer, I believe. If it would 
accommodate him, I would be more than happy to do that. And then if we 
could go back to this side, I would appreciate it.
  Mr. SESSIONS. I thank Senator Leahy. I yield to the Senator from 
Arizona.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. I thank Senator Leahy. I was hoping I would be able to speak 
a little bit earlier because there are specifically some things the 
Senator from Vermont said, so I am pleased he is here and I can respond 
to couple of comments he made. He is someone who, as chairman of the 
committee and now as ranking member, has important remarks about this 
process. I want to specifically relate to some of the things he did 
have to say.
  There are two aspects of this nomination of Miguel Estrada that 
should catch our attention. The first has to do with the qualifications 
of this extraordinary American. The second has to do with the process 
by which he is being considered. If we are not careful, this body could 
set a very bad precedent. If Senators actually decide to filibuster the 
nomination of Miguel Estrada, something I understand is being 
considered by the leadership on the other side, if the decision were 
made to filibuster him and his nomination failed as a result, it would 
be the first time in the history of the Senate. It would drastically 
change the way nominations for high judicial office are considered by 
the Senate, essentially substituting a 60-vote majority required for 
confirmation for the 50-vote majority that has heretofore been the 
standard.
  We can talk later about situations in which motions for cloture have 
been filed for one reason or another, but there has only been one real 
filibuster in the Senate in the past, and that was the filibuster of 
Justice Abe Fortas. His nomination was withdrawn after a cloture 
petition failed. In other words, debate was not cut off. The filibuster 
did continue. But that was a bipartisan filibuster, almost evenly 
divided between Republicans and Democrats. It was not a concerted 
effort by one side or the other to galvanize their members into 
speaking as long as it took to cause the withdrawal of the nomination 
by the leader.
  If the minority leadership decides to engage in that tactic with 
respect to Miguel Estrada, it would be not just unfortunate but 
permanently damaging to the relationship between the Senate and the 
executive and to the process by which we confirm nominations.
  It is both a matter of tradition and comity. I know there are some 
who make the argument that there is a requirement the Senate's 
confirmation process be by majority vote. I don't think that case has 
been definitively established, but it certainly has been a matter of 
tradition.
  There is a reason for it. That goes to the second. It has been a 
matter of comity. The way our separation of powers works is each branch 
respects the power of the other.
  Now, when the Founding Fathers set it up, they were clear to provide 
jurisdiction, but they left a lot of gray area between the jurisdiction 
of the three branches; and over the course of 200-plus years, the three 
branches of Government have accommodated to each other's jurisdiction 
in a way with which the Supreme Court has infrequently, but 
importantly, dealt.
  The Supreme Court, as a matter of fact, exercising that degree of 
judgment and comity, generally has stayed out of what it calls 
political issues, for example. Part of that comity is that the Senate 
has always believed it important to consider the most important 
nominees of a President and that the votes on those nominees be 
determined by a majority vote rather than extraordinary majorities or 
special procedures of the Senate.
  That is because, in the modern idiom, ``what goes around comes 
around,'' which is a crude way of saying we know that, over the long 
haul, all of us are going to be in the majority and in the minority and 
each will serve under Presidents of different parties. If we are to 
cooperate over the long haul in the Government to ensure that the 
judiciary is made up of people who are the very best qualified 
candidates and that we respect the judgment of the American people in 
electing a President, the Senate is required to give those nominees its 
very best judgment, thorough consideration, but at the end of the day a 
vote to confirm by 51 rather than a supermajority.
  In fact, no less an expert in the area than the distinguished Senator 
from Vermont, the former chairman and now ranking member of the 
committee has been among what I would call the very responsible members 
of his party who have spoken out on this issue in the past and have 
urged against the use of filibuster as a technique for holding up the 
nomination of judicial nominees; in fact, have even voted for cloture 
but against the nominee on the merits. I have done the same thing with 
respect to two nominees President Clinton nominated. It is quite 
possible to oppose someone on the floor but to understand that we 
should never get the Senate in a position where filibustering a judge 
is the order of the day and, therefore, a 60-vote majority is required 
for confirmation.
  Since Senator Leahy is here, because I think he said it very well, in 
two different contexts, I will quote his own words on the subject. On 
June 18, 1998, Senator Leahy said:

       I have stated over and over again on this floor that I 
     would object and fight against any filibuster on a judge, 
     whether it is somebody I have opposed or supported.

  I think that is the essence of the tradition of this body: That while 
we may have disagreements sometimes and we are each free to cast a vote 
against a nominee, we understand that a filibuster to prevent a nominee 
from being voted on would be very wrong; it would set a very bad 
precedent.
  I think Senator Leahy was exactly correct when he uttered those 
words. In fact, he also said a year later, on September 16, 1999:

       I do not want to get into having to invoke cloture on 
     judicial nominations. I think it is a bad precedent.


[[Page 2653]]


  He said it more succinctly than I have tried to say it here, but I 
agree with the distinguished ranking member of the committee that a 
filibuster on a judge, whether you oppose or support a nominee, is 
wrong and it should be fought. I hope Senator Leahy will fight it. Many 
in his party would like to see a filibuster. Nobody disagrees that 
everybody should have a complete say on the matter. I agree with that. 
We are willing to talk about Miguel Estrada for as long as it takes. 
Because he is so well qualified, it is fun to talk about him, and it is 
going to be good to get him confirmed. When the talking is over, we 
need to have a vote up or down.
  May I also turn to a couple of other things the Senator from Vermont 
said. He talked about uniting and not dividing. I don't think there is 
anything divisive about Miguel Estrada. He is one of the kindest 
appearing people you can ask for. The ABA has given him a unanimous 
well-qualified rating. They take into account judicial temperament as 
well as qualifications. He has a great life story. He is certainly not 
a controversial person. So I personally don't think words such as 
``narrow, ideological court-packing'' and the like are the way to 
describe the President's approach to this.
  The President is certainly not trying to divide the country in 
nominating a very well qualified Hispanic judge such as Miguel Estrada. 
Actually, I think the concern is more to another point the Senator from 
Vermont made, which is that, in some people's view, there is not enough 
of a record on Miguel Estrada, that maybe he is a closet ideologue. I 
have heard that phrase bandied about. Again, the ABA's rating--
considered to be the gold standard by many colleagues--would 
demonstrate that he is not an ideologue. There is no evidence of that. 
I think some are searching for that evidence, and they don't have 
anything against him, so they are saying the record is incomplete. So 
it is a catch-22.
  I also note that the Judiciary Committee itself, then including under 
the leadership of the Senator from Vermont, has always submitted a 
questionnaire to our judicial nominees. One of the questions goes right 
to the point of trying to determine whether or not anybody is applying 
a litmus test to the nominee. I can remember back in Ronald Reagan's 
days there were opponents of President Reagan who said: You are 
applying a litmus test on the abortion issue. Reagan said: I never 
asked anybody their view on the question.
  The Judiciary Committee wanted to make sure nobody was trying to find 
out what a nominee's positions were on issues they would be confronting 
on the court. That would be wrong. Therefore, one of our questions to 
every judicial nominee is: Has anybody ever asked you about your 
specific views on issues or about cases and how you might rule on cases 
that might come before you? And, if so, please state the circumstances 
and the names.
  The committee, in other words, wanted to make sure nobody was trying 
to find out from candidates how they would rule on particular issues, 
or what their particular ideology was, because we didn't believe that 
to be appropriate in judging nominees. Now it appears that there are 
some who believe exactly the opposite, that indeed we must find out 
everything we can about the ideology of a candidate, and if it is not 
considered ``mainstream enough'' by some, that would be grounds for 
denying the confirmation of the candidate. That has never been the test 
and should not be now.
  I hope we can continue to apply the questionnaire from the Judiciary 
Committee and ensure that candidates are not punished for not answering 
questions that we ourselves don't think it appropriate to ask.
  The Senator from Vermont made one rather astonishing claim, and that 
was that--I believe I have the quotation--Miguel Estrada has had 
``little relevant experience.'' My goodness, if it hasn't been put in 
the Record, I ask unanimous consent that the op-ed in the New York Post 
today by Rudolph Giuliani be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Post, Feb. 10, 2003]

                             An Ugly Stall

                         (By Rudolph Giuliani)

       A 17-year-old named Miguel Estrada immigrates to this 
     country from Honduras, speaking only a few words of English. 
     He attends Columbia College, making Phi Beta Kappa and 
     graduating magna cum laude, then Harvard Law School, becoming 
     editor of the Law Review.
       Next, he serves as a clerk first to U.S. Court of Appeals 
     Judge Amalya L. Kearse (a President Carter appointee), and 
     then to Supreme Court Justice Anthony M. Kennedy. From there, 
     he joins the Solicitor General's Office, serving as assistant 
     to the solicitor general of the United States for a year 
     under President George H.W. Bush and for four years under 
     President Clinton.
       Then Estrada becomes a partner in a prestigious private law 
     practice--yet finds the time to perform significant pro bono 
     service, including some four hundred hours representing a 
     death row inmate before the Supreme Court.
       In recognition of his special abilities and achievements, 
     President Bush nominates Miguel Estrada to the U.S. Court of 
     Appeals for the D.C. Circuit. He is supported by no fewer 
     than 16 Hispanic groups, who express enormous pride at the 
     prospect of the first Hispanic joining one of America's most 
     prestigious courts. Also supporting him are numerous 
     prominent Democrats, including President Clinton's solicitor 
     general and Vice President Gore's counselor and chief of 
     Staff.
       Sounds pretty good? Well, here's where this story run the 
     risk of a most unhappy--and unfair--ending.
       For nearly two years, Senate Democrats have delayed action 
     on the nomination of Miguel Estrada.
       Citing no specific issues, Democratic senators vaguely 
     alluded to Estrada being ``way out of the mainstream.'' 
     Others raised equally hollow charges--all of which have not 
     only kept Estrada from getting the vote he deserves, but 
     denied the American people of a talented and effective 
     jurist.
       Obviously, the fact that the Judiciary Committee was 
     controlled by the Democrats until this year helped delay 
     action. Last week, the committee finally voted to approve 
     Estrada's nomination, hewing strictly to party lines. But now 
     a few Democratic senators want to prevent a vote before the 
     full Senate by way of a filibuster.
       Despite all the racket, the knocks against Estrada are so 
     easily dismissed that it is difficult to see them as anything 
     other than a thin veil disguising his detractors' true 
     motives. Let's take a look at them:
       Some note that Estrada lacks judicial experience. Yet five 
     of the eight judges now on the D.C. circuit had no previous 
     judicial experience--including Chief Judge Harry Edwards, who 
     when President Carter appointed him in 1979 was even younger 
     than Estrada is now. Indeed, several Supreme Court justices--
     including Byron White and Chief Justice William Rehnquist--
     had never been judges when they were named to the land's 
     highest court.
       Estrada is no rookie. He has argued 15 cases before the 
     Supreme Court and was a highly respected Assistant U.S. 
     Attorney in my old office, the Southern District of New York. 
     And the American Bar Association unanimously gave him its 
     highest rating--``well qualified,'' a designation that some 
     of the very senators who now oppose him have called the 
     ``gold standard.''
       Some object that the Bush administration won't produce 
     memoranda from Estrada in the Solicitor General's Office. 
     Bear in mind the Solicitor General's function: His office 
     represents the United States in court--in other words, the 
     government is his client. Why would a client or his attorney 
     choose to reveal their private and privileged communications?
       The zeal to read a nominee's private memoranda seems to 
     apply only to this nominee. Seven past nominees to the Courts 
     of Appeals had worked in the Solicitor General's office--yet 
     not one was asked to disclose attorney-client memoranda. And 
     every living former Solicitor General--including Democrats 
     Archibald Cox, Seth Waxman and Walter Dellinger--signed a 
     letter to the Judiciary Committee stating that sharing these 
     confidential memos would damage the Justice Department's 
     ability to represent the United States before the Supreme 
     Court.
       Some civil-rights groups complain that in private practice, 
     Estrada defended anti-loitering laws. In truth, he was 
     retained by the Democratic City Solicitor of Chicago to 
     defend the constitutionality of the anti-gang ordinances of 
     Democratic Mayor Richard M. Daley.
       Miguel Estrada brings a proven ability to work with others 
     in a fair and constructive way, and his appeal is not limited 
     to any set of ideological backers. President Clinton's 
     Solicitor General, Seth Waxman, called his former colleague a 
     ``model of professionalism and competence'' and described his 
     ``great respect both for Mr. Estrada's intellect and for his 
     integrity.'' Ronald Klain, former Counselor to Vice President 
     Gore, wrote: ``Miguel is a person of outstanding character, 
     tremendous intellect, and with a deep

[[Page 2654]]

     commitment to the faithful application of precedent.''
       The Senate must fulfill its duty to consider the 
     appropriateness of judicial nominees. But that ``advice and 
     consent'' was never meant to empower special-interest groups 
     to hijack the appointments of abundantly qualified, eminently 
     decent nominees.
       If senators who feel it's their right to let special-
     interest agendas derail Estrada, the judiciary will lose a 
     wonderful opportunity. Far worse, the entire system will have 
     fallen victim to narrow and misguided attempts to thwart the 
     Constitution.
       The stalling of Miguel Estrada's confirmation has been not 
     only unseemly and demeaning, but a perversion of the system 
     of judicial selection. It is also the escalation of a 
     dangerous trend. In their first two years in office, 
     Presidents Bill Clinton, George H.W. Bush and Ronald Reagan 
     saw more than 90 percent of their nominees to federal appeals 
     courts confirmed. In the first two years of this 
     administration, the figure is barely 50 percent.
       Some say that's because President Bush isn't nominating 
     qualified individuals. But Miguel Estrada clearly puts the 
     lie to that suggestion.
       I urge the Senate to allow this worthy man a vote. I urge 
     the Senate not to underestimate what a fair vote will mean to 
     Hispanic all across America.
       I feel certain the result will be a confirmation--another 
     wonderful chapter in a true American success story.

  Mr. KYL. Mr. President, in this wonderfully written piece, Rudy 
Giuliani talks about the astonishing record of this immigrant from 
Honduras, speaking only a few words of English, who attended Columbia, 
made Phi Beta Kappa, graduated magna cum laude, then went to Harvard 
Law School, and became editor of the Law Review. He clerked on the U.S. 
Court of Appeals and then for Justice Kennedy on the U.S. Supreme 
Court. He joined the Solicitor General's Office, serving as an 
assistant under two Presidents, a Republican and a Democrat, and he was 
a partner in a prestigious law firm. He has argued 15 cases before the 
Supreme Court. And he has ``little relevant experience''?
  The courts are full of judges who were not judges before they were 
appointed to the court. At some point, a person has to go from being a 
lawyer to a judge before he can be a judge. Certainly, there are a lot 
of non-lower-court judges, district court judges, who have been 
appointed not only to the circuit court of appeals to which this 
nominee is nominated, but also even to the U.S. Supreme Court. In fact, 
I believe that in this piece Giuliani points out that on this very 
circuit, Chief Judge Harry Edwards who, when President Carter appointed 
him--and he was even younger than Miguel Estrada--did not have previous 
judicial experience, nor did five of the eight justices now on the 
court. So that is not a predicate for serving on this court.
  This is hardly a rookie candidate. I think you carry this argument 
too far. I urge my colleagues to consider this. With respect to many 
minorities, they are almost saying, you are not going to get a chance 
because we don't have that many minorities who serve on courts today. 
If the requirement for service on a higher court is that you already 
are a judge, we are going to cut off a lot of minorities from 
consideration. That is a glass ceiling, Mr. President, which we should 
not impose.
  Finally, the Senator from Vermont talked about a lot of candidates he 
supported who had not been confirmed. But that is not relevant to 
Miguel Estrada. The question before us today is: should Miguel Estrada 
be confirmed? I know the Senator from Vermont is not saying he opposes 
Mr. Estrada for spite or for retribution because of candidates he 
supported. That would not be appropriate. I know the Senator does not 
mean that.
  Let's get back to Miguel Estrada and talk about his qualifications. 
It boils down to two things, it seems to me: Is this person qualified 
to serve on the DC Circuit Court of Appeals? To that, there can be no 
answer but as the American Bar Association unanimously said, he is very 
well qualified. To the second point, after we are done talking about 
Miguel Estrada, after everything has been said, should we call for an 
up-or-down vote, or is this going to be the first time in the history 
of the Senate where we kill a nominee for circuit court by a partisan 
filibuster? That would be, as the Senator from Vermont pointed out, a 
very bad precedent, and I hope all the rest of my colleagues join the 
Senator from Vermont in objecting and fighting against any filibuster 
on a judge, whether it is somebody they oppose or support.
  If we approach this nominee in this way, I think we will confirm 
Miguel Estrada, and it will do the Senate proud and it will do the 
Nation proud.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, if the Senator will withhold for a moment, 
I ask unanimous consent to print in the Record a number of items.
  The PRESIDING OFFICER. Does the Senator want to say what they are?
  Mr. LEAHY. Why don't I read them into the Record? I will read them 
and there will be no question. Will Senator Grassley yield time? It 
will take 15 minutes to read them.
  The PRESIDING OFFICER. The Chair will be glad to insert them without 
objection. The Chair thought the Senator would want to identify them.
  Mr. LEAHY. I am sorry, Mr. President, I was following the procedure 
followed by the other side this morning of putting items in the Record 
without identifying them.
  Why don't I read them all so there will be no question, if the 
Senator from Iowa does not mind waiting 20, 30, 40 minutes for me to do 
that, or if there is no objection, I will renew my request that the 
Puerto Rican Legal Defense and Education Fund position statements 
regarding Mr. Estrada be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                For Immediate Release, January 27, 2003

 Puerto Rican Legal Defense and Education Fund--Reissues Its Position 
 Statement Opposing the Nomination of Miguel A. Estrada to the United 
      States Court of Appeals for the District of Columbia Circuit

       We previously expressed our strong opposition to the 
     candidacy of Miguel Estrada for a Judgeship on the D.C. 
     Circuit Court of Appeals. The hearing which Mr. Estrada was 
     given by the Senate Judiciary Committee in September 2002 did 
     nothing to address our grave concerns about his fitness to 
     serve as an Appellate Judge. In fact, the hearing raised more 
     questions then it answered. Accordingly, we are reissuing our 
     position statement in strong opposition to Mr. Estrada's 
     nomination. In our review, it is clearly not in the best 
     interests of Hispanic Americans or for that matter all 
     Americans, to appoint an individual about whom there are 
     serious and for that matter unanswered doubts concerning his 
     ability to render justice in a fair and impartial manner.
                                                Pierre M. LaRamee,
     Executive Vice President.
                                  ____

                                       Reissued: January 27, 2003.

Position Statement on the Nomination of Miguel A. Estrada to the United 
      States Court of Appeals for the District of Columbia Circuit


                             I. background

       On May 9, 2001, Miguel A. Estrada was nominated by 
     President George W. Bush to the United States Court of 
     Appeals for the District of Columbia Circuit. That court is 
     widely considered to be the second most powerful court in the 
     nation and traditionally has served as a launching pad for 
     judges to be appointed to the United States Supreme Court. 
     Mr. Estrada has been touted as the first Hispanic-American 
     nominated to the DC Circuit, and many believe that he is 
     being groomed to be the first Hispanic-American Supreme Court 
     Justice. Because of the tremendous importance of this 
     nomination to our nation's nearly 40 million Latinos, and to 
     all Americans in general, the Puerto Rican Legal Defense & 
     Education Fund (PRLDEF), has decided to take a position on 
     his nomination.
       Since Mr. Estrada was nominated, PRLDEF has sought to learn 
     as much as it could about his background and qualifications 
     for the important, life-tenured position of Circuit Judge. 
     Because our offices are located seven blocks away from 
     ``Ground Zero'' in New York City, our diligent efforts were 
     interrupted by a six-month delay to mourn, reflect, and 
     recover after the tragic events of September 11. Thereafter, 
     we resumed our extensive examination of Mr. Estrada's history 
     and record. We reviewed his available writings, although such 
     writings are extremely limited. We conducted dozens of 
     interviews with individuals familiar with Mr. Estrada, 
     including those who have studied and worked with him as well 
     as those who have lived in the same communities with him. We 
     also surveyed all available news media reports and other 
     public materials concerning Mr. Estrada. Finally, we 
     interviewed Mr. Estrada himself.

[[Page 2655]]

       As a national civil rights organization primarily concerned 
     with advancing and protecting the civil and human rights of 
     the Latino community and all Americans through litigation, 
     policy analysis, and education, we sought to answer several 
     questions in evaluating Mr. Estrada's nomination. First and 
     foremost, is Mr. Estrada sufficiently qualified? Second, are 
     or should Mr. Estrada's reportedly extreme views by 
     disqualifying? third, would Mr. Estrada's life experiences 
     bring to the D.C. Circuit the unique sensitivities and 
     perspectives of Hispanic-Americans? Finally, does Mr. Estrada 
     possess the proper judicial temperament required for appeals 
     court nominees?
       For the reasons stated below, we believe that Mr. Estrada 
     is not sufficiently qualified; that his reportedly extreme 
     views should be disqualifying; that he has not had a 
     demonstrated interest in or any involvement with the 
     organized Hispanic community or Hispanic activities of any 
     kind; and that he lacks the maturity and judicial temperament 
     necessary to be a circuit court judge. Accordingly, we oppose 
     his nomination and urge the United States Senate Judiciary 
     Committee to reject his nomination.


                 ii. concerns about his qualifications

       While the positions Mr. Estrada has held and his 
     intellectual abilities may initially appear impressive, they 
     are neither as complete nor as impressive in depth and scope 
     as those of many others who have been or could be appointed 
     to the elevated position of Circuit Judge. Mr. Estrada seems 
     to us to have had insufficient experience for the position of 
     United States Circuit Judge, especially in the powerful D.C. 
     Circuit. His experience is not as extensive as that of others 
     who have been appointed to the federal appellate courts and 
     have had greater depth and breadth of experience.
       Historically, both judicial experience and academic 
     experience have been given great weight in considering 
     nominations for circuit court judgeships. Perhaps most due to 
     his relatively young age of 39 when he was nominated, 
     however, Mr. Estrada had not had any judicial experience 
     whatsoever. Nor has he had any academic or teaching 
     experience. Much of his legal experience has been devoted to 
     handling criminal law matters. In addition, he simply has not 
     developed a sufficient record upon which one could fairly 
     evaluate his positions, fairness and reasoning skills.
       Traditionally, the written record from either scholarly 
     works or judicial opinions has historically served as the 
     best basis upon which candidates for appellate courts have 
     been evaluated. Where a written record does not exist, life 
     experiences and activities have been relied upon to help 
     measure fairness and reasoning skills. Mr. Estrada's record 
     provides a wholly inadequate basis upon which to conclude 
     that he can be a fair and impartial court judge. This is 
     especially relevant and important given the fact that a 
     number of his colleagues have said unequivocally that Mr. 
     Estrada has expressed extreme views that they believe to be 
     outside the mainstream of legal and political thought. 
     Unfortunately, we could not fully test these strong 
     impressions against Mr. Estrada's very limited record. If Mr. 
     Estrada first served as a district court judge or in another 
     judicial capacity, we would have a much more complete record 
     upon which to assess his later nomination to the court of 
     appeals.


                     iii. concerns about his views

       Despite the absence of a written record of Mr. Estrada's 
     views, concerns over whether Mr. Estrada could impartially 
     serve on an appellate court have been heightened because 
     individuals who have worked with and even supervised him have 
     both privately and publicly stated that he is an ideologue 
     with extremely strong ideological views, and would have 
     difficulty keeping those views from affecting his judgment 
     when deciding cases as an appellate judge. He has reportedly 
     made strong statements that have been interpreted as hostile 
     to criminal defendants' rights, affirmative action and 
     women's rights. Additionally, he has clearly chosen to be 
     actively engaged principally with ideological causes and 
     organizations, such as the Federalist Society and the Center 
     for the Community Interest. Members of these groups have been 
     outspoken on the issues we believe are of concern to 
     minorities, the very groups Mr. Estrada should be sensitive 
     to. It is also particularly noteworthy that some of the most 
     ideologically extreme organizations in our nation have 
     endorsed his nomination.
       Because of Mr. Estrada's very limited written record, 
     coupled with his refusal to answer detailed questions about 
     his ideological views, the public and private reports of his 
     extreme ideological views were not effectively rebutted, and 
     should therefore be disqualifying.
       The Senate Judiciary Committee asked Mr. Estrada to provide 
     information on the ten most significant litigated matters 
     that he personally handled and whether he had played any role 
     in a political campaign. Curiously, Mr. Estrada failed to 
     include two important activities in his response. He 
     neglected to mention that he participated in the preparation 
     of a brief in the Bush v. Gore election recount litigation, 
     and that he served on the Bush Department of Justice 
     Transition Team.
       When questioned on whether the Supreme Court has hired 
     enough minority law clerks, Mr. Estrada's response was ``if 
     there was some reason for underrepresentation, it would be 
     something to look into . . . but I don't have any reason to 
     think it's anything other than a reflection of trends in 
     society.'' He said that he does not know whether he has been 
     a beneficiary of affirmative action or not. He explained that 
     he may be for or against affirmative action depending upon 
     the particular issues at hand.
       Bush Administration supporters of Mr. Estrada tout his 
     nomination by stressing that he is the first Hispanic to be 
     nominated to the D.C. Circuit Court of Appeals, and could 
     become the first Hispanic Supreme Court Justice. This 
     ``Hispanic'' touting is at odds with Mr. Estrada's clearly 
     expressed desire to be judged only ``on the merits.'' Mr. 
     Estrada's views on the ethnic dimension of his candidacy 
     notwithstanding, it is clear that the Bush Administration 
     fully intends this to be a ``Hispanic'' nomination to the 
     Court. This intent is what compels our interest in and 
     underscores both the importance of this nomination and the 
     relevance of this issue to the Hispanic community.


            iv. concerns of the hispanic-american community

       Of greatest concern to the Latino community is Mr. 
     Estrada's clear lack of any connection whatsoever to the 
     issues, needs, and concerns of the organized Hispanic 
     community. It is indeed ironic that someone promoted as a 
     Hispanic has neither shown any demonstrated interest in, nor 
     has had any involvement with many Hispanic organizations or 
     activities throughout his entire life in the United States. 
     Nor has he been involved with, supportive of, or responsive 
     to issues of concern to Latinos.
       Some have attempted to portray his story as a compelling 
     one of a Hispanic who came to this country speaking little to 
     no English. In stark contrast with this story, however, the 
     reality is that Mr. Estrada appears to have come from a 
     privileged background and received English training and 
     education prior to his arrival in the United States. This 
     training enabled Mr. Estrada to participate fully in the 
     educational opportunities afforded to him in the United 
     States. As the son of a lawyer and a bank vice president who 
     had the resources to finance superior educational 
     opportunities for him, Mr. Estrada has not lived the 
     educationally or economically disadvantaged life his 
     proponents would have others believe. Nor have Mr. Estrada's 
     life experience resembled or been shared with those of 
     Latinos who have experienced discrimination or struggled with 
     poverty, indifference or unfairness.
       Knowledge of people and of their aspirations for fairness 
     and justice should be possessed by all candidates for 
     judicial office. Mr. Estrada has lived a very different life 
     from that of most Latinos--a life isolated from their 
     experience and concerns. Once he made it, he both disappeared 
     from and never became connected or committed to the Hispanic 
     community. As a result, we believe that he lacks the 
     sensitivity and perspectives shared by the majority of 
     Hispanic-Americans in our country. During our interview with 
     him, he took offense at the view that he is disconnected from 
     the Hispanic community, but he countered those concerns 
     merely by asserting that he listens to Hispanic music and 
     reads Spanish language books. We believe that he is 
     disconnected from the real-world activities that would enable 
     him to contribute uniquely to the development of the law and 
     the enhancement of the administration of justice, as have 
     other Hispanics who have served as judges before him.


               V. CONCERNS ABOUT HIS JUDICIAL TEMPERAMENT

       We have serious concerns about Mr. Estrada's judicial 
     temperament. Simply put, he has been described as one who is 
     arrogant and elitist. It has been reported that he 
     ``harangues his colleagues'' and ``doesn't listen to other 
     people.'' We witnessed these qualities first-hand during our 
     interview.
       Based largely on our personal observations, we now firmly 
     believe that Mr. Estrada lacks the maturity and temperament 
     that a candidate for high judicial office should possess. In 
     our view, he does not have the humility or the demeanor 
     typical of worthy nominees to our nation's federal bench. He 
     does not appear to us to be even-tempered. While Mr. Estrada 
     may have been understandably apprehensive about the 
     opportunity to meet with PRLDEF to allay its concerns, he was 
     surprisingly contentious, confrontational, aggressive and 
     even offensive in his verbal exchanges with us.
       He made several inappropriately judgmental and immature 
     comments about PRLDEF. He characterized some of PRLDEF's 
     president's comments as ``boneheaded.'' He indicated that 
     were it not for his quasi-public status as a judicial 
     nominee, our comments might otherwise be actionable. He 
     stated that we ``had probably already made up [our] minds to 
     oppose his nomination because the person [we] had supported 
     had lost the presidential election.'' In fact. PRLDEF had not 
     made up its mind nor had it endorsed any presidential 
     candidate. Mr. Estrada also made a fleeting reference to 
     ``[our] Democratic senator friends on the

[[Page 2656]]

     Hill.'' In fact, PRLDEF has Republican senator friends on the 
     Hill as well. He also challenged PRLDEF's board chair on how 
     [we] could say that ``there is a strong consensus among 
     Hispanic attorneys and Hispanics in general that they do not 
     want to see a Hispanic Clarence Thomas on the U.S. Supreme 
     Court.''


                             VI. conclusion

       For all of the above reasons, we strongly believe that Mr. 
     Estrada's nomination should be opposed and rejected. 
     Potential nominees who aspire to such important positions as 
     circuit judges should be better qualified and possess the 
     unquestioned ability to be fair, open-minded and committed to 
     equal justice for all Americans. They should be connected to 
     the real-world concerns of the people who will be governed by 
     their decisions. They should also be even-tempered. In our 
     view, Mr. Estrada clearly does not possess the qualities 
     necessary to be placed in such an important position of 
     trust--for a lifetime--interpreting and guarding the rights 
     of ordinary Americans.
       For more information contact the offices of Pierre M. 
     LaRamee, Executive Vice President Puerto Rican Legal Defense 
     and Education Fund.
                                  ____

  Mr. LEAHY. Mr. President, very briefly, we were going back and forth. 
I agreed to let the Senator from Arizona go out of order. I see the 
Senator from Iowa waiting, and he will also be out of order. I know the 
Senator from California is coming to the Chamber. Will the Senator from 
Iowa give me some idea how much time he wants? I have no objection to 
him going out of order.
  Mr. GRASSLEY. I have no objection coming back at 5:30 p.m.
  Mr. LEAHY. The Senator from Iowa is here, and the Senator from 
California is not here. Why doesn't the Senator from Iowa go forward 
and then yield to the Senator from California after she arrives? Will 
the Senator from Iowa have any objection to that?
  Mr. GRASSLEY. In other words, if she comes in, I would stop and let 
her speak?
  Mr. LEAHY. How much time?
  Mr. GRASSLEY. I think 20 minutes.
  Mr. LEAHY. Mr. President, why doesn't the Senator just go ahead.
  Mr. GRASSLEY. Like I said, I can come back at 5:30 p.m.
  Mr. LEAHY. The Senator should feel free to go ahead. When he is 
finished, then if the Senator from California can be recognized next.
  I might also note the Senator from Arizona was speaking of stopping a 
filibuster; otherwise stopping somebody from being heard on the floor. 
I note there are many ways of doing this. For example, the Senator from 
Arizona is one who voted against even the motion to proceed on Judge 
Richard Paez and then also voted against him. That is one of the many 
well-qualified or highest qualification nominees of President Clinton's 
against whom he voted. That is one of the many ways of stopping a 
nomination.
  Mr. KYL. Mr. President, since the Senator from Vermont just mentioned 
my name, may I briefly respond?
  Mr. LEAHY. Mr. President, the Senator from Arizona mentioned my name 
about 20 different times. If we are going to respond to each one, I 
will be glad to do it. I am trying to yield so the Senator from Iowa 
can have the floor.
  Mr. KYL. Mr. President, will the Senator from Iowa give me 15 
seconds, and I will be happy to respond.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. I voted for invoking cloture on the Paez nomination because, 
of course, I agree with Senator Leahy that we should not filibuster a 
judge nominated by the President.
  Mr. LEAHY. As I recall, we all voted for cloture. The motion to 
proceed to even get there was the crucial vote when the Senator from 
Arizona voted against the motion to proceed.
  I yield to the Senator from Iowa.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. KYL. Will the Senator yield me 10 seconds?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. There were several votes against cloture that did not pass 
unanimously.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. GRASSLEY. I thank the Chair. Mr. President, I thank Senator Leahy 
for his consideration. Obviously, since I voted for this nomination out 
of committee and I argued last year that the nomination should have 
come up last year, I am strongly in support of President Bush's 
nominee, Miguel Estrada. I think he is a very qualified judicial 
nominee and will make an excellent member of the U.S. Court of Appeals 
for the DC Circuit.
  Not only is he regarded as one of the Nation's top appellate lawyers, 
but the American Bar Association, which I think Democrats consider the 
gold standard of determination of a person's qualifications to be a 
judicial nominee, has given him a unanimous rating of, in their words, 
``well qualified.'' This happens to be the highest American Bar 
Association rating. It is a rating they would not give to just any 
lawyer who comes up the pike. According to the American Bar 
Association, quoting from their standard:

       To merit a rating of well qualified, the nominee must be at 
     the top of the legal profession in his or her legal 
     community, have outstanding legal ability, breadth of 
     experience, the highest reputation for integrity and either 
     have demonstrated or exhibited the capacity for judicial 
     temperament.

  Just think of some of those words: ``The highest reputation for 
integrity'' and having ``demonstrated or exhibited the capacity for 
judicial temperament.'' This was from the American Bar Association's 
rating of well qualified.
  We ought to demand that more of these people be appointed to the 
bench rather than fighting their nomination. Mr. Estrada then certainly 
deserves the American Bar Association's most qualified rating.
  As my colleagues know, I am not a lawyer. There is nothing wrong with 
going to law school, but I did not. I have been on the Judiciary 
Committee my entire time in the Senate. I know some of the 
qualifications that are needed to be a Federal judge and particularly a 
Federal judge on this DC Circuit that handles so many appeals from 
administrative agencies and is often considered, by legal experts, to 
be the second highest court of our land.
  Mr. Estrada's academic credentials are stellar. He earned his juris 
doctorate from Harvard University, magna cum laude, where he was editor 
of the Harvard Law Review. Mr. Estrada did not just attend Harvard Law 
School; he graduated with honors. He also served as the editor of the 
Harvard Law Review.
  To be selected as the editor of a law review is a feat that only the 
most exceptional of law students attain. Not only did he excel in law 
school, but he graduated from Columbia University with his bachelor's 
degree magna cum laude and was also a member of Phi Beta Kappa.
  Mr. Estrada certainly has the intellect required to be a Federal 
Court of Appeals judge. His professional background also gives 
testament to his being qualified for a Federal Court of Appeals 
judgeship as opposed to just any judgeship.
  After law school, Mr. Estrada served as a law clerk to the Second 
Circuit Court of Appeals, and to Justice Kennedy, on the United States 
Supreme Court. Subsequently, he served as an Assistant U.S. Attorney 
and Deputy Chief of the appellate section of the U.S. Attorney's Office 
of the Southern District of New York, and then as assistant to the 
Solicitor General of the United States of America, officed in 
Washington, DC.
  Mr. Estrada has been in the private sector as well. He is a partner 
with the Washington, DC, office of the law firm of Gibson, Dunn & 
Crutcher. So for a very young lawyer, I think I can give my colleagues 
a person who can truly be labeled an American success story. In fact, 
instead of downgrading his ability to serve as a circuit court judge, 
we should all be proud of Mr. Estrada's many accomplishments.
  We are hearing that the Democrats are considering a filibuster of 
this exceptionally qualified lawyer. In all my years on the Judiciary 
Committee--and that has been my entire tenure in the Senate--
Republicans never once filibustered a Democratic President's nominee to 
the Federal bench. There are many I may have wanted to filibuster, but 
I did not do it--we did not do it--because it is not right.
  This nominee, like all nominees, deserves an up-or-down vote. 
Anything

[[Page 2657]]

less is absolutely unfair. I hope my colleagues on the other side of 
the aisle will strongly consider this proposed filibuster before they 
cross this Rubicon and establish new precedent for confirmation.
  Mr. Estrada's opponents claim he has not answered questions or 
produced documentation, and so he should not be confirmed to the 
Federal bench. I can think of a number of Democratic nominees who did 
not sufficiently answer even my questions, but that did not lead me to 
filibuster. As far as I know, Mr. Estrada has answered all questions 
posed to him by the Judiciary Committee members, and that the Justice 
Department has directed certain in-house memos not be turned over 
because this is the policy of the Department and this documentation has 
never been produced to the Judiciary Committee. This is not just the 
policy of this administration, the Bush administration, a Republican 
administration. This has also been the policy under Democratic 
Presidents.
  So once more, we see a coalescing of liberal activists circling the 
wagon around a very talented, very principled, highly qualified legal 
mind to defeat Mr. Estrada's nomination solely because these activists 
have determined that he may not comply with some sort of liberal 
ideological agenda. These liberal interests only want the Senate to 
confirm judicial nominees who will be sure to implement a left-wing 
agenda, and if there is any question they will not do their bidding, 
then those judges and those nominees better watch out.
  As far as I can see, the concerns raised about Mr. Estrada are pure 
speculation and, most importantly, highly politically motivated. This 
is a disgrace. It is an outrage, but we must put a stop to these 
unfounded political attacks and get on with the business of confirming 
to the Federal bench good men and women who are committed to doing what 
judges should do, interpret law as opposed to those who make law from 
the bench, because it is our responsibility to make law as members of 
the legislative branch.
  Additionally, we have concerns materializing out of thin air that Mr. 
Estrada may not have the right judicial temperament for the job. Of 
course, that goes contrary to the analysis made by the American Bar 
Association committee which gave him a well-qualified determination, 
and that well-qualified determination only goes to those people who 
have judicial temperament.
  This determination against Mr. Estrada, by these activists, goes to 
the point that he is some right-wing ideologue who will impose his own 
views and cannot be trusted to follow the law written by Congress. In 
my opinion, these concerns and these allegations are fabrication and 
pure speculation. They have no basis in fact. To the contrary, numerous 
present and former co-workers, as well as individuals who know Mr. 
Estrada and his work very well, have written letters to the Judiciary 
Committee expressing strong support for Mr. Estrada. They go on to say 
he will take the law seriously, apply Supreme Court precedent 
faithfully, and not rule based upon personal views and political 
perspectives.
  If a judge has the law in front of him, if a judge is willing to 
follow the interpretation of the Supreme Court, and if a judge leaves 
out his personal views and leaves out his own political perspectives, 
then what he has in front of him is only the language of the law and 
the precedent. That is what a judge is supposed to make his decision 
on. That is what he said he would do. More importantly, people who have 
known him over a long period of time are convinced he will so do.
  Letters from Republicans and Democrats have highly praised Mr. 
Estrada's intellect, judgment, integrity, and ethics. Yet we still have 
some who are quick to lend credence to unfounded attacks which appear 
to have been generated primarily by Paul Bender, a former politically 
appointed supervisor in the Solicitor General's Office during the 
Clinton administration.
  Clearly, Mr. Bender's allegations are politically motivated. Not only 
is Mr. Bender a liberal activist, his own out-of-the-mainstream views 
on matters such as pornography cast serious doubts on his ability to 
fairly judge Mr. Estrada's qualifications. Need I remind my colleagues 
of the Clinton administration where they had a flip-flop fiasco in the 
Knox case, where Mr. Bender had a heavy hand in formulating a very 
extremist position that directly ran counter to a child pornography 
statute and to clear congressional intent about that child pornography 
statute.
  Need I remind my colleagues that Mr. Bender's position would have 
resulted in the freeing of a twice-convicted child pornographer who had 
demonstrated a tendency to lure underage girls into criminal 
relationships. Need I remind my colleagues of the resolution they 
themselves voted on in the House and Senate that soundly rejected Mr. 
Bender's position in the Knox brief? I highly doubt Mr. Bender's own 
judgment is unbiased enough to provide an accurate recommendation of 
Mr. Estrada's ability to be a judge on the DC Circuit, particularly 
when these statements contradict Mr. Bender's own contemporaneous, 
glowing evaluations of Mr. Estrada when Mr. Estrada was one of those he 
supervised at the Solicitor General's office. Mr. Estrada was given 
glowing evaluations by Mr. Bender.
  I also point out that Mr. Bender appears to be the only one of Mr. 
Estrada's former colleagues at the Department of Justice that now 
questions Mr. Estrada's ability to be a good judge. In fact, as far as 
I know, everyone else who has worked with Mr. Estrada has praised his 
record to the high heavens and believes he is more than qualified for 
this judgeship. It is obvious that Mr. Estrada's record and his 
integrity have been unfairly and baselessly attacked by a political 
hatchet person.
  To whom are we going to listen? To whom do we 100 Senators listen? 
The American Bar Association, which interviewed scores of people and 
gave Mr. Estrada a unanimous ``well-qualified'' rating. The colleagues 
who know and who have observed Mr. Estrada's work over the years? Or 
are we going to listen to an advocate for freeing child pornographers, 
a man who is so extreme that his outrageous legal views were 
universally condemned in that vote on child pornography in the House 
and Senate?
  In addition, last week, in a Democratic caucus press conference held 
by the Senator minority leader, a representative of the Mexican 
American Legal Defense and Education Fund criticized the statement that 
I made in the Judiciary Committee's consideration of Mr. Estrada when I 
was speaking for his name to be voted out of committee. This is what I 
said: If we deny Miguel Estrada this position on the DC Circuit, it 
would be to shut the door on the American dream for Hispanic Americans 
everywhere.
  I said that because I believe it. Mr. Estrada is an example and a 
role model for all Americans, but he is a particularly bright and 
shining light for the Hispanic and immigrant communities in the United 
States of America. I don't happen to be alone in that belief. The 
League of United Latin American Citizens agrees with me because in a 
letter to Senator Leahy, the League of United Latin American Citizens 
expressed its strong support for Mr. Estrada, saying: Few Hispanic 
attorneys have as strong educational credentials as Mr. Estrada, who 
graduated Phi Beta Kappa from Columbia College and magnum cum laude 
from Harvard, where he was editor of the Harvard Law Review.
  Continuing: He also served as a law clerk to the Honorable Anthony M. 
Kennedy in the U.S. Supreme Court, making him only one of a handful of 
Hispanic attorneys to have had this opportunity. He is truly one of the 
rising stars in the Hispanic community and a role model for our youth. 
That is from the League of United Latin American Citizens.
  The Latino Coalition, a national Latino organization, also agrees 
that Mr. Estrada should be approved. They expressed in a press release 
last April that ``to deny Latinos, the Nation's largest minority, the 
opportunity to have one of our own serve on this court

[[Page 2658]]

in the Nation's Capital is unforgivable.'' I agree.
  We also have the National Association of Small Disadvantaged 
Businesses. In another letter to Senator Leahy, the president of the 
National Association of Small Disadvantaged Businesses said: Mr. 
Estrada's appointment as a first Hispanic member of the DC Circuit will 
be a benefit to us in further illustrating the wide range of talent in 
the minority community just waiting to be effectively and fully used.
  Mr. Estrada was not nominated just because he is Hispanic. The 
President nominated him because he is one of the most qualified lawyers 
in the country to serve in this position, not one of the most qualified 
Hispanic lawyers. However, because he is Hispanic, his nomination sends 
the clear message that with hard work anyone can achieve success. It 
speaks all about opportunity, the offering of opportunity for all kinds 
of people in America. In this case, especially, to Hispanics. He 
absolutely is the kind of role model that Hispanic youth should look up 
to, and we ought to encourage that opportunity.
  Unfortunately, some in the Hispanic community do not believe Mr. 
Estrada is Hispanic enough. I don't know where they are coming from--
Hispanic enough? What does that mean? According to the National Review 
at last week's Democratic press conference, representatives of the 
Congressional Hispanic Caucus, an organization I referred to before 
with the acronym MALDEF, and then another organization, the Puerto 
Rican Legal Defense and Education Fund, criticized Mr. Estrada for not 
being authentically Hispanic. If you are Hispanic, who is going to say 
whether or not you are authentically Hispanic? He is Hispanic as a 
result of his birth and the background of generations before him. Is 
that somehow supposed to fit people into a class that you isolate 
yourself and you have to have certain aspects about you that are 
uncompromising, or is it OK in America, whether you are German, 
Italian, African American, Hispanic, don't you have a right to be an 
individual? Can't you just be Mary Smith and Joe Smith and Mr. Estrada 
and anybody else you want to be as an individual? What is there about 
being authentically Hispanic?
  I ask unanimous consent that an article from the National Review 
entitled ``Dems to Miguel Estrada: You're not Hispanic Enough'' be 
printed in the Record after my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. GRASSLEY. Also at that press conference, remarks were made that 
one had to have more than a Hispanic surname to be considered Hispanic. 
I find these remarks do not make any sense. What they are saying is, 
unless you think as they do, you are not really Hispanic. In other 
words, if you do not think as they do, you cannot possibly be Hispanic. 
What an outrageous idea in 21st century America. The tag line that Mr. 
Estrada ``isn't Hispanic enough'' is code words for ``he isn't liberal 
enough.'' Yet at this Democratic press conference, participants 
describe the underrepresentation of Hispanics in the legislative and 
executive branches of the Federal Government.
  The President has nominated one of the most qualified attorneys in 
the country to be a judge on the second highest court of the land, and 
this person, of outstanding capabilities, with degrees from Columbia 
and Harvard, happens to be a Hispanic. Not only is he Hispanic, but he 
is an immigrant to this country who at the age of 17 came here from 
Honduras speaking little English. He learned the language, worked hard, 
rose to the top of his legal profession. One would think these groups 
would be happy with this nomination. But no, they stand in firm 
opposition to Mr. Estrada. You see, these groups believe a person is 
only Hispanic when he or she believes what these groups believe.
  That is intellectual prejudice. I urge my colleagues to resist the 
rhetoric of ideological prejudice and to overwhelmingly support the 
confirmation of Miguel Estrada to the U.S. Court for the DC Circuit.
  I yield the floor.

                               Exhibit 1

                [From the National Review, Feb. 6, 2003]

           Dems to Miguel Estrada: You're Not Hispanic Enough

                            (By Byron York)

       The headline from Senate Minority Leader Tom Daschle's news 
     conference Wednesday was his threat to filibuster the 
     appeals-court nomination of Miguel Estrada. ``There is 
     overwhelming opposition within our caucus to Mr. Estrada,'' 
     Daschle said. ``Because we're in the minority, we have no 
     other option in some cases . . . than to filibuster 
     nominations. We don't take that responsibility lightly, but 
     we hold it to be an important tool that we will use.'' 
     Daschle said he will make the filibuster decision next week.
       But the more interesting story from Daschle's appearance 
     was the strange disconnect between the reasons he gave to 
     oppose Estrada and the reasons cited by a number of Hispanic 
     interest-group leaders who appeared with Daschle.
       To hear Daschle tell it, Estrada's alleged refusal to 
     answer questions at his confirmation hearing had virtually 
     forced Democrats to vote against him, and perhaps to 
     filibuster the nomination. Democratic senators take their 
     advise-and-consent role very seriously, Daschle said, and, 
     ``In our view, we have been thwarted from fulfilling our 
     constitutional obligation.''
       But to hear representatives from the Congressional Hispanic 
     Caucus, the Mexican American Legal Defense and Education 
     Fund, the Puerto Rican Legal Defense and Education Fund, and 
     others tell it, the Estrada nomination should be killed not 
     because of Estrada's alleged refusal to answer questions or 
     because of constitutional obligations but because Estrada, 
     who was born and raised in Honduras before coming to the 
     United States and learning English at the age of 17, is 
     simply not authentically Hispanic.
       ``Being Hispanic for us means much more than having a 
     surname,'' said New Jersey Rep. Bob Menendez, a member of the 
     Congressional Hispanic Caucus. ``It means having some 
     relationship with the reality of what it is to live in this 
     country as a Hispanic American.'' Even though Estrada is of 
     Hispanic origin, and even though he lives in this country, 
     Menendez argued, he falls short of being a true Hispanic. 
     ``Mr. Estrada told us that him being Hispanic he sees having 
     absolutely nothing to do with his experience or his role as a 
     federal court judge. That's what he said to us.'' Menendez 
     found that deeply troubling.
       But Menendez was relatively kind to Estrada compared to the 
     representatives of Hispanic interest groups. Angelo Falcon, 
     an official of the Puerto Rican Legal Defense and Education 
     Fund, railed about the ``Latino Horatio Alger story that's 
     been concocted'' about Estrada's success and, more generally, 
     about the ``concocted, invented Latino imagery'' of Estrada's 
     life.
       ``As the Latino community becomes larger and larger in the 
     country, as we gain more political influence, as we become 
     more diverse, the issue of what is a Hispanic becomes more 
     problematic,'' Falcon explained. ``It's not good enough to 
     simply say that because of someone's genetics or surname that 
     they should be considered Hispanic.''
       Marisa Demeo from the Mexican American Legal Defense and 
     Education Fund went even farther. Not only is Estrada not 
     authentically Hispanic, Demeo argued, but his elevation to 
     the federal bench would ``crush'' the American dream for 
     millions of genuine Hispanics in the United States.
       Demeo was particularly angry at Republican Judiciary 
     Committee member Sen. Charles Grassley, who last week said 
     that, ``If we deny Mr. Estrada a position on the D.C. 
     Circuit, it will be to shut the door on the American dream of 
     Hispanic Americans everywhere.'' ``Actually, the reverse is 
     true,'' Demeo said. ``If the Senate confirms Mr. Estrada, his 
     own personal American dream will come true, but the American 
     dreams of the majority of Hispanics living in this country 
     will come to an end through his future legal decisions.''
       Through it all, Daschle stood by impassively. He couldn't 
     very well cite Estrada's alleged lack of authentic Hispanic-
     ness as a reason to filibuster and kill the nomination; even 
     the most partisan Democratic senator would have a hard time 
     making that argument. Yet he remained quiet while his allies 
     bashed Estrada in the most personal terms.
       It made some observers question just why Democrats are 
     opposing Estrada. Do they really believe their words about 
     their ``constitutional obligations,'' or are they going along 
     with the angry interest groups who are pushing them to do it?

  The PRESIDING OFFICER. The Senator from California.
  Mr. GRASSLEY. Mr. President, could I read something for the 
administrative staff?
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. I assume this is without objection from the other side. 
I thank the Senator from California.
  I ask unanimous consent that at 5 o'clock today the Senate proceed to

[[Page 2659]]

the consideration of the following nominations en bloc: Executive 
Calendar Nos. 28, 29, 30; provided further that there be 15 minutes of 
debate equally divided between the chairman and ranking member. I 
further ask unanimous consent that following that debate, the Senate 
then immediately proceed to three consecutive votes on the confirmation 
of the nominations, with no intervening action or debate; provided 
further that, following those votes, the President be immediately 
notified of the Senate's action.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. GRASSLEY. I yield the floor.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I rise to explain my position on the 
nomination of Miguel Estrada and to speak more generally on the state 
of the nomination process in today's Senate.
  This is a difficult time for all of us in the Senate and, indeed, the 
Nation. We stand on the brink of war, with an economy that is 
sputtering, and the threat of international terrorism as close at hand 
as it has ever been. These are serious issues, issues the American 
people have sent us here to debate and to try to solve. In doing so, it 
is vital we come together as a Government, not as Democrats versus 
Republicans, or Congress versus the White House, but as one Government 
and one Nation. As best we can, we should work together, consult each 
other, debate the issues forthrightly and with strength of purpose, and 
then come to agreement on how to solve the problems that confront us.
  One of the reasons this issue is so important is because the judges 
we confirm over the next few years will help decide whether acts of 
Congress will stand or will be struck down. They will decide how far 
the law will go to protect the safety and rights of the American 
people. They will have the power to limit or expand civil rights 
protections. They will have great leeway to interpret the laws 
protecting or limiting a woman's right to choose. They will be able to 
expand or limit gun control laws, laws against child pornography, 
campaign finance laws, and many more. In a real sense, these judges 
will have as much power, or more, than any of us in this body. Clearly, 
the court with the biggest impact will be the Supreme Court. But the 
District of Columbia Circuit Court is a close second and is often cited 
as the most powerful court in the Nation. It is no coincidence that the 
DC Circuit has produced more Supreme Court Justices than any other 
circuit. Three of the nine current Justices--Justice Scalia, Justice 
Thomas, and Justice Ginsburg sat on the DC Circuit. In fact, it is hard 
to overstate the importance of an appointment to the United States 
Circuit Court of Appeals and particularly the DC Circuit.
  The Supreme Court of the United States is our Nation's court of last 
resort. But it heard less than 80 cases in the 2000-2001 session. In 
contrast, the Federal courts of appeal considered over 27,000 cases 
during the same period. For so many of the legal injuries for which 
people seek redress, the courts of appeal are the last stop, the 
ultimate decisionmaker. And the DC Circuit is the most important of all 
circuit courts because it is the court that most closely oversees the 
actions of Federal agencies; actions that have real, everyday impact on 
the lives of all Americans. The DC Circuit reviews appeals regarding 
decisions by the Federal Communications Commission, the National Labor 
Relations Board, the Federal Election Commission, the Americans With 
Disabilities Act, the Federal Energy Regulatory Commission, the 
Endangered Species Act, and the Environmental Protection Act, including 
the Resource Conservation and Recovery Act; the Superfund, the Clean 
Water Act, the Clean Air Act, and countless other agencies and 
statutes.
  Because the Supreme Court reviews so few cases, the DC Circuit 
essentially has the last say on whether decisions by these agencies 
will stand or will not stand. In recent years, the DC Circuit has 
become a hostile forum for environmental protections. Since 1990, the 
DC Circuit has struck down or hindered a long list of crucial 
environmental protections, including clean air protections for soot and 
smog, habitat protection under the Endangered Species Act, clean water 
protection for millions of acres of wetlands, fuel efficiency standards 
known as CAFE standards, designation of sites on the Superfund National 
Priorities List, and guidelines on treatment of petroleum wastewater.
  As Senator Kennedy pointed out in Miguel Estrada's hearing, the 
recent case of Maryland/DC/Delaware Broadcasters Association v. the 
FCC, the DC Circuit found a portion of the FCC's equal opportunity 
policy unconstitutional. Specifically, the court struck down a policy 
of broad outreach for minority broadcasters. This decision, right or 
wrong, will have a significant impact on the ability of the FCC to 
encourage minority participation in the broadcast industry.
  Incidentally, Mr. Estrada essentially refused to comment on this case 
when asked to do so.
  Steffan v. Perry involved a young man at the U.S. Naval academy, 
Joseph Steffan, who admitted to two of his classmates that he was gay, 
although he never admitted actually performing any homosexual acts. 
Steffan was discharged under Department of Defense regulations 
indicating that homosexuality is incompatible with military service. 
Steffan argued his dismissal was impermissible, as it was based on 
status--being gay--not conduct. The DC Circuit held, in 1994, that the 
Defense Department regulations were permissible, however, and that the 
Steffan dismissal would stand.
  I could go on and on with cases--United States v. Bailey, for 
instance. Or AKA v. Washington Hospital Center, where the court ruled 
in favor of an orderly who, after 19 years of work, was forced to have 
heart surgery and who was then denied the right to transfer to another 
job within the hospital that would not require the same level of 
physical activity.
  The District of Columbia Circuit is also the court that most often 
reviews terrorism cases on appeal.
  All in all, it is quite clear that the District of Columbia Circuit 
is constantly at the center of complex key issues of the day.
  Currently, there is a delicate balance on this court. There are four 
Republican appointees, four Democratic appointees, and four vacancies. 
Therefore, this nominee effectively tilts the balance on that court. 
That is why many of us believe it is so important to learn how this 
nominee thinks, what his judicial temperament would be, and so on.
  During the last several years of the Clinton administration, two 
highly qualified Clinton nominees were blocked permanently. Some 
believe its purpose was to initiate a concerted, planned effort to keep 
vacancies open on that court so they could be filled with conservatives 
in the event of a Republican President.
  When President Bush took office, he sent us two nominees for the 
district circuit. One of them is Miguel Estrada. I don't believe it is 
appropriate for us to simply block all nominees to the District of 
Columbia Circuit in retaliation for that having been done to Democratic 
nominees. That is not why I am here today. But at the same time, we 
cannot ignore the fact that this important circuit is now so closely 
divided. In deciding whether to confirm a given nominee to such a 
delicately balanced court, we must ensure that the judges we send to 
the court can administer the law fairly and impartially. That is the 
case before us today: Can Miguel Estrada administer the law fairly and 
impartially?
  We have before us a 41-year-old nominee about whom we know very 
little. To properly discharge our constitutionally derived advise and 
consent function, the Members of the Senate must be given enough 
information to make the right decision about a given nominee.
  In this case, I have heard many comments on this nominee as a very 
bright but ideologically driven young attorney, one who would put his 
beliefs ahead of the law if confirmed to the

[[Page 2660]]

Federal bench. So I want to try to figure out whether or not that is 
true. Many who knew him, know him, have supervised him, or have spoken 
to him believe strongly that he does not have the temperament or 
impartiality necessary to fairly administer the law.
  My office has received literally thousands of calls about this 
nomination--more than 7,900 phone calls, to be exact. Fewer than 300 of 
those 7,900 calls were in favor of Miguel Estrada's nomination.
  To counteract serious concerns from those who know him and from those 
whom we represent, we need evidence that would contradict these 
opinions. Quite frankly, we do not have that evidence.
  Miguel Estrada has never been a judge. So we have no record of 
judicial decision-making to examine. This is not dispositive in itself, 
but it is the first area where we find no record to help us in our 
decision.
  Mr. Estrada is not a prolific writer. So we have no real record of 
writing to examine. Again, this alone would not be dispositive, but it 
is strike 2 in terms of where we can get information about this 
nominee.
  We have not been granted access to the memos he wrote at the 
Department of Justice. So we can only take the word of the man who 
supervised him that those memos were ideologically driven and that he 
could not be trusted.
  Mr. Estrada refused to adequately participate in his own confirmation 
hearings, which I will comment on as a great surprise to me and the 
reason I changed my view. So we have no real answers to our questions.
  Let me expand on this last point because I think it is instructive to 
examine and contrast our experience with Mr. Estrada and our experience 
with one other nominee.
  At last week's markup, I was struck by the lack of information about 
this nominee. Yet, as I said, I liked him very much when I met with him 
personally. But I was startled by his performance at the public 
hearing.
  So I got the transcripts, and I reread the transcripts to try to see 
if there was anything I missed--something I could zero in on that would 
let me know he would in fact be fair and impartial.
  What came to my mind was the real contrast with another nominee. That 
nominee is a man by the name of Jeffrey Sutton. He also was 
controversial. The disabilities community had a lot of concerns about 
him. But Mr. Sutton at his hearing answered every question put to him 
intelligently, in a fulsome way, and I thought forthrightly. So I could 
tell how he would act as an appellate court judge. The committee was 
able to gauge his intelligence, his manner of thinking, and we can use 
that back-and-forth to help us predict whether Mr. Sutton would be a 
good and fair judge or whether he would skew outcomes of cases to meet 
his own ideological goals.
  Mr. Estrada, on the other hand, did his best to keep from putting 
himself on the record on any issue of real substance. For instance, 
when Senator Schumer asked Mr. Estrada to name three Supreme Court 
cases in the last 40 years with which he disagreed, Mr. Estrada simply 
refused to answer.
  When I asked him whether he believed Roe v. Wade was correctly 
decided, he declined to answer on the basis that he had not done what 
the ``judicial function would require'' to determine whether the Court 
correctly decided the case.
  When Senator Leahy asked him what he thought of the decision in Romer 
v. Evans, a case involving discrimination against homosexuals, Estrada 
responded ``I can't know because I was not a judge in the case.''
  When Senator Kennedy asked Mr. Estrada a written question about a 
union retaliation case decided by the DC Circuit in 2001 and reversed 
by the Supreme Court last term, Estrada responded ``Although I have 
read the Supreme Court's opinion . . . I have not read the briefs in 
the case, was not present at the oral argument, and have not 
independently researched the issue decided by the Court. For those 
reasons, I am not in a position to know how I might have resolved the 
issue . . . nor am I in a position to answer the question whether the 
Supreme Court acted appropriately.''
  When Senator Kennedy asked him in writing whether another case 
involving diversity outreach had been decided correctly, Estrada again 
fell back on the argument that because he had not heard oral arguments 
and had not read the briefs, he could not answer.
  When Senator Kennedy asked Estrada about yet another Supreme Court 
case, American Trucking v. EPA, where the Supreme Court reversed the 
District of Columbia Circuit, Estrada again fell back on the argument 
that he had not been present for oral arguments and could not, 
therefore, comment on whether the case had been correctly decided.
  That kind of answer makes it truly difficult to get a sense of where 
a nominee is coming from in terms of thoughtful process, analysis, and 
legal expertise.
  When it comes to the most important circuit court in the Nation and 
there is no record and there is no writing, the Senate of the United 
States is entitled to know these answers.
  It strains credibility that a nominee for the circuit court of 
appeals would still have no opinion on whether a case such as Roe was 
correctly decided or whether any case in the last 40 years was 
incorrectly decided.
  Finally, it is troubling to get these answers from a nominee about 
whom we know so little and who is nominated to a court that will decide 
so much for so many.
  Taken as a whole, I could not, in good conscience, vote for this 
nominee, with so little information, recommending him to such an 
important lifetime appointment. And I cannot help but wonder: Why 
didn't the President appoint him to a District court? He is younger 
than my daughter. Give him an opportunity to produce a record and then 
move him on to an appellate court when that record could, in fact, be 
examined.
  A few days after I cast my committee vote against Mr. Estrada, White 
House Counsel Al Gonzales sent a letter addressed to me personally 
criticizing my vote and asking me to reconsider. Because Judge Gonzales 
has made the letter available to others, and it has now appeared in the 
press, I find it necessary that I correct the record. And I would like 
to do so.
  Mr. President, I ask unanimous consent that this letter from White 
House Counsel Alberto Gonzales, dated February 3, 2003, be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              The White House,

                                 Washington, DC, February 3, 2003.
     Hon. Dianne Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: I write in response to your vote in 
     the Judiciary Committee on the nomination of Miguel Estrada 
     and to respectfully urge that you reconsider this important 
     nomination when you vote on it in the full Senate. I write in 
     particular because it appears from your statement in the 
     Committee (and on your web site) that you may possess 
     inaccurate or incomplete information on certain issues that 
     you have deemed important to the Estrada nomination.
       First, it appears you relied on the fact that Estrada has 
     no previous judicial service. But five of the eight judges 
     currently serving on the D.C. Circuit had no previous 
     judicial experience when appointed. That includes two of 
     President Clinton's nominees, Merrick Garland, whose Justice 
     Department record was quite similar to that of Miguel 
     Estrada, and David Tatel. In addition, Judge Harry Edwards 
     had no prior judicial experience when he was nominated by 
     President Carter in 1979, and he was younger than Estrada. In 
     addition, several Ninth Circuit judges from California who 
     were appointed by President Clinton, and had your support, 
     had no prior judicial experience. That includes Judge William 
     Fletcher, Judge Raymond Fisher, and Judge Marsha Berzon.
       The American Bar Association, which Democrat Senators Leahy 
     and Schumer have referred to as the ``gold standard,'' 
     unanimously rated Estrada ``well qualified'' for the D.C. 
     Circuit, the ABA's highest possible rating. We think the ABA 
     rating was quite appropriate in light of Estrada's excellent 
     record, including his work as an Assistant Solicitor General 
     in the Clinton and Bush Administrations, his record as a 
     federal prosecutor in New York, his service as a law clerk to 
     Justice Kennedy, and his pro bono work including his 
     volunteer representation

[[Page 2661]]

     of a death row inmate before the Supreme Court. He has argued 
     15 cases before the Supreme Court of the United States, a 
     figure that few lawyers can match, and particularly 
     impressive for someone who immigrated to this country at age 
     17 speaking little English.
       Second, you also referenced a news report quoting the views 
     of Paul Bender, a former Deputy Solicitor General. Mr. Bender 
     has not written a letter to the Committee or otherwise 
     publicly explained his views, so we are unclear whether this 
     news report was accurate. But more important, as I explained 
     in a September 17, 2002, letter to then-Chairman Leahy and 
     Senator Hatch, Paul Bender in fact signed the performance 
     reviews of Miguel Estrada for the two years that they worked 
     together. The performance reviews for those years gave 
     Estrada the highest possible rating of ``outstanding'' in 
     every possible category. Significantly, the performance 
     reviews that Bender signed also stated the following to 
     support the judgment that Estrada's performance was 
     ``outstanding.''
       ``States the operative facts and applicable law completely 
     and persuasively, with record citations, and in conformation 
     with court and office rules, and with concern for fairness, 
     clarity, simplicity, and conciseness.''
       ``[I]s extremely knowledgeable of resource materials and 
     uses them expertly; acting independently, goes directly to 
     point of the matter and gives reliable, accurate, responsive 
     information in communicating position to others.''
       ``[A]ll dealings, oral and written, with the courts, 
     clients, and others are conducted in a diplomatic, 
     cooperative, and candid manner.''
       ``[A]ll briefs, motions or memoranda reviewed consistently 
     reflect no policies at variance with Department or 
     Governmental policies, or fails to discuss and analyze 
     relevant authorities.''
       ``[i]s constantly sought for advice and counsel. Inspires 
     co-workers by example.''
       Apart from the contemporaneous reviews that Mr. Bender 
     himself signed, it also bears mention that the Committee has 
     received letters from Seth Waxman, President Clinton's 
     Solicitor General, and a bipartisan group of 14 former 
     colleagues of Mr. Estrada in the Solicitor General's office. 
     Seth Waxman wrote to the Committee that Estrada is a ``model 
     of professionalism and competence'' and that he has ``great 
     respect both for Mr. Estrada's intellect and for his 
     integrity.'' He continued: ``In no way did I ever discern 
     that the recommendations Mr. Estrada made or the views he 
     propounded were colored in any way by his personnel views--or 
     indeed that they reflected anything other than the long-term 
     interests of the United States.'' And the bipartisan group of 
     former colleagues from the Office of Solicitor General wrote 
     to the Committee that Estrada ``would be a fair and honest 
     judge who would decide cases in accordance with applicable 
     legal principles and precedents.'' Finally, to the extent Mr. 
     Bender's own personal political and ideological views are 
     relevant, we call your attention to Senator Hatch's opening 
     statement at the hearing on September 26, 2002.
       Third, you referenced the fact that Miguel Estrada has been 
     `accused'' of using an ideological litmus test when assisting 
     Justice Kennedy in the selection of his law clerks. We 
     respectfully do not think this ``accusation'' is credible or 
     supported. In fact, Mr. Estrada explained at his hearing that 
     he in fact has been very supportive, for example, of the 
     hiring of one law clerk for Justice Kennedy who at the time 
     worked for President Clinton, is a strong Democrat, and now 
     works for Senator Leahy on the Judiciary Committee.
       Fourth, you noted concern among ``Hispanic organizations.'' 
     In fact, the overwhelming majority of national Hispanic 
     organizations have supported Mr. Estrada. That includes the 
     Hispanic National Bar Association, the League of United Latin 
     American Citizens, the U.S. Hispanic Chamber of Commerce, the 
     Hispanic Business Roundtable, and the Latino Coalition, among 
     many others. To be sure, MALDEF and PRLDEF do oppose Mr. 
     Estrada. As to Hispanic members of the House, we understand 
     that all of the Republican Hispanics support him while the 
     Democrat Hispanics do not. In any event, LULAC's statement is 
     noteworthy, as it states: ``[Estrada] is truly one of the 
     rising stars in the Hispanic community and a role model for 
     our youth.''
       Thank you for considering this nominee in light of the 
     above information. This is an historic nomination, as Miguel 
     Estrada would be the first Hispanic to serve on the D.C. 
     Circuit. We urge you to vote to confirm him.
           Sincerely,
                                              Alberto R. Gonzales,
                                         Counsel to the President.

  Mrs. FEINSTEIN. Mr. President, in his letter, Judge Gonzales 
suggested I based my decision to vote against Mr. Estrada on 
``inaccurate or incomplete information on certain issues that you have 
deemed important to the Estrada nomination.''
  Needless to say, I disagree with that assessment. It is not because I 
was misinformed that I voted against this nominee. It is because this 
nominee did not inform the committee enough. Simply put, Mr. Estrada 
did not adequately answer the questions put to him in his hearing.
  Particularly with a nominee who is so young, has such a very limited 
or nonexistent written record, and has been accused by so many of being 
too ideologically driven to serve impartially on the second highest 
court in the land, it is incumbent on each Member of the Senate, in our 
advise and consent role, to thoroughly examine the nominee's thought 
processes and to determine whether the nominee can and will be an 
impartial judge.
  In this case, it was impossible to make such an assessment because 
the nominee himself would not let us.
  Judge Gonzales raised four specific issues in his letter. I would 
like to take some time to go through the Gonzales charges and to answer 
them one by one.
  First, Judge Gonzales stated in his letter to me ``[I]t appears that 
you relied on the fact that Estrada has no previous judicial service.''
  It is true that Mr. Estrada has no previous judicial experience, but 
I did not rely on Mr. Estrada's lack of judicial experience, at least 
not exclusively.
  I said in my statement before the committee ``[i]n this case, it is 
truly difficult to make this decision, because we have before us a 
fairly young nominee--just 41 years old--who has never been a judge, 
has little written record to speak of, and who has not given us a real 
sense of what kind of judge he would be. He, essentially, is a blank 
slate. And if confirmed, he could serve for 30, 40 or even 50 years on 
one of the highest courts in this nation. We had better be right about 
this decision.''
  I truly believe this. This is a big decision, as are all our 
decisions to place nominees in lifetime positions of such power and 
influence over the lives of people.
  I was concerned, and I remain concerned, that given Mr. Estrada's 
lack of judicial experience, the Judiciary Committee needed to turn to 
other sources of information to get a better sense--any sense, really--
of the kind of judge he would be.
  Unfortunately, we had few other sources of information to which we 
could turn. With so few writings, no record as a professor, no access 
to legal memos he wrote while at the Department of Justice, our 
committee was left with little to go on as we contemplated this 
nominee.
  Mr. Estrada's lack of judicial experience was just one factor that 
made it more difficult to review his way of thinking and to determine 
what kind of judge he would become if confirmed.
  I have supported nominees without judicial experience in the past--I 
don't want anyone to get the wrong idea--and I would not hesitate to do 
so again when appropriate. Although I think it preferable, if possible, 
to have nominees with judicial experience, I also recognize that many 
brilliant lawyers with no such experience have become excellent and, in 
fact, even legendary judges.
  In this case, it was not the lack of judicial experience itself that 
concerned me but the fact that this lack of experience, when combined 
with the lack of information from other sources, left the committee 
with no real basis to evaluate this nominee.
  In his letter to me, Judge Gonzales mentioned a number of specific 
individuals nominated to the Ninth Circuit by President Clinton, 
nominees I supported despite their lack of judicial experience. These 
nominees--Judges William Fletcher, Marsha Berzon, and Raymond Fisher--
all had distinguished backgrounds and a wealth of background materials 
for the committee to review, but no judicial experience.
  Since these specific nominees were mentioned, I thought it would be 
interesting to note the paths they took to confirmation because the 
nature of the deliberative process the Senate was able to undertake 
with these nominees is in striking contrast to what we are confronted 
with today.
  William Fletcher, for instance, was nominated on April 25, 1995. His 
first hearing came on December 19, 1995,

[[Page 2662]]

about 8 months later. Dr. Fletcher had been a prolific academic writer 
and a distinguished law professor at the University of California at 
Berkeley for almost 20 years by the time he was nominated. At his 
hearing, he had the opportunity--and he took it--to discuss articles he 
had written that were critical of certain Supreme Court decisions and 
to explain and discuss other articles he had written on a variety of 
subjects. The Judiciary Committee had access to a wide range of written 
materials about or written by Dr. Fletcher. And just as importantly, 
the committee members also had the opportunity to engage in a back and 
forth with the nominee to learn about his thought process.
  In contrast to the Estrada hearing, Professor Fletcher answered every 
question forthrightly and fully. Where Estrada stated he could not 
answer, Fletcher engaged in real discussion.
  Despite this, however, William Fletcher's nomination sat without 
action until April of 1998, 3 years after his first hearing. And after 
those 3 years, he was not yet given a vote. Instead, he was given a 
second hearing.
  Finally, on October 8, 1998, almost 3\1/2\ years after he was first 
nominated, William Fletcher was finally confirmed. Judge Fletcher, at 
the time of his nomination, had no judicial experience, but the 
committee had a wealth of other information about him and written by 
him to properly gauge his suitability for the Ninth Circuit.
  Furthermore, it has been reported that his nomination finally moved 
forward only after Dr. Fletcher's mother, a Federal judge herself, 
agreed to take senior status, and after President Clinton and the 
Republican leadership agreed to appoint a judge, named by Republicans, 
to a vacancy on the Ninth Circuit. That is a good example of 
communication and even negotiation between the White House and the 
Senate on the issue of judicial nominations. I remember it well. And I 
thank those leaders of our committee who engaged in those discussions.
  I am not saying that I believe Judge Fletcher's nomination path 
should become the norm, but since Judge Gonzales mentioned Judge 
Fletcher by name, it is interesting to note how that nominee, with no 
judicial experience, fared under the Republican-controlled Senate back 
then.
  Marsha Berzon, another nominee mentioned in Judge Gonzales' letter, 
was nominated on January 27, 1998. Her first hearing came 6 months 
later--not bad--on July 30, 1998. Again, at that hearing Mrs. Berzon 
answered every conceivable question about her background, her thought 
process, and her other issues. Right, she had no prior judicial 
experience. Then almost a year went by with no further action until she 
underwent a second hearing and again submitted herself to questioning 
by the committee.
  Just to cite one example from that second hearing, Senator Sessions 
asked Mrs. Berzon to expand upon an answer she had given at her first 
hearing about the death penalty. Quoting Senator Sessions now:

       I remember I asked you about Justice Brennan's decision on 
     the unconstitutionality of the death penalty. He believed 
     that the death penalty was unconstitutional. . . . [a]nd I 
     asked you . . . .how you felt about Justice Brennan's view, 
     and you said you did not like to say what you agree with and 
     what you do not agree with when you haven't had time to think 
     about it. Fair enough. Have you had time now and would you 
     like to comment now?

  In her response, Mrs. Berzon stated:

       . . . I certainly have had a chance to think about it and 
     go back and look at the Constitution. And having done so, I 
     would certainly agree that the indications of that document 
     are that the Framers of the Constitution understood that 
     capital punishment would be permitted under the Constitution. 
     . . . I was a law clerk to Justice Brennan, as you know, I 
     admire him enormously as a man and a mentor. I did not agree 
     with everything that he said, and I think in particular that 
     I intend to take a more literal view to statutes and to 
     constitutional provisions than he does. It makes me more 
     comfortable, and it is the way I tend to think.

  It is this back and forth that gives committee members a sense of how 
nominees think and, therefore, how they will approach the duties 
confronting them as Federal judges.
  By the time Marsha Berzon was finally confirmed on March 9, 2000, 
more than 2 years and two hearings after she had been nominated, the 
Judiciary Committee and the Senate had more than enough of a record to 
judge her nomination, despite her lack of judicial experience. This 
information is simply not there for Miguel Estrada.
  Raymond Fisher was the third Ninth Circuit nominee mentioned in the 
Gonzales letter. Here again is a nominee with no judicial experience 
but, here again, unlike Mr. Estrada, Raymond Fisher had a depth and 
breath of other experiences that allowed the committee to fully examine 
the nominee and his nomination and come to an informed decision.
  Raymond Fisher proved himself in many different functions to be 
impartial, to gain the respect of his peers, and to evidence the 
temperament required to be a Federal judge. From serving as a Supreme 
Court clerk to working in private practice, to serving as the head of 
the Los Angeles Police Department's civilian oversight panel, Fisher 
was often in the public eye and continuously showed an evenhandedness 
and ability to work through complex issues that would clearly serve him 
well from the bench.
  Then-mayor Richard Riordan of Los Angeles, a Republican, said that he 
chose Fisher for the police commission job ``because he did not have a 
political agenda and called the facts as he saw them.''
  That is exactly what we look for in a nominee. And in the case of 
Miguel Estrada, I am not convinced that we have it.
  Additionally, in the Fisher, Berzon, and Fletcher cases, we had 
volumes of support letters from every conceivable source of every 
political background and, most importantly, there was not significant 
opposition as exists in the Estrada case.
  Quite frankly, if everyone who knows a nominee comes to the committee 
with glowing praise and statements that the nominee has perfect 
knowledge, experience, and temperament to be a judge, it is obviously 
easier to feel comfortable confirming that nominee regardless of the 
level of actual judicial experience. Likewise, even a nominee with 
overwhelming judicial experience might face trouble if a large number 
of people who had worked with or for that nominee expressed strong 
concerns about his or her impartiality.
  Here, with Miguel Estrada, we have a man with no judicial experience 
and who has been the subject of a large volume of concern about his 
temperament and his ability to fairly and impartially judge a given 
situation. This, in my opinion, presents a problem.
  The second issue raised in the Gonzales letter involves Professor 
Paul Bender, Mr. Estrada's direct supervisor at the Solicitor General's 
office. Specifically, I mentioned in my committee statement on the 
Estrada nomination that I was concerned about a statement Professor 
Bender had made in the press that Miguel Estrada is so ``ideologically 
driven that he couldn't be trusted to state the law in a fair, neutral 
way.''
  In response to this quote from me, Judge Gonzales cited a number of 
internal Justice Department evaluations indicating that Professor 
Bender had given Mr. Estrada positive reviews while at the Justice 
Department. It is relevant to the decisionmaking process when a 
nominee's former supervisor feels compelled to comment that he is too 
ideologically driven to be a fair judge, and it is certainly possible 
at the very least that an attorney could be both an excellent legal 
scholar and an excellent advocate but be ill-suited for the judiciary, 
as suggested by Professor Bender.
  In any event, I recently asked my staff to contact Professor Bender 
by telephone and ask him about his comments to the press and his past 
evaluations of Miguel Estrada. In doing so, my staff discovered some 
interesting facts. First, I am told that Professor Bender stands by his 
statements to the press ``100 percent'' and would say so if asked.
  Second, according to Professor Bender, the positive evaluations that 
Judge Gonzales and others cited consisted merely of boilerplate 
language next to

[[Page 2663]]

check marks. He stated every employee received the highest evaluation 
automatically.
  And perhaps of most relevance, Professor Bender indicated to my staff 
that he was already so concerned about Mr. Estrada's ideological bent 
while supervising him at the Department of Justice that he learned not 
to rely on his memos and in fact stopped assigning him important work. 
In other words, as an employee of the Justice Department whose job it 
was to advocate to the best of his ability, Miguel Estrada's direct 
supervisor did not trust him to be fair and impartial.
  I asked my staff to call Professor Bender and read this to him, and 
he stands by it. This was not a last-minute conversion as some have 
suggested but an ongoing concern.
  I have listened to some of the attacks on Mr. Bender. I don't think 
they reflect well on the Senate. I may not agree with everything 
Professor Bender has done or advocated within his lifetime, but this is 
a man with very impressive credentials.
  Paul Bender graduated magna cum laude from Harvard Law School in 
1957.
  He served as a law clerk to Judge Learned Hand of the U.S. Court of 
Appeals for the Second Circuit and then was a law clerk to Supreme 
Court Justice Felix Frankfurter before embarking on a distinguished 
career as a professor and in the U.S. Solicitor General's Office. He 
spent 24 years as a faculty member at the University of Pennsylvania 
Law School, and he also served as dean of the Arizona State College of 
Law. He has argued more than 20 cases before the U.S. Supreme Court.
  As a result, I think it is worth taking his comment into 
consideration as one of many factors we must look at when trying to 
determine whether Mr. Estrada can be a fair and impartial judge.
  The third issue raised in the letter sent to me and published by 
White House counsel is the fact that I ``referenced the fact that 
Miguel Estrada has been `accused' of using an ideological litmus test 
when assisting Justice Kennedy in the selection of his law clerks.''
  This is true. Specifically, I was concerned that two individuals who 
had tried to get a clerkship with Justice Kennedy believed very 
strongly that they had been subjected to a litmus test for being too 
liberal and had been rejected out of hand as a result. Both individuals 
had been quoted in the press, and while these accusations were by no 
means dispositive in my decisionmaking, they were yet another example 
of comments made by those who know Mr. Estrada, or worked with him, 
that he is simply too ideological for the bench.
  When I first heard about these comments, I was concerned but also 
wary. Because the quotes we were given came from anonymous sources in a 
news article, I wanted to be sure they were accurate.
  But having done a bit more research on the subject, I am confident 
these two individuals truly believe that a litmus test was applied to 
them.
  Without countervailing evidence, such as a written record or 
substantive responses to committee questioning, it is difficult to 
assuage the concerns raised by these applicants and others.
  Now that I have outlined some of my concerns about Miguel Estrada, I 
want to take a few moments to talk about the general state of the 
nominations process and what I see as a real lack of consultation 
between the White House and many Members of the Senate in making these 
nominations. It is this lack of consultation in the nominations process 
that has led, I think, many in the minority party to become 
increasingly concerned about individual nominees, about scheduling, and 
whether or not there will be any real advice and consent for the 
Senate.
  Early on in the Bush Presidency, I sat down with representatives from 
the White House and we worked out together a system for nominating 
district court judges in California that works, and works well. 
Essentially, we set up one nominating committee for each district in 
California. Each committee is made up of six members, three chosen by 
the White House and one chosen by me, one chosen by Senator Boxer, and 
then Senator Boxer and I choose the third representative together. In 
other words, each committee is made up of three Democrats and three 
Republicans, an even number. No name can be forwarded to the President 
for nomination unless a majority of the commission members agree. So 
this means that at least one member of each party must consent to every 
name forwarded to the President for consideration. For each vacancy, 
the commission submits several names, so the President may still choose 
the particular nominee. But we have agreed that no individual will be 
nominated without first receiving at least a majority vote.
  This has really worked, Mr. President, and worked well. It is 
producing well-qualified, nonideological judges for California district 
courts. These commissions have already worked to produce eight highly 
qualified, noncontroversial nominees. Five of those have already been 
confirmed, one more was voted out of committee, and two more were only 
recently received by the Senate.
  Here is the point: The five judges now confirmed spent an average of 
only 93 days--about 3 months--from the day they were nominated to the 
day they were confirmed. The process is working.
  It was my hope when we established this process that the White House 
would move quickly to establish similar agreements with other States. 
After all, the Constitution gives the Senate the responsibility of 
advising the President on his or her nominees, and consenting or 
declining to consent to those nominations. It is thus our duty to work 
with each President in helping to select and to judge the 
qualifications of nominees to the Federal bench.
  This advise and consent role should not be taken lightly. Helping to 
shape the Federal judiciary may well be one of the most important 
things any Senator will do during his or her term. The quality and 
nature of the nominees we pass through the Senate will alter the makeup 
of the courts for years to come, often long after we have retired from 
this body.
  Too many of my colleagues have found themselves with no ability to 
consult on nominees to the district court, or even the circuit court. 
Indeed, in some instances the White House has completely disregarded 
the advice or even nominated the candidate most opposed by a home State 
Senator. In other instances, vacancies kept open by the deliberate 
inaction of the Republican-controlled Senate of recent years may now be 
filled en masse, with far more ideological nominees, artificially 
skewing these courts to the right. This is the environment surrounding 
the nomination of Miguel Estrada. We have before us a nominee who was 
controversial from the very start.
  When the Judiciary Committee tried to find out more about him, we 
were stymied at every turn: No written record, no work product, and 
unresponsive answers to our questions at the hearing.
  The Constitution established a system of checks and balances, one 
that has served this Nation well for more than two centuries. The 
President is the Commander in Chief, but the Congress declares war and 
funds the military. The President signs treaties, the Senate ratifies 
them. The President makes nominations, but we advise him in that role 
and consent to the nominees themselves.
  Without any prior advice role, it sometimes becomes necessary for the 
consent process to become more confrontational, as it has recently. But 
it is my hope that in coming months we will come together as a Senate--
not as Democrats or Republicans, but one body--to work through the 
nomination issues that have so torn us apart over the last decade.
  It is also my hope that this President will work with all Senators, 
as he has worked with me, to establish a framework for producing 
moderate, qualified judges for every district court in the Nation. It 
is my hope that we can make these debates about substance and 
qualifications, not about ideology or partnership.

[[Page 2664]]

  I cannot at this time support Miguel Estrada for the D.C. Circuit 
court. As I pointed out earlier, I might very well support him for a 
district court position. He is 41. This is a 40- or 50-year position.
  This is a debate that will not end today or tomorrow or in the coming 
months, unless we can all calm the rhetoric, sit down, and discuss how 
we can move through the process with greater consultation, greater 
fairness, and a greater respect for the constitutional role of the 
Senate.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I commend my friend and colleague from 
California for an excellent presentation to the Senate outlining the 
historic responsibilities that the executive and the Senate have in 
meeting all of our responsibilities to ensure we have qualified members 
on the courts of this country. She gave an excellent analysis of both 
the past activities of the court and rebutting a number of the 
misrepresentations that have been made about those who have raised 
serious questions about this nominee.
  I thought the Senator from California summarized in an important way 
the compelling reasons why many of us have reservations about this 
nominee. I thank her very much for the statement, and I hope our 
colleagues will pay close attention to it.
  One of the most important functions of the Senate is its 
constitutionally mandated advise-and-consent role in the selection of 
judges. This role is meant to ensure the appointees to the Federal 
courts are independent and fair judges, who hear all cases with an open 
mind, independent of the political process but also of personal 
ideology.
  We have all asked at one time or another what is the criteria we use 
in the advise-and-consent role. I have over time supported the idea 
that, obviously, enormous deference is given at the time a President is 
elected to the fact that he or she ought to be able to have the 
advisers of their choice. That is a period of time, before the 
President's term expires, when there ought to be at least a willingness 
to give any benefit of the doubt to those nominees.
  Then we have independent agencies which go on for a period of time 
beyond the time of a given President, and we advise and consent on 
those nominees. And then we have the Federal courts. If we make a 
mistake in terms of a particular judge, we have the circuit courts to 
which matters can be appealed, and then ultimately the Supreme Court. 
Our highest value is focused on the Supreme Court--lifetime 
appointments, and under the distribution of powers defined in the 
Constitution, a shared power with the President appointing and the 
Senate giving its advice and consent. It is a shared power.
  Many assume the Senate of the United States should rubberstamp a 
nominee; if we cannot find something wrong with a nominee, that we 
should give our stamped approval. That clearly is in conflict with the 
views of our Founding Fathers and in conflict with the great traditions 
of this institution.
  We have a very high standard when it comes to this particular court 
because, although it is not the Supreme Court, it is a lesser court, of 
the very special responsibilities and unique responsibilities it has. 
Therefore, we have a duty to find out the views and commitments of a 
nominee to the core values of the Constitution, not expecting that a 
nominee is going to answer a question about a particular case or a 
particular outcome, but talk about their views, their developed views, 
their mature views about constitutional values, issues on civil rights, 
issues on the first amendment, on the role of the Congress in terms of 
our responsibilities in meeting the general welfare clause, the 
separation of church and State, the issues of privacy and other civil 
rights issues--all of these matters which are of enormous importance 
and consequence to the people of this country in which we have seen a 
generation struggle and individuals in a number of instances give their 
lives to these causes.
  We have a very special and important responsibility to make sure 
those words that are above the Justice Department, ``Equal Justice 
Under Law,'' are going to be equal justice under law for every person 
in this country.
  There is, I believe, a responsibility, not just to any member of the 
Judiciary Committee, not just to the Judiciary Committee, but to the 
American people, that a nominee has because we act as their agents in 
terms of our votes, and there is a responsibility to the American 
people that a nominee will at least talk about the Constitution and 
talk about these fundamental values and what the Constitution means. 
That has been the time-honored tradition of a nominee, going back for 
pretty much the history of this country.
  In this instance, there is such a complete contrast. There is an 
individual who will not give any information, or respond to any of the 
constitutional issues he was asked, not just by any single member, but 
by all the members, and also a refusal to provide the material which 
other nominees for other positions have provided in the past. Judge 
Bork provided material when he was a nominee for the Supreme Court; 
Brad Reynolds, when he was being considered as head of the Civil Rights 
Division, and other nominees, Republicans and Democrats alike. With Mr. 
Estrada, no; no, we are not going to provide that information to the 
Judiciary Committee. No, we are not going to answer questions about 
views on the Constitution. No, we are not going to provide past work. 
No, we are not going to provide that. No, we are not going to give that 
information. And yet we expect somehow the Senate will go ahead and 
give its approval to a nominee who comes to this nomination.
  I congratulate Mr. Estrada. He comes to this position on the basis of 
very humble roots and a life of personal achievement. Does that 
guarantee one will hold a position on the district court because one 
has had that experience? Should that entitle someone? Should one think 
of serving on the courts as an entitlement or as a reward? Clearly not. 
There are too many issues involving the everyday life experience of 
American citizens that are being decided by that court and that will 
affect the lives of individuals in this country. Therefore, this is too 
important a position for anyone, as talented as they are and as unique 
as their past experience, to expect they are just going to be in a 
privileged position and not have to be responsive to the inquiries of 
the members of the committee.
  That is the dilemma in which we find ourselves with this particular 
nominee. The Senator from California reviewed the facts, and I wish to 
address them as well this afternoon.
  Mr. President, we also heard important testimony about the judgment, 
temperament, and the commitment to statutory projections and core 
constitutional values that are necessary to serve as a Federal judge, 
especially on a court as important as the U.S. Court of Appeals for the 
DC Circuit. Then we have had the assault and attack on those who 
question his core commitment to the values of the Constitution, but the 
fact is, we do not know because he refused to answer the most basic 
questions.
  We heard the pillorying by many who expressed opinions in opposition 
to Mr. Estrada, and their characters were assaulted as well, I think 
unfairly and unjustly. We would not have to resort to the opinions of 
others if Mr. Estrada had been willing to respond to the questions.
  Mr. Estrada has refused to answer the basic questions posed to him in 
the confirmation process. As I mentioned, the White House refused to 
release the materials necessary for a full review of his 
qualifications.
  With this troubling and inadequate record, I do not believe Mr. 
Estrada should be confirmed to this important court, the second most 
powerful court in the Nation.
  The Federal courts have the power to make far-reaching decisions 
affecting lives of people and the life of our Nation. We have the 
responsibility to ensure that the people who serve on the courts will 
protect important constitutional and statutory rights. I do not believe 
Mr. Estrada is such a person.

[[Page 2665]]

  Although he is a distinguished legal advocate, his commitment to core 
constitutional values is far from clear. Mr. Estrada prevented us from 
learning much at all about his legal and constitutional philosophy, and 
throughout this process he has evaded even the most basic questions 
concerning how he would serve as a judge. In addition, Mr. Estrada and 
the administration refused to produce the documents from Mr. Estrada's 
time in government practice that might have helped us answer questions. 
So these are very serious problems, and they would require this body to 
reject any nominee who came before it.
  Unfortunately, some of our Republican colleagues have decided it is 
in their best interest to claim that we are opposing Mr. Estrada 
because he is Latino. This irresponsible accusation is absurd. It is 
belied by the strong history of those who are members of our party who 
have fought for opening the doors for all minorities in America, 
including Latinos. The Republican accusation is also dangerous and 
destructive. It has even been said that if we did not confirm Mr. 
Estrada to the DC Circuit, we would shut the door on the American dream 
of Hispanic Americans everywhere. Nothing could be further from the 
truth. As they say in sports, let's look at the record. In fact, 
President Clinton nominated 11 Latinos to the Nation's most powerful 
courts. He nominated 21 Latinos to the district courts. For these 
nominees, achieving the American dream meant being sensitive to the 
core values that make this country strong, that are embodied in the 
words at the entrance to the Supreme Court: ``Equal justice under 
law.''
  Nonetheless, Republicans unfairly blocked many of these nominees. Not 
only these nominees, but I remember Bill Lann Lee who was an Asian 
American, who was denied the opportunity to have a vote. He was 
absolutely an extraordinary and distinguished nominee whose life 
experience in many respects was similar, if not more compelling, in 
terms of his own personal success. He came from extraordinarily humble 
beginnings. He did not speak the language. He worked his way through 
school, was able to get a scholarship, I believe to Yale University. He 
had an absolutely distinguished record, went on as a lawyer to help 
knock down the walls of discrimination. He was selected as the head of 
the Civil Rights Division. He had just about every defendant against 
whom he had tried a case over the period of his career--a young man 
came before the committee and said: Look, we differed with Bill Lann 
Lee on the issues of the facts, but we want to tell this committee that 
this was an extraordinary lawyer who did a lawyer's job in 
understanding the law when arguing his case. We had nothing but the 
highest regard and respect for his presentation, his ability, and the 
way he conducted himself. Senators testified to this before the 
Judiciary Committee.
  But was Bill Lann Lee able to get a vote in the Judiciary Committee? 
No, absolutely not. Do you think he was able to get consideration on 
the floor of the Senate? No, he was denied that. With all of the hopes 
and dreams there were for hundreds of thousands, or even millions, of 
Asian Americans and the hopes and dreams of all of his family and 
relatives, he was denied confirmation and turned back. We will let the 
other side give the explanations for that. But this outstanding 
nominee, who eventually had a temporary appointment to the Justice 
Department and did an extraordinary job, was denied the opportunity to 
be voted on.
  The Bush White House, by contrast, until a short time ago, has 
nominated only one Latino to the court of appeals, and that is Mr. 
Estrada.
  One of the most important functions of the Senate is constitutional 
advice and consent. We cannot perform this function if we are not 
allowed access to the nominee's record, and by refusing to provide the 
Senate with the most important memoranda produced by Mr. Estrada when 
he was in the Solicitor's Office, the administration is trying to 
prevent us from performing our constitutional duty.
  The administration's refusal to provide these memoranda is not based 
in law or precedent. Past administrations have disclosed the legal 
memos in connection with both judicial and executive nominations. We 
have repeatedly made the administration aware of the clear precedence 
on the disclosure of confidential internal documents relating to the 
nominations of several judges, including Robert Bork to become 
Associate Justice on the Supreme Court, Brad Reynolds as Assistant 
Attorney General, Benjamin Civiletti to become Attorney General, 
Stephen Trott to become a judge on the Ninth Circuit, Justice Rehnquist 
to become Chief Justice.
  In some of those instances, they made those memoranda available only 
to the members of the committee, and then they asked us for the 
memoranda back. Agreements were worked out with the members of the 
Judiciary Committee. But not with regard to this nominee. We were 
effectively denied all of this. Justice Rehnquist, Bradford Reynolds, 
Assistant Attorney General for Civil Rights Benjamin Civiletti to 
become Attorney General, Robert Bork to become an Associate Justice of 
the Supreme Court--we were able to get those memoranda. But not from 
Mr. Estrada. They told us: You cannot have the memoranda. And we have a 
nominee who will not answer any questions on this. Then Members are 
asked why they are concerned about this process.
  Indeed, the administration has itself disclosed the past memoranda 
for purposes of evaluating its nominees. The Bush White House disclosed 
legal memoranda written by an attorney in the White House Counsel's 
Office in connection with the nomination of Jeffrey Holmstead for the 
position of assistant administrator at the Environmental Protection 
Agency. They are prepared to give all of the memoranda to the 
appropriate committees for Jeffrey Holmstead, when he was in the White 
House Counsel's Office in connection with a position as assistant 
administrator of the Environmental Protection Agency, but they will not 
give it to the Senate for a nominee for the DC Circuit in our Nation's 
Capital. Why is that? Why do they give it on the one hand and refuse to 
give it on the other? What is the justification that they do not have 
to do it?
  Then they list a number of prominent figures, many of them Democrats, 
who say they are under no obligation to do it. But clearly, in the 
past, under Republicans and Democrats, when there has been an interest 
in trying to reach accommodation and to have an understanding about the 
nominees, there has been a willingness to do it. But, no, they are not 
going to do it.
  We can only assume that the Administration's inconsistent position 
means that it has something to hide in Mr. Estrada's memoranda.
  Given the administration's recalcitrance about providing the Estrada 
memoranda, the Senate is left with very little to review to assure 
ourselves that Mr. Estrada has the commitment to constitutional and 
statutory protections necessary to serve on the DC Circuit. What little 
we do know is very troubling because Mr. Estrada's direct supervisor in 
the office has raised questions about whether Mr. Estrada had the 
necessary temperament to sit on the DC Circuit.
  As my friend and colleague from California has pointed out, Mr. 
Bender has stated that those statements he made were entirely true and 
he still stands by them. We will hear a brutal assault on Mr. Bender 
and his character. We have heard it previously in the Judiciary 
Committee, and we have heard it here. He is an outstanding individual, 
a former clerk to Justice Frankfurter. He argued before the Supreme 
Court, had an extraordinary and distinguished record, but we will hear 
him assaulted because he has questioned the temperament of Mr. Estrada.
  These serious allegations require some response on the merits and 
some evidence to the contrary. Instead, some of my colleagues in the 
Senate have responded by attacking Mr. Bender.
  Mr. Bender is not alone in the assessment of Mr. Estrada. It has been 
reported that some of Mr. Estrada's colleagues have said he is not 
open-minded and he ``does not listen to other people.''

[[Page 2666]]

  After an in-depth meeting with Mr. Estrada, a member of the 
Congressional Hispanic Caucus said he appeared to have a short fuse and 
did not have the judicial temperament necessary to be a judge. 
According to the Puerto Rican Legal Defense Fund, with whom Mr. Estrada 
met, he is not even-tempered and he became angry during their meetings 
with him and even threatened the group with legal action because they 
raised concerns about his record.
  Now, we have that information, but we are denied any information on 
the other side. Anyone who has questioned Mr. Estrada finds they are 
questioned themselves. But we are denied the information that may 
reflect an entirely different temperament.
  Some of our Republican colleagues have said Democrats who oppose Mr. 
Estrada's nomination are motivated by his ethnic background, but these 
reports that raise serious concern about Mr. Estrada come from some of 
the most important Latino organizations in the country. These groups 
correctly point out that Mr. Estrada had not taken any steps to reflect 
or serve his community and has never provided any pro bono legal 
expertise, supported or joined or participated in events of any 
organization dedicated to serving or advancing the Latino community, 
never made any efforts to open the doors of opportunity for Latino law 
students or junior lawyers. Mr. Estrada appears to be committed neither 
to his community nor to an open, fair, and impartial judicial process.
  Mr. Estrada has attempted in the past to limit the first amendment 
rights of minorities. I have inquired about his standing in this 
particular case. He sits on the board of the Center for Community 
Interest which advocates for police tactics that have often led to 
harassment and racial profiling, and his efforts reflect a lack of 
concern for important American ideals.
  In a case heard by the Supreme Court, Chicago v. Morales, he 
represented the U.S. Conference of Mayors in an amicus brief defending 
a tenant-loitering ordinance in Chicago. The Center for Community 
Interest also submitted a brief in support of the ordinance. The 
Chicago antiloitering ordinance applied to any group of two or more 
individuals who gather, with no apparent purpose, in any public place, 
including streets, parks, restaurants, or any other location open to 
the public, and mandated if a police officer reasonably believed any of 
the individuals to be a gang member, he could order all of the 
individuals, including those not suspected of gang membership, to 
disperse and remove themselves from the area. The Supreme Court found 
the ordinance violated the due process clause of the 14th amendment. It 
held the ordinance was unconstitutionally vague because it did not 
provide adequate notice of the prescribed conduct and did not set 
minimum guidelines for law enforcement.
  At his hearing, Mr. Estrada suggested that minority lawmakers 
supported the antiloitering ordinance. This is false. In fact, the 
ordinance was initiated by residents in a predominantly white 
neighborhood, and drawn up by several white aldermen. The majority of 
the African American aldermen on the Chicago City Council voted against 
it. Several aldermen compared it to an apartheid-era law in South 
Africa. When the case came before the Supreme Court, many of the civil 
rights minority groups joined amicus briefs against the ordinance, 
including the National Council of La Raza, Mexican American Legal 
Defense, and the NAACP.
  Before I come back to that issue, I take a moment to discuss the 
opposition to Mr. Estrada's nomination that has been voiced by some of 
these groups. Let me finish with the legal defense. Now we had the 
holding by the Supreme Court in finding that the Chicago ordinance was 
unconstitutional. The Supreme Court said the broad antiloitering 
ordinance in the Chicago-Morales case was unconstitutional. Mr. Estrada 
devoted man-hours in defending the City of Annapolis following this 
against the challenges to the Constitution of a similar antiloitering 
ordinance. When the NAACP challenged the ordinance, he would take the 
city's case all the way to the Supreme Court, if necessary, free of 
charge. Mr. Estrada lost that case, too, however, after a district 
court struck down the law as unconstitutional.
  Here he went all the way to the Supreme Court on the antiloitering. 
The Supreme Court made a finding, and then he takes the time to go 
right back to another antiloitering ordinance and insists on taking all 
of that and it was struck down in the district. It is difficult to 
understand on an issue such as that why he would have been so involved 
in that kind of continued activity when it reaches issues involving the 
first amendment.
  I am deeply concerned by Mr. Estrada's intense focus on enforcing an 
antiloitering ordinance. As MALDEF noted, many of the individuals who 
are targeted under such ordinances are minorities. Often Latino urban 
youth are harassed by police enforcing such ordinances, and day 
laborers--most often newly arrived immigrants--congregating on 
particular streets waiting to be offered a manual labor job are often 
targeted. Mr. Estrada does not seem to appreciate this effect on the 
minority population and did not let it affect his defense of those 
statutes.
  Other statements by Mr. Estrada raise additional concern about his 
commitment to civil rights, expressing skepticism about affirmative 
action. The DC Circuit has become closely divided on affirmative action 
and public employment programs, and a narrow majority of the DC Circuit 
held the Federal Government cannot require broadcasters to conduct 
targeted outreach to minorities and women even for the purpose of 
increasing the pool of qualified applicants.
  According to MALDEF, in meetings where Mr. Estrada has answered 
questions, he has made statements about affirmative action, calling 
into question whether he would find a compelling interest to justify 
such programs. Mr. Estrada indicated he has not raised the issue of 
diversity in places where he has worked and he would not be 
particularly vigilant about giving opportunities to Hispanic clerks. 
Mr. Estrada was asked about the possible reason for the lack of 
minority law clerks by a reporter for USA Today. According to the 
article, Mr. Estrada dismissed statistics showing little representation 
of minorities and indicated if there was some reason for 
underrepresentation, it would be something to look into, but I don't 
have any reason to see it as other than a trend in society. This is 
contrasted with quotes of others saying there are a variety of reasons 
for the lack of minority clerks.
  All of these aspects of Mr. Estrada's prior work indicate he would 
not bring a fair and open mind and sensible judicial temperament and 
commitment to civil rights and equal opportunity to the bench.
  During the course of the hearing on Mr. Estrada, he did little to 
allay our concerns about his record. In fact, many concerns were 
actually intensified by Mr. Estrada's unwillingness to respond to even 
the most basic and innocuous questions about his views. For instance, 
Mr. Estrada refused to name a single Supreme Court case of which he was 
critical.
  In addition, Chairman Leahy asked Mr. Estrada whether an employer or 
school could take race or ethnicity into consideration in hiring 
admissions and Mr. Estrada refused to give any opinion on the matter. 
Chairman Leahy asked Mr. Estrada what he thought about the Supreme 
Court decision in Romer v. Evans, a decision he was purported to 
criticize, and he refused to agree whether he agreed with the decision, 
stating because he did not hear the arguments he could not have an 
opinion. At the same time, Mr. Estrada gave contradictory answers in 
response to a series of questions about whether he had an applied 
ideological litmus test to clerks.
  I take a moment or two again to underline the importance of the DC 
Circuit Court. Mr. Estrada's nomination is particularly troubling, 
given the importance of the DC Circuit to issues of concerns for a 
broad range of Americans seeking to enforce their basic rights. The DC 
Circuit is widely regarded as the second most important

[[Page 2667]]

court in the United States, behind only the Supreme Court. With a 
unique and prominent role among the Federal Courts of Appeal, 
particularly in the area of administrative law, it has exclusive 
jurisdiction over many workplace, environmental, civil rights, and 
consumer protection statutes. Because the Supreme Court grants reviews 
of only a small number of lower court decisions, most administrative 
law is established by the DC Circuit. Despite the importance of the DC 
Circuit to a broad array of Americans, some Republicans have worked to 
undo any balance on the court. During the Clinton administration, the 
Senate, controlled by Republicans, refused to approve two of President 
Clinton's nominees to the DC Circuit, Elena Kagan and Allan Snyder.
  Last fall's hearing for Mr. Estrada was the first hearing for a 
nominee to the DC Circuit in 5 years. No questions were raised about 
the qualifications of either Ms. Kagan or Mr. Snyder. Both had stellar 
qualifications. Nevertheless, hearings for these nominations were 
delayed. After they finally received hearings, they were refused a vote 
in the committee or on the floor. Many Republicans argued that the DC 
Circuit did not need any more judges. Yet shortly after President Bush 
was elected, two judges were nominated for the court.
  I see my good friend and colleague from New York here, Senator 
Schumer. I know others want to speak about this important issue.
  The DC Circuit Court has a major influence on decisions involving the 
National Labor Relations Board. The National Labor Relations Board is 
the arbiter of disputes between workers and employers. We have a 
process where that board is to work and work effectively. There has 
been enormous deference given to administrative boards by the circuits 
generally, and by the DC Circuit in particular, but that is no longer 
the case. We are finding increasing numbers of decisions that are made 
by the National Labor Relations Board appealed to the DC Circuit and 
effectively overturned. This has an enormous impact and affect on 
workers' rights, with all of the implications that workers' rights have 
in terms of health care policy, in terms of wages, and in terms of 
pensions.
  This DC Circuit Court has great influence on whether our occupational 
health and safety laws are going to be enforced.
  We have seen over the period of recent times a reduction in funding 
for the enforcement of these laws. That has been true. But, 
nonetheless, some of these find their way on up to the DC Circuit 
Court. Having someone there who is going to understand the law, 
understand the importance of that legislation, and who can interpret 
that legislation in a fair and reasonable way is going to be enormously 
important if we want safety in the workplace. The DC Circuit Court is 
the court that makes those judgments and decisions.
  We have seen what has happened, even since OSHA has been enacted. We 
have reduced the number of deaths in the workplace by half.
  We see a number of other new challenges coming in the workplace in 
more recent times. Nonetheless, it has been effective legislation.
  Do you care about wetlands, do you care about clean air, do you care 
about clean water? The D.C. Circuit Court is the final court that is 
going to be making judgments on these environmental issues. We have 
seen where the administration has gone ahead and cut back on the 
protection of those environmental issues. We have already seen the 
appeals working their way through the courts and they are going to end 
up to the DC Circuit courts. Do you care about clean air? Do you care 
about clean water? Do you care about the environment? The DC Circuit 
Court is where these matters are going to be decided.
  Do we have anything from Mr. Estrada to indicate whether he has any 
interest at all in protecting the environment? Whether he has any 
interest at all in workplace justice? Any interest at all in workplace 
safety? It just goes on from there.
  The D.C. Circuit will also hear cases on civil liberties. In the 
past, the wiretap issue has come up in the appeals process. Are we 
going to be a country that protects its Constitution?
  The list goes on, issue after issue, defining what this country 
stands for. In terms of protecting rights, the D.C. Court is the court. 
To stonewall the committee on each and every one of these subjects, as 
the nominee has done, refusing to talk about any of them, I think 
reflects a contemptuous attitude towards the whole nomination process. 
In that way, he is not worthy to receive the support of the Senate of 
the United States.
  To reiterate, one of the most important functions of the Senate is 
its constitutionally mandated advice and consent role in the selection 
of Federal judges. This role is meant to ensure that appointees to the 
federal courts are independent and fair judges who hear all cases with 
an open mind, independent not only of the political process but also of 
personal ideology.
  Miguel Estrada does not fit this model. He lacks the judgment, 
temperament, and commitment to statutory protections and core 
constitutional values that are necessary to serve as a Federal judge, 
especially on a court as important as the United States Court of 
Appeals for the D.C. Circuit. He has refused to answer many basic 
questions posed to him in the confirmation process, and the White House 
has refused to release the materials necessary for a full review of his 
qualifications. On this troubling and inadequate record, Mr. Estrada 
should not be confirmed to this important court, the second most 
powerful court in the nation.
  We cannot stand by and allow a Republican White House and Republican-
controlled Senate to steamroll the confirmation of controversial 
nominees like Mr. Estrada, who would undermine the important role of 
the Federal courts as a place for a full, fair, and impartial hearing. 
The Federal courts have the power to make far-reaching decisions 
affecting the lives of our people and the life of our Nation. We have 
the responsibility to ensure that the people who serve on these courts 
will protect important constitutional and statutory rights.
  Mr. Estrada is not such a person. Although he is a distinguished 
legal advocate, his commitment to core constitutional values is far 
from clear. Mr. Estrada has prevented us from learning much at all 
about his legal or constitutional philosophy. Throughout this process, 
he has evaded even the most basic questions concerning how he would 
serve as a judge. In addition, Mr. Estrada and the administration have 
refused to produce documents from Mr. Estrada's time in government 
practice that might help us answer questions about his record and the 
approach he would bring to judging.
  These are very serious problems, and they would require this body to 
reject any nominee who came before it. Some of our Republican 
colleagues, unfortunately, have decided it is in their interest to 
claim that we are opposing Mr. Estrada because he is Latino. This 
irresponsible accusation is absurd. It is belied by a strong history in 
the Democratic Party of opening doors for all minorities in America, 
including Latinos. The Republicans' accusation is also dangerous and 
destructive.
  It has even been said that if we do not confirm Mr. Estrada to the 
D.C. Circuit, we would ``shut the door on the American dream of 
Hispanic-Americans everywhere.'' Nothing could be further from the 
truth. In fact, President Clinton nominated 11 Latinos to the Nation's 
powerful appellate courts. He nominated 21 Latinos to the district 
courts. For these nominees, achieving the American dream meant being 
sensitive to the core values that make this country strong, and that 
are embodied by the words above the entrance to the Supreme Court: 
``equal justice under law.'' Nonetheless, Republicans unfairly blocked 
many of these nominees.
  The Bush White House, by contrast, has, until last week, nominated 
only one Latino to the courts of appeals: Mr. Estrada.
  The White House and some Senate Republicans have complained that 
Senate Democrats have not supported Mr. Estrada because he is Latino. 
We

[[Page 2668]]

should not lightly accuse other Members of this body of such prejudice, 
but make no mistake: That is exactly what some Republicans are accusing 
Democrats of. The record belies this accusation.
  Until last week, President Bush had nominated 130 people to the 
Federal courts. Out of those 130 nominees, there were only 8 Latinos. 
Six of these Latino nominees were confirmed last session when Democrats 
controlled the Senate. The record is clear that Senate Democrats are 
eager to see the diversity of the Federal bench increased by confirming 
Latino nominees, even when those nominees come from a Republican White 
House.
  Senate Democrats have eagerly confirmed Latino nominees, even when 
those Latino nominees are relatively conservative. So when some Members 
of the Senate say that Democrats have a different standard for Latino 
nominees, that accusation is unfounded.
  Nonetheless, these accusations have continued. It is a dangerous and 
irresponsible attempt to play politics with important issues of race, 
and frankly it is beneath the dignity of this body. For example, 
Senator Lott has said quite bluntly that Democrats ``don't want Miguel 
Estrada because he's Hispanic.''
  Senator Hatch has said that Democrats are creating a glass ceiling 
for Latinos, so that ``if they do not think a certain liberal way . . . 
then they are not good enough.''
  Senator Domenici has said that he is perilously close to saving our 
opposition to Miguel Estrada's nomination is because of his race. 
Senator Domenici is right about one thing, these statements are 
perilous.
  They are also just plain wrong. During the last Democratic 
administration, 23 Latino nominees were confirmed to the Federal 
court--more than in any prior administration, Republican or Democrat.
  It has been Senate Republicans who have unfairly blocked the 
confirmation of Latino nominees. The Republican-controlled Senate 
refused to confirm eight Latino nominees. No one accused Republicans of 
prejudice. Jorge Rangel and Enrique Moreno, both nominated to the Fifth 
Circuit Court of Appeals from Texas, were not even afforded hearings by 
the Republicans. Still, no one cried prejudice.
  Mr. Rangel and Mr. Moreno each waited more than a year in the Senate. 
When Senate Republicans refused to give these nominees a hearing, their 
nominations were returned to the White House. President Clinton 
renominated Enrique Moreno, but President Bush withdrew his nomination. 
In his place, President Bush nominated Judge Pickering and Justice 
Owen, two divisive and controversial nominees with very troubling 
records on issues such as civil rights.
  Just as disturbing, Senate Republicans expressed the notion that Mr. 
Moreno may not have been qualified for the position. Mr. Moreno, like 
Mr. Estrada, was a Harvard-educated lawyer who was adjudged well-
qualified by the American Bar Association. Mr. Moreno was eminently 
qualified for the position, but Senate Republicans disparaged him 
without even affording him a hearing. Still, we did not say this was 
the result of bigotry.
  Other Hispanic-Americans who were never confirmed by the Republican-
controlled Senate include Christine Arguello, nominated to the Tenth 
Circuit Court of Appeals from Colorado; Ricardo Morado, nominated to 
the District Court in Texas; and Anabelle Rodriguez, nominated twice to 
the District Court in Puerto Rico. None of these qualified individuals 
were confirmed by the Republicans.
  Mr. Estrada, on the other hand, received a hearing from the 
Democratic-controlled Senate. We wanted to look into his record and see 
what kind of judge he would be. But we were blocked at every turn. The 
Bush administration refused to let us look at some of Mr. Estrada's 
most important work as a Deputy Solicitor General in the Justice 
Department. Mr. Estrada himself has refused to answer questions about 
his views on the law and the courts.
  We have serious concerns about Mr. Estrada that have nothing to do 
with his ethnic background. We have been prevented from learning 
anything about him. We certainly have not been allowed to learn enough 
to justify support for this nomination.
  Our Republican colleagues also claim that Mr. Estrada ``has 
tremendous support among Hispanic people.'' In fact, major Latino 
organizations have raised strong concerns about Mr. Estrada. The 
Congressional Hispanic Caucus has opposed his nomination. Other Latino 
organizations that have opposed or raised concerns about Mr. Estrada 
include: the Mexican American Legal Defense Fund, the Puerto Rican 
Legal Defense Fund, the National Association of Latino Elected and 
Appointed Officials, the National Council of La Raza, the California La 
Raza Lawyers, the Southwest Voter Registration Project and the Illinois 
Puerto Rican Bar Association.
  These groups represent a wide array of views and the broad diversity 
of the Latino community. Listen to what they say about him, and why 
they oppose him. The Congressional Hispanic Caucus has said:

       The appointment of a Latino to reflect diversity is 
     rendered meaningless unless the nominee can demonstrate an 
     understanding of the historical role courts have played in 
     the lives of minorities in extending equal protections and 
     rights; has some involvement in the Latino community that 
     provides insight into the values and mores of the Latino 
     culture in order to understand the unique legal challenges 
     facing Latinos; and recognizes both the role model 
     responsibilities he or she assumes as well as having an 
     appreciation for protecting and promoting the legal rights of 
     minorities who historically have been the victims of 
     discrimination.
       Based on the totality of the nominee's available record and 
     our meeting with him, Mr. Estrada fails to meet the CHCs 
     criteria for endorsing a nominee.
       In our opinion, his lack of judicial experience coupled 
     with a failure to recognize or display an interest in the 
     needs of the Hispanic community do not support an appointment 
     to the federal judiciary.

  There is no mention of the fact that Mr. Estrada is conservative. The 
Congressional Hispanic Caucus did not come out against the other Latino 
nominees put forward by the Bush administration. Their opposition is 
grounded in the fact that Mr. Estrada himself does not reflect the 
views of the Latino community, and that he has shown to be unable or 
unwilling to set aside his conservative ideology in his legal analysis.
  The Mexican American Legal Defense Fund issued a statement opposing 
Mr. Estrada last Monday, stating:

       The most difficult situation for any Latino organization is 
     when a President nominates a Latino who does not reflect, 
     resonate or associate with the Latino community, and who 
     comes with a predisposition to view claims of racial 
     discrimination and unfair treatment with suspicion and doubt 
     instead of with an open mind. Unfortunately, the only Latino 
     who President Bush has nominated in two years to any federal 
     circuit court in the county is such a person. President Bush 
     nominated Mr. Estrada to the D.C. Circuit Court of Appeals.
       After a thorough examination of his record, his 
     confirmation hearing testimony, and his written answers to 
     the U.S. Senate, we announce today our formal opposition to 
     his nomination.

  Is this the racism that Senator Domenici is perilously close to 
claiming? No. These groups and others raise serious concerns about Mr. 
Estrada's ability or willingness to be sensitive to the needs Latino 
and other minority communities.
  Other groups have echoed these concerns. The Puerto Rican Legal 
Defense Fund also oppose his nomination. They have stated:

       We strongly believe that Mr. Estrada's nomination should be 
     opposed and rejected. Potential nominees who aspire to such 
     important positions as circuit judges should be better 
     qualified and possess the unquestioned ability to be fair, 
     open-minded and committed to equal justice for all Americans. 
     They should be connected to the real-world concerns of the 
     people who will be governed by their decisions. They should 
     also be even-tempered. In our view, Mr. Estrada clearly does 
     not possess the qualities necessary to be placed in such an 
     important position of trust--for a lifetime--interpreting and 
     guarding the rights of ordinary Americans.

  These groups and others like them raise serious concerns about this 
nominee. They certainly are not opposed to Mr. Estrada because of his 
race, and neither are the Senate Democrats who feel that this nominee 
lacks the judgment and temperament to serve on the Court of Appeals for 
the D.C. Circuit.

[[Page 2669]]

  One of the most important functions of the Senate is our 
constitutional advice and consent role. We cannot perform this 
function, however, when we are not allowed access to a nominee's 
record. By refusing to provide the Senate with the important memoranda 
produced by Mr. Estrada when he was in the Solicitor General's office, 
the administration is trying to prevent us from performing our 
constitutional duty.
  The administration's refusal to provide these memoranda is not based 
in law or precedent. Past administrations have disclosed legal memos in 
connection with both judicial and executive nominations, including the 
nominations of justice Rehnquist to be Chief Justice of the United 
States, and of Stephen Trott to be a judge on the Ninth Circuit.
  Indeed, this administration has itself disclosed past memoranda for 
purposes of evaluating its nominees, including the nomination of 
Jeffrey Holmstead for the position of Assistant Administrator at the 
Environmental Protection Agency. We can only assume that the 
administration's inconsistent position means that it has some thing to 
hide in Mr. Estrada's memoranda.
  Given the administration's recalcitrance about providing Mr. Estada's 
memoranda, the Senate is left with very little to review to assure 
ourselves that Mr. Estrada has the commitment to constitutional and 
statutory protections necessary to serve on the D.C. Circuit. What 
little we do know is very troubling. Mr. Estrada's direct supervisor in 
the Office of the Solicitor General has raised questions about whether 
Mr. Estrada has the necessary temperament and moderation to sit on the 
D.C. Circuit.
  Mr. Bender is not alone in this assessment of Mr. Estrada. It has 
been reported that some of Mr. Estrada's colleagues have said that he 
is not open-minded and that he ``does not listen to other people.'' 
After an in-depth meeting with Mr. Estrada, a member of the 
Congressional Hispanic Caucus stated that Mr. Estrada appeared to have 
a ``very short fuse'' and that he did not ``have the judicial 
temperament that is necessary to be a judge.'' According to the Puerto 
Rican Legal Defense Fund, with whom Mr. Estrada met, he is not ``even-
tempered''--indeed he became angry during their meetings with him, and 
he even threatened the group with legal action because they had raised 
concerns about this record.
  Some of our Republican colleagues have said that Democrats opposed to 
Mr. Estrada's nomination are motivated by his ethnic background, but 
these reports that raise serious concerns about Mr. Estrada come from 
some of the most important and committed Latino organizations in the 
country.
  These groups correctly point out that Mr. Estrada has not taken any 
steps to reflect or serve his community. He has never provided any pro 
bono legal expertise to the Latino community. He has never joined, 
supported, volunteered for or participated in events of any 
organization dedicated to serving and advancing the Latino community. 
And he has never made any efforts to open doors of opportunity to 
Latino law students or junior lawyers. Mr. Estrada appears to be 
committed neither to his community, nor to an open, fair and impartial 
judicial process.
  Mr. Estrada has attempted in the past to limit the first amendment 
rights of minorities. He even sits on the board of the Center for 
Community Interest, which advocates for police tactics that have often 
led to harassment and racial profiling in minority communities. His 
efforts reflect a startling lack of concern for important American 
ideals.
  In a case heard by the Supreme Court, Chicago versus Morales, Mr. 
Estrada represented the U.S. Conference of Mayors in an amicus brief 
defending an antiloitering ordinance in Chicago.
  The Chicago antiloitering ordinance applied to any group of two or 
more individuals who gather with ``no apparent purpose'' in any public 
place including streets, parks, restaurants, and any other location 
open to the public. The ordinance allowed police to disperse any group 
of two or more individuals, so long as they reasonably believed any of 
the individuals to be a gang member. The Center for Community Interest 
also submitted a brief in support of the ordinance. Many civil rights 
and minority groups joined amicus briefs against the ordinance, 
including the National Council of La Raza, the Mexican American Legal 
Defense Fund, and the NAACP.
  The Supreme Court found that the ordinance violated the Due Process 
Clause of the fourteenth amendment.
  I want to take a moment here and discuss the opposition to Mr. 
Estrada's nomination that has been voiced by some of the groups that 
argued against the Chicago ordinance. These groups, including the 
National Council of La Raza and MALDEF have understandably opposed Mr. 
Estrada's nomination. Some of my Republican colleagues would have you 
believe that this opposition, which I share, is somehow on account of 
his ethnic background. It is not. One of our colleagues has said of 
Democrats that ``if you're a conservative and a minority, we hate 
you.'' In fact, the Democratic-led Senate has confirmed a number of 
Latino judges who have been nominated by the conservative White House. 
We confirmed Judge Christina Armijo, Judge Phillip Martinez, Judge Jose 
Martinez, Magistrate Judge Alia Ludlum, Randy Crane, and Judge Jose 
Linares.
  Mr. Estrada is opposed, not because he is Latino, but because what 
little record we have been allowed to review shows that he is not 
concerned with important constitutional rights, and he is unable to 
separate his ideology from his legal analysis.
  Even after the clear rebuke from the Supreme Court about broad 
antiloitering ordinances in Chicago versus Morales, Mr. Estrada devoted 
many hours to defending the City of Annapolis against challenges to the 
constitutionality of a similar antiloitering ordinance. When the NAACP 
challenged the ordinance, Mr. Estrada ``offered to take the city's case 
all the way to the U.S. Supreme Court, if necessary, free of charge.'' 
Mr. Estrada lost that case too, however, after a Federal District Court 
struck down the law as unconstitutional.
  I am deeply concerned by Mr. Estrada's intense focus on enforcing 
antiloitering ordinances. As MALDEF has noted,

     many of the individuals who are targeted under such 
     ordinances are minorities, and often, Latino urban youth are 
     harassed by police enforcing such ordinances. Day laborers 
     who are most often newly arrived immigrants who look for work 
     by congregating on particular public streets to wait to be 
     offered a manual labor job for the day

are often targeted under these ordinances. Mr. Estrada did not seem to 
appreciate this effect on the minority population, and he certainly did 
not let it affect his defense of those statutes.
  Other statements by Mr. Estrada raise additional concerns about his 
commitment to civil rights. For instance, Mr. Estrada has expressed 
skepticism about affirmative action. The D.C. Circuit has recently been 
closely divided on affirmative action in public employment programs. A 
narrow majority of the D.C. Circuit recently held that the Federal 
Government cannot require broadcasters to conduct targeted outreach to 
minorities and women even for the purpose of increasing the pool of 
qualified applicants.
  According to MALDEF, in meetings where Mr. Estrada has answered 
questions since his nomination, he has made statements about 
affirmative action that call into question whether he would find a 
compelling interest to justify such programs. Mr. Estrada indicated 
that he had not raised the issue of diversity in places where he has 
worked, and that he would not be particularly vigilant about giving 
opportunities to Hispanic clerks.
  Mr. Estrada was asked about the possible reasons for the lack of 
minority law clerks by a reporter for USA Today. According to the 
article, Mr. Estrada ``dismissed the statistics showing little 
representation of minorities'' and stated that ``if there was some 
reason for under-representation, it would be something to look into, 
but I don't have any reason to think it is anything other than a 
reflection of trends in society.'' His quote was contrasted with

[[Page 2670]]

statements by others that a variety of reasons are to blame for the 
lack of minority clerks.
  All of these aspects of Mr. Estrada's prior work indicate that he 
would not bring a fair and open mind, a sensible judicial temperament, 
and a commitment to civil rights and equal opportunity to the bench.
  Mr. Estrada's hearing did little to allay our concerns about his 
record. In fact, many concerns were actually intensified by Mr. 
Estrada's unwillingness to respond to even the most basic and innocuous 
questions about his views. For instance, Mr. Estrada refused to name a 
single Supreme Court case of which he was critical. In addition, 
Chairman Leahy asked Mr. Estrada whether an employer or a school could 
take race or ethnicity into consideration in a hiring or admissions 
decisions. Mr. Estrada refused to give any opinion on the matter.
  Chairman Leahy asked Mr. Estrada what he thought about the Supreme 
Court decision in Romer versus Evans--a decision he was reported to 
have criticized. Mr. Estrada again refused to answer whether he agreed 
with the decision, stating--incredibly--that because he did not hear 
the arguments in the case, he could not have an opinion.
  At that same time, Mr. Estrada gave contradictory answers in response 
to a series of questions about whether he had applied an ideological 
litmus test to clerks. Mr. Estrada, along with other former law clerks 
of Justice Anthony Kennedy, helps the Justice in choosing clerks by 
interviewing applicants. Two prospective clerks stated in an article in 
the Nation last September that Mr. Estrada told them that he screened 
clerks for Justice Kennedy in order to prevent Justice Kennedy from 
hiring any liberal clerks, apparently in response to Justice Kennedy's 
voting to strike down the anti-gay rights statute at issue in Romer 
versus Evans.
  Senator Schumer asked Mr. Estrada whether he ``had ever told anyone 
that you do not believe any person should clerk for Justice Kennedy 
because that person is too liberal, not conservative enough, because 
they didn't have the appropriate ideology, politics, or judicial 
philosophy or because you were concerned that person would influence 
Justice Kennedy to take positions you did not want him taking?'' Mr. 
Estrada answered unequivocally that he had not. After the break for 
lunch, however, Mr. Estrada revised his answer saying:

     there is a set of circumstances in which I would consider 
     somebody's ideology, if you want to call it that, in trying 
     to interview somebody for Justice Kennedy, whether on the 
     left or on the right. And that is to say, if I thought that 
     there was somebody who had views that were so strongly held 
     on any subject, whether, you know, the person thinks there 
     ought not to be the death penalty or whether the person 
     thinks that the income tax ought not to be constitutional or 
     anything, if I think that the person has some extreme view 
     that he will not be willing to set aside.

  Again, when Senator Schumer repeated his earlier question, Mr. 
Estrada hedged, saying that ``I have taken account the ideological 
learnings of a potential law clerk only when it appears to me--and this 
is something that I don't have a final say on, but I do tell Justice 
Kennedy that this person has a strongly held view on a subject that he 
would not be willing to put aside in the service of the Justice.''
  Mr. Estrada later conceded that ideology was one of the areas he 
``would explore in trying to find whether the law clerk candidate was 
suitable for Justice Kennedy.''
  This response is troubling, because it suggests a lack of candor in 
answering the first, very clear question put to Mr. Estrada by Senator 
Schumer. Clearly, it would be troubling if Mr. Estrada were subjecting 
clerks to an ideological litmus test in order to ensure that only 
conservative clerks would gain clerkships with Justice Kennedy and to 
avoid outcomes that Mr. Estrada found unfavorable.
  My Republican colleagues, unfortunately, have decided to react to 
these serious allegations by simply leveling personal attacks against 
the individuals who were interviewed by Mr. Estrada. Such personal 
attacks seem to be a pattern. Our Republican colleagues have attacked 
Paul Bender, Mr. Estrada's direct supervisor, because they did not like 
what he had to say about Mr. Estrada's inability to separate his 
ideology from his legal analysis. They have attacked Senate Democrats, 
accusing us of opposing Mr. Estrada on account of his ethnic 
background, when the concerns we raised are legitimate concerns about 
his ideology. And now they attack these law clerk applicants, whose 
voices have joined a growing chorus of people who question Mr. 
Estrada's ability to keep his conservative ideology from affecting his 
professional judgment. I call upon my Republican colleagues to halt 
these personal attacks, and talk about Mr. Estrada's qualifications to 
serve on the D.C. Circuit.
  Mr. Estrada's nomination is particularly troubling given the 
importance of the D.C. Circuit to issues of concern to a broad range of 
Americans seeking to enforce their basic rights. The D.C Circuit is 
widely regarded as the second most important court in the United 
States, behind only the Supreme Court. It has a unique and prominent 
role among the federal courts of appeals, particularly in the area of 
administrative law. It has exclusive jurisdiction over many workplace, 
environmental, civil rights, and consumer protection statutes. Because 
the Supreme Court grants review of only a small number of lower court 
decisions, most administrative law is established by the D.C. Circuit.
  Despite the importance of the D.C. Circuit to a broad array of 
Americans, some Republicans have worked to undo any balance on the 
court. During the Clinton administration, the Senate, controlled by 
Republicans, refused to approve two of President Clinton's nominees to 
the D.C. Circuit--Elena Kagan and Allan Snyder. Last fall's hearing for 
Mr. Estrada was the first hearing for a nominee to the D.C. Circuit in 
5 years. No questions were raised about the qualifications of either 
Ms. Kagan or Mr. Snyder--both had stellar qualifications. Nevertheless, 
hearings for these nominees were delayed, and after they finally 
received hearings they were refused a vote in the Committee or on the 
floor.
  Many Republicans argued then that the D.C. Circuit did not need any 
more judges. Yet shortly after President Bush was elected, two judges 
were nominated to the D.C. Circuit.
  Given the importance of this circuit, and the Republicans' 
obstruction of President Clinton's nominees, scrutiny of this nominee 
is particularly warranted.
  Mr. Estrada's record is troubling, and his unwillingness to 
supplement the record with meaningful answers to questions or the 
production of the memoranda from his tenure at the Solicitor General's 
office, preclude his confirmation to the important D.C. circuit. A 
life-tenure appointment to a court so important is resolving issues 
involving workers, immigrants, women, and the environment cannot be 
given to a nominee about whom we know so little.
  The Constitution does not contemplate a Senate that acts as a rubber 
stamp. A genuine advise and consent role is essential. If the 
administration continues to nominate judges who would weaken the core 
values of our country and roll back the civil rights laws that have 
made our country a more inclusive democracy, the Senate should reject 
them.
  Everything we know of Miguel Estrada leads to the conclusion that he 
would be such a judge. His confirmation should be rejected.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Utah.
  Mr. HATCH. Mr. President, I listened to my good friend and colleague 
from Massachusetts and you would think only Democrats care about clean 
air, clean water, the environment, workers' rights, civil liberties. I 
want him to know we care about them, too. But we want them to work. We 
don't want them all left-wing, one-sided approaches.
  I have had questions in committee from some of my friends on the 
other side asking some of these nominees who have served in judicial 
positions

[[Page 2671]]

why they have not found, always, for the worker? And actually they have 
been criticised because they occasionally--or many times--found for the 
corporation, as if corporations can't be right and that workers are 
always right.
  We all know, regarding workers' issues generally, the ones that are 
legitimate and good are generally always settled. Any attorney who has 
dealt in labor law knows that. The hard cases come to the courts. Many 
times the corporations are right. But to hear our colleagues, any case 
that goes against a worker, the judge has to be biased and bigoted and 
wrong. That just is not true. If we have to have judges just finding 
for one side, whether they are right or wrong--especially if they are 
wrong--then what kind of justice would that be in America?
  I have heard this antiloitering case business. By the way, the 
hearing was conducted by the Democrats. They conducted it. They could 
have made it however long they wanted. They know there are certain 
questions nobody is going to answer, especially when it comes to issues 
that possibly could be decided by the court upon which the nominee may 
sit. Any nominees who do answer those kinds of questions, you really 
have to question whether they have the judicial standing and the 
judicial acumen to be able to be on the courts.
  We have had top authorities from both sides, both Democrats and 
Republicans, say you should not be discussing in nomination hearings 
issues that might possibly come before the court that you will be 
sitting upon.
  We have quoted regularly and with good reason--Lloyd Cutler is one of 
the great lawyers in this country. He is a Democrat. He has been chief 
counsel for both Jimmy Carter and Bill Clinton. He had no difficulty at 
all working with us up here because we all respect him. But he said, 
regarding judicial nominees, in unequivocal terms ``candidates should 
decline to reply when efforts are made to find out how they would 
decide a particular case.''
  In Lloyd Cutler's opinion, he says: ``What is most important is the 
appointment of judges who are learned in the law.''
  You are going to have to go a long way to be more learned than Miguel 
Estrada, who, by the way, has the highest rating, by their own 
standard, of the American Bar Association--unanimously highest rating. 
Normally that would put anybody through this process. But it is not 
good enough for this Hispanic gentleman who they are afraid, if he gets 
on the DC Circuit Court of Appeals, might not rule the way they want 
him to rule. Because, No. 1, he is a Republican and he may be 
conservative. He may even be critical of Roe v. Wade, the great 
standard that seems to be the underlying problem with all of these so-
called moderate to conservative nominees. Lloyd Cutler says:

       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.

  I have heard some comments about judicial temperament here. The only 
person who indicated even slightly that Miguel Estrada may have a 
temperament problem is Paul Bender, who is as far left a law professor 
as you can find. He is a brilliant man. I have no problems there. What 
I have problems with is a man who gives him the highest performance 
ratings while he is serving under him at the Solicitor General's 
office, ratings that just brag about him and then, when the chips are 
down and he is up for a nomination, undermines him with comments that 
he is an ideolog. Paul Bender is the only one I know of who has said 
that--from the Solicitor's office.
  In fact, let me talk a little bit about temperament. I have heard 
some of my Democratic colleagues say allegations have been raised about 
Miguel Estrada's temperament. The only person I know who has raised 
questions about his temperament happens to be Paul Bender. We all know 
he lacks credibility.
  But let me say a word about relying on anonymous allegations about 
Mr. Estrada's temperament. These allegations certainly should not be 
believed. These allegations violate not only a basic right to confront 
one's witnesses, but also longstanding committee policy that prevents 
the consideration of anonymous allegations against a nominee. These are 
also grossly inconsistent with Mr. Estrada's superiors' and colleagues' 
statements that Mr. Estrada's work in the Solicitor General's Office 
was superb and that he was a well-respected colleague.
  Seth Waxman, President Clinton's Solicitor General, a Democrat, but 
one we all respect, wrote to us that Estrada is a ``model of 
professionalism and competence'' and that he had ``great respect both 
for Mr. Estrada's intellect and for his integrity.''
  Mr. Waxman, this Democrat, former Solicitor General under the Clinton 
administration, continued:

       In no way did I ever discern that the recommendations Mr. 
     Estrada made or the views he propounded were colored in any 
     way by his personal views, or indeed that they reflected 
     anything other than the long-term interests of the United 
     States.

  But Mr. Waxman isn't the only Democrat who testified to Estrada's 
fairness and integrity. A bipartisan group of 14 colleagues from the 
Office of the Solicitor General also wrote to the committee that 
Estrada ``would be a fair and honest judge who would decide cases in 
accordance with applicable legal principles and precedents.''
  I ask unanimous consent that a copy of this be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               September 19, 2002.
     Re nomination of Miguel A. Estrada.

     Hon. Patrick J. Leahy,
     Chairman, Senate Committee on the Judiciary, SD-224 Dirksen 
         Senate Office Building, U.S. Senate, Washington, DC.
     Hon. Orrin G. Hatch,
     Ranking Member, Senate Committee on the Judiciary, SD-152 
         Dirksen Senate Office Building, U.S. Senate, Washington, 
         DC.
       Dear Chairman Leahy and Senator Hatch: We are writing to 
     express our support for the nomination of Miguel A. Estrada 
     to be a Judge of the United States Court of Appeals for the 
     District of Columbia Circuit. We served with Mr. Estrada in 
     the Office of the Solicitor General, and we know him to be a 
     person of exceptional intellect, integrity, and 
     professionalism who would make a superb Circuit Judge.
       Miguel is a brilliant lawyer, with an extraordinary 
     capacity for articulate and incisive legal analysis and a 
     commanding knowledge of and appreciation for the law. 
     Moreover, he is a person whose conduct is characterized by 
     the utmost integrity and scrupulous fairness, as befits a 
     nominee to the federal bench. In addition, Miguel has a deep 
     and abiding love for his adopted country and the principles 
     for which is stands, and in particular for the rule of law. 
     We hold varying ideological views and affiliates that range 
     across the political spectrum, but we are unanimous in our 
     conviction that Miguel would be a fair and honest judge who 
     would decide cases in accordance with the applicable legal 
     principles and precedents, not on the basis of personal 
     preferences or political viewpoints.
       We also know Miguel to be a delightful and charming 
     colleague, someone who can engage in open, honest, and 
     respectful discussion of legal issues with others, regardless 
     of their ideological perspectives. Based on our experience as 
     his colleagues in the Solicitor General's office, we are 
     confident that he possesses the temperament, character, and 
     qualities of fairness and respect necessary to be an 
     exemplary judge. In combination, Miguel's exceptional legal 
     ability and talent, his character and integrity, and his deep 
     and varied experience as a public servant and in private 
     practice make him an excellent candidate for service on the 
     federal bench.
       We hope this information will be of assistance to the 
     Committee in its consideration of Mr. Estrada's nomination. 
     He is superbly qualified to be a Circuit Judge for the 
     District of Columbia Circuit, and we urge your favorable 
     consideration of his nomination.
           Very truly yours,
         Thomas G. Hungar, Gibson, Dunn & Crutcher LLP; Richard P. 
           Bress, Latham & Watkins; Edward C. DuMont, Wilmer, 
           Cutler & Pickering; Paul A. Engelmayer, Esq., Wilmer, 
           Cutler & Pickering; David C. Frederick, Kellogg, Huber, 
           Hansen, Todd & Evans, P.L.L.C.; William K. Kelley, 
           Notre Dame Law School; Paul J. Larkin, Jr., Alexandria, 
           VA 22302.
         Maureen E. Mahoney, Latham & Watkins; Ronald J. Mann, Roy 
           F. & Jean Humphrey Proffitt Research, Professor of Law, 
           University of Michigan Law School; John F. Manning, 
           Columbia Law School; Jonathan E. Nuechterlein, Wilmer, 
           Cutler & Pickering; Richard H.

[[Page 2672]]

           Seamon, Associate Professor, University of South 
           Carolina, School of Law; Amy L. Wax, Professor of Law, 
           University of Pennsylvania Law School; Christopher J. 
           Wright, Harris, Wiltshire & Grannis LLP.

  Mr. HATCH. Mr. President, the anonymous rumors about his temperament 
are just that--mean-spirited rumors that have been ginned up by liberal 
special interest groups that don't want to have a smart minority member 
of the judiciary who does not toe their special-interest line on the 
issues. That is exactly what is behind all of this. The fact is Mr. 
Estrada has overwhelming support among Hispanic organizations and the 
Hispanic community, and he should. I am ashamed of some of those who 
have just played partisan politics because they said Mr. Estrada is not 
Hispanic enough. Can you believe that? Some of his own fellow Hispanics 
say he is not Hispanic enough. He has only been here since he was 14 
years of age. My gosh.
  The oldest Hispanic organization, the League of United Latin American 
Citizens--the oldest one--is behind him. The Hispanic National Bar 
Association--the Hispanic lawyers in this country--is behind Estrada; 
the United States Hispanic Chamber of Commerce--very prestigious; the 
Hispanic Business Roundtable; the Latino Coalition; and many other 
Latino organizations strongly support Estrada.
  I was surprised to see this antiloitering case stuff brought up here. 
I was surprised that there is a question raised here about antigang-
loitering cases Mr. Estrada worked on. Although some have attempted to 
mischaracterize the statutes that were the crux of these cases as 
racially discriminatory, the exact opposite is true. These statutes 
were enacted to protect the quality of life of low-income minorities 
whose neighborhoods are too often devastated by drug violence. That is 
what was behind it.
  For example, according to a 1997 report issued by the Clinton Justice 
Department, ``Gangs have virtually overtaken certain neighborhoods, 
contributing to the economic and social decline of these areas and 
causing fear and lifestyle changes among law-abiding residents.''
  Another Reno-era Justice Department report concluded that:

       From the small business owner who was literally crippled 
     because he refused to pay protection money to the 
     neighborhood gang to the families who are hostages within 
     their homes living in neighborhoods ruled by predatory drug 
     trafficking gangs, the harmful effect of gang violence is 
     both physically and psychologically debilitating.

  At this hearing, Mr. Estrada told us he got involved in the City of 
Chicago v. Morales case at the request of the Democratic leadership of 
Chicago.
  If the distinguished Senator from Massachusetts doesn't like the fact 
he was representing these people in this case, and decries the fact 
that this may have involved some first amendment principles--which I am 
sure it did--then he ought to go back to his Democratic friends in the 
City of Chicago who were concerned about these matters. He tried this 
case at their request. One of the primary proponents of the Chicago 
ordinance was none other than Democratic Mayor Richard Daley.
  Let me read a few quotes about the ordinance by Mayor Daley, who the 
New York Times described as the ``law's fiercest advocate.'' If you are 
going to criticize Miguel Estrada, criticize Mayor Daley, too, except I 
don't think either deserves criticism. I think these quotes will dispel 
any notion that the law was somehow intended to hurt rather than help 
minority residents of Chicago. But then, again, in Miguel Estrada's 
case, why is it they are stooping to such a level as to criticize him 
on sincerely-fought cases, and especially this one where he was 
basically representing the Democrats in Chicago?
  But here is what Mayor Daly said.
  I might say that in November--we have a chart--Mayor Daley said:

       I tell you one thing, those drug dealers and gangbangers 
     are terrorists, too.

  In November 2001, Mayor Daley defended his antiloitering law in the 
Chicago Sun-Times by making that comment.
  In October 2000, he observed:

       I don't see too many gangbangers on Lake Shore Drive.

  Everyone knows Lake Shore Drive is an exclusive area of Chicago.
  Mayor Daley is trying to solve some problems for minorities, and here 
it is being criticized because Miguel Estrada tried the case at their 
request.
  Again, in January 2000, Mayor Daley said:

       [T]hese aren't middle-class communities. These are poor 
     communities. People want a right to survive. It is as simple 
     as that.

  I could go on and on. But, instead, I ask unanimous consent that a 
list of quotes by Mayor Daley in support of the antigang-loitering 
ordinance be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 Chicago Democratic Mayor Richard Daley on Anti-Gang Loitering Statutes

       ``I tell you one thing, those drug dealers and gang-bangers 
     are terrorists, too.'' Chicago Sun-Times, Nov. 23, 2001.
       ``It's the average person on a block; it's a senior 
     citizen; it's an eight year old girl going to a school or 
     trying to get to the bus stop, or someone trying to go to the 
     store. They can't go there. The gangs and drug dealers own 
     the corner. And that's what this is all about.'' All Things 
     Considered, June 10, 1999.
       ``We are determined to get those gangs off our streets, 
     where they sell dope, terrorize innocent people and attract 
     drive-by shootings. Chicago Daily Herald, March 29, 2000.
       ``[W]e have to ask ourselves if it is constitutional for 
     gang-bangers and drug dealers to own a corner. . . . 
     [E]veryone knows that they aren't out there cooking hot dogs 
     and studying Sunday-school lessons.'' New York Times, June 
     12, 1999.
       ``I don't see too many gang-bangers on Lake Shore Drive.'' 
     Chicago Tribune, Oct. 1, 2000.
       ``[T]hese aren't middle-class communities. These are poor 
     communities. People want a right to survive. It is as simple 
     as that.'' Chicago Tribune, January 12, 2000.
       ``We held hearings all over the city [to find out] what 
     community leaders wanted. Their message was very clear: Do 
     whatever you have to do to satisfy the court, but get those 
     gang-bangers and dope dealers off our corners.'' Chicago Sun-
     Times, January 12, 2000.

  Mr. HATCH. Mr. President, one of the things I like about Mayor Daley 
is he is a really good mayor who is trying to do the best job he can, 
and he will do it in a bipartisan way, if he can. And here Miguel 
Estrada is getting criticized for supporting him. These are ordinances 
that were supported by members of the minority community.
  One thing I find ironic is the persons who criticize the antigang-
loitering statutes rarely live in the neighborhoods plagued by chronic 
gang activity. I am not too sure anybody in the Senate is living in 
those types of areas. But the ones who complain generally have never 
had to live in those gang areas. These ordinances were enacted in 
direct response to pleas by communities that have members of gangs.
  As Mayor Daley explained:

       We held hearings all over the city to find out what 
     community leaders wanted. Their message was very clear: Do 
     whatever you have to do to satisfy the court, but get those 
     gangbangers and dope dealers off our corners.

  Betty Meaks, head of the Southwest Austin Council on Chicago's West 
Side, lived in a neighborhood where gang members routinely sold drugs 
on street corners and intimidated passers-by.
  According to Meaks:

       If we don't use this law as a tool, how are we going to get 
     these guys off the corner? What about the constitutional 
     rights of my neighbors whose kids have to walk by that corner 
     every day on their way to school?

  That is a resident of that gangbanger area and that drug-ridden area 
who is tired of it.
  Another Chicago resident, 74-year-old Emmitt Moore, saw his house 
sprayed with bullets during a gang turf war. Referring to the anti-gang 
loitering law, he said:

       The Constitution is supposed to protect my rights, too. 
     What is a more basic right than feeling safe on my property 
     or being able to walk on my street?

  The fact these cases were lost doesn't take away from the fact these 
were sincere people living in gang-ridden areas and drug-ridden areas 
trying to do what they could to get these problems solved. And their 
rights were being taken away while we talk about esoteric rights of the 
first amendment. Nobody believes in the first amendment more than I do. 
But I have to tell

[[Page 2673]]

you there are other rights involved, too, that are also first amendment 
rights. These poor people living in these areas have some rights, too.
  The Annapolis ordinance was even a more explicit example of the 
underprivileged taking the initiative to combat crime in their 
neighborhoods.
  What gets me is some of these Hispanic groups that are against Miguel 
Estrada say he hasn't done enough in the Hispanic community.
  Think about these cases where he took them on--yes, in a losing 
cause, but took them on--trying to help these minority residents in 
these tough communities. There are not too many people who could have 
done it.
  Under the Annapolis ordinance, an area could be designated as a 
``drug loitering free zone'' only if a neighborhood association or 
resident first submitted a petition to the city council. Some critics 
have described Mr. Estrada's Annapolis case because it challenged the 
NAACP's standing to bring the action against the ordinance. But, as Mr. 
Estrada testified at the hearing, the decision to challenge the NAACP's 
standing was made by other lawyers--not him--before he ever got 
involved in the case. Yet they are trying to pin that on him. That is 
the kind of ``fairness'' we have had in this whole process.
  I do not think anybody watching this process would say it is very 
fair. And you can start with Paul Bender. Either Paul Bender is right 
when he says Miguel is an ideologue--long after the fact--or he was 
right when he was ethically giving his opinion that Miguel Estrada is 
one of the best people who ever worked down there at the Solicitor 
General's Office. Which is it? I suggest to you that it was the written 
opinions given in the Justice Department, that are backed up by Seth 
Waxman and 14 other coworkers, all of whom say Miguel is great and a 
good person. It is amazing to me that some of these arguments are made.
  Although Mr. Estrada's efforts to defend the constitutionality of 
these statutes were unsuccessful, he may have lost the battle but he 
won the war, as they say. I am referring to the Supreme Court's 
decision in Morales. Although the Court held that the Chicago ordinance 
was unconstitutionally vague, Justices O'Connor and Breyer wrote a 
concurring opinion that gave municipalities a roadmap on how to enact 
constitutionally sufficient antiloitering laws. So it was not a battle 
that was in vain. It was a battle that ultimately will lead to 
resolution of those inner-city poor people's problems. And it was 
Miguel Estrada who took them on, took on the gangs, took on the drug 
dealers--and, I might add, at the request of Mayor Daley. And Mayor 
Daley took them on--something any good mayor I think would do, but 
certainly I respect Mayor Daley.
  Under Mayor Daley's leadership, in following the O'Connor-Breyer 
roadmap, Chicago enacted a new ordinance in the year 2000. So, yes, he 
lost the case before the Supreme Court but won it in the end, in 
helping these poor people in Chicago to have some protection from 
gangbangers and drug dealers. And he is being criticized by my 
colleagues on the other side during these nomination proceedings? No. 
The thing that is wrong with Miguel Estrada is he is not the right kind 
of Hispanic. He does not agree with them in everything, maybe. I don't 
know what his positions are in every degree, but I can tell you this: 
He is honest, he is smart, he is capable, he answered a lot of 
questions before our committee--even though he did not please all the 
Democrats--and he has the highest rating anybody can get, unanimously, 
from the American Bar Association.
  The problem of inner-city gang violence is so pervasive that we in 
Congress recognized it and addressed it in 1994. Were we bad people 
because we tried to address this problem that might have curtailed some 
people's rights to do whatever they wanted to do in our society? That 
is what criminal laws are about.
  Mr. President, 18 U.S.C. 521 mandated additional penalties of up to 
10 years imprisonment for individuals convicted in certain gang-related 
offenses. I note that eight of my Democratic colleagues on the 
committee, who were Members of Congress in 1994, voted in favor of 
section 521.
  Now, where is the beef? I have been asking that all the way through--
borrowing Walter Mondale's comment. Where is the legitimate criticism 
of this person other than these esoteric and, I think, unfair 
criticisms that I have been hearing on the floor since this debate 
began?
  Calling for a vote against Estrada because he does not have any 
judicial experience--oh, he was a law clerk to two Federal judges, one 
a Supreme Court Justice. If that isn't judicial experience, then I 
don't know what is. He did not decide the cases, but he helped write 
the answers, and he sat there and watched all the judicial proceedings. 
And I have just listed 26 Democratic appointees to the Federal bench, 
none of whom had any judicial experience before we confirmed them, 
without raising that ridiculous issue. So the lack of judicial 
experience is a red herring, as are all of these issues. If you really 
get into them, if you really go through them, you realize there is not 
any substance to these arguments.
  Now, apparently Paul Bender told Senator Feinstein's staff that he 
stood by his comments, that he believes Miguel Estrada is an ideologue, 
and that the personal reviews that he gave, that were so laudatory and 
commendable about Miguel Estrada, were just boilerplate that they did 
for everybody. And apparently, according to what he told Senator 
Feinstein's staff, he stopped assigning important matters to Estrada 
because he was too ideological.
  At the request of the committee, Mr. Estrada provided copies of his 
annual performance evaluations during his tenure at the Solicitor 
General's Office. These documents cast serious doubt on Mr. Bender's 
allegations about Mr. Estrada. The evaluations show that during each 
year that Mr. Estrada worked at the Solicitor General's Office, he 
received the highest possible rating of ``outstanding'' in every job 
performance category. Either Mr. Bender was telling the truth then or 
he is playing politics now. The rating official who prepared and signed 
the performance reviews for 1994 to 1996 was none other than Mr. 
Bender.
  I will admit Mr. Bender is a very bright and intelligent man. I will 
admit he has been a law professor for many years. And I will admit he 
has many wonderful qualities. But anybody who looks at what has 
happened here knows he is playing partisan politics right down the 
line.
  Let me read a few excerpts from the evaluations Mr. Bender signed. 
They say that Mr. Estrada:

       States the operative facts and applicable law completely 
     and persuasively, with record citations, and in conformance 
     with court and office rules, and with concern for fairness, 
     clarity, simplicity, and conciseness.

  I do not know any lawyer in the world who would not want to have that 
set of accolades written about them.
  He goes on to say, Miguel Estrada:

       Is extremely knowledgeable of resource materials and uses 
     them expertly; acting independently, goes directly to point 
     of the matter and gives reliable, accurate, responsive 
     information in communicating position to others.

  Or this one:

       All dealings, oral and written, with the courts, clients, 
     and others are conducted in a diplomatic, cooperative, and 
     candid manner.

  Or this one:

       All briefs, motions or memoranda reviewed consistently 
     reflect no policies at variance with departmental or 
     governmental policies or fails to discuss and analyze 
     relevant authorities.
  You see, Miguel Estrada was also working for the Clinton 
administration.
  Another quote: ``is constantly sought for advice and counsel; 
inspires coworkers by example.''
  Either Mr. Bender was telling the truth then or he isn't telling the 
truth now. Both of them can't be accurate.
  These comments represent Mr. Bender's contemporaneous evaluation of 
Mr. Estrada's legal ability, judgment, temperament, and reputation for 
fairness and integrity. These comments unmask Mr. Bender's more recent 
statements made after Mr. Estrada's nomination for what they are--a 
politically motivated effort to smear Miguel

[[Page 2674]]

Estrada and hurt his chances for confirmation. I am disappointed in Mr. 
Bender, or Professor Bender, if you want me to use those terms. I am 
disappointed that a law professor would play this game, which is what 
he is doing.
  The performance evaluations confirm what other Clinton administration 
lawyers and virtually every other lawyer who knows Miguel Estrada have 
said about him--that he is a brilliant attorney who will make a fine 
Federal judge.
  The nature of the request of my Democratic colleagues for unfettered 
access to the universe of Mr. Estrada's privileged attorney-client work 
product is really extraordinary and unprecedented. These documents were 
not requested for the eight previous circuit court nominees who had 
worked in the Solicitor General's Office. This request was opposed by 
all seven living former Solicitors General in a letter to the committee 
citing the debilitating effect it would have on how the Department of 
Justice does business. Democrats Archibald Cox, Seth Waxman, Drew Days, 
and Walter Dellinger all signed this letter--as they should have.
  The Democrats have failed to show a persuasive precedent for this 
request. They first claimed that the Department of Justice has a 
history of disclosing previously confidential internal documents in 
connection with confirmation proceedings. This is simply not accurate. 
It is not fair either. In a letter dated October 8, the Department of 
Justice points out that since the beginning of the Carter 
administration, there have been 67 former Department of Justice 
employees, 38 of whom, like Miguel Estrada, had no prior judicial 
experience. Eight of these nominees had worked in the Solicitor 
General's Office. The Department of Justice could find no record of 
having produced internal deliberative materials created by the nominee 
while the Department of Justice lawyer in any of those cases--in any of 
those cases.
  My Democratic colleagues have mentioned six nominees in connection 
with whom they claim the Department of Justice released confidential 
internal memoranda or documents. The Department of Justice has 
explained in a letter to the committee that of these nominees, the 
hearings of only one, Judge Bork, involved documents from his service 
in the Solicitor General's Office.
  In that case, the Department of Justice produced a limited number of 
documents related to specific topics of interest to the committee. They 
did not allow a fishing expedition into the private memoranda of 
employees of the Solicitor General's Office, given with good intent to 
their superiors so they can make decisions on behalf of our country, 
something that would certainly be chilled if they knew that sometime in 
the future their documents or these documents with their best advice 
could be utilized to destroy their chances of being on one of the 
Federal courts.
  As the Department of Justice observed:

       The vast majority of memoranda authored or received by 
     Judge Bork when he served as solicitor general were neither 
     sought nor produced, and the limited category of documents 
     that were produced to the committee did not reveal the 
     internal deliberative recommendations or analysis of the 
     assistant to the solicitor general regarding appeals, 
     certiorari or amicus recommendations in pending cases. This 
     is hardly the unfettered, unprecedented access to privileged 
     work product that has been argued.

  In that case, the Bork case, the Department of Justice produced a 
limited number of documents related to specific topics of interest to 
the committee. As the Department of Justice observed:

       The vast majority of memoranda authored or received by 
     Judge Bork when he served as solicitor general were neither 
     sought nor produced, and the limited category of documents 
     that were produced to the committee did not reveal the 
     internal deliberative recommendations or analysis of the 
     assistant to the solicitor general regarding appeals, 
     certiorari or amicus recommendations in pending cases.

  This is hardly the unfettered, unprecedented access to privileged 
work product that my Democratic colleagues now seek.
  As for the claim that the Department of Justice produced internal 
memoranda written by Seventh Circuit Judge Frank Easterbrook, DOJ has 
no record of producing these documents to the committee, and there is 
no indication that the committee ever requested those documents. So how 
did they come about? Probably through leaks by people who wanted to 
scuttle now-Judge Easterbrook's confirmation process.
  It is important to note that the Republicans have not used this 
tactic ever--never once--as much as there have been criticisms and 
questions about Democratic nominees through the years. In fact, during 
the last Congress, when Jonathan Adelstein, a former aide to Senator 
Daschle, was a nominee to the FCC, Republicans could have asked for all 
of the internal memoranda written by him, but we did not.
  I would like to respond to a matter that deeply troubled me at Mr. 
Estrada's hearing which has now been resurrected. I am appealing to my 
colleagues, to their sense of fairness on this matter, which I think 
is, frankly, serious and, frankly, outrageous.
  At his hearing, Miguel Estrada was asked a series of questions 
regarding some anonymous allegations about him that appeared in an 
article in the ultraliberal political magazine, The Nation. These 
allegations concern comments that he supposedly made to persons who 
came to him in search of a Supreme Court clerkship with Justice 
Kennedy. It is bad enough to put a witness in the impossible position 
of defending against anonymous allegations, but things got worse when 
Miguel Estrada was asked followup questions about these allegations 
that were so broadly worded, vague, and compound that he could not have 
possibly crafted a satisfactory answer under the circumstances.
  It has long been the policy of the committee--that is, the Judiciary 
Committee--instituted under the leadership of Senator Biden, chairman 
at the time, that we will not subject nominees to anonymous charges. 
Unfortunately, that is just what happened to Miguel Estrada.
  It is worth reminding my colleagues about Senator Biden's standard 
when it came to anonymous sources. He said:

       The nominee has the right to be confronted by his accuser 
     so any accusation against any nominee before any committee 
     which I chair that is not able to be made public to the 
     nominee will not be made known to the Senate unless the 
     individual wishes to do it all by themselves. Then it is 
     known to the nominee. This is not a star chamber.

  I surely agree with Senator Biden.
  Here is another example of Senator Biden's policy on anonymous 
sources. In 1992, the Atlanta Journal-Constitution reported:

       Committee Chair Joseph Biden, according to his staff, felt 
     strongly that he was not going to circulate some anonymous 
     charge.

  This is a standard of fairness that the committee has always 
followed, and we have really gone way below the deck here. Some of my 
colleagues are bullying this nominee into a political game of gotcha. 
That is what it comes down to. More fundamentally, the anonymous 
allegations of The Nation are at odds with the overwhelming evidence of 
Mr. Estrada's fairness that we have received in letters of support and 
in examples of cases he has argued. I have mentioned letters from Seth 
Waxman and others.
  They are simply not credible on their face, particularly when you 
consider Mr. Estrada's recommendation to Justice Kennedy that he hire a 
law clerk who was a colleague of Mr. Estrada's in the Clinton Justice 
Department and who now works as a staffer for Senator Leahy, or did 
work up until recently.
  At a fundamental level, these are simply not the actions of a right-
wing ideologue. That is just true. It is a shame to try to make 
something out of anonymous allegations that Mr. Estrada wasn't even 
given the privilege of trying to answer.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, I know my good friend from Utah feels 
very strongly about this and has spoken for about 30 minutes, so I 
think it

[[Page 2675]]

would be appropriate to go to the other side. But I have spoken to my 
colleague from Ohio and he only has about 10 minutes of remarks.
  I ask unanimous consent that my colleague from Ohio be allowed to go 
for 10 minutes and then I be given the floor when he has finished.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Mr. President, I rise today in support of Miguel 
Estrada's nomination. I wish to talk about just one aspect of this 
nomination, one aspect about this debate. I am very concerned about an 
argument some have been making regarding their ability to assess this 
nominee's nomination to the DC Circuit Court of Appeals. Some are 
arguing that they cannot judge Miguel Estrada's qualifications because 
they have not seen some memos that he wrote when he worked for the 
Department of Justice from 1990 to 1997. Some argue they cannot vote in 
favor of his nomination because they have not seen these memos.
  I am here this afternoon because I believe that this line of thinking 
is really not a prudent way to view the debate on this nomination. This 
is why. First, Mr. Estrada has nothing to do with whether these memos 
are released. Under the rules of privilege, it is not the attorney who 
produces the work who decides whether or not to disclose it. Instead, 
it is the client for whom the work was produced who has this right. To 
be blunt, this is not Mr. Estrada's fight. In fact, Mr. Estrada has 
testified that were it up to him personally, he would be willing to 
turn over the memos. In fact, let me quote from a transcript of his 
nomination hearing:

       You are right that I have not opposed the release of those 
     records. I have been a lawyer in practice for many years now, 
     and I would like the world to know that I am exceptionally 
     proud of every piece of legal work I have done in my life. If 
     it were up to me as a private citizen, I would be more than 
     proud to have you look at everything that I have done for the 
     Government or for a private person.

  I think it is clear that Mr. Estrada believes he has nothing to hide 
in those memos and would be willing to turn them over. However, as Mr. 
Estrada understands, it is not up to him to decide whether or not those 
memos are released. Instead, it is up to his client--in this case, the 
Justice Department. It is their decision. So it is clear that Mr. 
Estrada is not responsible for this dispute. It would be very unfair, I 
maintain, to hold up Mr. Estrada's nomination because these memos have 
not been released.
  Perhaps more importantly, in terms of the underlying merits of the 
dispute, it is clear that the Justice Department is correct in refusing 
to turn over these memos. Precedent is clearly on their side. It is 
entirely appropriate for the Department to assert its privilege in 
order to protect work product that was used as part of the Department's 
internal deliberative process. Mr. Estrada discussed this issue at his 
nomination hearing, and he put it well when he said the following:

       I do recognize that there are certain interests that have 
     been asserted in this case that go beyond my own personal 
     interest, and those are the institutional interests of the 
     Justice Department.

  Mr. Estrada was pressed to ask the Attorney General to release the 
memos. He was asked: Won't you go to the Attorney General and ask them 
to release the memos? This is what he said:
       I have been a practicing lawyer for all these years, and 
     one of the things I have come to learn is that a practicing 
     lawyer . . . ought not put his own interests ahead of the 
     stated interests of his client. . . .

  The argument has been made that since he is no longer the Assistant 
Solicitor General, and because he no longer works at the Department of 
Justice, he doesn't have to protect their internal deliberations. But 
that argument really, of course, misses the point entirely. What is 
important is that these privileges do not exist to protect the lawyer. 
Rather, these privileges exist to protect the client. Accordingly, 
these privileges simply do not disappear when the lawyer no longer 
works for his client.
  A lawyer's obligation to protect his client's privileges carries on 
indefinitely, whether that client is a private person, the Attorney 
General, or a U.S. Senator. In the case of a private person who hires a 
lawyer, the attorney-client privilege exists to encourage full and 
frank communication between clients and their attorneys. A client can 
confidently disclose all relevant information to his attorney so that 
the attorney can provide informed advice to the client.
  If the client thought that the attorney would reveal the client's 
highly personal information, full disclosure would be significantly 
chilled. Similarly, it is in the client's interest that a lawyer's 
advice to him or her remains confidential. Any number of a client's 
decisions could be undermined if the attorney's advice influencing 
those decisions were revealed.
  In a May 28, 2002, editorial supporting Mr. Estrada's nomination, the 
Washington Post recognized that:

       Such a request for an attorney's work product would be 
     unthinkable if the work had been done for a private client.

  The Washington Post got it right. It seems completely reasonable to 
support private assertions of privilege. Some, however, will argue that 
this situation is different. Some will argue that this is a Government 
lawyer whose client is the people of the United States. Some will argue 
that all those documents and deliberations should be public because the 
public is the client. But that simply ignores reality, how the real 
world works and should work.
  The Department of Justice makes difficult decisions about litigating 
some of the most complex and sensitive cases before our courts. The 
Department must decide which cases to pursue and what arguments to 
present in each case. It is in the interest of the public that these 
issues are fairly debated and vetted internally so that the Attorney 
General or the Solicitor General can make informed decisions.
  Attorney General Ashcroft described the internal second-guessing that 
a career attorney could go through if the Department of Justice 
disclosed these internal deliberative memos. That attorney may 
question: Are these memos somehow going to be used against me later so 
that I should tone down my response? Should I adjust what I am saying 
because someday a Senate committee, or someone else, is going to want 
to look at it? Should I act in ways that are more consistent with my 
aspirations to be a judge someday instead of my responsibility to serve 
in a particular case?
  Ultimately, we need an environment that allows for a complete 
discussion of all the arguments, both the pros and the cons. Attorneys 
have to be able to present all sides of a case. If an attorney who is 
engaged in a case discussion holds back, it hurts the case, it hurts 
the free and open exchange of ideas. If an attorney is afraid to talk 
about all the arguments and angles of a case because he or she is 
afraid of getting quoted at some future point, it hurts the case. It 
has a chilling effect on the discussion. It hurts the entire litigation 
process.
  Let's bring this a little closer to home. Most Members of the Senate 
have attorneys on their staffs. This is especially true for those of us 
who serve on the Judiciary Committee. We often require counsel on 
complex legal and policy issues that come before the committee. I have 
several attorneys on my staff. Other Members do as well. We rely on our 
staffs, attorneys and nonattorneys, for candid and complete advice.
  I insist they provide me with points of view and arguments from all 
sides of any given policy debate. Often, one of my attorneys will 
present one side of a debate and the other will take up the other side 
just so we get a give-and-take. This is a scenario that takes place 
many times a day every day in the Senate. I must have and other Members 
must have complete faith that we are getting the entire picture from 
our staffs and that we are receiving their unvarnished opinions. As it 
stands now, I am confident that I get such advice because my staff 
knows anything they communicate to me is completely internal and will 
not be disclosed.
  Imagine the difference if their advice were subject to disclosure. 
Many staffers are in the early stages of their careers and may find 
themselves down

[[Page 2676]]

the road serving the Government in many different capacities. Some may 
go on to appointed positions that might require Senate confirmation. 
How could I rely on their work if it were influenced by some fear that 
their advice would someday be revealed in the confirmation process? 
Think about it.
  I know I am protected as a Member by the speech and debate clause and 
that my staff's advice to me will not be revealed because of that 
protection, but the principles are really the same. Our staff, 
Congress's staff, needs to be able to do its work without fear of 
future repercussions for arguments made in good faith, but the same is 
true of the staff of the Attorney General or the Solicitor General.
  I wish to reiterate that this is not Mr. Estrada's fight.
  I ask unanimous consent for 1 additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. This is not Mr. Estrada's fight. He should not be 
punished for a dispute that is really just about disclosure of 
documents between branches. It is that simple.
  I support his nomination. I will be back in the Chamber later to talk 
about the merits, but I wanted to talk about this one particular aspect 
of the debate.
  Mr. President, later today, in less than 2 hours, we will be voting 
on several district court nominations. One of them is John Adams from 
the State of Ohio. I personally know John Adams. John Adams is a very 
well respected judge from Summit County. He is a very decent human 
being. He is someone who is well respected in the community. He will 
bring great common sense to the Federal district court bench. I urge my 
colleagues to approve his nomination when we vote on it later today.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from New 
York is recognized.
  Mr. SCHUMER. I thank the Chair.
  Mr. President, I very much thank my colleagues from Utah and Iowa for 
going through the order we did. I have spoken about this issue before 
for what, at least for me, is an uncharacteristically long amount of 
time. I did not finish what I had to say then. There is more to say. I 
wish to take up where I left off.
  We are beginning to hear that anyone who opposes Mr. Estrada is anti-
Hispanic. I have to tell you, Mr. President, I am disappointed in that 
rhetoric. I think it is low, I think it is not appropriate, and I think 
it is a way of hiding the real feelings here.
  I cannot confine my remarks to such expressions because they do not 
begin to convey how deeply offensive those statements are. We deserve 
an apology, the American people deserve an apology, and, frankly, Mr. 
Estrada today deserves an apology.
  This is not a debate about Mr. Estrada's ethnic background, plain and 
simple, and everyone in this Chamber knows it. It is a cheap argument 
to invoke.
  Let me tell you, Mr. President, what this debate is really about. 
This debate is about whether the Senate should automatically defer to 
the President or whether the Senate should fully exercise its 
constitutional powers and closely examine Mr. Estrada before we hand 
him a lifetime appointment to the Nation's second most important court. 
This debate is about whether we should blithely rubberstamp nominees or 
whether we should insist that when we have questions, they are answered 
to our satisfaction.
  We have been subject to accusations and allegations that would be 
funny if they were not so demeaning to those who state them and to 
those they are purporting to defend. Let me quote verbatim some of the 
remarks the other side has made in the course of debating this 
nomination.
  We have heard it often said of late, but I believe Senator Lott was 
the first to say this last year:

       They don't want Miguel Estrada because he's Hispanic.

  It is so ludicrous that it is hard to imagine we have to respond to 
it, but to make sure the record is set straight, I will.
  Under Chairman Leahy's leadership in the last Congress, we considered 
every other Latino nominee who could be considered, all six of them: 
Christina Arguello from New Mexico, Judge Philip Martinez from Texas, 
Randy Crane from Texas, Judge Jose Martinez from Florida, Judge Alia 
Ludlum from Texas, and Jose Linares from New Jersey. Every one of them 
was picked by the President, every one of them was confirmed quickly, 
and every one of them is Hispanic. We moved them on the bench because 
no red flags were raised suggesting they were extremists and because 
they did nothing to undermine the Senate's role in the confirmation 
process.
  A seventh Latino nominee, Judge Otero from California, was 
unanimously supported by the Judiciary Democrats just last week, myself 
included, and I have every reason to believe the entire Democratic 
caucus will support his nomination when the majority leader brings it 
to the floor as scheduled later this evening. So this has nothing to do 
with Mr. Estrada's race, his ethnicity, or his heritage.
  The only ones around here who are claiming that this debate is about 
race, ethnicity, and heritage are my colleagues from across the aisle, 
and their position puts them in the ludicrous position of saying the 
Congressional Hispanic Caucus or the Puerto Rican Legal Defense Fund is 
anti-Hispanic because they oppose Mr. Estrada. As I said, it is 
ludicrous. It is demeaning. Let's debate this on the merits but not on 
anything else.
  As I mentioned, Senate Democrats unanimously supported seven Latino 
nominees already, all candidates offered by the President; all, I 
presume, sharing a conservative legal philosophy. I do not know if they 
are Democrats or Republicans, but I doubt all seven were Democrats. So 
then a lot of people on this side of the aisle supported Republican 
Hispanics, conservative Hispanics. It seems only when one disagrees 
with my good friend from Utah and those on the other side of the aisle 
do, the names get hurled and there is no consistency, there is no 
measure of appropriateness. It is similar to using a sledgehammer, a 
bludgeon, to get the nominee through.
  None of the seven who have been nominated by President Bush--I do not 
know if my colleagues know how many are Republican. I do not, but again 
probably most of them--have raised red flags that they will be 
activists on the bench. None raised serious concerns that they will try 
to make law instead of interpreting law.
  So when a Republican Senator says if someone is a minority and a 
conservative, we are against them, that is not only ludicrous, it is 
wrong; it is dead wrong and it is disproven by the facts of what has 
happened in the Judiciary Committee and on the floor of this Senate 
repeatedly last year and even tonight. Those kinds of allegations do 
not do anything to heighten the quality of dialog and debate. I am 
saddened by it. It is not a high moment for the Senate, and it is not 
the way to win a nomination. I wish, probably hope against hope, that 
we would try to raise the level of this debate, because those kinds of 
comments debase us, they debase this process, and everyone knows they 
are false. They are a red herring.
  Mr. HATCH. Will the Senator yield?
  Mr. SCHUMER. No wonder people are fed up with Washington. No wonder 
they do not want to pay attention to the work we are trying to do. 
Comments like that turn people off. It is a real disservice to the 
process, to the Senate, and to the country, and it ought to stop.
  I will defer for a brief moment to my colleague from Utah.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. The Senator has been making the point that no one on his 
side is making this a racial problem or a Hispanic problem. Is the 
Senator aware of an important letter I received this morning from 
Jennifer Braceras, who is a commissioner on the U.S. Commission on 
Civil Rights? Let me bring it to the Senator's attention, because I 
know he is a fair Senator. He is

[[Page 2677]]

tough but fair, and he is my friend. I found him to be honest.
  We know there are those in the Congressional Hispanic Caucus of the 
House who have made comments that certainly have caused a lot of 
consternation in the Hispanic community. This is a letter I received 
just this morning from Jennifer Braceras, who is a commissioner on the 
U.S. Commission on Civil Rights, and I will tell the Senator what Ms. 
Braceras had to say about what she believes some Senate Democrats are 
doing to Miguel Estrada's nomination.
  Mr. SCHUMER. I am going to reclaim my time.
  Mr. HATCH. Could I ask the Senator if he is aware of this? I hope the 
Senator will give me some time to read this letter. It is from a 
leading member of the U.S. Commission on Civil Rights. The Senator has 
made these comments. I know he is fair, and I think this is something 
that is right on point.
  Mr. SCHUMER. I am going to reclaim my time from my colleague, if I 
might.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. I am not familiar with those comments. I will certainly 
read them, but I do not think one person on a commission--I do not know 
who she is. I do not know if she is a Republican appointee or a 
Democratic appointee or anything to that effect.
  Mr. HATCH. She is Hispanic.
  Mr. SCHUMER. But it does not gainsay the argument that we have 
repeatedly approved Hispanic nominees in this body, Hispanic nominees 
nominated by President Bush, Hispanic nominees who are Republican, and 
Hispanic nominees who are conservative.
  I say this to my good friend from Utah: Of the 10 Hispanic appellate 
judges currently seated in the Federal courts, eight were appointed by 
President Clinton. Three other Hispanic nominees of President Clinton 
to the appellate courts were blocked by the other side a few years ago. 
I did not hear charges from Senators--I do not know what the outside 
world says, but I do not recall a single charge by a Senator saying 
that blocking those was anti-Hispanic. If somebody made those charges, 
they would be wrong.
  Mr. HATCH. Will the Senator yield for a point of clarification?
  Mr. SCHUMER. Just as my colleague from Utah considers us friends, so 
do I. I have tremendous respect for him and I say the same as he said 
about me. He is tough, but he is fair. Please.
  Mr. HATCH. I am grateful for that and I very much rely on that 
friendship on the committee.
  The Senator is aware, is he not, that members of the House, 
specifically Representative Menendez of the Congressional Hispanic 
Caucus, has said on several occasions that Mr. Estrada is not Hispanic 
enough and there have been other comments made that are very similar?
  I ask unanimous consent that this letter be printed in the Record at 
this point so that my dear friend can read it, because Ms. Braceras is 
not only a member of the U.S. Commission on Civil Rights but her father 
is a judge on the Second Circuit Court of Appeals.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                              U.S. Commission on Civil Rights,

                                 Washington, DC, February 8, 2003.
     Re nomination of Miguel Estrada.

     Hon. Orrin G. Hatch,
     Chairman, Committee on the Judiciary, U.S. Senate, Hart 
         Senate Office Building, Washington, DC
       Dear Senator Hatch: As an Hispanic American and a member of 
     the United States Commission on Civil Rights, I write to 
     express my outrage over the efforts of the Senate Democratic 
     leadership to oppose by dishonorable means the nomination of 
     Miguel Estrada to the United States Court of Appeals for the 
     District of Columbia Circuit.
       Many fellow Latinos and I are disturbed that the Democratic 
     leadership has chosen this moment to apply a new test for 
     judicial nominees--to attack a nominee on the ground that 
     there is no evidence that would otherwise disqualify him--and 
     to choose a Latino candidate as their first target of this 
     disingenuous test.
       In the absence of a principled or coherent basis for 
     opposition to this nomination, the Democratic leadership has 
     shamelessly attempted to play the race card against our 
     people--speaking in code words and questioning the ethnic 
     authenticity of one who emigrated from Honduras at age 17, 
     and who, indeed, still speaks with the Spanish accent of his 
     homeland. This effort to paint Mr. Estrada as Hispanic ``in 
     name only'' is an insult to the intelligence of all 
     Americans, but most especially to the dignity of Latinos 
     throughout the country. It has exposed a deep hypocrisy, 
     rooted in racism, on the question of diversity.
       Contrary to the assumptions of the Democratic leadership, 
     the Latino community is truly diverse--we come in all colors, 
     religions, and, yes, political inclinations. Yet the 
     Democratic leadership has decided that the only ``genuine'' 
     Latinos are those they can control. Anyone else is simply 
     unacceptable, a renegade to be extirpated as not truly 
     ``Hispanic.''
       The Democratic leadership seeks political cover for its 
     despicable actions from the left-wing special interest groups 
     that have assumed the mantle of ``spokesmen'' for our 
     community. But Hispanics are in no sense represented by non-
     membership organizations such as the Mexican-American Legal 
     Defense and Education Fund (MALDEF)--the true constituencies 
     of these purveyors of victimization are the foundations and 
     donors who bankroll them.
       The effort to stigmatize as unfit for public office an 
     eminently well-qualified Latino simply because he has failed 
     to pledge all allegiance to the liberal orthodoxy is an 
     affront to the diverse Latino community of this nation. It 
     promises to do lasting damage to the American polity and 
     ultimately undermine the Democratic party's efforts to 
     maintain a base in the Hispanic community.
       Make an mistake about it, Hispanic Americans seek nothing 
     less than full integration into the American system, with 
     prominence in both major political parties. Miguel Estrada 
     embodies these aspirations, and his nomination to one of the 
     most prestigious courts in the land is a source of pride for 
     Latinos across the country. That is why non-partisan Hispanic 
     organizations like the Hispanic National Bar Association, the 
     Hispanic Chamber of Commerce, and the League of United Latin 
     American Citizens (the nation's oldest and largest Latino 
     membership organization) support the nomination. And that is 
     why I write to lend my unequivocal support to Mr. Estrada's 
     nomination to the District of Columbia Circuit.
           Sincerely,
                                             Jennifer C. Braceras,
                                                     Commissioner.

  Mr. HATCH. I might add Ms. Braceras' father is a Clinton appointee to 
the Second Circuit Court of Appeals, and she is outraged at what is 
happening to Miguel Estrada.
  I thank my colleague for giving me those few minutes.
  Mr. SCHUMER. I am happy to read the letter. What I was saying was 
that of 10 Hispanic appellate judges currently seated in the Federal 
courts, eight were appointed by President Clinton. Three other Hispanic 
nominees of President Clinton to the appellate courts were blocked by 
my friends from the party on the other side, in addition to others for 
the district courts.
  In fact, in contrast to President Bush's selection of only one 
Hispanic circuit court nominee in more than 2 years, with the second 
being nominated only last week, three of President Clinton's first 14 
judicial nominees were Hispanic. He nominated more than 30 Hispanics to 
the Federal courts.
  I am not saying Clinton's superior record on appointing Hispanic 
judges makes anyone on the other side or President Bush anti-Hispanic. 
That claim would be ludicrous, the same as to say those of us who are 
opposing the nomination of Miguel Estrada are anti-Hispanic. I just 
want to go over what happened to some Hispanic nominees when the 
Republicans ran the Senate during President Clinton's tenure. The 
consideration of Judge Richard Paez was delayed for over 1,500 days. 
Thirty-nine Republicans voted against it, because of his liberalism and 
their allegations that he was a judicial activist. These allegations 
were centered around two sentences contained in a lecture he gave to an 
audience of law students. They ran Judge Paez up and down the ladder. 
They demanded he answer more questions and produce more documents.
  Did my colleagues put Judge Paez through the ringer because they were 
anti-Hispanic? I ask that to my colleague from Utah. Did his friends, 
not him--I know he tried to get the nominee through. After 1,500 days, 
he succeeded. That is close to 4 years. I think it is a little more 
than 4 years, but some of his colleagues and my friends

[[Page 2678]]

on that side of the aisle vehemently opposed Judge Paez. Some of the 
arguments they made were the Ninth Circuit is out of balance, has a 
very liberal representation, and it does not need another liberal 
judge. Those arguments can be weighed for whatever they are worth, and 
different people will think they are worth different things, but it 
clearly does not make our friends from the other side who held up that 
nomination anti-Hispanic.
  Mr. HATCH. Will the Senator yield on that point?
  Mr. SCHUMER. I am going to----
  Mr. HATCH. I thought the Senator asked me a question.
  Mr. SCHUMER. I yield to my colleague for the last time.
  Mr. HATCH. I was disappointed with the Paez nomination.
  It took too long. But there were legitimate questions that were 
raised that had nothing to do with race. There were various questions 
about cases, but it took too long. I worked very hard to get him a 
final vote and, as the Senator knows, I voted for him. I have to say I 
took a certain amount of criticism from some who felt very deeply, not 
against Judge Paez as a Hispanic person but because they thought he was 
a judicial activist, and there were a number of cases that certainly 
were very questionable cases and even I had problems with that.
  I also found Judge Paez, who--after a lengthy period of time I asked 
him if he would come and see me and I was very impressed with Judge 
Paez as a human being. It did not hurt him a bit that his family lived 
in Utah, and they are very good people. That certainly was very 
persuasive to me, too. And he is a very good person. But there were 
legitimate legal questions that had been raised that had to be kind of 
sifted through in order for me to get to a point where we could have 
that vote.
  I agree with my colleague; it took too long. I agree there have been 
faults on both sides throughout this process, as long as I have been on 
the Judiciary Committee, and there have always been people who have not 
made it who have been left over at the end, but I have to tell my 
colleague during my tenure we put through 377 Clinton judges, the 
second highest total, only five less than Reagan.
  Mr. SCHUMER. I am going to reclaim my time because we do not want to 
go through a rehash of who put through more judges. I do not think that 
is helpful.
  Mr. HATCH. I agree.
  Mr. SCHUMER. I say this to my friend from Utah. He said his 
colleagues on the other side thought Paez might be a judicial activist. 
They disagreed with some of the ways Judge Paez thought. Fair enough. I 
did not agree with them. Nobody called them anti-Hispanic. We have had 
charges on this floor that to oppose Mr. Estrada makes one Senator or 
another anti-Hispanic. That is my point. That is demeaning to this 
process, and it ought to stop. The Senators who are opposing Mr. 
Estrada are no more anti-Hispanic than those who opposed Mr. Paez.
  By the way, there were 39 Republicans who voted against him. Are 
those 39 Republicans anti-Hispanic? We would laugh at that. If someone 
on this side of the aisle tried to raise that charge, there would be a 
fury over there. Correctly so.
  If someone had never voted for a Hispanic nominee, if President 
Clinton had not nominated Hispanic nominees, then maybe there would be 
someone bringing up this argument. But the record is to the contrary. 
In terms of the criteria of Hispanic nominees to the bench, this side 
of the aisle has a far better record than the other side.
  I think those comments are demeaning. Those comments are wrong. Some 
on the outside may make them. We cannot help that. This is a free 
country. God bless America. They should not be made on the floor of the 
Senate. I implore my colleagues to cease. They know it is wrong. It is 
not even an effective debating technique.
  Let me go over a few other Latino nominees. There were two Latino 
circuit nominees, Rosemary Barkett and Sonia Sotomayor, who were also 
delayed. Judge Sotomayor, who was appointed to the district court by 
President George H.W. Bush, was targeted by some on the other side for 
delay or defeat on the grounds of ideology or philosophy. Were they 
anti-Hispanic when they opposed her? I doubt it. While she was 
eventually confirmed, 29 Republicans voted against her. Were they anti-
Hispanic? I doubt it. Yet we hear from some who voted against Judge 
Sotomayor and against Judge Paez, from some of those who have held 
those nominees up, the charge here. It was wrong then. It is wrong now. 
It ought to stop.
  Judge Barkett was targeted for delay and defeat on the claims about 
her judicial philosophy. Thirty-six Republicans voted against her 
confirmation. My good friend from Utah--again, a true good friend; that 
is not just rhetoric, a fine man--said this of Judge Barkett: I led the 
fight to oppose her confirmation because her judicial records indicated 
she would be an activist who would legislate from the bench.
  I don't doubt for a minute my friend's sincerity. I don't doubt for a 
minute that Chairman Hatch opposed Judge Barkett because he disagreed 
with her ideology and thought she would be an activist on the bench. I 
don't doubt for a minute he does not have an anti-Hispanic bone or atom 
in his body.
  However, I say to my colleague, the same is true, the mirror image is 
going on here. Some on this side disagree with Mr. Estrada's 
philosophy. There are some who believe he will be a judicial activist, 
although none of us know for sure because the record is so thin. So 
there is an additional argument about the record.
  Just as we did not doubt the sincerity of our friends from across the 
aisle when they opposed Hispanic nominees who they thought would be 
activist judges--not my words; out of the mainstream, who would 
legislate from the bench--I hope they will not doubt ours.
  When scores and scores of our colleagues delayed Judge Barkett and 
Judge Sotomayor, when scores of Republicans voted against them, was it 
about race? Was it about ethnicity? Was it about heritage? Of course 
not. They had concerns about what kind of jurists Judge Barkett and 
Judge Sotomayor would be. It was not because they are Hispanic.
  By the way, that is, in my judgment, just what the Founding Fathers 
wanted. They wanted to debate the philosophy and views of potential 
nominees as well as their legal ability, their probity, and where they 
came from in terms of judicial philosophy. That is what they wanted.
  But it seems there is a double standard in this Senate now. It is OK 
to say Hispanics on the left are not qualified because of ideology, but 
it is not OK to say Hispanics on the right are not qualified because of 
ideology. That is patently unfair. That is wrong. Again, it demeans 
this great Senate. It is a sad day for the Senate when that happens. It 
ought to stop.
  Enrique Moreno, Christine Arguello, and Jorge Rangel were all 
nominated to the circuit courts by President Clinton and were never 
afforded a hearing or vote in the Judiciary Committee when Republicans 
controlled. In addition, Hispanic district court nominees such as 
Ricardo Morado and Hilda Tagle of Texas were also blocked. Mr. Moreno 
and Mr. Rangel were blocked by blue slips. Senator Hatch, my friend and 
colleague, exercised his legitimate power as chairman of the Judiciary 
Committee to honor the blue slips from a Texas Senator or Texas 
Senators. Of course, now that we have someone else appointing the 
judges, Senator Hatch is changing the blue slip policies. But that is 
not the point. The point is, when a Texas Senator is blocked, Mr. 
Moreno and Mr. Rangel and the Republican leadership allowed these well-
qualified, widely respected, moderate Hispanic nominations, approved by 
the bar association, just as Mr. Estrada was, to die on the vine.
  I don't recall any claims coming from Senators on this side of the 
aisle that they they were anti-Hispanic. Again, to bring charges from 
outside this body, whether it be someone on the civil rights commission 
or someone in one of what my friend from Utah

[[Page 2679]]

calls the ``left-wing Hispanic groups''--all the groups he disagrees 
with are left-wing Hispanics and all the groups he agrees with are fine 
Hispanic groups. But the point being we should not bring these issues 
up among ourselves because it demeans this body.
  When these nominees were blocked, I assume my colleagues had their 
reasons. Maybe they were negotiating something. Maybe they had concerns 
about how the fine men would perform on the bench. But I assume those 
concerns had nothing to do with their being Hispanics. So why is it 
when they use procedural powers to block a nominee it is OK, but when 
we want a nominee to answer questions, disclose written materials and 
show he is not out of the mainstream, that he is not extreme, we get 
called vituperative names?
  It sounds like a bad joke. I feel as if I traveled through the 
looking glass. We have a candidate whose picture is permanently on the 
floor but whose answers are permanently absent, who will not tell us 
what he really thinks. This is not the way the world really works. The 
Senate, if we do not watch it, could turn into a nonsensical California 
Wonderland.
  Last week my good friend from Utah, who is doing a fine job defending 
something he believes in deeply here this afternoon and throughout this 
week and last weekend, said: I have never seen any Hispanic nominee 
whose nomination has so resonated with the Latino community except for 
the partisans, the partisan Democrats.
  That is just not the case. The fact is the opposite. No Hispanic 
nominee has ever engendered such opposition. Many mainstream Latino 
leaders and organizations have come to the conclusion that Mr. Estrada 
should not be confirmed. The nomination is not resonating with them. 
The nomination is not resonating with the millions of Hispanic 
Americans represented by the Puerto Rican Legal Defense and Education 
Fund, the Mexican American Legal Defense Fund, La Raza, and most of all 
the Congressional Hispanic Caucus.
  I have heard that there are some groups of Hispanic lawyers who 
support Mr. Estrada or Hispanic businesspeople. Good for them. They are 
participating in the American process. But in my State, Congressman 
Serrano and Congressman Velazquez represent not only Hispanic lawyers 
and Hispanic businesspeople, but the whole Hispanic community. They are 
the two highest elected Latino officials we have. They would seem to me 
to speak better than any group, left, right, or center, for or against 
Mr. Estrada--at least talking about Hispanics in New York. They are 
against him.
  So this battle of the organizations is a little silly. But it seems 
to me that by the very precepts of our democracy, those who have been 
elected to office are the ones who are probably the most 
representative, unless there is something so flawed in our democracy 
that it doesn't work. They seem to be overwhelmingly--not exclusively, 
but overwhelmingly against Mr. Estrada.
  I have sat and talked to the members of the Hispanic Caucus. It is 
not simply a political issue to them. They feel it passionately. They 
believe deeply that the views that best represent those of the Hispanic 
people are not the views of Mr. Estrada.
  These are the very organizations, by the way, some of the 
organizations I mentioned and some of the individuals I mentioned, who 
have worked vigilantly for years to put more Hispanics on the bench. 
Not so many of the others, who are claiming someone is not truly 
representing the Hispanic community. But these are the people who have 
done it. Do we think they have taken this position blithely, when they 
take such pride and have spent so much of their time trying to elevate 
Hispanics in the courts? Of course not. They have serious concerns, 
concerns about what kind of judge Mr. Estrada would be, legitimate 
concerns about what Mr. Estrada will do if given a lifetime appointment 
to the Nation's second highest court.
  My friends across the aisle have accused my good friend and 
colleague--I know he is a friend and colleague of my friend from Utah--
Senator Leahy, of ``playing star marionette to these Hispanic groups.''
  That is an insult both to our colleague from Vermont and to these 
fine organizations. It is absurd, and it ought to stop. They may have a 
philosophy closer to that of the Senator from Vermont--or to mine, for 
that matter--but they clearly make up their own minds. It is one of the 
meanest things I have heard in 30 years in government. Again, it is 
demeaning. It is demeaning to this body; it is demeaning to the groups; 
it is demeaning to Senator Leahy. It ought to stop.
  I have not heard a single word on this floor denigrating the groups 
who have supported Mr. Estrada. I don't know who the Hispanic Chamber 
of Commerce is, but I am sure they are fine people. I don't know who 
the Hispanic Lawyers Association is, but I am sure they are fine 
people. I am not going to denounce them. I am not going to characterize 
them. So why is it OK to characterize other Hispanic groups, with whom 
some on the other side disagree, in such derogatory ways? I just assume 
that the groups on one side, cited by one Senator, and the groups cited 
by another looked at the same nominee and came to a different 
conclusion; that is all.
  Another thing our colleagues across the aisle said was that we are 
taking blindfolded swings at Mr. Estrada. Maybe there is a little Freud 
in there. To the extent that we are blindfolded, it is only because Mr. 
Estrada will not answer questions, won't give us the memos he wrote, 
and we are being kept in the dark about what he believes.
  I suggest we get this debate out of the low levels where it has been, 
at least at certain points in time, and back on the merits. Let's stop 
this foolishness. Let's start talking about whether the Senate should 
confirm a man about whom so many red flags have been raised, a man who 
I believe is thwarting the Senate's role in the constitutional process 
by refusing to answer questions, a man who is asking us to hand to him 
a lifetime appointment to this Nation's second most vital court without 
giving us even the slightest inkling as to what kind of judge he would 
be in terms of how he would rule, in terms of his philosophy.
  In the interest of moving the debate along, let me move to the 
attacks that some have made on our insisting that Mr. Estrada answer 
the questions we have asked him. Another place where we venture into 
Alice in Wonderland is this idea, How dare we ask Mr. Estrada to answer 
questions?
  Go back and look. The very ones of our colleagues who are condemning 
questions being asked of Mr. Estrada asked the most questions of 
previous nominees. God bless them for it. That is their right. It 
helped the debate. It helped the process.
  Our friends have suggested that the questions put to Mr. Estrada, the 
questions he refused to answer, were unreasonable. I say to my friends 
on the other side that they ought to look more closely at the questions 
we asked, and then look in the mirror--or perhaps more correctly, look 
in the record--because virtually every question we asked Mr. Estrada 
was asked by Republican Senators of President Clinton's judicial 
nominees. The only difference is that when the Republicans asked 
questions, President Clinton's nominees gave answers.
  It is also worth noting that we put the same questions to other 
nominees of President Bush. The only difference here, too, is that they 
answered. But don't take my word for it; let's go to the record.
  Senator Durbin asked Mr. Estrada:

       In terms of judicial philosophy, please name several 
     judges, living or dead, whom you admire and would like to 
     emulate on the bench.

  Mr. Estrada declined, claiming there is no judge whatsoever, not one 
single judge in the entire history of jurisprudence, whom he would 
``seek to emulate on the bench, whether in terms of judicial philosophy 
or otherwise.'' He named a couple of judges he was friendly with, a 
couple of judges he had personal respect for, but not one judge living 
or dead whom he would emulate in terms of judicial philosophy or 
otherwise. That is a pretty extraordinary

[[Page 2680]]

answer from a man who wants a lifetime appointment on the Nation's 
second highest court. He is basically saying: ``Trust me, I am very 
smart''--which he is--``so I'll be a good judge.''
  Forgive us if we want a little more proof. If a party in court before 
Mr. Estrada tried to make a case with such a paucity of evidence, I 
can't imagine that Mr. Estrada, then a judge, would rule in his favor.
  Maybe this is an unfair question. Maybe, as my friends from the other 
side are suggesting, this question should not have to be answered by 
someone seeking such a powerful position. Maybe it is wrong for us to 
propound such questions to judicial nominees.
  Perhaps we should call up the Department of Justice and ask the 
Attorney General what he thinks about Senator Durbin's question, 
because when Attorney General Ashcroft was a Senator, he agreed that 
Senator Durbin's question was a fair one. How do I know? Because 
Senator Ashcroft asked the very same question himself. And guess what. 
When Senator Ashcroft asked it, the question was answered. Let me quote 
Senator Ashcroft:

       Which judge has served as a model for the way you would 
     want to conduct yourself as a judge, and why?

  In response, William Traxler, a nominee of President Clinton, 
responded by naming a specific judge, John Gentry, a State court judge 
before whom Mr. Traxler appeared when he was a litigator, as exactly 
the kind of judge Mr. Traxler would want to emulate.
  I am sure my friends on the other side will say, Well, you know, 
Senator Ashcroft didn't specifically ask about judicial philosophy. But 
remember, Mr. Estrada's answer to Senator Durbin's question went way 
beyond judicial philosophy. Mr. Estrada said he could not name one 
single solitary judge he would want to emulate, in terms of judicial 
philosophy ``or otherwise.''
  Regardless, we don't have to get into that argument. Let us look at 
what happened when the same question was put to another of President 
Clinton's nominees, Inge Prytz Johnson. Guess what. She answered.
  Senator Ashcroft's question was: ``Which Supreme Court Justice, past 
or present, do you most admire and why?
  Judge Johnson named Justice Potter Stewart and explained why she 
admired him.
  Senator Ashcroft's followup question was: ``What Judge or Justice has 
most influenced your thinking concerning the constitutional separation 
of powers?''
  Now we are getting right into judicial philosophy.
  Now this is, for all intents and purposes, a question addressing the 
nominee's judicial philosophy on separation of powers issues.
  I want to read Judge Johnson's answer in its entirety because it is 
really a model answer. It is the kind of answer we should not only 
expect from nominees, it is the kind of answer we should demand from 
them.
  Judge Johnson said:

       Judge Learned hand was one of the preeminent advocates of 
     judicial restraint and of respect for the doctrine of 
     separation of powers. He said: ``Some of us have chosen 
     America as the land of our adoption; the rest of us have come 
     from those who did the same. For this reason we have some 
     right to consider ourselves a picked group, a group of those 
     who had the courage to break from the past and brave the 
     dangers and the loneliness of a strange land. What was the 
     object that nerved us, or those who went before us, to this 
     choice? We sought liberty. . . .''
       Judge Learned Hand demonstrated through his opinions that 
     this liberty can most fiercely be protected through respect 
     for our constitutional doctrine of separation of powers.

  That is a pretty straightforward answer. It shows us a little bit 
about what kind of judge this nominee aspired to be. It helped the 
Senate decide that she merited confirmation. There was nothing wrong 
with Senator Ashcroft asking the question and there was nothing wrong 
with Judge Johnson answering it.
  Shall we go on?
  I asked Mr. Estrada to name a Supreme Court case he disagreed with. I 
first asked him to name a case from the last 40 years of Supreme Court 
history. Then I expanded the question to cover all of Supreme Court 
jurisprudence. He refused to answer, claiming he could not name a 
single such case.
  My friends on the other side suggest there is something unfair about 
this question. Let me tell you, as I go through the records of 
questions they put to President Clinton's nominees, this question pales 
in comparison.
  Time and again, Republican Senators asked Clinton nominees to take 
positions on issues that would come before them if confirmed as Federal 
judges. If you want us to detail those instances for you, we are happy 
to do so. Just let us know and we will put together some charts 
demonstrating the double standard of these attacks on us. I think we 
all know what that research would show. I think we all know how unfair 
and inconsistent the other side is being. I don't want to go back a 
couple of years to the questions they asked, but we can do it if we 
have to.
  By the standards our colleagues set and by any objective measure, our 
questions were well within bounds. And, frankly, these weren't even 
hardball questions. There was no surprise in these questions--they had 
all been asked before in one form or another. Mr. Estrada simply just 
did not want to answer.
  My colleagues have cited Canon 5 of the Code of Judicial Conduct of 
the American Bar Association as the defense for Mr. Estrada's refusing 
to answer questions.
  As Chairman Hatch has said, Canon 5 that expressly forbids nominees 
to judicial duty from making ``pledges or promises of conduct in office 
[or] statements that commit or appear to commit the nominee with 
respect to cases, controversies, or issues that are likely to come 
before the courts.''
  Let us be clear. My questions were about already decided Supreme 
Court cases, cases that by definition will never come before Mr. 
Estrada; cases that he can never reconsider; and cases that would not 
even arguably justify invoking Canon 5 as a basis for refusing to 
answer.
  Why are these questions important? Because the answers will give us 
insight into how Mr. Estrada approaches the law. They will help tell us 
what kind of judge he will be. Is he likely to be a Marshall or a 
Scalia? A Brennan or a Rehnquist? Probably not. There is quite a bit of 
difference among those judges. These are legitimate questions that 
don't even begin to lead to a violation of Canon 5.
  But don't take my word for it. Take John Ashcroft's.
  I don't mean to limit my laudatory comments to Senator Ashcroft, but 
he asked such good questions when he was here that I can't help citing 
him favorably. Mr. Attorney General, if you are watching this debate, I 
hope that by complimenting your fine work on this issue I'm not hurting 
your reputation with certain communities.
  Then-Senator Ashcroft asked this question of Marcia Berzon, a Ninth 
Circuit nominee:

       Please define judicial activism. Is Lochner v. New York an 
     example of judicial activism? Please identify three Supreme 
     Court opinions that you believe are examples of judicial 
     activism (not including Lochner if your answer to the 
     previous question was yes). Is Roe v. Wade an example of 
     judicial activism?

  Judge Berzon answered. She waited a few years for the Senate to 
confirm her, but she answered. She said Lochner was an example of 
judicial activism. She said Roe was not. And she named three other 
Supreme Court cases that she believed were judicial activism.
  So there is just no question that our questions were reasonable.
  So there was no question that, at least by John Ashcroft's standard, 
our questions were reasonable.
  Once again, why isn't it that what is good for the goose has to be 
good for the gander? Why does it seem there is a double standard; that 
it is OK when there were Democratic nominees to ask them question after 
question after question about their philosophy, but when Mr. Estrada 
comes before us we don't need to know anything more? All he has to do 
is say, I will follow the law.
  Suggesting that there's something wrong with our asking the exact 
same questions our friends asked is nothing short of absurd.
  Let me note as well, that the very same question I asked of Mr. 
Estrada, I

[[Page 2681]]

asked of the five District Court nominees whose hearings were held the 
same day as Mr. Estrada's. They all answered. I asked the same question 
of Jeffrey Sutton, a circuit court nominee whose hearing we held a 
couple of weeks ago. He answered too.
  Judge Linda Reade, a judge who I voted for in committee and on the 
Floor--one of the 96 Bush judicial nominees I have supported so far--
and whom we unanimously confirmed to a District Court judgeship in 
Iowa, gave some particularly interesting answers.
  Judge Reade was crucial of two Supreme Court cases that expanded 
police powers and diminished privacy rights under the fourth amendment. 
She answered interesting questions. It was a great moment for the 
committee.
  One of the cases, United States v. Rabinowitz, held that police had 
the power to search someone's office when he was arrested with an 
arrest warrant but without a search warrant.
  The other case was Harris v. United States where the court held, 
again, that a search of an arrestee's entire four-bedroom apartment was 
constitutional despite the fact that the police did not have a search 
warrant.
  Her concerns about these cases reflect a heightened sensitivity to 
privacy rights protected by the fourth amendment. I don't want judges 
who read the fourth amendment so expansively that the police are 
handcuffed and unable to do their jobs. I want judges who will balance 
privacy rights with law enforcement interests.
  I tend to be more conservative on criminal justice issues. I tend to 
side more with law and order than with the liberals out there. So I may 
not agree 100 percent with Judge Reade's answers. But her answers are 
fair and reasonable, and it allowed those of us on the committee to see 
what she was talking about.
  Her answers suggest to me that Judge Reade will be attuned to 
American's privacy rights. I appreciate her candor, I appreciate her 
forthrightness, and I appreciate her straightforwardness. She is not 
hiding a thing. She is telling us what she thinks.
  And there is obviously not a single Senator in this body who thinks 
Judge Reade's answers disqualify her for a Federal judgeship. Not a 
single one of us objected to her nomination or voted against her. The 
same is true of the four other nominees we asked questions the day of 
Mr. Estrada's hearing.
  So this idea that the canons of ethics will be violated by asking 
questions about judicial philosophy is contradicted, is gainsaid, by 
the very fact that all of us voted for somebody who answered questions 
such as that. I do not think we would vote for someone who we thought 
repeatedly violated the canons of ethics.
  So we want answers, we want forthright answers; we do not want the 
ball hidden. And then if judges appear to be somewhere within the 
mainstream--even though we may not agree with them on just about every 
issue--we will confirm them. That is what we did with these four 
nominees. We did it quickly. I voted for every one of them.
  If the questions had been unreasonable, my colleagues on the other 
side, I presume, would not have asked them of Democratic nominees. But, 
as we have seen a little glimpse, the very questions we asked Mr. 
Estrada, Senators on the other side asked Democratic nominees, and 
there was no outcry or objection.
  Just recently, I asked this question of a potential nominee in New 
York whom the President asked me to consider. I have not taken a 
position on her yet. She has not even been nominated. But let me tell 
you how much she impressed me with her answers. She named two cases, 
both of recent vintage.
  The first case came from just last year, striking down the Child 
Pornography Prevention Act. In that case, a 6-to-3 Supreme Court said 
the first amendment protects purveyors of child pornography when they 
are using images of virtual children instead of actual children. I 
think the Court got the answer totally wrong. We are hopefully going to 
remedy that problem caused by the Court with legislation I am 
cosponsoring with Senators Hatch and Leahy, among others. But I was 
pleased to hear that the nominee agreed that the Court got the ruling 
wrong.
  The other case was another decision from last year where the Court 
held that police were allowed to ask bus passengers permission to 
search their bags without explaining that passengers have the right to 
say no.
  Just as I was with Judge Reade's answers, I was conflicted about this 
one. I believe in privacy rights, but I also believe, in this post-9/11 
world, police have to have some legitimate tools at their disposal to 
fight both crime and terrorism. So while I may not agree or disagree at 
this point with the answer, I was pleased to hear that if this nominee 
becomes a judge, this nominee will be sensitive to citizens' privacy 
rights.
  I do not doubt that Judge Reade and the other nominees who have named 
Supreme Court cases with which they disagree will faithfully follow the 
law despite their disagreements. These are mainstream judges who have 
conservative but not extreme ideologies. I respect them. I have voted, 
as have almost all of my colleagues, for 99 percent--or some number 
like that--of them so far. And I will continue to vote for them as long 
as I believe they will not be activists or extremists on the bench.
  We are simply trying to hold Mr. Estrada to the same set of standards 
that other nominees are meeting. We are asking even less of him than 
Republicans asked of President Clinton's nominees. It is obvious these 
are fair, reasonable, and legitimate questions. It is obvious there is 
nothing wrong, constitutionally or by the canons of ethics or anything 
else, with answering them because hundreds of nominees have and they 
have been approved by this body. It is also obvious that Mr. Estrada is 
stonewalling us by refusing to tell us what he thinks.
  So these two areas that I have had a chance to discuss today--whether 
opposition to Mr. Estrada can legitimately be labeled anti-Hispanic in 
any way, and whether it is fair to answer questions--again, are both 
pervaded by a double standard. It seems what folks on the other side of 
the aisle were saying 2 years ago they are not saying today.
  I hope we will be somewhat consistent. I hope we will be somewhat 
fair. The nomination of judges, and then the advice and consent the 
Senate gives them, is a sacred process, one that the Founding Fathers 
debated long and hard. To ridicule the process by saying there are not 
legitimate questions to be asked and answered, to ridicule the process 
by saying that when those questions are not answered someone is 
opposing a nominee because of his background, particularly when so many 
of those opposing this nominee have had great records in terms of 
bringing Hispanics to the bench--far better than President Bush or 
those on the other side of the aisle--is unfair, is unwise, and demeans 
this body. I hope it will end.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. Mr. President, it is my pleasure to rise and speak on 
behalf of Miguel Estrada, a fellow Virginian and President Bush's 
nominee to serve on the U.S. Court of Appeals for the District of 
Columbia.
  I have been listening to the Senator from New York and listening to 
his description of what is fair and reasonable. I do find it 
interesting that the Senator, on several occasions, talked about the 
standards of questions that were propounded in years past by Senator 
Ashcroft.
  If Senator Ashcroft was such a wonderful model for questioning and 
judicial standards, I do find it interesting that that same Senator 
from New York, when given an opportunity to vote for Senator Ashcroft 
to be Attorney General, voted against him. So we do see some 
inconsistencies on citing Senator Ashcroft and then not voting for him.
  Let's focus on this situation and the nomination before this body: 
Miguel Estrada. Miguel Estrada is a highly qualified nominee to be a 
judge. He has impeccable character. People always look at the character 
of an individual

[[Page 2682]]

to determine how that person will act when put in a position of 
responsibility. One way to judge is by their past performance.
  Some will say that Miguel Estrada does not have judicial experience. 
There are others who have been appointed to the courts who do not have 
judicial experience. So then you try to determine their judicial 
philosophy. I am convinced, in my examination of Miguel Estrada, that 
he has the right judicial philosophy. I am confident that when Miguel 
Estrada puts on that robe and is appointed for life, he will understand 
that judges are to interpret the law, not to make the law, which is the 
responsibility of the legislative branch. I am very confident that as a 
judge on the DC Court of Appeals, Miguel Estrada will adhere to this 
principle.
  Others have said that since he has not been a judge, how are we going 
to know about his temperament. There are not many Latino or Hispanic 
Americans who serve on the federal courts. By arguing that he has not 
had judicial experience, and therefore, he cannot serve, implicitly 
would make it very difficult, if nearly impossible, for many Hispanic 
Americans to serve on the federal bench.
  Miguel Estrada has justifiably been called the personification of the 
American dream. He was born in Honduras and immigrated to the United 
States when he was a teenager at the age 17. He learned English as a 
second language and then went on and ultimately graduated with honors--
magna cum laude from Columbia College and magna cum laude from Harvard 
Law School. He was even a member of the editorial board of the Harvard 
Law Review.
  Mr. Estrada went on to serve as a law clerk on the U.S. Court of 
Appeals for the Second Circuit and also served as the Assistant to the 
Solicitor General of the United States. During his legal career, Miguel 
Estrada argued 15 cases in the Supreme Court of the United States, 
winning two-thirds of those cases.
  Miguel Estrada has also performed significant pro bono service, or 
free legal services, including representation of a Virginia death row 
inmate before the U.S. Supreme Court, to which Miguel Estrada dedicated 
approximately 400 hours of time.
  We previously heard from the Senator from New York that he wanted to 
determine whether Miguel Estrada had mainstream judicial values or had 
a mainstream view of the role of the courts in various cases, stare 
decisis, and precedent.
  Miguel Estrada has unanimously earned the highest rating of ``well 
qualified'' from the American Bar Association. The American Bar 
Association's rating is based on ``integrity, professional competence 
and judicial temperament.''
  In addition, Miguel Estrada's nomination is strongly supported by the 
Hispanic National Bar Association; the League of United Latin American 
Citizens, LULAC, which is the nation's oldest and largest Hispanic 
civil rights organization; the United States Hispanic Chamber of 
Commerce; and the Hispanic Business Roundtable.
  Miguel Estrada is also supported by these other mainstream 
organizations: The Latino Coalition; the National Association for Small 
Disadvantaged Businesses; the Mexican American Grocers Association; the 
Hispanic Chambers of Commerce from a variety of towns and cities across 
the country, including the Greater Kansas City area and Las Cruces; the 
Puerto Rican American Foundations; the Federation of Mayors of Puerto 
Rico; the Hispanic Engineers Business Corporation; the Association for 
the Advancement of Mexican Americans; Nueva Esperanza; the Hispanic 
Engineers Business Corporation, the Hispanic Contractors of America, 
the Cuban Liberty Council, the Cuban American Voters National 
Community, and the Cuban American National Foundation.
  This is a broad spectrum of individuals, organizations and 
associations from a variety of backgrounds and enterprises from all 
across the country which are very much a part of the mainstream of 
America which support Miguel Estrada.
  I believe the Senate's prompt action on Mr. Estrada's long-delayed 
nomination is especially important. The DC Court of Appeals is one of 
the most important courts of appeal in the entire country, with cases 
of national implication. It is a primary forum for determining the 
legality of federal regulations and laws that control vast areas of 
American life. Recent retirements have left this court slowed down with 
four vacancies--four vacancies which are hindering the court's ability 
to decide cases expeditiously.
  Delays in administration of justice in the DC Circuit Court of 
Appeals have consequences that can cost millions of dollars and affect 
thousands of lives. Indeed, justice delayed is justice denied.
  The senior Senator from Massachusetts, Mr. Kennedy, said on this 
floor, at approximately 2:37 p.m., that he was concerned about the 
process of the Miguel Estrada nomination. I will express my concerns 
about the process.
  Today there is a crisis in our courts, as too many federal courts 
lack a sufficient number of judges, especially the DC Court of Appeals, 
which has four of their 12 judgeships vacant. That means 33 percent of 
the DC Court of Appeals has vacancies in those seats.
  What Senator Hatch and I want is fair consideration and confirmation 
of the President's well-qualified and diverse judicial nominees. While 
many on the other side may work to hijack the nominations process to 
score partisan political points or obstruct fair consideration, this 
nomination deserves a vote. It has deserved a vote for a long time.
  This nomination has been pending since May 9, 2001. That is over 20 
months ago. A hearing was not even held for Miguel Estrada until 
September of 2002.
  I respectfully urge my colleagues to fill these vacancies--
particularly this vacancy on the DC Circuit Court--and vote to confirm 
Miguel Estrada.
  Look at the record. You will find that Miguel Estrada is superbly 
qualified to serve on the DC Circuit. Indeed, Miguel Estrada is an 
American success story, with exemplary credentials and qualifications. 
Hispanic Americans will rejoice in his success, as indeed all Americans 
will rejoice and applaud his success.
  I join my Latino constituents in saying: Sigamos adelante con Miguel 
Estrada. Let us move forward with Miguel Estrada.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, an independent Federal judiciary is a 
fundamental part of our constitutional democracy. In fact, nominating 
judges to the Federal bench is among the most important and lasting 
decisions that a President can make. Equally important is the Senate's 
role of advice and consent on judicial nominations. Breakdowns in the 
nomination and confirmation process can impact not only the proper 
functioning of the judicial branch but the independence which is so 
critical to maintaining public confidence in the courts.
  It is the President's responsibility to work with Senators of both 
parties to fill vacancies on the Federal courts. It is the duty, the 
constitutional duty of the Senate to carefully deliberate over the 
President's nominees.
  Nobody can challenge the President's authority to nominate judges. It 
is indisputable. That the Senate has the right to advice and consent is 
equally indisputable. The two rights exist in the very same sentence of 
the Constitution.
  That is why the administration's repeated failure to consult with 
Democratic Senators on the nomination of Federal judges is so 
troubling. Refusal by a nominee to provide the Senate with adequate 
information to evaluate their record undermines our ability to carry 
out our constitutionally mandated duties.
  It is this latter point, the lack of information provided by a 
nominee to evaluate their record, which is particularly relevant to the 
nominee currently under consideration, Miguel Estrada. Mr. Estrada is 
nominated for a lifetime appointment on what is arguably the second 
highest court in the land. The DC Circuit has exclusive jurisdiction

[[Page 2683]]

over a broad range of cases, including issues from consumer and 
environmental protection to civil rights and workplace rules. The 
court's jurisdiction is vast.
  The DC Circuit has the obligation to interpret rules for access to 
courts which allow Americans to challenge the Government when any 
agency takes an action which affects their health. It is this circuit 
which is charged with protecting Americans to challenge the Government. 
It is this DC Circuit that has either concurrent jurisdiction or 
exclusive jurisdiction in cases involving the NLRB, OSHA, Federal 
Communications Commission, Americans with Disabilities Act, Federal 
Energy Regulatory Commission, Federal Elections Commission, Endangered 
Species Act, and the Environmental Protection Agency, just to name a 
few.
  The judges on this court are widely viewed as potential nominees to 
the Supreme Court. In fact, three current members of the Supreme 
Court--Justices Scalia, Thomas, and Ginsberg--served on the DC Circuit.
  Despite the importance of the issues that routinely come before the 
court, we have very little information about the current nominee's 
views on fundamental constitutional issues. Mr. Estrada has no judicial 
experience so we have no record of decisions from which to draw an 
impression of his judicial philosophy. Mr. Estrada is not widely 
published. He has apparently not published since he wrote an article on 
banking law in law school. It is not a disqualification if a person has 
no judicial experience or has not published their views on the law. 
However, the lack of a record gives the Senate a particular obligation 
in carrying out our constitutional duty to look at the views of 
somebody on very fundamental constitutional issues.
  We have a higher duty, a greater responsibility to probe where there 
is no decision record and where there are no writings upon which to 
base a judgment. The administration's failure to provide the Senate 
with legal memoranda and Mr. Estrada's failure to ask the 
administration to provide the Senate with those memoranda--
particularly, again, in light of the absence of a judicial record and 
publications--will make it more difficult for Senators to weigh the 
evidence as to what kind of a judge Mr. Estrada would be, nominated as 
he is to what, in effect, is the second highest court in the land.
  There is much evidence from the record before the Judiciary Committee 
as to a failure on the part of Mr. Estrada to give information that is 
highly relevant to the Senate and to the committee. Senator Leahy 
asked:

       Is diversity a factor that an employer or a school could 
     take into consideration?

  Answer:

       Because this is a matter that is being actively litigated 
     in the courts and may come before the court, if I am 
     confirmed, I don't think it would be appropriate generally to 
     answer that question.

  In fact, it is very appropriate generally to answer the question. 
What is inappropriate would be to answer that question relative to a 
specific set of facts that are pending before a court or might come 
before a court if Mr. Estrada is confirmed.
  Senator Kohl asked:

       In light of growing evidence that a substantial number of 
     innocent people have been sentenced to the death penalty, 
     does that provide support in your mind for the two Federal 
     district court judges who have recently struck down the death 
     penalty as unconstitutional?

  Answer:

       I am not familiar with the cases, Senator, but I think it 
     would not be appropriate for me to offer a view on these 
     types of issues which are currently coming in front of the 
     court and may come before me as a judge.

  Not even offer a view on these types of issues--not on the specific 
issues in the cases referred to by Senator Kohl, but these types of 
issues.
  Senator Kohl says:

       To what extent should a judge be required to balance the 
     public's right to know against the litigant's right to 
     privacy when the information sought could be sealed and could 
     keep secret a public health and safety hazard?

  Mr. Estrada:

       Senator, there is a long line of authority in the DC 
     Circuit, as it happens, dealing with public access in cases 
     that are usually brought to gain access to Government records 
     by news organizations, and those cases, as I recall--I 
     haven't looked at them in some time--do recognize a common 
     law right of access to public records, which must be balanced 
     against the interest of the governmental actor that is 
     asserting the need for confidentiality. I am not aware of any 
     case, though there may be some that dealt with this issue in 
     the context that you've outlined, but I would hesitate to say 
     more than that because I don't know how likely it is that 
     that very issue that you have just outlined would come before 
     me in the DC Circuit if I were fortunate enough to be 
     confirmed.

  So now if he believes there are cases that might come before the DC 
Circuit, he says: I am not going to comment even in general on the 
subject matter of those cases. But where he doesn't know whether or not 
issues are coming before the DC Circuit, he says: I am not going to 
comment on that either. Again, he said: I hesitate to say more than 
that because I don't know how likely it is that that very issue that 
you have outlined would come before me in the DC Circuit if I am 
confirmed.
  Either way, he is not going to give us an opinion. Other nominees 
have provided information of the type that Mr. Estrada will not give 
us. We have the circumstance--for instance, there are multiple cases 
where the Justice Department cooperated with past requests of the 
Judiciary Committee. The Senate requested past Justice Departments to 
provide this type of memoranda, such as memoranda relating to appeals 
written by Department attorneys, including the memoranda of William 
Bradford Reynolds, nominated for Associate Attorney General; Benjamin 
Civiletti, nominated for Attorney General. Steven Trott, nominated for 
the Ninth Circuit; and William Rehnquist, when he was nominated for 
Chief Justice, among others.
  The current Bush administration, in fact, provided the Senate with 
legal memoranda, which Jeffrey Holmstead wrote--an attorney with the 
White House counsel's office--when there was an inquiry during the 
consideration of his nomination to be Assistant Administrator to the 
EPA. So these requests are not unprecedented.
  The key is, will Mr. Estrada ask the administration to release the 
documents? That would give this Senate an opportunity to get his ideas 
about basic constitutional issues. He is not obligated to request the 
Justice Department to provide this information. We should be clear on 
that. There is no obligation on the part of Mr. Estrada to request the 
Justice Department to provide the information that I have discussed, 
but his refusal to do so comes at risk to his nomination.
  We are not obligated to vote for someone who is not willing to ask 
the Justice Department to provide information that will give us the 
opportunity to get a better feel for where a nominee is on some basic, 
fundamental constitutional issues.
  Justice Rehnquist said the following in a 1972 case:

       Since most Justices come to this bench no earlier than 
     their middle years, it would be unusual if they had not by 
     that time formulated at least some tentative notions that 
     would influence them in their interpretation of the sweeping 
     clauses of the Constitution and their interaction with one 
     another. It would be not merely unusual, but extraordinary if 
     they had not at least given opinions as to constitutional 
     issues in their previous legal careers.

  I agree with Justice Rehnquist. Apparently, Mr. Estrada does not.

  When asked by Senator Schumer at the Judiciary Committee hearing to 
name three cases of which he was critical in the last 40 years of 
Supreme Court jurisprudence, Mr. Estrada said he was ``not sure that I 
could think of three that I would be--that I would have a sort of 
adverse reaction to. . . .''
  As we have heard from Senator Schumer, other nominees have been more 
than willing to state where they have not been in agreement with 
Supreme Court opinions. Yet this nominee is not willing to give us even 
one Supreme Court opinion in the last 40 years where he would ``have a 
sort of adverse reaction,'' to use his words.
  He was asked by Senator Durbin to name judges, living or dead, whom 
he admired and would emulate on the bench.

[[Page 2684]]

  He answered:

       There is no judge, living or dead, whom I would seek to 
     emulate on the bench, whether in terms of judicial philosophy 
     or otherwise.

  Finally, after one particularly unhelpful exchange, Senator Kohl 
seemed to sum up the feeling of many members of the committee when he 
told Mr. Estrada:

       With all due respect to your answer, I am trying to know 
     more about you, and I am not sure I am.

  That sort of sums it up. With all due respect, we are trying to know 
more about you, and we are not sure we are able to.
  Mr. Estrada's failure to provide members of the Judiciary Committee 
with answers to even the most basic questions on his view of the law is 
deeply troubling. We don't have writings. There are none. That is not 
his fault. It does not disqualify him, but there are none. We don't 
have opinions. That is not his fault. He has never been a judge. There 
are none. But what is his decision? It is not to ask the administration 
for documents which he wrote that would give us some answers as to 
whether or not we are in agreement with his fundamental legal 
philosophy.
  His tactic of refusing to answer questions could become a standard 
method of operation for future nominees, to the detriment of both the 
nominating process and the frustration of the Senate's advice and 
consent duty, if we accept the standard he is setting forth by his 
refusal.
  Mr. Estrada and the administration had the opportunity to make the 
case for confirmation. The administration chose not to provide 
information for Senators to properly evaluate his nomination. Mr. 
Estrada chose to remain silent on key questions despite opportunities 
to clarify his views.
  Mr. President, I understand from a signal from the Parliamentarian 
that we are supposed to stop at this time,
  The PRESIDING OFFICER. Under the previous order, the Senate is 
scheduled to consider en bloc several nominations at 5 o'clock.
  Mr. LEVIN. I will finish with other views of Mr. Estrada at another 
time. I yield the floor.

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