[Congressional Record (Bound Edition), Volume 149 (2003), Part 3]
[Senate]
[Pages 4203-4223]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The PRESIDING OFFICER (Mr. Chambliss). Under the previous order, the 
Senate will now go into executive session and resume consideration of 
Executive Calendar No. 21, which the clerk will report.
  The legislative clerk read the nomination of Miguel A. Estrada, of 
Virginia, to be United States Circuit Judge for the District of 
Columbia.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, as I listened to the distinguished Senator 
from Georgia recite the Farewell Address of George Washington dating 
back to 1796, I could not help but think how the Founding Fathers must 
regard the debate on the confirmation of Miguel Estrada to the U.S. 
Court of Appeals for the D.C. Circuit that we have been having for 3 
weeks. I rise this afternoon, at the beginning of that third week of 
Senate debate, with grave concerns about the judicial confirmation 
process and about how that process is being applied in this particular 
case.
  I am saddened to say I believe the process has degenerated into one 
where double standards are being applied, and games of payback that are 
really beneath the dignity of this institution. I have actually heard 
with my own ears, as the junior Senator from New York has said, that 
Democrat obstructionism in this instance is justified by the manner in 
which confirmation proceedings have occurred in the past, using a 
phrase like ``what is good for the goose is good for the gander.''
  That kind of language, that kind of attitude, that kind of conduct in 
this Chamber is deeply disconcerting to me, and I suspect to all the 
American people. As I have had the opportunity to say previously, many 
of us, myself included, were not in the Senate when these perceived 
slights took place in the past, but I believe what we need is a fresh 
start with regard to judicial nominations and the judicial confirmation 
process, one where Presidential nominees can be given a timely hearing 
and then voted up or down without unnecessary delay and gamesmanship. 
Only then can we discharge our responsibility and get on with the 
business the American people have sent us to do, putting the public 
interests and not special interests first.
  In this instance, I am not just concerned about the unfair delays--in 
fact, Mr. Estrada was nominated by the President on May 9, 2001--I am 
also concerned about unfair standards, double standards. Those who 
oppose Mr. Estrada's confirmation will apparently stop at nothing to 
obstruct it. It must be a terrible dilemma indeed for those who oppose 
this nomination because for them to win, the American dream must lose.
  Of course, the time to vote has come and gone. Yet we have only delay 
and obstruction. It does not affect only this one nomination. On every 
day the Senate has been in session since February 5, Members of this 
body have extensively and exhaustively debated this nomination. 
Precious Senate time, energy, and attention that could have been 
devoted to getting the Nation's business done has simply been delayed: 
Things such as getting the economy moving again, strengthening our 
national security, protecting our homeland, modernizing and 
strengthening Medicare.
  This time has been squandered by endlessly debating an obviously and 
extremely qualified nominee. So many other challenges needing this 
body's attention have been hijacked by this delay and by those who will 
not even allow a vote on Mr. Estrada's nomination, a truly selfish and 
unprecedented act.
  The debates on this issue have run into the late hours of the day and 
even into the wee hours of the night. It is time, indeed it is long 
past time, to bring this debate to a close.
  We have returned after the President's Day recess, and I hope others 
will join with me as I join President Bush in calling for a vote on Mr. 
Estrada's nomination today.
  Unfortunately, the Democratic leadership strategy is clear: Delay the 
nomination indefinitely in the belief

[[Page 4204]]

that Mr. Estrada's countless supporters across this Nation and across 
the political spectrum will eventually grow tired and give up hope. 
These same leaders seek to defeat Mr. Estrada, even though he commands 
the support of a bipartisan majority of the Senate, and they want to 
deny the President his plan to place Mr. Estrada, a role model for 
countless immigrants and an inspiration to all Americans, on to one of 
the most prestigious Federal courts in all the land.
  It is worth recounting who is Miguel Estrada. He is an individual of 
extraordinarily high academic achievement, having graduated magna cum 
laude from both Columbia and Harvard Law School, and having been an 
editor on the Harvard Law Review. He is an individual who has already 
served the public with great distinction, as a law clerk to one of 
President Jimmy Carter's most respected appointees on the Federal 
courts of appeals, as a law clerk to U.S. Supreme Court Justice Anthony 
Kennedy, as an Assistant U.S. Attorney, and as an Assistant to the 
Solicitor General during the first Bush and Clinton administrations. 
This is an individual who has argued 15 appeals to the U.S. Supreme 
Court, the legal equivalent of the Super Bowl, reserved for only the 
Nation's very top lawyers.
  This is an individual who has been endorsed by numerous top Clinton 
administration lawyers and officials, including Vice President Gore's 
former chief of staff and a former chief counsel to the Senate 
Judiciary Committee, Ron Klain, the Clinton Justice Department 
Solicitor General, Seth Waxman, and several other high-ranking Clinton 
administration officials. This is an individual who has been supported 
by numerous Hispanic organizations, including the League of United 
Latin American Citizens, the National Hispanic Bar Association, the 
U.S. Hispanic Chamber of Commerce, and the Latino Coalition, to name 
but a few.
  Miguel Estrada is an individual who was not born in this country but 
who came here at age 17 from his native Honduras barely speaking 
English. This is an individual described by the oldest and largest 
Hispanic organization in the United States as ``truly one of the rising 
stars in the Hispanic community and a role model for our youth.'' This 
is an individual who has been rated unanimously well qualified by the 
American Bar Association, which some of my Democratic colleagues have 
referred to as the ``gold standard'' in judicial confirmation 
proceedings. And yes, this is an individual who embodies the 
realization of the American dream for immigrants throughout our land. 
It is no wonder that today, the beginning of the third week of debate 
on this exceptional individual's nomination to the Federal bench, that 
a bipartisan majority of the Senate stand ready to confirm him right 
now without any further debate or discussion.
  We need to do what the American people have sent us here to do. We 
need to vote. The Democratic leadership has tried to convince Members 
of this body to vote against confirmation. But because those leaders 
have failed to make the case for voting this nominee down, they are now 
left with one alternative, and that is obstructing any vote on this 
nominee.
  There is simply no reasonable case for refusing confirmation of this 
individual to the U.S. Court of Appeals for the D.C. Circuit. Yet it 
seems that the Democratic leadership is obsessed with obstruction. 
Before the November election in 2002, they obstructed President Bush's 
proposal to create a Department of Homeland Security to better ensure 
the protection of the United States and the American people in the 
event of further terrorist attacks. They have obstructed President 
Bush's proposal to stimulate the economy by making the 2001 tax cuts 
permanent, leaving the economy flat and too many Americans out of work. 
They also failed to pass a budget for the Federal Government last year.
  Because of their obstruction, much of our time since January 7, 2003, 
when this Congress convened, has simply been devoted to cleaning up the 
mess left by the failure to get the job done last year under their 
leadership. And today they are obstructing a vote on President Bush's 
appointment of one of the most talented lawyers in our Nation to the 
Federal bench.
  The Democratic leadership seems particularly obsessed and preoccupied 
with obstructing Mr. Estrada's confirmation. I have wondered why that 
is. As I have already explained, he is an exceptionally qualified 
attorney and has an inspiring personal story. The Democratic leadership 
does not rebut any of that record, and they cannot point to any 
evidence that Mr. Estrada will not be a fair and just member of the 
Federal bench who will interpret the law as written, without injecting 
his personal agenda or political views. Nor can they rebut his stellar 
record of government service as a law clerk on the U.S. Supreme Court 
and as a career Justice Department attorney, working under Democrats 
and Republicans alike. Nor can they rebut the fact that the American 
Bar Association has unanimously given him the highest possible rating 
of well qualified.
  So you might ask, why are they picking on Mr. Estrada? When I was 
back home in Texas last week during the Presidents Day recess, I read 
an editorial from the Dallas Morning News that perhaps gives us some 
clue as to why the Democratic leadership is so obsessed with 
obstructing Mr. Estrada's confirmation. They said: ``There is a time 
for talking and a time for voting. The time has passed for the U.S. 
Senate to talk about Mr. Estrada's nomination. It is time to vote. . . 
. But . . . Democrats don't relish giving President Bush one more thing 
to brag about when he goes into Hispanic neighborhoods during his 
reelection campaign next year.''
  I could not put it any better myself. The Democratic leadership wants 
to deny President Bush the opportunity to make history by placing an 
American success story, an exceptionally talented attorney, and the 
pride of the Hispanic community on one of the most prestigious courts 
in this country. Why? I am sorry to say, the answer is for petty 
partisan purposes. The Democratic leadership is frantic to stop Mr. 
Estrada, even though a bipartisan majority of the Senate stands ready 
to confirm him.
  But how do you do that? How do you convince a majority of Senators to 
vote against such an exceptional individual? When you have such an 
obviously qualified person in Mr. Estrada, there is only one thing that 
the Democratic leadership can do to stop him. There is only one tool of 
obstruction left and that is to change the rule and to create an unfair 
double standard.
  Mr. President, the only tool of obstruction left for those who oppose 
this nominee is simply to change the rules. The American people will 
not stand for such unfair and childish behavior in the Senate.
  Faced with a nomination of the President's exceptional nominee, the 
Democratic leadership has no real evidence, no real facts, no real 
justification with which to oppose Mr. Estrada. As the Austin American 
Statesman has editorialized: ``If Democrats have something substantive 
to block Miguel Estrada's confirmation to the U.S. Court of Appeals for 
the District of Columbia, it's past time they share it.''
  I would refer Members to an excellent letter of February 12, 2003, 
signed by White House Counsel Alberto Gonzales, which responds to 
Senator Daschle's and Senator Leahy's renewed request for confidential 
Department of Justice memos written while Mr. Estrada worked in the 
Office of Solicitor General, including for 4 years during the Clinton 
administration.
  Mr. President, I ask unanimous consent that a copy of that letter 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 12, 2003.
       Dear Senator Daschle and Senator Leahy: On behalf of 
     President Bush, I write in response to your letter to the 
     President dated February 11, 2003. In the letter, you renew 
     your previous request for confidential Department of Justice 
     memoranda in which Mr. Estrada provided appeal, certiorari, 
     and amicus recommendations while he was a career attorney in 
     the Office of Solicitor General for four years in the Clinton 
     Administration and one year in the George H.W.

[[Page 4205]]

     Bush Administration. You also request that Mr. Estrada answer 
     certain questions beyond the extensive questions that he 
     already answered appropriately and forthrightly during his 
     Committee hearing and in follow-up written responses.
       We respect the Senate's constitutional role in the 
     confirmation process, and we agree that the Senate must make 
     an informed judgment consistent with its traditional role and 
     practices. However, your requests have no persuasive support 
     in the history and precedent of judicial appointments. 
     Indeed, the relevant history and precedent convincingly 
     demonstrate that a new and shifting standard is being applied 
     to Miguel Estrada.
       First, as the Department of Justice explained in its 
     letters of June 5, 2002, October 8, 2002, and January 23, 
     2003, all living former Solicitors General (four Democrats 
     and three Republicans) have strongly opposed your request for 
     Solicitor General memoranda and stated that it would 
     sacrifice and compromise the ability of the Justice 
     Department to effectively represent the United States in 
     court. Even more telling, we are informed that the Senate has 
     not requested memos such as these for any of the 67 appeals 
     court nominees since 1977 who had previously worked in the 
     Justice Department (including the seven nominees who had 
     previously worked in the Solicitor General's office). The few 
     isolated examples you have cited--in which targeted requests 
     for particular documents about specific issues were 
     accommodated for nominees to positions other than the U.S. 
     Courts of Appeals--similarly do not support your request 
     here.
       Second, as explained more fully below with respect to your 
     request that Mr. Estrada answer additional questions, the 
     only specific question identified in your letter refers to 
     this judicial role models. You claim that Mr. Estrada refused 
     to answer a question on this topic. In fact, in his written 
     responses to Senator Durbin's question on this precise 
     subject that Mr. Estrada submitted three months ago, he cited 
     Justice Anthony Kennedy, Justice Lewis Powell, and Judge 
     Amalya Kearse as judges he admires (he clerked for Justice 
     Kennedy and Judge Kearse), and he further pointed out, of 
     course, that he would seek to resolve cases as he analyzed 
     them ``without any preconception about how some other judge 
     might approach the question.'' Your letter to the President 
     ignores Mr. Estrada's answer to this question. In any event, 
     beyond this one query, your letter does not pose any 
     additional questions to him. Additionally, neither of you has 
     posed any written questions to Mr. Estrada in the more than 
     three months since his allday Committee hearing. Since the 
     hearing, Mr. Estrada also has met (and continues to meet) 
     with numerous Democrat Senators interested in learning more 
     about his record. Finally, as I will explain below, Mr. 
     Estrada forthrightly answered numerous questions about his 
     judicial approach and views in a manner that matches or 
     greatly exceeds answers demanded of previous appeals court 
     nominees.
       With respect, it appears that a double standard is being 
     applied to Miguel Estrada. This is highly unfair and 
     inappropriate, particularly for this well-qualified and well-
     respected nominee.
       I will turn now in more detail to the various issues raised 
     by your letter. I will address them at some length given the 
     importance of this issue and the nature of your requests.

       L. Miguel Estrada's Qualifications and Bipartisan Support

       Miguel Estrada is an extraordinary qualified judicial 
     nominee. The American Bar Association, which 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. The ABA rating 
     was entirely appropriate in light of Mr. Estrada's superb 
     record as Assistant to the Solicitor General in the Clinton 
     and George H.W. Bush Administrations, as a federal prosecutor 
     in New York, as a law clerk to Justice Kennedy, and in 
     performing significant pro bono work.
       Some who are misinformed have seized on Mr. Estrada's lack 
     of prior judicial experience, but five of the eight judges 
     currently serving on the D.C. Circuit had not prior judicial 
     experience, including two appointees of President Clinton and 
     one appointee of President Carter. Miguel Estrada has tried 
     numerous cases before federal juries, argued many cases in 
     the federal appeals courts, and argued 15 cases before the 
     Supreme Court of the United States. That is a record that few 
     judicial nominees can match. And few lawyers, whatever there 
     ideology or philosophy, have volunteered to represent a death 
     row inmate pro bono before the Supreme Court as did Miguel 
     Estrada.
       Mr. Estrada's excellent legal qualifications are all the 
     more extraordinary given his personal history. Simply put, 
     Miguel Estrada is an American success story. He came to this 
     country at age 17 from Honduras speaking little English. 
     Through hard work and dedicated service to the United States, 
     Miguel Estrada has risen to the very pinnacle of the legal 
     profession. If confirmed, he would be the first Hispanic 
     judge to sit on the U.S. Court of Appeals for the D.C. 
     Circuit. Given his record, his background, and his integrity, 
     it is no surprise that Miguel Estrada is strongly supported 
     by the vast majority of national Hispanic organizations. The 
     League of United Latin American Citizens (LULAC), for 
     example, wrote to Senator Leahy to urge Mr. Estrada's 
     confirmation and explain that he ``is truly one of the rising 
     stars in the Hispanic community and a role model for our 
     youth.'' A group of 19 Hispanic organizations, including 
     LULAC and the Hispanic National Bar Association, recently 
     wrote to the Senate urging ``on behalf of an overwhelming 
     majority of Hispanics in this country'' that ``both parties 
     in the U.S. Senate . . . put partisan politics aside so that 
     Hispanics are no longer denied representation in one of the 
     most prestigious courts in the land.''
       The current effort to filibuster Mr. Estrada's nomination 
     is particularly unjustified given that those who have worked 
     with Miguel--including prominent Democratic lawyers whom you 
     know well--strongly support his confirmation. For example, 
     Ron Klain, who served as a high-ranking adviser to former 
     Vice President Gore and former Chief Counsel to the Senate 
     Judiciary Committee, wrote: ``Miguel is a person of 
     outstanding character, tremendous intellect, and with a deep 
     commitment to the faithful application of precedent. . . . 
     [T]he challenges that he has overcome in his life have made 
     him genuinely compassionate, genuinely concerned for others, 
     and genuinely devoted to helping those in need.''
       President Clinton's Solicitor General, Seth Waxman, wrote: 
     ``During the time Mr. Estrada and I worked together, he was a 
     model of professionalism and competence. . . . In no way did 
     I ever discern that the recommendations Mr. Estrada made or 
     the analyses he propounded were colored in any way by his 
     personal views--or indeed that they reflected any 
     consideration other than the long-term interests of the 
     United States. I have great respect both for Mr. Estrada's 
     intellect and for his integrity.``
       A bipartisan group of 14 former colleagues in the Office of 
     the Solicitor General at the U.S. Department of Justice 
     wrote: ``We hold varying ideological views and affirmations 
     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.'' One former 
     colleague, Richard Seamon, wrote that he is a pro-choice, 
     lifelong Democrat with self-described ``liberal views on most 
     issues'' who said he would ``consider it a disgrace'' if Mr. 
     Estrada is not confirmed.
       Similarly, Leonard Joy, head of the Federal Defense 
     Division of the Legal Aid Society of New York, wrote that 
     ``Miguel would make an excellent Circuit Court Judge. He is a 
     fine a lawyer as I have met and, on top of all his 
     intellectual abilities and judgment he would bring to bear, 
     he would bring a desirable diversity to the Court. I heartily 
     recommend him.''
       Beyond the extensive personal testimony from those who 
     worked side-by-side with him for many years, the performance 
     reviews of Miguel for the years that he worked in the Office 
     of Solicitor General gave him the highest rating of 
     ``outstanding'' in every possible category. The reviews 
     stated that Miguel:
       ``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 consicieness.''
       ``[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 and 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.''
       In the two years that Miguel Estrada and Paul Bender worked 
     together, Mr. Bender signed those reviews. These employment 
     reviews thus call into serious question some press reports 
     containing a negative comment from Mr. Bender about Mr. 
     Estrada's temperament (which is the only negative comment 
     made by anyone who actually knows Mr. Estrada). Just as 
     important, President Clinton's Solicitor General Seth Waxman 
     expressly refuted Mr. Bender's statement.
       In sum, based on his experience, his intellect, his 
     integrity, and his bipartisan support, Miguel Estrada should 
     be confirmed promptly.

                         II. The Senate's Role

       President Bush nominated Miguel Estrada nearly two years 
     ago on May 9, 2001. As explained above, he is well-qualified 
     and well-respected. By any traditional measure that the 
     Senate has used to evaluate appeals courts nominees, Miguel 
     Estrada should have been confirmed long ago. Your letter and 
     public statements indicate, however, that you are applying 
     both a new standard and new tactics to this particular 
     nominee.
       As to the standard, the Senate has a very important role in 
     the process, but the Senate's traditional approach to appeals 
     court

[[Page 4206]]

     nominees, and the approach envisioned by the Constitution's 
     Farmers, is far different from the standard that you now seek 
     to apply. Senator Biden stated the traditional approach in 
     1997: ``any person who is nominated for the district or 
     circuit court who, in fact, any Senator believes will be a 
     person of their word and follow stare decisis, it does not 
     matter to me what their ideology is, as long as they are in a 
     position where they are in the general mainstream of American 
     political life, and they have not committed crimes of moral 
     turpitude, and have not, in fact, acted in a way that would 
     shed a negative light on the court.'' Congressional Record, 
     March 19, 1997. Alexander Hamilton explained that the purpose 
     of Senate confirmation is to prevent appointment of ``unfit 
     characters from State prejudice, from family connection, from 
     personal attachment, or from a view to popularity.'' 
     Federalist No. 76. It was anticipated that the Senate's 
     approval would not often be refused unless there were 
     ``special and strong reasons for the refusal.'' No. 76.
       As to tactics, you have indicated that some Senate 
     Democrats intend to filibuster to prevent a vote on this 
     nominee. As you know, there has never been a successful 
     filibuster of a court of appeal nominee. Only a few years 
     ago, Senator Leahy and other Democrat Senators expressly 
     agreed with then-Governor Bush that every judicial nominee 
     was entitled to an up-or-down floor vote within a reasonable 
     time. On October 3, 2000, for example, Senator Leahy stated:
       ``Governor Bush and I, while we disagree on some issues, 
     have one very significant issue on which we agree. He gave a 
     speech a while back and criticized what has happened in the 
     Senate where confirmation are held up not because somebody 
     votes down a nominee but because they cannot ever get a vote. 
     Governor Bush said: You have the nominee. Hold the hearing. 
     Then, within 60 days, vote them up or vote them down. Don't 
     leave them in limbo. Frankly, that is what we are paid to do 
     in this body. We are paid to vote either yes or no--not vote 
     maybe. When we hold a nominee up by not allowing them a vote 
     and not taking any action one way or the other, we are not 
     only voting `maybe,' but we are doing a terrible disservice 
     to the man or woman to whom we do this.''
       Senator Daschle similarly stated on October 5, 1999, that 
     ``[t]he Senate is surely under no obligation to confirm any 
     particular nominee, but after the necessary time for inquiry 
     it should vote him up or vote him down. An up or down vote, 
     that is all we seek for Berzon and Paez. And after years of 
     waiting, they deserve at least that much.''
       In his East Room speech of October 30, 2002, President Bush 
     reiterated that every judicial nominee deserves a timely up-
     or-down vote in the Senate, no matter who is President or 
     which party controls the Senate. Contrary to President Bush's 
     attempts at permanent reform to bring order to the process, 
     your current effort to employ a filibuster and block an up-
     or-down vote on the Estrada nomination may significantly 
     exacerbate the cycle of bitterness and recrimination that 
     President Bush has sought to resolve on a bipartisan basis. 
     We fear that the damage caused by a filibuster could take 
     many years to undo. To continue on this path would also be, 
     in Senator Leahy's words, ``a terrible disservice'' to Mr. 
     Estrada. We urge you to reconsider this extraordinary action, 
     to end the filibuster of Mr. Estrada's nomination, and to 
     allow the full Senate to vote up or down.

         III. Request for Confidential Solicitor General Memos

       You have suggested that Mr. Estrada's background, 
     experience, and support are insufficient to assess his 
     suitability for the D.C. Circuit. You have renewed your 
     request for Solicitor General memos authored by Mr. Estrada. 
     But every living former Solicitor General signed a joint 
     letter to the Senate opposing your request. The letter was 
     signed by Democrats Archibald Cox, Walter Dellinger, Drew 
     Days, and Seth Waxman. They stated: ``Any attempt to intrude 
     into the Office's highly privileged deliberations would come 
     at the cost of the Solicitor General's ability to defend 
     vigorously the United States' litigation interests--a cost 
     that also would be borne by Congress itself. . . . Although 
     we profoundly respect the Senate's duty to evaluate Mr. 
     Estrada's fitness for the federal judiciary, we do not think 
     that the confidentiality and integrity of internal 
     deliberations should be sacrificed in the process.''
       It bears mention that the interest asserted here is that of 
     the United States, not the personal interest of Mr. Estrada. 
     Indeed, Mr. Estrada himself testified that ``I have not 
     opposed the release of those records. . . . I am 
     exceptionally proud of every piece of legal work that 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 client.''
       The history of Senate confirmations of nominees who had 
     previously worked in the Department of Justice makes clear 
     that an unfair double standard is being applied to Miguel 
     Estrada's nomination. Since the beginning of the Carter 
     Administration in 1977, the Senate has approved 67 United 
     States Court of Appeals nominees who previously had worked in 
     the Department of Justice. Of those 67 nominees, 38 had no 
     prior judicial experience, like Miguel Estrada. The 
     Department of Justice's review of those nomination records 
     disclosed that in none of those cases did the Department of 
     Justice produce internal deliberative materials created by of 
     the Department. In fact, the Department's review disclosed 
     that the Senate did not even request such materials for a 
     single one of these 67 nominees.
       Of this group of 67 nominees, seven were nominees who had 
     worked as a Deputy Solicitor General or Assistant to the 
     Solicitor General. These seven nominees, nominated by 
     Presidents of each party and confirmed by Senates controlled 
     by each party, included Samuel Alito, Danny Boggs, William 
     Bryson, Frank Easterbrook, Daniel Friedman, Richard Posner, 
     and Raymond Randolph.
       The five isolated historical examples you have cited do not 
     support your current request. In each of those five cases, 
     the Committee made a targeted request for specific 
     information primarily related to allegations of misconduct or 
     malfeasance identified by the Committee. Even in those 
     isolated cases, the vast majority of deliberative memoranda 
     written by those nominees were neither requested nor 
     produced. With respect to Judge Bork's nomination, for 
     example, the Committee received access to certain particular 
     memoranda (many related to Judge Bork's involvement in 
     Watergate-related issues). The vast majority of memoranda 
     authored by Judge Bork were never received. With respect to 
     Judge Trott, the Committee requested documents unrelated to 
     Judge Trott's service to the Department. So, too, in the 
     three other examples you cite, the Committee requested 
     specific documents primarily related to allegations have been 
     made in the case of Mr. Estrada.
       In sum, the examples you have cited only highlight the lack 
     of precedent for the current request. As the Justice 
     Department has explained to you previously, the existence of 
     a few isolated examples where the Executive Branch on 
     occasion accommodated a Committee's targeted requests for 
     very specific information primarily related to allegations of 
     misconduct does not in any way alter the fundamental and 
     long-standing principle that memos from the Office of 
     Solicitor General--and deliberative Department of Justice 
     memoranda more broadly--must remain protected in the 
     confirmation context so as to maintain the integrity of the 
     Executive Branch's decisionmaking process. That is a 
     fundamental principle that has been followed irrespective of 
     the party that controls the White House and the Senate.
       Your continued requests for these memoranda have provoked a 
     foreseeable and inevitable conflict that, in turn, has been 
     cited as a basis for obstructing a vote on Mr. Estrada's 
     nomination. Respectfully, the conflict is unnecessary because 
     your desire to assess the nominee can be readily accommodated 
     in many ways other than intruding into the severely damaging 
     the deliberative process of the Office of Solicitor General. 
     For example, you can review Mr. Estrada's written briefs and 
     oral arguments both as an attorney for the United States and 
     in private practice. As you know, those documents are 
     publicly available and easily accessible, that said, we would 
     be pleased to facilitate your access to them. (Mr. Estrada's 
     hearing transcript suggests that no Democrat Member of the 
     Committee had read Mr. Estrada's many dozens of Solicitor 
     General merits briefs, certiorari petitions, and opposition 
     briefs or the transcripts of his 14 oral arguments when he 
     represented the United States.) You also may consider the 
     opinions of others who served in the Office at the same time 
     (discussed above) and examine the nominee's written 
     performance reviews (also discussed above). There is more 
     than ample information for you to assess Mr. Estrada's 
     qualifications and suitability for the D.C. Circuit based on 
     the traditional standards the Senate has employed.
       It also is important to recognize that political appointees 
     of President Clinton have read virtually all of the memoranda 
     in question--namely, the Democrat Solicitors General Drew 
     Days, Walter Dellinger, and Seth Waxman. None of those three 
     highly respected Democrat lawyers has expressed any concern 
     whatever about Mr. Estrada's nomination. Indeed, Mr. Waxman 
     wrote a letter of strong support, and Mr. Days made public 
     statements in support of Mr. Estrada.
       In sum, the historical record and past precedent 
     convincingly demonstrate that this request creates and 
     applies an unfair double standard to Miguel Estrada.

      IV. Request That Miguel Estrada Answer Additional Questions

       Your letter also suggests that Miguel Estrada should answer 
     certain questions that he allegedly did not answer in his 
     hearing. To begin with, we do not know what your specific 
     questions are. In addition, this request frankly comes as a 
     surprise given that (i) Senator Schumer chaired the hearing 
     on Mr. Estrada, (ii) the hearing lasted an entire day, (iii) 
     Senators at the all-day hearing asked numerous far-reaching 
     questions that Mr. Estrada answered forthrightly and 
     appropriately, and (iv) only two of the 10 Democrat Senators 
     then on the Committee even submitted any follow-up written 
     questions,

[[Page 4207]]

     and they submitted only a few questions (in marked contrast 
     to other nominees who received voluminous follow-up 
     questions).
       It also bears mention that Mr. Estrada has personally met 
     with a large number of Democrat Senators, including Senators 
     Landrieu, Lincoln, Bill Nelson, Ben Nelson, Leahy, Feinstein, 
     Kohl, and Breaux; is scheduled to meet with Senator Carper, 
     and would be pleased to meet with additional Senators.
       The only specific question your letter identifies refers to 
     Mr. Estrada's judicial role models, and you claim that he 
     refused to answer a question on this topic. In fact, in Mr. 
     Estrada's written responses to Senator Durbin's questions on 
     this precise subject, Mr. Estrada cited Justice Anthony 
     Kennedy, Justice Lewis Powell, and Judge Amalya Kearse as 
     judges he admires, and he further pointed out, of course, 
     that we would seek to resolve cases as he analyzed them 
     ``without any preconception about law some other judge might 
     approach the question.''
       In our judgment, moreover, Mr. Estrada answered the 
     Committee's questions in a manner that was both entirely 
     appropriate and entirely consistent with the approach that 
     judicial nominees of President of both parties have taken for 
     many years. Your suggestions to the contrary do not square 
     with the hearing record or traditional practice.


              A. Judicial Ethics and Traditional Practice

       In assessing your request that Miguel Estrada did not 
     answer appropriate questions, we begin with rules of judicial 
     ethics that govern prospective nominees. Canon 5A(3)(d) 
     provides that prospective judges' ``shall not . . . make 
     statements that commit or appear to commit the candidate with 
     respect to cases, controversies or issues that are likely to 
     come before the court'' (emphasis added). Justice Thurgood 
     Marshall made the point well in 1967 when asked about the 
     Fifth Amendment: ``I do not think you want me to be in a 
     position of giving you a statement on the Fifth Amendment and 
     then, if I am confirmed and sit on the Court, when a Fifth 
     Amendment case comes up, I will have to disqualify myself.'' 
     Lloyd Cutler, who served as Counsel to President Carter and 
     President Clinton, has stated that ``candidates should 
     decline to reply when efforts are made to find out how they 
     would decide a particular case.''
       In 1968, in the context of the Justice Abe Fortas' 
     nomination to be Chief Justice, the Senate Judiciary 
     Committee similarly stated: ``Although recognizing the 
     constitutional dilemma which appears to exist when the Senate 
     is asked to advise and consent on a judicial nominee without 
     examining him on legal questions, the Committee is of the 
     view that Justice Fortas wisely and correctly declined to 
     answer questions in this area. To require a Justice to state 
     his views on legal questions or to discuss his past decisions 
     before the Committee would threaten the independence of the 
     judiciary and the integrity of the judicial system itself. It 
     would also impinge on the constitutional doctrine of 
     separation of powers among the three branches of Government 
     as required by the Constitution.'' S. Exec. Rep. No. 8, 90th 
     Cong. 2d Sess. 5 (1968).
       Even in the context of a Supreme Court confirmation 
     hearing, Senator Kennedy defended Sandra Day O'Connor's 
     refusal to discuss her views on abortion: ``It is offensive 
     to suggest that a potential Justice of the Supreme 
     Court must pass some presumed test of judicial philosophy. It 
     is even more offensive to suggest that a potential justice 
     must pass the litmus test of any single-issue interest 
     group.'' Nomination of Sandra O'Connor: Hearings Before the 
     Senate Comm. on the Judiciary on the Nomination of Judge 
     Sandra Day O'Connor of Arizona to Serve as an Associate 
     Justice of the Supreme Court of the United States, 97th Cong. 
     6 (1981) (statement of Sen. Kennedy).
       Justice Ruth Bader Ginsburg likewise declined to answer 
     certain questions: ``Because I am and hope to continue to be 
     a judge, it would be wrong for me to say or to preview in 
     this legislative chamber who I would cast my vote on 
     questions the Supreme Court may be called upon to decide. 
     Were I to rehearse here what I would say and how I would 
     reason on such questions, I would act injudiciously.'' 
     Similarly, Justice John Paul Stevens stated in his hearing: 
     ``I really don't think I should discuss this subject 
     generally, Senator. I don't mean to be unresponsive but in 
     all candor I must say that there have been many times in my 
     experience in the last five years where I found that my first 
     reaction to a problem was not the same as the reaction I had 
     when I had the responsibility of decisions and I think that 
     if I were to make comments that were not carefully though 
     through they might be given significance that they really did 
     not merit.''
       Justice Ginsburg described the traditional practice in a 
     case decided last year: ``In the context of the federal 
     system, how a prospective nominee for the bench would resolve 
     particular contentious issues would certainly be `in 
     interest' to the President and the Senate . . . But in accord 
     with a longstanding norm, every Member of this Court declined 
     to furnish such information to the Senate, and presumably to 
     the President as well.'' Republican Party of Minnesota v. 
     White, 122 S. Ct. 2528, 2552 n. 1 (2002) (Ginsburg, J., 
     dissenting) (emphasis added). Justice Ginsburg added that 
     this adherence to this ``longstanding norm'' was ``crucial to 
     the health of the Federal Judiciary.'' Id. In his majority 
     opinion, Justice Scalia did not take issue with that 
     description and added: ``Nor do we assert that candidates for 
     judicial office should be compelled to announce their views 
     on disputed legal issues.'' Id. at 2539 n.11 (emphasis in 
     original).
       In some recent hearings, including Mr. Estrada's, Senator 
     Schumer has asked that nominees identify particular Supreme 
     Court cases of the last few decades with which they disagree. 
     But the problems with such a question and answer were well 
     stated by Justice Stephen Breyer. As Justice Breyer put it, 
     ``Until [an issue] comes up, I don't really think it through 
     with the depth that it would require. . . . So often, when 
     you decide a matter for real, in a court or elsewhere, it 
     turns out to be very different after you've become informed 
     and think it through for real than what you would have said 
     at a cocktail party answering a question.'' 34 U.C. Davis L. 
     Rev. 425, 462.
       Senator Schumer also has asked nominees how they would have 
     ruled in particular Supreme Court cases. Again, a double 
     standard is being applied. The nominees of President Clinton 
     did not answer such questions. For example, Richard Tallman, 
     a nominee with no prior judicial service who would now serves 
     on the Ninth Circuit, not only would not answer how he would 
     have ruled as a judge in Roe v. Wade--but even how he would 
     have ruled in Plessy v. Ferguson, the infamous case that 
     upheld the discredited and shameful ``separate but equal'' 
     doctrine. So, too, in the hearing on President Clinton's 
     nomination of Judges Barry and Fisher, Senator Smith asked 
     whether the nominees would have voted for a constitutional 
     right to abortion before Roe v. Wade. Chairman Hatch 
     interrupted Senator Smith to say ``that is not a fair 
     question to these two nominees because regardless of what 
     happened pre-1973, they have to abide by what has happened 
     post-1973 and the current precedents that the Supreme Court 
     has.''


                      b. answers by miguel estrada

       Miguel Estrada answered the Committee's question 
     forthrightly and appropriately. Indeed, Miguel Estrada was 
     more expansive than many judicial nominees traditionally have 
     been in Senate hearings, and he was asked a far broader range 
     of questions than many previous appeals court nominees were 
     asked. We will catalogue here a select sample of his answers.
     Unenumerated rights, privacy, and abortion
       When asked by Senator Edwards about the Constitution's 
     protection for rights not enumerated in the Constitution, Mr. 
     Estrada replied: ``I recognize that the Supreme Court has 
     said [on] numerous occasions in the area of privacy and 
     elsewhere that there are unenumerated rights in the 
     Constitution, and I have no view of any sort, whether legal 
     or personal, that would hinder me from applying those rulings 
     by the court. But I think the court has been quite clear that 
     there are a number of unenumerated rights in the 
     Constitution. In the main, the court has recognized them as 
     being inherent in the right of substantive due process and 
     the liberty clause of the Fourteenth Amendment.''
       When asked by Senator Feinstein whether the Constitution 
     encompasses a right to privacy and abortion, Mr. Estrada 
     responded, ``The Supreme Court has so held, and I have no 
     view of any nature whatsoever, whether it be legal, 
     philosophical, moral, or any other type of view that would 
     keep me from applying that case law faithfully.'' When asked 
     whether Roe v. Wade was ``settled law,'' Mr. Estrada replied, 
     ``I believe so.''
     General approach to judging
       When asked by Senator Edwards about judicial review, Mr. 
     Estrada explained: ``Courts take the laws that have been 
     passed by you and give you the benefit of understanding that 
     you take the same oath that they do to uphold the 
     Constitution, and therefore they take the laws with the 
     presumption that they are constitutional. It is the 
     affirmative burden of the plaintiff to show that you have 
     gone beyond your oath. If they come into court, then it is 
     appropriate for courts to undertake to listen to the legal 
     arguments--why it is that the legislature went beyond [its] 
     role as a legislat[ure] and invaded the Constitution.''
       Mr. Estrada stated to Senator Edwards that there are 200 
     years of Supreme Court precedent and than it is not the case 
     that ``the appropriate conduct for courts is to be guided 
     solely by the bare text of the Constitution because that is 
     not the legal system that we have.''
       When asked by Senator Edwards whether he was a strict 
     constructionist, Mr. Estrada replied that he was ``a fair 
     constructionist''--meaning that ``I don't think that it 
     should be the goal of courts to be strict or lax. The goal of 
     courts is to get it right. . . . It is not necessarily the 
     case in my mind that, for example, all parts of the 
     Constitution are suitable for the same type of interpretative 
     analysis. . . . [T]he Constitution says, for example, that 
     you must be 35 years old to be our chief executive. . . . 
     There are areas of the Constitution that are more open-ended. 
     And you adverted to one, like the substantive component of 
     the due process clauses, where there are other methods of 
     interpretation that are not quite so obvious

[[Page 4208]]

     that the court has brought to bear to try to bring forth what 
     the appropriate answer should be.''
       When Senator Kohl asked him about environmental statutes, 
     for example, Mr. Estrada explained that those statutes come 
     to court ``with a strong presumption of constitutionality.''
       In response to Senator Leahy, Mr. Estrada described the 
     most important attributes of a judge: ``The most important 
     quality for a judge, in my view Senator Leahy, is to have an 
     appropriate process for decisionmaking. That entails having 
     an open mind. It entails listening to the parties, reading 
     their briefs, going back beyond those briefs and doing all of 
     the legwork needed to ascertain who is right in his or her 
     claims as to what the law says and what the facts [are]. In a 
     court of appeals court, where judges sit in panels of three, 
     it is important to engage in deliberation and give ear to the 
     view of colleagues who may have come to different 
     conclusions. And in sum, to be committed to judging as a 
     process that is intended to give us the right answer, not to 
     a result. And I can give you my level best solemn assurance 
     that I firmly think I do have those qualities or else I would 
     not have accepted the nomination.''
       In response to Senator Durbin, Miguel Estrada stated that 
     ``the Constitution, like other legal texts, should be 
     construed reasonably and fairly, to give effect to all that 
     its text contains.''
       Mr. Estrada indicated to Senator Durbin that he admired the 
     judges for whom he clerked, Justice Kennedy and Judge Kearse, 
     as well as Justice Lewis Powell.
       Mr. Estrada stated to Senator Durbin that ``I can 
     absolutely assure the Committee that I will follow binding 
     Supreme Court precedent until and unless such precedent has 
     been displaced by subsequent decisions of the Supreme Court 
     itself.''
       In response to Senator Grassley, Mr. Estrada stated: ``When 
     facing a problem for which there is not a decisive precedent 
     from a higher court, my cardinal rule would be to seize aid 
     from anyplace where I could get it. Depending on the nature 
     of the problem, that would include related case law in other 
     areas that higher courts had dealt with that had some 
     insights to teach with respect to the problem at hand. It 
     could include the history of the enactment, including in the 
     case of a statute legislative history. It could include the 
     custom and practice under any predecessor statute or 
     document. It could include the views of academics to the 
     extent that they purport to analyze what the law is instead 
     of--instead of prescribing what it should be. And in sum, as 
     Chief Justice Marshall once said, to attempt not to overlook 
     anything from which aid might be derived.''
       In response to Senator Sessions, Mr. Estrada stated: ``I am 
     very firmly of the view that although we all have views on a 
     number of subjects from A to Z, the first duty of a judge is 
     to self-consciously put that aside and look at each case by 
     starting withholding judgment with an open mind and listen to 
     the parties. So I think that the job of a judge is to put all 
     of that aside, and to the best of his human capacity to give 
     a judgment based solely on the arguments and the law.''
       In response to Senator Sessions, Mr. Estrada stated that 
     ``I will follow binding case law in every case. . . . I may 
     have a personal, moral, philosophical view on the subject 
     matter. But I undertake to you that I would put all that 
     aside and decide cases in accordance with binding case law 
     and even in accordance with the case law that is not binding 
     but seems constructive on the area, without any influence 
     whatsoever from any personal view I may have about the 
     subject matter.''
     Miranda/Stare decisis
       Mr. Estrada stated that United States v. Dickerson--a case 
     raising the question whether Miranda should be overruled--
     reflected a ``reasonable application of the doctrine of stare 
     decisis. In my view, it is rarely appropriate for the Supreme 
     court to overturn one of its own precedents.''
     Affirmative action
       With respect to affirmative action, Mr. Estrada responded 
     to Senator Kennedy that ``any policy views I might have as a 
     private citizen on the subject of affirmative action would 
     not enter into how I would approach any case that comes 
     before me as a judge. Under controlling Supreme Court 
     authority, particularly Adarand Constructors, Inc. v. Pena, 
     515 U.S. 200 (1995), if a government program creates a racial 
     classification, it will be subject to strict scrutiny. 
     Whether the program survives that sort of scrutiny will often 
     involve a highly contextual and fact-specific inquiry into 
     the nature of the justifications asserted by the government 
     and the fit between those justifications and the 
     classification at issue. Adarand and similar cases provide 
     the framework that I would be required to apply, and would 
     apply, in considering these issues as a judge.''
       Asked by Senator Leahy about the strict scrutiny test, Mr. 
     Estrada replied, ``the Supreme Court in the Adarand case 
     stated, as a general rule, that the consideration of race is 
     subject to strict scrutiny. That means that though it may be 
     used in some cases, it has to be justified by a compelling 
     state interest. And with respect to the particular context, 
     there must be a fairly fact-bound individual assessment of 
     the fit between the interest that is being asserted and the 
     category being used. That is just another way of saying that 
     it is a very fact-intensive analysis in the context of a 
     specific program and in the context of the justifications 
     that are being offered in support of the program.''
     Congressional authority
       With respect to the outer limits of Congress' power to 
     confer authority on other governmental bodies, Miguel 
     responded to Senator Kennedy that the Supreme Court has said 
     that ``particular factual context is significant in analyzing 
     the appropriateness of a particular delegation. . . . Of 
     course, the fact that the Supreme Court only rarely has 
     struck down statutes on this ground suggests that the Court 
     has been quite deferential to congressional judgments about 
     the types of delegations that reasonably might be needed to 
     carry on the business of government.''
       When Senator Kohl asked Mr. Estrada about the 1995 Lopez 
     case concerning the scope of Congress' power to regulate, Mr. 
     Estrada pointed out that he had argued in a companion case 
     ``for a very expansive view of the power to Congress to pass 
     statutes under the Commerce Clause and have them be upheld by 
     the court. . . . Lopez has given us guidance on when it is 
     appropriate for the court to exercise the commerce power. It 
     is binding law and I would follow it.''
     Ethnicity
       With respect to the fact that the President had noted 
     Miguel's ethnicity, Miguel responded to Senator Kennedy: 
     ``The President is the leader of a large and diverse country, 
     and it is accordingly appropriate for him, in exercising his 
     constitutional nomination and appointment powers, to select 
     qualified individuals who reflect the breadth and diversity 
     of our Nation.''
       With respect to the Democrat Congressional Hispanic 
     Caucus's criticism of him, Miguel responded to Senator 
     Kennedy that ``I strongly disagree, however, with the 
     Congressional Hispanic Caucus' view that I lack an 
     understanding of the role and importance of courts in 
     protecting the legal rights of minorities, of the values and 
     mores of Latino culture, or the significance of role models 
     for minority communities.''
     Racial discrimination
       With respect to race discrimination, Mr. Estrada stated in 
     response to Senator Kennedy: ``I take a backseat to no one in 
     my abhorrence of race discrimination in law enforcement or 
     anything else.''
       Senator Feingold asked Mr. Estrada whether he believed that 
     racial profiling and racially motivated law enforcement 
     misconduct are problems in this country today. Mr. Estrada 
     replied, ``I am--I will once again emphasize I'm unalterably 
     opposed to any sort of race discrimination in law 
     enforcement, Senator, whether it's called racial profiling or 
     anything else. . . . I know full well that we have real 
     problems with discrimination in our day and age.''
       Senator Leahy asked Mr. Estrada about whether statistical 
     evidence of discriminatory impact is relevant in establishing 
     discrimination. Mr. Estrada replied: ``I am not a specialist 
     in this area of the law, Senator Leahy, but I am aware that 
     there is a line of cases, beginning with the Supreme Court's 
     decision in Griggs, that suggests that in appropriate cases 
     that [such evidence] may be appropriate. . . . I do 
     understand that there is a major area of law that deals with 
     how you prove and try disparate-impact cases.''
     Congressional authority to regulate firearms
       Senator Feinstein asked whether Congress may legislate in 
     the area of dangerous firearms, and Mr. Estrada responded 
     that the Supreme Court had ruled that ``if the government 
     were to prove that the firearm had at any time in its 
     lifetime been in interstate commerce even if that had nothing 
     to do with the crime at issue, that that would be an adequate 
     basis for the exercise of Congress' power.''
     Right to counsel
       Senator Edwards asked about Gideon v. Wainwright, the 
     Supreme Court case guaranteeing the right to counsel for poor 
     defendants who could not afford counsel. Although Senator 
     Edwards appeared to question the reasoning in that landmark 
     case, Mr. Estrada responded that ``I frankly have always 
     taken it as a given that that's--the ruling in the case.''


               c. answers by president Clinton's nominees

       Your criticism of Miguel Estrada's testimony creates a 
     double standard. You did not require nominees of President 
     Clinton to answer questions of this sort (keeping in mind 
     that you have not identified what your additional questions 
     to Mr. Estrada are). President Clinton's appeals court 
     nominees routinely testified without discussing their views 
     of specific issues or cases. A few select examples, including 
     of several nominees who had no prior judicial experience, 
     illustrate the point. (Please note that these are isolated 
     examples; there are many more we can provide if necessary).
       Merrick Garland (no prior judicial experience). In the 
     nomination of Merrick Garland to the D.C. Circuit, Senator 
     Specter asked him: ``Do you favor, as a personal matter, 
     capital punishment?'' Judge Farland replied

[[Page 4209]]

     only that he would follow Supreme Court precedent: ``This is 
     really a matter of settled law now. The Court has held that 
     capital punishment is constitutional and lower courts are to 
     follow that rule.'' Senator Specter also asked him about is 
     views of the independent counsel statute's constitutionality, 
     and Judge Garland responded: ``Well, that, too, the Supreme 
     Court in Morrison v. Olson upheld as constitutional, and, of 
     course, I would follow that ruling.'' Judge Garland did not 
     provide his personal view of either subject.
       Judith Rogers. In the hearing on Judge Judith Rogers' 
     nomination to the D.C. Circuit, Judge Rogers was asked by 
     Senator Cohen about the debate over an evolving Constitution. 
     Judge Rogers responded: ``My obligation as an appellate judge 
     is to apply precedent. Some of the debates which I have heard 
     and to which I think you may be alluding are interesting, but 
     as an appellate judge, my obligation is to apply precedent. 
     And so the interpretations of the Constitution by the U.S. 
     Supreme Court would be binding on me.'' She then was asked 
     how she would rule in the absence of precedent and responded: 
     ``When I was taking my mater's in judicial process at the 
     University of Virginia Law School, one of the points 
     emphasized was the growth of our common law system based on 
     the English common law judge system. And my opinions, I think 
     if you look at them, reflect that where I am presented with a 
     question of first impression, that I look to the language of 
     whatever provision we are addressing, that I look to whatever 
     debates are available, that I look to the interpretations by 
     other Federal courts, that I look to the interpretations of 
     other State courts, and it may be necessary, as well, to look 
     at the interpretations suggested by commentators. And within 
     that framework, which I consider to be a discipline, that I 
     would reach a view in a case of first impression.'' Finally, 
     Judge Rogers was asked her view of the three-strikes law and 
     stated: ``As an appellate judge, my obligation is to enforce 
     the laws that Congress passes or, where I am now, that the 
     District of Columbia Council passes.'' Judge Rogers did not 
     provide her personal view of these subjects.
       Marsha Berzon (no prior judicial experience). Senator Smith 
     asked her views on Roe v. Wade and whether ``an unborn child 
     is a human being.'' Judge Berzon stated: ``[M]y role as a 
     judge is not to further anything that I personally believe or 
     don't believe, and I think that is the strength of our system 
     and the strength of our appellate system. The Supreme Court 
     has been quite definitive quite recently about the applicable 
     standard, and I absolutely pledge to you that I will follow 
     that standard as it exists now, and if it is changed, I will 
     follow that standard. And my personal views in this area, as 
     in any other, will have absolutely no effect.'' When Senator 
     Smith probed about their personal views on abortion and Roe 
     v. Wade, Chairman Hatch interrupted: ``I don't know how they 
     can say much more than that at this point in this meeting.''
       Richard Tallman (no prior judicial experience). In response 
     to written questions, Judge Tallman explained that 
     ``[j]udicial nominees are limited by judicial ethical 
     considerations from answering any question in a manner that 
     would call for an `advisory opinion' as the courts have 
     defined it or that in effect ask a nominee to suggest how he 
     or she would rule on an issue that could foreseeably require 
     his or her attention in a future case or controversy after 
     confirmation.'' He was asked how he would have ruled in 
     Plessy v. Ferguson. He stated: ``It is entirely conjectural 
     as to what I would have done without having the opportunity 
     to thoroughly review the record presented on appeal, the 
     briefs and arguments of counsel, and supporting legal 
     authorities that were applicable at that time.'' He gave the 
     same response when asked how he would have ruled on Roe v. 
     Wade. When asked his personal view on abortion, he wrote: ``I 
     hold no personal views that would prevent me from doing my 
     judicial duty to follow the precedent set down by the Supreme 
     Court.'' He gave the same answer about the death penalty.
       Kim Wardlaw. In the hearing on Judge Kim Wardlaw's 
     nomination to the Ninth Circuit, Judge Wardlaw was asked 
     about the constitutionality of affirmative action. She stated 
     (in an answer similar to Miguel Estrada's answer to the same 
     question): ``The Supreme Court has held that racial 
     classifications are unconstitutional unless they are narrowly 
     tailored to meet a compelling governmental interest.''
       Maryanne Trump Barry. In the hearing on Judge Maryanne 
     Trump Barry's nomination to the Third Circuit, Senator Smith 
     asked for her personal opinion on whether ``an unborn child 
     at any stage of the pregnancy is a human being.'' Judge Barry 
     responded: ``Casey is the law that I would look at. If I had 
     a personal opinion--and I am not suggesting that I do--it is 
     irrelevant because I must look to the law which binds me.''
       Raymond Fisher. In the hearing on Judge Raymond Fisher's 
     nomination to the Ninth Circuit, Senator Sessions asked Judge 
     Fisher's own personal views on whether the death penalty was 
     constitutional. Judge Fisher responded that ``My view, 
     Senator, is that, as you indicated, the Supreme Court has 
     ruled that the death penalty is constitutional. As a lower 
     appellate court judge, that is the law that I am governed by. 
     I don't want in my judicial career, should I be fortunate 
     enough to have one, to inject my personal opinions into 
     whether or not I follow the law. I believe that the precedent 
     of the Supreme Court is binding and that is what my function 
     is.''


                             v. conclusion

       Miguel Estrada is a well-qualified and well-respected 
     judicial nominee who has very strong bipartisan support. 
     Based on our reading of history, we believe that you have 
     ample information about this nominee and have had more than 
     enough time to consider questions about his qualifications 
     and suitability. We urge you to stop the unfair treatment, 
     and the filibuster, allow an up-or-down vote, and vote to 
     confirm Mr. Estrada.
           Sincerely,
                                              Alberto R. Gonzales,
                                         Counsel to the President.

  Mr. CORNYN. The first instance of a double standard being applied to 
Mr. Estrada by those who oppose an up-or-down vote is that, as 
opponents charge, Mr. Estrada cannot serve on the D.C. Circuit Court 
because he has no judicial experience. Yet the fact is that a majority 
of the judges who currently serve on that court had no prior judicial 
experience. That's right, they never served as a judge before the 
Senate voted to confirm them to serve in that important position.
  Let's take one case as an example. Judge Merrick Garland was 
nominated by President Clinton and confirmed by a Republican-controlled 
Senate. Like Mr. Estrada, Judge Garland graduated from Harvard Law 
School magna cum laude, clerked for a prominent judge on the Second 
Circuit, and then later clerked for a Supreme Court Justice. Both Mr. 
Estrada and Mr. Garland served as assistant U.S. attorneys. Both worked 
at the Department of Justice in Washington, D.C. Both practiced law in 
the private sector. Both enjoyed bipartisan support, and neither had 
prior judicial experience. It took the Senate just a few months to 
confirm Judge Garland.
  Meanwhile, Mr. Estrada has waited 21 months, and still the Democratic 
leadership will not allow a vote on his confirmation.
  But why stop there? If prior judicial experience were really so 
important to serving on a Federal court of appeals, why did the Senate 
vote to confirm Thurgood Marshall to the Second Circuit? Why did the 
Senate vote to confirm Stephen Breyer to the First Circuit? Why did the 
Senate vote to confirm Ruth Bader Ginsburg to the DC Circuit? And why 
did the Senate confirm John Paul Stevens to the Seventh Circuit? 
Indeed, why did the Senate confirm Anthony Kennedy to the Ninth 
Circuit? None of these individuals, all of whom have subsequently 
served on the U.S. Supreme Court, had any prior judicial service before 
they were nominated to the circuit courts and confirmed.
  Moreover, since the beginning of the Carter administration in 1977, 
the Senate has approved 38 nominees to the Federal courts of appeals 
who have previously worked at the Justice Department but never held 
judicial office, exactly like Miguel Estrada.
  There is also a double standard being applied when opponents to 
calling an up-or-down vote, advocates and proponents of this 
obstructionism, claim that Mr. Estrada cannot be confirmed until the 
Justice Department hands over all confidential documents he wrote as an 
Assistant to the Solicitor General.
  This request would be too laughable if it was not so transparent and 
so cynical. First, Mr. Estrada does not even have control of these 
memos, and he has said he does not object if the Justice Department 
decides to release them. Second, Senator Daschle and Senator Leahy 
know, were Mr. Estrada to somehow provide it, that it would violate 
ethical rules which benefit the American people and the entire U.S. 
Government, including Congress, whose acts the Department of Justice is 
charged with defending and enforcing in court.
  Of course, this fishing expedition is unprecedented evidence, again, 
of a double standard being applied to Mr. Estrada. Since the beginning 
of the Carter administration in 1977, the Senate has confirmed 67 
nominees to the Federal courts of appeals who have previously worked 
for the Justice Department, including seven who worked as

[[Page 4210]]

Deputy Solicitors General, or Assistants to the Solicitor General. Yet 
in none of these cases was the nominee required to produce such 
materials protected by the attorney-client privilege. In fact, the 
Justice Department has determined that the Senate did not even request 
such materials for a single one of those 67 nominees.
  Again, Mr. Estrada served in the Solicitor General's Office during 
the entire first term of the Clinton Administration, from 1993 to 1997. 
That means the Solicitors General for whom he worked during that time 
were all Democratic political appointees of President Clinton. None of 
these Solicitors General, I believe it is significant, have raised any 
objection to Mr. Estrada. Moreover, all former Solicitors General, all 
former living Solicitors General, both Democratic and Republican, for 
ethical reasons, oppose the request for these documents made by Senator 
Daschle and Senator Leahy.
  There is a third double standard being applied to Miguel Estrada by 
the Democratic leadership, those who would obstruct an up-or-down vote 
on this highly qualified nominee. They claim he has inappropriately 
refused to answer specific questions indicating how he would rule on 
specific legal questions that might come before him as a judge. Mr. 
President, Miguel Estrada is not running for election. He seeks to be a 
judge. It would be both wrong and unfair for him to prejudge those 
issues, issues that might well come before him as a judge. Indeed, this 
principle has been recognized by Supreme Court Justices Stevens, 
Souter, Breyer, and Ginsburg, who recently explained:

       [H]ow a prospective nominee for the bench would resolve 
     particular contentious issues would certainly be ``of 
     interest'' to the President and the Senate in the exercise of 
     their respective nomination and confirmation powers. . . . 
     But in accord with a longstanding norm, every Member of [the 
     Supreme] Court declined to furnish such information to the 
     Senate. . . . [T]he line each of us drew in response to 
     preconfirmation questioning . . . is crucial to the health of 
     the Federal Judiciary.

  I will not belabor the point here, but the letter written by White 
House Counsel Alberto Gonzales documents numerous Clinton judicial 
Federal nominees who answered just as Mr. Estrada did, just as these 
U.S. Supreme Court Justices did, to similar questions posed by the 
Senate Judiciary Committee. Yet all of these nominees were confirmed.
  It becomes abundantly clear on examination that the Democratic 
leadership, so bent on obstruction of any up-or-down vote on Mr. 
Estrada's confirmation, is not really interested in the answers to 
these questions as they claim. Consider this: After a whole day of 
hearings, the Senate Judiciary Committee released Mr. Estrada. They 
didn't ask him to come back and answer more questions. They released 
him. While it is common practice for members to submit follow-up 
questions to the nominee, only 2 of the 10 Democratic Senators on the 
committee bothered to ask only a few followup questions, in stark 
contrast to other nominees who have received voluminous written 
questions.
  So I say there is really no objection that Mr. Estrada has failed to 
comply with the Senate's traditional standards for confirming nominees 
by refusing to answer specific questions. Yet this is just another 
example of the Democratic leadership's double standard that seeks to 
stop Miguel Estrada.
  Finally, Democrat leaders are seeking to impose a double standard by 
insisting that 60 Senators must vote to close debate before a vote can 
be had on Mr. Estrada's confirmation.
  This is not legislation. This is a confirmation. The Constitution 
does not say 60 Senators must approve a judicial nomination. The 
Constitution does not say two-thirds of Senators must give advice and 
consent to a judicial nomination, as it does specifically say with 
regard to treaties. It just says the Senate shall give its advice and 
consent, which means a simple majority vote--not two-thirds of the 
Senate, but 51 votes. The fact is that 51 Senators--indeed, 54, as I 
count them, a bipartisan majority of this Senate--stand ready to 
confirm Mr. Estrada to the U.S. Court of Appeals for the District of 
Columbia Circuit if they would just be allowed to vote.
  According to the Congressional Research Service, no judicial nominee 
to the circuit court of appeals has ever been denied confirmation by 
filibuster--not once in the entire history of the Senate. Yet the 
Democratic leadership has seen fit to change the rules again--another 
double standard--as their only hope for stopping a bipartisan majority 
of the Senate from confirming the superbly qualified Miguel Estrada.
  But one of the most remarkable things I have seen in the last 3 weeks 
as I have observed this debate was an argument that was featured on the 
final day of Senate debate before the President's Day recess. On 
Friday, February 14, the senior Senator from Illinois argued in effect 
that the Constitution forbids confirming Mr. Estrada because the Senate 
has not sufficiently investigated him.
  I quote from my colleague's speech on the Senate floor:

       [U]nder the Constitution, which we have sworn to uphold, 
     and which we take very seriously, in article II, section 2, 
     it says:
       The President . . . shall nominate, and by and with the 
     Advice and Consent of the Senate, shall appoint . . . Judges 
     of the supreme Court, and all other Officers of the United 
     States, whose Appointments are not herein otherwise provided 
     for. . . .
       This tells those who are watching that what is at stake 
     here is not just a discretionary decision by the Senate as to 
     whether or not we will investigate a judicial nominee. We 
     have a constitutional obligation. And if we believe in that 
     investigation that a nominee is wanting, might not be a 
     person suited to serve in the Federal judiciary, I think we 
     are duty bound to vote against him.

  I am dumbfounded by this constitutional argument, particularly coming 
from a member of the Senate Judiciary Committee. Of course, we would 
welcome that vote he speaks of, even if some, based upon an erroneous 
constitutional standard, would choose to vote no on this nominee.
  But for the life of me, I cannot understand why the Senator can make 
such an argument based on any review of the Constitution or the history 
of judicial confirmations. The only thing I can think of is that my 
colleagues on the other side of the aisle--some of them anyway, 
because, as I said, there is a bipartisan majority of the Senate that 
stands ready to confirm Mr. Estrada today--but at least the Democratic 
leadership has simply decided to do whatever it takes and to make any 
argument, no matter how implausible, however devoid of any basis in law 
or in fact, to maintain this unprecedented filibuster against an 
exceptionally qualified nominee.
  The filibuster effort appears to have become so desperate, in fact, 
that they might even argue that the Constitution requires a filibuster. 
I know, however, that the Senator from Illinois takes the Constitution 
very seriously, as all of us do. And so I hope I can just take a few 
moments to discuss what the Constitution contemplates in this regard 
and convince my colleague to reconsider his argument.
  My distinguished colleague, the senior Senator from Illinois, argues 
that for the Senate to confirm Mr. Estrada now would violate the 
Constitution because the Senate has failed to conduct an adequate 
investigation. I would be the first to say the Senate's advice and 
consent function is indeed an important function, particularly when you 
are dealing with lifetime-tenured judicial appointees. Each of us 
indeed has undertaken an oath to ``support and defend the Constitution 
of the United States.''
  That Constitution includes a firm commitment to the doctrine of 
separated powers. Under the Constitution, the Congress legislates, the 
President executes the laws, and it is the courts that interpret the 
laws--not make laws.
  It bears repeating. Judges interpret laws. They aren't legislators 
wearing black robes--at least they are not supposed to be. The only 
body of our Government that legislates is the Congress. The 
Constitution, of course, demands that judges respect this fundamental 
distinction--one that, in the debates on this nominee, some seem to 
have been glossed over. I recall even one argument by the senior 
Senator

[[Page 4211]]

from Vermont to the effect that Mr. Estrada ought to have to basically 
run on a platform, as he would when he runs for election to the U.S. 
Senate from Vermont, making no distinction between the fact that a 
Senator is a representative, and a judge is a representative of no one 
other than the law.
  I believe in the last 3 weeks that our solemn duty to advise and 
consent and investigate this particular nominee has been more than 
complied with. Certainly in the last 2 years every Senator in this body 
has had more than an adequate opportunity to investigate and study Mr. 
Estrada's qualifications. I can't imagine any judicial nominee who has 
been more vigorously investigated than Mr. Estrada. So we are hardly 
talking about the Senate being railroaded into confirming an individual 
without time to think, without time to reflect, without time to 
investigate, and after a full and thorough debate.
  Mr. Estrada has been very clear about his judicial philosophy. He has 
said that nothing in his personal views would prevent him from 
following the law. That is very important in a judge. We want to make 
sure that the only judges we confirm are those who will follow the law 
as written by the legislature and is handed down in precedents by the 
U.S. Supreme Court.
  The Senate has undertaken a substantial investigation into Mr. 
Estrada already, and in so doing has developed a record that amply 
supports Mr. Estrada's sworn testimony about how he would conduct 
himself as a judge.
  That record includes strongly supported statements from numerous 
witnesses across the political spectrum, including prominent Clinton 
Administration lawyers. I go back to Ron Klain, whom I mentioned 
earlier was Vice President Gore's Chief of Staff and a former 
Democratic chief counsel to the Senate Judiciary Committee. He has 
known Mr. Estrada since their days together at Harvard, and has 
concluded that Mr. Estrada would ``faithfully follow the law.''
  President Clinton's Solicitor General, Seth Waxman, flatly rejected 
any notion that ``the recommendations Mr. Estrada made or the analyses 
that he prepared were colored in any way by his personal views.'' A 
bipartisan group of 14 of Mr. Estrada's former colleagues in the Office 
of Solicitor General have written:

       We hold varying ideological views and affiliations 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.

  I could go on and on.
  The FBI has investigated Mr. Estrada and given him a clean bill of 
health. The American Bar Association has investigated him and given him 
a unanimous well-qualified rating--the highest that the American Bar 
Association has to offer.
  The Senate has more than discharged its responsibility, with respect 
to Mr. Estrada, to confirm as judges only those individuals who respect 
the law and who respect the distinction between judging and 
legislating, those who will not politicize our courts, and those who 
will put aside personal views and enforce laws as written by Congress 
and by our Founders.
  I submit that our colleagues who oppose this vote on this highly 
qualified nominee have again changed the rules and imposed a double 
standard by contending that, not withstanding this ample record and 
vigorous investigation, the Senate must still go further and must 
inquire evermore deeply into Mr. Estrada's personal views. When 
confirmed, Mr. Estrada will behave as a judge and not as a legislator. 
The Senate needs nothing further in order to confirm him to the Federal 
bench other than to simply vote.
  The Constitution requires a majority of the Senate for an individual 
to be confirmed to judicial office. Although this is an important 
function, it is also the lowest threshold level of Congressional 
participation contemplated anywhere in the Constitution. By contrast, 
to enact legislation requires a majority of both Houses of Congress, 
not just the Senate. To authorize the President to ratify a treaty 
requires a two-thirds vote of this body. To impeach and convict a 
Federal official requires the approval of both Houses of Congress, 
including two-thirds of the Senate. Amending the Constitution and 
overriding a Presidential veto requires two-thirds of both Houses of 
Congress. In other words, the Constitution makes it easier for the 
Senate to confirm judicial nominees than it does to enact legislation, 
consent to treaties, punish an official during an impeachment effort, 
or to amend the Constitution.
  Professor Michael Gerhardt, a constitutional scholar and author of a 
scholarly volume called ``The Federal Appointments Process,'' has 
reviewed all of these constitutional provisions and compared them to 
the Senate's advice and consent function with respect to nominees and 
concluded that ``[t]he Constitution . . . establishes a presumption of 
confirmation''--a presumption of confirmation--``that works to the 
advantage of the President and his nominees.'' In fact, I think Mr. 
Gerhardt is on to something.
  Here again, this is not just about Miguel Estrada. The Democratic 
leadership seeks to defeat a constitutional presumption of confirmation 
in the judicial confirmation process. They are still fighting the last 
election by and through the person of Miguel Estrada. Although the 
country has embraced this President and his great leadership, the 
Democratic leadership is still fighting against it, seeking to defeat 
President Bush wherever and whenever they can.
  The constitutional structure demonstrates that the Senate's role is 
satisfied when the record makes clear that whatever a nominee's 
personal views, that they will play no role in how the nominee will 
judge specific cases and controversies. After all, to do otherwise 
would mean that it would take practically all of the Senate's time to 
confirm Presidential nominees, leaving no room for legislation, 
treaties, and other matters to which the Constitution gives even more 
responsibility to Congress than in the confirmation process.
  The Constitution nowhere requires a majority of the Senate to 
undertake a full-blown trial of a judicial nominee. Yet that seems to 
be what the Democratic leadership is asking for. Quite to the contrary, 
the Framers of the Constitution well understood that the Senate's role 
in the process is really quite limited--something it does us well to 
reflect on, with the confirmation process today so skewed and so 
poisoned, and so toxic, toxic not only to the nominees but also to this 
body.
  As Alexander Hamilton explained in the Federalist Papers, the 
Constitution gives the Senate a confirmation role to ensure that the 
President has not injected cronyism into his appointment process. 
Alexander Hamilton does not say that the Senate is supposed to second-
guess the President's judgment or to conduct a deep and searching 
inquiry into the legal views of the nominee--the sorts of things that 
are being asked for here. Instead, Alexander Hamilton writes, in 
Federalist No. 76:

       To what purpose then require the cooperation of the Senate? 
     . . . It would be an excellent check upon a spirit of 
     favoritism in the President, and would tend greatly to 
     prevent the appointment of unfit characters from State 
     prejudice, from family connection, from personal attachment, 
     or from a view to popularity.

  Indeed, far from indicating that substantial hearings and 
investigation would be required, Hamilton noted that the Senate's 
confirmation role would be, ``in general, a silent operation.''
  Hamilton's understanding of the confirmation process--that it would 
largely be what he called ``a silent operation''--is reflected in the 
text of the Constitution. By contrast, the impeachment provisions of 
the Constitution require the Senate to undertake an actual trial before 
an official can be punished, including removal from office.
  So it is clear that the text, the structure, the original 
understanding, and, indeed, the tradition of confirmation proceedings 
handed down these last 200 years all refute the theory of Senate advice 
and consent suggested by those who would obstruct this vote, including 
the views expressed by the senior

[[Page 4212]]

Senator from Illinois and those who would espouse a new standard, one 
made of whole cloth, again changing the rules and applying a double 
standard to Miguel Estrada.
  Once the Senate has determined that an otherwise qualified judicial 
nominee respects the law and understands that judges interpret the law 
and do not make the law, that nominee may be confirmed to the Federal 
bench. It is absurd to think that the Constitution would require 
anything else.
  Moreover--and this is significant, to show how far afield we have 
come from the confirmation process as practiced by the Founding Fathers 
and those in the last 200 years--for much of our Nation's history, the 
Senate did not even conduct confirmation hearings, not even for 
nominees to the U.S. Supreme Court. Instead, the Senate either deferred 
to the President's determination that the nominee would abide by 
constitutionally required distinctions between judging and law making, 
or would reject nominees without resort to intrusive hearings.
  Indeed, the Senate Committee on the Judiciary did not even exist 
during the first half century of this country's existence--nearly 30 
years after the ratification of the Constitution. It did not even exist 
until 1816. And even when such hearings were later held in our Nation's 
history, by custom, the nominee would not even appear.
  The first extensive hearings on a Supreme Court nominee were not held 
until the nomination of Louis Brandeis in 1916. Yet despite those 
hearings, Mr. Brandeis never even appeared in person before the Senate 
or a committee.
  On September 5, 1922, the day after Justice John Hessin Clarke 
resigned, President Harding nominated George Sutherland to the Supreme 
Court, and the Senate confirmed him that very day. It was not until 
Harlan Fiske Stone, in 1925, that the first nominee for the U.S. 
Supreme Court would actually appear in person before the Judiciary 
Committee, and even that was a novel episode, after which nominees 
would revert back to the tradition of not appearing personally before 
the Judiciary Committee. That tradition continued for over a decade, 
until Felix Frankfurter testified before the Senate Judiciary Committee 
in 1939. Even then, Justice Frankfurter read a prepared statement in 
which he said he would not express his personal views on controversial 
issues before the court, the same answer that Mr. Estrada has given in 
response to the questions asked him during these proceedings.
  As late as 1949, Sherman Minton refused to appear before the Senate 
Judiciary Committee and was still confirmed. And it was not until 1955, 
when John Marshall Harlan started the modern tradition of judicial 
nominees appearing and testifying before the Senate. And even then, 
confirmation hearings have typically been brief, even in cases of 
Supreme Court nominations. Justice Byron White's confirmation, for 
example, in 1962, lasted less than 2 hours.
  Can it really be the position of the senior Senator from Illinois or 
our colleagues across the aisle who are blocking a vote on this 
nomination that the countless Federal judges and Supreme Court Justices 
who were confirmed following a less extensive investigation than that 
already inflicted on Mr. Estrada all served pursuant to illegal 
confirmations? Did so many of our predecessors in the Senate violate 
the constitutional oath they took on each and every one of those 
occasions? Of course not.
  The nomination of Miguel Estrada is the unfortunate culmination of a 
destructive judicial confirmation process that must stop. It must stop 
for the health and the proper functioning of this institution. It must 
stop so that the confidence of the public in the job we are here 
performing on their behalf can continue. This destructive judicial 
confirmation process must stop, so that Presidents, now and in the 
future, will be able to nominate candidates for judicial office, who 
otherwise might not be willing to subject themselves to this 
unreasonable process that has been so much in evidence during the 
course of Miguel Estrada's confirmation.
  The obstruction must stop. The double standard for Miguel Estrada 
must stop. This filibuster especially must stop.
  Across the country, the American people are insisting that the Senate 
take a vote on this exceptional and inspiring candidate for the Federal 
bench. Newspapers across my State of Texas--the Dallas Morning News, 
the El Paso Times, the Austin American-Statesman, the Fort Worth Star-
Telegram--are all urging that the Democratic leadership permit a vote 
on this nominee.
  I say let's stop the games. Let's stop the double standard. Let's 
vote. Of course, every Senator is entitled to vote according to the 
dictates of their conscience, but let's vote.
  There is no basis for the current unprecedented attempt to deny a 
bipartisan majority of the Senate from the opportunity to even vote up 
or down on this nominee. That has never before happened in the history 
of the United States.
  It should not start today. It should certainly not start against a 
nominee of such exceptional talent. In the words of the Washington 
Post: ``Just vote.''
  I yield the floor.
  The PRESIDING OFFICER (Mr. Graham of South Carolina). The Senator 
from Nevada.
  Mr. REID. Mr. President, I ask unanimous consent that following my 
statement, the Senator from California be recognized to speak on a 
subject not related to this nomination and following that Senator 
Grassley be recognized.
  The PRESIDING OFFICER. Is there objection?
  Mr. CORNYN. Reserving the right to object, and I probably will not, I 
understand the Senator from California wishes to speak on a topic other 
than the nomination of Miguel Estrada. If I am correct, I am wondering 
why, if there is no further debate on the nomination, we cannot proceed 
to a vote. With that said, I withdraw my reservation.
  We do have speakers for this afternoon on the nomination. I would 
hope that we can remain on the nomination. I believe Senator Grassley 
will be here about 2 o'clock.
  Mr. REID. Mr. President, is there objection or is there not 
objection?
  Mr. CORNYN. I ask unanimous consent that Senator Grassley be 
recognized following Senator Feinstein's remarks.
  The PRESIDING OFFICER. Does the Senator object or not object?
  Mr. CORNYN. With that, I withdraw my objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, that was part of the unanimous consent 
request, that Senator Grassley be recognized.
  I have been involved in many debates in the Senate. I have been 
involved in the debate since the beginning on the Estrada nomination. 
Senator Hatch and I have been here until 1 o'clock in the morning. 
Never have I heard the name calling and the statements such as ``heard 
people talking about payback.'' If there are statements that strong, 
they should be inserted in the Record.
  In addition, in my many years in the Senate, I have not heard 
statements such as ``desperate,'' ``laughable,'' ``cynical,'' and then 
part of it I was not able to hear because the Presiding Officer was 
talking to me, but I hope the debate on this matter will remain 
senatorial and not go to name calling. We have a right to speak about 
this nomination for as long as we want until the majority or someone 
files a motion to invoke cloture. That is the way to stop debate.
  There has been a lot of talk about not allowing a vote. We are not 
stopping a vote. The only situation is, the Senate rules are such that 
if you want to have a vote and you want to stop the debate, you invoke 
cloture. It takes 16 or 17 Senators to file a cloture motion. That is 
how it works.
  We need to understand that there are certain issues that are 
important. I recognize there is a lot more to do in this country. We 
have a lot to do. I believe that what is happening here is an effort to 
cover for the fact that there is nothing being done by the majority. 
They could pull off this anytime they

[[Page 4213]]

wanted. If they have other things to do, let the majority move to 
something else or invoke cloture to stop the debate from going forward.
  There have been statements made that this has never happened before. 
Of course, you shouldn't talk to the Abe Fortas family. The fact is, if 
you read a history book, that is how that was stopped, his nomination 
to be Chief Justice of the Supreme Court.
  In the years I have served in the Senate, there have not been, as 
Senator Hatch said, real filibusters, but sometimes those nonreal 
filibusters have stopped nominations from going forward. It is a fact. 
Mr. President, the ABA gold standard--let's talk about that a little 
bit. My friend from Texas talks about this ABA stamp of approval being 
so important. As the Presiding Officer knows, and I am sure most every 
Senator knows, the majority, when they were in the majority before we 
took over, wanted to do away with the ABA. We thought it was a good 
thing that it continue. I still feel that way, in spite of the lack of 
credibility of this nomination.
  The reason I say that is the person who moved forward on this 
nomination for the ABA--I am sure he asked for it and he got it--was a 
man by the name of Fred Fielding. Mr. Fielding, of course, likes 
Estrada. That is very clear.
  Mr. Fielding, who evaluated Mr. Estrada's record and qualifications, 
is a partner at Wiley, Rein & Fielding. While serving on the ABA 
committee to evaluate judicial nominees, Mr. Fielding continued to be 
actively involved in partisan activities, such as working with counsel 
for the Republican National Committee. He served on the Bush-Cheney 
transition team. Of course, then he wrote a report recommending Miguel 
Estrada to the DC Circuit Court.
  If those partisan activities were not enough, take this and see if it 
has any bearing on whether this was an impartial evaluation. While 
still serving on the ABA committee responsible for peer review ratings, 
Fielding cofounded the Committee for Justice with Bush confidant and 
former Bush White House counsel C. Boydon Gray. They formed this 
committee to help the White House with public relations and in its 
effort to pack the court and run ads against Democrats who dare vote 
against their judicial nominees.
  In addition to forming this group, he served as deputy counsel to 
President Nixon. He served on the Reagan-Bush campaign team, the 
Lawyers for Reagan advisory group. With the Reagan-Bush transition 
team, he was conflict-of-interest counsel--which is really interesting 
to me--in that process. He served in the Office of Counsel to the 
President. He worked as deputy counsel to President Reagan. He served 
on the Bush-Quayle campaign. He was Republican National Committee legal 
advisor, campaign counsel to Senator Quayle, and he served as deputy 
director to the Bush-Quayle campaign in 1992 as a senior legal advisor. 
He served then as legal advisor to the Dole-Kemp campaign.
  Virtually all of Mr. Fielding's substantial Federal election 
contributions are for Republican candidates or the Republican National 
Committee. The Bush White House could not have handpicked someone with 
better partisan credentials than Mr. Fielding to evaluate its DC 
Circuit Court nominees--and especially Mr. Estrada. Which lawyers, 
Republican or Democrat, would be courageous enough to be candid with 
any concerns that may have been existing about Mr. Estrada's 
qualifications, temperament, or rating, with an insider like Fielding 
writing the evaluation and recommending the ratings?
  It is noteworthy that when Fielding testified before the Judiciary 
Committee last September, he was asked about the Senate's consideration 
of ideology of judicial nominees, as well as the White House's. When 
asked whether the Republican Presidents he served ever appointed a 
liberal, he said he hoped not.
  Obviously, the White House took ideology into account in choosing 
Estrada. How fortunate it was for the White House that the loyalist, 
Mr. Fielding, was there to recommend such a high rating for Estrada, 
despite his youth, lack of experience, and the types of cases he 
handled in the DC Circuit, and temperament and fairness issues that 
have been raised by many others.
  We do appreciate the ABA's continued efforts, but if there were ever 
a review and revamping that needs to take place, take a look at 
Fielding and Estrada. It is simply unethical for this to take place. If 
there were ever a conflict of interest, this is it.
  Now, there were continued statements by the distinguished junior 
Senator from Texas, who has served in the Senate now going on 2 months, 
about the need for a vote. I agree. As I said earlier, if the majority 
wants a vote, it is up to them. They can have one in 2 days. File a 
cloture motion and it ripens in 2 days. The vote is up to them.
  There are also statements made that the Democratic leaders have 
failed to make a case. If the case is so bad, let them file a cloture 
motion. My friend from Texas said the Democratic leaders--I assume I am 
one of those--are obsessed with obstruction. If that is the case and we 
are name-calling here, it appears with what has happened to the 
economy, the Republican majority must be obsessed with deficits. The 
President takes office and there is a $7 trillion surplus. Now, in this 
year alone, we will have the largest single deficit in the history of 
the world. You see it printed in the paper, that it is $350 billion. 
That is without the disguise that takes place because of the Social 
Security surpluses. It is closer to $500 billion. The surplus of $7 
trillion is history--gone, every penny of it. It is not because of the 
war; it is because of economic policies of this administration and the 
tax cuts.
  Now, it is very difficult for me to do, but I listened, and my friend 
from Texas says what they are doing is cleaning up the mess from the 
last Congress. As I recall, the Senate passed all 13 appropriations 
bills out of committee. But we could not get the House to move on them. 
Why? Because they refused to take votes prior to the November elections 
because they knew the American people would not stand for the draconian 
cuts they had in their bills. So nothing was done. We went on a 
continuing resolution. If there was a mess created last Congress, it 
wasn't by the Senate. We reported out of committee, chaired by Senator 
Byrd, with ranking member Senator Stevens, every one of the 
appropriations bills. We did that. The House refused to take hard 
votes.
  Mr. President, the speaker before me also indicated the fact that Mr. 
Estrada has no judicial experience should not matter, should not be 
determinative. I agree. There are great judges who had no judicial 
experience. We are not making that an issue.
  LULAC. As most everyone knows, the vast majority of Hispanic groups 
in the country, 85 to 90 percent of them, support the position we are 
taking, which is that Miguel Estrada should not be a member of the DC 
Circuit Court until he answers questions and has his memos from when he 
worked at the Solicitor General's Office made public. We believe that 
to be the case. That is why the Hispanic groups support our position.
  LULAC, which is a fine organization, wrote a letter last week. It was 
written to Senators Hatch and Daschle. Among other things, it said:

       We do not subscribe to this view at all and we do not wish 
     to be associated with such accusations.

  What are those? The accusations that the Senate Democrats and 
Congressional Hispanic Caucus are opposing the nomination because of 
his ethnicity.
  What does LULAC say?

       We do not subscribe to this view at all and we do not wish 
     to be associated with such accusations.

  They should just back away from that. The letter says:

       LULAC has had a long and productive working relationship 
     with Senate Democrats and all the members of the 
     Congressional Hispanic Caucus, and our experience is they 
     would never oppose any nominee because of his or her race or 
     ethnicity.
       On the contrary, it is most often the Democratic Members of 
     the Senate who support LULAC'S priority issues and score 
     highest on the national Hispanic leadership agenda 
     congressional scorecard which LULAC

[[Page 4214]]

     helps to compile. It is the Congressional Hispanic Caucus 
     that is the champion of our legislative priority as outlined 
     in the enclosed LULAC legislative platform.

  Mr. President, when talking about LULAC being the determinative 
factor, I think people should read the letter they sent to us.
  I repeat, if the majority wants a vote on Miguel Estrada, the only 
vote they are going to get is whether to invoke cloture. They made a 
decision, obviously, not to go forward on cloture. I suggest we have a 
lot of business to do, and that is what we should be doing.
  I repeat what I said earlier this afternoon that this matter is not 
moving forward because there is no agenda, no plan, no program by the 
majority. This is filling up time so they cannot be criticized for 
doing nothing. If we were not doing this Estrada nomination, we would 
be doing nothing.
  I returned from Nevada a few days ago. People in Nevada are concerned 
about the war. They are concerned about economic problems. They are 
concerned about health care. There are a lot of issues, not the least 
of which is homeland security. I have no concern with the Secretary of 
Homeland Security suggesting that people learn about duct tape and 
plastic wrap, but certainly there is more to homeland security.
  If the majority does not have a program, we do. We have a Democratic 
stimulus package that we think would be most helpful to the American 
people. It would be immediate tax relief, it would go to the middle 
class, and it would not have any impact on the long-term deficit. Let's 
move to that this afternoon. Let's move to it tomorrow. We can have a 
long, full debate on that stimulus package. The longer we wait for a 
stimulus package, the worse it is going to be for our country. But the 
majority does not want to do that because they know the tax plan 
submitted to us by the Bush administration is not going anywhere. The 
Speaker said it was not. My friend, who was on the floor just a minute 
ago, Senator Grassley, initially said he had problems with it. The 
chairman of the Ways and Means Committee in the House and scores of 
Nobel Prize winners in economics have said the plan is no good. That is 
why they are unwilling to move on cloture and want to stay on this 
nomination.
  People wonder why we are on this nomination. My friend, the junior 
Senator from Texas, said: On treaties, we need a two-thirds vote; on 
impeachment, we need a supermajority; and on filibusters, we need 60 
votes. For legislative measures, we need a simple majority. That is 
right. But this is something the Senate has been dealing with, and that 
is a filibuster. That is what is going on here. It is part of the 
Senate tradition.
  Talk about tradition, this is it, and there is a way to get rid of 
it. One way is to invoke cloture, the other way is to get off the 
legislation, and another way would be to do what we have asked be done: 
Let Miguel Estrada come back and answer questions and submit--with 
which he said he has no problem--the memoranda from the Solicitor 
General's Office. He said he does not care. It is being held back by, I 
assume, the administration.
  There are those who ask why we have some questions about Miguel 
Estrada. Let me show my colleagues why we have some concerns.
  Miguel Estrada's answers to the Judiciary Committee's questions, 
summarized on this chart, amount to nothing. The answers he has given 
us do not answer anything. There were a lot of words but no answers.
  We have also asked about these legal memoranda. Why are people trying 
to keep these memoranda from us? Is there a reason? We want to look at 
those memoranda. Those are the only legal records we have where we can 
find out what his legal philosophy might be.
  Some have said he has argued some cases before the Supreme Court, and 
he has handled other cases. From all the cases I handled, one could not 
determine what my political philosophy was. Legal philosophy maybe; 
maybe not because I represented people who had causes they brought to 
me and they paid me and I did the best I could to represent them in 
their causes. We need those legal memoranda to find out about Miguel 
Estrada's philosophy.
  The same applies to his legal philosophy. We do not know what it is. 
We do know there has been a lot of talk about some of the people he 
went to law school with thinking he is a great guy. I have no doubt he 
is a very nice man. I am sure he is a fine man. He appears to have been 
a good law student, but the fact is that some people do not think it 
would be good for him to serve on the court.
  The person who was his supervisor, a man by the name of Paul Bender, 
who was in the Solicitor General's Office, has qualifications that 
match that of Miguel Estrada. He received an LLD magna cum laude from 
Harvard Law School. He wrote as an editor for the Harvard Law Review. 
After graduation, he clerked for a U.S. Supreme Court Justice. He 
worked as a law clerk to Judge Learned Hand, one of the most 
distinguished judges in the history of this country. As I indicated, 
Paul Bender worked as a law clerk for Justice Felix Frankfurt. He was a 
law professor at the University of Pennsylvania, an Ivy League school, 
for 24 years. He was dean of the Arizona State University College of 
Law. He was principal Deputy Solicitor General of the United States 
from 1993 to 1996, and that is where Miguel Estrada worked for him.
  He has since been working at Arizona State University as a law 
professor. He has argued more cases before the Supreme Court than 
Miguel Estrada.
  The point I am trying to make is this guy is not some kind of slouch. 
He said it would not be in the best interest of our country if this man 
set on the court. He was too much of an ideologue. Those were his 
words.
  In more detail, there was some question that Paul Bender really meant 
what he said in his letter to Senator Hatch, dated February 10. He 
makes a number of important points, including the point that some 
Republicans are misrepresenting his position and suggesting that 
Professor Bender has changed his opinion about the nomination, and he 
said that is wrong. Professor Bender, who was Miguel Estrada's direct 
supervisor at the Solicitor General's Office, notes:

       I have not changed my opinion of the nomination, nor have I 
     ever said to anyone I changed my opinion. Someone must have 
     inadvertently given you incorrect information about this 
     letter to Senator Hatch.

  Mr. President, Professor Bender is a person who worked directly with 
Miguel Estrada.
  Then, of course, they bring in all the evaluations showing he did a 
good job. Professor Bender also answered that point. He said every 
person who worked there received the same evaluation. That is what he 
was supposed to do.
  There has been another point raised recently that it is inappropriate 
to answer questions about judicial philosophy; it would be 
inappropriate and would violate the ABA ethics code. In fact, the 
Republican National Committee, through the National Republican Lawyers 
Association, sent out a press release. The ABA said it is the wrong 
thing to do.
  The fact is that judicial candidates should not make pledges how they 
will vote or make statements that appear to commit them on 
controversies or issues likely to come before the court. But they are 
using this to defend the new threshold that people have tried to set 
for Estrada by having him refuse to answer even the most basic 
questions about judicial philosophy or his view of legal decisions 
prior to entrusting him to a lifetime seat on the second highest court 
in the country.
  This is hypocritical, given the fact the Republican Party sued the 
State of Minnesota to ensure that their candidates for judicial office 
could give their views on legal issues without violating judicial 
ethics. Republicans took the case to the U.S. Supreme Court, and they 
won. In an opinion by Justice Scalia, one of Bush's model jurists, the 
Supreme Court ruled that the ethics code did not prevent candidates for 
judicial office from expressing their views on cases or legal issues.
  In its recent letter to Senators Daschle and Leahy, the White House, 
contrary to citing Scalia, cites the dissent by Ginsburg in that case. 
They refuse to mention the word ``Scalia.''

[[Page 4215]]

  Some people may disagree with the judicial philosophy of Antonin 
Scalia but no one can dispute his brilliance. He is a man who I am sure 
is an advocate on that court. When they go behind those curtains, I am 
sure they have a handful to try to handle his logic because he is 
really good. He is a smart man. So we have to accept something that he 
would say, and Scalia has said that anyone coming to a judgeship is 
bound to have opinions about legal issues and the law and there is 
nothing improper about expressing them, so long as a candidate does not 
pledge to always rule a certain way. Specifically, in Republican Party 
of Minnesota v. White, the U.S. Supreme Court overruled ABA model 
restrictions against candidates for elected judicial office from 
indicating their views on legal issues while campaigning or seeking 
judicial office. In his opinion, Justice Scalia wrote that making 
statements of honestly held views would not make a candidate unfit.
  In that majority opinion, Justice Scalia explained that even if it 
were possible to select judges who do not have preconceived views on 
legal issues, it would hardly be desirable to do so. Proof that a 
justice's mind at the time he joined a court was a blank slate in the 
area of constitutional adjudication would be evidence of lack of 
qualification, not lack of bias. And since avoiding judicial 
preconceptions on legal issues is neither possible nor desirable, 
pretending otherwise by attempting to preserve the appearance of that 
type of impartiality can hardly be a compelling state of interest, 
either. That is Scalia. Was that a brilliant statement? One may not 
agree with it but don't they understand what he is saying? Of course, 
they do.
  Accordingly, prior to last summer, some judicial candidates may have 
thought that they could not share their views on legal issues, although 
some tried to answer questions as best they could. Some candidates 
tried to view the ABA modeling rules expansively to try to avoid 
sharing their views.
  Professor McConnell, who was confirmed last year, answered all the 
questions. It is clear that the ethical rules do not prevent a 
candidate from sharing his or her views, a result sought by Republicans 
eager to use these views to try to win the election of Republican 
judges to short-term positions. They went to the Supreme Court to prove 
this. Of course, a judicial candidate cannot be compelled to share his 
views but he refuses to do so at his own peril. That is what we are 
talking about.
  Scalia said that even if it were possible to select judges who do not 
have preconceived views on legal issues, it would hardly be desirable 
to do so. Proof that a justice's mind at the time he joined the court 
was complete--and he uses a Latin word. I did not take much Latin, but 
it is tabula rasa, which means a blank slate--in the areas of 
constitutional adjudication would be evidence of lack of qualification, 
not lack of bias.
  Scalia was quoting from Justice Rehnquist's 1971 opinion in Laird v. 
Tatum in which he refused to recuse himself on a case involving an 
issue on which he had previously expressed a view.
  So expressing a view on a legal issue or case does not violate legal 
ethics and would also be unlikely to require recusal.
  I do not serve on the Judiciary Committee but I have talked to a 
number of my colleagues, and a man by the name of McConnell came before 
the committee and all of the red flags came up on this side of the 
aisle: He is too conservative; Senator Hatch has handpicked him. All of 
these kinds of things came up.
  He appeared before the Judiciary Committee, and even though some may 
have disagreed, I am told, with some of the things he said, they 
thought he answered every question, and he is now a member of a circuit 
court of appeals. He did not hide his views. He answered the questions. 
So people knew what he was talking about.
  We do not know anything about Estrada, other than he is smart. That 
is not enough to get you to be a circuit court judge.
  Saying, as Mr. Estrada has, that you cannot give your view of any 
Supreme Court case without reading the briefs, listening to oral 
argument, conferring with colleagues and doing your own independent 
legal research is just a fancy way of saying I am not going to tell you 
guys anything. It also defies the experiences of law students, lawyers, 
and citizens. It is especially evasive when a nominee has a reputation 
for being outspoken, passionate, and an aggressive debater on legal 
issues and decisions from a strong ideological perspective so much that 
he is a front-runner in right-wing circles for the Supreme Court, and 
the notion that he could be counted on to rule their way, even more so 
than the counsel to the President, Mr. Gonzales.
  Yesterday I saw a prominent faculty member from a law school in this 
metropolitan area. I am not going to give his name. It may embarrass 
him in some way, and I did not get permission to quote him publicly, 
but he is a very conservative law professor, I can guarantee that. He 
came up to me and he said, you would make a mistake going with Estrada. 
Now, this is from a conservative, prominent, constitutional scholar.
  So we are entitled to know his views. He should answer the questions.
  There has been a lot quoted from editorials from this paper and that, 
most of them from Texas, which certainly my friend who just spoke is 
from Texas and that would be the place he should go to look for his 
editorials, but there was a syndicated column written by a man named 
E.J. Dionne, Jr., on last Friday. I am going to quote some things from 
his article, although not everything. It is entitled ``They Started 
It.''

       So why are Senate Democrats filibustering President Bush's 
     nomination of Miguel Estrada to one of the nation's most 
     important courts?.  .  .
       To say the guy is no slouch is an understatement. But the 
     fight over Estrada's nomination to the U.S. Court of Appeals 
     for the District of Columbia Circuit is not simply about him. 
     It is about a concerted effort to pack our courts with 
     representatives of a single point of view. If Democrats just 
     rolled over on Bush's judicial nominations, they would be 
     guilty of oppositional malpractice.
       To understand this battle, you could go back to Richard 
     Nixon's campaign against liberal judges. But let's just look 
     at what happened to Bill Clinton's effort to get two highly 
     qualified nominees onto the D.C. Circuit.

  The DC Circuit is the circuit that Estrada wants to go to.

       Elena Kagan, who served in the Clinton White House, 
     graduated at the top of her class at Estrada's law school and 
     now teaches there, saw her nomination languish in the 
     Republican Senate for 18 months. Allen Snyder clerked for 
     that well-known left-winger, U.S. Chief Justice William 
     Rehnquist, and was also at the top at Harvard Law School. His 
     nomination languished for 15 months.
       If Republicans believe in voting for quality--their 
     argument for Estrada--why didn't they confirm Kagan and 
     Snyder? The answer is obvious: We have before us, sadly, a 
     fierce political struggle for control of the courts.
       It's not good enough to say that the way out of this 
     politicized process is for Democrats to ignore the past and 
     cave in to the Republicans. To do that would be to reward a 
     determined conservative effort to control the courts for a 
     generation. Stage One involved obstructing Clinton's 
     nominees. Stage Two involves using any means necessary--
     including outrageous charges of ethnic bias--to ram 
     conservative choices through.

  I read from the LULAC statement that that simply is invalid.

       The stakes go beyond any single nominee. Do we want courts 
     entirely dominated by one side, or do we want a fair and 
     balanced judiciary?
       Consider these statistics, gathered by the Democratic staff 
     of the Senate Judiciary Committee. There are 13 circuits: 11 
     regional plus the D.C. Circuit and the federal court that 
     handles specialized cases. If all of Clinton's nominees had 
     been approved, the circuits would have been evenly 
     balanced in partisan terms by the time he left office. Six 
     would have had majorities appointed by Democratic 
     presidents, six by Republicans, and one would have been 
     evenly split.
       But if Bush succeeds in filling every open seat, some of 
     them vacant because Clinton nominees were blocked, 11 of the 
     13 circuits will have Republican-appointed majorities. In 
     eight of the 13, Republican nominees would have majorities of 
     2 to 1 or more. Is that a formula for careful, balanced 
     decisionmaking?
       To push attention away from this fundamental question, 
     Republicans who say they don't want a politicized nominating 
     process--and who regularly accuse Democrats of

[[Page 4216]]

     ``playing the race card''--are doing all they can to turn the 
     Estrada fight into an ethnic imbroglio.
       ``If we deny Mr. Estrada the position on the D.C. Circuit, 
     it would be to shut the door on the American dream of 
     Hispanic Americans everywhere,'' Sen. Chuck Grassley (R-Iowa) 
     said in January. Last year, Republican Sen. Trent Lott of 
     Mississippi said of the Democrats: ``They don't want Miguel 
     Estrada because he's Hispanic.''
       Never mind that eight of the 10 Hispanic appellate judges 
     were appointed by Clinton. And never mind that Republicans 
     had no problem blocking such Hispanic Clinton nominees as 
     Enrique Moreno, Jorge Rangel and Christine Arguello.

  Mr. President, the congressional Hispanic Caucus, which wants as many 
Hispanics involved in Government and the judiciary as is possible, 
opposes this man. We believe the debate today is where it was a week 
ago, 2 weeks ago, that there are ways we can move this nomination. Give 
us the information, answer questions, give us the memo, pull the 
nomination, or invoke cloture. That is about all there is.
  I hope the majority leader will make a decision of what he is going 
to do and we can move, I hope tomorrow, to our proposal to give a 
stimulus package to the country--that certainly would be appropriate--
or move to something the majority wants to do.
  I repeat for the third time, one reason we are so tied up is the 
majority has nothing to do. They do not know what they want to move to 
next. I certainly hope we do not spend more time on this nomination.
  The Presiding Officer is going to get the Golden Gavel Award probably 
within the next few months and is spending so much time here presiding. 
For those listening, Golden Gavel, as I understood, is someone who 
presides for 100 hours, and they get a plaque. It is hard to preside 
100 hours during the year. I hope the Presiding Officer does that. It 
is a great way to learn about what goes on in the Senate. I can 
remember doing that myself.
  The Presiding Officer has heard me say this on other occasions: We 
have more we can do. There are other things we should do. We approved 
100 judges during the time we were under control. The only three judges 
who have come before the floor this year we approved unanimously. We 
can continue this debate for a week, 2 weeks, 3 weeks, whatever it 
takes. We can spend time here at night. That is no punishment. The 
majority is the one that has to have Presiding Officers. If you want to 
punish yourselves, that is fine, go ahead and do that. We will have 
someone here making sure everything is done properly.
  Everything has been said about Miguel Estrada. I could take a test on 
Miguel Estrada's life and I would get an A+. I would either do multiple 
choice, true and false, or an essay question. I can do just fine on 
Miguel Estrada. I know everything there is to know about Miguel 
Estrada. But everything we have to know today about Miguel Estrada from 
our perspective is not much. I can tell you he was 17 when he came 
here, he was a fine student at Harvard. Everyone seems to like him. He 
seems like a nice guy. I met him. I saw him on television when he was 
questioned by the Judiciary Committee. He obviously is very bright. He 
is very opinionated. But we do not know all those opinions. We only get 
that from people he has talked with.
  Everything has been said. We are getting to the point where almost 
everyone has said it. But we can repeat it. Who knows, maybe the 
majority will decide, with the help of Mr. Gonzales, the counsel of the 
President, that we can get the information we want. Senators Daschle 
and Leahy wrote a letter and asked for the memos and that he appear 
again. We got a 15-page letter in response. Obviously this is not a 
matter where everyone can compromise. That is too bad.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I have spoken twice about Miguel 
Estrada and have made my views rather well known. However, in response 
to the distinguished Senator from Texas, who is a relative newcomer on 
the Senate Judiciary Committee, I want to just quickly point out what I 
found in my 10 years of service on that committee.
  From the 104th to the 106th Congress, when Republicans controlled the 
Senate, 53 Clinton judges were refused even a hearing in committee; six 
had a hearing but no vote; 11 came out of committee, but no floor vote.
  What is my point in this? My point is there is more than one way of 
filibustering a judge. Right now, there is a filibuster going on over a 
nominee to the D.C. Circuit. However, that filibuster can occur in a 
couple of ways. One, someone can object to unanimous consent to come to 
a vote. A cloture vote can happen. If there are 60 votes there, it ends 
the filibuster.
  But another kind of filibuster is a filibuster in committee when an 
individual is nominated and they wait year after year, some for an 
appellate court as long as 4 years, and never have a hearing. Some of 
President Clinton's nominees withdrew rather than continue this painful 
process.
  The fact of the matter is every Presidential nominee who comes over 
to the Judiciary Committee for review, for a hearing, and for a vote, 
does not receive that review, that hearing, and that vote. That is just 
a fact. So you could say 70 Clinton judicial nominees were essentially 
filibustered by a Republican-controlled Judiciary Committee--53 never 
had a hearing, six had their hearing, but were never brought to a 
committee vote, and 11 were actually reported out of committee, but 
never had a vote in the Senate.
  I do not think what is happening with respect to Mr. Estrada is 
anything that is very unusual. There are good reasons for it. There is 
probably no circuit more sensitive than the DC Circuit. The Presiding 
Officer, who is a very bright individual, understands this. We all 
understand the circuit is evenly split. We all understand that 
President Clinton proposed nominees, two of whom never got a vote, for 
that particular circuit. Therefore, whoever is appointed to this 
circuit has a special predominance in our thinking. We would like to 
know what that individual believes. We would like to know their 
jurisprudence. We would like to be able to know their temperament. Mr. 
Estrada, to a great extent, through his own volition, has prevented 
that from happening.


                                 Energy

  I come to the floor today in another capacity, and that is as a 
member of the Energy and Natural Resources Committee. I quickly bring 
to the Senate recent disclosures about how a number of energy firms 
have engaged in deceptive trading practices to drive up prices for 
consumers in the western energy market. I believe strongly this recent 
evidence requires the Federal Energy Regulatory Commission to take 
additional strong and aggressive steps to keep energy markets from 
continually being abused. I will update the Senate on these revelations 
that have been uncovered in the past year.
  Earlier this month, Jeffrey Richter, the former head of Enron's 
Short-Term California energy trading desk, pled guilty to conspiracy to 
commit fraud as part of Enron's well known schemes to manipulate 
western energy markets. Richter's plea follows that of head Enron 
trader Tim Belden in the fall of 2002. Belden admitted that he schemed 
to defraud California during the Western energy crisis and also plead 
guilty to conspiracy to commit wire fraud.
  The Enron plea came on the heels of FERC's release of transcripts 
from Reliant Energy that reveal how their traders intentionally 
withheld power from the California market in an attempt to increase 
prices. This is one of the most egregious examples of fraud and 
manipulation that affected the western energy market in 2000 and 2001 
and it is clear and convincing evidence of coordinate schemes to 
defraud consumers.
  Let me read just one part of the transcript to demonstrate the greed 
behind the market abuse by Reliant and its traders.
  On June 20, 2000 two Reliant employees had the following conversation 
that reveals the company withheld power from the California market to 
drive prices up. Let me read to you this phone call transcript.

       Reliant Operations Manager 1: ``I don't necessarily foresee 
     those units being run the remainder of this week. In fact you 
     will

[[Page 4217]]

     probably see, in fact I know, tomorrow we have all the units 
     at Coolwater off.''
       Reliant Plant Operator 2: ``Really?''
       Reliant Operations Manager 1: ``Potentially. Even number 
     four. More due to some market manipulation attempts on our 
     part. And so, on number four it probably wouldn't last long. 
     It would probably be back on the next day, if not the day 
     after that. Trying to uh . . .''
       Reliant Plant Operator 2: ``Trying to shorten supply, uh? 
     That way the price on demand goes up.''
       Reliant Operations Manager 1: ``Well, we'll see.''
       Reliant Plant Operator 2: ``I can understand. That's 
     cool.''
       Reliant Operations Manager 1: ``We've got some term 
     positions that, you know, that would benefit.''

  Six months after this incident, as the Senate Energy Committee was 
attempting to get to the bottom of why energy prices were soaring in 
the west, the President and CEO of Reliant testified before Congress 
that the State of California ``has focused on an inaccurate perception 
of market manipulation.''
  Reliant's President and CEO went on to say:

       We are proud of our contributions to keep generation 
     running to try to meet the demand for power in California. 
     Reliant Energy's plant and technical staffs have worked hard 
     to maximize the performance of our generation.

  These transcripts prove otherwise and reveal the truth about market 
manipulation in the energy sector.
  If you think that is a lot of money, remember that the cost of energy 
for California went from $8 billion 1 year to $28 billion the next 
year. So the fraud and the manipulation was huge during that period of 
time.
  Despite this clear and convincing evidence of fraud, on January 31 of 
this year, the Federal Energy Regulatory Commission chose to give 
Reliant a slap on the wrist for this behavior. The company paid only 
$13.8 million to sweep this criminal behavior under the rug and settle 
with FERC.
  Let me turn to some other recent examples that demonstrate how other 
energy companies manipulated the western energy market as Reliant did. 
On December 11 FERC finally released audio tapes that show how traders 
at Williams conspired with AES Energy plant operators to keep power 
offline and drive prices up.
  The tapes depict how on April 27, 2000, Williams outage coordinator 
Rhonda Morgan encouraged an AES operator at the company's Alamitos 
plant to extend a plant outage because the California grid operator was 
paying ``a premium'' for power at the time. The Williams employee 
stated:

       That's one reason it wouldn't hurt Williams' feelings if 
     the outage ran long.

  Later that day, Eric Pendergraft, a high-ranking AES employee called 
to confirm with Ms. Morgan that Williams wanted the plant to stay 
offline by saying:

       You guys were saying that it might not be such a bad thing 
     if it took us a little while longer to do our work? I don't 
     want to do something underhanded, Ms. Morgan responded, but 
     if there is work you can continue to do . . .''

  At this point Mr. Pendergraft interrupted to cut off their suspicious 
conversation, saying:

       I understand. You don't have to talk anymore.

  Clearly, this is evidence of a calculated intent to withhold power to 
raise prices. I find it unconscionable.
  Let's turn to some other examples.
  On January 27, 2003, Michelle Marie Valencia, a 32-year-old former 
senior energy trader for Dynegy was arrested on charges that she 
reported fictitious natural gas transactions to an industry 
publication.
  On December 5, 2002, Todd Geiger, a former vice president on the 
Canadian natural gas trading desk for El Paso Merchant Energy, was 
charged with wire fraud and filing a false report after allegedly 
telling a trade publication about the prices for 48 natural gas trades 
that he never made in an effort to boost prices and company profit.
  These indictments are just the latest examples of how energy firms 
reported inaccurate prices to trade publications to drive energy prices 
higher.
  Industry publications claimed they could not be fooled by false 
prices because deviant prices are rejected, but this claim was 
predicated on the fact that everyone was reporting honestly--which we 
now know they weren't doing.
  CMS Energy, Williams, American Electric Power Company, and Dynegy 
have each acknowledged that its employees gave inaccurate price data to 
industry participants. On December 19 Dynegy agreed to pay a $5 million 
fine for its actions.
  In September an Administrative Law Judge at FERC issued a landmark 
ruling concluding that El Paso Corporation withheld natural gas from 
California and recommended penalty proceedings against the company. 
Since the El Paso Pipeline carries most of the natural gas to Southern 
California, this ruling has tremendous implications. The FERC 
Commissioners are expected to take up this case for a final judgment 
soon.
  This is one of the things I tried to see the President about, but he 
wouldn't see me, because it became very clear during this period of 
time that natural gas going into San Juan, NM, was trading at about $5 
to $6 a decatherm, whereas natural gas going just a short distance away 
into southern California was trading at $60 a decatherm, and natural 
gas forms the basis for the price of electricity. I had hoped if I 
could give this information to the President of the United States at 
that time that he might look into it and we might have prevented some 
of what happened in the western energy markets. Unfortunately--and I 
wrote four letters--he refused to see me on this subject.
  This past summer, California State Senate investigators uncovered how 
Perot Systems--a company which set up the computer system for 
California's electricity market--provided its energy clients with a 
detailed blueprint of how to exploit holes in the state's bidding 
system to drive prices up.
  These have been the latest revelations in a series of energy 
disclosure bombshells that began on Monday, May 6, when the Federal 
Energy Regulatory Commission posted a series of documents on their 
website that revealed Enron manipulated the western energy market by 
engaging in a number of suspect trading strategies.
  These memos revealed for the first time how Enron used schemes called 
``Death Star,'' ``Get Shorty,'' ``Fat Boy,'' and ``Ricochet'' to fleece 
families and businesses in the West.
  By using Death Star, for example, Enron would ``get paid for moving 
energy to relieve congestion without actually moving energy or 
relieving any congestion.'' That is according to their own internal 
memo.
  Just on its face, that is fraud. We are going to move energy without 
moving energy--fraud.
  In another strategy detailed in these memos, Enron would ``create the 
appearance of congestion through the deliberate overstatement of 
loads'' to drive prices up.
  Create ``the appearance of congestion through the deliberate 
overstatement of loads''--fraud.
  The above-mentioned strategy reveals an intentional and coordinated 
attempt to manipulate the western energy market for profit.
  This is an important piece of the puzzle, and some former Enron 
traders helped fill in the blanks.
  CBS news reported in May that former Enron traders admitted that the 
energy company was directly responsible for rolling blackouts in 
California. Yet, interestingly enough, no one has followed up on this 
report.
  Anybody who has ever been through a rolling blackout knows what it is 
like. Everything goes off and you cannot predict where it goes off 
next. Street lights, hospitals--literally everything goes off.
  According to CBS news, the traders said Enron's former President, 
Jeff Skilling, pushed them to trade aggressively in California and told 
them: If you can't do that, then you need to find a job at another 
company or go trade pork bellies.
  The CBS article mentions that Enron traders played a disturbing role 
in blackouts that hit California. The report mentioned specific 
manipulative behavior by Enron on June 14 and 15 in the summer of 2000 
when traders said

[[Page 4218]]

they intentionally clogged Path 26. That is a key transmission path 
connecting northern and southern California. Here is what one trader 
said about that event:

       What we did was overbook the line we had the rights on 
     during the shortage or in a heat wave. We did this in June of 
     2000 when the Bay Area was going through a heat wave and the 
     ISO couldn't send power to the north. The ISO has to pay 
     Enron to free up the line in order to send power to San 
     Francisco to keep the lights on. But by the time they agreed 
     to pay us rolling blackouts had already hit California and 
     the price for electricity went through the roof.

  California lost billions. Yet, according to the traders, Enron made 
millions of dollars by employing this strategy alone.
  On top of all of this, traders disclosed that Enron's manipulative 
trading strategy helped force California to sign expensive long-term 
contracts. It is no surprise that Enron and others were able to profit 
so handsomely during the crisis.
  Financial statements show that revenue and income surged for energy 
trading companies in 2000 and 2001. Many firms such as Duke, Dynegy, 
Enron, Mirant, Reliant, and Williams greatly increased their revenues 
by taking advantage--taking advantage--of the California market.
  And the evidence suggests that other companies were--and may continue 
to be--engaging in these manipulative strategies and that the Enron 
memos may well be the tip of the iceberg. One of the Enron memos said: 
Enron may have been the first to use this strategy, others have picked 
up on it, too.
  Dynegy, Duke Energy, El Paso, Reliant Resources, CMS Energy, and 
Williams all admitted engaging in false ``round-trip'' or ``wash'' 
trades.
  What is a ``round-trip'' or ``wash'' trade, one might ask? ``Round-
trip'' trades occur when one firm sells energy to another and then the 
second firm simultaneously sells the same amount of energy back to the 
first company at exactly the same price. No commodity ever changes 
hands. But when done on an exchange, these transactions send a price 
signal to the market and they artificially boost revenue for the 
company. Fraud again.
  How widespread are ``round-trip'' trades? The Congressional Research 
Service looked at trading patterns in the energy sector over the last 
few years. This is what they reported:

       This pattern of trading suggests a market environment in 
     which a significant volume of fictitious trading could have 
     taken place. Yet since most of the trading is unregulated by 
     the Government, we have only a slim idea of the illusion 
     being perpetrated in the energy sector.

  Consider the following recent confessions from energy firms about 
``round-trip'' trades:

       Reliant admitted 10 percent of its trading revenues came 
     from ``round-trip'' trades. The announcement forced the 
     company's president and head of wholesale trading to both 
     step down.

  DMS Energy announced 80 percent of its trade in 2001 were ``round-
trip'' trades.
  That means 80 percent of all of their trades that year were bogus 
trades where no commodity changed hands, and yet the balance sheets 
reflect added revenue. If that isn't fraudulent, I do not know what is.
  Remember, these trades are sham deals where nothing was exchanged.
  Duke Energy disclosed that $1.1 billion worth of trades were ``round-
trip'' since 1999. Roughly two-thirds of these were done on the 
InterContinental Exchange; that is, the online, nonregulated, 
nonaudited, nonoversight for manipulation and fraud entity run by banks 
in this country. That means thousands of subscribers would see false 
pricing.
  A lawyer for J.P. Morgan Chase admitted the bank engineered a series 
of ``round-trip'' trades with Enron.
  Dynegy and Williams have also admitted to ``round-trip'' trades.
  Although these trades mostly occurred with electricity, there is 
evidence that suggests that ``round-trip'' trades were made in natural 
gas and even broad band.
  By exchanging the same amount of commodity at the same price, I 
believe these companies have not engaged in meaningful transactions but 
deceptive practices to fool investors and drive up energy prices for 
consumers. It is, therefore, imperative that the Department of Justice, 
the Federal Energy Regulatory Commission, the Securities and Exchange 
Commission, the Commodities Futures Trading Commission, and every other 
oversight agency within this Federal Government conduct an aggressive 
and vigorous investigation into all of the energy companies that 
participated in these markets.
  Beyond that, I believe Congress must reexamine what tools the 
Government needs to better keep watch over these volatile markets that 
are, frankly, little understood.
  In the absence of vigilant Government oversight of the energy sector, 
firms have the incentive to create the appearance of a mature, liquid, 
and well-functioning market. But it is unclear, and I think improbable, 
that such a market actually exists.
  The ``round-trip'' trades and the Enron memos raise questions about 
illusions in the energy market. To this end, I believe it is critical 
for the Senate to act soon on the legislation I offered last April to 
regulate online energy trading.
  This week, I plan to reintroduce this legislation with Senators 
Fitzgerald, Lugar, Harkin, Cantwell, Wyden, and Leahy, to subject 
electronic exchanges like Enron On-Line to the same oversight, 
reporting, and capital requirements as other commodity exchanges such 
as the Chicago Mercantile Exchange, the New York Mercantile Exchange, 
and the Chicago Board of Trade.
  This legislation will be called the Energy Market Oversight Act. 
Without this type of legislation, there is insufficient authority to 
investigate and prevent fraud and price manipulation and, also, the 
parties making the trade are not required to keep any records, nor are 
the trades transparent. In other words, they are secret trades with no 
audit trails, no oversight for fraud and manipulation. They cannot 
exist over a regular exchange like that, but the Internet, the online 
trading community is exempt from this oversight. It is a huge loophole, 
and it has cost my State billions.
  I strongly believe that in order to restore confidence in the 
economy, we must bolster the authority of the Securities and Exchange 
Commission, the Federal Energy Regulatory Commission, and the Commodity 
Futures Trading Commission, and other regulatory agencies.
  The marketplace must be fair and transparent, and regulatory bodies 
such as FERC must show they will act in the public interest and release 
to the public all information on fraud and manipulation. This includes 
removing the ``protective order'' FERC has placed on evidence uncovered 
by the State of California and other interested parties, information 
the Commission has on wrongdoing in the energy sector but hasn't 
disclosed. With something as broadly based as energy, as important to 
people as energy, it is unconscionable to have all this information 
protected in a lockbox. It must change.
  I strongly believe families and businesses that suffered during the 
western energy crisis have a right to know the extent of the fraud and 
manipulation that was wrought upon them. So I intend to help ensure 
that FERC fulfills its public duty so this abuse cannot happen again. 
Unfortunately, at this time, none of us can give this guarantee to the 
people of America. And that must change.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Arizona.
  Mr. KYL. Mr. President, I will speak about the nomination of Miguel 
Estrada to be a judge for the District of Columbia Circuit Court of 
Appeals.
  That is, of course, the pending business before the Senate, and it is 
the business which we will complete before we can move on to other 
matters, such as the adoption of a budget, and the consideration of the 
President's economic growth and jobs creation package. But I do not 
think the President is going to back down on his nomination. Yet I 
heard a member of the other side of the aisle yesterday, on television, 
say as far as he was concerned, that

[[Page 4219]]

nomination would never come up for a vote; that is to say, at least 
until he ``answered'' the questions of the Members of the other side.
  I would like to set the record straight. Through an entire day of 
hearings, and some 30 questions that were asked of him, Miguel Estrada 
answered the questions posed. There has been an opportunity to follow 
up with written questions. If Members have not availed themselves of 
that opportunity, then that is their problem, not his.
  Miguel Estrada has answered all of the questions put before him. He 
is one of the most competent, qualified, brilliant lawyers the 
President could have nominated for this position. And really nobody 
disputes that. So the business about not answering questions is really 
a smokescreen. It is a smokescreen for opposition to his candidacy 
based upon the fact that President Bush nominated him and President 
Bush is a conservative President.
  President Bush, I suspect, is more representative of the mainstream 
of the thinking in this country than certain people on the fringe of 
either the Democratic party or the Republican party. So I do not think 
one can simply say because President Bush has nominated somebody that 
they are extremist or rightwing or that they are ideologves. In fact, 
the people who have opposed Judge Estrada's nomination have confirmed 
as much by saying they simply do not know enough about him. So I am a 
little tired of those who say, on the one hand, we do not know enough 
about him but, on the other hand, he is some kind of an ideologve. The 
fact is, he isn't. They do not have anything to suggest he is. It seems 
to me in the great American idiom, it is time to put up or shut up.
  Now, we are not going to shut the Democratic side up. If they want to 
keep talking about Miguel Estrada, they can talk, as far as we are 
concerned, as long as they want to. But they should be addressing his 
nomination instead of speaking about other things or simply not being 
here on the Senate floor debating his confirmation. His confirmation is 
the pending business. If Members have a concern about him, they ought 
to bring it forth. If they have some evidence that he has done 
something in his background that isn't right, then they ought to bring 
it forth. If they have an objection to one of his opinions, then they 
should bring that forth. None of this has happened or will happen 
because, in fact, there is nothing there. That is why they are 
regulated to saying: Well, we just don't know enough about him.
  It is time for those who oppose Miguel Estrada to be honest about 
their opposition, to come forth and talk to the American people about 
it, and find out what the American people think about their opposition 
to Miguel Estrada.
  I put together just a few quotations of people around the country who 
have commented on his nomination. I would like to just read a few of 
them.
  We are all aware of the fact the American Bar Association--whose 
opinion used to be the ``Gold Standard'' for Democrat Members in the 
Senate on judicial nominations--rated Miguel Estrada well qualified 
unanimously. That is their highest rating. And they take into 
consideration everything, from judicial temperament, to educational 
background, to experience. Obviously, if someone were way outside the 
mainstream or too political, the American Bar Association would not 
have unanimously indicated their approval of the candidate.
  This is from Ruben Navarette, who wrote in the Dallas Morning News--
by the way, a very competent journalist who used to write for the 
Arizona Republic, one of my hometown newspapers:

       Miguel Estrada deserves a hearing, and Mr. Bush deserves to 
     have his nominees considered in a timely manner. The only 
     thing preventing that in the case of Mr. Estrada is Democrat 
     fear of the political damage they could sustain from such a 
     nomination.

  So spoken by Ruben Navarette.
  Ron Klain is a former counsel to Vice President Gore. He said this 
just about a year ago:

       I have no doubt that on the bench, Miguel will faithfully 
     apply the precedents of his court, and the Supreme Court, 
     without regard to his personal views or his political 
     perspectives. His belief in the rule of law, in a limited 
     judiciary, and in the separation of powers is too strong for 
     him to act otherwise.

  That goes directly to this business that somehow or other Miguel 
Estrada--though he has not written anything or said anything that would 
lead to this conclusion--could not be trusted to apply the rule of law 
as he understands it from the U.S. Supreme Court.
  Here is a former counsel to Vice President Gore saying he knows 
Miguel Estrada is beyond that, that Miguel Estrada is a person who 
understands his role as a judge, his belief in the rule of law, and a 
limited judiciary, and the separation of powers and, therefore, that he 
would act in accordance with what we understand to be the correct role 
of a judge in these circumstances.
  There was a statement I thought particularly interesting from former 
Solicitors General. Remember that Miguel Estrada was an Assistant 
Solicitor General. This is the office in the Department of Justice that 
actually represents the Government before the U.S. Supreme Court.
  Miguel Estrada has argued 15 cases before the U.S. Supreme Court. In 
a letter signed by colleagues from the Office of the Solicitor General 
under Presidents Clinton and George H. W. Bush, dated September 19, 
2002, I quote:

       Miguel is a brilliant lawyer, with an extraordinary 
     capacity for articulate and incisive legal analysis and a 
     commanding knowledge of an 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 it stands, and in particular for the rule of law.

  Again, Democrats and Republicans alike affirm the fact that Miguel 
Estrada is above partisan politics and appreciates his role as a judge, 
applying the law of the precedents of the courts and of the Supreme 
Court.
  Seth Waxman was former Solicitor General during the Clinton 
administration, a well-respected lawyer. This is what he wrote:

       During the time Mr. Estrada and I worked together, he was a 
     model of professionalism and competence. In no way did I ever 
     discern that the recommendations Mr. Estrada made or the 
     analyses he propounded were colored in any way by his 
     personal views--or indeed that they reflected any 
     consideration other than the long-term interests of the 
     United States.

  It is astounding to me that our friends on the other side of the 
aisle, despite the recommendations of high level Clinton administration 
lawyers affirming the professionalism and honesty and credentials of 
Miguel Estrada, would still contend that they don't have enough 
information about him. I suggest to my colleagues that they consult 
some of their friends in the former Clinton administration, former 
Solicitors General, and ask them about Miguel Estrada. If they are 
saying they don't know enough about him, there are some very highly 
qualified people to whom they could speak. I doubt there is anybody 
they could speak to who knows Miguel Estrada well that wouldn't confirm 
his qualifications to be on the court.
  Instead they are relegated to dark, suspicious comments such as, 
``Well, maybe he believes things that we don't know about because he 
just hasn't answered our questions thoroughly enough.'' I suggest they 
talk to those who have worked with him on a day-in and day-out basis. 
They will find that he is not only highly qualified but very fair.
  Just perhaps one or two other comments. Then I will yield to my 
friends.
  Rick Davolina, LULAC national president, said:

       We are confident that Mr. Estrada will fulfill the duties 
     of the United States Circuit Judge for the District of 
     Columbia Circuit with fairness, intelligence, and commitment 
     to the ideals of the United States.

  I had a call from one of the local LULAC officials over the weekend 
who confirmed LULAC's position and support of his nomination.
  Elizabeth Lisboa-Farrow, chair of the U.S. Hispanic Chamber of 
Commerce, said:

       From his humble beginnings as an immigrant from Honduras 
     who achieved a stellar

[[Page 4220]]

     academic career . . . to his varied and impressive 
     achievements in the Justice Department and private firms, Mr. 
     Estrada has shown himself to be one of superior talents and 
     accomplishments.

  From the Hispanic community, from newspapers around the country, from 
former Clinton administration officials and others who know Miguel 
Estrada well, there is no doubt in their mind that he is not only 
qualified to serve but that he would do so applying the precedents of 
his court and the U.S. Supreme Court.
  Therefore, I again ask my colleagues again on the other side of the 
aisle, if you have concerns about Miguel Estrada, bring them to the 
floor. Let's talk about them. Let's debate them. But at the end of the 
day, it is only fair to give Miguel Estrada a vote so that he can be 
confirmed as a judge on the DC Circuit Court of Appeals.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I compliment my friend and colleague from 
Arizona and wish to join him in urging our colleagues to vote in favor 
of Miguel Estrada to be on the DC Circuit Court of Appeals. Senator Kyl 
said it all and said it well. I compliment him. I compliment Senator 
Hatch for his leadership.
  I urge my colleagues to support Miguel Estrada. I did something I 
haven't done in my many years in the Senate. I suggested to some of our 
colleagues that because, in the last couple of years, we had had a hard 
time moving forward circuit court nominees before the Senate, that we 
individually take one or two of these nominees and more or less adopt 
them, get to know them well and encourage their nomination.
  We had good success. I thank my friend, the former chairman of the 
Judiciary Committee. We had good success in moving through a lot of the 
district court nominees. Senator Leahy was very accommodating with us. 
We moved through four Oklahoma judges to serve on the district court. 
It didn't take very long. A lot of district court nominees were 
confirmed.
  But on the appellate level, on the circuit court level, it wasn't the 
same. In fact, I believe in the last 2 years, the first 2 years, or the 
107th Congress, President Bush submitted 32 nominees to the circuit 
court and only 17 were confirmed--53 percent. That compares to 
President Clinton. In his first 2 years he got 87 percent; President 
Bush, 96 percent; and President Reagan, 95 percent. This President Bush 
in the 107th Congress only got 53 percent.
  I suggested to our colleagues, let's take special attention, 
individual Senators take special attention to some of the nominees and 
then encourage that they be confirmed. The reason I would do that is 
obviously home State Senators are going to encourage their particular 
nominees for district court, but maybe when you talk about the circuit 
court, since it applies to many States, many areas, it doesn't have 
quite the same degree of support from an individual Senator.
  It so happens on Miguel Estrada, Senator Pete Domenici and I both 
decided that we would take particular interest in Miguel Estrada. By 
that we got to know him. We had meetings with him. We had press 
conferences on his behalf. We encouraged others to join in the effort 
to confirm Miguel Estrada. We were not successful in the last 2 years. 
He was eventually approved by the committee but not on the floor of the 
Senate.
  That is with great regret. Now we are before the Senate trying to 
confirm Miguel Estrada. We haven't been able to get a vote. We have 
been talking for a long time. Now people want to talk, I don't know how 
long, but we will spend some time because this is an outstanding 
nominee.
  I got to know him. He is a truly a success story. He immigrated to 
this country from Honduras at age 17. Then he graduated magna cum laude 
and Phi Beta Kappa from Columbia. He also graduated magna cum laude 
from Harvard Law School where he distinguished himself as editor of the 
Harvard Law Review. What a remarkable accomplishment for somebody who 
immigrated to this country at age 17 and could hardly speak English.
  Since then he has argued 15 cases before the U.S. Supreme Court. He 
won 10 of those cases. Find the number of attorneys in the United 
States who have argued 15 cases before the Supreme Court. It is a 
pretty elite group. Almost by definition he is an outstanding attorney 
or he would not have argued 15 cases before the Supreme Court.
  He was rated unanimously well qualified by the American Bar 
Association, its highest possible rating. President Clinton's Solicitor 
General, a Democrat, Seth Waxman, had this to say about Miguel Estrada:

       During the time Mr. Estrada and I worked together, he was a 
     model of professionalism and competence. 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.

  That is from President Clinton's Solicitor General. Some people are 
saying, we want to see his notes when he was giving advice or memos as 
Assistant Solicitor General. That should not be done.
  Ron Klain, former counsel to Vice President Gore, wrote to Senator 
Leahy on January 16, 2002:

       Miguel is a person of outstanding character, tremendous 
     intellect, and with a deep commitment to the faithful 
     application of precedent. Miguel will rule justly towards all 
     without showing favor towards any group or individual.

  Is there any higher standard that we should hold our judges to than 
that? This is from the counsel to former Vice President Gore, also a 
Democrat.
  Mr. Estrada has extensive appellate practice, and he is widely 
regarded as one of the country's best appellate lawyers. He is 
currently a partner in the prestigious Washington, DC, law firm of 
Gibson, Dunn & Crutcher. He also clerked for Judge Kearse, President 
Carter's well-respected appointee to the Second Circuit Court of 
Appeals. In 1998 and 1999, he clerked for Supreme Court Justice Anthony 
Kennedy. It goes without saying that somebody who clerks for a Supreme 
Court Justice is an exceptionally talented individual. He served as 
Assistant Solicitor General of the United States under both Presidents 
Clinton and Bush. He held that position for 5 years.
  This is an exceptionally well-qualified individual. He has performed 
significant pro bono service, including representation of a death row 
inmate before the Supreme Court, a case to which he dedicated 
approximately 400 hours.
  So I don't think anyone can dispute that he is well qualified, and he 
is an outstanding success story. I find no legitimate reason whatsoever 
to oppose his nomination. I am very concerned about colleagues trying 
to say, ``Now, you are going to have to get 60 votes to confirm Miguel 
Estrada as a Federal judge.'' I am concerned about that.
  I have been in the Senate for 22 years. I have heard people talk 
about filibustering judges, but it has never happened in my Senate 
career. We have filed cloture a few times--maybe for procedural 
reasons, or whatever; but most of the time, even when cloture was 
filed, it was granted overwhelmingly, with 85 or 90 votes in most 
cases. Those were not filibusters. The only successful filibuster goes 
back to 1968. So that is the only filibuster of a judicial nominee that 
has happened in the history of the United States. That was on Abe 
Fortas' nomination. It was filibustered by Democrats and Republicans. I 
am not saying it was right. I think it was probably wrong. But this 
hasn't been done since 1968.
  I think it has been implied that many people in the Democrat Party 
are talking about filibustering several judges. So we are going to have 
a new standard now--that confirmation of judges is not 50 or 51, but it 
is going to be 60. We didn't do that with Judge Bork, Justice Thomas, 
or Justice Rehnquist, or in previous nominations that were fairly 
controversial.
  I urge my colleagues to think about this. If they are going to march 
down this road and say you need 60 votes to confirm Mr. Estrada and 
others, that may be a serious mistake. One may look back on his or her 
Senate career and say we made a mistake. Both sides can play that game. 
I don't want this

[[Page 4221]]

side to play that game, and I don't want the other side to play that 
game. Two wrongs don't make a right. We should not make the first bad 
mistake on Miguel Estrada.
  Other people have said they want to have more information. They don't 
know enough about this young man. Compare. What did we know about many 
of the judges who have been confirmed? They don't commit themselves on 
how they would rule on a future case. Well, I hope they don't. They 
should not. He is not turning over his memoranda that he did as 
Assistant Solicitor General. First, those are confidential attorney-
client memoranda, which were not requested by the seven previous 
nominees who worked in the Solicitor General's Office. We didn't 
request them previously, and we should not today. Every former 
Solicitor General, including Democrats Archibald Cox, Seth Waxman, Drew 
Days, and Walter Dellinger, signed a letter to the Judiciary Committee 
stating their opposition to the production of these documents, saying, 
``By doing that, they would have a debilitating effect on the ability 
of the Department of Justice to represent the United States before the 
Supreme Court.''
  Heaven forbid, if you have somebody working for a client saying, I 
cannot give a memo because it might not be politically correct, or it 
might not help me if I wish to be confirmed before the Senate in the 
future, that is a terrible idea. Seth Waxman, a Democrat Solicitor 
General under President Clinton, already said he represented the 
interests of the United States. That may not have coincided with his 
interest. It was in the interest of his client on whose behalf he was 
advocating.
  Also, it so happens--I believe Mr. Estrada has said he would be 
willing to come forward with those, but the Justice Department rightly 
says that would be a very negative precedent to set, and they are 
rightfully saying they should be withheld, as all the former living 
Solicitors General have said. They are correct.
  Again, we didn't request these memoranda from the seven other 
nominees who worked as Assistant Solicitors General. We should not do 
it in this case.
  Somebody said: What about Judge Paez and Judge Berzon? They were both 
on the Ninth Circuit Court of Appeals, the most liberal circuit court 
in the country. Yes, there was a cloture vote on both of them. I will 
note that the cloture vote on both of them was--first, Marsha Berzon's 
was 86 to 13. Cloture on Richard Paez was 85 to 14. So there wasn't a 
filibuster on those two judges. We had a vote. I voted against them. I 
think I made a good vote. They were confirmed.
  We should vote on Miguel Estrada, and if people don't wish to confirm 
him, they can vote no. The fact is, they know he would be confirmed, so 
they are trying to deny him a vote. I urge my colleagues to step back a 
little bit and ask what would this be doing to the Senate? The 
Constitution gives the right to the Senate in the confirmation to give 
advice and consent. That implies a vote. We should vote on Miguel 
Estrada and we should confirm Miguel Estrada. I have every confidence, 
having known him probably better than almost any circuit court nominee 
in my 22 years, that he will make an outstanding circuit court judge, 
one that we will be proud to have confirmed, one that the people who 
are obstructing his confirmation will regret. I think they will soon 
find out that he is an outstanding nominee and he will make an 
outstanding judge.
  I urge my colleagues who have maybe participated in dragging this 
thing on--and we have been on it for a couple weeks--after talking to 
Majority Leader Frist, I think we will be on it for a long time. Mr. 
Estrada deserves a vote. He deserves our vote of confidence, and he 
deserves to be confirmed by the Senate.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NICKLES. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                  conference agreement on h.j. res. 2

  Mr. NICKLES. Mr. President, I submit for the Record  a table which 
summarizes the conference agreement on H.J. Res. 2, the fiscal year 
2003 omnibus appropriations resolution. This table was prepared by my 
staff based upon the estimates of the Congressional Budget Office.
  I congratulate our majority leader and the chairman of the 
Appropriations Committee for working to provide no more in total 
appropriations for fiscal year 2003 than was requested by the 
President. The conference agreement on H.J. Res. 2 contains $397.855 
billion in discretionary spending which, when added to amounts in the 
Defense and military construction appropriations bills already enacted, 
totals $763.184 billion in fiscal year 2003 discretionary spending. 
These totals increased from the Senate-passed levels primarily to 
accommodate additional defense spending requested by the President. The 
totals also include a 0.65 percent across-the-board reduction, 
amounting to $2.622 billion, from most accounts in the 11 appropriation 
bills included in the conference agreement.
  Compared to fiscal year 2002, total discretionary spending after 
enactment of H.J. Res. 2 will grow by 3.9 percent. Defense 
discretionary spending will grow by 8.7 percent, and domestic 
discretionary spending will decline by 0.7 percent.
  Compared to fiscal year 2002 less spending for one-time nonrecurring 
projects, total discretionary spending after enactment of H.J. Res. 2 
will grow by 6.2 percent, defense discretionary spending will grow by 
9.1 percent, and domestic discretionary spending will grow by 3.4 
percent.
  The conference agreement includes $25.385 billion in advance 
appropriations, an increase of $2.227 billion over the level of advance 
appropriations provide in fiscal year 2002 appropriations bills.
  The conference agreement on H.J. Res. 2 also includes several 
increases in mandatory spending programs. The increased spending, which 
totals $4.257 billion in 2003 and $54.792 billion from 2003 to 2013 
includes changes in agriculture payments for drought, payments to 
physicians and rural hospitals, and TANF payments to States.
  Mr. President, I ask for unanimous consent that a table displaying 
the Budget Committee scoring of the conference agreement on H.J. Res. 2 
and enacted appropriations, with a comparison to 2002, be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

    CBO ESTIMATES OF THE CONFERENCE APPROPRIATIONS BILLS FOR FY 2003
                           COMPARED TO FY 2002
               [Budget authority, in billions of dollars]
------------------------------------------------------------------------
                                                                 Percent
                                                    Senate      increase
            Subcommittees              2002\1\  appropriations     or
                                                   bills\2\     decrease
------------------------------------------------------------------------
Divisions A-K and Defense and
 Military Construction Bills:
  Agriculture.......................    17,171       17,995          4.8
  CJS...............................    42,995       41,387         -3.7
    Defense.........................     0.560        0.574          2.5
    Nondefense......................    42.435       40.813         -3.8
  Defense...........................   334.113      354.830          6.2
  DC................................     0.607        0.512        -15.7
  Energy and Water..................    25.334       26.164          3.3
    Defense.........................    15.164       15.898          4.8
    Nondefense......................    10.170       10.266          0.9
  Foreign Ops.......................    16.433       16.300         -0.8
  Interior..........................    19.135       19.057         -0.4
  Labor, HHS........................   127.659      133.399          4.5
  Legislative.......................     3.254        3.360          3.3
  Mil Con...........................    10.604       10.499         -1.0
  Transportation\3\.................    23.095       21.200         -8.2
    Defense.........................     0.440        0.340        -22.7
    Nondefense......................    22.655       20.860         -7.9
  Treasury, Postal..................    18.515       18.326         -1.0
  VA, HUD...........................    95.758       90.350         -5.6
    Defense.........................     0.153        0.144         -5.9
    Nondefense......................    95.605       90.206         -5.6
  Deficiencies......................    -0.350        0.000     ........
    Defense.........................    -0.196        0.000     ........
    Nondefense......................    -0.154        0.000     ........
      Total, Divisions A-K..........   734.323      753.379          2.6
        Defense.....................   360.838      382.285          5.9
        Nondefense..................   373.485      371.094         -0.6
Division: Classified Defense             0.000       10.000     ........
 Programs...........................
Division N:
  Election Reform--Title I..........     0.000        1.500     ........
  Wildland Fire Management--Title        0.000        0.825     ........
   III..............................
  Fisheries Disasters--Title V......     0.000        0.100     ........
  0.65 percent across the board          0.000       -2.622     ........
   rescission on accounts (with
   exceptions) in 11 bills--Title V.
      Subtotal......................     0.000       -0.197     ........
Division P: U.S.-China Commission...     0.000        0.002     ........
Total, Discretionary................   734.323      763.184          3.9
  Defense...........................   360.838      392.175          8.7
  Nondefense........................   373.485      371.009         -0.7
One-time, non-recurring projects\4\.    15.946        0.000     ........
  Defense...........................     1.338        0.000     ........
  Nondefense........................    14.608        0.000     ........
Total, Discretionary less one-time..   718.377      763.184          6.2
  Defense...........................   359.500      392.175          9.1
  Nondefense........................   358.877      371.009          3.4
Total, without enacted Defense and    ........      397.855     ........
 Mil Con............................
  Defense...........................  ........       26.846     ........

[[Page 4222]]

 
  Nondefense........................  ........      371.009     ........
Memo:
  Mandatory Items in Division N:....
    Title II--Agriculture Drought     ........        3.084     ........
     Relief, as amended.............
  Title IV--Medicare Physicians.....  ........        0.800     ........
    Title IV--Rural Hospitals.......  ........        0.250     ........
    Title IV--Welfare Payments to     ........        0.098     ........
     States.........................
    Title IV--Ql-1 Program..........  ........        0.025     ........
    Title VII--Bonneville Power       ........        0.000     ........
     Administration.................
        Total.......................  ........        4.257     ........
Total, with Mandatories.............  ........      767.441     ........
Total, without enacted Defense and    ........      402.112     ........
 Mil Con............................
------------------------------------------------------------------------
\1\The 2002 figures include the levels enacted in the FY 2002
  appropriations bills, as well as the $24.2 billion in BA in P.L. 107-
  206 (the Emergency Supplemental Appropriations and Rescissions, 2002),
  as estimated by CBO.
\2\This represents Divisions A through P of the Conference Report on
  H.J. Resolution 2 (Making Further Continuing Appropriations for the
  Fiscal Year 2003, and for Other Purposes), as well as the FY 2003
  Defense (P.L. 107-248) and Military Construction (P.L. 107-249)
  appropriations bills. These bills also include $25.385 billion in
  advance appropriations, $2.227 billion more than the $23.158 billion
  in advances for the FY 2002 appropriation bills.
\3\Includes mass transit budget authority of $1.445 billion.
\4\The $15.946 billion in one-time, nonrecurring projects and activities
  were identified in Attachment C of OMB Bulletin 02-06, Supplement No.
  1, dated October 4, 2002.
 
Source: Congressional Budget Office; Senate Budget Committee Republican
  Staff.


                                                H.J. RES. 2: 2003 OMNIBUS APPROPRIATIONS BILL, CONFERENCE
                                                       [Fiscal year 2003, in millions of dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               2003     2004     2005     2006     2007     2008     2009     2010     2011     2012     2013    2004-13
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mandatory:
  Division N:
    Title 2--Agricultural assistance:
      BA                                       3,084       60       47      54      (10)    (213)    (375)    (498)    (603)    (703)    (849)   (3,090)
      O....................................    3,137      535      184     153       62     (168)    (344)    (479)    (599)    (702)    (848)   (2,206)
    Title 4--Medicaid:
      Section 401:
        TANF:
          BA...............................       64  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......  ........
          O................................       71        6        3      (7)  .......      (6)      (3)  .......  .......  .......  .......       (7)
        Transitional Medicaid:
          BA...............................       34       85        9       3   .......  .......      (2)  .......  .......  .......  .......       95
          O................................       32       80       11       3   .......  .......       1   .......  .......  .......  .......       95
            Total, section 401:
              BA...........................       98      855        9       3   .......  .......      (2)  .......  .......  .......  .......       95
              O............................      103       86       14      (4)  .......      (6)      (2)  .......  .......  .......  .......       88
      Section 402(a)--physicians' fee
       schedule:
              BA...........................      800    2,200    3,000   4,000    5,200    6,500    7,300    7,000    6,300    5,800    5,500    52,800
              O............................      800    2,200    3,000   4,000    5,200    6,500    7,300    7,000    6,300    5,800    5,500    52,800
      Section 402(b)--Hospitals:
        BA.................................      250       30  .......  .......  .......  .......  .......  .......  .......  .......  .......       30
        O..................................      250       30  .......  .......  .......  .......  .......  .......  .......  .......  .......       30
      Section 403--Ql-1 program:
        BA.................................       25  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......  ........
        O..................................       25  .......  .......  .......  .......  .......  .......  .......  .......  .......  .......  ........
            Total, title 4:
              BA...........................    1,173    2,315    3,009   4,003    5,200    6,500    7,298    7,000    6,300    5,800    5,500    52,925
              O............................    1,178    2,316    3,014   3,996    5,200    6,494    7,298    7,000    6,300    5,800    5,500    52,918
    Title 7--Bonneville Power
     Administration:
      BA...................................  .......      300      300     100   .......  .......  .......  .......  .......  .......  .......      700
      O....................................  .......       60      210     260      140       30   .......  .......  .......  .......  .......      700
              Total, H.J. Res. 2,
               mandatory:
                BA.........................    4,257    2,675    3,356   4,157    5,190    6,287    6,923    6,502    5,697    5,097    4,651    50,535
                O..........................    4,315    2,911    3,408   4,409    5,402    6,356    6,954    6,521    5,701    5,098    4,652    51,412
--------------------------------------------------------------------------------------------------------------------------------------------------------

  Mr. LEAHY. Mr. President, I will speak for a few minutes regarding 
the debate on Mr. Estrada. The reason I say this, when I came on the 
floor I heard a great deal of discussion about the Hispanic National 
Bar Association. I heard from my friends on the other side of the aisle 
the current president of the Hispanic National Bar Association has led 
the support of this organization for Mr. Estrada's nomination, which is 
so. However, it jogged my memory that this morning I received a letter 
from 15 former presidents of the Hispanic National Bar Association. 
These 15 take an entirely different position than the current 
president: 15 well-respected former national leaders of this important 
bar association. They date back to the founding of it in 1972.
  They have written to the Senate to oppose this nomination. They wrote 
to Senator Hatch and they wrote to Senator Frist, as well as to Senator 
Daschle and myself. I am sure the speakers earlier this morning, when 
they spoke of the importance of the position of the president of the 
Hispanic National Bar Association, were probably not aware that but one 
is in favor of Mr. Estrada and 15 were opposed. It is very weighty 
opposition for 15 prior presidents of the Hispanic National Bar 
Association, based on the criteria to evaluate judicial nominees that 
this association has formally used since 1991, which has been the 
practical standard for the past 30 years, to make this assessment.
  In addition to the candidate's professional experience and 
temperament, the criteria for endorsement includes the extent to which 
a candidate has been involved, supportive of, and responsive to the 
issues, needs, and concerns of Hispanic Americans and, secondly, the 
candidate's demonstrated commitment to the concept of equal opportunity 
and equal justice under the law.
  In the view of the overwhelming majority of the living past 
presidents of the Hispanic National Bar Association, Mr. Estrada's 
record does not provide evidence that meets those criteria. But they 
say his candidacy ``falls short in these respects.''
  They conclude:

       We believe that for many reasons including: his virtually 
     non-existent written record, his verbally expressed and 
     unrebutted extreme views, his lack of judicial or academic 
     teaching experience (against which his fairness, reasoning 
     skills and judicial philosophy could be properly tested), his 
     poor judicial temperament, his total lack of any connection 
     whatsoever to, or lack of demonstrated interest in the 
     Hispanic community, his refusals to answer even the most 
     basic questions about civil rights and constitutional law, 
     his less than candid responses to other straightforward 
     questions of Senate Judiciary Committee members, and because 
     of the Administration's refusal to provide the Judiciary 
     Committee the additional information and cooperation it needs 
     to address these concerns, the United States Senate cannot 
     and must not conclude that Mr. Estrada can be a fair and 
     impartial appellate court judge.

  This is a significant letter because during the tenure of these past 
presidents, the Hispanic National Bar Association has had a fair 
nonpartisan record of following its criteria, and endorsing or not 
endorsing or rejecting nominees, regardless of whether the nominee is 
Republican or Democrat. They follow the same criteria for Republicans 
and Democrats. The HNBA has been at the forefront of the effort to 
increase diversity on the Federal

[[Page 4223]]

bench and improve the public confidence among Hispanics and others in 
the fairness of the Federal courts. They have supported Republican 
nominees as well as Democratic nominees. But these 15 individuals, who 
devoted a great deal of time in their legal careers to advancing the 
careers of Hispanics in the legal community, have felt compelled 
publicly to oppose the Estrada nomination, although they publicly 
supported both Democrats and Republicans before. This one they opposed.
  I ask unanimous consent the letter that was sent to me, to Senator 
Hatch, to Senator Frist, and to Senator Daschle be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          HNBA's Past Presidents' Statement, February 21, 2003

       We the undersigned past presidents of the Hispanic National 
     Bar Association write in strong opposition to the nomination 
     of Miguel A. Estrada for a judgeship on the Court of Appeals 
     for the District of Columbia Circuit.
       Since the HNBA's Establishment in 1972, promoting civil 
     rights and advocating for judicial appointments of qualified 
     Hispanic Americans throughout our nation have been our 
     fundamental concerns. Over the years, we have had a proven 
     and respected record of endorsing or not endorsing or 
     rejecting nominees on a non-partisan basis of both Republican 
     and Democratic presidents.
       In addition to evaluating a candidate's professional 
     experience and judicial temperament, the HNBA's policies and 
     procedures governing judicial endorsements have required that 
     the following additional criteria be considered:
       1. The extent to which a candidate has been involved in, 
     supportive of, and responsive to the issues, needs and 
     concerns of Hispanic Americans, and
       2. The candidate's demonstrated commitment to the concept 
     of equal opportunity and equal justice under the law.
       Based upon our review and understanding of the totality of 
     Mr. Estrada's record and life's experiences, we believe that 
     there are more than enough reasons to conclude that Mr. 
     Estrada's candidacy falls short in these respects. We believe 
     that for many reasons including: his virtually non-existent 
     written record, his verbally expressed and un-rebutted 
     extreme views, his lack of judicial or academic teaching 
     experience, (against which his fairness, reasoning skills and 
     judicial philosophy could be properly tested), his poor 
     judicial temperament, his total lack of any connection 
     whatsoever to, or lack of demonstrated interest in the 
     Hispanic community, has refusals to answer even the most 
     basic questions about civil rights and constitutional law, 
     his less than candid responses to other straightforward 
     questions of Senate Judiciary Committee members, and because 
     of the Administration's refusal to provide the Judiciary 
     Committee the additional information and cooperation it needs 
     to address these concerns, the United States Senate cannot 
     and must not conclude that Mr. Estrada can be a fair and 
     impartial appellate court judge.
           Respectfully submitted,
       Signed by 15 past HNBA presidents.

  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________