[Congressional Record (Bound Edition), Volume 149 (2003), Part 4]
[Senate]
[Pages 4275-4301]
[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. 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 Circuit.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I rise in favor of the nomination of Miguel 
Estrada for the United States Court of Appeals for the District of 
Columbia Circuit.
  We started the debate on this nomination during the week of February 
3. We debated the entire week of February 10. And now here we are again 
in our third week of debate, all because

[[Page 4276]]

some of my Democratic colleagues refuse to allow an up-or-down vote on 
this nomination.
  The renowned former Senator from Massachusetts, Henry Cabot Lodge, 
once said that ``[t]o vote without debating is perilous, but to debate 
and never vote is imbecile.'' Yet that is precisely what is happening 
on Mr. Estrada's nomination. We are debating and debating and debating 
the same points again and again but never actually voting on the 
nomination. Enough is enough. It is time to vote.
  My Republican colleagues and I have tried to get an agreement to vote 
on Mr. Estrada's nomination no fewer than three separate times. Each 
time, our Democratic colleagues blocked our efforts. I even suggested 
that we agree to debate on this nomination for 10 hours, then 20 hours, 
then up to 50 hours before voting. Fifty hours. That is 10 hours of 
solid debate every day for the entire week, and 2 \1/2\ times the 
amount of time that we give for a reconciliation bill around here. But 
each time, our Democratic friends rejected our entreaties, without 
hesitation or even good explanation.
  We have to ask ourselves why our colleagues across the aisle are so 
intent on preventing a vote on Mr. Estrada's nomination. I have heard 
all of their arguments. They allege he did not answer their questions, 
that he lacks judicial experience, and that he cannot be confirmed 
before they see confidential and privileged memos he authored at the 
Solicitor General's Office, just to name a few. And those memos were 
his recommendations to the Solicitor General with regard to appeal 
decisions, with regard to certiorari decisions, with regard to amicus 
curiae decisions--very specific information that, if compromised and 
forced to be given to the Congress of the United States, could chill 
any future honest recommendations.
  But all of these arguments they have raised are reasons they believe 
Mr. Estrada should not be confirmed. As misguided and wrong as they 
are, these are reasons my Democratic friends believe they should vote 
against Mr. Estrada. None of those arguments justifies the continuation 
of this filibuster to prevent an up-or-down vote on Mr. Estrada's 
nomination.
  So I say now to my Democratic friends: Vote for him or vote against 
him. That is what we should do. If you don't like Mr. Estrada, if you 
don't believe he has the capacity to be a circuit court of appeals 
judge, vote no. But if you do, as I think a majority does in this body, 
we would vote aye. Do as your conscience dictates you must, but do not 
prolong the obstruction of the Senate by denying a vote on this 
nomination. Do not continue to treat the third branch of our Federal 
Government--the one branch intended to be insulated from political 
pressures--with such disregard that we filibuster its nominees. Do not 
perpetuate this campaign of unfairness. Vote for him or vote against 
him but just vote.
  Now, an editorial that appeared in the Washington Post last week 
summed it up well. This editorial, aptly entitled, ``Just Vote'' 
observed--let me read the one part I want to emphasize, though I would 
not mind reading the whole thing--

       The arguments against Mr. Estrada's confirmation range from 
     the unpersuasive to the offensive. He lacks judicial 
     experience, his critics say--though only three current 
     members of the court had been judges before their 
     nominations. He is too young--though he is about the same age 
     as Judge Harry T. Edwards was when he was appointed [by 
     President Carter] and several years older than Kenneth W. 
     Starr was when he was nominated. Mr. Estrada stonewalled the 
     Judiciary Committee, they claim, by refusing to answer 
     questions--though his answers were similar in nature to those 
     of previous nominees, including many nominated by Democratic 
     presidents. The administration refused to turn over his 
     Justice Department memos--though no reasonable Congress ought 
     to be seeking such material, as a letter from all living 
     former solicitors general attests. He is not a real Hispanic 
     and, by the way, he was nominated only because he is 
     Hispanic--two arguments as repugnant as they are incoherent. 
     Underlying it all is the fact that Democrats don't want to 
     put a thinking conservative [Hispanic] on the court.

  That is what it comes down to.
  Continuing from the Post:

       It's long past time to stop these games and vote.

  I will read the editorial from beginning to end because it is the 
Washington Post. A lot of my friends on the other side love the 
Washington Post. I have to say that I love it, too, but not for the 
same reasons. This is what it says:

       The Senate has recessed without voting on the nomination of 
     Miguel Estrada to the U.S. Court of Appeals for the D.C. 
     Circuit. Because of a Democratic filibuster, it spent much of 
     the week debating Mr. Estrada, and, at least for now, enough 
     Democrats are holding together too prevent the full Senate 
     from acting. The arguments against Mr. Estrada's confirmation 
     range from the unpersuasive to the offensive. He lacks 
     judicial experience, his critics say--though only three 
     current members of the court had been judges before their 
     nominations. He is too young--though he is about the same age 
     as Judge Harry T. Edwards was when he was appointed and 
     several years older than Kenneth W. Starr was when he was 
     nominated. Mr. Estrada stonewalled the Judiciary Committee by 
     refusing to answer questions--though his answers were similar 
     in nature to those of previous nominees, including many 
     nominated by Democratic presidents. The administration 
     refused to turn over his Justice Department memos--though no 
     reasonable Congress ought to be seeking such material, as a 
     letter from all living former solicitors general attests. He 
     is not a real Hispanic and, by the way, he was nominated only 
     because he is Hispanic--two arguments as repugnant as they 
     are incoherent. Underlying it all is the fact that Democrats 
     don't want to put a conservative on the court.
       Laurence H. Silberman, a senior judge on the court to which 
     Mr. Estrada aspires to serve, recently observed that under 
     the current standards being applied by the Senate, not one of 
     his colleagues could predictably secure confirmation. He's 
     right. To be sure, Republicans missed few opportunities to 
     play politics with President Clinton's nominees. But the 
     Estrada filibuster is a step beyond even those deplorable 
     games. For Democrats demand, as a condition of a vote, 
     answers to questions that no nominee should be forced to 
     address--and that nominees have not previously been forced to 
     address. If Mr. Estrada cannot get a vote, there will be no 
     reason for Republicans to allow the next David S. Tatel--a 
     distinguished liberal member of the court--to get one when a 
     Democrat someday again picks judges. Yet the D.C. Circuit--
     and all courts, for that matter--would be all the poorer were 
     it composed entirely of people whose views challenged nobody.
       Nor is the problem just Mr. Estrada. John G. Roberts Jr., 
     Mr. Bush's other nominee to the D.C. Circuit, has been 
     waiting nearly two years for a Judiciary Committee vote. 
     Nobody has raised a substantial argument against him. Indeed, 
     Mr. Roberts is among the most highly regarded appellate 
     lawyers in the city. Yet on Thursday, Democrats invoked a 
     procedural rule to block a committee vote anyway--just for 
     good measure. It's long past time to stop these games and 
     vote.

  I think the Washington Post has it just right. The fact is there 
hasn't been one good argument used against Mr. Estrada. They can't 
point to one reason he should not be confirmed to this circuit court of 
appeals. They can't give one logical, good, substantive reason to 
reject him. But I still grant them the right to vote against him if 
that is the way they feel. If they in their hearts feel that this man 
will not operate on the court the way he should, then, by gosh, they 
have a right to do that. Naturally, I do take opposition or issues with 
the Post's characterization of how we treated the Clinton nominees, but 
other than that, I think it is dead on.
  Let me tell you why I take opposition. If you look at the facts, as I 
have said before, President Reagan was the all-time confirmation 
champion. He amazingly got 382 judges confirmed.
  But he had 6 years of a Republican Senate, with control of the 
Judiciary Committee by Republicans, to help him to do that. I have 
heard so much whining from the other side about how badly President 
Clinton's nominees were treated. It is repeated in this editorial to a 
limited degree. But the fact is, President Clinton got virtually the 
same number as President Reagan. Three hundred seventy-seven Federal 
judges were confirmed during President Clinton's 8 years, and for 6 of 
those years the Republicans controlled the Senate and the Senate 
Judiciary Committee. He was treated very fairly.
  If you go back in time, when President Bush was President, Bush 1, 
when he left his Presidency and the Democrats controlled the committee 
at that time, there were 97 vacancies and 54 left holding. In other 
words, 54 nominees did not get heard. By the way, one

[[Page 4277]]

of them was John Roberts, who has been sitting here for 11 years, 
nominated three times by two different Presidents for this circuit 
court of appeals job. It isn't just 2 years, as the Post said; it is 11 
years, going on 12. That is disgraceful. He is considered one of the 
two greatest appellate lawyers in the country, arguing 39 cases before 
the Supreme Court. Yet he was blocked last week in committee as well.
  The fact is, when President Clinton left office and I was still 
chairman of the committee, there were 41 left holding. There were 67 
vacancies, 30 fewer than when the Democrats last held the committee 
with a Republican President leaving office. And there were 41 left 
holding versus the 54 left by the Democrats. We didn't cry about that--
at least I didn't. That is part of the process. There are always some 
left holding because it is a difficult process to get through. Could we 
have done better? I think we could have done better; I will acknowledge 
that. The fact is, we didn't cry when they left 54 hanging, and they 
shouldn't be crying because 41 of theirs were left hanging. By the way, 
of the 41, at least 9 were put up so late no committee chairman could 
have gotten them through, so it was really only 32. And if you go back 
through these, for many there was no consultation with the Republican 
Senators, an absolute must in order to confirm people.
  I happen to know this administration is consulting with Democrat 
Senators. To the degree that Senators say they are not, that is because 
they interpret the consultation to mean doing what they want rather 
than what the President wants. That is not the definition of 
consulting.
  There is a point here that bears repeating because I believe that in 
the debate over Mr. Estrada's nomination this point has been lost. My 
Democratic colleagues have articulated every reason under the Sun they 
believe they should vote against Mr. Estrada, yet they will not allow 
his nomination to proceed to a vote. Why is this? I will tell you what 
I think, plainly put, with no window dressing: I think it is because 
they are afraid Mr. Estrada will be confirmed if there is a vote on his 
nomination. I predict he will be. They believe a majority of the 
Members of this body will vote to confirm him.
  The only way they can prevent this from happening is to filibuster 
his nomination. As I said last week, when a minority of Senators 
prevent a majority from voting on a judicial nomination, it is nothing 
but tyranny of the minority. It is unfair, and it has no place in the 
process we use to confirm judges.
  Last week, I noted that some of my Democratic colleagues were not 
always so eager to use a filibuster to prevent a vote on judicial 
nominations.
  I think it is important to note again what some of my colleagues had 
to say about filibustering judicial nominees when there was a Democrat 
in the White House. The ranking member of the Judiciary Committee, the 
Senator from Vermont, said in 1999:

       I . . . do not want to see the Senate go down a path where 
     a minority of the Senate is determining a judge's fate on 
     votes of 41.

  The distinguished Senator from California, who also serves on the 
Judiciary Committee, likewise said in 1999:

       A nominee is entitled to a vote. Vote them up; vote them 
     down.

  She continued:

       It is our job to confirm these judges. If we don't like 
     them, we can vote against them. That is the honest thing to 
     do. If there are things in their background, in their 
     abilities that don't pass muster, vote no.

  My colleague from Massachusetts, a former Judiciary Committee 
chairman, said in 1998:

       Nominees deserve a vote. If our Republican colleagues don't 
     like them, vote against them. But don't just sit on them--
     that is obstruction of justice.

  I wonder why it was obstruction of justice then but it is not today. 
It does appear to be a double standard, as White House counsel said 
this week on television. There is a double standard being applied to 
this Hispanic nominee, without any legitimate, logical, good reason for 
holding him up.
  I think I have made my point. When the shoe was on the other foot--
when a Democratic President was the one nominating Federal judges--my 
Democratic colleagues stood firm against the idea that a judicial 
nominee should be denied a vote. But now that it is a Republican 
President nominating Federal judges, things are obviously different to 
them. They apparently no longer believe it is a problem to go down a 
path where a minority of the Senate is determining a judge's fate on 
votes of 41, or requiring a supermajority vote of 60 in order to have a 
nominee approved and confirmed--even though our obligation is to advise 
and consent. That means a vote up or down. They no longer believe that 
voting on a nominee--whether for or against--is the honest thing to do, 
and they no longer believe that denying nominees a vote is obstruction 
of justice--which is what they called it when they had the Presidency. 
And liberals were being nominated and confirmed by us then.
  There is no question that we are in the middle of a full-blown 
filibuster of Mr. Estrada's nomination. The Senator from New York, Mr. 
Schumer, has said they are not filibustering. What the heck is it then? 
Preventing a vote up or down on the nominee is called a filibuster. 
They can prevent a vote, as long as they can require us to get 60 votes 
and as long as they have at least 41 votes against cloture. Never 
before has an appellate court nominee--or any lower court nominee, for 
that matter--been defeated through a filibuster.
  If this filibuster is successful, if Mr. Estrada's nomination is 
denied a vote, we are entering into a sad new chapter in the 
confirmation of judicial nominees. It is a chapter where the will of a 
minority of the Members of this body can obstruct the confirmation of a 
lower court nominee. Simply put, it is tyranny of the minority, and it 
is unfair.
  I have to admit there were some on our side during the Clinton years 
who wanted to filibuster some of his judges. In all honesty, I fought 
against that and helped to prevent it. We never had a true filibuster 
against a circuit court of appeals nominee. I thought it was unfair 
then, and I think it is unfair today.
  It is significant that, in addition to the Washington Post, many 
other fine newspapers across the country, from California to Maine, 
have taken note of what is going on in the Senate and have spoken out 
against a filibuster. These are newspapers that generally do not, as a 
matter of regular practice, comment on the Senate's confirmation of 
Federal judges. The fact that these newspapers have chosen to speak out 
against a filibuster of Mr. Estrada--a nominee with no connection to 
their own State--says quite a lot about the blatant unfairness of what 
is going on here.
  Take, for example, the Riverside, CA, Press-Enterprise. In a February 
18 editorial, it said:

       The Democrats' tactic employed last week of filibustering 
     the nomination of [Mr. Estrada] . . . is an anything-goes 
     strategy that ought to be abandoned.

  This is a newspaper that happens to agree with the Democrats' 
contention--which I think is absolutely baseless--that Mr. Estrada was 
not completely open during his testimony before the Judiciary 
Committee. It is also a newspaper that was pretty harsh on us 
Republicans in the same editorial--unjustly, in my view, but that is a 
different story. The point is that its anti-filibuster position is even 
more credible. The Press-Enterprise is saying that even if you did not 
like the way Mr. Estrada answered questions before the committee, that 
is no reason to filibuster his nomination.
  As they concluded:

       [T]he process has to stop at some point. It's one of advice 
     and consent, not advise and confront.

  Let's look at what some of the other newspapers across the country 
have been saying since this filibuster started 3 weeks ago. Like the 
Riverside Press-Enterprise, many of these newspapers are quite harsh on 
us Republicans, too, but they are united on one point: The filibuster 
of Mr. Estrada's nomination is unfair and it should end.
  Another California newspaper, the Redding Record Searchlight, had 
this to say:

       This filibuster comes at a time when there are all sorts of 
     pressing issues before the nation. The tactic has no excuse. 
     . . . If liberals

[[Page 4278]]

     in the Senate think conservatives will spell the end of 
     civilization if they become judges, they can vote against 
     Estrada. Keeping others from voting their consciences on this 
     particular matter is more than slightly reprehensible.

  The Bangor Daily News in Maine wrote that the Democrats:

       are mistreating a fellow citizen through the same means 
     they fear an unqualified judge would employ: using their 
     authority to harshly punish someone on ideological grounds. 
     It is unfair no matter which party does it and it is harmful 
     to the working of the Senate.

  Well, amen to that.
  The Providence Journal-Bulletin in Rhode Island said:

       The point about Miguel Estrada is not that he may or may 
     not harbor conservative judicial opinions. The point is that 
     he is an inspiring American success story, a brilliant 
     scholar, a distinguished public servant, and an outstanding 
     lawyer. For Senate Democrats to talk down his nomination is 
     not just embarrassing, but outrageous.

  The Grand Forks Herald in North Dakota wrote in an editorial entitled 
``Stop the Filibuster'' that Senate Democrats ``should back off and let 
the Senate vote.''
  The Chicago Sun-Times asked:

       [W]ho can look at the spectacle of the 108th Congress and 
     not believe that both justice and the basic operation of the 
     Nation is being sacrificed on the altar of ugly, 
     obstructionist, partisan politics?

  They continued:

       Our legal system cannot and must not be held hostage to 
     political nitpicking.

  The Rochester, NY, Democrat and Chronicle opined:

       Yet another fight over a judicial nominee should not 
     descend to filibuster.

  The Detroit News wrote:

       Estrada should have his nomination put up for an ordinary 
     vote, as have all of his predecessors. If he loses, fair 
     enough. But a filibuster would signal an unreasonable posture 
     by Democratic Senators that could have long-term--and 
     damaging--consequences for how business is conducted in the 
     U.S. Senate.

  Mr. President, I ask unanimous consent that these and other 
editorials from newspapers across the Nation condemning the filibuster 
of Mr. Estrada's nomination be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Press-Enterprise, Feb. 18, 2003]

       The process of filling a vacancy in the federal judiciary 
     is a political one. The Founding Fathers placed it into a 
     political area. The president nominates and the Senate 
     confirms--or doesn't--but that doesn't mean anything goes.
       The Democrats' tactic employed last week of filibustering 
     the nomination of Miguel A. Estrada to the U.S. Court of 
     Appeals for the District of Columbia Circuit is an anything-
     goes strategy that ought to be abandoned. However, with 49 
     Democratic senators, they are likely to be able to muster the 
     41 votes needed to maintain a filibuster.
       What makes the filibuster inappropriate is that it is 
     rarely used to block a judicial nominee, and Mr. Estrada 
     hardly qualifies as a target for such a big gun. Yes, he was 
     not completely open with members of the Judiciary Committee 
     when he appeared, and Democratic senators are frustrated by 
     the White House's refusal to release to them memoranda he 
     wrote as solicitor general.
       But in the best of times, such a request would be out of 
     line, and these are closer to the worst than to the best for 
     the nomination process. If the memoranda were to be used as 
     an honest beginning to a discussion of Ms. Estrada's legal 
     views, there might be some justification for releasing the 
     documents that would normally be considered privileged.
       One suspects that's not the role the Democrats have in mind 
     for the memoranda. They probably hope to expose Mr. Estrada's 
     conservative views, which no one doubts he holds, in hopes of 
     defeating the nomination or at least scoring some political 
     points.
       The two parties have been allowing their political battles 
     over judicial nominees to escalate since Robert H. Bork's 
     nomination to the U.S. Supreme Court in 1987. One suspects 
     that Republicans, if they were in the minority, would have 
     done the same with the Estrada nomination. The parties need 
     to de-escalate.
       A first step would be to not filibuster nominations like 
     this one of a well-qualified nominee. He's distinctly an 
     American success story, having immigrated from Honduras, gone 
     to Columbia and Harvard and served as a clerk to a Supreme 
     Court justice.
       Democrats, or Republicans when they are in the minority, 
     may fairly make things tough on a nominee in committee or on 
     the Senate floor, in order to fashion nominations more to 
     their liking. But the process has to stop at some point. It's 
     one of advice and consent, not advise and confront.
                                  ____


          [From the Redding Record Searchlight, Feb. 15, 2003]

             Senate Liberals Should Not Fear Vote for Judge

       Miguel Estrada is--oh no, oh no, can it be?--a 
     conservative, and if that makes your heart pound with fear, 
     you may very well be a Democrat serving in the Senate. You 
     would then be among those trying to thwart majoritarian 
     decision-making with a filibuster, there being no chance that 
     an honest vote will go your way.
       It's irresponsible and an outrage, this hysteria being 
     acted out by the Democrats to keep Estrada from serving on 
     the U.S. Court of Appeals for the District of Columbia. But 
     the Democrats do have their excuses, each more petty and 
     pathetic than the next.
       One excuse is that they just don't know enough about this 
     fellow, but there is a life history here, and a rather 
     amazing one: Estrada immigrated to this country from 
     Honduras, graduated with honors at Columbia College, was 
     editor of the Law Review at Harvard Law School, was a clerk 
     to a Supreme Court justice, has argued before the Supreme 
     Court 15 times, has done pro bono work for a down-and-outer 
     and has received the highest possible recommendation of the 
     American Bar Association.
       Well, but the administration won't hand over memos he wrote 
     when he was in the solicitor general's office, say the Senate 
     Democrats. It apparently does not matter to them that 
     publicizing them could rob future memos of their candor and 
     that every former solicitor general of either party has said 
     the Democrats seek too much.
       But listen, the Democrats continue, Estrada refused to blab 
     his heart out when he appeared before a Senate committee, as 
     if they did not know that it violates widely endorsed 
     principles to indicate beforehand how you as a judge might 
     decide cases that could come before you. Estrada did say he 
     would be an impartial judge loyal to the law. On other 
     topics--his broad political views--he was relatively quiet, 
     which is fine.
       This filibuster comes at a time when there are all sorts of 
     pressing issues before the nation. The tactic has no excuse 
     (although there are explanations, such as a Democratic fear 
     that Estrada would be in line for a Supreme Court nomination 
     if he gets this other judgeship first). If liberals in the 
     Senate think conservatives will spell the end of civilization 
     if they become judges, they can vote against Estrada. Keeping 
     others from voting their consciences on this particular 
     matter is more than slightly reprehensible.
                                  ____


              [From the Bangor Daily News, Feb. 19, 2003]

                           Voting on Estrada

       George Washington took office April 30, 1789, but the 
     Senate waited until Aug. 5 of that year to reject one of his 
     nominees--Banjamin Fishbourn of Georgia, one of 102 
     appointments submitted by President Washington to become 
     collectors, naval officers and surveyors of seaports. The 
     Senate thus established the use of its authority for advise 
     and consent and simultaneously demonstrated that no 
     appointment is too minor to fret over.
       Just before they left for vacation last week, Senate 
     Democrats had begun what they say will be an extended 
     filibuster of the nomination of Miguel Estrada, nominated in 
     May 2001 by President Bush to become U.S. circuit judge for 
     the District of Columbia Circuit. The Democrats say they do 
     not have enough information about the nominee and cannot 
     persuade him to talk sufficiently about his judicial 
     philosophy so cannot allow a vote.
       This lack of information, however, has not stopped 
     conservative groups from strongly supporting the nomination 
     and liberal groups from strongly opposing it. They know 
     enough to choose a position, as do the Democrats, who 
     actually mean by insufficient information that they would 
     like to reject a Bush nominee but were hoping to find a 
     larger reason for doing so than the fact that Mr. Estrada 
     apparently supports strong anti-loitering laws, to the 
     detriment of migrant workers.
       Democratic Sen. Harry Reid of Nevada a couple of weeks ago 
     quoted comments his Republican colleagues offered during the 
     Clinton administration on the requirement that the Senate 
     ``do what it can to ascertain the jurisprudential views a 
     nominee will bring to the bench,'' to use an example from 
     Republican Sen. Orrin Hatch of Utah. (Sen. Reid also offered 
     numerous precedents in which memoranda of the sort Mr. 
     Estrada wrote while advising the solicitor general have been 
     made public, as they have not with this nomination.) Sen. 
     Reid's point, of course, is that if this behavior was 
     acceptable for Republicans it ought to be acceptable for 
     Democrats. But for the public, it is not acceptable in either 
     case.
       The Senate has a long history of rejecting presidential 
     nominations, from Cabinet appointments right down to 
     surveyors of seaports. Democrats, having drawn out this 
     nomination for maximum political effect, now face the 
     questions of backlash for appearing to beat up a nominee. 
     More importantly, they are mistreating a fellow citizen 
     through the same means they fear an unqualified judge would 
     employ: using their authority to harshly punish someone based 
     on

[[Page 4279]]

     ideological grounds. It is unfair no matter which party does 
     it and it is harmful to the working of the Senate.
       The Democrats should consider that the information they 
     have in hand is all they will get and allow, even encourage, 
     a vote. If the information is insufficient, they should vote 
     no and see if they can round up enough votes to block the 
     nomination. If it is sufficient and they have no substantial 
     questions about Mr. Estrada's abilities, they should vote yes 
     even if they do not agree with all of his politics. But the 
     filibuster should end this week with the congressional 
     recess.
                                  ____


         [From the Providence Journal-Bulletin, Feb. 14, 2003]

                            The Estrada Case

       The decision of Senate Democrats to filibuster the 
     nomination of Miguel Estrada to the U.S. Court of Appeals for 
     the District of Columbia is unfortunate, to say the least. 
     Democrats are now in the position not only of turning away a 
     nominee rated ``highly qualified'' by the American Bar 
     Association, but of rejecting a onetime Supreme Court clerk 
     and Honduran immigrant who graduated magna cum laude from 
     Harvard Law School, for political reasons.
       The Democratic complaint is that Mr. Estrada is a ``stealth 
     conservative,'' and that his responses in committee hearings 
     were insufficient to reveal his political opinions. To that 
     end, Minority Leader Tom Daschle (D.-S.D.) and his colleagues 
     have demanded not only supplementary detailed responses to 
     political inquiries, but also Mr. Estrada's confidential 
     memoranda written while he was an assistant solicitor 
     general. Every living solicitor general, Democratic and 
     Republican, has gone on record to oppose this unwarranted 
     intrusion into the deliberative process in the Justice 
     Department. And the Bush administration has been correct to 
     resist Democratic demands.
       Make no mistake: Senate Democrats are worried that 
     President Bush might nominate conservative lawyers and 
     jurists to the federal bench. But that is no reason to reject 
     a highly qualified nominee. Just as Bill Clinton appointed 
     judicial liberals to the federal bench--including three 
     Supreme Court justices--it stands to reason that Mr. Bush 
     will nominate conservatives.
       The process is called democracy. Democrats may not like the 
     results of the 2000 presidential election, but their recourse 
     is to win back the White House in 2004, not to subject 
     distinguished nominees like Miguel Estrada to political 
     torture.
       And after all, judicial nominations are for life, and no 
     president can be clairvoyant. When Franklin Roosevelt 
     nominated Felix Frankfurter for the Supreme Court in 1939, he 
     had no idea that Justice Frankfurter would evolve into one of 
     the court's leading conservatives. And when the first George 
     Bush nominated David Souter for the court in 1989, he might 
     have changed his mind if he had known that Justice Souter 
     would become one of the court's reliable liberals.
       The point about Miguel Estrada is not that he may or may 
     not harbor conservative judicial opinions. The point is that 
     he is an inspiring American success story, a brilliant 
     scholar, a distinguished public servant and an outstanding 
     lawyer. For Senate Democrats to talk down his nomination is 
     not just embarrassing, but outrageous.
                                  ____


              [From the Grand Forks Herald, Feb. 15, 2003]

                     Editorial: Stop the Filibuster

       Our View: Senate Democrats should let Miguel Estrada's name 
     come up for a floor vote.
       There are two responsible ways for Senate Democrats to keep 
     conservative lawyers off of the federal bench.
       The first is for Democrats to regain a majority in the 
     Senate. The second is to convince a few Republicans to vote 
     against those nominees on the floor. Both of those methods 
     use politics' most-respected and time-honored technique: 
     persuasion--persuading voters in the first case, colleagues 
     in the second, of the strength and power of your argument.
       In the U.S. Senate, however, there's also a coercive and 
     borderline-irresponsible method for the minority party to 
     have its way. That method is the filibuster. Senate Democrats 
     are staging one now against Miguel Estrada, an appeals court 
     nominee.
       They should back off and let the Senate vote.
       A filibuster is a delay that can't be broken without a 
     supermajority's consent. Now, at times in a democracy, a 
     ``tyranny of the majority'' may arise that principled 
     senators feel they must resist. This isn't one of those 
     times. Estrada is neither a criminal, nor a spy, nor a hack 
     whose nomination sprang from backroom deals where money 
     changed hands.
       Just the opposite: He is, by every account, a living, 
     breathing embodiment of the American dream. An immigrant from 
     Honduras, Estrada spoke little English when he came to the 
     United States at age 17. Yet, he graduated with honors from 
     Harvard Law School, clerked for a Supreme Court justice and 
     built an honorable and exemplary career.
       He's also a judicial conservative. And if there's one thing 
     that drives some Democrats berserk, it's a person from an 
     ethnic minority background who strays from the party line.
       That's why the Democrats are filibustering. That's why 
     they're holding up matters of real-life war and peace. That's 
     why they're thwarting the majority's will and asserting an 
     anti-democratic veto power on a matter of congressional 
     routine.
       And that's why they ought to back off.
       Because frankly, those reasons are politics, nor principle. 
     And politics isn't enough.
                                  ____


              [From the Chicago Sun-Times, Feb. 14, 2003]

         Wheels of Justice Caught in Washington Gridlock, Again

       ``The time has come for the U.S. Senate to stop playing 
     politics with the American judicial system. So bad has the 
     situation become that some Americans wonder whether justice 
     is being hindered . . .'' So began an editorial on this page 
     five years ago, during the now-distant days of the Clinton 
     administration, when Senate Republicans were stonewalling 
     judicial nominees from a Democratic president.
       We mention it because the party in power tends to scream 
     about efficient government, while the party out of power 
     complains about failure to follow procedure. To quote 
     Shakespeare, ``A plague on both their houses.'' The only 
     update we'd make in the opening quote is to change ``some 
     Americans'' into ``many Americans'' or even ``most 
     Americans.'' For who can look at the spectacle of the 108th 
     Congress and not believe that both justice and the basic 
     operation of the nation is being sacrificed on the altar of 
     ugly, obstructionist, partisan politics?
       After dragging their feet on shifting committee 
     chairmanships and the routine operations of the nation's 
     business, Senate Democrats, though in a minority, are 
     threatening to filibuster over the confirmation of Miguel 
     Estrada, a Washington lawyer who seems eminently qualified 
     for the federal appeals bench in every way except for his 
     alacrity to answer questions about his opinions on legal 
     matters that have not yet been presented to him, such as the 
     issue of abortion.
       The entire idea behind disabling the business of the nation 
     is so that the blame for whatever bad situation we find 
     ourselves in come election 2004 can be laid at the feet of 
     the Republicans, since they are in power. But the Democrats 
     forget that, if they manage to torpedo the Republican agenda, 
     then the Republicans are not really fully in power, and 
     whatever problems are certain to come are the fault of both 
     parties. And obstructionism hurt Democrats in last November's 
     voting.
       President Bush called the Democratic approach ``shameful 
     politics.'' We are not revealing a bias when we agree--the 
     nation needs good judges, from both parties, of both 
     conservative and liberal outlooks. Our legal system cannot 
     and must not be held hostage to political nitpicking. Estrada 
     deserves to be the first Hispanic on the U.S. Court of 
     Appeals for the District of Columbia, and if his nomination 
     in some way helps to break the political deadlock keeping 
     critical judgeships from being filled, that will be just 
     another accomplishment to add to his record.
                                  ____


       [From the Rochester Democrat and Chronicle, Feb. 7, 2003]

                         The Estrada Nomination

       Yet another fight over a judicial nominee should not 
     descend to filibuster.
       The oft-heard scuttlebutt around Washington is that 
     Congress is a far less congenial place now than 20 years ago. 
     Partisanship, once a coin of the realm, is today the only 
     currency that matters.
       The truth of that troubling assessment shows most tellingly 
     in the drag-out fights over judicial nominees. It used to be 
     that the opposing party, once in power, would get its 
     appointments. No longer.
       Led by Sen. Chuck Schumer, Senate Democrats, who narrowly 
     lost a Judiciary Committee vote on U.S. Court of Appeals 
     nominee Miguel Estrada, are threatening a filibuster to 
     prevent a floor vote on the nomination. Estrada's sin? He was 
     unresponsive to the committee's questions regarding past 
     causes and other issues.
       It's a smokescreen. The Democrats know Estrada's legal 
     record, and it's a good one.
       To suggest that he needed to answer the questions to 
     establish his credentials is disingenuous. There's more than 
     enough known about Estrada for an up-or-down floor vote.
       A filibuster could make partisanship history--never before 
     has the Senate prevented a lower-court confirmation via 
     filibuster. The Democrats have a duty to ask tough questions 
     and to base their votes on the answers, or lack of them. But 
     they also have a duty to live by the final tally--not delay 
     its taking with divisive filibuster.
                                  ____


                 [From the Detroit News, Feb. 10, 2003]

        U.S. Senate Should Forget Judicial Candidate Filibuster


     it's time to end vendettas and revenge in judicial nominations

       U.S. Senate Democrats' threat to filibuster President 
     George W. Bush's nomination of Miguel Estrada to the U.S. 
     Court of Appeals in Washington, D.C. would further poison an 
     already badly damaged judicial nomination process.
       Both parties share the blame for the wrecked process. But 
     Senate Democrats are now engaging in revenge for bad GOP 
     behavior in the second term of former President

[[Page 4280]]

     Clinton, when Republicans stalled votes on a number of his 
     nominees, ultimately derailing them when Bush gained the 
     presidency. Until the GOP regained the Senate last November, 
     they tied up a number of Bush nominations in committee.
       Now, the Democrats have a chance to rise above partisan 
     political hackery and end this stupid game. Instead, they are 
     seriously considering making the situation worse.
       Miguel Estrada is a well-regarded native of Honduras who 
     served in the office of U.S. solicitor general under both 
     former Presidents Clinton and George H.W. Bush. The solicitor 
     general represents the U.S. government before the Supreme 
     Court.
       Estrada has personally argued 15 cases before the nation's 
     highest court. He has been unanimously rated ``well-
     qualified'' by the American Bar Association--which Senate 
     Democrats declared would be the ``gold standard'' by which 
     they would assess judicial nominees when they controlled the 
     Senate.
       Estrada's nomination was one of those bottled up in 
     committee. With the GOP in control, his nomination has now 
     been voted out to the Senate floor. The nomination is drawing 
     more than the usual interest because Estrada, 42, is 
     considered a strong possibility for eventual nomination to 
     the U.S. Supreme Court by President Bush.
       Senate Democrats are deciding just how much they want to 
     obstruct the president's nominees. A filibuster can only be 
     broken by 60 votes--9 votes more than is usually required for 
     a nominee to be approved. Reportedly, a filibuster has never 
     before been used to block an appointment to the U.S. Court of 
     Appeals.
       Democrats complained that Estrada, during his committee 
     hearings, declined to tell them his positions on particular 
     issues. It is a violation of the canons of judicial ethics 
     for potential judges to do that.
       Democrats also demanded that he produce his memos and 
     recommendations while he was in the solicitor general's 
     office--which had never been done for any other candidate who 
     had been an assistant in that office. The demand was rejected 
     not only by Estrada, but by every former solicitor general 
     still living, including those who served Democratic 
     presidents.
       The level of obstruction his nomination has faced has been 
     truly extraordinary. Michigan Sens. Carl Levin and Debbie 
     Stabenow--who are running their own vendetta in blocking four 
     Bush nominees to the Court of Appeals in Cincinnati--
     shouldn't be a part of it. That would be an insult to their 
     Hispanic constituents.
       Estrada should have his nomination put up for an ordinary 
     vote, as have all his predecessors. If he loses, fair enough. 
     But as filibuster would signal an unreasonable posture by 
     Democratic senators that could have long-term--and damaging--
     consequences for how business is conducted in the U.S. 
     Senate.

  Mr. HATCH. I agree with these newspapers that the perpetuation of 
this filibuster against Mr. Estrada's nomination is extremely unfair. 
It is unfair to the majority of the Members of the Senate who stand 
prepared to vote on Mr. Estrada's nomination. It is certainly unfair to 
Mr. Estrada, whose life is in limbo while the Senate engages in its 
endless debate. It is unfair to the American people, who have a 
justified expectation that the Senate will vote on Mr. Estrada's 
nomination and move on to debate and consider other important business.
  The solution is not to protract debate, upon which some of my 
Democratic colleagues insist. The solution is not to go on a fishing 
expedition for privileged, confidential memoranda Mr. Estrada once 
authored on appeal recommendations, certiorari recommendations, and 
amicus curiae recommendations. The solution is not to demand answers to 
questions that Mr. Estrada already addressed when the Senate was under 
Democratic control. The solution is for Senators to vote on Mr. 
Estrada's nomination. Vote for him or vote against him. Do what your 
conscience dictates. Just vote--exactly what the Washington Post has 
called upon us to do.
  Mr. President, I have additional remarks, but I notice the 
distinguished Senator from Georgia is here. I note that he wants to 
give some remarks and I am happy to interrupt my remarks for that 
purpose. I know he has an important message he would like to give. I am 
happy to interrupt my remarks for him.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. MILLER. Mr. President, I ask unanimous consent to proceed in 
morning business as in legislative session for 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              hillbillies

  Mr. MILLER. Mr. President, I rise this morning--and I appreciate the 
generosity of the Senator from Utah and the Senator from Vermont in 
giving me this opportunity--to get something off my chest.
  CBS Television is currently planning what that great company calls 
``a hillbilly reality show.'' I would like to say a few words about 
that as a Senator who happens to be a hillbilly.
  I can call myself that, Mr. President, but please don't you call me 
that, for ``hillbilly'' is a term of derision that was first coined in 
April of 1900 when the New York Journal had an article on ``Hill 
Billies'' with this description:

       A free and untrammeled white citizen who lives in the 
     hills, has no means to speak of, talks as he pleases, drinks 
     whiskey when he gets it and fires off his revolver as his 
     fancy strikes him.

  The description has not improved very much over the past 100 years. 
White minstrel shows depicting these ignorant creatures played to 
laughing audiences in New York and Chicago in the 1920s and 1930s.
  After a man named Al Capp saw one, he dreamed up the comic strip 
``Li'l Abner'' who lived in a place called Dogpatch with a mama who 
smoked a pipe and a girlfriend named Daisy Mae who ran around 
barefooted and half naked. It was a riot, and it made Al Capp a 
fortune.
  A short time later, Snuffy Smith, a wife abuser with his ever-present 
jug of moonshine, also appeared in comic strips around the Nation. Then 
came Ma and Pa Kettle in the movies and the Beverly Hillbillies on 
television. Even the contemporary poet and author James Dickey has 
contributed to this false image of mountain people by portraying them 
as depraved cretins in his popular book and movie ``Deliverance.''
  My neighbors and I have lived with this ridicule and overdrawn 
stereotype all of our lives, as did our parents and their parents 
before them. My roots run very deep in the Appalachian Mountains of 
North Georgia where I was born and raised and always have made my home. 
It is where my children, grandchildren, and great grandchildren live 
today.
  My ancestors were among the very first mountain settlers. They were 
descendants of the Scotch-Irish who were driven out of Northern Ireland 
by the Stuart Kings. They landed in Maryland and Virginia and migrated 
westward as far as the hostile Indians and French would allow, and then 
moved southward into the heart of a region of rugged mountains and 
beautiful valleys we now know as Appalachia.
  They were accompanied and followed by the Huguenots, Pennsylvania 
Quakers, Palatine Germans, and various dissatisfied Protestant sects.
  These mountain people were the very first Americans to fall back on 
their own resources as they settled in isolation from the remainder of 
the Nation and the world.
  Their language, customs, character, possessions, knowledge, and tools 
were isolated with them and suspended in time, an unchanging microcosm 
of early American thought, culture, and mores.
  These mountaineers possessed the qualities that formed the 
fundamental elements of pioneer American character: love of liberty, 
personal courage, a capacity to withstand and overcome hardship, 
unstinted hospitality, intense family loyalty, innate humor, and trust 
in God.
  It could be said that if they had one overriding characteristic, it 
would have to be independence. They developed as extreme, rugged 
individualists who never closed their doors, had inherent self-respect, 
were honest and shrewd, knew no grades of society, and had unconscious 
and unspoiled dignity. They were utterly without pretension or 
hypocrisy.
  When the Civil War came along, it was this area of the Mountain South 
that opposed secession, for there were no vast plantations in the 
mountains of the South and very few slave owners among those poor 
people. Some even fought on the side of the Union, with families 
sometimes divided over that terrible conflict.
  Later, when the wars of the 20th century came along, it was the 
families in

[[Page 4281]]

the mountains of the South who sent a disproportionate share of their 
young men who volunteered to fight in distant lands, far away from 
their peaceful valleys.
  When this country was threatened to be torn apart over Watergate, it 
was two great Members of this Senate from opposite parties but the same 
part of the country who helped keep this Nation on an even keel: 
Democrat Sam Ervin from the mountains of North Carolina and Republican 
Howard Baker from the mountains of Tennessee.
  I am very pleased and proud that these are my people, and I find that 
one of the great ironies of history is that while the cowboy, another 
type of frontiersman, has been glorified, the mountaineer--the first 
frontiersman--has been ridiculed and caricatured in the image of a 
Snuffy Smith.
  Why am I going into all of this? Because now in the 21st century--the 
enlightened 21st century--there are plans underway for a new hillbilly 
minstrel show using the same old stereotype, denigrating, laughing at, 
and ridiculing this group of people.
  CBS calls it a reality show--CBS, the once proud and honorable 
broadcasting company that brought us Edward R. Murrow and that 
unforgettable program of his, ``The Harvest of Shame.''
  In the sixties, brave and courageous CBS reporters risked their lives 
to cover the civil rights struggles in the South, and for decades, 
CBS's ``60 Minutes'' has set the standard for all of television. But 
today in this money-grubbing world, CBS, it seems, has become just 
another money-grubber.
  It is now part of the giant Viacom. CBS has a CEO named Mr. Les 
Moonves, the man who is pushing this program-to-be; a man who obviously 
believes that network television is an ethics-free zone and that it is 
acceptable for big profits to always come ahead of good taste.
  I do not know Mr. Moonves, but from his actions, it seems he is a 
person who cares little about human dignity and believes television has 
no social responsibility. I suppose we should not be surprised, for his 
ilk have been around long before the creators of Li'l Abner and Snuffy 
Smith. Since the beginning of civilization, there have always been some 
Homo sapiens who, it seems, had to have someone to look down upon, some 
group to feel superior to. For this kind of person, it is as basic to 
their human nature as the drive to reproduce or the urge for food and 
water. They were there in the time of the Greeks. They were there in 
the time of the Romans. They can be found all through the Bible. That 
is what the parable of the Good Samaritan is all about.
  Jesus was very concerned about how the rejects of society were looked 
down upon and warned us about ``a haughty spirit'' and an ``unkind 
heart.''
  Shakespeare wrote about them as did Dickens and Steinbeck and 
Faulkner. And songwriter Merle Haggard, who knew personally how it 
felt, wrote that memorable line ``another class of people put us 
somewhere just below, one more reason for my mama's Hungry Eyes.''
  This country was not meant to be this way. We are supposed to be 
better than that. More than two centuries ago, Moses Sexius was the 
warden of the Hebrew Congregation of Newport, RI.
  He wrote hopefully to the President of this new Nation of his delight 
at the birth of a government ``which to bigotry gives no sanction, to 
persecution no assistance, but generously affords to all liberty of 
conscience.''
  That new President, George Washington, wrote back.
  Here is a copy if the letter affirming that the Government of the 
United States ``would give to bigotry no sanction, to persecution no 
assistance.'' That was Washington's dream for this country.
  What CBS and CEO Moonves proposed to do with this Cracker Comedy is 
``bigotry'' pure and simple. Bigotry for big bucks. They will deny it. 
They will say it is just harmless humor. But they know better and they 
feel safe.
  They know the only minority left in this country that you can make 
fun of, demean, humiliate, put down and hardly anyone will speak up in 
their defense are hillbillies in particular and poor rural people in 
general. You can ridicule them with impunity.
  Can you imagine this kind of program being suggested that would 
disrespect an African American family or denigrate a Latino family? 
Years ago, the program Amos and Andy was removed from television--as it 
should have been--because it was in poor taste and made fun of a 
minority.
  In this wonderful and diverse country today, one of every six 
Americans speaks some other language other than English in their homes. 
In my home State of Georgia, their number has more than doubled in the 
past decade. I believe that may be the largest increase in the Nation.
  From the red clay hills of Georgia to the redwood forests of 
California, all of us are struggling to answer the simple question: 
Can't we all get along?
  And that daunting challenge, can't we live our lives as if we are all 
created equal? All of us: we eat, we sleep, we have strengths and 
weaknesses; we have dreams and anxieties. A tear knows no race, no 
religion, no color. A tear has no accent. We all cry in the same 
language.
  Many years ago, the rabbis were asked why was it that in the 
beginning God created just one man, Adam, and one woman, Sa-ba, or Eve. 
Surely, God could have created multitudes.
  The rabbis answered that only one man and one woman were created to 
help us all remember that we all came from the same mother and father. 
So no one should ever say, ``I'm better than you, ``and no one should 
ever feel, ``I'm less than you.''
  CBS, Viacom, Mr. Moonves: I plead with you to call off your hillbilly 
hunt. Make your big bucks some other way. Appeal to the best in America 
not the worst. Give bigotry no sanction.
  For no one--not even a rich and powerful network like CBS--should 
ever use the airwaves of this Nation to say to one group of people in 
God's image, ``We're better than you.''
  And no one, Mr. Moonves, no one should ever be made to feel, 
``they're less than you.''
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I thank the Senator from Georgia for his 
comments.
  The Senator from Utah has spoken and will be coming back, and so I am 
going to speak about the Estrada nomination, the matter at hand. I say 
what everybody knows, especially those of us like the distinguished 
Presiding Officer, who have practiced law, becoming a Federal judge for 
a lifetime is a privilege. It is not a right.
  No nominee should be rewarded for stonewalling the Senate and the 
American people. The Constitution directs Senators to use its judgment 
in voting on judicial nominees. It does not direct them to rubberstamp. 
It says ``advise and consent,'' not advise and rubberstamp.
  During the 17 months that the Democrats were in control of the 
Senate, we confirmed a record 100 of President Bush's judicial 
nominees. Interestingly enough, no judicial nominees of President 
Bush's had been confirmed up to mid-July when I took over as chairman 
of the committee. Within 10 minutes of taking over as chairman of the 
committee, I called the first confirmation hearing, and in 17 months we 
set a record of moving nominations. We certainly acted faster, and I 
believe more fairly, than the Republicans did for President Clinton.
  President Bush also has proposed several controversial nominees like 
Miguel Estrada. They divide the American people and the Senate. The 
President, of course, could easily end this impasse. I hope he will act 
to give Senators the answers they need to make informed judgments about 
this nomination. That was suggested by one of the most distinguished 
and senior Republican Members of this Senate. So far it has been 
rejected by the White House. I hope they will reconsider. The President 
can also help by choosing mainstream judicial nominees who can unite 
instead of divide the American people.
  Unfortunately, the White House seems to have this attitude that they 
should divide and not unite, and I

[[Page 4282]]

think that is a mistake. One of the unfortunate aspects of the 
President's determination to pack the Federal courts with extreme 
conservatives is a division that the nomination of Miguel Estrada has 
caused among Hispanics. Rather than nominate someone whom all Hispanic 
Americans would support, the President has chosen to divide rather than 
unite. The White House's ideological litmus test has motivated the 
President to select another highly controversial nominee rather than a 
consensus nominee.
  Over the last several days, the division within the Hispanic 
community has been the subject of a number of news reports. On February 
14, the Washington Times ran a front page story quoting a statement for 
the National Council of La Raza noting that since the Latino community 
is clearly divided on the Estrada nomination, we find the accusation 
that one side or another is anti-Latino to be particularly divisive and 
inappropriate.
  The division was likewise noted in the Boston Globe on February 15, 
in a story by Wayne Washington. And on February 20, the Washington Post 
noted the division in a story by Darryl Fears.
  I ask unanimous consent that some of the articles on this issue be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the Boston Globe, Feb. 15, 2003]

               Latinos Bitterly Debate Estrada Nomination

                         (By Wayne Washington)

       Washington.--President Bush's nomination of Miguel Estrada 
     for a federal judgeship has exposed sharp divisions among 
     Latinos, who are weighing the possibility of having one of 
     their own on a fast track to the US Supreme Court against a 
     fear that the minority group's interests could be harmed if 
     the Senate confirms that the conservative lawyer of Honduran 
     descent.
       In the divisive intra-ethnic battle, some Latinos have 
     challenged Estrada's allegiance to the Hispanic community, an 
     accusation that others have sharply criticized. Each side has 
     at times accused the other of being anti-Latino. The debate 
     has gotten so nasty on Spanish-language television and over 
     the Internet that this week the National Council of La Raza, 
     a Latino group that says it is neutral on Estrada's 
     nomination, called for both sides to tone down their 
     language.
       ``We urge those who are engaging in name-calling and 
     accusatory language to instead focus on the substantive 
     issues and merits of this nomination,'' the group said in its 
     statement. ``Since the Latino community is clearly divided on 
     the Estrada nomination, we find the accusation that one side 
     or another is `anti-Latino' to be particularly divisive and 
     inappropriate.''
       Estrada's nomination to the Court of Appeals for the 
     District of Columbia has been endorsed by the Hispanic Bar 
     Association, US Hispanic Chamber of Commerce, the Latino 
     Coalition, and the League of United Latin American Citizens, 
     which is comparable to the NAACP. Opposed are the Mexican 
     American Legal Defense and Education Fund, the Puerto Rican 
     Legal Defense and Education Fund, and the Congressional 
     Hispanic Caucus, whose members are Democrats.
       Bush nominated Estrada in May 2001, but Senate Democrats 
     blocked his approval. This week, they stalled the nomination 
     by threatening a filibuster. Estrada, 42, would be the first 
     Latino on the D.C. Appeals Court, where six of the nine 
     justices currently on the Supreme Court once served. Only 12 
     of the 154 judges on federal appeals courts are Latinos; one 
     has never served on the nation's highest court.
       Some observers have compared the volatile debate to 
     dissension among African-Americans when President George H.W. 
     Bush nominated Clarence Thomas--then a member of the D.C. 
     Court of Appeals--to the Supreme Court.
       ``There are similar fault lines,'' said Lisa Navarrete, 
     spokeswoman for the National Council of La Raza, a nonprofit 
     Hispanic group that fights poverty and discrimination. ``Some 
     people said Clarence Thomas is African-American and would be 
     the only one on the court. He deserves our support. Others 
     felt that his views would be harmful to the community. That's 
     exactly what's happening here.''
       Born in Honduras, Estrada immigrated to the United States 
     with his family as a teenager, graduated magna cum laude from 
     Columbia College, and earned a law degree from Harvard, where 
     he was an editor of the Harvard Law Review. He went on to 
     work as an assistant US attorney in New York and an assistant 
     to the solicitor general during the Clinton administration. 
     Currently, he is a partner in the Washington office of 
     Gibson, Dunn & Crutcher.
       His ethnicity and academic and legal record have been 
     enough to win the support of some Latinos, while critics 
     maintain that Estrada, a member of the conservative 
     Federalist Society, has not clearly spelled out his judicial 
     philosophy. He clerked for Justice Anthony M. Kennedy, a 
     member of the conservative majority on the Supreme Court.
       ``That Miguel Estrada is of the Hispanic culture counts far 
     more than the fact that he is a Republican or a Democrat,'' 
     said Tina Romero-Goodson, a social service official in New 
     Mexico. ``What weighs heavily with me is that he is Hispanic 
     and will have far more in common with me and mine than a 
     Democratic Anglo or African-American candidate.''
       Representative Robert Menendez, Democrat of New Jersey, 
     said Estrada ``shares a surname'' with Latinos but has done 
     little to help them.
       ``Mr. Estrada said he is unfamiliar with cases that are 
     important to our community,'' Menendez said. ``He has said 
     that his being Hispanic would be irrelevant to his role as a 
     judge. I don't want it to be irrelevant, and neither does the 
     community.''
       That stark call to ethnic solidarity outrages other 
     Latinos.
       ``I think it's just shameful,'' said Robert G. de Posada, 
     president of Latino Coalition, a nonprofit Washington-based 
     policy group. ``There is no other way to describe it.''
       De Posada said Menendez and other congressional Democrats 
     are trying to portray Estrada as a well-off lawyer ``who 
     never had a problem in his life.''
       Of Menendez, de Posada added: ``He's a Cuban-American who 
     looks completely white. I wonder: Has he faced the racism and 
     isolation that other Hispanics have faced? Can you challenge 
     his Hispanic-ness? I would never do that. He's a success 
     story. But so is Miguel Estrada.''
       Pierre M. LaRamee, acting president of the Puerto Rican 
     Legal Defense and Education Fund, said Republicans have 
     attempted to portray Estrada as ``a Latino Horatio Alger.'' 
     That portrayal, LaRamee argues, makes it proper to question 
     just how representative he is of Latino communities.
       ``He didn't come from a poor, disadvantaged background,'' 
     La Ramee said. ``He came from a background of relative 
     privilege. Of course, that's nothing negative about Miguel 
     Estrada. He's been successful.  .  .  . We'd rather have a 
     non-Latino judge who we believe would be a better judge.''
       Supporters point out that Estrada did pro bono legal work 
     on antiloitering laws that some Latino community group 
     leaders believe led to the harassment of black and Latino 
     men.
       Latinos who are not of Mexican-American descent have said 
     Estrada would get more support from Latinos if he were part 
     of it. Mexican-Americans are the largest subgroup of Latinos 
     in the United States.
       ``There's a dirty little secret in the Hispanic 
     community,'' said Jennifer Braceras, a member of the U.S. 
     Commission on Civil Rights. ``There's a real intra-Hispanic 
     community rivalry. There's a real feeling in the Mexican-
     American community that the first Latino Supreme Court 
     nominee should be Mexican-American.''
       Not true, said Marisa Demeo, regional counsel for the 
     Mexican American Legal Defense and Education Fund. ``It has 
     nothing to do with his ethnicity,'' she said. ``It has to do 
     with how he would be as a judge.''
       Democrats are expected to resume their filibuster of 
     Estrada's confirmation when the Senate returns from a recess 
     on Feb. 24.
                                  ____


               [From the Washington Post, Feb. 20, 2003]

                For Hispanic Groups, A Divide on Estrada


               political, geographic fault lines exposed

                           (By Darryl Fears)

       When he spoke in support of federal judicial nominee Miguel 
     Estrada at a recent news conference, Jacob Monty masked his 
     harsh criticism of opponents in Spanish. He said Latinos who 
     are fighting against the Bush administration's choice for a 
     judgeship on the U.S. Court of Appeals for the District of 
     Columbia Circuit ``no tienen verguenza''--have no shame.
       That comment by Monty, a former chairman of the Texas-based 
     Association for the Advancement of Mexican Americans, was 
     just one shot in a bitter war of words that has divided 
     Latino politicians and civil rights organizations in ways 
     rarely seen.
       It followed one fired by Rep. Robert Menendez (N.J.), a 
     member of the Democratic Congressional Hispanic Caucus, which 
     opposes the nominee. ``Being Hispanic for us,'' Menendez 
     said, ``means much more than having a surname''--a statement 
     his critics understood to imply that Estrada is not 
     ``Hispanic enough.''
       The name-calling has reminded some observers of the 
     bitterness among African Americans during the Senate 
     confirmation hearing for Supreme Court Justice Clarence 
     Thomas--a hearing that Thomas, a conservative black man, 
     likened to a lynching after liberal activists persuaded Anita 
     Hill, a former assistant, to come forward with sexual 
     harassment allegations against him.
       Latino activists have differing perceptions of who Estrada 
     is and what kind of judge he would be.
       Estrada's supporters say is a Latino success story, 
     immigrating as he did from Honduras at age 17 and going on to 
     graduate

[[Page 4283]]

     from Columbia College at Columbia University and Harvard Law 
     School, and clerking for Supreme Court Justice Anthony M. 
     Kennedy. He is now a partner with the District law firm of 
     Gibson, Dunn & Crutcher and a nominee for a judgeship on what 
     is considered the nation's second most powerful court because 
     it has jurisdiction over all appeals regarding federal 
     regulatory agencies.
       Opponents question whether Estrada appreciates the 
     interests of poor people--his family came from the Honduran 
     elite--and say his conservative politics would color his 
     decisions on the bench. They say Estrada has a low regard for 
     hard-won civil rights protections that benefit Latinos.
       Ideological wars over federal judicial nominations are 
     nothing new, but the fight among Latinos offers a small 
     window on how what will soon be the nation's largest ethnic 
     minority is divided by ideology and geography.
       Of the Latino community's three most influential groups, 
     each has taken a different position on Estrada's nomination. 
     The League of United Latin American Citizens, based in Texas, 
     supports it; the Mexican American Defense and Educational 
     Fund, in California, opposes it, and the National Council of 
     La Raza, in Washington, has remained neutral.
       The fuse for the current debate was lit in June, when 
     members of the Congressional Hispanic Caucus met with Estrada 
     in the basement of the Capitol. Rep. Charlie Gonzalez (D-
     Tex.) said the nominee at first looked uncomfortable as he 
     stared at the faces of 16 Democrats across the long boardroom 
     table.
       ``We wanted to make sure the nominee . . . appreciates what 
     the court system means for Latinos,'' Gonzalez said recently. 
     Estrada was not available for comment.
       ``We wanted him to give us some idea of how the role of a 
     judge impacts minority communities, and it just wasn't 
     there.''
       Two weeks later, the caucus returned a recommendation 
     opposing Estrada's nomination to the Senate Judiciary 
     Committee, then controlled by Democrats. Latino civil rights 
     groups read the recommendation, then met among themselves.
       In October, the League of United Latin American Citizens 
     (LULAC) voted to support Estrada.
       ``It was just very difficult for us not to support the guy, 
     given his impeccable credentials,'' said Hector Flores, 
     president of the Texas-based group. ``It's the American 
     dream, rising up from Honduras the way he has. The battle 
     isn't whether he's conservative; it's that he represents 
     Latinos, whether we like him or not.''
       Flores said the vote to support Estrada was overwhelming, 
     but in recent days the California state delegation of LULAC 
     broke away from the national group in opposing the nominee. 
     In a Feb. 12 statement, a former president of LULAC, Mario 
     Obledo, opposed the nominee because of his ``sparse record'' 
     on civil and constitutional rights issues, and because he 
     declined to answer questions about his record in Senate 
     hearings.
       LULAC's overall support was backed by Monty, the former 
     chairman of AAMA. His assertion that Estrada's opponents were 
     shameless was broadcast on C-SPAN and remembered by Flores, 
     who was present. Monty did not return several calls seeking 
     comment.
       President Bush tried to keep up the pressure yesterday by 
     giving an interview by the Spanish-language Telemundo 
     network, and vigorously urged senators to confirm Estrada.
       Sen. Orrin G. Hatch (R-Utah) recently said that Estrada's 
     Democratic opponents were ``anti-Latino,'' and brought howls 
     from his liberal colleagues and from leaders of Latino 
     organizations across the land.
       Marisa Demeo, regional counsel for the Los Angeles-based 
     Mexican American Legal Defense and Educational Fund, said 
     Hatch failed to mention three Latinos nominated for 
     judgeships by the Clinton administration whom Republican 
     senators opposed. Those nominations--of Jorge Rangel, Enrique 
     Moreno and Christine Arguello--were returned to President 
     Bill Clinton without a hearing or vote.
       Demeo said LULAC and AAMA back Estrada for cosmetic 
     reasons. ``Because he's Latino, they would support him,'' she 
     said. ``They've been very strong in thinking there should be 
     a Latino sitting on the D.C. Circuit, and we say it is 
     important, but not as such a cost.''
       The cost, she said, would be the weakening of civil rights 
     laws. ``The groups opposing have taken the analysis a step 
     further,'' Demeo said. ``We look at the record to determine 
     what kind of judge Mr. Estrada would be.''
       MALDEF is supported by the Puerto Rican Legal Defense and 
     Educational Fund, the Southwest Voter Registration Project 
     and the Hispanic caucus, among other groups.
       ``I don't know why the administration put up Estrada,'' 
     said Antonio Gonzalez, president of the Southwest Voter 
     Registration Project. ``He was marked as a right-wing 
     ideologue some time ago. Clearly, that is a tactic by the 
     Bush administration . . . not to really embrace issues that 
     are important to Latinos, but to try symbolic measures.''

  Mr. LEAHY. Hispanic lawmakers and leaders, including Representative 
Xavier Becerra, Representative Lucille Roybal-Allard, Representative 
Grace Napolitano, Representative Robert Menendez, Representative 
Charlie Gonzalez, and Los Angeles County supervisor Gloria Molina have 
all spoken publicly about their opposition to this nomination.
  I ask unanimous consent a recent news account of their statements be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  Latino Politicians Split on Estrada


Politics: Groups applaud, pan Bush's nomination to second-highest court 
                                in U.S.

                           (By Mike Sprague)

       Los Angeles.--President Bush's nomination of Miguel Estrada 
     to the Washington, D.C., Court of Appeals is splitting this 
     area's Latino politicians.
       On Friday, Los Angeles County Supervisor Gloria Molina and 
     U.S. Rep. Grace Napolitano, D-Santa Fe Springs, joined a news 
     conference held by the Congressional Hispanic Caucus to 
     denounce Estrada and oppose his Senate confirmation to the 
     second-highest court in the United States.
       ``When this gentlemen came before us, we asked specific 
     questions and he had very little offer,'' said Napolitano, 
     vice chairwoman of the 20-member caucus. ``He really was a 
     blank page. This could be our Latino Clarence Thomas.''
       But Assemblyman Robert Pacheco, a Republican from the City 
     of Industry, who was reached by telephone later in the day 
     Friday, accused the caucus of taking a partisan stand.
       ``They don't represent the entire Latino community,'' he 
     said. ``I'm very upset with the way they're approaching it, 
     because of the partisan nature.
       ``What an opportunity for the Latino community to have 
     someone in that position who has earned his stripes, having 
     risen from poverty.''
       The news conference was held at the Mexican-American Legal 
     Defense and Educational Fund's office in Los Angeles. The 
     organization also is opposing confirmation.
       The Senate Judiciary Committee recently approved the 
     nomination, but some Senate Democrats since then have 
     launched a filibuster to prevent a vote.
       Estrada has served as assistant U.S. solicitor and an 
     assistant U.S. attorney.
       Napolitano said that caucus members had interviewed 
     Estrada, and he hadn't responded favorably to their questions 
     on whether he had worked with any minority organizations or 
     on behalf of minorities and if he had been involved as a 
     volunteer.
       Estrada said no to the questions, she said.
       Rep. Lucille Roybal-Allard, D-Los Angeles, said that 
     Estrada shouldn't be confirmed to the court just because of 
     his ethnic origin.
       ``We have worked very hard to ensure that Latinos are 
     nominated to high positions in the country,'' Roybal-Allard 
     said. ``Just because someone has a Hispanic surname doesn't 
     automatically qualify him for any position.''
       Boyal-Allard also denied the caucus was acting for partisan 
     reasons.
       ``Out of all the nominees, President Bush has appointed, 
     this is the first time we have been opposed,'' she said. 
     ``We're opposed to Miguel Estrada based on his lack of 
     qualifications.''
                                  ____


     Hispanic Lawmakers From California Oppose Bush's Court Nominee

                            (By Paul Chavez)

       Los Angeles.--Hispanic lawmakers from California stepped up 
     their campaign Friday against the first Hispanic to be 
     nominated for a spot on an important federal appellate court.
       Three Democratic members of the Congressional Hispanic 
     Caucus and representatives from two advocacy groups said 
     lawyer Miguel Estrada, 41, has refused to answer key 
     questions about his position on cases, his background and 
     other key issues.
       ``Ethnic origin is no automatic pass to becoming a judge on 
     the federal judiciary, you have to be qualified,'' said Rep. 
     Xavier Becerra, D-Los Angeles.
       Estrada's nomination by President Bush has been held up in 
     the U.S. Senate Judiciary Committee, with Democrats launching 
     a filibuster to stall a full Senate vote until Estrada 
     answers more questions and provides documents from his work 
     with the Department of Justice.
       Estrada was nominated in May 2001 by Bush for a seat on the 
     U.S. Court of Appeals for the District of Columbia, which has 
     been a steppingstone for three current justices on the U.S. 
     Supreme Court.
       Estrada, a partner in the law firm that worked with Bush 
     during the Florida election recount, came to the United 
     States at age 17 from Honduras. He graduated from Harvard Law 
     School in 1986 and has argued 15 cases before the Supreme 
     Court.
       Republicans have accused Democrats of treating Estrada 
     unfairly because he is a conservative Hispanic.

[[Page 4284]]

       Rep. Lucille Roybal-Allard, D-Los Angeles, said the 
     decision to oppose Estrada's appointment was not easy.
       ``This was a particularly difficult and disappointing 
     decision that had to be made given the fact that the Hispanic 
     caucus actively works long and hard to promote the 
     appointment of more Latino judges,'' she said.
       The Hispanic caucus decided to oppose Estrada after 
     interviewing him, Roybal-Allard said.
       ``Unfortunately, he did not satisfactorily answer any of 
     our questions with regard to his experience or sensitivity or 
     commitment to ensuring equal justice and opportunity for 
     Latinos,'' she said.
       Rep. Grace Napolitano, D-Norwalk, said Estrada told the 
     caucus that he has not done any work on behalf of minority 
     organizations. She said such work was important since Estrada 
     ``could be our Latino Clarence Thomas.''
       The Congressional Hispanic Caucus, which is made up 
     exclusively of Democrats, along with the Mexican American 
     Legal Defense and Educational Fund have previously stated 
     their opposition to Estrada's appointment.
       The California branch of the League of United Latin 
     American Citizens also said Friday it was opposed to his 
     nomination, although its national leadership has supported 
     Estrada. His nomination also has been supported by the U.S. 
     Hispanic Chamber of Commerce.
       Democrats have sought documents written by Estrada when he 
     worked in the Justice Department's Solicitor General's 
     Office. But White House counsel Alberto Gonzales told 
     senators in a letter Wednesday that the administration would 
     not release the documents, which are normally not made 
     available.
       All of the living former solicitors general--four Democrats 
     and three Republicans--have agreed with the White House 
     position, Gonzales said.

  Mr. LEAHY. The Congressional Hispanic Caucus, the Mexican American 
Legal Defense and Education Fund, the Puerto Rican Legal Defense and 
Education Fund, the California Chapter of the League of United Latin 
American Citizens, Los Angeles County supervisor Gloria Molina, and 
Mario Obledo oppose this controversial nomination. I am sure they do so 
out of principle. I know they do not relish opposing this nomination. 
These are organizations, individuals who have devoted their lives to 
improving the lives of Hispanic members. They worked for decades to 
increase representation of Latinos on the courts of our country.
  It is because of the history and dedicated efforts and deep-seated 
commitment to the cause of equality for Hispanics I take their views 
seriously. I understand the Congressional Hispanic Caucus and the 
Puerto Rican Legal Defense and Education Fund came to their conclusion 
after a thorough review of the nomination but also after interviewing 
and meeting with the nominee.
  Yesterday, we received a letter from 15 former presidents in the 
Hispanic National Bar Association, 15 well-respected national leaders 
of this important bar association, leaders who date back to the 
founding of the organization in 1972 have written to the Senate 
leadership to oppose this nomination. Their weighty opposition is based 
on the criteria to evaluate judicial nominees this association has 
formally used since 1991. It has been their standard practice for the 
past 30 years.
  In addition to the candidates' professional experience and 
temperament, the criteria for endorsement also includes, ``one, the 
extent to which a candidate has been involved and supported and 
responsive to the issues, needs, and concerns of Hispanic Americans; 
and, two, the candidates' demonstration of the concept of equal 
opportunity and equal justice under law.''
  In the view of the overwhelming majority of the living past 
presidents of the HNBA, Mr. Estrada's record does not provide evidence 
he meets those criteria. His candidacy falls short in those respects, 
they say.
  Now the Hispanic National Bar Association has been at the forefront 
of efforts to increase diversity on the Federal bench. They have been 
at the forefront of the effort to improve public confidence among 
Hispanics and others in the fairness of the Federal courts. The most 
important thing in the Federal courts is the fairness, their integrity, 
their independence.
  Time and time again I have asked, both when we have had nominees of 
Democratic Presidents and Republican Presidents, is this nominee 
somebody I believe I could walk into the court and be treated fairly? 
As a Democrat or Republican, whether as plaintiff or defendant, whether 
rich or poor, white or person of color, no matter what my religion, no 
matter what my background, would I be treated fairly?
  During Democratic leadership of the Senate, we confirmed 100 of 
President Bush's nominees, and I voted for the overwhelming majority of 
them. When I was chairman, I moved his nominees through far faster than 
Republicans ever did for President Clinton when they were in charge, 
when they averaged only 39 confirmations per year during their six and 
one-half years of control of the Senate. But I set the same test. 
Sometimes to satisfy myself of the test I had to go to a hearing that 
lasted sometimes a day long to be sure. You have a conservative, I want 
to be sure they will be fair and not too much of an ideologue; the same 
way I did when I believed someone was too liberal and could be too much 
of an ideologue. I had to satisfy myself they would be fair.
  Now, the HNBA has done the same. They want to make sure the Federal 
courts are independent and fair. They have supported Republican 
nominees as well as Democratic nominees. These 15 individuals, all of 
whom are past presidents of the Hispanic National Bar Association, 
people who have devoted a great deal of time in their legal careers to 
advancing the interests of Hispanics in the legal community, have felt 
compelled to publicly oppose the Estrada nomination.
  I regret very much that the White House, instead of seeking someone 
who would unite the community, has brought in somebody who would divide 
the community.
  Yesterday, Delores Huerta, who cofounded the United Farm Workers with 
Caesar Chavez, wrote a column in the Oregonian opposing Mr. Estrada's 
confirmation. I ask unanimous consent this article be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

                  [From the Oregonian, Feb. 24, 2003]

     Dolores C. Huerta: Estrada Would Destroy Hard-Fought Victories

                         (By Dolores C. Huerta)

       As a co-founder of the United Farm Workers with Cesar 
     Chavez, I know what progress looks like. Injustice and the 
     fight against it take many forms--from boycotts and marches 
     to contract negotiations and legislation. Over the years, we 
     had to fight against brutal opponents, but the courts were 
     often there to back us up. Where we moved forward, America's 
     courts helped to establish important legal protections for 
     all farm workers, all women, all Americans, Now, though, a 
     dangerous shift in the courts could destroy the worker's 
     rights, women's rights, and civil rights that our collective 
     actions secured.
       It is especially bitter for me that one of the most visible 
     agents of the strategy to erase our legal victories is being 
     called a great role model for Latinos. It is true that for 
     Latinos to realize America's promise of equality and justice 
     for all, we need to be represented in every sector of 
     business and every branch of government. But it is also true 
     that judges who would wipe out our hard-fought legal 
     victories--no matter where they were born or what color their 
     skin--are not role models for our children. And they are not 
     the kind of judges we want on the federal Courts.
       Miguel Estrada is a successful lawyer, and he has powerful 
     friends who are trying to get him a lifetime job as a federal 
     judge. Many of them talk about him being a future Supreme 
     Court justice. Shouldn't we be proud of him?
       I for one am not too proud of a man who is unconcerned 
     about the discrimination that many Latinos live with every 
     day. I am not especially proud of a man whose political 
     friends--the ones fighting hardest to put him on the court--
     are also fighting to abolish affirmative action and to make 
     it harder if not impossible for federal courts to protect the 
     rights and safety of workers and women and anyone with little 
     power and only the hope of the courts to protect their legal 
     rights.
       Just as we resist the injustice of racial profiling and the 
     assumption that we are lesser individuals because of where we 
     were born or the color of our skin, so too must we resist the 
     urge to endorse a man on the basis of his ethnic background. 
     Members of the Congressional Hispanic Caucus met with Miguel 
     Estrada and came away convinced that he would harm our 
     community as a federal judge. The Mexican American Legal 
     Defense and Educational Fund and the Puerto Rican Defense and 
     Education Fund reviewed his record and came to the same 
     conclusion.

[[Page 4285]]

       Are these groups fighting Miguel Estrada because they are 
     somehow anti-Hispanic? Are they saying that only people with 
     certain political views are ``true'' Latinos? Of course not. 
     They are saying that as a judge this man would do damage to 
     the rights we have fought so hard to obtain, and that we 
     cannot ignore that fact just because he is Latino. I think 
     Cesar Chavez would be turning over in his grave if he knew 
     that a candidate like this would be celebrated for supposedly 
     representing the Hispanic community. He would also be 
     dismayed that any civil rights organization would stay silent 
     or back such a candidate.
       To my friends who think this is all about politicians 
     fighting among themselves, I ask you to think what would have 
     happened over the last 40 years if the federal courts were 
     fighting against workers' rights and women's rights and civil 
     rights. And then think about how quickly that could become 
     the world we are living in.
       As MALDEF wrote in a detailed analysis, Estrada's record 
     suggests that ``he would not recognize the due process rights 
     of Latinos,'' that he ``would not fairly review Latino 
     allegations of racial profiling by law enforcement,'' that he 
     ``would most likely always find that government affirmative 
     action programs fail to meet'' legal standards, and that he 
     ``could very well compromise the rights of Latino voters 
     under the Voting Rights Act.''
       Miguel Estrada is only one of the people nominated by 
     President Bush who could destroy much of what we have built 
     if they become judges. The far right is fighting for them 
     just as it is fighting for Estrada. We must fight back 
     against Estrada and against all of them. If the only way to 
     stop this is a filibuster in the Senate, I say, Que viva la 
     filibuster!
       Dolores C. Huerta is the co-founder of the United Farm 
     Workers of America.

  Mr. LEAHY. Here is what this Hispanic leader wrote:

       It is true that for Latinos to realize America's promise of 
     equality and justice for all, we need to be represented in 
     every sector of business and every branch of government. But 
     it is also true that judges who would wipe out our hard-
     fought legal victories--no matter where they were born or 
     what color their skin--are not role models for our children. 
     And they are not the kind of judges we want on the federal 
     courts.
       Miguel Estrada is a successful lawyer, and he has powerful 
     friends who are trying to get him a lifetime job as a federal 
     judge. Many of them talk about him being a future Supreme 
     Court justice. Shouldn't we be proud of him?
       I for one am not too proud of a man who is unconcerned 
     about the discrimination that many Latinos live with every 
     day. I am not especially proud of a man whose political 
     friends--the ones fighting hardest to put him on the court--
     are also fighting to abolish affirmative action and to make 
     it harder if not impossible for federal courts to protect the 
     rights and safety of workers and women and anyone with little 
     power and only the hope of the courts to protect their legal 
     rights.
       Just as we resist the injustice of racial profiling and the 
     assumption that we are lesser individuals because of where we 
     were born or the color of our skin, so too must we resist the 
     urge to endorse a man on the basis of his ethnic background.
       Are these groups fighting Miguel Estrada because they are 
     somehow anti-Hispanic? Are they saying that only people with 
     certain political views are ``true'' Latinos? Of course not. 
     They are saying that as a judge this man would do damage to 
     the rights we have fought so hard to obtain, and that we 
     cannot ignore that fact just because he is Latino. I think 
     Cesar Chavez would be turning over in his grave if he knew 
     that a candidate like this would be celebrated for supposedly 
     representing the Hispanic community. He would also be 
     dismayed that any civil rights organization would stay silent 
     or back such a candidate.

  I deeply resent the charges leveled by Republicans that those 
opposing this nomination are anti-Latino or anti-Hispanic. As we began 
this debate about 2 weeks ago, I urged Republicans who said such things 
to apologize for these baseless and divisive charges. They have yet to 
do so. Because they have not apologized for these baseless charges, it 
prompted the League of Latin American Citizens, an organization that 
has supported this nomination, to write to the Senate to protest the 
charges leveled without basis by Republicans. I emphasize the League of 
United Latin American Citizens, which supports Mr. Estrada's 
nomination, has written to the Senate to protest the charges of bias 
leveled without basis by some Republicans.
  Hector Flares, the LULAC National President wrote on February 12:

       [W]e are alarmed by suggestions from some of the backers of 
     Mr. Estrada that the Senate Democrats and the members of the 
     Congressional Hispanic Caucus are opposing his nomination 
     because of his race, ethnicity or an anti-Hispanic bias. We 
     do not subscribe to this view at all and we do not wish to be 
     associated with such accusations.
       LULAC has had a long and productive working relationship 
     with many Senate Democrats and all of the members of the 
     Congressional Hispanic Caucus and our experience is that 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. . 
     . .

  I thank LULAC for disassociating itself with the base political 
efforts of Republicans to accuse those who oppose this nomination as 
doing so based on race or ethnicity. On the contrary, it is most often 
the Democratic Members of the Senate who support Hispanic priority 
issues.
  I thank LULAC for disassociating itself with the base political 
efforts of some Republicans who accuse those who oppose this nomination 
of doing so based on race or ethnicity. I renew my request for an 
apology for all the statements made in connection with the Senate 
debate that suggest those opposed to this nomination are anti-Hispanic.
  I think perhaps we should go back to a different time, a time when I 
first came to the Senate, when Republicans and Democrats assumed the 
best motives of patriotism and honesty on the part of each other; when 
you did not hear attacks made on people saying they are anti this race 
or that race or anti this religion or that religion. I am concerned.
  I will speak only for myself, not for other Senators, but I look back 
at 29 years in the Senate, a record of one who I think has always stood 
for antidiscrimination, one who has a record where I have never 
questioned the race, ethnicity, or religion of anybody else. When I 
hear charges that opposition to a candidate, in this case opposition to 
a candidate that has divided the American people, is done on the basis 
of that person's race, I find that more than distasteful, I find it 
wrong. In the same way, I found wrong the attacks on my religion by 
some in the Republican Party because of opposition to 1 of this 
President's more than 100 nominees, especially since I made it very 
clear in my statements on this floor that I never once considered 
religion or the background of any nominee for anything--nominees from 
either Republican or Democratic administrations. Not in any of the 
thousands upon thousands of nominees of both Republican and Democratic 
Presidents that I voted for have I ever once considered their religious 
background. So I find it distasteful when my religion is attacked by 
members of the Republican caucus, and I find it distasteful when 
members of that caucus attack Democrats on the claim that their 
principled opposition to this nomination is anti-Hispanic. I think the 
largest Hispanic organization supporting Mr. Estrada made it very clear 
they resent it, too. I join with them on that.
  We know Mr. Estrada's short legal career has been successful. By all 
accounts he is a good appellate lawyer and legal advocate. He has had a 
series of prestigious positions and is professionally and financially 
successful. In my case, as the grandson of immigrants, as a son, a 
father and grandfather, I know no matter the country of origin or 
economic background that a family takes pride in the success of its 
children. Mr. Estrada's family has much to be proud of in his 
accomplishments, no matter what happens to this nomination.
  He is now 41 years old. He has a successful legal career in a 
prominent corporate law firm, which was the firm of President Reagan's 
first Attorney General, William French Smith, and that of President 
Bush's current Solicitor General, Ted Olson. I am told that Mr. Olson, 
along with Kenneth Starr, have been among Mr. Estrada's conservative 
mentors. At his relatively young age, Mr. Estrada has become a partner 
in the law firm of Gibson, Dunn & Crutcher, having previously worked 
with the Wall Street law firm of Wachtell, Lipton, Rosen & Katz.
  While in private practice, his clients included major investment 
banks and health care providers. Mr. Estrada's financial statement, 
which Senator Hatch had printed in the Congressional Record, says he 
earned more than $\1/2\ million a year 2 years ago.

[[Page 4286]]

  At his hearing, Mr. Estrada testified:

       I have never known what it is to be poor, and I am very 
     thankful to my parents for that. And I have never known what 
     it is to be incredibly rich either, or even very rich, or 
     rich.

  I will let his financial statement speak for itself on that point. 
Half a million dollars a year in my State does put you in the upper 
brackets.
  So he is a well-compensated lawyer in a first-rate law firm. His 
family and friends take pride in his success, and rightfully so.
  In his almost 6 years with Gibson, Dunn & Crutcher, with its thriving 
appellate court practice, developed by its senior partner, Ted Olson, 
who was confirmed to be Solicitor General in June 2001, Mr. Estrada has 
had one argument before the Supreme Court--just one. That was in 
connection with a habeas petition on which he worked pro bono when he 
first came to the firm. It is one of the only pro bono cases he has 
taken in his entire legal career, according to his testimony.
  I am about to yield the floor. I note one thing, some of the speeches 
on the other side of the aisle make you think everyone opposes the 
efforts of Democrats to get answers to fair questions and review 
documents provided in past nominations. Especially in the case where a 
supervisor has called into question a nominee's ability to be fair, 
that is all the more reason we should see what he did. There is also 
ample precedent for the Senate Judiciary Committee examining memos 
written by Department of Justice attorneys, including Assistant 
Solicitor Generals--like Mr. Estrada was--in connection with 
nominations to either lifetime or short-term appointments, such as in 
the nominations of Robert Bork, William Rehnquist, Brad Reynolds, 
Stephen Trott, and Benjamin Civiletti.
  There have been a number of papers and published editorials and op-
eds supporting our efforts to know more about Mr. Estrada before we 
give him a lifetime seat, before we could never question him again, 
before we put him, for a lifetime, on one of the most powerful courts 
of the country.
  On February 4, Senator Hatch said, and I will paraphrase: Mr. Estrada 
is not nominated to the Supreme Court--of course he is right--but his 
nomination may be even more important because the Supreme Court hears 
only about 90 cases per year while the DC Circuit issues nearly 1,500 
decisions per year. These decisions affect the rights of working people 
and the environmental rights of all people. The Senate must not be a 
rubberstamp.
  I ask unanimous consent to have printed in the Record some of the 
editorials in favor of the position the Democrats have taken here. Just 
to name a few, we have editorials from the New York Times, the Boston 
Globe, and the Rutland Daily Herald, among others, as well as op-ed 
from the Washington Post and Wall Street Journal, and letters to the 
editor of the Washington Post, disagreeing with their earlier 
editorial--touted by Republicans this morning--urging an immediate vote 
in spite of the precedent for requesting documents and getting answers 
to questions before giving someone such an important job.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Feb. 13, 2003]

                   Keep Talking About Miguel Estrada

       The Bush administration is missing the point in the Senate 
     battle over Miguel Estrada, its controversial nominee to the 
     powerful D.C. Circuit Court of Appeals. Democrats who have 
     vowed to filibuster the nomination are not engaging in 
     ``shameful politics,'' as the president has put it, nor are 
     they anti-Latino, as Republicans have cynically charged. They 
     are insisting that the White House respect the Senate's role 
     in confirming judicial nominees.
       The Bush administration has shown no interest in working 
     with Senate Democrats to select nominees who could be 
     approved by consensus, and has dug in its heels on its most 
     controversial choices. At their confirmation hearings, 
     judicial nominees have refused to answer questions about 
     their views on legal issues. And Senate Republicans have 
     rushed through the procedures on controversial nominees.
       Mr. Estrada embodies the White House's scorn for the 
     Senate's role. Dubbed the ``stealth candidate,'' he arrived 
     with an extremely conservative reputation but almost no paper 
     trail. He refused to answer questions, and although he had 
     written many memorandums as a lawyer in the Justice 
     Department, the White House refused to release them.
       The Senate Democratic leader, Tom Daschle, insists that the 
     Senate be given the information it needs to evaluate Mr. 
     Estrada. He says there cannot be a vote until senators are 
     given access to Mr. Estrada's memorandums and until they get 
     answers to their questions. The White House can call this 
     politics or obstruction. But in fact it is senators doing 
     their jobs.
                                  ____


                 [From the Boston Globe, Feb. 15, 2003]

                             Rush to Judges

       The Senate Judiciary Committee ought to come with a warning 
     sign: Watch out for fast-moving judicial nominees. Controlled 
     by Republicans, the committee is approving President Bush's 
     federal court nominees at speeds that defy common sense.
       One example is Miguel Estrada, nominated to the US Court of 
     Appeals for the District of Columbia. Nominated in May 2001, 
     Estrada had been on a slow track, his conservative views 
     attracting concern and criticism.
       Some Republicans called Democrats anti-Hispanic for 
     challenging Estrada. He came to the United States from 
     Honduras at the age of 17, improved his English, earned a 
     college degree from Columbia, a law degree from Harvard, and 
     served as a Supreme Court clerk for Justice Anthony Kennedy.
       What has raised red flags is Estrada's refusal to answer 
     committee members' questions about his legal views or to 
     provide documents showing his legal work. This prompted the 
     Senate minority leader, Thomas Daschle, to conclude that 
     Estrada either ``knows nothing or he feels he needs to hide 
     something.''
       Nonetheless, Estrada's nomination won partisan committee 
     approval last month. All 10 Republicans voted for him; all 
     nine Democrats voted against. On Tuesday Senate Democrats 
     began to filibuster Estrada's nomination, a dramatic move to 
     block a full Senate vote that could trigger waves of 
     political vendettas.
       It's crucial to evaluate candidates based on their merits 
     and the needs of the country.
       Given that the electorate was divided in 2000, it's clear 
     that the country is a politically centrist place that should 
     have mainstream judges, especially since many of these 
     nominees could affect the next several decades of legal life 
     in the United States.
       Further, this is a nation that believes in protecting 
     workers' rights, especially in the aftermath of Enron. It's 
     an America that struggles with the moral arguments over 
     abortion but largely accepts a woman's right to make a 
     private choice. It's an America that believes in civil rights 
     and its power to put a Colin Powell on the international 
     stage.
       Does Estrada meet these criteria? He isn't providing enough 
     information to be sure. And the records of some other 
     nominees fail to meet these standards.
       Debating the merits of these nominees is also crucial 
     because some, like Estrada, could become nominees for the 
     Supreme Court.
       The choir--Democrats, civil rights groups, labor groups, 
     and women's groups--is already singing about how modern-day 
     America should have modern-day judges. It's time for moderate 
     Republicans and voters to join in so that the president can't 
     ignore democracy's 21st-century judicial needs.
                                  ____


             [From the Wall Street Journal, Feb. 20, 2003]

                    Symmetry in Judicial Nominations

       The White House has a message for Democratic senators tying 
     up its judicial nominations: we won the election, you're 
     thwarting the people's will.
       Not quite. Never mind it was an evenly divided electorate. 
     The selection of judges was a non-issue. George W. Bush 
     didn't even mention the topic in his speech at the GOP's 
     Philadelphia convention or in his acceptance remarks when he 
     finally emerged victorious--thanks to judges--after Florida.
       In two of the three debates, judicial selections weren't 
     mentioned. In the other, candidate Bush, while ducking the 
     question of whether all his judicial appointments would be 
     anti-abortion, insisted he wouldn't have any litmus tests. 
     But he declared that, unlike Vice President Gore, he would 
     not appoint judicial activists; judges, he declared, ``ought 
     not take the place'' of Congress. As the president accuses 
     Democrats of playing politics, however, he nominates almost 
     nothing but pro-life judges and passionate activists of a 
     conservative stripe.
       For all the emotions judicial appointments arouse on both 
     sides, the political implications for senators are wildly 
     exaggerated. Over the past several decades the only one who 
     lost an election because of a judicial vote was Illinois 
     Democrat Alan Dixon, defeated in a primary after he voted to 
     confirm Clarence Thomas for the Supreme Court. What these 
     battles are about is energizing the base; that's why during 
     presidential campaigns they are retail, not wholesale, 
     issues.
       Currently, Senate Democrats are staging a mini-filibuster 
     over the nomination of movement conservative Miguel Estrada 
     for the U.S. Court of Appeals to the dismay of not only 
     Republicans but many editorial writers.

[[Page 4287]]

     How dare they employ politics! In these matters there should 
     be a simple test: symmetry. Or, as former Clinton Solicitor 
     General Walter Dellinger declares, ``Whatever factor a 
     President may properly consider, senators should also 
     consider.'' Since ideology clearly is the guiding force 
     behind the slate of Bush circuit court nominees, it's 
     perfectly appropriate for Senate Democrats to use the same 
     standard.
       That's certainly the criterion Republicans used in the 
     Clinton years. Orrin Hatch is outraged at Democrats' 
     insistence that nominee Miguel Estrada, who refuses to 
     express an opinion on any Supreme Court decision, be more 
     forthcoming. Yet it was only a few years ago that the same 
     Utah Republican was insisting on the need ``to review . . .  
     nominees with great specificity.''
       In 1996 Sen. Hatch decried two Clinton, judicial nominees 
     as ``activists who would legislate from the bench.'' Later, 
     the then Senate Republican leader, Trent Lott, left no doubt 
     that it was ideology that prompted his objections to the 
     ``judicial philosophies and likely activism'' of prospective 
     judges.
       Judicial activism used to be a term reserved for liberals. 
     Now much activism on the bench comes from the right, often, 
     in the words candidate Bush used to attack liberals, in the 
     form of judges who ``subvert'' the legislature. In recent 
     years, congressional measures such as the Americans with 
     Disabilities Act, legislation to oppose violence against 
     women and to increase gun control have been gutted by 
     conservative judges.
       As Indiana law professor and former Clinton Justice 
     Department official Dawn Johnson chronicled in a Washington 
     Monthly piece last year, the right-wing Federalist Society-
     agenda envisions an activist judiciary that would roll back 
     many of the guarantees enacted by Congress under the Commerce 
     Clause and the 14th Amendment.
       A contemporary example is Jeffrey Sutton, a brainy legal 
     scholar nominated for the Fourth Circuit Court of Appeals. 
     Mr. Sutton clearly is qualified but just as clearly would 
     turn back the clock on protecting people with disabilities. 
     Should senators who care about disability rights simply 
     ignore his ideology?
       The right claims that central to the Democrats' opposition 
     to these nominees is abortion. And it's true that, more than 
     any other issue, abortion remains a litmus test for both 
     sides. Almost all the Bush circuit-court nominees have been 
     pro-life and a high percentage of the Clinton appointments 
     were pro-choice. But, as Mr. Sutton's selection shows, the 
     issues are much broader than the disproportionate influence 
     placed on abortion.
       In the Estrada fight, some Republicans also allege an anti-
     Hispanic motive. Opposition to his nominees sends ``the wrong 
     message to Hispanic communities,'' charges Georgia Sen. Saxby 
     Chambliss. For the record, Mr. Bush has nominated one 
     Hispanic judge to the circuit courts; President Clinton 
     nominated 11. Three of the Clinton nominations were killed by 
     Senate Republicans. Were they racially motivated? That makes 
     as much sense as the Estrada charges.
       To be sure, the Democrats play the same games, though the 
     Clinton nominees, as a whole, were nowhere near as 
     ideological as the Bush picks. But there is some overreach; 
     the Democrats' efforts to get Mr. Estrada's private notes 
     when he worked in the solicitor general's office would set a 
     bad precedent.
       Thoughtful people on both sides of the aisle worry about 
     these perpetual battles. Mr. Dellinger, for one, notes that 
     if the focus is only on ``noncontroversial,'' selections, the 
     result chiefly would be courts full of ``relatively 
     undistinguished lawyers lacking any substantial record of 
     creative scholarship or advocacy.'' Instead, he proposes a 
     more constructive solution. Opposition leaders in the Senate 
     would develop a short list of distinguished scholars and 
     practitioners for the president to submit for the courts of 
     appeal. There is a precedent: President Bush last year 
     renominated Clinton nominee, Roger Gregory, the first African 
     American on the Fourth Circuit, in to win acceptance for his 
     other nominees.
       Currently, Mr. Dellinger says if Senate Democrats proposed 
     a ``distinguished'' nominee like former Solicitor General 
     Seth Waxman for the U.S. Circuit Court, a deal could be 
     crafted whereby he and Bush nominees Mr. Estrada and John 
     Roberts are promptly confirmed. Republicans still would hold 
     the upper hand, but the rightward rush would be modified.
       It makes a lot of sense and would result in a better 
     judiciary. But the activists on both sides have little 
     interest; it wouldn't energize their bases.
                                  ____


             [From the Rutland Daily Herald, Feb. 24, 2003]

                            Partisan Warfare

       Senate Democrats are expected to continue their filibuster 
     this week against the appointment of Miguel Estrada, a 41-
     year-old lawyer whom President Bush has named to the federal 
     appeals court in Washington, D.C.
       Sen. Patrick Leahy, ranking Democrat on the Judiciary 
     Committee, is in the middle of the fight over the Estrada 
     appointment. He and his fellow Democrats should hold firm 
     against the Estrada nomination.
       Much is at stake in the Estrada case, most importantly the 
     question of whether the Democrats have the resolve to resist 
     the efforts of the Bush administration to pack the judiciary 
     with extreme conservative judges.
       The problem with the Estrada nomination is that Estrada has 
     no record as a judge, and senators on the Judiciary Committee 
     do not believe he has been sufficiently forthcoming about his 
     views. It is their duty to advise and consent on judicial 
     nominees, and Estrada has given them no basis for deciding 
     whether to consent.
       President Bush has called the Democrats' opposition to 
     Estrada disgraceful, and his fellow Republicans have made the 
     ludicrous charge that, in opposing Estrada, the Democrats are 
     anti-Hispanic. For a party on record against affirmative 
     action, the Republicans are guilty of cynical racial politics 
     for nominating Estrada in the first place. He has little to 
     qualify him for the position except that he is Hispanic.
       Unless the Democrats are willing to stand firm against 
     Bush's most extreme nominations, Bush will have the 
     opportunity to push the judiciary far to the right of the 
     American people. Leahy, for one, has often urged Bush to send 
     to the Senate moderate nominees around whom Democrats and 
     Republicans could form a consensus. In a nation and a 
     Congress that is evenly divided politically, moderation makes 
     sense.
       But Bush's Justice Department is driven by conservative 
     idealogues who see no reason for compromise. That being the 
     case, the Senate Democrats have no choice but to hold the 
     line against the most extreme nominees.
       Leahy has drawn much heat for opposing Bush's nominees. But 
     he has opposed only three. In his tenure as chairman of the 
     committee, he sped through to confirmation far more nominees 
     than his Republican predecessor had done. But for the Senate 
     merely to rubber stamp the nominees sent their way by the 
     White House would be for the Senate to surrender its 
     constitutional role as a check on the excesses of the 
     executive.
       The Republicans are accusing the Democrats of partisan 
     politics. Of course, the Republicans are expert at the game, 
     refusing even to consider numerous nominees sent to the 
     Senate by President Clinton.
       The impasse over Estrada is partisan politics of an 
     important kind. The Republicans must not be allowed to shame 
     the Democrats into acquiescence. For the Democrats to give in 
     would be for them to surrender to the fierce partisanship of 
     the Republicans.
       The wars over judicial nominees are likely to continue as 
     long as Bush, with the help of Attorney General John 
     Ashcroft, believes it is important to fill the judiciary with 
     extreme right-wing judges.
       The Democrats, of course, would like nothing better than to 
     approve the nomination of a Hispanic judge. But unless the 
     nominee is qualified, doing so would be a form of racial 
     pandering. That is the game in which the Republicans are 
     engaged, and the Democrats must not allow it to succeed.
  Mr. LEAHY. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I have been listening to my distinguished 
colleague. I noted that he mentioned the Hispanic National Bar 
Association's past presidents' statement. I have seldom read a 
statement that is so absolutely bankrupt as this statement. I have 
seldom read anything that has disgusted me as much as these past 
presidents of this Hispanic Bar Association in this letter. I have 
never seen less backing for a letter than what these people have signed 
off on.
  First, let me note for the record that the Hispanic National Bar 
Association supports Mr. Estrada's nomination. So these people have 
gone way off the reservation. They may have been past presidents, but 
they should never be allowed to be a president of this bar association 
again. They ought to throw them out of the bar association because they 
entered into politicization of this nominee, in contradiction to what 
their own bar association has done in endorsing him. The bar 
association speaks for its many members, not these 15 former 
presidents. We know why they have done this, because they are 15 
partisans. It is disgraceful.
  Let me read part of this letter--``Based upon our review and 
understanding. . . .''
  What kind of review? They talked to their friends on the Democratic 
side? Is that where they got this stuff? Most of which is absolutely 
false and distorted:

       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.

  Listen to this:

       We believe for many reasons including his virtually 
     nonexistent written record. . . .


[[Page 4288]]


  Could I make a little point here that I think needs to be made? These 
are the appellate briefs in the 15 Supreme Court cases. There has not 
been a nominee before this Senate in recent years who has been able to 
have that type of illustration of what they do.
  These inane people who have entered into partisan politics have 
disparaged a man who is 10 times better than they are. It is 
unbelievable the lengths and the depths to which they will stoop to 
betray one of their own fellow Hispanic people.
  I hope the rest of the members of the Hispanic Bar Association will 
rise up and let them know how for off the mark they are.
  Listen to this:

       We believe that for many reasons including: his virtually 
     nonexistent written record, his . . . judicial and academic 
     teaching experience--

  This is the written stuff that they can't match--very few of them--or 
even come close to matching. I don't think any of them can. The reason 
I don't think so is because not many people in this world have that 
type of a record--a written, open record that anybody can read and 
find. There are not many attorneys living today who have argued 15 
cases before the U.S. Supreme Court and have the record of winning 10 
of them.
  They say he doesn't have any academic teaching experience. You mean 
you can't be a judge?
  Let us put it this way. Since there have been many academics who have 
gone on the Federal bench in circuit courts of appeals, the Supreme 
Court, and district courts, do you mean the Hispanics can't go on the 
bench unless they have academic and teaching records?
  That is what this seems to say by 15 former presidents of the 
Hispanic Bar Association which has endorsed him. They have gone against 
their own organization. It is hard to believe.
  Then they said:

       We believe that for many reasons including: his virtually 
     nonexistent written record.

  Look at that record. He has verbally expressed an unrebutted extreme 
view?
  I haven't heard an extreme view throughout this whole process, and we 
have a transcript that thick of questions by our friends on the other 
side, and ourselves really. Extreme views? I haven't heard any extreme 
views. I don't think anybody has made a case that he has extreme views.
  Then the letter says, ``his lack of judicial or academic teaching 
experience--
  OK. What they are saying--these Hispanic Bar Association presidents--
is that hardly any Hispanics will ever qualify for the circuit court of 
appeals or even the district court because they haven't had any 
judicial experience or teaching experience. They are condemning their 
own people. What a ridiculous, dumb statement. I don't swear. But I'll 
be darned. I am having a tough time not swearing here.
  Then it says in parentheses:

     (against which his fairness, reasoning skills and judicial 
     philosophy could be properly tested)

  What about the five of the eight on the current court who haven't any 
judicial experience? And I don't know many of them who have had any 
teaching experience. You can go through dozens of Clinton appointees 
who never had any either.
  Why the double standard for Miguel Estrada? Why? I am having a rough 
time answering that question.
  There are some answers which I hope aren't true. But I am starting to 
think they are true.
  It says:

     . . . his poor judicial temperament.

  Since he has never been a judge, how do they know what his judicial 
temperament is? The fact is that none of them--I don't believe any of 
them--even know Miguel Estrada. And if they do, they know he has a 
decent temperament.
  Do you know where they get that? They get that from some of our 
friends on the other side who believe that Paul Bender, who we have 
discredited, I believe, fairly and honestly, who gave him the highest 
possible ratings when Miguel was his junior, when he was Miguel's 
supervisor in the Solicitor General's Office, and then off the cuff 
says he doesn't have a judicial temperament, in essence.
  Who are you going to believe? The things that he put in writing at 
the time when they were really important and when they really made a 
difference or the off-the-cuff remarks that a partisan Democrat 
liberal--about as liberal as you can get--would say to try to scuttle a 
nomination? These guys buy it--lock, stock, and barrel. What kind of 
lawyers are they? Then they say:

     . . . his total lack of any connection whatsoever to, or lack 
     of demonstrated interest in the Hispanic community.

  How do they know that? They are prejudging this man without knowing 
all the people he has met with and worked with and for whom he has been 
an example. Every Hispanic young person can look up to Miguel Estrada 
because he is the embodiment of the American dream.
  My gosh. This is the most biased, uninformed, stupid, dumb letter I 
have ever read, and it is done for purely partisan purposes against a 
fellow Hispanic. I can't believe it. I couldn't believe it when I saw 
this.
  Then it says:

     . . . his refusals to answer even the most basic questions 
     about civil rights and constitutional law.

  Give me a break. He spent as much if not more time than almost any 
nominee we have had over the last 27 years to the circuit court of 
appeals. We simply did not treat people as this man is being treated by 
some on the other side--not everybody. What do they know about his 
knowledge of civil rights and constitutional law? I happen to believe 
Miguel Estrada will be one of the champions for civil rights, and he is 
certainly one of the tough lawyers with regard to constitutional law--
something I doubt very many of these past presidents had much 
experience in. Maybe they do. I would like to hear from them if they 
do. But I am disgusted with them. If they do, that makes it even worse 
because they have misjudged him if they have the experience in these 
areas--and I doubt that they do.
  Then they say:

     . . . his less than candid responses to other straightforward 
     questions of Senate judiciary members.

  Where did they get that? I bet none of them have read this 
transcript. I doubt that many of them saw the hearings. Where would 
they get that? It certainly wasn't from this side, I guarantee you, 
because we saw him answer the questions. He just didn't answer them the 
way our colleagues on the other side of the aisle wanted him to answer 
them. They couldn't lay a glove on him. That is why this is a phony 
request for confidential and privileged materials from the Solicitor 
General's Office--the attorney for our country and for the people in 
this country.
  Let me tell you that when I practiced law, my files were 
confidential, too. There is no way I would have given them to anybody. 
There is no court in the land that would force me to give them to 
anyone. They are privileged; that is, since I am an attorney. Can you 
imagine the privilege the Solicitor General's Office can assert--and 
they have.
  Like I said, seven former Solicitors General--four of whom were 
Democrats--have said this is ridiculous. Yet it keeps coming up. It is 
a red herring. It is a double standard. It is a standard applied to 
Miguel Estrada that has never in history been applied to anybody else.
  The letter request was to give up his recommendations on appeals, 
certiorari matters and amicus curiae matters.
  Then it says:

     . . . and because of the administration's refusal to provide 
     the Judiciary Committee the additional information and 
     cooperation it needs to address these concerns.

  Give me a break. He has made himself available. Any Democrat who 
wants to talk to him he will talk to. A number of them refused to even 
talk to him. Why is that?
  So they are trying to do justice here? Why is that so? Why is this 
Hispanic independent thinker being treated this way? I suggest that it 
is because he is

[[Page 4289]]

Hispanic and he is an independent thinker. He doesn't just toe the 
line.
  I am disgusted. Some of these people I know. They should have done 
better by their fellow Hispanics. They should have thought twice before 
putting their names on this piece of garbage called a letter by past 
presidents. It is a disgrace to the Hispanic community. It is a 
disgrace to the Hispanic National Bar Association and the rest of the 
membership that is behind Miguel Estrada. And it is a disgrace to them 
personally to do this type of disgraceful thing in a miserably partisan 
way.
  I don't want to spend any more time on it. It doesn't deserve it. I 
didn't mean to be so aggravated, but these types of things just 
aggravate me to death.
  I fought very hard for Clinton's nominees. The other side knows it. I 
was very fair to their nominees. They know it. Was everyone fair to 
them? Not everybody, but I was. I expect fairness to be given to our 
nominee and to their President's nominees.
  Finally, I didn't agree with President Clinton's nominees' ideology 
in probably none of the cases--none of the nominees. But that wasn't 
the issue. The issue was whether they were qualified. And there has 
very seldom been a person as qualified as Miguel Estrada. All you have 
to do is point to the ABA's unanimous well-qualified rating, the 
highest rating they could possibly give. They are tough.
  Now, having said that, I am really disappointed in my colleagues on 
the other side because they have tried to say the standing committee of 
the American Bar Association was prejudiced and stacked in coming up 
with this rating. They do not have a good argument to make, so they 
make a phony argument.
  I want to respond to statements by one of my Democratic colleagues 
yesterday, suggesting that Mr. Estrada's ABA rating was somehow rigged. 
I hate to say it, but this is stooping low, too, to make that kind of a 
statement.
  Before I address these statements head on, I think it is first 
appropriate to lay the predicate, to lay the significance of Mr. 
Estrada's ABA rating.
  Let me just look at this chart. This chart is entitled ``Senate 
Democrats Praise the ABA.''

       [The] ABA evaluation has been the gold standard by which 
     judicial candidates have been judged.

  That was Senator Patrick Leahy in March 2001.

       What ABA is simply telling us, and has historically, is 
     whether or not a prospective judge is competent.

  That was Senator Tom Daschle on March 22, 2001.

       [I] fear . . . that the Judiciary Committee will be less 
     able than the ABA to discern a nominee's legal 
     qualifications.

  That was Senator Dianne Feinstein on March 31, 2001, the 
distinguished Senator from California. She is right.

       The ABA, with its extensive contacts in the legal community 
     all across the country, is the best organization to evaluate 
     the integrity, professional competence and judicial 
     temperament of potential nominees.

  That was Senator Russell Feingold in July 2001.

       [T]he ABA . . . has always been impartial. . . . [The ABA 
     is] hardly partisan or ideological. . . . The ABA is the 
     national organization of all lawyers: Democrats, Republicans, 
     liberals, conservatives.

  That was Senator Charles Schumer on May 9, 2001.
  We have had our problems with the ABA when there were, it seemed to 
me, prejudicial decisions from time to time made. And I have had some 
real problems with them. But I have to say, they certainly have cleaned 
up their act, and I said this before the end of the Clinton 
administration, even though I have not been happy with any one single 
organization having a vetting responsibility, which is what some of my 
colleagues always wanted the ABA to have.
  Now, let's consider Miguel Estrada. The ABA rated him ``well 
qualified'' unanimously--that is the highest possible score--at around 
the time my Democratic colleagues heaped praise on the ABA. But now, 2 
years later, some of my friends across the aisle apparently want to 
adopt a new rule: ABA ratings are the gold standard--unless we don't 
like the nominee.
  It is against this backdrop that one of my Democratic colleagues, the 
distinguished minority whip, now asserts that respected Washington 
lawyer Fred Fielding somehow tricked the ABA into rating Miguel Estrada 
unanimously well qualified.
  Now, I have great respect and loving friendship for my friend from 
Nevada. Everybody knows that. I care for him deeply. But I could hardly 
believe my ears when I heard that one. I think it is important to set 
the record straight, and so here are the facts. I have to presume my 
colleague just did not know the facts and, therefore, went off on this 
tangent, and I hope he will withdraw that statement once he hears what 
the facts are.
  Mr. Fielding was a member of the ABA standing committee that rates 
judicial nominees when Miguel Estrada was unanimously rated well 
qualified. Mr. Fielding left the ABA committee in November 2001. He did 
not become affiliated with Boyden Gray's Committee for Justice until 
August 2002. In fact, the Committee for Justice was not even founded 
until August 2002. There is no way the Committee for Justice could have 
influenced Mr. Fielding's duties at the ABA because the Committee for 
Justice did not even exist at the time.
  From 1996 to 2002, when he was on the ABA committee, Fred Fielding 
consistently evaluated nominees fairly and with an open mind. He voted 
to rate many of President Clinton's circuit court nominees ``well 
qualified,'' including the following:
  Allan Snyder, the DC Circuit Court of Appeals; Robert Katzmann, the 
Second Circuit Court of Appeals; Marjorie Rendell, the Third Circuit 
Court of Appeals; Maryanne Barry, the Third Circuit Court of Appeals; 
Robert Cindrich, the Third Circuit Court of Appeals; Stephen Orlofsky, 
the Third Circuit Court of Appeals; Andrew Davis, the Fourth Circuit 
Court of Appeals; Alston Johnson, the Fifth Circuit Court of Appeals; 
Ronald Gilman, the Sixth Circuit Court of Appeals; Kathleen McCree 
Lewis, the Sixth Circuit Court of Appeals; Ann Claire Williams, the 
Seventh Circuit Court of Appeals; Susan Graber, the Ninth Circuit Court 
of Appeals; James Duffy, the Ninth Circuit Court of Appeals; Richard 
Tallman, the Ninth Circuit Court of Appeals; Raymond Fisher, the Ninth 
Circuit Court of Appeals; Stanley Marcus, the Eleventh Circuit Court of 
Appeals; Frank Hull, the Eleventh Circuit Court of Appeals--all of 
those rated by Mr. Fielding as unanimously well qualified.
  You can hardly say this man was as was described yesterday; in fact, 
not at all. Anybody who knows Fred Fielding knows he is an honest man. 
It is offensive to have that type of characterization made, even in the 
height of a very political battle, which this appears to be--well, to 
be. I could have said 2 weeks ago: to be coming.
  Now, as that list illustrates, Mr. Fielding voted to give numerous 
Clinton circuit nominees the highest rating possible. If he had been 
promoting a partisan agenda, he would not have voted to find a single 
Clinton nominee well qualified, or he certainly would have found a 
number of those, perhaps, not well qualified--even though they deserved 
the qualification they got--if he was partisan.
  There is simply no reason to believe his vote to find Miguel Estrada 
well qualified reflected anything other than his unbiased, nonpartisan 
assessment of Mr. Estrada's fitness for the Federal bench.
  Moreover, there is simply no way Mr. Fielding alone could have been 
responsible for the ABA's unanimous decision to rate Miguel Estrada 
``well qualified.'' The ABA's rules make clear that every member of the 
ratings committee must evaluate each nominee independently:

       After careful consideration of the formal report and its 
     enclosures, each member submits his or her rating vote to the 
     Chair.

  Now, that is an insult to the other members of the standing committee 
for somebody to imply they would all pay attention to a ``corrupt'' Mr. 
Fielding, if that were even possible, which, of course, it is not.
  Mr. Fielding's background as a Republican was more than offset by the 
committed Democrats who served on

[[Page 4290]]

the ABA committee at the time and who joined in the unanimous decision 
to give Miguel Estrada a well-qualified rating.
  For example, according to public records, the chairman of the ABA 
committee at the time Mr. Estrada was rated well qualified contributed 
to the election campaign of Senator Schumer. This individual agreed 
that Miguel Estrada is ``well qualified,'' the highest rating possible.
  Now, I am not going to accuse the chairman of the ABA committee at 
the time, because he donated to Senator Schumer's campaign--which he 
had every right to do--I am not going to accuse him of being improper, 
as I believe the implication was for Mr. Fielding.
  Get this point. The ABA's Second Circuit representative contributed 
to Senator Robert Torricelli's reelection campaign and to the New 
Jersey Democratic State Committee. This individual agreed that Miguel 
Estrada should be given the highest rating: ``well qualified,'' 
unanimously, the highest rating.
  I am not going to say that person was biased because that person gave 
to Senator Torricelli. It is apparent he was not biased.
  How about the ABA's Fourth Circuit representative? He made political 
contributions to Senator Charles Schumer, Senator Tom Daschle, Senator 
Jean Carnahan, former Vice President Al Gore, Representative Jerrold 
Nadler, Representative Martin Frost, Representative Anthony Weiner, 
Representative Ellen Tauscher, and Representative Charles Rangel. This 
individual agreed that Miguel Estrada is ``well qualified.'' I do not 
think these people would be influenced by some Republican saying: Well, 
we ought to pull a fast one here and get this fellow well qualified 
when he was not worthy of being well qualified.
  There is no question that Fred Fielding is a Republican. There is no 
question that he supports Republicans politically. But there is also no 
question he is a person of impeccable honor and integrity who has 
served as White House Counsel and that he would do what is right on 
this committee, just like these Democrats did what was right in rating 
Miguel Estrada as well qualified.
  How about this: The ABA's Sixth Circuit representative--this is on 
the standing committee--contributed to the Democratic National 
Committee, Senator Frank Lautenberg, Senator Charles Schumer, former 
Senator Bill Bradley, Senator Edward Kennedy, Representative Richard 
Gephardt, and the Arizona State Democratic Central Executive Committee. 
Now, this individual agreed that Miguel Estrada is ``well qualified,'' 
the highest rating the standing committee could give. He could not be a 
more partisan Democrat, but I believe he is doing the job fairly on the 
committee.
  The fact that he supports Democrats, I wish he didn't as much as a 
Republican, but the fact that he supports Democrats I find no problem 
with.
  How about this one: The ABA's Seventh Circuit representative 
contributed to Emily's List, the feminist political organization; 
Voters for Choice, one of the pro-abortion organizations; Senator Patty 
Murray; former Representative Geraldine Ferraro, former Senator Carol 
Moseley-Braun; Senator Mary Landrieu; Senator Jean Carnahan; Senator 
Barbara Mikulski, and Senator Dick Durbin. Yet he voted ``well 
qualified.'' So Fielding is out of line? Come on. That is phony.
  How about the ABA's Eighth Circuit representative. He contributed to 
Senator Joseph Biden, Senator Hillary Clinton, Senator Paul Wellstone, 
Senator Jean Carnahan, and former Vice President Al Gore. This 
individual agreed that Miguel Estrada is ``well qualified.'' I don't 
think he had any bias in that. I don't think Fred Fielding had all that 
influence with all these big-time Democrats. I really don't. I don't 
think anybody in their right mind does.
  How about the ABA's Eleventh Circuit representative. He contributed 
to Senator Max Cleland. This individual agreed that Miguel Estrada is 
``well qualified.'' Did he have a bias? Do you think he was influenced 
by Fred Fielding?
  How about the ABA's Federal circuit representative who contributed to 
Emily's List, the pro-feminist list; Senator Chuck Robb; the Democratic 
National Committee. This individual agreed that Miguel Estrada is 
``well qualified.'' That is just the beginning of the story.
  At the start of the 108th Congress, the ABA then reaffirmed Mr. 
Estrada's unanimous well-qualified rating. It appears that the 
Democrats on this year's ABA committee are equally enthusiastic about 
Miguel Estrada's nomination.
  The ABA's DC Circuit representative--Fred Fielding's successor--
contributed to the Democratic National Committee and Emily's List. This 
individual agreed that Miguel Estrada is ``well qualified.''
  The ABA's Federal circuit representative contributed to Senator 
Hillary Clinton, the Irish American Democrats, Representative Nancy 
Pelosi, the Democratic National Committee, Senator John Breaux, former 
Vice President Al Gore, and the Democratic Congressional Campaign 
Committee. This individual agreed that Miguel Estrada is ``well 
qualified.''
  I wonder why all these Democrats on the ABA's standing committee find 
him well qualified while our friends on the floor are filibustering 
this well-qualified individual? I don't understand it. It seems to me 
to be a double standard.
  The ABA's Fourth Circuit representative contributed to Senator John 
Edwards in the North Carolina Democratic Victory Fund and Bill Bradley. 
This individual agreed that Miguel Estrada is ``well qualified.''
  The ABA's Eighth Circuit representative contributed to the Missouri 
Democratic State Committee and Senator Jean Carnahan. This individual 
agreed that Miguel Estrada is ``well qualified.'' There are a lot of 
Democrat leaders who contributed to a lot of Democrats running for 
office who all found Miguel Estrada well qualified, unanimously well 
qualified.
  What is clear from this recitation of political contributions is that 
in Mr. Estrada's case, the attorneys on the ABA committee put aside 
their political views and provided the Senate with a neutral and 
dispassionate analysis of his qualifications.
  Fred Fielding, of course, did not hijack the ABA process, nor was Mr. 
Fielding's participation in that process ``unethical,'' as my 
Democratic colleagues suggested.
  It is time to get rid of these phony arguments. In the case of Miguel 
Estrada, the process worked just as the ABA intended. It took a lot of 
very partisan Democrats acting in a nonpartisan way fulfilling their 
duties on the ABA standing committee to find him well qualified, not 
just when Mr. Fielding was on the committee but also the second time in 
this Congress.
  That is pretty important stuff. I have to respond to Senator Leahy's 
remarks that Miguel Estrada handled only one pro bono case. That is not 
accurate. I am sure my colleague must have overlooked the case of 
Campaneria v. Reid. Miguel Estrada represented pro bono, without fee, a 
criminal defendant seeking to vacate his conviction on grounds that the 
admission of his confession at trial violated the Miranda rule. The two 
judges on the Second Circuit panel hearing the case agreed with Miguel 
Estrada that his client's right to remain silent had been violated but 
ultimately ruled that the error was harmless. One judge dissented, 
arguing that the admission of Mr. Campaneria's confession was not 
harmless. Miguel Estrada spent countless pro bono hours on that case 
which further illustrates his commitment to equal access to justice for 
all.
  Since Senator Leahy brought up Mr. Estrada's pro bono work, let me 
remind him of Mr. Estrada's work in Strickler v. Green. This is an 
important case as well. It is important to bring it up in light of what 
has been said. Miguel Estrada represented, free of charge, Tommy David 
Strickler, who was convicted of abducting a college student from a 
shopping center and murdering her. Miguel Estrada devoted hundreds

[[Page 4291]]

of hours to Mr. Strickler's appeal without being paid. Ultimately, the 
Supreme Court held that although a Brady violation had occurred when 
the prosecution withheld exculpatory evidence from the defense, the 
error was harmless. Mr. Strickler was accordingly executed, but it does 
not negate the fact that Miguel Estrada gave that kind of service free.
  It was a legitimate question, too. The court did not rule for Miguel 
Estrada in the case, but he did do what he has been accused of not 
doing, and that is giving pro bono service for a person in need.
  I would like to read a portion of a letter the committee received 
from Mr. Estrada's cocounsel in the case, Barbara Hartung:

       [Miguel Estrada] values highly the just and proper 
     application of the law. . . . Miguel's respect for the 
     Constitution and the law may explain why he took on Mr. 
     Strickler's case, which at the bottom concerned the 
     fundamental fairness of a capital trial and death sentence. I 
     should note that Miguel and I have widely divergent political 
     views and disagree strongly on important issues. However, I 
     am confident that Miguel Estrada will be a distinguished, 
     fair and honest member of the federal appellate bench.

  Why do we have these arguments that are not right? Why are we doing 
that to this man? Why is it that this Hispanic man who is an 
independent thinker and who has an amazing record for a person of his 
age, who has the qualifications to be on the Circuit Court of Appeals 
for the District of Columbia, why are we doing this to him? Why the 
double standard? Nobody else has been treated this shabbily, especially 
by these past presidents of the Hispanic Bar Association. Keep in mind 
that Hispanic National Bar Association supports Miguel Estrada. Yet 
these people gratuitously signed this ridiculous letter. I hope they 
feel ashamed of themselves. They ought to be.
  The Hispanic community ought to tell them to be ashamed of 
themselves. I believe they will. I think that is going on right now. 
The Hispanic people are starting to catch on on this and what is going 
on. It just plain isn't fair. It just plain isn't right. It just plain 
is not a good thing to do to filibuster a Federal judicial nominee. It 
just isn't. We have always had some who wanted to do it, but we on this 
side have always been able to stop them. This is the first true 
filibuster that we have had on a Federal judicial nominee.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Enzi). The Senator from Nevada.
  Mr. REID. Mr. President, I know there are others who wish to speak, 
but I wanted to take a minute to talk about my friend's comments about 
Mr. Fielding.
  I think that while my name was mentioned--and I have the greatest 
respect for my friend from Utah. We are close personal friends. Our 
families are friends. We have been in each other's homes. There is 
nothing personal about this. This is a partisan matter we are bringing 
before the Senate.
  Mr. President, the political contributions that people make is 
certainly very different from being an inside political operative, as 
Mr. Fielding was. In fact, for lack of a better way to describe him, he 
was an inside guy for the Republicans and had been for many years. I 
will list in a minute the many things he had done.
  Mr. President, the more I hear about the ABA, the more convinced I am 
the Republicans were right when they said let us not have the ABA 
involved in this. I think those people who said that were absolutely 
right. I didn't know as much about the ABA as I do now. I practiced law 
for a long time before I came here. I was a trial attorney. I didn't 
belong to the ABA. I thought it was a bad organization then, and the 
more I hear about it today, the worse I think it is. I think what they 
have done on these judicial nominations--Democratic and Republican--
reeks, smells. There are thousands of lawyers in the country, thousands 
of members of the ABA. Couldn't they get people who are selecting 
nominees who could pass the smell test? In this one, this ABA 
qualification should be thrown right in the trash.
  Mr. President, it is not the Senator from Nevada who feels Mr. 
Fielding was wrong in what he did. Here is an article out of a 
newspaper dated yesterday, by Tom Brune. The headline is ``Estrada 
Endorser Had Partisan Role.'' It goes on to say--this is a news 
article, not an editorial:

       The lawyer who recommended the American Bar Association's 
     highest rating for controversial appellate judge candidate 
     Miguel Estrada took part in partisan Republican activities 
     during his term as a nonpartisan judicial evaluator for the 
     Bar, according to records and interviews.

  The man who wrote this column said what I quoted. He says:

       While serving on the ABA's nonpartisan Standing Committee 
     on the Federal Judiciary, veteran Washington lawyer Fred F. 
     Fielding also worked for Bush-Cheney Transition Team, 
     accepted an appointment from the Bush administration and 
     helped found a group to promote and run ads supporting Bush 
     judicial nominees, including Estrada.

  An editorial comment here, Mr. President. That is only part of his 
political involvement. Let me read part of it. There are other things.

       Fielding cofounded the Committee for Justice, with Bush 
     confidante and former White House counsel C. Boyden Gray. 
     They founded this organization to help the White House with 
     the public relations end of its effort to pack the bench and 
     to run ads against Democrats. . . .

  In addition, Fielding has a long career as a Republican insider. He 
served as Deputy Counsel to President Richard Nixon. He then served on 
the Reagan-Bush campaign in 1980, the Thursday Night Group. He served 
on the Lawyers for Reagan advisory group, the Bush-Reagan transition, 
1980-1981. He served--this is a dandy--he was conflict of interest 
counsel. That is a laugher. He worked with the Office of Government 
Ethics, which is also a joke. He served on the White House transition 
team. He served in the Office of Counsel to the President, as deputy 
counsel to President Reagan. He served on the Bush-Quayle campaign in 
1988; as Republican National Convention legal advisor; as campaign 
counsel to Senator Quayle; and as deputy director of the Bush-Quayle 
transition team. He served on the Bush-Quayle campaign, 1992, as the 
senior legal advisor conflict of interest counsel and the Republican 
National Committee advisor. He served as the legal advisor to the Dole-
Kemp campaign, 1996.
  Mr. President, in short, the Bush White House could not have 
handpicked somebody with better partisan credentials than Fielding to 
evaluate his DC Circuit Court nominees.
  The ABA should be ashamed of themselves. Lawyers are trying to have a 
reputation that is good and does not have conflicts of interest, that 
is ethical. This thing reeks.
  Estrada graduated with honors from Harvard. You cannot take that away 
from him. He is a fine lawyer, but this ABA thing, take it away because 
it means nothing. How can one have confidence that Mr. Fielding did not 
paint a very rosy picture for partisan reasons.
  The article by Mr. Brune goes on to say:

       Fielding evaluated Estrada in the month after President 
     George W. Bush nominated him on May 9, 2001, ABA officials 
     said. That was just weeks after Fielding vetted executive 
     appointments for Bush's transition team and a year before he 
     helped start the partisan Committee for Justice, records 
     show.
       Contrary to what was said a few minutes ago, Fielding did 
     cofound this group while a member of the ABA evaluation 
     committee.

  The article continues:

       The overlap has thrust Fielding--and his evaluation . . .--
     into the heated political battle over Estrada's nomination. . 
     . .
       . . . On February 12, Senator Harry Reid charged that 
     Fielding had a conflict.

  I said at that time, and there is a quote in the newspaper:

       Doesn't Mr. Fielding's dual role--purportedly 
     ``independent'' evaluator and partisan foot soldier--violate 
     ABA rules?

  As the investigative reporter notes:

       Those rules say no Standing Committee member should 
     participate in an evaluation if it would give rise to the 
     appearance of impropriety or would otherwise be incompatible 
     with the committee's purpose of a fair and nonpartisan 
     process.

  It goes on to say, ``Former ABA President Robert Hirshon said he was 
concerned when in late July 2002 he read reports that Fielding had 
joined

[[Page 4292]]

Republican C. Boyden Gray to start the Committee for Justice.''

       ``That raised some concerns in my mind,'' said Hirshon, 
     ``given the fact that our committee has been tarred by both 
     conservatives and liberals as poster boys for the other side. 
     . . .''
       He called Roscoe Trimmier, Jr., then the Standing Committee 
     chair, and asked him to talk with Fielding. ``I don't see how 
     you can do both,'' Hirshon said. If Fielding became involved 
     in Gray's group, he couldn't serve as an ABA evaluator again, 
     he said.
       . . . Fielding is still listed as a board member of the 
     Committee for Justice.
       ``I don't see the conflict,'' Gray said--

  I bet he didn't. He helped form the Committee for Justice.
  He added that

       Fielding didn't vet Estrada while on the transition team 
     and left the ABA post soon after the group formed.
       But Nan Aron, executive director of the liberal Alliance 
     for Justice, which opposes Estrada, charges that Fielding is 
     too partisan to do a fair evaluation.

  The article notes:

       Fielding was President Ronald Reagan's White House 
     counsel--

  And some of the things I have already put into the Record.
  Listen to this fact uncovered by the reporter:

       In May, Bush appointed Fielding to an international center 
     that settles trade disputes.

  He gets $2,000 a day plus expenses for this.
  The article also notes that:

     last fall, President Bush thanked Fielding publicly during a 
     rally for his judicial nominees.

  I bet he did.
  The article also notes that Burbank, a Professor of ethics at the 
University of Pennsylvania says Fielding's activities raise questions 
of appearances, which would cause more damage to the ABA. Ironically, 
Bush removed the ABA from his long-held role prescreening judicial 
nominees because of the evaluators' perceived liberal bias.

       "In light of the controversy concerning the proper role of 
     the ABA Standing Committee,'' Burbank said, ``it seems to me 
     to be a shame to structure the process in such a way that 
     reasonable people might be concerned.''

  Mr. President, let me simply say that the evaluation by Fred Fielding 
is a scam, it is unfair, it is not right. There certainly is an 
appearance of unfairness and partisanship. If you want to debate Miguel 
Estrada based on this ABA qualification, I will do that all day long. 
There are many positive things Estrada has. This is not one of them. 
This was an evaluation done by a very partisan person, who has only 
recommended well qualified ratings for Bush nominees in D.C.
  I repeat what I said a few minutes ago. The more I learn about the 
ABA, the less I feel inclined to support the ABA for anything they 
want. In this situation, if I ever have anything to do with it in the 
future, the ABA should be eliminated. It would be one less process we 
would have to go through to get people on this floor. The ABA's ``gold 
standard'', as far as I am concerned, is tarnished, and rightfully so.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I am disappointed. I just read over all of 
the Democrats on the Standing Committee who have contributed to 
Democratic Party politics. I have never accused any of these people. 
Along with these are these judges on this chart. What does that mean? 
That he wasn't right when he found unanimously well qualified all of 
the Clinton judges, or nominees?--that is not right--when he voted for 
Miguel, along with all of these Democrats I have listed who have 
contributed?
  All I can say is I think we have answered the points. I agree no 
outside body should be a voting instruction. I have always felt that. 
But I have to say the ABA has been part of the process, whether we like 
it or not, for a long time. There were plenty of Democrats who voted 
for Miguel Estrada as well qualified.
  The PRESIDING OFFICER. The Democratic leader.


                     Dealing With Economic Problems

  Mr. DASCHLE. Mr. President, I was home in South Dakota over the last 
week, and I had the opportunity to talk with farmers and ranchers, 
businesspeople, educators, and government leaders. What I bring back 
from those many discussions is the strong belief that if there is 
anything we do in the Senate over the course of the next several weeks, 
it ought to be addressing the economic problems that our country is 
facing.
  I wish I had an accurate count of the number of times in various ways 
business men and women and farmers and ranchers asked the question: So 
why are you spending all of this time on a judge when our country is in 
such economic disarray?
  This is an important issue, the Estrada nomination, but we have said 
from the beginning, and I think we will be able to continue to say with 
authority, that there will not be any resolution until the Solicitor 
General documents are released and until Mr. Estrada is more 
forthcoming with regard to his positions.
  We can take up time on the Senate floor week after week, or we can 
put it aside, make some decision with regard to whether or not there 
will be some reconciliation on that issue and answer the question posed 
by so many South Dakotans to me last week: When will we address the 
economy? When will we recognize that there is a lot more productive use 
of the Senate's time than an unending debate about Miguel Estrada?
  They do not understand why we are stymied and why we are unresponsive 
to the growing concern they have about the direction the economy is 
taking.
  There is a growing credibility gap between what the President and the 
administration says and what they do, between their rhetoric and their 
reality. The President has taken occasion to go around the country to 
talk about his concern for the economy. On several occasions over the 
last couple of weeks, he has made his speeches about his concern for 
the economy and his approach through his tax cuts. I have to say, if he 
cared, if he was concerned, he would ask the Senate to take up this 
matter immediately. It will not be a day too soon.
  A report was released this morning that said consumer confidence is 
now at a 10-year low. Consumer confidence, as registered and reported 
through its index, has plummeted to 64 from a revised 78 just last 
month. That is the lowest rating since 1993, 10 years. Unemployment is 
rising. We have seen an increase in the number of unemployed by 40 
percent. We now have 8.3 million Americans out of work and 2.5 million 
private sector jobs have been lost just in the last 2 years. The 
unemployment spells are lengthening, wage growth is now stagnant, and 
the shortage of jobs has slowed wage growth so that only those at the 
very top are still experiencing wage increases that outpace inflation. 
We now have the worst job creation record in 58 years, while State 
budgets continue to be plagued with deficits of close to $70 billion. 
Some have reported even more than that.
  We have an economic crisis that is not being addressed, and while 
that economic crisis grows, there is another concern expressed to me 
last week by scores of South Dakotans who are our first responders. Our 
fire departments, our police departments, those involved in crisis 
management all tell me they haven't a clue as to what they would be 
required to do should some emergency come about. There is no 
coordination. There is absolutely no training.
  When I asked them last week, What would you suggest I go back and 
tell the President and my colleagues, they said: Understand that unless 
we have training, unless we have communications equipment, unless we 
have more of a coordinated effort to bring us into the infrastructure 
required for response, we will not be able to live up to the 
expectations of the people right here. Help us.
  We have attempted to help those first responders over and over: last 
December, with $2.5 billion that the President said we could not 
afford; last month with $5 billion that the President, once again, said 
we could not afford. You tell those first responders that we cannot 
afford providing them the resources to do their job when we look at

[[Page 4293]]

what has happened in just the last 48 hours in our basing arrangements 
with Turkey. According to press reports, we can afford up to $6 billion 
in grants and $20 billion in loan guarantees for Turkey, but for some 
reason we cannot afford providing homeland and hometown assistance--
direct, coordinated help--to provide the training and communication and 
coordination required. That is a credibility gap that I think this 
President needs to address.
  I hope we can set aside this issue of Mr. Estrada and deal with the 
issue about which our people, regardless of geography, are concerned. 
The President has a plan, Democrats have proposed a plan, and there is 
a significant difference between the two. There, too, we find a 
credibility gap.
  An article was written in the New York Times that appeared this 
morning by David Rosenbaum entitled ``The President's Tax Cut and Its 
Unspoken Numbers.'' I ask unanimous consent that this article be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Feb. 25, 2003]

            The President's Tax Cut and Its Unspoken Numbers

                        (By David E. Rosenbaum)

       Washington, Feb. 24.--The statistics that President Bush 
     and his allies use to promote his tax-cut plan are accurate, 
     but many of them present only part of the picture.
       For instance, in a speech in Georgia last week, the 
     president asserted that under his proposal, 92 million 
     Americans would receive an average tax reduction of $1,083 
     and that the economy would improve so much that 1.4 million 
     new jobs would be created by the end of 2004.
       No one disputes the size of the average tax reduction, and 
     the jobs figure is based on the estimate of a prominent 
     private economic forecasting firm.
       But this is what the president did not say: Half of all 
     income-tax payers would have their taxes cut by less than 
     $100; 78 percent would get reductions of less than $1,000. 
     And the firm that the White House relied on to predict the 
     initial job growth also forecast that the plan could hurt the 
     economy over the long run.
       The average tax cut (the total amount of revenue lost 
     divided by the total number of tax returns) is over $1,000 
     because a few rich taxpayers would get such large reductions. 
     For households with incomes over $200,000, the average cut 
     would be $12,496, and the average for those with incomes over 
     $1 million would be $90,222.
       But the cut for those with incomes of $40,000 to $50,000, 
     according to calculations by the Brookings Institution and 
     the Urban Institute, would typically be $380. For those with 
     incomes of $50,000 to $75,000, it would be $553.
       The president's jobs figure was based on a preliminary 
     analysis by Macroeconomic Advisers, of St. Louis. The firm, 
     to whose services the White House subscribes, issued 
     projections in January concluding that by raising disposable 
     income, bolstering stock values and reducing the cost of 
     capital, the president's program would lead to 1.365 million 
     new jobs by the end of next year.
       But the White House has never mentioned the caution in the 
     second paragraph of the firm's report. The forecasters 
     predicted that if the tax cuts were not offset within a few 
     years by reductions in government spending, interest rates 
     would rise, private investment would be crowed out, and the 
     economy would actually be worse than if there had been no tax 
     changes.
       The president has not proposed spending reductions that 
     would offset the tax cuts. To the contrary, the 
     administration has argued that the budget deficits resulting 
     from the cuts would be too small to harm the economy.
       Another argument that administration officials make 
     regularly is that under the president's plan, the wealthy 
     would bear a larger share of the nation's tax burden than 
     they do now. A table released last month by the Treasury's 
     office of tax analysis showed that people with incomes over 
     $100,000 would see their share of all income taxes rise to 
     73.3 percent from the current 72.4 percent.
       At the same time, the table showed, taxpayers with incomes 
     of $30,000 to $40,000 would get a 20.1 percent reduction in 
     income taxes, and those earning $40,000 to $50,000 would get 
     a 14.1 percent cut.
       The problem with figures like those is that a large 
     percentage of a small amount of money may be less important 
     to a low- middle-income family's lifestyle than a small 
     percentage of a large amount of money would be to a rich 
     family. For example, a $50 tax cut would be a 50 percent 
     reduction for a household that owed only $100 in taxes to 
     start with, but that small amount of money would not 
     significantly improve the family's well-being.
       A better measure may be the increase in after-tax income, 
     or take-home pay, that would result from tax cuts. According 
     to data from the Joint Congressional Committee on Taxation, 
     the tax reduction of $380 for a family with an income of 
     $45,000 would amount to less than 1 percent of the 
     household's after-tax income. But the $12,496 tax cut 
     received by a family with an income of $525,000 would mean a 
     3 percent increase in money left after taxes.
       The president and his advisers also offer a variety of 
     incomplete statistics to bolster their proposal to eliminate 
     the taxes on most stock dividends.
       Among the points they make are that more than half of all 
     taxable dividends are paid to people 65 and older, that their 
     average saving from eliminating the tax on dividends would be 
     $936, that 60 percent of people receiving dividends have 
     incomes of $75,000 or less and that up to 60 percent of 
     corporate profits are lost to income taxes paid by either the 
     companies or the stockholders.
       All that is true, but here is a more complete picture:
       Only slightly more than one-quarter of Americans 65 and 
     older receive dividends. Two-thirds of the dividends the 
     elderly receive are paid to the 9 percent of all elderly who 
     have incomes over $100,000.
       Tht Tax Policy Center at the Brookings Institution and the 
     Urban Institute calculated that the average tax cut from the 
     dividend exclusion would be $29 for those with incomes of 
     $30,000 to $40,000 and $51 for taxpayers with incomes of 
     $40,000 to $50,000.
       On the other hand, the two-tenths of 1 percent of tax 
     filers with incomes over $1 million (who have 13 percent of 
     all income) receive 21 percent of all dividends, and the Tax 
     Policy Center figured that their average tax reduction from 
     the dividend exclusion would be $27,701. For taxpayers with 
     incomes of $200,000 to $500,000, the typical tax cut from the 
     exclusion was calculated at $1,766.
       In instances where both the corporation and the shareholder 
     are paying taxes at the maximum rate, it is possible, as the 
     administration maintains, for 60 percent of the profits to be 
     taxed away. But calculations based on I.R.S. data and 
     performed by Robert S. McIntyre of the nonpartisan Citizens 
     for Tax Justice show that on average, only 19 percent of 
     corporate profits are paid in taxes by companies and 
     shareholders combined.

  Mr. DASCHLE. Mr. President, the President talks about his plan 
providing 92 million Americans with an average tax reduction of $1,083, 
and yet with closer scrutiny and attention, with a more careful review 
of the facts, we find that is not the case at all. That is like Bill 
Gates and Tom Daschle averaging their income. If he and I averaged our 
income, mine would be somewhere around $39 billion. I only wish I had 
$39 billion to average with Bill Gates, but I do not. But that is the 
method this President is using to provide these average numbers with 
regard to the beneficiaries of his tax cut.
  Here are the facts: 78 percent of Americans are going to get less 
than $1,000, and over half of all taxpayers will get less than $100 
under the President's plan. That is right, less than $100. That is all 
more than half of all taxpayers will receive under the President's 
plan. That is fact. That is a credibility gap. That is saying one thing 
and doing another. That is saying the average American gets $1,000 but 
actually, in fact, the average American is going to get under $100.
  There is a credibility gap across the board. He said his plan will 
create 1.4 million jobs by the end of 2004.
  According to the same report President Bush cites by macroeconomic 
advisers of St. Louis, his tax cuts actually have the potential to harm 
the economy in the long run, but the President did not mention any 
references to those parts of the report stated later on.
  The President has said eliminating the double taxation of dividends 
is good for enhancing the lifestyle of millions of Americans all across 
the country. The reality is that only 22 percent of those with incomes 
under $100,000 reported any dividend income in the year 2000. The 
average tax cut from the dividend exclusion would be $29 for those with 
incomes below $40,000.
  There is a lot to discuss. There is a great need in this country to 
do what the American people are hoping we will do, and that is take up 
issues they are concerned about, to address the issues they will rise 
and fall on over the course of the next several months.
  I cannot tell my colleagues the emotion I feel in the room oftentimes 
as I talk to businessmen whose lips would quiver, whose eyes would 
moisten, who would tell me: Tom, I do not know if I can be in business 
a year or two from now if things do not change. I have not

[[Page 4294]]

sold a piece of farm equipment in 2 years. I have seen my sales plummet 
more than 20 percent in the last 3 months. I have no confidence about 
how we are going to turn this around, they tell me, unless you in 
Washington understand that things have to be done to make this economy 
better.
  What do we do? We come back to Washington and we are back in the same 
old trap, talking about the same old thing. That will not change until 
Mr. Estrada is more forthcoming. So we can spend time on the economy or 
we can spend time talking about issues that have no relevance to the 
daily lives of the people of South Dakota and the people all across 
this country.
  Mr. CORZINE. Will the minority leader yield for a question?
  Mr. DASCHLE. I am happy to yield to the Senator from New Jersey.
  Mr. CORZINE. I truly appreciate the focus on issues that matter 
directly to the people who live in our States and who live across the 
country.
  The Senator spoke about the individual business person who had not 
sold any farm equipment. We are closing the last two autoplants in New 
Jersey over the next 2 or 3 years. They have already cut down to one 
shift. Bell Labs, one of the great research institutions of America, 
has literally been a part of the reduction of 130,000 jobs at Lucent, a 
lot of them in New Jersey. A lot of the Bell Labs people are doing 
basic core research, and the people are very upset.
  That is what that consumer confidence number is. It is incredible in 
the history of real measurements of what is going on in the minds of 
American consumers. By the way, it is going on in business, too.
  I ask the minority leader whether he saw yesterday's survey from 
Manpower, Inc. They said only 20 percent of businesses in America think 
they will add any jobs in the next 6 months, an indication of the kind 
of depth of concern that actually exists in the business community in 
conjunction with consumer confidence.
  I applaud the minority leader for making sure we are being focused to 
have a debate about something that matters to people's lives, and I 
hope we can bring forth a real debate about a stimulus program to get 
our economy going, put people back to work because that is where real 
concerns seem to be. I presume that is the kind of question the Senator 
is receiving in South Dakota.
  Mr. DASCHLE. I appreciate very much the comments of the distinguished 
Senator from New Jersey because I think among us all no one knows these 
economic issues better than he does.
  Again, I would say to the distinguished Senator, this is part of that 
credibility gap I was referring to. The President professes to be 
concerned, the President talks about his proposals to address the 
economy, and yet we are not planning to take up any economic stimulus 
for months, I am told. It may be May before it comes to the Senate. How 
can anybody with any truthfulness express concern about the economy and 
say, no, but we will just do it later? We will not do it this week, we 
will not even do it this month, we will do it sometime down the road 
but, yes, I am concerned.
  When they look at consumer confidence, when they look at the numbers 
of jobs lost, when they see those plants close, when they see the 
consumer confidence drop as precipitously as it has, how in the world 
can anybody in the world confess to be supportive of economic recovery 
and economic stimulus with numbers like that and the inaction we see 
from the White House?
  Mr. CORZINE. If the minority leader will yield for one other 
observation and question, has the Senator noticed the fact that we have 
lost almost another trillion dollars in market value? And by the way, 
that translates into 401(k)s and IRAs for individuals. Those are some 
very serious numbers, actually since this program with regard to 
dividend disclosure has been announced. There is a credibility gap 
between the reality of what is being suggested as an economic growth 
program and what is actually occurring out in the real world. Certainly 
my constituents and the people I hear from around the country and in 
the business community are saying much of the same thing. I presume 
that is what the Senator is hearing as well from the folks in South 
Dakota.
  Mr. DASCHLE. I say to the Senator from New Jersey, that is exactly 
what I am hearing from the people of our State. As I have traveled 
around the country, I hear it in other parts of the country as well. 
This is a very serious issue that will not go away, and I think the 
more we face the uncertainty of war, the more we face the uncertainty 
of international circumstances, the more this domestic economic 
question is going to be exacerbated.
  People want more certainty. They want more confidence. They want to 
at least believe we understand how serious it is out there and we are 
going to do something to address it. And what do we do? We come back 
after a week's break and not one word about the economy from the other 
side, not one word about the recognition of how serious this problem 
is. We are still talking about the Estrada nomination.


                   Unanimous-Consent Request--S. 414

  I ask unanimous consent that the Senate proceed to legislative 
session and begin the consideration of Calendar No. 21, S. 414, a bill 
to provide an economic stimulus package.
  The PRESIDING OFFICER. Is there objection?
  Mr. HATCH. Mr. President, I object.
  The PRESIDING OFFICER. The objection is heard.
  Several Senators addressed the Chair.
  Mr. DASCHLE. Mr. President, I believe I still have the floor 
privilege.
  The PRESIDING OFFICER. The Democrat leader still has the floor.
  Mr. DURBIN. Will the Senator from South Dakota yield?
  Mr. DASCHLE. I yield to the Senator from Illinois.
  Mr. DURBIN. I thank the minority leader for coming to the floor, and 
I hope those who are following the debate understand what just 
happened. The minority leader of the Senate has asked this Senate to 
move to the issue of the state of America's economy, that we take up 
immediately the question of what we can do to save businesses, create 
jobs, and I think foster some hope in America.
  There was an objection immediately from the Republican side of the 
aisle. They do not want to discuss this issue.
  I ask the minority leader the following: Since he has been home--and 
I have been in communication with the people of my State of Illinois--
is it not a fact now that we have reached a point where our economy is 
dissembling, our foreign policy is in disarray, and this Congress is 
totally disingenuous, it ignores the reality of the challenges facing 
America today? I also ask the minority leader if he would tell me what 
he believes we should be debating at this point in time to do something 
about turning this economy around and bringing hope back to America.
  Mr. DASCHLE. I thank the Senator from Illinois for his observation 
and his question. If we go home--and I know the Senator from Illinois 
was just home as well--there are two issues on the minds of virtually 
every American right now. I was asked questions everywhere I went 
pertaining to the Senator's first question, and that, of course, is 
what is going to happen in Iraq? We generally have an idea of what may 
evolve over the course of the next few weeks, and there is not much 
that South Dakotans can do about that.
  The second question is, What is going to happen to my economic 
circum-
stance?
  I talked to one businessman who had to lay off a couple of his 
employees, and it hurt him dearly. They had worked for him for a long 
period of time. He said: Tom, I have no choice.
  I talked to people who had their health insurance dropped, in part 
because business was so bad their employer could no longer sustain the 
cost incurred of paying their health insurance. They said: We 
understand, but at least we got to keep our job.
  But what are you going to do about it? That is the question. What are 
we going to do about it? What will the majority do about it? What 
message are

[[Page 4295]]

we going to send to those people to whom we must show some empathy if, 
indeed, these conversations with our constituents mean anything at all? 
That is why it is imperative we are cognizant of the message we send 
today, tomorrow, the next day, and the next day.
  As this economy worsens, we spend our Senate time totally consumed 
with one nomination having to do with a circuit court nominee for the 
District of Columbia. This is the third week we have been on it. We can 
resolve this matter if Mr. Estrada will come forth with the 
information. But if he will not, let's move to something else until he 
does.
  Mr. DURBIN. Will the Senator yield?
  Mr. DASCHLE. I yield to the Senator.
  Mr. DURBIN. I have followed this debate on a daily basis. If I am not 
mistaken, the Senator from Utah, Mr. Bennett, came to the floor with a 
positive and constructive suggestion. He said that this nominee, Miguel 
Estrada, should produce the written documents from his experience 
working for the Department of Justice, working for the Supreme Court. 
In fact, he even suggested at one point they be produced so they can be 
reviewed carefully by both the Republican and Democratic leaders of the 
Senate Judiciary Committee and then a determination be made as to 
whether there should be followup hearings or questions and ultimately a 
vote so there would be disclosure. This suggestion did not come from a 
Democratic Senator; it came from a Republican Senator, Mr. Bennett of 
Utah.
  I thought it was a fair suggestion to break the logjam, to resolve 
this nomination up or down, and to move on to the people's business.
  Can the Senator from South Dakota, our minority leader, tell me 
whether that suggestion of producing those documents really is 
consistent with what we are trying to achieve so we can once and for 
all give Mr. Estrada his fair hearing and final determination? Is that 
what this is about?
  Mr. DASCHLE. That is exactly what this is about. I thank the Senator 
for asking the question. It is no more complicated than that.
  On a bipartisan basis, Republican and Democrat Senators have said we 
need the best information that can be provided by any nominee before we 
are called upon to fulfill our constitutional obligation. That is what 
we are suggesting. We need that information to make the best judgment. 
That information is being withheld.
  If I had an applicant for a job in my office and I said, I want you 
to fill out this application and I will be happy to consider your 
qualifications for employment in my office, and he or she said, I don't 
think I will fill out the second and third page, I will give you the 
front page, I will give you the name, address, and maybe my employment 
history, but that is it, you have to make a guess as to the rest of my 
qualifications because I am not telling you, I would say to that 
prospective employee, come back when you can fill out the full 
application. That is what I would say. That is what every employer in 
this country would say.
  Remarkably, when I went home last week and explained the issue to my 
constituents, they said: That sounds fair. That sounds reasonable. If 
an applicant for a lifetime position on the second highest court of the 
land is not willing to fill out his job application, how in the world 
should we consider that nominee as a bona fide applicant for the 
position in the first place? That, again, is a diversion from what I 
think most people are concerned about. They are concerned about this, 
and they want fairness, but they are a whole lot more concerned about 
whether they will be giving job applications to anyone in their State 
in their circumstances because they are doing the opposite.
  We do not have lifetime applications for jobs in South Dakota because 
the economy is very soft. If anything, we are losing jobs in South 
Dakota. So while we talk about 1 job for the circuit court, we have 
lost 2.5 million jobs in the last 2 years in this economy. That does 
not make sense. That is what the American people want us to address.
  Mr. DURBIN. If the Senator will yield for a last question, many 
people on the other side suggested we are picking on Miguel Estrada, we 
have focused on this man, a Hispanic nominee, and this is somewhat 
personal in terms of what we are trying to achieve.
  I ask the Senator minority leader, is it not our constitutional 
responsibility to establish a standard and process to apply to all 
judicial nominees so that there is full disclosure from them as to who 
they are, what they believe, their values, so if they are given a 
lifetime appointment on the court, we at least know, going in, who 
these people might be. Is it not also the fact, as the Senator from 
South Dakota has told us, that Miguel Estrada has consistently refused 
to do just that, consistently refused to answer the questions, 
consistently refused to disclose the documents, consistently refused to 
tell us who he is as he seeks one of the highest Federal judicial 
appointments in the land?
  I ask the Senator from South Dakota, is this an issue which goes 
beyond Miguel Estrada and calls into question the constitutional 
responsibility of the Senate when it comes to judicial nominees? We 
have approved 103 Federal judges for this Republican President, and I 
have voted for the overwhelming majority of them. Are we not in this 
discussion trying to raise the fundamental issue of equity and process 
as to the responsibility of the Senate under the Constitution?
  Mr. DASCHLE. The Senator from Illinois has said it very well. That is 
exactly what this is about. At one level, this is about fulfilling 
constitutional obligations. This is about following precedent. This is 
about making sure there is fairness as we consider these nominees for 
all courts, but especially for courts at that level.
  This is also about something also, about the management of the 
Senate. While the Senate has been concerned about one job for the last 
3 weeks, a lot of us are saying we ought to be concerned about the 8.3 
million jobs we do not have in this country today as a result of 
disastrous economic policies on the part of this administration, 2.5 
million of which have been lost in the last 2 years. We spend our time 
talking about one job; there is no talk on the other side about all of 
those millions of jobs lost in this country because there is no 
economic policy.
  What we are suggesting this morning is that there ought to be some 
consideration for those jobs, too; that to be consumed by one job and 
not consumed, or at least willing to address those millions of other 
jobs, is something I cannot explain to the people of my State or to the 
people of our country. I hope our Republicans will do something along 
those lines in the not too distant future.
  Mr. SCHUMER. Will the Senator yield?
  Mr. DASCHLE. I am happy to yield.
  Mr. SCHUMER. Two questions. I want to follow up again on what the 
Senator from South Dakota said in the dialog with my colleague from 
Illinois. First, I know the Estrada judge issue has gotten a lot of 
attention in the newspapers. When I go back to my State of New York, 
virtually no one asks me about it--very few people. I get lots of 
people asking about the war and also about the economy and jobs. Is 
that particular to New York because we had September 11 or is the same 
thing happening in South Dakota?
  Mr. DASCHLE. I say to the Senator from New York, before he came to 
the floor, I began my comments by reporting conversations I had with 
people back home last week. I was moved by the comments, by the 
reports, by the emotion I felt as I talked to people whose businesses, 
whose jobs, are perhaps more precarious than they have been for years. 
All the statistics bear that out. Consumer confidence is the lowest in 
10 years, the number of those unemployed going up by millions in the 
last 2 years; every economic indicator is pointing to the growing 
crisis we face in the economy.
  Yet what do we do? We find ourselves once again most likely scheduled 
for the entire week, debating 1 job rather than the 2.5 million jobs 
lost just in the last 2 years alone.

[[Page 4296]]


  Mr. SCHUMER. If my colleague will yield for another question, we have 
seen in the newspapers the talk that the Democrats are filibustering, 
that Democrats are preventing the Senate from going forward to other 
issues, whereas the Republicans are eager to go to other issues.
  The real truth on this floor is, first of all, that we have asked 
just now to go to economic issues, that last week when the Republican 
leadership--they run the show--decided to bring up this omnibus budget, 
the Estrada nomination did not stand in the way. We did it. We voted in 
one fell swoop for the entire Federal budget, and, in fact, last week 
this floor, because the Republican leadership chose to do so, actually 
voted on three other judges who I believe passed unanimously, if not 
close to unanimously. And the filibuster, in a sense--in a very real 
sense--is not being conducted by the Democrats but rather, led by my 
capable and good friend from Utah, by the Republicans, and we would be 
happy to move on to other issues that are pressing, that are on 
people's minds, and maybe come back to this issue at some point when we 
get the requested material.
  Just to rephrase my question, who is really preventing us from moving 
forward? Who is filibustering? Why are we staying on this issue? Is 
that the Senator's choice as the leader of the Democrats or is that the 
choice of our good friend from Tennessee as leader of the Republicans?
  Mr. DASCHLE. I think the Senator from New York put his finger on 
exactly the question. We just attempted to move on to something else. 
We were prevented from doing so. It is not just something else but 
perhaps the single most important domestic issue facing our country 
today. Yesterday, the request was made and agreed to that we take up 
the Hatch-Leahy PROTECT Act, as we should have agreed. I am glad that 
we were able to take it up and pass it.
  The Senate has demonstrated the ability to move off this legislation 
when it sees fit. We did it just yesterday. As the Senator from New 
York suggests, we did it again a few weeks ago with passage of the 
omnibus legislation. We are capable of moving off the bill and dealing 
with the other issues. I can't explain why we have chosen--why our 
Republican colleagues have chosen--to stay on this legislation even 
though we know there are so many more pressing issues that ought to be 
taken up. I can't explain their intransigence. I can't explain why they 
want to prolong this debate. I can't explain why they are unwilling to 
consider the 2.5 million jobs rather than the one job that we continue 
to debate on the Senate floor. That is inexplicable to me.
  I just hope the American people understand. We have come back after 
listening to our people. They made it clear to us what they want us to 
take up. They want us to deal with the economy. They want us to deal 
with the real problems we have with homeland security and the lack of 
training, the lack of communication and the lack of good technology and 
equipment which they need so badly. They do not have that either. That, 
too, would be economic in many respects, if we can provide that 
assistance. But it is not being provided because it is not being given 
the attention. Therein lies the credibility gap. Something is said and 
nothing is done. There is a big difference between rhetoric and reality 
when it comes to this administration and many of our colleagues on the 
other side.
  Mr. SCHUMER. If my colleague will yield for just one final question, 
might it not be fair to say that it is not the Democrats filibustering 
to prevent Estrada from coming forward for a vote but, rather, the 
Republicans are filibustering until they get the vote on Estrada, which 
they have so far refused to call for? Is that an unfair 
characterization?
  Mr. DASCHLE. That is exactly what happened this morning. If we were 
filibustering we would not have suggested that we get off the issue. A 
filibuster is to prolong the debate. We want to end the debate. We want 
to move on to something far more pressing to the people of this country 
than the one job. We want to talk about those 2.5 million jobs that we 
have lost. Therein lies the issue.
  I hope the Republicans will bring this debate to a close so long as 
it doesn't appear that Mr. Estrada is willing to cooperate. At such 
time as he is prepared to do so, we can take this matter up again. But 
in the meantime, we ought to be concerned about those millions of jobs 
that continue to be lost because of congressional inaction and because 
of a failed economic policy on the part of the administration.
  Mr. SCHUMER. I thank the leader.
  Mr. CORZINE. Mr. President, will the distinguished minority leader 
yield for one more question?
  Mr. DASCHLE. I am happy to yield.
  Mr. CORZINE. Mr. President, I asked questions earlier about the 
private sector. I think we have all 50 Governors from across this 
Nation now in the Nation's Capital. I know many of them come to visit 
their Senate representatives and their congressional representatives. I 
wonder if the minority leader has had one single Governor approach him 
with respect to the Estrada nomination or whether he has had one single 
or multiple Governors come and talk about the state of their fiscal 
affairs in their State governments and their unbelievable difficulty in 
trying to maintain employment and support in Medicaid and all the other 
issues. I was just wondering if the minority leader has had any 
discussions with them about Judge Estrada versus the sake of the 
economy--or homeland security for that matter.
  Mr. DASCHLE. I think the Senator from New Jersey asked the question 
that makes the point. The answer is absolutely no. Our Governors, of 
course, are hearing from the same people we are hearing from. They are 
concerned about the status quo. Someone once told me the status quo was 
Latin for the ``mess word.'' Their concern for the ``mess word'' and 
this mess continues to be compounded by a budget deficit that grows by 
the month. We are told now that we could exceed $70 billion. Some have 
suggested that the figure could be as high as $100 billion in debt. 
They are struggling with their own budgets in part because of the mess 
we created for them in Medicaid, in education, in homeland defense, 
unfunded mandates, and the sagging economy, and no real economic plan 
in place. Their message in coming to Washington is: Fix it; help us 
address this issue and be a full partner recognizing that you, too, 
have a full responsibility to engage with us in solving this issue.
  I think if you took a poll of all 50 Governors, should we stay on the 
Estrada nomination or should we address the economy and these budgetary 
questions, it would be unanimous--Republican and Democrat--they would 
say no; fix the economy and help us solve our own financial and fiscal 
problems. Do not be as consumed as you are about one job until you 
solve the problem for those 2.5 million jobs that haven't been 
addressed.
  Mr. CORZINE. I join with my colleagues on this side of the aisle in 
complimenting the leader and for rating this issue one job versus 2.5 
million jobs. We have a major issue in this country with regard to our 
economy, and that is at the top of our agenda.
  Mr. DASCHLE. I yield the floor.
  Mr. HATCH. Mr. President, I have heard these crocodile tears on the 
other side. It is amazing to me because they know what a phony issue 
is--the request for confidential and privileged memorandum from the 
Solicitor General's Office--and they are building their whole case on 
that. All they have to do to go on to anything else in the Senate is to 
exercise the advice and consent that the Constitution talks about; that 
is, to vote up and down. If they feel as deeply as they do about these, 
I think, spurious arguments that have been made just in the last few 
minutes--by the way, made by people who had all of last year to come up 
with a budget, and for the first time in this country couldn't even do 
that. The reason they didn't is because they knew it was pretty tough. 
They criticized us all these years for coming up with these tough 
budgets because we had to make the decisions. Senator Domenici from New 
Mexico has had to

[[Page 4297]]

make tough decisions as Budget Committee chairman. We always came up 
with a budget, as tough as it was. We are criticized all the time for 
not having enough money for the poor and this and that and everything 
else, every phony argument in the books. Yet when they had the 
opportunity and saw how tough it is to come up with a budget, my gosh, 
they did not do it, nor did they do all those appropriations bills that 
we had to do once we took over.
  All they have to do to go on to these wonderful economic issues--and 
we all want to do it--is allow a vote up or down. They don't like 
Miguel Estrada for one reason or another. Some of them are perhaps 
sincere reasons. I think other reasons are that they think he is just 
an independent Hispanic. Frankly, they do not like him. Vote him down, 
if you want. They have that right. If they feel sincerely that they are 
right in voting him down, vote him down. But let us have a vote. I have 
heard the distinguished Senator from Illinois ask, Why doesn't Mr. 
Estrada produce those papers? He is not in the Solicitor General's 
Office. He is not the Attorney General of the United States. He is not 
the Chief Counsel of the White House. He hasn't controlled those 
papers. As far as he is concerned, he is proud of his work and they 
could be disclosed. The problem is seven former Solicitors General--
four of them are Democrats--said you can't give those kinds of papers 
up because it would ruin the work of the Solicitor General's Office.
  Look, if they are sincere and they really want to get on to the 
budget work they never did last year, the appropriations work they 
never did last year--we had to do it--then just vote. It is tough work. 
By gosh, it is tough to come up with a budget. I know the distinguished 
Senator from New Mexico has had to go through a lot of torment and 
criticism year after year to come up with a budget. But he always did, 
and we always did. We were maligned by the other side because we were 
never good enough, because we had to live within the budget 
constraints. When they found that they had to live within the budget 
constraints, they skipped a beat and missed doing the budget.
  Here they are coming in here with crocodile tears saying a circuit 
court of appeals judge is not important enough. Well, if he is not, 
vote him down, let's have a vote, and let's vote him down. Now----
  Mr. SCHUMER. Will my good friend yield for a question?
  Mr. HATCH. If I could finish. I am wound up right now. I would like 
to unwind a little bit before I yield to my dear friend.
  And to say that we are filibustering because we are trying to get a 
vote on this? Why don't we just do that? Why don't I just--I ask 
unanimous consent that we proceed to a vote on the Miguel Estrada 
nomination, so we can get to all these important budget matters. It 
would be a quick way of doing it. And those who do not like Miguel 
Estrada: vote him down. Those who do: vote him up. I ask unanimous 
consent that we proceed to a vote on Miguel Estrada.
  The PRESIDING OFFICER (Mr. Sessions). Is there objection?
  Mr. REID. I ask to amend the unanimous consent request, that after 
the Justice Department provides the requested documents relevant to Mr. 
Estrada's Government service, which were first requested in May 2001, 
the nominee then appear before the Judiciary Committee to answer the 
questions which he failed to answer in his confirmation hearing and any 
additional questions that may arise from reviewing such documents.
  Mr. HATCH. Parliamentary inquiry.
  The PRESIDING OFFICER. The Senator from Utah has the floor.
  Mr. HATCH. Can you amend a unanimous consent request? It is my 
understanding that you can't.
  Mr. REID. Of course you can. Absolutely. We do it all the time.
  Mr. HATCH. Not if we object.
  The PRESIDING OFFICER. The Senator from Nevada can ask the Senator 
from Utah to modify his request.
  Mr. HATCH. Well, I refuse to modify it. I think we ought to vote up 
or down.
  Look, if you folks are sincere on this other side--and, my goodness, 
I have to believe you must be, although I think if you are not, it is 
the most brazen thing I have seen in a long time to come here and act 
like the whole world is being held up because we want to fill one of 
the most important judge seats in this country. And we want to do it 
with a person who has had this much of a transcript of record, who has 
this much of a paper trail that they have been able to examine, who has 
had 2 years sitting here waiting for a stinking solitary vote.
  Mr. REID. Parliamentary inquiry.
  Mr. HATCH. Why not give him a vote?
  The PRESIDING OFFICER. Is there objection to the request of the 
Senator from Utah?
  Mr. REID. I object.
  Mr. HATCH. Oh, my goodness.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah has the floor.
  Objection is heard.
  Mr. HATCH. Mr. President, the distinguished minority leader said that 
half of the American people are only getting $100 out of this tax cut. 
I happen to know, the people who are at the $40,000 level are getting 
about a $1,000 tax cut. Just understand, the top 50 percent in our 
society pay 96-plus percent of the total income taxes in this country. 
So that is another phony argument.
  I have to say, there are 52 million people in the stock market who 
have wanted dividends in spite of the representations that were made 
here. And in this downturn in the economy, perhaps they have not been 
able to get dividends because the companies have not done well. But 
this downturn started in the year 1999 or 2000. This President was not 
the President at the time. He has inherited these problems.
  I just have to say that for people who never passed a budget last 
year, and did not pass hardly any of the appropriations bills, to come 
in here and use these crocodile tears, that this is somehow holding up 
our economic wherewithal in this country, when they refuse to allow a 
vote, as we just saw--I think there is something wrong here.
  Just remember, even the Washington Post said, ``Just Vote.'' Just 
vote, fellows and ladies. All you have to do is vote. If you don't like 
Miguel Estrada, vote him down.
  The reason they don't want a vote, and the reason this is a 
filibuster, is that they know Miguel Estrada has the votes here on the 
floor to be confirmed.
  And for those who think that the economy is everything, let me just 
make a point. The judiciary is one-third of these separated powers. If 
we don't have a strong judiciary in this country, we will never have a 
strong economy because the Constitution would not be maintained. I 
would have to say this body has not maintained it through the years, as 
I have seen unconstitutional legislation after unconstitutional 
legislation move through here. It isn't this body that has preserved 
the Constitution, nor has it been the executive branch. We have seen a 
lot of unconstitutional things over there over the years, although I 
believe people have tried to sincerely do what is right. But it has 
been the courts that have saved this country and the Constitution.
  Mr. SCHUMER. Will my colleague yield for a question?
  Mr. HATCH. I will. Let me make one more statement.
  It has been the courts. This is an important position, and if we are 
going to have to go through this on every circuit court of appeals 
nominee because the other side just doesn't like them--they don't have 
a good, valid reason for voting against Miguel Estrada, other than this 
phony red herring issue about the Solicitor General's Office, which I 
don't think anybody in their right mind would buy.
  ``Just Vote,'' the Washington Post said.
  I will be happy to yield to my colleague.
  Mr. SCHUMER. I thank my colleague. And I know he feels passionately 
about this. Many of us feel passionately about this.
  Mr. HATCH. More than passionately.
  Mr. SCHUMER. I would like to ask the Senator two questions.

[[Page 4298]]

  The first question is this. My colleague said, in a very well done 
speech--I read it--before the University of Utah Federalist Society, in 
1997:

       Determining which of President Clinton's nominees will 
     become activists is complicated and it will require the 
     Senate to be more diligent and extensive in its questioning 
     of nominees' jurisprudential views.

  Now, in fairness to my friend----
  Mr. HATCH. Does the Senator have a question?
  Mr. SCHUMER. I have a question. I am coming to it. In fairness, the 
Senator just said how important the judiciary is.
  Mr. HATCH. That is right.
  Mr. SCHUMER. Now, in those papers, the books that my colleague has 
held up--I have read them. I read the whole transcript. I was there for 
much of it. I chaired that hearing.
  Mr. HATCH. There is a lot more than a transcript here.
  Mr. SCHUMER. I know. I ask my colleague, does Miguel Estrada talk 
about how he feels about the 1st amendment, or the 2nd amendment, or 
the 11th amendment, or the commerce clause, or the right to privacy, or 
all the major issues that he will rule on for the rest of his life if 
he becomes a judge? And if he does not, other than to say, ``I will 
follow the law''--and we all know judges follow the law in different 
ways--then why isn't what is good for the goose good for the gander?
  In other words, when it was a Democratic nominee--and this is not tit 
for tat. My colleague, who cares about the judiciary, said he needed 
extensive questions. We didn't get that opportunity because, as my 
colleague well knows, Mr. Estrada just said, on every issue asked, ``I 
will follow the law.''
  Mr. HATCH. Ask a question.
  Mr. SCHUMER. My question to my colleague is----
  The PRESIDING OFFICER. The Senator from New York will place a 
question.
  Mr. SCHUMER. Why shouldn't we be accorded the same right, as he 
espoused in his speech in 1997, to get all the details to this 
appointment to the second highest court of the land, which is going to 
have a lifetime--Mr. Estrada has a job now; but this is a different 
job--a lifetime appointment that will affect everybody? Why is the one 
different than the other?
  Mr. HATCH. Regular order, Mr. President.
  The PRESIDING OFFICER. The Senator from Utah has the floor.
  Mr. HATCH. Look, I don't withdraw that statement. That statement is 
an important statement. The distinguished Senator from New York and his 
colleagues had almost 2 years. The distinguished Senator from New York 
conducted this hearing. The distinguished Senator from New York said it 
was a fairly conducted hearing. The distinguished Senator from New York 
had a right to ask any questions he wanted. He did. The distinguished 
Senator from New York had a right to ask written questions. He did not.
  He could have asked: What do you think about the 11th amendment? 
Listen, that is a question that is almost improper because you are 
saying----
  Mr. SCHUMER. Could I ask my colleague to yield?
  Mr. HATCH. Let me finish answering your question. He could have 
asked: What do you feel about the first amendment? Are you kidding? 
That is not a question that should be asked a judicial nominee. And any 
judicial nominee would answer: What I feel is irrelevant--which is the 
way he answered it. It is what the law says. Frankly, he answered that 
time after time after time on question after question after question.
  Where were the written questions of the distinguished Senator from 
New York? They were not there. You had a chance to do it. You didn't do 
it. Now, after the fact, 2 years later, this man has been sitting 
there, waiting for fairness, being treated totally unfair, and he can't 
get--my gosh, he can't get a vote up or down, which is what the 
Washington Post says we should do.
  Mr. SCHUMER. Will my colleague yield for a question?
  Mr. HATCH. I know Senator Domenici has been waiting a long time.
  Mr. SCHUMER. Sir, I was waiting longer than Senator Domenici. If my 
colleague will yield?
  Mr. HATCH. No. Senator Domenici has been waiting for well over an 
hour. And, well, I am not yielding the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah has the floor.
  Mr. DOMENICI. Mr. President, might I ask the distinguished Senator 
from Utah how much longer he intends to speak on this round?
  Mr. HATCH. Well, I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Mexico.


                              The Economy

  Mr. DOMENICI. Mr. President, I would like to discuss for a few 
minutes with the Senate, and those who are interested in what we are 
doing here, first, the issue of the American economy and what we ought 
to be doing about it because the other side of the aisle--the 
Democratic leadership in the Senate--has decided that they are not 
going to permit us to vote on a most eminently qualified nominee, whose 
qualifications I will discuss shortly.
  They come to the floor and discuss an issue--to wit, the American 
economy and the plight of the American worker--as if they can do 
something about that problem, as if they have a solution to the 
economic woes in this country, as if they could do something in the 
Senate that would help the working people.
  They have no plan. The plans they have submitted are, according to 
most economists, far inferior to the only plan we have, and that is the 
plan of the President of the United States.
  Nobody should be fooled by this discussion. We can take to the floor 
for the next 5 weeks and have speeches by the other side of the aisle 
claiming that they are concerned about the working people, that we have 
problems in the economy, but none of that will do anything to help the 
American people. If we know how to help them, we have to do something. 
And to do something, we have to act in the Senate and the House or the 
President has to act. As a matter of fact, the Budget Committee, which 
is currently chaired by the distinguished Senator from Oklahoma, Mr. 
Nickles, which I used to chair, and which 3 years ago was chaired by a 
Democrat because they were in control, has to produce a budget before 
we can do anything.
  So in response to all the rhetoric, we can take no action until we 
have a budget that lays forth what we will do, when we will do it, and 
how we will do it.
  I submit that the chairman of the Budget Committee this year will 
produce a budget on time. It will come to the floor on time. I predict 
it will be passed on time, as compared with last year when the other 
side of the aisle was in charge of the budget. They produced no budget. 
They came to the floor and said: We can't produce it because it is too 
hard and we don't have the votes. So we did nothing. Isn't that 
spectacular, that the leadership on that side of the aisle, the last 
time they were charged with doing something for the American people 
with a budget, punted? They punted. They had no plan. They produced 
none.
  Today, when we have a bona fide issue that we can do something 
about--that is, appoint a circuit court judge who is qualified--they 
have the effrontery to come to the floor and engage in a discussion as 
if a discussion about the plight of the American worker would solve the 
problems of the American worker. What will their discussions do for the 
American worker? Do they have some grand plan they want to come down 
here and talk about? They have been doing it in spite of whatever the 
debate is. They have been talking about whatever plan they had. I have 
not seen it foment any great enthusiasm on the part of those who are 
worried about the American economy, unless it is themselves talking to 
themselves. I have heard no great group of American economists saying: 
Boy, they have a great plan to help the American workers. Quite to the 
contrary.
  There is only one plan around that has significant support. And if 
they

[[Page 4299]]

want to change it, they will have their opportunity. But it will not 
get changed with speeches. It will get changed when the bills come to 
the floor. They will be here in due course. As a matter of fact, they 
will be here faster than they ever got here when the Democrats were in 
control.
  We have a commitment from the chairman of the Budget Committee that 
it will be here on time and that it will be a plan that will be voted 
on by that committee and presented to us so we can vote on it on behalf 
of the American people. That side will have their chance to amend it, 
if they can. That is what we are going to do. We are going to start 
that and then move it right along. We will move it more expeditiously 
than it has ever been moved before because we have the will, we have 
the leadership in the White House, and we understand that we have to 
produce a budget resolution with the requisite mandates to the 
committees of the Senate to reduce taxes in whatever way we 
collectively want, be it the President's wishes or some other plan. But 
we have to do it--not speeches, not coming down here and creating 
something sort of a let's have another showdown here on the floor, 
let's talk about the economy because we don't want the Senate to vote 
on the issue that is justifiably before us--to wit, whether or not 
Miguel Estrada is entitled to have a vote.
  I thought it might be interesting to look at a few comparisons. I 
took some of these judges who sit on the DC Circuit. Let's see how they 
compare with the nominee and what happened to them as they came before 
the Senate.
  We have Karen Henderson, appointed by George Bush; we have Justice 
Rogers and David Tatel; then we have Miguel Estrada. Let's look at a 
comparison. These judges are there on the bench, they were appointed 
and confirmed. Here is one from Duke University, Judge Henderson, who 
attended the University of North Carolina Law School. It is 
interesting, as far as other things are concerned that those candidates 
did to prepare them to sit on the bench, such as Circuit Court 
clerkships, Supreme Court clerkships, and Federal Government service. 
Look, these others had none. Yet, they were deemed to have had adequate 
experience to go on the bench. And Miguel Estrada is not.
  Look at what he has done compared to them. Just look at the list. 
Obviously, he graduated from a comparably good law school. His is 
Harvard. One of theirs was Chicago. One of theirs was Harvard. One was 
North Carolina. And then look at all the other things he has done. Yet 
they say he is unqualified. But these two--these three get appointed. 
They are serving, and they are apparently qualified.
  Look at the really important issue. Look at how long it took this 
judge from the time her name was submitted to take her seat on the 
bench--51 days. No aspersions on this judge. She must be great. She got 
there in 51 days. But she had none of the experience Miguel Estrada 
had. She graduated from a good law school, certainly. And she went to 
an undergraduate school, got a degree at Duke, a great university.
  But how about experience, the experience of being part of the 
Attorney General's Office of the United States, which this candidate 
did under a Democrat and a Republican, a circuit court clerkship, 
Supreme Court clerkship? They had none of that, and look at how quickly 
they got appointed: 51 days, 113 days, 108 days. Look at Miguel 
Estrada: 650 days and counting since he was recommended until today 
while they continue to say: No vote.
  Again, we have a lot of time in the Senate. So the Democrats can come 
down here this afternoon, and nobody is going to keep them from 
debating the economy. If they want to equate a debate in the Chamber of 
the Senate about the economy and call it 2 million to 1, or whatever 
words they were using, let them have it. It doesn't do anything to help 
the American people and the working man. What it does is detract from 
the fact that they want to change the precedent of this institution.
  I am hopeful that before we are finished, good leaders on that side 
of the aisle, including the distinguished minority leader, will 
exercise some common sense about the future of the Senate and the 
appointment of Federal judges. The future of this institution as an 
institution that is supposed to look at the Presidential nominees and 
work with Presidents and then indicate whether we want to approve them 
or not is in real jeopardy because they are about to say that from this 
day forward, because of their stubbornness about this nominee, they are 
going to change the rules so that judges will need 60 votes, not the 
majority rule that we thought existed.
  I will not yield to my good friend. I see him standing out of the 
corner of my eye, and I will save his words. Please understand, I will 
yield soon.
  So what they would like to do is to change from 51 votes being 
necessary to approve judges of the United States under our 
Constitution--because of what I perceive as nothing more than an 
unfounded fear--and you know, their fear is not the one that has been 
expressed. Their fear is that this young man will be a great judge and, 
besides that, he is Hispanic, whether you want to argue, as some would, 
that a Honduran who is Hispanic is not Hispanic, which is a most 
incredible argument. If we were to start that across America when we 
are talking about Hispanics, we are going to have to decide which one 
is Hispanic, and if a Honduran with his family name is not one, as some 
would say on that side of the aisle, that is pure, absolute lunacy.
  So they are going to say we don't want him there, but it is not 
because they fear him as a circuit court judge. They fear him because 
he is then, if he sits on the circuit court, a legitimate, potential 
U.S. Supreme Court member. We have not had one who is Hispanic. They 
are frightened to death. While all of their fear is illegitimate, some 
of it is selfish fear because they think their party should be the one 
that nominates a Hispanic who would be on the U.S. Supreme Court. They 
think that because Hispanics are predominantly members of the 
Democratic Party, they should be the party that puts into position a 
Hispanic who might go to the highest bench in the country.
  I believe that is a terrific burden to place on this young man, who 
at this early age has accomplished more, by way of experience, legal 
accomplishments, and academic accomplishments, than any of the members 
sitting on the circuit court today.
  I finished talking about those judges who were far less experienced 
and how long it took them to become judges. Now I will take these 
judges who have comparable experience to Miguel Estrada. I find that by 
looking in the records and seeing what they did. In addition to the law 
schools and undergraduate, it looks like circuit court clerkships, 
looks like Supreme Court clerkship, looks like Federal Government 
service are pretty much equivalent to what Miguel Estrada has. Look 
here, it took only 15 days from the time of nomination to confirmation. 
Raymond Randolph, appointed by George Bush, attended Drexel University; 
graduated from Pennsylvania Law School, summa cum laude, much like 
Miguel Estrada; who was a circuit court clerk for a Second Circuit 
Judge; Assistant Solicitor General and Deputy Solicitor General. That 
is much like Miguel Estrada. It took 66 days from nomination to vote. A 
comparably equipped nominee, it took 66 days.
  Another one is Merrick Garland, appointed by President Clinton, 
graduate of Harvard, summa cum laude; Harvard Law School, circuit court 
clerk, special assistant--very much the same as Miguel. That took only 
71 days. Isn't that amazing? Very comparable credentials. This man has 
been waiting 650 days--Miguel Estrada--and it is continuing day by day.
  I don't get a chance to come down here as frequently as some, 
although Senator Nickles and I agreed many months ago that we would be 
special friends to Miguel Estrada and help him as he moved through 
here. He has so many helpers in a job that is very simple. Senator 
Nickles spoke yesterday and he referred to that special kinship. I 
haven't been here as often as some but I have heard some very good 
speeches. I heard some very good efforts on the part of the other side 
of

[[Page 4300]]

the aisle to justify the delays that are taking place. Some have 
wondered whether it does any good for Republicans to insist that this 
man be given an up-or-down vote, and that whatever is occurring on the 
other side of the aisle--I have given you four or five reasons it may 
be occurring--but I suggest our effort is doing some good.
  I will tell you that in my State three newspapers over the weekend 
announced in open and bold editorials that the Democrats should stop 
the filibuster, retreat from it, and get on with the vote. One of them 
is a newspaper known as the Santa Fe New Mexican. Obviously, those who 
know our State know that this paper--a very old newspaper--is certainly 
not a conservative newspaper. They say in their editorial--the lead 
words are--Bingaman--meaning our Senator--``Bingaman should lead the 
Dems' filibuster retreat.'' They have a very lengthy discussion of why 
my colleague, the junior Senator from New Mexico, should lead the 
Democrat retreat from the filibuster that is working its way on the 
Democrat side. I ask that the editorial be printed in the Record.

             [From the Santa Fe New Mexican, Feb. 24, 2003]

             Bingaman Should Lead Dems' Filibuster Retreat

       As legendary prizefighter Joe Louis said of an upcoming 
     opponent reputed to be fast on his feet: ``He can run, but he 
     can't hide.''
       Senate Democrats, along with the Republican majority, fled 
     Washington last week as their way of honoring Presidents' 
     Day. The annual recess suspended their filibuster against a 
     federal judgeship vote. The Dems are making an unwarranted 
     stand, and an unseemly fuss, over the nomination of Miguel 
     Estrada to the U.S. Court of Appeals for the D.C. Circuit.
       The filibuster--protracted talking under senatorial 
     privilege--had consumed a week of debate about Estrada before 
     the senators left town. Now they're gravitating back to the 
     Potomac, and the Dems can hide no longer. Resumption of their 
     verbose balking will make them look ridiculous--at a time 
     when the nation needs statesmen to stand up against the White 
     House warmonger and his partisans commanding Capitol Hill.
       The Democrats have chosen a particularly poor target: 
     Estrada, who came from Honduras as a boy and went on to lead 
     his law class at Harvard, is better qualified than many a 
     Democratic appointee now holding life tenure on one federal 
     bench or another.
       But after confirming so many less-qualified judges while 
     they held power, Estrada's senatorial tormentors now offer 
     ``reasons'' why he shouldn't be confirmed; too young; too 
     bashful about answering leading questions; appointed only 
     because he's Hispanic--or, to some senators' way of thinking, 
     not Hispanic enough.
       What really rankles with the Democrats, though, is 
     Estrada's politics. He's a conservative. Surprise, surprise; 
     we've got a conservative president, and it's the president 
     who makes the appointments to the federal judiciary.
       As the party on the outs, the Dems had better get used to 
     like-minded appointments from the president. If their game-
     playing goes on, a disgusted American public might keep 
     George W. Bush in office for the next six years. The country 
     certainly didn't see any reason to balance Bush against a 
     Democratic Congress when it had a chance just a few months 
     ago. With their spiteful behavior toward Bush appointees, the 
     Dems aren't exactly gaining goodwill.
       If they find the Republican so repugnant, let 'em vote 
     against him; at least they'll be putting their ideals--or 
     their party colors--on display. But this is no Mr. Smith 
     against some diabolical establishment; it's a bunch of sore 
     losers making themselves even more so.
       To break a filibuster by cloture takes 60 senators. The 
     Senate's 51 Republicans need nine of the 48 Democrats, or 
     eight of them and ex-Republican Jim Jeffords of Vermont.
       New Mexico's Jeff Bingaman should lead the Democratic 
     blockade-runners. By all measures, Bingaman is a class act; a 
     lawyer who knows that senators have no business obstructing 
     appointments on purely political grounds. He also knows that 
     Republicans aren't going to hold the White House forever; 
     that sooner or later a Democratic president will be choosing 
     judges. And he realizes that Republicans, like their mascot, 
     have long memories.
       The last thing our justice system needs is an ongoing feud 
     over appointments to district and appellate judgeships. Let 
     Judge Estrada's confirmation be a landmark of partisan 
     politics' retreat from the courtroom.

  Mr. DOMENICI. Mr. President, we have a rather active University of 
New Mexico newspaper. It is named the Daily Lobo, after the athletic 
team. They have a columnist there, Scott Darnell, who wrote:

       Miguel Estrada isn't probably someone with an immense 
     amount of name recognition--yet.

  That is this University of New Mexico editorial comment. Then they 
proceed to quote the distinguished Democratic Senators who have in the 
past stated that we should not filibuster Federal judge appointments. 
They cite Ted Kennedy, our distinguished Senate colleague, and Patrick 
Leahy, our distinguished colleague, and they quote from them as to why 
we should not use a filibuster when it comes to the appointment of 
judges.
  Of course, the editorial asks, Why now? The editorial proceeds to 
talk about this young judge and his great qualifications. It indicates 
that we should not make this mistake in changing what we have been 
doing for so many years and create a 60-vote requirement for a 
judgeship.
  Then the third article is from the largest newspaper in the State--
the Albuquerque Journal. They have a very lengthy editorial piece. The 
headline is ``End Filibuster, Put Court Nominee to Vote.'' That is the 
daily Albuquerque newspaper. They merely conclude that the time has 
come. That is from my home State. I suggest when you put the three 
together, they have gotten the message very well. They have heard both 
sides. They quote arguments made on the other side and find them 
without merit, and they proceed to indicate that, without question, the 
time has come to have a vote.
  I ask unanimous consent that those two articles be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Albuquerque Journal, Feb. 24, 2003]

               End Filibuster, Put Court Nominee to Vote

       What the Colt revolver was on the dusty streets of the Old 
     West, the filibuster is on the floor of the U.S. Senate: The 
     great equalizer gives 41 senators the ability to bring the 
     chamber's business to a halt.
       The tactic should be unholstered only on issues of high 
     principle or grave importance. Considering the issues 
     currently confronting Washington, the judicial nomination of 
     Miguel Estrada does not rise above partisan wrangling. To 
     block a vote on his appointment to the U.S. Court of Appeals 
     for the District of Columbia Circuit is an abuse of the 
     filibuster.
       Democrats say the filibuster is justified because too 
     little is known about Estrada and he has not been forthcoming 
     about his judicial philosophy.
       New Mexico Sen. Jeff Bingaman said Friday he has not made 
     up his mind about backing continuation of the delay tactic, 
     and echoed the Democratic indictment of the Honduran 
     immigrant as a stealth conservative.
       ``Obviously, you become suspicious of a person's point of 
     view if he won't answer questions,'' Bingaman said.
       Let's get on past mere suspicions of Democrats and declare 
     guilt by association. Estrada is the choice of President 
     Bush. His views doubtlessly come closer to mirroring Bush's 
     than those of left-leaning Democrats or those of Clinton's 
     judicial nominees.
       Feminist Majority president Eleanor Smeal, for one, doesn't 
     need any more information about Estrada to know that in 
     blocking him, ``the Democrat leadership is giving voice to 
     its massive base of labor, civil rights, women's rights, 
     disability rights, environmental, gay and lesbian rights 
     groups.''
       Oh, then this is about constituent politics.
       There's another constituent-oriented facet: Miguel Estrada 
     is a successful immigrant, current front-runner to become the 
     first Hispanic Supreme Court justice and an obvious role 
     model--in short, a poster boy for Republican recruitment of 
     minorities away from the one, true political faith.
       This isn't about suspicions; Estrada is Democrats' worst 
     nightmare from a partisan perspective.
       From a personal perspective, Democrats who have worked with 
     him in the Clinton administration have high praise. Seth 
     Waxman, Clinton's solicitor general, called Estrada a ``model 
     of professionalism.'' Former Vice President Al Gore's top 
     legal adviser, Ron Klain, said Estrada is ``genuinely 
     compassionate. Miguel is a person of outstanding character 
     (and) tremendous intellect.''
       During Judiciary Committee hearings in September, Estrada 
     said: ``although we all have views on a number of subjects 
     from A to Z, the first duty of a judge is to a put all that 
     aside.''
       That's good advice for a judge, and it's good advice for 
     senators sitting in judgment of a nominee. Put aside pure 
     partisan considerations; weigh Estrada's qualifications, 
     character and intellect; end the filibuster and put this 
     nomination to a vote.

[[Page 4301]]

     
                                  ____
                  [From the Daily Lobo, Feb. 24, 2003]

                     Estrada Naysayers Hypocritical

                           (By Scott Darnell)

       Miguel Estrada isn't probably someone with an immense 
     amount of name recognition--yet.
       President Bush appointed him to an open seat on the U.S. 
     Court of Appeals, District of Columbia Circuit on May 9, 
     2001; he immigrated to the United States from Honduras when 
     he was 15 years old, graduated from Harvard Law School magna 
     cum laude in 1986, has been a clerk for a Supreme Court 
     justice, an assistant U.S. attorney and the assistant 
     solicitor general, among other stints in private practice. He 
     is supported by many national organizations, including the 
     Hispanic Business Council, the Heritage Foundation, the 
     Washington Legal Foundation and the Hispanic Business 
     Roundtable.
       Unfortunately, Estrada's confirmation has been delayed and 
     prevented by many Democrats within the Senate, an action 
     fueled by many leftist groups, organizations and lobbyists in 
     America. Currently, Senate Democrats are planning to, or may 
     actually be carrying out, an intense filibuster against 
     Estrada's nomination; filibustering, or talking an issue to 
     death, is definitely a method for lawmakers to prevent a 
     policy or other initiative from ever coming to fruition--
     ending a filibuster is difficult, especially in our closely 
     divided Senate, taking a whopping 60 votes.
       The most unfortunate part of the Senate Democrats' 
     obstruction on Capitol Hill lies in the fact that many high-
     ranking Senate Democrats have at one time condemned 
     nomination filibusters quite harshly, leaving their intense 
     efforts to carry out a filibuster today very hypocritical. 
     For example, Patrick Leahy, the senior Democrat on the 
     Judiciary Committee, said, from Congressional Record in 1998, 
     that ``I have stated over and over again . . . that I would 
     object and fight any filibuster on a judge, whether it is 
     somebody I opposed or supported.''
       Sen. Ted Kennedy said, from Congressional Record in 1995, 
     that, ``Senators who feel strongly about the issue of 
     fairness should vote for cloture, even if they intend to vote 
     against the nomination itself. It is wrong to filibuster this 
     nomination, and Senators who believe in fairness will not let 
     a minority of the Senate deny [the nominee] his vote by the 
     entire Senate.''
       Finally, Sen. Barbara Boxer, from California said, from 
     Congressional Record in 1995, that, ``The nominee deserves 
     his day, and filibustering this nomination is keeping him 
     form his day.''
       It seems people can change quite a bit in only a matter of 
     years.
       But why are Senate Democrats and many leftist organizations 
     so dead set against Estrada's nomination? The obvious answer 
     lies in the fact that the court he is being nominated to is 
     considered the second-highest court in the nation and often 
     times thought of as a stepping stone to the Supreme Court.
       Secondly, Senate Democrats and organizations such as the 
     NAACP or the AFL-CIO recognize Estrada's ethnicity--they 
     recognize his heritage and the future he is making for 
     himself--but let's face it, he's just the wrong type of 
     minority. He's Hispanic and these politicians and 
     organizations are all for the pro-active advancement of 
     Hispanics, just not his type of Hispanic. The National 
     Association for the Advancement of Colored People is now 
     going to read ``The National Association for the Advancement 
     of Colored People Who Believe in ONLY Leftist Principles and 
     Ideology.''
       Miguel Estrada will not, while in whatever courtroom he may 
     preside over, pander to the interests of those who wish to 
     establish and ingrain a persistent racial inequality in 
     America, those who do not now carry out the legacies of past 
     civil rights leaders, but instead bastardize those past 
     efforts by forcing racial tension upon Americans to keep 
     society at their beck and call while gaining personal 
     notoriety, prestige and wealth.
       If the Senate Democrats try to filibuster Estrada's 
     nomination, they will be holding back debate and action on 
     the immediate national and foreign issues affecting this 
     country, such as creating and passing the appropriate 
     economic stimulus package, among other important topics.
       If the Senate feels that Estrada has committed a criminal 
     or moral transgression at some point in his life that would 
     injure the integrity and standing of his service as justice 
     of one of our nation's highest courts, they should provide 
     sufficient evidence to that end and take whatever measures 
     necessary to disallow a moral or actual criminal from taking 
     the bench. But, in this case, no such criminal or moral 
     transgression can be seen, and the argument against his 
     nomination is purely idealogical; a filibuster would 
     represent a blatant obstruction of our political system and a 
     disservice to the American people. So, as Democratic Sen. 
     Barbara Boxer put it so succinctly a few years ago, ``Let the 
     nominee have his day.''

  Mr. DOMENICI. Mr. President, I repeat, it is one thing to delay; it 
is another thing to talk a lot; and it is yet another thing to attempt 
to get the issue that is before us and find a way around it and cloud 
the issue. That is all that is happening this morning with the 
discussion by the Democratic leadership, joined by certain Democratic 
Senators, when they argue that Republicans, by insisting that we vote 
on this nominee, are in some way failing to do justice to the economic 
problems that exist in our country.
  I hope it doesn't take a lot more discussion for people to understand 
that is absolutely an untruth. It is an absolutely irrelevant argument. 
They can talk all they like about the economy and quit talking about 
Miguel Estrada and not one single thing will happen to benefit the 
American workers, not one thing.
  We need to do something, and what we must do is decide whether we 
want the President's plan or some modification of it. The only way we 
can do that is to move with dispatch on the issues before us, those 
issues, in the way prescribed under our rules. There is no one 
suggesting we should throw away our rules and pass a plan tomorrow 
morning. Nobody is suggesting we do that.
  In due course, in the matter of only a few weeks, we will be voting 
on whose plan should be adopted to help the American economy move 
forward.
  I submit that the facts are overwhelming that the arguments against 
Miguel Estrada are not justified. Those arguments do not justify these 
delays.
  I yield the floor.

                          ____________________