[Congressional Record (Bound Edition), Volume 149 (2003), Part 4]
[Senate]
[Pages 4301-4332]
[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--Continued

  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, nearly 2 years ago, President George Bush 
nominated Miguel Estrada to serve on the U.S. Court of Appeals for the 
District of Columbia. When confirmed, he will be the first Hispanic 
member of this court. But the other side of the aisle has stalled. In 
fact, as I look back, we have been on this particular nomination since 
February 5. The other side has continued to stall this nomination, 
preventing something that is very simple, that I think the American 
people now understand, and that is a very simple up-or-down vote.
  Every Senator in this body can decide either they support this 
nomination or they do not. Earlier today, attempts were made from the 
other side of the aisle to bring up other legislation with the call 
that it is time to move on, and I agree; it is time to move on. We have 
had hours and days and nights to debate and discuss the opportunity 
given to both sides of the aisle, and now it is time for us to vote on 
this nominee.
  For nearly 2 years, the nomination of this man--now, remember, the 
American Bar Association has deemed him well qualified--has languished 
as some in this body have played politics with his future. They have 
consistently refused to give Miguel Estrada this very simple right, I 
would argue, and that is an up-or-down vote.
  In fact, the tactic, which is a filibuster--and the American people 
understand it is a filibuster--is something my colleagues on the other 
side of the aisle have said they would not use, filibustering of such a 
nominee. They have said that in the past. Yet they are filibustering 
this nomination on the floor of the Senate. We feel that is wrong. We 
will continue to fight for this up-or-down vote for this qualified 
nominee.
  We came back from a recess yesterday. It is fascinating as we look 
around the country, even the newspapers, if we look at the top 57 
newspapers--I do not think one can say the top 57, but to read what 57 
major newspapers in this country are seeing and saying in terms

[[Page 4302]]

of their editorials, indeed, 50 newspapers from 25 States and the 
District of Columbia have editorialized either in favor of the Estrada 
nomination and/or, I should say, against this filibuster of a nominee, 
in essence saying, yes, please give him an up-or-down vote.
  It seems, because we are demanding a supermajority to become the 
standard, that the other side of the aisle is holding this Hispanic 
nominee, Miguel Estrada, to a higher standard than any other nominee to 
this court has ever been held. I think this is wrong. It is 
unreasonable, using a filibuster and forcing a judicial nominee to 
effectively gather 60 votes rather than 50 votes for confirmation. It 
sets a new and unreasonable precedent.
  In the sense of fairness, I once again appeal to my colleagues on the 
other side of the aisle to give us that vote. Clearly, Senators have 
had adequate time to debate this nominee. I myself have come to this 
floor on five separate occasions to attempt to reach an agreement with 
the other side of the aisle for a time certain for a vote on the 
confirmation, and each time my Democratic colleagues object to giving 
him a simple up-or-down vote.
  The two arguments I am hearing from the other side of the aisle are, 
one, they want unprecedented access to this confidential memoranda and, 
secondly, they need more information.
  The first, to my mind, is a specious argument. It has been talked 
about again and again on the floor. It is almost a fig leaf because 
they know it cannot and should not be complied with.
  I do want to address the second argument very briefly, not so much in 
substance but in terms of how we can bring this matter to a conclusion 
for the American people and for this nominee, so we can get to an up-
or-down vote, and that is if they really feel there are specific 
questions that have not been answered, to reach out and figure some 
reasonable way to get the information to those questions. Again, 
outside of the rhetoric that flows back and forth and outside the heat 
of the argument, in the spirit of working together, I do want to 
suggest we work together on both sides of the aisle--and I would be 
happy to do it with the Democratic leader or his representative--toward 
putting together a reasonable list of questions that Members may wish 
to pose to Miguel Estrada. I would hope that once we agree upon the 
questions, submit them, and get the answers back, that process would 
allow us to come back to what I think we should be able to turn to 
immediately, but with the filibuster we are unable to, and that is to 
have a vote this week on the nomination.
  I am really talking more process at this point, with an appeal to the 
other side for us to put together questions to submit and, once we 
receive those answers, be able to have a vote this week. Thus, I ask 
unanimous consent that the vote on the confirmation of the nomination 
of Miguel Estrada occur at 9:30 on Friday, February 28.
  Before the Chair puts the question, I would add, and I want to 
stress, that I will work toward getting answers to any reasonable list 
of questions that could be worked out on both sides of the aisle.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Nevada.
  Mr. REID. I ask the majority leader to modify his proposal in the 
following manner: I ask unanimous consent that after the Justice 
Department complies with the request for documents we have sought, 
namely the memoranda from the Solicitor's Office which were first 
requested on May of 2001, the nominee then appear before the Judiciary 
Committee to answer the questions which he failed to answer in his 
confirmation hearing and additional questions that may arise from 
receiving any such documents.
  Mr. FRIST. Mr. President, I will not modify my unanimous consent 
request as spelled out.
  Mr. REID. I object.
  The PRESIDING OFFICER. The objection is heard.
  The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, as we have just heard from our 
distinguished majority leader, the Senate has had the nomination of 
Miguel Estrada since May 9, 2001. This man has been waiting for 
confirmation for almost 2 years. This is the most qualified person who 
has never gotten a vote in the Senate. In fact, the American Bar 
Association rated Miguel Estrada unanimously well qualified, the 
highest possible rating. Never before have Senators filibustered such a 
nominee.
  Mr. Estrada would be the first Hispanic to serve on the Nation's 
second most important Federal court, adding diversity to our judicial 
system. Miguel Estrada's nomination is supported by a number of 
Hispanic organizations, including the Hispanic National Bar 
Association, the League of United Latin American Citizens, and the U.S. 
Hispanic Chamber of Commerce. The Austin American Statesman wrote last 
Friday: If Democrats have something substantive to block Miguel 
Estrada's confirmation to the U.S. Court of Appeals for the District of 
Columbia, it is past time they share it.
  Miguel Estrada's nomination was announced in May of 2001 and has been 
held hostage since by the Senate Democrats who have yet to clearly 
articulate their objections to him.
  Mr. Estrada is widely regarded as one of the Nation's top appellate 
lawyers, having argued 15 cases before the Supreme Court of the United 
States. He is currently a partner in a Washington, DC, law firm and 
practices law. He is truly an American success story.
  Miguel Estrada emigrated to the United States from Honduras at the 
age of 17, speaking very little English. He graduated magna cum laude 
from Harvard Law School and served as a law clerk to U.S. Supreme Court 
Justice Anthony Kennedy. He has been in the judicial system. He is an 
esteemed academic. He has a stellar record. Yet Miguel Estrada cannot 
get a vote on the floor of the Senate. He has been a highly respected 
Federal prosecutor in New York City. He served as Assistant Solicitor 
General under President George H.W. Bush for 1 year and under President 
Clinton for 4 years.
  His nomination has broad bipartisan support, including support from 
high-ranking Clinton administration officials such as former Solicitor 
General Seth Waxman and Ron Klain, the former counselor to Vice 
President Al Gore.
  Mr. Estrada has worked throughout his career while he has been in the 
public sector and the private sector to uphold our Constitution and 
preserve justice.
  That we cannot get a vote on this qualified man is incredible. I am 
afraid it could be the beginning of a precedent that, in my opinion, is 
unconstitutional.
  Our Founding Fathers understood the need to have three separate and 
equal branches of government so there would be checks and balances 
throughout our system. They gave to the President the right to appoint 
a Federal judiciary, a Federal judiciary that has lifelong 
appointments. They gave to the Senate the right of confirmation--advise 
and consent as it is called in the Constitution--that has always meant 
a majority vote. If a two-thirds vote has ever been required by the 
Constitution, it is specified. So we are talking a simple majority, a 
simple majority to confirm the nominees of the President. That is the 
check and the balance in the system.
  What we see today is an amendment to the Constitution, but it has not 
gone through the process required under the Constitution where an 
amendment would get a two-thirds vote of both Houses of Congress and 
then it would go to the States to be passed. That is the requirement to 
change the Constitution of this country.
  However, today we are changing the Constitution because we are, in 
essence, requiring 60 votes to break a filibuster in order to confirm 
this judge, Miguel Estrada. Why have we set a bar of 60 votes for this 
man? What is the thought process of the Democrats who are filibustering 
this appointment that they would substitute a 60-vote requirement for 
the constitutional provision that has always meant 51 votes or a 
majority of those present, a simple majority? And yet we are setting a 
new

[[Page 4303]]

bar, a 60-vote bar, without going to the people, without going through 
the process of a constitutional amendment. This is not right. This man 
has been pending for 21 months.
  We are now in the Chamber. He has come out of committee. We are in 
the Chamber trying to get a vote of a simple majority to put the first 
Hispanic on the DC Court of Appeals, a Hispanic who graduated with 
honors, magna cum laude, from Harvard Law School, with years of 
experience as one of the most highly esteemed appellate lawyers in 
America, and we cannot get a vote on Miguel Estrada.
  Let me read some of the editorials that have been written about this 
nomination. On February 18, 2003, the Washington Post wrote:

       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 to 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.

  Mr. President, the Washington Post has shown the fallacy of all the 
arguments that have been thrown out there against Mr. Estrada: Well, he 
did not answer questions; well, he is too young; well, he is not 
Hispanic enough.
  Give me a break. This is ridiculous. This is a man who is one of the 
most highly qualified appellate lawyers in America, who has a stellar 
academic record, who has a stellar reputation in public life, who has 
strong bipartisan support, and who cannot get a vote in the Senate 
because he is being filibustered.
  This just is not right. It is time we call this what it is. It is a 
filibuster. It is a change of the constitutional requirement for advice 
and consent from the Senate. It is a change of the Constitution without 
any procedure that is required to amend our Constitution. It is setting 
a new standard that Democrats and Republicans before have always agreed 
would never be done. When Democrats were in control, they did not 
filibuster nominees or they did not allow filibusters of nominees by 
Republicans, and Republicans are in control. And we are asking for the 
same courtesy, the same tradition, and, in fact, the same respect for 
the Constitution. The Constitution says advise and consent. When the 
Constitution requires more than a 51-vote margin or a simple majority, 
it so states. That is not the case in confirmation of judges, and it 
has not happened before on a partisan basis. There was one bipartisan 
filibuster. There has never been a partisan filibuster before.
  There is no controversy about this nominee. There have been 
controversies before--controversies where you could legitimately see a 
difference in qualifications or in background issues or in experience 
issues. None of that applies to this nominee.
  I think it is time the Democrats state if there are real objections. 
For instance, if there are more questions to be answered, have another 
hearing, or submit the questions in writing and let Miguel Estrada have 
a chance to answer these questions. Miguel Estrada has offered to go 
and visit with many Democrats who have not found the time to be able to 
see him. Yet we can't get a vote in the Senate on this distinguished 
nominee.
  Let me read an article by Rick Martinez from the Raleigh News & 
Observer:

       Once again, a minority is being denied a vote. Democrats in 
     the U.S. Senate have threatened a filibuster to block the 
     confirmation of Hispanic Miguel Estrada, nominated by 
     President Bush to the federal Court of Appeals for the D.C. 
     circuit.
       If Estrada were applying to the University of Michigan law 
     school, Democrats, it seems, would support giving him 20 
     points just for being Hispanic. Given the party's unqualified 
     support of affirmative action, why shouldn't it ante up to 10 
     or 15 Senate votes for confirmation simply because of his 
     ethnicity? Goodness knows that Hispanics, now the nation's 
     largest ethnic group, are largely unrepresented in the 
     federal judiciary.
       Democrats counter that their opposition is based on 
     Estrada's views and qualifications. If so, at what point 
     along the ladder from law student to the federal bench is 
     race no longer relevant?
       For Democrats, it was when Estrada stepped on a rung they 
     viewed as conservative. Once that ideological line was 
     crossed, all the benefits of affirmative action--increased 
     representation, diversity of social experience, providing an 
     example for minority youth--no longer applied to the 
     Honduran-born lawyer.

  Mr. Martinez says:

       The whole Estrada tiff is the latest warning to Hispanics 
     that racial politics is about power, not equality. Hispanics 
     have been given fair warning that those who wander off their 
     pre-assigned ideological plantation will pay a heavy price. 
     Ethnic hit man, Rep. Bob Menendez, a New Jersey Democrat, 
     unleashed an ugly personal attack on Estrada by questioning 
     his Hispanic heritage. To date not one Democratic leader has 
     taken Menendez to task for his unwarranted remarks. That they 
     came from a man with a Latin surname doesn't make them any 
     more legitimate or any less offensive than if they came from 
     Sen. Trent Lott.
       Democrats, write this down. We Hispanics don't all look 
     alike, we don't all think alike, and God has yet to appoint 
     Menendez to pass judgment on our ethnicity. Ideology has 
     never been an ethnic prerequisite, and it shouldn't be for 
     one on the federal bench either.

  There are approximately 50 editorials written throughout the country 
about the qualifications of this man. This one written by Rick Martinez 
in Raleigh, NC, basically says there is a different standard for 
Hispanics--that Hispanics are not a monolith and they shouldn't be 
judged as a monolith. In fact, Miguel Estrada is one of the most 
qualified people--not one of the most qualified Hispanics, one of the 
most qualified people who--have ever been nominated for an appellate 
court in our country. He has the experience. He has the background. He 
has the academic credentials. And he has a reputation that is sterling. 
Yet we can't get a vote on Miguel Estrada.
  I hope those who are refusing to allow a vote on Miguel Estrada will 
listen to the League of United Latin American Citizens--LULAC--which 
has come out strongly for this qualified man and that does not really 
understand why there is a different standard being set for him than is 
being set for other appellate court nominees.
  I urge my colleagues to listen to the Hispanic National Bar 
Association president, who represents 25,000 Hispanic American lawyers 
in the United States, endorsing Mr. Estrada, the National Association 
of Small Disadvantaged Businesses, which came out in strong support of 
Mr. Estrada, and a bipartisan group of 14 former colleagues

[[Page 4304]]

in the Office of the Solicitor General at the U.S. Department of 
Justice who have come out foursquare for Miguel Estrada.
  There is no legitimate reason being stated not to give Miguel Estrada 
a vote. To say that he didn't answer questions, if legitimate--if they 
would ask him questions and let him answer them, but they haven't. 
Saying he is too young is ridiculous; saying he is not Hispanic when he 
came to our country from Honduras at the age of 17 speaking little 
English--and he wanted a part of the American dream. But he didn't want 
it given to him; he wanted to earn it.
  He worked his way into Columbia University and was a Phi Beta Kappa. 
He worked his way into Harvard Law School and graduated magna cum 
laude. He worked to get a partnership with a major law firm after being 
a Supreme Court Justice clerk which is reserved for only the best 
graduates of law schools in our country.
  This man deserves a vote. He deserves the respect of the 
Constitution, and he is not getting it as we speak today. The 
Constitution says advise and consent. The Constitution says a 
majority--not 60 votes out of 100 but a simple majority. It is what has 
always been required for the President's nominees. That is the check 
and balance in our system.
  I hope the Senate will do the right thing. If there are legitimate 
questions, raise them. Let Mr. Estrada answer them. But this man 
deserves a vote, and the Constitution deserves respect and adherence by 
this body.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I ask for permission to speak on behalf 
of Miguel Estrada.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. CHAMBLISS. Mr. President, I am still new to this body having been 
here less than 2 months at this point in my career in the Senate. After 
spending 8 years in the House of Representatives, I am still feeling my 
way through with respect to finding the microphone, and things like 
that.
  I am somewhat at a loss when it comes to the process through which we 
are now going. It is totally unlike any type of process that I 
experienced in the House of Representatives because we don't confirm 
judges anywhere except in the Senate. I spent 26 years as a lawyer 
before being elected to the House of Representatives. In my 26 years as 
a lawyer, I tried hundreds of cases, and on appeals dozens and dozens 
of cases, and I had a number of opportunities to appear before both 
trial judges and appellate judges, on a variety of different issues.
  At any one moment before an appellate court, you can pretty well look 
at a judge and tell whether or not that judge has done his homework on 
your issue. You have a sense of whether or not he has the intellect to 
interpret the issue and be very responsive to your argument. And if you 
ever find a judge who is not responsive, you can check his background, 
and you may find out that maybe he did not have the intellect to follow 
the course of your argument.
  So when I look at the background of Miguel Estrada and try to decide 
whether or not, were I to appear as a lawyer before him, he would be 
the type of individual to whom I could make an argument and have him 
interpret that argument, even though it is on a very complex issue, I 
believe he would be. I have to tell you, his is one of the most unusual 
profiles I have ever seen of any member of the bar, much less any 
potential member of the bench.
  It is unusual not just because his is a true American dream story. It 
is unusual because this man, as a practicing lawyer in public service 
and in the private sector, has distinguished himself above all other 
lawyers with whom he has ever been associated.
  He is a man who has distinguished himself by coming to the United 
States, not speaking much, if any, English, and not only attending 
major universities, but graduating from those universities with high 
honors: from Columbia University with an undergraduate degree, and 
Harvard Law School with a law degree.
  At Harvard Law School he was a member of the editorial board of the 
Law Review. And those of us who went to law school know there are only 
a few Law Review editorial board members. I can still remember in my 
law school class those who were members of the law review. Out of my 
class, of the 200 who started in law school, there were--I think about 
five of them--who were members of the Law Review. So it is a very 
distinct intellectual group of students who make the Law Review. And 
the editors of the Law Review are the elite of those very few who are 
designated with law review status.
  The intellectual background of this man is unquestioned. He does have 
the capability of interpreting and deciphering any complex issue that 
might be presented to him as a member of the appellate court bench.
  So when I think about, again, appearing before a man with his type of 
background, to argue a complex case, I think it would be wonderful to 
know you have somebody with the qualifications and the capability of 
Miguel Estrada to really listen to your argument and make the kind of 
decision every lawyer wants to have made on his or her particular case.
  One thing that confuses me about Miguel Estrada's nomination is, I 
was told while I was in law school that I should join the American Bar 
Association as a student. And I did. I was a very active member of the 
American Bar Association in my small, rural community in Georgia for 
all of the 26 years I practiced law.
  The American Bar Association is a very well respected, very highly 
recognized peer group within our profession. The American Bar 
Association was asked to review Mr. Estrada, as they review every other 
judicial nominee, and to make a recommendation to this body as to 
whether or not he is qualified to be confirmed by this body to the 
District of Columbia Circuit Court. They came back and said: Not only 
is he qualified, not only does he possess the academic and intellectual 
and legal background to serve on the Circuit Court for the District of 
Columbia, but he is well qualified. We are giving him the highest 
recommendation that lawyers can give to a lawyer who seeks confirmation 
to any court.
  As a member of the Judiciary Committee, I have already seen that we 
have some judges who come through the committee who do not receive the 
highest recommendation from the American Bar Association, but 
nevertheless get confirmed by this body. And they should, because 
everybody is not going to get that highest qualification recommendation 
from the American Bar Association.
  But Mr. Estrada got the highest qualification from his peers--those 
men and women who practice law with him, who talked to other lawyers 
who practiced law with him, who know how he functions day in and day 
out in the practice of law, who know his temperament and his 
capabilities as well as his ability to serve in the capacity of an 
appellate court judge. And for that body to come forward and say, we 
are going to give him the highest recommendation possible is just 
another one of the assets he brings to this body from the standpoint of 
confirming his nomination.
  I was not here when Mr. Estrada had his hearing before the Judiciary 
Committee. That took place in September of last year when the committee 
was controlled by the Democrats. At that point in time, from what I 
read in the record, Mr. Estrada appeared before the Judiciary Committee 
for a full day's hearing. Every member of the Judiciary Committee had 
the opportunity to ask Mr. Estrada any question they wanted to. And 
they did.
  There has been some question about whether or not he was totally 
forthcoming in his answers, whether he gave complete responses to the 
questions that were asked of him. Well, in addition to having the 
opportunity to ask Mr. Estrada questions at the time of his hearing, 
whether Mr. Leahy was chairman or now with Mr. Hatch as chairman, the 
members of the Judiciary Committee always have the opportunity to 
submit written questions in

[[Page 4305]]

addition to those questions that are asked at the hearing.
  If a Judiciary Committee member is not satisfied with answers to 
questions he or she asked, he or she simply has the right to come back 
and say, I want you to go into further detail with respect to this 
particular issue, to tell me whatever it is I want to have answered. 
Only two members of the Judiciary Committee came forward and said: We 
have additional questions we want to ask. Those two were both 
Democrats. They had the right to do it. They did it. And I respect them 
for coming back with additional questions when they felt they did not 
get totally complete answers. The fact of the matter is, though, those 
questions were answered immediately by Mr. Estrada.
  So for somebody to come forward now on the other side of the aisle 
and say, we do not think he fully answered our questions, where were 
they? Where were they at the time of the hearing? Why didn't they come 
forward after the hearing if they were not satisfied at the hearing and 
submit additional written questions?
  To come to this body now and to say Mr. Estrada was not totally 
forthcoming at the time of the hearing just shows this particular 
nomination has dipped itself into the depths of political partisanship. 
And it is not right.
  I am biased. I am a lawyer. I think I am a member of the greatest 
profession that exists in the United States of America. I think we have 
a great judicial system because even though a lot of people throw rocks 
at our system--and I myself even have criticized it from time to time--
we have the best system in the world. We have the best system in the 
world because it works. And people of all walks and backgrounds have 
the opportunity to have their cases heard by a judge, whether it is Mr. 
Estrada or a magistrate court judge in Colquitt County, GA. People have 
the right to have their cases heard.
  And now, for somebody to come forward and say, I asked this guy a 
question, and he did not really answer my question, therefore, I am 
going to vote against him, I think just throws another rock at our 
judicial system that should not be thrown.
  Referring, again, to Mr. Estrada's qualifications being called into 
question, this is an issue that has been batted back and forth between 
political parties. I have listened to an extensive amount of the debate 
over the past 2 or 3 weeks, both as Presiding Officer as well as on and 
off the floor. I have listened to my colleagues on the other side of 
the aisle raise issues relative to Mr. Estrada. In talking about 
qualifications of anybody to go to the bench, particularly the circuit 
court versus the district court, you can look at an individual lawyer 
and say, this man or this woman has appeared before the highest court 
in the land, the Supreme Court, not once, not twice, not 3 times, but 
15 times to argue cases, and he has distinguished himself very well in 
those 15 arguments. As we all know, sometimes you are on the winning 
side and sometimes you are on the losing side, but 10 out of the 15 
times that Mr. Estrada has been to the U.S. Supreme Court, irrespective 
of whether he was on the appellate side, which is the losing side going 
in, or whether he was on the appellee's side, the winning side going 
in, he has prevailed at the end of the day. So for a guy to argue 15 
times before the U.S. Supreme Court and to win 10 of them is a very 
distinguishable record.
  The fact that he even argued cases before the Supreme Court very 
honestly puts him in a category of lawyers that is the most highly 
respected group of lawyers that exists in the United States today. 
There are just not many folks who have the opportunity to argue a case 
before the Supreme Court. Here we have a man who has argued 15 cases 
before them.
  Another argument I have heard time and time again is that we should 
be able to see the memos that he submitted to his boss while he was 
assistant to the Solicitor General. Some believe we should be able to 
see what was in his mind from a legal perspective, and use those memos 
to try to determine whether or not he has the judicial qualifications 
and temperament to serve as a member of the DC Circuit Court of 
Appeals.
  Let me tell you what that is like. As a practicing lawyer, if I have 
somebody come into my office and I interview them and take notes and I 
then take their case and go into my law library and do extensive 
research on the issue for my client to make sure that I am well 
prepared from a legal precedent standpoint and I then write a 
memorandum, which I have put in my file to make sure that at the 
appropriate time--when the case either comes to a hearing or I have an 
argument with opposing counsel--that memorandum is personal and 
privileged to me and my client.
  What the Democrats have asked for is, to view the collateral memos 
that were prepared by Mr. Estrada for his boss, the Solicitor General, 
while he was working in the Clinton administration and while he was 
working in the Bush 41 administration. That is wrong. They should not 
ask for it in the first place, but the Justice Department is absolutely 
right in refusing to produce them. They should not produce those memos 
because those memos are personal. They are private. They are 
privileged.
  Every lawyer in the country ought to be outraged that the Justice 
Department is even being asked for those memoranda to be presented to 
this body for review when they were prepared in a private setting, in a 
setting in which there was a lawyer-client relationship in existence. 
Those types of memos have never been allowed to be offered into court 
for proof of any issue, and they should not be required to be presented 
here in this body.
  Speaking of politics being involved here, again, as a new Member of 
this body and a new member of the Judiciary Committee, I am having a 
little trouble understanding the politics of this issue. I could 
understand it if Mr. Estrada has been a lifelong Republican, had the 
tattoo of an elephant on him and was a known advocate or radical that 
held forth extreme positions. I could understand the politics involved 
in seeking to block this man by the folks on the other side of the 
aisle.
  But that is not the case. Here we have a man who came to the United 
States speaking little or no English, a man who went to two of the 
finest schools in America not known for their conservative-leaning 
students or faculty, Columbia University and Harvard. I don't know 
where they lean, but they are certainly not conservative-leaning 
universities.
  That is his background. He comes from an administration that was not 
a conservative-leaning administration, the Clinton administration. He 
worked for 4 years in that administration. He worked for the Solicitor 
General in the first Bush administration for a year and then the 
Clinton administration for 4 years. There is nothing to indicate that 
this man would have an off-the-wall conservative-leaning philosophy.
  I do not understand the politics of somebody coming up and saying: 
Well, we think he may be too conservative or he may be radical.
  Those kinds of statements were made within the Judiciary Committee, 
and there is simply no basis for them.
  The fact is, every Solicitor General who lives today who has worked 
for any administration, whether it is Republican or Democratic, has 
come forward and signed a letter saying, No. 1, the privileged 
memoranda sought to be produced from the Justice Department should not 
be produced because they will compromise future administrations. They 
never should be produced. And No. 2, they recommend Mr. Estrada for 
confirmation by this body.
  When somebody in that position makes a statement, it takes it totally 
out of the realm of politics and puts it in the realm of 
professionalism, which is where it ought to be. We ought to have good, 
quality, competent men and women going to the bench.
  As a Member of the House of Representatives during the Clinton 
administration, I had a good friend who was nominated to the District 
Court for the Northern District of Georgia. She is a good lawyer. She 
was a really outstanding U.S. attorney. She is not a

[[Page 4306]]

Republican, but I thought she ought to be put on the district court. 
She was, in fact, appointed, and she was confirmed by this body because 
she was a good lawyer. She was the type of person who ought to be on 
the bench.
  The same thing holds true for Mr. Estrada. All you have to do is look 
at his record. It is pretty easy to tell that he is a good lawyer. When 
you talk to other lawyers about him, I promise you, in the legal 
profession, you know very quickly whether or not somebody is well 
respected and well thought of.
  Mr. Estrada has the respect of his colleagues. We have searched high 
and low. If anybody has anything negative to say about Mr. Estrada, it 
has come forward. Only one coworker who he worked with over the years 
has had anything negative to say about Mr. Estrada.
  Do you know what is unusual about that? That same individual, who was 
his supervisor in the Office of Solicitor General during the Clinton 
years, gave him a rating on two different years. That review rating 
that was given to Mr. Estrada was ``outstanding'' by this particular 
individual who is now the only member of the Solicitor General's 
Office, or any other place where Mr. Estrada was employed, who has had 
anything whatsoever, to say in a negative capacity regarding Mr. 
Estrada.
  So whether it is people he worked for, whether you look at his 
qualifications from an educational standpoint, vis-a-vis an 
intellectual standpoint, whether it is the Hispanic community that you 
look to for a recommendation on Mr. Estrada--everywhere you look, he 
gets nothing but the highest marks, the absolute highest marks.
  One other area in which I think Mr. Estrada has really excelled is 
with respect to what we in the legal community refer to as pro bono 
work. Pro bono work is done different ways in different parts of the 
world. In my part of Georgia, a practicing lawyer does pro bono work 
when he or she takes appointed criminal cases usually. Occasionally, 
you will represent an individual in a civil matter and you don't get 
paid for it. That is what we talk about as a pro bono type case. Mr. 
Estrada has been very active in the world of pro bono service. In fact, 
he handled one case that was a death row inmate case, which is not the 
normal type of case that a lawyer of Mr. Estrada's background would 
handle. But he took the case and, obviously, he did the work necessary 
to fully, totally, and very professionally represent his client, 
because he spent almost 400 hours in research and preparation for 
representing this individual--a death row inmate's case.
  For a man to spend 400 hours--I don't know what his billable rate is, 
but even at my billable rate in rural Georgia, that would have been an 
awful lot of money that Mr. Estrada sacrificed for the sake of making 
sure this death row inmate had more than adequate representation. In 
fact, with Mr. Estrada, the death row inmate was represented by an 
outstanding lawyer who had the capability--and I am absolutely certain 
he did--to do everything necessary to fully and totally represent his 
client.
  Now, one final criticism of Mr. Estrada is that he has no judicial 
experience. Well, I don't buy this argument. In fact, I think, if 
anything, it may be to his advantage. Having judicial experience 
sometimes, I think, could be even a negative factor, although in a case 
where you had somebody as qualified as Mr. Estrada, it would not make 
any difference one way or the other. But you have an individual here 
who has legal experience. That is what is important. He has legal 
experience in being able to work on complex cases, and most of the 
time, cases that come before the circuit court are complex cases. Mr. 
Estrada has the ability to deal with those complex cases because he has 
handled them for years and years as a practicing attorney in the public 
and private sectors. He has the type of background that lends itself to 
being able to deal with those complex cases and make a rational, 
reasonable interpretation of the Constitution, which every judge is 
expected to do and which is exactly what Mr. Estrada said he would do 
at his hearing in September before the Judiciary Committee.
  I close by saying there have been 57 newspaper editorials I have seen 
relative to the nomination of Mr. Estrada and the treatment of his 
nomination on the floor of the Senate. Of the 57 editorials that have 
appeared in newspapers all across America, 50 have been favorable 
toward Mr. Estrada. One of those editorials appeared in a newspaper in 
my home State, in Atlanta, GA. The Atlanta Journal-Constitution wrote 
an editorial--about 3 weeks ago now--that was complimentary to Mr. 
Estrada and critical of the Senate for not moving on his nomination.
  Let me tell you, when it comes to politics, the Atlanta Journal-
Constitution is not on one side most of the time; they are on one side 
all of the time. I have never received, in my political career, the 
endorsement of the Atlanta Journal-Constitution, except for the one 
time when I did not have an opponent and I guess they had to endorse 
me. To say that they are in any way leaning toward the conservative 
side on any issue would be outlandish. But even the Atlanta Journal-
Constitution came out and said this is wrong.
  This man is a good and decent man. He has the intellect and 
background to serve on the Circuit Court for the District of Columbia 
Court of Appeals, and he should be confirmed. That line has been 
repeated by newspapers in America day in and day out for the last 
several months.
  The Augusta newspaper, also in my State, wrote a glowing editorial 
also recommending that this body confirm the nomination of Miguel 
Estrada to the U.S. Court of Appeals for the District of Columbia.
  I think, without question, that the right arguments have been made in 
support of Mr. Estrada. Just in winding down--I see my friend from 
Nevada here, and I don't know whether he wants time or not--I want to 
say that, from the standpoint of support from the Hispanic community, 
there has been overwhelming support from every aspect of the Hispanic 
community. When you look at the League of United Latin American 
Citizens--that is what we call LULAC--which is the Nation's oldest and 
largest Hispanic civil rights organization, the president of that 
organization, Mr. Rick Dovalina, wrote a letter, and this is what he 
said about Mr. Estrada:

       On behalf of the League of United Latin American Citizens, 
     the nation's oldest and largest Hispanic civil rights 
     organization, I write to express our strong support for the 
     confirmation of Mr. Miguel A. Estrada. . . . Few Hispanic 
     attorneys have as strong educational credentials as Mr. 
     Estrada who graduated magna cum laude and Phi Beta Kappa from 
     Columbia and magna cum laude from Harvard Law School, where 
     he was editor of the Harvard Law Review. He also served as a 
     law clerk to the Honorable Anthony M. Kennedy in the U.S. 
     Supreme Court, making him one of a handful of Hispanic 
     attorneys to have had this opportunity. He is truly one of 
     the rising stars in the Hispanic community and a role model 
     for our youth.

  The Hispanic National Bar Association president, Rafael A. Santiago, 
stated as follows:

       The Hispanic National Bar Association, national voice of 
     over 25,000 Hispanic lawyers in the United States, issues its 
     endorsement. . . . Mr. Estrada's confirmation will break new 
     ground for Hispanics in the judiciary. The time has come to 
     move on Mr. Estrada's nomination. I urge the Senate Committee 
     on the Judiciary to schedule a hearing on Mr. Estrada's 
     nomination and the U.S. Senate to bring this highly qualified 
     nominee to a vote, said Rafael A. Santiago, of Hartford, 
     Connecticut, National President of the Hispanic National Bar 
     Association.

  So this man has the qualifications. He has the educational 
background. He has the legal background. He has the intellect. He has 
the support of Democrats. He has the support of Republicans. He has the 
support of liberals. He has the support of conservatives. He has the 
support of the Hispanic community. The only support he is lacking to 
bring this nomination to a vote on the floor of the Senate is the 
support from our colleagues on the other side of the aisle.
  Not allowing this nomination to come to the floor for a vote is not 
fair, it is not judicially just. It is not just in any way from an 
ethical, moral, or judicial standpoint.
  Mr. Estrada's nomination has been debated back and forth now for, 
gosh,

[[Page 4307]]

going on 3 weeks. I guess 3 weeks starting tomorrow--a total of 4 
weeks. We were here 2 weeks, we were out 1 week, and now we are back. 
So I guess it is a total of 4 weeks. We have a lot of business that 
needs to be brought before this body. We have a jobs growth package 
that needs to be debated and passed that the President has put forth. 
We have the impending conflict with Iraq and the continuing war on 
terrorism that needs to be dealt with on the floor of this body. We 
need to move to other business.
  We need the folks on the other side of the aisle to come forward and 
say: OK, we will give you a vote. We do not think he is qualified, but 
we are willing to give Mr. Estrada a vote. That is the right thing to 
do, that is the just thing to do, and that is the judicial thing to do. 
If they want to vote against him, vote against him, but if we want to 
vote for him, we ought to have the opportunity to vote for him. We 
ought not require 60 votes. We ought to require 51 votes, as I think 
our Constitution requires, and we ought to bring the name of Miguel 
Estrada to the floor of the Senate and have a vote.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. REID. Mr. President, will the Senator from Massachusetts yield 
for a question?
  Mr. KENNEDY. Yes, I will be glad to yield.
  Mr. REID. Mr. President, the distinguished Senator from Georgia just 
stated that there is a lot of business this Senate has to do and that 
we should get off the Estrada nomination and get on to these other 
matters. The Senator from Massachusetts, I am sure, agrees with my 
friend from Georgia that we have a lot of business to do.
  I know from having worked with the Senator from Massachusetts over 
the years--and I ask the Senator if he will acknowledge this--there is 
business we need to do that we have been prevented from doing. For 
example, something we have not heard a word about is the minimum wage. 
People in Nevada are desperate. We have a service industry. Sixty 
percent of the people in Nevada who receive the minimum wage are women; 
for 40 percent of those women, that is the only money they get for the 
families. That would be a good issue to take up--minimum wage--doesn't 
the Senator from Massachusetts agree?
  Mr. KENNEDY. The Senator is entirely correct. I was listening to my 
new friend from Georgia talking about the business that needs to be 
done. As the Senator remembers very well, our leader, Senator Daschle, 
tried to bring before the Senate an economic stimulus program that 
would have provided assistance to working middle-income families. It 
would have provided assistance to small business. It would have 
provided funding for education and the programs for which the 
Governors, Republicans and Democrats alike, indicated support. It would 
have provided additional assistance to the States to meet their 
Medicaid challenges. I hope to get to that in a moment. And it would 
have permitted funding in transportation. This would have made an 
important difference in trying to restore our economy.
  The Senator, as part of the leadership, is familiar with the fact 
that Senator Daschle was prepared to bring that up and start that 
debate, but there was objection from the other side.
  The Senator brings up the issue of minimum wage, and he knows how 
strongly I feel about an increase in the minimum wage which Republicans 
have denied us the opportunity to have. As the Senator has pointed out, 
more than 60 percent of those who are minimum wage recipients are 
women. So this is a women's issue. Of the women who receive the minimum 
wage, a majority of them have children, so it is a children's issue. It 
is a women's issue and it is a children's issue. Since a great number 
of those who receive minimum wage are men and women of color, it is a 
civil rights issue. It is a women's issue, a children's issue, a civil 
rights issue, and, most of all, it is a fairness issue because most 
Americans think that if someone works 40 hours a week, 52 weeks of the 
year, they should not live in poverty.
  The great majority of Americans feel that way. We want to put that 
before the Senate and Republicans refuse to let us have a vote on that 
issue. We have been battling that issue not just for 10 days, not just 
for 2 weeks, but we have been battling that issue for the last 5 years.
  I agree with the Senator when he says we have been trying to get 
matters before the Senate. We could bring up minimum wage. I am quite 
prepared as the principal sponsor--it is not a complicated issue. We 
have debated that issue time in and time out, year in and year out. It 
is not a complicated issue. We ought to be able to have debate and an 
up-or-down vote on that issue.
  I think of all these statements of let the majority have a ruling on 
this nomination. Does the Senator remember as I do when we voted on a 
prescription drug program and a majority in the Senate was for the 
proposal of Senator Graham of Florida and Senator Miller, of which I 
was proud to be a cosponsor? That would have provided a comprehensive 
prescription drug program for all who needed it in the United States. 
We had 52 Members, a clear majority, for a prescription drug program, 
the third leg of the Medicare stool on which our seniors rely: 
hospitalization, physician care, prescription drugs. We had the 52 
votes, and do you think we were permitted to have a vote in the Senate? 
No, our Republicans objected to that. How short is their memory.
  Mr. REID. Will the Senator yield for another question?
  Mr. KENNEDY. I will be glad to yield.
  Mr. REID. The Senator is aware that this extended debate deals with 
the job of one person, a man by the name of Miguel Estrada. It is not 
as if he is not working. Does the Senator agree he is partner in one of 
the most prestigious law firms in America and pulling down hundreds of 
thousands of dollars a year? I say to my friend from Massachusetts, 
should not the Senate be more concerned about the millions of people 
who are underemployed, the millions of people who are unemployed, the 
people who are lacking health care--44 million people with no health 
care--and many people who are underinsured? Should not the Senate be 
dealing with those people rather than one person who is employed making 
hundreds of thousands of dollars a year?
  Mr. KENNEDY. Mr. President, I say to the Senator from Nevada, I think 
he makes the case. It is such a compelling, overwhelming, rational case 
he makes about what is happening across this country. I know it is 
true, when the Senator from Nevada speaks about those who are 
unemployed, those who are underemployed, he is speaking for the people 
of Massachusetts. That statement the Senator just made is of central 
concern to the families in my State who are seeing now the highest 
unemployment in some 10 years, and the prospects are difficult, as 
people look down the road.
  It was not always this way. We have seen it was not. I ask my 
colleague and friend, so many on the other side throw up their hands 
and say: It is the economic cycles. Is it not true that the longest 
periods of economic growth and price stability have been under 
Democratic Presidents? We had it over the last 8 years under President 
Clinton. That was not an accident. The time before that was in the 
early 1960s under President Kennedy. The longest periods of economic 
growth, price stability, and full employment were under Democrats. That 
is the record. That is the history.
  We want to get back to a sound economic policy. A sound economic 
policy means creating jobs and having price stability, and the Senator 
understands this very clearly. Our minority leader, Senator Daschle 
does, and that is what we hope to resume with an effective economic 
program that can make a difference to families across this country.
  The Senator from Nevada being a leader in this body, I am interested 
in whether the Senator agrees with me that the people in his State, as 
well as mine--I know I speak for all of New

[[Page 4308]]

England on this. People are concerned, deeply concerned, about their 
economic future and they are concerned, obviously, about their 
security, the dangers which all of us are familiar with in terms of 
terrorist activities. In my State, they are concerned about their sons 
and daughters, especially if they are in the Reserve or the National 
Guard. We now have the highest calling up of the Reserves and the Guard 
since World War II. Communities are particularly concerned because more 
often than not, people who are being called up are those who have also 
been trained as auxiliary firefighters, police officers, or first 
responders in the medical professions.
  What I hear the Senator from Nevada saying is we should try to 
respond to these kinds of anxieties. The leaders have provided a 
program which has galvanized many of our Members--all of the Members on 
our side--and his point is that as leaders in our party we should be 
focused on that program.
  I was listening to my friend from Georgia talking about the attitude 
of some Hispanic leaders. I have a letter from 15 past presidents of 
the Hispanic National Bar: We, the undersigned past presidents, write 
in strong opposition to the nomination of Miguel Estrada for a judge on 
the Circuit Court of Appeals for the District of Columbia. I will later 
come back to the statement they made.
  Despite the pressure from our Senate Republicans and the White House 
to abandon our principles and our obligations, the Senate Democrats 
intend to abide by our constitutional duty to provide advice and 
consent in the judicial confirmation process. The White House, however, 
continues to refuse to give us the information necessary for our 
consideration of the nomination of Miguel Estrada. The White House is 
asking the Senate to rubberstamp its judicial nominees when those 
nominees will have enormous power over the lives of the people we 
serve. If we confirm nominees to a lifetime appointment to the Federal 
bench without looking into their record, we would open the door for the 
White House to roll back civil rights, workers' rights, and important 
environmental protections, along with many other Federal rights we have 
worked so hard to develop.
  The danger involving the DC Circuit is even greater, because that 
court has exclusive jurisdiction over so many issues that affect all 
Americans. Since the Supreme Court hears relatively few cases in these 
areas, the DC Circuit is often the court of last resort for individuals 
to obtain the justice they deserve. If Mr. Estrada is confirmed, he 
will be called upon to decide many of these cases. Often, individuals 
have been victimized unfairly and in a manner not envisioned by the 
Constitution. They have come to the Federal courts for protection and 
relief. In doing so, they have changed America. They have made this 
country a stronger, better, and fairer land. They helped America 
fulfill its promise of equal opportunity, equal rights, and equal 
justice under the law. They have given real meaning in people's lives 
to the great principles of the Constitution and the many laws Congress 
has enacted over the years to protect these basic rights.
  When we consider the nomination of Mr. Estrada, we need to understand 
the crucial importance of these cases and how the rights of so many 
others can be decided by a single case. These cases would not 
necessarily have turned out the way they did if we did not have Federal 
judges who are acutely aware of the rights and the needs of the most 
vulnerable Americans, and how their rulings affect so many people's 
lives.
  Would Mr. Estrada be such a judge? Would he have this strong sense of 
justice of the needs of people he would serve? We do not know because 
we have been prevented from learning about this nominee, and the White 
House is trying to keep it that way.
  Our response is clear. We will not confirm Mr. Estrada unless we know 
what kind of jurist he would be. Our constitutional responsibility 
requires no less.
  Let me describe a few of the landmark cases the judges of the DC 
Circuit have decided. In Barnes v. Costle in 1977, the DC Circuit was 
faced with a situation that was and still is far too common in the 
American workplace. Paulette Barnes had been hired by the Environmental 
Protection Agency, but she quickly discovered she would not be able to 
do her work effectively. Her male supervisor repeatedly asked her to 
join him after work for social activities. She politely declined. He 
then made repeated sexual remarks and propositions to her. She refused. 
But her supervisor would not be deterred. He kept harassing her and 
even tried to convince her his behavior was common. Ms. Barnes could 
not escape these overtures and the unfair pressure she faced, because 
her job required her to work with her boss.
  After she repeatedly refused to have an affair, he started to 
retaliate against her. He belittled her work. He took away many of her 
responsibilities. He harassed her continuously. Finally, he had her 
fired because she refused to go along with his demands.
  Ms. Barnes sued her employer under title VII of the Civil Rights Act 
of 1964. Congress passed this important legislation in order to end 
workplace discrimination and open the doors to equal employment for all 
Americans, but the EPA did not see it this way. Its lawyers argued when 
Congress enacted title VII, we did not intend sexual harassment to be 
included in the ban on sexual discrimination.
  What Ms. Barnes faced was not discrimination, they said. She was not 
fired because she was a woman but because she refused to engage in 
sexual activities with her supervisor. Fortunately, the judges of the 
DC Circuit understood the importance of the case. They took time to 
look into the record. They found our intent in passing title VII was to 
give women and minorities equal rights in the workplace so everyone 
would have a truly equal opportunity to succeed.
  The judges agreed that so long as harassment of this kind was allowed 
to continue, women could not have equal rights in the workplace. They 
ruled that allowing female workers to suffer harassment to keep their 
jobs is a type of discrimination that has long relegated women to 
lower-level jobs and made it more difficult for them to have equal 
rights in the workplace.
  The DC Circuit held that harassment of the type suffered by Ms. 
Barnes was illegal sex discrimination. If not for the judges of the DC 
Circuit, her case could have turned out very differently. Thus, the 
importance of the DC Circuit.
  In 2003, the outcome of Ms. Barnes' case would almost certainly be a 
foregone conclusion. We know today the kind of behavior she faced is 
unacceptable, but in Ms. Barnes' case the trial judge dismissed her 
suit because he thought such harassment was not prohibited by title 
VII. That behavior was not unacceptable until the DC Circuit said it 
was unacceptable.
  Would Mr. Estrada be the type of judge to give the meaning we 
intended to our legislation? Would he protect the rights of women and 
minorities? Would he take the time to consider how his rulings will 
affect them? We do not know, because the White House does not want us 
to know.
  In a second case in 1981, Bundy v. Jackson, the DC Circuit considered 
the plight of another woman who had suffered severe harassment at work. 
Sandra Bundy proved at trial that while she was employed by the 
District of Columbia, she was repeatedly propositioned by some of her 
supervisors and they made crude and offensive remarks to her. She 
complained to another supervisor, but he replied it was natural for the 
other men in the office to harass. He then began the same type of abuse 
and propositioned her several times. A coworker obtained her home phone 
number, which she had unlisted, and started calling to proposition her. 
The facts in this case were so extreme and Ms. Bundy's situation was so 
oppressive that the district judge in the case actually made a formal 
finding that making of improper sexual advances to female employees was 
standard operating procedure, a fact of life, a normal condition of 
employment in her job. Miss Bundy began to complain more forcefully and 
her performance ratings began to suffer. She was denied a promotion and 
continued to endure anguish on the job.

[[Page 4309]]

  When she took her case to court, the company admitted the harassment 
and argued it was legal. Can you believe that? The company admitted the 
harassment and argued it was legal. The company contended because Miss 
Bundy had not been fired or demoted, she could not claim a violation of 
title VII. The DC Circuit rejected this argument, as it obviously 
should have. The court held that the terms and conditions of employment 
include the psychological work environment. The court agreed that an 
employer can oppress an employee with such offensive and damaging 
remarks that the oppression rises to the level of discrimination, even 
if the employer does not demote or fire the employee.
  As in Barnes, the court in Bundy showed thoughtful and careful 
consideration of what Congress intended to do for the American 
workplace when it passed title VII.
  The court also considered the precarious situation in which Miss 
Bundy found herself and in which too many women often find themselves 
today. The court held unless Miss Bundy's rights were protected, many 
other workplaces could oppress and harass women in similar ways without 
any fear of legal repercussions. The DC Circuit held that title VII 
protects all Americans from harassment at work, whether or not 
harassment includes a formal change in job description.
  We cannot dismiss these examples merely as evidence that America has 
changed since the 1970s and early 1980s. It was the courts such as the 
DC Circuit and opinions such as Barnes and Bundy that made America 
change. The conclusion of these cases was not foregone. In both cases, 
the district judge had dismissed the claim, saying that what the women 
had alleged was not a violation of title VII. It took the judges on the 
DC Circuit, with genuine respect for the rule of law, to give effect to 
what Congress intended when it passed title VII. The DC Circuit did 
more than uphold the law. It gave practical effect to the right of 
women to be free from sexual harassment in the workplace.
  We can now look back at the employers' arguments and in those cases 
say that they are preposterous. The sad truth, however, is that those 
arguments did not become preposterous until the DC Circuit said they 
were.
  A third case to demonstrate the importance of this court is in 
Farmworker Justice Fund v. Brock. In 1987, the DC Circuit reviewed 
evidence developed over the course of many years that farm workers were 
being deprived of basic sanitation. The Department of Labor mandated 
the availability of drinking water, hand-washing facilities, and 
bathroom facilities in many other workplaces, but the Department said 
protections were not necessary for farm workers. The result was that 
many farm workers worked long hours in the heat and Sun without 
adequate drinking water. They worked under unacceptable hygiene 
conditions, without bathroom facilities, and with no place to wash 
their hands. Infectious diseases often spread quickly among farm 
workers.
  Congress addressed this problem years before. The Occupational Safety 
and Health Act mandated that the Department issue rules on workplace 
conditions for farm workers but the Department disagreed. It thought 
that improving the working conditions of these laborers was a low 
priority, and for years the Department refused to say when it would 
even consider a rule to protect these workers. The Department also 
argued that although there was clear evidence of unacceptable risk to 
the health of farm workers, it would not promulgate a rule to end these 
conditions because the States were better able to do so. The DC Circuit 
correctly rejected that argument and brought safe and sanitary working 
conditions for farm workers across the country. The court held that the 
intent of Congress in passing OSHA was to limit the Department's 
discretion. The court ordered the Department to pass these regulations 
within a specific timeframe. The court said that workplace safety was 
precisely a matter for the U.S. Department of Labor to address to 
ensure safe conditions across the country. In deciding this case, the 
DC Circuit gave farm workers the protections they needed and ensured 
that a generation of workers would grow up healthier and safer.
  A fourth excellent example of the importance of the DC Circuit is 
Laffey v. Northwest Airlines. In that case, decided in 1976, the DC 
Circuit considered the disparate pay that Northwest Airlines offered 
its male and female employees. Even before that case, it was clear that 
under the Equal Pay Act companies could not pay men and women different 
salaries for doing the same job. The airline thought it could avoid 
this requirement for its in-flight cabin attendants by creating two 
separate job categories for men and women. The two categories had 
essentially the same duties but different names and very different pay 
and promotion opportunities.
  Both men and women would seat passengers and ensure their safety 
during the flight and both would deal with any medical problems that 
arose during the flight. They would both serve food and clean up the 
cabin. But the airline would only hire women to be stewardesses, a 
classification that meant being confined to domestic flights, while 
male persons were assigned to international flights. Even on domestic 
flights, stewardesses had to work in the more crowded sections of the 
plane while men worked in first class. In fact, if there was any real 
difference between the two jobs, it was that the women had the more 
difficult assignment. Yet the men received up to 55 percent more for 
doing essentially the same job.
  The DC Circuit refused to allow the airline to design the jobs in a 
way that relegated women to low-paying positions with little chance of 
promotion. The court understood that when we passed the Equal Pay Act, 
Congress was not concerned with arbitrary technicalities. We were 
concerned with protecting the lives and livelihood of real people.
  The DC Circuit gave effect to this intent. It held that where two 
individuals have jobs that are essentially identical because they have 
the same duties and responsibilities, an employer cannot discriminate 
against one of them by paying them less.
  A fifth example of this indispensable role of the court is the 
Calvert Cliffs Coordinating Committee in which the DC Circuit in 1971 
considered the National Environmental Protection Act which requires 
Federal agencies to balance their activities with their impact on the 
environment. In passing the act, Congress asks large agencies for the 
first time to consider ways to protect the environment.
  In a challenge to this requirement, the Atomic Energy Commission was 
sued to stop activities that were adversely affecting the environment. 
The Commission said that it had taken environmental concerns into 
account and thought that these concerns were outweighed by the need for 
nuclear testing. The DC Circuit held that under the act, the 
Commission, as all other Federal agencies, must take environmental 
concerns seriously, must justify the burden that its activities would 
place on the environment.
  Our duty, the court said, is to see that important legislative 
purposes prevailing in the Halls of Congress are not lost or 
misdirected in the vast hallways of the Federal bureaucracy. There is 
no better description of the unique demands on the DC Circuit. It has 
sole jurisdiction over many basic issues affecting the people of our 
country. The Senate needs to know that the judges of that court 
understand the enormous challenge of ensuring that the important 
policies we seek to achieve are actually implemented under the laws we 
pass.
  In each of these examples, the DC Circuit has dealt with situations 
where real people face real problems in obtaining the justice they 
deserve. The court responded, as the Constitution says that it should, 
free from the pressures of politics. The DC Circuit respected the rule 
of law and applied it fairly.
  Would Mr. Estrada continue this tradition? Or would he look for 
opportunities to limit or even roll back basic rights? We do not know 
because the

[[Page 4310]]

White House insists on keeping the Senate and the country in the dark 
about this nomination. The fundamental rights of the American people 
are too important to be entrusted to a person about whom we know so 
little. Until we learn what kind of jurist Mr. Estrada can be, the 
Senate should not confirm him.


                         Medicare and Medicaid

  Mr. President, a front page article in yesterday's New York Times 
should be essential reading for every Member of the Senate and for 
every American. It describes the Bush administration's stealth attack 
on Medicare and Medicaid--an attack driven by an extreme right-wing 
agenda and by powerful special interests.
  The administration is proposing unacceptable changes in the 
obligations of government to its citizens. Under the Bush plan, the 
Nation's long-standing commitment to guarantee affordable health care 
to senior citizens, the poor, and the disabled would be broken. 
Medicare is a promise to the Nation's senior citizens, but for the 
administration, it is just another profit center for HMOs and other 
private insurance plans. Medicaid is a health care safety net for poor 
children and their parents, the disabled, and low income elderly, but 
the administration would shred that safety net to pay for tax cuts for 
the rich and to push its right-wing agenda.
  The promise of Medicare could not be clearer. It says, play by the 
rules, contribute to the system during your working years, and you will 
be guaranteed affordable health care during your retirement years. For 
almost half a century, Medicare has delivered on that promise. All of 
us want to improve Medicare, but the administration's version of 
improving Medicare is to force senior citizens to give up their doctors 
and join HMOs. That is unacceptable to senior citizens and it should be 
unacceptable to the Congress. There is nothing wrong with Medicare that 
the administration's policy can fix.
  The administration has a variety of rationalizations for its assault 
on Medicare--and each of these rationalizations is wrong. Republicans 
have never liked Medicare. They opposed it from the beginning and have 
never stopped trying to undermine it. The Newt Gingrich Congress tried 
to destroy it a decade ago, but the American people rejected that 
strategy, and President Clinton vetoed it. Now that Republicans control 
both Houses of Congress and the Presidency, they are at it again. Their 
plan would say that no senior can get the Medicare prescription drug 
coverage they need without joining an HMO.
  It is no accident that the administration's scheme hinges on forcing 
senior citizens into HMOs or other private insurance plans. Whether the 
issue is Medicare or the Patients' Bill of Rights, the administration 
stands with powerful special interests that seek higher profits and 
against patients who need medical care. If all senior citizens are 
forced to join an HMO, the revenues of that industry would increase 
more than $2.5 trillion over the next decade. Those are high stakes. 
There will be a big reward for HMOs and the insurance industry if the 
administration succeeds. But there is an even greater loss for senior 
citizens who have worked all their lives to earn their Medicare, and 
that loss should be unacceptable to all of us. Senior citizens should 
not be forced to give up the doctors they trust to get the prescription 
drugs they need.
  The Bush administration cloaks this plan in the language of 
reasonableness. They say that they just want to reduce Medicare's cost, 
so that it will be affordable when the baby boom generation retires. 
But HMOs are a false prescription for saving money under Medicare.
  Administrative costs under Medicare are just 2 percent. Ninety-eight 
cents of every Medicare dollar is spent on medical care for senior 
citizens. By contrast, profit and administrative costs for Medicare 
HMOs average eighteen percent, leaving far less for the medical care 
the plan is supposed to provide.
  This chart is a pretty graphic reflection of this point. ``Private 
insurance, a recipe for reduced benefits or higher premiums.''
  These are the administrative costs and profits: under Medicare, 2 
percent; under private insurance, 18 percent.
  I ask the administration, how is spending more money on 
administration and profit supposed to reduce Medicare costs?
  In fact, Medicare has a better record of holding down costs than HMOs 
and private insurance. Since 1970, the cost per person of private 
insurance has increased 40 percent more than Medicare. Last year, the 
per person cost of Medicare went up 5.2 percent, but private insurance 
premiums went up more than twice as fast 12.7 percent. Across the 
country, families are seeing their health premiums soar and their 
health coverage cut back. If the administration really thinks this is 
the right prescription for Medicare, they should talk to working 
families in any community in America.
  This chart indicates that private insurance will not reduce Medicare 
costs or improve its financial stability. It illustrates the increases 
in Medicare costs versus private insurance premiums: 5.2 percent under 
Medicare; 12.7 percent under private insurance.
  The administration claims that drastic changes are needed because 
Medicare will become unaffordable as the ratio of active workers 
supporting the program to the number of retirees declines. But analyses 
from the Urban Institute, using the projections of the Medicare 
Trustees, show that Medicare will actually be less burdensome for the 
next generation of workers to support than it is for the current 
generation. Economic growth and productivity gains will raise incomes 
of workers by enough to more than offset both the change in the ratio 
of workers and the yearly increase in medical costs. In fact, the real 
product per worker--after Medicare is paid for--will increase from 
$66,000 to $101,000. The issue is priorities. For this administration, 
the priority is making the powerful and wealthy still more powerful and 
wealthy--not assuring affordable health care for senior citizens.
  This administration also claims that the changes it is proposing are 
intended to help senior citizens by giving them more choices. The real 
choice that senior citizens want is the choice of the doctor and 
hospital that will give them the care they need--not the choice of an 
HMO that denies such care.
  This chart, ``Senior citizens choose Medicare, not private insurance, 
shows the proportion of senior citizens choosing Medicare versus 
Medicare HMOs'': In 1999, 83 percent chose Medicare; 17 percent, HMOs; 
and in 2003, 89 percent, Medicare, while 11 percent, HMOs.
  Seniors have a choice today and they choose Medicare. Even so, this 
administration's proposal will say to seniors: if you want to receive 
the prescription drug program, you will have to get it under an HMO.
  Senior citizens who want it already have a choice of HMOs and private 
insurance plans that offer alternatives to Medicare. But by and large, 
senior citizens have rejected that choice. In 1999, 17 percent of 
senior citizens chose an HMO. By 2003, only eleven percent chose one.
  Congress enacted Medicare in 1965, because private insurance could 
not and would not meet the needs of senior citizens. In 2003, private 
insurance still won't meet their needs. Vast areas of the country have 
no private insurance alternative to Medicare. Two hundred thousand 
seniors will be dropped by HMOs this year, because the HMOs are not 
making enough profit. Last year, HMOs dropped half a million seniors. 
In 2001, they dropped 900,000 seniors. Yet that is the system the 
administration wants to force on senior citizens.
  This chart shows the number of senior citizens that have effectively 
been dumped from Medicare HMO coverage. We find that in 2001, 934,000 
seniors were dropped; in 2002, 536,000 dumped; in 2003, 215,000; in the 
year 2000, 327,000; and 407,000 in 1999. HMOs have been dropping 
seniors who wanted voluntarily to be in the HMO system.
  Under the Bush plan, states will have an incentive to cut back 
coverage for those in need and spend the money

[[Page 4311]]

that should go for health care on other projects.
  The Child Health Insurance Program, CHIP, which now gives more than 
five million children the chance for a healthy start in life will be 
abolished.
  Millions of senior citizens will no longer be able to count on 
federal nursing home quality standards to protect them if they are 
unable to remain in their own homes.
  Spouses of senior citizens who need nursing home care will no longer 
be guaranteed even a minimum amount of income and savings on which to 
live.
  We know that state budgets are in trouble because of the faltering 
economy. The demands on Medicaid are greater than ever, as more 
families lose their job and their health care. Instead of the money 
that states need to maintain the Medicaid safety net, the Bush 
administration gives states a license to shred it. Every day, this 
administration makes it clearer that tax cuts to make the rich richer 
is a higher priority than health care for senior citizens, and low 
income children, and the disabled. It's time for Congress and 
administration to stand up for the priorities of the American people--
not the priorities of the wealthy and powerful.
  Medicare and Medicaid are two of the most successful social programs 
ever enacted. It makes no sense for the administration to try to impose 
its harsh right wing agenda on programs that have done so much to bring 
good health care and genuine health security to vast numbers of senior 
citizens, low-income families and the disabled. The American people 
will reject this misguided program and so should the Congress.
  The administration is not in favor of real choices for the elderly. 
They don't favor letting senior citizens choose their own doctor. They 
don't favor a fair and unbiased choice between and HMO and Medicare. 
Senior citizens already have that. What the Bush administration favors 
is a Hobson's choice, where senior citizens are forced to choose 
between the doctor they trust and the prescription drugs they need. And 
that is an unacceptable choice. The administration's plan for Medicare 
will victimize 40 million senior citizens and the disabled on Medicare. 
I want to just draw the attention of the Members to this chart I have 
in the Chamber. These are the Medicare HMOs. There are huge gaps for 
senior citizens, areas of the country with no Medicare+Choice plans. 
There are vast areas of the country, outlined in red, where they do not 
even have this program. And still, the administration wants to insist 
that seniors subscribe to it.
  Under the Bush plan, long-term Federal spending for health care for 
the needy will be reduced under their new proposed block grant program 
for Medicaid. That idea was proposed under then-Congressman Gingrich 
almost a decade ago. Under the new program, long-term Federal funding 
for health care for the needy will be reduced so that more money will 
be available for tax cuts for the wealthy. Under the Bush plan, States 
will have an incentive to cut back coverage for those in need and spend 
the money that should go for health care on other projects.
  The Child Health Insurance Program, the CHIP program, which now gives 
more than 5 million children the chance for a healthy start in life, 
will effectively be abolished.
  Millions of senior citizens will no longer be able to count on the 
Federal nursing home quality standards to protect them if they are 
unable to remain in their own homes. I was here not many years ago when 
we took days to debate the kinds of protections that we were going to 
give to our seniors who were in nursing homes. The examples out there 
of the kinds of abuses that were taking place were shocking to all of 
us. So we passed rules and regulations. But under this particular 
proposal, the administration is recommending millions of seniors will 
no longer be able to count on Federal nursing home quality standards to 
protect them if they are unable to remain in their homes. Spouses of 
senior citizens who need nursing home care will no longer be guaranteed 
even a minimum amount of income or savings on which to live.
  We know that State budgets are in trouble because of the faltering 
economy. The demands on Medicaid are greater than ever as more families 
lose their jobs and their health care. Instead of the money that States 
need to maintain the Medicaid safety net, the Bush administration gives 
States a license to shred it.
  Every day, this administration makes it clearer that tax cuts to make 
the rich richer is a higher priority than health care for our senior 
citizens and low-income children and the disabled. That is the bottom 
line: Every day, this administration makes it clearer that tax cuts to 
make the rich richer is a higher priority than health care for our 
senior citizens and low-income children and the disabled.
  It is time for Congress and the administration to stand up for the 
priorities of the American people, not the priorities of the wealthy 
and the powerful.
  Medicare and Medicaid are two of the most successful social programs 
ever enacted. It makes no sense for the administration to try to impose 
its harsh right-wing agenda on programs that have done so much to bring 
good health care and genuine health security to vast numbers of senior 
citizens, low-income families, and the disabled.
  The American people will reject this misguided program, and so should 
the Congress.
  Mr. REID. Will the Senator yield for a question?
  Mr. KENNEDY. I am glad to.
  Mr. REID. I have listened on the floor and off the floor to the 
Senator's statement, and especially about Medicare and Medicaid.
  I ask the Senator, we have heard now for 2 years from this 
administration that the answer to the problems of the country are tax 
cuts, tax cuts, tax cuts. I ask the Senator--and I am confident of the 
answer--if he is aware that the deficit this year will be the largest 
in the history of the world, about $500 billion if you do not mask it 
with the Social Security surpluses?
  Now, I am asking the Senator from Massachusetts, will the proposals 
by this administration in their tax cut proposal do anything to help 
the people in Nevada and Massachusetts and the rest of the country who 
are desperate for help in regard to Medicare and Medicaid?
  Mr. KENNEDY. Absolutely not. And your observation goes right to the 
heart of the central issue that we have in the Senate; that this is a 
question of choices. It is a question of priorities. It is a question 
of choices, whether we are going to allow this emasculation of Medicare 
and Medicaid--especially when Medicaid looks after so many needy 
children. About one-half of the coverage is actually for poor children, 
although more than two-thirds of the expenditures are for the elderly 
and the disabled. But it looks after an enormous number of the poorest 
of children, and also after the frail elderly.
  And the Medicare system, we guaranteed in 1965--I was here at that 
time. I was here in 1964 when it was defeated. It was defeated in 1964, 
and then 8 months later it was proposed here on the floor of the Senate 
and it passed overwhelmingly. And 17 Senators who were against it in 
1964 supported it in 1965. The only intervening act during that period 
of time was an election--an election. Finally, our colleagues had gone 
back home and listened to the needs of our elderly people, the men and 
women who had fought in the World Wars, who brought this country out of 
the Depression, who sacrificed for their children, who worked hard, 
played by the rules, and wanted some basic security during their senior 
years from the dangers of health care costs.
  We made a commitment. The Senator remembers. I have heard him speak 
eloquently on it. And in that 1965 Medicare Act we guaranteed them 
hospitalization and we guaranteed them physician services, but we did 
not guarantee prescription drugs because only 3 percent of even the 
private insurance carriers were carrying it at that time.
  I ask the Senator whether he would agree with me that now 
prescription drugs are as indispensable, are as essential to the 
seniors in Nevada as hospitalization and physician visits? They are in 
Massachusetts.

[[Page 4312]]


  Mr. REID. Mr. President, I ask unanimous consent that I be allowed to 
answer the question of the Senator from Massachusetts without the 
Senator from Massachusetts losing the floor.
  The PRESIDING OFFICER (Mr. Chafee). Is there objection?
  Without objection, it is so ordered.
  Mr. REID. I say to my friend from Massachusetts, while the Senator 
was serving in the Senate in those years, in the early 1960s and mid 
1960s, I was serving on the hospital board of Southern Nevada Memorial 
Hospital, the largest hospital district in Nevada at that time. I was 
there when Medicaid came into being.
  Now, does the Senator realize--and I think he has heard me say this 
before; and I ask this in the form of a question, although I don't need 
to; I have the floor to answer the Senator's question--prior to 
Medicaid coming into being, that for that hospital of ours, that public 
hospital, 40 percent of the senior citizens who came into that hospital 
had no health insurance?
  And when we had people come into that hospital with, as I referred to 
them then, an old person--I don't quite look at it the same now--they 
would have to sign to be responsible for their mother, their father, 
their brother, their sister, whatever the case might be, that they 
would pay that hospital bill. And if they did not pay, do you know what 
we would do? We had a collection department. We would go out and sue 
them for the money.
  Now, I say to my friend from Massachusetts, the distinguished 
Senator, for virtually every senior who comes to the hospital--it does 
not matter where they are in America--they have health insurance with 
Medicare.
  Mr. KENNEDY. That is right.
  Mr. REID. Medicare is an imperfect program, but it is a good program.
  And I answer the question about pharmaceuticals, prescription drugs. 
When Medicare came into being, seniors did not need prescription drugs 
because we did not have the lifesaving drugs we have now. We did not 
have the drugs that made people feel better. We did not have the drugs 
that prevent disease. Now we have those.
  I say to my friend from Massachusetts, rather than spending the time 
here, as we are dealing with a man who has a job, Miguel Estrada, 
making hundreds of thousands of dollars a year--rather than dealing 
with him, I would rather be dealing with people in Nevada who have no 
prescription drugs.
  In America, the greatest power in the world, we have a medical 
program for senior citizens that does not have a prescription drug 
benefit. That is embarrassing to us as a country. And what are we doing 
here? We are debating whether a man should have a job.
  We understand the rules. If they want to get off this, then let them 
file cloture. If they want to get out of this, let them give us the 
memos from the Solicitor's Office. Let him come and answer questions or 
let them pull the nomination.
  The reason they are not doing that is, they don't want to debate this 
stuff. Look at the chart the Senator has. Tax cuts of $1.8 trillion, 
what does that do to Medicare and Medicaid? I hope I have answered the 
Senator's question. A prescription drug benefit is a priority, and it 
has to be a program more than just in name only.
  Mr. KENNEDY. I thank the Senator for his usual eloquence and passion.
  Just to sum up two items, as we discussed earlier, we passed a 
prescription drug program. Fifty-two Members of the Senate did so last 
year. I don't know why we couldn't debate it. I am sure our leader 
would support that effort.
  Finally, let me point out something the Senator has mentioned. This 
chart summarizes it all. Under the administration's program for the 
States, over a 10-year period, Medicaid will be cut $2.4 billion, while 
there will be $1.8 trillion in tax cuts.
  This is a question of priorities. I went through the various charts 
that reflected how this $2.4 billion Medicaid cut will be achieved 
versus the $1.8 trillion in tax cuts. This is a question of choice. 
This is a question of priorities when it comes to the Medicare and 
Medicaid Programs. The quicker we get the chance to debate these and 
get some votes on them, the better off our seniors will be.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, the Senator from Nevada has asked that we 
vote on Miguel Estrada. I ask unanimous consent that we proceed to a 
vote on Miguel Estrada now.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Mr. President, I ask that the Senator's request be modified 
in the following fashion: I ask unanimous consent that after the 
Justice Department finds the requested documents relevant to Mr. 
Estrada's government service, which were first requested in May of 
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. CRAIG. Mr. President, I object and restate my unanimous consent 
request.
  Mr. REID. To which I object. I object.
  Mr. CRAIG. Mr. President, I just heard the Democrat leader come to 
the floor to demand a vote on Miguel Estrada so we could move on to 
other important issues. He had the opportunity to have that vote, and 
he objected. He wants to raise the issue of moving judges to a 
supermajority vote, denying this man, Miguel Estrada, a vote on the 
floor of the Senate under the constitutional clause of advice and 
consent to the President.
  Let me talk about that for a few moments. Before I talk about that, 
as the chairman of the Aging Committee who has spent countless hours, 
as has the Senator from Massachusetts, on the issue of Medicare, he and 
I would both agree that when Medicare was passed in 1965, some 33 years 
ago, medicine was practiced much differently than it is now. Yet he is 
saying we want Medicare just like it was, and we want to add a new 
program to it.
  As the Senator from Massachusetts well knows, when he voted for 
Medicare in 1965, it was expected to be about a 10, 20-billion-dollar-
plus program. Today it is verging on a quarter of a trillion dollars, 
at least by the end of the decade, and it will potentially, by 2030, 
consume a quarter of the U.S. Government's budget.
  I know the Senator from Massachusetts knows as well as I that the 
world has changed and health care delivery has changed and that we are 
not going to practice 33-year-old medicine on 2003 seniors. They don't 
expect it. They don't want it. They demand change.
  In that change comes prescription drugs as a reasonable and right 
approach. But as we offer that to America's seniors, let us offer them 
a modernized, contemporary health care delivery system. Let us not lurk 
in the concept of a 33-year-old system that is now close to pushing us 
to deny services simply because it has become so costly and so 
bureaucratic. To deny them anything more than a modern health care 
delivery system with prescription drugs in it is to deny them the 
obvious; that is, quality health care.
  Those are the facts. Those are the statistics. We can certainly 
debate those today. But we ought to be debating Miguel Estrada. The 
Democrats want to debate him. They deny us the vote that he is entitled 
to have. So for a few moments today, I would like to visit about Miguel 
Estrada.
  Before I do that, I found this most intriguing. This is a fascinating 
issue. We suggest that it is partisan, and it appears to be almost at 
times. Yet I noticed in the Record of today a few quotes from a 
Democrat Senator. He said:

       Mr. President, the court provides the foundation upon which 
     the institutions of government and our free society are 
     built. Their strength and legitimacy are derived from a long 
     tradition of Federal judges whose knowledge, integrity, and 
     impartiality are beyond reproach. The Senate is obligated, by 
     the Constitution and the public interest, to protect the 
     legitimacy and to ensure that the public's confidence in the 
     court system is justified and continues for many years to 
     come. As guardians of this trust, we must carefully 
     scrutinize the credentials and qualifications of every man 
     and woman nominated by the President to serve on the Federal 
     bench. The men and women we approve

[[Page 4313]]

     for these lifetime appointments make important decisions each 
     and every day which impact the American people. Once on the 
     bench, they may be called upon to consider the extent of our 
     rights to personal privacy, our rights to free speech, or 
     even a criminal defendant's right to counsel. The importance 
     of these positions and their influence must not be dismissed. 
     We all have benefited from listening to the debate about 
     Miguel Estrada's qualifications to serve on the district 
     court. After reviewing Mr. Estrada's personal and 
     professional credentials, including personally interviewing 
     the nominee, I believe he is qualified to serve on the 
     district court, and I will vote for him.

  That is Senator Nelson of Nebraska. That Senator wants a vote. I want 
a vote. We owe Miguel Estrada a vote--not a supermajority vote, not an 
effort to change the rules of the Senate, not an effort to deny the 
constitutional responsibility of this body that the other side is now 
doing, tragically enough, for the politics of the business instead of 
the substance of the issue. That is a tragedy that ought not be laid 
upon the floor of this Senate nor ought to come before what has been a 
responsible process and very important procedure.
  I have been out in my State for a week, as have many of my 
colleagues. I say oftentimes to Idahoans: We watch the President. We 
see him every night on television. We, Members of the Senate and the 
other body, make headlines and are often talked about in the press. But 
very seldom does the third and equally important branch of Government, 
the judicial branch, get the attention. There are no natural lobbyists 
in general. There is no influence out there urging and pushing that the 
courts be treated responsibly, that these vacant positions be filled so 
that courts can do their duty and responsibility under the Constitution 
and provide for fair judgment of those who might come before them.
  That responsibility lies in the President of the United States and in 
the Senate. We are the ones responsible for assuring that the courts 
are filled when those positions are vacant by appropriate people who 
have great integrity, who have moral and ethical standards, and who 
believe in the Constitution of our country.
  Miguel Estrada fails on none of those qualifications. Here today, for 
the first time, Mr. Estrada is a target for a much larger hit; that is 
to suggest that a minority of the Senate could ultimately control the 
Supreme Court of the United States. I believe that is the battleground, 
while a lot of subterfuge may go on, smoke and mirrors, or diversion of 
attention; and I think most people who are now watching this debate are 
beginning to understand there is something very strange about it.
  There used to be an old advertisement on television asking, ``where's 
the beef.'' Well, where's the issue here? Where is the substance of the 
issue, after the committee of jurisdiction, the Judiciary Committee, on 
which I serve, and on which the Senator from Massachusetts serves, very 
thoroughly went through the background of Miguel Estrada? He came out 
with high qualifications, having been reviewed by the ABA. Wherein lies 
the problem--the simple problem of allowing this name and nomination to 
come to the floor for a vote--a vote. I tendered that vote a few 
moments ago by unanimous consent, to see it denied on the other side of 
the aisle because they say you must have a super vote, a 60-plus vote. 
No, we suggest the Constitution doesn't say that. We suggest that 
threshold has never been required. So I think what is important here is 
the reality of the debate and how we have handled it.
  I have the great privilege of serving from the West, from the State 
of Idaho. There are a lot of traditions out there. One of the great 
traditions is sitting around campfires, visiting, telling stories, and 
talking about the past. Probably one of the most popular stories to 
tell in the dark of night in only the glow of the campfire is a good 
ghost story. It scares the kids, and even the adults get a little 
nervous at times because their back side is dark and only their faces 
are illuminated. The imagination of the mind can go beyond what is 
really intended. So great stories get told at the campfire.
  I have listened to this debate only to think that great stories are 
attempting to be told here--or should I suggest that ghost stories are 
being proposed here--about Miguel Estrada. Why would we want to be 
suggesting there is something about this man that is not known, that 
there is not full disclosure on all of the issues? I suggest there is 
full disclosure. The other side is deliberately obstructing a 
nomination that has been before the Senate for 21 months. In that 21 
months, there were no ghost stories; nothing new was found, except the 
reality of the man himself--the reality of a really fascinating and 
valuable record for the American public to know.
  Their argument is that because they cannot find anything wrong with 
him--no ghost stories--then there have to be bad things hidden. 
Somebody could not be quite as good as Miguel Estrada. Why not? There 
are a lot of people out there who achieve and are phenomenally 
successful, morally and ethically sound, and well based, and who 
believe in our Constitution and are willing to interpret it in relation 
to the law and not to the politics of something that might drive them 
personally.
  I don't believe in activist judges on the courts. I don't believe 
they get to go beyond the law or attempt to take us where those of us 
who are lawmakers intend us not to go or where the Constitution itself 
would suggest we do not go. So search as they may, they cannot find. 
And when they cannot find, they will obstruct. They have obstructed. 
Week 1. We are now into week 2. My guess is we will be into week 3 or 
4. Hopefully, the American people are listening and understanding 
something is wrong on the floor of the Senate; something is wrong in 
that there is an effort to change the Constitution of our country 
simply by process and procedure--or shall I say the denying of that. I 
think those are the issues at hand here. That is what is important.
  Mr. President, there was nothing more in telling a ghost story than 
in the imagination that came to the mind. There is nothing wrong with 
Miguel Estrada, except in the imagination in the minds of the other 
side, who would like to find a story to tell. But they cannot find one, 
dig as they might. There have been 21 months of effort, 21 months of 
denial. Why? Are we playing out Presidential politics on the floor of 
the Senate this year? It is possible. I hope we don't have to go there, 
and we should not. These are issues that are much too important.
  This President has done what he should do. It is his responsibility 
to find men and women of high quality and high integrity, who are well 
educated and well trained in the judicial process and system--search 
them out and recommend them, nominate them to fill these judgeships. 
That is what he has done. Now he is being denied that.
  A difference of philosophy? Yes, sure. It is his right to choose 
those he feels can best serve. He has found and has offered to us men 
and women of extremely high quality. Yet, at these higher court levels, 
and here in the district court, they are being denied.
  Miguel Estrada has been under the microscope and nobody has found the 
problem. On the contrary, we have found much to admire. At least let me 
speak for myself. I have found much to admire in Miguel Estrada. By 
now, I don't need to repeat his history. I don't need to repeat the 
story of a young man coming to this country at 17 years of age, hardly 
able to speak English, who changed himself and the world around him, so 
that he is now recognized by many as a phenomenal talent and a scholar. 
Let me just say I think he and his family should be very proud of his 
achievements. They should also be proud of his receiving the 
nomination. Of all the people, they surely do not deserve to have the 
judicial nomination process turned into some kind of gamut, in which 
you run a person through and you throw mud at them, or you allege, or 
you imply, or you search for the ultimate ghost story that doesn't 
exist, to damage their integrity, to damage the image and the value and 
quality of the person.
  Senators are within their rights to oppose any judicial nominee on 
any basis they choose. In the last 8 years, when President Clinton was 
President, I voted for some of his judges; I voted against some of them 
because they

[[Page 4314]]

didn't fit my criteria of what I thought would be a responsible judge 
for the court. But I never stood on the floor and denied a vote, 
obstructed a vote. I always thought it was important that they be 
brought to the floor for a vote. Then we could debate them and they 
would either be confirmed or denied on a simple vote by a majority of 
those present and voting. That is what our Constitution speaks to. That 
is what our Founding Fathers intended. They didn't believe we should 
allow a minority of the people serving to deny the majority the right 
to evaluate and confirm the nominations of a President to the judicial 
branch of our Government.
  If they want to administer a particular litmus test, as one of our 
colleagues on the Judiciary Committee has been advocating, that is 
their choice. If they simply do not like the way a nominee answered the 
questions that were put to him, then they can vote against the nominee 
for all of the reasons and the responsibilities of a Senator. But to 
say they cannot vote because there is no information about the nominee, 
or because he has not answered their questions, or because critical 
information is being withheld, well, that is clearly a figment of their 
imagination. That is a ghost lurking somewhere in the mind of a 
Senator, because for 21 months, try as they might, that ghost, or that 
allegation, has not been found or fulfilled.
  In the real world, there is an enormous record on this nominee, 
bigger than the records of most of the judiciary nominees who have been 
confirmed by the Senate. In the real world, Mr. Estrada has answered 
question after question, just not always the way his opponents wished 
he would answer them; not just exactly the way his opponents would wish 
he had answered them, but he did answer them. In the real world, there 
is no smoking gun in the privileged documents that the opposition is 
unreasonably and inappropriately requesting.
  There is something very familiar about the tactic being used against 
Miguel Estrada, and I finally realized what it was. This is the same 
obstructionism we have seen again and again from our friends on the 
other side, the same process that denied us the right to a budget, the 
right to appropriations for 12 long months. They could not even produce 
a budget. So we brought it to the floor and in 4 weeks we finalized 
that process.
  For the last year and a half, we have lived with that issue of 
obstructionism, and today we are with it again. Now we are in our 
second week of denying an up-or-down vote. What is wrong with having an 
up-or-down vote? That is our responsibility. That is what we are 
charged to do under the Constitution.
  I believe that is the issue. Instead of fighting on policy grounds, 
they are simply wanting to deny this issue to death. In the last 
Congress, as I mentioned, we had no budget, we saw an Energy Committee 
shut down because they would not allow that Energy Committee to write 
an energy bill, and they would not allow authorizing committees to 
function in a bipartisan way when they controlled the majority. Denial 
and obstruction is not a way to run a system. It is certainly not the 
way to operate the Senate.
  Now we have a personality. Now it is not an abstract concept. Now it 
is not a piece of a budget or a dollar and a cent, as important as 
those issues are. We are talking about an individual who has served our 
country well, who has achieved at the highest levels, who is a man of 
tremendous integrity, and because he does not fit their philosophic 
test, the litmus test of their philosophy as to those they want on the 
court, but he does achieve all of the recognition of all of those who 
judge those who go to the court on the standards by which we have 
always assessed nominees to the judiciary system, that is not good 
enough anymore. The reason it is not good enough is because it is 
President George Bush who has made that nomination.
  In the current Congress, that is an issue with which we should not 
have to deal. We should be allowed to vote, and I hope that ultimately 
we can, and certainly we will work very hard to allow that to happen. 
That is what we ought to be allowed to offer: to come to the floor, 
have an up-or-down vote on Miguel Estrada, debating for 1 week, 
debating for 2 weeks, debating for 3 weeks, if we must, but ultimately 
a vote by Senators doing what they are charged to do.
  That is the most important step and, of course, that is the issue. Or 
is the issue changing the name of the game, changing or raising the 
bar, in this instance, to a higher level of vote, not for Miguel 
Estrada but for future votes, possibly a Supreme Court Justice? I do 
not know what the strategy is, but there is a strategy.
  It is undeniable because we have seen it day after day, time after 
time. We watched it when they chaired the Judiciary Committee last 
year. I now serve on the Judiciary Committee. I went there this year 
with the purpose of trying to move judges through, trying to get done 
what is our responsibility to do, trying to fill the phenomenal number 
of vacancies. When there are vacancies in the court and caseloads are 
building, that means somebody is being denied justice. We should not 
allow our judiciary system to become so politicized by the process that 
it cannot do what it is charged to do. Therein lies the issue. I 
believe it is an important issue for us, and it is one I hope we will 
deal with if we have to continue to debate it.
  Let me close with this other argument because I found this one most 
interesting. They said: We are just rubberstamping George Bush's 
nominations. Have you ever used a rubberstamp? Have you ever picked up 
a stamp, tapped it to an ink pad, tapped it to a piece of paper? That 
is called rubberstamping. My guess is it takes less than a minute, less 
than a half a minute, less than a second to use a rubberstamp.
  That is a false analogy. Twenty-one months does not a rubberstamp 
make; 21 months of thorough examination, hours of examination by the 
American Bar Association. I am not an attorney, but my colleague from 
Nevada is. It used to be the highest rating possible that the American 
Bar Association would give in rating the qualifications of a nominee. I 
used to say that rating was probably too liberal. Now I say it is a 
respectable rating. Why? Because the bar on the other side has been 
raised well beyond that rating. Now we are litmus testing all kinds of 
philosophical attitudes that the other side demands a nominee have, and 
if they say, We are simply going to enforce or carry out or interpret 
the law against the Constitution, that is no longer good enough. 
Rubberstamping? A 5-second process, a 2-second process, or a 21-month 
process? I suggest there is no rubberstamping here.
  I suggest the Judiciary Committee, under the chairmanship of Pat 
Leahy, now under the chairmanship of Orrin Hatch, has done a thorough 
job of examining Miguel Estrada, who has a personal history that is 
inspiring, work achievement that is phenomenally impressive, a 
competence and a character that has won him testimonials from all of 
his coworkers and friends, Democrats and Republicans, liberal and 
conservative.
  As I mentioned, I am a new member of the Judiciary Committee. It is 
the first time in 40 years that an Idahoan has served on that 
committee, and I am not a lawyer. So I look at these nominees 
differently than my colleagues who serve on that committee who are 
lawyers. But I understand records. I understand achievement. I 
understand integrity. I understand morals, ethics, and standards that 
are as high as Miguel Estrada's.
  I am humbled in his presence that a man could achieve as much as he 
has in as short a time as he has. I am angered--no, I guess one does 
not get angry in this business. I am frustrated, extremely frustrated 
that my colleagues on the other side would decide to play the game with 
a human being of the quality of Miguel Estrada, to use him for a target 
for another purpose, to use him in their game plan for politics in this 
country, to rub themselves up against the Constitution, to have the 
Washington Post say: Time's up. Enough is enough. To have newspaper 
after newspaper across the country say: Democrats, you have gone too 
far

[[Page 4315]]

this time. Many are now saying that, and that is too bad to allow that 
much partisan politics to enter the debate.
  We all know that partisan politics will often enter debates, but it 
does not deny the process. It does not obstruct the process. It does 
not destroy the process. Ultimately, the responsibility is to vote, and 
it is not a supermajority. The Senator from Nevada knows that, and the 
Senator from Idaho knows that. I could ask unanimous consent again that 
we move to a vote on the nomination of Miguel Estrada, and the Senator 
would stand up and say: I object.
  That is how one gets to the vote on the floor of the Senate. After 
the issue has been thoroughly considered, Senators ultimately move to a 
vote. That is my responsibility as a Senator. That is one that I will 
work for in the coming days. That is one that many of my colleagues are 
working for.
  We will come to the floor, we will continue to debate the fine points 
of Miguel Estrada, but we will not raise the bar. We should not set a 
new standard. In this instance, we should not allow a minority of 
Senators to deny the process because there is now a substantial 
majority who would vote for Miguel Estrada because they, as I, have 
read his record, have listened to the debate, have thoroughly combed 
through all of the files to understand that we have a man of 
phenomenally high integrity who can serve this country well on the 
District Court of Appeals that he has been nominated by President Bush 
to serve on.
  Our responsibility is but one: to listen, to understand, to make a 
judgment, and to vote up or down on Miguel Estrada. So I ask the 
question, Is that what the other side will allow? Or are they going to 
continue to deny that? Are they going to continue to demand that a new 
standard be set? The American people need to hear that. They need to 
understand what is going on on the floor of the Senate, and many are 
now beginning to grasp that.
  As newspapers talk about it, some in the Hispanic community are now 
concerned that somehow this has become a racist issue. I do not think 
so. I hope not. It should not be. It must not be. Tragically, we are 
talking about a fine man who is ready to serve this country and who is 
being caught up in the politics of the day, and that should not happen 
on the floor of the Senate.
  Before I got into politics, I was a rancher in Idaho, and I can vouch 
for the fact that a lot of cowboy traditions are still alive and well 
in the Intermountain West. One of those great traditions is 
storytelling--gathering around a campfire and telling ghost stories. 
Some of those stories can be pretty scary. But nobody really believes 
them--certainly not adults, and not in the light of day.
  I am reminded of that storytelling tradition of the West when I look 
back on the debate surrounding Miguel Estrada to the U.S. Court of 
Appeals for the D.C. District. The reason this debate reminds me of 
those old ghost stories is that the opposition's arguments amount to 
just that: stories about imagined ghosts and monsters, told for the 
purpose of frightening people.
  I have been serving in the Senate for better than a decade, and I 
have seen a lot of filibusters about a lot of things, but this is the 
first time I have seen a filibuster over nothing--that's right: 
nothing. The other side is deliberately obstructing the nomination of 
Miguel Estrada because after 21 months they can find nothing wrong with 
this nominee.
  Their argument is that because they cannot find anything wrong with 
him, all the bad things must be hidden, and therefore they need more 
time for their fishing expedition on this nomination. Only now, that 
fishing expedition is going into documents that are privileged, and 
public policy itself would be violated by breaking that privilege. 
That's not just my opinion--as we have heard again and again, it is the 
opinion of the seven living former Solicitors General, both Democrat 
and Republican.
  With nothing to complain about, the opposition is trying to get us 
all to believe that there must be some terrible disqualifying 
information that is being withheld from the Senate. What that terrible 
information is, they leave us to imagine: maybe some writings that will 
reveal a monster who is going to ascend to the bench where he can rip 
the Constitution to shreds and roll back civil liberties. Maybe 
something even worse.
  These are nothing more than ghost stories, deliberately attempting to 
frighten the American people and this Senate. It is time to shine the 
light of day on this debate, time to realize there is no monster under 
the bed.
  And it is high time that the Democrat leadership put a stop to the 
politics of character assassination that go along with all this 
storytelling. It is outrageous to suggest that Miguel Estrada is hiding 
something, or being less than forthcoming with this Senate. The Senate 
Judiciary Committee had plenty of time over the last 21 months to find 
some real problem with this nominee--but no such problem was found. The 
American Bar Association reviewed him, found nothing wrong with him, 
and even gave him its highest rating--``well qualified.'' The Bush 
administration looked into his record before sending up the nomination. 
And let's not forget that he worked for the previous administration, 
too, which not only hired him but gave him good reviews.
  So Miguel Estrada has been under the microscope, and nobody has found 
a problem with him. On the contrary, we have found much to admire--at 
least, let me speak for myself--I have found much to admire about Mr. 
Estrada. By now, his story is pretty well known to anyone who follows 
the daily news, let alone Senators who study the nominees who come 
before them, so I won't repeat it again. Let me just say that I think 
he and his family should be very proud of his achievements. They should 
also be proud of his receiving this nomination. And of all people, they 
surely do not deserve to have the judicial nomination process turned 
into some kind of grueling gauntlet through the mud being generated by 
the opposition.
  Senators are within their rights to oppose any judicial nominee on 
any basis they choose. If they want to administer a particular litmus 
test, as one of our colleagues on the Judiciary Committee has been 
advocating, that is their choice. If they simply do not like the way a 
nominee answered the questions that were put to him, then they can vote 
against that nominee for that reason.
  But to say they cannot vote because there is no information about 
this nominee, or because he has not answered their questions, or 
because critical information is being withheld--well, apparently they 
do not live in the same world the rest of us do. Because in the real 
world, there is an enormous record on this nominee--bigger than the 
records on most of the judicial nominees who have been confirmed by the 
Senate. In the real world, Mr. Estrada has answered question after 
question--just not always the way that his opponents wished he would 
have answered. And in the real world, there is no smoking gun in the 
privileged documents that the opposition is unreasonably and 
inappropriately requesting.
  There is something very familiar about this tactic being used against 
Miguel Estrada, and I finally realized what it was: this is the same 
obstructionism that we have seen again and again from our friends on 
the other side. Instead of fighting on policy grounds, they just 
obstruct and delay the issue to death. In the last Congress, we never 
got a budget, we never got an energy bill--just more obstruction and 
delay. And in this current Congress, instead of having an honest up-or-
down vote on this nominee, they filibuster about the past history of 
judicial nominees under former administrations.
  Another of my colleagues revealed during this debate that 
obstructionism is a tactic out of a playbook for stopping President 
Bush from getting his nominees to the higher courts--maybe not every 
court, but certainly the circuit courts and maybe someday the Supreme 
Court. We have heard on this Senate floor about that playbook advising 
our Democrat colleagues to use the Senate rules to delay and obstruct 
nominees--first in committee and then on the Senate floor.

[[Page 4316]]

  This is the first step in raising the bar for all of President Bush's 
nominees. That is the goal--to raise the bar, to impose new tests never 
envisioned in the Constitution, for anyone nominated by President Bush. 
Make no mistake about this: it is partisan politics at its most 
fundamental. Instead of the Senate performing its constitutional role 
of advise and consent, the Democrat leadership intends to put itself in 
a position to dictate to the President who his nominees can be. Instead 
of allowing the normal process to work--the process through which all 
judicial nominees have gone before--they are fashioning a new set of 
tests that will become the standard.
  And while I am talking about raising the bar, let me anticipate the 
argument of the opposition. I have heard a lot from my Democrat 
colleagues about how they are offended at being expected to 
``rubberstamp'' President Bush's nominees. Last I checked, it takes 
about two seconds to ``rubberstamp'' something; you just pound the 
stamp on an inkpad and then on a piece of paper, and you are done.
  This nomination, on the other hand, has been in the works for 21 
months, involved extensive hearings by a then-Democrat-led Judiciary 
Committee, included supplemental questions posed by Committee members, 
a non-unanimous vote of that Committee, and weeks of debate on this 
floor. For any Senator to say this amounts to being pushed into 
``rubberstamping'' this nominee is hogwash.
  Furthermore, anybody who wants to complain about ``rubberstamping'' 
ought to be out here standing side by side with Republicans, demanding 
an up-or-down vote on this nominee. I say to my colleagues, if you are 
not satisfied that this nominee will be a good judge on the Court of 
Appeals, then vote against him. If you are sincere about your 
objections, and not just playing political games, then you have nothing 
to lose by demanding a fair vote.
  I do not see how anybody could read the record on this nominee and 
listen to the debate in this Senate and not conclude that Miguel 
Estrada will serve the United States with distinction on the Federal 
bench. His personal history is inspiring; his work achievements are 
impressive; his competence and character have won him testimonials from 
friends and coworkers of every political stripe.
  I am a new member of the Judiciary Committee--the first Idahoan to 
serve on that committee in more than forty years--and I am proud to say 
that my first recorded vote on that committee was to confirm Mr. 
Estrada. I am now asking my colleagues to allow the full Senate to have 
the opportunity to vote on this nominee. Let us stop the storytelling, 
get back to the real world, and have a fair up-or-down vote on the 
confirmation of Miguel Estrada.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Dole). The Democratic whip.
  Mr. REID. Mr. President, the Democratic leader was on the floor this 
morning and spoke at some length about the problems facing this 
country. The problems facing this country are significant. It is 
untoward, as the Democratic leader stated, that we are not dealing with 
issues the people we represent, who are in our home States, want to 
talk about. They want us to do something about the health care delivery 
system in this country. That includes prescription drugs. It includes 
the Patients' Bill of Rights. It includes Medicare. It includes 
Medicaid.
  The people at home want us to at least remember that we have 
environmental problems facing this country that we need to deal with. 
The people at home understand education is a significant issue. The 
people at home understand their State--there are only four States that 
do not have a budget deficit. All other States are spending in the red. 
They want some help. We, as a Senate, deserve to deal with those and 
other issues that the people of our States believe we should be talking 
about.
  There have been a number of requests made: Why do we not vote on this 
in 6 hours, 4 hours, 2 hours, 10 hours, 2 days, Friday by 9:30? And we 
have said very simply--this is the ninth day of this debate covering a 
period of approximately 3 weeks--Miguel Estrada needs to be candid and 
forthright. And how is that going to be accomplished? It is going to be 
accomplished by his giving us information, answering questions, and 
giving us the memos he wrote when he was at the Solicitor General's 
Office.
  We should be dealing with the issues I have outlined, and others, 
issues that people really care about at home. But, no, we are not going 
to take up S. 414 that Senator Daschle asked unanimous consent that we 
move to, the economic stimulus package the Democrats prefer. What it 
does is give immediate tax relief to the middle class and has no long-
term impact on the deficit of this country.
  If we brought that up and the majority did not like our bill, we 
could have a debate on what is the best thing to do to deal with the 
financial woes of this country. That is what we should be dealing with.
  As I have said earlier today, and I repeat, the reason we are not 
dealing with those issues of immense importance to this country is the 
majority does not have a plan or a program.
  The President's tax cut proposal, his own Republicans do not like it. 
The chairman of the Ways and Means Committee of the House does not like 
it. Individual Members of the Senate, who are Republicans, who do not 
like his program, have written to him and talked to him. So that is why 
they are not bringing that up.
  Why are we not going to do something dealing with health care? 
Because they do not have their act together. They do not know what they 
want.
  So without running through each issue we should be talking about, let 
me simply say Miguel Estrada needs to be resolved and can be resolved 
in three ways: The nomination be pulled and we can go to more important 
issues; No. 2, he can answer the questions people want to propound to 
him and have propounded to him; and thirdly, he submit the memos he 
wrote when he was in the Solicitor General's Office and answer 
questions.
  There has been a lot said in righteous indignation: We cannot give 
these memos because it would set a precedent that has never been set in 
the history of this country. Senators Daschle and Leahy, the Democratic 
leader and the ranking member of the Judiciary Committee, wrote to the 
White House and said: Give us the memos. Let him answer the questions.
  We get a 15-page letter back from Gonzales, the counsel to the 
President, saying: We are not going to do that.
  My staff just showed me a letter--I guess he did not have time, as 
counsel to the President did, to write a 15-page letter--in two or 
three sentences saying that Gonzales, if he wanted to talk to Senator 
Daschle and I, they would have him come forward and he could sit down 
and talk to us.
  We are not going to do that. The Democrats in the Judiciary Committee 
unanimously voted against Miguel Estrada because he did not answer the 
questions and he did not submit the memos.
  My case to the Senate, my case to the American people, is there is no 
precedent set by his giving this information, and I say that for a 
number of reasons.
  I have a detailed letter from the Department of Justice describing 
their efforts to respond to the Senate's request for Chief Justice 
Rehnquist's Office of Legal Counsel memos during his nomination--he was 
a Supreme Court Justice at the time, but now he is the Chief Justice--
and a legal letter from the Department of Legislative and 
Intergovernmental Affairs, John Bolton, on August 7, 1986, which states 
and I quote:

       We attach an index of those documents--

  Rehnquist legal memorandum from when he was the Assistant Attorney 
General for the Office of Legal Counsel in the Solicitor's Office--

     and will provide the Committee with access in accordance with 
     our existing agreement.

  The letter also indicates that numerous other legal memoranda were 
provided to the committee prior to that date. The letter also contains 
an attachment, ``Index to Supplemental Release to Senate Judiciary 
Committee,''

[[Page 4317]]

which lists three additional memos relating to legal constraints on 
possible use of troops to prevent movement of May Day demonstrators, 
possible limitations posed by the Posse Comitatus Act on the use of 
troops, authority of members of the Armed Forces on duty in civil 
disturbances to make arrests.
  These are internal memos, obviously, written by attorneys containing 
legal analyses and deliberations about very sensitive issues. Again, it 
is obvious that legal memos similar to Mr. Estrada's were provided to 
the Senate Judiciary Committee, reviewed and returned to the 
Department. In fact, Senator Biden, still a member of this body, wrote 
to Attorney General Meese to thank him for his cooperation and then 
asked for additional memos that I assume were provided.
  I ask unanimous consent that a letter dated July 23, 1986, written to 
the Honorable Strom Thurmond, chairman of the Senate Judiciary 
Committee, from Joe Biden asking that the Department of Justice supply 
certain information regarding the nomination of William B. Rehnquist to 
be Chief Justice, I ask simply that that matter be forwarded to the 
Senate and be printed in the Record.
  As well, we have a request back--I am sorry. We have a letter written 
to Joe Biden from Senator Edward M. Kennedy, Howard Metzenbaum, and 
Paul Simon, members of that Judiciary Committee, who asked for certain 
information dealing with memoranda that Rehnquist prepared. We have a 
letter written to Attorney General Meese from Joe Biden setting forth 
the materials that were requested, together with Rehnquist documents 
that are wanted. We have a letter dated August 7 to Chairman Thurmond 
from John Bolton that I referred to in more general terms. That lists 
in detail the material that was supplied.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                    Washington, DC, July 23, 1986.
     Hon. Strom Thurmond,
     Chairman, Senate Judiciary Committee, Washington, DC.
       Dear Strom: I have enclosed the request of the Department 
     of Justice for documents concerning the nomination of William 
     H. Rehnquist to be Chief Justice. Please forward the enclosed 
     request for expedited consideration by the Department. I 
     understand it may be necessary to develop mutually satisfying 
     procedures should any of the requested documents be provided 
     to the Committee on a restricted basis.
           Sincerely,
                                             Joseph R. Biden, Jr.,
     Ranking Minority Member.
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                    Washington, DC, July 23, 1986.
     Hon. Joseph R. Biden, Jr.,
     Ranking Minority Member, Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
       Dear Joe: In preparation for the Senate Judiciary Committee 
     hearings on the nomination of William H. Rehnquist be to 
     Chief Justice of the United States, please ask Chairman 
     Thurmond to provide the following information and materials, 
     as soon as possible:
       1. For the period from 1969-1971, during which Mr. 
     Rehnquist served as Assistant Attorney General for the Office 
     of Legal Counsel, all memoranda, correspondence, and other 
     materials on which Mr. Rehnquist is designated as a 
     recipient, or materials prepared by Mr. Rehnquist or his 
     staff, for his approval, or on which his mane or initials 
     appears, related to the following:
       --executive privilege;
       --national security, including but not limited to domestic 
     surveillance, anti-war demonstrators, wiretapping, reform of 
     the classification system, the May Day demonstration, the 
     Kent State killings, and the investigation of leaks;
       --the nominations of Harry A. Blackmun and G. Harrold 
     Carswell to be Associate Justices of the Supreme Court;
       --civil rights;
       --civil liberties.
       2. The memo prepared by law clerk Donald Cronson for 
     Justice Jackson concerning the school desegregation cases, 
     entitled, ``A Few Expressed Prejudices on the Segregation 
     Cases''.
       3. The original of the Cronson cable to Mr. Rehnquist in 
     1971, which appears in the Congressional Record of December 
     9, 1971.
       4. Financial disclosure statements for Justice Rehnquist 
     for the period from his appointment to the Court until 1982.
       5. Any book contracts to which Justice Rehnquist is a 
     signatory and which were in effect for all or any part of the 
     period from January 1984 to the present, or for which he was 
     engaged in negotiations during the same period.
           Sincerely,
     Edward M. Kennedy.
     Howard M. Metzenbaum.
     Paul Simon.
                                  ____

                                                      U.S. Senate,


                                    Committee on the Judiciary

                                   Washington, DC, August 6, 1986.
     Hon. Edwin Meese III,
     Attorney General, Department of Justice, Washington, DC.
       Dear Mr. Attorney General: First, I wish to express my 
     appreciation for the manner in which we were able to resolve 
     the issue of access to documents which we requested in 
     connection with Justice Rehnquist's confirmation proceedings. 
     I am delighted that we were able to work out a mutually 
     acceptable accommodation of our respective responsibilities.
       We have now had an opportunity to conduct a preliminary 
     examination of the materials which were provided to us last 
     evening, and we have noticed that several of the items refer 
     to other materials, most of which appear to be incoming 
     communications to which the nominee was responding while he 
     headed the Office of Legal Counsel. Attached hereto is a list 
     of those other materials, and I would appreciate your taking 
     appropriate steps to see that those items are made available 
     as soon as possible.
       Finally, once you have provided us with access to these 
     additional materials, I would appreciate your providing us 
     with a written description of the steps which have been 
     taken, and the files which have been searched, in your 
     Department's effort to be responsive to our requests.
       Once again, thanks for your continuing assistance.
           Sincerely,
                                             Joseph R. Biden, Jr.,
                                          Ranking Minority Member.

                          Rehnquist Documents

       A. Letter from Lt. Gen. Exton, dated Dec. 2, 1970. (This 
     item is referenced in the attachments to I.2.)
       B. The ``transmittal of June 5, 1969'' from Herbert E. 
     Hoffman, (This item is referenced in II.1.)
       C. The ``directive . . . sent out by General Haig on June 
     30.'' (This item is referenced on the first page of the first 
     attachment to II.2.)
       D. ``Haig memorandum of June 30.'' (This item is referenced 
     on the first page of the first attachment to II.2.)
       E. ``NSSM-113''. (This item is referenced in II.4.)
       F. The ``request'' of William H. Rehnquist. (This is 
     referenced in the first paragraph of II.5.)
       G. The ``request'' of William H. Rehnquist. (This item is 
     referenced in the first paragraph of II.6.)
       H. John Dean's ``memorandum of Nov. 16, 1970.'' (This item 
     is referenced in II.8.)
       I. Robert Mardian's ``memorandum of January 18, 1971.'' 
     (This item is referenced in II.10.)
       J. The ``similar memorandum to Mr. Pellerzi and his 
     response of January 21 concerning the above-captioned 
     matter.'' (These two  items are referenced in II.10.)
       K. Kenneth E. BeLieu's ``request of October 28, 1969 for 
     rebuttal material.'' (This item is referenced in V.1.)
       L. William D. Ruckelshaus' ``memorandum of December 19, 
     1969.'' (This item is referenced in VI.2, and in VI.4.)
       M. William D. Ruckelshaus' ``memorandum of February 6, 
     1970.'' (This item is referenced in VI.5.)
       N. Mr. Revercomb's request. (This item is referenced in 
     I.1.)
                                  ____

         Department of Justice, Office of Legislative and 
           Intergovernmental Affairs,
                                   Washington, DC, August 7, 1986.
     Hon. Strom Thurmond,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Thurmond: This letter responds to Senator 
     Biden's August 6 request for certain additional materials 
     referred to in the documents from the Office of Legal Counsel 
     (OLC) that were made available for the Committee's review, 
     and for an explanation of the procedures followed by the 
     Office of Legal Counsel in locating and reviewing those 
     materials. Because OLC went to extraordinary lengths in 
     responding to the document requests in a very short time, I 
     think it would be useful to describe those efforts first.
       The files of the Office of Legal Counsel for the years 
     1969-1971 are maintained in two, duplicative sets: one in 
     hard copy (on a chronological basis) and the other on a 
     computerized system (which can be searched by words or 
     phrases). The Office's normal procedure in response to any 
     request for documents--be it from the public, another 
     government agency, or from a member of Congress--is to 
     conduct a search through the computer system to locate the 
     potentially responsive document or documents. The documents 
     thus identified are then reviewed in

[[Page 4318]]

     hard copy to determine whether they are responsive to the 
     request and whether they may be released, consistent with 
     preserving the integrity of the Office's role as confidential 
     legal advisor to the Attorney General and to the President. 
     The computer search and review is supervised directly by 
     senior career personnel of the Office.
       In this case, the Office went far beyond its routine 
     process to ensure the comprehensiveness of its response. In 
     keeping with established procedures, members of the career 
     OLC staff, under the supervision of the senior career lawyer 
     who usually handles such matters, performed extensive subject 
     matter searches of the computer data base to identify all 
     documents in the files that were conceivably responsive to 
     the request. Those documents were then reviewed by a senior 
     career staff lawyer to determine their responsiveness. In 
     addition, OLC career staff performed an overlapping review, 
     from the hard copy files maintained by OLC for 1969-1971, of 
     all documents prepared by or under the direction and 
     supervision of Mr. Rehnquist. Finally, a staff lawyer worked 
     with the Records Management Division of the Department of 
     Justice to try to identify and locate any files stored in the 
     federal records center that might possibly contain responsive 
     documents.
       I note that review of the stored files in this manner is 
     extraordinary and to our knowledge unprecedented. The OLC 
     files from the relevant time period were consolidated with 
     other Departmental files by the Records Management Division, 
     and then processed and maintained by that Division based on a 
     complicated and incomplete filing system. It is virtually 
     impossible to determine whether documents from the Office of 
     Legal Counsel may be in a particular stored file, or indeed 
     to determine whether particular files were maintained.
       Nonetheless, in an effort to be as complete as possible in 
     responding to the request, OLC undertook to try to identify 
     any stored files that could conceivably contain responsive 
     documents. Although an initial review of the index maintained 
     by the Records Management Division did not suggest that those 
     files contained responsive material that OLC had not 
     previously located, in an abundance of caution OLC requested 
     access to any possibly relevant files. Those files were 
     received from the records center in Suitland, Maryland, late 
     yesterday afternoon. Based on a review of those files by OLC 
     career staff, OLC located three additional memoranda relating 
     to the May Day arrests, each of which was prepared by OLC 
     staff. We attach an index of those documents, and will 
     provide the Committee with access in accordance with our 
     existing agreement.
       In addition, the files received from the federal records 
     center included a copy of the December 2, 1970, letter from 
     Lt. Gen. Exton, which is requested as item A by Senator Biden 
     in his August 6 letter. We will also furnish this letter to 
     the Committee under the same terms. With the exception of 
     item M on Senator Biden's list, which has already been made 
     available to the Committee, OLC has been unable to locate any 
     of the other requested materials in its files or in the 
     stored files. Many of these documents may, in fact, no longer 
     exist. The various ``requests'' listed as items F, G, and K, 
     for example, were most likely oral requests that were never 
     memorialized in writing.
       In sum, the staff of the Office of Legal Counsel went to 
     extraordinary lengths to ensure that all responsive materials 
     were located, putting literally hundreds of hours into this 
     project.
       Please let me know if we can be of further assistance.
           Sincerely,
                                                   John R. Bolton,
                                       Assistant Attorney General.

      Index to Supplemental Release to Senate Judiciary Committee

       1. 5/71 memo to file from Eric Fygi: ``Prevention by Use of 
     Troops of Departure of Mayday Demonstrators from West Potomac 
     Park for Demonstration Sites''
       This memorandum discusses legal constraints on possible use 
     of troops to prevent movement of May Day demonstrators.
       2. 4/26/71 memo to WHR from Eric Fygi and Mary C. Lawton: 
     ``Legal and Practical Considerations Concerning Protective 
     Actions by the United States to Ameliorate the `Mayday 
     Movement' Traffic Project''
       This memorandum discusses possible limitations posed by the 
     Posse Comitatus Act on the use of troops in connection with 
     the planned May Day demonstrations.
       3. 4/29/71 memo to file from Mary C. Lawton (copy provided 
     to WHR): ``Authority of members of the Armed Forces on duty 
     in civil disturbances to make arrest''
       This memorandum questions arising under federal and D.C. 
     law and the Uniform Code of Military Justice with respect to 
     arrests by members of the armed forces.
       4. 12/3/70 letter from Lt. Gen. H.M. Exton to Attorney 
     General Mitchell (as requested by Senator Biden's letter of 
     August 6, 1986).
  Mr. REID. Madam President, my friend from Idaho, the distinguished 
senior Senator--and he is my friend; I have the greatest respect for 
him; he is a fine man; he represents his State very well--I 
respectfully submit to this body my friend's statements regarding what 
the Senate did not do last year is a statement made through a pair of 
glasses that obviously are very foggy.
  I say that because there is a lot of talk here about things that were 
not done. But the fact is the work that was left undone last year was 
left undone as a result of the President of the United States and the 
Republican-led House of Representatives not allowing us to move the 
appropriations bills. We passed 2 bills, leaving 11 undone. The House 
of Representatives simply refused to take votes on those very difficult 
bills. They knew if they took votes on those bills as they wanted them 
in the House of Representatives, it would create chaos among the people 
in the country because the people would know then that the Republicans 
simply were not meeting the demands of the American people.
  As a result of that, even though we passed every bill out of the 
Senate Appropriations Committee--all 13--we were not allowed to take 
them up. So we have to understand that is basically the way it is.
  The senior Senator from Idaho has talked about the need to have a 
vote on Estrada. It is within the total power of the majority to have a 
vote. How do they have a vote? The rules in this body have been the 
same for a long time: File a motion to invoke cloture. Why does the 
Senate have a rule such as this? The Senate of the United States, as 
our Founding Fathers said, is the saucer that cools the coffee. The 
Constitution of the United States is a document that is not to protect 
the majority; this Constitution protects minorities. The majority can 
always protect itself. The Constitution protects the minority. If the 
majority wants to vote, it can invoke cloture--try to. It takes 60 
votes. No question about that. Then they can have the up-or-down vote 
that they want.
  All the crocodile tears are being shed for this man who is fully 
employed downtown here with a big law firm, making hundreds of 
thousands of dollars a year. We are holding up the work of this country 
that deals with problems that people who do not make that kind of money 
have, people who are struggling to make sure they can pay their rent, 
make their house payment, pay their car payment, that they can find 
enough money to get to work on public transportation, people who need a 
minimum wage increase, people who have no health care; they cannot take 
their children to the hospital when they are sick, and if they do, they 
know they are going to be billed large sums. Some places do not have 
indigent hospital care. We know there are many people who are 
underinsured, as Senator Kennedy and I talked about. There are 44 
million who do not have health insurance. Those are the problems with 
which we should be dealing.
  The Clark County School District in Las Vegas is the fifth or sixth 
largest school district in America. A quarter of a million children 
need help. The school district is in dire need of help. The Leave No 
Child Behind is leaving a lot of kids behind because there is no money 
to take care of the problems. We met with Governors today for lunch, 
and they were told when they met with the President yesterday for Leave 
No Child Behind they are supposed to do the testing, and if that does 
not work out, they are supposed to take care of the other problems. 
That is not the deal we made. The States were desperate before that was 
passed. We do not fund the IDEA act, children with disabilities. These 
are the issues we should be dealing with--not spending 3 weeks of our 
time on a man who is fully employed. Let's talk about some of the 
people who have no jobs or are underemployed.
  Having said that, my friend, the distinguished senior Senator from 
Idaho, cannot understand why there is not a vote on Estrada the way he 
believes a vote should occur. My friend, the distinguished senior 
Senator from Idaho, voted against 13 Clinton nominees on the floor, 
including Rosemary Barkett, born in Mexico, who emigrated to the United 
States. She had a great rating from the ABA, before Fred Fielding was 
on the committee, and he does not write her evaluation report.
  By the way, the one thing on which I agree with the Republicans: They 
were

[[Page 4319]]

right in saying the ABA should be out of the process. I will join with 
anyone in the future to get the ABA out of the process. It is corrupt, 
unethical; there are absolute conflicts of interest. The Republicans 
were right; it has been unfair.
  I cannot imagine that body having thousands of----
  Mr. CRAIG. Will the Senator yield?
  Mr. REID. In one second, I will yield--thousands of lawyers, and they 
cannot get people who would be fair and reasonable and do not appear to 
have conflicts of interest? It is ripe to get rid of it.
  Mr. CRAIG. I would not deny the Senator the right to the floor. I am 
curious, for the 8 years of the Clinton administration, this was the 
gold plate. The American Bar Association quality test was a gold plate. 
I said wait a moment here and voted against some of them.
  Mr. REID. I respond to my friend, I said on the Senate floor today in 
the presence of the chairman of the Judiciary Committee, they were 
right. I acknowledge that.
  Mr. CRAIG. A year makes a lot of difference, in the opinion of the 
Senator?
  Mr. REID. Knowledge makes a difference. I am not a member of the 
Judiciary Committee.
  Mr. CRAIG. And I am a freshman there.
  Mr. REID. I think the ABA should be ashamed of themselves.
  I said this morning, I practiced law quite a few years before coming 
here. I was not a member of the ABA for a number of reasons. Had I 
known this, I would really not have been a member. Lawyers all over 
America--we have, going back to biblical times, had problems with 
lawyers.
  Mr. CRAIG. That is why----
  Mr. REID. The ABA, I cannot think of a better phrase than that they 
should be ashamed of themselves for what they have done.
  This is off the subject, but I will get back on the subject. I 
believe all Presidents, Democrat and Republican, have had trouble 
getting nominees--whether it is Cabinet officers, sub-Cabinet officers, 
members of the military, whether it is judges--trying to get them 
before the Senate because of the length of time the FBI investigations 
take and all the hoops people have to jump through now.
  I say let's eliminate the ABA from the judges. I don't know how many 
of my colleagues here agree, but I agree, and I will join with the 
Republicans anytime to get the ABA out of the process.
  My friend, the distinguished Senator from Idaho, voted against Judge 
Sonia Sotomayor, the first Hispanic female appointed to the circuit, 
and Judge Richard Paez confirmed to the Ninth Circuit after 1,520 days 
following his nomination. In fact, the distinguished senior Senator 
from Idaho not only voted against Judge Paez's confirmation, before 
that vote on March 9, 2000, but also voted on that day to indefinitely 
postpone the nomination of Richard Paez.
  I find it fascinating that someone who voted to indefinitely postpone 
a vote on Paez would now say that Estrada is entitled to an immediate 
vote on his nomination.
  Mr. CRAIG. Will the Senator yield?
  Mr. REID. I am happy to yield, although I do not lose my right to the 
floor.
  Mr. CRAIG. Madam President, the Senator is absolutely right. I did 
vote against those judges, as I said on the floor a few moments ago. I 
voted for some of the Clinton judges and against some of them based on 
philosophy. The question I ask, though, is, Did I ever deny the Senate 
the right to go to a vote? Did I ever filibuster as the Senator's party 
is now doing on this issue?
  Mr. REID. I say to my friend that we had to vote cloture on Paez. 
That is how we got a vote on Paez. That is how that came about. We had 
to invoke cloture, and we had enough people of goodwill on the other 
side of the aisle who joined with us to invoke cloture. So the debate 
stopped.
  Mr. CRAIG. I see.
  Mr. REID. Madam President, as I was saying before, the question was 
asked. Senator Craig voted against the motion to invoke cloture on the 
debate on Paez who was pending for more than 1,500 days.
  I want everyone within the sound of my voice to hear this. As Senator 
Daschle and I said, when the Democrats took over control of the Senate, 
we said it is not payback time no matter how bad President Clinton was 
treated. And we could go into a long harangue about how unfair it was. 
I will not even mention a few of the judges. The record is replete with 
examples of how poorly they were treated and how unfairly they were 
treated. We did not have payback time when we were in the majority, and 
it is not payback time when we are in the minority.
  We approved, during the short time that we had control of the Senate, 
100 judges--exactly. Three judges have come before this body for a 
vote. They were approved unanimously.
  The situation with Miguel Estrada is a little bit different. It is a 
little bit different. It is a lot different. It is tremendously 
different because this is a man about whom speeches have been given all 
over town. He is so good that he is going to go to the Supreme Court.
  It triggered something in the mind of the members of the Judiciary 
Committee. If that is the case, maybe we should ask him some questions. 
My dear friend from Utah, from our sister State and neighboring State, 
had on his desk books--look at all the answers he has given. There are 
answers, and then there are answers. He didn't answer the questions. 
That was our concern. He responded to questions, but he didn't answer 
them.
  We believe that what has gone on in the past is not something we 
want, so in this situation I am able to say here that 2 days ago 
everything has been said but not everyone has said it. We are in a new 
phase of this debate. Everything has been said and everybody has said 
it. So now it is just repeat time. I am going to do a little repeat 
time.
  I know my friend from New York wishes to speak. I will be as quick as 
I can, but I do want to respond to some of the questions that have been 
raised in the last bit by my colleagues on the other side of the aisle.
  In 1996, Republicans allowed no--zero percent, absolute number zero--
circuit court nominees to be confirmed. In 1997, they allowed 7 of just 
21 of President Clinton's 21 circuit court nominees, one-third. Only 5 
of President Clinton's first 11 circuit nominees that same year were 
confirmed. In 1998, Republicans allowed 13 of the 23 pending circuit 
court nominees to be confirmed. That percentage was pretty good--the 
best year for circuit court nominations and 6.5 years in control of the 
Senate. In 1999, Republicans backed down to 28 percent and allowed 7 of 
the 25 circuit court nominees to be confirmed--about 1 of over 4.
  Four of President Clinton's first 11 circuit court nominations that 
year were not confirmed. In 2000, Republicans allowed only 8 of 26, 31 
percent. All but one of the circuit court candidates were initially 
nominated that year without confirmation.
  Republicans simply have no standing to complain that 100 percent of 
President George W. Bush's circuit court nominees have not be 
confirmed. The recent issue makes it plain. Democrats have been far 
better to this President than they were to President Clinton.
  Under Republicans, as a consequence, the number of vacancies on the 
circuit courts more than doubled--from 16 in January 1995 to 33 by the 
time the Senate was reorganized in the summer of 2001. Republicans 
allowed only 7 circuit court judges to be confirmed per year; on 
average, we confirmed 17 in just 17 months.
  The other thing that I find so interesting is the majority is 
complaining about the District of Columbia Circuit Court being so 
understaffed. What they are saying now is that this DC Circuit is so 
understaffed that we have to do something about this.
  As my friend from Utah said to me, make a difference. As I indicated 
to him about the ABA, I didn't know as much then as I know now about 
the ABA.
  But what I wanted to talk about here is the DC Circuit Court 
problems. They

[[Page 4320]]

talked about double standards on that side of the aisle today. Let me 
give you a couple of examples.
  DC Circuit Court nominees Elena Kagan, Allan Snyder, and Merrick 
Garland. Senator Cornyn remarked that Judge Garland was confirmed in 
only a few months. Today the Senator repeated that claim using the 
chart that said Garland waited only 71 days from his nomination to 
confirmation.
  If only that were the case, but all you have to do is talk to Judge 
Garland and look at the real record. Judge Garland was first nominated 
in 1995--the year the Republicans took over the Senate--and not allowed 
to be confirmed until 1997, hardly a few months.
  The prior two Republican administrations under President Reagan and 
George W. Bush appointed 11 judges to the 12-member court. When 
President Reagan came to Washington, there was a concerted effort to 
pack this court in particular with activist judges in the hopes of 
limiting opportunity for citizens to challenge regulations and limiting 
constitutional power to enforce hard-fought constitutional and 
statutory rights to protect workers and to protect the environment.
  President Reagan, with the help of the Senate, put activist Robert 
Bork on the DC Circuit. Like Miguel Estrada, Bork was one of the first 
judges nominated by that President. Shortly after winning Bork's 
confirmation to the circuit in 1982, President Reagan pushed through 
the Scalia nomination to the DC Circuit, and Ken Starr the following 
year.
  That is a real lineup. Bork, Starr, Scalia--quite amazing. He named 
another five conservatives after that for a total of eight appointments 
to the court alone in his 8 years as President.
  The first President Bush took a similarly special interest in the DC 
Circuit and chose Clarence Thomas to be one of his first dozen 
nominees. Thomas, who I had the pleasure of voting against when he came 
before the Senate, was one of two other nominees of the first President 
Bush. Four of the 11 judges put on the District of Columbia Circuit 
were later nominated by the Republican Presidents to the Supreme Court.
  During the period when Republicans had nominations to that court--
when Scalia and Thomas served there--the court, clearly any legal 
scholar can tell you, began to limit opportunities for individual 
citizens and judges to represent them. To have standing to challenge 
Government action.
  At the same time, the DC Circuit became less deferential to agency 
regulations intended to protect consumers and workers. These decisions 
were praised by Republican activists.
  With a Democratic Senate, President Clinton was able to name two 
moderate judges to this court in order to moderate this bench. However, 
once Republicans took over, they tried to prevent any more Democratic 
appointees from getting on this court.
  So it is simply incorrect--and I hope not intentionally--to claim 
that Garland waited only 71 days between his nomination and his 
confirmation. It was a matter of years, not days--almost 2 years.
  Why did he have to wait so long? Once Republicans took over the 
Senate, they decided to try to prevent President Clinton from filling 
circuit court vacancies, especially in the DC Circuit. In fact, during 
their time in the majority, vacancies on the appellate courts more than 
doubled, to 33, during their 6\1/2\ years in control of the Senate.
  I believe Republicans decided to prevent President Clinton from 
bringing any balance to the DC Circuit. As you know, the Republicans 
had named 11 judges to this powerful 12-member court.
  First, when Garland was nominated to the 12th seat, Republicans said 
the DC Circuit did not need a 12th judge. For example, the 
distinguished senior Senator from Iowa, Mr. Grassley, said that this 
judgeship cost $1 million a year and did not need to be filled due to 
those costs.
  Then Senator Grassley said he was relying on the view of a Republican 
appointee to this court, Judge Silberman. Judge Silberman--you can read 
about him in a number of different places, including the book ``Blinded 
by the Right,'' written by Mr. David Brock, where this man, who was an 
activist for the far right, would meet with this judge, while he was 
sitting on the bench, walking to his anteroom, and talk about political 
strategy on how to embarrass Democrats, talk about political strategy, 
what to do to embarrass the President of the United States and the 
First Lady of the United States. That is Judge Silberman.
  Judge Silberman recently told the Federalist Society that judicial 
nominees should say nothing in their confirmation hearings--the same 
advice he gave Scalia when Silberman was in the Reagan White House. 
And, as you know with Scalia, a nominee's silence on an issue certainly 
does not guarantee that a nominee does not have deeply held views on an 
issue.
  Yesterday, I went into some detail about my respect for the ability 
of Judge Scalia to reason. This is a logical man, a brilliant man. But 
we, for various reasons, knew quite a lot about Scalia. He had written 
opinions before he went to the Supreme Court. And even though some of 
us may not have agreed with his judicial philosophy, no one--no one--
can dispute his legal attributes, his legal abilities, his ability to 
reason and think.
  Scalia recently authored a majority opinion for the Supreme Court in 
favor of the Republican Party of Minnesota that ABA-modeled ethics 
rules could not prevent a judicial candidate from sharing his views on 
legal issues. That was Scalia, the person I just bragged about.
  While there might have been some ambiguity about how much a judicial 
candidate could say before that Supreme Court decision last summer, 
after that decision there is none now, and Mr. Estrada has no ethical 
basis for refusing to answer the questions that we say he has not 
answered.
  Let's talk about Silberman a little more.
  He told Senator Grassley that the addition of another judge on that 
court would make it ``more difficult'' ``to maintain a coherent stream 
of decisions.'' Surely he did not mean that the addition of a Democrat 
appointee to that court filled with Republican appointees would make it 
more difficult to have unanimous decisions by mostly Republican panels.
  My friend Senator Grassley and other Republicans also relied on the 
views of another Republican appointee, Judge J. Harvie Wilkinson of the 
Fourth Circuit. I don't know much about Harvie Wilkinson. I don't know 
if he is giving advice about how to embarrass Democrats in his judicial 
capacity, which is unethical and against the canons of judicial ethics. 
But I don't know anything about Harvie Wilkinson, other than what I am 
going to tell you right now. He said:

       [W]hen there are too many judges . . . there are too many 
     opportunities for Federal intervention.

  So this makes me think that the opposition to Garland getting a vote 
was pretty political.
  Well, then look at what happened. Another Republican appointee to the 
DC Circuit retired, and then the Republicans said the DC Circuit did 
not need an 11th judge on that court. Garland would have then been the 
11th judge instead of the 12th.
  So the Republicans came to the floor stating that the declining 
caseload of the DC Circuit did not warrant the appointment of a Clinton 
appointee. They argued that 10 judges could handle the 1,625 appeals 
filed in the then-most-recent year for which statistics were available.
  I can only imagine what the Republicans would be saying now if Gore--
who got more votes in the last election than did the President--if he 
had won the Supreme Court case in that election recount. Now, the 
number of cases filed in the DC Circuit has fallen by another 200 per 
year, down to 1,400 in 2001, the most recent year for which statistics 
are available. So under their analysis--that is, the analysis of 
Silberman and Wilkinson--the DC Circuit would need only 9 judges to 
handle these cases, not 10 or 11 or 12.
  In fact, under their analysis, 8 DC Circuit judges could probably 
handle

[[Page 4321]]

the 1,400 appeals if each judge took a few more cases on average--175 
rather than 162. In fact, the First Circuit had 1,463 appeals that 
year, more than the DC Circuit, but they only have 6 judges.
  So let me be as clear as I can. I am not saying that the DC Circuit 
needs only eight judges and that Estrada and Roberts are people for 
whom they should not have submitted their names. I am simply saying 
that these were the Republican arguments against confirming Merrick 
Garland and any other Clinton appointees to that court. Now they are 
strangely silent on the plummeting caseload of the DC Circuit and 
whether it is important we spend $1 million per year for each job.
  These saviors of the budget--the majority--and they are responsible, 
along with the President, for the largest deficit in the history of the 
world, almost $500 billion this year--are not concerned, I guess, about 
$1 million per year. Because you are talking about four judges or so, 
and that is only $4 million. And when we have a deficit approaching 
$500 billion, I guess that is chump change.
  After delaying Garland from 1995 to 1997, 23 Republicans still voted 
against the confirmation of this uncontrover-
sial and well-liked nominee. I think it is important to note that, 
despite Garland's unassailed reputation for fairness, Republicans 
forced him to wait on the floor all this time--even after he was voted 
out of committee--11 months on the floor.
  Clinton's two other nominees to the DC Circuit were not nearly as 
fortunate. Elana Kagan and Allen Snyder were never allowed a committee 
vote or a floor vote. They were held up by anonymous Republicans.
  That is worse than what we are doing--absolutely, totally worse. What 
we are doing is within the rules because you have rules that you can 
follow. If it is not put out of committee, you have no recourse. If 
they had brought it to the floor, we could have at least tried to 
invoke cloture. And that is what the majority can do now.
  They did not even give these two qualified people--both of whom 
graduated first in their class, Harvard--they were never even allowed a 
committee vote, or certainly not a floor vote. They were held up by 
anonymous Republicans.
  Now, we are not doing anything in the dark of the night. We do not 
have anonymous holds on Miguel Estrada. We are out here on the floor 
saying, we want information on him. Until we get it, we are going to 
vote against this man. And I assume these anonymous holds--I don't know 
how many it was--one, or two, or three, or four, or five Republicans in 
the dark of the night preventing a vote.
  Now the Republicans want to say it is wrong and unconstitutional to 
need 60 votes. It is not quite worth a hearty laugh, but it is sure 
kind of funny for them to say it is unconstitutional. Unconstitutional 
that we are following the Constitution--article II, section 2, of the 
Constitution?
  Now Republicans want to say it is wrong and unconstitutional to need 
60 votes--more than a majority--to end a debate under longstanding 
Senate rules, but it is not antidemocratic and unfair for Republicans 
to allow just one member of their own party--maybe two or three--to 
prevent a vote up or down on a judicial nominee, or at least allow us 
to file a motion to invoke cloture; that is, when a Democrat was 
President.
  Madam President, I know the Senator from New York is here to speak. 
Is that true? I will have plenty of opportunity at a subsequent time to 
speak. But there will be a time when I respond to the statement the 
junior Senator from Texas made yesterday regarding the Senate's role on 
confirmations. I look forward to doing that.
  I apologize to my friend from New York. She had duty here at 5 
o'clock, and I have taken far too much time.
  I did want to respond to some statements made when the Senator from 
New York was not on the floor. I felt it was important that the record 
be made clear.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Madam President, I understand that the Senator from New 
York wishes to speak. I don't wish to delay her, but in the spirit of 
going back and forth, I have sought to be recognized. I will not take a 
great deal of time because I want to be sure the Senator from New York 
is given the proper opportunity to speak.
  Mr. REID. Madam President, because of the graciousness of the Senator 
from Utah, I ask unanimous consent that following the statement of the 
Senator from New York, the Senator from Utah be recognized.
  Mr. BENNETT. Madam President, I would object because I have the 
floor.
  Mr. REID. I am sorry. I thought you were going to let her speak.
  Mr. BENNETT. I do intend to let her speak, but I would like to give 
my statement first.
  Mr. REID. I didn't understand that. Then I ask unanimous consent that 
the Senator from New York be recognized following the Senator from 
Utah. I would say to the Senator from Utah, the Senator from New York 
has been waiting a long time, so in the matter of who has been here the 
longest, it has been her.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BENNETT. I thank my friend from Nevada. I sit behind him. He may 
not have noticed how long I was waiting.
  I have been interested in this debate. It goes on. As the Senator 
from Nevada has said, just about everything that can be said has been 
said. But at the same time the country is beginning to discover this 
debate. While everything may have been said on the floor, it seems that 
not everything has been said out in the country. It is interesting to 
me that we are getting more and more editorial comment throughout the 
Nation on this issue.
  One that came to my attention just this morning is in this morning's 
Washington Post. Those who get upset about what they believe is the 
liberal bias of the newspapers usually do not include the Washington 
Post among the list of those publications favorable to Republicans. 
There are columnists in the Washington Post that are considered 
favorable to Republicans. Mr. Novak comes to mind. But the Post itself 
is considered to be part of the leftwing media, according to those on 
talk radio.
  So when someone who is part of the establishment of the Washington 
Post editorial page speaks out on this issue and says something 
contrary to that which is normally assumed to be the party line of the 
mainstream media, it is worth noting and commenting on.
  In this morning's Washington Post, Benjamin Wittes, a member of the 
editorial page staff, has an op-ed piece entitled Silence is Honorable.
  I would like to quote from it at some length. This is how Mr. Wittes 
begins:

       Asked whether the Constitution evolves over time, the 
     nominee to the U.S. Court of Appeals for the District of 
     Columbia Circuit told the Senate Judiciary Committee that, 
     while such debates were interesting, ``as an appellate judge, 
     my obligation is to apply precedent.'' Asked whether he 
     favored capital punishment, a nominee said only that the 
     death penalty's constitutionality was ``settled law now'' and 
     that he didn't ``see any way in which [his] views would be 
     inconsistent with the law in this area.''
       Miguel Estrada, one of President Bush's nominees to the 
     D.C. Circuit, is facing a filibuster by Democratic senators 
     who claim that his refusal to address their questions at his 
     hearing--combined with the White House's refusal to release 
     his memos from his days at the solicitor general's office--
     makes him an unreadable sphinx. Yet the careful answers 
     quoted above are not Estrada's. The first was given by Judge 
     Judith Rogers at her hearing in 1994, the second by Judge 
     Merrick Garland the following year. Both were named to the 
     bench by President Clinton. Neither was ever accused of 
     stonewalling the committee. And both were confirmed.
       But the rules they are a-changin', and answers barely 
     distinguishable from these are no longer adequate. Asked 
     whether he thought the Constitution contained a right to 
     privacy, Estrada said that ``the Supreme Court has so held 
     and I have no view of any nature whatsoever . . . that would 
     keep me from apply[ing] that case law faithfully.'' Asked 
     whether he believed Roe v. Wade was correctly decided, he 
     declined to answer. While he has personal views on abortion, 
     he said, he had not done the work a judge would do before 
     pronouncing on the subject. Roe ``is there,'' he said. ``It 
     is the law . . . and I will follow it.''

[[Page 4322]]

       The real difference between Estrada's questioning and that 
     of Garland and Rogers is not that Estrada held back. It is 
     that Garland and Rogers faced nothing like the inquest to 
     which Estrada was subjected. Both, along with Judge David 
     Tatel--the other Clinton appointee now on the court--faced 
     only a brief and friendly hearing.

  I would note, outside of the article, that that brief and friendly 
hearing was under Republican auspices because Republicans controlled 
the Senate. Back to the article:

       And none was pushed to give personal views on those matters 
     on which his or her sense of propriety induced reticence. To 
     be sure, there was no controversy surrounding the fitness of 
     any of the Clinton nominees, so the situation is not quite 
     parallel. When Garland, a moderate former prosecutor who had 
     recommended the death penalty, said he could apply the law of 
     capital punishment, there was no reason to suspect he might 
     be shielding views that would make him difficult to confirm. 
     By contrast, many Democrats suspect that Estrada's refusal to 
     discuss Roe is intended to conceal his allegedly extremist 
     views. But that only begs the question of why Estrada is 
     controversial in the first place that Democrats think it 
     appropriate to demand that he bare his judicial soul as a 
     condition of even getting a vote.

  This is the conclusion of this portion of the op-ed piece:

       Nothing about his record warrants abandoning the respect 
     for a nominee's silence that has long governed lower court 
     nominations.
       And silence is the only honorable response to certain 
     questions. It is quite improper for nominees to commit or 
     appear to commit themselves on cases that could come before 
     them.

  That is the end of that quote. This is the standard we followed in 
this body for many years. I will not pretend that members of the 
Judiciary Committee of both parties in Congress, controlled by both 
parties, would use the Judiciary Committee, the blue slip process and 
other patterns of senatorial courtesy to keep people from getting to 
the bench. That is part of our history. That has always been done. But 
once a hearing has been held and the committee has voted out a nominee, 
we have always allowed that nominee to go to a vote. That is the 
standard that has been established in this body. That is the standard 
that has been followed by Democrats and Republicans alike. And that is 
the standard that is being changed in this circumstance.
  The Senator from Nevada talked a good bit about the Constitution and 
questions that have been raised about constitutionality by the 
Republicans. I would simply point out this obvious fact with respect to 
the Constitution on this question: The Founding Fathers gave the power 
to advise and consent in certain executive decisions to the Senate. The 
Founding Fathers recognized that the power to advise and consent was a 
very significant one, an unusual one held solely to the Senate. So they 
outlined those areas where the power to advise and consent would 
require a supermajority.
  The Founding Fathers said: If you are advising and consenting on a 
treaty, which becomes law when it is ratified, equal to the 
Constitution, then you have to have a two-thirds majority. If you are 
amending the Constitution, you have to have a two-thirds majority. 
These are serious enough matters, with long-term impact, that they must 
have a two-thirds majority.
  They could have said: The advise and consent power always requires a 
supermajority, but they did not. The Founding Fathers made it very 
clear those specific areas where a supermajority would be required and 
then left it to an ordinary majority on the advise and consent power 
with respect to Presidential nominations. And throughout the entire 
history of the Republic, we have followed the pattern of a simple 
majority for the advise and consent power to be exercised by the 
Senate.
  Make no mistake, if the Senate sets the precedent in the Estrada case 
that the advise and consent power from this time forward requires a 
supermajority of 60 votes, they are changing forever the pattern of the 
Senate's relationship to the executive branch in this area. I am not 
one who says that is unconstitutional. I think it is within the power 
of the Senate. I disagree with those who are saying it violates the 
Constitution. I think it violates the intent of the Framers of the 
Constitution. I think that is very clear. But it is within the power of 
the Senate to do that if we want.
  As I have said before, we on our side of the aisle discussed this 
when we were faced with those nominees from President Clinton whom we 
considered controversial. There were those in our conference who 
insisted that we must do that--change the pattern and require President 
Clinton's nominees to pass the 60 point bar. To his credit, my senior 
colleague from Utah argued firmly against that. Even though he was 
against the nominees in some cases, he said we must not change the 
historic pattern that says once a nominee is voted out of the 
committee, he or she gets a clear up-or-down vote by a majority. To his 
credit, the Republican leader at the time, the majority leader, Senator 
Lott, said exactly the same thing: We must not go down that road. Those 
in our conference who said let's do it on that particular judge agreed 
and backed down, and no matter how strongly people on this side of the 
aisle felt about a particular judge, there was never an attempt to use 
the filibuster power to change what we considered to be the clear 
intent of the Founding Fathers and change the advise and consent 
situation, where there was an additional supermajority required, an 
additional supermajority added to that which the Founding Fathers 
themselves wrote into the Constitution.
  Now the Democrats have decided they are going to do that. It is their 
right. To me, it signals a determination on their part that they expect 
to be in the minority for a long time. One of the reasons Senator Hatch 
gave for us not to do it was, we will have an opportunity in the future 
to be voting on nominees offered by a President of our own party, and 
if we do this to the other party, they will then feel comfortable in 
doing it to the nominees of our party; let's just not do that.
  I think by deciding to do this on this nominee, the Democrats have 
virtually conceded the fact that they do not expect another Democratic 
President for long time. They believe they will be in the minority for 
a long time and, therefore, they must establish this weapon as one of 
the weapons they will use as part of the minority to obstruct the 
activities in the Senate for a long time to come.
  I hope they decide ultimately to bet on the future. I hope they 
decide ultimately they do expect that there will be a Democratic 
President sometime in the future, that they do expect there will be a 
Democratic Senate sometime in the future and they want to save for the 
future the right that every President, Democrat or Republican, and 
every Senate, Democrat or Republican, has maintained since the founding 
of the Republic 2\1/2\ centuries ago.
  Madam President, if I may go back to the article written by Benjamin 
Wittes in this morning's Washington Post that summarizes the 
implications of going in this direction and what it will do long term, 
he says:

       Not knowing what sort of judge someone will be is 
     frustrating, but that is the price of judicial independence. 
     While it would be nice to know how nominees think and what 
     they believe and feel, the price of asking is too high. The 
     question, rather, is whether a nominee will follow the law. 
     Estrada has said that he will. Those who don't believe him 
     are duty bound to vote against him, but they should not 
     oblige nominees to break the silence that independence 
     requires.

  That is what our friends on the Democratic side are doing. They have 
never demanded it before. We did not demand it of their nominees. They 
are changing the rules--``the rules they are a'changing,'' as Mr. 
Wittes points out. I ask my friends on the Democratic side to think 
long and hard about the long-term consequences of changing the rules--
changing the rules, as Mr. Wittes talks about it, in terms of what is 
demanded of nominees; changing the rules as we are talking about it 
here in terms of the supermajority that would be added to the existing 
constitutional requirement of the Senate as it performs its role in 
advising and consenting to executive nominations.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mrs. CLINTON. Madam President, I thank the Senator from Utah for his 
kindness and consideration with respect to the order. I was happy to 
have

[[Page 4323]]

the opportunity to hear him, as I often am.
  With respect to the arguments that have been made in the last hour or 
so, I think it is clear that there is a fundamental difference of 
opinion regarding the Senate's obligation and duty under the advise and 
consent clause of the U.S. Constitution.
  Mr. DORGAN. Will the Senator yield for a unanimous consent request?
  Mrs. CLINTON. Yes.
  Mr. DORGAN. I ask unanimous consent that I may speak following the 
speech of the Senator from New York.
  Mr. BENNETT. I object. There is a Republican speaker coming. I would 
amend the UC request to say that Senator Talent, if he is on the floor, 
be recognized first, and then Senator Dorgan be recognized.
  The PRESIDING OFFICER. Is there objection?
  Mr. DORGAN. Reserving the right to object, I have not followed the 
order on the floor of the Senate today. I don't know whether the 
Senator from Utah has. I was told I would be recognized at 5:30 and was 
prepared to do that. If there has been a process today in which 
Republicans and Democrats follow each other precisely, then I will 
understand what the Senator from Utah is trying to do. If not, I am 
here. The reason I am here is to present remarks following the Senator 
from New York. If others wish to be involved in the line-up, I will be 
happy to entertain that. I guess I don't understand the circumstance 
under which the Senator from Utah is opposing this.
  Mr. BENNETT. I am not sure what the circumstance was prior to my 
coming to the floor either. I was told we were going back and forth. If 
I might inquire as to how much time the Senator would use, perhaps 
there would be no problem.
  Mr. DORGAN. It was my intention to consume an hour, but I will not do 
that; it will be a half hour. I would certainly be accommodating to 
anybody else. I would like to speak, and others are not here. I don't 
intend to interrupt. If there is an order established, I do not want to 
interrupt that. I don't know that to be the case.
  Mr. BENNETT. I don't know that to be the case all day long. I do know 
that was the case earlier. Reserving the right for my friend who is 
anticipating to be here at 6, and was told in advance he could be here 
at 6, I renew my unanimous consent request that following the Senator 
from New York, the Senator from Missouri, Mr. Talent, would be 
recognized to speak, after which the Senator from North Dakota, Mr. 
Dorgan, would be recognized.
  The PRESIDING OFFICER. Is there objection?
  Mr. DORGAN. Reserving the right to object--and I will now object--if 
the other side wishes to protect people who are not here in deference 
to those who are here, I expect the Senator from Utah would want us to 
do the same thing on this side of the aisle. If a Republican is waiting 
to speak, and a Democrat is not yet on the floor, but someone here says 
it is really the opportunity for the Democrats to speak even if the 
Republican is here, we will object. So I guess I understand the point 
the Senator from Utah is making. I will not object to his request as 
long as he understands that we will do that, I suppose. I don't think 
it is the most efficient way of handling things. Those who are on the 
floor and prepared to speak, I expect that is the way we ought to 
recognize people.
  Mr. BENNETT. I thank my friend for his consideration. I say to him he 
caught me at somewhat of a disadvantage in that I am the only one on 
the floor and didn't know what was going on. I am trying to accommodate 
people on both sides, which is why I want to make sure the Senator from 
North Dakota is recognized to speak.
  Mr. DORGAN. Madam President, continuing to reserve the right to 
object, if this is the process, I will simply at some appropriate point 
ask for a time certain to speak tomorrow and will be here promptly at 
that time. I am here now and those who the Senator from Utah is 
attempting to protect are not here. I will not object because I do not 
want to interrupt an order apparently they think on that side exists. 
If that, in fact, is the order, we will certainly make sure that is the 
case for people on both sides of the aisle as we proceed.
  Mr. BENNETT. I would expect the Democratic leader to be sure of 
enforcing the same process on behalf of Senators on his side of the 
aisle.
  Mr. DORGAN. Madam President, I do not think that is the most 
efficient use of time in the Senate. It seems to me those who are here 
want to be recognized to proceed. Recognizing it is not the most 
efficient use of time, I will not object to the request by the Senator 
from Utah.
  Mr. BENNETT. I thank my friend.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from New York.
  Mrs. CLINTON. I thank the Chair. Madam President, I have been, as I 
said, listening with great interest to the debate on this issue. It is 
a very significant and important debate. As I often do when I come to 
the Chamber, I imagine, instead of being a Senator with the great honor 
of representing the State of New York and speaking in this Chamber, 
that I am just another citizen, as I have been most of my life, 
watching the debate on C-SPAN or one of the other television networks 
that might cover parts of it, and I would be asking myself: What is 
this all about? Why has so much time been consumed in the Senate over 
this one nominee?
  The bottom line answer is that this side of the aisle has a very deep 
concern about any candidate seeking a lifetime position who refuses to 
answer the most basic questions about his judicial philosophy. And 
that, in fact, to permit such a candidate to be confirmed without being 
required to answer those questions is, in our view, a fundamental 
denial and repudiation of our basic responsibilities under the advice 
and consent clause of article II, section 2, of the U.S. Constitution.
  Earlier this afternoon, as I was waiting for my opportunity to speak, 
I heard the Senator from Idaho admit that he had, based on philosophy, 
voted against certain nominees who had been sent to the Senate by 
President Clinton. I happen to think that is a totally legitimate 
reason to vote for or against a nominee. I happened to agree with the 
Senator from Idaho when he said he voted against nominees by President 
Clinton based on philosophy. That is an integral part of the advise and 
consent obligation.
  The problem that we have on this side of the aisle is we cannot 
exercise the advise and consent obligation because we do not get any 
answers to make a determination for or against this nominee based on 
philosophy. I could not have done a better job than the Senator from 
Idaho did in summing up what the problem is. I thank the Senator from 
Idaho for being candid, for saying he voted against President Clinton's 
nominees based on philosophy.
  We could resolve this very easily if the nominee would actually 
answer some questions, legitimate questions that would permit those of 
us who have to make this important decision and are not just saluting 
and following orders from the other end of Pennsylvania Avenue, by 
being able to look into the philosophy and then deciding: Are we for 
this nominee or are we against this nominee?
  This nomination would also be expedited if the President and his 
legal counsel would respond to the letter of February 11 sent to the 
President by the minority leader and the distinguished ranking member 
of the Judiciary Committee asking for additional information on which 
to make a decision concerning this nominee, and, in fact, both Senators 
Daschle and Leahy are very explicit about what information is required. 
I will reiterate the request. Specifically, they asked the President to 
instruct the Department of Justice to accommodate the request for 
documents immediately so that the hearing process can be completed and 
the Senate can have a more complete record on which to consider this 
nomination and, second, that Mr. Estrada answer the questions he 
refused to answer during the Judiciary Committee hearing to allow for a 
credible review of his judicial philosophy and legal views.
  I would argue, we are not changing the rules. In fact, we are 
following the

[[Page 4324]]

rules and the Constitution, and we are certainly doing what the Senator 
from Idaho said very candidly he did with respect to President 
Clinton's nominees. We are trying to determine the judicial philosophy 
of this nominee in order to exercise our advise and consent obligation.
  I have also been interested in my friends on the other side of the 
aisle talking and reading from newspapers and asserting that we are 
somehow requesting more information from this nominee than from other 
nominees and that, in fact, it is honorable not to answer relevant 
questions from Judiciary Committee members. It may be honorable by 
someone's definition of honor, but it is not constitutional. It is 
fundamentally against the Constitution to refuse to answer the 
questions posed by a Judiciary Committee member.
  If there were any doubt about this standard, all doubt was removed 
last year. How was it removed? It was removed in a Supreme Court 
opinion rendered by Justice Scalia arising out of a case brought by the 
Republican Party concerning the views of judges.
  For the record, I think it is important we understand this because 
perhaps some of my colleagues have not been informed or guided by the 
latest Supreme Court decisions on this issue, but I think they are not 
only relevant, they are controlling, to a certain extent, when we 
consider how we are supposed to judge judges.
  Republicans focus on the ABA model code that judicial candidates 
should not make pledges on how they will rule or make statements that 
appear to commit them on controversies or issues before the court. They 
are, understandably, using this as some kind of new threshold set by 
Mr. Estrada who refused to answer even the most basic questions about 
judicial philosophy or his view of legal decisions.
  Some judicial candidates, it is true, go through with very little 
inquiry. They come before the Judiciary Committee. They are considered 
mainstream, noncontroversial judges. Frankly, the Senators do not have 
much to ask them. They go through the committee. They come to the 
floor. That is as it should be. Were it possible, that is the kind of 
judge that should be nominated--people whose credentials, background, 
experience, temperament, and philosophy is right smack in the center of 
where Americans are and where the Constitution is when it comes to 
important issues. When someone does not answer questions or when they 
are evasive, it takes longer and you keep asking and you ask again and 
again. That was, unfortunately, the case with this particular nominee.
  The Republican Party sued the State of Minnesota to ensure their 
candidates for judicial office could give their views on legal issues 
without violating judicial ethics. Republicans took that case all the 
way to the Supreme Court. In an opinion by Justice Scalia, the Supreme 
Court ruled that the ethics code did not prevent candidates for 
judicial office from expressing their views on cases or legal issues. 
In fact, Justice Scalia said anyone coming to a judgeship is bound to 
have opinions about legal issues and the law, and there is nothing 
improper about expressing them.
  Of course, we do not and should not expect a candidate to pledge that 
he is always going to rule a certain way. We would not expect a 
candidate, even if he agreed that the death penalty was constitutional, 
to say: I will always uphold it, no matter what. That would be an abuse 
of the judicial function and discretion.
  Specifically, in Republican Party of Minnesota v. White, the Supreme 
Court overruled ABA model restrictions against candidates for elective 
judicial office from indicating their views. I think the reasoning is 
applicable to those who are nominated and confirmed by this body for 
important judicial positions within the Federal judiciary.
  Justice Scalia explained in the majority opinion, even if it were 
possible to select judges who do not have preconceived views on legal 
issues it would hardly be desirable to do so.
  I want my friends on the other side to hear the words of one of the 
two favorite Justices of the current President, Justice Scalia: Even if 
it were possible, it would not be desirable.
  Why? Because, clearly, we need to know what the judicial philosophy 
is. Judges owe that to the electorate, if they are elected; to the 
Senate if they are appointed.
  Justice Scalia goes on: Proof that a justice's mind at the time he 
joined the court was a complete tabula rasa in the area of 
constitutional adjudication would be evidence of lack of qualification, 
not lack of bias. And since avoiding judicial preconceptions on legal 
issues is neither possible nor desirable, pretending otherwise by 
attempting to preserve the appearance of that type of impartiality can 
hardly be a compelling State interest, either. In fact, that is Justice 
Scalia quoting Justice Rehnquist.
  Before this decision, some judicial candidates may have thought--and 
some of my colleagues may have thought--that judicial candidates could 
not share their views on legal issues, and I think that might have been 
a fair assessment of the state of the law at that time. But that is no 
longer a fair assessment.
  A judicial candidate cannot be compelled to share his views, but 
Justice Scalia tells us that a judicial candidate who does not share 
his views refuses to do so at his own peril, and that is exactly what 
this nominee has done. At his own peril, he has gotten his marching 
orders from the other end of Pennsylvania Avenue, from all those who 
advise judicial nominees, from the Federalist Society and all the rest 
of those organizations, not to answer any questions, to dodge all of 
the issues, to pretend not to have an opinion about any Supreme Court 
case going back to Marbury v. Madison.
  Well, he does so, in Justice Scalia's words, at his peril. That is 
what has brought this nomination to this floor for all these days, 
because this nominee wants to be a stealth nominee. He wants to be a 
nominee who is not held accountable for his views so that we who are 
charged under the Constitution to make this important judgment cannot 
do so based on his judicial philosophy.
  Justice Scalia has a lot to say to my friends on the other side. If 
it were possible to become a Federal judge, with lifetime tenure, on 
the second highest court of the land, without ever saying anything 
about your judicial philosophy, I think that would be astonishing. It 
would be troubling. It would run counter to the Constitution and to 
this opinion written by one of the most conservative members of the 
current Court.
  Mr. Estrada basically has come before this Senate and claimed he 
cannot give his view of any Supreme Court case without reading the 
briefs, listening to the oral argument, conferring with colleagues, 
doing independent legal research, and on and on. That is just a dressed 
up way of saying: I am not going to tell you my views, under any 
circumstances.
  One has to ask himself--and I do not want to be of a suspicious 
mindset--why will this nominee not share his views? Are they so 
radical, are they so outside the mainstream of American judicial 
thought, that if he were to share his views, even my friends on the 
other side would say wait a minute, that is a bridge too far; we cannot 
confirm someone who believes that?
  How can I go home and tell my constituents that I voted for somebody 
who actually said what he said? I cannot think of any other 
explanation. Why would a person, who clearly is intelligent--we have 
heard that constantly from the other side--who has practiced law, not 
be familiar with the procedures of the Judiciary Committee, of the 
constitutional obligation of advise and consent or even of Justice 
Scalia and Justice Rehnquist's opinions about the importance of 
answering such questions?
  So I have to ask myself: What is it the White House knows about this 
nominee they do not want us to know? And if they do not want us to 
know, they do not want the American people to know. I find that very 
troubling.
  I do not agree with the judicial philosophy of many of the nominees 
sent

[[Page 4325]]

up by this White House. I voted against a couple of them. I voted for 
the vast majority of them, somewhere up in the 90 percentile. At least 
I felt I could fulfill my obligation so when I went back to New York 
and saw my constituents and they asked why did I vote for X, I could 
say to them it was based on the record. He may not be my cup of 
judicial tea, but he seems like a pretty straightforward person. Here 
is what he said and that is why I voted for him. Or to the contrary, I 
could not vote for this nominee because of the record that was 
presented.
  I cannot do that with this particular nominee. And you know what. The 
other end of Pennsylvania Avenue that is calling the shots on this 
nomination does not want me to have that information.
  I think that is a denial of the basic bargain that exists under the 
Constitution when it comes to nominating and confirming judges to the 
Federal courts.
  It could have been different. The Founders could have said let's put 
all of this into the jurisdiction of the Executive; let him name 
whoever he wants. Or they could have said: No, let's put it in the 
jurisdiction of the legislature; let them name whoever they want. 
Instead, as is the genius of our Founders and of our Constitution, 
there was a tremendous bargain that was struck, rooted in the balance 
of power that has kept this Nation going through all of our trials and 
tribulations, all of our progress, that balance of power which said we 
do not want this power to rest in any one branch of Government; we want 
it shared. We want people to respect each other across the executive 
and legislative lines when it comes to the third branch of Government.
  So, OK, Mr. President, you nominate. OK, Senators, you advise and 
consent. That is what this is about.
  Sometimes I wonder, as my friends on the other side talk about it, 
how they can so cavalierly give up that constitutional obligation. The 
unfortunate aspect of this is we could resolve this very easily. All 
the White House has to do is send up the information. Let Mr. Estrada 
answer the questions. He may still have a majority of Senators who 
would vote to put him on the DC Circuit. I do not know how it would 
turn out because I do not have the information.
  While we are in this stalemate caused by the other end of 
Pennsylvania Avenue, which for reasons that escape me have dug in their 
heels and said, no, they will not tell us anything about this person, 
there is a lot of other business that is not being done, business about 
the economy, the environment, education and health care, business that 
really does affect the lives of a lot of Americans.
  On that list of business that I consider important is what is 
happening in our foster care system. Tomorrow evening, I will have the 
great privilege of hosting the showing of a tremendous movie about the 
foster care system, along with Congressman Tom DeLay. I invite all of 
my colleagues from both Houses of Congress to come and see this movie 
that vividly illustrates what happens in our foster care system.
  I have worked in the past with Congressman DeLay to try to improve 
the foster care system. I look forward to doing that in the future. He 
has a great commitment to the foster care system and the foster 
children who are trapped within it. I use that word with great meaning 
because, indeed, that is often what happens to them. And the stories of 
abuse and neglect that first lead children to go into the foster care 
system are compounded by the stories of abuse and neglect once they are 
in that system.
  Mr. Fisher will be joining Congressman DeLay and me at the Motion 
Picture Association screening room for this important movie. This is a 
screening just for Members of Congress. I think it will illustrate 
better than certainly my words could why it is so important we join 
hands and work on this issue along with many others who affect the 
lives of children as well as men and women across America.
  Occasionally, a movie comes to the screen that brings to life the 
stories that have become routine in the newspapers and that we too 
often ignore--the stories of children living with abuse and neglect, 
shuffled in and out of our foster care system, often with little 
guidance from or connection to any one adult. Too often these stories 
end in the most tragic way possible:
  7-year-old Faheem Williams in Newark, NJ was recently found dead in a 
basement with his two brothers where they were chained for weeks at a 
time.
  6-year-old Alma Manjarrez in Chicago was beaten by her mother's 
boyfriend and left to die outside in the snow and cold of the winter.
  And despite 27 visits by law enforcement to investigate violence, 7-
year-old Ray Ferguson from Los Angeles was recently killed in the 
crossfire of a gun battle in his neighborhood.
  Antwone Fisher's story is different.
  Mr. Fisher overcame tremendous odds: He was born in prison, handed 
over to the State, and lived to tell his story of heartbreaking abuse. 
At the age of 18, he left foster care for the streets. With nowhere to 
turn, he found the support, education, and structure in the U.S. Navy. 
In the Navy, Fisher received a mentor and professional counselor, which 
helped him turn his life around.
  Mr. Fisher survived his childhood and has lived to inspire us all and 
send us a stern reminder that it is our duty to reform the foster care 
system so that no child languishes in the system, left to find his own 
survival or to die. Antwone's success story should be the rule not the 
exception.
  Tomorrow night, House Majority Leader Tom DeLay and I will be 
cohosting a screening of the movie ``Antwone Fisher'' for Members of 
Congress. We decided to host this together because we both feel that it 
is imperative that we raise national awareness about foster care--
through one child's own experience--and encourage our colleagues to 
tackle this tough issue with us.
  Congressman DeLay and I had received an award together in the year 
2000 from the Orphan Foundation of America for the work that we both 
have done in this area. Earlier this year, I asked my staff to reach 
out to his staff to find ways we might work together to focus on this 
issue. This movie was a natural fit for both of us and I look forward 
to continuing to work with Representative DeLay as we take a hard look 
at reforming our foster care system. Congressman DeLay and his wife, 
Christine, are strong advocates for foster children and are foster 
parents themselves.
  I hope that many of my colleagues in the Senate will take us up on 
the invitation and join us for this important movie.
  But, for those who can't join us, I wanted to share a little bit 
about Antwone's story in his own words from his book, ``Finding 
Fish''--

       The first recorded mention of me and my life was [from the 
     Ohio State child welfare records]: Ward No. 13544.
       Acceptance: Acceptance for the temporary care of Baby boy 
     Fisher was signed by Dr. Nesi of the Ohio Revised Code.
       Cause: Referred by division of Child Welfare on 8-3-59. 
     Child is illegitimate; paternity not established. The mother, 
     a minor, is unable to plan for the child. The report went on 
     to detail the otherwise uneventful matter of my birth in a 
     prison hospital facility and my first week of life in a 
     Cleveland orphanage before my placement in the foster care 
     home of Mrs. Nellie Strange.
       According to the careful notes made by the second of what 
     would be a total of thirteen caseworkers to document my 
     childhood, the board rate for my feeding and care cost the 
     state $2.20 per day.

  Antwone went on to document that the child welfare caseworker felt 
that his first foster mother had become ``too attached'' to him and 
insisted that he be given up to another foster home. The caseworker 
documents this change:

       Foster mother's friend brought Antwone in from their car. 
     Also her little adopted son came into the agency lobby with 
     Antwone. . .  . They arrived at the door to the lobby and the 
     friend and the older child quickly slipped back out the door. 
     When Antwone realized that he was alone with the caseworker, 
     he let out a lust yell and attempted to follow them.
       Caseworker picked him up and brought him in. Child cried 
     until completely exhausted and finally leaned back against 
     caseworkers, because he was completely unable to cry anymore.


[[Page 4326]]


  Later he describes when the caseworker brought him to his next foster 
home--she too slipped out the door when he was not looking. He says, 
``All through my case files, everybody always seemed to be slipping 
away in one sense or another.''
  When Antwone arrived at the next foster home and as he grew, at first 
he was not told of his troubled entry into the world:

       But for all that I didn't know and wasn't told about who I 
     was, a feeling of being unwanted and not belonging had been 
     planted in me from a time that came before my memory.
       And it wasn't long before I came to the absolute conclusion 
     that I was an uninvited guest. It was my hardest, earliest 
     truth that to be legitimate, you had to be invited to be on 
     this earth by two people--a man and a woman who loved each 
     other. Each had to agree to invite you. A mother and a 
     father.

  Antwone Fisher never knew a permanent home--never knew a loving 
mother and father. Instead, he was left to fend for himself when he was 
expelled from foster care at 18--a time when the state cuts off 
payments to foster parents. Antwone found himself on the streets and 
homeless.
  Thanks to the work of many on both sides of the aisle in Congress we 
have begun important work to make sure that Antwone's story is not 
repeated. No child should have to grow up in foster care from birth and 
never be adopted and no child should ever have to leave the system at 
18, with absolutely no support.
  There are approximately 542,000 children in our Nation's foster care 
system--16,000 of these young people leave the system every year having 
never been adopted. They enter adulthood the way they lived their 
lives, alone.
  In 1999, when I was First Lady, I advocated for and Congress took an 
important step to help these young adults by passing the Chafee Foster 
Care Independence Act. This program provides states with funds to give 
young people assistance with housing, health care, and education. It is 
funded at $410 million annually, and should be increased. But it was an 
important start to addressing the population of children who ``age-
out'' of our foster care system.
  This bill came after the important bipartisan Adoption and Safe 
Families Act of 1997. As First Lady, it was an honor to work on what's 
considered to be one of the most sweeping changes in federal child 
welfare law since 1980.
  It ensured that a child's safety is paramount in all decisions about 
a child's placements. For those children who cannot return home to 
their parents, they may be adopted or placed into another permanent 
home quickly. Since the passage of this law, foster child adoptions 
have increased by 78 percent.
  The next major hurdle that I believe we need to tackle in reforming 
our child welfare system is the financing system.
  Currently, we spend approximately $7 billion annually to protect 
children from abuse and neglect, to place children in foster care, and 
to provide adoption assistance. The bulk of this funding, which was 
approximately $5 billion in fiscal year 2001, flows to States as 
reimbursements for low-income children taken into foster care when 
there is a judicial finding that continuation in their home is not 
safe.
  This funding provides for payments to foster families to care for 
foster children, as well as training and administrative costs.
  This funding provides a critical safety net for children, who through 
difficult and tragic circumstances end up in the care of the state. It 
ensures that children are placed in foster care only when it is 
necessary for their safety, it ensures that efforts are made to reunify 
children with their families as soon as it safe, it works to make sure 
that the foster care placement is close to their own home and school, 
and it requires that a permanency plan is put in place. All of these 
safeguards are critical.
  The financing, however, is focused on the time the child is in foster 
care and it continues to provide funding for States the longer and 
longer a child is in the system. The funding is not flexible enough to 
allow for prevention or to help children as they exit the system--
critical times when children fall through the cracks.
  President Bush has put a proposal on the table to change the way 
foster care is financed in order to provide greater flexibility so that 
states can do more to prevent children form entering foster care, to 
shorten the time spent in care, and to provide more assistance to 
children and their families after leaving.
  While I absolutely do not support block granting our child welfare 
system--I do think that it is important that President Bush has come to 
the table with an alternative financing system and I believe that it 
provides us with an opportunity to carefully consider how to 
restructure our child welfare system.
  We must ask critical questions:
  Will States be required to maintain child safety protection that we 
passed as part of the Adoption and Safe Families Act?
  Will States be required to target funds to prevention and post-foster 
care services?
  What happens if there is a crisis and more foster care children enter 
the system? Will States receive additional funds?
  While I believe all of these questions deserve answers, I applaud 
President Bush and Representative DeLay for being willing to tackle 
this hard problem. I look forward to working with them to find 
solutions so that we do not allow any child to fall through the cracks.
  This is just one of the many issues that are basically left on the 
back burner while we engage in this constitutional debate that could be 
resolved if information were provided.
  As I said, I have to question the reasons why that information is not 
forthcoming. It gives me pause. This administration is compiling quite 
a record on secrecy. That bothers me. It concerns me. I think the 
American people are smart enough and mature enough to take whatever 
information there is about whatever is happening in the world--whether 
it is threats we may face or the judicial philosophy of a nominee. That 
is how a democracy is supposed to work. If we lose our openness, if we 
turn over our rights to have information, we are on a slippery slope to 
lose our democracy. Now, of course, in times of national crisis and 
threat like we face now, there are some things you cannot share with 
everyone. But you certainly can and should share them with the people's 
elected representatives. That is why we are here. I err on the side of 
trying to make sure we share as much information as possible.
  For the life of me, I cannot understand why the White House will not 
share information about this nominee. Until it does, until Mr. Estrada 
is willing to answer these questions, I have to stand with my colleague 
from Idaho--I cannot cast a vote until I know a little bit more about 
the judicial philosophy. This is not a Republican or Democratic 
request. This is a senatorial request. This is what the Senate is 
supposed to be doing.
  I urge our colleagues and friends on the other side of the aisle, do 
whatever you can to persuade the White House and the Justice Department 
to level with the Senate, to level with the American people, to provide 
the information that will enable us to make an informed decision and 
fulfill our constitutional responsibility.
  It seems to me to be the very minimum we can ask. It certainly is 
what has been provided and asked for in the past. I hope it will be 
forthcoming, that the letter sent by Senators Daschle and Leahy will 
get a favorable response, we will be able to get the information the 
Judiciary Committee has requested, that many Members feel we need, and 
we can move on. We can tend to the people's business, including the 
need to reform our foster care system to try to save the lives of so 
many children who would otherwise be left behind and left out of the 
great promise of America.
  The PRESIDING OFFICER (Mr. Alexander.) The Senator from Missouri.
  Mr. TALENT. When I was growing up, there was a tradition in the 
Senate that I observed as an outsider, of course, about how the Senate 
handled its constitutional function of giving advice and consent for 
presidential

[[Page 4327]]

nominees. The Senate pretty much understood on the basis of a 
bipartisan consensus that its role was secondary, that its power was a 
check rather than a primary power to appoint people, either to the 
executive branch or to the judicial branch. I observed that Senators 
pretty much voted to confirm Presidential nominees if they believed 
those nominees were competent and if they believed those nominees were 
honest, and they did not inquire too greatly of the nominees' 
philosophy for the executive or into the nominees' jurisprudence for 
the legislative. There would be flaps or personal problems, but 
basically that was the role the Senate played and the traditional 
understanding of its constitutional function.
  Unfortunately, I think we will all agree, that consensus has broken 
down over the last few years. We will all agree that both sides have 
some responsibility for that consensus breaking down. What we are 
experiencing now from the Senators who are opposing and filibustering 
the Estrada nomination is so extreme given the past traditions of the 
Senate that it threatens the spirit and, I argue, even the letter of 
the Constitution, and it threatens the ability of the Senate and the 
integrity of the Senate to do the work of the people.
  Let me go into that a little bit. First of all, I take it from my 
understanding of the debate that the Senators who are opposing Mr. 
Estrada are not questioning his abilities as a lawyer or his honesty or 
integrity as an individual. I appreciate that. This is not a personal 
attack on Mr. Estrada. No one is saying he is unqualified as a lawyer. 
No one is saying he is dishonest in terms of his professional dealings 
or dishonest as a man and, indeed, you could not say that based on his 
experience which is clearly well known after the hours of debate we 
have put into this nomination.
  He arrived in this country knowing very little English. He worked his 
way up, if you will. He was a leader in his law school class. He was on 
the Law Review. An achievement he was able to get, as not all of us 
were able to get, he clerked for an outstanding judge, a Democratic 
appointee on the Second Circuit, and then on the Supreme Court, and did 
an outstanding job in the Solicitor General's Office, according to his 
supervisors of both parties.
  No one is questioning his abilities or honesty, as I understand it. 
As I understand, no one is saying they think he is not competent or 
honest in the sense of the standard that traditionally had been 
applied. What they are saying is this. They are saying, first of all, 
they will vote against the nominee, even to an appellate court, because 
they disagree with that nominee's jurisprudence, which is, itself, a 
step beyond what the Senate ever did in the past. But they are going 
beyond that. They are saying they will vote against the nominee, even 
to an appellate court, not just because they disagree with his 
jurisprudence, but because they suspect they might disagree with his 
jurisprudence.
  And if he answered questions no other nominee who worked for the 
Solicitor General's Office has ever been expected to answer, and which 
they should not have to answer, given the need for the integrity of the 
executive branch, but they are going beyond that.
  The opponents on this floor of the Estrada nomination are not just 
saying they will vote against nominees if they disagree with their 
jurisprudence, or vote against them if they suspect they might disagree 
with their jurisprudence; they are saying they are not even going to 
allow a vote on a nominee even to an appellate court if they suspect 
they might disagree with that nominee's jurisprudence.
  I ask my colleagues, I beg my colleagues who are opposing this 
nomination, to consider what this new standard, if it were to be 
adopted by the Senate as a whole, would mean for the Constitution, 
would mean for the Senate, and would mean for Estrada, as well.
  As I said, the Constitution assigned, we can all agree, the primary 
power of appointment to the President. Yet the Constitution shares some 
of that power with the Senate and that is not unusual. Even though we 
have a separation of powers, there are a number of instances where the 
executive is given a little legislative power, or the legislative is 
given a little executive power. For example, when the President is 
given the power to negotiate treaties and conclude them with foreign 
countries but subject to the requirement that two-thirds of the Senate 
ratify those treaties. So the Senate is given, in effect, a little 
executive power.
  The Framers of the Constitution knew how to provide for the Senate to 
exercise the executive power they gave it by a supermajority vote when 
they wanted to provide that.
  When the Framers said, we want to actually take a little bit more 
power away from the President, they said, we are not only going to 
require that the Senate ratify treaties but we are going to require 
that they ratify them by a supermajority vote, a two-thirds vote. The 
Framers knew how do to that when they wanted to do it. The assumption 
is they didn't want to take that extra measure of power away from the 
executive. Yes, they wanted to share the power of appointments with the 
Senate, as several colleagues have said. They are correct in saying 
that. The Senate is a partner in this process. But according to its 
traditions, it has always been a junior partner. According to the 
spirit of the Constitution, it exercises this partnership by a majority 
vote and not a supermajority vote.
  If we adopt the tradition in this body that we will filibuster 
nominees, if we suspect we might disagree with their jurisprudence, we 
are in effect saying it will require 60 votes for this body to confirm 
a judicial nomination. That, I submit to you, is a usurpation of the 
executive authority as granted under the Constitution. It is a shift in 
constitutional authority away from the executive and to the 
legislature--and not even to the Congress as a whole but to the Senate.
  As much as I stand up for the Senator from New York in saying as much 
as we have to stand up for the prerogatives and the authority of the 
Senate under the Constitution, our first responsibility is to the 
Constitution and to the distribution of powers, as the letter of the 
Constitution indicates and as the traditions of this Senate have always 
confirmed.
  I am deeply concerned. If we were to adopt the standards being 
applied here to Miguel Estrada across the board, we would be doing 
something which is unconstitutional and which violates the spirit and I 
believe the letter of the Constitution as well.
  My second concern is that this kind of a filibuster under these 
circumstances will poison the operation of the Senate on other matters. 
The filibuster, whatever you think of it, is a power that should be 
reserved for issues of only the greatest seriousness. I am not saying 
an appellate court nomination isn't important, it is important, but it 
is an appellate court nomination. Mr. Estrada, if he is confirmed to 
this post, whatever my colleagues may suspect his jurisprudence might 
lead him to do, is not going to change settled interpretations of the 
Constitution of the United States that can only occur on the Supreme 
Court level. And to haul out the nuclear weapon, if you will, of a 
filibuster on an issue that, while important, is not of the first 
letter of importance undermines the integrity and the ability of this 
Senate to pull together on issues that are of the first importance.
  I agree with the Senator from New York. We need to get on to issues 
of health care. We need to get on to issues of education. We need to 
get on to issues of defense and of tax relief to create jobs. All of 
these things are very important. That is why we should not filibuster 
an appellate court nomination. Allow a vote at least, I ask my 
colleagues.
  Let me say finally that I am concerned about the effect of this on 
the justice that we as a body and as Americans owe to the man whose 
interests and whose career are at stake here. Miguel Estrada is, after 
all, a person. Sometimes the great forces of history, of cultural 
division, and focus on personal disputes involving broader issues come 
to focus on one man or one woman. We have seen that happen

[[Page 4328]]

sometimes in our history. And it may be unavoidable. But we should 
always keep in mind that we are dealing with a human being, a person 
who has done his best by his life to keep his obligations to his 
colleagues and to his country--a person who has excelled by any 
standard. None is questioning that--a person who has conducted himself 
with integrity and has done so in a town where it is sometimes 
difficult to conduct yourself with integrity. And his professional 
future is hanging, if you will, on a thread. We ought to consider what 
is just to him. He deserves this post. He has worked hard for it. His 
qualifications qualify him for the post. We should at least give him a 
vote.
  That is why the newspapers and the opinion of this country for the 
last week or so have been decidedly in favor, if not of Mr. Estrada and 
I think most of the opinion of the country has indeed be in favor of 
confirming him for the reasons I have indicated--but at least in favor 
of giving him a vote.
  I am not going to read all of the editorials, certainly. I ask 
unanimous consent to have printed in the Record an editorial of 
February 7, 2003, from the St. Louis Post-Dispatch, one my hometown 
newspapers, and also a letter--they may already be in the Record--and 
one in the New York Daily News by Gov. George Pataki.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the New York Daily News, Feb. 17, 2003]

                   The Senate Should Confirm Estrada

                       (By Gov. George E. Pataki)

       Miguel Estrada, President Bush's nominee for the District 
     of Columbia Circuit Court of Appeals, is a New York success 
     story--the embodiment of all that has made our state a beacon 
     of freedom and opportunity around the globe.
       His life is an inspiration to us all, especially to the 
     children of new immigrants. Yet his nomination has gotten 
     caught up in the all-too-familiar Washington game of partisan 
     politics. That's wrong. When the Senate returns from its 
     break, it should act quickly to end this senseless bickering.
       Born in Tegucigalpa, Honduras, Estrada came to the U.S. in 
     1978. Just 17, he could barely speak English. He proved to be 
     a quick study. Just five years later, he graduated with 
     honors from Columbia University.
       After a three-year stint at Harvard Law School, where he 
     served as editor of the prestigious Harvard Law Review, 
     Estrada came home to New York to clerk for a federal 
     appellate judge, Amalya Kearse, who was appointed by 
     Democratic President Jimmy Carter.
       After a clerkship with the Supreme Court--one of the 
     highest honors a young lawyer can receive--Estrada spent 
     three years as a federal prosecutor in New York City. He 
     argued numerous cases before appellate courts and 15 cases 
     before the Supreme Court. No wonder the American Bar 
     Association gave him its highest rating: well-qualified.
       Estrada's compelling life story and superlative 
     qualifications explain why his nomination has elicited such 
     broad support. No fewer than 18 Hispanic organizations and 
     countless individuals have called on the Senate to confirm 
     him. Herman Badillo, a former Democratic congressman from New 
     York, calls him ``a role model, not just for Hispanics, but 
     for all immigrants and their children.''
       The League of United Latin American Citizens calls Estrada 
     ``one of the rising stars in the Hispanic community and a 
     role model for our youth.'' And the U.S. Hispanic Chamber of 
     Commerce calls his nomination a ``historic event.''
       Estrada's nomination is equally popular among Democrats. 
     Former vice President Al Gore's chief of staff testifies that 
     he is ``a person of outstanding character and tremendous 
     intellect'' with an ``incredible record of achievement.'' 
     Former President Bill Clinton's solicitor general describes 
     Estrada as ``a model of professionalism and competence.''
       The support for Estrada is as deep as it is wide. Yet some 
     Democrats in the Senate are filibustering his nomination--
     talking it to death and refusing to let their colleagues 
     vote. That's just wrong. In fact, in the two centuries since 
     our nation was founded, that has never happened to a nominee 
     for the federal appellate courts.
       Simply put, the Senate should do its job, put aside 
     partisan politics and vote on Estrada's nomination. It's just 
     common sense--but unfortunately, common sense all too often 
     gets shoved aside by party politics in Washington.
       Here in New York, we know that now more than ever we must 
     put aside partisan differences and work together for the best 
     interests of all New Yorkers. We also know that the efforts 
     of new immigrants or their children who, through hard work, 
     achieved the American dream--New Yorkers like Badillo, 
     Secretary of State Powell and Estrada--must be rewarded and 
     emulated, not held hostage to party politics.
       Estrada has reached the pinnacle of his profession and is a 
     credit to the people of New York. When the Senate finally 
     confirms him, I have every confidence he likewise will prove 
     a credit to America's judicial system.
                                  ____


               [From the Washington Post, Feb. 18, 2003]

                               Just Vote

       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 to 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 materials, 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 to 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.
                                  ____


            [From the St. Louis Post-Dispatch, Feb. 7, 2003]

                       A Filibuster Is Not a Fix

       The process for appointing federal judges is badly broken. 
     A filibuster won't fix it.
       Democrats are trying to decide whether to filibuster the 
     nomination of Miguel Estrada to the powerful federal appeals 
     court for the District of Columbia. They consider Mr. Estrada 
     a stealth conservative who is being groomed for the U.S. 
     Supreme Court as a Hispanic Clarence Thomas.
       The Democrats' fear may turn out to be valid. But the 
     filibuster is the parliamentary equivalent of declaring war. 
     Instead of declaring war, the Democrats should sue for peace 
     and try and to fix the process.
       The Senate's confirmation process is not supposed to be a 
     rubber stamp. Judicial nominees have been defeated for 
     political reasons--often good political reasons. The Supreme 
     Court is a better place without Clement Haynsworth, Harrold 
     Carswell and Robert Bork. But ever since Mr. Bork, the 
     process of advise and consent has become attack and delay.
       During Bill Clinton's presidency, the GOP-controlled Senate 
     held up highly qualified nominees for ideological reasons. 
     Then, during the two years of Democratic control, the Senate 
     held up highly qualified nominees from President George W. 
     Bush. Now the Republicans are ramming through judges as fast 
     as McDonald's sling burgers.
       The only consistent principle in this recent Senate history 
     is that turnabout is fair play. That's a poor way to choose 
     judges.
       Mr. Bush, like Ronald Reagan, considers conservative 
     ideology a key qualification for judgeship. Unfortunately, 
     Senate Democrats have set upon highly qualified nominees--
     such as Michael McConnell, a brilliant law professor, who was 
     eventually confirmed--as wolfishly as they have upon weaker 
     nominees, such as Charles Pickering.
       In an ideal world, Mr. Bush would realize that the 
     lackluster Mr. Pickering, a friend of

[[Page 4329]]

     Sen. Trent Lott, R-Miss., raises divisive racial questions. 
     In an ideal world, the president would nominate the best-
     qualified legal minds, not ideologies.
       But in the real world, Mr. Pickering is acceptable and Mr. 
     Estrada is well-qualified. Mr. Estrada is an immigrant from 
     Honduras who went to Harvard Law School, clerked on the 
     Supreme Court and worked in the Solicitor General's office. 
     Democrats, frustrated by the absence of a paper trail, and 
     Mr. Estrada's sometimes-evasive answers on issues such as 
     abortion, tried to get legal memos that Mr. Estrada wrote 
     while in the Solicitor General's office. But both Democratic 
     and Republican solicitors general have urged that the memos 
     be kept private so that future solicitors general receive 
     candid views from their staff.
       In short, the Democratic position doesn't justify a 
     filibuster. Instead, Democrats should reach out to 
     Republicans and try to develop a bipartisan truce that gives 
     judges prompt, but thorough, hearings that will speed the 
     important process of filling the many vacancies on the 
     federal bench.

  Mr. TALENT. Mr. President, I want to read an editorial from the 
February 18 issue of the Washington Post. It sums up the case better 
than or as well as I can:

       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 to prevent the full Senate 
     from acting.

  We all know a filibuster is underway here, an obstruction tactic.
  That is not from the editorial. That was my editorial comment.

       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 . . .

  I ask you to listen carefully to this.

     . . . 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 ask my colleagues to consider carefully--and I know there have been 
abuses of this process on both sides of the aisle--but I ask my 
colleagues to consider carefully whether, in the name of the 
Constitution, in the name of the obligation of this Senate to go on to 
other things and resolve them, in the name of comity and the traditions 
of this body, the Washington Post isn't right, and whether it isn't 
long past time to stop these games and vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, first, let me respond to my colleague and 
friend from the State of Missouri which adjoins my home State of 
Illinois.
  I say to him, I do not disagree with many of the things he said. This 
debate over Miguel Estrada should not be about the person. I have met 
him. I sat down in my office with him. He has a very impressive life 
story to tell having come to the United States as an immigrant when he 
was about 17 years old, with a limited command of English. The man had 
some extraordinary achievements. He went on to become the editor of the 
Law Review at Harvard, served as a member of the Department of Justice, 
worked at the Supreme Court as a clerk. He is with a major, prestigious 
law firm. You would really be hard pressed to find anything in his 
background that is anything short of impressive. That is not the issue.
  The fact that he is Hispanic, I say to my friend from Missouri, in my 
mind, is a plus in many respects. It certainly is not a minus. I was 
honored to name a Hispanic to the district court in Chicago when I had 
that opportunity a few years ago. I believe our judiciary should 
reflect the diversity of the United States. And if this is an example 
of affirmative action by the White House to put a Hispanic on the DC 
Circuit court, I say: Three cheers. I think it is the right thing to 
do.
  It has nothing to do with his Hispanic heritage. As I said, that is a 
plus. There is nothing negative about that in any respect. What is at 
issue, and the reason the Senate has been tied up with this nomination, 
is the fact that Mr. Estrada has not been forthright in explaining who 
he is in terms of what he believes. And that is a fair question.
  If we are going to give someone a lifetime appointment to the DC 
Circuit court--which is not just another court for the District of 
Columbia, but a major court in our Federal judicial system--I think it 
is not only reasonable, it is imperative that the Senate ask basic 
questions of Mr. Estrada. And we did. Time and time again, he stopped 
short of answering because that is now the drill at the Department of 
Justice.
  The nominees go through this very rigorous training about how to 
handle a Senate judicial hearing. I am told they have videotapes and 
play them back and they ask them the questions most often asked of 
nominees. They school them in the answers to give to not reveal, at any 
point, what they really think, trying to get away with saying as little 
as possible, trying to get through the hearing with a smile on their 
face and their family behind them, and trying to get through the Senate 
without any controversy.
  There is nothing wrong with that if a person has a history that you 
can turn to and say, well, this man or this woman has been on the bench 
for so many years and has handed down so many opinions. And we have 
read them. We know what they believe. They have expressed themselves 
over and over again. Or if they have published law journal articles, 
for example, that explain their point of view, that is all there for 
the record. You could draw your own conclusions.
  But in the case of Mr. Estrada, none of that is there. He has not 
done that much in terms of publications nor involvement in cases. We 
said to him: Help us understand you. If you will not answer the 
question directly, let us at least look at the legal documents you 
prepared so we can see how you analyzed the law.
  That has been done before. Other nominees have offered that 
information. Mr. Estrada said: I would be happy to share it with you as 
well. But the Department of Justice stepped in and the White House 
stepped in and said: No, we will not let the Senate see what Mr. 
Estrada has written as an attorney.
  Why? Why would they want to conceal this information, unless, in 
fact, there is something very controversial and worrisome.
  So we come here today not with any personal animus against Miguel 
Estrada. To the contrary, on a personal basis, he is a very 
extraordinary individual personally, academically, and professionally. 
But we have a right to ask these questions. Let me restate that. We 
have a responsibility to ask

[[Page 4330]]

those questions, to make certain that each man and woman headed for 
this awesome lifetime appointment, this awesome position of 
responsibility, really is the person we want in that position.
  Now, make no mistake, with President Bush in the White House, the 
nominees are more than likely to be Republican, more than likely to be 
conservative, more than likely to be members--proud members--of the 
Federalist Society. I know that. That is the nature of this process, 
the nature of politics. Yet it is still our responsibility to make 
certain they are just conservative and not extreme in their positions. 
We cannot draw that conclusion on Miguel Estrada because he has 
carefully concealed what he really believes. And that is why we are 
here.
  So as a result of focusing on this nomination for 3 straight weeks, 
we have ignored so many other issues that should be brought to the 
Senate. We could resolve this issue tomorrow morning easily.
  Senator Bennett, a Republican, of Utah has come to the floor and made 
a suggestion that I think is eminently reasonable. Let Miguel Estrada 
turn over his legal writings so they can be reviewed by Senator Hatch 
and Senator Leahy. And if they find anything in there of moment, of 
consequence, or of controversy, let them follow through with the 
questions or, if necessary, a hearing, and let's be done with it, a 
vote up or down.
  Senator Daschle came to the floor today, the Democratic leader, and 
said that would be perfectly acceptable. We would have the information, 
and then we could reach our conclusion. And in the process we could be 
protecting our responsibility as Members of the Senate.
  It has nothing to do with Miguel Estrada personally, but it does have 
something to do with our constitutional authority and responsibility to 
review each nominee.


                                Ephedra

  Mr. President, I would also like to address another issue that is 
totally unrelated.
  On February 14, a Friday, I stood in this spot and spoke about an 
issue, one that has been on my mind for almost 6 months, an issue which 
worries me, concerns me, because it relates to the health and safety of 
American families.
  On that day, I challenged the Secretary of Health and Human Services, 
Tommy Thompson, under his authority to protect American families, to 
protect them against a nutritional supplement known as ephedra. You 
will find this supplement in a lot of diet pills, pills that are being 
sold over the counter as a supplement or vitamin or food product. They 
are sold as a way to lose weight or increase your energy or 
performance.
  People come in and buy them, with no restriction on how old you have 
to be or what your health is or what might interact with these 
supplements. And people buy those and find out, in many instances, that 
not only don't they work, they are dangerous.
  I have challenged Secretary Thompson for 6 months--6 months--to take 
these dangerous products off the market, and he has not done so. That 
was February 14.
  On February 16, a pitcher from the Baltimore Orioles dropped dead 
during training. He had cardiac arrest, and the coroner who examined 
his body afterwards--those who did the autopsy--disclosed the fact that 
he had used these supplements with ephedra. That was 2 days after I had 
given that speech.
  Time has run out for Steve Bechler and for many like him when it 
comes to protection from the harm of dangerous dietary supplements 
containing ephedra. We cannot bring Steve Bechler or my own constituent 
in Lincoln, IL, Sean Riggins, back. But we can fight to make sure this 
dangerous product is taken off the market immediately.
  Sean Riggins was a 16-year-old boy. And about 4 weeks after I held a 
hearing in Washington, he went into a convenience store in Lincoln, IL, 
a small town, and bought--off the counter, with no identification, no 
check--a pill that was supposed to help him to perform better as a 
football player. The pill had ephedra in it. As best we can determine, 
Sean Riggins--this healthy football player, 16 years old--washed down 
that pill with Mountain Dew or some other product with caffeine in it 
and went into cardiac arrest and died. This healthy young man died, 
after taking a pill sold over the counter that contained ephedra.
  I cannot think of another product that has generated so many adverse 
events, so many bad results--some extremely serious, even fatal--and 
yet has failed to generate any response from this Government to protect 
families and individuals buying these products.
  The Food and Drug Administration has received over 18,000 reports of 
adverse events, serious health consequences, from those using ephedra 
and within those 18,000 over 100 deaths. Yet the Food and Drug 
Administration and Secretary Thompson refuse to act. They want to study 
the issue. And as they study, innocent people die.
  Last August, I wrote to Secretary Thompson and urged him to ban these 
products. At that time, Lee Smith, an airline pilot from Nevada, had 
not yet suffered the debilitating stroke that cost him his health and 
his job due to ephedra.
  I again wrote to Secretary Thompson on August 22. At that time, when 
I sent him a letter begging him to do something about these products, 
my constituent, Sean Riggins--that healthy 16-year-old boy in Lincoln, 
IL, who played football and wrestled for his high school team--was 
still alive. He died September 3, after consuming an ephedra product 
called yellow jacket. You will find those by cash registers at gas 
stations and convenience stores across America--kids popping them 
because they think they make them better performers when it comes to 
sports or, even worse, taking these pills and drinking beer, craziness 
that leads to terrible health consequences. And those pills are sold 
over the counter, with no Government control.
  I wrote again, and I spoke directly to Secretary Tommy Thompson in 
September and October. My Governmental Affairs Subcommittee had 
hearings on the dangers of ephedra in July and October.
  I again urged the Secretary, in a letter sent to him less than 1 
month before Steve Bechler of the Baltimore Orioles died. Incidentally, 
did you see the followup articles in the sports pages, as other 
athletes, professional baseball players such as David Wells came 
forward and told his story about how he wanted to lose some weight, and 
he took an ephedra product and his heart was racing at 200 beats a 
minute. He flat-lined. He was almost in cardiac arrest before they 
finally brought him back.
  These are not sickly individuals. These are healthy athletes who are 
taking these products sold over the counter and risking their lives in 
the process.
  Yet the most we can get from Secretary Thompson in response is a 
suggestion that maybe we need a warning label. When the reporters asked 
him this past weekend about Steve Bechler of the Baltimore Orioles, his 
death because of ephedra, the Secretary was quoted as saying: ``I 
wouldn't use it, would you?''
  Well, I must say to the Secretary, this is not a matter of his 
personal preference. It is not a matter of whether as a consumer he 
would buy the product. It is a matter of his personal responsibility, 
his responsibility as Secretary of Health and Human Services to get 
this dangerous product off the shelves of American stores today and to 
protect families.
  I am not the only person calling for this ban on ephedra products. 
The American Medical Association, representing over 200,000 doctors, 
called on Secretary Thompson to ban ephedra products. They didn't do it 
last week after Steve Bechler died. No. They did it over a year ago 
after Canada had banned this product for sale in their country. They 
went to Secretary Thompson and said it is dangerous to sell in the 
United States. He has done nothing.
  Let me tell you another thing you might not know. The U.S. Army has 
banned the sale of ephedra in their commissaries worldwide after 33

[[Page 4331]]

 ephedra-related deaths occurred among American servicemen. Does this 
make any sense? We believe as a government that we need to protect the 
men and women in uniform and so we ban the sale of these products at 
commissaries across the world, and yet the Secretary of Health and 
Human Services and the Commissioner of the Food and Drug Administration 
will not ban the sale of these products in convenience stores and 
drugstores and gas stations across America.
  When you ask him about it, the Secretary says: I am studying it. I 
have a group called the RAND Commission that is going to study it.
  With all due respect, we don't need another study. The Food and Drug 
Administration has received over 18,000 adverse reports about ephedra. 
The FDA could do followup on the most serious ones. In fact, the FDA 
did commission a review of adverse reports several years ago. That 
review by Drs. Haller and Benowitz established that 31 percent of the 
reports were definitely or probably related to ephedra and an 
additional 31 were deemed to be possibly related.
  We understand what we are up against. Ephedra is a danger. It is so 
dangerous that when it was used in its synthetic form with caffeine, 
that was banned over 15 years ago. They said you couldn't sell a drug 
in America, nor could you sell an over-the-counter drug product in 
America that contained ephedra and caffeine because, put together, it 
is a dangerous and sometimes lethal combination. But yet if you step 
back from the over-the-counter drugs and call it a nutrition 
supplement, a vitamin, a food, you are totally exempt from that 
prohibition. You can combine those two lethal substances, ephedra and 
caffeine, and sell them with impunity. Does that make any sense? Is 
that protecting consumers across America? Is that what you expect from 
your government?
  Certainly it is not what I expect. Many of these companies say it is 
a natural product. Ephedra is naturally occurring. That is no defense. 
Arsenic is a natural product. Hemlock is a natural product. That 
doesn't mean that they are safe. In fact, they are dangerous.
  We have seen a lot of studies that have come out about ephedra. We 
know what needs to be done. Many States have already taken action. 
Because the Federal Government has failed to act, over 20 States have 
enacted restrictions on the sale of ephedra-containing products.
  Incidentally, if you think these products are something you have 
never heard of, the leading sales of ephedra products are under the 
brand name Metabolife 365. You have seen them advertised on television 
and in magazines. Every time you walk into a drugstore and convenience 
store, you find: Metabolife tablets help you lose weight. Look 
carefully. Many of them contain ephedra, this lethal drug which has 
killed so many people.
  Suffolk County, a week or so ago in New York, decided to ban this 
product as well after a 20-year-old named Peter Schlendorf died in 
1996, and others suffered serious consequences. They understood, as the 
U.S. Army, Canada, Britain, Australia, and Germany, that action had to 
be taken to protect the residents. The National Football League, the 
NCAA, and the International Olympic Commission have reached the same 
conclusion, banning the use of this product by athletes.
  I wrote to the Baseball Commissioner, Bud Selig, last week and to the 
Baseball Players' Association urging them to follow suit. The question 
isn't whether these individual organizations will show responsibility. 
The question is whether this Government will accept its responsibility.
  I don't know Secretary Thompson that well. I have met him a few 
times. He is a very likable person. He certainly has had a 
distinguished public career in the State of Wisconsin, serving as a 
legislator and Governor of the State for many years, one of the most 
popular elected officials in its history. Everyone tells me this man 
really understands public service. I believe it.
  This really seems to be a blind spot. When I talked to Secretary 
Thompson on the phone about these products, he said: How are we going 
to stop these fellows from selling these products and endangering 
people? I said: Mr. Secretary, you can stop them. You have the 
authority to stop them.
  Time passes and nothing happens. I understand this industry is 
powerful. I have heard from them. I have heard from my colleagues in 
the Senate and House who have said: Don't take on these folks in the 
vitamin and nutritional supplement industry. They really have a lot of 
political clout. They do. But for goodness' sakes, if you can't stand 
up to an industry that is selling a lethal product to protect American 
families, why in the world would you take the oath of office to serve 
in the Senate? I think every Member understands that responsibility. It 
goes beyond political fear. It goes right to the heart of your 
political responsibility, the oath of office we all take and one we all 
value so much.
  In closing, I say to Secretary Thompson, you have another chance now. 
It is a chance which I pray you will take. The last time I made a 
speech on the floor of the Senate about this issue, Steve Bechler of 
the Baltimore Orioles, a man in his early twenties, a promising athlete 
with a great future ahead of him, was still alive. Sadly, he is not 
alive today. He took this product and he died as a result. Others will, 
too.
  That story, that tragic story of Steve Bechler, Sean Riggins, and so 
many others will be repeated over and over again. This industry may 
have political clout, but it does not have a conscience. It is up to 
the Secretary, as head of the Health and Human Services Department, to 
accept his responsibility to protect American families. A warning label 
is not enough. You cannot get by with putting a label on this product, 
saying: Caution, use of this product may cause stroke, a coronary 
event, or death. Why in the world would you allow such a product to be 
sold over the counter, unregulated in terms of the age of the buyer, 
unregulated in terms of the dosage? How in the world can you justify 
that kind of a thing?
  The Secretary needs to accept his responsibility, and if he does, I 
will be the first to applaud him. But until he does, stay tuned. You 
will continue to hear these speeches on the floor from me and others 
while helpless victims across America fall because of their consumption 
of this deadly product.
  Mr. REID. Will the Senator yield for a question?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. As the Senator knows, the Senate has been tied up in the 
matter of Miguel Estrada for 9 or 10 days. From what the Senator said, 
I don't know much about the product, but he has made a very persuasive 
argument. It seems to me if the administration and the Secretary, as 
part of the administration, refuses to do anything administratively, 
maybe we could well use some Senate time debating this issue. Maybe 
there should be a moratorium put on the sale of this until further 
information is obtained on it. I make that suggestion.
  My direct question, if the Secretary refuses to do something 
forthwith, wouldn't we well use the time that is now being spent on 
this nomination talking about this product that has killed people as 
the Senator has related?
  Mr. DURBIN. The Senator is absolutely right. In fact, we not only 
could, we should. We should accept that responsibility. We do have this 
Government which has three coequal branches. If the executive branch 
and Secretary Thompson refuses to use the authority he has under the 
law, frankly, I think we should ban the sale of this product in the 
U.S.
  As the Senator knows, we have been tied up for 3 weeks because Miguel 
Estrada refuses to disclose legal writings he has made. Even Republican 
Senators have suggested that he should.
  We have waited for Republicans to understand that with more 
information, we can put this behind us and move on to other important 
business--not just questions about health and safety, but questions 
about the economy of this Nation, issues on which we ought to be 
debating and acting.

[[Page 4332]]

  In closing, I am just going to ask Secretary Thompson again to take 
this very seriously. I hope we don't have to read about more athletes 
and other unsuspecting individuals and children who lose their lives as 
a result of these dangerous products. I say to any citizens following 
this debate, please think twice before you use a product containing 
ephedra. There are too many cases of death and serious health 
consequences for people who thought they were taking an innocent little 
pill that can be sold over the counter at a convenience store. In fact, 
many have turned out to be lethal doses that have killed or caused a 
great deal of harm.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. TALENT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. NELSON of Florida. Mr. President, the courts provide the 
foundation upon which the institutions of government in our free 
society are built. Their strength and legitimacy are derived from a 
long tradition of Federal judges whose knowledge, integrity and 
impartiality are beyond reproach.
  The Senate is obligated by the Constitution--and the public 
interest--to protect this legacy and to ensure that the public's 
confidence in the court system is justified and continues for many 
years to come.
  As guardians of this trust we must carefully scrutinize the 
credentials and qualifications of every man and woman nominated by the 
President to serve on the Federal bench.
  The men and women we approve for these lifetime appointments make 
important decisions each and every day, which impact the American 
people. Once on the bench they may be called upon to consider the 
extent of our right to personal privacy, our right to free speech, or 
even a criminal defendant's right to counsel. The importance of these 
positions and their influence must not be dismissed.
  We all have benefitted from listening to the debate about Miguel 
Estrada's qualifications to serve on the D.C. Circuit.
  I very much respect those Senators who desire to have additional 
information about Mr. Estrada's personal beliefs. Their efforts reflect 
a sound commitment to the Senate's constitutional obligation to advise 
and consent.
  At the same time, I am troubled by those who have suggested that some 
Senators are anti-Hispanic because they seek additional information 
about this nominee. Poisoning the debate with baseless accusations 
demeans the nomination process.
  After reviewing Mr. Estrada's personal and professional credentials--
including personally interviewing the nominee--I believe he is 
qualified to serve on the D.C. Circuit Court--and, I will vote in favor 
of his nomination.
  A Federal appellate judge's power to decide and pronounce judgment 
and carry it into effect is immense and comes with a moral and legal 
obligation to conform to the highest standards of conduct.
  Federal judges must possess a high degree of knowledge of established 
legal principles and procedures and must also be impartial, even 
tempered and have a well-defined sense of justice, compassion and fair 
play.
  In addition, a judge must have the integrity to leave legislating to 
lawmakers. Judges must have the self-restraint to avoid injecting their 
own personal views or ideas that may be inconsistent with existing 
decisional or statutory law.
  I believe Mr. Estrada possesses the knowledge and skills needed to be 
a successful court of appeals judge. Few would argue with his academic 
credentials, litigation experience or intelligence.
  And based on my conversation with him, and those who know him well, I 
believe he respects--and will honor--his moral and legal obligation to 
uphold the law impartially.
  However, should Mr. Estrada someday be considered for a position on 
the Supreme Court--as some have suggested he could be--I believe 
further inquiry not only will be justified, but necessary.
  While appellate judges are constrained to a great degree by 
precedent, and by a check on their power by the Supreme Court, justices 
on the High Court have greater latitude to insert their own ideological 
viewpoints.
  Mr. Estrada agreed wholeheartedly with this point when we discussed 
his nomination.
  Make no mistake; I believe all judicial nominees should be completely 
forthcoming during the confirmation process.
  Mr. Estrada has argued that he's satisfied a minimum threshold of 
disclosure, and that revealing additional information about his 
personal ideological beliefs may compromise his image of impartiality--
if he eventually is seated on the federal bench.
  I disagree with his approach, because it leads to the suspicion and 
mistrust--like that which now engulfs us.
  Furthermore, I do not believe a similar argument reasonably can be 
made by a nominee to the Supreme Court. Ideology can be central to the 
High Court's decisions. As a result, absolute disclosure by Supreme 
Court nominees is necessary to protect the public interest.
  In sum, while I believe Mr. Estrada could have been more forthcoming 
in order to avoid this controversy, my conclusion is that he is 
qualified to serve on the D.C. Circuit.
  Should he come before the Senate as a nominee to the Supreme Court, 
he must be willing to provide additional information about his personal 
beliefs.

                          ____________________