[Congressional Record (Bound Edition), Volume 149 (2003), Part 4]
[Senate]
[Pages 4756-4790]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now go into executive session and resume consideration of 
Executive Calendar No. 21, which the clerk will report.
  The assistant legislative clerk read the nomination of Miguel 
Estrada, of Virginia, to be United States Circuit Judge for the 
District of Columbia.
  The ACTING PRESIDENT pro tempore. The Senator from New Jersey.
  Mr. CORZINE. Mr. President, for the past several weeks, as we have 
heard this morning, this body has done very little beyond the debate on 
the nomination of Miguel Estrada. Hour upon hour, day upon day, week 
upon week, the debate has continued. We have heard every argument there 
is to make on both sides of the issue. We have heard them from just 
about every Senator, and we have heard them over and over. It has been 
pretty repetitious.
  I don't mean to diminish the importance of this debate about a 
single, very important job. After all, it goes to the heart of the 
Senate's role under the constitutional system of government. The 
question is whether this constitutionally responsible body will be 
diminished to such an extent that we just become a rubberstamp for 
White House judicial nominations; that is, whether we will agree to 
automatically confirm nominees even if they refuse to answer publicly 
the most basic of our questions on their jurisprudential perspectives. 
It is hard to understand how we can give a lifetime appointment to a 
job without having a job interview.
  This is an important debate. All of us believe that. That is why we 
have had 3 weeks of consideration. It is one that reaches well beyond 
the specifics of the individual candidate. It deserves our careful 
consideration. The Constitution charges the Senate with the 
responsibility to provide advice and consent on judicial nominations. 
Those of us on this side will attend to that responsibility.
  Of all the issues facing our Nation at this most challenging time in 
our history, there are other--certainly in my view and I suspect the 
view of most of my colleagues--issues that are of a higher priority. It 
is a profound mistake on the part of the majority to insist on staying 
on this nomination indefinitely while Mr. Estrada and the 
administration, with all due respect, continue what some would term 
``stonewalling'' while there are so many vital issues our Congress 
should be addressing.


                              The Economy

  Today, I will focus in particular on the problem, along with the 
drastic, dramatic threat of terrorism we face daily and the prospect of 
war with Iraq, which we heard the President talked about last evening, 
that is probably uppermost in the minds of my constituents in New 
Jersey and, I suspect, across the country, and that is the state of our 
economy. It is in serious need of attention.
  I have been listening to New Jerseyans from around the State, from 
all walks of life, all ethnic, religious, racial backgrounds, the long-
term unemployed, to manual laborers, to midlevel managers, to CEOs, to 
retirees and soccer moms. For just about all of them, there is a 
tremendous sense of anxiety with respect to the state of our economy 
and their families' economic security. People are concerned about 
whether they will have a job, whether their savings will be there when 
they retire, whether they will be able to pay for their college 
educations, whether they will be able to have health care. There are 
serious concerns, flat-out kitchen table concerns for all Americans. I 
know that is the case in my home State.
  An anecdotal perspective on this country's anxiousness has now been 
backed up by hard statistics from the conference board released this 
week. Sometimes we divorce these statistics from the reality. I 
certainly see it in people's faces and the words, but we saw it 
actually monitored in a statistic released by the conference board this 
week. We saw consumer confidence drop from 78, almost 79 percent, of 
the population last month to 64 percent. That is the lowest level since 
October of 1993. That is probably one of the sharpest drops in history; 
I did not check the actual number, but far greater than post-September 
11, and it is reflective of a dramatic undermining of the strength of 
well-being felt by most Americans.
  Americans around the country are deeply concerned about our Nation's 
economy. They have a good reason to be. After all, since January 2001, 
the number of unemployed has increased by nearly 40 percent--almost 8.5 
million people. About 2.5 million private sector jobs have been lost in 
that period, and there are now about 2.5 job seekers for every job 
opening in America. Think about that, 2.5 people applying for every job 
now available.
  Not only have the number of unemployed Americans increased, those out 
of work are now jobless for longer periods of time. Over the past year, 
the average number of weeks individuals have spent unsuccessfully 
seeking work has increased by about a month, and 20 percent of the 
unemployed have been looking for work more than 6 months. There are 1 
million of these long-term unemployed workers in

[[Page 4757]]

America and almost 100,000 falling off the rolls for unemployment 
insurance benefits each month. Just slightly fewer than 100,000 each 
month are dropping off the benefits because they can't find jobs.
  While there are no great and solid statistics on it, there are a lot 
of people dropping out of the job market. The job market is not 
growing, and it is one of the reasons--the statistics show the 
unemployment rate certainly up dramatically and skyrocketing--a lot of 
people have just stopped looking. The lack of jobs has also slowed wage 
growth. Recently, only those workers with the very highest of incomes 
have experienced any wage increases in the economy, any wage increases 
at least that have outpaced inflation. For lower wage earners, that 
growth has absolutely stalled to zero. That is not, obviously, helping 
create the demand that will drive our economy and make a real 
difference in people's lives.
  The Bush administration's record on job creation is on track to be 
the worst in 58 years. In fact, to just equal what transpired during 
the Eisenhower administration, which currently has the worst record, 
you would have to create 96,000 new jobs each month starting today and 
continuing each month for the remainder of this President's term; 
96,000 is a lot of jobs to create, particularly when we have been 
losing jobs at a rate almost that fast each month.
  It is extraordinary what we have to do to turn the economy around. 
Without a significant increase in job creation, we will have the worst 
4-year record in the history of any President.
  Unfortunately, there is little evidence to suggest that it will turn 
around. For instance, according to the employment outlook survey 
conducted by Manpower, Inc., which came out this week, which is the 
private sector's best gauge of what is going on in the employment 
market, only 22 percent of America's employers are going to increase 
the number of jobs in the upcoming two quarters. The rest of them are 
either going to reduce jobs or stay the same.
  Mr. President, 22 percent is a very low number by any historical 
measure. I don't understand why we are debating one job on the floor of 
the Senate when we are failing to address the fundamental needs and 
requirements for all American families, their jobs, and their well-
being.
  Of course, the problems with the economy are much deeper than just 
reflected in what is probably the most important place--the job market. 
But there is a lack of confidence in a whole host of sectors in the 
American economy. Our businesses are now operating at only about 75 
percent of capacity. That is well below any of the averages we have had 
historically, which is about 81 percent. Our States are suffering with 
some of the most severe fiscal crises they faced in decades, forcing 
Governors and State legislators to approve steep tax increases. In my 
State, the average increase in property taxes was 7.1 percent. New York 
City increased property taxes 18.5 percent, and they are trying to put 
a commuter tax on so everybody who surrounds the city is helping to 
bail it out with lots of legitimate needs on homeland defense and first 
responders. We are putting unbelievable pressure on those individuals 
who are responsible for State and local governments.
  In the upcoming fiscal year, estimates of the total State deficits 
are roughly $90 billion cumulatively. And we are talking about a $36 
billion tax cut to be administered this year. That is way overblown by 
what is happening at our State and local levels.
  Briefly, I will mention that investors are in a state of shock. The 
stock market has declined dramatically in the last 2 years and couple 
of months, losing almost $5 trillion in value in that period of time. 
Those are unbelievable numbers, but when you translate that into 
401(k)s and IRAs of individuals--at least in my State--I think that is 
about a 40 percent decline in value, on average. It is a huge loss of 
the retirement security that many families have seen happen in their 
financial well-being. When the President's program was announced in 
early January, actually the Dow Jones Industrial Average was supposed 
to be benefited by that program, but it dropped by over 10 percent.
  Our Federal budget, which 2 years ago was projected to enjoy a 10-
year surplus at $5.6 trillion, now looks at record deficits for 
absolutely years to come--as far as the eye can see, some would say--
and will be increasing the public debt over the same horizon as we 
projected that $5.6 billion surplus to $2 trillion worth of public 
debt. That is a fiscal reversal in this country of $8 trillion. It is 
an $8 trillion negative cash swing in the country's cashflow.
  I don't want to tell you what I would do if I were back running a 
company and we had an $8 trillion negative cashflow, but it would 
probably be grounds for change in policies and programs--maybe even a 
change in CEOs.
  When you add all these concerns together, it is clear that the 
economic record of the Bush administration is bordering on abject 
failure. Now the administration's response to the problem is, let's do 
more of the same. Having based its economic policy on large tax breaks 
for the most fortunate among us, the President's response to that 
failed policy is let's stay the course, let's have more tax breaks 
targeted for those with the highest income, and let's run larger budget 
deficits and increase our national debt even more, and let's reduce 
national savings--which is the way we create growth in this country--
even more.
  Whatever happened to the simple view that I think there has been a 
bipartisan sense of, which is that rising tides lift all boats? Are we 
not thinking about the economy in its totality? Why don't we have 
everybody participating? I don't understand why we are sticking with 
policies that look to be not serving the country well.
  As I have suggested, there used to be a business leader who said, 
``If it's broke, fix it.'' It is really nothing more than common sense. 
If things are not working, I think you have to adjust policies; you 
have to think about doing something differently if you are stuck in a 
rut. This administration is doing just the reverse. It has dug itself 
into a hole, and its response is to dig deeper. If we don't challenge 
these policies, the long-term implications could reduce our Nation's 
standard of living not just in the near term but for decades to come.
  At a time when we are challenged with domestic security and 
international security, when we are asking for sacrifice from our men 
and women in uniform, for all of the country to understand we have 
serious challenges to our national security, why we are not 
understanding that this is a time for us to pull together and have 
shared sacrifice is hard for me to understand.
  Frankly, if one projects the cost of the President's tax cut package 
beyond 10 years--if you put that structure in place while the 
demographic bubble of the baby boomers comes into play, frankly--I 
don't care about dynamic scoring--we will end up running, by almost all 
objective analyses, catastrophic deficits, as Chairman Alan Greenspan 
testified just this morning at a House hearing on aging. It will be a 
real challenge to be able to maintain Social Security and Medicare at 
anything similar to today's programs for the future seniors of America.
  We are putting those programs at risk, we are putting our fiscal 
position at risk, if we stay the course with the policies we have 
today. Considering all these facts, unfortunately, it is difficult for 
the administration to provide effective leadership, in my view, on the 
economy because its credibility has been badly eroded. There is a 
tremendous credibility gap, and it results from the repeated use of 
figures and claims that are just badly misleading in many ways. As a 
matter of fact, starting to come out are regular analyses by 
economists, people in the press, and I think one needs to honestly look 
at and challenge what some of these predictions and analyses point to 
and compare them with the facts.
  Let me provide a few examples. The President's rhetoric would lead 
one to believe that his tax plan will provide a meaningful economic 
stimulus, get jobs growing, and it is all about jobs. When you dig into 
the numbers, it turns out that the reality is very different. In fact, 
only $36 billion of the

[[Page 4758]]

President's planned $675 billion on the table would kick in this year--
$36 billion in a $10 trillion economy. It is just an absolute drop in 
the bucket relative to what would be needed to actually drive this 
economy forward, by anybody's measure, any objective measure of what it 
takes to get an economy moving.
  There is virtually no one in Congress I have been able to find who 
would argue that this is a program that will stimulate or revitalize 
this economy, nor does it make sense to argue that the President's 
dividend exclusion somehow is going to stimulate the economy, when its 
real effect will be to shift cash off the corporate balance sheet. If 
corporations are going to invest in jobs and research and development, 
and if they are going to put money to work in building, plant, and 
equipment, they need cash. You cannot go to a bank unless you have 
margin to put down. You need to invest in those things to drive our 
economy.
  By definition, dividend exclusion is going to take money off the 
balance sheets of companies, and the capacity to invest and retain and 
create jobs is going to be diminished. That is why there is this 
argument about whether, if you are going to have a dividend exclusion, 
you ought to at least do it at the corporate side of the income 
statement as opposed to through an exclusion.
  We have heard that from Chairman Greenspan. We see that from almost 
any reasonable economic analysis. Cash on the balance sheets is how you 
get business done, as far as investment and creating jobs. It is almost 
a truism. Instead of driving economic growth, it is actually 
antigrowth, and I think we will end up with less economic stimulus by 
the nature of the structure, even if we thought it was an appropriate 
time for that reform on something other than a revenue-neutral basis. 
In other words, the President's claims about the stimulative impact of 
his proposal, in my view, and I think a vast majority of independent 
analysts, is little more than rhetoric. The reality is quite different.
  There are other elements with which people can deal with regard to 
the credibility of the proposals of the administration claiming 
benefits of this tax cut are going to go--I think this is the quote--
``92 million Americans receive an average tax cut of $1,083.'' That is 
the claim.
  As we are hearing over and over, that is pretty misleading because 
the average tax cut is inflated by the huge breaks going to a very 
narrow set of folks, while a lot of other people are getting very small 
tax cuts. In fact, a half of all taxpayers would get a tax cut not of 
$1,083, but less than $100. This is a difference between mean and 
average, and 78 percent of Americans would get reductions of less than 
$1,000.
  When I went to business school, our required reading included the 
book ``How to Lie with Statistics.'' There are some spinmeisters who 
must have reviewed this work and learned it well, as far as I can tell. 
I am sure Americans understand how averages are put together, and they 
can cover great sins.
  Similarly, the White House likes to claim the amount of income tax 
paid by high-income Americans would actually rise under this proposal. 
We hear this under the arguments of class warfare. When you consider 
the real measure of who benefits in terms of increases in something 
that is simple for people to understand, aftertax take-home pay--the 
stuff people can actually buy groceries with or pay the bills with--it 
turns out that--no surprise--it is the most fortunate who do best under 
the Bush plan.
  The tax reduction for those making $45,000 would amount to less than 
1 percent of their aftertax take-home pay. Those making more than 
$525,000 would see an increase of more than three times that rate, and 
in real dollars those are substantial numbers. But with the aftertax, 
what people can actually use in their everyday lives, the opposite is 
being promoted from what the reality is. Again, there is a credibility 
gap.
  I also argue the credibility gap applies to the administration's 
claims that their plan will help seniors. In fact, over half of all 
dividends paid to the elderly go to seniors with incomes over $100,000. 
I think it is great they planned and saved, but the number of seniors 
out of the roughly 40 million seniors who have incomes over $100,000 is 
about 3.5 million. That is where over half of this dividend exclusion 
benefit would go. By the way, only about a quarter of all seniors would 
receive any benefit.
  To say this is going to somehow vastly improve the position of 
seniors in America is just a gross overstatement. I wish to revert back 
to comments I made earlier. The vast majority of seniors depend on 
Social Security and Medicare as the basis for protecting their economic 
security and their well-being over a period of time, and we are doing 
just the opposite of what is necessary to protect Social Security and 
Medicare in the future years. It is depressing. That is what Chairman 
Greenspan talked about an hour ago in a hearing of the House Committee 
on Aging: the risks to Social Security and Medicare if we do not change 
our economic policies and do something to straighten out our fiscal 
policies in this country.
  Let's consider the administration's claims about how cutting taxes on 
dividends will benefit millions of Americans. The truth is, only 22 
percent of those with incomes under $100,000--this is the vast majority 
of income-tax-paying Americans--reported any dividends in the year 
2000, and the average tax cut from the dividend exclusion for those 
with modest incomes of between $30,000 and $40,000--by the way, the 
average income for individuals in America is something close to 
$40,000--those people are going to get a $29 tax cut associated with 
this dividend exclusion.
  There is a real credibility gap. We are exaggerating and distorting 
the claims about the power of this tax cut. We are talking in terms 
that really do not relate to the vast majority of Americans. I think 
the word is starting to get out. There are serious questions in the 
minds of Americans that at a time when we have the potential for war 
offshore, and we certainly have threats of terrorism at home, why are 
we focusing so much of our benefits of what we are doing with regard to 
tax proposals on such a narrow segment when the broad economy, that 
rising tide that would help everyone, is suffering and there is no 
stimulus going to it?
  This is not the only area, by the way, where some of these claims, 
relative to reality, are setting up a real pattern of a credibility gap 
for the administration. The Secretary of Defense, on a number of 
occasions, argued the cost of war in Iraq might be $50 billion to $60 
billion, something in that neighborhood. But when the President's top 
economic adviser last December--maybe it was in November--to his credit 
suggested this figure was far too low and the actual cost could be as 
high as $200 billion, what happened? He got fired.
  The dissidence between what is talked about in the public relative to 
what the analysis is by a lot of people who are trying to look at this 
in a serious-minded way so we understand what our needs are as a nation 
is troubling to a lot of folks and accentuates this credibility gap.
  It is time for the administration to be more forthcoming about the 
real costs of the impending war. The American people have a right to 
know. I am glad this week we started to see a little of that 
discussion, but even in that context, we need to consider the ongoing 
costs of rebuilding Iraq in the aftermath of a war, presuming that war 
goes the way we expect, presuming that it is relatively short in 
nature.
  Even yesterday's estimate of $60 billion to $95 billion that we read 
about in the papers included only 1 year of reconstruction costs--1 
year--when almost every expert I have heard come before the Foreign 
Relations Committee has talked about a decade, maybe a little bit more, 
but a very long-term program. By the way, all we have to do is think 
about Korea. We are still in Korea 53 years after a war on that 
peninsula.
  The administration should play it straight with everyone about the 
costs we are going to face, just as we ought

[[Page 4759]]

to play it straight with regard to our budget, with regard to tax cuts. 
In my view, we need to talk straight so we can build up the trust of 
the American people and those who watch us around the world. Trust does 
matter. It is important. That is what we are asking corporate America 
to do, to clean up its act. That is why we want accounting statements 
that are true. I think people expect to truly understand what the 
nature of the current situation is as we go forward.
  Actually there is a serious credibility problem that is causing us 
problems abroad as well. I think whether or not we are believed by some 
of the populations abroad is reflected in how much opposition we have 
seen from a lot of countries, not just in their political establishment 
but by literally millions of people who have shown up, probably most 
clearly in Great Britain, which has been our strongest supporter with 
regard to the Iraqi situation. The population is someplace else. Why is 
it we are not able to make our case clear?
  I think part of this comes from credibility in how we frame these 
issues, how the information has been brought forward. All one has to do 
is look at what is going on in the economy to bring about some 
credibility questions, when we get on to some of these issues of 
national security.
  In this context, let me return to the issue of the nomination of 
Miguel Estrada. As with many of the claims about the Bush budget, too 
many of the claims from the other side on this issue simply lack 
credibility. One of those--probably the most irritating--is the claim 
that somehow those who oppose the Estrada nomination, or at least would 
like to have information to prepare ourselves for a vote, are somehow 
anti-Hispanic.
  Does that suggest that groups such as the Congressional Hispanic 
Caucus, the National Association of Latino Elected and Appointed 
Officials, the Mexican American Legal Defense and Education Fund, the 
National Puerto Rican Coalition are anti-Hispanic? I do not get it.
  We are making a judgment about how the constitutional process is 
supposed to work, not talking about whether or not someone is qualified 
or disqualified because of ethnic background. As far as I am concerned, 
these kinds of demagogic attacks on Hispanic groups and those who show 
common cause with them lack credibility. The facts do not meet the 
circumstance, and they are part of an attempt to intimidate opponents 
of Mr. Estrada's nomination to stay silent in fulfilling our rightful 
and responsible position of advice and consent in selecting judges for 
lifetime appointments to the courts of our country.
  It is not going to work, and one reason it is not going to work is 
the American people expect us to do our job--it is very simple--just as 
they expect us to pay attention to the economy and do those things that 
will get us flat off our back and get the economy moving. These things 
really are common sense, in my view. We are spending weeks upon weeks 
debating whether one individual is appropriate for a job because many 
of us do not understand what his views are, and he is unwilling to 
answer questions, unwilling to have a job interview, and we are 
forgetting about the 2\1/2\ million private sector jobs that we have 
lost and the 8 million-plus people who are searching for a job. One job 
versus 8 million.
  I have a very hard time understanding where those priorities come 
out. What is more important to the American people?
  A couple of days ago, I asked the distinguished Democratic leader 
about some conversations he had with the Governors who have been around 
town from both sides of the aisle. We have all met with them. We have 
sympathized with some of their needs. I asked if one single Governor 
lobbied the leader about the Estrada nomination, either to move it on 
or take it off, or what is happening. Not a single one spoke to the 
distinguished leader about that nomination.
  It should not surprise anyone that our Nation's Governors are more 
concerned about the economy and the terrible fiscal crisis they face, 
and here we are talking about this one individual who has been 
nominated for this one seat on the Court of Appeals for the District of 
Columbia.
  I know from my conversations with people in New Jersey that they feel 
the same way, and I am sure Americans across America agree. Why is the 
Senate spending all this time worrying about this one job--I do not get 
it--while we ignore the millions of Americans who have lost their jobs? 
We see the consumer confidence falling off the charts. We see our stock 
market reeling. We see the dollar declining. We are not paying 
attention to the real things that people are concerned about that make 
a difference to their lives, their kids' lives, their families' lives. 
This Estrada nomination is not the priority of the American people, and 
I do not think it is the priority of my Democratic colleagues.
  In a moment, I am going to make a unanimous consent request that we 
at long last make the economy our top priority. I am going to ask that 
at least for now we move off the Estrada nomination, as we have done 
for other concerns--we have passed the omnibus appropriations bill. We 
were able to take up the child pornography issue this week. We ought to 
focus on our economy.
  The bill for which I will ask unanimous consent was proposed by the 
distinguished Democratic leader. It includes, among other things, 
middle-class tax cuts, aid to the States, an expansion of benefits for 
unemployed Americans, those 100,000 people a week who are dropping off 
the unemployment rolls right now, and establish rules to restore long-
term fiscal discipline and health in our economy.
  I recognize my colleagues on the other side of the aisle are not 
likely to agree to this proposal, but as Democrats continue to 
emphasize the importance of dealing with our economy, I hope someone on 
the other side will begin to question the decision to spend days upon 
days and weeks upon weeks on the nomination of this one individual. I 
hope they will come to appreciate that there is little time to waste 
when it comes to boosting our economy and taking care of America's 
families and getting on to the priority of creating jobs for Americans. 
I hope they will adapt their priorities, the priorities of the Senate, 
to those of the American people, which is jobs and economic security.


                       Unanimous Consent Request

  I ask unanimous consent that the pending nomination be set aside and 
that the Senate take up and begin debate on Calendar No. 21, S. 414, a 
bill to provide an immediate stimulus to our Nation's economy.
  The ACTING PRESIDENT pro tempore. Is there objection?
  The Senator from Nevada.
  Mr. ENSIGN. Reserving the right to object, the way to resolve the 
nomination is to schedule an up-or-down vote.
  I object.
  The ACTING PRESIDENT pro tempore. The objection is heard.
  The Senator from New Jersey has the floor.
  Mr. CORZINE. With full expectation and understanding of the position, 
I am disappointed with the objection that has been raised, but I am not 
surprised. We have a critical need to get focused on our economy in 
this country. The needs of the American people are not being addressed. 
It is not because we are having this debate. We could move off this 
debate and move to the economy today, then come back to it like we did 
with regard to the omnibus appropriations.
  The American people should know there are proposals on the table that 
would stimulate this economy and get it moving, instead of seeing 
unemployment rates skyrocket, instead of seeing deficits as far as the 
eye can see being put in place, with no attention being drawn to them, 
without dealing with the core things that matter in families' lives, in 
real people's lives. We could do that and still come back to this and 
have a full constitutional and responsible debate about what is needed 
to review a candidate and get on with the real needs facing our 
country.
  I find it very difficult to understand where we are with regard to a 
lot of these priorities at this point in time,

[[Page 4760]]

and I hope we will see the light before we have to go further with more 
of these serious problems that our American families face with their 
economic security.
  I yield the floor, and I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ENSIGN. 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. ENSIGN. Mr. President, it is my pleasure today to come before the 
Senate to lend my support to a man of tremendous character and 
extraordinary legal credentials, Mr. Miguel Estrada. We have heard a 
lot about this nominee. We have heard a lot about why we should be 
focusing, why we shouldn't. As I discussed before, I would like to see 
us get on to things like the economy, like the budget. The simplest way 
to do that is to have an up-or-down vote on Miguel Estrada.
  I will share a few facts about Mr. Estrada and the importance of the 
nomination to our legal system. Mr. Estrada is an American success 
story. He came to this country at the age of 17 as an immigrant from 
Honduras, speaking very little English. He overcame amazing obstacles 
to rise to the top of the legal profession. After graduating magna cum 
laude from Harvard Law School, Miguel became a law clerk to the Supreme 
Court Justice Anthony Kennedy. Since that time, he served as a Federal 
prosecutor in New York and Assistant Solicitor General of the United 
States for 1 year in the Bush Administration and 4 years in the Clinton 
administration. He was handed nothing, and his achievements are the 
product of hard work, perseverance, and a commitment to education. He 
is actually living the American dream.
  Among other accomplishments, Mr. Estrada has argued 15 cases before 
the Supreme Court of the United States, including one case in which he 
represented a death row inmate pro bono. The American Bar Association 
unanimously rated Mr. Estrada as well qualified for the DC Circuit. 
This is the ABA's highest possible rating, and the rating typically 
used as the gold standard for judicial nominees in the Senate Judiciary 
Committee, especially on the Democrat side.
  Mr. Estrada served as a member of the Solicitor General's Office in 
both the Bush and Clinton administrations. He is enthusiastically 
supported by both President Bush and President Clinton. The long list 
of Hispanic groups backing Miguel Estrada's nomination includes the 
League of United Latin American Citizens, the U.S. Hispanic Chamber of 
Commerce, the Latino Coalition, the Hispanic Bar Association, and the 
National Association of Small Disadvantaged Businesses.
  Sadly, Mr. Estrada's extraordinary accomplishments and his desire to 
serve our country have not been enough to protect him from the 
baseless, vicious, and partisan attacks he has endured through this 
process. Now is not the time to play partisan games with the United 
States judicial system. America is facing a judicial vacancy crisis in 
our Federal courts. The U.S. Courts of Appeals are currently 15 percent 
vacant, with 25 vacancies out of 167 authorized seats. The DC court, 
which is the court we are trying to get Miguel Estrada onto, has four 
vacancies on a 12-judge court.
  Adding to this crisis, caseloads in the Federal courts continue to 
grow dramatically. Filings in the Federal appeals court reached an all-
time high last year. The Chief Justice recently warned that the current 
number of vacancies, combined with the rising caseloads, threatens the 
proper functioning of the Federal courts. He has asked the Senate to 
provide every nominee with a prompt up-or-down vote.
  Chief Rehnquist is right. Every judicial nominee deserves a prompt 
hearing and a chance at an up-or-down vote on the Senate floor. This 
nominee is not being assessed by the traditional standards of quality 
or by his ability to follow the law as a judge. There is no question 
that this nomination is being delayed and possibly blocked because of a 
distorted analysis of his qualifications, policies, and personal views. 
My colleagues on the other side of the aisle are blocking this 
nomination simply because he is President Bush's nominee. This is a 
detriment to the integrity of this body. It is unfair to the nominee. 
And it is unfair to the American people.
  I am asking my colleagues in the Senate today to do what we were 
elected to do, to allow this body to work its will, and to give Mr. 
Estrada the up-or-down vote he deserves. I add that the precedent we 
are setting, this 60-vote threshold for circuit court nominees, is a 
dangerous precedent. Right now the Republicans are in the majority and 
we have the Presidency. At some point the Democrats are going to be 
back in the majority. At some point the Democrats are going to hold the 
Presidency again. Paybacks are very ugly. But make no mistake about it, 
with the precedent being set here, unless this can be worked out, those 
paybacks will come back to haunt the other side of the aisle.
  It is vitally important we work this out for the health of the 
judiciary in this country. It should not become a political tool to be 
bandied about just because somebody thinks that somebody may have a 
particular ideology.
  We realize that having a Republican Hispanic on the DC Circuit Court 
of Appeals is something the other side does not like.
  But just because they don't like the politics of that does not mean 
that they should object to him getting on the court. He deserves this. 
He is qualified for it. He has the integrity to carry it out. And we, 
as a body, should give this man an up-or-down vote. If we give him an 
up-or-down vote he will be confirmed by the Senate.
  I believe it is our constitutional duty to give him an up-or-down 
vote. He has had all the hearings he needs to have. We have been doing 
this for almost 2 years now. We need to give this well-qualified 
candidate the vote he deserves.
  I want to raise a couple of points. The Senator from New Jersey was 
talking about the economy. He says we have to get on the economy. I 
agree, we need to take care of the economy. I have some proposals. The 
President has some proposals. There are going to be other Senators who 
will have proposals to try to stimulate the economy. The Senator from 
New Jersey indicated he doesn't think what the President is doing is 
going to have enough of an impact. I have a proposal that actually, the 
first year alone, according to the Joint Tax Committee, will bring $135 
billion worth of investment into this country. I hope the other side of 
the aisle is going to join us in that. That is significant even in the 
size economy that we have.
  What the President has laid out as part of his plan--I don't agree 
with all of it, but there are some good things in it. He has laid out a 
plan, not only for this year but for solid growth and, in future years, 
to have good, solid, long-term fiscal policy and long-term growth.
  I agree with some of the things the other side of the aisle is 
talking about with respect to budget deficits. We do have a problem in 
the outyears with budget deficits. But if we do not fix the economy, we 
know we will never fix the deficits. We will continue to go further and 
further into debt. That is why it is critical for us to fix the 
economy, so we produce more tax revenues so we don't have these huge 
deficits and threats to Medicare and threats to Social Security and 
threats to our defense spending in the future.
  We have proven here in Washington, DC, we can't cut spending. We can 
maybe slow down the rate of growth sometimes, but we can't cut 
spending. As Ronald Reagan talked about--I don't remember the exact 
quote, but as he said in the early 1980s: The best way to eternal life 
is to become a Federal agency or department in Washington. He said that 
because he realized once a program starts, it develops a constituency 
and it is impossible to cut it. So I believe if the other side is 
concerned about the deficit, they should join some of us on this side 
of the aisle and start cutting out some of the waste and overspending 
in certain parts of our Government.

[[Page 4761]]

  Having said that, let me conclude by saying let's have an up-or-down 
vote on Miguel Estrada so we can get on to some of the other important 
issues. Make no mistake about it, though; the judiciary and this part 
of what we do is a very important part of our role as Senators in 
fulfilling our obligation, our oath of obligation to defend and support 
the Constitution. We can get on to other things. The budget was not 
enacted last year. For the first time since 1974 we did not have a 
budget. Because of that, we ended up with some serious problems last 
year. The appropriations bills didn't get finished until just a couple 
of weeks ago.
  We are asking the other side to not continue to obstruct the will and 
the work of this body, to join us, have an up-or-down vote, let the 
Senate work its will on this nomination so we can get on to other 
important business of the country. We have a lot of things to do. Let's 
join together. Let's work across the aisle. Let's join hands. There are 
a lot of good things we can do for the American people.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Bunning). The Senator from South Dakota.
  Mr. JOHNSON. Mr. President, I rise to express my great dismay at the 
policy of the President of the United States that he seems to be 
attempting to impose on the Senate, which would require each and every 
one of us in this body to betray the Constitution, to betray our oath 
of office, and to ignore the constitutional mandate that we give 
meaningful advice and consent on judicial nominees coming before this 
body.
  I will never betray the Constitution and my oath. I don't care 
whether we have to be here night after night. I am not going to go down 
that road. I speak as a Senator who has voted in favor of somewhere in 
the range of 100 judicial nominees that President Bush has sent to this 
body, virtually all conservative Republicans. I wish it were different. 
I wish there were more progressive judges before us. But I understand 
the President's prerogative, and I respect his right to nominate 
whomever he may wish.
  But this nomination before us is unprecedented. It is not only a 
matter of Mr. Estrada, it is a matter of the sanctity of our 
Constitution. It goes to the very oath of office we have taken. It 
would make a travesty of this body and of the Constitution for us to do 
otherwise than to object to the manner in which this particular nominee 
has been presented to the Senate.
  The other nominees who have come before this body--for whom I have 
voted over and over again, somewhere in the range of 100 already--we at 
least knew what was their legal philosophy. They tended to be 
conservative Republicans and that is the President's prerogative and I 
voted for them, but they had either been Federal judges or State 
judges, allowing us to look at their rulings in the past, or they had 
been legal scholars with a significant body of work that allowed us to 
view what the inner workings of their minds were and allowed us to 
determine whether they were, in fact, within the mainstream of American 
jurisprudential thought. This nominee stands unique. The precedent 
would be catastrophic to our Republic if we start, for the first time 
ever, to approve secret judges, stealth judges, judges who have no 
record and who will disclose no record to the Senate.
  We have no way of knowing what this individual's legal philosophy 
might be. We have reason to believe he is undoubtedly a capable lawyer, 
in terms of his technical skills as a Solicitor, but we have no idea 
where he stands otherwise. The question is not whether we will have 
Hispanic Republican judges on the District of Columbia Court of 
Appeals. That is irrelevant. I voted repeatedly, as have my colleagues 
on my side of the aisle, for Hispanic judges and other high officials 
in our Government. I am proud to have played a role in supporting our 
Hispanic colleagues in issue after issue, and position after position. 
But this, this is a sham. This is a travesty. I believe any Senator who 
thinks seriously about his oath and reads the Constitution, the 
obligation--not the right but the obligation of the Senate to provide 
advice and consent on these offices is a profoundly important role.
  It is one thing to approve or not approve Cabinet appointees and 
other advisers to the President; they come and they go. It is a serious 
matter, but at least there is not a lifelong appointment involved. In 
this case, we have a lifetime appointment to the second highest court 
in the land. What is worse, if we submit to this failure to abide by 
our constitutional obligations to make a meaningful decision about 
advice and consent, we will have opened the floodgate because it will 
become apparent to this President that the strategy to use from here on 
out is to continue to find individuals who have no track record, who 
may have a secret ideological agenda, and to send them one after 
another through the Senate to be rubberstamped by this institution. 
That is not acceptable. This is a matter of enormous importance.
  These individuals, and this particular individual about whom we are 
debating today, if confirmed, will likely serve on this bench for the 
rest of our lifetimes, for many of us in this body. President Bush may 
come and he may go, but these appointments will last a lifetime.
  So it is with enormous concern that I rise to express my opposition 
to this strategy because that is what this is about. It is about a 
strategy. It is not about whether a Hispanic Republican should be on 
the bench. It is not about whether a conservative should be on the 
bench, so long as they fall within the mainstream of American juris 
prudential thought. The question is, Should this Senate be allowed any 
idea about this individual's ideology, about his legal philosophy? 
There we know nothing. We would be surrendering our constitutional 
prerogatives and our constitutional obligations were we to respond any 
other way than we have attempted to do on this side. Obviously, we can 
move on to other agenda items, whether it be stimulating the economy, 
education, health care, or what have you. All that is required is for 
leadership of our colleagues on the other side of the aisle in support 
of the President to either withdraw this nominee or to have him respond 
to reasonable questions about his philosophy. There is no effort here 
to require this individual to answer questions that have not been put 
to other judges. The question is not his response to specific items 
before the Court. It would be inappropriate to ask those kinds of 
questions. But this is astonishing. This is stonewalling. That is what 
this is. It is unacceptable.
  Again, over 100 judges that President Bush has nominated have been 
confirmed by this body, and most have gone through with my support. 
Most of them were conservative Republican judges. That is fine. But 
this is different. I hope the American public understands the profound 
consequences that would flow from our surrendering of our 
constitutional obligation to at least make meaningful decisions about 
whether to confirm a particular nominee.


                               The Budget

  Mr. President, I also want to express my great frustration and my 
great sadness in many ways over priorities that President Bush has 
recently exhibited relative to our young men and women in uniform and 
the likely war we are about to embark upon.
  Americans all across this country, including my wife and myself, are 
about to send our finest young men and young women into harm's way in 
the Iraq region. We can debate the wisdom of that. But that is the 
reality. I think we all see this coming. We can take great pride in 
these men and women in uniform, the courage they show, and their 
commitment to America. They are asking for so little and, yet, they are 
willing to do whatever is required of our American military. They are 
the greatest military ever fielded in terms of the sophistication of 
technology they deal with and the requirements they meet.
  But while we put this military together and send them on their way 
with flags flying and salutes and the prayers of all of us, the 
President simultaneously has recommended now in his 2004 budget 
recommendation that

[[Page 4762]]

we cut impact aid education funding for the children of these very 
troops who we are sending into war. Is it because we can't afford to 
finance quality education of the children of our military? No. 
President Bush also, as we recall, has called for over $100 billion of 
tax cuts for primarily the very wealthiest of Americans--primarily on 
Wall Street. So rather than asking America's wealthiest families to 
sacrifice at a time of war, the request seems to be of the middle class 
and the working family, send your sons and daughters into combat, and 
we will ask America's wealthiest no sacrifice whatever. In fact, we 
will cut their taxes and we will come back to these families who are 
sending their sons and daughters into combat and tell them we can't 
afford to educate your kids while you are gone. And these spouses 
remain. The Guard and Reserve and active-duty spouses in South Dakota 
and across every State in our land are worried to death about the 
prospects of their loved ones, but proud, and upholding America's 
ideals as they go into heaven knows what kind of combat circumstance 
they will face with weapons of mass destruction arrayed against them. 
We hope whatever combat occurs will be swift and decisive and conclude 
positively for us. But obviously we all know there is great risk for 
everyone's sons and daughters who go into circumstances such as this.
  Is it asking too much of President Bush to at least not cut the 
education funding for the children who are left behind? Is that asking 
too much? It says a lot about the priorities of this administration, 
that we would array the world's finest military on the one hand, 
provide tax relief for the world's wealthiest people on the other hand, 
and simultaneously beg poverty when it comes to the schools for the 
children of our military personnel. Shame on the President. Shame on 
the President for these kinds of priorities. America deserves better. 
Our fighting men and women deserve better than this. Fiscal 
responsibility is not the issue. Priority is the issue.
  Then when our military personnel come home again, what do they find 
but the Veterans Administration underfunded yet again. The 
administration is asking for higher copayments, higher deductibles, and 
denies hundreds of thousands of our veterans access to VA health care 
they were promised. What kind of signal does that send? How are you 
going to continue to attract the very best of America's young men and 
women to wear our Nation's uniform when they find that while we do that 
and pat them on their back and salute them and send them into combat--4 
years, 5 years--at the same time we are not going to take care of their 
kids. When they come home, we are not going to take care of their 
health care obligations as we promised we would.
  It is long overdue that some of these priorities be met off the top 
of the barrel, rather than the bottom of the barrel and the crumbs that 
are left over half doing other things.
  I don't know how we can expect in the day and age of a voluntary 
military to continue to attract the best and the brightest of our young 
people who deal with the sophisticated kinds of technology they are 
requested to do now, if they know simultaneously--and they increasingly 
do--that once they leave home and once they come back, they will in too 
many cases be treated shabbily by our government, which is too busy 
stuffing its pockets with cash rather than meeting its obligations to 
those who are laying their lives literally on the line for America's 
freedom and American values.
  As a member of the Senate Budget Committee, today I also expressed 
alarm at recent news reports of still larger than expected Federal 
budget deficits, after an unprecedented 4 years in a row of budget 
surpluses during the final 4 years of the past Clinton administration--
the years in which we were in the black. We were paying down on the 
accumulated national debt. We were not borrowing from the Social 
Security trust fund. We now find the bipartisan Congressional Budget 
Office telling us this red ink will be an astonishing $199 billion. As 
recently as 2001, we had a surplus of $127 billion.
  Mr. President, in 2001--2 years ago--we had a surplus of $127 
billion, which followed 3 preceding surplus years in the black. That 
was responsible budgeting. Some experts now are saying that the 2004 
deficit is going to break all records, at over $350 billion, if war 
expenses and the cost of the Bush tax policies are assumed.
  The budget surplus, the paying down of the national debt, and the 
preservation of the Social Security trust funds--which was what we all 
had when this administration commenced--have all gone away. The days of 
not borrowing from the Social Security trust fund are over. We are 
back. And we are told by the White House budget people at OMB that we 
will continue to borrow under the President's budget and tax plans out 
of the Social Security trust fund for the remainder of the decade.
  The paying down of the national debt has gone away. The ability to 
avoid continued high debt service so we can redirect those dollars, 
instead, to education, to health care, to our veterans, to our 
military, whatever it might be, has all gone away, because we are going 
to increasingly pay debt service under the President's budget plan.
  The CBO indicates that our Nation will not see a budget surplus again 
until 2007, and then only if there are no war expenses, no additional 
tax cuts, and no Medicare prescription drug legislation. We all know 
that is not going to happen. We are going to have war expenses. We do 
not know what they will be. We will pay whatever it takes to make sure 
our men and women in uniform are supported. Whatever the cost is, we 
will pay it. But the war and the follow-on occupation is likely to cost 
at least $100 billion.
  We know the President has tax cut after tax cut lined up primarily 
for his wealthiest contributors. And then we know, as well, that we 
need to move on to prescription drug legislation that is long overdue. 
We are the only major democratic society in the world that does not 
have some kind of prescription drug or national health care strategy.
  So what we find here is President Bush's proposal to borrow yet 
another $1 trillion. Now we are not even talking ``B,'' we are talking 
the ``T'' word. Mr. President, $1 trillion over the coming decade in 
order to finance Wall Street tax breaks has to be approached with great 
caution. This seems, to me, to be part of an agenda designed to make it 
impossible to have strong Federal funding for education, veterans, 
agriculture, and seniors for generations to come.
  This overall strategy strikes me as one that we saw a glimmer of in 
the 1980s; and that is, a strategy designed to primarily break the 
Federal Government, to deny all resources. Because when our friends in 
the far political right try to advance the cause of eliminating 
Medicare, downsizing Social Security, downsizing or eliminating 
veterans health care, withdrawing from supporting our schools, getting 
out of the afterschool and daycare programs, getting away from rural 
electricity and rural development programs--when they try to do that, 
they are always met with resistance from the American people, Democrats 
and Republicans alike.
  They have never been able to win that war because Americans want that 
kind of partnership--that constructive partnership--between Washington 
and our communities and our States. So in a very cynical tactic, what 
has been discovered here is that while they cannot win the war on the 
merits of eliminating that partnership, they can try to break the 
Government, to deny it the revenue it needs, so that they can come to 
the American public and say: Well, we would love to support those 
afterschool programs, we would love to have more police on the beat, we 
would love to help our fire departments, and we would love to make sure 
all our young people could afford to go to college or technical 
programs, but, oh, we are broke; we don't have the money.
  That is apparently how some people hope this debate will conclude. 
They cannot win on the merits of the policy, but what they can try to 
do is come up with a tax policy that enriches the

[[Page 4763]]

wealthiest contributors while simultaneously making it increasingly 
impossible for this Federal Government to live up to its obligations to 
its people and to build a stronger society, offering more opportunity 
for every young American--Black, Hispanic, Native American, Caucasian, 
whoever they might be.
  I feel great frustration. I hope the American public understands what 
really is going on here relative to the President's budget-and-tax 
agenda. It is a radical agenda. If you don't believe it is a radical 
agenda, look at what this President is willing to do, even to the 
children of our men and women in uniform. It is appalling.
  Look at what the President is willing to do to try to stack the 
court, possibly with ideologues, far outside the mainstream of American 
jurisprudential thought, to bend the Constitution, to break the 
Constitution, by bringing nominees to this body who will not share with 
us their judicial thoughts, who have no scholarly writings, who have no 
past judicial decisions to look to. They are stealth judges, secret 
judges.
  We cannot allow that to stand. We cannot allow that to happen in our 
Nation. Our country has been a beacon of democracy, a beacon of 
openness, a beacon of opportunity. We cannot walk away from that. The 
Constitution has been the bulwark of making sure that those remain our 
ideals. For this body to walk away, and to allow for a rubberstamp 
process to go on, that any individual can come before the Senate 
Judiciary Committee and the full Senate without the Senate or the 
committee having any idea who he is or what his agenda really is would 
be a travesty. It is completely unacceptable.
  So, again, I have been proud to work in a bipartisan manner on the 
confirmation of roughly 100 judges--virtually all conservative 
Republican judges. But I draw the line here. This is unprecedented, and 
the constitutional ramifications of what would occur and what precedent 
would be set would be devastating to this Nation. It would make a 
mockery of our oath, a mockery of the Constitution, for this body to do 
anything other than to insist that this nominee share with the body his 
philosophy relative to legal issues, his jurisprudence.
  So I hope we can soon either get to the bottom of who this individual 
is or move on to other issues that are pressing before our Republic--
ranging from health care, education, support of our men and women in 
uniform. There is much we need to be doing.
  Frankly, there is very little pending on the floor at this time, but 
there is much that ultimately we need to be doing. I hope, in the 
context of taking on these additional issues, we will do it with fiscal 
responsibility, which not only involves not succumbing to the 
temptation to sink our country deeper and deeper and deeper into red 
ink as far as the eye can see, but also involves correcting President 
Bush's budget priorities to the degree that we take care of these kids 
of our military men and women, that we resist the President's 
temptation to take money away from these schoolhouses in order to give 
it to Wall Street and to wealthy contributors for political campaigns.
  That isn't what we are here for. Those aren't the people we 
represent. Those aren't the ideals we represent. And this Nation 
deserves better.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.


                                Medicaid

  Mr. BINGAMAN. Mr. President, I rise to address two or three issues 
this afternoon. I very much appreciate the chance to do so. First, let 
me begin with a subject that is extremely important to my State and to 
many of our States. That is Medicaid. I want to address two different 
proposals there. First, there is a proposal the administration has made 
related to Medicaid.
  We don't have a written proposal as yet, but we do have various 
statements from Secretary Thompson. We had a hearing this morning in 
the Finance Committee that the Presiding Officer attended, as did I. We 
have had testimony and oral statements and very brief descriptions, but 
we do not have a written proposal or even a detailed outline of what 
might be proposed by the administration. But in what they are 
proposing, I find some real serious concerns.
  The other proposal I want to discuss is one I am working on with 
Congressman Dingell--we hope to introduce it probably early next week--
entitled ``Saving Our States.'' I will try to describe a little bit 
each of these.
  The Nation's Governors have been here this week. I had the good 
fortune to speak to them last Sunday at one of their subcommittee 
meetings on human resources about Medicaid. It is clear that they are 
under severe stress at this point fiscally. It is estimated the States 
are facing nearly a $30 billion shortfall this year and an $80 billion 
shortfall in fiscal year 2004. In my view, it is important that the 
Federal Government respond to that. We cannot just ignore the fact that 
a growing number of our citizens are uninsured and that more and more 
people are being dropped from the Medicaid Program and the SCHIP 
program.
  The Federal Government needs to fundamentally reassess its own role 
in providing health care and reassess its relationship to the States in 
this regard. As I indicated, I am working with Congressman Dingell to 
prepare legislation to do just that.
  Let me talk first about the administration's proposal in very broad 
terms, as I understand it. It contains two parts. One is a set of 
reforms where, as the Secretary very eloquently described, it would 
allow States to adopt the best practices. It would allow States to put 
more emphasis on preventive care for seniors. It would allow States to 
have the flexibility they need to meet their particular needs. All of 
that is, of course, very good public policy, at least as stated in its 
most general form.
  As a general matter, I certainly believe the President and the 
Secretary will find strong support in Congress for that effort. But the 
second part of their proposal is the one that gives me concern. That is 
the restructuring of the financing. This part is much more difficult. 
What this does is basically say that for optional groups and for 
optional services--and that is an interesting definition as to what is 
optional; you will find that most of the services and groups currently 
covered by Medicaid turn out to be optional, and most of the funding 
that is currently spent on Medicaid turns out to be funding for 
optional groups and optional services--States would have the ability to 
get extra money for the first 7 years if they agreed that they would 
essentially live by a capped amount of Federal funding from now on. It 
would be about what they were getting in the year 2000 plus a 9-percent 
increase per year. That is the basic proposal.
  In addition to that, they are saying not only are we going to give 
the States a little extra money, we will reduce the amount of growth in 
that portion that the State in fact provides. So this is going to save 
money for the Federal Government. It will save money for the States.
  The one thing that is not discussed and that I have great concern 
about is the effect on the people who are supposed to be getting the 
health care services under this program; that is, the low-income 
children and the seniors.
  When you look at these definitions, optional groups, which seniors 
would you think might be in an optional group? Well, under the 
definition I have been given, if your income is over 74 percent of the 
Federal poverty rate, you are in an optional group. That means if your 
income gets anywhere up over about $7,500 or $8,000 per year, somewhere 
in that range--and I can get the exact figure--you are in an optional 
group. That means the total resources going to assist in your health 
care are being capped and are not going to grow as the population 
needing those services grows, are not going to grow as the usage of 
those services grows, are not going to grow as the health care cost of 
those services grows. We all know that there is growth in all three of 
those areas. That concerns me greatly.

[[Page 4764]]

  The other part of this which I can understand and makes it somewhat 
attractive to Governors, some of the Governors who were here this week, 
is that the Federal proposal says, if you agree to this, not only do 
you get a little extra Federal money but the amount of State money that 
you are going to have to put in is also going to be capped. The growth 
in that is also going to be capped. In other words, we will be able to 
save you money in your State budget.
  This is great for the States; it is great for the Federal Government. 
The problem is that the health care services available to low-income 
children and to seniors in our society are going to be reduced and 
reduced very substantially over the next 10 years under this proposal. 
So that has been my concern.
  Allow me to cite a couple of quotations from people who have spent a 
lot of time studying this. The AARP executive director and CEO, Bill 
Novelli, has said, in relation to the administration's proposal:

       This proposal handcuffs states because it leaves people 
     more vulnerable in future years as states struggle to meet 
     increased needs with decreased dollars.

  Another quote, from the Consortium for Citizens with Disabilities:

       The Bush Administration proposal fails people with 
     disabilities and dishonors the nation's commitment to its 
     residents--it is not in the national interest. . . . What the 
     Medicaid program calls ``optional'' services are, in reality, 
     mandatory disability services for the children and adults who 
     need them. These services often are not only life-saving, but 
     also the key to a positive quality of life--something 
     everyone in our nation deserves.

  I believe strongly that the Federal Government at this particular 
time in our Nation's history should not be stepping away from its 
commitment to seniors, to people with disabilities, and to low-income 
children. It should not be leaving the States with the primary 
responsibility for dealing with growth in the cost of the services to 
these groups in the future.
  The administration will point out that the proposal does provide more 
funding up front to the States. The proposal is to give $12.7 billion 
more over the first 7 years to help the States. But there is something 
of an element of bait and switch in that after the first 7 years, that 
additional funding goes away.
  Secretary Thompson noted in his press conference that is after he has 
left his position, and I am sure it is after most of the Governors will 
have left their positions and probably after many of us will have left 
the Senate. That does not give us an adequate justification for putting 
in place a system that cuts funding for these vitally needed services 
in future years.
  The administration points out that they are promising the block grant 
for optional populations in a way that will increase at the same 
percentages that are projected in its budget. This is difficult to 
respond to, frankly, until we see a written proposal. We need a written 
proposal from the administration. We do not have that as yet. We do not 
have that on the Medicaid subject. We do not have that on Medicare 
either. And I hope those will be forthcoming soon because they are 
extremely vital programs for all of our States.
  Let me also talk a little about the proposal that I have, along with 
Congressman Dingell, that we are going to introduce next week. And I 
will go into more detail about it next week.
  Our idea is that there are certain groups that receive health care 
services under Medicaid, where the Federal Government needs to step up 
and pay the full cost of those services--or something very close to the 
full cost. One such group is so-called dual eligibles. These are people 
who are eligible for Medicare benefits, but are also low income enough 
that they are eligible for Medicaid at the same time.
  Current law says for those who are covered under the Medicaid law the 
States pay the lion's share of that cost. We are saying the States 
should not have to pay the lion's share of that cost. This is something 
where these folks have become eligible for Medicare. We should be 
paying 100 percent of that cost at the Federal level.
  Another group the Federal Government should be underwriting the cost 
of providing services for are illegal immigrants who come to our health 
care providers needing emergency attention. Here you can get into quite 
a philosophical argument as to whether or not these services should be 
provided. The reality is, if you are a doctor, if you are working in an 
emergency room and someone shows up who needs emergency care, you are 
obligated under your Hippocratic oath and the laws of decency, 
basically, to provide that care, if you are able to do so. To turn a 
person away because they do not have the right health insurance 
coverage, or they cannot demonstrate to you their financial solvency, 
when their circumstance is critical, is just not the way we should do 
business.
  The question is, Once that person has come into that emergency room 
and asked for that emergency care, who should reimburse the hospital 
for it? Who should pay the cost of that physician? At the current time, 
the States are picking that up, or the counties are picking that up, or 
the health care providers themselves are doing this on a pro bono 
basis. The reality is the Federal Government should be responsible for 
that, and we are proposing that in our legislation.
  Another group, of course, is Native American citizens. We have a 
great many Native Americans in my home State. The Federal Government 
should be stepping up to its responsibility to ensure that health care 
for these individuals is provided. We propose that as part of our 
proposal for saving our States as well.
  I will have another chance to talk this ``saving our States'' 
proposal when we introduce it early next week. I very much wanted to 
make reference to it today and indicate my great concern about the 
proposal I understand the administration is about to present to us. The 
truth is, the cost of providing health care is very high, and it is not 
getting any cheaper. We need to budget that in and we need to 
acknowledge that and we need to recognize that as a matter of public 
policy in this country, we should provide that basic care to seniors, 
to low-income children, to those who are disabled. The Medicaid Program 
does that. We need to keep the Medicaid Program sound and not undermine 
it by rationing back on the dollars we are willing to spend on those 
basic services.


                Southwest Regional Border Authority Act

  Mr. President, let me also talk about a bill I introduced yesterday. 
This is a bill entitled Southwest Regional Border Authority Act. We 
offered this same bill last May. I am very pleased this year I am 
joined by Senator Kay Bailey Hutchison, and also Senator Barbara Boxer. 
This legislation would create an economic development authority for the 
Southwest border region that would be charged with awarding grants to 
border communities in support of local economic development projects. 
The need for a regional border authority is acute. The poverty rate in 
the Southwest border region is over 20 percent, nearly double the 
national average of 11.7 percent. The unemployment rate in Southwest 
border counties can reach as high as six times the national 
unemployment rate. The per capita personal income in the region is 
greatly below the national average. In many border counties, the per 
capita personal income is less than 50 percent of the national average. 
There is a lack of adequate access to capital that has made it 
difficult for businesses to get started in this region.
  In addition, the development of key infrastructures, such as water, 
waste water, transportation, public health, and telecommunications--all 
of these areas of infrastructure need have failed to keep pace with the 
population explosion and the increase in commerce across our border 
with Mexico.
  Mr. President, the counties in the Southwest border region are among 
the most economically distressed in the Nation. It should be noted that 
there are only a few such regions of economic distress throughout the 
country. Virtually all of the other regions that face this same 
economic distress are, in fact, served by regional economic development 
commissions today. These commissions include the Appalachian

[[Page 4765]]

Regional Commission, the Delta Regional Authority, the Denali 
Commission in Alaska, and the Northern Great Plains Regional Authority.
  In order to address the needs of the border region in a similar 
fashion, we are proposing this Regional Economic Commission for the 
Southwest border. The bill is based on four guiding principles.
  First, it starts from the premise that people who live on the 
Southwest border know best when it comes to making decisions as to how 
to improve their own communities.
  Second, it employs a regional approach to economic development and 
encourages communities to work across county and State lines where 
appropriate. All too often in the past, the efforts to improve our 
region have hit roadblocks as a result of poor coordination and 
communication between communities.
  Third, it creates an independent agency, meaning it will be able to 
make decisions that are in the best interest of the border communities, 
without being subject to the politics of Federal agencies.
  Finally, it brings together representatives of the four Southwest 
border States and the Federal Government as partners to work on 
improving the standard of living for people living on the border.
  This is not just another commission, and it is certainly not just 
another grant program. I believe this Southwest regional border 
authority not only will help leverage new private sector funding, it 
will also help to better target the Federal funds that are available to 
those projects that are most likely to produce results.
  The legislation accomplishes this through a sensible mechanism of 
development planning. The purpose of the planning process is to ensure 
that priorities are reflected in the projects funded by the authority. 
It also is to provide flexibility to the authority to fund projects 
that are regional in nature.
  I think the process has various advantages, and there are great 
benefits that can be derived from setting up this border authority. I 
believe very strongly this legislation is overdue. It is something that 
should have happened several years ago. For too long, the needs of the 
Southwest border have been ignored, overlooked, and underfunded.
  I am confident the creation of a Southwest regional border authority 
not only will call attention to the great needs that exist on the 
border, but will help us to meet those needs. I urge my colleagues to 
give attention to this legislation that we have introduced. I hope 
other colleagues will choose to support it. I hope we can have a 
hearing on it in the near future and move the legislation through the 
Senate and through the House to the President for signature.
  Mr. President, let me say a few words about the Estrada nomination as 
well. I know that is a subject of great concern to many on both sides 
of the aisle. I have taken some time in the last couple of days to 
review the transcript of the testimony that Mr. Estrada gave in the 
Judiciary Committee.
  I have been struck by his position, as stated numerous times in that 
testimony, that he was not willing to share his views on any issue 
related to judicial philosophy or court decisions with the committee.
  I was particularly struck by the discussion he had with our 
colleague, Senator Schumer. Senator Schumer was asking about Mr. 
Estrada's earlier statement that he saw as part of his job working for 
Justice Kennedy recommending law clerks and asking them questions, of 
course, interviewing them before he made the recommendation.
  Senator Schumer said:

       Isn't it appropriate that you would ask those questions? 
     Isn't it also appropriate that we would be asking you some 
     questions to try to determine your views?

  Mr. Estrada said in response to that question:

       Questions that I asked in doing my job for Justice Kennedy 
     were intended to ascertain whether there were any strongly 
     felt views that would keep that person from being a good law 
     clerk to the Justice.

  That is entirely appropriate, in my view, and a very well-stated 
position. That, in my view, is the exact job we have to perform as we 
screen and consider the various nominees for Federal court positions 
that the President sends us. We need to determine whether they have any 
strongly felt views that would keep them from being good members of the 
Court of Appeals for the District of Columbia, good members of the 
district court, or good members of the Supreme Court.
  My own position is that I am willing, and have demonstrated many 
times on the Senate floor my willingness, to support conservative 
nominees to the court. I believe many of those people are making 
excellent judges in our Federal court system. But I also want to be 
sure their views on issues that relate to their duties are mainstream, 
that they are not extreme. The only way I know to carry out that 
responsibility is to ask some questions to determine whether they have 
strongly felt views, as Mr. Estrada said, that would keep them from 
being, as he said in the case he was referring to, a good law clerk to 
the Justice.
  In the Senate, when we are considering people for lifetime 
appointments to the Federal judiciary, we have a heavier responsibility 
to be sure there are no strongly held views that would keep these 
individuals from being good judges in our Federal court system for the 
remainder of their lives. That is what I believe we should be trying to 
do. I think that is what many members of the Judiciary Committee were 
trying to do in the hearing that took place on Mr. Estrada.
  His view was that he would not respond to questions that were put to 
him about any such views, and he repeatedly said he did not think it 
was appropriate for him to comment on any personal views he might have. 
Since, of course, he would not comment on his personal views, there is 
no way to determine whether any of them are extreme.
  I do not think that is an adequate carrying out of responsibilities 
by the Judiciary Committee. I do not think it is an adequate carrying 
out of responsibilities by the Senate. And I think we do need more 
information. That has been my position. Before we move ahead with this 
nomination, we should get more information.
  I hope the Judiciary Committee will consider reconvening a hearing, 
once again providing the nominee with an opportunity to respond, as 
other nominees have traditionally responded. That is all we are asking, 
not that he give us information others were not asked to give or others 
did not give, but that he essentially provide basic information.
  He may express some views with which I do not agree. That is fine. 
Many judges for whom I have voted also, I believe, expressed views with 
which I did not agree. At least I was confident their views were not 
extreme. At least I was confident their views were mainstream and that 
they were within the mainstream as far as their conception of where the 
law is and where the law ought to go.
  I hope very much we can get the additional information we have been 
asking for and can proceed to dispose of this nomination. That would be 
my great hope. I do not know what the intent of the majority leader is 
at this point or the intent of the Judiciary Committee. I hope we can 
proceed in that manner.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Allard). Without objection, it is so 
ordered.
  Mr. REID. Mr. President, last evening, there was a lot of talk about 
whether memos at the Solicitor General's Office had ever been made 
public. I am going to talk about that, but I think we should put this 
whole debate involving Miguel Estrada in a framework that people who 
are watching the

[[Page 4766]]

debate who are not familiar with Senate procedure can better understand 
what is going on.
  In effect, Miguel Estrada has asked his employer, the Federal 
Government, to give him a job to last for life. As with any job, one 
usually has to have an interview. In this instance, in addition to an 
interview, you bring whatever papers you have, whether it is a resume 
or other documents that your employer may want to find out if you 
should be hired. In the instance of Miguel Estrada, he simply has not 
filled out the requisite papers, he has not answered the questions or 
supplied the necessary information.
  An employer in Nevada, whether a company that sold tires or a company 
that sold food--it would not matter what it is--if somebody applied for 
a job, they would have to answer the questions that employer asked and 
give the requisite papers. In this instance, Democratic members of the 
Judiciary Committee believe he has not answered the questions. By 
reading the transcript, it is quite clear that is true.
  But yesterday, the distinguished Senator from Utah, Mr. Hatch, 
engaged in extensive discussion regarding the release of Solicitor 
General memoranda. As everyone by this time knows, we have asked that 
Miguel Estrada release memos he wrote while he was an attorney in the 
Solicitor General's Office. The administration has refused to provide 
these documents.
  There are two basic charges raised by my distinguished colleagues on 
the other side of the aisle about these memoranda: First, the 
distinguished chairman of the committee, Senator Hatch, has argued that 
when such memos were provided in the past, they were leaked.
  My colleague argued that they have never, ever been given to anyone 
on Capitol Hill.
  Second, he qualified his remarks by saying to the extent memos had 
been provided, they were provided because there was some allegation of 
improper behavior by the nominee in connection with the memo.
  I will place in the Record a series of correspondence between the 
Judiciary Committee and the Justice Department from 1987 that 
demonstrates in fact such documents were provided. This is only one 
instance. These letters show that these memoranda were not leaked. They 
show that they were in fact provided freely by the Justice Department.
  In a letter dated August 10, 1987, then Judiciary Committee Chairman 
Biden set forth a request for several types of documents relating to 
the nomination of Judge Bork to the Supreme Court. In the letter, 
Senator Biden requested four classes of Bork-related memos: He 
requested those that related to the Watergate controversy; second, all 
documents generated or involving Solicitor General Bork relating to the 
constitutionality, appropriateness, or use of the pocket veto; third, 
all documents generated to or involving then Solicitor General Bork 
regarding school desegregation; fourth, all documents generated to or 
involving then Solicitor General Bork in forming the U.S. position in a 
series of specific cases.
  These requests involved memoranda provided by attorneys in the 
Solicitor General's Office to the Solicitor General recommending such 
things as whether to file amicus briefs in particular cases.
  In this instance, what happened to Senator Biden's request? Well, in 
fact a letter came to him dated August 24 from then Republican 
Assistant Attorney General Bolton to Democratic Senator Joe Biden. In 
that letter, the Justice Department declined to provide documents 
relating to the Watergate controversy. This denial of documents was 
based on executive privilege. The documents involved did not include 
Bork but, rather, related to communications between and among close 
advisers to the President and the President.
  Yesterday, Senator Crapo made reference to the fact that some 
documents were not turned over to the committee during this time. While 
it is true that the Watergate documents were not turned over, and this 
is based on executive privilege, that does not affect our debate. 
Solicitor General memoranda from Estrada to his supervisors are not 
covered by executive privilege. No one has ever claimed they are.
  In 1987, however, the Justice Department did provide the other 
documents I described above which were requested in the Biden letter. 
In these materials, the Justice Department noted in the letter: The 
vast majority of the documents that have been requested reflect or 
disclose internal deliberations within the executive branch. We wish to 
cooperate to the fullest extent with the committee and to expedite 
Judge Bork's confirmation process. The letter concludes that the 
documents referred to above would be provided. The letter confirms the 
nature and circumstances under which the Solicitor General memoranda 
were provided to the Judiciary Committee during Bork's hearings.
  So what about the argument that to the extent memoranda have been 
provided, they were only provided when the request alleged misconduct 
or malfeasance on the part of the nominee or other attorneys involved 
in the matter? This simply is not true.
  I have a list of internal attorney memoranda provided during the 
Bork, Reynolds, and Rehnquist nominations. These documents, some of 
which are from the Solicitor's Office, others from other parts of the 
Justice Department, were made public and given to Senator Biden, and in 
other instances given to others. For example, all documents related to 
school desegregation between 1969 and 1977 relating to Bork in any way, 
there was no allegation of misconduct; documents related to Halpren v. 
Kissinger, no allegation of misconduct.
  I have about 14 of these that were made a part of proceedings before 
the Senate.
  I ask unanimous consent that this list be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       All documents related to school desegregation between 1969 
     and 1977 relating to Bork in any way (disclosure included, 
     among others, the SG Office memos about Vorcheimer v. 
     Philadelphia, known as ``the Easterbrook memo''; United 
     States v. Omaha; United States v. Demopolis City (school 
     desegregation in Alabama)): No allegation of misconduct or 
     malfeasance by the nominee or anyone else at the Justice 
     Department.
       Documents related to Halperin v. Kissinger (civil suit for 
     4th Amendment violations for wiretapping): No allegation of 
     misconduct or malfeasance by the nominee.
       Memos about whether to file an amicus brief in Hishon v. 
     King & Spaulding (gender discrimination at a law firm): No 
     allegation of misconduct or malfeasance by the nominee or 
     anyone else at the Justice Department.
       Memos regarding Wallace v. Jaffree (school prayer in 
     Alabama): No allegation of misconduct or malfeasance by the 
     nominee or anyone else at the Justice Department.
       Memos about Congressional reapportionment in Louisiana and 
     one-person, one-vote standard: No allegation of misconduct or 
     malfeasance by the nominee or anyone else at the Justice 
     Department.
       Memos regarding possible constitutional amendment in 1970 
     to overturn Green v. New Kent County, and preserve racial 
     discrimination in Southern schools: No allegation of 
     misconduct or malfeasance by the nominee or anyone else at 
     the Justice Department.
       Memo of November 16, 1970 from John Dean: No allegation of 
     misconduct or malfeasance by the nominee.
       Memos of William Ruckelshaus of December 19, 1969 and 
     February 6, 1970: No allegation of misconduct or malfeasance 
     by the nominee.
       Memos of Robert Mardian of January 18 1971: No allegation 
     of misconduct or malfeasance by the nominee.
       Memos of law clerk to Justice Jackson: No allegation of 
     misconduct or malfeasance by the nominee or anyone else at 
     the Justice Department.
       Memos about whether or not to seek Supreme Court review in 
     Kennedy v. Sampson (pocket veto): No allegation of misconduct 
     or malfeasance by the nominee or anyone else at the Justice 
     Department.
       Memos about Hills v. Gautreaux (racial discrimination in 
     housing in Chicago): No allegation of misconduct or 
     malfeasance by the nominee or anyone else at the Justice 
     Department.
       Memos about DeFunis v. Odegaard (affirmative action program 
     at the University of Washington law school): No allegation of 
     misconduct or malfeasance by the nominee or anyone else at 
     the Justice Department.
       Memos about Morgan v. McDonough (public school 
     desegregation in Boston): No allegation of misconduct or 
     malfeasance by the

[[Page 4767]]

     nominee or anyone else at the Justice Department.
       Memos about Pasadena v. Spengler (public school 
     desegregation): No allegation of misconduct or malfeasance by 
     the nominee or anyone else at the Justice Department.
       Memos about Barnes v. Kline (military assistance in El 
     Salvador): No allegation of misconduct or malfeasance by the 
     nominee or anyone else at the Justice Department.
       Memos about Kennedy v. Jones (pocket veto and the mass 
     transit bill and bill to assist the disabled): No allegation 
     of misconduct or malfeasance by the nominee or anyone else at 
     the Justice Department.
       Documents related to Supreme Court selection process of 
     Nixon and Reagan: No allegation of misconduct or malfeasance 
     by the nominee or anyone else at the Justice Department.

  Mr. REID. I say respectfully that the statements made by the 
distinguished Senator from Utah were without basis of fact. Here we 
have records that were not leaked, they are directly as we said they 
were last night. We were unable to get the floor, but in fact that is 
what the story was.
  So now that we do have the floor, I ask unanimous consent that the 
letter dated August 10, 1987, to Attorney General Ed Meese from Joseph 
Biden be printed in the Record.
  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, August 10, 1987.
     Hon. Edwin Meese III,
     Attorney General, Department of Justice,
     Washington, DC.
       Dear General Meese: As part of its preparation for the 
     hearings on the nomination of Judge Robert Bork to the 
     Supreme Court, the Judiciary Committee needs to review 
     certain material in the possession of the Justice Department 
     and the Executive Office of the President.
       Attached you will find a list of the documents that the 
     Committee is requesting. Please provide the requested 
     documents by August 24, 1987. If you have any questions about 
     this request, please contact the Committee staff director, 
     Diana Huffman, at 224-0747.
       Thank you for your cooperation.
           Sincerely,
                                             Joseph R. Biden, Jr.,
     Chairman.
                                  ____


Request for Documents Regarding the Nomination of Robert H. Bork to Be 
          Associate Justice of the United States Supreme Court

       Please provide to the Committee in accordance with the 
     attached guidelines the following documents in the 
     possession, custody or control of the United States 
     Department of Justice, the Executive Office of the President, 
     or any agency, component or document depository of either 
     (including but not limited to the Federal Bureau of 
     Investigation):
       1. All documents generated during the period from 1972 
     through 1974 and constituting, describing, referring or 
     relating in whole or in part to Robert H. Bork and the so-
     called Watergate affair.
       2. Without limiting the foregoing, all documents generated 
     during the period from 1972 through 1974 and constituting, 
     describing, referring or relating in whole or in part to any 
     of the following:
       a. any communications between Robert H. Bork and any person 
     or entity relating in whole or in part to the Office of 
     Watergate Special Prosecution Force or its predecessors- or 
     successors-in-interest;
       b. the dismissal of Archibald Cox as Special Prosecutor;
       c. the abolition of the Office of Watergate Special 
     Prosecution Force on or about October 23, 1973;
       d. any efforts to define, narrow, limit or otherwise 
     curtail the jurisdiction of the Office of Watergate Special 
     Prosecution Force, or the investigative or prosecutorial 
     activities thereof;
       e. the decision to reestablish the Office of Watergate 
     Special Prosecution Force in November 1973;
       f. the designation of Mr. Leon Jaworski as Watergate 
     Special Prosecutor;
       g. the enforcement of the subpoena at issue in Nixon v. 
     Sirica;
       h. any communications on October 20, 1973 between Robert H. 
     Bork and then-President Nixon, Alexander Haig, Leonard 
     Garment, Fred Buzhardt, Elliot Richardson, or William 
     Ruckelshaus;
       l. any communications between Robert H. Bork and then-
     President Nixon, Alexander Haig and/or any other federal 
     official or employee on the subject of Mr. Bork and a 
     position or potential position as counsel to President Nixon 
     with respect to the so-called Watergate matter;
       m. any action, involvement or participation by Robert H. 
     Bork with respect to any issue in the case of Nader v. Bork, 
     366 F. Supp. 104 (D.D.C. 1975), or the appeal thereof;
       n. any communication between Robert H. Bork and then-
     President Nixon or any other federal official or employee, or 
     between Mr. Bork and Professor Charles Black, concerning 
     Executive Privilege, including but not limited to Professor 
     Black's views on the President's ``right'' to confidentiality 
     as expressed by Professor Black in a letter or article which 
     appeared in the New York Times in 1973 (see Mr. Bork's 
     testimony in the 1973 Senate Judiciary Committee hearings on 
     the Special Prosecutor);
       o. the stationing of FBI agents at the Office of Watergate, 
     Special Prosecution Force on or about October 20, 1973, 
     including but not limited to documents constituting, 
     describing, referring or relating to any communication 
     between Robert H. Bork, Alexander Haig, or any official or 
     employee of the Office of the President or the Office of the 
     Attorney General, on the one hand, and any official or 
     employee of the FBI, on the other; and
       p. the establishment of the Office of Watergate Special 
     Prosecution Force, including but not limited to all documents 
     constituting, describing, referring or relating in whole or 
     in part to any assurances, representations, commitments or 
     communications by any member of the Executive Branch or any 
     agency thereof to any member of Congress regarding the 
     independence or operation of the Office of Watergate Special 
     Prosecution Force, or the circumstances under which the 
     Special Prosecutor could be discharged.
       3. The following documents together with any other 
     documents referring or relating to them:
       a. the memorandum to the Attorney General from then-
     Solicitor General Boark, dated August 21, 1973, and its 
     attached ``redraft of the memorandum intended as a basis for 
     discussion with Archie Cox'' concerning ``The Special 
     Prosecutor's authority'' (typeset copies of which are printed 
     at pages 287-288 of the Senate Judiciary Committee's 1973 
     ``Special Prosecutor'' hearings);
       b. the letter addressed to Acting Attorney General Bork 
     from then-President Nixon, dated October 20, 1973., directing 
     him to discharge Archibald Cox;
       c. the letter addressed to Archibald Cox from then-Acting 
     Attorney General Bork, dated October 20, 1973, discharging 
     Mr. Cox from his position as Special Prosecutor;
       d. Order No. 546-73, dated October 23, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Abolishment of 
     Office of Watergate Special Prosecutor Force'';
       e. Order No. 547-73, dated October 23, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Additional 
     Assignments of Functions and Designation of Officials to 
     Perform the Duties of Certain Offices in Case of Vacancy, or 
     Absence therein or in Case of Inability or Disqualification 
     to Act'';
       f. Order No. 551-73, dated November 2, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Establishing 
     the Office of Watergate Special Prosecution Force'';
       g. the Appendix to Item 2.f., entitle ``Duties and 
     Responsibilities of Special Prosecutor'';
       h. Order No. 552-73, dated November 5, 1973, signed by 
     then-Acting Attorney General Bork, designating ``Special 
     Prosecutor Leon Jaworski the Director of the Office of 
     Watergate Special Prosecution Force'';
       i. Order No. 554-73, dated November 19, 1973, signed by 
     then-Acting Attorney General Bork, entitled ``Amending the 
     Regulations Establishing the Office of Watergate Special 
     Prosecution Force''; and
       j. the letter to Leon Jaworski, Special Prosecutor, from 
     then-Acting Attorney General Bork, dated November 21, 1973, 
     concerning Item 2.i.
       4. All documents constituting, describing, referring or 
     relating in whole or in part to any meetings, discussions and 
     telephone conversations between Robert H. Bork and then-
     President Nixon, Alexander Haig or any other federal official 
     or employee on the subject of Mr. Bork's being considered or 
     nominated for appointment to the Supreme Court.
       5. All documents generated from 1973 through 1977 and 
     constituting, describing, referring or relating in whole or 
     in part to Robert H. Bork and the constitutionality, 
     appropriateness or use by the President of the United States 
     of the ``Pocket Veto'' power set forth in Art. I, section 7, 
     paragraph 2 of the United States Constitution, including but 
     not limited to all documents constituting, describing, 
     referring or relating in whole or in part to any of the 
     following:
       a. The decision not to petition for certiorari from the 
     decision of the United States Court of Appeals for the 
     District of Columbia Circuit in Kennedy v. Sampson, 511 F.2d 
     430 (1947);
       b. the entry of the judgment in Kennedy v. Jones, 412 F. 
     Supp. 353 (D.D.C. 1976); and
       c. the policy regarding pocket vetoes publicly adopted by 
     President Gerald R. Ford in April 1976.
       6. All documents constituting, describing, referring or 
     relating in whole or in part to Robert H. Bork and the 
     incidents at issue in United States v. Gray, Felt & Miller, 
     No. Cr. 78-00179 (D.D.C. 1978), including but not limited to 
     all documents constituting, describing, referring or relating 
     in whole or in part to any of the exhibits filed by counsel 
     for Edward S. Miller in support of his contention that Mr. 
     Bork was aware in 1973 of the incidents at issue.
       7. All documents constituting, describing or referring to 
     any speeches, talks, or informal or impromptu remarks given 
     by Robert

[[Page 4768]]

     H. Bork on matters relating to constitutional law or public 
     policy.
       8. All documents constituting, describing, referring or 
     relating in whole or in part either (i) to all criteria or 
     standards used by President Reagan in selecting nominees to 
     the Supreme Court, or (ii) to the application of those 
     criteria to the nomination of Robert H. Bork to be Associate 
     Justice of the Supreme Court.
       9. All documents constituting, describing, referring or 
     relating in whole or in part to Robert H. Bork and any study 
     or consideration during the period 1969-1977 by the Executive 
     Branch of the United States Government or any agency or 
     component thereof of school desegregation remedies. (In 
     addition to responsive documents from the entities identified 
     in the beginning of this request, please provide any 
     responsive documents in the possession, custody or control of 
     the U.S. Department of Education or its predecessor agency, 
     or any agency, component or document depository thereof.)
       10. All documents constituting, describing, referring or 
     relating in whole or in part to the participation of 
     Solicitor General Robert H. Bork in the formulation of the 
     position of the United States with respect to the following 
     cases:
       a. Evans v. Wilmington School Board, 423 U.S. 963 (1975), 
     and 429 U.S. 973 (1976);
       b. McDonough v. Morgan, 426 U.S. 935 (1976);
       c. Hills v. Gautreaux, 425 U.S. 284 (1976);
       d. Pasadena City Board of Education v. Spangler, 427 U.S. 
     424 (1976);
       e. Roemer v. Maryland Board of Public Education, 426 U.S. 
     736 (1976);
       f. Hill v. Stone, 421 U.S. 289 (1975); and
       g. DeFunis v. Odegaard, 416 U.S. 312 (1975).


                               GUIDELINES

       1. This request is continuing in character and if 
     additional responsive documents come to your attention 
     following the date of production, please provide such 
     documents to the Committee promptly.
       2. As used herein, ``document'' means the original (or an 
     additional copy when an original is not available) and each 
     distribution copy of writings or other graphic material, 
     whether inscribed by hand or by mechanical, electronic, 
     photographic or other means, including without limitation 
     correspondence, memoranda, publications, articles, 
     transcripts, diaries, telephone logs, message sheets, 
     records, voice recordings, tapes, film, dictabelts and other 
     data compilations from which information can be obtained. 
     This request seeks production of all documents described, 
     including all drafts and distribution copies, and 
     contemplates production of responsive documents in their 
     entirety, without abbreviation or expurgation.
       3. In the event that any requested document has been 
     destroyed or discarded or otherwise disposed of, please 
     identify the document as completely as possible, including 
     without limitation the date, author(s), addressee(s), 
     recipient(s), title, and subject matter, and the reason for 
     disposal of the document and the identity of all persons who 
     authorized disposal of the document.
       4. If a claim is made that any requested document will not 
     be produced by reason of a privilege of any kind, describe 
     each such document by date, author(s), addressee(s), 
     recipient(s), title, and subject matter, and set forth the 
     nature of the claimed privilege with respect to each 
     document.

  Mr. REID. Mr. President, this outlines seven pages of documents he 
wants and certain guidelines that would be followed so that the 
Attorney General's Office would be protected.
  In addition, I ask unanimous consent that a letter dated August 24 of 
that same year to Joseph R. Biden from Mr. Bolton, the Assistant 
Attorney General, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         U.S. Department of Justice, Office of Legislative and 
           Intergovernmental Affairs,
                                                   Washington, DC.
     Hon. Joseph R. Biden, Jr.
     Chairman, Senate Judiciary Committee, Washington, DC.
       Dear Chairman Biden: This responds further to your August 
     10th letter requesting certain documents relating to the 
     nomination of Judge Robert Bork to the Supreme Court. 
     Specifically, this sets forth the status of our search for 
     responsive documents and the methods and scope of review by 
     the Committee.
       As we have previously informed you in our letter of August 
     18, the search for requested documents has required massive 
     expenditures of resources and time by the Executive Branch. 
     We have nonetheless, with a few exceptions discussed below, 
     completed a thorough review of all sources referenced in your 
     request that were in any way reasonably likely to produce 
     potentially responsive documents. The results of this effort 
     are as follows:
       In response to your requests numbered 1-3, we have 
     conducted an extensive search for documents generated during 
     the period 1972-1974 and relating to the so-called Watergate 
     affair. We have followed the same procedure, in response to 
     request number 4, for all documents relating to consideration 
     of Robert Bork for the Supreme Court by President Nixon or 
     his subordinates. We have completed our search of relevant 
     Department of Justice and White House files for documents 
     responsive to these requests. The Federal Bureau of 
     Investigation also has completed its search for responsive 
     documents, focusing on the period October-December 1973 and 
     on references to Robert Bork generally.
       Most of the documents responsive to requests numbered 1-4 
     are in the possession of the National Archives and Records 
     Administration, which has custody of the Nixon Presidential 
     materials and the files of the Watergate Special Prosecution 
     Force. The Archives staff supervised and participated in the 
     search of the opened files of the Nixon Presidential 
     materials and the files of the Watergate Special Prosecution 
     Force, which was directed to those files which the Archives 
     staff deemed reasonably likely to contain potentially 
     responsive documents.
       Pursuant to a request by this Department under 36 C.F.R. 
     1275, the Archives staff also examined relevant unopened 
     files of the Nixon Presidential materials, and, as required 
     under the pertinent regulations, submitted the responsive 
     documents thus located for review by counsel for former 
     President Nixon. Mr. Nixon's counsel, R. Stan Mortenson, 
     interposed no objection to release of those submitted 
     documents that (a) reference, directly or indirectly, Robert 
     Bork, or (b) were received by or disseminated to persons 
     outside the Nixon White House. Mr. Mortenson on behalf of Mr. 
     Nixon objected to production of the documents which are 
     described in the attached appendix. Mr. Mortenson represents 
     that these documents constitute purely internal 
     communications within the White House and contain no direct 
     or indirect reference to Robert Bork.
       Mr. Mortenson also objected on the same grounds to 
     production of unopened portions of two documents produced in 
     incomplete form from the opened files of the Nixon 
     Presidential materials:
       1. First page and redacted portion of fifth page of 
     handwritten note of John D. Ehrlichman dated December 11, 
     1972.
       2. All pages other than the first page of memorandum from 
     Geoff Shepard to Ken Cole dated June 19, 1973.
       Mr. James J. Hastings, Acting Director of the Nixon 
     Presidential Materials Project, has reviewed these two 
     documents and has advised us that the unopened portions of 
     neither document contain any direct or indirect reference to 
     Judge Bork.
       Our search has not yielded a copy of the document 
     referenced in paragraph ``a'' of your request numbered 3, 
     which, as you correctly note, is printed at pages 287-288 of 
     the Judiciary Committee's 1973 ``Special Prosecutor'' 
     hearings.
       Among the documents collected by the Department are certain 
     documents generated in the defense of Halperin v. Kissinger, 
     Civil Action No. 73-1187 (D. D.C.), a suit filed against 
     several federal officials in their individual capacity, which 
     remains pending. The Department has an ongoing attorney-
     client relationship with the defendants in Halperin, which 
     precludes us from releasing certain documents containing 
     client confidences and litigation strategy, without their 
     consent. 28 C.F.R. 50.156(a)(3).
       All documents responsive to request number 5, concerning 
     the pocket veto, have been assembled.
       All documents responsive to request number 6 have been 
     assembled. The exhibits filed by counsel for Edward S. Miller 
     on July 12, 1978 and referred to in your August 10 letter, 
     remain under seal by order of the United States District 
     Court for the District of Columbia. However, a list of the 
     thirteen documents has been unsealed. We have supplied copies 
     of eleven of these documents, including redacted versions of 
     two of the documents (a few sentences of classified material 
     have been deleted). We have supplied unclassified versions of 
     two of these eleven documents, as small portions of them 
     remain classified. We are precluded by Rule 6(e) of the Rules 
     of Criminal Procedure from giving you access to two other 
     exhibits--classified excerpts of grand jury transcripts--
     filed on July 12, 1978. We also searched the files of several 
     civil cases related to the Felt and Miller criminal 
     prosecution, as well as the documents generated during the 
     consideration of the pardon for Felt and Miller.
       With respect to request number seven, Judge Bork has 
     previously provided to the Committee a number of his 
     speeches, which we have not sought to duplicate. We have 
     sought and supplied any additional speeches, press 
     conferences or interviews by Mr. Bork, as well as any 
     contemporaneous documents which tend to identify a date or 
     event where he gave a speech or press interview during his 
     tenure at the Department.
       On request number eight, there are no documents in which 
     President Reagan has set forth the criteria he used to select 
     Supreme Court nominees, or their application to Judge Bork, 
     other than the public pronouncements and speeches we have 
     assembled.
       Our search for documents responsive to request number nine 
     has been time-consuming and very difficult, and is not at 
     this time entirely complete. In order to conduct as broad

[[Page 4769]]

     a search as possible, we requested the files in every case 
     handled by the Civil Rights Division or Civil Division, 
     between 1969-77, which concerned desegregation of public 
     education. Although most of these case files have been 
     retrieved, several remain unaccounted for and perhaps have 
     been lost. We expect to have accounted for the remaining 
     files (which may or may not contain responsive documents) in 
     the next few days. We have also assembled some responsive 
     documents obtained from other Department files. The 
     Department of Education is nearing completion of its search 
     of its files, and those of its predecessor agency, HEW.
       We have assembled case files for the cases referred to in 
     question ten, with the exception of Hill v. Stone, for which 
     there is no file. We have no record of the participation of 
     the United States in Hill v. Stone, or consideration by the 
     Solicitor General's office of whether to participate in that 
     case.
       A few general searches of certain front office files are 
     still underway, and we expect those searches to be concluded 
     in the next few days. We will promptly notify you should any 
     further responsive documents come into our possession.
       As you know, the vast majority of the documents you have 
     requested reflect or disclose purely internal deliberations 
     within the Executive Branch, the work product of attorneys in 
     connection with government litigation or confidential legal 
     advice received from or provided to client agencies within 
     the Executive Branch. The disclosure of such sensitive and 
     confidential documents seriously impairs the deliberative 
     process within the Executive Branch, our ability to represent 
     the government in litigation and our relationship with other 
     entities. For these reasons, the Justice Department and other 
     executive agencies have consistently taken the position, in 
     response to the Freedom of Information Act and other 
     requests, that it is not at liberty to disclose materials 
     that would compromise the confidentiality of any such 
     deliberative or otherwise privileged communications.
       On the other hand, we also wish to cooperate to the fullest 
     extent possible with the Committee and to expedite Judge 
     Bork's confirmation process. Accordingly, we have decided to 
     take the exceptional step of providing the Committee with 
     access to responsive materials we currently possess, except 
     those privileged documents specifically described above and 
     in the attached appendix. Of course, our decision to produce 
     these documents does not constitute a waiver of any future 
     claims of privilege concerning other documents that the 
     Committee request or a waiver of any claim over these 
     documents with respect to entities or persons other than the 
     Judiciary Committee.
       As I have previously discussed with Diana Huffman, the 
     other documents will be made available in a room at the 
     Justice Department. Particularly in light of the voluminous 
     and privileged nature of these documents, copies of 
     identified documents will be produced, upon request, only to 
     members of the Judiciary Committee and their staff and only 
     on the understanding that they will not be shown or disclosed 
     to any other persons. Please have you staff contact me to 
     arrange a mutually convenient time for inspection of the 
     documents.
       As I stressed in my previous letter, if the Committee is or 
     becomes aware of any documents it believes are potentially 
     responsive but have not been produced, please alert us as 
     soon as possible and we will attempt to locate them.
       Should you have any questions or comments, please contact 
     me as soon possible. Thank you for your cooperation.
           Sincerely,

                                                  Laura Wilson

                                    (for John R. Bolton, Assistant
                                                 Attorney General)

                                Appendix


         Documents Subject to Objection by Mr. Nixon's Counsel

       1. Memorandum to Buzhardt and Garment, from Charles Alan 
     Wright, January 7, 1973. Subject: June 6th meeting with the 
     Special Prosecutor. (Document No. 8)
       2. Memorandum to Buzhardt and Garment, from Charles Alan 
     Wright, January 7, 1973. Subject: June 6th meeting with the 
     Special Prosecutor. (Document No. 9)
       3. Memorandum to Garment, from Ray Price, July 25, 1973. 
     Subject: Procedures re: Subpoena. (Document No. 13)
       4. Memorandum to General Haig, from Charles A. Wright, July 
     25, 1973. Subject: Proposed redrafts of letters. (Document 
     No. 14)
       5. Draft letter to Senator Ervin, dated July 26, 1973. 
     Subject: two subpoenas from Senator Ervin. (Document No. 15)
       6. Draft letter to Judge Sirica, dated July 26, 1973. 
     Subject: subpoena duces tecum. (Document No. 16)
       7. Memorandum to The Lawyers, from Charlie Wright, dated 
     July 25, 1973. Subject: Thoughts while shaving. (Document No. 
     17)
       8. Memorandum to The President, from J. Fred Buzhardt, 
     Leonard Garment, Charles A. Wright, dated July 24, 1973. 
     Subject: Response to Subpoenas. (Document No. 18)
       9. Memorandum to Ray Price, from Tex Lezar, dated October 
     17, 1973. Subject: WG Tapes. (Document No. 20)
       10. Memorandum to Leonard Garment and J. Fred Buzhardt, 
     from Charles A. Wright, dated August 3, 1973. Subject: 
     Discussions with Philip Lacovara. (Document No. 25)
       11. Memorandum to the President, from Leonard Garment, J. 
     Fred Buzhardt, Charles A. Wright, dated August 2, 1973. 
     Subject: Brief for Judge Sirica. (Document No. 26)
       12. Memorandum to Len Garment, Fred Buzhardt, Doug Parker 
     and Tom Marinis, From Charlie Wright, dated August 1, 1973. 
     Subject: note regarding brief. (Document No. 27)
       13. Memorandum to The President, from J. Fred Buzhardt, 
     Leonard Garment and Charles A. Wright, dated July 24, 1973. 
     Subject: Response to Subpoenas. (Document No. 28)
       14. Draft letter to Senator Ervin, dated July 26, 1973. 
     Subject: two subpoenas issued July 23rd. (Document No. 29)
       15. Draft letter to Judge Sirica, dated July 26, 1973. 
     Subject: subpoena duces tecum. (Document No. 30)
       16. Memorandum to J. Fred Buzhardt, Leonard Garment and 
     Charles Alan Wright, from Thomas P. Marinis, Jr. (undated). 
     Subject: Appealability of Cox Suit. (Document No. 31)
       17. Notes (handwritten) (undated). Subject: [appears to be 
     notes of oral argument]. (Document No. 32)
       18. Memorandum to The President, from Charles Alan Wright, 
     dated September 14, 1973. Subject: Response to Court's 
     memorandum. (Document No. 34)
       19. Handwritten notes. (Document No. 36)
       20. Memorandum to J. Frederick Buzhardt, from Charles Alan 
     Wright, dated June 2, 1973. Subject: Executive privilege. 
     (Document No. 41)
       21. Memorandum to J. Frederick Buzhardt and Leonard 
     Garment, from Charles Alan Wright, dated June 7, 1973. 
     Subject: June 6th meeting with Special Prosecutor. (Document 
     No. 42)
       22. Memorandum to J. Fred Buzhardt from Robert R. Andrews, 
     dated June 21, 1973. Subject: Executive Privilege. (Document 
     No. 43)
       23. Memorandum to J. Fred Buzhardt and Leonard Garment, 
     from Thomas P. Marinis, Jr., dated June 20, 1973. Subject: 
     Professor Wright's attempt to obtain document. (Document No. 
     44)
       24. Memorandum to J. Fred Buzhardt and Leonard Garment, 
     from Charles Alan Garment (sic), dated June 7, 1973. Subject: 
     June 6th meeting with the Special Prosecutor. (Document No. 
     46)
       25. Draft letter to Senator, from Alexander Haig, dated 
     December 12, 1973. Subject: Response to letter of the 5th. 
     (Document No. 60)
       26. Draft Letter to Senator, from Alexander Haig, dated 
     December 12, 1973. Subject: Response to letter of the 5th. 
     (Document No. 61)
       27. Proposal re: transcription of tapes, dated October 17, 
     1973. (Document No. 63)
       28. Typed note with handwritten notation: Sent to Buzhardt 
     12/11/73, undated. Subject: papers Buzhardt sent to Jaworski. 
     (Document No. 66)
       29. Chronology--Presidential Statements, Letters, 
     Subpoenas, dated March 12, 1973. Subject: chronology of same. 
     (Document No. 71)
       30. Handwritten note, dated 1/31/74 (January 31, 1974). 
     Subject: Duties and responsibilities of Special Prosecutor. 
     (Document No. 82)
       31. Memorandum to Fred Buzhardt, from William Timmons, 
     dated 7/30/73 (July 30, 1973). Subject: refusal to release 
     taped conversations. (Document No. 91)
       32. Memorandum to Fred Buzhardt, from Paul Trible, dated 
     October 30, 1973. Subject: Cox's diclosure of Kleindienst's 
     confidential communication. (Document No. 92)
       33. Proposal regarding transcription of tape conversations, 
     dated 10/17/73 (October 17, 1973). (Document No. 94)

  Mr. REID. These clearly indicate that Bolton acknowledged materials 
would be forthcoming.
  The reason these are important is that we have said this man who has 
no judicial record whatsoever--and I heard the distinguished Presiding 
Officer give a statement yesterday about the many judges who have been 
distinguished who have not had judicial experience. We have never 
debated that. We agree, one does not have to have judicial experience 
to be a good judge. If that were the case, there would never be any 
good judges, quite frankly. Somebody has to start someplace. In fact, 
we would never have judges. That is what is referred to as a red 
herring.
  We have never alleged that Miguel Estrada is disqualified from being 
a judge because he has not been a judge. That is something that the 
majority has talked about a lot, but we have never raised that as an 
issue.
  What we have said is that those instances where we can learn 
something about his political philosophy and his philosophy as it 
relates to jurisprudence, we need to know something about that. The 
only place we can go to look is in relation to when he worked at the 
Solicitor's Office because he has

[[Page 4770]]

not answered the questions we have asked him about the cases he 
prepared and took to trial when he was an Assistant Attorney General or 
when he argued cases before appellate courts.
  As I have said on a number of different occasions, I have been to 
court lots of times. I have represented all kinds of different people. 
In all the cases I took, when I argued a case before a jury and before 
a court, one could not find out what my political or judicial 
philosophy was. The reason was I was being paid to represent somebody 
and carrying out my responsibilities as a lawyer.
  So the fact that he has been before the Supreme Court and other 
appellate courts and has tried cases adds to someone's capabilities, 
but it does not allow us to find out about a person who is going to the 
second highest court in the land, if he passes this test. That is not 
enough. We need to know something about him. That is the reason we have 
raised these issues.
  One thing my friend from Vermont raised, and I thought it was so good 
last evening: One does not have to graduate first in their class at 
Harvard to be a judge, but we heard assertions that Miguel Estrada has 
graduated first in his class. He has not. But he could graduate last in 
his class. He went to Harvard, which is one of the top two or three law 
schools in the entire country. The mere fact he went to Harvard means 
he is really smart.
  He did not graduate first in his class. He was not editor of the Law 
Review. He was, with 71 other men and women at Harvard, part of the Law 
Review. He was 1 of 71. That is a pretty large group. As I have 
indicated, they are all smart.
  The fact that he was an editor adds to his qualifications, but do not 
try to puff him up to make him something that he is not. He was not 
editor of the Law Review.
  I think we are off on a lot of tangents. As Senator Hatch laid out so 
clearly last night, I think it is tremendous that a man came from 
Central America when he was 17 years old, went to Columbia University, 
also a school that is hard to get in, so he must have done well on his 
tests. I think it is tremendous that he was able then to go to Harvard. 
But let's not try to make this a rags-to-riches story because it was 
not. He did well, and that is tremendous. He is an immigrant to this 
country who has done well academically, but let's not build this up to 
some kind of a Horatio Alger story as some have said. I think the guy 
has done very well, and that is commendable. But we have heard all of 
these assertions that he graduated first in his class and he was editor 
of the Law Review, which is not true. It does not take away from what a 
smart man he must be.
  We heard a lot last night, with Senators asking questions of Senator 
Hatch about all the editorials from around the country. Of course, 
there are lots of editorials that oppose Miguel Estrada. There is no 
need to read all of them, but I would like to read one from the New 
York Times. It may only be one newspaper, but the circulation makes up 
for a lot of smaller newspapers.
  This editorial is 411 words long and is entitled ``Full Disclosure 
for Judicial Candidates.''

       The Constitution requires the Senate to give its advise and 
     consent on nominees for federal judgeships. But in the case 
     of Miguel Estrada, the Bush administration's choice for a 
     vacancy on the powerful United States Court of Appeals for 
     the District of Columbia Circuit, the Senate is not being 
     given the records it needs to perform its constitutional 
     role. The Senate should not be bullied into making this 
     important decision in the dark.
       Mr. Estrada, who has a hearing before the Senate Judiciary 
     Committee tomorrow, has made few public statements about 
     controversial legal issues. But some former colleagues report 
     that his views are far outside the legal mainstream.
       The best evidence of Mr. Estrada's views is almost 
     certainly the memorandums he wrote while working for the 
     solicitor general's office, where he argued 15 cases before 
     the Supreme Court on behalf of the federal government. In 
     these documents, he no doubt gave his views on what position 
     the government should take on cases before the Supreme Court 
     and lower federal courts. Reading them would give the Senate 
     insight into how Mr. Estrada interprets the Constitution, and 
     in what direction he believes the law should head.
       There are precedents for this. When Robert Bork was 
     nominated to the Supreme Court in 1987, the Senate was given 
     access to memos prepared while he was solicitor general. The 
     administration has no legal basis for its refusal to supply 
     these documents. Congress has oversight authority over the 
     solicitor general's office, which is part of the Justice 
     Department, and therefore has a right to review its records. 
     Attorney-client privilege and executive privilege are 
     inapplicable for many reasons, including their inability to 
     override the Senate's constitutional duty to investigate 
     fully this judicial nomination.
       This is an administration that loves secrecy, on issues 
     ranging from the war in Iraq to Vice President Dick Cheney's 
     energy task force. And it seems to think that if Congress is 
     ignored, it will simply go away. Congress must insist on 
     getting the documents it needs to evaluate Mr. Estrada, and 
     it should not confirm him until it does.
  There are three things that can be done and we have been saying this 
for the 3 weeks we have been on this matter. No. 1, pull the 
nomination. What does that mean? That means go to something else. No. 
2, try to invoke cloture. File a motion to invoke cloture and to do 
that you need 60 votes. That certainly is within the framework of the 
Senate for these many years. I also recognize the other way to do this 
is for Mr. Estrada to come before the Senate and answer the questions 
that we ask and also supply the memoranda that the New York Times says 
he should supply. That would be the way to get over this.
  We have had now for several days statements made that we should not 
be on this, that Miguel Estrada is making hundreds of thousands of 
dollars a year as a lawyer, fully employed at a large law firm here in 
Washington, DC. We believe that for the many people who are unemployed, 
the many people who have lost their jobs, 2.8 million during the 2 
years of this administration, we should be dealing with those people 
who are not employed and underemployed people with no health insurance 
or who are underinsured, people who are trying to make it educationally 
and otherwise in this society. That is what we should be dealing with. 
Rather than spending 3 weeks on a man who is fully employed, making 
hundreds of thousands of dollars a year, we think we should get off 
this and go to something else.
  We are, as has been indicated, here for the duration. If the majority 
decides they would rather spend the Senate's valuable time on Miguel 
Estrada, they can do that. But I say that idle time is time we cannot 
make up later. There is a limited amount of time and a limited amount 
of legislative days that we have. We could be going to something else.
  These filibusters occur very infrequently. I have been here more than 
two decades now and filibusters are very rare. Once in a while you have 
to stand for what you believe is right. As the New York Times 
indicated, we believe we are right.
  Now, there was a lot of name calling last night. Both my friend from 
Colorado and my friend from Tennessee have the absolute right to voice 
their opinion. I don't think any less of Members for voicing opinions 
because they disagree with me. I don't think this is the time to name 
call. We have an actual factual dispute in the Senate. It is now in a 
procedural bog. We have to figure a way out of this. It should be a 
debate that is worthy of the traditions of the Senate. That is what 
this is all about. The Senate traditionally has had debate we read 
about in our history books. That is what I want the people who read 
about this debate to see in years to come--not calling each other 
names, negative in nature but, rather, referring to a person's position 
as one of conviction.
  I listened to the speech of the Presiding Officer who indicated he 
would wait until next Tuesday to give his maiden speech, but he felt so 
passionate--that is my word, not his--about this issue that he wanted 
to give it a few days early. More power to the Senator from Tennessee. 
That is certainly fine. That is tremendous that the Senator from 
Tennessee made his speech and he feels strongly about the issue. It 
does not mean I have to agree with him. But I admire and respect his 
position.
  Everyone on the other side should understand we also have conviction

[[Page 4771]]

and feel passionately about this issue, and sometimes there are 
stalemates. This may be one of those. There may be a very tough 
decision that the majority leader has to make to pull this nomination. 
If he wants to go through a cloture vote, second cloture vote, a third 
cloture vote, eat up more time of the Senate, we are here. We are here 
for the duration. I don't think because we are involved in this debate 
that people suddenly need to say the Senate will never be the same. Of 
course it will be the same. We survived the filibuster with the Abe 
Fortas nomination. We survived that. It was very tough at the time. I 
watched that from the sidelines. We survived the filibusters conducted 
against President Clinton's nominees. The problem the Republicans had 
at that time, they did not have enough votes to stop cloture from being 
invoked because there were Republicans of good will who decided it was 
the wrong thing to do. That is good.
  The fact there were filibusters and some people felt so strongly is 
hard to comprehend, but even after the filibuster was ended with the 
cloture vote then people still moved to postpone that nomination. It 
went that far.
  The Senate survived that. And the Senate will survive this little 
dustup that is going on here.
  The point I am trying to make, let's feel good about other people's 
positions. You do not have to be mean spirited about someone 
disagreeing with you. I hope, however long this debate takes, whether 
it is ended today, Friday, next week, or a month from now, that people 
will speak well about each other in the Senate and not resort to name 
calling. That is not good at all.
  I hope we can move on to some of the other important issues now 
facing this country.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Colorado.
  Mr. ALLARD. Mr. President, I stand in support of Miguel Estrada, and 
the need for a vote on his nomination. I listened to the comments of my 
colleague from Nevada, and I ask myself, what is this debate really 
about? The debate is about whether a majority of Senators should have 
the opportunity to voice their opinion through a vote on Miguel 
Estrada. I, for one, feel like I have adequate information. There is 
more than a majority of Senators in this body who obviously feel they 
have adequate information to take a vote on Miguel Estrada.
  This filibuster is unprecedented. We have never had a filibuster of 
this nature before on a circuit court judge up for consideration before 
this body. I think it is time we recognize that in the Constitution 
there is an advise and consent provision. Many of us feel the debate 
has reached the point where enough questions have been asked and now 
the full body of the Senate is ready to proceed to a vote.
  When a judge starts through the nomination process, he is introduced 
to the Senate through resolution. The nomination goes to the committee. 
There is also a process where individual Senators can express their 
concerns through a blue slip process. Then there are hearings and votes 
in committee, and then the nomination comes to the floor for a vote.
  Miguel Estrada has gone through this process. He has even received 
the highest recommendation from the American Bar Association. That is a 
body of peers, peers he has done business with on a regular basis, who 
understand his record, who know him personally, and who appreciate and 
respect his professional competence to the point they are willing to 
give him the highest rating the American Bar Association will give to 
any nominee.
  I think he has a great story. He came to this country with a limited 
English language ability at the age of 17. He could speak Spanish 
hardly any English at all. If you come here at 17 and don't know the 
language and you graduate from a university magna cum laude and then go 
and serve on the Harvard Law Review--it is simply an outstanding 
academic accomplishment.
  This individual's accomplishments did not stop with graduation; they 
continued through his professional life. Not just anybody gets to argue 
before the Supreme Court of the United States. That is a select group 
of people. So as far as I am concerned, let's simplify this debate, as 
my colleague suggested. Let's have a vote. That is what we are talking 
about. Let's just bring up Miguel Estrada for a vote in the Senate. I 
think it is time. I think a lot of debate has been going on. There are 
some differences of opinion about things that can be argued about. But 
if we have a vote, each individual Senator has an opportunity to make 
up his or her mind as to how they feel, as to whether or not there is 
enough information, to make up their minds as to whether they think 
this is the quality of person they would like to have on the DC Court 
of Appeals.
  The assistant Democratic leader suggested there are three ways to 
resolve this problem. He said we can pull the nomination, file cloture, 
or submit the nominee to additional questioning. I suggest another: To 
do what we do for most nominees; that is, have the debate, which we are 
having and have done, set a time certain for a vote, which the other 
side simply has refused to do, and then vote up or down. Unfortunately, 
they are not going to permit that to happen.
  Last night I joined a majority of my colleagues to display our unity 
in support for Miguel Estrada, a display of support that is 
particularly important in the midst of this Democrat-led filibuster. 
But last night was more than just a display. It was an attempt to break 
the logjam, a good will invitation to carry out the Senate's duties as 
commanded by the advice and consent clause of the Constitution. My 
colleagues and I gathered here on the floor last night, ready to act. A 
majority of this body is willing to move forward on the nomination of 
Miguel Estrada by taking a simple up-or-down vote. That is all we are 
asking for, a simple up-or-down vote on a nominee who is more than 
qualified to assume the judgeship of the DC Circuit Court, the second 
most important court in the United States.
  Hoping to proceed, my colleagues and I participated in a dialog with 
Chairman Hatch, a back-and-forth exchange of questions and answers. I 
admire, I have to say, the ability and knowledge of Chairman Hatch and 
his dedication to this cause, especially as it became apparent that we, 
once again, would be denied the opportunity to vote, held hostage by a 
game of entrenchment politics.
  Every time I hear one of my colleagues address the nomination of Mr. 
Estrada, I cannot help but to be both impressed and shocked, impressed 
with the character and integrity, the intellect and principles of Mr. 
Estrada; and shocked that such a capable man, who has the opportunity 
to become the first Hispanic judge on the DC Circuit Court, cannot even 
receive a vote, a simple up-or-down vote.
  The majority of my colleagues are ready to move forward on the 
nomination. We are ready to vote. I cannot cast judgment on those who 
oppose Mr. Estrada. If they want to vote no, that is their choice. I 
respect that. It is their right. I understand that. I voted against 
judges whom I believed were not fit to serve. But it is implausible to 
think he should be denied a vote entirely.
  Newspapers, radio stations, television programs across the country 
are demanding that the stalemate end, and that the minority party allow 
the Senate to proceed and to break off a filibuster that could amount 
to a major shift in constitutional authority.
  Last week I spent the Presidents Day recess traveling across the 
State of Colorado. In every community, big or small, concerned citizens 
shared their beliefs on the importance of this nomination and the need 
to provide a vote for Miguel Estrada. They were appalled that we were 
not moving forward, that their representative in the Senate would not 
have an opportunity to vote on a very important consideration for the 
judiciary. Perhaps some disagree on whether he should be confirmed, but 
they all agree there should be at least a vote, and they agree it 
should be done without shifting constitutional authority in a manner 
that imposes a supermajority requirement on all judicial nominations. I 
am afraid that is where we are headed.

[[Page 4772]]

  Let me share with you a couple of editorials that ran in Colorado's 
two major newspapers, one published in the Denver Post, the other 
appearing in the Rocky Mountain News.
  The Denver Post, a paper that endorsed Al Gore in 2000, and by no 
means an arm of the Republican party, demands that Estrada be given his 
day in court, that the Senate be provided a vote. The paper confirms 
the outstanding quality of the nominee, noting that he is a picture 
book example of an immigrant pursuing the American dream.
  The Denver Post also recognizes his outstanding credentials, stating 
that while he may lack judicial experience, so, too, do a majority of 
those now sitting on the DC Circuit Court, some of whom were nominated 
by Presidents Carter and Clinton.
  I have a statement here from the editorial in the Denver Post on the 
posterboard beside me.

       The key point is that there should be a vote . . . a 
     filibuster should play no part in the process.

  The Rocky Mountain News simply described the Democrats tactics as 
``ugly,'' commenting on their attempt to thwart the Senate's 
majoritarian decisionmaking.
  The editorial calls the filibuster:

       . . . irresponsible, a hysteria being acted out to keep 
     Estrada from serving on the US Court of Appeals for the 
     District of Columbia.

  On the chart I have a quote from both papers highlighting the need to 
end the filibuster and to proceed to a vote.
  The Denver Post:

       The key point is that there should be a vote . . . a 
     filibuster should play no part in the process.

  The Rocky Mountain News concludes that:

       The Democrats have no excuse. Keeping others from voting 
     their consciences on this particular matter is simply out of 
     line.

  Editorial boards across the country echo this very same sentiment. 
More than 60 major newspapers are calling for an end to the filibuster.
  I would like to share with my colleagues here this afternoon a few of 
those. Let me name a few:
  The Arkansas Democrat-Gazette; in California, Redding, and The Press 
Enterprise; The Hartford Courant; The Washington Post; in Florida, The 
Tampa Tribune and The Florida Times-Union; The Atlanta Journal 
Constitution and the Augusta Chronicle; the Chicago Tribune in 
Illinois, along with the Chicago Sun-Times, and Freeport Journal 
Standard; The Advocate in Baton Rouge, Louisiana; The Boston Herald; 
The Detroit News and Grand Rapids Press; in New Mexico the Albuquerque 
Journal; in Nevada, the Las Vegas Review Journal; the Winston-Salem 
Journal in North Carolina; in North Dakota, the Grand Forks Herald; the 
Providence Journal in Rhode Island; in West Virginia, the Wheeling News 
Register/Intelligencer; and nationally, the Investor's Business Daily 
and the Wall Street Journal.
  I would also like to refute one of the arguments being put forward by 
the Democrats against Mr. Estrada.
  For 11 days we have heard statements that the nominee is not 
qualified to serve because he lacks judicial experience. This standard 
is simply ridiculous.
  Had it applied to their own Democratic nominees, it would have 
prevented some of the most capable attorney's from being seated on the 
federal bench.
  Under the experience litmus test, the late Justice Byron ``Whizzer'' 
White, a great Coloradan, who was nominated to the Supreme Court by 
President John F. Kennedy, would never have been confirmed.
  Nor would another great Coloradan, Judge Carlos Lucero, who was 
nominated by President Bill Clinton to the Tenth Circuit Court of 
Appeals, have been confirmed.
  To consider a lack of judicial experience as the poison pill of the 
Estrada nomination while ignoring the confirmation of Democratic 
nominees Justice White and Judge Lucero, is a double standard of the 
highest order.
  The majority of this body, a majority elected by the American people, 
is ready to proceed with the nomination of Miguel Estrada.
  I have no doubt that the obstructionists have their own reason to 
vote against the nominee. But they have no reason to prevent a vote 
entirely.
  I hope that my colleagues will realize the danger of the path they 
have chosen, and will end this course of obstruction.
  While I believe a full and fair debate of Presidential nominees is of 
paramount importance, obstructing an up-or-down vote fails the public 
trust and is a disservice to our system of justice.
  I know how I am going to vote. I am voting for a highly qualified 
individual. A nominee who the American Bar Association has stated is 
``highly-qualified.'' That individual is Miguel Estrada, and he 
deserves a vote by the United States Senate.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. CLINTON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                title ix

  Mrs. CLINTON. Mr. President, yesterday, the President's Commission on 
Opportunity in Athletics released its recommendations for Title IX and 
some of the findings are a haunting reminder of the way things used to 
be.
  It seems that many of the Commissioners believe that men's sports 
have suffered because of women's programs. They believe that it is okay 
to count ``slots'' instead of actual women players. And some believe 
that since men are better ``naturally'' at sports compared to women--
that is their word and not mine. That is a true statement if it comes 
from me, but it is not a true statement when it comes from other women 
who are more athletically different--and, therefore, men deserve more 
funding and support. I don't think we should forget that was the excuse 
used for decades and for generations to keep women out of college, out 
of math and science classes, and out of the workplace.
  I remember as a young girl reading stories of the first women back in 
the 19th century who wanted to go to medical school to become a doctor 
or to a law school to become lawyers and who wanted to go to college to 
further their education. There were court decisions which said women 
naturally were not suited for higher education. It will wear out their 
brain. It will undermine their health, and they certainly are not fit 
to go into the courtroom or into the operating room. Thank goodness we 
have come a long way from those days.
  But I think about it frequently because my mother was born before 
women could vote. Lest we forget that many of the changes which we now 
take for granted did not come about just because somebody changed their 
mind. It is because we had to fight for work and for the kind of 
progress which we can see all around us.
  For 30 years, title IX has encouraged millions of girls and women to 
participate in sports. In 1972, only 1 out of every 27 women 
participated in sports. Today, that number is 1 in 2. The program 
works. I think we should recognize the extraordinary progress we have 
made.
  I remember very well that although I loved playing sports and 
athletics as a young girl, I was never very good at it. But I played 
hard, and it was a major influence on my understanding of my abilities, 
my limits, teamwork, and sportsmanship. It was hard for me to accept 
the fact that many of my friends and colleagues who were more talented 
really hit a wall. There were not the kind of interscholastic teams 
available at the high school level which we now take for granted. There 
were not scholarships available in most sports for most girls who had 
the capacity to compete and be good. The colleges were in no way 
fulfilling the need and desire that young women had to further their 
athletic pursuits. There really wasn't anything that you could point to 
as being professional athletic options for extremely well-qualified and 
motivated women.

[[Page 4773]]

  I believe passionately that title IX changed the rules on the playing 
field and opened up the opportunities so more girls and women could see 
themselves on that field--and create conditions that would encourage 
our institutions actually to respond to those needs and desires.
  I was very pleased to hear last night that Secretary Paige announced 
he would only consider the recommendations of the Commission that the 
Commission unanimously agreed upon. And I applaud that announcement.
  But I believe that the minority report, which was written by Julie 
Foudy, the captain and 9-year veteran of the U.S. Women's National 
Soccer Team, and Donna de Varona, an Olympic swimmer with two gold 
metals, raises questions about whether any of these recommendations can 
actually be described as unanimous.
  The introduction of the report reads as follows:

       After . . . unsuccessful efforts to include . . . our 
     minority views within the majority report, we have reached 
     the conclusion that we cannot join the report of the 
     Commission.

  And Julie Foudy and Donna de Varona go on to say:

       Our decision is based on our fundamental disagreement with 
     the tenor, structure and significant portions of the content 
     of the Commission's report, which fails to present a full and 
     fair consideration of the issues or a clear statement of the 
     discrimination women and girls still face in obtaining equal 
     opportunity in athletics--

  They go on to say:

     [secondly,] our belief that many of the recommendations made 
     by the majority would seriously weaken Title IX's protections 
     and substantially reduce the opportunities to which women and 
     girls are entitled under current law; and, [third,] our 
     belief that only one of the proposals would address the 
     budgetary causes underlying the discontinuation of some men's 
     teams, and that others would not restore opportunities that 
     have been lost.

  Their goal in issuing this minority report was to make sure it was 
included in the official record of the Commission. Unfortunately, it is 
my understanding that the Secretary of Education today has refused to 
include the minority report. I think that is fundamentally unfair. To 
me, that report should belong with the majority report, especially 
since those two women, probably between them, have more direct personal 
experience in what athletics can mean to a woman's life and what it was 
like before IX, when Donna was competing, and what it was like after IX 
was enacted, when Julie helped to lead our women's soccer team to the 
World Cup Championship.
  Therefore, Mr. President, I am going to ask unanimous consent to have 
printed in the Record this minority report. I am doing so because I 
believe it is important that on this issue we hear from the people who 
have the most to lose: women athletes, women students. Julie and Donna 
were invited to join the Commission to represent that point of view, 
and their voices should be heard. For the information of my colleagues, 
the minority report can be found at http://www.womensports 
foundation.org/binary-data/WSF--Article/pdf--file/944.pdf.
  Now, along with my colleagues, Senator Daschle, Senator Kennedy, 
Senator Murray, Senator Snowe, and Senator Stevens, who care so deeply 
about this issue, we will continue to keep a watchful eye on the 
Department of Education because the truth is, they do not need 
permission from the Commission or anyone else to adopt the changes the 
Commission has proposed; they can propose to change the regulations or 
offer guidance at any time.
  So I am here today in the Chamber to say that I, and many of my 
colleagues on both sides of the aisle--men and women alike; athletes 
and nonathletes alike--will fight to protect title IX for our daughters 
and our granddaughters and generations of girls and women to come.
  But let me also add, my support of title IX and my support of the 
right of the minority to be heard with respect to the Commission's 
recommendations does not, in any way, suggest that I do not believe in 
the importance of sports for young men, because I do. I strongly 
support sports for all young people.
  In fact, I think it is very unfortunate that physical education has 
been dropped from so many of our schools, that so many of our 
youngsters not only do not have the opportunity to discharge energy and 
engage in physical activities, but to learn about sports, to find out 
that maybe something would inspire their passion and their commitment.
  There are other ways to ensure that all boys and girls, all men and 
women have the opportunity for athletic experiences, to participate on 
teams.
  I was somewhat distressed, when the Commission was appointed, with 
the number of Commissioners who represented an experience that is not 
the common experience; namely, the experience of very high stakes, big 
college and university football, which of course is important; I very 
much believe that. But that is only one sport, and it is a very 
expensive sport.
  I think there are ways, without taking anything away from anyone--
boys, girls, men, women--that we can listen to the voices of 
experience, such as Julie's and Donna's, and come to recognize that 
there may be other reasons, besides the law, that some men's teams have 
been discontinued, which I am very sorry about and wish did not have to 
happen and believe should not have happened if there had been a fairer 
allocation of athletic resources across all sports.
  So I think we can come to some agreements that would serve perhaps to 
create additional opportunities, but we should not do it to the 
detriment of girls and women.
  I appreciate the opportunity to come to the floor to recognize this 
very important piece of legislation which has literally changed the 
lives of girls and women and should continue to do so. What we ought to 
be doing is looking for ways we can enhance the physical activity, the 
athletic, competitive opportunities of boys and girls.
  One of the biggest problems we have confronting us now is obesity 
among young people. We need to get kids moving again. We need to get 
them in organized physical education classes, intramural sports, 
interscholastic sports, afterschool sports, and summer sports, so they 
can have an opportunity to develop their bodies and their athletic 
interests, as well as their minds and their academic pursuits.
  Mr. KYL. Mr. President, also, for the information of my colleagues, 
``Open to All,'' the report of the Secretary of Education's Commission 
on Opportunity in Athletics can be found at http://ed.gov/pubs/
titleixat30/index.html.


                           Homeland Security

  Mrs. CLINTON. Now, Mr. President, on another issue that is of deep 
concern to me, I come also to raise questions about our commitment to 
homeland security. This is something I have come to this Chamber to 
address on numerous occasions, starting in those terrible days after 
September 11, 2001. And it is an issue I will continue to address in 
every forum and venue that I possibly can find because, unfortunately, 
I do not believe we have done enough to protect ourselves here at home.
  On February 3, Mitch Daniels, the Director of the Office of 
Management and Budget, said:

       There is not enough money in the galaxy to protect every 
     square inch of America and every American against every 
     conceived threat.

  This statement bothered me at the time. It has continued to bother 
me. I suppose, on the face of it, it is an accurate statement. Not only 
isn't there enough money in the United States, the world, or the galaxy 
to protect every square inch, but what kind of country would we have if 
we were trying to protect every square inch? That would raise all sorts 
of issues that might possibly change the character and quality of life 
here in America.
  But I do not think that is what really motivated the statement. The 
statement was a kind of excuse, if you will, as to why this 
administration has consistently failed to provide even the rudimentary 
funding that we have needed for our first responders and to deal with 
national security vulnerabilities.
  We have learned, in the last few months, that threats do exist all 
over our country. It is not just New York

[[Page 4774]]

City or Washington, DC, that suffered on September 11. We know that in 
the months since then, we have seen many other parts of our country 
respond to alerts--our latest orange alert--which have required huge 
expenditures of resources in order to protect local water supplies, 
bridges, chemical plants, nuclear powerplants, to do all that is 
necessary to know that we have done the best we can.
  Life is not certain. There is no way any of us knows where we will be 
in an hour or in a day or in a year. But what we try to do is to plan 
for the worst, against contingencies that might undermine our safety. 
And then we have to just hope and trust and have faith that we have 
done enough. But if we do not try, if we do not make the commitment, if 
we do not provide the resources, then we have essentially just put up 
our hands and surrendered to what did not have to be the inevitable.
  When I heard Mr. Daniels make that comment, I thought to myself, if 
you had made a list of every community in America that might possibly 
be a site for an al-Qaida terrorist cell, I am not sure that 
Lackawanna, NY, would have made that list. It is a small community 
outside of Buffalo where the FBI, in cooperation with local law 
enforcement, uncovered such a cell of people who had gone to Bin 
Laden's training camps in Afghanistan and then come back home, most 
likely what is called a sleeper cell. Their leader was in Yemen where 
one of our predator aircraft found him and took action against him and 
his compatriots who are part of the al-Qaida terrorist campaign against 
us. If we were just thinking, where should we put money to protect 
ourselves, I am not sure Lackawanna, NY, would have been on that list. 
Yet we have reason to believe it should be on any list anywhere. Just 
yesterday four men in Syracuse, NY, were accused of sending millions of 
dollars to Saddam Hussein.
  I don't know that we can sit here in Washington and say: Well, we 
can't possibly protect everybody so we shouldn't protect anybody. But 
that seems to be the attitude of this administration. That is what 
concerns me most. We should be doing everything we possibly can to make 
our country safer. We should be thinking 24 hours a day, 7 days a week 
about new steps, smart steps that we should be taking. Why? Because 
that is what our enemies do when they think about how to attack us. If 
somebody is on CNN or the Internet, it doesn't stop at our borders. 
That is viewed and analyzed in places all over the world. We know that 
they are working as hard as they possibly can to do as much harm to us 
and our way of life as they possibly can.
  Since September 11, our first responders, our mayors, police and fire 
chiefs have said over and over again they need Federal support so they 
can do their jobs to protect the American people. During this recent 
code orange alert, they have done a remarkable job. They have responded 
to their new responsibility as this country's frontline soldiers in the 
war against terrorism with grace, honor, and a dedication that 
Washington should emulate.
  We have had the opportunity to do so. We could have already had in 
the pipeline and delivered more dollars to pay for needed training, 
personnel, overtime costs, equipment, whatever it took as determined by 
local communities that they require to do the job we expect them to do. 
But every time the Senate has tried to do more for our first 
responders, the administration and some in Congress have said we should 
do less.
  Senator Byrd stood right over there last summer and offered an 
amendment, which the Senate supported, that would have provided more 
than $5.1 billion in homeland security funding. It included $585 
million for port security; $150 million to purchase interoperable radio 
so that police, firefighters and emergency service workers can 
communicate effectively, a problem we found out tragically interfered 
with communication on September 11 in New York City; another $83 
million to protect our borders. But in each case, despite having passed 
it in the Senate, the administration and Republican leaders settled for 
far less. They called such spending ``unnecessary.'' In some cases, 
such as the funding for interoperable radios, not only did we not get 
the increase to buy this critical equipment, the funding was cut by $66 
million.
  It was during that debate that we needed the administration's 
support. But instead, they opposed such efforts, and the President 
himself refused to designate $5.1 billion last August as an emergency 
to do the kinds of things that mayors and police chiefs and fire chiefs 
and others have been telling me and my colleagues they desperately need 
help doing.
  The paper today says the President acknowledges we need to do more. I 
welcome that acknowledgment. But I have learned that we have to wait to 
see whether the actions match the words. We have to make sure this new 
awareness about having shortchanged homeland security doesn't translate 
into taking money away from the functions that firefighters and police 
officers are called upon to do every day, transferring it across the 
government ledger, relabeling it counterterrorism, and wiping our hands 
of it and saying: We did it.
  That just doesn't add up. That is what they tried to do for the last 
year, take money away from the so-called COPS program, which put police 
on the beat onto our streets, which helped to lower the crime rate 
during the 1990s, taking money away from the grants that go to fire 
departments to be well prepared to get those hazardous materials, 
equipment, and suits that will protect them and claiming that we take 
that money away, we put it over here, and we say we have done our job. 
That is just not an appropriate, fairminded response.
  We cannot undo the past, but every day we don't plan for the future 
is a lost day. I don't ever want to have a debate in the Senate about 
what we should have done or we could have done or we would have done to 
protect ourselves, if only we had taken as seriously our commitment to 
homeland security as the administration takes our commitment to 
national security.
  Last month I issued a report about how 70 percent of the cities and 
counties in New York are not receiving any Federal homeland security 
funding. I commissioned this study because I wanted to know for myself 
whether maybe some money had trickled down into their coffers that I 
was not aware of. Well, 70 percent say they had gotten nothing; 30 
percent say they had gotten a little bit of the bioterrorism money that 
we had appropriated. But then I also asked them, how much did they need 
and what did they need it for and how did they justify their needs. And 
I must say, most of the requests were very well thought out, prudent 
requests for help that in this time of falling revenues and budget 
crunches, city and county governments just cannot do themselves.
  When that orange alert went out a week or so ago, what happened? I 
know in New York City, if you were there, you would have seen an 
intense police presence because our commissioner of police, our mayor, 
knew they had to respond. They had to get out there and keep a watchful 
eye. But there was no help coming from Washington for them to do that. 
It may be a national alert, but it is a local response. And we are not 
taking care of the people we expect to make that response for us.
  Then I was concerned to see that in so many of the discussions of 
potential weapons of mass destruction, doctors and nurses and hospital 
administrators are saying: We are not ready. We do not have the 
funding. We don't even have the funding to do the preventive work, the 
smallpox vaccination. We don't have the means to be ready for some kind 
of chemical or biological or radiological attack.
  When we had the incident a few months ago of the shoulder-fired 
missile that was aimed at the Israeli airline in Kenya--thankfully it 
missed--I called the people in the new Department of Homeland Security. 
I said: What are our plans? How do we respond to the threat posed by 
shoulder-fired missiles?
  The response I got back was: Well, that is a local law enforcement 
responsibility.
  Are we going to provide more funding so we can have more police 
patrols on

[[Page 4775]]

the outskirts of large airports similar to the ones we have in New York 
and other States have?
  Well, no, that is not in the cards. You just go out there and keep an 
eye out for those shoulder-fired missiles.
  Time and time again we hear about a threat. We hear the conversations 
from our government officials. We listen to the experts tell us what we 
have to be afraid of. And if you are a police chief or a fire chief 
sitting in any city in our country, you are sitting there in front of 
the television set saying to yourself: My goodness, how am I going to 
protect my people? How am I possibly going to do the work I need to do 
when my State budget is being cut, when my local budget is being cut, 
when the Federal budget is not providing me any resources? How am I 
going to do that?
  It is a fair question. Yet when we dial 911, we expect that phone to 
be answered, not in this Chamber, not down at the other end of 
Pennsylvania Avenue in the White House, but right in our local precinct 
and our local firehouse. Yet in place after place around America, we 
read stories about police being laid off or being enticed into early 
retirement to save money, firehouses being closed or firefighters being 
encouraged to take early retirement, not filling classes in the police 
and fire academy.
  There is something wrong with this picture. Now, we have done all we 
know to do to give our men and women who wear military uniforms every 
bit of support we believe they need. If we are going to put them in 
harm's way, then we owe it to them, to their families, to equip them 
and train them, and give them the best possible protection so they can 
fulfill their mission without harm to themselves.
  But this is a two-front war. We hear that all the time. My gosh, 
there is nothing else coming across the airwaves except about what is 
happening in the Persian Gulf and on the Korean peninsula and what is 
happening with al-Qaida. We know we are in a global war against terror 
and against weapons of mass destruction. That is good offense. We need 
to be out there trying to rid the world of weapons of mass destruction, 
rid the world of tyrants and dictators who would use such weapons.
  But what about defense? What about what happens here at home? We have 
not done what we need to do to protect our homeland or our hometowns. 
That is absolutely unacceptable. The one thing we have learned from the 
horrors of September 11 is that in this new globalization of 
transportation and information we now live in, boundaries mean very 
little. Part of the reason we were immune from attack through many 
decades--with the exception of Pearl Harbor and the attack on this city 
and on Baltimore in the War of 1812--is we were protected by those big 
oceans, and with friendly neighbors to the north and south. But those 
days are gone. You can get on a jet plane from anywhere. You can be in 
a cave in Afghanistan and use your computer. You can transfer 
information about attacks and about weapons of mass destruction with 
the flick of a mouse.
  So we have to upgrade and transform our homeland defense, just as we 
have to think differently about our military readiness and capacity. 
This does not come cheaply. This is not easy to do. I spend a lot of 
time talking with police, firefighters, hospital administrators, and 
front line doctors and nurses; they are ready to make the sacrifice to 
perform in whatever way they are expected to do so to protect us. But 
we are not giving them the help they need.
  Now, we can remedy this. It was a good sign when the President 
admitted today that he and his administration have not funded homeland 
security, and I am glad to hear they have finally admitted that. But 
now we have to do something about that admission. It cannot be just a 
one-day headline. We have to figure out, OK, now that you are seeing 
what we see, what we have been worried about, let's do something. Let's 
make sure that whatever budget is sent up here has money in it for 
these important functions, so we can look in the eyes of our police 
officers, firefighters, and emergency providers, and say we have done 
the best we know how to do.
  That doesn't mean we are 100 percent safe. There is no such thing. 
That is impossible. That is not something we can possibly achieve. But 
we have to do the best we can. I believe it is probably a good old 
adage to ``hope for the best, but prepare for the worst.'' When you 
have done all you knew how to do, when something does happen, 
hopefully, you are prepared to deal with it.
  From my perspective, Mr. President, this is a national priority that 
cannot wait. Many of the commentators and pundits of the current theme 
talk about the likely military action necessitated by Saddam Hussein's 
refusal to disarm, and point to the possibility that such action will 
trigger an upsurge in potential attack not only here at home but on 
American assets and individuals around the world. It would be 
impossible to write any scenario about the next 10 years without taking 
into account the potential of future terrorism.
  But what is not impossible--in fact, what is absolutely necessary--is 
for us to be able to say to our children and the children of 
firefighters and police officers and emergency responders that we did 
all we knew to do; we were as prepared as we possibly could be. That is 
what I want to be able to say, and I know we cannot do that without the 
resources that will make it a real promise of security, instead of an 
empty promise.
  So, Mr. President, it is my very strong hope that in the wake of the 
administration's recognition of the failure thus far to fund homeland 
security, now we can get down to business; that we not only can fund 
it, but do it quickly, get the money flowing, and get local communities 
ready to implement it, and we can get about the business of making 
America safer here at home. I will do everything I can to realize that 
goal. I look forward to working with my colleagues on both sides of the 
aisle as we provide the kind of homeland security Americans deserve.
  Mr. President, I 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. PRYOR. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.
  Mr. PRYOR. Mr. President, I ask unanimous consent that I be permitted 
to speak in morning business for up to 25 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered. The Senator from Arkansas is 
recognized.
  (The remarks of Mr. Pryor are printed in today's Record under 
``Morning Business.'')
  Mr. SUNUNU. Mr. President, I 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. GRASSLEY. 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. GRASSLEY. Mr. President, I rise once again to speak in support of 
the confirmation of Miguel Estrada, an exceptionally well qualified 
nominee who does not deserve to have his nomination obstructed by this 
filibuster. I have been a strong supporter of Mr. Estrada's since he 
came before the Judiciary Committee last year. At that time, I argued 
that his nomination should come up for a floor vote, but we were not 
allowed to vote on his nomination then. Here we are a year later, and I 
am still strongly supporting Mr. Estrada, and I am still arguing for a 
floor vote, and that vote is still being refused. I think it is 
shameful to continue holding up the vote on this very qualified 
judicial nominee, who, by the way, will make an excellent member of the 
US Court of Appeals for the DC Circuit.
  I know my colleagues heard Mr. Estrada's credentials many times last 
week. In fact, I am pretty sure that some of my colleagues could quote 
his credentials in their sleep. However, I

[[Page 4776]]

think it is important that the Senate is reminded of how qualified this 
nominee is who is being filibustered. Not only is he regarded as one of 
the Nation's top appellate lawyers, having argued 15 cases before the 
Supreme Court of the United States, but the American Bar Association, 
which I think Democrats consider the gold standard of determination of 
the person's qualifications to be a judicial nominee, has given him a 
unanimous rating of, in their words, ``well qualified.'' This happens 
to be the highest American Bar Association rating. It is a rating they 
would not give to just any lawyer who comes up the pike. According to 
the American Bar Association, quoting from their standard:

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

  We ought to demand that more qualified people like Miguel Estrada be 
appointed to the bench rather than fighting his nomination.
  As my colleagues know, I am not a lawyer. There is nothing wrong with 
going to law school, but I did not. I have been on the Judiciary 
Committee my entire time in the Senate. I know some of the 
qualifications that are needed to be a Federal judge, particularly a 
Federal judge on this DC Circuit that handles so many appeals from 
administrative agencies and is often considered, by legal experts, to 
be the second highest court of our land.
  Mr. Estrada's academic credentials are stellar. He graduated from 
Columbia University with his bachelor's degree magna cum laude and was 
also a member of Phi Beta Kappa. Then he earned his juris doctorate 
from Harvard University, also magna cum laude, where he was editor of 
the Harvard Law Review. Mr. Estrada did not just attend Harvard Law 
School; he graduated with honors. He also served as the editor of the 
Harvard Law Review. To be selected as the editor of a law review is a 
feat that only the most exceptional of law students attain.
  While Mr. Estrada certainly has the intellect required to be a 
Federal judge, his professional background also gives testament to his 
being qualified for a Federal Court of Appeals judgeship as opposed to 
just any judgeship.
  After law school, Mr. Estrada served as a law clerk to the Second 
Circuit Court of Appeals and as a law clerk to Justice Kennedy, on the 
United States Supreme Court. Subsequently, he served as an Assistant US 
Attorney and deputy chief of the appellate section of the US Attorney's 
Office of the Southern District of New York, and then as assistant to 
the Solicitor General of the United States of America.
  Mr. Estrada has been in the private sector as well. He is a partner 
with the Washington, DC, office of the law firm of Gibson, Dunn & 
Crutcher. In this exceptional career, Mr. Estrada has argued 15 cases 
before the United States Supreme Court. He won nine of those cases. Mr. 
Estrada is not just an appellate lawyer; he is one of the top appellate 
lawyers in the country. So for a young lawyer, I think I can give my 
colleagues a person who can truly be labeled an American success story. 
In fact, instead of degrading his ability to serve as a circuit court 
judge, we should all be proud of Mr. Estrada's many accomplishments.
  This is the nominee that the Democrats are filibustering. I fail to 
understand why a nominee of these outstanding qualifications, and who 
has been honored by the ABA with its highest rating, would be the 
object of such obstruction. In all my years on the Judiciary 
Committee--and that has been my entire tenure in the Senate--
Republicans never once filibustered a Democratic President's nominee to 
the Federal bench. There are many I may have wanted to filibuster, but 
I did not do it--we did not do it--because it is not right.
  In fact, as I understand it, in the entire history of the Senate 
neither party has ever filibustered a judicial nominee. Going back over 
200 years, Republicans and Democrats have resisted the urge to obstruct 
a nominee by filibustering. Good men of sound judgment have come to the 
conclusion that to use this tool of last resorts to obstruct a 
nomination is, at best, inappropriate, and, at worst, just down right 
wrong.
  This nominee, like all nominees, deserves an up-or-down vote. 
Anything less is absolutely unfair. I hope my colleagues on the other 
side of the aisle will reconsider this filibuster. The Senate should 
not cross this Rubicon and establish new precedent for the confirmation 
process.
  Over 40 newspapers from across the country have published editorials 
advocating that the Senate give Mr. Estrada a vote. Even the Washington 
Post, which is not exactly a bastion of conservatism, published an 
editorial last week entitled, ``Just Vote.'' In that editorial, the 
Post correctly characterized the Democrats obstructionist efforts. With 
regard to the Democrat request for the internal memos Mr. Estrada 
drafted while he was in the Solicitor General's Office, the Post said 
that this filibuster of Mr. Estrada goes beyond the normal political 
confirmation games, because,

       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.

  I agree with the Post:

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

  I make a unanimous consent request that this Washington Post 
editorial, ``Just Vote'' be printed in the Record after my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  [See exhibit 1.]
  Mr. GRASSLEY. Those denying the Senate an up-or-down vote on Mr. 
Estrada's nomination claim that he has not answered questions or 
produced documentation, and so he should not be confirmed to the 
Federal bench. I can think of a number of Democratic nominees who did 
not sufficiently answer question that I submitted to them, but that did 
not lead me to filibuster. As far as I know, Mr. Estrada has answered 
all questions posed to him by the Judiciary Committee members.
  His opponents claim that he has refused to hand over certain in-house 
Justice Department memoranda. What actually is happening is that the 
Democrats on the Judiciary Committee have requested that the Department 
of Justice submit to the Committee, internal memoranda written by 
Miguel Estrada when he was an attorney in the Solicitor General's 
Office. These internal memos are attorney work product, specifically 
appeal, certiorari, and amicus memoranda, and the Justice Department 
has rightly refused to produce them.
  The Department of Justice has never disclosed such sensitive 
information in the context of a Court of Appeals nomination. These 
memoranda should not be released, because they detail the appeal, 
certiorari and amicus recommendations and legal opinions of an 
assistant to the Solicitor General. This is not just the policy of this 
administration, the Bush administration, a Republican administration. 
This has also been the policy under Democratic Presidents.
  The inappropriateness of this request prompted all seven living 
former Solicitors General to write a bipartisan letter to the Committee 
to express their concern regarding the Committee's request and to 
defend the need to keep such documents confidential. The letter was 
signed by Democrats Seth Waxman, Walter Dellinger, Drew Days III and 
Republicans Ken Starr, Charles Fried, Robert Bork and Archibald Cox. 
The letter notes that when each of the Solicitors General made 
important decisions regarding whether to seek Supreme Court review of 
adverse appellate decisions and whether to participate as amicus curiae 
in other high profile cases, they:

       relied on frank, honest and thorough advice from [their] 
     staff attorneys like Mr. Estrada . . .

  and that the open exchange of ideas which must occur in such a 
context

       Simply cannot take place if attorneys have reason to fear 
     that their private recommendations are not private at all, 
     but vulnerable to public disclosure.

  The letter concludes that

       Any attempt to intrude into the Office's highly privileged 
     deliberations would come

[[Page 4777]]

     at a cost of the Solicitor General's ability to defend 
     vigorously the United States litigation interests, a cost 
     that also would be borne by Congress itself.

  The Democratic committee member's request has even drawn criticism 
from the editorial boards of the Washington Post and Wall Street 
Journal. On May 28, 2002, in an editorial entitled ``Not Fair Game'' 
the Washington Post editorialized that the request

       For an attorney's work product would be unthinkable if the 
     work had been done for a private client. . . . [and] legal 
     advice by a line attorney for the federal government is not 
     fair game either.

  According to the Post editorial

       . . . In elite government offices such as that of the 
     solicitor general, lawyers need to speak freely without 
     worrying that the positions they are advocating today will be 
     used against them if they ever get nominated to some other 
     position.

  On May 24, 2002, the Wall Street Journal in an editorial entitled 
``The Estrada Gambit'' also criticized the request, calling it ``one 
more attempt to delay giving Mr. Estrada a hearing and a vote.'' The 
Journal further criticized the Committee's request in a later 
editorial, entitled ``No Judicial Fishing'', calling the request 
``outrageous'' and noting that the goal of the request ``is to delay, 
trying to put off the day when Mr. Estrada takes a seat on the D.C. 
Circuit Court of Appeals.''
  Mr. President, I ask unanimous consent that these two editorials also 
be printed in the Record after my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  [See exhibit 2.]
  Mr. GRASSLEY. Mr. Estrada is not the only former deputy or assistant 
to the Solicitor General nominated to the Federal bench. In fact, there 
are seven others now serving on the Federal Courts of Appeals. None had 
any prior judicial experience, and the committee did not ask the 
Justice Department to turn over any confidential internal memoranda 
those nominees prepared while serving in the Solicitor General's 
Office. The seven nominees were: Samuel Alito on the 3rd Circuit, Danny 
Boggs on the 6th Circuit, William Bryson and Daniel Friedman on the 
Federal Circuit, Frank Easterbrook and Richard Posner on the 7th 
Circuit, and A. Raymond Randolph on the D.C. Circuit. Why should Mr. 
Estrada be treated any differently?
  During Mr. Estrada's hearing, Judiciary Committee Democrats alleged 
that the committee has reviewed the work product of other nominees, 
including memos written by Frank Easterbrook, by Chief Justice 
Rehnquist when he served as a clerk to Justice Jackson, and by Robert 
Bork when he was an official at the Justice Department.
  For the record, there is no evidence that the Department of Justice 
ever turned over confidential memoranda prepared by Frank Easterbrook 
when he served in the Solicitor General's Office. There also is no 
evidence that the committee even requested such information.
  During Robert Bork's hearings, the Department did turn over memos 
Judge Bork wrote while serving as Solicitor General, but none of these 
memos contained the sort of deliberative materials requested of Mr. 
Estrada and the Justice Department. The Bork materials include memos 
containing Bork's opinions on such subjects as the constitutionality of 
the pocket veto, and on President Nixon's assertions of executive 
privilege and his views of the Office of Special Prosecutor. None of 
the memos contain information regarding internal deliberations of 
career attorneys on appeal decisions or legal opinions in connection 
with appeal decisions. Moreover, the Bork documents reflected 
information transmitted between a political appointee, namely the 
Solicitor General, and political advisors to the President, rather than 
the advice of a career Department of Justice attorney to his superiors, 
as is the case with Mr. Estrada.
  You see, the Judiciary Committee has never requested and the 
Department of Justice has never agreed to release the internal memos of 
a career line attorney. To ask that Mr. Estrada turn over his memos is 
unprecedented, and frankly unfair. No Member of this body would ever 
condone a request to turn over staff memos. What my staff communicates 
to me in writing is internal and private. I am sure every other Senator 
feels the same way as I do. This Democrat fishing expedition needs to 
stop. Miguel Estrada is a more than well qualified nominee and he 
deserves a vote on his nomination, today.
  In conclusion, we are again seeing an attack on another very 
talented, very principled, highly qualified legal mind. It all boils 
down to this, Mr. Estrada's opponents refuse to give him a vote because 
they say they do not know enough about him. They further contend that 
the Justice Department memos, which they know will never be released, 
are the only way they can find out what they need to know about Mr. 
Estrada. It is a terrible Catch-22.
  These obstructionist efforts are a disgrace and an outrage. We must 
put a stop to these inappropriate political attacks and get on with the 
business of confirming to the Federal bench good men and women who are 
committed to doing what judges should do, interpret law as opposed to 
making law from the bench, because it is our responsibility to make law 
as members of the legislative branch.
  I yield the floor.

                               Exhibit 1

               [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 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.
                                  ____


                               Exhibit 2

              [From the Wall Street Journal, May 24, 2002]

                           The Estrada Gambit

       Senate Judiciary Chairman Patrick Leahy keeps saying he's 
     assessing judicial nominees on the merits, without political 
     influence. So why does he keep getting caught with someone 
     else's fingerprints on his press releases?
       The latest episode involves Miguel Estrada, nominated more 
     than a year ago by President Bush for the prestigious D.C. 
     Circuit Court of Appeals. Mr. Estrada scares the legal briefs 
     off liberal lobbies because he's young, smart and 
     accomplished, having served in the Clinton Solicitor 
     General's office, and especially because he's a conservative 
     Hispanic. All of these things make him a potential candidate 
     to be elevated to the U.S. Supreme Court down the road.

[[Page 4778]]

       Sooner or later even Mr. Leahy has to grant the nominee a 
     hearing, one would think. But maybe not, if he keeps taking 
     orders from Ralph Neas at People for the American Way. On 
     April 15, the Legal Times newspaper reported that a 
     ``leader'' of the anti-Estrada liberal coalition was 
     considering ``launching an effort to obtain internal memos 
     that Estrada wrote while at the SG's office, hoping they will 
     shed light on the nominee's personal views.''
       Hmmm. Who could that leader be? Mr. Neas, perhaps? Whoever 
     it is, Mr. Leahy seems to be following orders, because a 
     month later, on May 15, Mr. Leahy sent a letter to Mr. 
     Estrada requesting the ``appeal recommendations, certiorari 
     recommendations, and amicus recommendations you worked on 
     while at the United States Department of Justice.''
       It's important to understand how outrageous this request 
     is. Mr. Leahy is demanding pre-decision memorandums, the kind 
     of internal deliberations that are almost by definition 
     protected by executive privilege. No White House would 
     disclose them, and the Bush Administration has already turned 
     down a similar Senate request of memorandums in the case of 
     EPA nominee Jeffrey Holmstead, who once worked in the White 
     House counsel's office.
       No legal fool, Mr. Leahy must understand this. So the 
     question is what is he really up to? The answer is almost 
     certainly one more attempt to delay giving Mr. Estrada a 
     hearing and vote. A simple exchange of letters from lawyers 
     can take weeks. And then if the White House turns Mr. Leahy 
     down, he can claim lack of cooperation and use that as an 
     excuse to delay still further.
       Mr. Leahy is also playing star marionette to liberal 
     Hispanic groups, which on May 1 wrote to Mr. Leahy urging 
     that he delay the Estrada hearing until at least August in 
     order to ``allow sufficient time . . . to complete a thorough 
     and comprehensive review of the nominee's record.'' We guess 
     a year isn't adequate time and can only assume they need the 
     labor-intensive summer months to complete their 
     investigation. (Now there's a job for an intern.) On May 9, 
     the one-year anniversary of Mr. Estrada's nomination. Mr. 
     Leahy issued a statement justifying the delay in granting him 
     a hearing by pointing to the Hispanic group's letter.
       These groups, by the way, deserve some greater exposure. 
     They include the Mexican American Legal Defense and 
     Educational Fund as well as La Raza, two lobbies that claim 
     to represent the interests of Hispanics. Apparently they now 
     believe their job is to help white liberals dig up dirt on a 
     distinguished jurist who could be the first Hispanic on the 
     U.S. Supreme Court.
       The frustration among liberals in not being able to dig up 
     anything on Mr. Estrada is obvious. Nam Aron, president of 
     the Alliance for Justice, told Legal Times that ``There is a 
     dearth of information about Estrada's record, which places a 
     responsibility on the part of Senators to develop a record at 
     his hearing. There is much that he has done that is not 
     apparent.'' Translation: We can't beat him yet.
       Anywhere but Washington, Mr. Estrada would be considered a 
     splendid nominee. The American Bar Association, whose 
     recommendation Mr. Leahy one called the ``gold standard by 
     which judicial candidates have been judged,'' awarded Mr. 
     Estrada its highest rating of unanimously well-qualified. 
     There are even Democrats, such as Gore advisor Ron Klaim, who 
     are as effusive as Republicans singing the candidate's 
     praises.
       When Mr. Estrada worked in the Clinton-era Solicitor 
     General's office, he wrote a friend-of-the-court brief in 
     support of the National Organization of Women's position that 
     anti-abortion protestors violated RICO. It's hard to paint a 
     lawyer who's worked for Bill Clinton and supported NOW as a 
     right-wing fanatic.
       We report all of this because it reveals just how poison 
     judicial politics have become, and how the Senate is 
     perverting its advise and consent power. Yesterday the 
     Judiciary Committee finally confirmed a Bush nominee, but 
     only after Republican Arlen Specter went to extraordinary 
     lengths to help fellow Pennsylvanian Brooks Smith.
       Mr. Estrada doesn't have such a patron, so he's fated to 
     endure the delay and document-fishing of liberal interests 
     and the Senate Chairman who takes their dictation.

  Ms. MIKULSKI. Mr. President, I rise in opposition to the nomination 
of Miguel Estrada to the United States Circuit Court of Appeals for the 
District of Columbia.
  The President has the right to make judicial nominations. The Senate 
has the Constitutional responsibility to advise and consent. I take 
this responsibility very seriously. This is a lifetime appointment for 
our nation's second most important court. Only the Supreme Court has a 
greater impact on the lives and rights of every American.
  The District of Columbia Circuit is the final arbiter on many cases 
that the Supreme Court refuses to consider. That means it's responsible 
for decisions on fundamental constitutional issues involving freedom of 
speech, the right to privacy and equal protection.
  In addition, the D.C. Circuit has special jurisdiction over Federal 
agency actions. That means the D.C. Circuit is responsible for cases on 
issues of great national significance involving labor rights, 
affirmative action, clean air and clear water standards, health and 
safety regulations, consumer privacy and campaign finance. The 
importance of this court highlights the importance of placing skilled, 
experienced and moderate jurists on the court.
  I base my consideration of each judicial nominee on three criteria: 
competence, integrity and commitment to core Constitutional principles.
  I don't question Mr. Estrada's character or competence. He is clearly 
a skilled lawyer. Yet the Senate does not have enough information to 
judge Mr. Estrada's commitment to core Constitutional principles.
  He has refused to answer even the most basic questions during his 
hearing in Senate Judiciary Committee. For example, he was asked to 
give examples of Supreme Court decisions with which he disagreed. He 
refused to answer. He was asked basic questions on his judicial 
philosophy. He refused to answer.
  The Constitution gives the Senate the responsibility to advise and 
consent on judicial nominations. This consent should be based on 
rigorous analysis. The nominee doesn't have to be an academic with a 
paper trail. Yet the nominee must be open and forthcoming. He or she 
must answer questions that seek to determine their commitment to core 
Constitutional principles.
  This is a divisive nomination--at a time when our Nation should be 
united. Our Nation is preparing for a possible war in Iraq. We are 
already engaged in a war against terrorism. We are also facing a weak 
economy. Americans are stressed and anxious. The Senate should be 
working to reduce this stress--to make America more secure; to 
strengthen our economy and to deal with the ballooning cost of health 
care.
  I urge the administration to nominate judicial candidates who are 
moderate and mainstream--and to instruct those nominees to be 
forthright and forthcoming with the Senate so the Senate can address 
the significant issues that face our Nation today.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Oklahoma.
  Mr. NICKLES. Madam President, I ask unanimous consent to proceed as 
if in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Nickles pertaining to the introduction of S. 2 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, one of our most important 
responsibilities as Senators is the confirmation of Federal judges. 
Federal judges are appointed for life, and they will be interpreting 
laws affecting the lives of all our citizens for many years to come. 
Yet my colleagues across the aisle suggest that something far less than 
a full review of a nominee's record is warranted. Republican Senators 
pretend that by seeking additional information to help us understand 
Mr. Estrada's views and judicial philosophy, we are upsetting the 
proper constitutional balance between the Senate and the executive 
branch. They claim the Senate has to consent to the President's 
judicial nominees, as long as they have appropriate professional 
qualifications.
  In fact, the Constitution gives a strong role to the Senate in 
evaluating nominees. The role of the Senate is fundamental to the basic 
constitutional concept of checks and balances at the heart of the 
Federal Government. And when we say ``check'' we don't mean blank 
check.
  The debates over the drafting of the Constitution tell a great deal 
about the proper role of the Senate in the judicial selection process. 
Both the text of the Appointments Clause of the Constitution and the 
debates over its adoption make clear that the Senate should play an 
active and independent role in selecting judges.

[[Page 4779]]

  Given recent statements by Republican Senators, it is important to 
lay out the historical record in detail. The Constitutional Convention 
met in Philadelphia from late May until mid-September of 1787. On May 
29, 1787, the Convention began its work on the Constitution with the 
Virginia Plan introduced by Governor Randolph, which provided ``that a 
National Judiciary be established, to be chosen by the National 
Legislature.'' Under this plan, the President had no role at all in the 
selection of judges.
  When this provision came before the Convention on June 5, several 
members were concerned that having the whole legislature select judges 
was too unwieldy. James Wilson suggested an alternative proposal that 
the President be given sole power to appoint judges.
  That idea had almost no support. Rutledge of South Carolina said that 
he ``was by no means disposed to grant so great a power to any single 
person.'' James Madison agreed that the legislature was too large a 
body, and stated that he was ``rather inclined to give [the appointment 
power] to the Senatorial branch'' of the legislature, a group 
``sufficiently stable and independent'' to provide ``deliberate 
judgements.''
  A week later, Madison offered a formal motion to give the Senate the 
sole power to appoint judges and this motion was adopted without any 
objection. On June 19, the Convention formally adopted a working draft 
of the Constitution, and it gave the Senate the exclusive power to 
appoint judges.
  July of 1787 was spent reviewing the draft Constitution. On July 18, 
the Convention reaffirmed its decision to grant the Senate the 
exclusive power. James Wilson again proposed ``that the Judges be 
appointed by the Executive'' and again his motion was defeated.
  The issue was considered again on July 21, and the Convention again 
agreed to the exclusive Senate appointment of judges.
  In a debate concerning the provision, George Mason called the idea of 
executive appointment of Federal judges a ``dangerous precedent.'' The 
Constitution was drafted to read: ``The Senate of the United States 
shall have power to appoint Judges of the Supreme Court.''
  Not until the final days of the Convention was the President given 
power to nominate Judges. On September 4, 2 weeks before the 
Convention's work was completed, the Committee proposed that the 
President should have a role in selecting judges. It stated: ``The 
President shall nominate and by and with the advice and consent of the 
Senate shall appoint judges of the Supreme Court.'' The debates, make 
clear, however, that while the President had the power to nominate 
judges, the Senate still had a central role.
  Governor Morris of Pennsylvania described the provision as giving the 
Senate the power ``to appoint Judges nominated to them by the 
President.'' The Constitutional Convention adopted this reworded 
provision giving the President the power, with the advice and consent 
of the Senate, to nominate and appoint judges.
  The debates and the series of events proceeding adoption of the 
``advise and consent'' language make clear, that the Senate should play 
an active role. The Convention having repeatedly rejected proposals 
that would lodge exclusive power to select judges with the executive 
branch, could not possibly have intended to reduce the Senate to a 
rubber stamp role.
  The reasons given by delegates to the Convention for making the 
selection of judges a joint decision by the President and the Senate 
are as relevant today as they were in 1787. The framers refused to give 
the power of appointment to a ``single individual.'' They understood 
that a more representative judiciary would be attained by giving 
members of the Senate a major role.
  From the start, the Senate has not hesitated to fully exercise this 
power. During the first 100 years after ratification of the 
Constitution, 21 or 81 Supreme Court nominations--one out of four--were 
rejected, withdrawn, or not acted on. During these confirmation 
debates, ideology often mattered. John Rutledge, nominated by George 
Washington, failed to win confirmation as Chief Justice in 1795.
  Alexander Hamilton and other Federalists opposed him, because of his 
position on the controversial Jay Treaty. A nominee of President James 
Polk was rejected because of his anti-immigration position. A nominee 
of President Hoover was rejected because of his anti labor view. Our 
Republican colleagues are obviously aware of this. Their recent 
statements attempting to downplay the Senate's role stand in stark 
contrast to the statements when they controlled the Senate during the 
Clinton administration. At that time, they vigorously asserted their 
right of ``advice and consent.''
  Indeed, while public debate and a demand to fully review a nominee's 
record is consistent with our duty of ``advice and consent,'' many of 
the actions by Republicans were damaging to the nominations process. 
Democrats have made clear our concerns about whether Mr. Estrada has 
met the burden of showing that he should be appointed to the DC 
Circuit, but Republicans resorted to tactics such as secret holds to 
block President Clinton's nominees. For instance, it took four years to 
act on the nomination of Richard Paez, a Mexican-American, to the Ninth 
Circuit. Senate Republicans repeatedly delayed floor action on Judge 
Paez through use of anonymous holds.
  Republicans voted to indefinitely postpone action on Judge Paez's 
nomination. Finally, in March 2000, 4 years after his nomination and 
with the Presidential election on the horizon, Judge Paez was 
confirmed, after cloture was invoked.
  Reviewing Mr. Estrada's nomination is our constitutional duty. We 
take his nomination particularly seriously because of the importance of 
the DC Circuit, the Court to which he has been nominated. The important 
work we do in Congress to improve health care, protect workers rights, 
and protect civil rights mean far less if we fail to fulfill our 
responsibility to provide the best possible advice and consent on 
judicial nominations. Tough environmental laws mean little to a 
community that can't enforce them in our federal courts. Civil rights 
laws are undercut if there are no remedies for disabled men and women. 
Fair labor laws are only words on paper if we confirm judges who ignore 
them.
  What we know about Mr. Estrada leads us to question whether he will 
deal fairly with the range of important issues affecting everyday 
Americans that came before him.
  Mr. Estrada has been actively involved in supporting broad anti-
loitering ordinances that restrict the rights of minority residents to 
conduct lawful activities in their neighborhoods. Mr. Estrada has 
sought to undermine the ability of civil rights groups like the NAACP 
to challenge these broad ordinances which affect the ability of 
minority citizens to conduct activities such as drug counseling and 
voter outreach in their communities.
  Information we need to know about Mr. Estrada's record has been 
hidden from us by the Department of Justice. Democratic Senators have 
asked for Mr. Estrada's Solicitor General Memoranda. We have moved for 
unanimous consent to proceed to a vote on his nomination, after those 
memoranda are provided. Yet, the White House refuses to provide any of 
Mr. Estrada's memos, even though there is ample precedent for allowing 
the Senate to review these documents.
  Even as Republicans refuse to allow us to see Mr. Estrada's memos 
from his time in public office--and even as Mr. Estrada declined to 
answer many basic questions about his judicial philosophy and 
approach--Republicans repeatedly make clear that they are familiar with 
Mr. Estrada's views and judicial philosophy.
  Since his nomination, Republican Senators have repeatedly praised Mr. 
Estrada as a ``conservative.'' A recent article from Roll Call states 
that the Republican Party is confident that Mr. Estrada will rule in 
support of big business. The article also states that the Republican 
Party has asked lobbyists to get involved in the battle over Mr. 
Estrada's nomination.
  I have spoken in recent days about the importance of the DC Circuit 
and it's shift to the right in the 1980s and

[[Page 4780]]

1990s. In the 1960s and 1970s, the DC Circuit had a significant role in 
protecting public access to agency and judicial proceedings, protecting 
civil rights guarantees, overseeing administrative agencies, protecting 
the public interest in communications regulation, and enforcing 
environmental protections. In the 1980s, however, the DC Circuit 
changed dramatically because of the appointment of conservative judges. 
As its composition changed, it became a conservative and activist 
court--striking down civil rights and constitutional protections, 
encouraging deregulation, closing the doors of the courts to many 
citizens, favoring employers over workers, and undermining federal 
protection of the environment.
  It seems clear that Mr. Estrada has been nominated to the DC Circuit 
in the hope that this court will continue to be more interested in 
favoring big business than in protecting the rights of workers, 
consumers, women, minorities, and other Americans.
  Mr. Estrada's nomination is strongly opposed by those concerned about 
these rights. Republicans repeatedly praise Mr. Estrada as a Hispanic--
but many Hispanic groups oppose his nomination. The Congressional 
Hispanic Caucus, the Mexican American Legal Defense Fund, the Southwest 
Voter Registration Project, 52 Latino Labor Leaders representing 
working families across the country, the California League of United 
Lationo Citizens, the California La Raza, the Puerto Rican Legal 
Defense Fund and fifteen past presidents of the Hispanic National Bar 
Association, whose terms span from 1972 until 1998 have stated their 
opposition to Mr. Estrada. As these Presidents write:

       Based upon our review and understanding of the totality of 
     Mr. Estrada's record and life's experiences, we believe that 
     there are more than enought reasons to conclude that Mr. 
     Estrada's candidacy falls short. [These] reasons include: his 
     virtually non-existent written record, his verbally expressed 
     and un-rebutted extreme views, his lack of judicial or 
     academic teaching experience (against which his fairness, 
     reasoning skills and judicial philosophy could be properly 
     tested), his poor judicial temperament, his total lack of 
     connection whatsoever to, or lack of demonstrated interest in 
     the Hispanic community, his refusals to answer even the most 
     basic questions about civil rights and constitutional law, 
     his less than candid responses to other straightforward 
     questions of Senate Judiciary Committee Members.

  I would like to include in the Record statements at the end of my 
remarks of two of the past National Presidents of the League of United 
Latin American Citizens opposing Mr. Estrada's nomination. The first 
statement is from Belen Robles, a native Texas who has a long and 
active involvement in the Latino civil rights community. He writes that 
he is ``deeply troubled with the nomination of Miguel Estrada.'' He is 
troubled by the positions that Mr. Estrada has taken on racial 
profiling, and on whether the NAACP had standing to put forward the 
claims of African-Americans arrested under an anti-loitering ordinance.
  Mr. Robles writes:

       As a former National President of LULAC, I know very well 
     that on many occasions LULAC has been a champion of the 
     rights of its membership in civil rights cases. We asserted 
     those rights on behalf of voters in voting cases in Texas, 
     and in many other civil rights cases. Under his view, Mr. 
     Estrada could decide that a civil rights organization such as 
     LULAC would not be able to sue on behalf of its members. NO 
     supporter of civil rights could agree with Mr. Estrada's 
     confirmation.

  Ruben Bonilla, an attorney in Texas who is also a past National 
president of LULAC, opposes the confirmation of Mr. Estrada.
  Mr. Bonilla writes:

       I am deeply troubled with the double standard that 
     surrounds the nomination of Mr. Estrada. It is particularly 
     troubling that some of the Senators have accused Democrats or 
     other Latinos of being anti-Hispanic, or holding the American 
     dream hostage. Yet, these same Senators in fact prevented 
     Latinos appointed by the Clinton Administration from ever 
     being given a hearing. Notably, Corpus Christi lawyer Jorge 
     Rangel, and El Paso attorney Enrique Moreno, and Denver 
     attorney Christine Arguello never received hearings before 
     the judiciary committee. Yet, these individuals who came from 
     the top of their profession were schooled in the Ivy League, 
     were raised from modest means in the Southwest, and in fact 
     truly embodied the American Dream. These highly qualified 
     Mexican-Americans never had the opportunity to introduce 
     themselves and their views to the Senate, as Mr. Estrada did.

  Mr. President, the Senate is entitled to see Mr. Estrada's full 
record. Both the Constitution and historical practices require us to 
ignore the Administration's obvious ideological nominations. Judicial 
nominees who come before the Senate should have professional 
qualifications and the right temperament to be a judge. They should be 
committed to basic constitutional principles. Many of us have no 
confidence that Mr. Estrada has met this burden. I urge the Senate to 
reject this nomination.
  I ask unanimous consent that supporting material be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

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

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


     John Roy Castillo, et al.
                                  ____


                  [From The Oregonian, Feb. 24, 2003]

              Estrada Would Destroy Hard-Fought Victories

                         (By Dolores C. Huerta)

       As a co-founder of the United Farm Workers with Cesar 
     Chavez, I know what progress looks like. Injustice and the 
     fight against it take many forms--from boycotts and marches 
     to contract negotiations and legislation. Over the years, we 
     had to fight against brutal opponents, but the courts were 
     often there to back us up. Where we moved forward, America's 
     courts helped to establish important legal protections for 
     all farm workers, all women, all Americans. Now, though, a 
     dangerous shift in the courts could destroy the worker's 
     rights, women's rights, and civil rights that our collective 
     actions secured.
       It is especially bitter for me that one of the most visible 
     agents of the strategy to erase our legal victories is being 
     called a great role model for Latinos. It is true that for 
     Latinos to realize America's promise of equality and justice 
     for all, we need to be represented in every sector of 
     business and every branch of government. But it is also true 
     that judges who would wipe out our hard-fought legal 
     victories--no matter where they were born or what color their 
     skin--are not role models for our children. And they are not 
     the kind of judges we want on the federal courts.
       Miguel Estrada is a successful lawyer, and he has powerful 
     friends who are trying to get him a lifetime job as a federal 
     judge. Many of them talk about him being a future Supreme 
     Court justice. Shouldn't we be proud of him?

[[Page 4781]]

       I for one am not too proud of a man who is unconcerned 
     about the discrimination that many Latinos live with every 
     day. I am not especially proud of a man whose political 
     friends--the ones fighting hardest to put him on the court--
     are also fighting to abolish affirmative action and to make 
     it harder if not impossible for federal courts to protect the 
     rights and safety of workers and women and anyone with little 
     power and only the hope of the courts to protect their legal 
     rights.
       Just as we resist the injustice of racial profiling and the 
     assumption that we are lesser individuals because of where we 
     were born or the color of our skin, so too must we resist the 
     urge to endorse a man on the basis of his ethnic background. 
     Members of the Congressional Hispanic Caucus met with Miguel 
     Estrada and came away convinced that he would harm our 
     community as a federal judge. The Mexican American Legal 
     Defense and Educational Fund and the Puerto Rican Defense and 
     Education Fund reviewed his record and came to the same 
     conclusion.
       Are these groups fighting Miguel Estrada because they are 
     somehow anti-Hispanic? Are they saying that only people with 
     certain political views are ``true'' Latinos? Of course not. 
     They are saying that as a judge this man would do damage to 
     the rights we have fought so hard to obtain, and that we 
     cannot ignore that fact just because he is Latino. I think 
     Cesar Chavez would be turning over in his grave if he knew 
     that a candidate like this would be celebrated for supposedly 
     representing the Hispanic community. He would also be 
     dismayed that any civil rights organization would stay silent 
     or back such a candidate.
       To my friends who think this is all about politicians 
     fighting among themselves, I ask you to think what would have 
     happened over the last 40 years if the federal courts were 
     fighting against worker's rights and women's rights and civil 
     rights. And then think about how quickly that could become 
     the world we are living in.
       As MALDEF wrote in a detailed analysis, Estrada's record 
     suggests that ``he would not recognize the due process rights 
     of Latinos,'' that he ``would not fairly review Latino 
     allegations of racial profiling by law enforcement,'' that he 
     ``would most likely always find that government affirmative 
     action programs fail to meet'' legal standards, and that he 
     ``could very well compromise the rights of Latino voters 
     under the Voting Rights Act.''
       Miguel Estrada is only one of the people nominated by 
     President Bush who could destroy much of what we have built 
     if they become judges. The far right is fighting for them 
     just as it is fighting for Estrada. We must fight back 
     against Estrada and against all of them. If the only way to 
     stop this is a filibuster in the Senate, I say, Que viva la 
     filibuster!
                                  ____


Statement of Ruben Bonilla, in Opposition to the Confirmation of Miguel 
                                Estrada

       I write to join other Latinos in opposing the confirmation 
     of Miguel Estrada to the DC Circuit Court of Appeals. I have 
     a long history of involvement in the Latino civil rights 
     community. I am an attorney in Corpus Christi, Texas, and am 
     a past National President of LULAC. I am deeply concerned 
     with the betterment of my community.
       I am deeply troubled with the double standard that 
     surrounds the nomination of Miguel Estrada. It is 
     particularly troubling that some of the senators have accused 
     Democrats or other Latinos of being anti-Hispanic, or holding 
     the American dream hostage. Yet, these same senators in fact 
     prevented Latinos appointed by the Clinton Administration 
     from ever being given a hearing. Notably, Corpus Christi 
     lawyer Jorge Rangel, and El Paso attorney Enrique Moreno, and 
     Denver attorney Christine Arguello never received hearings 
     before the judiciary committee. Yet, these individuals who 
     came from the top of their profession were schooled in the 
     Ivy League, were raised from modest means in the Southwest, 
     and in fact truly embodied the American Dream. These highly 
     qualified Mexican Americans never had the opportunity to 
     introduce themselves and their views to the Senate, as Mr. 
     Estrada did.
       In addition to my concerns regarding this double standard. 
     I am also concerned that Mr. Estrada showed himself unwilling 
     to allow the Senate to fully evaluate his record. He was not 
     candid in his responses. Yet, Mr. Estrada, as every other 
     nominee who is a candidate for a lifelong appointment, must 
     be prepared to fully answer basic questions, particularly 
     where there is no prior judicial record or scholarly work to 
     scrutinize. By declining to give full and candid responses, 
     he frustrated the process. Individuals with values should be 
     called to explain those values honestly and forthrightly. We 
     can demand no less from those who would hold a lifelong 
     appointment in our system of justice.
       Finally, I am also concerned with some of the answers that 
     Mr. Estrada did give when he was pressed. For example, I 
     understand that as an attorney he argued that the NAACP did 
     not have legal standing to press the claims of African 
     Americans who had been arrested under a particular ordinance. 
     As a former National President of LULAC, I know that on many 
     occasions LULAC has represented the rights of its membership 
     in voting cases, and in other civil rights matters. I would 
     be troubled that if he were confirmed, Mr. Estrada would not 
     find a civil rights organization to be an appropriate 
     plaintiff, and would uphold closing the courthouse door on 
     them.
       Given these concerns, I oppose the confirmation of Mr. 
     Miguel Estrada.

 Statement of Belen Robles in Opposition to the Confirmation of Miguel 
                                Estrada

       I write to join other Latino leaders and organizations in 
     opposing the confirmation of Miguel Estrada to the DC Circuit 
     Court of Appeals. As a native Texan, I have a very long and 
     active involvement in the Latino civil rights community and 
     have worked hard to ensure that Latinos have real choices 
     about their lives. I am a past National President of the 
     League of United Latin American Citizens (LULAC).
       I am deeply troubled with the nomination of Miguel Estrada. 
     I am very troubled with the positions he seems to have taken 
     about our youth being subjected to racial profiling. As I 
     understand his position, he does not believe that racial 
     profiling exists, and has many times argued that the 
     Constitution gives police officers unbridled authority and 
     power. In our communities, racial profiling does exist and 
     our children have been subjected to it. This is an issue that 
     Latino organizations, including LULAC have long cared about. 
     In all of the years that I was involved with civil rights, 
     LULAC always stood to protect our community, including our 
     youth when law enforcement exceeds their authority.
       I am also concerned that Mr. Estrada did not allow the 
     Senate to fully evaluate his record. He was not open in his 
     responses, but instead was evasive. Yet, anyone appointed to 
     a lifelong position has to be willing to answer questions 
     fully. The American people have a right to know who sits in 
     our seats of justice. And to demand that the person be fair.
       Mr. Estrada has also taken actions against organizations 
     that make me believe that he would not be fair. For example, 
     as an attorney he argued that the NAACP did not have legal 
     standing to put forward the claims of African Americans who 
     have been arrested under a particular ordinance. As a former 
     National President of LULAC, I know very well that on many 
     occasions LULAC has been a champion of the rights of its 
     membership in civil rights cases. We asserted those rights on 
     behalf of voters in voting cases in Texas, and in many other 
     civil rights cases. Under his view, Mr. Estrada could decide 
     that a civil rights organization such as LULAC would not be 
     able to sue on behalf of its members. No supporter of civil 
     rights could agree with Mr. Estrada's confirmation.
       I oppose the confirmation of Mr. Miguel Estrada.
                                  ____

                                          Hispanic Bar Association


                                              of Pennsylvania,

                               Philadelphia, PA, January 28, 2003.
     Hon. Senator Edward M. Kennedy,
     Senate Committee on the Judiciary, Dirksen Senate Office 
         Building, Washington, DC.
       Dear Honorable Sir: I am writing on behalf of the Hispanic 
     Bar Association of Pennsylvania (HBA) to inform you that we 
     oppose the appointment of Miguel Angel Estrada to the United 
     States Court of Appeals for the District of Columbia Circuit. 
     For the reasons that follow, we urge you to vote against Mr. 
     Estrada's confirmation.
       The HBA recognizes that Mr. Estrada's nomination was 
     pending for some time prior to his hearing before the Senate 
     Judiciary Committee on September 26, 2002. Nevertheless, it 
     was the Hispanic National Bar Association's public 
     endorsement of this candidate that prompted our organization 
     to initiate its own evaluation of Mr. Estrada.
       To that end, the HBA created a Special Committee on 
     Judicial Nominations to develop a process for reviewing and 
     potentially endorsing not only Mr. Estrada, but also all 
     future candidates for the Judiciary. As part of the process, 
     we contacted Mr. Estrada, asked to interview him, and invited 
     him as a guest of the HBA to meet the members of our 
     organization. Mr. Estrada, for stated good cause, declined 
     our invitations. Notwithstanding Mr. Estrada's non-
     participation, the Committee completed its work and reported 
     its findings to the HBA membership on November 14, 2002. 
     Following the Committee's recommendation, the membership 
     voted not to support Mr. Estrada's nomination.
       The HBA recognizes and applauds Mr. Estrada for his 
     outstanding professional and personal achievements. Indeed, 
     the HBA adopts the American Bar Association's rating of 
     ``well-qualified'' with regard to Mr. Estrada's professional 
     competence and integrity. However, employing the ABA's seven 
     established criteria for evaluating judicial temperament, the 
     HBA finds Mr. Estrada to be lacking. Our organization could 
     find no evidence that Mr. Estrada has demonstrated the 
     judicial position. In addition, the HBA seeks to endorse 
     individuals who have ``demonstrated awareness and sensitivity 
     to minority, particularly Hispanic concerns.'' Sadly, we also 
     could find no evidence of this quality in Mr. Estrada.
       The HBA shares the concern of the president of the 
     Judiciary Committee that only the best-qualified and most 
     suitable individuals be appointed to the federal bench. 
     Furthermore, the HBA appreciates the efforts,

[[Page 4782]]

     as evidenced by Mr. Estrada's nomination, to consider and 
     promote members of the rapidly growing Latino population to 
     positions of high visibility and importance. However, we 
     believe that there are a myriad of other well-qualified 
     Latinos whose integrity, professional competence, and 
     judicial temperament would be beyond reproach and who would 
     therefore be better suited for this position.
       The Hispanic Bar Association of Pennsylvania regrets that 
     it cannot support the nomination of Mr. Estrada to the United 
     States Court of Appeals for the District of Columbia Circuit. 
     We respectfully request that you oppose the confirmation of 
     his nomination.
           Respectfully submitted,
                                        Arlene Rivera Finkelstein,
     President, and the Special Committee on Judicial Nominations 
        on behalf of the Hispanic Bar Association of Pennsylvania.

  Mr. KENNEDY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Crapo). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LAUTENBERG. 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. LAUTENBERG. Mr. President, today is the 12th day, as remarkable 
as that seems, that the Senate is debating this nomination instead of 
doing what it has to for the important business of the American people, 
as I see it. It is quite clear the other side is just not going to get 
cloture on this nomination. So the choice is either bring forward a 
cloture motion or move on to other business.
  The Nation's Governors are in Washington meeting with President Bush 
and Members of Congress to discuss critically important issues, such as 
homeland security, rising unemployment, and increasing State deficits. 
These are serious issues that need attention, but we are delaying 
tending to the needs of the American people with endless debate on a 
judicial nominee who is refusing to tell the Senate almost anything 
about his judicial philosophy or decisionmaking process.
  This hide-the-ball strategy being used by Mr. Estrada, frankly, I 
think is an affront to the Senate and the American people. We have the 
right to get complete and thoughtful answers to legitimate concerns 
about his approach to his interpretation of the U.S. Constitution and 
the laws of the country.
  I was formerly a businessman. Sometimes there are processes that are 
not dissimilar to our functions here. One of them is to be able to 
understand what a nominee or an appointment of a high-ranking executive 
might include and a review of that person's potential, that person's 
experience, that person's attitude before you put him to work.
  My fellow Senators on the other side of the aisle would have the 
Senate, considered the most deliberative body in world history--and, I 
assume, also considered one of the most thoughtful places in the world 
in terms of Government and deliberative bodies--vote to confirm a 
nominee to a lifetime--lifetime, and it is important people realize 
that means you cannot be fired from the job; this means you can go as 
long as you want to, and when you are finished with your service, your 
salary continues at exactly the same level it did when you went to work 
every day--a lifetime appointment without disclosure of what I and my 
colleagues consider required information.
  In the business world, this practice would have been unheard of, and 
the American people deserve better. If someone were seeking a post and 
they appeared before a congressional committee or a department head and 
said, I would like the job, but I am not willing to answer that 
questionnaire, that would make that aspirant unacceptable under any 
condition. It should be a requirement when a lifetime-tenured job is 
under discussion, something so important as the circuit court of 
appeals where people, after getting a decision from district court, go 
to get the judgment of wise and experienced people. His unwillingness 
to answer questions, to talk about what he stands for, and what he 
believes is a shocking disregard for appropriate behavior.
  Responsible business owners do not hire senior managers without first 
conducting a complete and thorough review of that candidate's job 
application. The candidate would answer questions that give 
interviewers an opportunity to measure the candidate's decisionmaking 
process and views on work-related issues. A candidate cannot simply 
refuse to answer important questions of fitness, philosophy, or 
temperament. No business executive would hire a candidate who refused 
to answer basic inquiries. These are not private matters. They become 
the matters of the employer, be it government or business. Those in 
business would put their businesses at risk and leave themselves 
susceptible to future lawsuits based on negligent hiring practices.
  No one is doubting the fact Mr. Estrada is bright and intelligent, 
but his repeated refusal to provide the Senate with any insight into 
his views on the law and the U.S. Constitution is incomprehensible. I 
just cannot understand it. How can we make an informed decision about a 
judicial nominee if the nominee refuses to provide the Senate with 
sufficient information about his judicial philosophy and, therefore, 
his temperament?
  The questions being asked are not prohibited by law or judicial or 
professional ethics codes. Instead of entertaining continuing with 
these dilatory tactics, the Senate should simply move on to the 
important business of the American people concerned about the 
protection of their homeland; move on to repair a hemorrhaging Federal 
budget that under this administration has been converted from a $5.6 
trillion surplus into a $2.1 trillion deficit; move on to provide 
States that are experiencing dire economic conditions with more Federal 
assistance that would help them weather the storms during these times 
of increasing unemployment, threatening war with Iraq, and a sustained 
fear of potential terrorist acts.
  In the most recent CNN Gallup poll, 50 percent of Americans believe 
the economy is the most pressing issue confronting the Nation. Thirty 
percent of Americans believe the war with Iraq is the most important 
issue, second to jobs and the economy.
  The nomination of Mr. Estrada did not make the list of important 
concerns facing the Nation. Since January 2001, the number of 
unemployed Americans has increased by nearly 40 percent, with nearly 
8.3 million Americans out of work.
  Since President Bush took office, 2.3 million private sector jobs 
have been lost and the unemployment rate for Latinos by way of example 
has increased 33 percent. According to the Department of Labor, there 
are now 2.4 jobseekers for every job opening. So rather than focusing 
on creating jobs for 8.3 million Americans, the Senate is targeted on 
the job of one attorney, a very successful attorney who made a lot of 
money. But how does that influence what the American people see as 
their need?
  This is the same thinking that has produced an economic stimulus 
package that overwhelmingly favors the top 1 percent of American 
taxpayers while giving very little to those who really need some 
economic help.
  The Senate needs to move on to the important work of protecting the 
homeland. CIA Director Tenet and FBI Director Mueller have both 
testified that America is still vulnerable to terrorist attack, and we 
keep on hearing alarms described in different colors. The American 
public does not understand what the difference between red and yellow 
is. They just know it scares them. It panics them. They do not know 
what to do. I get phone calls from people in New Jersey asking, Should 
we stay out of New York City? Should we not take our children on a 
trip? Should we stay home? The answer to all of those is that we do not 
really know, but we ought to get on with finding out.
  The omnibus appropriations bill provides less than half of the $3.5 
billion in funding promised to law enforcement people, firefighters, 
and emergency medical personnel. Meanwhile, America's ports, borders, 
and critical infrastructure remain dangerously unprotected.
  Once again, instead of focusing on protecting the homeland and 
funding

[[Page 4783]]

our first responders, the work of the Senate is being delayed in order 
to secure the appointment of a judicial nominee who refuses to share 
his views with the American people.
  I do not intend to demean or diminish the importance of this 
nomination. It is very important. To the contrary, the nomination at 
issue is to the U.S. Court of Appeals for the DC Circuit, which is the 
most powerful intermediate Federal appellate court, second only to the 
U.S. Supreme Court. The DC Circuit is more powerful, it is observed, 
than other Federal courts because it has exclusive jurisdiction over a 
broad array of far-reaching Federal regulations that enforce critical 
environment, consumer, and worker protection laws.
  As history has shown, DC Circuit Court judges are often tapped to 
serve on the Supreme Court. Presently, three of the nine Supreme Court 
Justices--Justices Antonin Scalia, Clarence Thomas, and Ruth Bader 
Ginsburg--previously served on the DC Circuit.
  The Senate has a constitutional responsibility. The constitutional 
judicial confirmation process grants authority to the President of the 
United States to make the nominations and gives the Senate an equally 
significant role to agree by advising and consenting with the 
President's recommendation before a nominee can sit on the Federal 
bench. These important, mutually coexisting roles of the President and 
the Senate are central to the democratic system of separation of powers 
and checks and balances.
  Mr. Estrada must provide the Senate with a full and complete 
understanding of his views of the law and the Constitution, including 
important civil rights laws that protect all Americans, especially 
minorities, women, the elderly, and the disabled. However, if he is 
unwilling or the White House is unwilling to nominate judicial nominees 
who are willing to answer reasonable, nonintrusive, and legitimate 
inquiries of the Senate, then these nominees should not be confirmed.
  The role of the Senate in the confirmation process is advise and 
consent. It does not say anyplace to rubberstamp all Presidential 
nominations. The Senate should not abdicate its responsibility to 
thoroughly review judicial nominations. It is a responsibility, it is 
an obligation, for each one of us. Rather, the Senate is dutybound to 
ensure that each nominee maintains the utmost commitment to upholding 
the Constitution of our country--following precedent, listening to 
arguments without fear or favor, and rendering judgment without 
personal bias. Miguel Estrada has failed to respond to legitimate 
inquiries to the Senate and the American people.
  As I said before, it is time to move on to the important work of the 
American people, and let this appointment fall as it should unless Mr. 
Estrada has a reckoning with himself and his obligation and comes to 
the Senate to discuss his views in response to questions posed by the 
Senate.
  Mr. REID. Will the Senator yield for a question?
  Mr. LAUTENBERG. Yes.
  Mr. REID. The Senator is from the State of New Jersey. Of course, the 
State of New Jersey is very aware of the news that is put out in the 
New York Times and the editorials put out in the New York Times. Is 
that a fair statement?
  Mr. LAUTENBERG. It is a very important paper, yes.
  Mr. REID. I do not know if the Senator is aware that I read into the 
Record this morning a New York Times editorial from last fall dealing 
with Estrada. I ask the Senator if he is aware of the first paragraph 
of an editorial written February 13, 2003, in the New York Times?
  Is the Senator also aware that last night the majority read into the 
Record a number of editorials from around the country?
  Mr. LAUTENBERG. I am aware of that.
  Mr. REID. Does the Senator from New Jersey know the circulation of 
the New York Times?
  Mr. LAUTENBERG. I do not know precisely, but it is in the----
  Mr. REID. It is in the millions.
  Mr. LAUTENBERG. I am sorry?
  Mr. REID. It is over a million.
  Mr. LAUTENBERG. Over a million certainly on the weekends.
  Mr. REID. Yes, I am sure it is.
  Is the Senator aware of this editorial that says, paragraph No. 1, 
``The Bush administration is missing the point in the Senate battle 
over Miguel Estrada, its controversial nominee to the powerful DC 
Circuit Court of Appeals. Democrats who have vowed to filibuster the 
nomination are not engaging in 'shameful politics,' as the President 
has put it, nor are they anti-Latino, as Republicans have cynically 
charged. They are insisting that the White House respect the Senate's 
role in confirming judicial nominees''?
  Mr. LAUTENBERG. I am. I am also aware of the fact that there are 
Latino organizations that are unalterably opposed to this nomination.
  Mr. REID. If the Senator will yield for a question, is he aware that 
it is led by the Congressional Hispanic Caucus?
  Mr. LAUTENBERG. I am aware of all that.
  Mr. REID. If the Senator will yield for a further question, it would 
be difficult, would it not, to say that the Congressional Hispanic 
Caucus was anti-Hispanic?
  Mr. LAUTENBERG. I absolutely agree that there would typically be a 
determination by them to support the nomination, but they are not. If 
the Senator will help sharpen my memory, I think they said keep on 
talking in the close of that editorial piece.
  Mr. REID. We are going to find out. If the Senator would yield for 
another question?
  Mr. LAUTENBERG. I would be happy to.
  Mr. REID. I ask if the Senator from New Jersey agrees with that first 
paragraph of the editorial that I just wrote--read. I wish I had 
written it, but I read it.
  Mr. LAUTENBERG. I agree with the Senator and wish I had written it as 
well.
  Mr. REID. It is a short editorial. It is only three paragraphs. I 
will ask the Senator a question if he would yield.
  Mr. LAUTENBERG. Yes.
  Mr. REID. ``The Bush administration has shown no interest in working 
with Senate Democrats to select nominees who could be approved by 
consensus, and has dug in its heels on its most controversial choices. 
At their confirmation hearings, judicial nominees have refused to 
answer questions about their views on legal issues. And Senate 
Republicans have rushed through the procedures on controversial 
nominees. Mr. Estrada embodies the White House's scorn for the Senate's 
role. Dubbed the `stealth candidate,' he arrived with an extremely 
conservative reputation but almost no paper trail. He refused to answer 
questions, and although he had written many memorandums as a lawyer in 
the Justice Department, the White House refused to release them.''
  Does the Senator from New Jersey agree with the statement made in 
this editorial, second paragraph, by the New York Times?
  Mr. LAUTENBERG. I agree with it fully. I read that editorial. I was 
in total agreement with their logic, coming from New Jersey where we 
had candidates who were recommended for the appeals court languish--
nothing happening for months and months and months. The protests we 
hear now from our friends on the other side about the process are a bit 
shameless because we had a nominee from California, Mr. Paez, who 
waited, I believe, 1,500 days.
  Mr. REID. One thousand five hundred four days.
  Mr. LAUTENBERG. Waiting for a review by the committee, and could not 
get that.
  If we talk about obstinate approaches to the process about deliberate 
obstruction, the record is very clear.
  When we presented candidates, when the Democrats were a majority, 
they could not move them because the Republican side of the Senate 
would not permit any action at all.
  Mr. REID. Will the Senator yield for an additional question?
  Mr. LAUTENBERG. I am happy to yield to my friend from Nevada.
  Mr. REID. The final paragraph of this short but powerful editorial, 
does the

[[Page 4784]]

Senator from New Jersey agree with this:

       The Senate Democratic leader, Tom Daschle, insists that the 
     Senate be given the information it needs to evaluate Mr. 
     Estrada. He says there cannot be a vote until senators are 
     given access to Mr. Estrada's memorandums and until they get 
     answers to their questions. The White House can call this 
     politics or obstruction. But in fact it is Senators doing 
     their jobs.

  Would the Senator agree with this statement?
  Mr. LAUTENBERG. I agree 100 percent with that statement, and I think 
we ought to get on with the business of the American people.
  Mr. REID. If the Senator will yield for another question before he 
leaves the floor. The Senator mentioned there were aspirants to be 
appellate judges, and is the Senator aware that a number of these 
people were from New York? Is that true?
  Mr. LAUTENBERG. Indeed, that is true.
  I just got a letter from a district court judge in New Jersey, 
considered one of the most brilliant and able district court judges, 
who was recommended for the circuit court of appeals in our district 
and decided after a long wait that he was not going to get a chance to 
be heard for a circuit court job. He informs me in his letter that he 
is going back to the law firm after 10 years on the Federal bench--a 
distinguished jurist, a great loss. He could not get a hearing, so he 
decided to withdraw rather than sit there and be dangled like a kite in 
the wind.
  Mr. REID. Is the Senator aware of the names of 79 Clinton judicial 
nominees who were not confirmed by the Republicans?
  Mr. LAUTENBERG. I am fully aware of that. I listened when the 
distinguished Democratic whip read that list the first time, and I took 
the liberty of reading the list a second time to make sure it was 
clearly understood.
  Mr. LAUTENBERG. I 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. THOMAS. 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. THOMAS. Mr. President, it is very interesting to hear the 
discussions. It is very similar to what we have heard now for a couple 
of weeks. I could not agree more with the Senator from New Jersey who 
says let's get on with it. I have a suggestion as to how we can do 
that. There are more than a majority in this Senate who are satisfied 
with this candidate and ready to vote. All we need to do is have an up-
or-down vote. Those who are opposing that are in the minority. They can 
study as many things as they choose. The fact is, the majority of the 
people on this floor are satisfied this candidate is the right 
candidate and it is time to go. I could not agree more.
  We have a lot of things to do. We have gone through the hearings, we 
have gone through all the background, and certainly most of us would 
like to get away from this delay tactic and get on with our work. I 
have to say that when the majority is ready to go, that is what we 
ought to do. I suggest that.
  I will discuss another subject for a moment.
  THE PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. THOMAS. I thank the Chair.
  (The remarks of Mr. Thomas pertaining to the introduction of S. 475 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. THOMAS. Mr. President, again I hope we find ourselves in a 
position to move forward. I don't think there is a soul here who would 
not admit we have talked enough about this judicial nomination. I don't 
think there is a soul here who would deny we have all made up our 
minds, we all know exactly what we are going to do. It is very clear 
that the majority on this floor is prepared to vote for this nominee 
and we are being held up over here by a minority that simply continues 
to ask for something that is not necessary because the majority has 
already been determined. So I hope we can move on and do the business 
of this country for these people.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAPO. Mr. President, I rise today to submit a resolution.
  (The remarks of Mr. Crapo pertaining to the submission of S. Con. 
Res. 11 are printed in today's Record under ``Submission on Concurrent 
and Senate Resolutions.'')


                       Judiciary Committee Action

  Mr. DASCHLE. Mr. President, I wanted to come to the floor this 
afternoon to discuss a matter that occurred in the Judiciary Committee 
today that is deeply troubling.
  During a mark-up of 3 controversial circuit court nominees, the 
Chairman of the Judiciary Committee refused to observe the long-
standing rules of the committee and brought two circuit court 
nominations to a vote despite the fact that there was a desire by 
several members of the minority to continue debate.
  This situation is very specifically addressed by Committee Rule No. 
4, which reads as follows:

       The Chairman shall entertain a non-debatable motion to 
     bring a matter before the Committee to a vote. If there is 
     objection to bring the matter to a vote without further 
     debate, a rollcall vote of the Committee shall be taken, and 
     debate shall be terminated if the motion to bring the matter 
     to a vote without further debate passes with ten votes in the 
     affirmative, one of which must be cast by the Minority.

  At the time that the chairman attempted to bring the nominations of 
John Roberts and Deborah Cook to a vote, objections were lodged by at 
least 2 members of the committee.
  In fact, I believe that this rule was read into the Record in an 
effort to make clear to the chairman that it was not appropriate under 
the committee rules to bring these matters to a vote.
  Despite the fact that this action represented a clear violation of 
the committee rules, the chairman ended debate on these nominations and 
conducted a roll call vote.
  This reckless exercise of raw power by a chairman without regard to 
the agreed-upon standards of conduct that members of the committee have 
agreed to is ominous.
  Senate committees either have rules or they do not. It cannot be the 
case that the rules of a committee will apply unless the chairman deems 
them inconvenient or an obstacle to a goal he seeks at any given 
moment.
  This body has, for over 200 years, operated on the principle that 
civil debate and resolution of competing philosophies require rules. If 
the actions taken today indicate the new standard to which the majority 
plans to hold itself, then I propose that we simply repeal committee 
rules altogether and acknowledge that ``might makes right'' and there 
is no respect for minority interests.
  How can we expect the Judiciary Committee to place on the bench 
individuals who respect the rule of law if the very process that the 
committee uses to confirm those individuals violates the Senate rules 
themselves?
  I hope that upon reflection the chairman of the Judiciary Committee 
will reconvene the committee and allow for the committee to report out 
these nominations in a manner that is consistent with the committee 
rules.
  If not, he must recognize that he is setting a terrible precedent 
regarding the operation of Senate committees in the future, regardless 
of which party may be in control.
  Mr. President, I am very deeply troubled. This is a body of rules. 
This is a country of laws. I cannot imagine that there is ever a time 
that any one of us--any one of us--ought to be in a position to say: 
The rules in this case are not going to apply, the law in this case 
will not apply.
  And how ironic--how ironic--that in the Judiciary Committee, the 
committee which passes judgment on those who will interpret the rule of 
law, that very committee violated the rule today.
  So, Mr. President, we call attention to this extraordinary 
development with grave concern about its implications, about its 
precedent, about the message

[[Page 4785]]

it sends. And I must say, it will not be tolerated.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Homeland Security

  Mr. REID. Mr. President, there have been a number of statements over 
the past many months about the fact that we should have been spending 
more money on homeland security.
  For example, this week, I had a woman come to me from Las Vegas, who 
is in charge of the 9-1-1 center at the Metropolitan Police Department, 
a very large police department, with hundreds and hundreds of police 
officers representing that urban area of some 1.5 to 1.7 million 
people.
  She indicated to me there is a real problem. If you have a telephone 
call coming from a standard telephone, that person can be identified. 
They know the location of that telephone. Or if it is a pay phone, they 
know the location of that pay phone. But today a lot of people are 
getting rid of their standard telephones, as we know them, and are 
using computers, and millions and millions of people are using cell 
phones.
  She said that for virtually every place in the United States, 
including the Las Vegas area, if you call 9-1-1 from a cell phone, they 
have no idea who is making the phone call or where it is coming from. 
And, of course, with the computer, that is absolutely the case also.
  She was lamenting the fact that the technology is there. It is easy 
to do what needs to be done to make sure that 9-1-1 calls that come 
from cell phones can be located.
  People have lost their lives and have been injured and harm caused to 
them as a result of 9-1-1 not being able to identify when the emergency 
call comes in. This is only one example of how technology could handle 
the problem.
  Why isn't it being done in Las Vegas and other places? There isn't 
enough money. With what happened on September 11, there is tremendous 
need for more money to be spent for homeland security. This was 
certainly the opinion of the Governors who were in town this week. They 
are having all kinds of problems.
  So, Mr. President, I would like to refer again to the New York Times. 
I have talked about an editorial, as did my friend from Idaho, in the 
New York Times. I want to refer to a news story from the New York 
Times, dated today, February 27, 2003, written by one Philip Shenon, 
entitled ``White House Concedes That Counterterror Budget Is Meager.'' 
In effect, what this news article says is the White House now 
recognizes that there isn't enough money to take care of the problems 
of homeland security.
  In this article, among other things, the President blames the 
leadership of the House and the Senate. And, of course, that does not 
include the Democratic leadership, because everyone knows, including 
the President, that we have been crying for more money for more than a 
year.
  There are just a couple things from this news article I would like to 
point out to the Senate:

       . . . the long delayed Government spending plan for the 
     year does not provide enough money to protect against 
     terrorist attacks on American soil.

  Mr. President, this is a statement from this administration. This is 
not a statement from the Senator from West Virginia, the senior member 
of the Appropriations Committee, who has spoken for hours and hours on 
the need for more money. This is not a statement from Senator Daschle, 
the Democratic leader. This is coming from the administration: White 
House concedes that counterterror budget is meager.
  The article goes on to say:

       . . . because it had failed to provide adequate money for 
     local counterterrorism programs.

  Mr. President, throughout America today you can't have police 
agencies talking with each other. In Las Vegas, as an example, you have 
the Las Vegas Metropolitan Police Department, the city of Henderson, 
and Boulder City, and they can't talk to each other in an emergency. 
The technology is there. They can do that. But these governments simply 
don't have the money to do that. Fire departments can't talk to police 
departments all over America. It is not only a problem in Nevada.
  We have been asking that the President help with these moneys, and he 
has been unwilling to do so. He, in effect, vetoed a multibillion 
dollar proposal we had in a bill just a short time ago. In the bill we 
had, the big omnibus bill, we asked for a small amount of money for all 
the demands in here. We asked for $3.5 billion, but it contains only, 
as this article indicates, about $1.3 billion in counterterrorism money 
for local governments.
  Now, these remarks struck some of the audiences unusually sharp, 
given that ``both Houses of Congress are controlled by the President's 
party,'' as the article indicates.
  Now, there is more in this article, and the day is late, and the snow 
is falling, but I do want to read this to make sure the picture is 
plain.
  This is a quote from Governor Gary Locke of Washington, which is in 
the article:

       We have a lot of police agencies in the state that were 
     assured by the administration, repeatedly, that this money 
     was on the way.

  Still quoting from the article:

       He said that many police and fire departments had bought 
     [for example] hazardous-materials protective suits and other 
     counterterrorism equipment in the expectation that they would 
     be reimbursed by the federal government.
       ``And now,'' Governor Locke said, ``they're going to have 
     to scramble to terminate other programs in order to cover 
     those costs.''
  It is not only Democratic Governors complaining. Republican Governors 
are complaining. Governor Bob Taft, a Republican, said lawmakers did 
not appropriate the amount that was recommended and earmarked for what 
they appropriated. So it is very clear there are things we need to do 
on this Senate floor that deal with more than the employment of one 
man, Miguel Estrada, a man who today, I am sure, is billing big hours 
down at his plush office here in Washington, a man who makes hundreds 
of thousands of dollars a year.
  There have been statements made on this floor that it is extremely 
important that we shift from this man's employment, one man's 
employment, to the millions of people who are unemployed, and millions 
who are underemployed, people who have no health insurance and are 
underinsured and the many other problems we face.


                   Unanimous Consent Request--S. 466

  Based upon the New York Times article and the fact that the President 
of the United States has now acknowledged that the counterterror budget 
is meager, I ask unanimous consent that the Senate return to 
legislative session and then proceed to the immediate consideration of 
S. 466, a bill to provide $5 billion for first responders, introduced 
today by Senator Daschle.
  The PRESIDING OFFICER. Is there objection?
  Mr. CRAPO. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. REID. Mr. President, this is no surprise. I hope that people will 
understand the need to go to other legislation. When we have our own 
President who, for more than a year, has said we have enough money, 
there is money in the pipeline, now agreeing that we have a problem, 
that we don't have enough money. The State of Nevada, I spoke to the 
State legislature there a week ago last Tuesday, 10 days ago, 9 days 
ago. I told the legislature there, which is like 45 other State 
legislatures around America today, they have a State that is in red 
ink. I told them there are a number of reasons they are in red ink. One 
is we have passed a bill called Leave No Child Behind, and we are 
leaving lots of children behind because we passed on to the State of 
Nevada and other States unfunded mandates that create financial 
problems for the States.
  I also told the State legislature that what we have done in passing 
different

[[Page 4786]]

measures dealing with terrorism, we have passed on to the State and 
local governments unfunded mandates, costing the State of Nevada and 
local governments millions of dollars, causing their budgets to be in 
the red significantly.
  The President is wrong. He must help us address the problem. Senator 
Daschle's bill for $5 billion for first responders is not enough, but 
it is a step in the right direction.
  We are fighting. We have now here the former chairman of the Armed 
Services Committee, now ranking member. As we speak, American forces 
are in a war in Afghanistan. People every day are being wounded and 
killed in Afghanistan. But that has been overwhelmed by what is going 
on in Iraq, or what soon will go on in Iraq.
  We have lots of problems. We have problems in North Korea, which is a 
real serious one. They have started their second reactor there in the 
last few days. I was present at a briefing the other day with somebody 
from the administration who should know about how much the war is going 
to cost, and they don't know. The war in Iraq, they don't know. But we 
know we have a war going on here at home to fight terrorism, and we are 
not spending enough money to protect American people.
  We have interests in the Middle East. We have interests in 
Afghanistan. We have interests on the Korean peninsula. We have 
interests here, and they are being neglected. The President 
acknowledges that. What are we doing here, spending 3 weeks dealing 
with Miguel Estrada. It is wrong. I am not surprised this unanimous 
consent request was objected to, but even though I am not surprised, it 
doesn't take away from the significance and really how depressed I am 
as a result of not having the adequate resources we need to take care 
of the problems dealing with homeland security.
  Mr. LEVIN. I wonder if the Senator will yield for one question?
  Mr. REID. I am happy to yield to my friend.
  Mr. LEVIN. We have heard now with some regularity from the 
administration that they have no idea, no estimate as to what the cost 
of the war with Iraq will be, nor what the aftermath would cost; in 
other words, assuming there is a war, assuming that we occupy Iraq with 
or without others. According to General Shinseki, that could actually 
involve up to 100,000 troops there for some unlimited period of time. 
But even if they disagree with that, which apparently some members of 
the Pentagon do, we have not been able to obtain--and they claim there 
is none--an estimate of the cost of the aftermath of a war with Iraq at 
the same time that they are asking us to put in place an additional tax 
cut.
  Does it not strike my good friend from Nevada as being irresponsible 
to put into place tax cuts with huge costs to the Treasury when we are 
likely on the verge of a war which has no particular estimated cost, 
and then the aftermath of that war, which could last years, in turn 
also has no estimated cost? Does it not strike the Senator from Nevada 
as simply not being the responsible thing to do to be imposing or 
putting into place tax reductions which means losses to the Treasury, 
when we are right on the verge of potential expenditures which could be 
literally hundreds of billions of dollars over a reasonably short 
period of time?
  Mr. REID. Even though I would disagree with what the administration 
would do if they had the information and wouldn't give it to us, I 
wouldn't like that, but I would at least feel more comfortable that 
they were on top of their game. But for them to come to us and say, we 
don't know, that says it all. If they don't know and have no estimates 
as to the cost of what post-Iraq is going to be, we should all be 
concerned. If the general is 50 percent wrong, and it is only 100,000 
troops, that is a lot of troops to keep there for a period of time. 
They don't know whether it is 2 days, 2 years or 2 decades.
  Mr. LEVIN. And the answer we get is there is no way to know with 
certainty. These specifics are simply not available. There are too many 
imponderables. That is true, there are clearly some uncertainties. But 
it seems obvious to me the planners at the Pentagon must have some 
range of time or else there is no exit strategy, or else it is forever.
  Previous administrations have been criticized for not having exit 
strategies, not having estimates in time, for making their estimate too 
short: They will be home by Christmas. But that is no excuse for not 
having some range--that we will be there from 1 to 3 years according to 
the best estimate. The worst case scenario is X number of years, best 
case scenario is such and such. The best case scenario is we won't have 
problems with the Kurds or the Shia will not be attacking the Sunni. 
The worst case scenario is we will have those kinds of civil wars. 
There are best case and worst case scenarios which allow planners who 
are working actually on estimated costs and exit strategies to come up 
with some kind of an estimate upon which we can base future resources 
and expenditures of this Nation.
  Mr. REID. People in the administration who try to be candid with 
Congress get in trouble. Larry Lindsey, the chief economic adviser to 
the President, told us the war would cost $100 billion. He lost his 
job. I don't know if that is the only reason, but the general, a couple 
days ago, said: We will have to have 200,000 troops. There was a mad 
rush to that poor man to get him to change his opinion, and he changed 
his opinion and said: Maybe I was wrong, maybe it will be--and he 
mumbled around a little bit, but he gave an honest answer.
  Mr. LEVIN. He did.
  Mr. REID. Let's hope he doesn't lose his job. Let me also say this. 
We have all been impressed with this movie ``A Beautiful Mind,'' which 
a year ago won the Academy Award. The principle of that movie and the 
book that I read, written by a woman named Nasar, was that this 
brilliant man, Nash, figured out what was called the game theory. This 
doesn't necessarily mean playing checkers.
  He was able to determine through this brilliant mind that he had what 
would happen if more than two people were engaged in an activity and, 
as a result of the work he did, that is what much of the cold war 
planning was based upon--his theory, his game theory.
  Now, for me to be told that this mighty Nation, the United States of 
America, with 260 million people, with the finest educational 
institutions in the world--there are about 121 great universities in 
the world, and we have about 112 of them; basically they are all in 
America. So for someone to tell me that we don't know what it is going 
to cost postwar, that simply is not being candid. They know. There are 
different scenarios and they have them all in those computers, and they 
know what the different costs are going to be.
  I say to my friend from Michigan that, through mathematics, through 
computer modeling, you can figure about anything out. As most everybody 
knows, my last election was real close. I won election night by 401 
votes. By the time it was over, I picked up 27 more votes. But on 
election night, I had a computer man who worked with me for many years. 
He was a fine man. He had run a number of different models for the 17 
counties in Nevada and he told me after the vote was out of Clark 
County: You cannot lose. I have run every model there is and you cannot 
lose. It will be close, but you cannot lose. He figured out with 
mathematical certainty that I could not lose. Now, I didn't believe 
him, but he knew because he believes math doesn't lie.
  So without belaboring the point to the Senator from Michigan, 
somebody knows in this administration, but they are not going to tell 
us because they are afraid the American people are going to lose more 
confidence. As reported yesterday, the Wall Street Journal reports that 
soaring energy costs, the threat of terrorism, and a stagnant job 
market has sent consumer spirits plunging to levels only seen in 
recessions. That was from yesterday. That is why they are not telling 
us.
  I have given the Senator a very long answer to a short question, but 
I believe the administration knows and

[[Page 4787]]

they are afraid to fess up to the Congress and to the American people 
what this war is going to cost.
  Mr. LEVIN. Just to add one further thought, it seems to me it would 
be absolutely irresponsible not to have a range or an estimate of what 
the cost of a war would be in the best and worst case scenarios.
  Mr. REID. Or middle case.
  Mr. LEVIN. Yes, or at least a range on what is the worst case 
scenario and what is the best case scenario. I cannot believe the 
planners at the Pentagon and the OMB do not have a range. If they don't 
have a range, it would be irresponsible because how in heaven's name 
can the administration then say that we can afford a tax cut of the 
size they are proposing, when we have an impending demand for resources 
in a war that could be lengthy, costly, and then the aftermath could be 
lengthy and costly? It borders on the reckless, in terms of an economy, 
to say we don't have an estimate, we don't know whether or not it is 
going to be $20 billion, $40 billion, $100 billion--we don't have a 
range; yet they are trying to persuade a majority of the Congress that 
we ought to shrink the resources coming into the Government at the same 
time we are on the verge of war and the aftermath of a war, which 
doesn't have any estimated length, any estimated cost, and no troop 
estimate. We were given about a 200,000 estimate. Well, that is too 
high. OK, what is the ceiling that is more realistic to the people who 
say 200,000 is too high? We are completely devoid of that.
  What we are not devoid of, though, is the effort to shrink resources 
to this Government through a tax cut, which has a number of problems to 
it. One of them is that when we are facing what we are in terms of 
expenditures, it is not the responsible thing to do.
  Mr. REID. I would like to respond, not in a very direct way, but to 
point out problems the Senator has outlined in his statement to me. Is 
the Senator aware that yesterday I talked about a Pew Research Center 
poll? It is a nonpartisan organization. They are not for Democrats or 
Republicans. This was a real big poll, where 1,254 adults were 
contacted between February 12 and 18. For the first time in this 
administration, the American people do not approve of the way George W. 
Bush is handling the economy; 48 percent of the people disapprove. Is 
the Senator aware of that?
  Mr. LEVIN. I wasn't aware of the Senator's remarks, but I was aware 
of the poll.
  Mr. REID. And the Senator talked about tax policy. This same poll 
says that 44 percent of the American people disagree of George W. 
Bush's handling of tax policy. So the Senator said it all. I appreciate 
his asking me a question.
  Mr. LEVIN. Mr. President, I am going to speak about the very budget 
document that the Senator from Nevada and I have been discussing, 
perhaps in an indirect way. I wish to share some thoughts with the 
Senate about the proposed budget for 2004, which the President has now 
sent to Congress.
  As always, I wanted to see where the President's priorities were--not 
in sound bites, but the actual nitty-gritty numbers in the budget 
document. While every budget request is important, with the economy 
sputtering the way it is and with huge Federal deficits looming and 
critical domestic and international issues unresolved, particularly 
when we are facing the potential of a war and a very lengthy and 
complicated, expensive aftermath to that war, this budget requires 
special attention.
  I have been keenly disappointed by what this attention revealed. The 
President's budget would do exactly what he recently said he did not 
want to do, which was to pass our problems along to the next 
generation. The President made a very eloquent statement in the State 
of the Union Address, saying that we are not going to pass our problems 
along to the next generation. But when you look at the details of the 
budget, that is precisely what this budget request does.
  By the administration's own calculations, this budget would have us 
run a deficit of over a trillion dollars for the next 5 years, 
including record-setting deficits of over $300 billion for this year 
and next.
  Now, the contrast here between this projection of deficit and the 
$5.5 trillion 10-year surplus that was projected in January of 2001 is 
simply stunning. That contrast between just what 2 years ago was 
projected for our economy--a $5.5 trillion surplus--now there are 
projections of deficits upon deficits upon deficits--a projected 
deficit of over a trillion dollars over the next 5 years.
  The administration's plan estimates a non-Social Security deficit 
totaling over $2.5 trillion to the year 2008, which would leave us with 
an additional debt of $5 trillion in 2008, which is 150 times greater 
than what was projected just in the year 2001.
  Why such dire fiscal predictions? First, while the tax cut in the 
year 2001 played a huge part in putting us into the current deficit 
ditch, the President's call for an additional $1.5 trillion in new tax 
cuts--most of which disproportionately benefits upper income folks--
will help ensure that we not only stay in the deficit ditch, which we 
are back into, but that it will be a deep deficit ditch.
  Even Federal Reserve Chairman Alan Greenspan recognized the danger of 
such cuts when he spoke of the importance of curbing the deficit, not 
increasing it.
  That perhaps came as a surprise to some people in the administration 
who were looking to Alan Greenspan to give support to the tax cut 
proposal and minimize, they hoped, the impact of deficits on future 
economies. That is not what Chairman Greenspan did. He 
straightforwardly recognized the danger of the tax cuts when he spoke 
of the importance of reducing deficits and not increasing deficits.
  Mr. President, I see the Democratic leader is in the Chamber. I 
withhold the remainder of my comments at this time because he has a 
very important message relative to North Korea, and I wish to 
participate with him in a colloquy and presentation. So I withhold the 
remainder of my comments relative to the President's budget at this 
time.
  I yield the floor.
  The PRESIDING OFFICER. The Democratic leader.


                              North Korea

  Mr. DASCHLE. Mr. President, I thank the distinguished Senator from 
Michigan for his courtesy and appreciate very much his comments with 
regard to the budget and his extraordinary leadership with regard to 
many issues involving our military challenges and priorities abroad.
  Three weeks ago, I came to the Senate floor to address the 
intensifying crisis in North Korea, a country and a situation that I 
believe poses a risk to our Nation every bit as serious as that posed 
by Saddam Hussein. At the time, I urged President Bush immediately and 
directly to engage the North Korean Government in discussions to bring 
about a verifiable end to that country's nuclear weapons program.
  Unfortunately, the administration so far has failed to act, and, in 
the meantime, the crisis in North Korea continues to escalate. In 
recent days, we have seen reports that North Korea test-fired a new 
missile, evidently that regime's idea of an inauguration present for 
South Korea's incoming President. Just today, the newspapers contain 
reports that North Korea has restarted one of the reactors at its 
primary nuclear complex, a reactor that produces spent plutonium which 
can then be converted into weapons grade material.
  Let's be clear about what this latest provocation means. It means 
North Korea could have a nuclear production line up and running and 
producing weapons grade nuclear material in a matter of months. It 
means the world's worst proliferator could have enough nuclear material 
to produce six to eight nuclear weapons by summer.
  According to Brent Scowcroft, President George Bush's National 
Security Adviser, if we fail to act, it means ``We will soon face a 
rampant plutonium production program that could spark a nuclear arms 
race in Asia and provide deadly exports to America's most implacable 
enemies.''
  Unfortunately, the administration continues to insist on downplaying 
this

[[Page 4788]]

threat. These latest developments should confirm for anyone watching 
that this is a crisis that only grows with each day the administration 
fails to act. I come to the floor today to join with my colleague, the 
ranking member of the Armed Services Committee, to urge the 
administration to act now.
  The first step toward action is to acknowledge there is a problem. 
Based on a series of administration statements that play down the 
threat posed by North Korea's actions, it appears many in the 
administration are not even willing to take this step. For example, for 
quite some time now, the administration refused to call this situation 
even a crisis.
  Last month, North Korea announced its intention to withdraw from the 
Nuclear Non-Proliferation Treaty, the cornerstone of the world's 
nonproliferation efforts, and the response from Under Secretary of 
State John Bolton, ``Not at all expected,'' and on Monday after the 
missile test, the administration is quoted as saying that this was 
``just a periodic event.'' Secretary Powell called the test ``not 
surprising and fairly innocuous.''
  So what do we do? I believe we must begin by making certain we are on 
the same page as our allies. Failure to do so will only produce a 
failed policy. Unfortunately, while the administration says the right 
things about the importance of coalitions, it is unwilling or unable to 
do the right things to build a coalition.
  The administration continues to insist on multilateral discussions 
with the North Koreans while our friends and others have consistently 
and repeatedly urged President Bush to engage in bilateral talks. 
Therefore, the administration must redouble its efforts with our allies 
in South Korea, Japan, with the Chinese, and the Russians.
  Second, we must make it clear to the North Koreans that separating 
plutonium from the spent fuel rods at Yongbyon represents an 
unacceptable threat to our collective security. We should tell North 
Korea what we expect of them directly: That if it verifiably freezes 
all nuclear activities, we and our allies are prepared to discuss the 
full range of security issues affecting the peninsula, as well as other 
steps North Korea can take to reenter the international community.
  This is not news to the administration. In fact, the President 
himself has suggested he is prepared to have just these kinds of talks.
  Yet, I must say, regrettably, the administration still delays. It 
allows the crisis to deepen and relations with our friends who are most 
directly threatened by North Korea to suffer. In fact, what would 
reward North Korea is to continue to stand by while it builds a nuclear 
arsenal. The danger within North Korea is too urgent for the President 
to delay this any further.
  Finally, let me also take advantage of having my colleague, Senator 
Levin, in the Chamber to discuss a recent exchange of letters with the 
administration on this issue. Senators Levin, Biden, and I laid out our 
concerns to the administration about its North Korean policies and 
provided recommendations in a series of letters. I recently received a 
response from Dr. Rice, and I ask unanimous consent to print our 
January 31 letter and Dr. Rice's February 10 response in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                                  U.S. Senate,

                                 Washington, DC, January 31, 2003.
     Dr. Condoleezza Rice,
     National Security Adviser, The White House, Washington, DC.
       Dear Dr. Rice: We wrote to you earlier this month about our 
     increased concern regarding the crises on the Korean 
     peninsula. Our concern has deepended significantly as a 
     result of a report in today's New York Times, which was 
     confirmed by the Administration, that the U.S. government has 
     evidence that North Korea is removing spent nuclear fuel rods 
     from storage. These rods, which had been securely stored 
     under IAEA monitoring from 1994 until recently, reportedly 
     contain enough plutonium to produce roughtly a half dozen 
     nuclear weapons.
       As alarming as this report is, we are just as troubled by 
     the Administration's reported reaction to these developments. 
     Prior to this disclosure, the Administration said nothing 
     publicly or privately to Congress about these activities. 
     According to comments attributed to senior Administration 
     officials, the Administration has consciously decided to hold 
     this information in an effort to avoid creating a crisis 
     atmosphere and distracting international attention from Iraq.
       This muted response to the world's worst proliferator 
     taking concrete steps that could permit it to build a nuclear 
     arsenal stands in stark contrast to the President's statement 
     on Tuesday evening that ``the gravest danger in the war on 
     terror . . . is outlaw regimes that seek and possess nuclear, 
     chemical, and biological weapons.'' It is also increasingly 
     difficult to square the Administration's rhetoric on Iraq and 
     decades of U.S. policy aimed at discouraging the emergence of 
     declared nuclear powers with its continued downplaying of the 
     threat posed by North Korea's blatant disregard for 
     international rules on proliferation.
       As the crisis with North Korea continues to escalate, the 
     Administration's policy has not gotten any clearer. The 
     Administration's lack of a clear, consistent policy and our 
     failure to take concrete steps to address this growing crisis 
     has produced consternation and confusion. One result is that 
     our allies in the region appear to be taking a course 
     directly at odds with the Administration's latest 
     pronouncements.
       Given the stakes of the situation and the ongoing confusion 
     about the Administration's policy, we request that you come 
     brief the Senate as early as is practical to discuss that we 
     know about North Korea's latest actions and what the United 
     States is doing in response.
       We look forward to hearing from you as soon as possible
           Sincerely,
     Tom Daschle.
     Joseph R. Biden, Jr.
     Carl Levin.
                                  ____



                                              The White House,

                                Washington, DC, February 10, 2003.
     Hon. Thomas A. Daschle,
     Democratic Leader, U.S. Senate, Washington, DC.
       Dear Mr. Leader: Thank you for your letter regarding U.S. 
     policy on North Korea.
       I agree with you about the need to take effective action in 
     light of North Korea's recent actions to restart its nuclear 
     facilities at Yongbyon. The United States is working closely 
     with friends and allies toward our objective of the 
     elimination of North Korea's nuclear weapons program in a 
     verifiable and irreversible manner.
       However, I disagree with the assertion contained in your 
     letter that, prior to the New York Times article on January 
     31 on recent North Korean activities, ``the Administration 
     said nothing publicly or privately to Congress about these 
     activities.'' I also reject any suggestion that the 
     Administration consciously withheld information from Congress 
     to avoid distracting attention from Iraq.
       The Administration has regularly briefed and consulted 
     Members of Congress regarding policy toward North Korea and 
     Iraq. For example, Deputy Secretary Armitage briefed Senators 
     on January 16 on recent intelligence on activities at North 
     Korean nuclear facilities and steps taken by the 
     Administration in response to these actions. He also 
     testified before the Senate Foreign Relations Committee on 
     February 4.
       In addition, the CIA has routinely provided briefings and 
     written reports to Members and its oversight Committees. CIA 
     briefed Senate Foreign Relations staff on three occasions in 
     December on North Korea WMD issues, and on January 29, 
     published an article on North Korean nuclear-related 
     activities in the Senior Executive Intelligence Brief (SEIB) 
     that addressed the issues discussed in the New York Times on 
     January 31. The January 29 article was one of nine such 
     articles published in the SEIB on North Korea in January 
     alone. The SEIB is delivered daily to the CIA's oversight 
     Committees and to the Office of Senate Security where it is 
     available to Senators and appropriately-cleared staff.
       In the days and weeks ahead, it is my hope that we can work 
     together to address the challenges we face on a range of 
     critical national security issues, including North Korea and 
     Iraq.
           Sincerely,

                                             Condoleezza Rice,

                                        Assistant to the President
                                    for National Security Affairs.

  Mr. DASCHLE. Unfortunately, little in Dr. Rice's letter addresses our 
policy concerns. Rather, the bulk of her comments are dedicated to 
rebutting a claim in our letter that Congress has not been adequately 
consulted about some explosive findings revealed in a January 31 New 
York Times article.
  The article stated that the U.S. Government has evidence North Korea 
had begun moving spent fuel rods out of a secure storage area, a 
development that was subsequently confirmed by the administration. 
Movement of spent fuel rods would either suggest that North Korea was 
getting ready to reprocess that fuel to build new weapons or was trying 
to hide the spent fuel

[[Page 4789]]

from the international community. In either case, this is a very 
significant finding that we believed then and still believe deserves to 
be brought to the Congress's attention.
  While Dr. Rice rightly points out that Congress has been briefed on 
North Korea issues generally, including a briefing by Deputy Secretary 
Armitage on January 16, we are not aware of any administration briefing 
that provided us with information on this specific development prior to 
the New York Times story. And in recent testimony before the Senate 
Foreign Relations Committee, Deputy Secretary Armitage implicitly 
acknowledged that fact.
  The reason to bring this up is because we are facing a crisis on the 
Korean peninsula, a crisis with extremely high stakes, a crisis that 
demands robust American response, a crisis that demands we be clear 
with each other and with the American people. Given the stakes of the 
situation and the ongoing confusion about the administration's policy, 
we should expect no less.
  I yield the floor.
  Mr. LEVIN. Mr. President, will the Democratic leader yield just for 
some questions?
  Mr. DASCHLE. Before I yield the floor, I am happy to yield to the 
distinguished Senator from Michigan.
  Mr. LEVIN. Is the Senator aware of a statement which was made before 
us--I do not know how he would be, but let me brief him on it. We had 
the head of the Defense Intelligence Agency in front of the Armed 
Services Committee a couple of days ago, and we asked him whether or 
not in his judgment there was a crisis on the Korean peninsula because 
of the actions of North Korea in removing these seals from the spent 
fuel, eliminating the cameras and kicking out the inspectors. Even 
though the administration is unwilling to put the label ``crisis'' on 
what is going on on the Korean peninsula, Admiral Jacoby was more than 
willing to say, yes, this is a crisis.
  I am wondering if the Democratic leader would agree that part of the 
problem that we have in dealing with the North Korean situation is the 
unwillingness to see it for what it is, which is a major proliferation 
threat when there is a country that has been the world's greatest 
proliferator, including Libya and Iran, missiles and missile 
technology, when there is a country with a nuclear program that they 
acknowledge removes the inspectors from its country, whether or not 
that would represent progress if we could just at least get the 
administration to acknowledge what the head of the Defense Intelligence 
Agency says, which is that we have a crisis on the Korean peninsula?
  Mr. DASCHLE. I think the Senator asks a very good question. This is 
more than just a semantical issue. Whether one calls it a crisis, an 
emergency, whatever volatile term one wishes to apply, clearly this 
deserves more of a response than this administration has provided.
  I wonder what would have happened if Iraq had been the country with 
the evidence now to suggest that weapons of mass destruction, nuclear 
weapons, would be produced with the degree of certainty that we now see 
them in North Korea, what would the administration have said to that? 
If Iraq had fired a test missile within the last 2 weeks, what would 
the administration have said of that? My hunch, is that they would have 
used the word ``crisis'' and then some.
  They have already claimed, of course, that North Korea is a member of 
the so-called axis of evil, an unfortunate term in my opinion. But to 
avoid using the word ``crisis,'' I believe, lends a real serious 
credibility question to the administration's foreign policy with regard 
to the region. This is a crisis. Every expert has acknowledged that it 
is a crisis. Unless we are willing to recognize the reality of the 
implications of this crisis, I believe the crisis will only worsen.
  The Senator from Michigan has made a very important point with his 
question.
  Mr. LEVIN. In addition to looking a problem square in the eye and not 
sugarcoating it, if we are going to solve it, another part of the 
administration's platform relative to Korea, or approach to the Korean 
problem, is to say that the multilateral approach is the right 
approach. I am always glad to hear when the administration is willing 
to work multilaterally. I have been a critic of the administration 
because their unilateral rhetoric activities, it seems to me, have been 
counterproductive in many parts of the world. So whenever the 
administration talks about a multilateral approach or consulting with 
allies and friends, that is good news. But when they do the 
consultation, when they talk to South Korea, both its former President 
and its new President, as well as when they talk to China, as well as 
when they talk to Japan, as well as when they talk to other allies in 
the area, they are told the same thing. When they do use the 
multilateral approach, they are told: Engage in direct discussions with 
North Korea. As a matter of fact, the representative of the new 
President of South Korea, the special envoy of new President Roh, 
visited us. His name is Dr. Chyung, and he visited with us on February 
3.
  That was, again, the open advice, he said, of the South Korean 
Government, is to have the United States talk directly with North Korea 
so that they can hear from us what our concerns are; so that both sides 
can avoid any kind of miscalculations; so that we do not fuel the 
paranoia this isolated regime has. They are paranoid. They are 
isolated. They actually believe we might strike them with one of our 
preemptive strikes. They actually believe it.
  So the advice we are getting when we talk to our allies and follow 
this multilateral approach is engage with North Korea, and yet we 
refuse to do so.
  I am wondering whether the Senator would agree that it is not only 
important that we consult with allies, not necessarily follow the 
advice but at least give serious consideration to the advice they give 
us when they talk to us about a direct engagement with North Korea to 
avoid miscalculation, so that the North can hear directly from us what 
our major concerns are?
  Mr. DASCHLE. I appreciate the question posed by the Senator from 
Michigan. This whole experience has turned logic on its head. We have 
220,000 troops in the gulf. We are told that there is almost an 
inevitability of war. We are told that the reason for this near 
inevitability is because of weapons of mass destruction that we have 
yet to find in Iraq and because of an unstable leader in Iraq.
  These assertions have required the administration to go to great 
lengths to try to prove that their findings are ones that could be 
recognized by the world community. With all of their best effort, they 
have yet to demonstrate to the satisfaction of some of our allies that 
the threat exists to the extent the administration perceives it, and 
yet there is a clear set of circumstances that are undeniable in North 
Korea. There is a very questionable leader spurring development of 
nuclear weapons in the most rapid way, which we know could be sold 
quickly to terrorist organizations and used against us and the world 
community. Yet this administration chooses to ignore it.
  The Senator asks the question, why would we not engage the community 
and recognize the importance of confronting North Korea? The 
administration says the answer to that is they do not want to reward 
bad behavior.
  I argue that we are rewarding bad behavior by ignoring the 
circumstances as this administration has chosen to do. What could be 
worse behavior than what is going on right now?
  As I understand it, we began to reship food assistance to the North 
Korean people within the last few days. We have no real guarantee that 
aid is going to get to the people, but it is a very unusual message 
they are sending to both Iraq and North Korea. Of all those who would 
be most confused it would be our allies. How do they explain all of 
this? What credibility do we have with them as we attempt to 
rationalize this odd position we find ourselves in today?
  I appreciate the question, and I would simply say to my colleague 
that

[[Page 4790]]

it begs further explanation by the administration which, again, because 
they refuse to call this a crisis, they have yet to provide.
  Mr. LEVIN. This administration has blown hot and cold when it comes 
to policy relative to North Korea.
  I just have one final question.
  The Democratic leader points out just how confusing a policy it is, 
not just for North Korea but for our own allies. Our ally with the most 
at stake on the Korean peninsula is South Korea. They could be 
destroyed if there is a miscalculation. Their capital is within range 
of tens of thousands of artillery of North Korea.
  On March 6, 2001, on the eve of a summit between then South Korean 
President Kim Jong-Il and President Bush, Secretary of State Powell 
said we plan to engage with North Korea and to pick up where President 
Clinton and his administration left off.
  Within 24 hours was the Secretary of State's statement that we were 
going to engage with North Korea and pick up where the Clinton 
administration left off because the Clinton administration obtained the 
framework agreement that resulted in the canning of that very material 
which is so dangerous which contains plutonium. Within 24 hours, at the 
summit the next day, President Bush basically said: We are not going to 
have any discussions with North Korea. We are not picking up where the 
Clinton administration left off. We do not trust North Korea.
  No kidding. That is a mild statement, that we do not trust North 
Korea. If we did not talk to people we did not trust, we would not be 
talking to half of the world, including some of the most dangerous 
people in the world.
  Talking to people does not mean we are going to reward anything. It 
simply means they will hear directly, eyeball to eyeball, from us as to 
what our concerns are, and also why we do not threaten them, and why, 
if they will terminate their nuclear program, they can rest assured 
they will get an agreement from us that there is not going to be any 
active aggression against them.
  The blowing hot and cold, the erratic policy, the undermining not 
just of our own Secretary of State 24 hours after he said we would 
continue a policy, but undermining our South Korean allies with so much 
at stake, it seems to me has contributed to a very uncertain policy on 
the Korean peninsula, has sowed the seeds of confusion, and fueled and 
contributed to the paranoia that already existed in spades in North 
Korea.
  I have been to Yongbyon, the place in North Korea where they were 
canning those fuel rods, where they had sealed them. I don't know that 
any other Member of the Congress got there, but I got there a couple 
years ago. I watched the International Atomic Energy Agency as they 
were sealing those fuel rods. That was a very positive thing to watch, 
to actually see, under IAEA inspection and supervision, those 
incredibly dangerous nuclear materials being canned instead of 
threatening to the rest of the world as potential proliferated 
material, to actually see it put under the supervision of the IAEA.
  That is now out the window. We are starting from scratch. I 
understate my feelings on the matter when I say the Senator, the 
Democratic leader here, has so accurately stated the fact that we have 
a problem. Step 1 is to recognize we indeed have a crisis. Step 2 is 
not just to consult with allies but to seriously consider what they 
recommend when they talk about having direct engagement with the North 
Koreans.
  I thank the Democratic leader for his constant determination to keep 
this Korean peninsula crisis in front of us. We cannot lose sight of 
it. It is a greater threat than Iraq because in North Korea you have a 
known proliferator who has removed the inspectors and who has nuclear 
material which could be so easily distributed, shipped, or sold to 
people who could do great harm with it.
  I thank my friend from South Dakota.
  Mr. DASCHLE. I thank the distinguished Senator from Michigan.
  We can learn a lot from history. History, for most of my lifetime, 
involved a cold war, a cold war with an archenemy--the Soviet Union--
which had thousands of nuclear warheads pointed toward the United 
States. They posed an imminent threat that could at any moment destroy 
all of civilization.
  We made the choice, for good reason, Republican and Democratic 
administrations made the choice, that rather than engage in conflict, 
we would contain, negotiate, disarm, and ultimately wear down those 
leaders of the Soviet Union. That is ultimately what happened. The 
Soviet Union collapsed, negotiations for disarmament continued, and I 
recognize the contribution of many Presidents, from Harry Truman on.
  But it was Ronald Reagan who said: Trust but verify. He did not say: 
I don't trust the Soviet Union, so I'm not going to enter into dialog 
with them. He was criticized at times, but he said: I'm going to engage 
in dialog. I'm going to continue the effort of my predecessors. I'm 
going to trust. But then I'm going to verify.
  What the Senator from Michigan noted is that a couple of years ago 
that verification process was underway. We trusted. And we verified. 
His site visit was an indication of that verification.
  I can only hope that those responsible for the day-to-day decisions 
made with regard to U.S. foreign policy will recognize the importance 
of past precedent, that we engage our enemies, we engage those whom 
there is ample reason to distrust, but we recognize that without some 
communication, without some engagement, the only other option is 
conflict.
  The only other option is to see what is happening today. Nuclear 
weapons are being constructed. Nuclear weapons are being stockpiled. 
Nuclear weapons could be shipped. Nuclear weapons could be used not 
only in the region but against this country, as well. Every day we 
delay, every day we lack the will to confront and communicate, every 
day we lack the desire to verify, every day we create a problem more 
complex for future leaders and for future American policy.
  I hope this administration will very carefully reconsider their 
position. I hope they will listen to our allies. I hope they will 
engage the North Koreans. I hope they can give us greater appreciation 
with greater clarity of their intentions with regard to that part of 
the world.
  I yield the floor.

                          ____________________