[Congressional Record (Bound Edition), Volume 149 (2003), Part 4]
[Senate]
[Pages 4995-4999]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
go into executive session and resume consideration of Executive 
Calendar No. 21, which the clerk will report.
  The legislative clerk read the nomination of Miguel A. Estrada, of 
Virginia, to be United States Circuit Judge for the District of 
Columbia Circuit.
  Mr. REID. Mr. President, before my friend starts, we have other 
people who wish to speak who can come this afternoon. I am curious as 
to roughly how long the Senator wishes to speak.
  Mr. ALLEN. I suspect 15 to 20 minutes.
  Mr. REID. I thank the Senator.
  The PRESIDING OFFICER (Mr. Sessions). The Senator from Virginia.
  Mr. ALLEN. Mr. President, I rise once again to support Miguel 
Estrada's nomination to serve on the United States Court of Appeals for 
the District of Columbia. Miguel Estrada is being treated unfairly by 
Senators on the other side of the aisle who continue to practice such 
blatant obstructionism in an effort to score petty partisan points. 
Indeed, the obstructing Senators are shirking, in my view, their duty 
by avoiding a vote on this gentleman, Miguel Estrada, who was nominated 
22 months ago by President Bush.
  This is not mere payback; it is an escalation in a bitter battle by 
the Senate Democrats to keep judges off this court who properly 
construe the Constitution and respect the laws duly enacted by the 
elected legislature. That is disappointing, and it is dangerous.
  The Senate Democrats' filibuster is a recipe for endless gridlock and 
a terrible disservice to the American people and the administration of 
justice.
  Our protracted debate on the nomination of Miguel Estrada to the 
Court of Appeals for the District of Columbia makes clear the 
importance of sound reasoning judges on our circuit courts. For 
example, look at the recent denial of a rehearing decision by another 
circuit court, the Ninth Circuit Court of Appeals. I object to the 
decision by the Ninth Circuit Court of Appeals which will strip the 
Pledge of Allegiance from classrooms and over 9,600,000 students in 
Western United States. This decision is a miscarriage of justice.
  The majority opinion lacks a clear reading of the constitutional 
intent and the legal precedent, and there is clearly a lack of common 
sense. This decision, frankly, is an abuse of power by the majority of 
those judges who sit on the Ninth Circuit Court of Appeals.
  We all know well the history of our Nation and the fundamental ideas 
of freedom, particularly those of religious freedom, which in Virginia 
we call the first freedom. It was because of the desire to worship 
freely, to escape religious persecution in European countries that many 
came to settle in the American Colonies, from Pilgrims to French 
Huguenots. From New England to Virginia to South Carolina, many came to 
settle in this country to get away from Europe, ruled in large part by 
monarchs who served not by any talent, quality, or the consent of the 
people, but, as they called it, divine right. That divine right was 
generally conferred upon them by the exclusive monopoly of one church. 
So there was a co-conspiracy of a monarchy and an exclusive religion.
  In the Virginia Colony, it was the Anglican Church that was forced 
upon the people. Baptists, in particular, were forced to pay to that 
established church. Indeed, when they talk about the Danbury letter to 
the Baptists, the Baptists were very happy when Thomas Jefferson was 
elected President. If one looks at what is in the Virginia statute of 
religious freedom, which was the predecessor of part of the first 
amendment of the Bill of Rights in the U.S. Constitution, one gets a 
better sense of what religious freedom and the so-called establishment 
clause is all about.
  I will read from article I, section 16, in the Virginia Constitution 
that still remains and, of course, is built upon Mr. Jefferson's 
statute of religious freedom which was also involved in the Virginia 
Declaration of Rights which became eventually the first amendment to 
the Constitution.
  It reads:

       That religion or the duty which we owe to our Creator, and 
     the manner of discharging it, can be directed only by reason 
     and conviction, not by force or violence; and, therefore, all 
     men are equally entitled to the free exercise of religion, 
     according to the dictates of conscience; and that it is the 
     mutual duty of all to practice Christian forbearance, love, 
     and charity towards each other. No man shall be compelled to 
     frequent or support any religious worship, place, or ministry 
     whatsoever, nor shall be enforced, restrained, molested, or 
     burthened in his body or goods, nor shall otherwise suffer on 
     account of his religious opinions or belief; but all men 
     shall be free to profess and by argument to maintain their 
     opinions in matters of religion, and the same shall in nowise 
     diminish, enlarge, or affect their civil capacities. And the 
     General Assembly shall not prescribe any religious test 
     whatever, or confer any peculiar privileges or advantages on 
     any sect or denomination, or pass any law requiring or 
     authorizing any religious society, or the people of any 
     district within this Commonwealth, to levy on themselves or 
     others, any tax for the erection or repair of any house of 
     public worship, or for the support of any church or ministry; 
     but it shall be left free to every person to select his 
     religious instructor, and to make for his support such 
     private contract as he shall please.


[[Page 4996]]


  That, in my view, is the full historical context, from the founding 
documents since Virginia first passed the Statute of Religious Freedom, 
of what the first amendment should be.
  Obviously, the first amendment of our Constitution is but a few 
sentences, but this gives the historical and the legal grounding of the 
Statute of Religious Freedom.
  We all know well the words written by Thomas Jefferson proclaiming 
our independence from the religiously oppressive British monarchy. 
These words allowed our young Nation to:

       Assume the powers of the Earth, the separate and equal 
     station to which laws of nature and of nature's God.

  These are words that tell all of us, as Americans, that all men are 
endowed by their Creator with certain unalienable rights, that among 
these are life, liberty, and the pursuit of happiness. These words 
still stir our hearts. They inspire us to continue to build that 
shining city on a hill, to be that beacon of freedom, religious or 
otherwise, for people all around the world.
  Our Constitution, the hallowed document, can be summed up by one word 
and one idea: Freedom. The Constitution and the institution and the 
formation of this Government to protect those God-given rights and 
those freedoms states that Congress shall make no law respecting the 
establishment of religion.
  While some conveniently use this to perpetrate actions such as those 
we saw out in San Francisco last week, it is often forgotten that the 
Constitution just as clearly states that the Congress shall make no law 
prohibiting the free exercise thereof.
  I feel confident that the scholarly Miguel Estrada, who was editor of 
the Harvard Law Review, would have views similar to the dissent written 
by Judges O'Scannlain and Ferdinand Fernandez. As Judge O'Scannlain 
notes in his well-reasoned and thoughtful dissent, this decision of the 
Ninth Circuit Court is wrong on many levels. It is wrong because 
reciting of the Pledge of Allegiance is simply not a religious act, as 
the two-judge majority asserts. The decision is wrong as a matter of 
Supreme Court precedent as properly understood. The decision is wrong 
because it denies the will of the people of California as expressed in 
section 52720 of the California education code, and it is wrong as a 
matter of common sense.
  I trust the Supreme Court of the United States will grant a writ of 
certiorari and promptly hear and decide this case. I, of course, hope 
they will reverse it. Parenthetically, I support the resolution of 
Senator Lisa Murkowski of Alaska expressing support for the Pledge of 
Allegiance, and I ask unanimous consent that I be added as a cosponsor 
of that measure.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLEN. In the realm of public education, the Supreme Court--and 
the Presiding Officer of the Senate right now is well aware of 
precedent in the various decisions the Supreme Court has made when 
dealing in the realm and the issue of public education and prayer, or 
the religious tests. There are at least three different but 
interrelated tests used to analyze alleged violations of the 
establishment clause--in other words, the establishment of a religion. 
It is a three-pronged test, first articulated in the case of Lemon v. 
Kurtzman, called the Lemon test, and that is to determine whether that 
public activity had a primarily secular purpose. Here, the Pledge of 
Allegiance is primarily a patriotic event and purpose.
  The second test is called the endorsement test. Here, there is no 
endorsement of any denomination of any religion. So that test is 
passed.
  The third test is called the coercion test, and there is no coercion 
here for students.
  The Supreme Court of the United States has commented that the 
presence of ``one nation under God'' in the Pledge of Allegiance is 
constitutional. The Supreme Court will have an opportunity to clearly 
resolve this because sometimes there are judges who have to be reversed 
on many occasions before they understand the plain intent of the law, 
of previous opinions and the history of our country.
  I will not discuss how the Ninth Circuit erred in the applications of 
the facts of this case to the establishment clause, but I do commend to 
my colleagues the dissent of Judge O'Scannlain, which I hope will give 
guidance to the Justices of the U.S. Supreme Court when they do review 
this case.
  As a resource, I direct the attention of my colleagues to some 
outstanding historical analysis prepared by a gentleman from Texas, 
David Barton, and an organization called Wall Builders.
  If reciting the pledge is truly a religious act, in violation of the 
establishment clause, then so the recitation of our Constitution itself 
would be, which refers to the ``year of our Lord'' and our Declaration 
of Independence, which contains multiple references to God. Our 
Founders claimed the right to dissolve the political bands based on the 
laws of nature and of nature's God.
  The most famous passage, of course, is the ``all men are created 
equal'' and they are ``endowed by their Creator with certain 
unalienable rights.'' Subsequently, the signatories ``appeal to the 
Supreme Judge of the world to rectify their intentions''; our national 
motto, which is ``in God we trust''; and the singing of the national 
anthem, a verse which says: ``And this motto: In God we trust.''
  Furthermore, the Supreme Court, even the Ninth Circuit Court of 
Appeals, opens sessions with a call that says, ``God save the United 
States and this honorable court.''
  There is an undeniable and historical relationship between God and 
our Founders and the Government leaders throughout our history. In 
fact, it was Congress in 1837, acting on the will of the people, that 
authorized the motto ``In God We Trust'' to be printed on our currency. 
We can cite the actions of the entire body of Founding Fathers. For 
example, in 1800 when Washington, DC, became the Nation's Capital and 
the President moved to the White House and Congress into the Capitol, 
Congress approved the use of the Capitol Building as a church building 
for Christian worship services. In fact, Christian worship services on 
Sunday were started at the Treasury Building and at the War Office.
  A scant review of the legislative history in States and the Federal 
Government and the intent of our Founders, from George Washington to 
Thomas Jefferson, lays out the utter absurdity--no; actually, the 
arrogance--of this Ninth Circuit Court of Appeals and this decision.
  Each of us who has the high privilege to sit in this Chamber is very 
well aware of the circumstances by which the phrase ``one nation under 
God'' became a part of the pledge in 1954. It was the will of the 
Congress, the will of the people, that put it there, and today it is a 
will, unfortunately, of a few unelected judges who seek to remove it.
  The State of California is not unique in encouraging students to 
engage in appropriate patriotic exercise. My Commonwealth of Virginia 
has a statute requiring the daily recitation of the Pledge of 
Allegiance in every classroom. It is thoughtfully crafted. The Virginia 
statute provides that:

       No student shall be compelled to recite the Pledge if he, 
     his parent or legal guardian, objects on religious, 
     philosophical or other grounds to his participating in this 
     exercise. Students who are thus exempt from reciting the 
     Pledge shall remain quietly standing or sitting at their desk 
     while others recite the Pledge. . . .

  As Governor of the Commonwealth of Virginia, I was proud to have been 
able to sign into law a commonsense provision to develop guidelines for 
reciting the Pledge of Allegiance in public schools in 1996.
  While we can go on about this, the point is that the pledge is a 
patriotic exercise. Thomas Jefferson, who authored the Statute of 
Religious Freedom, had no intention of allowing the Government to 
limit, restrict, regulate, or interfere with public religious 
practices. He believed, along with the other Founders, that the first 
amendment had been enacted only to prevent the Federal establishment of 
a national denomination. This patriotic pledge establishes no religious 
denomination.
  These Ninth Circuit Court judges discredit, in my view, the 
judiciary. This

[[Page 4997]]

is an example of government overreach in a very different and harmful 
way. It is judicial activism at its very worst. It is activism by 
unelected judges who, through this decision, and decisions such as 
this, usurp the policymaking role given to this body and to the people 
of the States, the rights that are guaranteed to all of us and the 
people in the States by the U.S. Constitution.
  Let me take a moment to put this decision into context. The Ninth 
Circuit Court of Appeals has a long recent record of issuing decisions 
that are clearly out of step with most Americans--I daresay, reality--
and out of the bounds of American jurisprudence.
  The court has become famous--maybe I should say infamous--for several 
decisions. The Ninth Circuit Court is the most overturned appeals court 
in the country. The decisions issued by this court have been reversed 
by the U.S. Supreme Court more frequently and by a larger margin than 
any other court of appeals in the Nation. In recent years, the reversal 
rate has hovered around 80 percent.
  In one recent session of the Supreme Court alone, an astonishing 28 
out of 29 appeal decisions of the Ninth Circuit Court of Appeals were 
overturned--97 percent were overturned.
  What is the next decision out of this Ninth Circuit Court of Appeals? 
Will they ban the singing of ``God Bless America'' in our schools? Will 
they redact our founding documents, some of which are the greatest 
documents in all the history of mankind and civilization? Will the 
Congress, the Supreme Court, and State legislatures across the land be 
prohibited from opening their sessions by saying the pledge because 
that somehow might offend the sensibilities of someone watching a 
legislative body open with the Pledge of Allegiance?
  The fact is, this is not an argument of God or no God. It is not an 
argument about separation of church and state. It is not an argument of 
the establishment of a religious denomination. Saying the pledge is no 
more a religious act than is purchasing a candy bar with a coin that 
says ``In God We Trust.''
  Let us understand the fact is this, and I think most Americans agree: 
The Pledge of Allegiance should remain in our schools and other public 
functions. As it is today, it should be a voluntary matter of personal 
conscience. On this issue and so many others, the Ninth Circuit Court 
of Appeals is out of touch and flatout wrong. This errant decision 
clearly points out the need to put commonsense, reasonable, well-
grounded judges on the Federal bench, rather than dangerous activists 
who ignore the will of the people of the States, who ignore common 
sense, and apparently disagree with or are pitifully ignorant of the 
foundational principles of these United States.
  This is a wake-up call, a wake-up call for those on the other side of 
the aisle who are holding up the confirmation of people like Miguel 
Estrada, while at the same time maybe signing on to Senator Murkowski's 
resolution or maybe at the same time coming down to the floor to rail 
against activist decisions such as the one that came out of the Ninth 
Circuit last week.
  I have come to this floor many times, as I know the Presiding Officer 
has, to advocate for Mr. Estrada. The fact is, he is qualified. He has 
earned the unanimous highest rating from the American Bar Association, 
the rating that my friends on the other side of the aisle have 
previously, on other nominees, described as a gold standard for 
judicial nominees.
  Mr. Estrada embodies the modern-day American dream that we so fondly 
talk about. He, like many others who came to this country in recent 
decades, came from a Latin American country. He, like those who came to 
Jamestown, VA, in 1607, or in a later year, Cajuns, Irish, Scottish, 
German, Scandinavian, Italian, Polish, Korean, Vietnamese, Pakistani, 
Indian, Lebanese, Persians, or even my own mother, all came to this 
country to seek out a better life. He has overcome tremendous 
obstacles. He has worked hard. He has embraced the opportunity that 
became available to better himself and found a fulfilling life in this 
land of opportunity.
  Now Miguel Estrada stands at the precipice of service on an important 
DC Court of Appeals. He is ready, qualified, and more than able to take 
the next step, and for no other reason than scoring political points 
his nomination is being obstructed, delayed, and denied.
  Let me say very clearly, those who deny Mr. Estrada a vote by this 
body are doing more harm than they realize. For Miguel Estrada and 
every other person who believes the American dream can happen, that 
shining city on the hill is dimmed today because of the partisan games 
taking place in this body. I respectfully encourage those on the other 
side of the aisle to take a lesson today. Do the right thing. Work your 
will and constitutional responsibilities. Have the gumption to take a 
stand and cast your vote.
  I have no problem in taking a stand in explaining why I support 
Miguel Estrada. For those who are opposed, have the gumption to vote no 
and then explain your vote rather than perpetrating this irresponsible, 
duplicitous filibuster, which is thwarting the will of the majority of 
the Senators.
  Concerning both the Pledge of Allegiance and the confirmation of 
Miguel Estrada, the power of the dream and the promise of America is 
rooted in one idea: that the direction of our Nation is and will always 
be determined by the consent and will of the people. The consent and 
will of the people is not being effectuated by the irresponsibility of 
a few, whether they be judges on the Ninth Circuit Court of Appeals or 
the Senate. Senators need to exercise their responsibilities to advise 
and consent on nominees.
  I hope and pray the U.S. Supreme Court will reverse this egregious 
decision to ban the Pledge of Allegiance in the Western States of our 
country. I also hope and pray that Senators will exercise their duty, 
take a stand, vote yes or no, explain it to their constituents, and the 
will and the consent of the majority of the people of this country will 
be effectuated.
  I close by saying, God bless America.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, the procedure in the Senate, one of long 
standing, is that we as Senators have the right to keep what we believe 
is our ability to have our voices heard. In this instance we have said 
now for some time, if the majority wants to go forward on Miguel 
Estrada, we should have him come back before the Judiciary Committee, 
answer questions, and with him bring the memos from the Solicitor's 
office. They have been supplied on other occasions. It has been 
mentioned in the Record specifically how it was done.
  I am not here, though, to debate the qualifications of Miguel 
Estrada. I am here to talk about my becoming a vocal critic of the 
American Bar Association rating process for judicial nominees. I have 
to say, frankly, I have never been a big fan of the American Bar 
Association. I know they do some good things. I have lost significant 
respect for the operation of rating judges. I do this not in any way to 
denigrate Miguel Estrada. My statement I make today is in no way to 
denigrate Miguel Estrada.
  I have said before, Miguel Estrada graduated from Harvard. He could 
have graduated at the bottom of his class at Harvard and he still would 
be one of the more credible, more qualified people to go to law school. 
It is hard to get into Harvard. But he did not graduate at the bottom. 
He was one of 71 editors they had at the Law Review, and he was one of 
their better students. This is in no way to denigrate the academic 
qualifications of Miguel Estrada. It is to talk about and to criticize 
the American Bar Association.
  What the Estrada case has done is lifted the veil on how the ratings 
of the American Bar Association are made, revealing partisanship that 
has no place in a process that should be as impartial as the judges it 
helps to select. My criticism goes beyond the specific Estrada case. It 
demonstrates that we cannot rely on the American Bar Association to 
give us impartial ratings.
  This may surprise some, but I will say I support the Republicans' 
stand on what should be done with the American Bar Association as it 
relates to judges.

[[Page 4998]]

I think we can and should take them out of the process. I don't think 
we need them. I am a convert to that.
  Some asked why didn't I say I felt that way when Republicans did it 
initially. I didn't have enough knowledge to do that. I recognize I was 
wrong.
  So we have this funnel for all Presidential nominees, and when we 
were a country of a few million people, that funnel was able to put 
everybody through very quickly. But the bigger the country becomes and 
the more judges we authorize, the more Cabinet officers, the more 
subcabinet people we authorize, this funnel becomes clogged.
  The ABA is only one additional way of clogging that as it relates to 
judges. I feel we should get rid of them.
  The Estrada case most starkly reveals that the ABA process is fatally 
flawed, that its gold seal is, indeed, tarnished. The gold seal of 
impartiality has been replaced by a stealth seal of partiality. In my 
view, the ABA rating should not be relied on until the process is 
fixed.
  Unfortunately, as I will discuss in a moment, the ABA is defending 
this flawed process and its inherently flawed recommendation for Mr. 
Estrada. It defends both in the face of a case that very clearly 
violates its own conflict of interest rules.
  As many of my colleagues know, the ABA delegates that review of 
potential nominees to one individual ABA member of the ABA committee 
for each circuit. In effect, one person is given responsibility to 
recommend to the committee this person's qualifications. That 
individual interviews colleagues who know the nominee, evaluates each 
nominee, and reports to the ABA with a recommended rating for the 
nominee.
  The ABA has three ratings: Not qualified, qualified, and well 
qualified. Mr. Estrada received a well-qualified rating. The ABA 
Committee member who recommended Mr. Estrada for that rating was Mr. 
Fred Fielding. Given the sensitive nature of these recommendations, ABA 
rules specifically prohibit ABA committee members like Mr. Fielding 
from engaging in partisan activities while working for the ABA. The 
rules note that:

       [T]he integrity and credibility of its process and the 
     perception of these processes are of vital importance.

  The ABA rules go on to implement this important principle by 
providing:

       No member of the Committee shall participate in the work of 
     the Committee if such participation would give rise to the 
     appearance of impropriety or would otherwise be incompatible 
     with the purposes served and functions performed by the 
     Committee.

  The rules then get even more specific:

       As a condition of appointment, each member agrees while on 
     the Committee and for at least one year thereafter not to 
     seek or accept [a] federal judicial appointment and agrees 
     while on the Committee not to participate in or contribute to 
     any federal election campaign or engage in partisan political 
     activity. Partisan political activity means that a member, 
     while on the Committee, agrees not to host any fund-raiser or 
     publicly endorse a candidate for federal office. . . .

  The rule concludes:

       In view of the confidence reposed in the Committee and the 
     vital importance of the integrity and credibility of its 
     processes, these constraints are strictly enforced.

  These rules were not enforced in the case of Mr. Estrada. Mr. 
Fielding violated them. While on the ABA Committee, Mr. Fielding played 
a high-level role in President Bush's transition team. He helped the 
President and the White House counsel clear the President's highest 
level executive branch appointments in 2000 and 2001. Certainly these 
are far more partisan roles than hosting a fund-raiser or endorsing 
candidates for Federal office.
  While on the ABA Committee, Mr. Fielding accepted an appointment from 
President Bush to an international center that settles trade dispute, a 
job that pays $2,000 a day plus expenses; $2,000 a day, $14,000 a week, 
that's a lot of money.
  While on the ABA Committee, Mr. Fielding helped co-found the partisan 
Committee for Justice to run ads against Senators who oppose Mr. 
Estrada. Mr. Fielding's partisan activities, in fact, span back 
decades. He served as deputy counsel to President Nixon. He served on 
the Reagan-Bush campaign in 1980, the Thursday night group. He served 
on the Lawyers for Reagan advisory group, the Bush-Reagan transition in 
1980-1981. He served as the conflict of interest counsel, ironically 
enough.
  He served in the Office of Counsel to the President, as deputy 
counsel to President Reagan. He served on the Bush-Quayle campaign in 
1988; as campaign counsel to Senator Quayle; as Republican National 
Conventional legal advisor; as campaign counsel to Senator Quayle; and 
as deputy director of the Bush-Quayle transition team. He served on the 
Bush-Quayle campaign in 1992; as senior legal advisor and conflict of 
interest counsel to the Republican National Committee. He served as the 
legal advisor to the Dole-Kemp campaign in 1996. Just from these 
statements it would appear he should understand something about 
conflict of interest.
  The ABA couldn't have picked a Republican with better partisan 
credentials than Mr. Fielding. And Mr. Fielding didn't just give Mr. 
Estrada a well-qualified rating, every rating Mr. Fielding has handled 
for President Bush to the D.C. Circuit has resulted in a ``well-
qualified.'' All of those ratings, in my view, should be held suspect.
  By contrast, Mr. Fielding did not give any of President Clinton's 
nominees to the D.C. Circuit--nominees who had similar qualifications 
as Mr. Estrada--a well-qualified rating.
  What has the ABA had to say about all of this? On Thursday, February 
26, 2003, the head of the ABA, Alfred P. Carlton, Jr. sent a letter to 
Senators Frist and Daschle. I was deeply disappointed by its content.
  In that letter, the ABA declares that our criticism of Mr. Estrada's 
case is ``unfair'' The ABA goes on to say that we seek to:

       Impugn the integrity of members of the Committee and of its 
     process during the current Senate debate. . . .

  I was also a little disappointed that Mr. Carlton failed to tell me 
about this letter when he met privately with me a day after the letter 
had been sent. I didn't ask for that meeting. He asked for it.
  In that meeting, I strongly encouraged the ABA to strengthen its 
rules and disavow the process that led to Mr. Estrada's recommendation 
and possibly scores more of tainted recommendations. Mr. Carlton told 
me he would consider such a step.
  I also encouraged Mr. Carlton to write to Senators Frist and Daschle 
and tell them that the ABA would clean up its act. Mr. Carlton also 
told me he would consider sending such a letter.
  He not only failed to mention that just the day before he had sent 
the leaders a letter, but also that the letter was a strongly worded 
defense of an indefensible process.
  If the head of the ABA cannot be straight with me, what hope do we 
have for this process? The letter he sent the leaders reveals that we 
shouldn't have much hope.
  The ABA says in the letter that we have been critical of Mr. 
Fielding's role based solely on the fact that he co-founded the 
Committee for Justice. The ABA letter implies that this fact is not 
problematic because the Committee for Justice was formed after Mr. 
Fielding made his glowing recommendation of Mr. Estrada. The letter 
fails to mention several things: First, that even this post-Estrada 
activity violates ABA's clear rules. Second, that Mr. Fielding was 
engaged in the Bush transition partisan activities at the time he was 
making his Estrada recommendation. The letter concludes that our 
attacks on this process are ``baseless'' . . .
  If this is so, then the ABA's own rules are baseless. The ABA cannot 
claim that our criticism of the way Mr. Estrada's recommendation was 
handled is baseless when that recommendation violates the ABA's own 
rules. Is the ABA disavowing its own rules? Does it find them baseless?
  Conflict of interest rules such as the ones that ABA has adopted are 
not just designed to prevent the actual exercise of a bias in a way 
that influences an outcome. These rules are also adopted to prevent the 
appearance of a conflict.

[[Page 4999]]

Preventing the appearance of impropriety is important to assure the 
Senate and the American people that the process of evaluating our 
judges is as impartial as people expect judges to be.
  Before we rely upon the judgment of the ABA in evaluating nominees 
for lifetime judicial appointments, the ABA should not just pledge to 
enforce existing rules but should strengthen those rules. They should 
revise them to provide that individuals so heavily steeped in partisan 
activities not be permitted to serve in these crucial roles at all. 
That is, the rules should be expanded to prevent partisans from passing 
judgment on judicial nominees. This shouldn't be limited merely to the 
time period during which the individual is serving on the ABA 
Committee.
  It strains credulity to believe that someone who occupied partisan 
roles in the last several Republican administrations could be viewed as 
impartial in this case. If Mr. Fielding had started the committee for 
Justice after he left the committee would the specter of bias really be 
any less? Mr. Fielding moved seamlessly from passing judgment on Mr. 
Estrada to becoming a leading advocate for his nomination.
  The fact that the advocacy followed the judgment doesn't render the 
judgment any less suspect. Much has also been made of the fact that the 
full ABA Committee endorsed Mr. Fielding's view of Mr. Estrada's 
qualifications. This doesn't cleanse the Fielding recommendation of its 
taint. Mr. Fielding is an important person, a powerful man.
  Mr. President, the hour of 12:30 is nearly here. I guess he left--I 
saw my friend from Kansas here. I just have a couple of more minutes 
and it will run past 12:30. I ask unanimous consent I be allowed to 
finish my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. It is impossible for us to know one way or another whether 
members of the committee felt pressure to endorse Mr. Fielding's view. 
It is certainly possible. And that possibility--like Mr. Fielding's 
clear conflict of interest--is the problem in this case.
  There are thousands of lawyers in the United States, thousands who 
are not steeped in partisan politics--Democrat or Republican. That is 
very obvious because the poorest contributors to campaigns of any group 
in America are lawyers. So most of them are not involved at all in 
politics.
  We rightly cast a skeptical eye on judicial nominees who are heavily 
involved in partisan activities. We do that because we want those who 
would define the breadth and depth of our constitutional protections to 
be impartial and without bias.
  Regardless of what side of the aisle you are on--Democrats or 
Republican--we should be able to agree that those who occupy the most 
partisan roles of either party should not be part of the ABA process.
  This does not, in the words of the ABA, impugn those partisans. It is 
to say that the fact of those partisan activities creates a clear 
appearance of impropriety. It is that appearance that is impossible to 
avoid. It is that appearance--and the doubt that it creates in the 
underlying process--that is the heart of all conflict of interest 
rules.
  This issue goes well beyond the nomination of Miguel Estrada. His 
nomination has simply brought to light a fatally flawed process that 
should not be relied upon in the case of any of our nominees.
  As I have said before, I now agree with the majority that the ABA 
should be out of the process. I hope that the ABA will rethink the 
staunch defense it made of its flawed process and flawed 
recommendations. I hope that the head of the ABA will not continue to 
be disingenuous when he meets with Members privately. Perhaps then the 
ABA would merit the trusted role that it has long held by that, in my 
view, it no longer deserves.

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