[Congressional Record (Bound Edition), Volume 149 (2003), Part 4]
[Senate]
[Pages 4999-5015]
[From the U.S. Government Publishing Office, www.gpo.gov]




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

  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I rise to speak on a few matters of 
importance to us related to the nomination of Miguel Estrada, which is 
what we are now focused on, as well as some of the issues we should be 
focused on which we are not doing because the majority leader has 
determined we will continue to debate Estrada.
  Last week, something happened in the Judiciary Committee that more of 
our colleagues should know about because a lot of us find this very 
confounding.
  First, I have tremendous respect for and, indeed, consider the senior 
Senator from Utah my friend. I know he cares deeply about the issues 
and about the Senate. What we are seeing in the Judiciary Committee is 
going to do some significant harm--I hope not irreparable harm--not 
only to the Judiciary Committee but to the whole body. Up until last 
week, when we were moving closer and closer and closer to the edge of 
violating the rules the Judiciary Committee has worked upon, there were 
a lot of traditions on our committee. It is an important committee, a 
committee steeped in great legal tradition. If you look at the pictures 
on the wall of the various chairs of the committee, it goes long and 
deep.
  But we have seen changes, first, in my judgment, when three court of 
appeals nominees were brought to a hearing at the same time. A court of 
appeals is an extremely important court. Every judge appointed to that 
court has a lifetime appointment. So the last chance there is to vet 
who they are, what their views are, how they think, comes in the advise 
and consent process on the floor of the Senate and, in the first 
instance, in the Judiciary Committee.
  Many of us protested to the chairman of the committee that to have 
three courts of appeals witnesses, none of whom was without 
controversy, come before us on a single day did not make much sense. He 
said, well, that is how he wanted to do it. Although in fairness to 
Chairman Hatch, he was apologetic and said he would not do it again. 
But when we asked that we change it prospectively because these are 
important positions and important nominees, he said, no, he wanted to 
go forward.
  We went until 9 that night. I was there. Chairman Hatch was gracious. 
I had a previous engagement at 7:30 that I had to go to and came back. 
By 9:30, with the members of the committee who had stayed that long 
quite exhausted, we had only really finished asking questions of one 
nominee, Jeffrey Sutton, to the Sixth Circuit.
  I asked Senator Hatch if we could bring the two other witnesses back. 
He said he didn't want to inconvenience them. With all due respect, I 
expressed my disagreement. To inconvenience a nominee for the court of 
appeals, whether it be the Sixth Circuit or the DC Circuit, Mr. Roberts 
and Judge Cook, to ask them to spend an extra day here in return for 
what is a lifetime appointment didn't seem to me to be too much.
  If normal workers, people who apply for jobs, are asked to come back 
by their prospective employer for a second interview or because 
something happened and that employer couldn't see them that day, they 
would hardly say it would inconvenience them, if they wanted the job.
  But we seem to be running on a different schedule. So two of the 
nominees never got questioned. I asked them some written questions. I 
much prefer to ask oral questions. Answers given before the committee 
in the give and take are much better.
  For instance, some people asked why didn't I ask written questions of 
Miguel Estrada, because I questioned

[[Page 5000]]

him for 90 minutes. His answers were so obtuse and unenlightening, 
simply saying he will follow the law, he can't answer that because he 
hasn't seen the briefs, asking any written questions would have made no 
sense, to get those same answers back.
  In any case, we did that. And then, of course, there was the hearing 
for Miguel Estrada, and we have rehearsed and rehearsed that over and 
over and over again, where questions were simply not answered. To say 
he was before the committee for a lengthy number of hours, and he 
answered some 100, or 500, or however many questions, doesn't tell the 
story. We all know that, because the answers he gave were to the 
effect: I cannot answer that; without the briefs, I cannot answer that; 
because it might be in a pending case before me, I cannot answer that.
  Those are not real answers. With all due respect, in this Senator's 
judgment, I have never seen such stonewalling when a nominee was faced 
with so many different questions. And we continue to debate the Estrada 
nomination on the floor, not because the minority wants to debate it--
we are happy to move on--but because the majority has chosen to debate 
it by filibuster, which is not ours but, rather, theirs. I hear we are 
going to move to the Moscow Treaty this week--that being the choice of 
Majority Leader Frist--which is proof that we don't have to stay and 
debate the issue of Miguel Estrada. The schedule is in the hands of 
Senator Frist.
  What happened in the Judiciary Committee last Thursday was even more 
disappointing. We have had a rule that has existed in the Judiciary 
Committee for quite a long period of time. I am not sure of the number 
of years, but it is certainly over a decade. That rule is not something 
that is whimsy or simply tradition, such as the issue that we should 
never have three judges before us--I have just been informed that rule 
has been on the books since 1979. That is a written rule of the 
Judiciary Committee. It has been abided by by chairpeople, Democrats 
and Republicans, repeatedly throughout that period of time. I will 
repeat that this is not a tradition, it is not something that is sort 
of fuzzy. This is not even like blue slips. That is another place where 
the committee just changed. I didn't mention that, but I will take a 
minute to mention that.
  We have always had a tradition of blue slips where, if a Senator from 
a home State objected certainly to a district court judge, that judge 
would not go forward. Many colleagues on the other side of the aisle 
have used the blue slip with success, from their point of view, 
repeatedly in the nineties, particularly when President Clinton was 
President, and when they controlled the Senate, or when they didn't 
control it. That is a tradition simply cast aside by the majority.
  So we have the way we conduct hearings, blue slips, and everything 
dealing with judicial nominees.
  As I said, we were getting closer and closer to the edge of no longer 
having comity on the committee, abiding by traditions. It almost seems 
as if it is, like ``Alice in Wonderland,'' first the verdict, then the 
trial; the majority determined the result they wanted and changed the 
rules to fit the result: We want a lot of nominees put on the bench 
quickly. OK, we will stack them up in hearings and not give every 
Senator a chance to ask all the questions he or she wants. We have a 
nominee whose views, in all likelihood, were questioned and gone over 
thoroughly at the White House, but we don't want the public or the 
Senate to know, so we will instruct him not to answer questions in any 
dispositive or enlightening way. We have nominees we could never get 
through, in terms of comity--bipartisan comity--so we will get rid of 
the blue slip rule, or weaken it significantly.
  As I said, all of those were traditions of the committee. I have been 
told over and over again that this body is very mindful of traditions, 
but they seem to be falling one by one--we have had more traditions 
falling in this month and a half that we have been under new leadership 
than in all the time I can remember being here. That is only 4 years.
  But last Thursday, we had an unprecedented action. That action was 
that a rule of the committee--not a tradition, not something subject to 
anybody's interpretation--was just steamrolled over--ignored, 
forgotten, et cetera. That is one of the reasons we may need courts. 
That rule, which was written and ratified by the members of the 
Judiciary Committee when we organized this year, is a simple one. Rule 
4 says:

       The chairman shall entertain a nondebatable motion to bring 
     a matter before the committee to a vote.

  The rule goes on to say:

       If there is objection to bring the matter to a vote without 
     further debate, a rollcall 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 10 votes 
     in the affirmative, one of which must be cast by the 
     minority.

  I will repeat that:

       . . . debate shall be terminated if the motion to bring the 
     matter to a vote without further debate passes with 10 votes 
     in the affirmative, one of which must be cast by the 
     minority.

  That is crystal clear. What it says is that if you want to cut off 
debate in the Judiciary Committee, you need one member of the minority 
party to vote to cut off that debate. It is obvious why it was put in 
the rules: so there would be some form of comity, so that the majority 
party--even if they had 15 members of the Judiciary Committee and the 
minority party only had 5--could not shut off debate. It doesn't relate 
to the actual vote itself. It relates to how long one is entitled to 
debate.
  Well, last Thursday, when the committee was expected to vote on the 
three nominees I mentioned earlier, two of whom were not questioned 
because they were all stacked up to be debated at one point--I believe 
it was Senator Leahy and Senator Kennedy who were there; I was not 
because I was in the Banking Committee hearing Chairman Greenspan. But 
Senator Leahy and Senator Kennedy invoked rule 4 and said, ``We want to 
continue debate.'' At that point in time, Chairman Hatch called for a 
vote.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. SCHUMER. I am happy to yield.
  Mr. DURBIN. I ask the Senator this basic question because there are 
some trying to follow this debate. Being lawyers and having been on 
Capitol Hill for a while working in this environment, we have a 
tendency to speak in terms that perhaps the average person may not 
understand. I want the Senator from New York to help me come to the 
basic question about why any average person following debate on the 
floor of the Senate in America should even care about the compliance 
with rules because I think the Senator has made this point.
  The Senator said that now, with the new Republican majority in the 
Senate, with the Miguel Estrada nomination, they are violating the 
traditions of the Senate in terms of questions to be asked for those 
seeking lifetime appointments to the Federal judiciary. The chairman, 
Orrin Hatch of Utah, of the Judiciary Committee has now said he is 
going to change the way Senators from a given State can approve of the 
nominees before they come up for consideration before the committee.
  Senator Hatch, in one of his first acts as chairman, scheduled three 
controversial nominees for one day, in an unprecedented scheduling, 
which, frankly, called into question whether there would be enough time 
to ask important questions. And now, as late as last week, Senator 
Hatch has said he is going to virtually ignore the established rules of 
the Senate Judiciary Committee that have been in place through 
Democrats and Republicans, to cut off debate in the committee.
  My basic question to the Senator is: Why is this important to the 
average citizen following this debate? Why should they care if Members 
of the Senate are twisted in knots over procedure and tradition? What 
is the bottom line here? Why is this significant? Is this the clash of 
titanic Senate egos, or is there something more at stake in this issue?
  Mr. SCHUMER. I thank my colleague for asking the question which, as 
usual, from his lawyer-like mind, is able to pierce through the 
legalisms

[[Page 5001]]

and reach the core of the debate that people can understand; it is an 
excellent question.
  This is not simply a clash of egos, or even two lawyers arguing a 
point for the sake of it. The bottom line here is that this is what our 
country is all about in terms of protecting the rights of average 
people. The bottom line is that the Founding Fathers, and then 
Congresses from the very beginning--from 1789--understood the power a 
Federal judge has over an individual. The power of the judge is much 
closer to the power of a king--who also has a lifetime appointment--by 
definition, than is the power of a President or a Senator or a 
Congressman, because that judge is appointed for life and can just make 
up his or her mind and decide that should be done.
  What we have had through the years of tradition is a very careful 
vetting of who should become a judge. The rules are simply a device to 
determine who those people are in terms of back-and-forth questioning, 
of hearings, of votes, et cetera.
  The Founding Fathers certainly shied away from the idea of the 
President simply appointing judges. They knew the awesome power judges 
had, and they wanted to make sure there would be a thorough airing of 
who this person was before that person ascended to this lifetime 
appointment to a powerful position.
  Every one of the rules the Senator mentioned goes to whether a person 
can organize in a union; whether a person can be discriminated against 
because of the color of his or her skin or their religion or their sex; 
whether a corporation can violate the Clean Water and Clean Air Acts 
and affect our lungs and affect our children's health; whether, for 
instance, an issue I know my friend from Illinois has been very much 
involved in, whether a meat packing company can decide how clean their 
plant ought to be, given there are Federal laws that govern them. The 
judges have all this kind of power.
  The very reason we debate these issues and have these rules is we 
want to make sure the people who become judges will, indeed, follow the 
law and not simply get up there and say: I promise you I will follow 
the law. We have been there.
  Mr. DURBIN. Will the Senator yield for another question?
  Mr. SCHUMER. I will be happy to yield.
  Mr. DURBIN. If this is not an ego trip between titanic Senate egos as 
to who is going to prevail, I ask the Senator from New York, what is 
the agenda here? Why would the Republicans in the new majority of the 
Senate Judiciary Committee change the rules, change the traditions, 
change the approach, take away power of individual Members of the 
Senate to ask questions of nominees, to have the time to try to come to 
understand the values they are going to bring to the judiciary, to have 
time to at least debate the nominations? What is the larger question 
here? What is it that is driving this kind of radical transformation of 
the Senate Judiciary Committee?
  At this moment in our history, having just come off the last 
Presidential election so closely decided, followed by a congressional 
biennial election which, again, was closely decided, what is it that is 
driving this effort, does the Senator believe, on the Senate Judiciary 
Committee to make such radical changes in the way we choose Federal 
judges?
  Mr. SCHUMER. I thank my colleague for the question. It is a very good 
question. Of course, it would involve us going into the heads of our 
colleagues, both on the other side of the aisle and the White House, in 
figuring this out. But I will tell my colleague what I think.
  For some reason, the other side fears an open debate. For some 
reason, the White House and the other side do not want their nominees 
fully questioned. They have gone through every device and, as of last 
Thursday, even breaking the Senate rules. If the average citizen broke 
the rules, whether it be the driving rules, the parking rules, the 
rules of how you have to maintain your house or your sidewalk, there 
would be some recourse. I do not know what the recourse is here, but to 
abjectly break the rules and just say, I am breaking it, tough rocks, 
Jack, is so against the traditions we have had. For some reason, they 
do not want these nominees to be questioned. Why is that? We can only 
speculate, but I will tell my colleague what I think. I think some of 
these nominees' views are probably, and in some cases certainly, so far 
out of the mainstream that they do not want those views to become 
public because then it would either be, at minimum, an embarrassment 
for them, because this is not how President Bush was elected or most of 
the Senators were elected. We have mainstream conservatives and 
mainstream liberals, but very few Americans say: Have such a change in 
the way the courts and the Government functions that we should go back 
to the days of the 1930s or the 1890s.
  There is a movement called the Federalist movement which basically 
has been devoted to cutting back dramatically on Federal power, giving 
that power to the States, giving that power to corporations, giving 
that power to others. I did not hear any mandate in the elections of 
2000 or 2002 to go back to the 1930s, to go back to the 1890s, the way, 
say, I believe Justice Scalia, who has gone through the process, 
thinks. In fact, not only was there no mandate, there was no 
discussion. So when one asks oneself the very good question my friend 
from Illinois has asked me, which is, Why are they so afraid of 
questions of nominees, of debate, it is not certainly because they are 
afraid we are going to slow it down. We asked for 1 extra day of debate 
for Judge Cook and for Mr. Roberts. We did not get it. All we want from 
Miguel Estrada is some answers to questions and some papers, which they 
could have sent months ago. So this is, clearly, not just an issue of 
delay. If it were simply an issue of delay, we could work out an 
agreement, put in a time limit, and vote.
  In my judgment, it is clear they do not want these questions 
answered. They do not even want them asked. That is why we are cutting 
off debate. Why? My guess--and it can only be a guess--is because the 
nominees to the judiciary, at least some of them, are so far over that 
if their real views were ascertained, the American people would be 
aghast.
  Mr. DURBIN. If the Senator will yield for another question, yesterday 
in Chicago a reporter came up to me on the Miguel Estrada nomination. 
He said: Senator, isn't it a fact the reason you are blocking the 
Miguel Estrada nomination is because he is pro-life and you are pro-
choice? You disagree on the abortion issue.
  I ask the Senator from New York who sat through the Judiciary 
Committee with me over the last few years, is it not a fact that with 
over 100 nominees from the White House that President Bush has 
successfully guided through this Senate, is it not a fact the 
overwhelming majority of those disagree with our position on choice, on 
abortion, and yet they have gone through this committee, almost all of 
them, without controversy, many of them with routine rollcall votes? I 
ask the Senator from New York, does this difference of opinion come 
down to whether or not we are going to receive conservative nominees 
from the Bush White House and now we have the Democrats in the Senate 
Judiciary Committees stopping conservative nominees; is that what is at 
issue here?
  Mr. SCHUMER. I do not believe so at all. I do believe--and this is 
another excellent question--a President should be given some degree of 
flexibility and latitude because the Constitution says the President 
should nominate judges. We advise and consent.
  If choice were the issue, then I probably would have voted against--I 
think of the 106 nominees who have come before us, more or less, I have 
voted for 100. My guess is of those 100, given they were nominated by 
President Bush who made commitments to the pro-life groups, that they 
would agree with them and try to get judges to ``think like Scalia and 
Thomas,'' that the overwhelming majority were pro-life. In fact, I know 
some of them were because I have read their decisions. I have read what 
they said in lower

[[Page 5002]]

courts. I voted for them. I do not believe in a litmus test. I believe 
very few Members of this Chamber on either side of the aisle believe in 
a litmus test.
  My guess--and I cannot speak for others--when on issue after issue a 
judge would have such extreme views that he would take the courts and 
the rulings so far out of the mainstream that Americans would be 
aghast, that ideological-type judges, whether on the far left or the 
far right, instead of doing what the Constitution says, interpret the 
law, rather make law because they feel so strongly that they have to 
pull the country in a direction way beyond, those are the few judges 
we--at least I--have objected to. Again, I have to use my judgment. 
Obviously, this is not an objective meter here, but that is what we 
have done.
  I say to my colleague, the irony is this: Our good friend from Utah 
and many of the others on the other side of the aisle played the same 
watchdog role when President Clinton was President, and we have quote 
after quote from Senator Hatch, from Senator Sessions, from Senator 
Ashcroft, from the leaders of the Judiciary Committee back in the 
nineties, that they had to be on guard against what they called 
``activist judges.''
  To them, activist meant too far left. To me, activist means either 
too far left or too far right. An activist judge--I sort of sympathize 
with that comment. An activist judge means that because they feel 
strongly, instead of just interpreting the law and trying to figure out 
what Congress meant, they will impose their own views.
  Mr. DURBIN. May I ask the Senator from New York--I think it is 
important in this debate that we take this general and theoretical 
analysis of judges and their impact on America and try to make it 
something closer to home so the average person following this debate 
understands what is at stake.
  I can recall--and I am sure we were both Members of Congress at the 
time--when we passed the Americans with Disabilities Act.
  Mr. SCHUMER. Right.
  Mr. DURBIN. This was amazing legislation because it was so strongly 
bipartisan. Tom Harkin, Democrat of Iowa, then Senator Bob Dole of 
Kansas, they came through and said, on a bipartisan basis, let us 
extend freedoms and opportunities to people in America who have been 
denied those opportunities; let us pass a Federal law--Congress passes 
it, and the President signs it--and establish opportunities for 
disabled Americans.
  I think this is a good illustration of what happens with the Court 
when it goes too far in one direction. I ask the Senator from New York 
if he could give us an illustration of what happened with the Americans 
with Disabilities Act when it came to the highest court in the land 
when they had a chance to take a look at it and say whether we will 
protect disabled Americans and whether Congress had gone too far or not 
far enough, so that people can put in context what we are debating. Can 
the Senator give us an illustration of what happened with this law?
  Mr. SCHUMER. Yes. The bottom line is the Court, despite the fact that 
Congress, on a bipartisan basis--by the way, supported by George H.W. 
Bush, the 41st President of the United States, who signed it into law--
somehow comes up with an interpretation that parts of the law are 
beyond the Constitution and millions of disabled people are deprived of 
rights. That did not just happen for disabled people. In that case, 
which was the Garrett case, I believe my colleague is referring to, 
they said the States did not have to abide by this. Even though it was 
clear that the intent of Congress was that everyone had to abide by it, 
they said the States could discriminate against disabled people.
  I know my colleague from Illinois was involved in a law that says 
someone cannot bring a gun into school. Again, somehow the Supreme 
Court comes to the determination that a person can, or that the law 
that we passed, which seemed to be a general mainstream consensus law--
because some of these folks tend to be ideologues, they came up with 
some God-forsaken reason that that could not happen.
  Another one on which I worked long and hard, along with our colleague 
from Delaware, Senator Biden, and our colleague from California, 
Senator Boxer--I know the Senator from Illinois was very supportive--
was something called the Violence Against Women Act, which for the 
first time said that the Federal Government could be involved in 
helping women who were abused by their spouses. Before that, it was a 
sort of dirty little secret hidden under the rug. The law had amazing 
effect.
  I know this one better than I know the Garrett case, but it is the 
same type of thing. It affects average people. For the first time, 
women were able to get hotlines, find out whom they could call when 
they were abused. Shelters sprung up. When a woman was beaten in the 
past, all too often there would be nowhere to go and she would have to 
go home to the same husband who beat her before.
  On issue after issue, we helped women who were abused come out of 
hiding and seek help and become productive citizens again, having a 
huge effect not only on them but on their children. Studies show that 
if a child is abused, which this act would have affected, or the 
child's mom was abused by the husband, they are much more likely to be 
criminals. So it affected all of us. All of a sudden, the Supreme Court 
says that Congress's finding that this law affected commerce in the 
United States was undone and throws out part of the Violence Against 
Women Act.
  So this is not an abstract argument, this is not a bunch of lawyers 
just arguing how many angels can fit on the head of a pin, this is not 
partisanship--to me, at least. I have devoted my life to government. I 
was elected when I was 23. I want to make the Government help people. I 
want people to believe Government is on their side. When nonelected 
judges come in and take years of work that Congress does--whether it 
affects disabled people, kids in school, the cleanliness of the water 
we drink, how a meatpacker has to obey certain laws, or the Violence 
Against Women Act--and throws it out on reasoning that 10 years before 
would have been regarded as crazy, the very least we owe our 
constituents, in my judgment, is the obligation--it is not simply a 
right, it is an obligation--to question nominees for the bench.
  Mr. DURBIN. If I may ask the Senator another question?
  Mr. SCHUMER. Please.
  Mr. DURBIN. I will yield the floor to him after this. At the same 
hearing, Chairman Hatch basically rejected a rule that I think has been 
in place almost 20 years in the Senate Judiciary Committee----
  Mr. SCHUMER. If I might interrupt the Senator. Since 1979.
  Mr. DURBIN. So for 14 years this had been the rule under Democrats 
and Republicans.
  Mr. SCHUMER. Twenty-four.
  Mr. DURBIN. Twenty-four--I am sorry. This has been the rule.
  Mr. SCHUMER. He is not on the math committee. He is on the Judiciary 
Committee.
  Mr. DURBIN. Right. Math was a minor. Law was a major.
  But in this situation, where a decision was made that we can no 
longer debate these nominees, we also had before us a nominee from 
Ohio, a justice on the Ohio Supreme Court, Deborah Cook, whom I had a 
chance to ask a few questions of in that marathon hearing where three 
controversial nominees were scheduled for the same day. I do not know 
if the Senator from New York was present. But I sent a written question 
to this justice and asked her point blank: Tell me a little about your 
thinking, about your judicial philosophy, particularly the concept of 
strict construction of the Constitution--that is a cliche almost, but 
it is a catch phrase that is used to try to judge whether someone is 
far to the right, far to the left, or whatever it happens to be.
  Justice Cook, in her reply to me, said that she did not characterize 
herself as a strict constructionist, but she went on to say that those 
who were strict constructionists--and I wish I had the

[[Page 5003]]

direct quote in front of me--were less likely to decide in favor of 
such things as Brown v. The Board of Education, Miranda v. Arizona, and 
Roe v. Wade.
  My staff has been kind enough to give me this question.
  I asked her the following:

       Do you think the Supreme Court's most important decisions--
     Brown, Miranda and Roe--are consistent with strict 
     constructionism?

  This is her answer, a judicial nominee:

       If strict constructionism means that rights do not exist 
     unless explicitly mentioned in the Constitution, then the 
     cases you mention likely would not be consistent with that 
     label.

  I said in the committee and I say here, that is a painful answer for 
me to hear, to think that those who believe that a strict construction 
of the Constitution would not lead them to integrate America's schools, 
to protect a woman's privacy, or to give to criminal defendants the 
most basic rights, knowledge of their constitutional rights--painful 
for me to read this, but painfully honest.
  The point I make to the Senator from New York, and then I will let 
him finish: Is that not what we are looking for? Are we not looking for 
candor and honesty from the nominees to reach a conclusion on an up-or-
down vote?
  In a situation where candidates, nominees, such as Miguel Estrada, 
refuse to answer the traditional questions asked by Republicans of 
Democratic nominees, where Senators from a home State do not have a 
voice in whether a judicial nominee comes before the committee, when 
three controversial nominees are put in a hearing in one day on the 
Judiciary Committee, where the chairman of the Judiciary Committee 
eliminates the protection of the right to debate nominees, do we not 
have a closing down of this kind of candor, openness, and honesty that 
we are seeking, moving instead towards secrecy and stealth? Does this 
not get to the heart of the issue as to whether or not the judges we 
select for lifetime appointments to the highest courts of the land are 
people whom we know, who answer questions honestly before they are 
given that terrific opportunity to serve our Nation?
  Mr. SCHUMER. If I might answer, I think my colleague has hit the nail 
on the head. This is so important. What we have come to is the fact 
that nominees are often told not to answer questions.
  There is an article in the Legal Times where one of the leading 
conservative judges of the court of appeals instructed nominees not to 
answer questions. Why would someone say, do not answer questions; fudge 
on the questions? I think I know why, as we talked about before. 
Because if they gave their honest answers, they would become so 
controversial that many of them would not pass. But imagine the 
alternative: Not asking the question, or not getting the question 
answered, and then this nominee who has views way beyond the mainstream 
gets on the court and starts doing things. Do you know what would 
happen? Our constituents would come to us and say: Do something.
  We would try, but it would be very difficult. We would probably have 
people on the other side saying: Well, I didn't know he thought like 
that. Yet when we have the opportunity to ask that nominee questions, 
to try and get some idea of how he thinks, we are denied the answers--
either because we did not have time, as in the case of the three 
nominees, or in the case of not allowing discussion to go on in the 
Judiciary Committee, or because we had the time--with Miguel Estrada we 
had plenty of time, but the nominee refused to answer the questions, 
simply saying: I will follow the law.
  We have been through that. It is legendary that when Clarence Thomas 
was up for the Supreme Court, people wanted to know his view on Roe v. 
Wade. For me, it is an important issue, but it is not a litmus test. Of 
the 100 people I voted for judge, most are against Roe v. Wade, but I 
don't have a litmus case.
  But for a nominee to the Supreme Court to say he had never discussed 
it before while in law school--lawyers always discuss these cases--
struck many as disingenuous. I was not in the Senate then, but people 
vowed they were not going to let that happen again; that was a mockery 
of the process. This is too solemn a process.
  Before I yield to my friend from Utah, and I appreciate him yielding 
to me and yielding to all Members, and I will yield to him, speaking 
for myself, this transcends any one nominee. We are beginning to see a 
complete vitiation of the process whereby nominees will be nominated by 
the White House and rubberstamped by the Senate. In my judgment, 
nothing that we do here could do more damage to the fundamental 
underpinnings of our Republic than that.
  I remind my colleagues, that is not what the Founding Fathers 
intended. The very first nomination to the Supreme Court was, I 
believe, Rutledge--I always forget if it was Randolph or Rutledge; my 
daughter was in the play ``1776'' and she played Rutledge, and I was 
constantly calling her Randolph, much to her chagrin. But in any case, 
Rutledge was defeated because the Senate had the temerity, I guess, in 
the opinion of my good friend from Utah, to ask Rutledge's judgment on 
something very controversial at the time, the Jay Treaty. The Jay 
Treaty was not what judges rule on, but the Founding Fathers--by the 
way, we just heard at our lunch that a large percentage of the first 
Senators were members of the Constitutional Conference, so they 
certainly knew what they wanted to do.
  If they were questioning Rutledge on the Jay Treaty, then certainly 
asking Miguel Estrada how he feels about the commerce clause and the 
right to privacy and the 11th amendment and the first amendment and all 
of these things could hardly be out of bounds.
  In fact, I would argue if the Founding Fathers were watching this 
debate, they would say: Yes, that is what we intended.
  With that, I yield to my friend from Utah for a question only.
  Mr. HATCH. I ask the Senator, is it possible the Senator could put 
together the questions he believes Miguel Estrada has not answered 
appropriately, and I will do my best to get him to answer them? If not 
appropriately, as defined by the Senator, but at least in more detail 
than the Senator seems to be indicating here.
  I know he answered a lot of questions appropriately, and I believe 
all of them appropriately, but I would be glad to assist the Senator if 
he will give me a list of questions the Senator would like to have 
Miguel Estrada answer. I will do my best to see he answers them for the 
Senator, and hopefully that will have the Senator feel a little bit 
better and cause him to vote for him.
  Mr. SCHUMER. I thank the Senator for his question, and I think it is 
a good-faith statement to break this deadlock which I hope we will do 
because we have made the arguments over and over again.
  Let me make an alternative suggestion and see what the Senator thinks 
and then I yield to him. Why don't we bring Miguel Estrada back for a 
second day of questioning? I find written questions never to bring out 
the same analysis, the same understanding of how a person thinks. That 
is why we do not conduct trials by written question. Miguel Estrada may 
say something, and I will want to immediately ask him, well, what about 
this, and to take another week and ask another question and another 
question and another question, I am sure within a short amount of time 
my colleagues on the other side of the aisle will be saying we are 
being dilatory.
  If we could have another hearing of Miguel Estrada and if he could 
let us see the documents he authored as attorney general, I think it 
was my good friend's junior colleague from Utah who suggested we do 
that, and then we would set--I cannot speak for my whole caucus, but I 
will state what I would be for. I would be for setting a time certain 
when we vote for him, another day of hearings, ask Miguel Estrada to 
come back for a day.
  It cannot be too much to ask when one is 42 years old and, may God 
grant him a long and healthy life.

[[Page 5004]]


  Mr. HATCH. Will the Senator yield?
  Mr. SCHUMER. And to ask him for a day of questions and to give up 
these documents which are very important, then we can settle this whole 
issue.
  I yield.
  Mr. HATCH. As the Senator knows----
  Mr. SCHUMER. For a question only.
  Mr. HATCH. As the Senator knows, he cannot give up those documents. 
He has no control over them. And the administration will not and 
neither would any other administration.
  Would the Senator be willing to get the Democrats to agree to an up-
and-down vote if we had one more day of hearings where the Senators 
could ask additional questions? I am not saying we are going to do 
that, I am just saying would we have an up-and-down vote.
  We cannot produce those documents because they are privileged. I 
think the Senator knows that. But if you had one more day of hearings 
where you could ask the questions, could we get the Democrats to agree 
to an up-and-down vote if you did that? I cannot say I can do that, but 
I certainly would look at it.
  Mr. SCHUMER. Let me try to answer my colleague.
  Mr. HATCH. I know the Senator cannot speak for all the Democrats, but 
if all the Democrats would agree, or if you can get the majority leader 
to agree and the Democrats to agree to stop the filibuster, I might 
consider that--not because I don't think he answered the questions the 
first time; he did, in a very thick transcript--as a gesture.
  I would have to look at this. I would have to talk to the 
administration, the people on our side, and Miguel Estrada himself, but 
if I was assured we would have an up-and-down vote where people could 
vote whatever way they wanted to, I would give some consideration to 
that, subject to my talking to our leadership on this side and talking 
to the White House. But there is no question they cannot give up these 
documents. He has no authority over those documents and the 
administration will not give up those documents no matter what we do. 
But I guess you would at least have an opportunity to ask additional 
questions, in spite of the fact that the distinguished Senator who 
conducted the hearing said it was conducted fairly, that he asked every 
question he wanted to ask, that he had the right to ask any other 
questions he wanted to, that he could have filed written questions, in 
addition.
  But the Senator has said if he could have one more day of hearings, 
because written questions do not cut it as well as oral testimony, if 
he could have one more day of hearings, I would consider this, and I 
would talk to my side and I would talk to Mr. Estrada and the White 
House if I knew there would be an up-and-down vote, the filibuster 
would end, this threat to the process would end. I would certainly give 
every consideration to it and try to do that.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from New York.
  Mr. SCHUMER. Let me try to answer my colleague. Again, I have the 
same caveat he does, even more so. I cannot speak for my Democrat 
colleagues. I am not even chairman of anything.
  I would say this to my colleague and make a couple of points. The 
best evidence of how Miguel Estrada feels--given that he has not 
written articles, he has not been a judge where we can see his record--
are these documents. We have debated this over and over again. There is 
no privilege. There is no anything else.
  Senator Leahy and Senator Daschle, in a letter to my colleague--and I 
will be delighted to yield when I have finished my answer--have laid 
out the conditions by which we believe we would at least get some bit 
of evidence to see who Miguel Estrada really is. That is not in terms 
of his history, which has been repeated over and over again on the 
floor, and a wonderful history it is, but in terms of how he thinks and 
how he would think and how he would rule as a judge.
  So the best evidence is not hearsay evidence; it is the written 
evidence. But let me just say in regard to the hearing--and here is my 
problem with the offer and why the written evidence is so important--
let us say Miguel Estrada again refuses. He sits for 10 hours and 
refuses to answer--or answers, let's characterize it, in the same way.
  I ask him--Dianne Feinstein asks him his feelings on Roe v. Wade, and 
he says I can't tell you that.
  And Senator Durbin, for instance, asks him how he feels, widely or 
narrowly, the commerce clause should be interpreted, and he says: 
Because I might rule on a case about the commerce clause, I can't 
answer that.
  By the way, I have checked with a whole bunch of legal ethicists, and 
the canons--you know, what the lawyers say you are allowed to do when 
you are nominated to be a judge--have nothing to do with broad 
questions like that. They deal with specific cases.
  So let us say we get, as we would characterize it, or as I would, 
stone- walled, no answers on anything.
  As my colleague well knows, when I asked Miguel Estrada about 
previous cases he liked or didn't like, he said: Well, I would have to 
read the briefs.
  I have asked subsequent witnesses how they feel on cases and they 
have given answers to me. I had an interview with someone the President 
is thinking of nominating in my State. I asked her what is a case you 
like, what is a case you don't like? She was very forthcoming--you 
know, that had already been ruled on. So we would be in a complete----
  Mr. HATCH. Will the Senator yield?
  Mr. SCHUMER. I would be happy to yield in a minute. We would be 
giving away the store without accomplishing our goal if we agreed, 
before we heard the answers, that we would agree to a date certain on 
the vote.
  Perhaps we should have the hearing, see how he answers those 
questions, and then see where we are. If he is much more forthcoming, 
whatever his answers are, we might be able to make some progress. But 
if he gives the same exact answers as he gave 3 weeks ago, I for one 
could not agree to just having a vote on him unless we get the best 
evidence, the written evidence, which the administration will not give 
up. You are right. It is not Miguel Estrada, but it is the 
administration which has nominated him. So they are not sort of players 
from far away; they are part of this whole process. Other 
administrations, Democrat and Republican, have given up the same types 
of documents.
  I don't want to get into a debate about that now, but that is our 
confirmed view.
  So an alternative which I cannot even--I would have to talk to my 
colleagues about--would be: Let us have another day of hearings and 
then let us see what happens there and see where we go. But I think it 
would not make any sense, any sense whatsoever, to say today, or 
tomorrow, we will have a vote as long as he comes back. Because what if 
he does the same exact thing he did last time, which I know you find 
was fulsome and reliable--not reliable, but fulsome and elucidating 
testimony, but I found to be completely evasive.
  I am happy to yield to my colleague for the purposes of another 
question only.
  Mr. HATCH. Sure. Let us be honest about it. If you are going to ask 
him how he feels about a case or how he feels about the commerce 
clause, I have to admit I don't think those are legitimate questions. 
What he feels is not important. What he is going to do as a judge is 
important.
  I am hardly going to bring him back for another day, after we had one 
of the longer hearings for a Circuit Court of Appeals nominee, after it 
was conducted by the distinguished Senator from New York and the 
Democrats, when my colleagues on the other side have said it was a fair 
hearing, questions were asked--I am hardly going to bring him back for 
another day unless we have some sort of agreement we are going to have 
a vote.
  Mr. SCHUMER. I'm sorry, I couldn't hear the Senator.
  Mr. HATCH. I say I am hardly going to bring him back just on the 
speculation he is going to answer questions the way you think he ought 
to answer them when in fact he answered questions the way all of his 
predecessors have answered them. Basically, they were answered this 
way:

[[Page 5005]]

  With regard to Roe v. Wade, he basically said regardless of my 
personal feelings, I am going to uphold the law. That is the law. That 
is what everybody has said who appeared before my committee when I was 
chairman during the 6 years of the Clinton administration. They didn't 
come out and say yes, I am for Roe v. Wade. If they had, I would not 
have held that against them because I presumed they were, anyway. But 
the fact of the matter is virtually every one of them basically said: 
Regardless of my personal views, I am going to uphold the law, which is 
what he said.
  I guess what I am asking is--if you will give me a list of your 
questions that you asked, that you feel there was not a forthright 
answer--I don't know of any where there wasn't a forthright answer; it 
may not have been what you wanted--I will be happy to take those back 
to him again and get you answers that would be more detailed, if that 
is what you want.
  Or, as an alternative, would it be possible for us to have 1 day of 
hearings where we encourage him to answer questions in more detail, 
because that is what you appear to want--even though I thought his 
answers were more than adequate--and I would attempt to do that. Of 
course, with the approval of my side; if I can. I would work in good 
faith to do that.
  But I would certainly want to have the filibuster ended, because this 
is a damaging thing to this institution, and it would be my way--if I 
could do it and pull it off--of saying, look, we'll try to accommodate 
our friends on this side, but let's be fair and let us have a vote up 
or down.
  It may be that vote will go the way you want it to go. You may vote 
for him in the end. I don't know. But the point is, I would try to do 
that in order to get this off of this filibuster, which I find 
extremely dangerous, and even beyond consideration of Miguel Estrada. 
It is something I had to stop, as chairman during my 6 years, because 
we had a few on our side who felt we should filibuster people like 
Marsha Berzon and Judge Paez and even Margaret Morrow.
  As you know, as much as I have been maligned by at least one Senator 
on your side, they would not have been sitting on the Ninth Circuit 
Court of Appeals if it hadn't been for me, and I think some of the 
accusations that have been made have been very unfair about the time I 
was chairman.
  Mr. SCHUMER. Let me reclaim my time because I am running out.
  Mr. HATCH. But let me make that offer. I will either get him to offer 
more detailed answers in writing or I will get him--I will do my very 
best to have him answer more detailed answers in a 1-day hearing.
  Mr. SCHUMER. Reclaiming my time, Mr. President.
  Mr. HATCH. But I would want to have a vote.
  Mr. SCHUMER. I make a counterproposal to my colleague. Either we have 
him come back for 1 day, and the administration, his nominator, 
releases the papers as Senator Daschle and Senator Leahy have asked, 
and we agree to a vote ahead of time; the papers and a day of 
hearings--again, I can only speak for myself that that would satisfy 
me--or, in an effort to break the deadlock, we have the day of hearings 
without any commitment. Because, in all candor--you know, the Senator 
from Utah is a very fine lawyer and probably a lot better than I am. 
But I am not going to give away the store for a pig in a poke.
  If we were to agree to a vote right now and Miguel Estrada were to 
come before us and just verbatim give the exact same answers he gave 
before, we would not have accomplished anything.
  So I say to my colleague, in an effort to break the deadlock which we 
all want to break, believe me, let us have Mr. Estrada come back for a 
day of hearings, no preconditions. There will be lots more people 
paying attention to those hearings now. And let the American people 
make a judgment as to whether he is being forthcoming or not. Maybe his 
answers will change and they will say he is. Then we will decide where 
we go from there.
  Because I will say this: This is one place I disagree with what my 
colleague said. To say, poor Mr. Estrada, he sat through 9 hours of 
hearings and to ask him to do it again is not fair seems to me to be--
we are lawyers. Probably right now Mr. Estrada, who is earning a great 
salary because he is an excellent lawyer, sits through far more than 9 
hours to try to win a single case. This, appointment to the second most 
important court in the land, is a lot more serious than any one single 
case Mr. Estrada is arguing.
  Mr. HATCH. Will the Senator yield?
  Mr. SCHUMER. So I say to my colleague, to achieve a lifetime 
appointment on this very serious court, Mr. Estrada ought to be willing 
to sit--I am not saying we should do this--for a week or a week and a 
half. He is 42 years old. He is likely to be on the bench for 30 years, 
God willing he has good health. So that should not be the 
consideration.
  Mr. HATCH. Will the Senator yield?
  Mr. DURBIN. Will the Senator yield?
  Mr. SCHUMER. I yield to my colleague from Illinois.
  Mr. DURBIN. Mr. President, I want to make this as brief as I can. I 
commend the Senator from Utah coming to the floor. I would like to ask 
this question of the Senator from New York.
  I think you have taken a reasonable position. Having practiced law 
for a number of years, as the Senator from Utah did, and I believe the 
Senator from New York, you know, in the discovery process, when the 
other side refuses to turn over a document, goes into this long fight, 
you begin to suspect, on your side of the case, there is something very 
important in that document.
  These documents of Miguel Estrada have become the crux, the center 
point, of the debate about what this man has said and done and thought 
as assistant to the Solicitor General in the Department of Justice. So 
I think the Senator from New York is right in insisting that be part of 
any compromise ending this deadlock.
  I also hope we will insist, on the Democratic side, that if we are 
going to end this deadlock, we return to the regular order of the 
Judiciary Committee, that we do not put three controversial nominees on 
the calendar in the same day, that we do not ignore the blue slips 
required of each Senator from the State, that we do not violate the 
rules of the Senate that have been in place for 24 years in relation to 
debate in the committee.
  I think all of those would be a good-faith effort to go back to the 
regular order and establish some comity and understanding between us, 
which I hope will guarantee that we will not face this kind of 
situation in the future.
  Mr. SCHUMER. Answering my colleague's question, he is exactly right. 
I am not someone who has practiced law, like my colleague from Illinois 
and my colleague from Utah--I was elected to the assembly right after 
law school--but every good lawyer knows, even every good law student 
knows, that hearsay evidence is not as good as written evidence.
  So when we hear all these people say--I have heard my good colleague 
from Utah say: This one and this one and this one say he is great, and 
this one and this one say he will follow the law. If my colleague truly 
believes that, then he has nothing to hide in terms of giving up these 
documents because they will show that Miguel Estrada will follow the 
law.
  The problem is, we have just as many people who worked with him in 
the Solicitor General's Office who said: Oh, no, this guy is so far 
over that he writes his own laws, and he would write his own laws.
  Mr. HATCH. Name one. Name one person. Give me a name.
  Mr. SCHUMER. I don't know which is true and which isn't.
  His superior.
  Mr. HATCH. Who? Bender?
  Mr. SCHUMER. Bender, who was his immediate superior.
  Mr. HATCH. That is the only name you can come up with?
  Mr. SCHUMER. I am going to reclaim my time.
  Mr. HATCH. Give me a break.
  Mr. SCHUMER. He was his immediate superior. But the bottom line is

[[Page 5006]]

this: My colleague from Utah immediately discounts Mr. Bender because 
he does not agree with his view on certain issues. OK. If, if, if, if 
Mr. Bender is wrong, the documents will show it. If Mr. Bender is 
right, the documents will show it.
  Mr. HATCH. Will the Senator yield?
  Mr. SCHUMER. Not yet. I will in a minute.
  But the bottom line is, as my colleague from Illinois stated, when 
somebody will not release documents, that you know can be released, 
then you say to yourself, What is in there?
  Again, we are not just dealing with one case. We are not dealing with 
just one situation. We are dealing with a lifetime appointment to the 
second most important court in the land.
  Why won't Mr. Estrada or the administration--which is his sponsor, 
his mentor in this particular situation--why won't he give up these 
documents?
  I will tell you what most people think when they hear about it. And I 
have talked to my constituents, the few who ask me about this. They say 
he is hiding something. Do I know he is hiding something? Absolutely 
not. I have not seen the documents. But I tell you one thing: The great 
lengths that the administration and my colleagues on the other side 
have gone to not give up these documents makes one suspect there is 
something there they do not want people to see.
  So the documents are crucial. And I, for one, believe we cannot agree 
to a date certain to vote until those documents are given up or unless 
Mr. Estrada somehow answers the questions in a truly dispositive way.
  By the way, I say to my colleague, he said everyone else answered 
questions the same way. Absolutely not. And we have shown, in case 
after case, in nominee after nominee--the very nominee after Mr. 
Estrada, when I asked him the same exact question, was far more 
forthcoming than saying, ``I can't,'' or ``I will follow the law.''
  So the bottom line is, I would repeat my tentative offer--because I 
would have to check with my colleagues--let's have a day of hearings of 
Mr. Estrada and see where that leaves us, see if he gives the same 
answers. And let everyone see him answer the questions the way we saw 
him. And let's see if they think he is being forthcoming. And let's see 
if they think--when he is asked crucial questions that will affect 
people's live--he gives answers that satisfy people that he be 
appointed to the second most powerful court in the land. That is a way 
to resolve this.
  Shakespeare once said: Me thinks the lady doth protest too much. 
There has been so much protestation about figuring out Miguel Estrada's 
record--not his legal qualities, not his story of being the son of an 
immigrant coming to America when he was 17, not speaking English. That 
is all great. He deserves a pat on the back for that. But that alone, 
in my judgment, does not entitle him to appointment to the second 
highest court in the land with a lifetime appointment.
  I will be happy to yield to my colleague in 1 minute. But, again, it 
is certainly worth, with all due respect, the chairman's time, and all 
of our time, to hear him again. And maybe he will be somewhat more 
forthcoming. And then maybe we can come up with a compromise.
  Several Senators addressed the Chair.
  Mr. SCHUMER. I yield to my colleague from Massachusetts for a 
question.
  Mr. KENNEDY. I thank the Senator for really----
  The PRESIDING OFFICER. The Senator from New York has the floor.
  Mr. SCHUMER. Yes.
  The PRESIDING OFFICER. Does the Senator yield for a question?
  Mr. SCHUMER. I yield to my colleague from Massachusetts for a 
question only.
  Mr. KENNEDY. Without losing his right to the floor.
  Mr. SCHUMER. Without losing my right to the floor.
  Mr. KENNEDY. Mr. President, first of all, I thank the Senator from 
New York for his presentation today. I want to ask him a question or 
two.
  In looking at his position in the broader context--which I think is 
fair to do, which is important for the American people to understand--
the debate on what institution should have the power for nominating 
judges was an issue that was before the Constitutional Convention.
  I heard earlier in the debate that the Senator from New York pointed 
out this was an issue that was considered by the Constitutional 
Convention--to just have the sole power with the President--and that 
was overwhelmingly defeated--overwhelmingly defeated.
  I ask the Senator whether he would not agree with me that at least it 
appears there are some Members of this body who still believe it is the 
President who has the sole power and kind of exercise of responsibility 
that the Senator from New York and others have attempted to provide in 
exercising an informed and balanced judgment in fulfilling their 
constitutional role of advice and consent.
  Does the Senator not agree with me that any fair reading of the 
debates of the Constitutional Convention put a prime responsibility on 
the Senate of the United States to exercise good judgment? And, 
further, would he not agree with me that if there is not going to be a 
response to Senators' inquiries, so they cannot have the information to 
carry forward and make a judgment, then this is a failure of the 
nominee in meeting their responsibility under the Constitution, being 
nominated by the President of the United States?
  Would the Senator not agree with me that this is a constitutional 
issue? We hear a great deal about what is constitutional and that the 
Senator from New York and others are basically undermining the 
Constitution by refusing to let the Senate make its will. On the other 
hand, I think the Senator, as I understand it, is doing exactly what 
the constitutional Founders intended the Senate to do; and that is, to 
have a shared responsibility and give a balanced and informed judgment 
in meeting the requirements of the advice and consent provisions of the 
Constitution.
  I am just asking the Senator if he does not agree with me that we 
ought to have some understanding among at least ourselves as to what 
the role is because often we hear those voices saying, what are you 
objecting to? The President has nominated him. Why aren't you just 
going along? I would be interested in the Senator's answer.
  Mr. SCHUMER. The Senator is right on the money. The bottom line is, 
the Founding Fathers wanted the Senate to be actively involved in the 
process. It is my understanding, as I read the Federalist papers and 
the deliberations of the Founding Fathers, for a good period of time 
they were so afraid of the President, so much like a king, having too 
much power and knowing that judges would have lifetime appointments and 
have absolute power, at least on the cases they rendered, that for a 
long period of time they wanted the Senate to appoint the judges.
  Mr. KENNEDY. Without the President involved?
  Mr. SCHUMER. Without the President involved, exactly. I can't 
remember if it was Madison or somebody else, but they argued it would 
be too diffuse, that the buck will have to stop somewhere, so they were 
going to have the President nominate. But to keep the President's power 
in check, the very thing they intended--my good friend from 
Massachusetts is exactly on the money--was that the Senate play an 
active role.
  Let me repeat, many of the very first Senators who debated whether 
the first nominee, Mr. Rutledge, should become a judge on the Supreme 
Court were members of the Constitutional Convention. We heard today 
that of the first eight who showed up, six were members of the 
Constitutional Convention. I don't know how many out of the original 22 
because I think there were just 11 States that had ratified the 
Constitution then. And guess what debate they had in rejecting Mr. 
Rutledge? They debated his views on the Jay treaty, which was a treaty 
involving France and England and all sorts of foreign entanglements, as 
they used to refer to it in those days.
  Let me say that if the Jay Treaty was legitimate grounds to determine

[[Page 5007]]

 whether the Senate should consent, then certainly someone's views on 
the commerce clause and the first amendment and the second amendment 
and the fourth amendment and the 11th amendment and the right to 
privacy and the right to free speech should be.
  Let's just get some corroboration for my colleague's excellent 
question. Here is what our good friend from Utah said when the shoe was 
on the other foot, when President Clinton was nominating people, and 
many of our colleagues on the other side were worried they would be too 
activist, which meant too many people who would let their own liberal 
views trump accurate interpretation of the law. I have great respect 
for the Senator from Utah. He knows this stuff inside out.
  He said:

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

  Well, one day of hearings and no other record, is that extensive when 
one is considering a lifetime appointment? I would argue not. It is not 
even close to extensive enough.
  Let me read another quote from Senator Hatch:

       The careful scrutiny of a judicial nominee is one important 
     step in the process, a step reserved to the Senate alone . . 
     . I have no problem with those who want to review these 
     nominees with great specificity.
  Well, I hope the Senator who had no problem then when Senator 
Sessions and Senator Ashcroft and other Senators on the Judiciary 
Committee wanted to ask a whole lot of questions--and believe me they 
did, of the people they were worried about, the Paezes and the Bersons, 
not to mention them, but all the nominees who never got hearings. Great 
specificity? Nine hours of hearings for the second most important job 
on the judicial side of the Government? Nine hours, when the answers, 
when talking about his history, Miguel Estrada was specific. It is not 
a character trait. It is only when he was asked his views on matters of 
great judicial importance, this is with great specificity, to simply 
say, on question after question: I will follow the law, is that 
answering questions with great specificity?
  Mr. KENNEDY. Would the Senator yield on that point?
  Mr. SCHUMER. I am happy to yield.
  Mr. KENNEDY. Was the Senator trying to elicit from the nominee the 
outcomes of particular cases or was he inquiring of the nominee to have 
the nominee's general understanding of the particular provisions, 
constitutional provisions which are the basis for protecting individual 
rights and liberties? If you listen to the debate, some would say the 
members of the Judiciary Committee who were asking questions were 
trying to basically unethically demand answers of the nominee as to the 
outcome of particular cases. Nothing could be further from the truth. 
As I understand, what the Senator is talking about now is to try and 
gain an understanding about whether the nominee had an understanding of 
the core provisions of the Constitution and the protections of those 
core provisions and understood the context with which they were at 
least passed or considered and interpreted over time.
  Mr. SCHUMER. I thank the Senator for his question. He is exactly 
right once again in terms of his question. No one said: How will you 
rule on this case that is now in the lower courts in DC. No one said, 
there is a case in Texas about a meat packing company that refuses to 
go along with what the FDA wants them to or the Department of 
Agriculture wants them to. No one asked even close to that degree of 
specificity.
  When one asks, what is your view on the commerce clause and how 
expansively or narrowly it should be interpreted, what is your view on 
the first amendment--I asked him, for instance, how it would affect his 
view on campaign finance spending. These are not questions of specific 
cases. In fact, the Senator was off the floor when I mentioned that I 
have made inquiries of some of the legal ethicists in our country who 
make a living by interpreting the canons of the ABA, what a lawyer can 
and cannot do. Not one of them thought any of the questions even came 
close in terms of the level of specificity.
  One might think that was just a ruse, that that was a way to avoid 
giving one's opinions. And when one sees the article that was in the 
Legal Times in 1986, where it was reported that at a Federalist society 
meeting, Judge Silberman, already a member of the DC Court of Appeals, 
suggested to prospective nominees that Ronald Reagan might nominate, 
don't answer the questions, that was the beginning. That was the seed 
we are now seeing bear its evil fruit, which is to stonewall. And 
basically the Senator was exactly right in his previous question, at 
least in my opinion, going back to the view that the President should 
appoint.
  Do you know what these hearings would be? They would be hearings for 
show.
  Mr. KENNEDY. Will the Senator yield for another point?
  Mr. SCHUMER. I am happy to yield.
  Mr. KENNEDY. I can remember the time when the nominees for the 
Supreme Court, nominated by Democrat or Republican Senators, when 
Senators actually gave the questions to the nominees. I used to do that 
for years and years so that the nominee would have an opportunity to 
think about these issues and be able to talk about the fundamental 
protections of the Constitution and constitutional rights. This was 
never viewed to be a game in the Judiciary Committee. It was to try to 
elicit from the nominee their understanding and the nature of their 
kind of commitment to core values. That was always the case.
  Now we find, as the Senator has historically interpreted, we can 
never get the responses, the answers. I mentioned the other day about 
understanding what the roles are of these two institutions. There is an 
extremely important and vital responsibility on every Member of this 
body in exercising their judgment. It is a shared responsibility. I can 
understand the chairman of the Judiciary Committee would rather have it 
so it is just the President's responsibility. But that defies history 
and what our Founding Fathers wanted. This is a shared responsibility.
  I again ask the Senator, how are we going to ever fulfill our 
responsibilities under the Constitution when the nominees are basically 
going blank, refusing to respond to members of the committee? I further 
ask the Senator, is he not concerned this is beginning to be a trend, 
in terms of nominees we are having now before the committee, where they 
believe they just don't have to respond?
  Mr. SCHUMER. Yes.
  Mr. KENNEDY. Would the Senator agree this isn't just a matter for the 
Senators from New York and Massachusetts, this is a matter for the 
American people? That is what our Founding Fathers, who were the 
architects of the greatest Constitution in the history of the world, 
intended: If we fail to exercise our rights on this, we fail our 
responsibilities under the Constitution? I feel that way very strongly. 
I just inquire of the Senator.
  Mr. SCHUMER. I thank my colleague. Again, I completely agree with him 
on every one of the questions he has asked. I would like to cite for my 
colleagues this article I mentioned. It was in the Legal Times of April 
22, 2002. Here is a quote from the article:

       President George Bush's judicial nominees received some 
     very specific confirmation advice last week: ``Keep your 
     mouth shut.''

  That statement in that article makes a mockery, as my good friend 
from Massachusetts has stated in his question, of the U.S. 
Constitution. ``Keep your mouth shut.'' One has to ask: Why should you 
keep your mouth shut? It is not because there is anything unethical you 
did. I don't think Miguel Estrada has done anything unethical. It is 
not because you are ashamed of your history or of something that 
happened in your past. Why are these nominees being told to keep their 
mouth shut, if this article is true?
  We all know why. Because the people who are advising them are afraid 
if they gave their whole views, they would be rejected not only by the 
Senate but by the American people. And then there would have to be 
something

[[Page 5008]]

different. The Senator is exactly right. We are on the road to 
mutilating our Constitution. I believe in this document. The older I 
get, the more in awe I am of the Constitution. The Founding Fathers 
called this country ``God's noble experiment.'' I believe that.
  America took my family as refugees from Europe a hundred years ago--a 
little more than that. They were discriminated against; they could not 
have any kind of job; but they were given a chance. My father never 
graduated from college and his son is a Senator. This is an amazing 
place. It is not just in the way my teenage children would say it, but 
in the biblical sense, an awesome place, where the angels tremble 
before God in awe.
  Part of that awe that we so cherish is the fact that we try to 
fulfill what the Founding Fathers wanted and wished. For an immediate 
political purpose, to put before the courts people who might be out of 
the mainstream, to make a mockery of the process by having three 
controversial court of appeals nominees appear on the same day so that 
two could not be questioned, to change by fiat the blue slip rule, 
which had been in existence for quite a while, and not debate and vote 
on what should happen on the blue slip rule--but to just change it--to 
then take a rule that had been in the Judiciary Committee since the 
Senator was on the Judiciary Committee before in 1979----
  Mr. KENNEDY. It was before.
  Mr. SCHUMER. The rule was even before he was chairman. It said you 
could debate an issue and not shut off debate, unless one member of the 
minority side--by the way, it wasn't written for a 10-to-9 minority; it 
could have been written for a 19-to-1 minority. On the Judiciary 
Committee some comity would have to reign. To take all these, and then 
this hearing, this nomination, where Miguel Estrada, being the good 
student he is, basically kept his mouth shut, I don't care how many 
thick books they put on the table. Read the answers, I say to my 
friends in America. Compare them to the answers of other judges, and 
then look at the fact that the only records we have of Miguel Estrada, 
his work as an Assistant Solicitor General, where we could determine 
how he thinks, other than by what he said at the hearing, where he 
didn't answer dispositively on anything in terms of his views--and the 
administration all of a sudden says we are not giving up such 
documents--it makes you scratch your head and wonder.
  So I say to my colleague--and I will relinquish the floor in a 
minute--to me, this is not a fight over Miguel Estrada or Mr. Jeffrey 
Sutton or Judge Cook or John Roberts or Mr. Bybee or Mr. Tymkovich or 
any of the others; this is a fight for the sacredness of our 
Constitution. This is not the first time people who are a lot smarter 
than I am have tried to figure out ways around the Constitution and 
just say they are invoking the Constitution. That has happened 
repeatedly throughout our history.
  But I believe, based on the patriotism that burns within me, based on 
my belief that this America still is ``God's noble experiment,'' it is 
our job to try to keep the flame of that Constitution burning brightly. 
Part of that flame is to have a full vetting of nominees for the one 
nonelected part of the Government, the article III part of the 
Government; and to rush nominees through and say they don't have any 
more time for a 40-year lifetime appointment, to say that they can 
answer every question by basically obfuscating, I believe in my heart 
of hearts is not what Madison or Hamilton or Jay or Washington or any 
of the Founders intended.
  I yield for a final question to my colleague from Massachusetts.
  Mr. KENNEDY. I thank the Senator. This will be my last intervention 
at this time. I wanted to ask whether this understanding and this 
presentation is your understanding, again, about the Constitutional 
Convention. I will take a moment. I ask him whether this is his 
understanding as well.
  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 no support. Rutledge of South Carolina said that he 
``was by no means disposed to grant so great a power to any single 
person.''
  A week later, Madison offered a formal motion to give the Senate the 
sole power to appoint judges, and this motion was adopted without a 
single 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. All the 
decisions having been made, this issue was revisited three different 
times. On July 18, the convention reaffirmed its decision to grant the 
Senate the sole, exclusive power. James Wilson again proposed ``that 
the judges be appointed by the Executive,'' and again his motion was 
defeated.
  The issue was considered 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.''
  Not until the final days of the Convention was the President given 
power to nominate. On September 4, 2 weeks before the Convention's work 
was completed, the committee proposed 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 made clear, however, that while the President had the 
power to nominate the judges, the Senate still had a central role. 
Governor Morris of Pennsylvania described the provision as giving----
  Mr. SCHUMER. Will the Senator yield?
  Mr. KENNEDY. Let me read this. 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.
  It could not be clearer what our role is. It could not be clearer as 
to what the constitutional Founders wanted us to do.
  I commend the Senator from New York for fulfilling that 
responsibility with regard to nominees. There are others who believe we 
ought to be a rubberstamp. The Senator from New York is speaking now to 
his responsibilities as outlined by our Founding Fathers. I welcome the 
opportunity to join with him. I commend him for his contribution to 
this debate.
  Mr. SCHUMER. I thank my colleague. Again--and I am going to yield the 
floor; we have had it a long time--that sums it up: The central role is 
the Senate. Can the Senate engage in a central role, not the 
President--and we hear all the people who are criticizing what we are 
doing, saying the President should be able to choose. Those very same 
people want to be strict constructionists.
  My colleague from Massachusetts, in outlining what happened at the 
Constitutional Convention, shows who are the real strict 
constructionists in this Senate today. It is those of us who are trying 
to make sure the Senate has some real say in who the judges are--not a 
hearing at nine at night, not failure to answer questions, not somebody 
who will not give up their whole record. This is a job for which we 
would have lines from here to Baltimore if we offered it to every 
lawyer in America. How many of them would say: I won't give up my 
records, or I won't come and answer your questions. This is a standard 
that perverts the views of the Founding Fathers.

[[Page 5009]]

  Again, I say to the American people, why is it Miguel Estrada and 
those supporting him are so afraid that we learn of his views? If they 
are mainstream, if they are moderate, if they are not way off the deep 
end, would not release of documents, would not his answering questions 
without evasion vindicate him? But instead, we have had a 3-,
4-, 5-week battle to get simple answers out of a man who seeks to be 
appointed to the second most powerful court in the land that will 
affect every one of the 280 million Americans who are living today, 
their lives and the lives of their children and the lives of their 
grandchildren. My colleague is exactly right.
  Mr. KENNEDY. Will the Senator agree, if I can ask him one other 
question, particularly seeing our leaders on the floor, would the 
Senator not agree with me that actually this is the wrong priority for 
the Senate to be debating for weeks and weeks when we have serious 
economic challenges facing this country, and I see our Democratic 
leader trying to get his proposal before the Senate, and the 
Republicans saying no; or to try and get a prescription drug program 
before the Senate. I do not know whether the Senator has had an 
opportunity to see the President's proposal which effectively says to 
the senior citizens they will no longer have the choice of their own 
doctor if they want to get the prescription drug they need. A 
prescription drug program should be part of the Medicare system and 
should not be a gift to the HMOs and the private insurance companies.
  Would not the Senator finally agree with me that we have had this 
debate, and we ought to be debating the country's business in terms of 
our economic recovery, the issues of prescription drugs, or even the 
issue of going to war with Iraq?
  Mr. SCHUMER. I thank my colleague for that question. First, I say to 
him, certainly, and let the American people who are watching today and 
everybody else understand the reason we have been on the issue of 
Miguel Estrada is not the choice of the Senator from Massachusetts, the 
Senator from New York, or our Democratic leader. It is the choice of 
the Republican side. It is the choice of the Senator from Tennessee.
  Any moment--we do not control the floor; we are in the minority--any 
moment our friend from Tennessee, the majority leader, should say, 
Let's start debating how we are going to start getting jobs for the 
American people, more than 2 million of whom have lost jobs, any time 
the majority leader from Tennessee should say, let's debate 
prescription drugs, we would be off this issue of Miguel Estrada and 
debating those issues. I say to my colleague, as long as our colleagues 
insist on debating Miguel Estrada, I for one, and I speak, I think, for 
many of us, will not let the Constitution be rolled over, will not 
allow the very discussion that the good Senator from Massachusetts 
outlined, where it is clear the Senate should have more power than the 
President in appointing judges, be made a laughingstock. This document, 
the Constitution, is far too sacred.
  It is my preference, to be honest, that the majority leader, the 
Republican leader from Tennessee say: Let's start debating other 
issues. It is his choice. But as long as he does not, I will be here at 
10 of 4 in the afternoon or 10 of 4 in the middle of the night to 
defend this Constitution and prevent it from becoming a laughingstock 
because of some temporary whim of a small number of people in this 
country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, the majority leader is here to propound a 
request. Let me make a couple of remarks, and I ask unanimous consent 
that I be able to retain the floor after he finishes with his request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, all I can say is the Pharisees of the 
meridian of time would have loved these arguments. In fact, they are 
very worthy of that type of reasoning that existed during the meridian 
of time of our society. To stand here and talk like they are supporting 
and sustaining the Constitution when they are saying Republicans think 
the President should have the sole power, nobody is arguing that. That 
is what you call another red herring along with their requests for 
documents that they know no self-respecting administration will give, 
as evidenced by the seven former Solicitors General, four of whom are 
Democrats, who said those documents should not be given because they 
would interfere with the work of the Solicitor General, the people's 
representative.
  The fact of the matter is that the Founding Fathers--and I have 
enjoyed this wonderful discussion by the Pharisees of modern times, 
because to say we are arguing that only the President has some role 
here is not only ridiculous, it is ridiculously sublime. It is almost 
unbelievable for me to hear this as constitutional argument. Why, they 
would be thrown out of the Supreme Court and asked never to come back 
again by the liberals on the Supreme Court.
  Madison himself offered a resolution to have a supermajority vote by 
the Senate, and it was rejected 6 to 3--rejected 6 to 3. The 
appropriate language is right here in article II of the Constitution. 
If we are going to talk about the Constitution, let's talk about the 
Constitution, not a bunch of gibberish. It says, talking about the 
President:

       He shall have Power, by and with the Advice and Consent of 
     the Senate, to make Treaties, provided two-thirds of the 
     Senators present concur;--

  That is a supermajority vote written in the Constitution, where 
supermajority votes should show up.

       and he shall nominate, and by and with the Advice and 
     Consent of the Senate, shall appoint Ambassadors, other 
     public Ministers and Consuls, Judges of the supreme Court, 
     and all other Officers of the United States, whose 
     Appointments are not herein otherwise provided for, and which 
     shall be established by law; but the Congress may by Law vest 
     the Appointment. . . .
  But it says, ``by and with the advice and consent of the Senate.''
  Here are my colleagues acting holier than thou, acting as 
constitutional experts, who are arguing that they should be able to 
sustain a filibuster that would require a supermajority vote out of 
that clause, which says advice and consent, which very clearly made it 
clear they are talking about an up-or-down vote. When Madison tried to 
get a supermajority vote, he was voted down. Madison, the Founder of 
the Constitution, was voted down 6 to 3.
  These specious arguments, in my opinion, are not worthy of the 
Senate. There is a lot more I have to say, and I will complete my 
remarks after the majority leader takes the floor to make a unanimous 
consent request. I have never heard such arguments before as have been 
made throughout this afternoon, and I intend to answer some of them. It 
is not worthy of our time to answer all of them, but I am certainly 
going to answer some of them.
  I respect my colleagues. It can be truthfully said I love my 
colleagues. People know that. And especially these two who have been 
arguing back and forth. But, again, they would have made wonderful 
Pharisees in the meridian of time because they would beat an issue to 
death even though the issue does not exist.
  In this particular case, some of these arguments never existed in 
constitutional law or principle.
  The PRESIDING OFFICER. The majority leader.


                Unanimous Consent Agreement--S. Res. 71

  Mr. FRIST. Mr. President, as in legislative session, I ask unanimous 
consent that at 4:20 p.m. today, the Senate proceed to the 
consideration of S. Res. 71 regarding the recent decision relating to 
the Pledge of Allegiance; provided further that no amendments be in 
order to the resolution or preamble, and that there then be 10 minutes 
for debate equally divided between the two leaders or their designees; 
that upon the use or yielding back of that time, the Senate proceed to 
a vote on adoption of the resolution without any intervening action or 
debate. I further ask unanimous consent that if the resolution is 
adopted, the preamble be agreed to and the motion to reconsider be laid 
upon the table.
  The PRESIDING OFFICER. Is there objection?

[[Page 5010]]

  Without objection, it is so ordered.
  Mr. DASCHLE. Mr. President, I ask the majority leader if it is his 
intention to schedule any additional votes today after we have had the 
vote on this particular resolution.
  Mr. FRIST. Mr. President, that would be the final vote of the day, 
and that would be at 4:30.
  Mr. DASCHLE. I thank the majority leader.


   Electing William H. Pickle, of Colorado, as Sergeant at Arms and 
                        Doorkeeper of the Senate

  Mr. FRIST. Mr. President, as in legislative session, I send to the 
desk a resolution and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The senior assistant bill clerk read as follows:

       A resolution (S. Res. 72) electing William H. Pickle of 
     Colorado as the Sergeant at Arms and Doorkeeper of the 
     Senate.

  There being no objection, the Senate proceeded to consider the 
resolution.
  Mr. FRIST. I ask unanimous consent that the resolution be agreed to 
and that the motion to reconsider be laid upon the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. Res. 72) was agreed to, as follows:
       Resolved, That William H. Pickle of Colorado be, and he is 
     hereby, elected Sergeant at Arms and Doorkeeper of the Senate 
     effective March 17, 2003.

  Mr. FRIST. Mr. President, I welcome and introduce to my colleagues, 
which the Democratic leader and I have had the opportunity to do to our 
respective caucuses today, Bill Pickle, to be our new Sergeant at Arms, 
effective March 17. Currently, Bill is the Federal director at the 
Denver International Airport. He was the first director appointed when 
the Transportation Security Administration was created last year. Prior 
to that point, he served briefly as the Deputy Inspector General at the 
Department of Labor.
  His real experience and career is with the Secret Service, which he 
served for a period of 26 years. He served in a number of senior 
manager positions, the most recent ones being Deputy Director for 
Training and Human Resources, Special Agent in charge of the Vice 
Presidential Division, and head of the Secret Service Congressional 
Affairs Office.
  Bill is a highly decorated Vietnam veteran. He served with the first 
Air Cavalry Division from 1968 to 1969 as an infantry sergeant and 
medevac helicopter doorgunner. Mr. Pickle attended American University, 
as well as Metro State College in Denver, and holds a degree in 
political science. He is married and has two children.
  Again, I welcome him to this body.
  The PRESIDING OFFICER. The minority leader.
  Mr. DASCHLE. Mr. President, first let me commend the distinguished 
majority leader for his choice in this proper position. In this time of 
uncertainty and with the experiences that the Senate has endured over 
the course of the last couple of years in particular, we are all the 
more sensitive about the role and the responsibilities of the Sergeant 
at Arms.
  The Senate owes a big debt of gratitude to Al Lenhardt, the man who 
has filled this position so admirably for the last couple of years. He 
has endured, he has led, he has inspired. So we say farewell to Mr. 
Lenhardt, and we acknowledge once again the extraordinary contribution 
he has made not only to the Senate but to his country. I am proud of 
his work. I am proud to call him a friend.
  I am pleased that Bill Pickle has agreed to take on this enormous 
responsibility. He comes extraordinarily well qualified. His 
experiences will serve him well as he begins to undertake the 
responsibilities and the expectations of the Senate as we look to the 
many challenges the Senate faces in dealing with security and the many 
other issues that will be on his desk as he holds this position. I 
congratulate him. I wish him well. I know I can say without 
equivocation that unanimously our caucus expresses our willingness to 
work closely with him as he begins his work in the Senate.
  I thank the distinguished majority leader, and I yield the floor.
  Mr. FRIST. Mr. President, I also want to add my appreciation to Al 
Lenhardt, our current Sergeant at Arms. I have had the opportunity to 
work with Al closely in that he came right before the time when anthrax 
first struck Washington, DC. I have had the chance to work with him on 
an intimate basis through that challenge and also over the last year 
and a half as he brought a current state-of-the-art discipline to that 
position to give the protection we depend on each and every day.
  I had the opportunity to share my gratitude directly with the 
Democratic leader yesterday in his office as we met with Al and Bill 
Pickle.


   Unanimous Consent Agreement--The Moscow Treaty, Document No. 107-8

  Mr. FRIST. Mr. President, I ask unanimous consent that at 12 tomorrow 
the Senate proceed to Executive Session to consider Calendar No. 1, the 
Moscow Treaty; provided further it be considered under the following 
limitation: The treaty be considered advanced through its various 
parliamentary stages, up to and including the presentation of the 
resolution of ratification; all recommended committee conditions and 
declarations be considered agreed to and provided further that all 
amendments to the resolution of ratification be relevant; further, that 
following the disposition of the relevant amendments and the conclusion 
of the debate on the resolution, the Senate then immediately proceed to 
a vote on the adoption of the resolution of ratification, as amended, 
with no further intervening action or debate, and that following the 
vote the President then be notified of the Senate's action.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, I want to turn to a final matter of 
business for me, and it concerns the subject of the Estrada nomination. 
I want to take a couple of minutes to comment on where we are today. 
This nomination, as my colleagues know, has been pending on the floor 
since February 5. It has been just about a month ago that the 
distinguished chairman of the Judiciary Committee brought forth this 
nomination. Over that period of time, we have had ample opportunity to 
have a very good debate. We have had a thorough discussion, and we have 
had thoughtful discussion, and we have had reasonable discussion. Both 
sides of the aisle, indeed, have been patient, recognizing the 
importance of this nomination.
  We have listened very carefully to the arguments of the other side of 
the aisle to see if there is any way possible we could get an up-or-
down vote, a vote to confirm or not to confirm, but to have the vote. 
The response to that has been a filibuster, which has been ongoing now, 
for an exceptional nominee.
  Again, after a lot of time, a lot of focus, a lot of patience, a lot 
of thorough discussions, I feel it is time to give more definition to 
where we are in this nomination. Over this last month we have had 12 
session days dedicated to the nomination. We have had active debate and 
discussion for over 85 hours. We have put forth 17 separate unanimous 
consent requests which have been denied. We have seen mounds of 
editorial support accumulate from across the country. The latest count, 
from 29 States and the District of Columbia, 72 editorials calling for 
the end of the filibuster and/or support of Miguel Estrada; only ten 
supporting the other side. We have had the McConnell-Miller letter 
which was signed by 52 Senators, indicating strong support for Miguel 
Estrada. We have had offers by the White House to make Miguel Estrada 
available to Senators who might want to visit with him one on one.
  I outline that to demonstrate we are doing everything possible to 
achieve a very simple goal. That goal, consistent with the 
Constitution, consistent with the advice and consent, is to have an up-
or-down vote on this nominee, allowing each Senator to express their 
will, either yes or no.
  As I said, the time has come, after being patient, to give increased 
definition to the debate for people to actually stand up and be 
counted. I have

[[Page 5011]]

been denied the only other means I have to reach a vote, and that is 
through unanimous consent. Thus I have to rely on my only alternative 
now. That is to generate a vote so that people in this body and indeed 
the American people can know where each Member stands. That vote will 
be filing cloture. I do want to point out that filing of cloture is 
intended to identify where individuals stand and in no way means any 
walking away from this nomination. In fact, it is just the opposite. If 
cloture fails, it is the real beginning, I believe, of this important 
debate that has been underway now for almost 30 days, but which we 
permitted to continue in order to have that up-or-down vote. If cloture 
is successful, which I hope, we will be able to go immediately to the 
vote and we will be able to have this nominee confirmed. If Democrats 
go on record through this vote as supporting an active filibuster, we 
and their constituents will be able to address each one of them and ask 
for an explanation.
  Filing of cloture represents, in my mind, an active campaign to 
ensure this fine nominee ultimately is voted upon and thus will win 
because we know we have the majority votes for him to be confirmed. 
Thus, this is our first step.
  By filing this cloture motion we will be, if unsuccessful, racheting 
up the attention level for this well-qualified nominee. Members will 
have that opportunity to decide whether this man deserves that up-or-
down vote I referred to. Members will get a chance to say whether the 
President of the United States deserves to have his nominee, the 
President's nominee, acted upon, voted upon, in this Senate--again, an 
opportunity for the President's nominee to have an up-or-down vote.


                             Cloture Motion

  With that said, I now send a cloture motion with 51 signatures to the 
desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 21, the nomination of Miguel A. Estrada to be 
     United States circuit judge for the District of Columbia 
     circuit.
         Bill Frist, Orrin Hatch, Trent Lott, Bob Bennett, Peter 
           Fitzgerald, Kay Bailey Hutchison, Lisa Murkowski, 
           Conrad Burns, John Warner, John E. Sununu, Lindsay 
           Graham, Jeff Sessions, Gordon Smith, Elizabeth Dole, 
           James Talent, Saxby Chambliss, Christopher Bond, Susan 
           Collins, Wayne Allard, Lamar Alexander, Norm Coleman, 
           Pat Roberts, Craig Thomas, Larry E. Craig, Olympia 
           Snowe, John McCain, James Inhofe, Jon Kyl, Lincoln 
           Chafee, Rick Santorum, Judd Gregg, Don Nickles, George 
           Allen, Richard G. Lugar, Charles Grassley, George V. 
           Voinovich, Mike Crapo, Michael B. Enzi, Thad Cochran, 
           Mike DeWine, Arlen Specter, Sam Brownback, Ben 
           Nighthorse Campbell, Richard Shelby, Ted Stevens, Chuck 
           Hagel, John Cornyn, Pete Domenici, John Ensign, Mitch 
           McConnell, Jim Bunning.
  Mr. FRIST. For the information of all Senators, this vote will occur 
Thursday morning. We will alert Members to the precise timing of this 
vote.
  At this time, I ask unanimous consent the live quorum under rule XXII 
be waived.
  The PRESIDING OFFICER (Mr. Chafee). Without objection, it is so 
ordered.
  The Democratic leader.
  Mr. DASCHLE. I listened carefully to the words of the distinguished 
majority leader and certainly understand his decision to file cloture. 
Many of us had anticipated a cloture motion would be filed. We are more 
than ready to have one or more votes when and if they are scheduled. 
Those votes, of course, would not be necessary were the information we 
requested from the beginning provided. We have simply asked that Mr. 
Estrada fill out his application for this lifetime employment, as every 
other one of his predecessors has, providing information about his 
record, providing information about his position, providing information 
in ways that will allow Senators a far better appreciation of the vote 
they are taking on this important matter prior to the time he begins 
serving on the second highest court in the land.
  We welcome the vote. As I said, we will welcome subsequent votes if 
they are filed. We believe the constitutional obligation we have as 
Senators requires we demand the same degree of compliance to the rules, 
the same degree of willingness to cooperate that all those who have 
served in the past and have provided that information have been willing 
to provide in their cases, as well.
  We will certainly anticipate that vote, the recognition that this 
debate goes on unnecessarily. It would not have to take 30 days. It 
would not have had to take 12 legislative days. It would not have had 
to take 85 hours for Mr. Estrada to be more forthcoming, more willing 
to provide the information his predecessors have provided.
  I understand the actions just announced by the majority leader. But I 
will say it really does not change anything. The only thing that will 
change the circumstances we currently face is if Mr. Estrada becomes 
more cooperative and he fulfills his obligations under the 
Constitution, as his predecessors have so ably done for so many years.
  I yield the floor.
  Mr. HATCH. Mr. President, one thing it does establish is that there 
really is a filibuster by our colleagues on the other side. They have 
been denying this right up to now, so that is why we have to have a 
cloture vote to show that there is a filibuster; for the first time in 
history, a true filibuster against a circuit court of appeals nominee.
  That is a constitutional issue and it is an important constitutional 
issue. I was really blown away by my colleague's assertion that we are 
trying to just make an imperial President. That is not at all the case. 
We know the Senate has an obligation to look at these judges. As a 
matter of fact, whenever we say we treated their judges better than 
they are treating Miguel Estrada, they are using a double standard on 
Miguel Estrada, and they say their judges were not controversial.
  Give me a break. I will be willing to ask Miguel Estrada to give 
detailed answers to every question that was asked of Marsha Berzon, 
every question that was asked of Judge Paez, every question that was 
asked of Margaret Morrow. Those hearings lasted minutes. This lasted a 
solid day, more than most nominees in the history of the country for 
the Circuit Court of Appeals.
  By the way, for those on the other side who keep trying to imply--I 
was interested in my words that were put up. What was wrong with those 
words? They were absolutely true. We should not have activist judges on 
the bench.
  I disagree with their characterization that activist means anything 
but activist. I agree with Senator Schumer's discussion on activism. I 
don't like activism from the left and I don't like it from the right. I 
don't think it is right in either case. Activism is ignoring the law; 
using your judicial position to make laws from the bench that you were 
never nominated and confirmed to make.
  Judges are not elected to make laws. The purpose of judges is to 
interpret the laws made by those of us who have to stand for 
reelection. We are the ones who make the laws. The President and the 
executive branch also can make laws.
  But where in the Constitution, or in anything said by the Founding 
Fathers, does it say that a minority of the Senate has a right to 
prevent a vote up or down on a President's nominee? Nowhere.
  In that provision I read, where does it say you can have a 
supermajority vote? In fact, the only supermajority vote mentioned in 
article II is the clause I read from, that is a two-thirds vote for the 
ratification of treaties. But in that same paragraph it said the Senate 
has a right to advise and consent on nominees.
  Those words they put up of mine regarding activist judges, I don't 
see anything wrong with those words. They apply today, and I have 
always gone by them. But to imply that their judges were not treated 
properly when we put

[[Page 5012]]

through 377 Clinton judges, the second all-time record in the history 
of the Senate, in the history of the nomination process, 5 less than 
the all-time champion Ronald Reagan, while 6 years the Judiciary 
Committee was in the control of the Republicans, the opposition party, 
where President Reagan had 6 years of his own party to assist him--and 
to act like that was not a remarkable job of fairness to President 
Clinton, again makes my point that these are modern-day Pharisees who 
would distort anything in order to make their arguments.
  I would like to get to a couple of things that have really been a 
little irritating to me. I have heard a lot of whining about last 
week's Judiciary Committee markup where I had to rule we are not going 
to filibuster in committee and we were going to have votes up and down 
on the circuit court nominees.
  I have also heard arguments that to have three nominees in one 
hearing is just awful. It has never been done before. I am going to 
talk about those two things just for a minute or two, because I think 
it is important to understand.
  First of all, on that rule, I checked with our parliamentarians, two 
of them, in this body. They upheld me and told me I was right in the 
interpretation of the rules that I made. But the rule they are hiding 
behind is rule 4. They are saying that rule 4 prevented me from being 
able to call for a vote unless I got at least one member of the other 
side to agree.
  By the way, each one of those judges had at least two members of the 
other side in agreement, so there is nothing to complain about, even 
then. But the text of rule 4 says this:

       The chairman shall entertain a nondebatable motion to bring 
     a matter before the committee to a vote.

  A nondebatable motion. There was no motion made. There was a point of 
order raised which I overruled. There was an objection raised, which I 
overruled. Listen to this again:

       The chairman shall entertain a nondebatable motion to bring 
     a matter before the committee to a vote.

  There has to be a motion. That didn't happen.

       If there is objection to bringing 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 
     10 votes cast in the affirmative, one of which is cast by the 
     minority.

  That is the rule that allows any Senator to make a motion to bring 
any matter to a vote, so long as that Senator has all of his own party 
and one, at least one from the other. It is not a rule that can be used 
to stop the chairman from having a vote and from ending debate, which 
had clearly ended, and to stop a filibuster in the committee.
  So all this whining and crying about that is a total 
misinterpretation of the very expressly worded rule. You would think 
they were mistreated. Not at all. They were treated very fairly. They 
just want to be able to slow down this process so President Bush's 
judges do not get hearings, they don't get markups in committee, and 
when they come to the floor they are going to filibuster some of them--
maybe all of them, for all I know.
  By the way, their argument there is specious. It is wrong. It is 
irrelevant. It is a misinterpretation of the very rule they are citing. 
And it is unworthy because I happen to know that they checked with the 
parliamentarians who said I was right in what I did. And I was right in 
what I did.
  With regard to their other argument attacking me for putting three 
circuit court of appeal nominees on one hearing, I put those three up 
in the spring of 2001. I was told by the Democrats they didn't want to 
go forward, that they would like me to give them a little more time. I 
agreed.
  In the intervening time, Senator Jeffords decided to go independent 
and vote with the Democrats, and the committee chairmanship changed. So 
I was unable to bring them up at that time. They will have been sitting 
here for almost 2 years. These are some of the top appointees in the 
history of the judiciary. I might add that John Roberts has been 
sitting there for 12 years, three nominations by two different 
Presidents. It just plain is not right.
  I might also add that, having been attacked for holding what a number 
of Members on the other side of the aisle called an unprecedented 
hearing because the agenda included three circuit court nominees, you 
might be interested to hear I have subsequently found out that January 
29 hearing was the 13th time since President Carter's administration 
that this committee has considered more than two circuit nominees in a 
single hearing. The 13th time--not unprecedented, I would say. Hardly 
at all.
  But that is not all I learned. One of those 13 hearings was chaired 
by Senator Kennedy, who was then the committee chairman, on June 25, 
1979. I was there. That included seven circuit judges.
  What they throw out is: Well, they weren't controversial. I assure 
you that every Carter circuit judge was controversial. But there was a 
comity in the Senate then and there was also a 62-vote majority of the 
Democrats in the Senate versus 38 Republicans. But there was a comity, 
that people just didn't raise the kind of ridiculous arguments that are 
being raised today in the Judiciary Committee. I assure you, those were 
controversial nominees, but nobody complained about that because of the 
comity and also because of the overwhelming control of the Democrats. 
They knew they could get away with it, and they did. And nobody really 
raised a fuss about it.
  They were all nominated by President Carter and all for the same 
circuit court of appeals. Talk about balance, which is what we are 
hearing right now from the other side.
  Three weeks later, on July 18, 1979, Chairman Kennedy held another 
hearing with four more Carter circuit nominees--all controversial--
maybe not all but controversial ones again.
  Then, on September 21 of that year, he held yet another multiple 
circuit hearing that included three circuit nominees. All three 
hearings occurred within a 4-month period. So it is all right for them 
to hold multiple circuit court nominee hearings, but it is an 
unprecedented thing for us. I agree, it probably is, because I do not 
know that we have ever been in charge long enough to do that before we 
held three.
  But I know this, I held, I think, 11 or 13 two-nominee hearings when 
I was chairman, and Mr. Clinton, their President, was President. I 
certainly do not mean to single out my friend Senator Kennedy, so I 
should also point out that when Senator Biden was chairman of this 
committee, he held two hearings that included three circuit nominees 
each; one on July 21, 1987, another on October 5, 1990. Senator 
Thurmond held five such hearings when he was chairman. And Senator 
Eastland, back in November 1977, who was chairman at that time, held a 
hearing for three circuit judges in one hearing. So much for the 
precedented.
  Senator Kennedy's advice and consent argument, while interesting, is 
wrong on the law and wrong on the facts. His argument ignores the basic 
underpinnings of the Senate's role in the advise and consent process.
  In fact, I would submit that the other side's effort to demand Mr. 
Estrada's personal views on certain legal issues is itself an 
unconstitutional threat to the separation of powers inherent in our 
system of government and to the Framer's desire to maintain an 
independent judiciary.
  It has never been the case that the Senate is constitutionally 
entitled to an answer to any question it chooses to ask a nominee while 
exercising its advise and consent responsibility. The reason for this 
is clear: the Framers sought to ensure that the judicial branch would 
remain independent of the legislative branch.
  According to Federalist Papers 78, judicial independence ``is an 
excellent barrier to the despotism of the prince'' and ``in a republic 
it is a no less excellent barrier to the encroachments and oppressions 
of the representative body.''
  For this reason, the Constitution prohibits Congress from reducing 
Federal judges' salaries, guarantees that

[[Page 5013]]

judges will remain on the bench ``during good Behavior,'' and allows 
Congress to remove them only by impeachment. These protections were 
born of the Framers' fear that the federal legislature, like King 
George III before it, would pressure judges into reaching outcomes of 
which it approved, or that otherwise were consistent with its 
interests.
  The Framers' intent to insulate Federal judges from the political 
influence of the legislative branch also informed their decision to 
restrict the role of the Senate in the confirmation process.
  The Senate's limited function is apparent from the Constitution's 
very text. To state the obvious, the President holds the power to 
nominate candidates to the Federal bench, while the Senate's role is 
restricted to providing ``advice and consent.''
  The Constitution assigns the Senate a limited role in the selection 
of judicial nominees; it simply allows that body to ratify the 
President's choices, or decline to do so. Put simply, the President 
selects, then the Senate reviews and reacts.
  As Alexander Hamilton explained in the Federalist No. 66:

       There will, of course, be no exertion of choice on the part 
     of the senate. They may defeat one choice of the Executive, 
     and oblige him to make another; but they cannot themselves 
     choose--they can only ratify or reject the choice he may have 
     made.

  This is not to say that the Senate must act as a ``rubber stamp'' to 
a President's choices for the judiciary. As has been the case 
throughout history, the Senate is entitled to detailed information 
about a nominee's background, career and qualifications for the bench. 
And Mr. Estrada has provided ample information to allow the Senate to 
determine his qualifications.
  First, it bears repeating that the American Bar Association 
unanimously rates Mr. Estrada ``Well qualified'' for this position. The 
Democrats' ``gold standard.''
  Second, Mr. Estrada testified for a full day in the Senate Judiciary 
Committee on a range of subjects, and then answered within followup 
questions for committee members. It should be mentioned that only two 
members of the committee decided to pose such questions.
  Third, Mr. Estrada has received broad bipartisan support from lawyers 
who know him best, including former Clinton Solicitor General Seth 
Waxman,
  Vice President Gore's former Chief of Staff Ron Klain, former Clinton 
Justice Department officials Randolph Moss and Bob Litt, as well as 14 
former colleagues of his in the Solicitor General's Office. All have 
written glowing recommendations of Mr. Estrada.
  Fourth, the Senate is free to review the briefs and other publicly 
available written work Mr. Estrada performed on behalf of clients in 
the more than 15 Supreme Court cases he has handled during his career. 
The record is voluminous.
  All of this information is more than adequate to address Mr. 
Estrada's qualifications. however, this body must, in order to maintain 
the proper constitutional balance, refrain from seeking just the sort 
of information Mr. Estrada's opponents now demand: his personal views 
on legal issues.
  Many distinguished Democrats have themselves noted that seeking 
personal views simply is inappropriate:
  Justice Thurgood Marshall made this point in 1967, when he refused to 
answer questions at his confirmation hearing about the Fifth Amendment:

       I do not think you want me to be in the position of giving 
     you a statement on the fifth amendment, and then, if I am 
     confirmed and sit on the Court, when a fifth amendment case 
     comes up, I will have to disqualify myself.

  Lloyd Cutler, President Clinton's former White House Counsel who also 
was at the other end of Pennsylvania Avenue at the same time as the 
Senator from New York, disagrees with efforts to discern a nominee's 
ideology during the confirmation process. According to Mr. Cutler:

       It would be a tragic development if ideology became an 
     increasingly important consideration in the future. To make 
     ideology an issue in the confirmation process is to suggest 
     that the legal process is and should be a political one. That 
     is not only wrong as a matter of political science; it also 
     serves to weaken public confidence in the courts. Just as 
     candidates should put aside their partisan political views 
     when appointed to the bench, so too should they put aside 
     ideology. To retain either is to betray dedication to the 
     process of impartial judging.

  Former Senator Albert Gore, Sr. also believed that efforts to discern 
a nominee's personal views was inappropriate. Former Senator Gore noted 
the following in connection with the 1968 nomination of Abe Fortas:

       [A] judge is under the greatest and most compelling 
     necessity to avoid construing or explaining opinion of the 
     Court lest he may appear to be adding to or subtracting from 
     what has been decided, or may perchance be prejudging future 
     cases.

  The Senate Judiciary Committee agreed with Senator Gore, noting the 
following in a Committee Report on the Fortas nomination that year:

       Although recognizing the constitutional dilemma which 
     appears to exist when the Senate is asked to advise and 
     consent on a judicial nominee without examining him on legal 
     questions, the committee is of the view that Justice Fortas 
     wisely and correctly declined to answer questions in this 
     area. To require a Justice to state his views on legal 
     questions or to discuss his past decisions before the 
     committee would threaten the independence of the judiciary 
     and the integrity of the judicial system itself. It would 
     also impinge on the constitutional doctrine of separation of 
     powers among the three branches of Government as required by 
     the Constitution.

  Finally, the ABA's Model Code of Judicial conduct also prohibits a 
nominee from discussing his personal views. Canon 5A(3)(D) of the ABA's 
Model Code of Judicial Conduct states that prospective judges ``shall 
not . . . make pledges or promises of conduct in office other than the 
faithful and impartial performance of the duties of office . . . [or] 
make statements that commit or appear to commit the candidate with 
respect to cases, controversies or issues that are likely to come 
before the court.''
  Mr. Estrada's opponents in essence are asking him to violate this 
ethical cannon.
  Mr. Estrada possesses an excellent record--one which merits 
confirmation. Efforts by the other side to deny him confirmation in the 
face of this excellent record are unfair and degrading to the 
confirmation process.
  The arguments made by the other side are not constitutional, they are 
political. The other side knows that the Constitution prohibits this 
body from intruding on the independence of the judiciary, and from 
forcing candidates to provide us with their personal views on legal 
issues. I hope the Senate will reject these unconstitutional efforts 
and that we will vote soon to confirm Miguel Estrada.
  During the course of this debate, there have been many serious 
misrepresentations of the record on Mr. Estrada. I want to address in 
some detail one of the more serious distortions, which concerns the 
answers that Mr. Estrada gave to questions that members of the 
Judiciary Committee asked him.
  The charge being leveled against Mr. Estrada is that he did not 
answer questions put to him in general, and did not answer questions 
about his judicial philosophy in particular. This charge is pure bunk.
  It is important to remember the circumstances under which this 
hearing took place. The hearing was held on September 26, 2001. It was 
chaired by my Democratic friend, the senior Senator from New York. It 
lasted all day. Both Democratic and Republican Senators asked scores of 
questions, which Mr. Estrada answered. And if any Senator was 
dissatisfied with Mr. Estrada's answers, every member of the committee 
had the opportunity to ask Mr. Estrada followup questions--although 
only two of my Democratic colleagues did.
  Now, a number of the questions Mr. Estrada was asked sought, directly 
or indirectly, to pry from him a commitment on how he would rule in a 
particular case. Previous judicial nominees confirmed by the Senate 
have rightly declined to answer questions on that basis, just as Mr. 
Estrada did.
  Let me give you some examples.
  In 1967, during his confirmation hearing for the Supreme Court, 
Justice

[[Page 5014]]

Thurgood Marshall responded to a question about the Fifth Amendment by 
stating:

       I do not think you want me to be in a position of giving 
     you a statement on the Fifth Amendment and then, if I am 
     confirmed and sit on the Court, when a fifth amendment case 
     comes up, I will have to disqualify myself.

  During Justice Sandra Day O'Connor's confirmation hearing, the 
Senator from Massachusetts, the former chairman of the Judiciary 
Committee, defended her refusal to discuss her views on abortion. He 
said:

       It is offensive to suggest that a potential Justice of the 
     Supreme Court must pass some presumed test of judicial 
     philosophy. It is even more offensive to suggest that a 
     potential justice must pass the litmus test of any single-
     issue interest group.

  Likewise, Justice John Paul Stevens testified during his confirmation 
hearing:

       I really don't think I should discuss this subject 
     generally, Senator. I don't mean to be unresponsive but in 
     all candor I must say that there have been many times in my 
     experience in the last five years where I found that my first 
     reaction to a problem was not the same as the reaction I had 
     when I had the responsibility of decisions and I think that 
     if I were to make comments that were not carefully thought 
     through they might be given significance that they really did 
     not merit.

  Justice Ruth Baker Ginsburg also declined to answer certain 
questions, stating:

       Because I am and hope to continue to be a judge, it would 
     be wrong for me to say or to preview in this legislative 
     Chamber how I would cast my vote on questions the Supreme 
     Court may be called upon to decide. Were I to rehearse here 
     what I would say and how I would reason on such questions, I 
     would act injudiciously.

  Like these previous nominees, all of whom the Senate confirmed, Mr. 
Estrada refused to violate the code of ethics for judicial nominees by 
declining to give answers that would appear to commit him on issues 
that he will be called upon to decide as a judge. But again and again, 
he provided answers, in direct response to questions, that make his 
judicial philosophy an open book.
  Let me share some specific examples.
  Responding to a question to identify the most important attribute of 
a judge, Mr. Estrada answered that it was to have an appropriate 
process for decision making. That, he said, entails having an open 
mind, listening to the parties, reading their briefs, doing all of the 
legwork on the law and facts, engaging in deliberation with colleagues 
and being committed to judging as a process that is intended to give 
the right answer. These are not extreme views. I don't think we could 
ask more from any judge.
  When asked about the appropriate temperament of a judge, he responded 
that a judge should be impartial, open minded and unbiased, courteous 
yet firm, and one who will give ear to people that come into his 
courtroom. These are the qualities of Miguel Estrada. He testified that 
he is and would continue to be the type of person who listens with both 
ears and be fair to all litigants.
  Mr. Estrada was asked a number of questions about his views and 
philosophy on following legal precedent. Let me highlight a bit of that 
exchange:
  Question:

       Are you committed to following the precedents of higher 
     courts faithfully and giving them full force and effect even 
     if you disagree with such precedents?

  Answer:

       Absolutely, Senator.

  Question:

       What would you do if you believe the Supreme Court or the 
     Court of Appeals had seriously erred in rendering a decision? 
     Would you apply that decision or would you use your own 
     judgment of the merits, or the best judgment of the merits?

  Answer:

       My duty as a judge and my inclination as a person and as a 
     lawyer of integrity would be to follow the orders of the 
     higher court.

  Question:

       And if there were no controlling precedent dispositively 
     concluding an issue with which you were presented in your 
     circuit, to what sources would you turn for persuasive 
     authority?

  Answer:

       In such a circumstance my cardinal rule would be to seize 
     aid from any place where I could get it--related case law, 
     legislative history, custom and practice, and views of 
     academics on analysis of the law.

  This exchange illustrates clearly Miguel Estrada's respect for the 
law and his willingness and ability to faithfully follow the law. He 
further testified, in response to other questions:

       I will follow binding case law in every case. Even in 
     accordance with the case law that is not binding, but seems 
     instructive on the area, without any influence whatsoever 
     from any personal view I may have about the subject matter.

  This is what we expect judges to do. I can see no good reason why 
anyone would be opposed to a nominee who promised to follow the law.
  When asked about the role of political ideology in the legal process, 
Mr. Estrada replied with a response that, in my view, was entirely 
appropriate and within the mainstream of what all Americans expect from 
their judiciary. He said:

       [A]lthough we all have views on a number of subjects from A 
     to Z, the first duty of a judge is to self-consciously put 
     that aside and look at each case with an open mind and listen 
     to the parties. And, to the best of his human capacity, to 
     give judgment based solely on the arguments on the law. I 
     think my basic idea of judging is to do it on the basis of 
     law and to put aside whatever view I might have on the 
     subject to the maximum extent possible.

  When asked about his views on interpreting the Constitution, Mr. 
Estrada was forthright and complete in his responses. For example, in 
an exchange regarding the literal interpretation of the words of the 
Constitution, Mr. Estrada responded:

       I recognize that the Supreme Court has said on numerous 
     occasions in the area of privacy and elsewhere that there are 
     unenumerated rights in the Constitution. And I have no view 
     of any sort, whether legal or personal, that would hinder me 
     from applying those rulings by the Court. But I think the 
     Court has been quite clear that there are unenumerated rights 
     in the Constitution. In the main, the Court has recognized 
     them as being inherent in the right of substantive due 
     process and the Liberty Clause of the 14th Amendment.

  Mr. Estrada was asked questions about the appropriate balance between 
Congress and the courts. His answers make clear his view that judges 
must review challenges to statutes with a strong presumption of the 
statutes' constitutionality. For example, in responding to a question 
about environmental protection statutes, he stated:

       Congress has passed a number of statutes that try to 
     safeguard the environment. I think all judges would have to 
     greet those statutes when they come to court with a strong 
     presumption of constitutionality.

  At the same time, he recognized that, as a circuit court judge, he 
would be bound to follow the precedent established by Lopez and other 
Supreme Court cases.
  So, it is clear from the record that Mr. Estrada did answer the 
questions put to him at his hearing. His judicial philosophy is an open 
book. But if my Democratic colleagues are still inclined to vote 
against him--as misguided as I believe that choice to be--they should 
do so. Vote for him or vote against him; do what your conscience 
dictates. Just votes. And stop the unfairness of this filibuster.
  And let me make one more point. Even if my colleagues still believe, 
despite the facts and precedent, that Mr. Estrada should answer more 
questions, well they have their chance. In a February 27 letter, White 
House Counsel Al Gonzales made the following offer.
  Mr. President, I ask unanimous consent that a copy of this letter be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              The White House,

                                    Washington, February 27, 2003.
       Dear Senator Frist, Senator Daschle, Senator Hatch, and 
     Senator Leahy: I write in connection with the nomination of 
     Miguel Estrada. Some Democrat Senators have indicated that 
     they would like to know more about Mr. Estrada's record 
     before a vote occurs. As I stated in my letter of February 12 
     to Senator Daschle and Senator Leahy, we believe that the 
     Senate has had sufficient time and possesses sufficient 
     information to vote on Miguel Estrada. More important, a 
     majority of Senators have indicated that they possess 
     sufficient information and would vote to confirm him.
       But if some Senators believe they must have more 
     information before they will end

[[Page 5015]]

     the filibuster of this nomination, we respectfully suggest 
     that there are three different and important sources of 
     information that have been and remain available and that 
     would appropriately accommodate the request for additional 
     information. We ask that you encourage interested Senators to 
     avail themselves of these sources as soon as possible.
       First, as I have written to you previously, individual 
     Senators who wish to meet with Miguel Estrada may and should 
     do so immediately. We continue to believe that such meetings 
     could be very useful to Senators who wish to learn more about 
     Mr. Estrada's record and character.
       Second, Senators who have additional questions for Mr. 
     Estrada should immediately pose such questions in writing to 
     him. We propose that additional questions (in a reasonable 
     number) be submitted in writing to Mr. Estrada by Friday, 
     February 28. Mr. Estrada would endeavor to answer such 
     questions in writing by Tuesday, March 4. He would answer the 
     questions forthrightly, appropriately, and in a manner 
     consistent with the traditional practice and obligations of 
     judicial nominees, as he has before.
       Third, Senators who wish to know more about Mr. Estrada's 
     performance and approach when working in the United States 
     Government--and, in particular, how that relates to his 
     possible future performance as a Circuit Judge--should 
     immediately ask in writing for the views of the Solicitors 
     General, United States Attorney, and Judges for whom Mr. 
     Estrada worked and ask them to respond by Tuesday, March 4. 
     In particular, interested Senators could immediately send a 
     joint letter to each of the following individuals for whom 
     Mr. Estrada has worked in the United States Government: Judge 
     Amalya Kearse, Justice Anthony Kennedy, former United States 
     Attorney Otto Obermaier, former Solicitor General Ken Starr, 
     former Solicitor General Drew Days, former Solicitor General 
     Walter Dellinger, and former Solicitor General Seth Waxman. 
     In our judgment, these men and women could provide their 
     views on Mr. Estrada's background and suitability to be a 
     Circuit Judge by March 4 without sacrificing the integrity of 
     the decisionmaking processes of the Judiciary, United States 
     Attorney's office, and Solicitor General's office. And their 
     views could assist Senators who seek more information about 
     Mr. Estrada.
       We believe that these sources of information, which have 
     been available for some time, would readily accommodate the 
     desire for additional information expressed by some Senators 
     who have thus far supported the filibuster of a vote on this 
     nominee. We ask that you encourage Senators who have objected 
     to the scheduling of a vote to avail themselves of these 
     sources of information. And we respectfully ask that the 
     Senate vote up or down as soon as possible on Mr. Estrada's 
     nomination, which has been pending for nearly two years.
       Please do not hesitate to contact me with any questions.
           Sincerely,
                                              Alberto R. Gonzales,
                                         Counsel to the President.

  Mr. HATCH. To my knowledge, no Senators have taken advantage of this 
offer, which makes me question how serious they are about the merits of 
Mr. Estrada's nomination, which brings me to another point. Mr. 
Estrada's hearing was held under Democratic control of the committee on 
September 26, 2002. If there was any question about the quality of Mr. 
Estrada's testimony, they could have held another hearing, since they 
controlled the committee for another 3 months.
  My colleague from New York has stated that, according to an article 
that appeared in the Legal Times in April 2002, D.C. Circuit Judge 
Laurence Silberman has advised President Bush's judicial nominees to 
``keep their mouths shut.''
  In fact, as the rest of the article explains, Judge Silberman simply 
explained that the rules of judicial ethics prohibit nominees from 
indicating how they would rule in a given case or on a given issue--or 
even appearing to indicate how they would rule.
  As the same article reported, Judge Silberman stated:

       It is unethical to answer such questions. It can't help but 
     have some effect on your decisionmaking process once you 
     become a judge.

  Mr. President, I ask unanimous consent that a copy of this article be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                Judge Nominees Told To Speak Very Softly


  On a panel last week, Silberman offered same advice he gave Antonin 
                                 Scalia

                          (By Jonathan Groner)

       President George W. Bush's judicial nominees received some 
     very specific confirmation advice last week: Keep your mouths 
     shut.
       The warning came from someone who has been a part of the 
     process: Laurence Silberman, a senior judge on the U.S. Court 
     of Appeals for the D.C. Circuit, told an audience of 150 at a 
     Federalist Society luncheon that he served as an informal 
     adviser to his then-D.C. Circuit colleague Antonin Scalia 
     when Scalia was nominated to the Supreme Court in 1986.
       ``I was his counsel, and I counseled him to say nothing [at 
     his confirmation hearings] concerning any matter that could 
     be thought to bear on any cases coming before the Court,'' 
     Silberman said.
       Silberman said his advice led to Scalia's speedy 
     confirmation by keeping the nominee out of trouble on Capitol 
     Hill. He also explained that the advice was intended to be 
     rather far-reaching.
       Scalia called Silberman at one point, the latter recalled, 
     and told him he was about to be questioned about his views 
     about Marbury v. Madison, the nearly 200-year-old case that 
     established the principle of judicial review.
       ``I told him that as a matter of principle, he shouldn't 
     answer that question either,'' Silberman said. He explained 
     that once a prospective judge discusses any case at all, the 
     floodgates open and he would be forced to discuss other 
     cases.
       ``It is unethical to answer such questions,'' Silberman 
     said. ``It can't help but have some effect on your decision-
     making process once you become a judge.''
       In contrast, Silberman said, ``my friend Bob Bork'' 
     ventured into the legal thickets and suffered for it. Bork 
     ``thought he could turn the confirmation process into a Yale 
     Law School classroom,'' Silberman explained.
       The Supreme Court nomination of Robert Bork, also a D.C. 
     Circuit judge, was defeated in 1987, party because Bork 
     expressed controversial views in this writings and on the 
     stand.
       Silberman went on to say that for many nominees, landing a 
     judgeship might not be the best result. Referring to a recent 
     Supreme Court decision not to review a case brought by judges 
     seeking pay raises, Silberman said that anyone who is not 
     already wealthy ``faces an immediate decline in his or her 
     real income'' if seated on the federal bench.
       ``The first prize is not to get a hearing,'' he noted. 
     ``The second prize is to get a hearing and not to be 
     confirmed. The third prize is to get confirmed.''
       Other panelists at the Federalist Society's discussion on 
     judicial independence were Sen. Joy Kyl (R-Ariz.), former 
     presidential counsel Fred Fielding of Wiley Rein & Fielding, 
     and moderator Stuart Taylor Jr. of National Journal.

  Mr. HATCH. This advice is consistent with Canon 5A(3)(d) of the ABA's 
Model Code of Judicial Conduct, which states that prospective judges:

     shall not . . . make pledges or promises of conduct in office 
     other than the faithful and impartial performance of the 
     duties of office . . . [or] make statements that commit or 
     appear to commit the candidate with respect to cases, 
     controversies or issues that are likely to come before the 
     court.

  Justice Thurgood Marshall made the same point in 1967, when he 
refused to answer questions about the Fifth Amendment during his 
confirmation hearing for the Supreme Court. He said:

       I do not think you want me to be in the position of giving 
     you a statement on the fifth amendment, and then, if I am 
     confirmed and sit on the Court, when a fifth amendment case 
     come up, I will have to disqualify myself.
  Mr. President, my remarks make it very clear that they were 
controversial nominees and these arguments are not worth the time they 
have taken to make them. I think it is time to quit making the very 
same type arguments and start talking about the truth.
  The truth is, we have a filibuster on our hands. One of the 
Democratic Senators even said on network TV 2 weeks ago they are not 
filibustering. Well, now we know they are. So let's let everybody in 
the country know that a double standard is being applied to Miguel 
Estrada.

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