[Congressional Record (Bound Edition), Volume 149 (2003), Part 4]
[Senate]
[Pages 5394-5401]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will now go into executive session and resume consideration of 
Executive Calendar No. 21, which the clerk will report.
  The legislative clerk read the nomination of Miguel A. Estrada, of 
Virginia, to be United States Circuit Judge for the District of 
Columbia Circuit.
  Mr. REID. Madam President, I suggest the absence of a quorum and ask 
unanimous consent that the time be charged equally among the two sides.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. LEAHY. Madam President, what is the parliamentary situation?
  The ACTING PRESIDENT pro tempore. The pending question is the Estrada 
nomination. The Senator has 12 minutes under his control.
  Mr. LEAHY. I thank the distinguished Presiding Officer.
  Madam President, the Senate Judiciary Committee is meeting. I spoke 
to our distinguished chairman, Senator Hatch, who is still there, and, 
by mutual agreement, I have come to the Chamber to speak now, and then 
he will, of course, have his time preserved.
  Before I start, I thank both the Democratic leader and the assistant 
leader, Senator Reid, for their efforts to safeguard our Constitution 
and to protect the special role of the Senate in ensuring that our 
Federal courts have judges who will fairly interpret the Constitution 
and laws passed by Congress. We pass these statutes for the sake of all 
Americans, not just for Republicans, not just for Democrats--all 
Americans. I also thank all the Democratic Senators who have spoken on 
the floor or who have joined together to preserve the integrity of the 
confirmation process.
  What is at stake in this nomination is a lifetime appointment to the 
second highest court in the country. Most of the decisions issued by 
the DC Circuit in the nearly 1,400 appeals filed per year are final 
because the Supreme Court now takes fewer than 100 cases from all over 
the country. Our DC Circuit has special jurisdiction over cases 
involving the rights of working Americans, as well as the laws and 
regulations intended to protect our environment, safe workplaces, and 
other important Federal regulatory responsibilities. This is a court 
where privacy rights will either be retained or lost, and where 
thousands of individuals will have their final appeal in matters that 
affect their financial future, their health, their lives, and their 
liberty, as well as the lives of their children and generations to 
come.
  If a nominee's record or responses raises doubts or concerns, these 
are matters for thorough scrutiny by the Senate, which is entrusted to 
review all of the information and materials relevant to a nominee's 
fairness and experience. No one should be rewarded for stonewalling the 
Senate and the American people. Our freedoms are the fruit of too much 
sacrifice to fail to assure ourselves that the judges we confirm will 
be fair judges to all people and in all matters. No one should have a 
lifetime appointment as a gift because they stonewalled the Senate.
  It is unfortunate that the White House and some Republicans have 
insisted on this confrontation rather than working with us to provide 
the needed information so we could proceed to an up-or-down vote.
  Some on the Republican side are having too much fun playing politics, 
seeking to pack our courts with ideologues or leveling baseless charges 
of bigotry, to work with us to resolve the impasse over this nomination 
by providing requested information and proceeding to a fair vote.
  I was disappointed that Mr. Bennett, the distinguished Senator from 
Utah, in his honest colloquy with the distinguished Senator from 
Nevada, Mr. Reid, and me on February 12, which pointed to a solution, 
was never allowed to go forward by hard-liners on the other side. I am 
disappointed all my efforts, and those of Senator Daschle and Senator 
Reid, have been rejected by the White House. The letter that Senator 
Daschle sent to the President on February 11 pointed the way to 
resolving this matter. The responses we got showed me that they would 
rather engage in politics at the White House.
  The Republican majority is wedded to partisan talking points that are 
light on facts but heavy on rhetoric. There has often been an absence 
of fair and substantive debate and a prevalence of name calling that 
has offended many. At the outset of this debate, I called for an 
apology for remarks calling Democrats ``anti-Hispanic'' and I urged 
debate on the merits. Unfortunately, the Republican name calling 
continued, and those attacks were extended to include members of the 
Congressional Hispanic Caucus, some of the highest and most respected 
Hispanic elected officials in the Nation, and other Hispanic 
organizations and leaders that oppose this nomination. That is 
extremely disappointing.
  Our sincere concerns have been distorted and then dismissed. So in 
these closing moments before the cloture vote, let me puncture some of 
the Republican myths about this nomination and this process.
  First, Republicans rely on a letter from former Solicitors General 
stating a policy preference that did not acknowledge past precedent. 
Republicans claimed, in fact, that our request for memos written by 
this judicial nominee was unprecedented. That is false. And, during the 
course of this debate, even the administration had to concede their 
claim was false.
  The smoking gun was a letter from the Reagan Department of Justice 
asking the Judiciary Committee to return similar memos written to the 
Solicitor General by lower level attorneys that had been provided ``to 
respond fully to the Committee's request and to expedite the 
confirmation process.'' This was done in another nomination but refused 
in this one. In fact, buried in the current administration's rejection 
of Senator Daschle's good-faith effort to resolve this impasse was the 
belated concession that other administrations had produced Solicitor 
General Office work papers and other legal memos in other nominations.
  But notwithstanding having admitted that, they misstated that 
precedent. They continued to misstate the precedent, claiming 
incorrectly that disclosures were predicated on allegations of 
misconduct by those past nominees. But past letters and records prove 
that the Senate requested, and the Reagan administration provided, 
internal documents such as Justice Department legal memos to and from 
William Rehnquist relating to civil rights and civil liberties, appeal 
recommendations by other attorneys to Robert

[[Page 5395]]

Bork in civil rights cases as well as other internal legal or policy 
memos he wrote, and a wide range of civil rights memos in Brad 
Reynold's nomination for a short-term appointment at the Justice 
Department. These were requested due to the Senators' interest in 
examining those writings and better understanding the nominees' views 
and approach to interpreting the laws as executive branch employees. 
The Senate's interest in examining those documents was not predicated 
on allegations of misconduct, and that interest was not diminished in 
any way by the opportunity to review other writings. Justice Rehnquist 
had written judicial opinions and dissents for 15 years, and Judge Bork 
had served for 6 years on the bench.
  The real double standard here is that the President selected Mr. 
Estrada based in large part on his work for 4\1/2\ years in the 
Solicitor General's Office, as well as for his ideological views. But 
then, having been picked because of his ideological views, the 
administration said the Senate may not find out what those views are. 
The administration also sought to deny access to the type of legal 
memos that had been provided in the past. The administration said the 
Senate could not examine Mr. Estrada's written work from that office 
making recommendations of what the law is or should be, even though 
these papers would shed the most light on his unvarnished views. They 
asserted that the Senate should not consider the very ideology it took 
into account in selecting a 39-year-old, with no academic writings as a 
lawyer or judicial opinions that would provide insights into his views, 
for a lifetime seat on the country's second highest court.
  This is a nominee well known for having very passionate views about 
judicial decisions and legal policy, well known for being outspoken, 
but he has refused to share his views with the very people charged with 
evaluating his nomination. There seems to be a perversion of values to 
require the Senate to stumble in the dark about his views, when he 
shares his views quite freely with others--certainly with insiders and 
people in the administration, and he has been selected for the 
privilege of this high office and for a lifetime position based on 
those same views that they want to keep hidden from the Senate. We are 
not asking him to pledge how he would rule but we cannot let a new bar 
be set that one cannot share views with the Senate without reading 
briefs, listening to oral arguments, conferring with colleagues and 
doing independent research. I think any concerned citizen or first year 
law student could mention a Supreme Court decision from the past 200 
years that may trouble him or her, but Mr. Estrada refused to answer 
even this question, among many, many others.
  This points to a second myth: That Mr. Estrada cannot answer 
questions about his views without violating judicial ethics. However, 
as Justice Scalia--one of President Bush's favorite Supreme Court 
Justices--wrote for a majority of the court just last summer, ``Even if 
it were possible to select judges who do not have preconceived views on 
legal issues, it would hardly be desirable to do so. `Proof that a 
Justice's mind at the time he joined the Court was complete tabula rasa 
in the area of constitutional adjudication would be evidence of lack of 
qualification, not lack of bias.''' Republican Party of Minnesota v. 
White, 122 S. Ct. 2528 (2002). This quote is from the majority opinion 
in a case about whether judicial candidates could share their views. 
This is a case that the Republican Party took all the way to the 
Supreme Court and won. Prior to this decision there may have been some 
ambiguity for judicial candidates about whether they could share their 
views, but this decision last year by Justice Scalia makes clear that 
judicial ethics do not prevent sharing of views.
  Third, Republicans have claimed that this debate on a judicial 
nomination was unprecedented. That is false as well. Republicans not 
only filibustered the Supreme Court nomination of Abe Fortas, they 
filibustered the nominations of Judge Stephen Breyer, Judge Rosemary 
Barkett, Judge H. Lee Sarokin, Judge Richard Paez and Judge Marsha 
Berson, among others. The truth is that filibusters and cloture votes 
on nominations and legislative matters and extended debate on judicial 
nominations, including circuit court nominations, have become more and 
more common through Republican actions. Of course, when they are in the 
majority, Republicans have more successfully defeated judicial nominees 
by refusing to proceed on them and then not publicly explaining their 
actions, and by allowing holds by one or a handful of Republicans to 
determine a nominee's fate, preferring to act in secret under the cloak 
of anonymity.
  The nomination of Judge Paez, a Mexican American nominated to the 
Ninth Circuit, illustrates quite clearly that the last filibuster of a 
circuit court nominee occurred on the Republican watch during the last 
administration. Judge Paez was first nominated in 1996 and Republicans 
refused to allow him an up or down vote on the floor of the Senate 
until he was finally confirmed in 2000, after his nomination had been 
pending for more than 1,500 days. In fact, his nomination had waited on 
the floor for an up or down vote for more than 20 months, 20 times 
longer than Mr. Estrada's nomination. After Republicans lost a cloture 
vote on March 8, 2000, they moved ``to indefinitely postpone'' his 
nomination. Chairman Hatch noted that such a motion was unprecedented 
following a cloture vote to end what he then acknowledged was a 
``filibuster'' of Judge Paez's nomination. Despite his concerns, 31 
Republicans--many of whom have been on this floor demanding an 
immediate up or down vote on Mr. Estrada's nomination and claiming that 
delaying a vote is unconstitutional--voted to postpone, in essence, 
forever a vote on Judge Paez's circuit court nomination. I think this 
recent example punctures the Republican myths about floor votes and 
filibusters.
  Fourth, Republicans claim that the debate on this nomination has held 
up other business of the Senate, blaming Democrats. That is false. The 
truth is that Republicans objected to turning to the economic stimulus 
package and funding for first responders when Senator Daschle sought 
that action last week. Instead, Republicans have been focused on 
ensuring a lifetime job for one man rather than addressing the need to 
stimulate the creation of good jobs for many Americans. During the 
course of this debate, Democrats have willingly proceeded to confirming 
a number of other judicial nominees of this President--including a 
Hispanic nominee to the district court in California--passing the 
omnibus appropriations bill, passing short-term continuing resolutions 
to fund the government, passing the Hatch-Leahy PROTECT Act against 
child pornography, and now debating the Moscow treaty. The reason the 
Senate has not done more is because Republicans have not asked the 
Senate to turn to such matters as Senator Biden's bill to grant asylum 
to Iraqi scientists and other bills.
  Fifth, Republicans have tried to create the impression that those who 
oppose this nomination are anti-Hispanic. That is false and they know 
it. The members of the Congressional Hispanic Caucus are not anti-
Hispanic, nor are the Mexican American Legal Defense and Education 
Fund, the Puerto Rican Legal Defense and Education Fund, the Latino 
labor leaders, the Southwest Voter Registration and Education Project, 
the California Chapter of the League of United Latin American Citizens 
(LULAC), the 75 Latino professors, the 15 former presidents of the 
Hispanic National Bar Association, the AFL-CIO, the Sierra Club, 
Dolores Huerta--the cofounder of the United Farm Workers of America--
Mario Obledo, Professor Paul Bender or the hundreds of other Americans 
who called or written in opposition to this nomination.
  Democratic Senators are not anti-Hispanic. This charge is as baseless 
now as it was when my religion, and the religion of other Democratic 
members on the Senate Judiciary Committee, was attacked by some of the 
Republican leadership. We ought to understand that people do not have 
these biases, baseless biases, that are being

[[Page 5396]]

ascribed by some in their zeal to win at any cost, just as we should 
not be attacking each other's religion. Democratic Senators have 
pressed for the confirmation of many Hispanics over the past ten years, 
including the confirmation of Judge Paez, Judge Sonia Sotomayor, Judge 
Julio Fuentes, Judge Kim Wardlaw, and Judge Jose Cabranes, just to name 
a few of the other Hispanics appointed to the circuit courts by 
Democratic or Republican presidents, in addition to Judge Hilda Tagle, 
Judge James Otero, and Judge Jose Linares, just to name a few of the 
Hispanic district court nominees over these years. In fact, Democratic 
Senators also pressed for Senate confirmation of Enrique Moreno, Jose 
Rangel, and Christine Arguello, who had been nominated to the circuit 
courts, and for many other outstanding judicial candidates on which the 
Republican Senate majority refused to proceed when they were nominated 
or renominated by President Clinton. Baseless Republican charges of 
bias prompted LULAC, an organization that initially endorsed the 
Estrada nomination, to disassociate itself from Republican statements.
  I urge the White House and Senate Republicans to end the political 
warfare and join with us in good faith to make sure the information 
that is needed to review this nomination is provided so that the Senate 
may conclude its consideration of this nomination. I urge the White 
House, as I have for more than two years, to work with us and, quoting 
from the column published yesterday by Thomas Mann of the Brookings 
Institute, submit ``a more balanced ticket of judicial nominee and 
engag[e] in genuine negotiations and compromise with both parties in 
Congress.'' The President promised to be a uniter not a divider, but he 
has continued to send us judicial nominations that divide our nation 
and, in this case, he has even managed to divide Hispanics across the 
country, unlike any of the prior judicial nominees of both Democratic 
and Republican Presidents.
  Madam President, I do not see others seeking the floor except for 
Senator Schumer. I ask unanimous consent that he be allowed 3 minutes.
  Mr. REID. Madam President, reserving the right to object, I want to 
say on behalf of all the Senators on this side of the aisle how much we 
support the ranking member of the Judiciary Committee, what a difficult 
job he has had, and what a tremendous job he has done. Senator Leahy 
has set an example for how a Senator should act. He has been a 
statesman through this and other battles. Speaking on behalf of Senator 
Daschle and for me, I am sure every Democratic Senator, we can't say 
enough that is good. I will let the Record rest on the fact that we are 
totally supportive of what you have done and how you have handled this, 
and we are proud of what you have done.
  If there is no one here, I certainly ask unanimous consent that 
Senator Schumer be allowed to speak until someone shows up for the 
Republican side.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from New York.
  Mr. SCHUMER. Madam President, let me add my accolades to our 
colleague and leader of the Judiciary Committee, Senator Leahy, who has 
done a terrific job. I thank Senator Leahy as well as Senator Daschle 
and Senator Reid for the remarkable unity in the Democratic caucus 
when, frankly, some of us felt we had to do something here and didn't 
really think it would come to fruition.
  Let me say the vote today boils down to one issue more than any 
other: Should the Senate have any role in the selection of judges to 
the Federal bench? It is that simple. It boils down to the simple fact 
that there has been an attempt here to obliterate the advise and 
consent process which the Founding Fathers regarded as one of the most 
important in the Constitution.
  This is not an argument about one man. This is not an argument about 
any particular issue. This is not even an argument about something I 
believe strongly, whether somebody's views should be taken into account 
before that person is appointed as a Federal judge.
  What has happened in the last several months has made a mockery of 
the advise and consent process.
  Mr. REID. Will the Senator yield for a question?
  Mr. SCHUMER. I am happy to yield.
  Mr. REID. Would the Senator agree with the statement made by 75 
Hispanic leaders around the country in a letter stating as follows:

       We want more representation from our community in the 
     courts, but not at such a high price. We accept liberal and 
     conservative thinkers among us, but Mr. Estrada is much more 
     than a conservative, he is an ideologue. We cannot support 
     the confirmation of an ideologue to such an important 
     position in our society. The cost is too high. We urge you 
     and the members of the Senate to oppose Mr. Estrada's 
     confirmation.

  Does the Senator from New York agree with that sentence?
  Mr. SCHUMER. I thank my colleague for asking the question. My view is 
yes. I don't want ideologues on the court, whether they be far right or 
far left. What ideologues tend to do is make law and not interpret the 
law. The bottom line is there are many people who know Mr. Estrada who 
say he is a mainstream conservative and he is not an ideologue who will 
try to bend the law to the direction of his beliefs; there are many 
others who say he is an ideologue who will bend the law to the 
direction of his beliefs.
  Going back to my first point, we have no way of ascertaining that one 
way or the other because Mr. Estrada has refused to answer in any kind 
of elucidating and forthright way questions that were asked of him 
throughout 9 hours of hearings, which I chaired, and because the only 
other place we can find what his views are is in his work papers at the 
Solicitor General's Office, which are being withheld even though there 
is no privilege. And those papers have not been withheld by any other 
nominees who have sought to be justices and garner other positions in 
the Government.
  Unless we wish to make the Senate simply a detective agency to find 
some useful indiscretion and eliminate a nomination or oppose a 
nomination, for that reason, then we should oppose Mr. Estrada.
  I say to my colleagues that the position of being on the Court of 
Appeals in the DC Circuit is one of the most important positions in the 
Government. Many might argue that those judges have more power than 
individual Senators. Can you imagine if we ran for reelection and we 
said we refused to answer questions about our views? Can you imagine 
how the public would react? They would say, whatever your views are, 
you have an obligation to tell us if you want to achieve a high office.
  If you read the papers of the Founding Fathers, the advise and 
consent process was the very way that views of nominees were to be 
ascertained. In fact, as Senator Kennedy elucidated in the Chamber the 
other day, for a long time the Constitutional Convention wanted the 
Senate to choose the judges but believed that the ability to choose 
would be too disparate, and instead they came to the decision that the 
President should choose them.
  But nowhere is it believed that the Senate should be a rubberstamp. 
Nowhere is it believed that the Senate should simply be a detective 
agency to find out if someone did something wrong. Our job is to figure 
out what kind of judge Mr. Estrada would be. We know he is a very 
bright man. That has never been disputed. We know he has a story of 
advancement. That has not disputed. But far more important than either 
of those things, do we know what his views are on the first amendment 
or the commerce clause? Do we know how he would approach cases that 
affect the environment, or workers' rights to organize, where the 
District of Columbia Circuit Court of Appeals is paramount? We don't 
want him to tell us how he would rule on a specific case, but the 
American people are certainly entitled to the views of this man in 
terms of how he would be a judge.
  Some on the other side say it is simply good enough for any nominee 
to say, I will follow the law. If that were

[[Page 5397]]

the case, we wouldn't be here; we wouldn't need the advise and consent 
process; the debate in Constitution Hall about how to choose judges 
would have been totally overruled.
  This is a historic moment in a very real sense. It is a moment when 
we are going to see if a third branch of Government--the one unelected 
branch of Government, which has awesome power--is going to be 
responsible to the people. To simply have Presidents choose judges is 
not what this country needs nor what the Founding Fathers intended, yet 
we are getting to that point right now.
  I urge my colleagues. I want to join my plea with Senator Leahy's. We 
have tried on this side. I have tried to understand. The Presidents are 
going to get their way almost all of the time. I have voted for 100 of 
the 106 judges who came before us. I daresay their philosophical views 
about government and all of these issues are quite different from mine. 
But as long as they are not out of the mainstream, as long as they 
won't approach being judges from an ideological point of view where 
they are making law rather than interpreting law, they deserve to be on 
the bench, if they have the other qualifications. We have no way of 
knowing right now. The American people have no way of knowing what kind 
of judge Mr. Estrada will be in terms of his views.
  For that reason, reluctantly, but firm in the conviction that we are 
right, we must oppose the nomination of Miguel Estrada, or at least 
oppose his moving forward until we get the kind of information that is 
necessary to determine what kind of judge he will be that is necessary 
in terms of the precepts of what the Founding Fathers outlined for this 
country.
  I yield the floor.
  Mr. LEAHY. Mr. President, some Republicans have stated that only two 
or a handful of editorials or op-eds support Democrats in their 
concerns about Mr. Miguel Estrada's nomination to the second highest 
court in the country. I would like to set the record straight by 
listing the 55 editorials and op-eds to date that express concerns 
about this nomination.
  Here is a list of the 22 editorials published to date expressing 
concerns about the Estrada nomination for a lifetime appointment to the 
D.C. Circuit:

     Straight Answers Would End Estrada Confirmation Delay, 
         (Daytona Beach News-Journal, 4/5/2003)
       (``As conservatives scream foul, they should remember that 
     the vacancy Estrada would fill exists because Republicans 
     blocked two of President Clinton's nominees. Neither was a 
     liberal ideologue. . . . [Estrada] has no judicial 
     experience. His views are unpublished since law school. He 
     has little experience in administrative law, none in 
     environmental law, although those areas make up the bulk of 
     the D.C. Court's docket.'')

     Partisan Warfare, (Rutland Daily Herald, 2/24/2003)
       (``It is [the Senators'] duty to advise and consent on 
     judicial, nominees, and Estrada has given them no basis for 
     deciding whether to consent. . . . [F]or the Senate to merely 
     rubber stamp the nominees sent their way by the White House 
     would be for the Senate to surrender its constitutional role 
     as a check on the excesses of the executive.'')

     Stealth Nominees Should Be Held Back, (The Post-standard 
         (Syracuse), 1/30/2003)
       (``Estrada helped George W. Bush win the presidency after 
     the disputed vote in Florida. At the Justice Department, he 
     wrote memos and opinions for the U.S. solicitor general. he 
     is a member of the arch-conservative Federalist Society and 
     reportedly mirrors Supreme Court Justice Antonin Scalia's 
     hard-right views.'')

     Weighing Miguel Estrada, (Staten Island (NY) Advance, 2/25/
         2003)
       ``(Presidents have long sought to extend their party's 
     political influence by packing the courts, to the extent 
     possible, with ideological soul mates. A good Senate grilling 
     and some foot-dragging are about the only tools available to 
     lessen the chance that those ideologues most capable of 
     mischief don't make it through the process to become 
     permanently ensconced on the bench. Mr. Estrada wouldn't be 
     up for nomination at all if the Republicans hadn't seen to it 
     that two of President Clinton's nominees were rejected. . . . 
     [H]e should not be allowed to ascend to the federal bench 
     until we know who and what he is. All he needs to do is speak 
     up and put himself on the record.'')

     Arkansas Times Editorial, (Arkansas Times, 2/21/2003)
       (``Like Thomas, Miguel Estrada is a member of a minority 
     group who would not have been nominated if he were not also 
     an extremist. He arrogantly refused to discuss his views with 
     the Senate Judiciary Committee, and the administration 
     blocked the release of records pertaining to his government 
     work that could shed light on his biases.'')

     Judicial Power Trip, (The Oregonian, 3/3/2003)
       (``Democrats mustn't cave on this. The fairness and 
     credibility of the nation's courts depend on senators' 
     finding a reasonable compromise. Moderates within the 
     president's party should also reconsider their lockstep 
     loyalty.'')

     Partisanship Is A Democratic Duty, (Minnesota Daily Editorial 
         2/18/03)
       (``Estrada's filibuster is not merely an expression of 
     partisan politics, it is a crucial link to maintaining the 
     viability of the Constitution.'')

     Rush To Judges, (Boston Globe Editorial, 2/15/03)
       (``It's crucial to evaluate candidates based on their 
     merits and the needs of the country. Given that the 
     electorate was divided in 2000, it's clear that the country 
     is a politically centrist place that should have mainstream 
     judges, especially since many of these nominees could affect 
     the next several decades of legal life in the United 
     States.'')

     Keep Talking About Miguel Estrada, (New York Times editorial, 
         2/13/03)
       (``The Bush administration has shown no interest in working 
     with Senate Democrats to select nominees who could be 
     approved by consensus, and has dug in its heels on its most 
     controversial choices. . . . Mr. Estrada embodies the White 
     House's scorn for the Senate's role'')

     Editorial: Battling over Federal Courts, (Milwaukee Journal 
         Sentinel, 2/27/2003)
       (``Bush is filling vacancies left open by the Republicans' 
     refusal to act on Clinton's nominees.'')

     Answers, Please: Nominee Estrada Refuses to Disclose Judicial 
         Views, Philosophies to the Senate, (Omaha World-Herald 
         Editorial, 2/13/03)
       (``Most judicial candidates won't, and shouldn't, give 
     their personal views on a broad-brush basis. . . . But 
     Estrada . . . went beyond that--refusing to discuss well-
     known prior cases because, he said, he had no firsthand 
     knowledge. Judicial philosophy is important as senators 
     consider an appointment to the court that has been called the 
     second most important in the land after the Supreme Court.'')

     Straight Answers Would End Estrada Confirmation Delay, 
         (Daytona Beach News-Journal Editorial, Mar. 5, 2003)
       (``This fight isn't over his ethnicity. It's not about his 
     resume. It's about Bush's hardnosed political machinations, 
     which thrust a nominee with no judicial record but a bad case 
     of lockjaw at Senate Democrats on the gamble that other 
     right-wing judicial appointees could be sneaked through the 
     confirmation process during the distraction. The strategy 
     worked at first but has since backfired.'')

     Evasive Estrada: Democrats Are Right To Balk at Bush's 
         Uncooperative Choice for a Key Appellate Judgeship, 
         (Newsday Editorial, 2/13/03)
       (``With so little to go on, Democrats in the Senate are 
     right to balk at rubber-stamping Estrada's nomination.'')

     The Argument About Estrada, (Dallas Fort Worth Star Telegram, 
         2/13/2003)
       (``President Bush has prolonged the animosity. His nominees 
     for appellate court posts have included legal theorists and 
     lower court judges whose positions have raised legitimate 
     concerns aside from the political squabbling. Sen. Orin Hatch 
     of Utah, now the Judiciary Committee chairman, promised to 
     improve the process when Republicans took control of the 
     Senate. His ``improvement'' was to schedule three appellate 
     court nominees for a single condensed hearing even though he 
     knew that Democrats wanted to question all of them at 
     length.'')

     Judicial Alarm: Without More Answers, Nominee Deserves 
         Filibuster, (Detroit Free Press Editorial, 2/11/03)
       (``Judges require evidence before they render verdicts. 
     Senate Democrats are equally entitled to more evidence of 
     Estrada's fitness before giving him the green light for the 
     second highest court in the land--and positioning him for the 
     U.S. Supreme Court.'')

     Streamrolling Judicial Nominees, (The New York Times 
         Editorial, 2/6/03)
       (``[T]he federal courts are too important for the Senate to 
     give short shrift to its constitutional role of advice and 
     consent. . . . [T]he administration should [not] be allowed 
     to act without scrutiny, and pack the courts with new judges 
     who hold views that are out of whack with those of the vast 
     majority of Americans.'')

     More Judicial Games From GOP, (Berkshire Eagle Editorial, 2/
         1/03)
       (``Senate Democrats . . . should not be bullied into 
     approving unqualified nominees and they shouldn't hesitate to 
     filibuster poor nominations if necessary.'')

     An Unacceptable Nominee, (New York Times Editorial, 1/29/03)
       (``Senators have a constitutional duty to weigh the 
     qualifications of nominees for the federal judiciary. But 
     they cannot perform

[[Page 5398]]

     this duty when the White House sends them candidates whose 
     record is a black hole. . . . The very absence of a paper 
     trail on matters like abortion and civil liberties may be one 
     reason the administration chose him. It is also a 
     compelling--indeed necessary--reason to reject him.'')

     Bush's Full-Court Press, (L.A. Times Editorial, 1/13/03)
       (``The Republican Party has long tried to have it both ways 
     on Race: ardently courting minority votes while winking at 
     party stalwarts who consistently fight policies to establish 
     fairness and opportunity for minorities. [M]any [of Bush's 
     nominees], including Texas Supreme Court Justice Priscilla 
     Owen, lawyers Miguel Estrada and Jay S. Bybee . . . share a 
     disdain for workers' rights, civil liberties guarantees and 
     abortion rights. Their confirmations would be no less a 
     disservice to the American people than that of Pickering. . . 
     . '')

     A Fair Hearing (St. Petersburg Times, 9/30/2002)
       (``At the age of 41 [Estrada] has limited work experience 
     and has not been a judge before, yet he is up for one of the 
     most important seats on the federal bench. His views on 
     appeal, certiorari and friend of the court recommendations 
     would provide insight into the way he interprets the law and 
     the rigor of his legal analysis.'')

     Picking Judges; Democrats Must Brace to Resist Bush and GOP's 
         Ideological Crusade, (Post-Standard Editorial (Syracuse, 
         NY), 11/20/02)
       (``. . . An upcoming test will focus on nominee Miguel 
     Estrada, a bright, relatively young lawyer who worked on 
     Bush's successful Supreme Court case in the 2000 election. He 
     is rumored to be in line for the next vacancy on the U.S. 
     Supreme Court. While Estrada has no record as a judge, he has 
     a long resume as an ideologically drive, partisan 
     conservative . . .'')

     The Courts' Wrong Turn, (Daytona Beach News-Journal 
         Editorial, Nov. 12, 2002)
       (``The last thing Democrats should do is whimper off and 
     let the slim majority have its way. Forty-seven senators out 
     of 100 is a minority by definition only. It is in fact a 
     solid block that Democrats can use--if they live up to their 
     mandate as an opposition party--to slow down the rightward 
     drift of the U.S. Supreme Court and the federal judiciary as 
     a whole.'')

  Here is a list of the 33 op-eds to date expressing concerns about 
Estrada's nomination for a lifetime appointment to the second highest 
court in the country:

     Estrada Tactics Show Bush Arrogance, (Arizona Daily Star, 3/
         1/2003)
       (``Nominees now come with an ideological stamp that 
     preordains their votes on important social issues. Bush has 
     brazenly crusaded to stack the federal bench with 
     conservatives who will tilt the law rightward far into the 
     future.'')

     Don't Let Mum Be the Word for Estrada, By Tisha R. Tallman 
         and Charles T. Lester Jr., (Atlanta Journal and 
         Constitution, 3/6/2003)
       (``It is also extremely hypocritical coming from Republican 
     senators who blocked several Hispanic judicial nominees from 
     even getting a hearing or a vote during the Clinton 
     administration. Clinton nominee Richard Paez was forced to 
     wait for four years; others, such as Enrique Moreno (Harvard 
     Law School 1982) and Jorge Rangel (Harvard Law School 1973), 
     never even had a committee hearing. Where was the outcry from 
     Estrada's friends during that blockade against good Hispanic 
     lawyers and judges? Under the Constitution, the Senate has a 
     very important role in confirming a president's nominees for 
     lifetime jobs as federal judges. It is an essential part of 
     our constitutional system of checks and balances. When you 
     have a White House that refuses to cooperate with senators of 
     both parties and resists any efforts to reach agreement on a 
     compromise plan for appointing more mainstream moderate 
     judicial nominees, senators must take a stand.'')

     Estrada Caught in `Poisonous' War Based on Ideology, By 
         Thomas E. Mann, (Roll Call, 3/5/2003)
       (``The only way to break this cycle of escalation is for 
     Bush to take pre-emptive action by submitting a more balanced 
     ticket of judicial nominees and engaging in genuine 
     negotiation and compromise with both parties in Congress. 
     That seems most unlikely.'')

     Are Estrada's Opponents Anti-Latino?, By Eduardo M. Penalver, 
         (Chicago Tribune 3/4/2003)
       ```Republican politicians have struggled to paint Estrada's 
     opponents as anti-Latino. . . . [T]here is not the least bit 
     of merit to the argument that to oppose Estrada's nomination 
     is to oppose the interests of the Latino community.'')

     Time for a Bigger Audience: Bench Nominees Who Tell the White 
         House Their Views Should Tell the Senate, Too, By Alan B. 
         Morrison, (Legal Times, 3/3/2003)
       (``[N]ominees should be obliged to tell the Senate whatever 
     they have already told the White House and Department of 
     Justice during the vetting process. That's only fair. And 
     it's also legal, as a very recent Supreme Court case 
     indicates.'').

     Justice Should Be Blind, Not A Mystery, By Nick Huggler, (The 
         Daily Barameter, 3/2/03)
       (``[T]he Democratic filibuster is not only justified, but 
     crucial, to ensure that Miguel Estrada is the man he says he 
     is and is not just a wild card shuffled into the deck. . . . 
     It's all about trying to stack the federal judiciary with 
     hard right-wingers and picking a Latino because Bush thought 
     it would be more palatable to senators and groups concerned 
     about who this guy might be and what he might do as a 
     judge.'')

     Estrada Tactics Show Bush Arrogance, By Marianne Means, 
         (Arizona Daily Star, 3/1/03)
       (``The court to which Estrada has been nominated is one of 
     the most influential in the country and is seen as a stepping 
     stone to the high court. There is no special case to be made 
     for Estrada beyond the president's insistence that the Senate 
     approved anybody he wants. Estrada is smart, but so are 
     hundreds of other lawyers. He has never been a judge or a law 
     professor. He refuses to express his views on important legal 
     issues, hiding extremist opinions he was known to hold in 
     prior legal posts. . . . If the Democrats don't hold firm on 
     this, their political goose will be cooked if Bush gets to 
     pick a Supreme Court justice.'')

     Here's What Less Experience Gets You, By Michael J. Gerhardt, 
         (The Washington Post, 3/2/03)
       (``[N]o one is entitled to be a federal judge simply 
     because he or she overcame adversity, attended a fine law 
     school and collected some solid work experience. Senators 
     have the legitimate authority to weigh the judgement of a 
     nominee who, if confirmed, will for years be entrusted with 
     the final word on many of the important regulatory and 
     constitutional questions that routinely come before the 
     Nation's second-most powerful court.'')

     No Free Pass To The Bench, By O. Ricardo Pimentel, (Arizona 
         Republic, 3/2/03)
       (``For the Bush administration, this isn't about trying to 
     get diversity on the court. That would be affirmative action, 
     a points system, a racial preference and a big no-no, 
     according to Bush. it's all about trying to stack the federal 
     judiciary with hard right-wingers and picking a Latino 
     because Bush thought it would be more palatable to senators 
     and groups concerned about who this guy might be and what he 
     might do as a judge.'')

     Bush's Court Appointments: Key To Stealth Attack on 
         Environment, (Daytona Beach News-Journal, 3/2/2003)
       (``The nomination of Miguel Estrada to a lifetime seat on 
     the U.S. Court of Appeals for the D.C. Circuit. . . . a 
     stealth candidate who could roll back major environmental and 
     public health safeguards. The difference party affiliation 
     and ideology have made in D.C. Circuit decisions, coupled 
     with the Bush administration's eagerness to unravel 
     environmental protection, should worry anyone who cares about 
     public health and the environment.'').

     Circuit Breaker: If You're Worried About Conservative Control 
         of the Federal Judiciary Keep Your Eyes on the District 
         of Columbia, By Chris Mooney, (The American Prospect, 3/
         1/2003)
       (``[G]iven the importance of the D.C. Circuit, those 
     appointed to the court should, at the very least, receive 
     more attention than judges named to other federal appellate 
     courts.'')

     A Defense of the Estrada Filibuster: A Judicial Nominee That 
         the Senate Cannot Judge, By Kevan R. Johnson, 
         (Findlaw.com, 2/27/2003)
       (``In the face of this stonewalling, a filibuster is 
     entirely appropriate. Indeed, it's fitting. Using a 
     procedural tool against a nominee who thwarts minimal 
     confirmation procedures, is only right. If Estrada wants the 
     Democrats to stop talking, he should offer to start. As a 
     nominee, that's what's required of him.'')

     Informed Consent of Judgeships, By Jon S. Corzine, (The Star-
         ledger (Newark) 2/26/03)
       (``This is about the White House asking the Senate to toss 
     aside its constitutional duty to take the measure of a 
     judicial nominee and make an informed decision about the 
     knowledge and character of a person asked to sit on the 
     nation's second-most important court.'')

     Close Look at Estrada Reveals an Ideologue, By Teresa Leger 
         de Fernandez, (Albuquerque Journal, 2/26/02)
       (``[W]here Estrada's views are known, he has proven himself 
     to be an ideologue who has such strong personal views against 
     recognizing fundamental constitutional and civil rights that 
     he could not serve as a fair an impartial judge. . . . 
     Defeating Estrada's nomination would not send a message to 
     Hispanics that ``only a certain kind of Hispanic need 
     apply.'' On the contrary, it would send the message that 
     everyone in America is judged by the same standard. If you 
     can not be fair and protect the basic constitutional rights 
     of the common person, you do not deserve to sit in a judicial 
     appointment.''

     The Estrada Facade: Behind the Starched Nominee, by Philip 
         Klint, (Tom Paine.com, 2/26/03)

[[Page 5399]]

       (``[W]hen White House counsel Alberto Ganzales appears on 
     Fox network and warns that the Democrats will lose the 
     support of the Latino community because of their filibuster, 
     he insults the hard-working Hispanic men and women who have 
     seen first-hand the effects of President Bush's ``compassion 
     conservatism,'' and who will likely see through the 
     attractive packaging to the ugly politicking that loom behind 
     Miguel Estrada's starched-shirt stroll down Nomination Street 
     U.S.A.'')

     Benching Congress: The Rising Power Of The Judiciary, By 
         Chris Mooney, (Tom Paine.com, 2/25/03)
       (``In the past decade we have witnessed an unprecedented 
     push among conservative judges to invalidate acts of Congress 
     on the basis of a radical reinterpretation of the 
     constitutional relationship between the states and the 
     federal government. . . . Why shouldn't Senators try to wrest 
     some of that power back? They can start with Miguel 
     Estrada.'')

     Republicans' Phony Fight for Estrada, By Craig Hines, 
         (Houston Chronicle, 2/25/03)
       (``[T]he Democrats' opposition is not wholly about payback. 
     It is about enough time to spotlight how Estrada fits into 
     President Bush's manifest determination to remake the federal 
     courts into flying squadrons of ideological buzz bombers 
     ready to drop their payloads on the Constitution . . .'')

     Estrada Would Destroy Hard-Fought Victories, By Dolores C. 
         Herta, (The Oregonian, 2/24/03)
       (``[J]udges who would wipe out our hard-fought legal 
     victories--no matter where they were born or what color their 
     skin--are not role models for our children . . . Members of 
     the Congressional Hispanic Caucus met with Miguel Estrada and 
     came away convinced that he would harm our community as a 
     federal judge.'')

     Estrada Fight's True Victor? Democracy, By Jay Bookman, 
         Deputy Editor, (Atlanta Journal-Constitution, 2/24/03)
       (``What's going on in Washington is a wonderful thing, 
     absolutely necessary and absolutely healthy. We are seeing 
     the U.S. Constitution at work, producing a struggle between 
     two branches of government--Congress and the president--that 
     in the end should have a moderating influence on the third 
     major branch.'')

     The Democrats and Mr. Estrada, By Robert Ritter, (Washington 
         Post, 2/23/03)
       (``The Feb. 18 editorial ``Just Vote,'' which criticized 
     Senate Democrats' tactics in trying to derail the nomination 
     of Miguel Estrada to the U.S. Court of Appeals for the D.C. 
     Circuit, was misguided. It is impossible for a senator to 
     properly give ``advice and consent'' without information 
     pertinent to Mr. Estrada, which has not been provided by 
     either the nominee or the White House. For this reason alone, 
     the nomination should be defeated.'')

     Stealth Attack On Environmental Court Decisions, By Doug 
         Kendall & Phillip Clapp, (Bangor Daily News, 2/21/03)
       (``The difference party affiliation and ideology have made 
     in D.C. Circuit decisions, coupled with the Bush 
     administration's eagerness to unravel environmental 
     protection, should worry anyone who cares about public health 
     and the environment.'')

     They Started It, By E. J. Dionne Jr., (Washington Post, 2/21/
         03)
       (``It's not good enough to say that the way out of this 
     politicized process is for Democrats to ignore the past and 
     cave in to the Republicans. To do that would be to reward a 
     determined conservative effort to control the courts for a 
     generation.'')

     Symmetry in Judicial Nominations, By Al Hunt, (Wall Street 
         Journal, 2/20/03)
       (``[A]s former Clinton Solicitor General Walter Dellinger 
     declares, `Whatever factor a President may properly consider, 
     senators, should also consider.' Since ideology clearly is 
     the guiding force behind the slate of Bush circuit court 
     nominees, it's perfectly appropriate for Senate Democrats to 
     use the same standard.'')

     How the Miguel Estrada Nomination Illustrates Our Out-of-
         Control Confirmation Process, And What We Can Do to 
         Improve the System, By Edward Lazarus, (FindLaw.com, 2/
         20/03)
       (``The President, as the first mover in the nomination and 
     confirmation process, started the problem. He is therefore 
     more culpable in creating the current stalemate, and 
     accordingly should back down.'')

     Judicial Extremism: a German Antidote, By Bruce Ackerman, 
         (L.A. Times, 2/19/03)
       (``[T]he Democrats should make it clear that they will 
     filibuster any nominee to the U.S. Supreme Court of similar 
     youth and inexperience to [to Estrada's]. They should insist 
     on justices with the maturity and record of moderation needed 
     to keep the court within the mainstream of American 
     constitutional values.'')

     Latino Would Set Back Latinos, (LatinoLA Forum, 2/11/2003)
       (``Individuals appointed to the federal bench, a lifetime 
     appointment, must meet basic requirements such as honesty, 
     open-mindedness, integrity, character and temperament. . . . 
     Estrada is an ideologue who hides his views and who is so 
     lacking in experience, we have little choice but to oppose 
     the nomination.'')

     Estrada's Omerta, By Michael Kinsley, (Washington Post and 
         Slate, 2/13-14/03)
       (``Obviously, Estrada's real reason for evasiveness is the 
     fear that if some senators knew what his views are, they 
     would vote against him. . . . [But] Hiding your views doesn't 
     make them go away.'')

     Stealth Attack On Environmental Court Decisions, By Doug 
         Kendall & Phillip Clapp, (Providence Journal, 02/27/2003)
       (``The difference party affiliation and ideology have made 
     in D.C. Circuit decisions, coupled with the Bush 
     administration's eagerness to unravel environmental 
     protection, should worry anyone who cares about public health 
     and the environment.'')

     Dems Must Stop Judge Picks, By Judy Ettenhofer, (The Capital 
         Times, 2/10/03)
       (``[R]eproductive choice is by no means the only right at 
     risk if all of Bush's right-wing judicial nominees are 
     confirmed. At a time when the president seems intent on 
     dismantling federal environmental laws, we need judges who 
     will not bow to corporate polluters. At a time when the 
     rights of immigrants are under attack . . . we need judges 
     who will rule with fairness and justice as their standards, 
     not conservative or religious ideology.'')

     Blind About Justices, By Robert F. Jakubowicz, (The Berkshire 
         Eagle Thursday, 2/6/2003)
       (``[S]enators who do not try to find out the views of 
     judicial nominees which will color their opinions as future 
     judges are neither performing their constitutional duty nor 
     serving the best interests of their constituents.'')

     Latino Would Set Back Latinos, By Antonio Hernandez, (The Los 
         Angeles Times, 2/5/03)
       (``Individuals appointed to the federal bench, a lifetime 
     appointment, must meet basic requirements such as honesty, 
     open-mindedness, integrity, character and temperament. . . . 
     Estrada is an ideologue who hides his views and who is so 
     lacking in experience, we have little choice but to oppose 
     the nomination.'')

     Justice Estrada--an Oxymoron?, By Matt Bivens, (The Nation, 
         2/4/03)
       (``Estrada's unwillingness to come clean is indeed reason 
     enough to reject him.'')

     Torpedo Judicial Activist (Arizona Daily Star, 2/3/03)
       (``[T]here is no way that Miguel Estrada, a Washington, 
     D.C. lawyer, should win nomination to the U.S. Court of 
     Appeals. Estrada, just one of the judge-activists that 
     President George W. Bush plans to appoint to the federal 
     bench.'')

     Don't Let Miguel Estrada On The Bench, (The Hartford Courant, 
         9/27/2002)
       (``President Bush's nomination of . . . Miguel Estrada . . 
     . is not about diversifying the federal bench. It is about 
     courting the Latino vote and moving a conservative agenda.'')

  Mr. REID. Madam President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The majority leader is recognized.
  Mr. FRIST. Madam President, I wish to at this point to use my leader 
time.
  Madam President, the debate on the Miguel Estrada nomination began 
February 5, just over a month ago. During that debate, lasting nearly 
100 hours, I have sought unanimous consent on 17 separate occasions to 
bring the nomination to a vote. Regrettably, those requests for consent 
have been denied--again, on 17 separate occasions.
  The Democrats have chosen to filibuster this outstanding nominee, 
who, as we all know, is a Hispanic immigrant who came to this country 
not speaking English but, through hard work, dedication, and the virtue 
of great capacity of study, achieved academic excellence. His peers, 
the American Bar Association, affirm his high qualifications.
  We know a majority in this body will vote to confirm Miguel Estrada 
if given the opportunity to do what really is our only request, and 
that is to have an up-or-down vote on this nominee. Yet the minority, 
even after the extended time of well over a month and nearly 100 hours 
of factual discussion on the floor, and despite his obvious 
credentials, the respect he has among his peers, his academic 
qualifications, his arguments before the Supreme Court, has blocked 
this simple up-or-down vote on this confirmation.
  My friends on the other side of the aisle--and we have heard it again 
and again--say we are really filibustering

[[Page 5400]]

because we don't have enough information; we want more information. 
That is one of the reasons I have tried to be as patient, as reasonable 
as possible to give that time so that information could be exchanged 
before resorting to the vote we will undertake in a few minutes. They 
say they wanted more information, and that is fine. We want to have the 
appropriate information in order to make a decision in terms of an up-
or-down vote. But, repeatedly, this nominee has said: I am available 
and I am ready, willing, and available to come by your office to 
discuss with you if there are further questions you might have.
  I suggest my colleagues who really feel--putting politics aside--they 
don't have enough information, pick up the phone and call the nominee 
and have him come by your office and visit and ask those questions, and 
then give us an up-or-down vote.
  We are about to vote on cloture. I hope it succeeds the first time. 
That is right. That is just. That is responsible. But if we need to, we 
will vote on cloture again and again.
  Let me be clear. The majority will press for an up-or-down vote on 
this nominee until Miguel Estrada is confirmed. The fight for justice 
is just beginning.
  I yield the floor.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The assistant 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.

  By unanimous consent the mandatory quorum call is waived.
  The question is, Is it the sense of the Senate that debate on 
Executive Calendar No. 21, the nomination of Miguel A. Estrada, of 
Virginia, to be United States Circuit Judge for the District of 
Columbia, shall be brought to a close?
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Florida (Mr. Graham) is 
necessarily absent.
  The PRESIDING OFFICER (Mr. Burns). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 55, nays 44, as follows:

                       [Rollcall Vote No. 40 Ex.]

                                YEAS--55

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Graham (SC)
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--44

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--1

       
     Graham (FL)
       
  The PRESIDING OFFICER. On this question, the yeas are 55, the nays 
are 44. Three-fifths of the Senators duly chosen and sworn, not having 
voted in the affirmative, the motion is rejected.
  Mr. REID. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BINGAMAN. Mr. President, I would like to take a few moments to 
discuss the recent cloture vote in relation to the nomination of Miguel 
Estrada to the Court of Appeals for the DC Circuit.
  The Constitution provides that the President shall nominate 
candidates for the Federal bench and the Senate shall give advice and 
consent regarding those candidates. We cannot yet proceed to a vote on 
this nominee because we take this constitutional obligation--not right, 
but obligation--seriously. An up-or-down vote on this nominee is 
premature, because we have yet to get disclosure of critical 
information regarding this nominee.
  I believe that it is our obligation to ensure that--to the best of 
our knowledge--each judicial nominee is capable of setting aside 
extreme views that he or she may hold when interpreting the law and 
deciding cases. We must do our best to ensure that the person will be a 
fair and impartial judge.
  Miguel Estrada may very well be able to do that. But before we can 
make that determination, we have a right to full disclosure of 
information that will assist us in ascertaining that this is the case. 
We have a right to expect the nomineee to be forthcoming in answering 
our questions, and we have a right to expect the administration to be 
cooperative in providing any information that is relevant to making our 
decision. The advice and consent process is not a rubber stamp but a 
meaningful process.
  Mr. Estrada is not a sitting judge and has not published any legal 
articles. Written judicial decisions and published legal writings often 
provide us with the evidence that we need to determine whether a 
nominee will objectively enforce the laws and the Constitution. We have 
neither here to guide us.
  Added to this, we have a situation where a person in the Solicitor 
General's Office who had direct supervisory authority over the nominee 
when he worked there, Mr. Paul Bender, has stated that he does not 
believe Mr. Estrada can be trusted to decide cases without being 
clouded by his extreme views. He said that Mr. Estrada was so 
``ideologically driven that he couldn't be trusted to state the law in 
a fair, neutral way . . . Miguel is smart and charming, but he is a 
right-wing ideologue.''
  Now this is just one man's opinion and certainly should not be 
dispositive, but it certainly gives us cause for concern and an even 
stronger desire to have access to all available information regarding 
Mr. Estrada's judgment and skills. We could judge for ourselves whether 
there is any basis for Mr. Bender's assessment of Mr. Estrada by 
reviewing the work that he did while working at the Solicitor General's 
Office. If we had the ability to do so, we could judge for ourselves 
whether the nominee objectively presented the facts and the law while 
working in that capacity, which would be a good indication of his 
ability to do so as a judge.
  To this end, my colleagues on the Judiciary Committee sought access 
to the memoranda written by Mr. Estrada to his superiors at the 
Solicitor General's Office on questions such as whether the United 
States government should appeal an adverse ruling to the Supreme Court 
or whether it should file an amicus brief in a case that the Supreme 
Court has decided to hear. The administration has categorically refused 
to provide these documents, despite the fact that it is accepted 
practices to make these types of documents available to the Senate in 
the context of a nomination inquiry.
  Initially, the administration refused to provide any of these work 
samples, incorrectly stating that it was the practice of the executive 
branch to do so. When my colleagues were able to

[[Page 5401]]

point out that in every prior case where similar work samples were 
requested they were provided, the administration claimed that were not 
officially provided but ``leaked'' to Congress. When my colleagues were 
able to demonstrate that in every prior case where similar documents 
were requested, the Department of Justice officially released them to 
Congress after an exhaustive search, the administration claimed similar 
documents were released previously only in order to clear up an 
allegation of wrongdoing, but again my colleagues on the Judiciary 
Committee demonstrated that this simply was not true. Prior precedent 
clearly demonstrates a policy of cooperation with respect to previous 
requests.
  The administration continues to refuse to provide any of the work 
products from the Solicitor General's Office despite the fact that 
there is no legal basis for their refusal and despite the fact that 
similar information was disclosed in every other instance that it was 
requested. We cannot help but be left with the feeling that there is 
something to hide in this case.
  We also might be able to make a judgment regarding the nominees's 
ability to be a fair judge through questioning the nominee regarding 
his judicial philosophy and regarding his analysis of previously 
decided cases. These questions are commonly asked of judicial nominees 
in order to examine whether the nominee's views are outside the 
mainstream and whether he can set his or her personal views aside in 
analyzing cases. When my colleagues on the Judiciary Committee pursued 
this practice, Mr. Estrada refused to provide meaningful answers to 
their questions. I have carefully reviewed the transcript from that 
hearing and am quite frankly amazed at Mr. Estrada's refusal to answer 
questions that many prior judicial nominees--both those nominated by 
Democratic and Republican Presidents--have answered as a matter of 
course.
  As I have mentioned before, this refusal is particularly perplexing, 
given that this same individual admitted that he asked similar 
questions of candidates for a clerkship with Justice Kennedy in order 
to ``ascertain whether there are any strongly felt views that would 
keep that person from being a good law clerk to the Justice.'' This is 
exactly what my colleagues on the Judiciary Committee sought to do with 
respect to Mr. Estrada. If this type of information is relevant to the 
process of hiring a Supreme Court law clerk, isn't it infinitely more 
important to the process of appointing an appellate judge--someone who 
has a lifetime appointment to the bench?
  It may be the case, that if this information were to be made 
available, I would support Mr. Estrada. I have voted in favor of 100 of 
the 103 nominees that President Bush has sent forward to the Senate 
since he took office. In many of these cases, I did not agree with the 
nominee's views on many issues. Nevertheless, I had enough information 
to determine that they were not out of the mainstream of American 
jurisprudence. I believe we have the right to have access to the 
information that we need to make that judgment on this nominee.
  It is unfortunate that before I finish that I feel I must respond to 
the allegations of some that the debate surrounding this particular 
nominee relates to his ethnicity. This is a preposterous notion. It is 
a smoke and mirrors argument designed to cloud the legitimate debate 
about the nominee's qualifications for the bench.
  To infer--or to outright state as has been the case--that my 
colleagues would be motivated by the fact that Mr. Estrada is Hispanic 
is outrageous. One need only look to recent history to see just how 
wrongheaded that notion is. During the last Democratic administration, 
over 30 Hispanics were nominated for judgeships. I supported all of 
them. Unfortunately, approximately one-third of them were not 
confirmed--and some didn't even get the courtesy of a hearing--due to 
opposition from some of my Republican colleagues. It was, in fact, 
during the last Democratic administration that the first Latina to 
serve at the district court level was confirmed. She continues to serve 
in my State.
  By contrast, this administration has nominated a total of eight 
Hispanics. Six of them have already been confirmed and are now serving 
on the bench and the other nominee is expected to move ahead as soon as 
the necessary paperwork is in order. That leaves only Mr. Estrada, and 
I have stated the reasons I feel it is inappropriate to go forward with 
his nomination.
  The debate in this case is about preserving the Senate's 
constitutional role in judicial nominations. It transcends this 
particular nomination because if we were to proceed to a vote after 
this nominee has refused to answer routine questions about his views 
and his judicial philosophy, and after the administration has refused 
to respond to a routine request for samples of this nominee's work 
product, we would essentially be conceding that the Senate's role in 
judicial nominations is that of providing a rubber stamp to the 
President's nominations. This is clearly not the role envisioned by the 
Framers of our Constitution.

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