[Congressional Record (Bound Edition), Volume 149 (2003), Part 5]
[Senate]
[Pages 6168-6178]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
go into executive session to 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.
  The PRESIDING OFFICER. The time until 12:30 p.m. shall be equally 
divided between the chairman and the ranking member of the Judiciary 
Committee or their designees.
  Mr. REID. Mr. President, I suggest the absence of a quorum and ask 
unanimous consent that the time run equally between both sides.
  The PRESIDING OFFICER. Without objection, the clerk will call the 
roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, what is the parliamentary situation?
  The PRESIDING OFFICER. The Senate is on the Estrada nomination.
  Mr. LEAHY. I thank the distinguished Presiding Officer.


                        Senator Graham's Return 

  I see the distinguished senior Senator from Florida in the Chamber. 
First, I will say on a personal basis, I am delighted to see him back. 
He is looking as healthy as he did before he left. I understand he is 
even more healthy now. For someone like myself who has probably a 
couple pounds more than I would like to be carrying, I noticed that he 
has found a way of losing a little weight. I suspect that what he has 
gone through is not something that is going to catch on with the 
various diet fads.
  I had a chance to chat with the distinguished senior Senator last 
night, and he not only sounds even healthier than when he left, but he 
has the same sense of verve and sense of humor as he had before he 
left.
  I yield to the distinguished Senator from Florida, if he would like 
to take the floor at this point, such time as he needs.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. GRAHAM of Florida. Mr. President, I extend to you and to my 
colleagues deep appreciation from me and my family for the many 
expressions of concern and best wishes which have flowed to us over the 
past 6 weeks. I report to the Senate that this is my second day back on 
the job since my operation. I feel increasingly strong and energetic, 
sufficiently so that I feel this is the time to come to the Senate 
floor and talk about the issue before us.
  Before I do that, I especially extend my appreciation to the 
Republican leader and our colleague and friend, Senator Bill Frist. As 
we know, before becoming a Senator, it was Dr. Bill Frist. He happened 
to be a cardiac surgeon. When it was clear to me I was going to have to 
have cardiac surgery, and when that fact became known by a number of my 
friends, I had an almost mountain of suggestions as to what I should 
do, where I should go, who the surgeon should be.
  Finally, my friend and former colleague, Connie Mack, called me and 
suggested I should talk to Senator Frist, who actually knows something 
about this, which I did. He gave me excellent advice and a substantial 
amount of reassurance. Then after the operation, while I was still in 
the hospital, he came and visited. That was a touching moment for Adele 
and myself that he would make that effort.
  I particularly thank Senator Frist for his display of humanity during 
this period.
  I am here to discuss my vote on the motion to invoke cloture on the 
nomination of Miguel Estrada to the District of Columbia Circuit Court 
of Appeals.
  It will be my vote today to not invoke cloture. I want to explain the 
reasons for this. There are many issues raised by this nomination. I 
consider the most fundamental issue is the issue of the independence of 
the judiciary. That has been a matter of concern to thoughtful 
Americans from before our country was a country.
  In the brilliant and Pulitzer Prize-winning book by David McCullough, 
``John Adams,'' John Adams is quoted from a paper he wrote called 
``Thoughts on Government.'' This was written before the War for 
Independence, anticipating that after a successful independence, there 
would be the need to establish a government. And these were some 
principles John Adams thought government should contain. Let me read 
one paragraph:

       ``Essential to the stability of government and to enable an 
     impartial administration of justice,'' Adams stressed, ``with 
     separation of judicial power for both legislative and the 
     executive, there must be an independent judiciary, men of 
     experience on the laws, of exemplary morals, invincible 
     patience, unruffled calmness, indefatigable application, and 
     should be subservient to none and appointed for life.''

  Those were the characteristics John Adams laid out as crucial to the 
essential stability of government and to have an able and impartial 
administration of justice. Those words, written before the war, then 
became the guiding star for our Founding Fathers at the Constitutional 
Convention in 1787.
  In order to preserve the political independence of judges, the 
Constitution provides they shall, as John Adams suggested they should, 
serve a lifetime appointment. In order to protect from economic 
intrusion into the judiciary, this Congress is prohibited from reducing 
the salary of judges, so that they will be free of intimidation. But 
maybe the most difficult issue the Constitutional Convention faced--and 
it was one of the last matters to be resolved by that convention--was 
how should judges secure their place on the bench. Up until the very 
end of the Constitutional Convention, the idea was that this Senate 
would directly appoint Federal judges. However, late concern arose that 
this very principle of the independence of the judiciary might be at 
risk if one branch were solely responsible for the appointment of 
Federal judges. And so a compromise was struck. That compromise was 
that the President would nominate persons to be Federal judges, and 
that the role of the Senate would be to advise and then consent, 
through the confirmation process, to those nominations.
  So the issue we are debating today--the relative role of the 
executive and legislative--is not a trivial issue. It goes to the 
heart, as John Adams said, of the stability of government, because

[[Page 6169]]

it goes to the independence of the judiciary.
  Having said that and having read some words from the 18th century, I 
would like to read you some words from the 21st century as printed in 
the New York Times Magazine of last Sunday. It is an article on one of 
our Federal intermediate appellate courts, a court of almost, but not 
quite, the same influence as the DC Circuit Court. One of its justices 
is J. Michael Luttig. It says this:

       Luttig told me that he thinks the politics surrounding 
     judicial appointments makes judges hyperconscious of their 
     political sponsors. ``Judges are told, `You're appointed by 
     us to do these things.' So then judges start thinking, well, 
     how do I interpret the law to get the result that the people 
     who pushed for me to be here want me to get?''

  Judge Luttig continued:

       I believe that there is a natural temptation to line up as 
     political partisans that is reinforced by the political 
     process. And it has to be resisted, by the judiciary and by 
     the politicians.

  Mr. President, I believe we are at a time when we are being called 
upon to resist an effort to inappropriately utilize the executive power 
to the exclusion of the legislative role in the appointment of Federal 
judges. I consider myself to be a pragmatist. I find very few things in 
life that are black and white. I do not think this issue is black and 
white.
  I have been dealing with this issue in another dimension over the 
past weeks of recuperation. In my State of Florida, we have had for 
over 20 years a process of nominating Federal judges through a citizen-
based judicial nominating commission. Persons who want to be a Federal 
judge in Florida submit their application to the judicial nominating 
commission, which reviews their submission and has personal interviews 
with those candidates that it believes are eligible for Federal 
judicial consideration. Then that commission used to recommend three 
people to the Senators. Senator Mack and myself worked for over 12 
years in a very collaborative, nonpartisan manner to determine what 
recommendations should be made to the President. Under the system now, 
the number of persons to be recommended will be increased from three to 
six, and the role Senator Nelson and I will play--recognizing the fact 
that we are Democrats and the administration is Republican--is we will 
review those six nominations and make a judgment as to whether, in our 
opinion, any of those nominations would have difficulty being confirmed 
by the Senate. If that is not the case, then all six will go to the 
President for his consideration.
  I highly commend to my colleagues the article I quoted from in The 
New York Times Magazine of March 9, 2003, written by Deborah Sontag.
  I ask unanimous consent that some materials about this recent 
agreement that has been reached between the White House, the chairman 
of the Florida Judicial Commission, and Senator Nelson and myself, 
which I believe will well serve the Federal judiciary and the people of 
Florida, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                         [News From Bob Graham]

         White House Commits To Honor Florida Nominating System


          Graham Says Judiciary Needs to Maintain Independence

       Washington (March 12, 2003).--Senator Bob Graham, D-
     Florida, announced today that the White House has committed 
     to honor Florida's non-partisan process for selecting 
     nominees for federal judgeships, federal prosecutors and U.S. 
     marshals. The agreement culminates months of discussion about 
     the importance of the role of the state's nominating 
     commissions.
       ``This is an important assurance from Chief of Staff Andy 
     Card that the White House will abide by the nominating 
     process that has allowed the federal court system in Florida 
     to retain public confidence and maintain its independence 
     from political influence,'' Graham said. ``For nearly two 
     decades, this merit-based process has produced judges and 
     other officials of the highest caliber, while allowing our 
     state to outpace the nation in filling vacancies. We need to 
     ensure that this tradition continues.''
       Graham released a letter from White House Chief of Staff 
     Andrew H. Card Jr., that reads, in part: ``I want to 
     reiterate that the President is committed to following the 
     commission process in Florida and intends to abide by the 
     rules of procedure of the Florida Federal Nominating 
     Commission, consistent with `the Constitutional and statutory 
     powers, duties, or prerogatives of the President of the 
     United States or the Senate in the filling of vacancies by 
     nomination and confirmation' (Rule 30).''
       Graham said it was agreed that the White House commitment 
     to following the reformed rules of the nomination process 
     will be prospective, meaning that persons already nominated 
     or who are under consideration for a vacancy will not be 
     subject to the new process.
       Upon receiving Card's letter, Graham said he would 
     encourage prompt consideration of and support before the 
     Senate Judiciary Committee the pending nominee for a District 
     Court judgeship in the Southern District of Florida, as well 
     as the nominees for U.S. marshal in the three federal 
     judicial districts in Florida.
       If confirmed, judicial nominee Cecilia M. Altonaga would be 
     the first Cuban-American woman to sit on the federal bench. 
     The pending nominees for U.S. marshal are Dennis A. 
     Williamson in the Northern District; Thomas Hurlburt Jr., in 
     the Middle District; and Christina Pharo in the Southern 
     District.
       ``My complaint has never been with the qualifications of 
     these individual nominees, but with the fact that the White 
     House deviated from the nominating process which has so well 
     served Floridians,'' Graham said.
       ``I am hopeful that, with the White House commitment, we 
     will to return to a selection process that gives assurances 
     of merit-based and non-partisan selection of jurists, 
     expedites non-partisan consideration of those jurists by the 
     Senate and maintains the independence of the judiciary.''
                                  ____



                                              The White House,

                                       Washington, March 12, 2003.
       Dear Senator Graham: Thank you for the numerous 
     opportunities to discuss our mutual efforts to ensure that 
     Florida's judicial vacancies are filled through an orderly 
     process.
       I know that you and Judge Gonzales have communicated 
     previously about the important work and role of Florida's 
     Federal Judicial Nominating Commission. I want to reiterate 
     that the President is committed to following the commission 
     process in Florida and intends to abide by the rules of 
     procedure of the Florida Federal Judicial Nominating 
     Commission, consistent with ``the Constitutional and 
     statutory powers, duties, or prerogatives of the President of 
     the United States or the Senate in the filling of vacancies 
     by nomination and confirmation'' (Rule 30).
       The Administration shares your desire to promptly fill the 
     federal judicial and United States Marshals vacancies in 
     Florida.
           Sincerely,
                                              Andrew H. Card, Jr.,
     Chief of Staff to the President.
                                  ____



                                          Colson Hicks Eidson,

                            Coral Gables, Florida, March 12, 2003.
     Hon. Bob Graham,
     U.S. Senate,
     Washington, DC.
       Dear Senator Graham: I want to thank you for your support 
     of the nomination of Judge Cecilia Altonaga for United States 
     District Court Judge for the Southern District of Florida.
       Your substantial personal involvement and leadership in the 
     nomination of Federal Judges, U.S. Attorneys and U.S. 
     Marshals, throughout your years of service in the United 
     States Senate, have been exemplary and have been responsible 
     for the high qualifications of the men and women who serve in 
     the three federal districts in the State of Florida. You have 
     my admiration and respect.
       With warm personal regards, I remain,
           Sincerely,
     Roberto Martinez.
                                  ____


                 [From the Miami Herald, Jan. 16, 2003]

           Florida's Judicial-Nomination Process Under Threat

                            (By Bob Graham)

       For more than a decade, through both Democratic and 
     Republican presidencies, Florida had an outstanding record of 
     filling federal judicial vacancies through a nonpartisan, 
     merit-based process.
       The process was driven by the judicial nominating 
     commissions, which took applications, interviewed candidates 
     and submitted three names for consideration for each judicial 
     vacancy. These commissions, appointed by the two senators, 
     were made up of volunteers who represented a cross-section of 
     our state: lawyers and lay persons, Democrats and 
     Republicans. Both Florida senators interviewed the three 
     finalists and passed their recommendations onto the White 
     House.
       The process worked. Over 10 years, we filled 26 District 
     Court vacancies without a single significant controversy. 
     Because of the confidence that the Senate Judiciary Committee 
     vested in the Florida judicial-nominating process, between 
     the 101st and 106th Congress, those vacancies were filled in 
     an average of 108 days. This compares to the average time for 
     all U.S. District Court vacancies of 151 days.
       The process attracted highly qualified candidates for 
     federal judicial vacancies. This is

[[Page 6170]]

     sometimes difficult because the open process makes all the 
     information submitted by the candidates publicly available. 
     However, because decisions were made on merit, candidates of 
     the highest quality from private practice as well as the 
     state courts and federal magistrates were attracted to apply.


                            Raising Concerns

       After George W. Bush became president, the process changed. 
     Now the governor, along with the most senior Republicans in 
     our state's congressional delegation, are responsible for 
     naming the nominating commission's members.
       While Sen. Bill Nelson and I can interview the candidates, 
     we cannot make recommendations to the White House anymore. We 
     can only indicate whether any of the candidates might 
     encounter difficulty in winning Senate confirmation.
       Since this new system has taken effect, there have been two 
     instances that raise concerns about the politicization of the 
     judicial-nominating process, threatening to undermine the 
     credibility of our judiciary.
       A year ago, the nominating commission announced groups of 
     three finalists to fill three U.S. marshals positions in 
     Florida, including one in the Southern District of Florida. 
     In March 2002, my office was informed that the three 
     finalists for the position in the Southern District were 
     being put aside in favor of a candidate who had not even 
     applied. This candidate has been renominated in the 108th 
     Congress and is now awaiting action by the Senate Judiciary 
     Committee.
       In February 2002, the Judicial Nominating Commission 
     announced that it had selected three finalists for a Southern 
     District court vacancy. The candidates included two state 
     circuit-court judges and the sitting U.S. attorney for the 
     Southern District, who were interviewed by the Judicial 
     Nominating Commission and found to be qualified. Nelson and I 
     informed the White House that, if nominated, any of the three 
     would be expeditiously confirmed.
       By April, however, the process took a mystifying turn. The 
     nominating commission's chairman informed the fellow 
     commissioners that the White House had requested three 
     additional names, effectively disregarding the three initial 
     candidates. A month later, at the direction of the governor 
     and two U.S. House members, the commission met again and 
     selected three new finalists. A nominee is expected from the 
     White House any day now.
       The qualifications of these three new candidates are not to 
     be questioned. Rather, the concern is the deviation from a 
     process that has been successful for more than a decade. The 
     independence and integrity of our judicial system are at 
     stake.
       The legal counsel to the president, Alberto Gonzalez, said 
     that the initial panel had been rejected because of 
     inadequate diversity. I found this surprising because half of 
     the federal court officers nominated in Florida by the 
     Republican-appointed Judicial Nominating Commission and 
     selected by the president were minorities.
       With this record, if this recent set of recommendations by 
     the Judicial Nominating Commission was found by the president 
     to be insufficient, what recommendation would Gonzalez make 
     to satisfy the diversity sought by the president?


                            PROUD TRADITION

       We must live up to the words said by former Florida Bar 
     President Herman J. Russamanno about our federal courts: 
     ``Florida has been blessed with competent, experienced, 
     compassionate and highly professional judges. These 
     distinguished individuals bring to the court the highest 
     standards and strong commitments to the administration of 
     justice.''
       I am committed to this proud tradition, which is why we 
     must honor a system of nonpartisanship and cooperation in the 
     selection of Florida's federal judges.

  Mr. GRAHAM of Florida. Having said that, I believe the standard for 
the kind of information the Senate has a right and a need for in order 
to be able to carry out its advise and consent function is not an 
ideological or even a precedential standard but, rather, a pragmatic 
standard. If a person has been, for instance, an academic and has 
written, as they typically do, extensive articles or books, there is 
some means by which you can get below and beneath the resume and get 
some feel of the person who is being considered.
  Similarly, if a person has been a judge at the State level, or at 
other levels within the Federal judiciary, it is likely that they have 
written opinions or other statements of their jurisprudential feelings 
which, again, would give you means by which to evaluate and cast an 
informed vote to consent to a Presidential nomination.
  I have been away from the Senate most of the time this matter has 
been under consideration. I do not serve on the Judiciary Committee, 
but colleagues whose judgment I respect have indicated they do not feel 
that as of today we have the information to, in an informed manner, 
provide that consent.
  I believe this is an issue upon which honorable men and women can 
reach agreement, just as after a series of negotiations, Senator Nelson 
and I have reached an agreement on the means by which the Florida 
judicial nominating process will be ordered and respected.
  I urge those of my colleagues who have been particularly involved in 
this to not see today's vote as the last chapter but, rather, as a call 
to find an honorable way to provide us with the information, given the 
status of this nominee and the dearth of information which might 
otherwise be available.
  Let me say, Mr. President, I find some irony in the issues with which 
this Senate is currently dealing. We may be at war as early as next 
week. This Senate has already voted to authorize that war. There have 
been a number of rationales submitted for the war.
  One of the rationales that has been recently advanced with a great 
deal of intellectual fervor has been the concept that by taking down 
Saddam Hussein, we could create a new climate throughout the region of 
the Middle East and that in that new climate could sprout the seeds of 
democratic institutions which would, in turn, lead to democracy. That 
would be a very admirable consequence.
  The irony is that at the same time we are hoping that our actions of 
war will lead to democracy in a region of the world thousands of miles 
away which has little history of democracy, we are today debating a 
process that, in my judgment, if not carefully balanced between the 
executive and legislative branches, has the prospect, as John Adams 
suggested, of destabilizing one of the key institutions of our more 
than two centuries of democracy.
  I return to my hope that people of good will can find a way to 
provide to this institution the information that it legitimately 
requires, and which the Constitution imposes upon us, to make an 
informed consent to the President's nomination.
  I offer as an example of that spirit of cooperation the good deeds 
that were extended to me by Senator Frist. Maybe some people who 
observe this debate observe the Senate in other highly partisan 
conflicts, such as the one we voted on earlier today, to believe that 
we are warring armies. Yes, we are people who have strong views and 
opinions, and we will express those views and support them with our 
votes. But we also are people who have a respect for our colleagues and 
a humanity towards them. I think this is the time to draw upon that 
respect and appreciation for humanity, as well as our responsibilities 
under the Constitution, to see if we can find a means to close this 
impasse and move on to the other important business of the Senate.
  Mr. President, I appreciate this opportunity. I again thank you and 
my colleagues for all the expressions of good will during my absence.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I thank my good friend from Florida for his 
statement. I again welcome him back. I heard in his absence statements 
from both Republicans and Democrats worried about him. I am glad to see 
him back. The Senator and his wife are dear and close friends of mine 
and my wife.
  Sometimes people forget the Senate is a family. There are only 100 of 
us. We tend to know each other and spend time with each other. No 
matter what political positions we take, we worry about each other's 
health. We talk about each other's children and where they are going to 
school.
  This is an example of those who were concerned about a very popular 
Senator. I am glad to see him looking in such great health. I welcome 
him back. I thank him, of course, for his very thoughtful statement. I 
am glad to hear the quotes from a book that I probably enjoyed as much 
as any in the last 10 years, David McCullough's book on John Adams. I 
do not own the publishing company or anything else, but I recommend 
that book to anyone who wants to read it.
  Mr. REID. Will the Senator yield for a question?
  Mr. LEAHY. Of course.

[[Page 6171]]


  Mr. REID. Mr. President, this is not a question, but I wish to say, 
Senator Graham and I came to the Senate together. I have been so 
impressed with Bob Graham his entire tenure in the Senate because he 
never does anything halfway; it is always all the way. Whenever he 
comes to the floor to speak, he is prepared and has thought about what 
he is going to talk about. Today is no different.
  Of course, I am happy to see him back stronger than ever and 
certainly wish him well in his ambitions politically, even though he 
may have had a slight setback, but knowing how hard the Senator from 
Florida works, I am sure he will catch up with the pack.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, it was just 2 days ago we welcomed the Vice 
President to the Senate for debate scheduled by the majority. I said at 
that time that I am always glad to see the Vice President here, even 
though it is a rare appearance for a Vice President of either party.
  I wish he had been here for debate about the impending war with Iraq. 
We are probably the only parliamentary body in the democratic world 
that has not had a major debate during the past few weeks on Iraq and 
the war. Or he might have been here for debate on terrorism or homeland 
defense or the need for action to stimulate the economy and improve the 
lives of the millions of Americans who have lost jobs over the last 2 
years. Actually, there are more Americans losing jobs in a 2-year 
period than I think has occurred since I have been old enough to vote. 
Or the Senate might have been acting on a prescription drug benefit for 
seniors.
  Apparently, we are not here to have that debate today nor did the 
majority schedule debate in the Senate on Tuesday on those important 
matters. Instead, we are here to hear again the arguments about Mr. 
Estrada. But not much has changed since last week or since this 
Tuesday. The administration's obstinacy continues to impede Senate 
consideration of this nomination.
  The distinguished Democratic leader, Senator Daschle, pointed a way 
out of this impasse in a letter to the President on February 11. It is 
regrettable the President did not respond to that reasonable letter to 
resolve the issue. Instead, the letter sent this week to the 
distinguished majority leader, Senator Frist, was not a response to 
Senator Daschle's realistic approach, but a further effort to minimize 
the Senate's role in this process by proposing radical changes in 
Senate rules.
  I have great respect for the Office of the Presidency, for whoever 
holds it. One thing I have learned in 29 years is that Presidents come 
and Presidents go. The Office of the Presidency exists with its 
responsibilities, its duties, its rules, its traditions. Just as 
Senators come and go. No Senator holds a seat for life. No Senator owns 
a seat in the Senate. But the Senate stays, and the Senate has its 
rights, and it has its privileges, and it also has its obligations. It 
has its constitutional duties.
  I have been in the Senate with six different Presidents. I have never 
been in the Senate with a White House that seems to have less 
understanding of the role of the Senate or more of a desire to overturn 
well over 200 years of practice and procedures in the Senate. I have 
never known a White House that thinks more just for the moment and not 
for the long term.
  This may be why we are fast approaching the point where, as some 
suggest, the White House may get half of its goal of regime change, but 
they may get it in Great Britain. But I digress.
  The real double standard in the matter of the Estrada nomination is 
that the President selected Mr. Estrada in large part based upon his 
4\1/2\ years of work in the Solicitor General's Office, as well as for 
his ideological views. The administration undoubtedly knows what those 
views are and have seen those work papers. They know what he did. They 
picked him based on that, but they said even though we picked him based 
on that, we do not want the Senate to know what it was. We in the 
Senate cannot read his work, the work papers that would shed the most 
light on why this 41-year-old should have a lifetime seat on the 
Nation's second highest court.
  We are to a point where the White House simply says, trust us, we 
know what he wrote and how he thinks and will make decisions, but we do 
not want you to know what he wrote, just rubberstamp him.
  Actually, I would remind them of that made-up quote that President 
Reagan used to such effect--I happen to agree with President Reagan on 
it--trust but verify. We would like to verify. President Reagan said, 
``Trust but verify.'' They say, trust us. We say, let us verify.
  So actually this whole matter is in the hands of the White House. 
They could move forward with Mr. Estrada easily if they wanted to. 
Instead, the White House has taken on the attitude that they want to 
carry out the responsibilities of the Presidency, as awesome as they 
are, but they also want to carry out the responsibilities of the 
Senate.
  I think they have their hands full carrying out the duties of the 
White House, with the impending war. We have millions of Americans out 
of work. We have a stock market that has tanked. We have runaway budget 
deficits. This is an administration that inherited the largest 
surpluses in history, and they are about to create the largest deficits 
in history; an administration that inherited a robust stock market, and 
we are about to see the stock market go to an all-time low. They have 
enough to worry about. Let us worry about carrying out the duties of 
the Senate.
  If they would simply cooperate, we could go forward with Mr. Estrada. 
I mention this because I do not want anybody to make a mistake. The 
control and the scheduling of whether there will be a vote on Mr. 
Estrada is in the hands of the White House.
  There seems to be a perversion to require the Senate to stumble in 
the dark about Mr. Estrada's views when he shared these views quite 
freely with others, and when the administration selected him for this 
high office based on these views.
  Justice Scalia wrote just last year:

       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.

  It was just a week ago that I thanked the Democratic leader and 
assistant leader and Democratic Senators for speaking and voting in 
favor of preserving the integrity of the confirmation process. We are 
acting to safeguard our Constitution and the special role of the Senate 
in ensuring that our Federal courts have judges who will fairly 
interpret the Constitution and the statutes we pass for the sake of all 
Americans.
  The administration's obstinacy continues to impede progress to 
resolve this standoff. The administration remains intent on packing the 
Federal circuit courts and on insisting that the Senate rubber-stamp 
its nominees without fulfilling the Senate's constitutional advice and 
consent role in this most important process. The White House could have 
long ago helped solved the impasse on the Estrada nomination by 
honoring the Senate's role in the appointment process and providing the 
Senate with access to Mr. Estrada's legal work. Past administrations 
have provided such legal memoranda in connection with the nominations 
of Robert Bork, William Rehnquist, Brad Reynolds, Stephen Trott and Ben 
Civiletti, and even this administration did so with a nominee to the 
EPA. Senator Durbin noted this week that the administration is giving 
Mr. Estrada bad advice. Instead, the administration should instruct the 
nominee to answer questions about his views--consistent with last 
year's Supreme Court opinion by Justice Scalia--and to stop pretending 
that he has no views.
  The White House is using ideology to select its judicial nominees but 
is trying to prevent the Senate from knowing the ideology of these 
nominees when it evaluates them. It was not so

[[Page 6172]]

long ago when then-Senator Ashcroft was chairing a series of Judicial 
Committee hearings at which Edwin Meese III testified:

       I think that very extensive investigations of each 
     nominee--and I don't worry about the delay that this might 
     cause because, remember, those judges are going to be on the 
     bench for their professional lifetime, so they have got 
     plenty of time ahead once they are confirmed, and there is 
     very little opportunity to pull them out of those benches 
     once they have been confirmed--I think a careful 
     investigation of the background of each judge, including 
     their writings, if they have previously been judges or in 
     public positions, the actions that they have taken, the 
     decisions that they have written, so that we can to the 
     extent possible eliminate people eliminate persons who would 
     turn out to be activist judges from being confirmed.

  Timothy E. Flanigan, an official from the administration of the 
President's father, and who more recently served as Deputy White House 
Counsel, helping the current President select his judicial nominees, 
testified strongly in favor of ``the need for the Judiciary Committee 
and the full Senate to be extraordinarily diligent in examining the 
judicial philosophy of potential nominees.'' He continued:

       In evaluating judicial nominees, the Senate has often been 
     stymied by its inability to obtain evidence of a nominee's 
     judicial philosophy. In the absence of such evidence, the 
     Senate has often confirmed a nominee on the theory that it 
     could find no fault with the nominee.
       I would reverse the presumption and place the burden 
     squarely on the shoulders of the judicial nominee to prove 
     that he or she has a well-thought-out judicial philosophy, 
     one that recognizes the limited role for Federal judges. Such 
     a burden is appropriately borne by one seeking life tenure to 
     wield the awesome judicial power of the United States.
       Although the Senate Judiciary Committee has long recognized 
     correctly, in my view, that positions taken as an advocate 
     for a client do not necessarily reflect the nominee's own 
     judicial philosophy, a long history of cases in which a 
     nominee has repeatedly urged courts to engage in judicial 
     activism may well be probative of a nominee's own philosophy.

  Now that the President is not a popularly elected Democrat but a 
Republican, these principles seem no longer to have any support within 
the White House or the Senate Republican majority. Fortunately, our 
constitutional principles and our Senate traditions, practices and 
governing rules do not change with the political party that occupies 
the White House or with a shift in majority in the Senate.
  Along with this current impasse, the administration has shown 
unprecedented disregard for the concerns of Senators in taking other 
unprecedented actions, including renominating both Judge Charles 
Pickering, despite his ethical lapses, and Judge Priscilla Owen, 
despite her record as a conservative ``activist'' judge. Both were 
rejected by the Senate Judiciary Committee after fair hearings and open 
debate last year. Sending these re-nominations to the Senate is 
unprecedented. No judicial nominee who has been voted down has ever 
been re-nominated to the same position by any President. This morning 
the Republican majority took another unprecedented step in holding a 
hearing on the re-nomination of Judge Owen, whose nomination had been 
rejected earlier by the committee. The White House, in conjunction with 
the new Republican majority in the Senate, is choosing these battles 
over nominations purposefully. Dividing rather than uniting has become 
their modus operandi.
  Among the consequences of this partisan strategy is that for the last 
month, the Senate has been denied by the Republican leadership 
meaningful debate on the situation in Iraq. I commend Senator Byrd, 
Senator Kennedy and the other Senators on both sides of the aisle who 
have nonetheless sought to make the Senate a forum for debate and 
careful consideration of our nation's foreign policy. The decision by 
the Republican Senate majority to focus on controversial nominations 
rather than the international situation or the economy says much about 
their mistaken priorities. The Republican majority sets the agenda and 
they schedule the debate, just as they have again here today.
  One of the most disconcerting aspects of the manner in which the 
Senate is approaching these divisive judicial nominations is what 
appears to be the Republican majority's willingness to sacrifice the 
constitutional authority of the Senate as a check on the power of the 
President in the area of lifetime appointments to our Federal courts. 
It should concern all of us and the American people that the Republican 
majority's efforts to re-write Senate history in order to rubber-stamp 
this White House's Federal judicial nominees will cause long-term 
damage to this institution, to our courts, to our constitutional form 
of government, to the rights and protections of the American people and 
to generations to come. I have served in the Senate for 29 years, and 
until recently I have never seen such stridency on the part of an 
administration or such willingness on the part of a Senate majority to 
cast aside tradition and upset the balances embedded in our 
Constitution so as to expand Presidential power. What I find 
unprecedented are the excesses that the Republican majority and this 
White House are willing to indulge to override the constitutional 
division of power over appointments and longstanding Senate practices 
and history. It strikes me that some Republicans seem to think that 
they are writing on blank slate and that they have been given a blank 
check to pack the courts. They show a disturbing penchant for reading 
the Constitution to suit their purposes of the moment rather than as it 
has functioned for over 200 years to protect all Americans through 
checks and balances.
  The Democratic Leader pointed the way out of this impasse again in 
his letter to the President on February 11. It is regrettable that the 
President did not respond to that reasonable effort to resolve this 
matter. Indeed, the letter he sent this week to Senator Frist was not a 
response to Senator Daschle's reasonable and realistic approach, but a 
further effort to minimize the Senate's role in this process by 
proposing radical changes in Senate rules and practices to the great 
benefit of this administration. A distinguished senior Republican 
Senator saw the reasonableness of the suggestions that the Democratic 
leader and assistant leader have consistently made during this debate 
when he agreed on February 14 that they pointed the way out of the 
impasse. Sadly, his efforts and judgment were also rejected by the 
administration.
  More recently, in its edition for next Monday, March 17, a writer in 
The Weekly Standard suggests that other Senate Republicans, ``several 
veteran GOP Senate staffers'' and ``a top GOP leadership aide'' asked 
the White House to shown some flexibility and to share the legal 
memoranda with the Senate to resolve this matter, but were rebuffed. I 
ask unanimous consent that a copy of the article from The Weekly 
Standard be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Weekly Standard, Mar. 17, 2003]

  Filibuster Si, Estrada No!--The Great Republican Divide Over How To 
                   Fight for Bush's Judicial Nominee

                           (By Major Garrett)

       It's not clear whether the constitutional definition of 
     ``advice and consent'' will become a casualty of Miguel 
     Estrada's fight for a seat on the D.C. Circuit Court of 
     Appeals, but the possibility is serious and sobering. In a 
     55-44 vote, Democrats last week defeated a Republican attempt 
     to break their unprecedented partisan filibuster of Estrada's 
     nomination, opening the way for the simple-majority standard 
     for Senate confirmation of judicial nominees to be replaced 
     with a super-majority requirement. The Republic isn't there 
     yet. But it's close.
       ``If we go very much further there will be obvious 
     consequences,'' said Sen. Jon Kyl, an Arizona Republican. 
     ``This standard will have to be applied to both parties and 
     by both parties. This is very close to the point where you 
     can't pull it back.''
       The strain on the Constitution and Senate precedent is now 
     obvious. Less obvious is the toll the Estrada fight has taken 
     on the relationship between the new Senate GOP leadership 
     team and the Bush White House. While GOP senators are loath 
     to admit it, the Estrada debate has drifted on this long 
     because the White House and the GOP leadership could not 
     fashion a cohesive strategy.
       Estrada is not the first fight new majority leader Bill 
     Frist would have chosen--at least not under the restrictions 
     imposed by the White House. Senate Republicans believe the 
     White House has severely limited their room to negotiate.

[[Page 6173]]

       Early on, several veteran GOP Senate staffers warned the 
     White House and Justice Department to prepare for a brawl. 
     They then gingerly asked two questions: Would Estrada answer 
     more questions from Democrats? And was there any flexibility 
     in the White House's objection to releasing the working memos 
     Estrada wrote while deputy solicitor general in the Clinton 
     Justice Department?
       Senior Senate GOP staff told White House and Justice 
     Department officials that cutting a deal on limited 
     Democratic access to Estrada's working papers could lead to 
     his confirmation. The White House refused. There would be no 
     access to Estrada's working papers. Period. This adamantine 
     posture, in the eyes of some in the Senate GOP leadership 
     circles, handcuffed Frist.
       ``There's some frustration,'' said a top GOP leadership 
     aide. ``From the very beginning we told them that was the 
     only way out and a face-saver for everyone. But it came down 
     to the fact that no one on the White House or Justice team 
     wanted to walk into the Oval Office and say to the president, 
     `You might have to give up these memos.'''
       The administration's position on the memos reflects its 
     deeply held ethic of aggressively defending executive branch 
     prerogatives. Though the White House has never characterized 
     the Estrada matter as one of executive privilege (it is more 
     akin to lawyer-client privilege), it falls into the broad 
     category of executive branch muscularity. And while most 
     Republicans generally support this posture, some Bush allies 
     on and off Capitol Hill have come to question the 
     administration's fastidiousness in the Estrada fight.
       ``I understand the principle, and I support it, but on this 
     one it feels belligerent,'' said a longtime Republican 
     lobbyist and ally of the Bush White House.
       When a reporter last week asked Sen. Rick Santorum, the GOP 
     conference chairman, if opposition to divulging Estrada's 
     Justice Department memos was permanent, he snapped, ``Ask the 
     White House.''
       Conservatives like Sen. Kyl see the Estrada fight as purely 
     ideological and strongly oppose cutting any deal on access to 
     his working papers.
       ``It's a phony issue, a manufactured issue,'' said Kyl. 
     ``We want to win this, but you don't win it by breaking a 
     principle that has served this nation well for 200 years. And 
     if we deal on the papers, it will be something else.''
       But Sen. Harry Reid, the Senate's No. 2 Democrat, has said 
     he will support Estrada if the papers are turned over and 
     nothing objectionable emerges. Enough Democrats to break the 
     filibuster would surely follow Reid, senior Democratic 
     sources say.
       ``Their guy's not going to get confirmed without them,'' 
     said a top Democratic lawyer who backs Estrada. ``This is not 
     complicated. The White House is not going to confirm him 
     without paying a price.''
       If that price seems too high, the White House may want to 
     reexamine the price of the alternative, an increasingly 
     bitter filibuster fight. While protecting the privacy of 
     internal memos at the Justice Department, the White House may 
     be sacrificing the 50-vote majority as the historic benchmark 
     of constitutional fitness for the federal bench. Some Senate 
     Republicans believe a new 60-vote standard for judicial 
     appointments could severely hamper this president and all 
     future presidents. And some Senate Republicans wonder why 
     it's more important to protect executive privilege than a 
     president's power to have judicial nominees confirmed by 
     simple majority vote.
       The White House wants the fight to drag out and political 
     pressure to build on centrist Democrats. The White House 
     likes the Hispanic dimension of the Estrada fight and is 
     counting on the weight of editorial and public opinion to 
     turn the tide.
       But numerous Republican senators say the Estrada fight, for 
     all its constitutional implications, has yet to resonate with 
     the public. Democratic senators report no political backlash 
     at home and see it as their duty to defend Daschle.
       ``This is an ideological fight, and this is a fight for 
     Daschle to be taken seriously,'' said a senior aide to a 
     Democratic senator who has teamed up with the White House on 
     economic policy. ``And my boss is with Daschle. He knows he's 
     taken, and will take, enough flak on fiscal policy. This is a 
     fight he's prepared to stick with.''
       Absent a deal on the working memos, all Estrada can bank on 
     is White House and Republican promises to fight until they 
     prevail. But no one in the GOP Senate leadership or the Bush 
     White House can explain how or when that will happen.
  Mr. LEAHY. It is too bad that the White House will not listen to 
reason from Senate Democrats or Senate Republicans. If they had, there 
would be no need for this cloture vote. The White House is less 
interested in making progress on the Estrada nomination than in trying 
to make political points and to divide the Hispanic community.
  The Supreme Court, in an opinion authored by none other than Justice 
Scalia, one of this President's judicial role models, instructs that 
judicial ethics do not prevent candidates for judicial office or 
judicial nominees from sharing their judicial philosophy and views.
  With respect to ``precedent,'' Republicans not only joined in the 
filibuster of the of Abe Fortas to be Chief Justice of the United 
States Supreme Court, they joined in the filibuster Stephen Breyer to 
the 1st Circuit, Judge Rosemary Barkett to the 11th Circuit, Judge H. 
Lee Sarokin to the 3rd Circuit, and Judge Richard Paez and Judge Marsha 
Berzon to the 9th Circuit. The truth is that filibusters on nominations 
and legislative matters and extended debate on judicial nominations, 
including circuit court nominations, have become more and more common 
through Republicans' actions.
  Of course, when they are in the majority Republicans have more 
successfully defeated nominees by refusing to proceed on them and have 
not publicly explained their actions, preferring to act in secret under 
the cloak of anonymity. From 1995 through 2001, when Republicans 
previously controlled the Senate majority, Republican efforts to defeat 
President Clinton's judicial nominees most often took place through 
inaction and anonymous holds for which no Republican Senator could be 
held accountable. Republicans held up almost 80 judicial nominees who 
were not acted upon during the Congress in which President Clinton 
first nominated them and eventually defeated more than 50 judicial 
nominees without a recorded Senate vote of any kind, just by refusing 
to proceed with hearings and Committee votes.
  Beyond judicial nominees, Republicans also filibustered the 
nomination of Executive Branch nominees. They successfully filibustered 
the nomination of Dr. Henry Foster to become Surgeon General of the 
United States in spite of two cloture votes in 1995. Dr. David 
Satcher's subsequent nomination to be Surgeon General also required 
cloture but he was successfully confirmed.
  Other Executive Branch nominees who were filibustered by Republicans 
included Walter Dellinger's nomination to be Assistant Attorney General 
and two cloture petitions were required to be filed and both were 
rejected by Republicans. In this case we were able finally to obtain a 
confirmation vote after significant efforts and Mr. Dellinger was 
confirmed to that position with 34 votes against him. He was never 
confirmed to his position as Solicitor General because Republicans had 
made clear their opposition to him. In addition, in 1993, Republicans 
objected to a number of State Department nominations and even the 
nomination of Janet Napolitano to serve as the U.S. Attorney for 
Arizona, resulting in cloture petitions. In 1994, Republicans 
successfully filibustered the nomination of Sam Brown to be an 
Ambassador. After three cloture petitions were filed, his nomination 
was returned to President Clinton without Senate action. Also in 1994, 
two cloture petitions were required to get a vote on the nomination of 
Derek Shearer to be an Ambassador. And it likewise took two cloture 
petitions to get a vote on the nomination of Ricki Tigert to chair the 
FDIC. So when Republican Senators now talk about the Senate Executive 
Calendar and presidential nominees, they must be reminded that they 
recently filibustered many, many qualified nominees.
  Nonetheless, in spite of all the intransigence of the White House and 
all of the doublespeak by some of our colleagues on the other side of 
the aisle, I can report that I believe the Senate will by the end of 
this week have moved forward to confirm 111 of President Bush's 
judicial nominations since July 2001. That total would include 11 
judges confirmed so far this year and of those, seven would be 
confirmed this week. With the time agreement on the controversial 
nomination of Jay S. Bybee to the United States Court of Appeals for 
the Ninth Circuit in place for later today, it also includes a circuit 
judge. Those observing these matters might contrast this progress with 
the start of the last Congress in which the Republican majority in the 
Senate was delaying consideration of President Clinton's judicial 
nominees. In

[[Page 6174]]

1999, the first hearing on a judicial nominee was not until mid-June. 
The Senate did not reach 11 confirmations until the end of July of that 
year. Accordingly, the facts show that Democratic Senators are being 
extraordinarily cooperative with a Senate majority and a White House 
that refuses to cooperate with us. We have made progress in spite of 
that lack of comity and cooperation.
  Indeed, by close of business today, we will have reduced vacancies on 
the federal courts to under 55, which includes the 20 judgeships the 
Democratic-led Senate authorized in the 21st Century Department of 
Justice Appropriations Authorization Act last year. That is an 
extremely low vacancy number based on recent history and well below the 
67 vacancies that Senator Hatch termed ``full employment'' on the 
federal bench during the Clinton administration.
  Our D.C. 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 work places 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 raise 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.
  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 that we could proceed to an up-or-down vote. 
Some on the Republican side seem to prefer political game playing, 
seeking to pack our courts with ideologues and leveling baseless 
charges of bigotry, rather than to work with us to resolve the impasse 
over this nomination by providing information and proceeding to a fair 
vote. I was disappointed that Senator Bennett's straightforward 
colloquy with Senator Reid and me on February 14, which pointed to a 
solution, was never allowed by hard-liners on the other side to yield 
results. I am disappointed that 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 reasonably and fairly. 
Republicans would apparently rather engage in politics.
  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 by the 
other side.
  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 a recent column by Thomas Mann of The Brookings Institute, to 
submit ``a more balanced ticket of judicial nominees 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 nominees that divide our Nation and, in 
this case, he has even managed to divide Hispanics across the country, 
unlike any of the prior nominees of both Democratic and Republican 
presidents. The nomination and confirmation process begins with the 
President, and I urge him to work with us to find a way forward to 
unite the Nation on these issues, instead of to divide the Nation.
  The presiding officer. The Senator from Utah.
  Mr. HATCH. Mr. President, this is the fifth week of debate on Mr. 
Estrada's nomination. My Democratic colleagues have had unlimited 
opportunities to make their case. Some of them oppose him; others 
support him. But one thing has remained clear through this debate: 
There is no good reason to continue this route of obstruction by 
denying Mr. Estrada an up or down vote.
  If my count is accurate, we have sought more than 17 times to come to 
an agreement with the Democratic leadership for a time to vote on Mr. 
Estrada's nomination. Each time, they rejected our efforts.
  Yet, the Democratic leadership has complained that the Senate should 
move on to consider other important matters. All the while, they have 
continued to fight voting on Mr. Estrada's nomination--the very thing 
that would allow the Senate to focus its energies on other matters.
  This filibuster of Mr. Estrada's nomination is just another step in a 
calculated effort to stall action on President Bush's judicial 
nominees. A few weeks ago, I spoke at length on the Senate floor about 
the Senate Democrats' weapons of mass obstruction. I mentioned that 
when the Democrats controlled the Senate, we saw them bottle up 
nominees in committee despite more than 100 vacancies in the Federal 
judiciary. They have continued to try to inject ideology into the 
confirmation process by demanding that nominees like Miguel Estrada 
answer questions that other nominees rightly declined to answer, but 
were nevertheless confirmed. They have sought production of all 
unpublished opinions of nominees who are sitting Federal judges--a 
demand that has resulted in the production of hundreds of opinions and 
required the expenditure of a significant amount of resources, money, 
effort, the time. Most recently, they have demanded that a nominee, Mr. 
Estrada, produce confidential internal memoranda that are not within 
his control. Although this tactic made its debut with Mr. Estrada, I 
expect that we will see it repeated with other nominees.
  Each of these weapons of obstruction were at their most potent when 
Democrats controlled the Judiciary Committee. Now things have changed, 
and Democrats can no longer keep nominees like Miguel Estrada bottled 
up in committee while they make demands for answers to questions that 
are unanswerable, and for confidential documents that are not subject 
to production. Democrats no longer control the committee, and as a 
result Miguel Estrada's nomination has made it to the Senate floor. 
This means that the obstructionists among the Senate Democrats have 
turned to their ultimate weapon--the filibuster.
  Filibusters of judicial nominees allow a vocal minority to prevent 
the majority of Senators from voting on the confirmation of a Federal 
judge--a prospective member of our third, coequal branch of government. 
It is tyranny of the minority, and it is unfair to the nominee, to the 
judiciary, and to the majority of the Members of this body who stand 
prepared to fulfill their constitutional responsibility by voting on 
Mr. Estrada's nomination.
  I have taken to the floor time and time again, for Democratic and 
Republican nominees alike, to urge my fellow Senators to end debate by 
voting to invoke cloture, which requires the vote of 60 Senators. Most, 
if not all, of these occasions did not represent true filibusters, but 
were situations in which nominees were nevertheless forced to overcome 
the procedural obstacle of a cloture vote. And no lower court nominee 
has ever been defeated through use of a filibuster--all previous lower 
court nominees who endured a cloture vote were ultimately confirmed.
  I am not alone in my disdain for forcing judicial nominees through a 
cloture vote. I think that it is appropriate at this point to note that 
many of my Democratic colleagues argued strenuously on the floor of the 
Senate for an up-or-down vote for President Clinton's judicial 
nominees.

[[Page 6175]]

  The distinguished minority leader himself once said:

       As Chief Justice Rehnquist has recognized: ``The Senate is 
     surely under no obligation to confirm any particular nominee, 
     but after the necessary time for inquiry it should vote him 
     up or vote him down.'' An up or down vote, that is all we ask 
     . . . .

  The ranking member of the Judiciary Committee echoed these sentiments 
when he said:

       . . . I, too, do not want to see the Senate go down a path 
     where a minority of the Senate is determining a judge's fate 
     on votes of 41.

  Another one of my Democratic colleagues, Senator Kennedy, himself a 
former chairman of the Judiciary Committee, had this to say:

       Nominees deserve a vote. If our Republican colleagues do 
     not like them, vote against them. But do not just sit on 
     them--that is obstruction of justice.

  The distinguished Senator from California, Mrs. Feinstein, who also 
serves on the Judiciary Committee, likewise said in 1999:

       A nominee is entitled to a vote. Vote them up; vote them 
     down.

  She continued:

       It is our job to confirm these judges. If we do not like 
     them, we can vote against them. That is the honest thing to 
     do. If there are things in their background, in their 
     abilities that do not pass muster, vote no.

  My other colleague from California, Senator Boxer, said in 1997:

       It is not the role of the Senate to obstruct the process 
     and prevent numbers of highly qualified nominees from even 
     being given the opportunity for a vote on the Senate floor.

  My colleague from Delaware, Senator Biden, also said in 1997:

       I . . . respectfully suggest that everyone who is nominated 
     is entitled to have a shot, to have a hearing and to have a 
     shot to be heard on the floor and have a vote on the floor.

  I could go on, but I think I have made my point. I had hoped that I 
could count on each of my Democratic colleagues who made statements 
supporting an up-or-down vote for President Clinton's judicial nominees 
to join me in voting for cloture on Miguel Estrada. I had hoped that 
their remarks in the past were not merely about partisanship, but about 
the fairness that should be extended to all judicial nominees, 
regardless of which President nominated them.
  Last week, I was wrong. But today, there is a second chance--another 
chance to set aside partisanship for fairness.
  For this cloture vote to succeed, a supermajority of 60 Senators must 
vote to end the filibuster of Mr. Estrada's nomination. I regret that 
it has come to this, because forcing a supermajority vote on any 
judicial nominee is a maneuver that needlessly injects even more 
politics into the already over-politicized confirmation process. I 
believe that there are certain areas that should be designated as off-
limits from political activity. The Senate's role in confirming 
lifetime-appointed article III judges--and the underlying principle 
that the Senate perform that role through the majority vote of its 
members--are such issues. Nothing less depends on the recognition of 
these principles than the continued, untarnished respect in which we 
hold our third branch of Government--the one branch of Government 
intended to be above political influence.
  So I now say once again to my Democratic friends: Vote for Miguel 
Estrada or vote against him. Do as their conscience dictates you must. 
But do not prolong the obstruction of the Senate by denying a vote on 
his nomination. Do not cast their vote against cloture today. Do not 
continue to treat the third branch of our Federal Government--the one 
branch intended to be insulated from political pressures--with such 
disregard that we filibuster its nominees. Do not perpetuate this 
campaign of unfairness. Vote for him or vote against him, but just 
vote.
  This first filibuster in the history of the Senate on a substantive 
judgeship for a circuit court of appeals nominee is unprecedented, 
something that should never happen, that we prevented from happening 
when I was chairman of the committee during the Clinton administration. 
My friends on the other side are using a fiction that they know the 
administration cannot fulfill, and that is demanding a fishing 
expedition into all of the papers in the Solicitor General's Office 
pertaining to Mr. Estrada's recommendations on appeals, certiorari, and 
amicus curiae. They know the administration cannot do that. They knew 
that when they wrote the letter making that unreasonable demand. This 
is what we call fiction, a red herring, so they can justify the 
filibuster they are undergoing and act very pious, that they are really 
trying to learn more about this man, in spite of the fact that they 
conducted the hearings.
  The hearings went all day. The transcript is almost 300 pages. They 
have all of his Supreme Court briefs. They have all of his Supreme 
Court arguments. They know more about Mr. Estrada than they know about 
any circuit court of appeals judgeship nominee we have had over the 
last 27 years that I have been in the Senate, as far as I know. There 
might be one or two they might know as much about as they do Mr. 
Estrada, but this is a fiction. It is a red herring. We have a letter 
from seven former Solicitors General, all living former Solicitors 
General, from Archibald Cox to Seth Waxman, four of the seven Democrat 
Solicitors General, three of who worked with Miguel Estrada in the 
Solicitor General's Office, because he worked, I might add, 4 years for 
the Clinton administration and 1 year for the Bush administration. 
Those former Solicitors General say these types of documents should 
never be given, because it would chill the ability of the Solicitor 
General to get honest and decent opinions on very important matters for 
the people's business, and the people's business does not make any 
delineation between Democrats and Republicans. The Solicitor General 
represents all of the people.
  I will now say a few words about Priscilla Owen before I go back to 
the hearing.
  I rise for the purpose of reading a Dear Colleague letter that I have 
written and distributed today concerning the nomination of Justice 
Priscilla Owen of Texas to be a judge on the US Court of Appeals for 
the Fifth Circuit. I have distributed this to every Senator in the 
Senate.

       Dear Colleague: On September 4 of last year I took the 
     unusual step of writing to the entire Senate to express my 
     outrage at the untruthful and misleading attacks made against 
     Justice Priscilla Owen of Texas, who was nominated by 
     President Bush to serve on the Fifth Circuit Court of 
     Appeals. As you know, Justice Owen enjoyed the support of 
     both of her home-state Senators last Congress, and again 
     enjoys such support. I am writing today so that you have all 
     information related to this important information.
       In September, I expressed my concern that a continued 
     pattern of misinformation about a nominee, like the one 
     generated about Justice Owen, could undermine the integrity 
     both of the judiciary and of the branch of government in 
     which we are privileged to serve. A day later, the Judiciary 
     Committee refused to allow Justice Owen a vote by the whole 
     Senate on a party-line vote of 10 to 9.
       Notably, one week later The Washington Post joined scores 
     of other newspapers across the country in expressing support 
     for Justice Owen and severely criticized the Committee's 
     conduct. I have enclosed its editorial. The Post described 
     the Committee's vote as ``a message to the public that the 
     confirmation process is not a principled exercise but an 
     expression of political power.'' The Post also noted that 
     although they disagreed with some of her opinions, ``none 
     seems beyond the range of reasonable argument.''
       Despite the independent support of dozens of newspapers, 
     prominent Democrats, and fourteen past Texas bar presidents, 
     critics have portrayed Justice Owen as being ``far from the 
     mainstream.'' Yet Texas voters have twice elected her 
     overwhelmingly to statewide office. The American Bar 
     Association has unanimously rated her well qualified, its 
     highest rating. In fact, Justice Owen was the first judicial 
     nominee with the ABA's highest rating to be voted down by the 
     Judiciary Committee.
       In my opinion, Justice Owen is perhaps the best sitting 
     judge I have ever seen nominated. She is brilliant as well as 
     compassionate. Justice Owen's record of applying the law as 
     written is among the very best of any judicial nominee ever 
     presented to the Senate. This is particularly true in her now 
     famous decisions concerning the Texas law requiring parental 
     notification when minor children obtain abortions. In these 
     cases, no one's right to choose was implicated. The only 
     right at stake was the right articulated by the Texas 
     legislature of parents to have knowledge of, and an 
     opportunity for involvement in, one of the most important 
     decisions of their children's lives. In those

[[Page 6176]]

     cases, Justice Owen did exactly what any restrained judge 
     should do: She applied Texas statutory law as directed by 
     Supreme Court's precedent, including Roe v. Wade. Ironically, 
     it is Justice Owen's opponents--the same ones who accuse her 
     of being an ``activist''--who would have her ignore the 
     legislature and the Supreme Court in order to reach a 
     political result.
       Justice Owen is also accused of deciding cases against 
     consumers, workers, and the injured and sick. This charge is 
     not only factually without basis, but also belies the 
     accusation of ``activism.'' Only those obsessed with 
     outcomes, rather than the law governing the facts of a 
     particular case, would be compelled by a mere counting up of 
     wins and losses among categories of parties before a judge.
       Working as a judge is like being an umpire; Justice Owen 
     cannot be characterized as pro-this or pro-that any more than 
     an umpire can be analyzed as pro-strike or pro-ball. I hope 
     you will agree that a judge's job is to apply the law to the 
     case at hand, not to mechanistically ensure that court 
     victories go 50/50 for plaintiffs and defendants, consumers 
     and corporations.
       Justice Owen was also notably assailed by her critics using 
     incorrectly the words of one of her biggest supporters, 
     Alberto Gonzales, President Bush's White House Counsel. Judge 
     Gonzales served with Justice Owen on the Texas Supreme Court 
     and has written publicly that she is ``extraordinarily well 
     qualified to serve as a judge on the federal appeals court.'' 
     Rather than focus on his ringing endorsement, however, 
     detractors instead sensationalized a disagreement that Judge 
     Gonzales had not with Justice Owen, but with other dissenting 
     judges in a case involving the Texas parental notification 
     law.
       Justice Owen is an excellent judge. Her opinions, whether 
     majority, concurrences, or dissents, could be used as a law 
     school text book illustrating exactly how an appellate judge 
     should think, write, and do the people justice by effecting 
     their will through the laws adopted by their elected 
     legislatures. She clearly approaches these tasks with both 
     scholarship and mainstream American common sense.
       As a new Congress takes a fresh look at this nomination, I 
     hope you will join me in informing the American people of the 
     truth about Justice Owen and in warning them of the grave 
     danger posed by an uninformed politicization of the federal 
     judiciary. I hope you will urge our colleagues to do the 
     right thing when Justice Owen is again voted on by the 
     Committee and goes to the Senate floor for confirmation.--
     Signed, Orrin G. Hatch.

  We are holding a hearing today on Justice Owen's nomination. I invite 
all of my colleagues to attend. In fact, I encourage them to do so. I 
want everyone to get to know Justice Owen and have the opportunity to 
hear from her firsthand. This is a very unusual invitation, I know. But 
these are unusual times in the Senate for judicial nominations, and 
Justice Owen is a particularly important and impressive nominee. I urge 
my colleagues to come to the hearing taking place in Dirksen 106 and 
see for themselves what an extraordinary person and jurist she is.
  We are having difficulty with the President's judicial nominees. 
Every one of these circuit nominees is being contested, some more than 
others, but all of them are quite rabidly being contested. Miguel 
Estrada is a perfect illustration of someone who is totally competent, 
totally equipped to do the job, honest, decent, has earned his stripes, 
has the highest rating from the American Bar Association, the gold 
standard, according to our colleagues on the other side. Yet he is 
being filibustered here now in the fifth or sixth week.
  We have a cloture vote today. I hope my colleagues will consider 
this. I hope we can get some of the more clear thinking colleagues on 
the other side to start voting for Mr. Estrada, to start voting for 
cloture, so we can end this outrageous debate and put a qualified 
person on the court. Let's not hide behind a fishing expedition to get 
documents they know no self-respecting administration is going to give 
to them, and using that as a basic shield to say they are not doing 
something unjust to Miguel Estrada. They are being very unjust, very 
unfair. It is not right. We ought to stop it.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. LOTT. Let me take this opportunity, first, to express my 
appreciation and the appreciation of the Senate for the outstanding 
work that is being done by Senator Hatch as chairman of the Judiciary 
Committee. That is a tough job. It always has been. It seems to be 
getting tougher with every passing Congress. I know from personal 
experience during my tenure as the Republican Leader, both in the 
majority and the minority, of the diligent work and good work that has 
been done by Senator Hatch to move judicial nominations through the 
process.
  Quite often, it was very difficult in the committee and on the floor. 
There have been accusations that, perhaps, he had unfairly delayed 
judges in the past. But I can tell you this: My knowledge was, and 
memory is, that he worked very hard to move a lot of judges, several of 
whom were highly controversial but were eventually confirmed anyway.
  Yes, at the end of the last term some judicial nominees of the 
Clinton administration were not completed, but if you compare the 
number that were left over to similar situations in the past, it was a 
smaller number. When you look at the number of judges that have been 
confirmed under the stewardship and leadership of Senator Hatch, it has 
to be a record in terms of overall numbers compared with previous 
chairmen and previous administrations.
  I will talk more about specifics, but while Senator Hatch is here I 
wanted to recognize the untiring and patient and effective efforts of 
the Senator from Utah on this very worthwhile effort.
  Mr. HATCH. Will the Senator yield?
  Mr. LOTT. I am happy to yield.
  Mr. HATCH. I thank my dear colleague for those kind remarks. As he 
knows, there have been some on our side that did not want hardly any of 
the Clinton judges, especially the more liberal ones, some of whom have 
gone to circuit court of appeals.
  Mr. LOTT. If the Senator will allow me to interject, I remember the 
Senator from Utah received some criticism from this side of the aisle, 
and so did I, as we tried to move some of these judges through the 
process. We may have voted against them, which I did in at least a 
couple of instances, but I thought they deserved a vote. And we made 
sure that those votes took place.
  Mr. HATCH. We did that.
  I thank my colleague because as the leader he helped me to do the job 
for the Clinton administration. The President deserved the best we 
could do. Do we get everything done? No one has ever gotten everything 
done at the end of anyone's administration.
  He is right. Our record was much superior to when the Democrats 
controlled the committee.
  I thank my colleague.
  Mr. LOTT. I again thank Senator Hatch for the effort. I remember even 
last year at one point I think we had approximately 70 judges on the 
calendar, a large number, and there was disagreement about how to 
proceed. There was an indication we would have to have a recorded vote 
on every one of them, even though many of them could be moved on a 
voice vote with no problem. It looked like we were not going to be able 
to move them, but Senator Daschle and I kept talking about them and 
kept working on it, and we began to move them in blocks. We finished 
the process and we had moved, I think, almost all of them, if not all 
of them. That was an example of how there can be cooperation in this 
very important area of confirmation of judges.
  Mr. HATCH. Will the Senator yield?
  Mr. LOTT. I am happy to yield.
  Mr. HATCH. I ask the Senator on our side, when he concludes, Senator 
Kennedy has 2 minutes. We yielded our time.
  Mr. LOTT. I will be happy to yield to the Senator from Massachusetts 
when I have finished my remarks.
  Mr. LOTT. Let me talk briefly about the situation we find ourselves 
in, specifically, the nomination of Miguel Estrada to be a DC Circuit 
Court of Appeals Judge.
  I made a brief speech about a month ago saying I thought this was a 
highly qualified candidate, one who had lived the American dream, 
having been born in Honduras, coming here when he was 17, and 
highlighting the phenomenal life he has lived. I thought it was a 
matter we would do pro forma. I assumed we would have some debate and 
some disagreement, but since he is a great nominee, I thought he would 
be confirmed a month ago or more. But here we are still.
  I will not go back and recount all of his qualifications. All the 
Senators

[[Page 6177]]

know, and most of America knows now, Miguel Estrada is certainly 
qualified to be a circuit court of appeals judge. He is qualified by 
education. He went to some of the best schools in America where he was 
Phi Beta Kappa, a Magna Cum Laude graduate, editor of the Harvard Law 
Review at that citadel of great conservative legal thinking. Now, he is 
accused of being conservative; a committed conservative, despite his 
broad background. He was editor of the Harvard Law Review, if you will. 
So by education he is qualified.
  There are some points and comments from the Federalist Papers, a 
couple of considerations, that you should look into when you consider a 
judge. One is whether or not they are fit in the area of character. 
This is a man that has lived an exemplary life. There is no allegation 
of impropriety, no allegation of ethical misconduct. None whatsoever. 
So by education, by character, by ethics, and by experience he is an 
incredible nominee.
  Some say he has not been a lower court judge. That is not always the 
criteria. We have a lot of people who have gone to the circuit court of 
appeals, even the Supreme Court, without having earlier been a judge in 
another court. But he has been involved by working with the Federal 
judiciary, and by serving as an Assistant to the Solicitor General. He 
has argued 15 cases before the Supreme Court. I have only been able to 
witness one case where I sat in the audience and listened to the snail 
darter case before the Supreme Court. Listening to the arguments in 
that one case was enough for me. I left and never returned. But surely, 
clearly, everyone in this body knows this man is qualified to be a 
judge on the circuit court of appeals.
  So what is the problem? What are they saying?
  There is the suggestion that maybe he has a certain philosophy or a 
certain ideology, and that is a disqualification. If that were a 
disqualification, there are many judges I voted on during the Clinton 
years and at other points during my service in this chamber whom I 
would have voted against. I voted for Justice Ruth Bader Ginsburg even 
though I didn't agree with her philosophy and knew I probably wouldn't 
agree with a lot of her decisions, but she was qualified. She was the 
President's choice.
  I think the burden is on the Senate to show why we should not confirm 
a nominee if they are qualified, have the proper experience, and don't 
have ethical problems. She met those criteria. I voted for her.
  What is the problem here? Some Senators want more questions asked? 
Alright, that is a legitimate point. It is part of the advice and 
consent role of the Senate. Let's hear what the nominees have to say.
  He had a long hearing before the Judiciary Committee. Every question 
in the world that could be thought of was asked of this nominee. He was 
asked hypothetical cases to which I personally would not respond. I 
thought that on a lot of things he was asked, he was very careful in 
how he responded. You don't want to prejudice your decision. You don't 
want to pass judgment on a Supreme Court decision on which your future 
decisions as a judge may be based. The number one factor for the Senate 
to keep in mind on this point, however, is that he has offered to meet 
with any Senator personally who wants to meet with him.
  Secondly, Senators on both sides have been told if you want to ask 
more questions, then submit the questions, and he will answer the 
questions.
  Finally, even a day or so ago, Senator Frist--against some advice 
that perhaps this pattern should not be started--said Mr. Estrada would 
be willing to go back to the Judiciary Committee so that interested 
Senators could ask him some more questions, with an understanding he 
would get a vote. Unfortunately, that offer was turned down, too. They 
say they want to ask him more questions, but when they are given a 
chance to meet with the nominee or a chance to ask more questions, they 
don't ask them. When we say he is willing to go back for another 
hearing under these circumstances--no, they don't want that either. 
What do they say they want? They want internal memos from the time that 
he was working as an Assistant to the Solicitor General.
  I believe that maybe something can be worked out on that. But you 
cannot set that precedent. Let me tell you why. If all these internal 
memos are made public in this instance, I guarantee future young 
attorneys in the Solicitor's Office, they will not be giving honest 
advice. No, no, they will pull their punches because they will know, 
anything I say in this written document may someday be used against me 
being confirmed as a Federal judge or in some other way. So this is not 
an insignificant request.
  Should we try to find a way to work it out? I think so. But then I 
have been accused in the past of trying to get things done.
  If everybody wants to make a statement around here to make their 
constituency happy, great. This is the way to do it. The People for the 
American Way and other liberal organizations--if Estrada is blocked--
they will be happy. These political reasons are why many Senators on 
the other side of the aisle are opposing Mr. Estrada, but I want to 
point out that there are some notable exceptions, and I hope there will 
be more.
  But on our side, we are able to say: This is an Hispanic nominee, and 
our core constituency groups are going to be happy. Republicans are 
happy, with us duking it out for this nominee to be on the Circuit 
Court of Appeals. Many will say that they are taking a stand, which is 
great.
  How great is it when he is not confirmed? That is the goal here. I am 
not interested in blaming somebody or appeasing someone on our side. 
This man is qualified. We have vacancies on this court that should be 
filled. It is irresponsible for us not to find a way to work this out 
and get this nominee on the court.
  So I say a pox on everybody's house if we are just trying to find a 
way to score political points with this man's life on hold while we do 
this thing that we are doing here. I really do think we are setting a 
dangerous precedent here, one we did not set in the past. We have not 
filibustered Federal judicial nominees. It is clearly not in the 
Constitution. I think advice and consent means 51 votes, not two-
thirds; not 60--51.
  You might say the Constitution doesn't make that clear. In the 
Constitution, article II, section 2, when the Framers of the 
Constitution were writing this out, when they intended supermajority 
votes, they said so. It clearly says in article II, section 2: To make 
treaties provided two-thirds of the Senators present concur. They 
specify two-thirds. When they said advice and consent, I believe they 
intended and expected, unless there were serious problems, that these 
nominees to the Federal judiciary would be confirmed with a vote, an 
up-or-down vote of 51.
  I think what we are doing here is questionable constitutionally. We 
have never done this on a district or circuit court nominee before. Now 
we are about to do it.
  Let me tell you what is scary. It may not be just about nominee 
Estrada. Next it is going to be Priscilla Owen. They are going to 
filibuster Priscilla Owen, a qualified woman who is a brilliant Supreme 
Court Justice in the State of Texas. I am sure they will extend it to 
other nominees, as well--maybe Sutton, maybe Cook, maybe Pickering. Is 
this a pattern?
  Who in this room, and outside this room, believes that this tit-for-
tat will not continue? Do they think that once we, Heaven forbid, ever 
have another Democrat President, that Republicans are not going to 
return the favor? We are going to filibuster them.
  We have to stop this. I think we, the leaders, the Republicans, the 
Democrats, past and present, have to assume responsibility for how this 
has continued to escalate.
  Did we do some things during the Clinton years with judges that we 
should not have done? Yes. But did we take up the cause and try to do 
the right thing on many occasions? Yes. That is why I am here today, 
because I do believe I have been a part of the solution and part of the 
problem in the past. I acknowledge it. But when I was the Majority 
Leader, I called up nominations that were controversial.

[[Page 6178]]

  I remember on one occasion we did have a threatened filibuster and a 
cloture vote which was defeated. I made a speech standing right there 
saying: My colleagues, we don't want to do this. This was a judge 
nominated by President Clinton, but really it was a judge whom Orrin 
Hatch recommended. His name was Brian Theodore Stewart. Unfortunately, 
though, cloture was defeated. So we started talking about that, and 
cooler heads prevailed. Shortly thereafter, we confirmed this judge. 
That was the only time we came close, during the past 7 years, to 
having a filibuster on a judge. We got right up to it, but we didn't do 
it, because we knew we couldn't do it and that it was wrong. So, 
fortunately we backed away from it.
  In terms of what was done in the past, again, I resisted filibusters. 
I didn't want to have filibusters, even though I voted against Judges 
Paez and Berzon on their up-or-down confirmation votes. But Senator 
Hatch and I took a lot of grief. We said, no, they have come out of 
committee, they deserve an up-or-down vote. They got the vote, and they 
were confirmed. They each got an up-or-down vote, not a filibuster. 
Some people thought they should have been filibustered. I didn't think 
they should have been, and they weren't.
  My colleagues, I ask us here today: Where do we go from here? What is 
next?
  The argument can be made that you filibuster a lot of different ways. 
You don't let them out of committee; I know about that approach. The 
last Congress, I know two judges who were defeated on a straight party-
line vote in the Judiciary Committee. They were not allowed to come to 
the floor to have a vote, and I believe the Constitution requires they 
should come here and have a vote, not be killed by 11 Senators in the 
Judiciary Committee, or 10, or whatever the number may be.
  So, I accept part of the blame. I acknowledge that Republicans have 
not always handled judges in the right way. But I ask the question 
again, what next? We are going to kill them in committee? We are going 
to kill them by filibuster? This is wrong, my colleagues. We should not 
do this.
  We are starting down a trail that is unfair, and it is going to come 
back to haunt this institution, haunt both parties, and damage the 
lives of innocent men and women.
  I urge my colleagues, find a way to move this judicial nominee, 
Miguel Estrada. He deserves better. He should be confirmed.
  Some people say: Wait, if we don't stop him now, he may be on the 
Supreme Court. Well let's test him. Let's confirm him. Let's see how he 
does. We might be surprised. We might even be disappointed. I have been 
surprised at times. I voted for a couple of Supreme Court Justices and 
wished I could take the vote back because when they got there, they 
were not what I thought they were going to be. Men and women can do 
surprising things when they become Federal judges for life.
  So I just felt a need to come down and recall some of the things that 
have happened, admit some of the mistakes, try to sober this 
institution up. This is a great institution that does pay attention to 
precedents. It does, sometimes, start in the wrong direction, but most 
of the time we pull ourselves back from the brink; we find a way to get 
it done. I hope and I certainly feel down deep we are going to find a 
way to not set this precedent and not defeat this qualified nominee 
with a filibuster.
  I yield the floor.
  Mr. KENNEDY. Mr. President, I want to make a brief response to the 
points made by our colleagues on the floor and in the press during the 
past week.
  It is not true that majority rule is the only rule in our country. 
The purpose of the great checks and balances under the Constitution is 
to protect the country from the tyranny of the majority. As far as 
shutting off debate in the Senate is concerned, majority rule has not 
been the rule since 1806. Even in our presidential elections, majority 
rule is not the rule, or we would have a different President today.
  There is nothing even arguably unconstitutional about the Senate Rule 
providing for unlimited debate unless and until 60 Senators vote to cut 
off debate. The same Constitution which gave the Senate the power of 
advice and consent gave the Senate the power to adopt its own rules for 
the exercise of all of its powers, including the rules for exercising 
our advice and consent power.
  The Constitution does not say that judges shall be appointed by the 
President as he wishes. It says that they shall be appointed by the 
President with the advice and consent of the Senate. We are not potted 
plants decorating one end of Pennsylvania Avenue. We play a very 
special role under the Constitution. The Founders gave us numerous 
powers to balance and moderate the powers of the President. They gave 
us longer terms than the President, and staggered our terms, so we 
would be less subject to the passions of the time. Clearly, we have the 
power and the responsibility to oppose the President when he refuses to 
provide us with the only documentation that can tell us what kind of 
person he has nominated for a lifetime appointment on the Nation's 
second highest court.
  The PRESIDING OFFICER. Under the previous order, the Senate will now 
proceed to the consideration of Executive Calendar No. 36, which the 
clerk will report.

                          ____________________