[Congressional Record (Bound Edition), Volume 149 (2003), Part 6]
[Senate]
[Pages 8198-8208]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 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 hour of 1:30 
p.m. having arrived, the Senate will now go into executive session and 
resume consideration of Executive Calendar No. 21, which the clerk will 
report.
  The legislative clerk read the nomination of Miguel A. Estrada, of 
Virginia, to be United States Circuit Judge for the District of 
Columbia Circuit.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I understand the distinguished chairman is 
on his way over. As we have evenly divided time and time is running, I 
will begin and will yield when he arrives.
  We have another in a series of cloture votes on this divisive 
nomination today. Actually, nothing has changed significantly since the 
leadership forced the three previous cloture votes.
  I did read in the New York Times over the weekend that Mr. Estrada 
spoke about the memos he wrote as being perhaps somewhat divisive. 
Maybe that is why the White House does not want us to see them. The 
only reason we are having these problems is the administration has 
refused to bring forward the writings on which one could form an idea 
whether he should have a lifetime appointment to the second highest 
court in the country.
  The White House has had access to all these writings and they eagerly 
committed the political capital to go forward. But they don't want us 
to see them. The administration remains insistent that the Senate 
rubberstamp nominees without fulfilling the Senate's constitutional 
advise and consent role in this most important process.
  Everyone has known for a long time how to solve the impasse in the 
Miguel Estrada nomination. The Democratic leader's letter pointed the 
way back in early February. Some say that the administration is 
proceeding this way because they do not care whether he goes through or 
not. They think somehow it is a political issue. That is the problem if 
this administration continues in its efforts to politicize the Federal 
courts.
  There has been too much politicizing. The Federal courts are not a 
branch that belongs to either the Republican or Democratic party. They 
are not a branch of whoever is in the White House or in control of the 
Congress. They are the one independent branch of Government. They are 
supposed to be above politics, outside of politics, and yet in this 
case the White House could easily move forward with this nomination but 
is choosing to keep it in limbo. Unfortunately, too many Members are 
willing to dance to that tune.
  Remember, it says advise and consent not advise and rubberstamp. The 
administration and Mr. Estrada do not want to show Members his 
writings. This is part of the work and experience that made the White 
House such an eager supporter of him. The American people and their 
representative ought to know how he thinks and have the best basis to 
predict how he would act as a judge, whether as an ideologue or as an 
impartial judge.
  Past administrations--and I have been here with President Ford, 
President Carter, President Reagan, former President Bush, and 
President Clinton--they have all shown similar type writings to the 
Senate. We had nominations of Robert Bork, William Rehnquist, Brad 
Reynold, Ben Civiletti, and others. Even this administration did so for 
a nominee to the Environmental Protection Agency.
  We have had senior members in the Republican Party say they wish the 
White House would show some cooperation, as past White Houses have, to 
get forward on this. Instead, we continue being blocked by the 
administration's position when we should be going forward.
  Mr. DURBIN. Will the Senator yield?
  Mr. LEAHY. Of course.
  Mr. DURBIN. I thank the Senator for his service as ranking Democrat 
on the Senate Judiciary Committee. I would like to put the Senator from 
Vermont on the spot with a question.
  If the White House will allow these writings that are in controversy 
here by Miguel Estrada to be released to the Congress for review, and 
if we are then given a chance to review them, to bring Mr. Estrada for 
a hearing, if necessary, so we can ask questions, some of which he has 
not answered completely before, at that point would the Senator from 
Vermont personally urge the Democrats in committee to allow this 
process to move forward in an orderly fashion to consideration in 
committee, to a vote in the committee, and to a vote on the floor?
  Mr. LEAHY. I say to my friend from Illinois, of course I would. I 
have said this right along. I may or may not vote for Mr. Estrada based 
on what is in the writings, but I will never give a blank check to any 
President--I have not--Democrat or Republican. I want to know what is 
in there. After all, there have been statements by this person's 
supervisor that he did not fairly state the law in the course of his 
work. We should have the basis to determine the quality of his work.
  As the Senator from Illinois knows, when I was chairman of the 
committee, in 17 months we certainly moved far more of President Bush's 
nominees than the Republicans did when they were in the chair the 
previous 17 months for President Clinton. I believe that we actually 
moved more than the previous 30-month period under them. I did not 
allow the secret holds they had used extensively to block President 
Clinton's nominees. At times, they actually required 100 Senators to be 
for somebody before they would go through it.
  A former Republican leader accepted part of the blame for how the 
Senate came to this, and I appreciate him doing that. He acknowledged 
you filibuster a lot of different ways. The Republican majority often 
defeated nominees by making sure they were never given a hearing or a 
vote. I don't believe in that.
  If a nominee will go through the normal process, if the White House 
will stop playing games, if they will stop stonewalling, I am perfectly 
willing to go forward.
  Mr. DURBIN. I might say to the Senator from Vermont, if he will yield 
further, in my experience in trial practice before I was elected to 
Congress, one's curiosity was always raised when the party on the other 
side refused to disclose a document. You had to go to court and have a 
decision made by the judge in discovery as to whether they would be 
required to produce the document. You naturally believed, if they were 
holding back a document, then certainly it might be a document that 
would compromise their position or jeopardize their position.
  I would like to ask the Senator from Vermont, is it not a fact now 
that because of this long delay and because of this intransigence by 
the White House to release these documents, there is more and more 
curiosity as to what is contained in them? Here we have a nominee who, 
despite an excellent academic resume, really has little to show in 
terms of legal writings or things that give us an insight into why he 
should be selected for a lifetime appointment to the DC Circuit Court.
  I ask the Senator from Vermont, isn't it fairly obvious at this point 
that, if the White House will release these documents and start the 
orderly process, then we can have a final disposition of Mr. Estrada, 
just as soon as they respond?
  Mr. LEAHY. I would think so, I say to my friend from Illinois. Again, 
the point is the White House has had access to these papers. Surely 
they did a thorough review of this nomination. Surely someone in the 
administration must know what these documents contain if they are 
refusing to provide them and Republican Senators are asserting that 
they are ``privileged''. I would hope that no one, and certainly no one 
with legal training, would assert a privilege without knowing

[[Page 8199]]

whether it applies. My recollection is that the administration took 
several weeks to respond to our request for the documents. Surely they 
were not simply ignoring our request for those weeks. I would have 
assumed they were using that time to review the documents and determine 
what could be produced immediately and what might require further 
discussion. They want to put this young man, at 41 years old, on the 
second highest court in the land. But they don't want us to know about 
his legal work and judgment when he was working for the government. 
They are saying: We'll nominate; you rubberstamp. I am saying it is 
advice and consent. That has worked in the Constitution for all the 
history of this country and will continue to work.
  We had an example of internal Justice Department documents that were 
the work on another of the President's controversial nominees that have 
previously been produced to the Senate. At least the papers came forth. 
We find that she, working for a previous Republican administration, had 
strongly organized, in fact, went out of her way to help support a tax 
exemption for a college that discriminated against African Americans, 
discriminated against Catholics, discriminated against Mormons, took 
the most radical position, but was a darling of the Republican Party. 
Her nomination to a major court of appeals position by this 
administration is now pending. But at least we knew of her work and at 
least she could be questioned on it.
  I would say to my friend from Illinois that we began this because we 
were waiting for the distinguished chairman. He is here. I suggest I 
reserve the remainder of my time and yield to the distinguished 
chairman as I had agreed when we called off the quorum at the request 
of the Republican side.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. How much time remains on both sides?
  The PRESIDING OFFICER. The Senator from Utah has 15 minutes 
remaining. The other side has 6 minutes 30 seconds remaining.
  Mr. HATCH. Mr. President, this is the first true filibuster in the 
history of a circuit court of appeals nominee--the first one in 
history. It just has never happened before, no matter how controversial 
the nominee--and this one certainly is not controversial. They just 
haven't found anything to criticize him with, and that is the problem.
  The distinguished Senator from Vermont says he is not going to 
rubberstamp anybody. Don't anybody worry about that. The Democrats have 
not rubberstamped one of these judicial nominations of President Bush 
so far. In fact, they voted against a high percentage of President 
Bush's nominees.
  Frankly--ask all those who have gone through this process--it is an 
arduous, difficult, and in many ways a demeaning process as a result of 
the way my colleagues on the other side seem to be attacking these 
nominees.
  The White House has been accused of political games in putting Miguel 
Estrada up, and in not allowing fishing expeditions into the most 
sensitive documents in the Justice Department. Those documents are the 
appeal, certiorari, and amicus recommendations made by people such as 
Mr. Estrada while they are there.
  Seven living former Solicitors General have all said there is no way 
that any administration should give those documents to the Senate. I 
might add, four of those are Democrats, three of whom were Democratic 
Solicitors General with whom Miguel Estrada worked and for whom they 
had great affection. Seth Waxman, who is a great lawyer here in this 
town and a partisan Democrat, basically said Estrada has every 
qualification a person should have for the bench and basically said he 
did a good job while at the Department.
  I heard the distinguished Senator from Illinois say he has little to 
show in legal writings. What about the 15 briefs he has written for the 
U.S. Supreme Court? That is a lot of legal writings, more than almost 
any nominee we have had here in the history of my 27 years on the 
Judiciary Committee. What about all the appeal briefs he has written 
and the reply briefs he has written, not only on the Supreme Court but 
in the circuit courts of appeals? They have access to every one of 
those. What about all the written questions they have given him? Only 
two asked for them after the hearing, and then we agreed to provide him 
to answer more written questions, and only one or two have asked 
further written questions.
  There is no desire on the part of my Democratic colleagues to learn 
more about Miguel Estrada. There is a desire to find something they can 
hang their hat on to stop him because he is on the fast track to the 
Supreme Court, they believe. The best way they can show President Bush 
they are not going to have a conservative Hispanic on the court is by 
attacking Miguel Estrada, and that is what is behind this matter.
  Today we are debating a historic fourth cloture vote on the 
nomination of Miguel Estrada. No other Executive Calendar nominee, 
judicial or nonjudicial, has ever been subjected to four cloture votes 
in this body.
  Let me state that a clear majority of this body supports this 
nomination, as has been determined by the past three cloture votes. So 
it is regrettable that a minority of Senators have followed their 
script of obstructionism to prevent the Senate from concluding this 
debate on this nomination and allowing the Senate to proceed to a final 
vote. However, it is not surprising they have stalled this nomination. 
In September of last year, a Democratic staffer on the Judiciary 
Committee is quoted in The Nation magazine as saying:

       Estrada is 40, and if he makes it to the circuit then he 
     will be Bush's first Supreme Court nominee. He could be on 
     the Supreme Court for 30 years and do a lot of damage. We 
     have to stop him now.

  That, by the way, is a Democratic staffer on the Senate side.
  Mr. LEAHY. Will the Senator yield? Do you have the name?
  Mr. HATCH. I am not going to name names on the floor.
  Mr. LEAHY. Is this one of those unnamed sources?
  Mr. HATCH. Mr. President, I ask for the regular order.
  The PRESIDING OFFICER. The Senator from Utah has the floor.
  Mr. HATCH. It appears the real reason for the filibuster--I suggest 
to the distinguished Senator, just read The Nation magazine and you can 
find out for yourself. Why should I provide information to you anymore?
  It appears that the real reason for this filibuster is the threat of 
a Justice Estrada on the Supreme Court. Of course, I take issue with 
the assertion that Mr. Estrada would do any so-called damage on any 
court. In fact, I am confident that he would be a fair and unbiased 
judge who would follow the law. He would not be an activist, which is 
probably what this staffer meant when he said that Mr. Estrada would do 
a lot of damage. But I find it ironic that this staffer knew enough 
about Miguel Estrada last September to proclaim that he must be stopped 
at all costs, when some of my Democratic friends insist on continuing 
this filibuster because they allegedly do not know enough about his 
views. Read the Nation magazine. I think the real reason for this 
filibuster lies in the rest of the staffer's quote: That Mr. Estrada is 
a Supreme Court caliber attorney whose ascension to the Federal bench 
must be stopped now.
  This unparalleled filibuster is one of many weapons of obstruction 
designed to prevent the President from having his nominees fairly 
considered and voted upon by the Senate. This is according to a 
partisan game plan, developed and coordinated as early as April 2001, 
when, according to the New York Times, Senate Democrats met in a 
private retreat to forge a unified party strategy to combat the White 
House on judicial nominees. I would like them to deny this. I would 
like them to tell me The New York Times misquoted and didn't tell the 
truth here. They can't deny it. As one participant in the meeting 
stated, according to that press account, it was ``important for the 
Senate to change the ground rules'' on judicial nominations.
  One of the three noted liberals who coached Senate Democrats on 
changing the ground rules on judicial nominations was University of 
Chicago law

[[Page 8200]]

professor Cass Sunstein. Just the other day I came across a Yale Law 
Review article that Professor Sunstein co-authored in 1992 entitled The 
Senate, the Constitution, and the Confirmation Process. This article 
advocates a confirmation process in which the Senate plays a more 
aggressive and high-profile role. I found surprisingly familiar many of 
the principles he propounds in that article because I have heard a 
number of my Democratic colleagues also arguing for their adoption time 
and again in the Judiciary Committee and on the Senate floor.
  For example, Professor Sunstein says:

       [T]he criticisms of the current process are telling. 
     Supporters of the administration object that members of the 
     Senate, and private groups generally critical of the 
     Administration, expend enormous energy not in disinterested 
     inquiry but in trying to `catch' the nominee: to find some 
     statement in her record that reveals a belief so extreme as 
     to be `out of the mainstream.'

  When I read this statement, I thought it sounded familiar, so I took 
a look at the remarks of my colleague from New York Senator Schumer, 
when he chaired a hearing in June 2001 at which he argued that a 
judicial nominee's ideology should play a role in the confirmation 
process.
  Sure enough, here is what my good friend said:

       [T]his unwillingness to openly examine ideology has 
     sometimes led Senators who oppose a nominee to seek out non-
     ideological disqualifying factors, like small financial 
     improprieties from long ago, to justify their opposition. 
     This, in turn, has led to an escalating war of ``gotcha'' 
     politics that, in my judgment, has warped the Senate's 
     confirmation process and harmed the Senate's reputation.

  Professor Sunstein also argues that:

     [t]he senate should place the burden of proof--with respect 
     to character, excellence, and point of view--on the nominee.

  He continues:

       In exercising its consent power, the Senate is entitled to 
     reject nominees simply because they have not established that 
     they have the requisite qualities, even if there is 
     considerable uncertainly on that point.

  Well, as we all know, after Senator Schumer's hearing on ideology in 
the confirmation process, he held a second hearing arguing Professor 
Sunstein's precise point: That the burden of proving worthiness for 
confirmation should be on the nominee. In fact, this is one of the 
factors sustaining this filibuster: The ill-formed perception that 
Miguel Estrada has not proven that he deserves to be confirmed to the 
DC Circuit.
  Back to Professor Sunstein. He also says:

       The President, his opponents say, chooses `stealth' 
     nominees whom he has reason to believe are deeply 
     conservative, but whose views the Senate will not be able to 
     uncover.

  This, of course, is precisely how Senator Schumer characterized Mr. 
Estrada in The Nation magazine last fall. He said:

       Estrada is like a Stealth missile--with a nose cone--coming 
     out of the right wing's deepest silo.

  I have heard a number of my other Democratic colleagues join in the 
chorus of labeling Mr. Estrada a stealth nominee.
  Mr. President, I think I have made my point. This 1992 article 
written by Cass Sunstein provided the basis for the model that some of 
my Democratic colleagues are using to stall up or down votes on 
President Bush's judicial nominees, including Miguel Estrada. This 
filibuster is part of a coordinated attack designed to deny President 
Bush's circuit nominees a seat on the Federal bench.
  Don't get me wrong--Professor Sunstein is an unabashedly liberal law 
professor, and as such it can be argued that he has carte blanche, or 
even an obligation, to push the far-left envelope, which he regularly 
does. But this does not mean that my Democratic colleagues have an 
obligation to blindly follow him into the far-left. Some of them have 
refused to do so, and I commend them for that.
  For the others, I will repeat my sentiments which I stated here on 
the Senate floor just a few weeks ago. This historic cloture vote 
represents another opportunity for my Democratic colleagues to reverse 
course. This is the time to end their dangerous obstructionist tactics 
and grant Mr. Estrada the up or down vote any judicial nominee 
deserves. They are free to vote against confirming him if they truly 
believe that he has not answered their questions, or that his record is 
incomplete without examining the Solicitor General memoranda. But they 
should not continue to obstruct the will of the majority of this body 
that desires to give this nominee a vote.
  Mr. President, how much time remains on my side?
  The PRESIDING OFFICER. The Senator from Utah has 6 minutes 10 
seconds.
  Mr. HATCH. Mr. President, I reserve the remainder of my time.
  Mr. LEAHY. To date, there have been at least 77 editorials and op-eds 
in support of the position of Democratic Senators on the nominations of 
Mr. Miguel Estrada's nomination to the Court of the Appeals for D.C. 
Circuit. On March 6, 2003, I placed in the Congressional Record 
excerpts of the editorials and op-eds that had been published by that 
date, because Republicans had been asserting that there were only a 
handful of editorials or op-eds in support of our concerns. Here are 
some excerpts from 24 additional editorials and op-eds expressing 
concerns about Mr. Estrada's nomination, bringing the total to at least 
77. This controversial nomination continues to divide, rather than to 
unite, the American people.
  I ask unanimous consent to print in the Record excerpts of 24 recent 
editorials or op-eds, in addition to those printed last month.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Mar. 13, 2003]

                          Hold Firm on Estrada

       [Supporters] argued that handing over Mr. Estrada's 
     memorandums would be a violation of privacy, although other 
     nominees, including Chief Justice William Rehnquist and Judge 
     Robert Bork, did so in their own confirmation hearings. 
     Supporters have also contended, shamefully, that opposition 
     to Mr. Estrada is anti-Latino, even though his nomination is 
     opposed by the Congressional Hispanic Caucus, the Mexican 
     American Legal Defense and Educational Fund and other leading 
     Latino groups. Now Republicans are attacking Democratic 
     senators for using a filibuster. The criticism rings hollow, 
     given that some Republicans making it, including the majority 
     leader, Bill Frist, voted to filibuster when President 
     Clinton nominated Richard Paez, a Mexican-American, to an 
     appeals court. Rather than demonizing Democratic senators, 
     the White House should look for common ground. In the case of 
     Mr. Estrada, it should respect the Senate's role in the 
     process by making his full record available. And going 
     forward, it should choose judicial nominees from the 
     ideological mainstream, who do not prompt the sort of bitter 
     partisan divisions that Mr. Estrada has.
                                  ____


           [From the Connecticut Law Tribune, Mar. 24, 2003]

                           Nomination Battles

       Because federal judgeships are for life, what is at stake 
     is what the law of the land will be for the next two or three 
     decades. That's why the continuing Senate filibuster 
     transcends Estrada. Its aim is to use what little Democratic 
     power is left to force the White House and Senate Republicans 
     to the table to hammer out a more bipartisan, more balanced 
     approach to judge-picking.
                                  ____


                  [From the Daily News, Mar. 31, 2003]

                          The Quotable Lincoln

       By President Lincoln's reasoning, Mr. Estrada is not 
     qualified for the court appointment if his opinions are 
     unknown publicly. The full quotation comes to light as the 
     Senate Republicans vow to keep bringing up the Estrada 
     nomination against the opposition of all but a handful of the 
     Democrats. The Republicans, including both Maine senators, 
     have been unable to muster more than 55 of the necessary 60 
     votes to break the filibuster.
                                  ____


                 [From the Times Union, Mar. 20, 2003]

               Estrada Should Answer Questions in Public

       Since Mr. Estrada doesn't have experience to bolster his 
     candidacy, he must provide convincing evidence of his ability 
     to perform. If he is qualified to serve, he should step up to 
     the plate and tell us, in a public hearing. If not, he should 
     step aside and let the Senate get on with its business.
                                  ____


           [From the Orlando Sentinel Tribune, Mar. 23, 2003]

              Will Estrada Protect the Rights of Latinos?

       At his hearing before the Senate, Estrada failed to answer 
     senator's questions, and he

[[Page 8201]]

     hid his views from the Senate and the public. Because of his 
     limited record, it was important for Estrada to be 
     forthcoming and give senators the opportunity to find out 
     more about the kind of judge he would be; yet he chose to 
     remain silent. . . . The little we do know about his record 
     is very troubling. . . . Defeating his nomination would not 
     send the message to Latinos that ``only a certain kind of 
     Latino need apply.'' On the contrary, it would send the 
     message that everyone in America is judged by the same 
     standard. If you cannot be fair and protect the basic 
     constitutional rights of the common person, you do not 
     deserve to serve in a judicial appointment, no matter what 
     your race or ethnicity is.
                                  ____


           [From the Connecticut Law Tribune, Mar. 24, 2003]

                          Nominations Battles

       Miguel Estrada is being treated the same way Republicans 
     treated Democratic nominees for years, Hispanic or otherwise. 
     The battle is intense because the stakes are high. At issue 
     is the American principle of checks and balances, and more. 
     Republicans already control the White House and Congress and 
     are now aiming for the third branch of government. Not only 
     will Bush likely get the chance to push the divided Supreme 
     Court rightward with an appointment or two. He already is 
     reshaping the appeals courts one level below the Supreme 
     Court. Because federal judgeships are for life, what is at 
     stake is what the law of the land will be for the next two or 
     three decades. That's why the continuing Senate filibuster 
     transcends Estrada. Its aim is to use what little Democratic 
     power is left to force the White House and Senate Republicans 
     to the table to hammer out a more bipartisan, more balanced 
     approach to judge-picking.
                                  ____


            [From the Troy Record Editorial, Mar. 10, 2003]

               Senate Judgment Wise in Estrada Nomination

       In reality, a Court of Appeals judgeship is a lifetime 
     appointment. This means that the 39-year-old Estrada could be 
     making decisions from the bench for 30 or 40 years. . . . 
     Democrats on the Committee want to get a feel for how Estrada 
     will rule when the rubber meets the road, and that is 
     certainly fair. Is it out of the question for Estrada to let 
     the committee know the name of a judge he admires? Why 
     wouldn't he name a Supreme Court decision he disagrees with, 
     or approves of? These are not unreasonable questions. . . . 
     The Senate is right not to simply rubber stamp his 
     nomination.
                                  ____


              [From the American Prospect, Mar. 17, 2003]

Rule Breaker: When It Comes to Helen Thomas, Miguel Estrada and Acts of 
              War, George W. Bush Isn't big on Convention

       Then there's the tussle over judicial nominee Miguel 
     Estrada. Bush doesn't like the fact that Democratic senators 
     are filibustering Estrada's nomination. So he suggested 
     changing the rules to ``ensure timely up-or-down votes on 
     judicial nominations both now and in the future, no matter 
     who is the president or what party controls the Senate.'' 
     According to the Senate's Web site, filibusters have been 
     around since the early days of Congress and have been popular 
     since the 1850s. It's hard to remember the last time a 
     president suggested that the Senate change one of its oldest 
     traditions. There have been plenty of presidents who haven't 
     liked congressional rules, but that doesn't mean they've 
     suggested changing them just to accomplish one goal.
                                  ____


              [From the Times Herald-Record, Mar. 9, 2003]

                       How To End the Filibuster

       That's not nearly as bad as the charge by some Republicans 
     that Democrats are opposing Estrada because he's Hispanic 
     and, as a result, Democrats are preventing a group of people 
     from achieving a milestone. Do these people ever listen to 
     themselves? For a host of reasons, including support of 
     immigration and education reform, pro-union and pro-labor 
     policies and a philosphy that embraces affirmative action, 
     the Democratic Party has enjoyed the support of a majority of 
     the nation's growing Hispanic community for some time. In 
     fact, many Hispanic groups oppose Estrada's nomination 
     because they do not think he understands or is sensitive to 
     issues and aspirations that are important to Hispanics in 
     America. . . . It would have been nice, then, had Clinton 
     been able to secure a floor vote for other highly qualified 
     Harvard Law School graduates whose nominations languished and 
     eventually died in the Senate Judiciary Committee, which was 
     controlled by Republicans. . . . The Senate should not rubber 
     stamp a president who wants to tilt the court heavily to one 
     side.
                                  ____


              [From the Dayton Daily News, Mar. 14, 2003]

                   There's Easy Fix for Judge Holdups

       President Bush has called on the Senate to permanently ban 
     any filibustering over judicial nominations. . . . A 
     president genuinely interested in a judiciary that works 
     won't map a strategy that allows presidents to push through 
     any nominee at will. Doing so allows for, even invites, an 
     ideological judiciary prone to extremes. It undermines merit 
     appointments in favor of lifetime appointments handed out 
     like so many political plums.
                                  ____


           [From the Sarasota Herald-Tribune, Mar. 16, 2003]

                     Power, Not Ethnicity, at Issue

       The Republican strategy is to win his approval by charging 
     that opponents are motivated by prejudice. . . . It is also a 
     totally despicable tactic, designed to avoid discussion of 
     the reason most Democrats oppose Estrada. This reason has 
     nothing to do with Estrada's ethnicity or legal ability, but 
     rather the drive by Bush and like-minded Republicans to pack 
     the federal courts from top to bottom with radical rightists. 
     Not, mind you, conservatives interested in preserving our 
     institutions and values but radical activists who want to 
     uproot many of the laws and court decisions of the last 50 
     years. Estrada would be such a judge. . . . Senators who try 
     to keep that from happening deserve the thanks of the 
     American people, not the calumny heaped on them by a 
     president who last week showed his lack of understanding of 
     the roles of the separate branches of government by 
     pressuring the Senate to change its rules for debate and 
     allow a one-vote majority to ramrod presidential appointments 
     through the Senate.'')
                                  ____


             [From the Copley News Service, Mar. 20, 2003]

                       Wise Words for the Senate

       Republicans like to blame Democratic stalling for judicial 
     vacancies. But that starts the book in the middle. The early 
     chapters, which the GOP ignores, deal with Republican 
     inaction on Clinton's nominees.
                                  ____


                [From the Capital Times, Mar. 11, 2003]

                         Blocking a Bad Choice

       The White House has stonewalled the request for the papers 
     and has refused to allow Estrada to participate in a public 
     hearing where he could be asked further questions. Those 
     hardball tactics have upset even moderate and conservative 
     members who might be inclined to support Estrada. Daschle and 
     the Democrats are right on this one. Unless Estrada and the 
     White House are willing to cooperate with the confirmation 
     process, the Senate need not consider this nomination.
                                  ____


             [From the Reno Gazette Journal, Mar. 11, 2003]

         Your Turn: Judicial Candidate Should Answer Questions

       When asked his views on civil rights, women's rights, 
     environmental protections, workers' rights, Mr. Estrada said 
     he had no views. When asked which Supreme Court justice he 
     would emulate, Mr. Estrada said he couldn't answer. The 
     service promoting Mr. Estrada--the White House--surely asked 
     these questions before nominating him. To be sure, they got 
     the answers . . . . Other nominees have asked similar 
     questions. They are provided the same type of documents. . . 
     . Would you hire him for the job? Would you hire him if you 
     couldn't fire him? Of course not.
                                  ____


               [From the Orlando Sentinel, Mar. 16, 2003]

                Senate Needs More Information on Estrada

       [T]he issue we are debating, the relative roles 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 it goes to the independence of the 
     judiciary. . . . I believe we are being called to resist an 
     effort to inappropriately utilize executive power and to 
     exclude the legislative role in the appointment of federal 
     judges.
                                  ____


             [From the San Antonio Express, Mar. 13, 2003]

                  An OK For Estrada Won't Help Nation

       We should expect more than a federal judicial nominee, and 
     we should not set a precedent that would allow future 
     presidents and nominees to act without regard for the 
     Senate's role in a system of checks and balances.
                                  ____


   [From the Chattanooga Times/Chattanooga Free Press, Mar. 12, 2003]

                        The Case Against Estrada

       Senate Democrats are hanging tough against President Bush's 
     nomination of Miguel Estrada for a federal appellate 
     judgeship. Wish them well. They are doing righteous work. The 
     Constitution obliges the Senate to advise and consent on 
     judicial appointments. This is the advise part and, no, this 
     meltdown does not have anything to do with who is pro- or 
     anti-Hispanic, as Republicans are charging in a campaign that 
     is cynical even by Washington standards. There is a very 
     serious issue at the core of this dispute--nothing less than 
     the fundamental nature of the federal judiciary--and the 
     attempt to defame opposition to Estrada as anti-Hispanic 
     prejudice is absurd on its face.
                                  ____


           [From the Sarasota Herald-Tribune, Mar. 16, 2003]

                     Power, Not Ethnicity, at Issue

       The Republican strategy is to win his approval by charging 
     that opponents are motivated by prejudice. This is a powerful 
     weapon in states with heavy Mexican or Cuban

[[Page 8202]]

     populations. It is also a totally despicable tactic, designed 
     to avoid discussion of the reason most Democrats oppose 
     Estrada. This reason has nothing to do with Estrada's 
     ethnicity or legal ability, but rather the drive by Bush and 
     like-minded Republicans to pack the federal courts from top 
     to bottom with radical rightists. Not, mind you, 
     conservatives interested in preserving our institutions and 
     values but radical activists who want to uproot many of the 
     laws and court decisions of the last 50 years. Estrada would 
     be such a judge. At least that is a fair assumption based on 
     the record of the Senate committee hearing on his 
     confirmation. He wasn't willing to offer his views on many of 
     the most pertinent and controversial constitutional questions 
     of concern to courts, Congress and the public. He declined to 
     make available memoranda he wrote for the office of solicitor 
     general when he worked there. The solicitor general has 
     provided such documents in other confirmation hearings, 
     including those of Rehnquist, Bork and Esterbrook.
                                  ____


                 [From the New Republic, Apr. 7, 2003]

                            Private Opinion

       One reason Senate Democrats haven't been swayed by these 
     arguments is that they're really not true: Democratic 
     researchers have unearthed records from at least five 
     judicial-confirmation hearings in which government legal 
     memoranda were delivered to the Senate. Their favorite 
     example is the Justice Department's release of memos during 
     Robert Bork's 1987 confirmation battle, written by a lawyer 
     in the solicitor general's office who held precisely the same 
     job as Estrada.
                                  ____


              [From the Chicago Sun Times, Mar. 14, 2003]

  If Estrada Thinks That Being Latino is Enough To Get Him Confirmed, 
                      He's in for a Rude Awakening

       Bush obviously wants to score political points with Latino 
     voters. . . . Latinos deserve and demand better. Estrada may 
     be well-qualified, but so are other Latinos whose legal 
     writings are not being guarded as if they were state secrets. 
     Bush may be able to get Congress to pass a bill without 
     allowing it to be read first, but the Senate should not 
     abdicate its constitutional obligation to give its advice and 
     consent on these lifetime appointees. Bush's political stock 
     is sinking, and Latino political stock is rising. The way I 
     see it, Bush needs us more than we need him. So Bush should 
     nominate someone most Latinos can live with, be proud of and 
     support, or no one at all. Time is on our side. Bush doesn't 
     get it: Not just any Latino judge will do.
                                  ____


              [From the Copley News Service, Mar. 6, 2003]

                       The Decision of a Lifetime

       Miguel Estrada, along with the White House and Republican 
     Senate leadership, would do well to take notice. They 
     complain that the Democrats seek too much information as 
     their price for putting Estrada's nomination to a vote. . . . 
     Under White House coaching, perhaps, Estrada proved strangely 
     tight-lipped. Inasmuch as he has not served a previous 
     judgeship, there was no ``paper trail'' by which to gauge the 
     man's legal philosophy.
                                  ____


              [From the Houston Chronicle, Mar. 16, 2003]

              Oh, No, Ideological Judges; Say It Isn't So

       Estrada is bright and far right. Just how far right is a 
     question that the Bush administration doesn't want to answer. 
     The White House is refusing to let senators see memos Estrada 
     wrote while working in the solicitor general's office and 
     that would shed plenty of light on the issue. Instead, 
     Republicans are offering a second Estrada appearance before 
     the Judiciary Committee. Judging by Estrada's lock-jawed 
     performance last September, it would be a gigantic waste of 
     time (which, of course, the White House knows). There is a 
     common theme in Estrada's and Owen's attempts to get on the 
     circuit court bench. It involves, to put it mildly, evasion 
     and equivocation.
                                  ____


             [From the Ventura County Star, Mar. 16, 2003]

                What Do We Know About Judicial Nominee?

       Judges are supposed to be able to look at attorney's 
     arguments with impartiality and determine which side has a 
     stronger case within the letter and spirit of the law. To be 
     effective and just, the judiciary must be neither liberal nor 
     conservative. The judiciary must be independent, concerned 
     only with the integrity of law. That's a high ideal and, of 
     course, nearly impossible to reach, but it's what we should 
     be reaching for. The fact is we have no idea if Mr. Estrada 
     is capable of impartiality, and he's not willing to discuss 
     it.
                                  ____


               [From the Houston Chronicle, Mar. 7, 2003]

                   Yakety, Yak--Keep Talking Senators

       So undemocratic, wail the Republicans desperate to get on 
     with a vote on the nomination of Miguel Estrada to the U.S. 
     Circuit Court of Appeals for the District of Columbia before 
     anyone can find out how right-wing the former Justice 
     Department official might actually be. Some of these 
     Republicans are the same people--and are certainly of the 
     same party--who over the years have attempted to talk to 
     death many bills and nominations.

  Additionally, here is an excerpt of an additional news article that 
is noteworthy for its assessment of the refusal of the White House to 
release the documents requested, despite the precedent and despite the 
interest of some Republican Senators in doing so:

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

                       Filibuster Si, Estrada No!

       The White House refused . . . access to Estrada's working 
     papers. Period. This adamantine posture, in the eyes of some 
     in 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 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.

  In addition, there have been dozens and dozens and dozens of letters 
to the editor published in opposition to editorials supporting the 
Republican position on this nomination. Here is just one sample of 
those many letters from citizens across the country:

               [From the Washington Post, Mar. 20, 2003]

                     Behind the Estrada Filibuster

       The depth of Mr. Estrada's sentiments on issues facing the 
     federal courts seems to be known only to the far-right 
     members of the legal community who support him and to the 
     Bush administration. The question is whether the Senate, 
     which has an equal say in whether Mr. Estrada will sit on the 
     U.S. Court of Appeals for the D.C. Circuit, has an equal 
     right to the information, including Justice Department 
     memorandums, that is available to the administration. It is 
     far from extortionate that senators not be forced to vote 
     without the information the administration holds.

  The PRESIDING OFFICER. Who yields time?
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I try to keep a straight face when I hear 
my good friend, the distinguished Senator from Utah, speaking, but it 
is hard. He has been able to master the ability to look stern and self-
righteous, as he has throughout a recitation of the revisionist history 
here.
  The question of precedent? The Republicans joined the filibusters of 
Stephen Breyer to the First Circuit, Judge Rosemary Barkett to the 
Eleventh Circuit, Judge H. Lee Sarokin to the Third Circuit, Judge 
Richard Paez to the Ninth Circuit, and Judge Marsha Berzon to the Ninth 
Circuit. We had to have cloture votes on all but one of these and on 
several others.
  But as the former Republican leader admitted--and I commend him for 
this--they did not have to go to filibusters on most of these because 
they never brought them up at all. They never had a hearing on them. 
They never had a vote on them in committee or anywhere else. In effect, 
they had a filibuster of one. If any one Republican Senator objected to 
any one of President Clinton's nominees, or just a few, the caucus 
would make the determination they would never get a hearing. The 
distinguished chairman at that time would not give them a hearing. They 
would not get a vote. It was only if the caucus decided that they would 
be allowed to go forward would they even get a vote.
  So it begs credulity to hear this kind of sophistry on the Senate 
floor and the nature of a ``filibuster'' being constantly redefined. 
They would not allow them to come to a vote at all.
  During the 17 months when we controlled the Senate Judiciary 
Committee, we confirmed 100 of President Bush's nominees. We had 
hearings on 103. We voted down 2. We confirmed 100. There was no 
similar period of time when President Clinton was in office and the 
Republicans were in control that they passed anywhere near as many 
judges for President Clinton.
  I wonder if I could have order just for the sake of precedent.

[[Page 8203]]

  The PRESIDING OFFICER. The Senate will be in order.
  The Senator from Vermont.
  Mr. LEAHY. We moved them through. And we got rid of the anonymous 
holds. We got rid of the secret holds. I will explain in greater 
detail.
  Mr. President, the Republican leadership in the Senate has chosen 
today for another in a series of cloture votes on this divisive 
nomination. Nothing has significantly changed since it forced the three 
previous cloture votes. The administration's obstinacy continues to 
impede progress to resolve this matter. 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 advise and consent role in this most important process. 
The White House could have long ago helped solve 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 Environmental Protection Agency. In my 
statement in connection with the last cloture vote I outlined 
additional precedent for sharing the requested materials with the 
Senate as did Senator Kennedy.
  We have the statement of Attorney General Robert H. Jackson, who 
later became one of our finest Supreme Court Justices, when he wrote an 
Attorney General Opinion in 1941 acknowledging that among the occasions 
when exceptions should be made and Executive department files would be 
produced to the Congress would be confirmations. As Attorney General 
Jackson noted:

       Of course, where the public interest has seemed to justify 
     it, information as to particular situations has been supplied 
     to congressional committees by me and by former Attorneys 
     General. For example, I have taken the position that 
     committees called upon to pass on the confirmation of persons 
     recommended for appointment by the Attorney General would be 
     afforded confidential access to any information that we 
     have--because no candidate's name is submitted without his 
     knowledge and the Department does not intend to submit the 
     name of any person whose entire history will not stand light.

  I mentioned the additional example of similar materials that were 
provided to Congress in 1982 by the Reagan administration when the 
Senate Finance Committee held a hearing to consider legislation to deny 
federal tax-exempt status to private schools practicing racial 
discrimination. A number of Justice Department memoranda, as well as 
communications between high-level officials, were turned over by the 
Reagan administration to the Senate Finance Committee in connection 
with the hearing, just months after the documents were first written. 
The issues at that hearing reveal that some of the documents turned 
over were much more sensitive than those requested of Mr. Estrada, but 
they were still provided to Congress by the Reagan administration.
  The documents turned over to the Senate included:
  Letters from Representative Trent Lott to Secretary Regan, IRS 
Commissioner Egger, and Solicitor General Lee, urging change in the 
administration's position on Bob Jones; memorandum from Associate 
Deputy Attorney General Bruce Fein to Deputy Attorney General Edward 
Schmults, advising Schmults on private schools; memorandum from Carolyn 
Kuhl, Special Assistant to the Attorney General, to Ken Starr, noting 
Reagan/Bush campaign statements on private schools; memorandum from 
Peter Wallison, Treasury General Counsel, to Secretary Regan briefing 
him on meeting with Representative Lott; memorandum from Treasury 
General Counsel Wallison to Deputy Secretary McNamar and Secretary 
Regan on Government's position in Bob Jones case; memorandum from Civil 
Rights Division Head, William Bradford Reynolds, to Attorney General 
Smith justifying changes in administration's position on Bob Jones; 
memorandum from Treasury Assistant Secretary for Public Affairs, Ann 
McLaughlin, to Deputy Secretary McNamar on ``press strategy'' for 
releasing Bob Jones decision; memorandum from IRS Chief Counsel Gideon 
to Treasury Deputy General Counsel Government's statement in Bob Jones; 
letter from IRS Chief Counsel Gideon to Civil Rights Division Head 
Reynolds on formulation of Government's statement in Bob Jones; and 
memorandum from Assistant Attorney General Theodore Olson, Office of 
Legal Counsel, to Attorney General Smith and Deputy Attorney General 
Schmults responding to the analysis in Reynolds' memo on Bob Jones.
  In 1982, the Republican administration at that time released to the 
Senate documents that included internal memoranda among high-level 
Justice Department officials, inter-agency communications, and 
documents relating to the government's position in an important Supreme 
Court case. They also included letters to the Solicitor General.
  Moreover, the Reagan administration turned over these documents 
within months after being written, and no harm was done to the workings 
of the Justice Department or the administration. The Bush 
administration is claiming that it is unprecedented to turn over such 
documents--and that the release of documents written by Mr. Estrada 6 
to 10 years earlier would irreparably harm the government. I urge the 
administration and Republican Senators to consider this additional 
precedent.
  I also noted how in 2001, this White House agreed to give access to 
memoranda written by Jeffrey Holmstead, nominated to be an Assistant 
Administrator of the Environmental Protection Agency. The Senate 
Committee on Environment and Public Works requested memoranda from 
Holmstead's years of service in the White House counsel's office under 
former President Bush. In particular, the Committee was interested in 
materials related to Holmstead's handling of an amendment to the Clean 
Air Act and other environmental issues. In the summer of 2001, the Bush 
administration resolved an impasse with the Committee over the 
nomination by permitting Committee staffers to review memoranda that 
Holmstead wrote while in the White House counsel's office. In sum, the 
administration allowed access to documents from the White House 
counsel's office--a more sensitive post than the one Mr. Estrada held 
when he was in the Department of Justice.
  So, despite this administration's continued insistence on 
confidentiality, it has turned over, allowed access or worked to reach 
an accommodation on access to documents similar to those requested in 
connection with the Estrada nomination in other cases and for other 
committees. In the matter of the Estrada nomination, the question 
before the Senate concerns a lifetime appointment to the second-highest 
court in the land.
  The former Republican leader accepted ``part of the blame'' for how 
the Senate has come to consider judicial nominations. I appreciate that 
because it is one of the few times a Republican Senator has accepted 
responsibility for what happened during the years in which the 
Republican majority in the Senate blocked and delayed so many of 
President Clinton's judicial nominees. The Senator from Mississippi 
also acknowledged that ``you filibuster a lot of different ways.'' I 
thank the Senator from Mississippi for trying to be constructive and 
for suggesting that ``something can be worked out'' on the request for 
Mr. Estrada's work papers from the Department of Justice.
  A recent edition of The Weekly Standard, a report suggests that other 
Senate Republicans, ``several veteran GOP Senate staffers'' and ``a top 
GOP leadership aide'' asked the White House to show some flexibility 
and to share the legal memoranda with the Senate to resolve this 
matter, but they were rebuffed. It is regrettable 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 score political

[[Page 8204]]

points and to divide the Hispanic community.
  The real ``double standard'' here is that the President selected Mr. 
Estrada based in large part on his work for four and a half years in 
the Solicitor General's Office as well as for his ideological views, 
but the Administration says that the Senate may not examine his written 
work from the office that would shed the most light on his views. The 
White House says that the Senate should not consider the very ideology 
the White House took into account in selecting a 41-year-old for a 
lifetime seat on the country's second-highest court. Another double 
standard at work here is that this is a nominee who is well known for 
having very passionate views about judicial decisions and legal policy 
and is well known for being outspoken, and yet he has refused to share 
his views with the very people charged with evaluating his nomination. 
It seems to be a perversion of the constitutional process to require 
the Senate to stumble in the dark about his views, when he shares his 
views quite freely with others and when this Administration has 
selected him for the privilege of this high office, and for life, based 
on those views.
  Just this past weekend, a story in The New York Times reported that 
during his nomination hearing which I scheduled and Senator Schumer 
chaired last September, ``Mr. Estrada took what is often called `the 
judicial fifth,' declining to answer many questions by saying that he 
could not comment on issues that might come before him should he be 
confirmed.'' The report correctly continued: ``It is a common approach 
for judicial nominees, but Mr. Estrada was more reticent than most.'' 
The report also notes that: ``Mr. Estrada gave a hint that what the 
memorandums might disclose was his impatient manner when he told the 
committee he might have harshly dismissed some arguments by junior 
lawyers.'' Our review of the requested documents would end the mystery 
and speculation.
  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.
  Republicans are now willing to breach the 24-year-old rule of the 
Judiciary Committee that had always protected the right of the minority 
to debate a matter. Republicans have now established a double standard 
with respect to the opposition of home-state Senators. If the 
opposition to a judicial nominee is that of a Republican home State 
Senator to a nominee of a Democratic President, it is honored and no 
hearing may go forward. But if the opposition is to a judicial nominee 
of a Republican President by a Democratic home State Senator, well that 
is too bad and the Republican majority does not choose to defer or care 
or honor that objection.
  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 long ago when then-
Senator Ashcroft was chairing a series of Judiciary 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 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.

  Now that the occupant of the White House no longer is 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.
  The White House, in conjunction with the new Republican majority in 
the Senate, is purposeful in choosing these battles over judicial 
nominations. Dividing rather than uniting has become their modus 
operandi. The decision by the Republican Senate majority to focus on 
controversial nominations says much about their mistaken priorities. 
The Republican majority sets the agenda and they schedule the debate, 
just as they have again here today.
  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, in order 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 a 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 more 
than 200 years to protect all Americans through its 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 last 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. Regrettably, his efforts and 
judgment were also rejected by the administration.
  The Supreme Court, in an opinion authored last year 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 nomination of Abe Fortas to be Chief Justice of the 
United States Supreme Court, they joined in the filibuster of Stephen 
Breyer to the First

[[Page 8205]]

Circuit, Judge Rosemary Barkett to the Eleventh Circuit, Judge H. Lee 
Sarokin to the Third Circuit, and Judge Richard Paez and Judge Marsha 
Berzon to the Ninth 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' own 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. In effect, these were anonymous ``filibusters.''
  Republicans held up almost 80 judicial nominees who were not acted 
upon during the Congress in which President Clinton first nominated 
them, and they 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 
include 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 an elaborate effort, 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 the Senate has moved forward to confirm 
115 of President Bush's judicial nominations since July 2001. That 
total includes 15 judges confirmed so far this year, including two 
controversial nominees to the circuit courts.
  Those observing these matters might contrast this progress with the 
start of the 106th Congress in which the Republican majority in the 
Senate was delaying consideration of President Clinton's judicial 
nominees. In 1999, the first hearing on a judicial nominee was not 
until mid-June. The Senate did not reach 15 confirmations until 
September 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.
  We worked hard to reduce federal judicial vacancies to the lowest 
level it has been in more than seven years. 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.
  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.
  Republican talking points will undoubtedly claim that this is 
``unprecedented''. They will ignore their own recent filibusters 
against President Clinton's executive and judicial nominees in so 
doing. The only thing unprecedented about this matter is that the 
administration and Republican leadership have shown no willingness to 
be reasonable and accommodate Democratic Senators' request for 
information traditionally shared with the Senate by past 
administrations. That this is the fourth cloture vote on this matter is 
an indictment of Republican intransigence on this matter, nothing more. 
What is unprecedented is that there has been no effort on the 
Republican side to work this matter out as these matters have always 
been worked out in the past. What is unprecedented is the Republican 
insistence to schedule cloture vote after cloture vote without first 
resolving the underlying problem caused by the administration's 
inflexibility.
  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. 
The nomination and confirmation process begins with the President, and 
I urge him to work with us to find a way forward to unite, instead of 
divide, the nation on these issues.
  Mr. President, does the Senator from Massachusetts wish the remainder 
of my time?
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I thank my friend from Vermont for making 
very plain for the record and to the American people exactly what has 
happened over the last period of time. As he has pointed out, there 
have been more than 100 judges who have been recommended by President 
Bush, many of them pro-life, which have been favorably considered by 
this body.
  It was not the Members on this side who have changed the rules. The 
fact is, it has been this administration's attempt to shape the Federal 
judiciary. And as the constitutional debates showed so clearly, there 
was to be a balance.
  Initially, during the Constitutional Convention, the Senate of the 
United

[[Page 8206]]

States was to be the sole namer of Federal judges. It was only at the 
end that that was to be a shared responsibility.
  There are some who just want us to rubberstamp whatever the President 
recommends. We do not believe that is what our Founding Fathers 
intended us to do, as bearing responsibility for the Federal judiciary.
  The fact remains, this nominee is known only to the administration, 
but not to the Judiciary Committee or the American people. They know 
how he stands. They have understandings of all of his positions. But 
the Judiciary Committee and the American people do not. That is what is 
being asked of now.
  There have been other times in our history where we have had nominees 
who did not respond to questions, but they had written documents, and 
they had articles, speeches, and other decisions that reflected their 
judicial philosophy. This does not exist here. This is a unique, 
special situation. And the Senator from Vermont has stated time in and 
time out over the course of the debate the reasons for it. He should be 
supported on it. I stand with him. I stand with the institution, the 
Senate, that says to be able to exercise our responsibility in advice 
and consent, we ought to be exercising balanced judgment based on the 
views of the nominee and his views of the Constitution of the United 
States. We have not received his views on it. And he refused to give 
it. Nor do we understand from past writings, statements, or other 
positions what his views are. And the American people are entitled to 
it.
  Mr. President, we must be very clear about what is at stake in this 
debate over the nomination of Miguel Estrada to the second highest 
court in the land. Confirming Mr. Estrada to the DC Circuit would give 
a major victory to the Republican drive to pack the Federal courts with 
judges who are hostile to civil rights, workers' rights, and many other 
basic guarantees that define the rights and liberties of all our 
citizens.
  Confirming him would also deal a blow to the Senate's advice and 
consent role in the selection of federal judges. This role is among the 
most important of the checks and balances that make our government 
work. It has ensured that whoever is in the White House cannot use 
their short term in power to pack the courts by giving lifetime 
appointments to judges who will decide cases for years in a biased way.
  As we all know, the debates at the constitutional convention make 
clear that the Senate has a very important role in the selection of 
judges. In fact, the power initially was to rest solely with the 
Senate. Although now the power to nominate rests with the President, it 
is clear that the Senate's advice and consent role is a substantive 
role, and a critical role. As Alexander Hamilton said in Federalist No. 
77:

       If by influencing the President meant restraining him, this 
     is precisely what must have been intended.

  The role of the Senate is vital to ensuring a strong and independent 
judiciary that will protect citizens' rights. When Republicans try to 
force the Senate to confirm Mr. Estrada without any significant 
information about him, they are attacking the role of the Senate and 
undermining this important constitutional provision.
  Despite a growing and disturbing trend during this administration, of 
giving the Senate less and less information about judges, the Senate 
has made clear our position that we need this information to fulfill 
our constitutional role. We have had many nominees who were not 
particularly forthcoming in their committee hearing about their views 
on certain topics. But we typically had a large written record to help 
us understand those nominees' approach to judging. Often, the Senate 
attempted in good faith to accommodate the President and review the 
record as it was given to us. In other cases, if a nominee had only 
very little record to examine, we could rely on their answers at their 
hearing to give meaningful advice and consent.
  Mr. Estrada represents the extreme of this trend. At his hearing, he 
was silent on important issues that would help us determine what kind 
of judge he would be. He does not have a written record to review. The 
one thing that would help us is the body of work by Mr. Estrada at the 
Justice Department. But the White House will not turn these documents 
over, despite the fact that they have turned over similar documents for 
other nominees in the past.
  Confirming Miguel Estrada on this record would not only undermine the 
Senate's important advice and consent role, it would also threaten the 
rights of millions of Americans who are affected by the judges of the 
DC Circuit.
  Unless we preserve this important role, the independence of the 
Federal courts will be lost. And it is this independence of the 
judicial branch from the executive and legislative branches that gives 
the Federal courts an indispensable role in protecting and upholding 
the basic rights guaranteed by the Constitution.
  In defending the role of the Senate in confirming judicial nominees, 
we are also protecting the role of the Federal courts in our 
constitutional form of government. It is our responsibility to defend 
both of these important aspects of our democracy, and we intend to 
continue to do so. I urge my colleagues to vote against cloture today.
  Mr. President, I yield back the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator from Utah has 6 minutes 7 seconds.
  Mr. HATCH. Mr. President, how much time remains on the other side?
  The PRESIDING OFFICER. The other side has 1 minute 22 seconds.
  The Senator from Utah.
  Mr. HATCH. Mr. President, I think the Senator is correct to say that 
opponents have a right to feel the way they do, but they do not have a 
right constitutionally to filibuster a judicial nominee, in my opinion. 
And they can vote against this nominee if they want to. If they feel 
that deeply about their points of view, they ought to vote against the 
nominee, but they should not use some phony fishing expedition request, 
knowing that no administration can give up these documents because they 
are the most privileged documents in the Justice Department. And the 
former Democrat Solicitors General who are alive say that.
  I talked to the current Solicitor General, and he said there is no 
way they can give those documents up. It would ruin the work of the 
people's attorney, the Solicitor General. And they know that. So that 
is just a phony excuse to be able to try and stop this nominee.
  By the way, with regard to what the distinguished Senator from 
Vermont said--he brought up that certain nominees Stephen Breyer, 
Rosemary Barkett, Richard Paez, and Marsha Berzon were filibustered. 
Not one of them was filibustered. He brought up they were not 
confirmed, but they were all confirmed. There has never been a judicial 
nominee to the circuit court of appeals in this country stopped by a 
filibuster--never--until this one. And, as far as I am concerned, this 
one is not going to be stopped either, if we do what is right.
  And, of course, a cloture vote does not always signify a filibuster. 
A lot of these cloture votes we have had in the past--that is why I 
talk in terms of true filibusters versus time management devices used 
by the majority leader, whoever that may be. In some cases, our own 
majority leader moved for cloture. So don't give me the argument that 
this is not the first filibuster. This is the first filibuster, first 
true filibuster of a circuit court of appeals nominee in history.
  Now, no Republican has claimed that Lavenski Smith or Julia Smith 
Gibbons were filibustered, but both of these Bush circuit nominees were 
subjected to cloture votes last year. So that is just a phony argument.
  Now, they have so much information on this man there is little or no 
excuse for not proceeding to a vote. The problem is, they cannot find 
anything wrong with him. There is so much that is right about Miguel 
Estrada. And I just cannot quite see some of the arguments that have 
been given.

[[Page 8207]]

  Mr. President, how much time is left?
  The PRESIDING OFFICER. The Senator has 3 minutes 30 seconds.
  Mr. HATCH. Mr. President, I would like to be interrupted at the end 
of 1 minute so I can give 2 minutes to the distinguished Senator from 
Pennsylvania.
  Let me say something about the memoranda that my Democratic 
colleagues demand the White House release. These are appeal, 
certiorari, and amicus recommendations that Mr. Estrada authored while 
a career lawyer at the Justice Department. Let's be clear on that.
  I keep hearing my Democratic colleagues say there is all this 
precedent for the release of documents by the White House. Well, of 
course, the White House releases documents to the Senate every day. But 
they are not appeal, certiorari, and amicus recommendations, and there 
is absolutely no precedent for the large-scale fishing expedition they 
seek on Mr. Estrada--not any.
  I agree with the seven former living Solicitors General, four of whom 
are Democrats, who say that the White House is right not to release Mr. 
Estrada's memoranda.
  The PRESIDING OFFICER. The Senator from Utah has 2 minutes 30 seconds 
remaining.
  Mr. HATCH. Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I thank the chairman for yielding time to 
me.
  When you strip this argument down, it boils down to an effort by the 
other side of the aisle to rewrite the advice and consent clause of the 
Constitution. For more than 200 years, the President has had discretion 
in the nomination of Federal judges. And unless there is some reason 
not to confirm them, they then are confirmed.
  Miguel Estrada has an extraordinary record, Phi Beta Kappa, Columbia; 
magna cum laude, magna at Harvard, Harvard Law Review, 15 cases in the 
Supreme Court. The issue of wanting to see some of his writings is a 
red herring. The issue of wanting further amplification of his views on 
the Constitution is another red herring. This is simply an effort, when 
41 Members from the other side of the aisle decide to oppose cloture, 
to continue this filibuster.
  It is my view that we are not going to resolve this matter until we 
have a real, live, honest to goodness filibuster, and that where the 
other side of the aisle has to talk. We haven't had one since 1987. The 
American people do not know what is going on inside the beltway and are 
likely not to find out until this issue is raised in the conscious 
level of the American people. Then I think we will find more than four 
Members of the other side of the aisle joining 51 on this side of the 
aisle to invoke cloture and to confirm this worthy nominee.
  I do believe there is going to have to be some dramatic action taken 
so that Americans understand the travesty going on in the Senate 
Chamber today.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER (Mrs. DOLE). The Senator from Vermont.
  Mr. LEAHY. Madam President, as my statement indicated, the Senate did 
have filibusters on Judge Stephen Breyer, Judge Rosemary Barkett, Judge 
H. Lee Sarokin, Judge Richard Paez, and Judge Marsha Berzon, contrary 
to the implication of my good friend from Utah.
  I actually have sympathy for my friend from Utah. He has been put in 
an untenable position. He is seeking to uphold an unreasonable position 
taken by the White House. The White House is trying to tell the Senate 
what to do. He is being a good soldier and I commend him for that.
  The fact is, if the Senate was allowed to be the Senate and make its 
own decisions and not let the White House dictate what to do, this 
matter would have been settled a long time ago. We would have followed 
the tradition and logic set forth by former Supreme Court Justice 
Robert Jackson when he was Attorney General. He indicated that such 
material should be provided to the Senate. He wrote:

     . . . I have taken the position that committees called upon 
     to pass on the confirmation of persons recommended for 
     appointment by the Attorney General would be afforded 
     confidential access to any information that we have--because 
     no candidate's name is submitted without his knowledge and 
     the Department does not intend to submit the name of any 
     person whose entire history will not stand light.

  The White House has access to Mr. Estrada's papers. It is hard to 
believe that they have not reviewed these papers. They are part of the 
information that the administration has about one of its nominees. All 
previous administrations followed the path of working with the Senate 
and making sure that the entire history of the person would stand the 
light of scrutiny. This administration does not want us to know.
  The PRESIDING OFFICER. The assistant Democratic leader.
  Mr. REID. Madam President, Secretary Rumsfeld will be here at 2:30. I 
spoke briefly to the manager of the bill, Senator Stevens. He indicated 
to me he would have no problem with a recess. I checked with our 
leader. He said he would have no problem with it either. During this 
break, the two leaders will have to determine whether there is going to 
be a recess for Secretary Rumsfeld. I wanted to say this to alert 
Members that there may be a break after this vote to go listen to the 
Secretary.
  The PRESIDING OFFICER. All time is yielded back.
  Under the previous order, the clerk will report the motion to invoke 
cloture.
  The senior assistant bill clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 21, the nomination of Miguel A. Estrada to be 
     United States Circuit Judge for the District of Columbia 
     Circuit:
         Bill Frist, Orrin G. Hatch, John Ensign, Sam Brownback, 
           Jim Inhofe, Michael B. Enzi, Wayne Allard, Michael 
           Crapo, Susan M. Collins, Robert F. Bennett, Pete V. 
           Domenici, Conrad R. Burns, Kay Bailey Hutchison, John 
           E. Sununu, Norm Coleman, Charles E. Grassley.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Miguel A. Estrada, of Virginia, to be United States 
Circuit Judge for the District of Columbia Circuit, shall be brought to 
a close.
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Massachusetts (Mr. Kerry) 
is necessary absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``no.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 55, nays 44, as follows:

                      [Rollcall Vote No. 114 Ex.]

                                YEAS--55

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

                                NAYS--44

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

[[Page 8208]]



                             NOT VOTING--1

       
     Kerry
       
  The PRESIDING OFFICER. On this vote, the yeas are 55, the nays are 
44. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.

                          ____________________