[Congressional Record (Bound Edition), Volume 149 (2003), Part 8]
[Senate]
[Pages 10456-10461]
[From the U.S. Government Publishing Office, www.gpo.gov]




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

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to consider the nomination of Miguel A. Estrada, which the 
clerk will report.
  The assistant legislative clerk read the nomination of Miguel A. 
Estrada, of Virginia, to be United States Circuit Judge for the 
District of Columbia.
  The PRESIDING OFFICER. Under the previous order, the time until 6 
p.m. shall be equally divided between the chairman and the ranking 
member or their designees.
  The Senator from Utah.
  Mr. REID. Mr. President, if the Senator will yield for a brief 
statement, we have had a number of people on this side of the aisle who 
have indicated we are to object to any extension of time beyond 6. Even 
though the vote took a little longer than expected, we cannot extend 
the time past 6.
  Mr. HATCH. That is fine.


                      Nomination of Priscilla Owen

  I yield 1 minute to the Senator from California on their time. She 
wanted to make a statement and put something in the Record, but it 
should come on their time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. BOXER. I thank my friend, Chairman Hatch. When Chairman Hatch 
and I were debating the Owen nomination, which is not before us, he 
questioned two statements I made. One was that she did not write a 
dissenting opinion in Doe and the second was that Judge Gonzales never 
referred to her as a judicial activist. I ask unanimous consent to have 
these documents printed in the Record, the dissenting opinion, the 
first page, which shows that she, in fact, did file a dissenting 
opinion. Secondly, an article that appeared about a week ago in the New 
York Times which says that Judge Gonzales said he was referring to 
Justice Owen when he said she was an activist. He did say it was merely 
heated language but, in fact, he said he was referring to her.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       . . . Texas interpreting the state's law allowing a 
     teenager to obtain an abortion without notifying her parents 
     if she can show a court that she is mature enough to 
     understand the consequences.
       In the dissent, Justice Owen said the teenager in the case 
     had not demonstrated that she knew that there were religious 
     objections to abortion and that some women who underwent 
     abortions had experienced severe remorse.
       One of the other justices on the court at the time was 
     Alberto R. Gonzales, now the White House counsel. He wrote 
     that the reading of the law by the dissenters was ``an 
     unconscionable act of judicial activism.''
       Justice Owen has said that Justice Gonzalez was not 
     referring to her. Mr. Gonzales has, in interviews, 
     acknowledged he was referring to her and said that his 
     description of her as a judicial activist was merely heated 
     language among judges who disagreed.
       While the first floor fight over the Owen nomination was 
     occurring, another judicial nomination drama was being played 
     out across the street in the Judiciary Committee, which was 
     considering President Bush's nomination of J. Leon Holmes to 
     be a district judge in Arkansas.
       Senator Orrin G. Hatch, the Utah Republican who is chairman 
     of the committee, did not ask for a vote on approving the 
     Holmes nomination as is customary. Instead, he took the 
     extraordinary step of asking that the committee vote to send 
     the nomination to the full Senate without a recommendation.
       Mr. Hatch was apparently concerned that some Republicans on 
     the committee were not completely comfortable with the 
     nomination after disclosures that Mr. Holmes, an ardent 
     opponent of abortion, had made several notable comments about 
     the role of women in society.
       In 1997 Mr. Holmes wrote that ``the woman is to place 
     herself under the authority of the man.'' He had also written 
     that abortion should not be available to rape victims because 
     conceptions from rape occur with the same frequency as snow 
     in Miami.
       Most of the combat over judicial confirmations has been 
     over appeals court judges, the level just below the Supreme 
     Court, and the nomination of Mr. Holmes, to the trial court 
     had initially attracted little notice.
       But at a committee session last week, Senator Dianne 
     Feinstein, Democrat of California, said that she had never 
     voted against

[[Page 10457]]

     a district court nominee but that she found Mr. Holmes's 
     remarks shocking.
       ``I do not see how anyone can divine from these comments 
     that he has either the temperament or the wisdom to be a 
     judge,'' Senator Feinstein said.
       Senator Hatch said today that he was concerned about some 
     of those remarks and that Mr. Holmes had expressed regret for 
     some. But the most important factor, the senator said, was 
     that many people in Arkansas, including the state's two 
     Democratic senators, Mark Pryor and Blanche Lincoln, still 
     supported the nomination.
                                  ____



          IN RE JANE DOE, No. 00-0224, SUPREME COURT OF TEXAS

         19 S.W.3d 346; 2000 Tex. LEXIS 67; 43 Tex. Sup. J. 910

                        June 22, 2000, Delivered

       DISPOSITION: [**1]  Reversed the court of appeals' judgment 
     and rendered judgment granting Doe's application for a 
     judicial bypass.
       JUDGES: JUSTICE O'NEILL delivered the opinion of the Court, 
     jointed by JUSTICE ENOCH, JUSTICE BAKER, JUSTICE HANKINSON, 
     and JUSTICE GONZALES and by CHIEF JUSTICE PHILLIPS as to 
     Parts II and III. JUSTICE ENOCH filed a concurring opinion, 
     joined by JUSTICE BAKER, JUSTICE GONZALES filed a concurring 
     opinion, joined by JUSTICE ENOCH. JUSTICE HECHT filed a 
     dissenting opinion. JUSTICE OWEN filed a dissenting opinion. 
     JUSTICE ABBOTT filed a dissenting opinion.
       OPINION BY: Harriet O'Neill.
       OPINION: [*349]  APPEAL UNDER SECTION 33.004(F), FAMILY 
     CODE.
       This is an appeal from an order denying a minor's 
     application for a court order authorizing her to consent to 
     an abortion without notifying a parent. After remand from 
     this Court, see In re Jane Doe, 19 S.W.3d 249, 2000 Tex. 
     LEXIS 21 (Tex. 2000) (``Doe 1(I)''), the trial court 
     conducted another hearing and found that Jane Doe failed to 
     prove by a preponderance of the evidence that she is 
     sufficiently well informed to have an abortion without 
     parental notification. The court of appeals affirmed. After 
     reviewing the record, we determined that Doe conclusively 
     [**2] established the statutory requirements and that she was 
     entitled to consent to the procedure without notifying a 
     parent. We issued an order on March 10, 2000, reversing the 
     court of appeals' judgment, with opinions to follow on the 
     concern that Doe be able to undergo a less risky abortion 
     procedure, if that option was still available to her and that 
     was her decision. The following is our opinion holding that 
     the evidence Doe presented conclusively established that she 
     was ``mature and sufficiently well informed'' to consent to 
     an abortion without parental notification. See TEX. FAM. CODE 
     Sec. 33.003(i).

                                   I

       Abortion is a highly-charged issue that often engenders 
     heated public debate. Such debate is to be expected and, 
     indeed, embraced in our free and democratic society. It is 
     through this very type of open exchange that our Legislature 
     crafted and enacted the particular statutory scheme before 
     us. Our system of government requires the judicial branch to 
     independently review and dispassionately interpret 
     legislation in accordance with the Legislature's will as 
     expressed in the statute. We begin our analysis with an 
     overview of the Parental [*350] Notification [**3] Act's 
     judicial bypass procedure and our role in interpreting it.

                      A. The Proper Role of Judges

       ``[Courts] are under the constraints imposed by the 
     judicial function in our democratic society. . . . The 
     function in construing a statute is to ascertain the meaning 
     of words used by the legislature. To go beyond it is to usurp 
     a power which our democracy has lodged in its elected 
     legislature. . . . A judge must not rewrite a statute, 
     neither to enlarge nor to contract it.''--Felix Frankfurter 
     (RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK 
     213 (1947), reprinted in COURTS, JUDGES, AND POLITICS, at 414 
     (Walter F. Murphy & C. Herman Pritchett, eds., 2d ed. 1974)).

  Mrs. BOXER. When I come to speak on the Senate floor, I do my 
homework. I felt very badly about that, and now I have the 
documentation. I thank my friend for yielding. I know it does not make 
him happy, but he was very generous to me to allow this minute to send 
these documents to the desk.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Rather than take time to respond, I will write a letter to 
the distinguished Senator and point out where she is in error on the 
Owen matter. As a matter of fact, I think it has been outrageous the 
way some of the arguments have been made on the other side against this 
really excellent justice from the State of Texas, who has a unanimous 
well qualified, the highest rating from the American Bar Association. I 
think we have had pure, unadulterated, raw politics involved with 
regard to Justice Owen.
  This debate we are now having is about the raw politics that are 
being used against Miguel Estrada, the first Hispanic ever nominated to 
the Circuit Court of Appeals for the District of Columbia.
  Today is Cinco de Mayo, the Fifth of May, commemorating the victory 
of the Mexican army over the French army at the Battle of Puebla in 
1862. This battle came to represent a symbol of Mexican unity and 
patriotism. The victory demonstrated to the world that Mexico and all 
of Latin America were willing to defend themselves against any foreign 
intervention. Cinco de Mayo is now viewed as a festive day to celebrate 
freedom and liberty.
  The fifth of May, 2003, in the Senate, unfortunately is also the 3-
month anniversary of the beginning of the debate on Miguel Estrada. I 
would hope that we would be celebrating the liberation of his 
nomination and the freedom to vote on final passage on this Cinco de 
Mayo. But instead, the nomination of Miguel Estrada has been captured 
by a minority of Senators who refuse to allow a final vote on his 
nomination. They insist on their unprecedented filibuster, following 
their game plan of obstruction. In fact, they have compounded their 
obstructionist tactics by engaging in a second filibuster, this time on 
Priscilla Owen, nominated to the Fifth Circuit Court of Appeals. She 
also has a unanimous well-qualified rating from the American Bar 
Association, the badge of honor, the gold standard, that our colleagues 
on the other side of the aisle, have said that rating is.
  I must admit, the Democrat game plan of delay and obstructionism is 
not surprising, but it is getting somewhat contradictory. In the case 
of Mr. Estrada, Democrats say they cannot vote for the nominee because 
they do not know enough about him. They allege he did not answer their 
questions and therefore they must have Department of Justice 
confidential memoranda he wrote while he was a line attorney in the 
Solicitor General's office; memoranda that have never been given in any 
way, shape or form to anybody in the Senate in a confirmation battle 
before, or anybody else for that matter. Even the White House has not 
seen these matters because they are so highly privileged, not Judge 
Gonzales, not anybody else in the White House.
  There are no such claims about Justice Owen. Democrat opponents admit 
they know enough about her, that she did answer the questions, and that 
she has a record they can review. There are no phony excuses. They 
simply oppose her on philosophical grounds, namely, her interpretation 
of the Texas parental notification statute that applies to minor girls 
seeking an abortion.
  This double standard demonstrates that some Senate Democrats are 
willing to use whatever obstructionist tactics it takes, based on any 
convenient rationale, to defeat the President's nominees.
  While the rationales may be different, the motivation in both cases 
is the same. I think that a recent editorial appearing in the Atlanta 
Journal-Constitution said it best: ``The fear with Owen and Estrada is 
that one or both will be nominated to the U.S. Supreme Court should a 
vacancy occur. Senate Democrats are determined to keep off the Circuit 
Court bench any perceived conservative who has the credentials to serve 
on the U.S. Supreme Court.'' I ask unanimous consent that a copy of 
this editorial be printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. HATCH. As far as Mr. Estrada goes, there is an additional factor 
that is not based on any substantive objection to his nomination. I 
believe that some Senate Democrats do not want the current President, a 
Republican President, to appoint the first Hispanic as United States 
Circuit Judge for the District of Columbia Circuit.
  Let me read from an editorial published by the Dallas Morning News 
addressing this point. On February 17, 2003, the News wrote:

       Democrats haven't liked Mr. Estrada from the beginning. 
     Part of that is due to his ideology--which is decidedly not 
     Democratic. But part of it also has to do with the fellow who 
     nominated him. Democrats don't relish

[[Page 10458]]

     giving President Bush one more thing to brag about when he 
     goes into Hispanic neighborhoods during his re-election 
     campaign next year. They are even less interested putting a 
     conservative Republican in line to become the first Hispanic 
     justice on the Supreme Court.

  I ask unanimous consent that the entire editorial be printed in the 
Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I don't know if Mr. Estrada is a conservative Republican, 
but I do know he is qualified for the position to which he is 
nominated, and it is well past time to vote on his nomination. This 
Friday will mark the two-years anniversary of his nomination on May 9, 
2001. The Majority leader has made every attempt to obtain time 
agreements or use other procedures to bring this matter to a 
resolution. Each of these attempts has been rebuffed by a minority of 
this body. Some Senate Democrats have used every delay and 
obstructionist tactic available. Yet they still cannot identify one 
substantive issue that would justify or excuse their refusal to permit 
a final vote.
  Mr. President, on this day, 141 years ago, the Mexican Army defeated 
forces which represented tyranny and defended the liberty of their 
nation. I urge my colleagues, on this day of celebration, to defeat the 
tyranny of the minority by voting to bring the debate on the nomination 
of Miguel Estrada to a close.
  I yield the floor.

                               Exhibit 1

          [From the Atlanta Journal-Constitution, May 4, 2003]

                 Democrats Use Wrong Route to Win South

                            (By Jim Wooten)

       U.S. Senator John Kerry (D-Mass.) brought his presidential 
     aspirations to the South last week, promising in Alabama that 
     he will make the national party competitive here once again.
       Make competitive, he neglected to mention, a party that has 
     positioned itself in opposition to the war in Iraq and 
     anything other than token tax cuts, and as Democrats reminded 
     the nation once again about the elevation of conservatives to 
     the federal bench. While the White House may appeal to some 
     as inside work with no heavy lifting, getting there through 
     the South toting this party's agenda will be a task requiring 
     Herculean labor.
       Just this week, for example, Kerry's Democratic 
     colleagues--Georgia's Zell Miller excepted--began to 
     filibuster the nomination of Texas Supreme Court Justice 
     Priscilla Owen to the New Orleans-based 5th U.S. Circuit 
     Court of Appeals.
       Kerry and other Democrats are already filibustering the 
     nomination of Miguel Estrada to the District of Columbia 
     Circuit Court of Appeals--the first time simultaneous 
     filibusters against judicial nominees have occurred in the 
     U.S. Senate.
       Both Owen and Estrada are superbly qualified in every 
     respect. Yet on Owen, those who complain that a ``glass 
     ceiling'' exists for women of achievement are busily 
     constructing one to keep her in her place. And those who 
     complain that the federal bench lacks ``diversity'' find 
     Estrada to be too much diversity for their taste. He is 
     considered to be a conservative, and the interest groups that 
     drive the Democratic Party nationally fear Owen is, too, at 
     least on their abortion litmus test.
       The fear with Owen and Estrada is that one or both will be 
     nominated to the U.S. Supreme Court should a vacancy occur. 
     Senate Democrats are determined to keep off the Circuit Court 
     bench any perceived conservative who has the credentials to 
     serve on the U.S. Supreme Court.
       Kerry, then, and the legions of presidential soundalikes 
     who campaign with him, have to come to a region where 
     conservatism is the mainstream to explain how reducing 
     federal taxes is bad and cheating exemplary women and 
     minorities of the fair hearing they have earned before the 
     U.S. Senate because they might be conservative is good.
       ``I can help you wage a fight down here and rebuild this 
     party for the long run,'' Kerry said in Birmingham. 
     Republicans have carried Alabama in all but three 
     presidential elections in the past 50 years. Jimmy Carter in 
     1976 was the last Democrat to carry the state. George W. Bush 
     carried every Southern state in 2000, including Tennessee, 
     his Democratic opponent's home state. Al Gore Jr. thought so 
     little of his Southern prospects that he actively campaigned 
     in just three states--Tennessee, Florida and West Virginia.
       Some Democrats, said Kerry, were ``surprised'' that he 
     visited Alabama.
       No surprise that he visited. The real surprise is the party 
     baggage he hauled.
       Opposition to tax cuts is comprehensible. Politicians 
     loathe interruption in the flow of spendable revenues. 
     Opposition to the war is, too. Too confrontational. Angers 
     adversaries. Provokes understandable aggression, for which we 
     bear unexpurgated sin.
       While some positions are understandable, not so their 
     party-line opposition to Owen and Estrada. Owen, the new 
     filibusteree, drew the American Bar Association's highest 
     rating. She is a cum laude graduate of the Baylor University 
     Law School who scored the top grade in Texas on the bar exam. 
     She practiced 17 years before becoming a judge and has been 
     widely praised for her integrity and ability. Liberal groups 
     say, unconvincingly except when they are talking to each 
     other and Senate Democrats, that she is anti-abortion and 
     pro-business.
       Being a neighborly people, Southerners of course welcome 
     Kerry to visit the region and to indulge himself in its 
     hospitality. But the senator should not indulge himself into 
     believing that a party that opposes tax cuts and filibusters 
     nominees such as Owen and Estrada has the slightest chance of 
     carrying this region.
                                  ____


                               Exhibit 2

             [From the Dallas Morning News, Feb. 21, 2003]

     Rush to Judgment: Estrada Nomination Has Been Blocked Too Long

       There is a time for talking and a time for voting. The time 
     is past for the U.S. Senate to talk about Miguel Estrada's 
     nomination to the federal Court of Appeals for the District 
     of Columbia circuit. It's time to vote.
       Having emigrated from Honduras as a teenager unable to 
     speak much English, Mr. Estrada went on to graduate magna cum 
     laude from Columbia University and Harvard Law School, to 
     clerk for a Supreme Court justice, to serve two 
     administrations in the U.S. solicitor general's office, to 
     win more than a dozen cases in the Supreme Court. In short, 
     the 42-year-old lawyer is talented. Who knew that talent 
     would extend to tying the Senate in knots for days on end.
       Democrats by now are in full filibuster. Senate 
     proceedings, as carried on C-Span, resemble the film 
     Groundhog Day, where the main character has to relive the 
     same day over and over again. Every day, it's the same thing. 
     Democrats get up, march over to the podium, shuffle papers 
     and recite their main complaint with Mr. Estrada--that he's 
     conservative, unconventional and unapologetic. That when he 
     had the chance to hand them the rope with which to hang him 
     during his hearing before the Senate Judiciary Committee, he 
     refused to hold up his end.
       Democrats haven't liked Mr. Estrada from the beginning. 
     Part of that is due to his ideology--which is decidedly not 
     Democratic. But part of it also has to do with the fellow who 
     nominated him. Democrats don't relish giving President Bush 
     one more thing to brag about when he goes into Hispanic 
     neighborhoods during his re-election campaign next year. They 
     are even less interested in putting a conservative Republican 
     in line to become the first Hispanic justice on the Supreme 
     Court.
       And so they have talked and talked, in hopes that 
     Republicans will back down. They won't. Nor should they.
       Republicans certainly stalled their share of appointments 
     during the Clinton administration. But Democrats are being 
     shortsighted in seeking retaliation. It is precisely these 
     sorts of narrowly motivated temper tantrums--from both sides 
     of the political aisle--that turn off voters and make cynics 
     of the American people. When that happens, it doesn't matter 
     which nominees get confirmed or rejected. Everybody loses.

  Mr. HATCH. I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. 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, for some reason the Republican leadership 
is forcing what may be the fifth vote on a cloture motion on this 
divisive and controversial nomination.
  I mention that because none of these cloture motions would have been 
needed if the administration had simply cooperated with the Senate as 
did prior administrations, Democratic and Republican. I have been here 
with six different administrations. The previous five always, no matter 
who was President, no matter who was in the majority in the Senate, 
always showed cooperation on judicial nominations as, I believe, has 
every President in the last century. Not this one.
  I mention that because we are having this vote yet nothing has 
changed since the last cloture vote. No effort has been forthcoming by 
the administration to accommodate Senators' requests for access to the 
executive branch documents requested last May, almost a year ago. 
Everybody says Mr. Estrada is perfectly willing to come up

[[Page 10459]]

and answer Senators' questions but not to answer the only questions the 
Senators really want to ask him.
  Remember, this man was appointed based on what the administration 
knows of his writings while employed in the government. They have 
access to these writings. They say, in effect: Trust us. I am a strong 
supporter of Ronald Reagan's position: Trust but verify. I would like 
him to verify what was in these writings. We have not had access to 
them. If we did, we wouldn't be needing all these cloture votes.
  Since the beginning of this year, despite the fixation on the 
President's most controversial nominations, we have worked hard to 
reduce judicial vacancies even further. As of today, the number of 
judicial vacancies is 49. That is the lowest it has been in many years. 
That is lower than at any time during the entire 8 years of the Clinton 
administration. We have already reduced judicial vacancies from 110, 
when I became chairman of the Senate Judiciary Committee, to 49. We did 
this in less than 2 years. We have reduced the vacancy rate from 12.8 
percent to 5.7 percent, the lowest it has been in a decade. If we could 
get even a modicum of cooperation from the administration, think of the 
additional progress we could be making.
  The Nation's unemployment rate rose last month to 6 percent, but the 
vacancy rate in the Federal judiciary dipped to 5.7 percent. While the 
number of private sector jobs lost since the beginning of this 
administration is 2.7 million, and while almost 9 million Americans are 
now out of work, and unemployment has risen by more than 45 percent 
during this administration, Democrats in the Senate have cooperated, 
moving forward to confirm 121 of the President's judicial nominees to 
reduce judicial vacancies to the lowest level in more than a decade and 
to reduce Federal judicial vacancies by more than 60 percent.
  Apparently, the majority in the Senate remains obsessed in seeking to 
force through the most divisive of this President's controversial, 
ideologically chosen nominees. While they have pushed the Nation's 
unemployment rate up to 6 percent, they have focused their energies on 
dropping the vacancy rate of the Federal judiciary to below that.
  I think it is unfortunate that the White House and some of my friends 
on the other side of the aisle have insisted on this confrontation 
rather than working with us to provide the needed information so we 
could proceed on the Estrada nomination. Some seem to prefer political 
game playing, seeking to pack the courts with ideologues and leveling 
baseless charges of bigotry at those who may disagree with them, rather 
than working with us on this nomination by providing information and 
proceeding to a fair vote.
  We have spent day after day on this nomination that will not go any 
further until the nominee is given permission to provide answers to us 
regarding the same questions that were obviously asked by the 
administration. What was it he wrote that made the administration want 
to appoint him to the second highest court in the land?
  On one level, I admire their efforts to get this high-paying lifetime 
job for this nominee. Maybe they should talk about the 9 million 
Americans who do not have any lifetime job, who now don't have any job; 
or the 2.7 million Americans who have lost their jobs since this 
administration came into office. Maybe we should be debating that. 
Maybe we should be working to put them back to work. Apparently, the 
administration believes it is more important to have this one job.
  In that regard, just as any employer would want to know why they 
should hire a particular person, we in the Senate have a right to ask 
what is it in this man's record that made the administration want to 
appoint him to the second highest court in the land. But they don't 
want us to see what it was on which they based their decision. Maybe 
they believe the Senate is irrelevant.
  That is not the way I read the advise and consent clause. Let us see 
what brought them to their conclusion, and then let us go forward. 
Let's actually take those steps that would unite us rather than divide 
us, and then maybe the administration will be able to turn to the lives 
of the millions upon millions of Americans who are out of work--the 
highest unemployment rate in a decade.
  To reiterate, today the Republican leadership in the Senate is 
forcing what may be the fifth vote on a cloture motion on this divisive 
and controversial nomination. None of these motions would have been 
needed if the administration had cooperated with the Senate as have 
prior administrations, Democratic and Republican. Nothing has changed 
from the last cloture vote. No effort has been forthcoming by the 
administration to accommodate Senators' requests for access to the 
executive branch documents requested last May, almost 1 year ago. The 
White House continues to obstruct any progress toward resolving this 
matter by its unprecedented refusal to turn over documents requested to 
determine whether or not Miguel Estrada should sit on the second 
highest court in the land, for life. Mr. Estrada's nomination is 
apparently being sacrificed by the administration for its own partisan, 
political purposes.
  I do want to thank the Democratic leadership in the Senate for 
working with us and helping press for a vote on the nomination of Judge 
Edward Prado to the Fifth Circuit last week. We had been seeking that 
vote for several weeks, since his nomination was favorably reported 
with the support of every Democratic member of the Judiciary Committee. 
Last Thursday, the Republican leadership at last agreed to schedule 
that nomination for Senate consideration. Judge Prado's nomination was 
confirmed 97 to zero. This nomination is another example of how quickly 
the Senate is able to proceed on consensus, mainstream nominees. Judge 
Prado has 19 years of experience as a U.S. District Court judge. Our 
review of his actions on the bench showed him to have a solid record of 
fairness and evenhandedness. No supervisor or colleague of Judge Prado 
has questioned his willingness to interpret the law fairly. Judge Prado 
enjoyed the full support of the Congressional Hispanic Caucus and the 
Mexican American Legal Defense and Education Fund. Not a single person 
or organization submitted a letter of opposition or raised concerns 
about Judge Prado.
  Judge Prado is now the second nominee of this President to be 
confirmed by the Senate to the Fifth Circuit after years during which 
President Clinton's nominees were denied hearings and consideration by 
a Republican Senate majority. Although Republicans had refused to 
proceed on three of President Clinton's nominees to that court--two 
from Texas and one from Louisiana--during his entire second term, 
Democrats proceeded with hearings and committee votes on all three of 
President Bush's nominees. Judge Prado is the fourth nominee of this 
administration to receive a hearing and consideration.
  Still stalled on the Senate Executive Calendar is the nomination of 
Judge Cecilia Altonaga to be a Federal judge in Florida. Senator Graham 
requested that the Judiciary Committee expedite the consideration of 
her nomination, and we did. All Democratic members of the Judiciary 
Committee supported this nomination. She will be the first Cuban-
American woman to be confirmed to the Federal bench, whenever the 
Republican majority is willing to proceed on her nomination. In my 
view, the Senate's time would be better spent this evening voting on 
this nomination than another unsuccessful cloture vote on the Estrada 
nomination. Unfortunately, that is not how the Republican leadership 
has chosen to proceed.
  The administration remains intent on packing the Federal circuit 
courts and on insisting that the Senate rubberstamp its nominees 
without fulfilling this body'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

[[Page 10460]]

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 an earlier 
cloture petition, I outlined additional precedent for sharing the 
requested materials with the Senate, as did Senator Kennedy. I am 
disappointed that the White House refuses to end this problem and, 
instead, continues to politicize the process.
  We understand that the President's nominees will be Republicans. We 
understand they will be conservative. We understand that they will have 
positions with which we disagree. I have voted for hundreds of nominees 
who were conservative Republicans.
  In just the last 2 years, 121 of the President's judicial nominees 
have been confirmed. One hundred of those confirmations came during the 
17 months of Democratic leadership of the Senate. No fair-minded 
observer could term that obstructionism. By contrast, during the 6\1/2\ 
years during which Republicans controlled the Senate and President 
Clinton's nominations were being considered, they averaged only 38 
confirmations a year. During the last two years of the Clinton 
administration, the Senate confirmed only 73 Federal judges--the Senate 
confirmed 72 judges nominated by President Bush last year alone. 
Combining the 1996 and 1997 sessions, Republicans in the Senate allowed 
only 53 judges to be confirmed in 2 years, including only seven new 
judges to the Circuit Courts.
  It is a shame that the White House refuses to work together with us 
to do even more to help the Federal judiciary. This week, we have 
already had a debate and vote on yet another controversial circuit 
court nominee, Deborah Cook, for the Sixth Circuit, and now a cloture 
vote on the nomination of Miguel Estrada.
  The fact is that when Democrats became the Senate majority in the 
summer of 2001, when we inherited 110 judicial vacancies, there was a 
dire need to fill judicial vacancies. Over the next 17 months, despite 
constant criticism from the administration, the Senate proceeded to 
confirm 100 of President Bush's nominees, including several who were 
divisive and controversial, several who had mixed peer review ratings 
from the ABA, and at least one who had been rated not qualified. 
Despite the additional 40 vacancies that arose, we reduced judicial 
vacancies to 60, a level below that termed ``full employment'' by 
Senator Hatch. Since the beginning of this year, in spite of the 
fixation of the Republican majority on the President's most 
controversial nominations, we have worked hard to reduce judicial 
vacancies even further. As of today, the number of judicial vacancies 
is at 49. That is the lowest it has been in 7 years. That is lower than 
at any time during the entire 8 years of the Clinton administration. We 
have already reduced judicial vacancies from 110 to 49, in less than 2 
years. We have reduced the vacancy rate from 12.8 percent to 5.7 
percent, the lowest it has been in a decade. With some cooperation from 
this administration, think of the additional progress we could be 
making.
  While the Nation's unemployment rate rose last month to 6 percent, 
the vacancy rate on the Federal judiciary dipped to 5.7 percent. While 
the number of private sector jobs lost since the beginning of the Bush 
administration is 2.7 million, almost 9 million Americans are now out 
of work, and unemployment has risen by more than 45 percent, Democrats 
in the Senate have cooperated in moving forward to confirm 121 of this 
President's judicial nominees, to reduce judicial vacancies to the 
lowest level in more than a decade, and to reduce Federal judicial 
vacancies by almost 60 percent. Yet the Republican-led Senate remains 
obsessed with seeking to force through the most divisive of this 
President's controversial, ideologically-chosen nominees.
  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 on the Estrada 
nomination. 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 partisan 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 fifth 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 2 years, to work with us and, quoting 
from today's New York Times editorial:

       The answer is not to try to twist the rules or demonize 
     Democrats. It is for the White House to consult with the 
     Senate and agree on nominees that senators from both parties 
     can in good conscience confirm.

  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 as well as the Senate on these issues.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. 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. HATCH. Mr. President, the Senator from Vermont made a point that 
the White House has seen these privileged documents in the Solicitor 
General's Office. If they have any evidence of that, I would like to 
see it because I know they haven't looked at those records. Those are 
the most highly privileged records in the Justice Department. I am not 
sure that a Solicitor General wouldn't resign before giving up those 
records.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. 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.

[[Page 10461]]


  Mr. LEAHY. Mr. President, if I have any remaining time, I yield it.
  Mr. HATCH. Likewise.


                             Cloture Motion

  The PRESIDING OFFICER. All time has been yielded. Under the previous 
order, the clerk will report the motion to invoke cloture.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of Rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on Executive 
     Calendar No. 21, the nomination of Miguel A. Estrada to be 
     United States Circuit Judge for the District of Columbia 
     Circuit.
         Bill Frist, Orrin Hatch, Judd Gregg, Norm Coleman, John 
           E. Sununu, John Cornyn, Larry E. Craig, Saxby 
           Chambliss, Lisa Murkowski, Jim Talent, Olympia Snowe, 
           Mike DeWine, Michael B. Enzi, Peter G. Fitzgerald, 
           Lindsey Graham, Jeff Sessions.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call is waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Miguel A. Estrada to be United States Circuit Judge for 
the District of Columbia Circuit shall be brought to a close?
  The yeas and nays are mandatory under the rule. The clerk will call 
the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. I announce that the Senator from Alaska (Ms. 
Murkowski) and the Senator from Pennsylvania (Mr. Specter) are 
necessarily absent.
  Mr. REID. I announce that the Senator from Washington (Ms. Cantwell), 
the Senator from Florida (Mr. Graham), the Senator from Massachusetts 
(Mr. Kerry), the Senator from Connecticut (Mr. Lieberman), the Senator 
from Maryland (Ms. Mikulski), the Senator from Georgia (Mr. Miller), 
and the Senator from Washington (Mrs. Murray) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Massachusetts (Mr. Kerry) would vote ``no.''
  The PRESIDING OFFICER (Mr. Graham of South Carolina). Are there any 
other Senators in the Chamber desiring to vote?
  The yeas and nays resulted--yeas 52, nays 39, as follows:

                      [Rollcall Vote No. 140 Ex.]

                                YEAS--52

     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
     Nelson (FL)
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--39

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

                             NOT VOTING--9

     Cantwell
     Graham (FL)
     Kerry
     Lieberman
     Mikulski
     Miller
     Murkowski
     Murray
     Specter
  The PRESIDING OFFICER. On this vote, the yeas are 52, the nays are 
39. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.


                            VOTE EXPLANATION

  (At the request of Mr. Daschle, the following statement was ordered 
to be printed in the Record.)
 Ms. CANTWELL. Mr. President, I have the great honor of being 
in Washington State today in order to welcome home the USS Lincoln and 
USS Camden. After a 10-month deployment, including valuable service in 
the recent war against Iraq, the men and women of the USS Lincoln and 
her carrier strike group will finally reach Everett and Bremerton, WA 
in the next few hours. Unfortunately, in order to be present for this 
important homecoming in my State--it was necessary to miss two votes 
today.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________