S5714 CONGRESSIONAL RECORD — SENATE May 5, 2003 NOMINATION OF MIGUEL A. has, in interviews, acknowledged he was re- ponderance of the evidence that she is suffi- ESTRADA, OF VIRGINIA, TO BE A ferring to her and said that his description of ciently well informed to have an abortion UNITED STATES CIRCUIT JUDGE her as a judicial activist was merely heated without parental notification. The court of FOR THE DISTRICT OF COLUM- language among judges who disagreed. appeals affirmed. After reviewing the record, While the first floor fight over the Owen we determined that Doe conclusively [**2] es- BIA nomination was occurring, another judicial tablished the statutory requirements and The PRESIDING OFFICER. Under nomination drama was being played out that she was entitled to consent to the pro- the previous order, the Senate will pro- across the street in the Judiciary Com- cedure without notifying a parent. We issued ceed to consider the nomination of mittee, which was considering President an order on March 10, 2000, reversing the court of appeals’ judgment, with opinions to Miguel A. Estrada, which the clerk will Bush’s nomination of J. Leon Holmes to be a district judge in Arkansas. follow on the concern that Doe be able to un- report. Senator Orrin G. Hatch, the Utah Repub- dergo a less risky abortion procedure, if that The assistant legislative clerk read lican who is chairman of the committee, did option was still available to her and that was the nomination of Miguel A. Estrada, not ask for a vote on approving the Holmes her decision. The following is our opinion of Virginia, to be United States Circuit nomination as is customary. Instead, he holding that the evidence Doe presented con- Judge for the District of Columbia. took the extraordinary step of asking that clusively established that she was ‘‘mature The PRESIDING OFFICER. Under the committee vote to send the nomination and sufficiently well informed’’ to consent to the previous order, the time until 6 to the full Senate without a recommenda- an abortion without parental notification. p.m. shall be equally divided between tion. See TEX. FAM. CODE § 33.003(i). Mr. Hatch was apparently concerned that I the chairman and the ranking member some Republicans on the committee were or their designees. Abortion is a highly-charged issue that not completely comfortable with the nomi- often engenders heated public debate. Such The Senator from Utah. nation after disclosures that Mr. Holmes, an debate is to be expected and, indeed, em- Mr. REID. Mr. President, if the Sen- ardent opponent of abortion, had made sev- braced in our free and democratic society. It ator will yield for a brief statement, we eral notable comments about the role of is through this very type of open exchange have had a number of people on this women in society. that our Legislature crafted and enacted the side of the aisle who have indicated we In 1997 Mr. Holmes wrote that ‘‘the woman particular statutory scheme before us. Our are to object to any extension of time is to place herself under the authority of the system of government requires the judicial man.’’ He had also written that abortion branch to independently review and dis- beyond 6. Even though the vote took a should not be available to rape victims be- little longer than expected, we cannot passionately interpret legislation in accord- cause conceptions from rape occur with the ance with the Legislature’s will as expressed extend the time past 6. same frequency as snow in Miami. in the statute. We begin our analysis with an Mr. HATCH. That is fine. Most of the combat over judicial confirma- overview of the Parental [*350] Notification NOMINATION OF PRISCILLA OWEN tions has been over appeals court judges, the [**3] Act’s judicial bypass procedure and our I yield 1 minute to the Senator from level just below the Supreme Court, and the role in interpreting it. nomination of Mr. Holmes, to the trial court A. The Proper Role of Judges California on their time. She wanted to had initially attracted little notice. make a statement and put something But at a committee session last week, Sen- ‘‘[Courts] are under the constraints im- in the RECORD, but it should come on ator Dianne Feinstein, Democrat of Cali- posed by the judicial function in our demo- their time. fornia, said that she had never voted against cratic society. . . . The function in con- The PRESIDING OFFICER. Without a district court nominee but that she found struing a statute is to ascertain the meaning Mr. Holmes’s remarks shocking. of words used by the legislature. To go be- objection, it is so ordered. yond it is to usurp a power which our democ- Mrs. BOXER. I thank my friend, ‘‘I do not see how anyone can divine from these comments that he has either the tem- racy has lodged in its elected legislature. Chairman HATCH. When Chairman perament or the wisdom to be a judge,’’ Sen- . . . A judge must not rewrite a statute, nei- HATCH and I were debating the Owen ator Feinstein said. ther to enlarge nor to contract it.’’—Felix nomination, which is not before us, he Senator Hatch said today that he was con- Frankfurter (RECORD OF THE ASSOCIA- questioned two statements I made. One cerned about some of those remarks and that TION OF THE BAR OF THE CITY OF NEW was that she did not write a dissenting Mr. Holmes had expressed regret for some. YORK 213 (1947), reprinted in COURTS, opinion in Doe and the second was that But the most important factor, the senator JUDGES, AND POLITICS, at 414 (Walter F. said, was that many people in Arkansas, in- Murphy & C. Herman Pritchett, eds., 2d ed. Judge Gonzales never referred to her as 1974). a judicial activist. I ask unanimous cluding the state’s two Democratic senators, Mark Pryor and Blanche Lincoln, still sup- Mrs. BOXER. When I come to speak consent to have these documents print- ported the nomination. on the Senate floor, I do my home- ed in the RECORD, the dissenting opin- work. I felt very badly about that, and ion, the first page, which shows that IN RE JANE DOE, NO. 00–0224, SUPREME COURT OF now I have the documentation. I thank she, in fact, did file a dissenting opin- TEXAS my friend for yielding. I know it does ion. Secondly, an article that appeared 19 S.W.3d 346; 2000 Tex. LEXIS 67; 43 Tex. Sup. not make him happy, but he was very about a week ago in the New York J. 910 generous to me to allow this minute to Times which says that Judge Gonzales June 22, 2000, Delivered send these documents to the desk. said he was referring to Justice Owen DISPOSITION: [**1] Reversed the court of The PRESIDING OFFICER. The Sen- when he said she was an activist. He appeals’ judgment and rendered judgment ator from Utah. did say it was merely heated language granting Doe’s application for a judicial by- Mr. HATCH. Rather than take time but, in fact, he said he was referring to pass. JUDGES: JUSTICE O’NEILL delivered the to respond, I will write a letter to the her. distinguished Senator and point out There being no objection, the mate- opinion of the Court, jointed by JUSTICE ENOCH, JUSTICE BAKER, JUSTICE where she is in error on the Owen mat- rial was ordered to be printed in the HANKINSON, and JUSTICE GONZALES and ter. As a matter of fact, I think it has RECORD, as follows: by CHIEF JUSTICE PHILLIPS as to Parts II been outrageous the way some of the . . . Texas interpreting the state’s law al- and III. JUSTICE ENOCH filed a concurring arguments have been made on the lowing a teenager to obtain an abortion opinion, joined by JUSTICE BAKER, JUS- other side against this really excellent without notifying her parents if she can TICE GONZALES filed a concurring opinion, justice from the State of Texas, who show a court that she is mature enough to joined by JUSTICE ENOCH. JUSTICE understand the consequences. HECHT filed a dissenting opinion. JUSTICE has a unanimous well qualified, the In the dissent, Justice Owen said the teen- OWEN filed a dissenting opinion. JUSTICE highest rating, from the American Bar ager in the case had not demonstrated that ABBOTT filed a dissenting opinion. Association. I think we have had pure, she knew that there were religious objec- OPINION BY: Harriet O’Neill. unadulterated, raw politics involved tions to abortion and that some women who OPINION: [*349] APPEAL UNDER SEC- with regard to Justice Owen. underwent abortions had experienced severe TION 33.004(F), FAMILY CODE. This debate we are now having is remorse. This is an appeal from an order denying a about the raw politics that are being One of the other justices on the court at minor’s application for a court order author- used against Miguel Estrada, the first the time was Alberto R. Gonzales, now the izing her to consent to an abortion without White House counsel. He wrote that the notifying a parent. After remand from this Hispanic ever nominated to the Circuit reading of the law by the dissenters was ‘‘an Court, see In re Jane Doe, 19 S.W.3d 249, 2000 Court of Appeals for the District of Co- unconscionable act of jusdicial activism.’’ Tex. LEXIS 21 (Tex. 2000) (‘‘Doe 1(I)’’), the lumbia. Justice Owen has said that Justice Gon- trial court conducted another hearing and Today is Cinco de Mayo, the Fifth of zalez was not referring to her. Mr. Gonzales found that Jane Doe failed to prove by a pre- May, commemorating the victory of

VerDate Jan 31 2003 01:43 May 06, 2003 Jkt 019060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G05MY6.046 S05PT1 May 5, 2003 CONGRESSIONAL RECORD — SENATE S5715 the Mexican army over the French Senate Democrats are determined to Make competitive, he neglected to men- army at the Battle of Puebla in 1862. keep off the Circuit Court bench any tion, a party that has positioned itself in op- This battle came to represent a symbol perceived conservative who has the cre- position to the war in Iraq and anything of Mexican unity and patriotism. The dentials to serve on the U.S. Supreme other than token tax cuts, and as Democrats reminded the nation once again about the victory demonstrated to the world that Court.’’ I ask unanimous consent that elevation of conservatives to the federal Mexico and all of Latin America were a copy of this editorial be printed in bench. While the White House may appeal to willing to defend themselves against the RECORD following my remarks. some as inside work with no heavy lifting, any foreign intervention. Cinco de The PRESIDING OFFICER. Without getting there through the South toting this Mayo is now viewed as a festive day to objection, it is so ordered. party’s agenda will be a task requiring Her- celebrate freedom and liberty. (See exhibit 1.) culean labor. The fifth of May, 2003, in the Senate, Mr. HATCH. As far as Mr. Estrada Just this week, for example, Kerry’s Demo- unfortunately is also the 3-month anni- goes, there is an additional factor that cratic colleagues—Georgia’s Zell Miller ex- cepted—began to filibuster the nomination versary of the beginning of the debate is not based on any substantive objec- of Texas Supreme Court Justice Priscilla on Miguel Estrada. I would hope that tion to his nomination. I believe that Owen to the New Orleans-based 5th U.S. Cir- we would be celebrating the liberation some Senate Democrats do not want cuit Court of Appeals. of his nomination and the freedom to the current President, a Republican Kerry and other Democrats are already vote on final passage on this Cinco de President, to appoint the first Hispanic filibustering the nomination of Miguel Mayo. But instead, the nomination of as United States Circuit Judge for the Estrada to the District of Columbia Circuit Miguel Estrada has been captured by a District of Columbia Circuit. Court of Appeals—the first time simulta- Let me read from an editorial pub- neous filibusters against judicial nominees minority of Senators who refuse to have occurred in the U.S. Senate. allow a final vote on his nomination. lished by the Dallas Morning News ad- Both Owen and Estrada are superbly quali- They insist on their unprecedented fili- dressing this point. On February 17, fied in every respect. Yet on Owen, those buster, following their game plan of ob- 2003, the News wrote: who complain that a ‘‘glass ceiling’’ exists struction. In fact, they have com- Democrats haven’t liked Mr. Estrada from for women of achievement are busily con- pounded their obstructionist tactics by the beginning. Part of that is due to his ide- structing one to keep her in her place. And engaging in a second filibuster, this ology—which is decidedly not Democratic. those who complain that the federal bench time on Priscilla Owen, nominated to But part of it also has to do with the fellow lacks ‘‘diversity’’ find Estrada to be too much diversity for their taste. He is consid- the Fifth Circuit Court of Appeals. She who nominated him. Democrats don’t relish giving President Bush one more thing to ered to be a conservative, and the interest also has a unanimous well-qualified brag about when he goes into Hispanic neigh- groups that drive the Democratic Party na- rating from the American Bar Associa- borhoods during his re-election campaign tionally fear Owen is, too, at least on their tion, the badge of honor, the gold next year. They are even less interested put- abortion litmus test. standard, that our colleagues on the ting a conservative Republican in line to be- The fear with Owen and Estrada is that one other side of the aisle, have said that come the first Hispanic justice on the Su- or both will be nominated to the U.S. Su- rating is. preme Court. preme Court should a vacancy occur. Senate I must admit, the Democrat game I ask unanimous consent that the en- Democrats are determined to keep off the Circuit Court bench any perceived conserv- plan of delay and obstructionism is not tire editorial be printed in the RECORD ative who has the credential to serve on the surprising, but it is getting somewhat following my remarks. U.S. Supreme Court. contradictory. In the case of Mr. The PRESIDING OFFICER. Without Kerry, then, and the legions of presidential Estrada, Democrats say they cannot objection, it is so ordered. soundalikes who campaign with him, have to vote for the nominee because they do Mr. HATCH. I don’t know if Mr. come to a region where conservatism is the not know enough about him. They al- Estrada is a conservative Republican, mainstream to explain how reducing federal lege he did not answer their questions but I do know he is qualified for the po- taxes is bad and cheating exemplary women sition to which he is nominated, and it and minorities of the fair hearing they have and therefore they must have Depart- earned before the U.S. Senate because they ment of Justice confidential memo- is well past time to vote on his nomi- might be conservative is good. randa he wrote while he was a line at- nation. This Friday will mark the two- ‘‘I can help you wage a fight down here and torney in the Solicitor General’s office; years anniversary of his nomination on rebuild this party for the long run,’’ Kerry memoranda that have never been given May 9, 2001. The Majority leader has said in Birmingham. Republicans have car- in any way, shape or form to anybody made every attempt to obtain time ried Alabama in all but three presidential in the Senate in a confirmation battle agreements or use other procedures to elections in the past 50 years. Jimmy Carter before, or anybody else for that matter. bring this matter to a resolution. Each in 1976 was the last Democrat to carry the state. George W. Bush carried every South- Even the White House has not seen of these attempts has been rebuffed by ern state in 2000, including Tennessee, his these matters because they are so high- a minority of this body. Some Senate Democratic opponent’s home state. Al Gore ly privileged, not Judge Gonzales, not Democrats have used every delay and Jr. thought so little of his Southern pros- anybody else in the White House. obstructionist tactic available. Yet pects that he actively campaigned in just There are no such claims about Jus- they still cannot identify one sub- three states—Tennessee, Florida and West tice Owen. Democrat opponents admit stantive issue that would justify or ex- Virginia. they know enough about her, that she cuse their refusal to permit a final Some Democrats, said Kerry, were ‘‘sur- did answer the questions, and that she prised’’ that he visited Alabama. vote. No surprise that he visited. The real sur- has a record they can review. There are Mr. President, on this day, 141 years prise is the party baggage he hauled. no phony excuses. They simply oppose ago, the Mexican Army defeated forces Opposition to tax cuts is comprehensible. her on philosophical grounds, namely, which represented tyranny and de- Politicians loathe interruption in the flow of her interpretation of the Texas paren- fended the liberty of their nation. I spendable revenues. Opposition to the war is, tal notification statute that applies to urge my colleagues, on this day of cele- too. Too confrontational. Angers adver- minor girls seeking an abortion. bration, to defeat the tyranny of the saries. Provokes understandable aggression, This double standard demonstrates minority by voting to bring the debate for which we bear unexpurgated sin. that some Senate Democrats are will- While some positions are understandable, on the nomination of Miguel Estrada not so their party-line opposition to Owen ing to use whatever obstructionist tac- to a close. and Estrada. Owen, the new filibusteree, tics it takes, based on any convenient I yield the floor. drew the American Bar Association’s highest rationale, to defeat the President’s EXHIBIT 1 rating. She is a cum laude graduate of the nominees. [From the Atlanta Journal-Constitution, Baylor University Law School who scored While the rationales may be dif- May 4, 2003] the top grade in Texas on the bar exam. She practiced 17 years before becoming a judge ferent, the motivation in both cases is DEMOCRATS USE WRONG ROUTE TO WIN SOUTH and has been widely praised for her integrity the same. I think that a recent edi- (By Jim Wooten) torial appearing in the Atlanta Jour- and ability. Liberal groups say, U.S. Senator John Kerry (D–Mass.) brought unconvincingly except when they are talking nal-Constitution said it best: ‘‘The fear his presidential aspirations to the South last to each other and Senate Democrats, that with Owen and Estrada is that one or week, promising in Alabama that he will she is anti-abortion and pro-business. both will be nominated to the U.S. Su- make the national party competitive here Being a neighborly people, Southerners of preme Court should a vacancy occur. once again. course welcome Kerry to visit the region and

VerDate Jan 31 2003 01:43 May 06, 2003 Jkt 019060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\A05MY6.021 S05PT1 S5716 CONGRESSIONAL RECORD — SENATE May 5, 2003 to indulge himself in its hospitality. But the ed if the administration had simply co- their energies on dropping the vacancy senator should not indulge himself into be- operated with the Senate as did prior rate of the Federal judiciary to below lieving that a party that opposes tax cuts administrations, Democratic and Re- that. and filibusters nominees such as Owen and publican. I have been here with six dif- I think it is unfortunate that the Estrada has the slightest chance of carrying White House and some of my friends on this region. ferent administrations. The previous five always, no matter who was Presi- the other side of the aisle have insisted EXHIBIT 2 dent, no matter who was in the major- on this confrontation rather than [From the Dallas Morning News, Feb. 21, ity in the Senate, always showed co- working with us to provide the needed 2003] operation on judicial nominations as, I information so we could proceed on the RUSH TO JUDGMENT: ESTRADA NOMINATION believe, has every President in the last Estrada nomination. Some seem to pre- HAS BEEN BLOCKED TOO LONG century. Not this one. fer political game playing, seeking to There is a time for talking and a time for I mention that because we are having pack the courts with ideologues and voting. The time is past for the U.S. Senate this vote yet nothing has changed since leveling baseless charges of bigotry at to talk about Miguel Estrada’s nomination the last cloture vote. No effort has those who may disagree with them, to the federal Court of Appeals for the Dis- been forthcoming by the administra- rather than working with us on this trict of Columbia circuit. It’s time to vote. tion to accommodate Senators’ re- nomination by providing information Having emigrated from Honduras as a quests for access to the executive and proceeding to a fair vote. teenager unable to speak much English, Mr. branch documents requested last May, We have spent day after day on this Estrada went on to graduate magna cum almost a year ago. Everybody says Mr. nomination that will not go any fur- laude from Columbia University and Harvard Law School, to clerk for a Supreme Court Estrada is perfectly willing to come up ther until the nominee is given permis- justice, to serve two administrations in the and answer Senators’ questions but not sion to provide answers to us regarding U.S. solicitor general’s office, to win more to answer the only questions the Sen- the same questions that were obviously than a dozen cases in the Supreme Court. In ators really want to ask him. asked by the administration. What was short, the 42-year-old lawyer is talented. Remember, this man was appointed it he wrote that made the administra- Who knew that talent would extend to tying based on what the administration tion want to appoint him to the second the Senate in knots for days on end. knows of his writings while employed highest court in the land? Democrats by now are in full filibuster. in the government. They have access to On one level, I admire their efforts to Senate proceedings, as carried on C–Span, re- get this high-paying lifetime job for semble the firm Goundhog Day, where the these writings. They say, in effect: main character has to relive the same day Trust us. I am a strong supporter of this nominee. Maybe they should talk over and over again. Every day, it’s the same Ronald Reagan’s position: Trust but about the 9 million Americans who do thing. Democrats get up, march over to the verify. I would like him to verify what not have any lifetime job, who now podium, shuffle papers and recite their main was in these writings. We have not had don’t have any job; or the 2.7 million complaint with Mr. Estrada—that he’s con- access to them. If we did, we wouldn’t Americans who have lost their jobs servative, unconventional and unapologetic. be needing all these cloture votes. since this administration came into of- That when he had the chance to hand them Since the beginning of this year, de- fice. Maybe we should be debating that. the rope with which to hang him during his spite the fixation on the President’s Maybe we should be working to put hearing before the Senate Judiciary Com- mittee, he refused to hold up his end. most controversial nominations, we them back to work. Apparently, the Democrats haven’t liked Mr. Estrada from have worked hard to reduce judicial va- administration believes it is more im- the beginning. Part of that is due to his ide- cancies even further. As of today, the portant to have this one job. ology—which is decidedly not Democratic. number of judicial vacancies is 49. That In that regard, just as any employer But part of it also has to do with the fellow is the lowest it has been in many years. would want to know why they should who nominated him. Democrats don’t relish That is lower than at any time during hire a particular person, we in the Sen- giving President Bush one more thing to the entire 8 years of the Clinton admin- ate have a right to ask what is it in brag about when he goes into Hispanic neigh- istration. We have already reduced ju- this man’s record that made the ad- borhoods during his re-election campaign ministration want to appoint him to next year. They are even less interested in dicial vacancies from 110, when I be- putting a conservative Republican in line to came chairman of the Senate Judiciary the second highest court in the land. become the first Hispanic justice on the Su- Committee, to 49. We did this in less But they don’t want us to see what it preme Court. than 2 years. We have reduced the va- was on which they based their decision. And so they have talked and talked, in cancy rate from 12.8 percent to 5.7 per- Maybe they believe the Senate is irrel- hopes that Republicans will back down. They cent, the lowest it has been in a dec- evant. won’t. Nor should they. ade. If we could get even a modicum of That is not the way I read the advise Republicans certainly stalled their share of cooperation from the administration, and consent clause. Let us see what appointments during the Clinton administra- brought them to their conclusion, and tion. But Democrats are being shortsighted think of the additional progress we in seeking retaliation. It is precisely these could be making. then let us go forward. Let’s actually sorts of narrowly motivated temper tan- The Nation’s unemployment rate take those steps that would unite us trums—from both sides of the political rose last month to 6 percent, but the rather than divide us, and then maybe aisle—that turn off voters and make cynics vacancy rate in the Federal judiciary the administration will be able to turn of the American people. When that happens, dipped to 5.7 percent. While the number to the lives of the millions upon mil- it doesn’t matter which nominees get con- of private sector jobs lost since the be- lions of Americans who are out of firmed or rejected. Everybody loses. ginning of this administration is 2.7 work—the highest unemployment rate Mr. HATCH. I yield the floor and sug- million, and while almost 9 million in a decade. gest the absence of a quorum. Americans are now out of work, and To reiterate, today the Republican The PRESIDING OFFICER. The unemployment has risen by more than leadership in the Senate is forcing clerk will call the roll. 45 percent during this administration, what may be the fifth vote on a cloture The legislative clerk proceeded to Democrats in the Senate have cooper- motion on this divisive and controver- call the roll. ated, moving forward to confirm 121 of sial nomination. None of these motions Mr. LEAHY. Mr. President, I ask the President’s judicial nominees to re- would have been needed if the adminis- unanimous consent that the order for duce judicial vacancies to the lowest tration had cooperated with the Senate the quorum call be rescinded. level in more than a decade and to re- as have prior administrations, Demo- The PRESIDING OFFICER. Without duce Federal judicial vacancies by cratic and Republican. Nothing has objection, it is so ordered. more than 60 percent. changed from the last cloture vote. No Mr. LEAHY. Mr. President, for some Apparently, the majority in the Sen- effort has been forthcoming by the ad- reason the Republican leadership is ate remains obsessed in seeking to ministration to accommodate Sen- forcing what may be the fifth vote on a force through the most divisive of this ators’ requests for access to the execu- cloture motion on this divisive and President’s controversial, ideologically tive branch documents requested last controversial nomination. chosen nominees. While they have May, almost 1 year ago. The White I mention that because none of these pushed the Nation’s unemployment House continues to obstruct any cloture motions would have been need- rate up to 6 percent, they have focused progress toward resolving this matter

VerDate Jan 31 2003 01:43 May 06, 2003 Jkt 019060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\A05MY6.023 S05PT1 May 5, 2003 CONGRESSIONAL RECORD — SENATE S5717 by its unprecedented refusal to turn and on insisting that the Senate level below that termed ‘‘full employ- over documents requested to determine rubberstamp its nominees without ful- ment’’ by Senator HATCH. Since the be- whether or not Miguel Estrada should filling this body’s constitutional advise ginning of this year, in spite of the fix- sit on the second highest court in the and consent role in this most impor- ation of the Republican majority on land, for life. Mr. Estrada’s nomination tant process. The White House could the President’s most controversial is apparently being sacrificed by the have long ago helped solve the impasse nominations, we have worked hard to administration for its own partisan, on the Estrada nomination by honoring reduce judicial vacancies even further. political purposes. the Senate’s role in the appointment As of today, the number of judicial va- I do want to thank the Democratic process and providing the Senate with cancies is at 49. That is the lowest it leadership in the Senate for working access to Mr. Estrada’s legal work. has been in 7 years. That is lower than with us and helping press for a vote on Past administrations have provided at any time during the entire 8 years of the nomination of Judge Edward Prado such legal memoranda in connection the Clinton administration. We have to the Fifth Circuit last week. We had with the nominations of Robert Bork, already reduced judicial vacancies been seeking that vote for several William Rehnquist, Brad Reynolds, from 110 to 49, in less than 2 years. We weeks, since his nomination was favor- Stephen Trott and Ben Civiletti, and have reduced the vacancy rate from ably reported with the support of every even this administration did so with a 12.8 percent to 5.7 percent, the lowest it Democratic member of the Judiciary nominee to the Environmental Protec- has been in a decade. With some co- Committee. Last Thursday, the Repub- tion Agency. In my statement in con- operation from this administration, lican leadership at last agreed to nection with an earlier cloture peti- think of the additional progress we schedule that nomination for Senate tion, I outlined additional precedent could be making. consideration. Judge Prado’s nomina- for sharing the requested materials While the Nation’s unemployment tion was confirmed 97 to zero. This with the Senate, as did Senator KEN- rate rose last month to 6 percent, the nomination is another example of how NEDY. I am disappointed that the White vacancy rate on the Federal judiciary quickly the Senate is able to proceed House refuses to end this problem and, dipped to 5.7 percent. While the number on consensus, mainstream nominees. instead, continues to politicize the of private sector jobs lost since the be- Judge Prado has 19 years of experience process. ginning of the Bush administration is as a U.S. District Court judge. Our re- We understand that the President’s 2.7 million, almost 9 million Americans view of his actions on the bench nominees will be Republicans. We un- are now out of work, and unemploy- showed him to have a solid record of derstand they will be conservative. We ment has risen by more than 45 per- fairness and evenhandedness. No super- understand that they will have posi- cent, Democrats in the Senate have co- visor or colleague of Judge Prado has tions with which we disagree. I have operated in moving forward to confirm questioned his willingness to interpret voted for hundreds of nominees who 121 of this President’s judicial nomi- the law fairly. Judge Prado enjoyed the were conservative Republicans. nees, to reduce judicial vacancies to full support of the Congressional His- In just the last 2 years, 121 of the the lowest level in more than a decade, panic Caucus and the Mexican Amer- President’s judicial nominees have and to reduce Federal judicial vacan- ican Legal Defense and Education been confirmed. One hundred of those cies by almost 60 percent. Yet the Re- Fund. Not a single person or organiza- confirmations came during the 17 publican-led Senate remains obsessed tion submitted a letter of opposition or months of Democratic leadership of the with seeking to force through the most raised concerns about Judge Prado. Senate. No fair-minded observer could divisive of this President’s controver- Judge Prado is now the second nomi- term that obstructionism. By contrast, sial, ideologically-chosen nominees. nee of this President to be confirmed during the 61⁄2 years during which Re- It is unfortunate that the White by the Senate to the Fifth Circuit after publicans controlled the Senate and House and some Republicans have in- years during which President Clinton’s President Clinton’s nominations were sisted on this confrontation rather nominees were denied hearings and being considered, they averaged only 38 than working with us to provide the consideration by a Republican Senate confirmations a year. During the last needed information so that we could majority. Although Republicans had two years of the Clinton administra- proceed on the Estrada nomination. refused to proceed on three of Presi- tion, the Senate confirmed only 73 Fed- Some on the Republican side seem to dent Clinton’s nominees to that eral judges—the Senate confirmed 72 prefer political game playing, seeking court—two from Texas and one from judges nominated by President Bush to pack our courts with ideologues and Louisiana—during his entire second last year alone. Combining the 1996 and leveling baseless charges of bigotry, term, Democrats proceeded with hear- 1997 sessions, Republicans in the Sen- rather than to work with us to resolve ings and committee votes on all three ate allowed only 53 judges to be con- the impasse over this nomination by of President Bush’s nominees. Judge firmed in 2 years, including only seven providing information and proceeding Prado is the fourth nominee of this ad- new judges to the Circuit Courts. to a fair vote. ministration to receive a hearing and It is a shame that the White House I was disappointed that Senator BEN- consideration. refuses to work together with us to do NETT’s straightforward colloquy with Still stalled on the Senate Executive even more to help the Federal judici- Senator REID and me on February 14, Calendar is the nomination of Judge ary. This week, we have already had a which pointed to a solution, was never Cecilia Altonaga to be a Federal judge debate and vote on yet another con- allowed by hard-liners on the other in Florida. Senator GRAHAM requested troversial circuit court nominee, Debo- side to yield results. I am disappointed that the Judiciary Committee expedite rah Cook, for the Sixth Circuit, and that all my efforts and those of Sen- the consideration of her nomination, now a cloture vote on the nomination ator DASCHLE and Senator REID have and we did. All Democratic members of of Miguel Estrada. been rejected by the White House. The the Judiciary Committee supported The fact is that when Democrats be- letter that Senator DASCHLE sent to this nomination. She will be the first came the Senate majority in the sum- the President on February 11 pointed Cuban-American woman to be con- mer of 2001, when we inherited 110 judi- the way to resolving this matter rea- firmed to the Federal bench, whenever cial vacancies, there was a dire need to sonably and fairly. Republicans would the Republican majority is willing to fill judicial vacancies. Over the next 17 apparently rather engage in partisan proceed on her nomination. In my months, despite constant criticism politics. view, the Senate’s time would be better from the administration, the Senate Republican talking points will un- spent this evening voting on this nomi- proceeded to confirm 100 of President doubtedly claim that this is ‘‘unprece- nation than another unsuccessful clo- Bush’s nominees, including several who dented.’’ They will ignore their own re- ture vote on the Estrada nomination. were divisive and controversial, several cent filibusters against President Clin- Unfortunately, that is not how the Re- who had mixed peer review ratings ton’s executive and judicial nominees publican leadership has chosen to pro- from the ABA, and at least one who in so doing. The only thing unprece- ceed. had been rated not qualified. Despite dented about this matter is that the The administration remains intent the additional 40 vacancies that arose, administration and Republican leader- on packing the Federal circuit courts we reduced judicial vacancies to 60, a ship have shown no willingness to be

VerDate Jan 31 2003 01:43 May 06, 2003 Jkt 019060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\G05MY6.050 S05PT1 S5718 CONGRESSIONAL RECORD — SENATE May 5, 2003 reasonable and accommodate Demo- The PRESIDING OFFICER. Without Stevens Talent Voinovich cratic Senators’ request for informa- objection, it is so ordered. Sununu Thomas Warner tion traditionally shared with the Sen- Mr. LEAHY. Mr. President, if I have NAYS—39 ate by past administrations. That this any remaining time, I yield it. Akaka Dodd Landrieu is the fifth cloture vote on this matter Mr. HATCH. Likewise. Baucus Dorgan Lautenberg Bayh Durbin Leahy is an indictment of Republican intran- CLOTURE MOTION Biden Edwards Levin sigence on this matter, nothing more. The PRESIDING OFFICER. All time Bingaman Feingold Lincoln What is unprecedented is that there has been yielded. Under the previous Boxer Feinstein Pryor has been no effort on the Republican Byrd Harkin Reed order, the clerk will report the motion Carper Hollings Reid side to work this matter out as these to invoke cloture. Clinton Inouye Rockefeller matters have always been worked out The legislative clerk read as follows: Conrad Jeffords Sarbanes in the past. What is unprecedented is Corzine Johnson Schumer CLOTURE MOTION Daschle Kennedy Stabenow the Republican insistence to schedule Dayton Kohl Wyden cloture vote after cloture vote without We the undersigned Senators, in accord- ance with the provisions of Rule XXII of the NOT VOTING—9 first resolving the underlying problem Standing Rules of the Senate, do hereby caused by the administration’s inflexi- Cantwell Lieberman Murkowski move to bring to a close debate on Executive Graham (FL) Mikulski Murray bility. Calendar No. 21, the nomination of Miguel A. Kerry Miller Specter I urge the White House and Senate Estrada to be United States Circuit Judge The PRESIDING OFFICER. On this Republicans to end the political war- for the District of Columbia Circuit. vote, the yeas are 52, the nays are 39. fare and join with us in good faith to Bill Frist, Orrin Hatch, Judd Gregg, Three-fifths of the Senators duly cho- make sure the information that is Norm Coleman, John E. Sununu, John sen and sworn not having voted in the needed to review this nomination is Cornyn, Larry E. Craig, Saxby affirmative, the motion is rejected. provided so that the Senate may con- Chambliss, Lisa Murkowski, Jim Tal- ent, Olympia Snowe, Mike DeWine, Mi- clude its consideration of this nomina- VOTE EXPLANATION chael B. Enzi, Peter G. Fitzgerald, (At the request of Mr. DASCHLE, the tion. I urge the White House, as I have Lindsey Graham, Jeff Sessions. for more than 2 years, to work with us following statement was ordered to be The PRESIDING OFFICER. By unan- and, quoting from today’s New York printed in the RECORD.) imous consent, the mandatory quorum ∑ Ms. CANTWELL. Mr. President, I Times editorial: call is waived. have the great honor of being in Wash- The answer is not to try to twist the rules or demonize Democrats. It is for the White The question is, Is it the sense of the ington State today in order to welcome House to consult with the Senate and agree Senate that debate on the nomination home the USS Lincoln and USS Cam- on nominees that senators from both parties of Miguel A. Estrada to be United den. After a 10-month deployment, in- can in good conscience confirm. States Circuit Judge for the District of cluding valuable service in the recent The President promised to be a Columbia Circuit shall be brought to a war against Iraq, the men and women uniter not a divider, but he has contin- close? of the USS Lincoln and her carrier ued to send us judicial nominees that The yeas and nays are mandatory strike group will finally reach Everett divide our nation and, in this case, he under the rule. The clerk will call the and Bremerton, WA in the next few has even managed to divide Hispanics roll. hours. Unfortunately, in order to be across the country. The nomination The legislative clerk called the roll. present for this important homecoming and confirmation process begins with Mr. MCCONNELL. I announce that in my State—it was necessary to miss the President, and I urge him to work the Senator from Alaska (Ms. MUR- two votes today.∑ with us to find a way forward to unite, KOWSKI) and the Senator from Pennsyl- Mr. HATCH. Mr. President, I suggest instead of divide, the Nation as well as vania (Mr. SPECTER) are necessarily ab- the absence of a quorum. the Senate on these issues. sent. The PRESIDING OFFICER. The Mr. President, I suggest the absence Mr. REID. I announce that the Sen- clerk will call the roll. of a quorum. ator from Washington (Ms. CANTWELL), The legislative clerk proceeded to The PRESIDING OFFICER. The the Senator from Florida (Mr. call the roll. Mr. MCCONNELL. Mr. President, I clerk will call the roll. GRAHAM), the Senator from Massachu- ask unanimous consent that the order The legislative clerk proceeded to setts (Mr. KERRY), the Senator from for the quorum call be rescinded. call the roll. Connecticut (Mr. LIEBERMAN), the Sen- The PRESIDING OFFICER. Without Mr. HATCH. Mr. President, I ask ator from Maryland (Ms. MIKULSKI), objection, it is so ordered. unanimous consent that the order for the Senator from Georgia (Mr. MIL- the quorum call be rescinded. LER), and the Senator from Washington f The PRESIDING OFFICER. Without (Mrs. MURRAY) are necessarily absent. MORNING BUSINESS objection, it is so ordered. I further announce that, if present Mr. MCCONNELL. I ask unanimous Mr. HATCH. Mr. President, the Sen- and voting, the Senator from Massa- ator from Vermont made a point that consent that the Senate proceed to a chusetts (Mr. KERRY) would vote ‘‘no.’’ period for morning business. the White House has seen these privi- The PRESIDING OFFICER (Mr. leged documents in the Solicitor Gen- The PRESIDING OFFICER. Without GRAHAM of South Carolina). Are there objection, it is so ordered. eral’s Office. If they have any evidence any other Senators in the Chamber de- f of that, I would like to see it because I siring to vote? know they haven’t looked at those The yeas and nays resulted—yeas 52, TRIBUTE TO DR. PAUL DIXON records. Those are the most highly nays 39, as follows: Mr. DEWINE. Mr. President, I rise privileged records in the Justice De- today to pay tribute to a fellow Ohi- partment. I am not sure that a Solic- [Rollcall Vote No. 140 Ex.] oan, a leader in higher education, a itor General wouldn’t resign before giv- YEAS—52 dear friend, and a good neighbor: Dr. ing up those records. Alexander Craig Kyl Paul Dixon. Dr. Dixon is the current I yield the floor. Allard Crapo Lott The PRESIDING OFFICER. Who Allen DeWine Lugar president of Cedarville University, a Bennett Dole McCain Baptist liberal arts university located yields time? Bond Domenici McConnell very near my home, my wife Fran’s Mr. HATCH. Mr. President, I suggest Breaux Ensign Nelson (FL) the absence of a quorum. Brownback Enzi Nelson (NE) home in Greene County, OH. Dr. Dixon The PRESIDING OFFICER. The Bunning Fitzgerald Nickles is planning to retire from that position Burns Frist Roberts clerk will call the roll. Campbell Graham (SC) in June of this year after a quarter of Santorum The legislative clerk proceeded to Chafee Grassley a century of great successful leader- Sessions Chambliss Gregg ship. As the longest-serving president call the roll. Shelby Mr. LEAHY. Mr. President, I ask Cochran Hagel of any college or university in Ohio, Coleman Hatch Smith unanimous consent that the order for Collins Hutchison Snowe Paul led the university through an un- the quorum call be rescinded. Cornyn Inhofe precedented period of growth and has

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