S2232 CONGRESSIONAL RECORD — SENATE February 12, 2003 Chairman Greenspan’s statements and to make a decision whether this nomi- vote on somebody for a lifetime posi- other issues we think are just as im- nation is going to be pulled, whether tion in the courts. He has written ex- portant to talk about. But during these the memos will be supplied to us so we tensively, but he has kept the writing nominations, when there is extended can review them, whether there is secret. debate, we are allowed to do that. going to be more opportunity to ask We have ample precedent for similar Whatever the leader wants us to do, we questions, or whether there is going to writings that have been made available are here. Whether it is tonight, tomor- be a vote on cloture. Those are the for everything from a nomination of a row night, Friday, Saturday, whatever three choices the leader has. it is, we will be at your disposal. Mr. FRIST. Mr. President, I agree, in man who became Attorney General to Mr. FRIST. Mr. President, I appre- essence, those are the three choices, a man who became the Chief Justice of ciate the comments of the assistant and as majority leader, I consider what the United States, William Rehnquist. Democratic leader. My objective is to I feel is stalling on this nomination The Democratic leader and I wrote to fully address the nomination of this and not allowing an up-or-down vote of the President and asked once again: outstanding, well-qualified candidate. sufficient importance that we will con- Release those secret writings. If we really get to the point where the tinue to address it. There are many Ironically, Mr. Estrada told us, when other side of the aisle says there is other important issues this Senate asked, he had no objection to those nothing more to be said, I would sim- must address. If we could just agree on writings being released. He has no ob- ply ask that we do take this to a vote an up-or-down vote right now, which jection to them being released. It is and give us in this body the oppor- the distinguished assistant Democratic only the White House has said: We will tunity to vote, yes, we are for the nom- leader has said they are not going to do not release them. If they were released, ination or, no, we are against the nom- on the other side of the aisle, we could ination, if we really have had full de- I suspect we would then have a discus- go on to address these other important sion of what is in those writings, and bate, and from what I have just heard issues. we are getting close to that point, and we would go to a vote up or down, win I do want to make it clear, both to or lose. if everything has been said. this body, to the House of Representa- But the one thing I don’t want to tives, and to America, this side of the At least we would know what we are happen is for people to be critical: We aisle is ready for an up-or-down vote voting on. We would not have a stealth didn’t have enough time; we didn’t since, as we just agreed, there has candidate before the Senate. I think have enough opportunity to debate. the White House ought to look at the Our willingness to at least present probably already been adequate debate fact Mr. Estrada has said he has no ob- why we believe Miguel Estrada is ex- put forward, and I think it is impor- jection to his writings being made pub- tremely well qualified is close to being tant for America to understand your fulfilled. And if we get to the point side of the aisle—whether you use the lic. They ought to make them public, where there is nothing more to say on word ‘‘filibuster’’ or not—is obstruct- and then we can go ahead and complete the other side of the aisle, then we ing or stalling the process which is im- action up or down on this nominee. would expect, if that is the case, an up- portant to our judicial system and to Again, I thank my good friend from or-down vote. I think that signal is our responsibilities, our constitutional Utah for his courtesy in letting me go being sent strongly through our col- responsibilities in this body. forward. I yield the floor. f leagues and what has happened on the The PRESIDING OFFICER. The Sen- floor this week. RESERVATION OF LEADER TIME I think America is paying attention, ator from Utah. The PRESIDING OFFICER. Under recognizing that at this juncture, we Mr. HATCH. Mr. President, it is in- the previous order, the leadership time believe Miguel Estrada is well qualified teresting that my colleague, who is my is reserved. and that there is a critical, drastic friend, says Miguel Estrada is holding shortage of Federal judges today. When f this process up, and then at the end of you put those two together—that we EXECUTIVE SESSION his remarks says he has agreed, he has feel strongly Miguel Estrada is a well- no objections to giving these docu- qualified judge and that there is a dras- NOMINATION OF MIGUEL A. ments, but they never emphasize the tic shortage of judges and our responsi- ESTRADA, OF VIRGINIA, TO BE fact the Justice Department is highly bility to address that issue, which we UNITED STATES CIRCUIT JUDGE justified, is absolutely right, and has are doing well on the floor now—we FOR THE DISTRICT OF COLUM- the opinion of the seven former Solici- would expect that up-or-down vote in BIA CIRCUIT tors General saying these types of con- the next couple of days. fidential memoranda should not be The PRESIDING OFFICER. Under The PRESIDING OFFICER. The Sen- given to the Judiciary Committee or to ator from Nevada. the previous order, the Senate will now Mr. REID. Mr. President, I com- go into executive session to resume Congress. The reason for this is that pliment the leader. In the short time consideration of Executive Calendar these memoranda are utilized in decid- he has been leader, he has allowed full No. 21, which the clerk will report. ing what the Solicitor General’s Office and adequate debate. He could have The legislative clerk read the nomi- should do with regard to various cases. tried to stop debate on the omnibus nation of Miguel A. Estrada, of Vir- If these memoranda become readily bill, and the leader chose not to do ginia, to be United States Circuit available or available at all outside the that, and I think it worked to every- Judge for the District of Columbia Cir- Justice Department, this would chill one’s advantage. On this side of the cuit. the honest, forthright deliberations, aisle, we appreciate that very much. The PRESIDING OFFICER. Who suggestions, and recommendations by I do say, though, speaking as one seeks recognition? those who work in the Justice Depart- Senator, but having spent a little time The Senator from Vermont. ment. I do not think it takes any on this floor, just about everything has Mr. LEAHY. Mr. President, I will be brains to realize the Justice Depart- been said about Miguel Estrada. There very brief. I see the distinguished ment is totally right. will be other people who wish to make chairman of the committee on the statements. As I said, everything has floor. Under normal procedures, he Miguel Estrada is being blamed be- been said but not everyone has said it. would speak first. I appreciate his cause the Justice Department, in ac- We will do everything we can to make courtesy in withholding for a moment. cordance with their seven former So- sure everyone has said it. The majority A lot has been said, and as the distin- licitors General, refuses to give up leader is going to find there will be guished senior Senator from Nevada these confidential memoranda, which other issues spoken about here. We are said, not all have said it. There is actu- are privileged, so the Democrats can go not going to—there is no reason to ally one person who, were he to speak, on a fishing expedition and see if they mince around. We are not going to could speed this whole matter up very can find some matters in those memo- allow an up-or-down vote on Miguel quickly. Miguel Estrada has written randa with which they disagree. They Estrada. That is clear. extensively on his views on very com- can then say: We cannot confirm him Our leader gave a speech yesterday to plex issues on law which would be of because he wrote some memoranda that effect. So the majority leader has great interest to those who have to with which we disagree.

VerDate Dec 13 2002 01:26 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.003 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2233 That is what is behind this. This is of the legislative branch also informed might be put on the circuit court of ap- not trying to be fair. This is not trying their decision to restrict the role of the peals? Very few. That means all these to understand what is good or bad Senate in the confirmation process. great Hispanic lawyers who belong to about Mr. Estrada. It is a fishing expe- The Senate’s limited function is appar- the Hispanic Bar Association do not dition to try to get into privileged doc- ent from the Constitution’s very text. have a chance to be a judge under that uments that should remain privileged, To state the obvious, the President reasoning because they have not sat as according to these seven former Solici- holds the power to nominate can- a judge anywhere before. Talk about tors General of the United States, four didates to the Federal bench while the discrimination. Talk about ridiculous of whom are Democrats and partisan Senate’s role is restricted to providing arguments. Talk about prejudice. Democrats at that, although highly re- ‘‘advice and consent.’’ It is a shame it comes from one of spected by me. And the other side Now, that does not mean advice and the Hispanic leaders in the House— seems to act like we should just brush filibuster. It does not mean advice and Democrat Hispanic leaders, I might those opinions aside, even though they obstruction. It does not mean advice add. I cannot imagine anybody who are bipartisan opinions by people who and a demand that only the Senate’s really wants to see Hispanics progress have held this office. I do not think will can be followed. It does not mean and to become judges saying he has no they can have it both ways. I do not advice and fishing expeditions, which is judicial experience, therefore, he can- think their arguments are worth a exactly what is going on. not be a judge. Give me a break. grain of salt. I do not think my colleagues on the Very few Hispanics have judicial ex- In addition, I listened intently yes- other side have a leg to stand on in perience, but there are a number of terday morning, when I could, to the these arguments they have been mak- them who I hope President Bush and comments by the junior Senator from ing. Even if they did, they had every succeeding Presidents will give the op- New York who spoke about the role of opportunity to examine Mr. Estrada. portunity of being a judge. the Senate in the constitutional advice This argument that he did not answer Now that just shows the lengths to and consent process. According to the the questions is ridiculous. They had which the other side has gone to basi- Senator, Mr. Estrada’s failure to an- every opportunity to ask him every cally scuttle this nomination, and this swer questions about his personal question they wanted to, and even stu- constitutional argument we had yes- views on legal issues, which she called pid questions they could ask. Any terday fits in that category. The Con- ‘‘basic information about where a member of the Judiciary Committee stitution assigns the Senate a limited nominee stands,’’ amounts to an un- could ask anything they wanted to, and role in the selection of judicial nomi- constitutional strategy to deny the sometimes we have some of the dumb- nees. It simply allows the Senate to Senate an opportunity to engage in its est questions anybody could possibly ratify the President’s choices, or de- role to advise and consent on nomina- hear, but they have a right to ask these cline to do so. That is the Senate’s tions. dumb questions. But the nominee has a power. While this is an interesting argu- Put simply, the President selects, right to say: I do not think I can an- ment, it is wrong on the law. It is then the Senate reviews and reacts. As swer that because that issue may come wrong on the law and wrong on the Alexander Hamilton explained in The before me as a judge, and if it does, I do facts, too. Her argument ignores the Federalist No. 66: not want to have to recuse myself. Vir- basic underpinnings of the Senate’s There will, of course, be no exertion of tually everybody who has ever been role in the advice and consent process. choice on the part of the senate. They may nominated, who has been in any con- In fact, I submit that the other side’s defeat one choice of the Executive, and troversy, has said exactly that. Top au- effort to demand Mr. Estrada’s per- oblige him to make another; but they cannot thorities from both sides of the polit- sonal views on certain legal issues is themselves choose—they can only ratify or reject the choice he may have made. itself an unconstitutional threat to the ical spectrum agree they should not separation of powers inherent in our answer that, and the American Bar As- I think some of our colleagues on the system of Government and to the sociation’s ethical rule says they other side want to choose these judges, Framers’ desire to maintain an inde- should not. Yet, Mr. Estrada is being and we are finding that continuously in pendent judiciary. I think that is a crucified because he did not tell them their arguments, that the administra- very persuasive argument on my be- everything they wanted to hear. tion does not ‘‘consult’’ with them. If The real problem was, and I think is, half. consultation means the administration It has never been the case that the that Mr. Estrada just did not say any- has to take whatever judges the Demo- Senate is constitutionally entitled to thing they could use against him. It is crats desire, then that is not consulta- an answer to any question it chooses to very disconcerting to my colleagues on tion. Consultation is letting them ask a nominee while exercising its ad- the other side that they didn’t find know what is on the mind of the Presi- vice and consent responsibility. anything to use against Mr. Estrada. dent, and the administration dis- The reason for this is clear. The So they use ridiculous, idiotic argu- cussing it with them, seeing if they Framers sought to ensure the judicial ments like he has no judicial experi- have any real objections to the choices branch would remain independent of ence. I saw the press release by Con- of the President, asking them to weigh the legislative branch. According to gressman Menendez who has led this in and give the administration what- the Federalist Papers 78, judicial inde- terrible fight against Mr. Estrada, with ever information they can, and then pendence ‘‘is an excellent barrier to the his very partisan Democrat colleagues making the choice and going from despotism of the prince’’ and ‘‘in a re- in the House, all of whom are rebutted there. That is consultation. public it is a no less excellent barrier by the Republican Hispanics in the The administration even goes fur- to the encroachments and oppressions House. ther. The administration has had to of the representative body.’’ He basically said, well, he has no ju- put up with the blue slip system, which For this reason, the Constitution dicial experience. Well, that is not only means local Senators have a lot of prohibits Congress from reducing Fed- ridiculous, it is idiotic. One of them power in determining who are going to eral judges’ salaries, guarantees that made the case one does not have to be the Federal district court judges. judges will remain on the bench ‘‘dur- have judicial experience to be a great They do not have the same type of ing good behaviour’’ and allows Con- judge, and that President Clinton nom- power in who should be Federal circuit gress to remove them only by the proc- inated innumerable people to be court of appeals judges. That power has ess of impeachment. These protections judges, that we approved, who had no always been jealously guarded by were borne of the Framers’ fear that judicial experience. Some of the great- whichever White House. like King George III, the Federal legis- est judges in the history of this coun- Mr. DURBIN. Will the Senator yield lature would pressure judges into try did not have any judicial experi- for a question? reaching outcomes of which it ap- ence, and yet that argument is used. Mr. HATCH. Sure. proved that otherwise were consistent It is a terrible argument. I think it is Mr. DURBIN. I want to make sure, with its interests. a prejudicial argument against His- the Senator is saying we are going to The Framers’ intent to insulate Fed- panics, because how many Hispanic stay with the blue slip approach then eral judges from the political influence judges are there in this country who for judges in the future?

VerDate Dec 13 2002 00:20 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.006 S12PT1 S2234 CONGRESSIONAL RECORD — SENATE February 12, 2003 Mr. HATCH. I doubt we are, because Mr. DURBIN. The Senator from Utah Tell me what is wrong with Miguel I have said I will follow the exact blue is rejecting Senator LEAHY’s policy? Estrada. Tell me one glove they have slip policy Senator KENNEDY, Senator Mr. HATCH. I am not rejecting it. I laid upon him. Tell me one proof they BIDEN, and I followed. So all this bull am just saying we are going back to have that he is not worthy of being on in the press saying that I am going to the original policy set by Senator KEN- the Circuit Court of Appeals for the change the blue slip laws, yes, I am NEDY, Senator BIDEN, and myself. District of Columbia—other than the changing it from what Senator LEAHY Mr. DURBIN. That is a very positive specious, spurious argument: Well, we did, but I am going back to the process spin, but I think the answer is the Sen- do not know enough about him. of KENNEDY, BIDEN, and HATCH. ator is rejecting Senator LEAHY’s ap- They conducted a hearing. They con- Mr. DURBIN. So if the Senators from proach. trolled the process. They asked ques- a State were—— Mr. HATCH. We will not use the tions. That hearing transcript is this Mr. HATCH. I have said it enough I Leahy approach, that is true, because I thick. Normally the transcript is 10 would hope the Senator heard it. think it is wrong. And I think Senator pages. They controlled everything. Mr. DURBIN. To make sure it is KENNEDY and Senator BIDEN thought it They could have asked written ques- clear for the record, if Senators from a was wrong, as well, by their actions. tions. Only two of them did—two State where a judge is being appointed I find it a little strange that Demo- Democrats did. And he answered them. do not approve of that judge, then you crats are criticizing a policy they Now they are coming in here crying are not going to have a hearing; the themselves set and trying to say I have over their failure to ask any further Senator has to have two blue slips from changed the policy when in fact it was questions, saying: We must examine two Senators from the State? set by Democrats—and leading Demo- him more. Mr. HATCH. That is absolutely false. crats at that. I am hearing that on every judge this Senator KENNEDY set the process to The fact that Senator LEAHY changed President has nominated. We have 26 begin with. When he became chairman it does not mean it was right for him emergency situations in this country— of the committee, he said negative blue to overrule Senators KENNEDY and in other words, 26 real problems in this slips shall be given great weight, but BIDEN and myself. I believed he was country—and other vacancies that are they are not dispositive. wrong. also problems, and I am getting these If both Senators are against the Mr. DURBIN. I ask the Senator one spurious arguments. nominee, that is given great weight by last question, does the Senator, as We have a markup tomorrow. We me. It was by Senator KENNEDY. chairman—— have 3 circuit court nominees, and we Mr. DURBIN. Senator LEAHY’s ap- Mr. HATCH. Let me ask this: Does had a hearing for 12 solid hours. I was proach of both Senators having a voice the Senator have a question? willing to stay even longer. I would as to whether the nominee goes for- Mr. DURBIN. Yes. Did the Senator have stayed all night, if necessary, to ward, the Senator is not going to abide from Utah, as chairman of the com- get that hearing over with. It was the by that blue slip process in the future? mittee, ever have a hearing for a nomi- Democrats who decided it was over. Mr. HATCH. I have changed the nee who did not receive both blue slips Leahy approach because it was in con- They had every chance to ask ques- from Senators in the State? tions. I am hearing they will filibuster tradiction to the Kennedy, Biden, and Mr. HATCH. I don’t recall. Hatch approach, who followed Kennedy these three nominees in the Judiciary Mr. DURBIN. I think the answer is Committee tomorrow. and Biden and did it to the letter. no. It is very difficult, when two Sen- When is it going to stop? When are Mr. HATCH. As the general rule, it they going to start doing what is right? ators go against a nominee, for that stopped the nominee—as a general rule, nominee to make it, but it is, as Sen- Will this all be partisan just because but it is not dispositive. they did not win the Presidency? Is ator KENNEDY said, not dispositive. (Ms. MURKOWSKI assumed the President Bush going to be treated this That has been the rule, as long as I can chair.) way on every judgeship? They say remember, until Senator LEAHY Mr. DURBIN. So we will change not these are controversial judges. I have changed it. I think even Senator LEAHY only the Leahy approach but the Hatch not seen one circuit court of appeals basically acknowledged that rule. approach? Mr. DURBIN. I say to the Senator Mr. HATCH. No, I still have the same nominee since I have been chairman of from Utah, the rule that has been fol- approach. I gave great weight to the this committee who they do not think lowed since I have served in the com- Senators, and I intend to in the future. is controversial. Every one is con- mittee under your leadership, as well But that does not mean that a legiti- troversial. The reason is they are cir- as under Senator LEAHY, said both Sen- mate nominee should not have his or cuit court of appeals nominees, and ators would have a voice in the blue her day in court. this President has nominated them, slip process. Mr. DURBIN. One last question: Does and they presume they must be Repub- Mr. HATCH. And both do. the Senator, as chairman of the com- licans and conservative. The only Mr. DURBIN. The fact the Senator is mittee, now send out blue slips to nominees about whom I did not hear changing it suggests to me, again, he is Members so they can respond? any argument were the Democrats this removing the power of the committee Mr. HATCH. We do. That is a policy President has nominated, holding out and of the Senate to look at judicial of the Senate Judiciary Committee. his hand to them, saying, let’s work to- nominees. Mr. DURBIN. They have been sent gether. He has nominated Democrats Mr. HATCH. Not one bit. out? we have been able to get through, and Mr. DURBIN. That is what the debate Mr. HATCH. As far as I know. If they with my approval. is all about. have not, they should be. We know Now that we have some Republicans Mr. HATCH. Not one bit. In fact, I re- some have been returned and some such as Miguel Estrada, who may be iterate to my friend again, I did not set have not been returned. conservative, the President is not get- this policy. It was set by Senator KEN- Mr. DURBIN. Thank you. ting a fair shake. They are not even NEDY. I remember when he set it way Mr. HATCH. Now, let me just say trying to give him a fair shake. I don’t back then, there was a lot of people this. I was speaking a few minutes ago think my friends on the other side have upset about it on our side, but it be- about the Federalist Papers and what to rubberstamp anybody, but they came the policy of the committee. they had to say. ought to be fair. They ought to be fair Then when Senator BIDEN became As I said before, and has been repeat- to this President. He is the President chairman of the committee, he agreed edly quoted, as though I said some- of the United States. He has a right to with that policy. He adopted that pol- thing I am not following to this day, I nominate these people. Unless they can icy. Then when I became chairman of agree that the Senate should not be a show some legitimate reason for not the committee for the first time, I rubberstamp to a President’s choices confirming these people, then these agreed with that policy and I followed for the judiciary. We do not have to be people should be confirmed. that policy. All I am saying is I am a rubberstamp. Where is the legitimate reason going to follow the policy set by Demo- We have an obligation to look at against Miguel Estrada? I don’t see crats. these people and to see what is wrong. any. I have not heard one legitimate

VerDate Dec 13 2002 01:26 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.008 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2235 reason the whole time we have debated he was rated well qualified by the to answer, even though the transcript this for the last week—not one, not American Bar Association, has the is thick with extensive hearing ques- one—other than we should be able to Senator from Utah ever failed to ap- tions and answers. He answered their continue a fishing expedition long after prove a nominee from President Clin- interrogatories, written questions, but they held a very extensive hearing on ton who was well qualified by the only two of them took the time to this person, long after they had the op- American Bar Association? I think the write them. I hope we don’t send writ- portunity of sending him written inter- Senator has answered that question ten questions to every one of these rogatories or questions. And only two that there were times when he rejected nominees, but if you have some ques- of them did. Now they are in here cry- nominees, voted against nominees, re- tions, send them. ing as if they have been somehow mis- fused to have hearings for nominees, He said if the Justice Department treated in this process. They controlled delayed hearings on nominees who wants to give up these memoranda, it the process. were rated well qualified by the Amer- is OK with me, I am proud of my work. As has been the case history, the ican Bar Association. But he fully understands why they Senate is entitled to detailed informa- Mr. HATCH. Not that I recall. I never don’t want to simply turn them over. tion about a nominee’s background, ca- allowed the American Bar Association They are private, they are confidential, reer, and qualifications for the bench. to make the determination in my mind and they involve opinions that could Mr. Estrada has provided ample infor- whether I was for or against someone. undermine the work of the Solicitor mation to allow the Senate to deter- I have paid attention to what they do, General of the United States in arguing mine his qualifications. even when I disagree with them. I al- for our country. If they are disclosed First, it bears repeating that the ways read what their recommendations and if other workers in the Solicitor American Bar Association, their gold were, and I always gave credibility General’s Office believe their opinions standard, when we were having prob- where credibility should be given. I are going to be disclosed to the public, lems whether the Bar Association was will continue to do that. guess how honest the future opinions fairly examining judges—and there What I disagree with: I don’t think are going to be, especially if somebody were some real questions on our side the American Bar Association system wants to go on to hold another position because of some ridiculous, I think, should be a determining factor one way in the Justice Department or Govern- ratings they had given in the past—the or the other whether a person is ap- ment that is a confirmable position, or Democrats said: We must have the proved by a Judiciary Committee of wants to become a district court, or ABA ratings. We will not allow can- the full Senate, whether a person is circuit court, or Supreme Court judge. didates to go through, nominees to go confirmed. I personally don’t think Second, Mr. Estrada testified for a through, without the ratings. It is our anybody should take that attitude. full day in the Senate Judiciary Com- gold standard. Some did. But that should not be a rule mittee on a range of subjects and then I think it bears repeating that the of the Senate. We have that responsi- answered written follow-up questions American Bar Association unani- bility, not the ABA. I appreciate the from committee members. As I said, it mously—the standing committee that Senator’s excellent question. should be mentioned that only two really examines these judges and takes Nor am I for Mr. Estrada because he members of the committee decided to it seriously—unanimously rated Mr. happens to be unanimously well quali- pose such questions. Estrada well qualified for this position, fied. It is because he is the fulfillment Third, Mr. Estrada has received the Democrats’ ‘‘gold standard.’’ That of the American dream. Here is this broad bipartisan support from lawyers is the highest rating the American Bar young Hispanic man who came to who know him best, including former Association grants. America not speaking a lot of English, Clinton Solicitor General Seth Wax- Let me say one other thing before I he learned English, and then he goes on man and Vice President Gore’s former yield to my colleague. That is this: I and becomes a graduate of Columbia chief of staff, Ron Klain—these are top have had real problems with the Amer- University, magna cum laude, and then Democrats who say this man deserves ican Bar Association in the past. I was he goes to Harvard and graduates confirmation—former Clinton Justice the one who said: We are not going to magna cum laude there, where he was Department officials Randolph Moss allow them to be part of the process. editor of the Harvard Law Review. and Bob Litt—again, two top Demo- They can submit their recommenda- Then he holds various positions, rang- crats, many individuals in the Justice tions. I will give them weight, and Sen- ing from clerk on the Second Circuit Department; and, in addition, 14 other ators can give whatever weight they Court of Appeals and clerk for Justice colleagues of Miguel Estrada in the So- want. But they will not be a vetting Anthony Kennedy, a moderate on the licitor General’s Office have all written processor that can determine whether Supreme Court. And then he worked in glowing recommendations of Mr. a person sits or not. The reason I did the Solicitor General’s Office in the Estrada. that was I believed they were not being first Bush administration and also for Fourth, the Senate is free to review fair. the Clinton administration. He has rav- the briefs and other publicly available In the intervening years, and cur- ing reviews of the kind of work he did written work Mr. Estrada performed on rently, I believe the American Bar As- there. Then he becomes a partner in behalf of clients in the more than 15 sociation has straightened out its act, one of the great law firms in this coun- Supreme Court cases he has handled and I believe they are being fair, and I try, Gibson, Dunn & Crutcher, at a rel- during his career. believe they are doing a good job. I atively young age. He has argued 15 The record is voluminous. They are want to be the first to correct the cases before the U.S. Supreme Court, also able to get the oral arguments he record as to why I am in agreement winning 10 of them. made before the Court. Surely they can that we can pay very good attention. I Look, it doesn’t take many brains to get, from all of that documentation, don’t think even the American Bar As- say this must be one heck of a guy, he enough to understand what his judicial sociation should stop someone from must be one heck of a lawyer, and he philosophy might be. Keep in mind, he being a judge just because they dis- must really be someone who can do the was representing clients, so it would agree—and I can name two cases where job on any bench in this country. To probably even be unfair for them to I personally led the fight to have say he has no judicial experience when distort and utilize anything they dis- judges confirmed who were rated not he clerked for two major Federal agreed with in all these documents be- qualified by the American Bar Associa- judges—one a circuit judge and the cause he represented clients and had to tion and the judges have turned out to other a Supreme Court Justice—I do the best he could for them. That be very good judges in the end. think is pure bunk, and everybody doesn’t mean those were necessarily I yield. knows it. That keeps coming up like it his opinions, other than he did a job as Mr. DURBIN. I think the Senator is a real argument. That is what they an attorney must do on behalf of his may have answered. I was going to ask, call arguments—that he wasn’t a judge clients. It’s a ridiculous argument that as chairman of the Senate Judiciary and, therefore, he should not have this we don’t know enough about him be- Committee, if the Senator believes we privilege; that he hasn’t answered cause there is no doubt that the record should approve Miguel Estrada because questions just the way they want him is voluminous. They could go through

VerDate Dec 13 2002 00:20 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.011 S12PT1 S2236 CONGRESSIONAL RECORD — SENATE February 12, 2003 all of that. I don’t believe they have Although recognizing the constitutional certainly is—and I don’t think anybody gone through very much of it. Perhaps dilemma which appears to exist when the can really argue he is not, with the some of the staff. Senate is asked to advise and consent on a reputation and the achievements he This is just a phony bunch of excuses judicial nominee without examining him on has had in his life—in all honesty, we for giving this Hispanic American a legal questions, the committee is of the view that Justice Fortas wisely and correctly de- should move to a vote. The fact he rough time. They are against him be- clined to answer questions in this area. hasn’t had judicial experience other cause he is supported by a Republican To require a judge to state his views than the years he spent as a judicial President and he may be conservative. on legal questions or to discuss his past clerk in the Second Circuit Court of My goodness, he may even be against decisions before the committee would Appeals and with the Supreme Court of their hallmark decision of Roe v. Wade. threaten the independence of the judi- the United State of America—I mean, Come on. These are foolish arguments. in all honesty, we have had fellow His- All of this information is more than ciary and the integrity of the judicial system itself. It would also impinge on panics say he is not Hispanic enough, adequate. We have the Supreme Court and he hasn’t done enough for the His- cases, the briefs that were filed, and ar- the constitutional doctrine of separa- tion of powers among the three panic community. Gee, I think every- guments that were made—all of that thing he has done has been for the His- information is more than adequate to branches of government as required by panic community, and for everybody address Mr. Estrada’s qualifications. the Constitution. Democrats back then made it very else as well. This is a man who really We have approved thousands of judges clear, including Lloyd Cutler and does. who have never argued a case in the countless others, that they should not Where does all of this come from? It Supreme Court. He argued 15, winning be answering questions about how they 10 of them. This body must, in order to comes from the 2001 retreat the Demo- might rule on given cases. Why this is crats held where they had some of the maintain the proper constitutional bal- suddenly not so clear to my colleagues ance, refrain from seeking just this top liberal law professors come in and on the other side is a mystery. suggest to them how they have to fight sort of information from Mr. Estrada. Finally, the ABA’s Model Code of Ju- on judges and how they have to be un- We should not have a right to this sort dicial Conduct also prohibits a nomi- fair. They came up with these ‘‘weap- of information any more than we have nee from discussing his personal views. a right to have them from their nomi- Canon 5A(3)(d) of the ABA’s Model ons of mass obstruction’’ because they nees to serve in our Federal courts. Code of Judicial Conduct states that do not want to have Bush judges con- Many distinguished Democrats have prospective judges ‘‘shall not . . . make firmed. themselves noted that seeking personal pledges or promises of conduct in office No. 1, they suggested: ‘‘Bottle up views is highly inappropriate. Justice other than the faithful and impartial these nominees in committee.’’ Thurgood Marshall made this point in performance of the duties of office . . . We are doing that every day. I have 1967, when he refused to answer ques- [or] make statements that commit or had a threat they will filibuster the tions at his confirmation hearing about appear to commit the candidate with nominees in our markup, which I do the fifth amendment. He said: respect to cases, controversies or issues not recall ever happening in my almost I do not think you want me to be in the po- that are likely to come before the 30 years in the Senate. But that is what sition of giving you a statement on the fifth amendment, and then, if I am confirmed and court.’’ I have been informed might happen. I sit on the Court, when a fifth amendment Mr. Estrada’s opponents in essence hope they will reconsider that. case comes up, I will have to disqualify my- are asking him to violate this ethical No. 2: ‘‘Inject ideology in the con- self. canon. Mr. Estrada possesses an excellent firmation procession.’’ Lloyd Cutler, one of the great law- We see that regularly, where here- yers in this town, a former Clinton record—one which merits confirma- tion. Efforts by the other side to deny tofore both sides have said ideology is White House counsel, and former not a part of this process. Yet, we have Carter White House counsel, who also him confirmation in the face of this ex- cellent record are unfair and degrading seen that in almost every circuit court was at the other end of Pennsylvania of appeals nomination. Avenue at the same time as the Sen- to the confirmation process. The arguments made by the other No. 3: ‘‘Seek all unpublished opin- ator from New York, disagrees with ef- side are not constitutional, they are ions.’’ forts to discern a nominee’s ideology political. The other side knows that during the confirmation process. Ac- That is why they are upset. Because the Constitution prohibits this body he is not a judge, he has no published cording to Mr. Cutler: from intruding on the independence of It would be a tragic development if ide- opinions. He has unpublished opinions. ology became an increasingly important con- the judiciary, and from forcing can- But unpublished opinions—judges do sideration in the future. To make ideology didates to provide us with their per- hundreds of those every year. Over a an issue in the confirmation process is to sonal views on legal issues. I hope the course of time, such as in the case of suggest that the legal process is and should Senate will reject these unconstitu- Dennis Shedd, he did thousands of be a political one. That is not only wrong as tional efforts and I surely hope that we them. Yet, they wanted his unpub- a matter of political science; it also serves to will vote soon to confirm Miguel lished opinions because that would weaken public confidence in the courts. Just Estrada. slow the process down even more. Re- as candidates should put aside their partisan I have to ask, Where are the real ar- political views when appointed to the bench, gardless of how much it cost the tax- guments against Mr. Estrada? The fact payers to go back through all of those so too should they put aside ideology. To re- they haven’t been able to dig up any tain either is to betray dedication to the archival records and dig up unpub- process of impartial judging. dirt on him is lamentable, I guess, to lished opinions, there were thousands Former Senator Albert Gore, Sr., them. But, on the other hand, they from Dennis Shedd. also believed that efforts to discern a haven’t been able to. The fact is they do not have a good argument against They don’t have that in this case. nominee’s personal views were inappro- They can’t do that in the case of priate. Former Senator Gore noted the Miguel Estrada, other than these spe- cious arguments that they should be Miguel Estrada. What they seek is following in connection with the 1968 privileged in terms of memoranda. No nomination of Abe Fortas to serve on allowed to get into confidential, pri- vate, and privileged information at the nominee worth his salt is going to the Supreme Court: want his privileged internal memo- [A] judge is under the greatest and most Department of Justice in the Solicitor General’s Office. They can’t get those randa made public to the Senate Judi- compelling necessity to avoid construing or ciary Committee, or to anybody else, explaining opinions of the Court lest he may materials, but the fact of the matter is appear to be adding to or subtracting from they shouldn’t be able to do so. Not because that would chill the giving of what has been decided, or may perchance be only do I say that, but seven former fair, reasonable, and honest, and I prejudging future cases. Solicitors General—four of them are might say, effective opinions of the The Senate Judiciary Committee top Democrats—even to this day take Justice Department. agreed with Senator Gore, noting the that position as well. What they really then said—and this following in a committee report on the My gosh. The fact he wasn’t a judge is the bottom line—if all those top Fortas nomination that year: is irrelevant. If he is qualified, as he three weapons don’t work, and so far

VerDate Dec 13 2002 01:26 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.014 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2237 they haven’t worked in the Estrada Estrada’s refusal to answer questions. I should not do it. But that does not nomination—then you do the last think I have finally come to a conclu- mean it cannot be done and has not thing; that is, filibuster for the first sion of how to explain why he has not been done in the past. Ask Chief Jus- time in the history of the United answered questions. tice Rehnquist: Has it been done in the States against a circuit court of ap- Travel with me 3,000 miles to Nevada. past? Of course, it has been done in the peals nominee, or even a district court We have a home in a place called past. Ask others who have been here, nominee. Searchlight, NV. It is a relatively new Attorney General Civiletti, and others. I acknowledge we have had cloture home. We built it a year ago last De- Of course, when there is a question votes in the past, but not because there cember. We have new furniture in it. I that arises and you think somebody is was a true filibuster. But yesterday we have a lot of grandchildren—12 and really good, then you do what is nec- were told by our colleagues on the soon to be 13. One of my sons has three essary to get them confirmed. We are other side they are going to filibuster. little boys. They are just very close to- not asking that much: Answers to And we are, in effect, in the middle of gether. My little grandson, Wyatt, just questions, real answers, not ‘‘Wyatt’’ a filibuster, as my good friend from Ne- turned 3. It was obvious he had gone to answers. And let’s see what you wrote. vada mentioned this morning; that one of our new couches and had written Mr. HATCH. Will the Senator yield? Mr. REID. I am happy to yield for a they are not going to allow a vote un- on it. question without losing my right to less they can get these privileged inter- So his dad sees that, and he goes to him and he starts interrogating my 3- the floor. nal memoranda, which is again part of Mr. HATCH. Is the Senator familiar year-old grandson. He had just turned this weapon of ‘‘mass obstruction’’ or with this huge transcript of the hear- 3. He said: Did you do that? Wyatt said: these weapons of ‘‘mass obstruction’’ ing? I do not believe the Senator was to totally shut down and delay fairness No. He said: Well, who did it, then? He there. to President Bush’s nomination. That said: I don’t remember his name. Mr. REID. I say to my friend—— is what it comes down to. That is how Miguel Estrada answers Mr. HATCH. I think it is a little un- Let me tell you, it is the wrong thing questions. He uses the ‘‘Wyatt’’ an- fair to put up there that he doesn’t an- to do, because it works both ways. swering method. Sure, he fills up a swer any questions. This whole tran- Someday perhaps the Democrats may book, but he does not say anything: script is filled with answers. He may get the Presidency themselves and ‘‘Who did it?’’ ‘‘I don’t remember his not have answered them all the way then find themselves in the same stu- name.’’ the Democrats wanted him to answer pid position we find ourselves in where Mr. President, I cannot do it in a bet- them. they cannot get honest treatment for ter way: ‘‘Miguel Estrada’s Answers to Is the Senator also familiar with the their nominees because whenever there the Judiciary Committee’s Questions.’’ fact he argued 15 cases before the Su- is a ‘‘controversial’’ nominee, there is Here they are, on this chart, for every- preme Court, and that the Democrats going to be a filibuster. It is a dan- one to see. That is it: ‘‘Miguel have had access to all of those briefs, gerous road to go down. I want to rec- Estrada’s Answers to the Judiciary all of those arguments? ommend to my colleagues on the other Committee’s Questions.’’ That is it. It Mr. REID. As I told the majority side, don’t go down that road anymore. is a blank page. leader—— The best thing you can do is to face the He can fill up a volume this deep Mr. HATCH. I think that is a little music and let the Senate vote. That is with ‘‘Wyatt’’ answers. And the way he unfair to use that type of argument— what the Senate should do in this mat- answers questions, here is what we look at it. ter. It should vote up or down. know about his legal philosophy, as Mr. REID. As I told the majority It is believed by some on the other shown on this chart. That is it: leader this morning, everything has side that Miguel Estrada is a shoo-in ‘‘Miguel Estrada’s Legal Philosophy’’ been said but not everybody has said it. because every Republican is going to is summed up with those four words. What I am doing today is just saying it vote for Miguel Estrada. We know There isn’t any. We don’t know. a different way. Everything has been there are a number of Democrats—I do And if we want to take a look at his said. not know how many, but there are a memoranda, which is some evidence of Mr. HATCH. Let’s be fair about it. few for sure, and I believe others—who what he said in his legal writings, this Mr. REID. I would be happy to an- will vote for him as well, which means is what we have: ‘‘Miguel Estrada’s swer my friend. As I said—I am sure he will sit on the Circuit Court of Ap- Legal Memoranda.’’ That is it, another my friend was not listening—you could peals for the District of Columbia. blank page. fill up a volume twice that big with There are some on the other side who I said, as politely as I could, to the ‘‘Wyatt’’ answers. That is what he has do not want him to sit on the bench distinguished majority leader, we have done. He has not answered questions. He has said words, but he has not an- under any circumstances because they a problem here. Now, we may be wrong, swered questions. think he might be a conservative judge Mr. President. We think we, on the basis of principle, are doing what the Mr. HATCH. Will the Senator yield who might disagree with them on some for another question? Constitution directs us to do. We be- of their litmus test issues. Mr. REID. We have gone through his lieve, as a matter of principle, we are That is wrong. If we took that atti- transcript. And, in fact, the distin- tude, there would be very few judges right. And history, I believe, will prove guished Senator from California, sitting on the circuit courts of appeals. we are right. DIANNE FEINSTEIN, is a person who is Mr. HATCH. Will the Senator yield? I have worked my very best to make very fair, and on these nominations she Mr. REID. I will, in just a second, to sure we never, ever had a filibuster bends over backwards to make sure the my dear friend. started on my watch. We were success- Republican President gets whoever he ful. There were some who wanted to fil- Mr. President, people have a right to wants. But DIANNE FEINSTEIN was so disagree with us, but we are united in ibuster occasionally because they felt concerned, she went back and reread saying we want from this man the abil- so deeply ideologically opposed to some everything, and she came to the con- ity to have him answer real questions of the Clinton nominees. There were clusion he has said nothing. And that is some who felt deeply against some of and not give ‘‘Wyatt’’ answers. what this is all about: He has said We also believe, Mr. President, with- the Carter nominees. But we stopped nothing. it. I believe my colleagues on the other out any question, we have a right to Mr. HATCH. Will the Senator yield side of the aisle ought to do the right his legal writings he performed while again for another question? thing to stop it here. he was with the Solicitor General’s Of- Mr. REID. Yes, I will. I yield the floor. fice. It has been done before. Mr. HATCH. Has the Senator read The PRESIDING OFFICER (Mr. Now, if this man is as good as they this transcript? GRAHAM of South Carolina). The Demo- say he is, then that seems a very small Mr. REID. I have gone through the cratic leader. duty. They can talk about how it is transcript. Mr. REID. Mr. President, I have sat chilling, and all this kind of stuff, and Mr. HATCH. You have read it, and here for the last couple of days trying that there have been people who say he you say he has not answered the ques- to figure out a way to explain Miguel should not do it. Of course, they say he tions?

VerDate Dec 13 2002 01:26 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.016 S12PT1 S2238 CONGRESSIONAL RECORD — SENATE February 12, 2003 Mr. REID. He has given ‘‘Wyatt’’ an- ary Committee disagreed with every Mr. HATCH. Matter of personal privi- swers. He has answered questions, but answer he gave, but he knew what he lege. he has not answered questions com- was talking about, and he answered The PRESIDING OFFICER. The Sen- mittee members felt he should have an- every question to the best of his abil- ator from Utah. swered. I think he was evasive, terribly ity. And that Senator voted for that Mr. HATCH. We did not use the term evasive, and I think this adequately de- person, even though that member of ‘‘weapons of mass destruction.’’ Matter scribes his answers. the Judiciary Committee told me he of personal privilege. I want to say something else. It has was not of that person’s political phi- Mr. REID. I have the floor. I have the been said—but let me say it again—he losophy. That is an example. Not only floor. has been at the Supreme Court 15 did we do 100, exactly 100 last year, the The PRESIDING OFFICER. The Sen- times. Now, the distinguished Pre- 18 months we were in control, but as I ator is correct. Mr. REID. I am happy to yield to my siding Officer is a trial lawyer. I was recall, Monday we voted on three friend from Illinois. very impressed, even though I dis- judges. Not a single Democrat voted Mr. DURBIN. I want to say to my agreed basically with his presentation, against any of those nominees. friend from Nevada—— right here, 4 years ago. But it was very I said last night, and I will tell my Mr. HATCH. Parliamentary inquiry. clear, as I learned afterward, that the friend from Illinois—I will repeat just The PRESIDING OFFICER. Will the Presiding Officer was a fine trial law- what I said. My father-in-law was a Senators yield for an inquiry? yer. And I would like to think I have chiropractor, but even though he was Mr. REID. No. had some fairly good experience in a not a trained medical doctor, he really Mr. DURBIN. I want to say to my courtroom. I tried over 100 jury trials. understood people’s feelings and their colleague, the Senator from Nevada, But with all the jury trials I tried, you illnesses. He always used to tell my many people here may characterize could go back and read every word I ar- wife, and he told me, that if a person this debate over Miguel Estrada in a gued to a jury, every cross-examina- says they are sick, they are sick. We variety of ways, but many of us be- tion I did, every direct examination I have had people second-guess: He’s not lieve—I think the Senator from Nevada did, and you would not know how I really sick, he’s faking it. He said if shares this belief—what is at issue here stood on a single issue, because I was somebody says they are sick, they are is a constitutional principle. It goes to there representing people. I rep- sick. the founding of our Republic. When the resented people who killed people. I What I have been telling everybody Founding Fathers decided that this represented people who robbed people on the other side is Miguel Estrada has body of 100 people would have the last with guns. I represented insurance a problem. You may not agree it is a word, to advise and consent on appoint- companies. I represented people who problem, but it is just like my father- ments to the Federal bench of judges had been injured. And I sued insurance in-law says: When somebody keeps tell- who were seeking lifetime appoint- companies. That does not have any ing me they have a problem, they have ments, this is no trivial thing. It is not bearing on how I feel about a par- a problem. Miguel Estrada has a prob- a personal thing when it comes to ticular principle, me personally. lem, and the only way they can have Miguel Estrada. You could have 5,000 cases at the Su- that problem resolved is supply his I think the point I tried to make to preme Court and that does not deter- memos and, in addition to that, answer the Senator from Nevada: We have ap- mine how you stand. You write briefs. questions. If he doesn’t do that, there proved 103 nominees from the Bush You are an advocate for a client. And are very few alternatives left. White House without fail, each one of Miguel Estrada argued cases before the One is to try to invoke cloture to them conservative politically. I am Supreme Court when he worked for the stop this debate. No. 2 is pull the nomi- sure I disagree with them on many Federal Government. He had a job to nation. That decision has to be made issues, but so be it. That is the nature do, and he did a decent job. He won 75 by the Republican majority. We are not of the system. percent of his cases, I understand. in the business of stopping judges. We, I ask the Senator from Nevada, what Mr. DURBIN. Will the Senator yield along with many groups in America is at stake in this debate, the reason it for a question? today—not the least of which is the is taking so much time? Is it not a con- Mr. REID. I will be happy to yield for Congressional Hispanic Caucus, but we stitutional principle that goes beyond a question. could go on and on with other groups— a cute political phrase as to whether or Mr. DURBIN. The point has been believe this man is a blank slate. not this Senate is going to meet its made by the chairman of the Judiciary I want to say something to my friend constitutional responsibility to make Committee, Senator HATCH of Utah, from Illinois and everyone within the sure that every nominee is honest and that because some Democrats do not sound of my voice, including my dear open and candid with the American agree with what is supposed to be friend from the neighboring State of people and the Senate so we do not end Miguel Estrada’s political philosophy, Utah, somebody for whom I have great up with a secret judiciary, men and that is why he is running into some dif- respect and admiration, ORRIN HATCH. women who skate through by keeping ficulty in the course of this debate. I don’t know who came up with this their mouths shut? I would like to ask the Senator from ‘‘weapons of mass destruction,’’ but I am sorry your grandson has become Nevada, is it not true we have approved they should be ashamed of themselves. the object of this debate, but his an- over 100 nominees from the Bush White We have a situation where my family is swer to the question is a priceless one. House, and 100 of those were under Sen- out today trying to buy duct tape be- When he was asked if he was guilty of ator LEAHY, the Democratic chairman cause they are afraid. They are afraid mischief, he said: I don’t remember the of the Judiciary Committee? And is it there is going to be a biological attack name of the person who was. That is not also true that among those nomi- or a chemical attack, as we have been the kind of evasive answer we have nees were people who were generally told by Secretary Ridge there might with Miguel Estrada. It goes way be- conservative in terms of their political be. yond a catchy political phrase. It goes beliefs, who have been approved by the Why? Because people are going to way beyond political posturing. Judiciary Committee, and by the Sen- bring to our country weapons of mass I ask the Senator from Nevada, did ate, because we understood where they destruction. A play on words today, we not sit here yesterday, both of us, particularly held their beliefs and went thinking it is real cute—they are say- going to the Constitution itself, to read forward and gave them approval? ing we are using ‘‘weapons of mass ob- again our constitutional responsibility Mr. REID. Let me answer the ques- struction.’’ I think it is cheap, petty, when it comes to advice and consent on tion this way. A member of the Judici- wrong, and is below the dignity of this the judges nominated by any Presi- ary Committee, who has liberal creden- Senate. dent? tials, came to me and said: You know, I want anyone who thinks that is Mr. REID. Article II, section 2. there’s this man named McConnell—I cute to get a better joke writer because I am happy to yield to my friend think that was the name of the indi- it is not very funny. from Utah. vidual who came before the Judiciary Mr. DURBIN. Will the Senator yield Mr. HATCH. I appreciate it. I knew Committee. The member of the Judici- for a question? he would. My friend is a very fair and

VerDate Dec 13 2002 00:59 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.019 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2239 very decent man. Personally, I just for the District of Columbia I find par- process. I know my friends on the other want to correct the RECORD. We did not ticularly reprehensible. But it is not side don’t like President Bush or don’t use the term ‘‘weapons of mass de- just that. It is not just that. The real agree with his philosophy, and they struction.’’ We used the term ‘‘weapons reason they are doing this is that they don’t agree with his choices of judges. of mass obstruction.’’ are so afraid that this brilliant young Several of them really feel that way, Mr. REID addressed to Chair. Hispanic lawyer, with all of these cre- and they do it sincerely. I can under- Mr. HATCH. The Senator yielded to dentials, may someday be tapped by stand that. But let’s treat them fairly. me. We have used what was used in the the President for the U.S. Supreme Let’s treat the President of the United Senate retreat for the Democrats in Court. The very fact that he is consid- States fairly. Some day the Democrats 2001, exactly what these liberal law ered for that shows the quality of the will have that position. I hope it is not professors said Democrats should do to man. in the near future. But they may have mess up the confirmation process and But look at his record. Then, to try that position. And if I am here, I am make it difficult for this President to to imply that he did not answer ques- going to treat them fairly, which I did be treated fairly. If these are not weap- tions, or even state that he didn’t, with for President Clinton. I think every- ons of mass—obstruction—to make it this kind of hearing record, when they body around here knows it. I made clear, then I don’t know what they are. controlled the whole process, I think is every effort I could. But I would be ashamed to use all of particularly wrong. those approaches. Above all, I would be Look, I happen to respect my col- If my colleague asks for the floor ashamed to use a filibuster, the first leagues on the other side. I like them. back, I will be glad to give it back at time in history, to risk the whole judi- I definitely have a great relationship this time. ciary because of partisan politics, and with my friend from Nevada. We are The PRESIDING OFFICER. The to do it against the first Hispanic ever close personal friends. This isn’t the Democratic whip. nominated to the Circuit Court of Ap- usual language around here. I am say- Mr. REID. Mr. President, I want to peals for the District of Columbia. ing he is one of my close personal complete my statement, and I will be What is fair about that? What is friends. I would do almost anything for very brief. right about that? I would be ashamed. him. I like the Senator from Illinois. Mr. REID. I thought the Senator had He is one of the brightest, most articu- I think it is improper. I have at- a question for me. late people in this body. He is a good tended every Democratic retreat that Mr. HATCH. I thought I was yielded lawyer. has been held in the last many years. I the floor. But I tell you, I have never seen any- don’t remember anyone ever saying Mr. REID. I technically yield the thing like this, not in my whole time that at a retreat that I attended. It is floor. I thought it was for a question. in the Senate. I think it is wrong. I improper and not good to use it at a You have the floor. think it is wrong. time when the President is talking Mr. HATCH. If not, I apologize. You know what is driving all these about going to war, when we have a The PRESIDING OFFICER. The Sen- outside left-wing groups that are out war going on with terrorists today. ator has the floor. there? It is their base, and they even Suffice it to say that Miguel Mr. HATCH. And then bring up say it, led by People for the American Estrada’s answers to Judiciary Com- Moreno, as if there were a blue slip pol- Way who are acting in a very un-Amer- mittee questions are just like this, a icy issue? It could have been. But the ican way: Distorting these people’s blank slate. He has given answers, as real issue was that the White House re- records, bringing partisanship in, de- my grandson answers questions: I don’t fused to consult with the two Senators manding litmus test votes, demanding remember his name. of the State. I wrote a letter to Chuck a filibuster, which is exactly what the Ruff and said: You need to consult with other side has done. They are hurting We refuse to serve as a rubberstamp. them. And they never did. this process like you can’t believe. We believe strongly that there is a way I have to say, in my chairmanship, if Are my colleagues on the other side out of this, and that is by answering this administration doesn’t consult listening to that stuff? We have had the questions that were asked in detail with two Democrat Senators in the some on our side listen to it, but we as have other nominees who have come State, that nominee is not going to have always stopped it. I am really before us. We also believe he should move. Now, I am not going to put up concerned about it. I am concerned supply the memoranda that he wrote with a screwed-up definition of what about this process. As important as when he was in the Solicitor General’s consultation is. But they are going to Miguel Estrada is, this process is even Office. have to consult. And they are con- more important. But I have to say, We believe this is our constitutional sulting. That has been my direction to Miguel Estrada is a terrific nominee. duty. And as I said before, everything Judge Gonzales, to the Justice Depart- They should have to come up with has been said. We are going to figure ment, to anybody: You need to consult something valid or substantive, not with Democrats and Republicans up just all of these philosophical objec- out, however long the majority leader here. We do have some rights as Sen- tions that really have no merit to wants to talk, different ways to say it. ators. begin with. But we are not going to back down But let me tell you, I personally re- Mr. REID. Will my colleague yield? from this. This is something we believe sent anybody trying to compare what Mr. HATCH. I am happy to yield. as a matter of principle. If we let this we are doing here, quoting liberal law Mr. REID. The Senator raised a per- go through, somebody can come before professors who ought to know better, sonal privilege. the Judiciary Committee and, in effect, by calling what they have suggested to Mr. HATCH. I withdrew that. give them nothing and say, boy, I the Democrats ‘‘weapons of mass ob- Mr. REID. And then I yielded the showed you guys. I think people need struction’’—it is a far cry from ‘‘weap- floor. to be candid, forthright, and he has ons of destruction.’’ Mr. HATCH. You did. simply not done that. The record is This is true. There is not a word on Mr. REID. I didn’t do it in the proper very clear to that effect. I think using there that is not true. You go down to way. I had not finished my statement. the term ‘‘weapons of mass obstruc- the bottom line, which is, if you can’t I should have said, I yield the floor to tion’’ is wrong. win on all these other procedural my friend for a question. I didn’t do Mr. BENNETT. Will the Senator mechanisms that really are not valid, that. I hope the Senator doesn’t talk from Nevada yield for a question? then you filibuster; for the first time in too much longer so I can get the floor Mr. REID. I am happy to yield for a the history of circuit court nominees, back. we have a true filibuster. And to do it Mr. HATCH. Let me honor my col- question. against the first Hispanic ever nomi- league’s request by just saying that I Mr. BENNETT. The Senator from Ne- nated to the Circuit Court of Appeals hope we can work fairly through this vada has said this morning that the

VerDate Dec 13 2002 00:59 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.021 S12PT1 S2240 CONGRESSIONAL RECORD — SENATE February 12, 2003 Democrats would not allow a vote on Mr. LEAHY. I would agree. In fact, join with the Senator from Vermont in this nomination. He has also said they that is what I said again this morning. asking the administration to consider want to see the memoranda that were If we had the memoranda, something these memoranda to be made public if, compiled by Miguel Estrada while he Mr. Estrada said he is perfectly willing in fact, we can get a commitment that was working for the Clinton adminis- to let us have but the administration upon their being made public, we could tration. wouldn’t let him, but if we had the get a vote. Mr. REID. And the Bush administra- memoranda, if we were able to ask Mr. REID. Mr. President, I say to my tion. what he meant by this or that in the friend from Utah that even though he Mr. BENNETT. And the Bush admin- memoranda, once that was done, if he is not a lawyer, he certainly acts like istration. I would ask the Senator from answered those questions, whether I one. I won’t tell anybody in Utah that. Nevada if he knows of any Senator on agreed or disagreed with the answers to Mr. BENNETT. I am not sure that is his side who, upon seeing the memo- the questions, this Senator at least is a compliment. randa, would change his vote and allow perfectly willing to have it go forward Mr. REID. I indicated I would not tell a vote, not change his vote and vote for on a vote, which is basically what we anyone in Utah. Estrada but change his vote and allow did with numerous other Democratic I want to respond to this question. a vote on Estrada upon seeing the and Republican nominees in the past in The Democratic leader and the ranking memoranda? similar circumstances. I don’t want member of the Judiciary Committee Mr. REID. We would have to leave there to be any question about that. wrote a letter to the President of the that to individual Senators. I am sure This Senator is perfectly willing to United States yesterday and outlined there could be some. It would be very have this matter come to a vote once exactly what we have talked about helpful. Mr. Estrada did what he has said that today. If, in fact, the memoranda were I am not a member of the committee, he is perfectly willing to do—make made public, were given to the Judici- but we have a former chairman and available his memoranda and answer ary Committee—and it has happened ranking member here and one of the questions about them. So far only the other times in the past—and he would active members who has been on the administration has refused, and the respond to questions, we would be floor a lot during this debate. distinguished Democratic leader and I happy to take another look at this It could be very important in arriv- wrote a letter to the President to that man. That is what the letter said to ing at a decision about how you feel effect. the President of the United States. I about this man if he did give his opin- Mr. REID. That was yesterday. said last night, and this morning, that ions. It helped with Rehnquist. It Mr. LEAHY. That was yesterday. there are a number of ways out of this: helped with Civiletti, Roberts, and a Mr. REID. It is no secret that the Pull the nomination, give us the infor- number of other people who came be- ranking member, on behalf of the mation we want, the memoranda, and fore various committees seeking their members of the committee, has for answers to these questions, or file clo- attention in the Senate. weeks and weeks sought this informa- ture. Mr. LEAHY. Will the Senator yield tion. I yield to my friend from Illinois. for a question? Mr. LEAHY. Absolutely. Mr. LEAHY. If I might, Mr. Presi- Mr. REID. I am happy to yield with- Mr. REID. Does the Senator from dent, the suggestion has been made on out losing my right to the floor. Utah have another question? I would be the floor that this is a one-time prece- Mr. LEAHY. Mr. President, if the happy to yield without losing my right dent. It is not a fact that this is a one- Senator from Nevada is aware of what to the floor. time precedent. It happened in the the Senator from Vermont said, I real- Mr. BENNETT. Mr. President, with- nominations of Robert Bork, William ize the junior Senator from Utah was out the Senator from Nevada losing his Bradford Reynolds, Benjamin Civiletti, not in the Chamber at that time—the right to the floor, I would like to con- Stephen Trott, and William H. senior Senator from Utah was, as was tinue a discussion at this point. Rehnquist. the distinguished majority leader—it The PRESIDING OFFICER. Without I yield to my friend from Illinois. would be safe to say to the distin- objection. Mr. DURBIN. I say to my friend from guished Senator from Utah that the Mr. BENNETT. Because I see perhaps Nevada, thank you for yielding. And I Senator from Vermont stated this the makings of a deal here, if indeed say to my colleague from Utah, Sen- morning very clearly that I would be the senior Senator from Vermont is ator BENNETT, with whom I share some prepared to see this go to a vote once willing to allow this to go forward if responsibility on the Appropriations response would be made. And the Sen- the memoranda were made public and subcommittee, and whom I have found ator from Vermont noted that Mr. if indeed the nominee himself knows of to be an extremely fair person, I think Estrada himself said he had no objec- nothing in the memoranda that would perhaps he has come up with the solu- tion to having all this memoranda that be objectionable, it comes down now, tion to the gordian knot we face. we have sought made available but had ultimately, to the decision of the cli- We are not against Miguel Estrada. been told by the administration that ent because this was an attorney serv- Without information, we cannot make he would not be allowed to. ing a client, the decision of the client a judgment on Miguel Estrada. We be- If the question is how various Sen- to allow this information to come for- lieve it is our constitutional responsi- ators would feel if the memoranda were ward. bility to ask of every judicial nominee, made available and we were allowed to Now, every living Solicitor General from both Democratic and Republican question Mr. Estrada, something he has said it would be a bad idea for this Presidents, obvious important ques- said personally that he would have no to come forward. The Washington Post tions. In the case of Mr. Estrada, since objection to, then as far as I am con- has said it would be a bad idea for it to he never served as a judge, he has legal cerned I would be perfectly willing come forward. But if it could be worked writings, legal memoranda, legal opin- after that to have the matter go for- out that on a one-time basis, not set- ions. We are asking him to share those ward to a vote and have Senators vote ting precedent, the opinions of the So- with us so we can have insight into up or down however they may feel. licitors General, both Republican and who he is, what he believes, and what Mr. REID. I would respond to my Democrat, could be set aside and these he will do with a lifetime appointment friend from Vermont, I would only add memoranda could be made available, to one of the most important Federal this: I think if the memoranda raise do we have a commitment that, then, benches in America. any questions, then certainly the mem- this could come to a vote? Because if That is what this is about. It is not bers of the committee would be enti- that is the case, I, for one, would go to about being Hispanic. If you look at tled to ask questions relating to those the administration and say let’s allow the record on the Democratic side, memoranda and get better answers—I it to come forward. President Clinton appointed far more should say, get answers, period—to the I recognize this is a precedent no one Hispanics to the bench than any other questions that were asked relating to wants to set, but I think the precedent President in history. We supported those memoranda. That is fair; would of establishing a filibuster is one no- him, and we continue to support that. the Senator agree? body wants to set. I would be happy to I believe this affirmative action by the

VerDate Dec 13 2002 02:41 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.024 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2241 White House to bring Hispanics into think gives light to why we are here I ask the Senator from Nevada, does the judiciary is a good thing for Amer- today. This was between the Senator he believe, as Senator BENNETT is sug- ica. Our judiciary should reflect the di- from New York, Mr. SCHUMER, and the gesting, that if there is full disclosure versity of the country. Whether they nominee. Senator SCHUMER asked the and openness that this will come to a are Hispanic, Irish, or Lithuanian, we following question: vote? Miguel Estrada’s legal memo- are going to ask the hard questions. Other than the cases in which you were an randa will be presented, we will have a Then the Senate will make a decision. advocate, please tell us three cases from the chance to ask questions, he will give us The thing the Senator from Nevada has last 40 years of Supreme Court jurisprudence straight answers instead of these eva- stated repeatedly is that what we are you are most critical of. sions, and then let the chips fall where about today is a real quest for informa- Mr. Estrada answered: they may; is that not what we are tion, a search for information. I’m not even sure that I could think of about? I hope the Senator from Utah will three that I would be—that I would have a Mr. REID. Yes, that is what we have prevail not only on his leadership, but sort of adverse reaction to, if that’s what been saying, and I told the majority on the President, to follow the Bennett you’re getting at. leader this morning, this is no game we model here—full disclosure. Bring the Senator SCHUMER asked: are playing; this is a filibuster. We legal memoranda and writings before So with all of your legal background and have a right to do that. Why? Because us, let us ask the obvious questions immersion in the legal world, you can’t we believe that what is being done is that they will lead us to, and then let think of three or even one single case that wrong. us consider up or down this nomina- the Supreme Court has decided that you dis- I say to my friend from Illinois, we tion. That is an honest approach, and I agree with? talk about article II, section 2, but the think it would avoid what we have Answer: Constitution is a little document. It is been through in the last couple weeks. I don’t know that I am in a position to say so unique, and it does so much to pro- Isn’t this what the Senator from Ne- that I disagree with any case that the Su- tect people. The Constitution was not vada has been asking for and what the preme Court has ruled on or that I think written to protect majorities. They can leadership has been asking for? that the Court got it right. always protect themselves. It was writ- Mr. REID. I say to my friend from Il- Senator SCHUMER: ten to protect minorities. linois, I have said not once, not twice, I’m not asking you how you approach We know that the majority would I don’t know how many times—over a cases. That is a legitimate question and vote 51 for this man today, and I think dozen times—if this man is as good as some have asked it. I want to know how you we have set a very bad tone for what they say he is, this seems to be such a feel about cases, and you have said more we are doing in this country. What we broadly than any other witness I have come small push, to have him answer ques- across, you have given us virtually no opin- have said is, there are a significant tions and give us his legal memoranda. ion on anything because it might come up in number of Democratic Senators—well That is what we are asking, because as the future. over 40—who say this is not right. If we I had shown through my visual aid Answer: do this, why do you need the Senate? If today, we have nothing from him. If he you do this, why not just have, instead But the problem is the same, Senator is as good as they say, I repeat, bring Schumer, because in taking case A and look- of President George, King George? He that forward. That would make us ing at whether the Court got it right or can just tell us what he wants done. It happy in so many different ways. It whether I think they got it right, I have only is not King George; it is President would show that we don’t have to take the benefit of the opinions. I haven’t seen Bush. As a result of that, he has to go these people given to us, just jammed the litigants. I haven’t—the case is ruled on, through this process, and if he wants through, having blank slates. We have but I don’t get to see what didn’t make it this man, who they say they like so the right to ask questions. into the opinion. much, then let them come forward Secondly, it is important because I That is the end of that exchange. with the memoranda he wrote when he believe it sets a very dangerous prece- I went to law school many years ago, was in the Solicitor General’s Office dent that Miguel Estrada, HARRY REID, as did the Senator from Nevada, but if and let him answer some questions. It DICK DURBIN, or anyone going through they put you on the spot today and is as simple as that. the process can go through without the said can you think of one Supreme Mr. DURBIN. If the Senator will Senate having the ability to learn who Court case with which you might dis- yield for a further question, I, of they are. We have that obligation. The agree—— course, will give my friend and col- Senator is absolutely right. We sat Mr. REID. I think maybe I would league from Utah the opportunity to back there next to one another yester- come up with Dred Scott. respond. day looking through the Constitution— Mr. DURBIN. A case that approved Mr. REID. I yield to my friend for a we both had one—looking up article II, slavery in the United States is one question. section 2, to make sure we felt good with which we might disagree. Why Mr. DURBIN. I wish to ask this ques- about what we were doing. I think it is would a man with his academic and tion. I assume the Senator from Ne- very clear that our constitutional re- legal background not have that spring vada, as a Senator from that great sponsibilities not only allow us to do to his mind? How about Plessy v. Fer- State, has had an opportunity to sit this but demand that we do it. We have guson, separate but equal? down with judicial nominees who were an obligation to not only this Senate Mr. REID. That was another dandy seeking district or circuit court ap- but future Senates, and not only the they did. pointments affecting Nevada and prob- people of America today but future Mr. DURBIN. Those are two obvious ably has nominated men and women generations, that we are doing the ones. You don’t have to go to law for the Federal bench in Nevada. I do right thing. school to think about those. This is an not know what his process has been. I Mr. DURBIN. If the Senator will example of the how he filled up a page, have had that great honor in Illinois, yield further for a question, I listened and what did he say? I guess he would and I try to get to know these people. earlier when the Senator made his say: If I didn’t get a chance to meet I ask them questions to get an idea of presentation about Miguel Estrada and Dred Scott, I will not comment on that what is going on in their minds. what he said and did not say to the case. I didn’t know Mr. Plessy or Mr. It is not uncommon for me to ask the Senate Judiciary Committee and to the Ferguson, for that matter, so I should question we asked Miguel Estrada: Can American people. He was challenged by not say what I think about that. you think of a Supreme Court case you Senator HATCH, who produced a binder You wonder why the Democrats are think was particularly good or particu- and said: Have you read the words in coming to the floor and saying, for larly bad and tell me why, as open- here? goodness’ sake, this makes a mockery ended and as nonconfrontational as The Senator from Nevada said: You of the process. If a man wants a life- possible? can evade answers and fill up pages and time appointment to the second high- I say to the Senator from Nevada, pages. est court in America, should he not be this is a question I asked Miguel I would like to read, if the Senator more honest, open, and candid? That is Estrada, and I ask the Senator from will allow me, one exchange that I all we are asking today. Nevada to think about it in the context

VerDate Dec 13 2002 00:59 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.027 S12PT1 S2242 CONGRESSIONAL RECORD — SENATE February 12, 2003 of interviewing nominees for the Fed- of the aisle get a commitment that we The PRESIDING OFFICER. Without eral bench in Nevada. A simple ques- could go to a vote if the memoranda objection, it is so ordered. tion and a simple answer. The question were delivered? Senator DASCHLE and Mr. BENNETT. I think the Senator I asked was: Senator LEAHY do not give that com- from Nevada and I could probably In terms of judicial philosophy, please mitment in this letter. They simply make a deal here, but we are both rep- name several judges, living or dead, whom say they want that information, they resenting groups behind us. What I you admire and would like to emulate on the would appreciate the President’s per- would search for would be a firm com- bench. sonal attention, and that they need the mitment that this can come to a vote, That is a pretty tame question: Tell information in order to make an in- not a statement that, well, we will do me who you admire. formed decision. the right thing; not a statement that Answer—this is Miguel Estrada: I think most of the Senators have al- we will review the answers; but a firm There is no judge, living or dead, whom I ready made their decision, be it in- commitment that if the memoranda is would seek to emulate on the bench whether formed or otherwise, and the issue that produced and Mr. Estrada gives an- in terms of judicial philosophy or otherwise. I am striving at is to try to get an up- swers with respect to that memoranda, Forgive me, you cannot go through or-down vote, an opportunity for them we can then have a firm vote. law school, you cannot be a clerk at to express their decisions. So I am ask- The Senator from Illinois has given the Supreme Court, you cannot argue ing again—— us an example of a question that was before that Court 15 different times and Mr. REID. I respond to my friend, I asked. He received an answer. He con- not look at least at those nine Justices think we have answered that very de- siders the answer totally inadequate and think: I like that Justice’s ap- liberately to the effect we feel that the and improper, but he received an an- proach, or read the history of the Su- memoranda are important, and we feel swer. If we get into this conversation his answering questions regarding the preme Court and think: This judge and say, all right, the memoranda will memoranda and a couple of other added something to America; I would be produced, he will be questioned, and issues are important. then you say, We do not like his an- like to emulate this judge. This is my recommendation to the If you have no heroes, living or dead, swers, so we still will not give you a majority leader and to my friend from among the Federal judiciary, the obvi- Utah who is, by the way, a deal maker, vote, that is not a blind alley into ous question is, Have you been paying and there is nothing negative at all which I want to go. Mr. REID. Mr. President, let me attention? Have you noticed that men about that. Legislation is the art of reply to my friend. Without that infor- and women have made a difference for compromise, and this is no different mation, Miguel Estrada will never be a America sitting on the Federal bench? than any other issue. Here is this man being carefully If I were majority leader, I would Federal judge. We have talked with our groomed by the White House to move simply ask the White House to supply Members, and it does not matter if to the highest circuit court in our land, this information, and that answer there is 1 cloture vote or 50 cloture the DC Circuit, and perhaps to the Su- speaks for itself. I think if the informa- votes, we will all be together on that— preme Court—no one has denied that— tion were forthcoming and the man, ei- those who have agreed to hold up on and he cannot give us an answer to ther in writing or otherwise, answers a this nomination. that question? It is the reason why we few questions—I do not know what I am speaking only for myself, but I are here today. questions could come up by virtue of think if he supplied that information, I ask the Senator from Nevada, when that information—but my answer not evasive answers but tried to be fair he brings nominees before him for his speaks for itself. I think the majority in responding to any questions we had State, what kind of questions does he leader should have that done. We regarding those materials—and an- ask them? should go on to other business in the swers to some of these other questions Mr. REID. Mr. President, I respond to Senate. There are other judicial nomi- people feel serious about—it would be my friend, I think he asked a trick nations. There is other substantive leg- resolved. I have no doubt that would be question. I am being facetious, of islative business on which we can the case. So I think the Senator could course. I think that answer—that is work. I think when we come back from spend his time with the significant in- why I sat here, and I have sat here for our break, this matter could be re- fluence he has—I know he is filling in days now and the Senator has been in solved very quickly. for my counterpart who is ill tempo- the Chamber—but I finally came upon I do say that unless this is done, this rarily, and that shows the respect peo- it: I do not remember his name, just nomination is going nowhere. We have ple have for him on his side of the like my little grandson. That ended the waited a long time to announce we aisle—I am sure if the Senator from conversation. He could not remember were conducting a filibuster. We under- Utah went to work on that side, it whether it was one of his brothers or stand the seriousness of looking at ju- would bear fruit. If it does not happen, his grandmother. So that ended that. dicial nominations in the manner we nothing will happen other than acri- That is what we have here. did. We understand. We understand the mony, which is too bad because we are We have a man who is evading an- heartburn we are causing Senator going to see this one through. swering a question. Obviously, he was HATCH. We know how he feels, that this The PRESIDING OFFICER. The Sen- pretty smart in doing that. He filled up is intemperate and wrong. We know, as ator from Illinois. a whole book saying: I am not going to we have explained in conversation be- Mr. DURBIN. I thank the Chair. I answer. He filled up a book of non- tween Senator DURBIN and me this thank Senator BENNETT for the con- answers. morning, that it is extremely impor- tribution he has made. I hope he under- It is my understanding that the Sen- tant we do this. We are locked in. We stands my position—I cannot speak for ator from Utah wants to ask a ques- have talked to our Members over here. others—once this nominee has made tion. We are locked into this, but this does full disclosure—his legal background, I allow the Senator from Utah to ask not mean if the information is forth- opinions, memoranda, his answer to a question without losing my right to coming—and we will do what we think questions—frankly, I would view him the floor. is appropriate. The margins in the Sen- as other nominees. I may vote for him The PRESIDING OFFICER. Without ate are very slim. You do not have to or against him. I think I voted against objection, it is so ordered. change a lot of votes to get what you 6 out of 103 of President Bush’s nomi- Mr. BENNETT. Mr. President, I have want. nees. I have not made a pattern of this, now been given a copy of the letter I suggest if you do what we want, but some disagree with this thought. I signed by Senator DASCHLE and Sen- things will work out probably for you. think that is where we are leading to. ator LEAHY addressed to the President. If you do not, nothing is going to hap- I hope that is where we are leading to. As I have examined the letter, I do not pen. More importantly, I hope the Senator find in it the commitment I have been Mr. BENNETT. Mr. President, if I from Utah understands why we are seeking in our dialog here. So I renew may, I ask unanimous consent, without doing this. There is a belief among that with the Senator from Nevada. the Senator from Nevada losing the some that with the newfound majority The question is, Could we on this side floor, to make a comment. on the Republican side since the last

VerDate Dec 13 2002 02:03 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.029 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2243 election and with the control of Con- about? Don’t the voters of this country many others bring so much to this gress by the Republican Party and the basically want to know, whether it is country. So from a personal point of White House, the process is going to be ROBERT BENNETT or RICHARD DURBIN, view, I admire this man very much. His pushed aside and things are going to be who are you? What are your values? legal credentials put me to shame. As a moving quickly through without the What are you likely to do? law student, I never got close to his kind of deliberation we have had in the We cannot predict what votes they level of achievement in law school, so I past in the history of the Senate. are going to cast, but what have they certainly admire that. Some have suggested that on their done in the past or generally how do Having said all of that, accepting way to the bar serving on the bench, they feel about the principles and the that he is a good person, accepting that people will be moving through the Sen- constitutional values of this country? he has a marvelous career as a lawyer ate Judiciary Committee like the re- Those are some pretty basic questions. and as a law clerk, I still need to ask ceiving line at an Irish wedding, and I Why wouldn’t we ask that of a person some basic questions in terms of where hope that does not happen. I think seeking a lifetime appointment to the he is going, given this position of re- what we need to have is a deliberative Federal bench, a person who, with the sponsibility. When the Democratic process where Members have a chance stroke of a pen, could basically wipe Caucus sat down, they decided this was to ask questions of every nominee, and out a law or say that a law is valid? an important issue to raise. Miguel then, satisfied or not satisfied, they That is an enormous delegation of Estrada was the case in point. come to a vote. power to the judiciary, particularly to It is an important issue relative to Make no mistake, Miguel Estrada is this level of the judiciary. the role of the Senate when it comes to opposed by a variety of organizations What we are saying today when it President Bush’s judicial nominees. If which believe they know who he is and comes to Miguel Estrada is we want to we cannot ask the questions, if we can- have seen enough evidence to raise know some basic answers. We do not not ask questions that have been asked questions in their mind. But I think for expect him to tell us his opinion of a of nominees over and over again when the sake of the Senate as an institu- case pending before the DC Court and Presidents of different political parties tion, whether Republican or Democrat, how he is going to rule. Lloyd Cutler is have been in power, then frankly we what we are asking is not unreason- right; we should never ask about a par- have given up more than our political able. ticular case. But to ask a judicial right, we have squandered our con- When one reads these answers from nominee their views on the issue of pri- stitutional responsibility. this nominee, they have to say to vacy, is that an important issue today? Mr. BENNETT. Mr. President, will themselves, why is the Senate Judici- Pick up this morning’s paper. We are the Senator yield for a question? ary Committee wasting its time? Be- going through a debate now as to Mr. DURBIN. I would be happy to cause if someone can get by with that whether the Department of Defense can yield for a question. type of an answer where they cannot collect information about Americans Mr. BENNETT. I want to pursue this identify one single Supreme Court de- across the board in the hope of finding with the Senator. If we can get Miguel cision they disagree with, they cannot those who might be threatening this Estrada to give the Senator the name name a single Federal judge, living or country with terrorism, and Congress of a Supreme Court Justice whom he dead, whom they admire—if they can has basically said to the Department of appreciates, along with the memo- get by with that, why are we here? Defense: Close that shop. We do not randa, and answer questions on the It reminds me of the Clarence Thom- know if we want you mining these data memoranda, would the Senator—not as nomination when he said before God banks across America at the expense of speaking for his caucus, just for him- and the world he never considered the the privacy of individuals’ rights and self—agree to give us a vote? issue of abortion in his life, had no liberties. Mr. DURBIN. I say to the Senator, opinion on it. A man who was a former This is an issue which is not going obviously we do not know what the an- Catholic seminarian at Conception away. Since September 11, 2001, it has swers might be and what they might Abbey in Missouri, a man who had been been front and center in the national lead to, but what he suggests as a basic in law school when Roe v. Wade was de- debate and will continue to be. principle is one I stand behind. When cided, had no opinion on the issue of So when one asks a judicial nominee, nominees are open and honest with the abortion? I guess that sort of thing was a person who is going to the second Senate Judiciary Committee and the glossed over because of all the other highest court in the land with a life- Senate, they are entitled to a vote. hoopla and attention given to his nom- time appointment, what is their view Mr. BENNETT. I appreciate the com- ination, but I thought to myself—and I on the issue of privacy, is that an im- ment of the Senator because we must was not in the Senate at the time— portant question? It is not only impor- understand, once again, we are not would the Senate Judiciary Committee tant; it is timely; it is critical. And for talking about the Senate rubberstamp- let others get by with this where they nominees such as Miguel Estrada to ba- ing something from King George. We do not even answer the question? sically say, I do not have an opinion, are talking about the Senate entering I can tell the Senator from Utah, and that tells me we have a problem. a whole new era of saying a nominee others who are following this matter, We should be able to ask these nomi- must be approved by 60 votes—which is there have been nominees who have nees the most basic general questions something we have not done before. I come before this Senate Judiciary relative to constitutional law and the appreciate the Senator’s understanding Committee with whom I have disagreed rights and liberties of Americans, and of how serious this is, that because vehemently on issue after issue. In we should not apologize for it. Miguel Estrada gave answers that were fact, I have even successfully nomi- I have told my colleagues in the Sen- not acceptable to some members of the nated judges to the bench in my State ate Democratic Caucus, I met Miguel Judiciary Committee, and because this whom I disagreed with on basic issues. Estrada. I sat down with him. I have memoranda has not been forth- But I am not looking for a person who read his background, his personal re- coming—not at his request, but at his has the same political DNA that I am sume, his legal credentials. They are clients’ request—we are now going to bringing to this job. I want a person very impressive. This is a man who has sail into a whole new sea. I hope every- who is moderate and reasonable, who come very far in his life against great one understands how significant that shows that they are open minded and odds, and I respect him so much for is, regardless of the qualifications of prepared to be a fair jurist. that. He is an immigrant to America. this man. How can one reach that conclusion I have a special affection for immi- I will do what I can to get him to about a person without asking some grants because my mother was an im- come up with a name for the Senator very basic questions to try to get into migrant. I am proud to put her natu- from Illinois. I do not know if I will be their mind a little bit as to what ralization certificate in my office for successful. If that is the whole thing makes them tick and where their val- everyone to see that I, as her son, stopping his confirmation, that he ues might be? would be standing today as a Senator could not think of a Supreme Court Think about the election process for from Illinois. Immigrants such as Justice whom he admired under those the Senate. Is that not what it is Miguel Estrada, my mother, and so circumstance and if, after reflection,

VerDate Dec 13 2002 02:03 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.032 S12PT1 S2244 CONGRESSIONAL RECORD — SENATE February 12, 2003 he now can come up with a name, we tainly higher standards that need to be tion, a reason why it is so important would like to see the Senator from Illi- met, but the DC Circuit Court is not we challenge this nomination, if not nois allow this to come to a vote. far behind. As I said yesterday, the DC the nominee, because of the process we Mr. DURBIN. We gave two illustra- Circuit Court is the AAA for the major have gone through, is just over- tions where we asked Miguel Estrada leagues on the Supreme Court. We have whelming. I think it is a basic sense of for a Supreme Court Justice, or a Fed- been told time and again by the ‘‘great responsibility we should have as Sen- eral judge, living or dead, he would leakers’’ at the White House, Miguel ators. If we do not ask the questions on emulate and admire; we also asked for Estrada is on the fast track of the how one will respond in a jurisprudence a Supreme Court case he might dis- major leagues, the Supreme Court. We context to not specific issues but gen- agree with. Senator SCHUMER asked the want to know his batting average and eral thought process before we hire question. I say to the Senator from we want to know whether he can take someone to be an appellate court judge, Utah, those are two very egregious il- an inside pitch. And he will not answer I don’t think we are fulfilling our con- lustrations of his evasion. There were those questions. That really calls into stitutional responsibility of advise and others. question whether we are meeting our consent. I cannot speak for my colleagues, but responsibility. Would the Senator hire someone if I will go back to the premise of my As I said yesterday, the choice is you had not been able to ask how they reply. I believe when a nominee is open simple. It is a choice between the Con- may think about some of the basic and honest and cooperative, they are stitution, article II, section 2, which processes and logic they might bring to entitled to go through the process and says the Senate shall advise and con- bear in giving you advice with regard have a vote. That is my personal view. sent to nominees. It gives us a role of to legal counsel in your office? It is in- I don’t speak for any other Senator. credible to me. No one with a blank I have felt the same about issues on responsibility to advise and consent. Or slate would turn over such an impor- the floor of the Senate. My feeling is whether we will give up this Constitu- tant duty without doing a serious this: This is a deliberative body. We tion for a rubberstamp and just say, as interview process to understand at take our views on issues to the court of the President sends his nominees, least the thinking process of an indi- public opinion and to the 100 Senators thanks a lot, Mr. Bush, ‘‘approved.’’ I vidual. gathered. We should be entitled to will not do that. I don’t think I was se- Mr. DURBIN. Just to respond to my produce an amendment or a bill, debate lected for that purpose. colleague from New Jersey, not only it, and have an up-or-down vote. I I think the Senator from Utah is un- would I not hire them, I would be dere- think that is what the process should derstanding better what we are about. lict in my responsibility in doing so. I be all about. I have lost plenty in the The fact Miguel Estrada has refused to think the Senator from New Jersey Senate—the Senator of Utah can attest disclose his writings is unprecedented. would agree, many times he has asked to that—I have won a few, but lost We have at least five illustrations, in- prospective staff people their opin- quite a few, too. I accept that con- cluding Justice William Rehnquist, ions—and may even disagree with sequence. That is why we serve. nominated as Chief Justice of the Su- The same is true with nominees. If preme Court, who produced his them. I, frankly, believe within my leg- they are open and cooperative, they are writings so we could understand more islative staff there are people who entitled to go through the process, about his thinking before he assumed think I am wrong on some issues. That whether nominated by a Democratic or the highest judicial post in America. is not only their right but their respon- Republican president. Antonin Scalia, who was called on to sibility to give me that point of view. When you take a look at the groups rule in a case involving the disclosure But at least going in, that is a pretty that oppose Miguel Estrada, many of of legal views, Antonin Scalia, abso- basic question. them have seen in his background lutely the hero of the rightwing in If we can’t ask Miguel Estrada, who areas of great concern. Consider the American politics and of our President, is seeking a lifetime appointment to groups that have opposed him: The when he had to rule on a case as to the second highest court in the land, Congressional Hispanic Caucus—all whether or not nominees would dis- what is in his mind in terms of his val- members of the Congressional Hispanic close their opinions on legal issues, the ues and principles when it comes to Caucus have opposed this Hispanic case was the Republican Party of Min- constitutional law, then we have failed nominee; the Mexican American Legal nesota v. White, Justice Antonin as Senators and we fail our constitu- Defense Fund, which is the premier Scalia said: tional responsibility. Mr. CORZINE. Mr. President, I could civil rights organization for Mexican [E]ven if it were possible to select judges Americans and many Hispanics in the who do not have preconceived views on legal not agree more with the Senator from United States, opposes Miguel Estrada; issues, it would hardly be desirable to do so. Illinois. I have a responsibility to the the Puerto Rican Defense and Edu- ‘‘Proof that a Justice’s mind at the time he people of New Jersey to make sure we cation Fund opposes Miguel Estrada. joined the Court was complete tabula rasa ask serious questions with regard to And then more generic groups: The [blank slate] in the area of constitutional ad- how judges are selected. In my own Leadership Conference on Civil Rights, judication, would be evidence of lack of qual- process in reviewing district court ification, not lack of bias.’’ NARAL, Pro-Choice America, the Si- judges and circuit court judges that we erra Club, the National Women’s Law So, many of us, despite this impres- are asked to opine about by the White Center, People for the American Way, sive resume of Miguel Estrada, have House, about how we would react, I and many others. I had printed in the fundamental questions. Is the man have a bipartisan committee that does RECORD yesterday the names of the or- qualified for the job? By stepping back just exactly that. It sits literally for ganizations and I will not take up the and saying, I am a blank slate, can’t hours to make sure we have some sense pages of the RECORD again today with think of a Supreme Court case I dis- of the approach future judges might those illustrations. agree with in its history, can’t think of take, how they think about issues, how The clear question before the Senate a Supreme Court Justice or any Fed- they feel about constitutional prin- is why a man with such a compelling eral judge whom I admire, you wonder ciples. I think this is one of the most personal story and such great legal cre- why we have questions about him? You important debates we can have with re- dentials has so many groups ques- wonder why this extraordinary debate gard to the responsibilities of being a tioning whether he is the right person is under way? Senator—making sure, when we deter- for a job. Some of it has to do with his I see my colleague from New Jersey mine the people who are actually going evasion. Some has to do with the se- has come to the floor and I thank him to sit on the court with lifetime ap- crecy that has surrounded his nomina- for joining us this morning. pointments, that we do so with the full tion and the suggestion that this rel- I yield the floor. knowledge and understanding of where atively young lawyer is on his way to The PRESIDING OFFICER. The Sen- they are coming from. the Supreme Court as early as next ator from New Jersey. By the way, that is not to say you year. Mr. CORZINE. Mr. President, to my are going to agree with everyone with Many believe when it comes to Su- colleague from Illinois, who is so elo- regard to all aspects about how they preme Court nominees, there are cer- quent on so many issues, his articula- might think about issues. But you

VerDate Dec 13 2002 00:59 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.034 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2245 ought to at least understand what you come from in the private sector, if you just $2.3 trillion worth of interest ex- are getting into. I certainly hope we have an $8 trillion negative cashflow, pense, but we are going to see that ex- will have the opportunity to review somebody would ask some questions plode in the years well beyond the next real information on this as we go for- about what is driving it, what is mak- decade because that is when the baby ward. ing such an overwhelming difference in boomers retire. We will go from 40 mil- THE BUSH BUDGET the context of our financial posture lion retired Americans to 75 million re- Mr. CORZINE. Mr. President, I come with respect to fiscal affairs in this tired Americans on Medicare and So- to the floor to make a statement with country. That is extraordinary. cial Security and that will put unbe- respect to something I believe is vital By the way, take that a step further. lievable pressures on what we have as a that the American public get focused It was projected at the same time that nation in our fiscal responsibility. on. Last Monday President Bush pro- we were going to pay down, for all So I find this a hard budget, at a posed a budget to the American people practical purposes, the publicly held macro level, for us to take on. I hope that, if it were adopted, would basi- debt of the U.S. Government. That was the American people can understand cally dramatically change the land- in 2001, early 2001—going down to $36 that we are burdening our children and scape, reshape the future of our Nation billion. our grandchildren as we go forward; in a lot of different ways. I would like Today, out to 2008, we are expecting a that we really are putting at risk Medi- to speak about that in the context of a $5 trillion publicly held debt. That is care and Social Security as we under- few ideas today. extraordinary. That is an extraor- stand it today as we go forward. Frank- I hope I can come here every day, as dinary amount of debt that will go on, ly, I think without a full discussion long as is necessary, to make sure we not just to be financed by current gen- and without creating a full under- raise up this, I think revolutionary erations of Americans. The view that standing in the minds of the American document, radical document, with re- we are not going to transfer to our kids people, we are not doing our jobs. I gard to what the shape of our economy and our grandkids future responsibil- think it is almost a question of ethics, and the shape of our participation of ities to pay for what we are doing about what our responsibility is to the Federal Government in our life in today, as we benefit from those expend- raise up this discussion so those America is about. itures—we are transferring it on. That choices are understood by the Amer- Perhaps because of its release so soon is $5 trillion. ican people and not buried in some doc- after the tragic Columbia shuttle trag- By the way, it is a heavy burden not ument of hundreds and hundreds of edy, the budget has not received the only in the debt that the current gen- pages of numbers that really do not public attention it deserves. Frankly, eration is transferring to future gen- translate into the practical impact we had unbelievably revealing testi- erations, but it is also an extraor- that the individuals need. mony by the Chairman of the Federal dinary expense. We are going from a I go back to it again. It is basic eco- Reserve yesterday with respect to how $622 billion cost of our debt under the nomics. that budget fits into the overall con- projections that were established in We have had an $8 trillion swing in cept of fiscal responsibility and fiscal 2001 to, get this, $2.3 trillion we are the cashflow of this government. There prudence that is so important for going to spend—$2.3 trillion we are is no one I know who would think that Americans to understand. But even going to spend just to finance that is a positive way for us to approach the with that, even with such dramatic debt, that change in that $8 trillion financial management of this country. statements coming from the Chairman that comes across. That is what it is To carry on with slightly more de- of the Federal Reserve, the budget has going to cost us over 10 years to fi- tail, as economists would say, this not received the public’s attention. I nance the bad fiscal policies we are budget calls for a dramatic reduction think we need to raise up the debate taking on. in national savings. When you are bor- that is embedded in many of the propo- I don’t know about most Americans, rowing all this money, that money sitions that are made in the Presi- but I think they can figure out that we isn’t going into the private sector. It dent’s budget. have lots of important things in this isn’t going into areas of productivity I do not think this is a run of the country that we could spend $2.3 tril- and growth in this country. mill—these are the revenues, these are lion on, relative to this $622 billion, That is what we saw happen in the the expenses. By the way, we are going that we would have been able to spend 1990s. We saw 22.5 million new jobs cre- to have a $307 billion budget deficit, if those changes had not occurred such ated, and we saw productivity rise from but that is not so important. This is a as Leave No Child Behind, such as very low levels to the kind of high lev- radical change from the direction that making sure our health care systems els that are driving the successes of the we in this country have been moving are properly funded, or that the Social economy in the late 1990s and continue for a very long time. I don’t think we Security trust fund is in place so So- to be the only really positive element are talking about it in those contexts, cial Security can be in place. And we see in the economy today. and I think the American people should maybe most importantly, we could pro- When you have that capital going off understand the huge implications of its tect Americans with something other to the Federal Government, it means many far-reaching proposals. than duct tape. We could actually put less capital to be available to invest in There are so many significant ele- real protections in our ports, on our plant and equipment and less capital to ments in this budget that it is difficult highways. We could make sure that the implant new technologies and new in- for me to actually even know where to security surrounding our chemical ventions, and to do research and med- start. The big picture is clear. The plants across this country was in place. ical advances. The end result almost Bush budget is fiscally reckless, in my There are lots of things that this coun- inevitably will be lower economic view, and imprudent in the extreme in try could do if we had that $2.3 trillion growth in the future, if you carry those the macroeconomic context, and would that we are going to now give out in in- kinds of debt burdens into the future. substantially reduce the security of terest expense, many of those dollars That is not a conclusion based on par- America’s working families for decades going offshore, not even to Americans. tisanship or ideology. It is economics to come. I will try to go through some I think it is absolutely irresponsible 101. Less savings means less invest- of that. that we are putting ourselves in a posi- ment which means lower growth. But at the biggest level, when Presi- tion that we are going to run the kinds It is just that those are the truisms dent Bush came to office we were pro- of deficits we are talking about. In defined by the basic laws of economics. jecting budget surpluses of $5.6 trillion fact, I think that was the over- Less savings means less investment over 10 years. We just preceded that whelming weight of the conversation which means lower growth. with 3 years of budget surpluses. Since we had with the Chairman of the Fed- By the way, when you are borrowing then that figure has declined by almost eral Reserve Board yesterday. If we do money at the $8 trillion level at the $8 trillion. We had projected $5.64 tril- not get our fiscal house in order, we Federal Government, you are having lion in surpluses. Now in the same are going to put ourselves into a posi- less savings. timeframe, until 2011, we are projecting tion where the United States is going That is just by definition. I guess $1 trillion-plus in deficits. Where I to have not just small deficits and not that is why the 10 Nobel economists

VerDate Dec 13 2002 00:59 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.037 S12PT1 S2246 CONGRESSIONAL RECORD — SENATE February 12, 2003 yesterday put out the statement they living with higher interest rates than dends. But it ought to be on a com- thought we were on the wrong track we need be, and we will be losing the prehensive, revenue-neutral basis. with regard to our fiscal policy; that ability to see our private sector invest I think most people, when they are we were putting ourselves into a grave appropriately and basic saving func- honest and step back, will see the logic position with regard to our longrun fis- tions as defined by economics. of that. Certainly the American people cal structure. It is absolutely essential, Think about it. Perhaps the most do. in my view, that we stand back and get powerful Member of the other body, in Second, the President’s tax proposals hold of the budget mess I think we are effect, was comparing fiscal discipline provide, as I said, most of the benefit putting in place, if we go forward. to a failed regime on how operations for those at the very highest incomes. Unfortunately, many administration work. These are the people least likely to officials have lately been denying the I am really troubled about how light spend a tax break. I think a better ap- laws of economics, as far as I can tell, we are making this issue of our fiscal proach, as I have advocated with Sen- dismissing the importance of fiscal dis- responsibility. ator LANDRIEU—and as Senator MCCAIN cipline. As OMB Director Mitch Dan- Why are the administration and its talked about a ‘‘payroll tax holiday’’— iels put it, while we have returned to supporters abandoning fiscal dis- would target tax relief to middle-class an era of deficits, ‘‘We ought not cipline? Quite simply because their working Americans who need help. hyperventilate about this issue.’’ overriding priority is to provide huge By the way, I happen to think this I guess we are just taking off the new tax breaks to those who are doing ‘‘payroll tax holiday’’ and what Sen- board all that discussion about bal- the best, I guess. There is no other ator LANDRIEU and I talked about is anced budget amendments, the No. 1 basis of understanding. It looks to me really fundamental to how we can issue, and the Contract With America, like political policy as opposed to eco- stimulate the economy today. Three all that discussion we had through the nomic policy. out of four Americans pay more in pay- 1990s, all that discussion that the pri- Let us look at these tax breaks. As roll taxes than they do in income vate sector has tried to impart to the many of my Democratic colleagues taxes. It is also the people who are public sector; that there really is com- have pointed out, they would provide stretched the hardest in trying to keep petition for funds out in the market- relatively few benefits to working their budget together at home. By the place; that deficits really do drive up Americans. But, more importantly, way, individuals have to balance their long-term interest rates which, by the they would do virtually nothing to cre- budgets. So it is not exactly like they way, Chairman Greenspan once again ate jobs or stimulate our economy. In can walk away from running their reiterated very clearly and unequivo- fact, the Bush plan could well cost debts up. We can do that in the Federal cally yesterday; and that we hear con- jobs, and I believe very clearly it is Government, but you cannot do that at sistent conversation about deficits do bordering on antigrowth. That is true the individual level. Otherwise, your not matter to the investment function for at least four reasons I would like to creditors will come and see you and say of the economy. expand on. it is time for you to sell your house. It is hard to believe we are so blind First, very simple, very little impact Third, the Bush plan to exempt most to the fundamentals of economics. Sup- of that initiative the President has laid dividend income from taxation would ply and demand do matter. When there out—less than 5 percent of the growth have the effect of taking cash off the is demand for the credit in the market- package—would kick in right away in balance sheets of American corpora- place for the Federal Government, it 2003, and very little of it in 2004. Most tions. That would mean less money to does impact on the private sector and of its impact would be delayed into the invest in plants and equipment and less the savings function. future, undermining the long-term money to hire new workers and retain Comments like these—the one about structure of our fiscal health, but old ones. In other words, it will depress hyperventilating about deficits—make doing little for the current package. the economy further as opposed to it seem like we are living in a strange By the way, those 10 Nobel econo- stimulating it. twilight zone, in my view. mists yesterday also talked about tem- If you want to deal with double tax- As I said, we just came through a porary, short-term stimulus was need- ation on dividends, you do it at the heavy period of discussion—actually ed to create demand in our economy— corporate level. It might not be as po- before I got into political life—about create demand now so we can pump- litically attractive, but it would cer- amending the United States Constitu- prime the economy and help get it tainly be more rational that you would tion to establish a rigid Balanced going. And then we will see the growth treat dividends as the equivalent of in- Budget Act. I do not know where that of revenues be the basis of how we rees- terest, and it would allow for the basic discussion went. I guess we had a tablish the cashflow to the Federal judgment of corporations as to whether change of heart and a change of mind Government. they wanted to invest, pay dividends, at some particular point. But it really By the way, we don’t need to have all hire new workers, or do whatever the is hard for me to understand. I almost of these long-term cash cuts unless you economic, advantageous element of find it humorous, although I don’t, are going to do it in a tax reform pack- managing their business is about. But really. age. And, by the way, I totally agree if you take the cash off the balance We hear comments with regard to my with Chairman Greenspan. Double tax- sheet, and pay it out in dividends, be- Democratic colleagues that we are con- ation on dividends is a bad idea. It cause you have an incentive to do that, cerned about rising deficits. One of the ought to be done from a comprehen- you end up with far less of an incentive leaders in the House dismissed the im- sive, revenue-neutral position of tax re- to grow the economy. And, in fact, you portance of fiscal discipline, arguing form. No one would argue there is very may very well get an incentive to stifle that ‘‘The Soviet Union had a balanced little in tax difference. But it ought to growth in the economy. I think it is budget.’’ be done with a comprehensive set of very dangerous. I am not exactly how sure that fits tax reforms. The American people un- Finally, whatever stimulative im- into the overall structure of our de- derstand that. They understand compa- pact—and very few people think it is bate. But I think it demonstrates we nies are paying only about one half of significant at all—the budget would are making so light of this $8 trillion— what they report on their income have in the short-term, it is likely to I repeat, $8 trillion—negative cashflow statements to the public when they try be offset by those higher long-term swing this government is now bur- to sell their stock as taxable income. rates, as projected future deficits shoot dening our people with. It is serious. They are doing all kinds of things— through the roof. I come from a part of the world some legitimate, some not so legiti- I know the administration likes to where you can tolerate some negative mate—to try to shelter income. claim there is no connection between income for a short period of team, but, We need to have a reform package deficits and interest rates, as I sug- after a while, you go bankrupt. It un- that actually works—to raise revenues gested, but the economic evidence is dermines the reality of your financial but also to make sure we don’t have in- overwhelming that expectations of fu- success. It will for our Government. It hibition on American business in for- ture deficits—that is, more Govern- may not go bankrupt, but we will be mation of capital such as taxes on divi- ment competition for a limited pool of

VerDate Dec 13 2002 02:03 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.040 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2247 capital—almost inevitably leads to some funding for some homeland secu- day when we retire. It is really wrong, higher interest rates. rity programs, we have really turned and I hope, as we discuss this budget, It was actually refreshing yesterday our back on a lot of the critical prior- that becomes clear and more clear to at the Senate Banking Committee to ities, such as port security and border the American public. hear someone—who I do not nec- patrols. Third, the budget process proposes to essarily always see eye to eye with, I heard today that actually we will gut health care coverage for the most with respect to economic policy—make have fewer people at border crossings, disadvantaged Americans. Under the a clear and unequivocal statement that based on this budget, than we had prior administration’s plan, Governors, in ef- deficits do matter with respect to in- to 9/11. I just visited the New York/New fect, would be—I was going to say terest rates and the performance of the Jersey Port a weekend ago. The fact is, bribed—encouraged to leave the cur- economy, and particularly with respect we are inspecting less than 2 percent— rent Medicaid system and move to an to the performance of the investment less than 2 percent—and that has not alternative that probably would end up activities of this Nation. This is, again, changed. We have been using that same with poor and disabled Americans los- simple supply and demand. If you have number in debates on the floor of the ing coverage. $8 trillion worth of deficits that you Senate. It was not changed in our port I tell you, I know in New Jersey that would not have had otherwise—or $5 at all. we have to cut the number of people trillion—it is going to compete with The resources are not being made who are accessing this, particularly the private sector for capital. That, ul- available to check containers, and we kids in the Children’s Health Insurance timately, is going to have something to are doing nothing to improve the safe- Program, because we do not have the do with the shape of our economy in ty and security of the American peo- resources to be able to deal with bring- the future, and it is absolutely the ple—certainly the people in New Jersey ing them into these programs which most important element of the savings and New York—with regard to our have long been something that has pro- function in the country. ports. We are doing nothing with re- vided broader health care. So the administration’s tax breaks, gard to improving the security sur- There is big, bipartisan support for a in my view, for all of those reasons, are rounding our chemical production fa- concept around here called Start antigrowth as much as they are any- cilities in this country. And all this Healthy, Stay Healthy, which is to thing else. Again, I reemphasize that I just keeps going on and on, without bring prenatal care to a lot of our less think it is a political proposal, not an putting our money where our mouth is economically enabled citizens. And it economic one. They have the effect of with regard to homeland security. We is through the Medicaid system and starving the Government of resources talk about it as our top priority, and State programs. We are having to cut needed to protect the security of work- we do not put the resources with it. all of those kinds of programs because ing families, while we are basically re- Time and time again, we have asked the resources are not available. warding those who I think are doing to try to increase the budget appro- I have to ask—anyone has to ask—is reasonably well. priations in this area and have not that what the administration means by The last I checked, in the 1990s, peo- been able to do it. I think maybe it is ‘‘compassionate conservatism’’? ple did pretty well economically. There the most important domestic issue. It I could go on and on with the mis- were more millionaires made in the is certainly on the minds of the people placed priorities, from my point of 1990s, while we were creating 22.5 mil- of New Jersey, and I suspect it is for view, of the administration’s budget: lion jobs than I think we are doing so most Americans. Its underfunding or complete elimi- far in the new century. I wonder why it Second, the budget reneges on the nation of so many education programs, is that we think we need to have all President’s promise to provide a mean- including afterschool care; its cuts in these structural changes when, in fact, ingful prescription drug benefit for our environmental protection—the riders if we just get some demand going, tak- seniors. Instead, the administration, in included in the omnibus bill that is ing up some of that overhang of excess effect, forces millions of seniors to coming over which doesn’t have to do production we have in our country, drop their own doctor and move to a with the 2004 budget, is a mind-bog- that we could get going. private sector approach in order to se- gling way to legislate environmental There are, though, some issues in cure a prescription drug. It moves laws—its abandonment of a program to this budget that go beyond these mac- away from fee-for-service plans. This put police officers on the streets, the roeconomic issues. And they are really amounts to a backdoor attempt, in my COPS program—there are law enforce- important. I do not want to make light view, to privatize Medicare. ment officials who are enraged about of them in and of themselves. We have not seen all the details, so it their ability to continue to protect the I think budget deficits and whether is a little hard to be as specific as I public; again, it sort of relates to you have a stimulus program or growth would like to be, but I have to tell you, homeland security—its cuts for chil- program are all fair questions, but are if it is anything similar to the head- dren’s health insurance; its abolition of we going to continue as a nation to lines we have heard in the State of the the HOPE VI homeownership initia- participate in helping protect the secu- Union speech, there are a lot of us who tive, which is one of the great pro- rity of working families, protect the are going to fight this tooth and nail. grammatic efforts to try to get people security of Americans everywhere? This is not the promise we have given to buy into their communities, to be a I think what is really radical about to the individuals who have been pay- part of the community, a whole host of this budget is that it is beginning the ing payroll taxes for years and years other housing programs. process to undermine whether we are with the expectation there will be a se- I could go on, and I probably will as really going to provide that kind of rious Medicare benefit at the end of the the days go on, because these issues support. Because we have to make day. As you know, if anybody does any need to be identified in the mind of the choices, we are going to have to make analysis, not only are the payroll taxes American public. This is a budget that choices whether we are going to run that go to Social Security being used is changing the shape of what the role those deficits, driven in at least a sig- to finance tax cuts for those who are of the Federal Government is. Maybe nificant part by the kinds of tax cuts already doing well, we are now using that is what people want. Maybe they we have, or whether we are going to re- payroll taxes for Medicare to also do don’t want afterschool programs for tain some of those resources to be able that. And we have gone through all kids. Maybe they don’t want the COPS to invest in the security of working those numbers. It is very hard to un- programs. Maybe they don’t want families. derstand how we are putting this to- Leave No Child Behind underfunded. I will take a few examples from the gether. Maybe they do want it underfunded. President’s budget. Many of my constituents say: What Maybe they want no increase in afford- First, the budget fails to provide is going on with those payroll taxes able housing. Maybe they don’t want funds that are badly needed to protect that we are paying every day? We go to them, but we ought to tell them what our Nation against the threat of ter- work with the expectation that we are they are getting as opposed to piling it rorism. This is maybe the most impor- going to get Medicare benefits and So- up into a whole host of numbers and tant domestic issue. While there is cial Security benefits at the end of the covering it up with other things that

VerDate Dec 13 2002 00:59 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.042 S12PT1 S2248 CONGRESSIONAL RECORD — SENATE February 12, 2003 don’t make it clear why we are doing much in the longrun investment in our CLINTON JUDICIAL NOMINEES NOT CONFIRMED what we are doing. economy, to grow our productivity, too IN CONGRESS FIRST NOMINATED I also want to talk about the admin- much investment to protect the Amer- (31 CIRCUIT/48 DISTRICT—59 OF THESE NEVER AL- istration’s proposal to fundamentally ican people with regard to homeland LOWED VOTES BY REPUBLICAN-CONTROLLED change the tax treatment of invest- security and the war on terrorism, too SENATE) ment income, another area where—a much risk with regard to health care 31 CIRCUIT COURT NOMINEES (22 BLOCKED FROM little bit of my background—it strikes and disparities, the ability to provide a GETTING VOTE OR BEING CONFIRMED) me as really debilitating to the meaningful prescription drug benefit to Merrick Garland, D.C. Circuit. Allen Sny- longrun fiscal posture of this country. seniors, too much at risk with regard der, D.C. Circuit, never given a vote by Re- I know proposals to allow sheltering of to Social Security. publicans/not confirmed. Elena Kagen, D.C. Circuit, never given a vote by Republicans/ investment income sound attractive to I hope we can truly flush out what the choices are being made through the not confirmed. many. I used to promote a few of them Robert Cindrich, 3rd Circuit, never given a myself. I think we all agree about the context of this budget. I appreciate the opportunity to vote by Republicans/not confirmed. Stephen value of expanding opportunities for all Orlofsky, 3rd Circuit, never given a vote by Americans to save, to better prepare speak. It will be one of many times I Republicans/not confirmed. Robert Raymar, for retirement. But when you look at would like to come to the Chamber to 3rd Circuit, never given a vote by Repub- the administration’s proposal, it has make sure the American people under- licans/not confirmed. little to do with promoting retirement stand we have a radical reshaping of James Beatty, 4th Circuit, never given a America’s priorities through this budg- vote by Republicans/not confirmed. Andre security for working families. et. Frankly, it is a political statement, Davis, 4th Circuit, never given a vote by Re- In fact, there are a whole series of publicans/not confirmed. Elizabeth Gibson, these. For most Americans, these pro- not an economic program. Nothing less than the future of our country is at 4th Circuit, never given a vote by Repub- posals are much more likely to under- stake. We need a real and serious de- licans/not confirmed. Roger Gregory, 4th Cir- mine retirement security, and they bate about it. cuit, never given a vote by Republicans/not confirmed. J. Rich Leonard, 4th Circuit, will apply to a very narrow segment of I yield the floor. American retirees or future retirees. never given a vote by Republicans/not con- Mr. REID. Mr. President, I suggest firmed. James Wynn, 4th Circuit, never given Most Americans are not using all the the absence of a quorum. tax-supported programs we have today. a vote by Republicans/not confirmed. The PRESIDING OFFICER (Mr. H. Alston Johnson, 5th Circuit, never given They are only using about 25 percent of HAGEL). The clerk will call the roll. a vote by Republicans/not confirmed. them, if memory serves. And these pro- The assistant legislative clerk pro- Enrique Moreno, 5th Circuit, never given a grams will drain resources critical to ceeded to call the roll. vote by Republicans/not confirmed. Jorge the Federal budget to protect Social Mr. REID. Mr. President, I ask unan- Rangel, 5th Circuit, never given a vote by Security and Medicare in the future— imous consent that the order for the Republicans/not confirmed. again, as we go from 40 million retired quorum call be rescinded. Eric Clay, 6th Circuit. Kent Markus, 6th seniors to 75 million. They represent a The PRESIDING OFFICER. Without Circuit, never given a vote by Republicans/ dramatic shift in the tax burden, a re- objection, it is so ordered. not confirmed. Kathleen McCree Lewis, 6th Mr. REID. Mr. President, a number Circuit, never given a vote by Republicans/ distribution of wealth, to speak blunt- not confirmed. Helene White, 6th Circuit, ly, to the benefit of those who have on the other side, in the majority, have lamented the fact that to get this man, never given a vote by Republicans/not con- substantial investment income and to firmed. the detriment of people who depend on Miguel Estrada, approved to be a cir- Bonnie Campbell, 8th Circuit, never given wages and support themselves and, by cuit judge, it is going to take 60 votes. a vote by Republicans/not confirmed. the way, pay payroll taxes. They ask, why can’t we just have an Marsha Berzon, 9th Circuit. James Duffy, Once again, those people who are up-or-down vote? Both Senators from 9th Circuit, never given a vote by Repub- paying payroll taxes are funding tax Utah have talked about that today. licans/not confirmed. William Fletcher, 9th breaks in the income tax system—real- Senator BENNETT indicated it would be Circuit. Barry Goode, 9th Circuit, never given a vote by Republicans/not confirmed. ly hard to understand. a tremendous change if we required 60 votes for Mr. Estrada. There are car- Ronald Gould, 9th Circuit. Margaret These new tax proposals are not McKeown, 9th Circuit. Richard Paez, 9th Cir- merely radical in their redistribution toons around the country today in sup- port of our position—cartoons that cuit. of the tax burden, they are fiscally ir- Christine Arguello, 10th Circuit, never responsible and reckless in the context have indicated nominees are coming given a vote by Republicans/not confirmed. through here and no one is asking any of our overall budget situation. There James Lyons, 10th Circuit, never given a questions that are answered, and that are a few elements of this program that vote by Republicans/not confirmed. there should be some answers forth- need the light of day. They need the Timothy Dyk, Fed. Circuit. Arthur coming. But the issue is that in fact Gajarsa, Fed. Circuit. focus of the American people, whether Mr. Estrada hasn’t answered many im- (Helene White waited more than 1,500 days, it is homeland security, taking care of portant questions. That is one of the never to be allowed a hearing or a vote.) our kids’ educational system, our big problems. (Richard Paez waited more than 1,500 days health care, but probably most impor- I found my colleagues’ remarks very to be confirmed.) tant, the longrun ability to fulfill the curious, lamenting the idea that it 48 DISTRICT COURT NOMINEES (37 BLOCKED FROM promise of Social Security and Medi- would take 60 votes to approve Mr. GETTING VOTE OR BEING CONFIRMED) care. That is what this debate is about. Estrada’s nomination. They have la- Steven Achelpohl, District Court, never Are we really going to have the re- mented this, but I find this interesting given a vote by Republicans/not confirmed. sources to do the kinds of things the because when President Clinton sat in Ann Aiken, District Court. Richard Ander- American people have been promised? the White House, his nominations were son, District Court, never given a vote by It is not enough to say: We don’t subject to anonymous holds by one or Republicans/not confirmed. Joseph Bataillion, District Court, never given a vote want to do this. We have promised the more Senators. Many were not pro- American people they will at the end of by Republicans/not confirmed. Steven Bell, vided hearings. Many were provided no District Court, never given a vote by Repub- the day have their Social Security ben- votes. That is, rather than needing at licans/not confirmed. John Bingler, District efits, guaranteed benefits. We need to least 41 votes to delay or block consid- Court, never given a vote by Republicans/not make sure we have the fiscal structure eration of a nominee, Republicans al- confirmed. David Cercone, District Court, that is in place that allows that to hap- lowed one Senator or a handful to never given a vote by Republicans/not con- pen. block many of President Clinton’s judi- firmed ‘02. Patricia Coan, District Court, This budget will not allow for that to cial nominees from getting hearings or never given a vote by Republicans/not con- take place. It needs lots of debate from votes. firmed. Jeffrey Colman, District Court, the American people, lots of debate by Mr. President, I have a list of nomi- never given a vote by Republicans/not con- firmed. Valerie Couch, District Court, never the Senate, and a lot of debate in gen- nees, and I ask unanimous consent that given a vote by Republicans/not confirmed. eral until we get to a conclusion that is it be printed in the RECORD. Legrome Davis, District Court, never given a a long way from where we are starting. There being no objection, the mate- vote by Republicans/not confirmed ‘02. There is too much at risk here, too rial was ordered to be printed in the Rhonda Fields, District Court, never given many jobs in the first instance, too RECORD, as follows: a vote by Republicans/not confirmed. S.

VerDate Dec 13 2002 01:54 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.045 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2249 David Fineman, District Court, never given a Circuit, never given a vote by the Re- If the majority leader wants to take vote by Republicans/not confirmed. Robert publicans; Roger Gregory, Fourth Cir- the time of the Senate and go forward Freedberg, District Court, never given a vote cuit, never given a vote by the Repub- on this nomination, not trying to in- by Republicans/not confirmed. Dolly Gee, licans, but finally, Mr. President, be- voke cloture, then that is his preroga- District Court, never given a vote by Repub- licans/not confirmed. Melvin Hall, District cause President Clinton, in a recess ap- tive. He runs the floor. But there is Court, never given a vote by Republicans/not pointment, appointed him, as a sitting other business we need to do. I know confirmed. William Hibbler, District Court. judge, he was eventually confirmed; J. the omnibus bill should be here tomor- Faith Hochberg, District Court, never given Richard Leonard, Fourth Circuit, never row. There are other judges we could a vote by Republicans/not confirmed. Marian given a vote by the Republicans; James approve perhaps. We approved three on Johnston, District Court, never given a vote Wynn, Fourth Circuit, never given a Monday including Judge James Otero by Republicans/not confirmed. Richard vote by the Republicans; H. Alston of California. So there is other business Lazzara, District Court, never given a vote Johnson, Fifth Circuit, never given a that could be done, but if he wants to by Republicans/not confirmed. J. Rich Leon- vote by the Republicans; Enrique have us stay late and keep talking ard, District Court, never given a vote by Re- publicans/not confirmed. Stephen Moreno—a Latino nominee—never about this person—we on this side be- Lieberman, District Court, never given a given a vote by the Republicans; Jorge lieve there is a problem, and we feel it vote by Republicans/not confirmed. Rangel, Fifth Circuit, never given a is our constitutional prerogative and Matthew Kennelly, District Court. James vote—he is also Hispanic—Eric Clay, duty to ask questions and have them Klein, District Court, never given a vote by Sixth Circuit, and nothing happened answered. Republicans/not confirmed. John Lim, Dis- with him; Kent Markus, Sixth Circuit, When we have someone who has a trict Court, never given a vote by Repub- never given a vote by the Republicans; track record like this, where there is licans/not confirmed. Harry Litman, District Kathleen McCree Lewis, Sixth Circuit not much in the way of legal informa- Court, never given a vote by Republicans/not confirmed. Frank McCarthy, District Court, never given a vote; Helene White, Sixth tion other than some cases he handled, never given a vote by Republicans/not con- Circuit, never given a vote; Bonnie we should be able to review his legal firmed. Donald Middlebooks, District Court. Campbell, Eighth Circuit, never given memoranda he wrote when he was a Jeffrey Miller, District Court. Margaret Mor- a vote; James Duffy, never given a member of the Solicitor General’s Of- row, District Court. Sue Myerscough, Dis- vote; Barry Goode, Ninth Circuit, never fice. trict Court, never given a vote by Repub- given a vote; and Christine Arguello There were 48 district court nominees licans/not confirmed. Lynette Norton, Dis- and James Lyons, Tenth Circuit, never who did not get through the Senate in trict Court, never given a vote by Repub- given a vote. the Congress first nominated; 37 were licans/not confirmed. blocked from getting a vote or being Susan Oki Mollway, District Court. Vir- I just note that Helene White waited ginia Phillips, District Court, never given a more than 1,500 days, never to be al- confirmed: vote by Republicans/not confirmed. Robert lowed a hearing or a vote. Richard Paez Steven Achelpohl, district court, Pratt, District Court. Linda Riegle, District waited more than 1,500 days, but there never given a vote by Republicans; Jo- Court, never given a vote by Republicans/not is good news there: He was finally con- seph Bataillon, district court, never confirmed. Anabelle Rodriguez, District firmed. I spoke to that good man on a given a vote by Republicans; Steven Court, never given a vote by Republicans/not number of occasions during his time in Bell, district court, never given a vote confirmed. Michael Schattman, District ‘‘legal limbo,’’ or wherever he was, by Republicans; John Bingler, district Court, never given a vote by Republicans/not never being given a vote. But, finally, court, never given a vote by Repub- confirmed. Gary Sebelius, District Court, licans; David Cercone, district court— never given a vote by Republicans/not con- he had a hearing and he was confirmed firmed. Kenneth Simon, District Court, after more than 1,500 days, more than 4 once in a while there is some good never given a vote by Republicans/not con- years. news. David was not given a vote but firmed. Christina Snyder, District Court. Mr. President, we submitted 48 dis- eventually was confirmed. Clarence Sundram, District Court, never trict court nominees who were blocked Patricia Coan, district court, never given a vote by Republicans/not confirmed. in the first Congress they were nomi- given a vote by Republicans; Jeffrey Hilda Tagle, District Court. Thomas nated, and 37 were blocked from ever Colman, district court, never given a Thrash, District Court. Cheryl Wattley, Dis- getting a vote or being confirmed. So vote by Republicans; Valerie Couch, trict Court, never given a vote by Repub- for my friends to lament the fact that district court, never given a vote by licans/not confirmed. Wenona Whitfield, Dis- Republicans; Legrome Davis, district trict Court, never given a vote by Repub- we are in the light of day, where we licans/not confirmed. Ronnie White, District have told everybody here we are not court, never given a vote by Repub- Court, never confirmed by floor vote. Fred- going to allow Miguel Estrada to be licans finally allowed a vote once eric Woocher, District Court, never given a confirmed unless he submits to proper Democrats became the majority; vote by Republicans/not confirmed. questioning—I should not say proper Rhonda Fields, district court, never Mr. REID. They had mysterious holds questioning, how about proper an- given a vote by Republicans; S. David and were not provided with votes of swers—and unless we are allowed to re- Fineman, district court, never given a any kind and were simply not allowed view the Solicitor’s memoranda that vote by Republicans; Robert Freedberg, to have their matters brought before have been given to us on other occa- district court, never given a vote by the Senate. We would have liked the sions and unless he is forthcoming in Republicans; Dolly Gee, district court, opportunity to even see if we could answers to questions. never given a vote by Republicans; have stopped a filibuster, if that was These are not anonymous holds. We Melvin Hall, district court, never given what they wanted, but they simply are telling the world that we will not a vote by Republicans; Marian John- would not bring them forward. allow Miguel Estrada to become a DC ston, district court, never given a vote I will name a few circuit court nomi- Circuit Court judge unless he does by Republicans; Richard Lazzara, dis- nees. Out of 31 submitted who were not that. If he doesn’t do that, the major- trict court, never given a vote by Re- confirmed in the first Congress they ity leader has three options: Pull the publicans; J. Rich Leonard, district were nominated, 22 were blocked by the nomination, go forward to invoke clo- court, never given a vote by Repub- Republicans from ever being con- ture, or have this on the floor forever, licans; Stephen Lieberman, district firmed. Allen Snyder, DC Circuit, never which is something—boy, they are real- court, never given a vote by Repub- given a vote by Republicans, certainly ly giving it to us tonight. They are licans; James Klein, district court, not confirmed; Elena Kagen, DC Cir- going to make us work late. never given a vote by Republicans; cuit, never given a vote by the Repub- That is what the leader said. We are John Lim, district court, never given a licans; Robert Cindrich, Third Circuit, going to work late. I said everything vote by Republicans; Harry Litman, never given a vote; Steven Orlofsky, has been said about Miguel Estrada, district court, never given a vote by Third Circuit, never given a vote; Rob- just not everyone has said it. So we are Republicans; Frank McCarthy, district ert Raymar, Third Circuit, never given going to have other people come and court, never given a vote by Repub- a vote; James Beatty, Fourth Circuit, say the same things that have been licans; Sue Myerscough, district court, never given a vote by the Republicans; said by approximately 20 Senators, and never given a vote by Republicans; Ly- Andre Davis, Fourth Circuit, never they will try to say it a little dif- nette Norton, district court, never given a vote; Elizabeth Gibson, Fourth ferently, but everything has been said. given a vote by Republicans; Virginia

VerDate Dec 13 2002 01:54 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.004 S12PT1 S2250 CONGRESSIONAL RECORD — SENATE February 12, 2003 Phillips, district court, never given a job he has done, but I have not done it old-fashioned virtue that was drilled vote by Republicans; Linda Riegle, dis- recently. I want the Senator to know into me by the first leader I knew, Sen- trict court, never given a vote by Re- the people of Vermont are so well ator Mike Mansfield. Senator Mans- publicans. This is very familiar to me served by his public service. The Sen- field said, whatever you do—and this is because she is a bankruptcy judge from ator from Vermont could go anyplace far more important than how you Nevada, still serving on the bank- in America and make a fortune, lit- vote—always keep your word. ruptcy court. I nominated her. It sim- erally, because of his legal skills and No Senator has a higher reputation ply did not move forward. I had a cou- his experience in the Senate, but he for integrity and truth-telling than the ple judges who did move forward and has taken the more difficult path, and Senator from Nevada, and that means was very happy about that. Senator that is serving the Senate because of a lot to me. I do appreciate the way he HATCH allowed me to move those nomi- his love of public service. has watched the floor and brought dig- nations. The people of Vermont are well nity and respect to this debate. I ad- Anabelle Rodriguez, district court, served, but so are the people of Nevada. mire him for it because, just as with never given a vote by Republicans; Mi- The people of Nevada benefit every day the distinguished Presiding Officer, we chael Schattman, district court, never from the service of the Senator from all bring different experiences to the given a vote by Republicans; Gary Vermont. Senate. We all have different reasons Sebelius, district court, never given a I am very grateful he is here helping for being here and we all have different vote by Republicans; Kenneth Simon, us—not helping us, this is his com- life experiences. district court, never given a vote by mittee. He is leading us on this most The distinguished Presiding Officer Republicans; Clarence Sundram, dis- important matter to bring about some was a war hero. After serving, he began trict court, never given a vote by Re- direction and responsiveness to the a business. He gained great experience publicans; Cheryl Wattley, district process which we are now going for- in that field in his home State of Ne- court, never given a vote by Repub- ward with. braska, and then he came to the Sen- licans; Wenona Whitfield, district I see the other Senator from ate. court, never given a vote by Repub- Vermont who is such a fine man. I The distinguished Senator from Ne- licans; Ronnie White, this is a fine want him to know how much I respect vada, of whom I was speaking, had var- man. He was defeated in a surprise his service to the country, especially ied experiences before coming to the strict party-line vote, but his nomina- the work he does on the Environment Senate. He was a trial lawyer, a boxer, tion at least was done in the light of and Public Works Committee. The en- and a state official in Nevada. He even day, and I appreciate that. That is bet- vironment is better because of the jun- served as a Capitol police officer back ter than all these anonymous holds and ior Senator from Vermont. in the days when many times they nothing never happens. The PRESIDING OFFICER. The Sen- were chosen by the Senators of the Frederick Woocher, district court, ator from Vermont. congressional delegation from the par- never given a vote by Republicans. Mr. LEAHY. Mr. President, I want to ticular State. All of these experiences My friend, and he is my friend, Sen- thank my dear friend, the senior Sen- of his he has brought to the Senate. ator BENNETT from Utah, a neighboring ator from Nevada, for his comments. Many times I have asked the distin- State—I have great admiration for We have served together for a long guished Presiding Officer questions on him. He comes from a wonderful fam- time, as he said, on the Appropriations military matters, not having had the ily. His father served in the Senate. He Committee. I have been in the Senate experience of serving in the military. was very honorable. His wife is a with several hundred Senators. I have Considering how close he came to end- friend. She is quite a musician. So I been fortunate. Like the Senator from ing his life in Vietnam, the country has have only good thoughts about my Nevada, I never knew I was going to be benefited by the fact he was there. I friend, Senator BENNETT, but I do say a Senator. I grew up in Montpelier, the know as a result of his life being to the distinguished Senator from Utah spared, I had the opportunity to gain that he should not come here and talk State’s capital. It had only 8,500 people. another close and dear friend in the about what a terrible thing it is for us I lived almost diagonally across from Senate. to require that Mr. Estrada answer the Statehouse. I remember as a child, probably There are a few observations I would these questions and submit the memos. about 4 years old, riding my tricycle like to make before I go into the dis- This is something we are doing openly. cussion I had earlier with both of the We are not trying to hide what is hap- through the halls of the Statehouse de- Senators from Utah about the adminis- pening in any way. livering newspapers to the Governor, I want to say one thing, I wanted to playing on the Statehouse lawn, sliding tration’s refusal to allow Senators to say it to him before he left the floor in the snow. Suddenly one day, at the examine Mr. Estrada’s writings— this morning, that I have been very age of 34, I was being sworn in as a Sen- which, incidentally, is an unfortunate honored to serve in the Senate. It is ator and I think what a thrill it was. I situation because Mr. Estrada told me something I never dreamed could hap- was the junior most member of the and other members of the committee pen. I am every day aware of what an Senate, but then I realized the best on both sides of the aisle he is perfectly honor it is to serve in the Senate, and part of it is the people you get to know willing to share and discuss his to serve with other Senators is an and serve with. writings. He personally had no objec- honor for me. This is unique. Nobody has been more of a help, a tion to his writings, his memos, his The two Senators from Vermont are mentor, a conscience for me, than the suggestions in the Department of Jus- in the Chamber. One just walked in. Senator from Nevada. Every morning tice and elsewhere to be made public. The senior Senator from Vermont has when I come to work I look at the Cap- He would have no objection to answer- been in the Senate approximately 30 itol and I think this is a nation of 260 ing questions based upon what he years, and I have watched a magician— to 270 million Americans, so diverse, wrote but, as he said, and he was very I say that in the most positive sense— and there are only 100 of us who get a honest about this, the administration perform his duties. I have the honor of chance to serve at any given time. had told him he could not. serving with a senior member on the Only 100 Americans get a chance to Mr. Estrada said the administration Appropriations Committee and the serve and represent the whole country. told him he could not, which in itself is ranking member of the Judiciary Com- Out of that 100, only 4 get to be the too bad because when this matter has mittee. I have so much admiration and leaders of their party, the Republican come up many times before in history respect for the work he does. He has leader and the deputy Republican lead- in connection with nominations for been so fair. When people were saying, er, the Democratic leader, the deputy lifetime appointments as well as for Don’t do this, the senior Senator from Democratic leader. short-term appointments, past admin- Vermont stepped above the political I have served with a number of them, istrations, Democratic and Republican, fray and did what was right on many but I would say the Senator from Ne- have allowed memoranda by Depart- judges. vada, Senator HARRY REID, is one of ment of Justice attorneys to be exam- I have come to the Chamber many the most extraordinary leaders the ined by the Senate Judiciary Com- times telling the Senator what a good Senate has ever had. He has kept the mittee.

VerDate Dec 13 2002 01:54 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.049 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2251 I make this point speaking as one than 35 weeks—to do with a Demo- I have done some checking on this, Senator, if Mr. Estrada were forthright cratic President. and I thought I would bring it do the and responsive to questions of Senators I think that sort of demonstrates attention of the Senator. They tell me and if the administration sent these what the partisanship is. In fact, there at the White House that they have writings up and allowed Mr. Estrada to is a nomination hearing being held this never, the Justice Department has discuss them and answer questions morning for a seat that has been va- never given out these materials re- about them—something Mr. Estrada cant since 1999. One part of me says quested by the Democrats—not in the himself has said he is perfectly willing good, it is about time we have had a Bork case, not in any other case. to do—I may not like the candid and hearing for that vacancy, but President Now, in the Bork case they did give responsive answers, I may disagree Clinton nominated two people to that materials that pertained to his dis- with what is in the writings, but at vacancy. This was to the Court of Ap- missal of Archibald Cox during Water- that point I feel the questions have peals for the Tenth Circuit. One is the gate, specific materials, but not a wide- been answered, assuming he is forth- Honorable James Lyons who was spread fishing expedition. And there is coming and we have the material, so blocked for partisan political reasons. a reason they do not want to give these then let us go ahead and vote for him There was an anonymous hold on the documents up—because they are privi- or against him. But when my col- Republican side. leged, they are a work product of the I mention this because also coinci- leagues are going to vote for somebody Solicitor General’s Office, they are cru- dentally we hear a lot about somebody on one of the most important courts in cial to the Solicitor General’s Office getting the highest rating from the the country, at least we should do it functioning well. American Bar Association, actually knowing what is in the record and hav- I bring that to my friend’s attention from a screening committee which is ing meaningful, not evasive, answers to because the arguments that have been now headed by a close friend and sup- brought up have been not persuasive, questions about his judicial philos- porter of President Bush’s. This nomi- they are not accurate, and frankly in ophy, his views, and his feelings about nee of President Clinton’s had the the other people beside Judge Bork, legal decisions. highest rating possible. He could have Republican Presidents and Demo- there is no record at all that the Jus- easily been confirmed, but anonymous cratic Presidents have faced this ques- tice Department ever gave those docu- holds, not open holds but anonymous tion before. President Reagan, Presi- ments to those people. Somebody may holds, on the Republican side stopped have leaked them, but the Justice De- dent Carter, and other Presidents did, it. He was not even allowed a hearing partment did not give them. and the material was forthcoming and or a vote in the committee. So the I thank the Senator. I just wanted to the Senate then went on to make a de- President nominated a second person, tell the Senator that I think this is a cision based on what they knew about Christine Arguello, a Latina nominee. the nominees. This is the best way to red herring. She had bipartisan support. She was Mr. LEAHY. Retaining my right to do it. supported by both her home State Sen- Before I discuss this precedent in the floor, I ask the Senator from Utah ators. One would think she would get more detail, I would like to note that to hear my speech because it may be at least a hearing or a vote in the com- this morning we had our third hearing that whoever he talked to at the White mittee. No. A number of people were in 2 weeks on the Judiciary Com- House may be new or may not be aware nominated after her and were given mittee. This included the 16th nominee of this. hearings and votes, but this Hispanic to receive a hearing, the fifth nominee Here are some of the memos past American woman was not. Under Re- to a circuit court in just two weeks. White Houses have provided us. They publican control of the Senate, Pro- That is interesting because when a are still in the files here. They are fessor Arguello was not even given a Democrat was President, the same Ju- pretty extensive. Included in this large hearing, to say nothing about a vote. diciary Committee chairman often volume are some of the same memos Regarding the document request re- written by attorneys to then-Solicitor took until the summer before having a lated to Mr. Estrada’s nomination, he hearing for these many nominees, espe- General Bork, as well as memos related has told both Senator HATCH and my- to the nominations of Justice William cially this many circuit court nomi- self, as well as several Members of the Rehnquist to be Chief Justice, of Brad- nees, many of whom have controversial Senate, that he is perfectly willing to ford Reynolds, the Reagan Associate or divisive records. show us his writings and respond to I see the distinguished senior Senator Attorney General for Civil Rights to be them and answer questions about Associate Attorney General and other from Utah on the floor. When he was them, but he has been told by the ad- nominees to short-term or lifetime ap- chairman under a Democratic Presi- ministration that he cannot; the ad- pointments. dent, when the Democrat was making ministration, however, would review I really do want to finish my speech, the nominations to the courts, it often those writings. They are the only ones and I think that then the Senator from took until the summer to have hear- who know whether this direct evidence Utah will understand what is going ings for this many nominees, especially of his views, the interpretation of law, on—with Mr. REYNOLDS, Mr. Benjamin circuit court nominees. We are talking is accurate or misleading—they are the Civiletti, in his nomination to become about having hearings for five circuit only ones who have access to it and Attorney General, and other past court nominee hearings by early Feb- they say, basically: Trust us. In car- nominees. I will not put them in the ruary. rying out your constitutional duties of RECORD now, but if my friend from In 1996, the Republican chairman did advise and consent: Trust us. Give not hold hearings for five circuit court someone a lifetime appointment of one Utah will bear with me, he will see nominees all year. Of course, it was a of the most important posts in the what happens on this, and I will lay out Democrat President. Actually, no cir- country: Trust us. the case where this has been done over cuit court nominees were confirmed Mr. HATCH. Will the Senator yield and over again in the past. that year, and none of the four who on that one point? I have some new in- This is a case where the administra- were allowed a hearing were confirmed formation. tion asks for the Senate to advise and during that entire year. Mr. LEAHY. I will yield on the basis consent to a lifetime appointment, In 1997, when President Clinton had that I will be allowed to retain the something that will go on well after been in office now on his fifth year, we floor, to which I know the Senator most of us have left the Senate, but the did not reach this number if circuit from Utah does not object, and I want administration does not want to pro- court nominees getting a hearing until to continue then. Because of my deep vide information and memoranda rel- September. Now the Committee has respect and quarter century of friend- evant to this nomination. The adminis- done it in just 2 weeks. It is interesting ship with the distinguished Senator tration has done this in both judicial because there have been questions of from Utah, I yield. and executive nominations. Even this partisanship. Now the Senate Judiciary The PRESIDING OFFICER. The Sen- very administration has done so in an- Committee does in 2 weeks with a Re- ator from Utah. other nomination for a short-term po- publican President, with the same Mr. HATCH. And we do have mutual sition, but it has refused to do so in the chairman, what took 9 months—more friendship. case of Mr. Estrada.

VerDate Dec 13 2002 01:54 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.052 S12PT1 S2252 CONGRESSIONAL RECORD — SENATE February 12, 2003 I wonder—and of course if the Sen- nominated to become a judge in the pointment as a judge. Often we do not ator wishes me to yield, I will—I won- Ninth Circuit; and then- Justice Wil- ask. Sometimes there does not seem to der if he would give me the courtesy of liam Rehnquist, who was nominated by be a need for it because there is enough hearing some of these points. President Reagan to become Chief Jus- other information on the record. Mr. HATCH. If I could ask one ques- tice—among others. But when the requests have been tion, and of course I will listen to the I did not get a chance to go to the made, they have been honored by prior Senator. gym this morning, but I guess I can al- administrations that have followed a It is my understanding that the most get as much exercise in picking policy of accommodation in response Democrats have asked for memoranda up and holding some examples of the to a request from a co-equal branch of of appeals, certiorari petitions, and memoranda that have been provided by the Government for relevant informa- amicus curiae. Does the Senator have both Republican and Democratic ad- tion related to constitutional respon- any indication that any documents ministrations in the past, the exact sibilities, especially related to nomina- pertaining to recommendations of ap- same type of memoranda to the Solic- tions. peals, certiorari, or amicus curiae have itor General, as well as other similar This administration has not taken ever been given by the Justice Depart- legal memoranda, that we now ask for this position. Instead, they seem to be ment? on Mr. Estrada. So the real red herring saying: We know what is there, just Mr. LEAHY. I do have evidence of ex- is to assert that there is no precedent trust us. Rubberstamp what we send up actly that. If the Senator would let me and to claim that no such documents to you. Don’t ask any questions. Be finish my speech, he would understand have never been shared with the Senate quiet little boys and girls, just approve that. Judiciary Committee in past nomina- our lifetime judges and leave us alone. The irony with all this is that they The current White House has dis- tions, and to say therefore that the don’t want to show us this material so closed to the Senate legal memo- Senate cannot examine such docu- we could make an objective analysis randum writing by an attorney of ments and that they will not accommo- and not look to second hand evalua- President George H.W. Bush’s White date the committee’s request. Mr. House Counsel’s Office in connection tions, but they are perfectly willing to Estrada has stated, and I admire his go to some of these files and take out with the nomination of Jeffrey candor in doing this, that he is proud Holmstead to be Assistant Adminis- selective pieces and give them to the of his memoranda and has no personal supporters of the nominee and give trator of the Environmental Protection objection to us seeing his memoranda them to the press or leak them to the Agency, and, interestingly enough, this and he has no objection to answering press. They want to have it both ways. was a position of far less duration and questions based on what he wrote. The They are more than happy to use any- importance than a lifetime judicial ap- administration, however, says: We ob- thing from a confidential Government pointment. ject. That objection is based on a com- file they think will help them, but they In Mr. Estrada’s case, the White plete rewriting of the history of such don’t want to disclose the entire record House will not provide any of the infor- requests and past cooperation and ac- because they don’t want to have it in mation sought. That bothers me. I commodation. They have refused to context because then the truth may wonder what is in there. They seem to allow Mr. Estrada to answer many hurt. be saying: We have looked at it; trust questions and they have refused to If this is how the administration and us, it is OK. Well, I remember the allow the Senate to look at his memo- Department of Justice approach our made-up Russian proverb that Presi- randa. shared constitutional responsibility for dent Reagan speech writers came up The Committee’s request, however, is the appointment to high office, how are with: Trust, but verify. Even though well within the practice of the Senate we to have confidence in them in their there was no such proverb, I thought it in prior administrations. other representations about so many was a great saying, so I will use the What does seem to be said by the ad- things critical to how our Government same one. ministration is we cannot ask for this functions and how they exercise the The administration’s claim that such because we have not asked it in rela- enormous power entrusted to them as a a request is unprecedented, as the dis- tion to every judicial nominee who has function of the public office they oc- tinguished Senator from Utah sug- ever worked at the Department. Many cupy? How are we to accept it when gested, is actually wrong within the who worked there and who were nomi- they say, We don’t want to talk about administration’s own knowledge, even nated did have lengthy careers or aca- this but trust us? Yet when we ask their own history. It is also wrong with demic writings or had no controversy questions about things we legitimately respect to prior administrations and about being unable to set aside deeply believe could be looked at—nothing the confirmation history of the Judici- held beliefs, unlike the stealth can- classified, nothing confidential—they ary Committee. didate before us. The administration say they still don’t want to show us What is happening is the White also ignored the fact that when the that. House seems willing to rewrite history Senate Judiciary Committee has re- We talked about the performance for this case. I suspect if that is to be quested memoranda written by nomi- evaluation. The administration and Re- allowed, then the next difficult con- nees for term and lifetime appoint- publican supporters of Mr. Estrada firmation that comes up, the history ments who worked at the Justice De- have sought to exploit his performance will be rewritten again and the Senate partment, past Justice Departments evaluation. will be stonewalled again. have accommodated past Congresses Let’s go to the whole story on that. The facts, I say to my friend from upon the request. They keep saying Professor Bender Utah, are these. The Senate has re- We get a lot of paperwork on nomi- gave the highest evaluation to Mr. quested, and past Justice Departments nees. Sometimes we ask for more and Estrada when he was at the Depart- have provided, similar memoranda sometimes we ask for less, depending ment of Justice. They claim that is all such as memoranda related to appeals, on the record before us. But when we you need to know. They say we can’t certiorari petitions, and amicus cu- have asked for it, everybody, except give you anything else in the file, but riae—the decision to join a case as a this administration, has allowed it and we will show you this one thing. friend of the court—written by attor- not stonewalled us. In fact, I have been Well, this is not quite the whole neys of the Department of Justice. here for 29 years and I do not know of story. There is a letter received from They have done this in connection with a time when the Justice Department Professor Bender this week. It was sent the nominations of Robert Bork to be- has taken such an uncooperative ap- to Senator HATCH and the members of come Associate Justice of the Supreme proach to a request for information re- the committee. I assumed, since Sen- Court; William Bradford Reynolds, As- lating to a nomination. ator HATCH had been putting so much sistant Attorney General for the Civil History shows the Senate does not al- in the RECORD, he would probably put Rights Division, to become Associate ways seek information it has the power this in. He somehow didn’t. Attorney General; Benjamin Civiletti, to seek. We could ask for a whole lot of This is what Professor Bender’s let- nominated by President Carter to be- things that would be relevant to en- ter says in part. I would like to have come Attorney General; Stephen Trott, trusting a person with a lifetime ap- the entire letter printed. He says:

VerDate Dec 13 2002 01:54 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.054 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2253 It has come to my attention that, in re- 1. I have not changed my opinion of the He makes it very clear that he feels sponding to statements I made to the press nomination, nor have I ever said to anyone he has been misquoted on the Senate several months ago regarding the Estrada that I had changed my opinion. Someone floor. He may feel it was done inadvert- nomination, you [Senator HATCH] have said, must have inadvertently given you incorrect ently. He said, ‘‘Someone must have in- information about this. When asked by re- both to the Judiciary Committee and to the advertently given you incorrect infor- full Senate, (1) that I have since changed my porters what I thought of the nomination opinion about the nomination, and (2) that when it was first made (I assume I was asked mation about this,’’ making it very performance evaluations of Mr. Estrada’s because I have been one of Mr. Estrada’s su- clear that he was misquoted. work that I signed in 1995 and 1996, when I pervisors in the Solicitor General’s Office), I I know what he means. It is easy to was Principal Deputy Solicitor General, are stated my honest opinion, to the best of my get misquoted around here. Earlier this inconsistent with the views about the nomi- ability. I have not changed that opinion in week a Republican Senator misquoted nation that I gave to the press. I am writing any respect. me in the Senate Chamber. The Sen- this to correct those statements of yours. I have declined to keep stating the same ator who purported to quote my words No. 1. I have not changed my opinion of the views to the press, over and over again, be- cause I am not engaged in, and do not wish certainly could not have known that he nomination— was quoting me incorrectly. I can’t be- That is, the adverse opinion he had, to seem to be engaged in, any kind of cam- paign or crusade against Mr. Estrada. I did lieve—I would be shocked to think in which he opposed the nomination of not volunteer my negative comments to any- somebody would come here and quote Mr. Estrada. one, either in the press, the government, or me out of context or incorrectly to He said: elsewhere. I was asked my opinion and I gave make a partisan point. I would be as I have not changed my opinion of the nom- it. Having done so, I did not see any reason shocked as Claude Raines was in ‘‘Ca- ination, nor have I ever said to anyone that to keep repeating it to reporters who called. My opinion has not changed. sablanca.’’ I had changed my opinion. . . . I have not So people understand, the statement changed that opinion in any respect. 2. The ‘‘Excellent’’ performance evalua- tions of Mr. Estrada that I signed in 1995 and I did make on June 18, 1998, was to pro- This is dated February 10, 2003. He 1996 are not inconsistent with my published test the anonymous Republican hold in can’t be any more specific than that. statements about the nomination. To the the consideration of the judicial nomi- He was opposed to his nomination be- best of my recollection, it was the policy of nation of Judge Sonia Sotomayor. The fore. He is opposed to his nomination the Solicitor General’s Office at the time to nomination of Judge Sonia Sotomayor since. give every Assistant to the Solicitor General exactly the same performance evaluation. was held up, as I have stated before, for Then he says, speaking of the per- months and months and months by formance evaluations of Mr. Estrada, The language in the Performance Achieve- ments portions of Mr. Estrada’s evaluations anonymous holds. She had been nomi- these: was not written by me, nor did I fill out the nated by President Clinton to the Sec- . . . are not inconsistent with my pub- Employee Appraisal Record form. You will ond Circuit Court of Appeals. I believe lished statements [of opposition to him.] To notice, in examining the Performance Ap- she was the very first Hispanic woman the best of my recollection, it was the policy praisal Record form, that the language in to go to that court of appeals. Every- of the Solicitor General’s Office at the time the Performance Achievements portion was to give every Assistant to the Solicitor Gen- taken, word for word, from the printed Per- body assumed her to be a slam dunk. eral exactly the same performance evalua- formance Standards that precede each part She had been originally appointed by tion. of the evaluation form. As far as I can re- President George H.W. Bush to the dis- These things could have been printed member, an administrator in the Solicitor trict court. But Republicans allowed up a month before. General’s Office prepared identical ‘‘Excel- anonymous holds and nobody on the lent’’ evaluations for each Assistant each Republican side would say who was The language in the Performance Achieve- year, taking the language directly from the ments portions of Mr. Estrada’s evaluations holding her up, but they held her up. printed performance standards. I do not I am saying I would never do this to was not written by me, nor did I fill out the think this practice is an unusual one in the Employee Appraisal Record form. government. a judge. What I said was I would refuse Then he goes on to say: When these filled-out-forms came across to put an anonymous hold on any judge. I never have put an anonymous I believe that the Solicitor General’s Office my desk, I believe that I asked the Solicitor had the policy of giving each of the Assist- General what to do with them, and that he hold on a judge. If I wanted to delay for ants exactly the same Excellent rating each asked me to sign them, as written, as the whatever reason a nomination, I state Rating Official. I did as he requested. He year. it on the floor as I am doing now, in then signed them as the Reviewing Official. the light of day, not the cloak of se- And he stated why? Of course. It paid No actual individual written evaluation was them the highest salaries permitted by done by me—or, so far as I know, by anyone crecy. The portion of my speech about the Government. Everybody they hired else—in connection with these evaluations had those highest salaries. To keep the for any Assistant to the Solicitor General. anonymous holds—like some speeches I made in the years 1996, 1997, 1998, 1999, highest salaries, they had to have the They were boilerplate. I believe that the Solicitor General’s Office and 2000—were not heard on the other excellent rating. had the policy of giving each of the Assist- I ask unanimous consent to have the side of the aisle. That is probably why ants exactly the same Excellent rating each they now misquote it. I am sure it is an letter printed in the RECORD. year because it hired only the most highly inadvertent misquote. I think it is be- There being no objection, the mate- qualified lawyers and it paid them the high- cause they didn’t hear it. They cer- rial was ordered to be printed in the est salaries permitted by the government. tainly didn’t hear it at the time be- RECORD, as follows: ‘‘Excellent’’ ratings were necessary to jus- tify these salaries. I signed the already cause they continue to use the ‘‘anony- ARIZONA STATE UNIVERSITY, filled-out Performance Evaluation forms, as mous holds.’’ It is a practice I put an Tempe, AZ, February 10, 2003. they were give to me, as part of that policy. end to when I was chairman of the Ju- Renomination of Miguel A. Estrada to the Since my views seem to be relevant to the diciary Committee. But when Repub- United States Court of Appeals for the Senate’s consideration of the nomination, I District of Columbia Circuit. licans controlled the Senate in years would appreciate it if you would share this past they held up scores of judicial Hon. ORRIN HATCH, information with your colleagues who are U.S. Senate, considering the nomination. I thank you in nominees of President Clinton, and Hart Senate Office Building, advance for this consideration. never allowed them to come to a vote Washington, DC. Sincerely, by ‘‘anonymous holds’’ of a single Re- DEAR SENATOR HATCH: It has come to my PAUL BENDER, publican Senator or more than one. attention that, in responding to statements I Professor of Law. I am not surprised that they mis- made to the press several months ago regard- Mr. LEAHY. Mr. President, I am quote me on the floor, because they ing the Estrada nomination, you have said, doing that because Professor Bender didn’t hear my speech at that time. In both to the Judiciary Committee and to the asked that this be made known to the this case, people should understand full Senate, (1) that I have since changed my Senate, especially as he has been what was happening. opinion about the nomination, and (2) that Judge Sonia Sotomayor’s nomination performance evaluations of Mr. Estrada’s quoted as having changed his mind. He work that I signed in 1995 and 1996, when I still opposes Mr. Estrada. I will quote was delayed by anonymous Republican was Principal Deputy Solicitor General, are him again. He says: holds and was on the Senate calendar inconsistent with the views about the nomi- I have not changed my opinion of the nom- for months and months. She was favor- nation that I gave to the press. I am writing ination, nor have I ever said to anyone that ably reported by the Judiciary Com- this to correct those statements of yours. I had changed my opinion. mittee in early March of 1998. But then

VerDate Dec 13 2002 01:54 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.056 S12PT1 S2254 CONGRESSIONAL RECORD — SENATE February 12, 2003 her nomination was stalled without ex- I do not recall anything like that wrote the letter, but one of the people planation or accountability on the cal- ever happening on the Senate floor. who signed it was Robert Bork. But I endar without Senate action. Even His nomination was rejected by a doubt he wrote it because his own nom- after I made my speech criticizing party-line vote of Republics—it was ination provides some of the strongest anonymous holds and stating that I quite unusual to vote down a district precedent for the requests we are mak- would never put on such an anonymous court nominee, especially one who had ing. hold, her nomination continued to be been voted out by the Judiciary Com- I do not fault them for seeking to delayed for several more months to the mittee. Some of the same Republicans maximize the secrecy of executive very end of the session of Congress. It who voted for him before the com- branch memoranda and deliberations, was actually delayed, I think, for 7 mittee voted against him on this floor. although I am surprised they are will- months. When it finally came up, 29 This superb African American jurist ing to do that at a time when we have Republican Senators voted against con- was humiliated and defeated. the most secretive administration I firmation of Judge Sonia Sotomayor It took several more months of hard have ever known out of the six admin- for the Second Circuit. work to obtain votes on the nomina- istrations—I came here right after the I went back and checked the CON- tion of Judge Paez and Marsha Berzon. Nixon administration, so I cannot GRESSIONAL RECORD. They are not re- Again, these anonymous Republican speak for the Nixon administration. quired to, of course, but you would holds held them up until March of the But this administration is certainly far think after voting against a judge, or following year 2000. more secretive than the other ones I having anonymous holds on a judge for Again, as I said, I will always oppose have served with before: the Ford, the a long period, there would be at least such anonymous holds. Carter, the Reagan, the first Bush, and one or two words in the CONGRESSIONAL Even then, after obtaining a vote of the Clinton administrations. RECORD explaining why this was done. Judge Paez’s nomination to the circuit This letter states a policy preference They don’t have any requirement to do court involving overcoming several and has been misinterpreted by some that, but I think it would have been procedural hurdles and several votes as a statement of law, or privileged, nice. If they carry out an anonymous before we were finally able, after more which it is not. I want to emphasize hold like that for all of those months, than 4 years of trying—4 years it sat that. They state what they think the you might say, Why? here—this distinguished Hispanic jurist policy should be. They do not state I mention this because there seems finally got a vote. Then 39 Republicans what the law should be. Therein lies an to be a lot being overlooked. When that voted against the nomination, includ- enormous difference. They are not same Republican Senator quoted part ing a number of Republican Senators writing this based on their legal knowl- of a colloquy between me and the then- who were involved in yesterday’s de- edge, saying this is the law. They are majority leader, TRENT LOTT, I suspect bate saying it would be a terrible and saying: This is what we think the pol- that he did not really recall the discus- unique precedent if we don’t imme- icy should be. sion, or he would not have had it so diately vote for a Hispanic who is nom- Well, I have always felt, on these wrong here on the floor. inated to the court of appeals, in this kinds of issues, Senators should make I will read again what Senator LOTT, case, Mr. Estrada. that policy. Especially we should make the Republican leader, said at that They were perfectly willing to block the policy of what we are going to ask time: floor votes for years before. I am not for in confirmation hearings. That was [T]here are not a lot of people saying: Give sure what the difference is. They both done at the time of our nation’s first us more Federal judges. They just are not. have supporters. leader, President George Washington in For us to be pontificating about this and I do recall the difference now. One cooperation with the Senate. I would gnashing, how unfair, this appointment of was appointed by a Democratic Presi- note that in 1795, four years after the more Federal judges, It is just not dent and one by a Republican Presi- there.... Some people might argue that we Constitution was adopted, the Senate have plenty of Federal judges to do the job. dent. Like I said, that seems to be all defeated one of the judicial nomina- I hope they will do that. I am saying to you, the difference in the world. tions of President Washington, that of I am trying . . . but getting more Federal In the debate, my Republican col- John Rutledge and that vote was based judges is not what I came here to do. leagues speak of the weight of the let- on differences between many of the The distinguished Presiding Officer ter from the former Solicitors General Senators and Justice Rutledge regard- was not in the Senate at that time. But and Acting Solicitor General. They say ing ideas and policies. The Senate’s he may recall Justice Ronnie White this is definitive and assert that the consideration of judicial nominees and came from his State. Senate has no right to ask these ques- their views and approach to the law The nomination of Ted Stewart to tions. has been done by every Senate since. the District Court in Utah was also Immediately, the independent 100 It is especially difficult to under- very controversial. A lot of the so- Members of the Senate say, My gosh. stand, hearing the sudden urge on the called ‘‘liberal groups’’ the distin- These guys who held these important other side of the aisle that: Oh, my guished chairman is fond of excoriating staff positions at the Department of gosh, we have to keep everything in around here opposed Mr. Stewart. A lot Justice are telling us we can’t ask the executive branch confidential. of the same groups the distinguished questions; that we should immediately Well, Congress passed the Presidential senior Senator from Utah implies con- run for cover, and say, of course, we Records Act to require the opposite, trol things around here opposed Mr. will not ask questions. that memoranda and writings of advi- Stewart. I don’t quite read the Constitution sors to the President be made public. I voted for Mr. Stewart. I was one of that way. Additionally, I would not that some those Democrats who should not be In fact, I frankly didn’t get elected to of the same Senators made demand lumped together. In fact, a whole lot of the Senate and take my oath of office after demand for internal documents of Democratic Senators voted for Mr. and decide at that point I will vote or the Clinton administration over the Stewart, even though he was strongly take actions based upon what some- last several years. They were asking opposed by groups that are normally body who worked for the Attorney for things that had never been asked aligned with Democratic interests, es- General tells me to do or not do as a for before, such as information related pecially those who support a clean en- Senator. I don’t care which attorney to on-going investigations. In fact, I vironment in this country. general it might have been, Republican think the Republican-led Senate spent Then there was, of course, the nomi- or Democrat. It is not in the cards. tens of millions of dollars—tens of mil- nation of Justice Ronnie White. He But I was concerned. I know of these lions of dollars—of the taxpayers’ also was supported by every Demo- former Solicitors General from both money asking for document after docu- cratic Senator. And every single Re- Republican and Democratic adminis- ment, many of which were probably publican, including those who had trations. For many of them, I was im- were never read. I would be willing to voted for Ronnie White in committee, pressed with their legal abilities. So I bet some are still sitting in the enve- came down on the floor and voted am struck with their letter’s ignorance lopes they were transmitted in. And it against him. of the precedents. I do not know who was done almost every day: Let’s think

VerDate Dec 13 2002 01:54 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.058 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2255 of something else to ask for. And it was provided to client agencies within the Execu- 2. Without limiting the foregoing, all docu- sent. And the taxpayers were paying tive Branch.’’ We provided these privileged ments generated during the period from 1972 for it. documents to the Committee in order to re- through 1974 and constituting, describing, re- Now, if you have something that is spond fully to the Committee’s request and ferring or relating in whole or in part to any to expedite the confirmation process. of the following: relevant to the core functions of the Although the Committee’s need for these a. any communications between Robert H. Senate, especially the confirmation documents has ceased, their privileged na- Bork and any person or entity relating in function, then it is appropriate to ask ture remains. As we emphasized in our Au- whole or in part to the Office of Watergate for it. This is especially so for the only gust 24, 1987, letter, production of these doc- Special Prosecution Force or its positions in our whole system of gov- uments to the Committee did not constitute predecessors- or successors-in-interest; a general waiver of claims of privilege. We b. the dismissal of Archibald Cox as Spe- ernment that are for life—these judge- cial Prosecutor; ships are lifetime appointments. The therefore request that the Committee return all copies of all documents provided by the c. the abolition of the Office of Watergate Senate cannot amend these decisions, Special Prosecution Force on or about Octo- Department to the Committee, except docu- like a law, if we make a mistake. ber 23, 1973; ments that are clearly a matter of public d. any efforts to define, narrow, limit or The administration’s assertion that record (e.g., briefs and judicial opinions) or the documents produced to the com- otherwise curtail the jurisdiction of the Of- that were specifically made a part of the fice of Watergate Special Prosecution Force, mittee during the Bork nomination did record of the hearings. or the investigative or prosecutorial activi- not reveal internal deliberations is way Please contact me if you have any ques- ties thereof; off the mark—way off the mark. When tions. Thank you for your cooperation. e. the decision to reestablish the Office of they say this did not reveal internal Sincerely, Watergate Special Prosecution Force in No- deliberations, that is way off the mark. THOMAS M. BOYD, vember 1973; Acting Assistant Attorney General. It is quite clear the Department pro- f. the designation of Mr. Leon Jaworski as Watergate Special Prosecutor; vided the Senate with memoranda U.S. DEPARTMENT OF JUSTICE, OF- g. the enforcement of the subpoena at issue written to Mr. Bork by lower level at- FICE OF LEGISLATIVE AND INTER- in Nixon v. Sirica; torneys, those who were in the exact GOVERNMENTAL AFFAIRS, h. any communications on October 20, 1973 same capacity as Mr. Estrada, making Washington, DC, September 2, 1987. between Robert H. Bork and then-President recommendations about appeals in a Hon. JOSEPH R. BIDEN, Jr., Nixon, Alexander Haig, Leonard Garment, Chairman, Senate Judiciary Committee, Fred Buzhardt, Elliot Richardson, or William variety of cases. Ruckelshaus; For example, the Justice Department U.S. Senate, Washington, DC. DEAR MR. CHAIRMAN: Attached is one set of l. any communications between Robert H. provided the Senate Judiciary Com- copies of documents assembled by the De- Bork and then-President Nixon, Alexander mittee with memoranda related to the partment in response to your August 10, 1987 Haig and/or any other federal official or em- Justice Department’s legal analysis of request for documents relating to the nomi- ployee on the subject of Mr. Bork and a posi- school integration cases, such as nation of Robert Bork to the Supreme Court tion or potential position as counsel to memoranda from Frank Easterbrook of the United States, and provided in re- President Nixon with respect to the so-called sponse to requests made to date by Com- Watergate matter; when he was an Assistant Solicitor m. any action, involvement or participa- General and Bork was Solicitor Gen- mittee staff. These documents are being pro- vided under the conditions stated in my Au- tion by Robert H. Bork with respect to any eral. The Easterbrook legal memo and gust 24, 1987 letter to you. issue in the case of Nader v. Bork, 366 F. similar memos were shown as examples Sincerely, Supp. 104 (D.D.C. 1975), or the appeal thereof; n. any communication between Robert H. at Mr. Estrada’s recent hearing as part JOHN R. BOLTON, Bork and then-President Nixon or any other of the large volume of legal memo- Assistant Attorney General. federal official or employee, or between Mr. Attachments. randa provided by the Reagan Justice Bork and Professor Charles Black, con- Department and examined by Senators cerning Executive Privilege, including but U.S. SENATE, and key staff. not limited to Professor Black’s views on the COMMITTEE ON THE JUDICIARY, Senator DODD, in an excellent speech, President’s ‘‘right’’ to confidentiality as ex- Washington, DC, August 10, 1987. referred to some of these materials last pressed by Professor Black in a letter or ar- Hon. EDWIN MEESE III, ticle which appeared in the New York Times night in debate. Not all of the informa- Attorney General, Department of Justice, in 1973 (see Mr. Bork’s testimony in the 1973 tion disclosed was previously placed in Washington, DC. Senate Judiciary Committee hearings on the the Estrada hearing record, so I ask DEAR GENERAL MEESE: As part of its prepa- ration for the hearings on the nomination of Special Prosecutor); unanimous consent, Mr. President, to o. the stationing of FBI agents at the Of- Judge Robert Bork to the Supreme Court, have printed in the RECORD a sample of fice of Watergate, Special Prosecution Force the Judiciary Committee needs to review the correspondence between Senator on or about October 20, 1973, including but certain material in the possession of the Jus- not limited to documents constituting, de- BIDEN, who was the then-chairman of tice Department and the Executive Office of the Judiciary Committee, and the Jus- scribing, referring or relating to any commu- the President. nication between Robert H. Bork, Alexander tice Department, which demonstrates Attached you will find a list of the docu- Haig, or any official or employee of the Of- ments that the Committee is requesting. the substantial cooperation and the fice of the President or the Office of the At- Please provide the requested documents by types of disclosures the Justice Depart- torney General, on the one hand, and any of- August 24, 1987. If you have any questions ment made to accommodate the Senate ficial or employee of the FBI, on the other; in past administrations. about this request, please contact the Com- and There being no objection, the mate- mittee staff director, Diana Huffman, at 224– p. the establishment of the Office of Water- 0747. gate Special Prosecution Force, including rial was ordered to be printed in the Thank you for your cooperation. RECORD, as follows: but not limited to all documents consti- Sincerely, tuting, describing, referring or relating in U.S. DEPARTMENT OF JUSTICE, JOSEPH R. BIDEN, Jr., whole or in part to any assurances, represen- OFFICE OF LEGISLATIVE AFFAIRS Chairman. tations, commitments or communications by Washington, DC, May 10, 1998. any member of the Executive Branch or any REQUEST FOR DOCUMENTS REGARDING THE Hon. JOSEPH R. BIDEN, Jr., agency thereof to any member of Congress NOMINATION OF ROBERT H. BORK TO BE AS- Chairman, Senate Judiciary Committee, U.S. regarding the independence or operation of Senate, Washington, DC. SOCIATE JUSTICE OF THE UNITED STATES SU- the Office of Watergate Special Prosecution DEAR CHAIRMAN BIDEN: This letter requests PREME COURT Force, or the circumstances under which the that the Committee return to the Justice Please provide to the Committee in accord- Special Prosecutor could be discharged. Department all copies of documents pro- ance with the attached guidelines the fol- 3. The following documents together with duced by the Department in response to lowing documents in the possession, custody any other documents referring or relating to Committee requests for records relating to or control of the United States Department them: the nomination of Robert Bork to the Su- of Justice, the Executive Office of the Presi- a. the memorandum to the Attorney Gen- preme Court. As Assistant Attorney General dent, or any agency, component or document eral from then-Solicitor General Boark, John Bolton noted in an August 24, 1987, let- depository of either (including but not lim- dated August 21, 1973, and its attached ‘‘re- ter to you, many of the documents provided ited to the Federal Bureau of Investigation): draft of the memorandum intended as a basis the Committee, ‘‘reflect or disclose purely 1. All documents generated during the pe- for discussion with Archie Cox’’ concerning internal deliberations within the Executive riod from 1972 through 1974 and constituting, ‘‘The Special Prosecutor’s authority’’ (type- Branch, the work product of attorneys in describing, referring or relating in whole or set copies of which are printed at pages 287– connection with government litigation or in part to Robert H. Bork and the so-called 288 of the Senate Judiciary Committee’s 1973 confidential legal advice received from or Watergate affair. ‘‘Special Prosecutor’’ hearings);

VerDate Dec 13 2002 02:41 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.069 S12PT1 S2256 CONGRESSIONAL RECORD — SENATE February 12, 2003 b. the letter addressed to Acting Attorney ther (i) to all criteria or standards used by the same law school I did, at about the General Bork from then-President Nixon, President Reagan in selecting nominees to same time: We are not potted plants up dated October 20, 1973., directing him to dis- the Supreme Court, or (ii) to the application here. The Senate has demonstrated its charge Archibald Cox; of those criteria to the nomination of Robert role in the confirmation of judges from c. the letter addressed to Archibald Cox H. Bork to be Associate Justice of the Su- the beginning of this country’s history. from then-Acting Attorney General Bork, preme Court. dated October 20, 1973, discharging Mr. Cox 9. All documents constituting, describing, After all, the Senate rejected some of from his position as Special Prosecutor; referring or relating in whole or in part to President George Washington’s and d. Order No. 546–73, dated October 23, 1973, Robert H. Bork and any study or consider- President Madison’s judicial nominees. signed by then-Acting Attorney General ation during the period 1969–1977 by the Ex- But let’s go ahead with what has hap- Bork, entitled ‘‘Abolishment of Office of Wa- ecutive Branch of the United States Govern- pened here. It makes me wonder if tergate Special Prosecutor Force’’; ment or any agency or component thereof of there is some kind of huge disconnect e. Order No. 547–73, dated October 23, 1973, school desegregation remedies. (In addition at the administration, or whether they signed by then-Acting Attorney General to responsive documents from the entities are getting all their information based Bork, entitled ‘‘Additional Assignments of identified in the beginning of this request, on some of the things that were wrong- Functions and Designation of Officials to please provide any responsive documents in Perform the Duties of Certain Offices in Case the possession, custody or control of the U.S. ly stated on the Senate floor. of Vacancy, or Absence therein or in Case of Department of Education or its predecessor What happened first is, the adminis- Inability or Disqualification to Act’’; agency, or any agency, component or docu- tration claimed: We cannot send up f. Order No. 551–73, dated November 2, 1973, ment depository thereof.) this material, these memos of Mr. signed by then-Acting Attorney General 10. All documents constituting, describing, Estrada because we never provided in- Bork, entitled ‘‘Establishing the Office of referring or relating in whole or in part to ternal legal memos in the past. Then, Watergate Special Prosecution Force’’; the participation of Solicitor General Robert of course, we gave them evidence: Well, g. the Appendix to Item 2.f., entitle ‘‘Du- H. Bork in the formulation of the position of yes, previous administrations had. ties and Responsibilities of Special Pros- the United States with respect to the fol- Then the administration says: Whoops, ecutor’’; lowing cases: well, those were different. They are dis- h. Order No. 552–73, dated November 5, 1973, a. Evans v. Wilmington School Board, 423 signed by then-Acting Attorney General U.S. 963 (1975), and 429 U.S. 973 (1976); tinguishable. So then we show them Bork, designating ‘‘Special Prosecutor Leon b. McDonough v. Morgan, 426 U.S. 935 (1976); evidence: No, it is exactly the same Jaworski the Director of the Office of Water- c. Hills v. Gautreaux, 425 U.S. 284 (1976); kind of memoranda. And they say: gate Special Prosecution Force’’; d. Pasadena City Board of Education v. Prove that you received memos that i. Order No. 554–73, dated November 19, 1973, Spangler, 427 U.S. 424 (1976); contained confidential information signed by then-Acting Attorney General e. Roemer v. Maryland Board of Public Edu- written by attorneys. And they say, we Bork, entitled ‘‘Amending the Regulations cation, 426 U.S. 736 (1976); are still not going to accommodate f. Hill v. Stone, 421 U.S. 289 (1975); and Establishing the Office of Watergate Special you. We are still not going to come Prosecution Force’’; and g. DeFunis v. Odegaard, 416 U.S. 312 (1975). forth. They, in essence, are saying we j. the letter to Leon Jaworski, Special GUIDELINES Prosecutor, from then-Acting Attorney Gen- are still going to stonewall you and we 1. This request is continuing in character will continue to deny that any prece- eral Bork, dated November 21, 1973, con- and if additional responsive documents come cerning Item 2.i. to your attention following the date of pro- dent exists. 4. All documents constituting, describing, duction, please provide such documents to I am reminded of the famous story of referring or relating in whole or in part to the Committee promptly. President Lincoln’s cross-examination any meetings, discussions and telephone con- 2. As used herein, ‘‘document’’ means the in a case when he was a young lawyer. versations between Robert H. Bork and then- original (or an additional copy when an As the story goes, Lincoln was cross- President Nixon, Alexander Haig or any original is not available) and each distribu- examining a witness about how a man, other federal official or employee on the sub- tion copy of writings or other graphic mate- who was far away from the scene of a ject of Mr. Bork’s being considered or nomi- rial, whether inscribed by hand or by me- nated for appointment to the Supreme fight, could have seen what happened. chanical, electronic, photographic or other And it went something like this. Court. means, including without limitation cor- 5. All documents generated from 1973 Lincoln said: Isn’t it true that you respondence, memoranda, publications, arti- were across the road from where the in- through 1977 and constituting, describing, re- cles, transcripts, diaries, telephone logs, ferring or relating in whole or in part to message sheets, records, voice recordings, cident took place? Robert H. Bork and the constitutionality, tapes, film, dictabelts and other data com- The answer was: Yes. appropriateness or use by the President of pilations from which information can be ob- Then Lincoln said: Isn’t it true that the United States of the ‘‘Pocket Veto’’ tained. This request seeks production of all you are near-sighted? power set forth in Art. I, section 7, paragraph documents described, including all drafts The witness answered: Yes. 2 of the United States Constitution, includ- and distribution copies, and contemplates And then Lincoln said: Isn’t it true ing but not limited to all documents consti- production of responsive documents in their that your view of the fight was blocked tuting, describing, referring or relating in entirety, without abbreviation or expur- by trees? whole or in part to any of the following: gation. The witness said: Yes. a. The decision not to petition for certio- 3. In the event that any requested docu- So Lincoln said: Then, how can you rari from the decision of the United States ment has been destroyed or discarded or oth- Court of Appeals for the District of Columbia sit there and testify under oath that erwise disposed of, please identify the docu- Circuit in Kennedy v. Sampson, 511 F.2d 430 the defendant bit Mr. Smith? ment as completely as possible, including (1947); The witness answered: Because I saw without limitation the date, author(s), ad- b. the entry of the judgment in Kennedy v. the defendant spit Mr. Smith’s ear out dressee(s), recipient(s), title, and subject Jones, 412 F. Supp. 353 (D.D.C. 1976); and of his mouth. matter, and the reason for disposal of the c. the policy regarding pocket vetoes pub- In our case, subsequent to Mr. document and the identity of all persons who licly adopted by President Gerald R. Ford in authorized disposal of the document. Estrada’s hearing, we learned that April 1976. 4. If a claim is made that any requested most of the Bork appeal memos dis- 6. All documents constituting, describing, document will not be produced by reason of closed to the Senate were returned to referring or relating in whole or in part to a privilege of any kind, describe each such the Department the year after the Robert H. Bork and the incidents at issue in document by date, author(s), addressee(s), United States v. Gray, Felt & Miller, No. Cr. 78– nomination. The proof is in a letter recipient(s), title, and subject matter, and 00179 (D.D.C. 1978), including but not limited from Acting Assistant Attorney Gen- set forth the nature of the claimed privilege to all documents constituting, describing, eral Thomas Boyd to Chairman BIDEN with respect to each document. referring or relating in whole or in part to in May 1988, which notes that: any of the exhibits filed by counsel for Ed- (Mr. TALENT assumed the Chair.) [M]any of the documents provided to the ward S. Miller in support of his contention Mr. LEAHY. I put that material in Committee, ‘‘reflect or disclose purely inter- that Mr. Bork was aware in 1973 of the inci- the RECORD because it stands in stark nal deliberations within the Executive dents at issue. contrast to the total lack of coopera- Branch, the work product of attorneys in 7. All documents constituting, describing tion by the current occupants of the connection with government litigation or or referring to any speeches, talks, or infor- Justice Department. confidential legal advice received from or mal or impromptu remarks given by Robert provided to client agencies within the Execu- H. Bork on matters relating to constitu- The administration, quite inappropri- tive Branch. We provided these privileged tional law or public policy. ately, I believe, refuses the request of a documents to the Committee in order to re- 8. All documents constituting, describing, coequal branch of Government. To spond fully to the Committee’s request and referring or relating in whole or in part ei- quote a friend of mine, one who went to to expedite the confirmation process.’’

VerDate Dec 13 2002 01:54 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.009 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2257 Sound familiar? Well, the requests accommodation between the two inapplicable to the request for Mr. should be familiar. It is exactly what branches of our government. I have Estrada’s writings. we requested last year. The difference been seeking such accommodation for As a legal matter, the Seventh, is, during President Reagan’s adminis- the last two years with respect to judi- Eighth, and District of Columbia Cir- tration, they responded. During this cial nominations. I hope that we can cuits have ruled that government law- administration, they say: There is no now be more successful. yers are not entitled to claim the at- precedent for it. I would also note that the few court torney-client privilege. So, frankly, this is the ‘‘ear being cases cited by the administration Moreover, in this setting the ‘‘client’’ spit out.’’ The fact is, this letter ‘‘spits about the general desirability of con- is the government of which the Con- out’’ that the overly partisan current fidentiality for government documents gress is certainly a part. occupants of the Justice Department are dicta and not precedential or bind- This administration’s own Assistant have sought to deny the Justice De- ing on the Senate. Attorney General for Legal Policy Viet partment previously provided such doc- One of the cases relied on by the ad- Dinh flatly rejected the notion of such uments. Mr. President, those denials ministration is United States v. Nixon, a privilege five years ago when he told are false. 418 U.S. 683 (1974), in which the Su- Legal Times that a government law- Surely, a copy of this letter is also in preme Court ordered President Nixon yer’s ‘‘employer is not a single person the Justice Department’s files. If we to disclose his Watergate-related tape but the United States of America.’’ He had been able to get this letter earlier, recordings of Oval Office conversations said both the ‘‘United States of Amer- even by the time of Mr. Estrada’s hear- with his closest personal and legal ad- ica’’ and the ‘‘government’’ obviously ing, we would have put it in the visors. The Supreme Court also noted include the United States Senate, espe- RECORD. It is obvious why the Justice in the Nixon case that it is quite un- cially when it is fulfilling constitu- Department probably did not want us likely ‘‘that advisors will be moved to tional responsibilities. As conservative to have it. Because it conclusively temper the candor of their remarks by law professor Ronald Rotunda has demonstrates the precedent that docu- the infrequent occasions of disclosure.’’ noted, ‘‘government lawyers work for ments like the ones written by Mr. 418 U.S. at 712. the government, and not the particular Estrada were provided to the Senate Just as the Supreme Court observed individual whose offices happen to be Judiciary Committee in the past. in the Nixon case, it seems unlikely down the hall.’’ He added that ‘‘the The Boyd letter conclusively dem- that Mr. Estrada was chilled from ex- government cannot plead attorney-cli- onstrates the precedent that docu- pressing his views in his memos fol- ent privilege against itself.’’ This is ments like the ones written by Mr. lowing the disclosure of memos written from the Legal Times of August 3, 1998. The attorney-client privilege is de- Estrada were provided to the Senate by attorneys at the Department in the signed to encourage candor by the cli- Judiciary Committee in the past. It decade prior to his service there in con- ent, not the attorney. For those who must now be admitted beyond dispute nection with the Trott, Bork, are not attorneys, I note that the at- that, as the Justice Department ac- Rehnquist, and Reynolds nominations. torney-client privilege is designed for knowledged back then, ‘‘the work prod- Ironically, memoranda by Mr. Bork as- litigation in courts between private uct of attorneys in connection with sessing President Nixon’s authority to parties. It is a judge-made doctrine government litigation or confidential refuse to disclose information was one based on policy considerations to foster legal advice’’ was provided to the Sen- of documents provided to the Senate in an effective adversary legal system. I ate in connection with past nomina- connection with the Bork nomination. Other cases cited by the Justice De- am a strong believer in our adversarial tions. legal system and a strong supporter of I hope that the administration and partment in its second letter are inap- the attorney-client privilege. It does its Republican supporters will finally plicable to the Senate or pre-date the not apply in these circumstances. quit denying the precedent for the re- Nixon decision. For example, NLRB v. Finally, there is ample precedent quest and provide us with Mr. Estrada’s Sears, Roebuck & Co., 421 U.S. 132, 151 that the attorney-client privilege does memoranda. Letters from the Justice (1975), is a case brought under the Free- not apply to requests by Congress. As Department itself finally conclusively dom of Information Act (FOIA) involv- Senator Fred Thompson, who chaired establish the precedent for our request. ing a statutory-based claim of delibera- one of the many Republican investiga- The longstanding policy of the Jus- tive process privilege under FOIA, not tions into the Clinton Administration, tice Department, until now, and the a request from the Congress. I wish noted: ‘‘In case after case, the courts policy of prior administrations, includ- this administration were more forth- have concluded that allowing it [the ing the Reagan and first Bush adminis- coming in connection with FOIA re- attorney-client privilege] to be used trations, has been a practice of accom- quests, but this is not a FOIA request, against Congress would be an impedi- modation with the Senate in providing nor does FOIA limit Congress’ author- ment to Congress’ obligation and duty access to materials requested in con- ity to seek information from the Exec- to get to the truth and carry out its in- nection with nominations. This admin- utive Branch or its agencies. Indeed, 5 vestigative and oversight responsibil- istration would rather deny the truth U.S.C. 552(d) expressly provides that ities.’’ and long-standing practices. At times FOIA ‘‘is not authority to withhold in- My good friend from Utah, Senator it is as if this administration thinks it formation from Congress.’’ HATCH, has echoed that analysis. A few has a blank slate and a blank check During the course of this debate Re- years ago, he observed: ‘‘The attorney- notwithstanding tradition, history, publican Senators have also spoken as client privilege exists as only a narrow precedent or the shared powers explic- if these materials are somehow pro- exception to broad rules of disclosure. itly provided by our nation’s Constitu- tected by an attorney-client privilege. And the privilege exists only as a stat- tion. First, I note that even the administra- utory creation, or by operation of There is part of a pattern of hostility tion has not made that claim. The ad- State common law. No statute or Sen- by this administration to requests for ministration’s refusal to cooperation is ate or House rule applies the attorney- information by Congress acting pursu- not based on any claim of a legal privi- client privilege to Congress. In fact, ant to powers granted to it by the Con- lege, just recalcitrance. I believe I ex- both the Senate and the House have ex- stitution, regarding nominees and plained at Mr. Estrada’s hearing some plicitly refused to formally include the other important oversight matters. of the reasons a claim of attorney-cli- privilege in their rules.’’ Yesterday, I joined with the distin- ent privilege would be misplaced. Until The Congressional Research Service guished Democratic Leader in a letter this week, only the Washington Post has found that ‘‘No court has ever to the President setting forth back- had gotten it wrong in asserting that questioned the assertion of that pre- ground on the stonewalling of his ad- privilege applies. rogative’’ and noted that the privilege ministration that has occurred with re- Unfortunately, Republican Senators ‘‘is not of constitutional dimensions, spect to this nomination and urging are now taking up that chant. It is [and] is certainly not binding on the him to take action to help resolve the heartwarming to hear Republicans’ de- Congress of the United States.’’ impasse. I thank the Democratic Lead- votion to concepts like the attorney- I regret that so many of our Repub- er for taking this action and seeking client privilege but it is that concept is lican colleagues have chosen to seek

VerDate Dec 13 2002 01:54 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.071 S12PT1 S2258 CONGRESSIONAL RECORD — SENATE February 12, 2003 comfort and concealment in a legal structs Senators from fulfilling their spond fully to the Committee’s request and principle that has no application to role of giving meaningful advice re- to expedite the confirmation process. this matter. I think that the confusion garding lifetime appointments and to Although the Committee’s need for these started with a Washington Post edi- documents has ceased, their privileged na- give or withhold consent. The advice ture remains. As we emphasized in our Au- torial that got this matter all wrong and consent responsibility that the gust 24, 1987, letter, production of these doc- and reflects a lack of familiarity with Constitution entrusts to the Senate is uments to the Committee did not constitute the history of nominations and the demeaned if the Administration refuses a general waiver of claims of privilege. We Senate’s long-standing view of the to disclose information reasonably re- therefore request that the Committee return privilege. The Washington Post’s edi- lated to a nominee’s fitness or integ- all copies of all documents provided by the torials on these matters has been prone rity. Department to the Committee, except docu- to err in a number of ways and they re- Public confidence in the fairness of ments that are clearly a matter of public main free to do so, but I am sorry so the judiciary is eroded when the Ad- record (e.g., briefs and judicial opinions) or that were specifically made a part of the many were led astray on this and other ministration hides pertinent informa- record of the hearings. matters. tion about a nominee sought by the Please contact me if you have any ques- This Administration’s policy argu- Senate Judiciary Committee in seek- tions. Thank you for your cooperation. ment for absolute secrecy of these ing to fulfill its role related to the ap- Sincerely, memoranda is undermined by other pointment power that the Constitution THOMAS M. BOYD, long-standing practices related to confers jointly on the Senate and the Acting Assistant Attorney General. nominees. The Senate routinely re- President. The advice and consent Mr. LEAHY. It is interesting to note ceives confidential information about clause of the Constitution is part of the that after I wrote the Attorney General lifetime and term-appointed nominees Constitution’s checks and balances in and Mr. Estrada in May 2002, when I re- by way of the FBI’s background inves- the lifetime appointment of individuals quested Mr. Estrada’s writings, the ad- tigation of a nominee, which details to a co-equal third branch of the fed- ministration didn’t respond imme- their adult lives and many private eral government, unaccountable to the diately. If they really believed in their matters. Thus, the Senate is not re- normal democratic process. The own precedent, they would have come quired to show a particularized need public’s representatives in the Senate back and said: Look, we have a prece- for such private information which has should have an opportunity to examine dent against it. I think they realized long been germane to a nominee’s fit- the writings of Mr. Estrada in advance there really was no such precedent, and ness for judicial office. of entrusting him with a judicial role they were going to try to make one up. Moreover, the memos at issue do not for life. They took weeks to respond. They involve national security. There are no The influence of the courts over the could have responded in a day because state secrets in the documents Mr. lives of Americans demands that the the precedent was so clear. Or if they Estrada has written requiring that Senate exercise its checking responsi- simply wanted to say, well, maybe all they be sealed from congressional view bility carefully and only after review- other Presidents did it that way, we forever. The memos do not relate to ing all relevant information. are not going to do it that way, they any on-going criminal investigation or I think it has to be admitted beyond could have done that in just a matter to any matters that have not likely al- dispute that, as the Justice Depart- of days. But instead, it makes you won- ready been disposed of by the courts ment acknowledged back then, ‘‘the der, did they go back and read those long ago. His writings are relevant to work product of attorneys in connec- memoranda and say: Whoops, we don’t how he thinks, analyzes legal issues tion with government litigation or con- want these to go before the Senate, and makes judgement and, therefore, fidential legal advice’’ was provided to they are too revealing? relevant to whether or not he should be the Senate in connection with past Whatever it is, Mr. Estrada himself confirmed to the second highest court nominations. I hope the administration says: As far as I am concerned, you can in the country. Moreover, as Senator and their supporters here in the Senate see them, and you can ask me ques- SCHUMER noted in his letter, anytime will finally quit denying the precedent tions about them. one of these memos is written, the for the request and provide us with Mr. The irony is, in all likelihood we writer must assume, and even hope, Estrada’s memoranda. Letters from the would not be here today, having this that his or her views will become the Justice Department itself finally and long debate on the Estrada nomina- Department’s official position. Thus, it conclusively establish the precedent tion, if he had simply done that. If the is hard to believe the risk of disclosure for our request. administration simply said: Look, on the remote chance that one might I ask unanimous consent that the Miguel Estrada is willing to have his someday be selected for a judgeship letter, dated May 10, 1988, from Acting memoranda before the Senate Judici- would be chilling. Assistant Attorney General Thomas ary Committee and then to answer Further, as noted long ago by the Su- Boyd be printed in the RECORD. questions about what he meant, we preme Court in McGrain v. Daugherty, There being no objection, the letter would not be here; we would not be in 273 U.S. 135 (1927), Congress has the was ordered to be printed in the the circumstance where he is asked, power to inquire into the administra- RECORD, as follows: over the last 40 or 50 years: Is there tion of the Department of Justice— U.S. DEPARTMENT OF JUSTICE, anything that you disagreed with that whether its functions are being prop- OFFICE OF LEGISLATIVE AFFAIRS, the Supreme Court said? During that erly discharged or neglected or mis- Washington, DC, May 10, 1988. time, the Supreme Court has overruled directed, and particularly whether the Hon. JOSEPH R. BIDEN, Jr., itself. No, nothing. Attorney General and his assistants Chairman, Senate Judiciary Committee, So we really have no idea what he were performing or neglecting their du- U.S. Senate, Washington, DC. thinks. They simply said: Look, we ties. Even Montesquieu, the architect DEAR CHAIRMAN BIDEN: This letter requests nominated somebody. We were not of separation of powers, stated that that the Committee return to the Justice willing to allow the nominations to go Department all copies of documents pro- ‘‘The legislature should have the duced by the Department in response to forward when President Clinton nomi- means of examining in what manner its Committee requests for records relating to nated people here. We blocked them for laws have been executed by public offi- the nomination of Robert Bork to the Su- year after year after year, but take cials.’’ In this case, whether Mr. preme Court. As Assistant Attorney General ours on faith. Estrada was using his position as an John Bolton noted in an August 24, 1987, let- Again, to the folks who made up a Assistant Solicitor General to advance ter to you, many of the documents provided slogan I kind of liked, ‘‘Trust, but his personal political opinions or to de- the Committee, ‘‘reflect or disclose purely verify,’’ we will trust but verify. As I fend faithfully the laws passed by Con- internal deliberations within the Executive said, we would not even be here today, Branch, the work product of attorneys in gress has been called into question. connection with government litigation or we would not be having this debate In sum, there is ample historical confidential legal advice received from or today, if this had been done. precedent for the request made by the provided to client agencies within the Execu- The longstanding policy of the Jus- Senate Judiciary Committee. This Ad- tive Branch.’’ We provided these privileged tice Department until now, the policy ministration’s refusal to cooperate ob- documents to the Committee in order to re- of prior administrations, including

VerDate Dec 13 2002 02:00 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.074 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2259 Reagan and the first Bush administra- Civiletti, Stephen Trott, and William ary Committee hearing to allow for a cred- tion, has been a practice of accommo- Rehnquist, be printed in the RECORD. ible review of his judicial philosophy and dation with the Senate in providing ac- There being no objection, the letter legal views. cess to materials requested in connec- was ordered to be printed in the We would appreciate your personal atten- tion to this matter. tion with nominations. But this admin- RECORD as follows: Sincerely, istration wants to deny the truth and U.S. SENATE, TOM DASCHLE. longstanding practices. You would Washington, DC, February 11, 2003. PATRICK LEAHY. think they believe they have a blank The PRESIDENT, The White House, Mr. LEAHY. Mr. President, I yield slate and a blank check notwith- the floor. standing tradition, history, and prece- Washington, DC. DEAR MR. PRESIDENT: We are writing in The PRESIDING OFFICER (Mr. dent or the shared powers explicitly reference to your nomination of Miguel COLEMAN). The Senator from Utah. provided by our Nation’s Constitution. Estrada to the U.S. Court of Appeals for the Mr. HATCH. Mr. President, I have This goes beyond hubris. This goes to District of Columbia Circuit. Pursuant to been listening to this day after day a sense of entitlement. It is a ‘‘l’etat, the Constitution, the Senate is to act as a after day. It is clear this is a game. It c’est moi’’ attitude on the part of the co-equal participant in the confirmation of is a bad game. If they don’t like the an- judges to the Federal bench. Unlike nomina- administration. It is saying: If we say swers Mr. Estrada has given, vote it, it happens. If we want it, it is OK. It tions made by a President for Executive Branch appointments, judicial nominees are against him. That is the remedy here. is almost like the little kid on the Don’t filibuster. Don’t explode this playground who says: I want this one, I reviewed by the Senate for appointment to lifetime positions in the Judicial Branch. body into always having filibusters on want this one, I want this one, and I The Senate has often requested and re- any judge who may be controversial on don’t care what the playground rules ceived supplemental documents when it is one side or the other. Vote against are. considering controversial nominations or him. Talk against him, like we have Well, this is a lot more than a play- when evaluating a candidate with a limited had plenty of. Then you have an abso- ground. This is the U.S. Senate, a place public record. The Chairman of the Senate lute right to vote against him if you I love and revere and a place steeped in Judiciary Committee wrote to your Adminis- want to. constitutional history, steeped in con- tration on May 15, 2002 to request such sup- Now, let me go back through some of stitutional prerogatives; but even more plemental documents to assist in Senate consideration of the Estrada nomination. In the things we were talking about. On so, one where we are called upon day particular, the request was made for appeal May 15, 2002, Senator LEAHY sent the after day to protect the Constitution of recommendations, certiorari recommenda- following letter to Attorney General the United States. I see a pattern of tions, and amicus recommendations that Mr. Ashcroft: hostility by this administration to re- Estrada worked on while at the Department quests for information by Congress, of Justice. In connection with the nomination of Prior Administrations have accommodated Miguel Estrada to the United States Court of even though Congress is actively pur- Appeals for the D.C. Circuit, I write to re- suing the powers granted to it by the similar Senate requests for such documents. Such documents were provided during Sen- quest that the Department of Justice send to Constitution, regarding not only nomi- ate consideration of the nominations of Rob- the Judiciary Committee appeal rec- nees but important oversight matters. ert H. Bork, William Bradford Reynolds, ommendations, certiorari recommendations, Yesterday, I joined with the distin- Benjamin Civiletti, Stephen Trott, and Wil- and amicus recommendations Mr. Estrada guished Democratic leader in a letter liam H. Rehnquist. worked on while at the Department of Jus- to the President. We set forth the Your Administration has refused to accom- tice. This should assist the Committee in background of the stonewalling of this modate the Senate’s request for documents considering this nomination. administration that has occurred with in connection with the Estrada nomination. On June 5, in a letter from the De- respect to this nomination. We urged That refusal was a matter of inquiry at the partment of Justice, they answered the confirmation hearing held on this nomina- then-Chairman LEAHY’S letter: them to take action to help resolve the tion on September 26, 2002. Following the impasse. I thank the Democratic leader hearing, Senator Schumer wrote to the At- Dear Mr. Chairman: for taking this action seeking accom- torney General on January 23, 2003, to follow This is in response to your letter dated modation between the two branches of up on the request. May 15, 2002, requesting appeal recommenda- our Government. I have been seeking In addition to requests for documents, Sen- tions, certiorari recommendations, and ami- such accommodation for the last 2 ators frequently question judicial nominees cus recommendations that Miguel Estrada worked on when he was employed at the De- years with respect to judicial nomina- during their confirmation hearings to deter- mine their judicial philosophy, views and partment of Justice. tions. I hope we can be more successful. The categories of documents you have re- I hope that now people will step back temperament. For example, then-Senator John Ashcroft asked nominees: ‘‘Which judge quested are among the most highly privi- and say: Look, let’s put this on a more has served as a model for the way you would leged and deliberative documents generated even keel. Let’s have real hearings, not conduct yourself as a judge and why?’’ Mr. within the Department of Justice. The Solic- assembly line type hearings. Let’s Estrada refused to answer a similar question. itor General must have the benefit of candid carry out our constitutional respon- During consideration of President Clin- and confidential advice in order to discharge sibilities. Let’s go forward. That is the ton’s judicial nominees, Republican Senators his critical responsibility of deciding what way I thought it should be when I came asked repeated questions regarding nomi- appeals the Government will take and what positions the Government will adopt in pend- to the Senate 29 years ago. That is the nees’ judicial philosophy, views on legal matters, and approaches to interpreting the ing litigation. Attorneys like Mr. Estrada way I think it should be now. I think Constitution. They insisted on and received who serve as Assistants to the Solicitor Gen- that is the way it could be. It is the answers. During his consideration before the eral are asked to render candid, unbiased, way it was with both Republican and Senate Judiciary Committee, Mr. Estrada and professional advice about the merits of Democratic administrations. failed to answer these kinds of questions. potential appeals. I was not here at the time of the These questions have not only been rou- They do so by preparing exactly the kinds Nixon administration. I came shortly tinely asked by the Senate, they have been of recommendation memoranda you have re- thereafter. I don’t know if this kind of routinely answered by other nominees—in- quested. These documents review the sub- stantive legal issues in a case, the broader stonewalling is precedent or not. In my cluding other nominees from your Adminis- tration. jurisprudential implications of the case, pol- experience, I would not know that. But For the Senate to make an informed deci- icy considerations, the strength of the fac- I know it was not during the adminis- sion about Mr. Estrada’s nomination, it is tual record, and the overall likelihood of trations of President Ford, President essential that we receive the information re- success on appeal. Carter, President Reagan, the first quested and answers to these basic legal If highly privileged and deliberative docu- President Bush, or President Clinton. questions. Specifically we ask: ments of this kind are not shielded from dis- I ask unanimous consent that a copy 1. that you instruct the Department of Jus- closure, the Department will face the grave of the letter Senator DASCHLE and I tice to accommodate the requests for docu- danger that Assistants to the Solicitor Gen- sent to the President on this matter, ments immediately so that the hearing proc- eral, and others in comparable positions, will ess can be completed and the Senate can be chilled in the future from providing the pointing out that the precedent for have a more complete record on which to candid and independent analysis that is es- what we have asked for was shown in consider this nomination; and sential to high-level decisionmaking. As the the nominations of Robert Bork, Wil- 2. that Mr. Estrada answer the questions unanimous Supreme Court recognized: liam Bradford Reynolds, Benjamin that he refused to answer during his Judici- ‘‘Human experience teaches that those who

VerDate Dec 13 2002 02:41 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.061 S12PT1 S2260 CONGRESSIONAL RECORD — SENATE February 12, 2003 expect public dissemination of their remarks cause our colleagues think this is a able to Congress the kinds of documents you may well temper candor with a concern for good issue to stop and stymie this His- have requested. appearances and for their own interests to panic nominee. We trust that you will appreciate the im- the detriment of the decisionmaking proc- portant institutional interests that lead us ess.’’ United States v. Nixon, 418 U.S. 683, 705 Now, that was October 8. Not until to decline your request. In our judgment, the (1974). The Court observed that ‘‘the impor- after we noticed the markup for Mr. Committee has had ample time and alter- tance of this confidentiality is too plain to Estrada on January 23, 2003, did Sen- native means for obtaining assessments of require further discussion.’’ Simply put, the ator SCHUMER write to the Honorable how Mr. Estrada’s performance as an Assist- Department cannot function properly if our John Ashcroft at the Attorney Gen- ant to the Solicitor General bears on the attorneys write these kinds of documents eral’s Office, again requesting these merits of his nomination. In particular, you with one eye focused on the effect that their matters. And then the Department of have been free to inquire the Solicitors Gen- eral under whom Mr. Estrada served their words, if made public, might have on their Justice responded immediately. We re- qualification for future office. views as to his qualifications for the position For these reasons, the Department has a ceived it on January 23. Jamie E. to which he has been nominated. longstanding policy—which has endured Brown, Acting Assistant Attorney Gen- On January 25, 2002, you promised a Com- across administrations of both parties—of eral, explained that they cannot do mittee hearing for Mr. Estrada this year. So declining to release publicly or make avail- this. I have been informed that never that the Committee can meet your commit- able to Congress the kinds of documents you have they given up appeal rec- ment, we would request that you contact me have requested. ommendations, amicus recommenda- or Judge Gonzales, as soon as possible to dis- We trust that you will appreciate the im- cuss this matter if you have any questions or portant institutional interests that lead us tions, and certiorari recommendations. concerns. to decline your request. In our judgment, the I ask unanimous consent that these Sincerely, Committee has had ample time and alter- letters be printed in the RECORD in that DANIEL J. BRYANT, native means for obtaining assessments of order. Assistant Attorney General. how Mr. Estrada’s performance as an Assist- There being no objection, the mate- ant to the Solicitor General bears on the rial was ordered to be printed in the U.S. DEPARTMENT OF JUSTICE, merits of his nomination. In particular, you RECORD, as follows: OFFICE OF LEGISLATIVE AFFAIRS, have been free to inquire of the Solicitors Washington, DC, October 8, 2002. U.S. DEPARTMENT OF JUSTICE, General under whom Mr. Estrada served Hon. PATRICK J. LEAHY, OFFICE OF LEGISLATIVE AFFAIRS, their views as to his qualifications for the Chairman, Committee on the Judiciary, Washington, DC, June 5, 2002. position to which he has been nominated. U.S. Senate, Washington, DC. On January 25, 2002, you promised a Com- Hon. PATRICK J. LEAHY, DEAR MR. CHAIRMAN: During the hearing mittee hearing for Mr. Estrada this year. So Chairman, Committee on the Judiciary, on September 26, 2002, on the nomination of that the Committee can meet our commit- U.S. Senate, Washington, DC. Miguel A. Estrada to the United States ment, we would request that you contact me DEAR MR. CHAIRMAN: This responds to your Court of Appeals for the District of Columbia or Judge Gonzales as soon as possible to dis- letter dated May 15, 2002, requesting appeal Circuit, you and Senator Schumer restated cuss this matter if you have any questions or recommendations, certiorari recommenda- your request that the Department of Justice concerns. tions, and amicus recommendations that disclose certain confidential and privileged Miguel Estrada worked on when he was em- appeal, certiorari, and amicus memoranda That is the letter from the Justice ployed at the Department of Justice. Department in response to the letter that Mr. Estrada authored when he was a ca- The categories of documents that you have reer lawyer in the Office of the Solicitor Senator LEAHY sent on May 15. Appar- requested are among the most highly privi- General. ently, at the hearing this issue was leged and deliberative documents generated As we indicated in our letter of June 5, raised again, and the Department of within the Department of Justice. The Solic- 2002, we must respectfully decline your re- Justice responded to Chairman LEAHY itor General must have the benefit of candid quest. The relevant historical, policy, and again on October 8, 2002: and confidential advice in order to discharge legal considerations implicated by your re- his critical responsibility of deciding what Dear Mr. Chairman: quest demonstrate that disclosure of these During the hearing on September 26, 2002, appeals the Government will take and what memoranda from the Office of the Solicitor on the nomination of Miguel A. Estrada to positions the Government will adopt in pend- General would undermine the integrity of the U.S. Court of Appeals for the District of ing litigation. Attorneys like Mr. Estrada the decisionmaking process in that Office. Columbia Circuit, you and Senator Schumer who serve as Assistants to the Solicitor Gen- The Committee’s request threatens the restated your request that the Department eral are asked to render candid, unbiased, proper functioning of the Office of the Solic- of Justice disclose certain confidential and and professional advice about the merits of itor General. Indeed, all seven living former privileged appeal, certiorari, and amicus potential appeals. They do so by preparing Solicitors General—from Archibald Cox to memoranda that Mr. Estrada authored when exactly the kinds of recommendation memo- Seth P. Waxman—have written to the Com- he was a career lawyer in the Office of the randa that you have requested. These docu- mittee and explained that the Committee’s Solicitor General. ments review the substantive legal issues in broad and unprecedented request would have As we indicated in our letter of June 5, a case, the broader jurisprudential implica- a debilitating effect on the ability of the 2002, we must respectfully decline your re- tions of the case, policy considerations, the United States to represent itself in litiga- quest. The relevant historical, policy, and strength of the factual record, and the over- tion. Their letter explained that, as Solici- legal considerations implicated by your re- all likelihood of success of appeal. tors General, their ‘‘decisionmaking process quest demonstrate that disclosure of these If highly privileged and deliberative docu- required the unbridled, open exchange of memoranda from the Office of the Solicitor ments of this kind are not shielded from dis- ideas—an exchange that simply cannot take General would undermine the integrity of closure, the Department will face the grave place if attorneys have reason to fear that the decisionmaking process in that Office. danger that Assistants to the Solicitor Gen- their private recommendations are not pri- The Committee’s request threatens the eral, and others in comparable positions, will vate at all, but vulnerable to public disclo- proper functioning of the Office of the Solic- be chilled in the future from providing the sure.’’ Thus, ‘‘[a]ny attempt to intrude into itor General. Indeed, all seven living former candid and independent analysis that is es- the Office’s highly privileged deliberations Solicitors General—from Archibald Cox to sential to high-level decisionmaking. As the would come at the cost of the Solicitor Gen- Seth P. Waxman—have written to the Com- unanimous Supreme Court recognized: eral’s ability to defend vigorously the United mittee and explained that the Committee’s ‘‘Human experience teaches that those who States’ litigation interests—a cost that also broad and unprecedented request would have expect public dissemination of their remarks would be borne by Congress itself.’’ a debilitating effect on the ability of the may well temper candor with a concern for Longstanding historical Senate practice United States to represent itself in litiga- appearances and for their own interests to reinforces the position of the former Solici- tion. Their letter explained that, as Solici- the detriment of the decisionmaking proc- tors General that confidential, deliberative tors General, their ‘‘decisionmaking process ess.’’ United States v. Nixon, 418 U.S. 683, 705 documents from the Office of Solicitor Gen- required the unbridled, open exchange of (1974). The Court observed that ‘‘the impor- eral have been, and should remain, confiden- ideas—an exchange that simply cannot take tance of this confidentiality is too plain to tial during confirmation hearings. As the at- place if attorneys have reason to fear that require further discussion.’’ Id. Simply put, tached charts demonstrate, since the begin- their private recommendations are not pri- the Department cannot function properly if ning of the Carter Administration in 1977, vate at all, but vulnerable to public disclo- our attorneys write these kinds of docu- the Senate has approved 67 United States sure.’’ ments with one eye focused on the effect Court of Appeals nominees who previously That letter is quite detailed, Mr. that their words, if made public, might have had worked in the Department of Justice. on their qualification for future office. Those 67 nominees—of whom 38 had no prior President. It goes on to make this case For these reasons, the Department has a judicial experience—include eight former as persuasively as it can, and it gives a longstanding policy—which has endured lawyers with the Office of the Solicitor Gen- number of charts that make the case as across Administrations of both parties—of eral. Our review of each of these 67 nominees’ well, all to no avail, apparently, be- declining to release publicly or make avail- hearing records establishes that in none of

VerDate Dec 13 2002 02:00 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.064 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2261 these cases did the Department of Justice supervised Mr. Estrada, has written to the er Congress can obtain reasonably equivalent produce internal deliberative materials cre- Committee in support of his nomination. Mr. information from alternative sources that ated by the nominee while a Department Waxman wrote: ‘‘During the time Mr. would satisfy its legitimate needs. In this in- lawyer. In fact, we could find no nominee for Estrada and I worked together, he was a stance, we again note that the Committee whom the Senate Judiciary Committee even model of professionalism and competence. In has full access to Mr. Estrada’s briefs and requested that the Department produce such no way did I ever discern that the rec- oral arguments, to the information provided materials. The Committee’s request with re- ommendations Mr. Estrada made or the by Mr. Waxman, to the letter from former spect to Mr. Estrada therefore is unprece- analyses he propounded were colored in any colleagues in the Solicitor General’s office, dented. way by his personal views—or indeed that and to his performance reviews. The Com- Of particular relevance are the appellate- they reflected anything other than the long- mittee also is free to contact any of Mr. court nominees who previously had been As- term interests of the United States.’’ Estrada’s former supervisors and colleagues sistants to the Solicitor General or Deputy Moreover, 14 of Mr. Estrada’s former col- in the Office of the Solicitor General to seek Solicitors General, and had not served as leagues in the Office of the Solicitor General further information about Mr. Estrada’s judges as the time of their nomination—the have written the Committee to emphasize temperament, fairness, analytical skills and same position Mr. Estrada occupies now. The his ability, collegiality, and integrity: ‘‘We abilities or any other matters the Com- nominees, nominated by Presidents of both also know Miguel to be a delightful and mittee appropriately deems relevant to its political parties and confirmed by Senates charming colleague, someone who can en- inquiry. Because the Committee has ade- controlled by both political parties, are: gage in open, honest, and respectful discus- quate sources of information about Mr. Samuel A. Alito Jr. (Assistant to the So- sion of legal issues with others, regardless of Estrada, among other reasons, it cannot es- licitor General, 1981–85; confirmed to the their ideological perspectives. Based on our tablish the ‘‘demonstrably critical’’ need for Third Circuit, 1990); experience as his colleagues in the Solicitor the deliberative materials in question. Danny J. Boggs (Assistant to the Solicitor General’s office, we are confident that he None of the seven examples cited during General, 1973–75; confirmed to the Sixth Cir- possesses the temperament, character, and Mr. Estrada’s hearing as precedent for the cuit, 1986); qualities of fairness and respect necessary to William C. Bryson (Assistant to the Solic- be an exemplary judge. In combination, Committee’s request—the nominations of itor General, 1978–79; Deputy Solicitor Gen- Miguel’s exceptional legal ability and talent, Judge Frank Easterbrook to the Seventh eral, 1986–94; confirmed to the Federal Cir- his character and integrity, and his deep and Circuit, Judge Robert Bork and Chief Justice cuit, 1994); varied experience as a public servant and in William Rehnquist to the Supreme Court, Frank H. Easterbrook (Assistant to the So- private practice make him an excellent can- Benjamin Civiletti to be Attorney General licitor General, 1974–77; Deputy Solicitor didate for service on the federal bench.’’ and Deputy Attorney General, William Brad- General, 1978–79; confirmed to the Seventh Finally, Mr. Estrada has sent the Judici- ford Reynolds to be Associate Attorney Gen- Circuit, 1985); ary Committee copies of his performance eral, Judge Stephen Trott to the Ninth Cir- Daniel M. Friedman (Assistant to the So- evaluations from his tenure in the Office. cuit, and Jeffrey Holmstead to be Assistant licitor General, 1959–68; Deputy Solicitor These documents indicate that Mr. Estrada’s Administrator at the Environmental Protec- General, 1968–78; confirmed to the appellate supervisors gave him ratings of ‘‘out- tion Agency—supports the Committee’s re- division of the Court of Claims (later the standing’’—the highest possible score—in quest in this matter. Federal Circuit), 1982); every category for every evaluation period. Of the seven cited nominees, the hearings Richard A. Posner (Assistant to the Solic- It bears emphasis that the long-standing of only two—Judge Bork and Judge itor General, 1965–67; confirmed to the Sev- historical practice, policy considerations and Easterbrook—involved documents from their enth Circuit, 1981); and views of the former Solicitors General are service in the Office of Solicitor General. A. Raymond Randolph (Deputy Solicitor fully supported by applicable legal prin- Senator Schumer placed into Mr. Estrada’s General, 1975–77; confirmed to the D.C. Cir- ciples. At the outset, it is important to note hearing record a single, two-page amicus rec- cuit, 1990). that the memoranda sought by the Com- ommendation memorandum that Judge In none of these cases did the Department mittee are indisputably within the scope of Easterbrook authored as an Assistant to the of Justice provide to the Committee the the deliberative process, attorney-client, and Solicitor General. The official record of nominees’ appeal, certiorari, or amicus rec- attorney working-product privileges. The Judge Easterbrook’s confirmation hearing ommendations. And in none of these cases Supreme Court has recognized ‘‘the valid contains no references to this document, and did the Committee request that the Depart- need for protection of communications be- based on a comprehensive review of the De- ment do so. tween high Government officials and those partment’s files, we do not believe that the The policy considerations implicated by who advise and assist them in the perform- Department authorized its release in connec- the Committee’s request underscore the ance of their manifold duties.’’ Houchins v. tion with Judge Easterbrook’s nomination. strength of the Department’s position and KQED, 438 U.S. 1, 35 n.27 (1978). Indeed, the Senator Schumer’s possession of this memo- demonstrate that previous Senate Judiciary Court has explained that ‘‘the importance of randum does not suggest that the Depart- Committees have recognized the essential, this confidentiality is too plain to require ment waived applicable privileges and au- long-term interest of the United States in further discussion. Human experience teach- thorized its disclosure in connection with protecting the integrity of such memoranda. es that those who expect public dissemina- Judge Easterbrook’s or any other nomina- The need to ensure the integrity of the proc- tion of their remarks may well temper can- tion. ess by which the Solicitor General makes dor with a concern for appearances and for litigation decisions for the United States is their own interests to the detriment of the The hearing record of Judge Bork’s nomi- extraordinarily important. As the former So- decisionmaking process.’’ Id. (internal nation to the Supreme Court demonstrates licitors General explained, the interest in re- quotation omitted). The deliberative process that the Committee received access to a lim- ceiving honest, candid assessments of pos- privileges’s ultimate purpose is to prevent ited number of documents related to three sible litigation positions, agency interests, injury to the quality of agency decisions by specific subjects of heightened interest to and Supreme Court opinions would be se- allowing government officials freedom to de- the Committee, two of which were related to verely compromised by disclosure in this bate alternative approaches in private. NLRB Judge Bork’s involvement in Watergate-re- context. It is important to add, furthermore, v. Sears, Roebuck & Co., 421 U.S. 132, 151 lated issues and triggered specific concerns that memoranda written by Assistants to (1975). Based on these principles, courts have by the Committee. The vast majority of the Solicitor General present legal argu- long recognized the Executive Branch’s au- memoranda authored or received by Judge ments supporting the litigation position of thority to protect the integrity of docu- Bork when he served as Solicitor General the United States, not their personal views. ments and other materials which would re- were neither sought nor produced. And the These memoranda seek to determine the veal advisory opinions, recommendations limited category of documents that were legal arguments that are appropriate in gov- and deliberations comprising part of a proc- produced to the Committee did not reveal ernment briefs, not the legal or policy pref- ess by which governmental decisions and the internal deliberative recommendations erences of their author. policies are formulated. See In re Sealed Case, or analysis of Assistants to the Solicitor Furthermore, the committee’s need to as- 121 F.3d 729, 737 (D.C. Cir. 1997). General regarding appeal, certiorari, or ami- sess a nominee’s performance, intellect, and As a matter of law and tradition, these cus recommendations in pending cases. integrity can be accommodated in ways privileges can be overcome only when Con- The remaining five nominations cited at other than introducing into the deliberative gress establishes a ‘‘demonstrably critical’’ the hearing similarly do not justify the dis- process of the Office of the Solicitor General. need for the requested information. Senate closure of deliberative material authored by For example, the Committee can review the Select Committee on Presidential Campaign Ac- Mr. Estrada. None of the limited documents nominee’s written briefs and oral arguments, tivities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. disclosed in the hearings for those five nomi- consider the opinions of others who served in 1974) (en banc). It is insufficient for the re- nations involved deliberative memoranda the Office at the same time, and examine the quested material merely to ‘‘have some ar- from the Office of the Solicitor General. The nominee’s written performance reviews. In guable relevance’’ to appropriate Congres- Committee with respect to those five nomi- Mr. Estrada’s case, for example, there is a sional function. Id. at 733. In assessing nations requested specific documents pri- substantial body of information about his whether Congress’ possesses a ‘‘demon- marily related to allegations of misconduct tenure in the Office of the solicitor General. strably critical’’ need for the material in or malfeasance identified by the Committee. Former Solicitor General Seth Waxman, who question, one crucial consideration is wheth- Moreover, as noted above, with respect to

VerDate Dec 13 2002 02:00 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.012 S12PT1 S2262 CONGRESSIONAL RECORD — SENATE February 12, 2003 the nomination of Judge Trott, the Com- written by Judge Easterbrook in connection Committee and confirmation by the full Sen- mittee requested documents wholly unre- with his confirmation hearing. In response to ate. lated to Judge Trott’s service with the De- that claim, as we noted in our letter of Octo- Sincerely, partment. Again, the vast majority of delib- ber 8, 2002, we comprehensively reviewed the JAMIE E. BROWN, erative memoranda authored or received by Department’s files and the public record of Acting Assistant Attorney General. these nominees where never sought or re- Judge Easterbrook’s confirmation hearing Mr. HATCH. Mr. President, I want to ceived by the Committee. In sum, the exist- and we found absolutely no evidence that the make one or two other points, and then ence of a few isolated examples where the Department authorized the release of these Executive Branch on occasion accommo- memoranda in connection with Judge I understand Senator KYL is here and I dated a Committee’s targeted requests for Easterbrook’s nomination. Your most recent hope he can be heard. I ask unanimous very specific information does not in any letter now asserts that the Easterbrook doc- consent that he be recognized after me. way alter the fundamental and long-standing uments ‘‘apparently’’ were provided to the Mr. REID. Objection. principle that memoranda from Office of So- Committee in connection with Judge Bork’s The PRESIDING OFFICER. Objec- licitor General—and deliberative Depart- nomination. However, the public record of tion is heard. ment of Justice materials more broadly— Judge Bork’s confirmation hearings contains Mr. HATCH. All right. Here we are in must remain protected in the confirmation no mention of the Easterbrook memoranda context so as to maintain the integrity of the middle of an unprecedented fili- you reference. As we explained previously, the Executive Branch’s decisionmaking proc- buster. We have heard a lot of argu- your mere possession of these documents ess. ments and many repeated arguments. In conclusion, we emphasize that the De- does not suggest that the Department waived applicable privileges nor authorized We have heard Mr. Estrada ‘‘has not partment of Justice appreciates and pro- answered the Senators’ questions.’’ foundly respects the Judiciary Committee’s their disclosure in connection with either legitimate need to evaluate Mr. Estrada’s nomination. Well, he has. They asked question after qualifications for the federal bench. We You also suggest in your letter that the question at the hearing—one that they again suggest, however, that the information Administration’s decision to disclose legal conducted and they controlled. Any currently available is more than adequate to memoranda from the White House Counsel’s Senator who was not satisfied, and had allow the Committee to determine whether Office in connection with the nomination of additional questions, had the oppor- Mr. Estrada is qualified to be a federal judge. Jeffrey Holmstead to serve as Assistant Ad- tunity to send additional questions. Thank you for considering the Depart- ministrator of the Environmental Protection ment’s views on this matter. Mr. Estrada’s Well, they did. Two Senators—only two Agency serves as precedent for disclosing Mr. of them—sent Mr. Estrada followup nomination for a position on an important Estrada’s highly privileged work product. As federal court of appeals has now been pend- you may be aware, the White House initially questions. Senators DURBIN and KEN- ing for 518 days. There is no disagreement declined to provide all of Mr. Holmstead’s NEDY asked multiple questions. Mr. about the fact that he is a talented, experi- files as requested by the Senate Environ- Estrada answered these, and answered enced and exceptionally well-qualified nomi- ment and Public Works Committee, on the them fully. nee with strong and widespread bipartisan basis of the deliberative process, attorney- Here is what is unfair. If they don’t support. In fact, after an intensive investiga- client and work product privileges. In re- like the answers, as I have said, my tion, the American Bar Association found sponse, the Environment Committee, based Mr. Estrada to be unanimously well-quali- Democratic colleagues have a remedy; on its particularized concerns and allegation they can vote against him. That is fied for a judgeship on the District of Colum- of misconduct regarding one specific subject, bia Circuit. We sincerely hope that the Com- requested a small subset of documents re- their right. If that is what they want mittee and the Senate will approve Mr. lated only to that matter. Because of the to do, that is the proper exercise of Estrada’s nomination before the close of the specificity of the Environment Committee’s their constitutional duty. But to sim- 107th Congress. concerns, the White House permitted the ply deny the Senate a vote is unfair to Sincerely, Committee to review that limited subset of the nominee, unfair to this body, un- DANIEL J. BRYANT, materials, which answered the allegation in Assistant Attorney General. fair to the President, and unfair to a question. This example, if anything, further majority of Senators who want to vote demonstrates the overbreadth and impro- U.S. DEPARTMENT OF JUSTICE, for this man and exercise their con- priety of the current request—a request that OFFICE OF LEGISLATIVE AFFAIRS, some have characterized as a fishing expedi- stitutional duty under article II, sec- Washington, DC, Jan. 23, 2003. tion requesting all documents authored by tion 2. This is an abuse of the debate Hon. CHARLES E. SCHUMER, Mr. Estrada about all subjects during his en- privileges of this body. This is simply U.S. Senate, tire tenure in the Office. an abuse by the minority. It is nothing Washington, DC. DEAR SENATOR SCHUMER: I am responding Finally, we respectfully submit that, de- more than what some would call the to your letter dated January 23, 2003, in spite your view to the contrary, your request tyranny of the minority. It is the first which you once again requested that the De- threatens the proper functioning of the Of- time in the history of this country that partment disclose the confidential and privi- fice of the Solicitor General. All seven living an appeals court nominee has been fili- leged appeal, certiorari and amicus memo- former Solicitors General, including Archi- bustered. It is a doggone shame the randa that Miguel Estrada authored when he bald Cox, Drew Days, Walter Dellinger and first Hispanic ever nominated to the was a career lawyer in the Office of the So- Seth Waxman, have written to the Senate Circuit Court of Appeals of the District licitor General. You continue to insist that Judiciary Committee and explained the de- disclosure of this sensitive material is nec- bilitating impact your request would have on of Columbia happens to be the nominee essary to allow you adequately to address the ability of the Office to represent the here. This is against our constitutional Mr. Estrada’s nomination to the United United States in litigation. The letter—au- duty and against the spirit of what we States Court of Appeals for the District of thored by distinguished lawyers of both par- are elected to do. We are supposed to Columbia Circuit—a nomination that has ties—noted that their ‘‘decisionmaking proc- advise and consent. Consent means been pending for some 624 days. As you ess required the unbridled, open exchange of Senators can vote against or they can know, Mr. Estrada has received a unanimous ideas—an exchange that simply cannot take vote for. It doesn’t mean advise and fil- ‘‘well qualified’’ rating from the American place if attorneys have reason to fear that ibuster. It doesn’t mean advise and ob- Bar Association, the ABA’s highest rating. their private recommendations are not pri- We addressed fully the assertions made in vate at all, but vulnerable to public disclo- struct. your most recent correspondence in our pre- sure.’’ While we respect your right to dis- I will say it again. The Democrats vious letters to you dated June 5, 2002, and agree with these seven former Solicitors have asked their questions and they October 8, 2002 (attached herewith). Our pre- General, we must defer to their considered have gotten their answers. If they vious explanations remain equally applicable judgments about the impact of disclosure don’t like the answers, they can vote today, and we therefore must again respect- based on their collective experience of dec- against the nominee. But don’t con- fully decline your request. As we have ex- ades heading the Office. Thus, we respect- tinue to obstruct. It is simply not fair. plained, the relevant historical, policy and fully adhere to our previous decision to pro- legal considerations implicated by your re- Mr. President, I think any fair ob- tect these highly privileged documents from server who looks at the transcript of quest establish that disclosure of these disclosure. memoranda from the Office of Solicitor Gen- this hearing, and looks at those ques- eral would undermine the integrity of the de- Thank you for considering the Depart- tions and answers, will have to admit cision making process in that Office. Not- ment’s views on this matter. As we have he answered their questions. Admit- noted previously, the public record is more withstanding our previous letters, several tedly, I suspect he did not answer them specific items in your letter merit discus- than adequate for the Committee to evaluate sion. Mr. Estrada’s qualifications to be a Circuit the way they wanted him to. That is, At Mr. Estrada’s hearing, you asserted Judge on the D.C. Circuit. We look forward they could not dig up any dirt on him. that the Department disclosed memoranda to Mr. Estrada’s prompt consideration by the So what are they doing now? Trying to

VerDate Dec 13 2002 02:00 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.014 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2263 see if, through a fishing expedition, RECORD because I presume they already forthright, and highly qualified can- they can find some documents where have. Every question was answered didate for judge. they can. That is offensive. To ask for fully and satisfactorily, as far as I am There was one other criticism I no- confidential, privileged documents concerned. ticed early on, but I have not heard it from the Solicitor General’s Office in I think one of them is especially in- recently, and that is he had no prior ju- spite of the warning of seven former teresting. It used to be there was not a dicial experience. Senator HATCH point- Solicitors General, four of whom are litmus test for judges. When President ed out the literally scores of Federal leading Democrat attorneys who vocif- Reagan was nominating judges, some judges who became a judge when they erously say you should not do that, people on the other side thought Presi- were a lawyer. Not everybody can be that would be very harmful and detri- dent Reagan was asking these nomi- born a judge, you see. First, you have mental to the process. They have ig- nees their opinions on how they might to be a lawyer, and then somebody has nored those recommendations. rule on a case. They said that was a lit- to appoint you judge. So not everybody Any fair observer who looks at these mus test and that would be wrong. has experience as a judge when they questions and answers will have to say They were wrong. He never had such a are asked to be a judge. he answered their questions, maybe not litmus test. But the committee has had Current members of the U.S. Su- the way they wanted him to, but he an- a question in its file ever since—and I preme Court, in fact, five out of the swered them as a deliberative person think even before then—that has been nine members of the DC Circuit Court would, and as most other nominees asked of every single nominee, and this of Appeals, the court to which Mr. have answered the same type of ques- is one of the questions to which Miguel Estrada is being nominated, were not tions. He answered them in a very in- Estrada responded. judges before they were nominated. telligent, worthwhile fashion. Let me read the question and his an- Mr. Estrada is a Hispanic lawyer. Are I yield the floor. swer. The question is: Has anyone in- we going to create a new bar for minor- The PRESIDING OFFICER (Mrs. volved in the process of selecting you ity lawyers? You have to be a judge be- DOLE). The Senator from Arizona. as a judicial nominee discussed with fore you can be elevated to the next Mr. KYL. I thank the Chair. you any specific case, legal issue, or level of the court? Not very many mi- Madam President, I wish to expand question in a manner that could rea- nority lawyers have been appointed or on what the Senator from Utah was sonably be interpreted as asking you nominated as judges. President Bush is just talking about. To put this in con- how you would rule on such case, issue, nominating a lot of them, that is true, but they are not judges now; they are text, I remind my colleagues we are or question? If so, please explain fully. talking about the nomination of a very Answer: No. lawyers. Are we going to create a bar distinguished lawyer, Miguel Estrada, Mr. President, that is just about all that says if you are not already a by President Bush to serve on the DC he got in the hearing by the members judge, you cannot become a judge in Circuit Court of Appeals. of the other side of the aisle in the Ju- the next level of the court? I do not want to see us setting a glass There have been two primary objec- diciary Committee on how he would ceiling for minorities just because not tions recently raised by Members of rule and what he felt about certain spe- as many of them have gotten to be the other side of the aisle to this nomi- cific cases, legal issues, or questions. judges. I think that is a very per- nation. The first includes a recitation Specific cases were mentioned by nicious argument made with respect to of a long list of nominees of previous name. Specific hypothetical questions Miguel Estrada. Five of the nine mem- Presidents—I presume primarily Presi- were asked of him. Apparently, it is bers of the court were not judges before dent Clinton—who allegedly were not not OK for the President to find out they were nominated to serve. Why considered by the Republicans. I do not how a candidate might feel about an does it matter with respect to Miguel have the information. It has not been issue, but Senators, by golly, we have Estrada? I did not hear arguments given to me, so I cannot vouch for its the right and, in fact, it is so impor- made from the other side with respect authenticity. But if that is the basis tant to us, or to some of the body, that to those nominees, so why with regard for denying a vote to Mr. Estrada, then we are going to deny a nominee a vote to Miguel Estrada? It is not right. it is nothing more than retribution or even; we are going to deny the other I quoted yesterday, when the Senator spite. Senators to have the opportunity to from Vermont was on the floor, his I cannot believe that is the motiva- vote yes or no if we did not like the own words, so I feel it appropriate to tion of any of my colleagues on the way he answered one of those ques- mention them again. He himself, the other side. I refuse to believe that. So tions. former chairman, now ranking mem- of what relevance is it that in previous Senator HATCH is right; it is not that ber, of the Judiciary Committee said Congresses some other President’s he did not answer the questions. It is what many of the other leaders on the nominee was or was not given a vote? that some people did not like his an- other side of the aisle have said: That What is the relevance to this indi- swers to the questions. If so, vote no, filibustering a judge is wrong. And the vidual, Miguel Estrada, who, by every- but do not deny everyone else the op- Senator from Vermont said he would one’s admission, is an extraordinarily portunity to vote, and that is what is oppose—strongly oppose, I believe were well qualified lawyer? It has no rel- going on here. It is called a filibuster. his words—any filibuster of a judge re- evance at all. Our friends on the Democratic side gardless of whether he supported the The other line of thought is that he have acknowledged that is exactly nominee. You can always vote yes or has not answered questions, and that is what they are engaged in: a filibuster no, but you should at least vote to in- what Senator HATCH was just talking of a judge. That is fundamentally voke cloture. about. He answered every question that wrong. It destroys the comity between Madam President, I will give you an was asked of him. He was in a hearing the three branches of Government. It example. Twice I voted to invoke clo- from 10:06 a.m. until 5:25 p.m. There seeks to modify the majority vote con- ture so we could come to a vote on two were other candidates on the panel firmation process to an extra-majority of President Clinton’s nominees. I sup- with him, but hardly any questions requirement. It is going to poison the ported one; I opposed the other. That is were asked of them. Almost all of the consideration of nominees of every our right. I have good reasons for op- questions were asked of Miguel President from here on, Democrat or posing the judge I opposed, but I be- Estrada. He answered them all, until Republican. This is one of those issues lieved my colleagues needed or had the there were not any more to be asked. which, when once let out, you can right to vote on both of the candidates, Then there was the questionnaire. never bring back; the horse will have and so I voted for cloture in both cases. Senator HATCH noted the questions been out of the barn. That is the same point the Senator that have been asked by Senators in Never in the history of the Senate from Vermont made earlier: That we writing, in addition to the others. has a partisan filibuster succeeded in should vote for cloture and have an up- There was the questionnaire from the preventing the confirmation of a judge. or-down vote. Judiciary Committee with 25 pages of That is what is at stake here. Of I will later bring to the floor the lit- answers. They are all right here. I will course, also at stake is the confirma- erally scores of statements by my col- not suggest they be printed in the tion of a very decent, very fine, very leagues on the other side of the aisle

VerDate Dec 13 2002 02:00 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.066 S12PT1 S2264 CONGRESSIONAL RECORD — SENATE February 12, 2003 over the years who have made the Would that be right? No, it really That is the office in which Miguel point over and over that filibustering a would not. Much as I would like to see Estrada was working. judge is wrong, that they would oppose what kind of advice they are getting, If we ever get to the point where the it regardless of how they felt about the that would not be right. decisions made by the Solicitor Gen- nominee, and that they would vote to What about someday when very high- eral, based upon the advice from the invoke cloture. ly qualified staff of some of our col- lawyers that work for him, do not rep- What has changed with Miguel leagues on the other side of the aisle resent the best objective advice, do not Estrada? Why is he different? Why all are going to be nominated for the represent the best truth and the proper of a sudden has their strongly held court? That happens actually fairly reading of the law as they can bring opinion, which was expressed before, frequently. Staff of the Judiciary Com- forth but, rather, now must take into changed? It is not that my colleagues mittee have been nominated to various consideration political considerations are not consistent. Obviously, they courts. In fact, one of them serves no that arise from the fact that these want to be consistent. So it must be less than on the U.S. Supreme Court. memos and this advice would be dis- something else. It must be that in this How about asking for the memos that closed publicly, the Solicitor General nominee they see something very bad. he sent to his boss advising his boss on is no longer going to be deemed the They must see a reason why we should various issues prior to his confirma- ‘‘tenth Justice.’’ not even be allowed to vote on the tion? What would we get there? I think The Government is no longer going nominee. It is so bad with Miguel we would get pushed back by Members to be solicited for its advice to the Estrada that they are not willing to saying, wait a minute, I was asking for Court on these important matters be- put it to a vote. They have to prevent his personal advice. I was asking for cause the consideration would be, well, the vote from occurring. his judgment. I was not asking him for what did they have to consider politi- What is it about Miguel Estrada that what he necessarily believed person- cally since the whole world is going to is so dangerous or so bad? If my col- ally, and what he told me cannot be read these memos and is going to know leagues say it is not about Miguel taken as something he personally be- what the advice was that was given. It Estrada, it is the process, he would not lieved but rather what he thought was does not work that way. It cannot. answer the questions, Senator HATCH the best advice for me on this par- That is why it would be wrong. and I have already responded to that. ticular issue. That is why our employ- Many of my colleagues on the other He answered every question he was ees are protected from having to dis- side know that it would be wrong. They asked. Any more questions? close all of the information they give know they are never going to get the As Senator HATCH said, the problem us as their best judgment on different memos. They know they should not get is they do not necessarily like all the issues, because we are not asking them the memoranda. But because they can answers. That is their right. We do not necessarily what they believe in their ask for it knowing that it is not going all agree with each other. That is why head or their heart. We are asking to come, they have an excuse to be able we have votes and the majority wins. them for what the law is on this, what to say, gee, we do not have all the in- I get back to the question, Why is it their recommendation is as to what I formation we need. different with Miguel Estrada? There should do on this, knowing my views, I do not think that is the motivation were 30 questions asked in the hearing not theirs. of any of my colleagues on the other that was held, and he answered them So to ask a young lawyer in the So- side of the aisle because I think they all. Maybe they did not like the an- licitor General’s Office to disclose all realize this is not something that his- swers. So vote no. But why would the of the advice that he gave his bosses is torically has been requested and should other side deny the right of the Sen- nothing more than an unprecedented be requested. ators to cast a vote on the nominee? fishing expedition. At the end of the day, the American I ask my colleagues on the other side So when you parse out all of the dif- people are going to look at this and of the aisle, is this the precedent that ferent objections to Miguel Estrada, it wonder what is going on, what is this they want to create? When they seek all boils down to abstract process and, all about. Why will a minority of the to have one of their staff members from some of the outside groups any- Senate not agree to let the others nominated to a high court, do they ex- way, retribution. It has nothing to do vote? Is it because the candidate is not pect to see a request for all of the with his qualifications. It seems to me well qualified? No. This candidate had memos that this staff person gave to that common decency and fairness the highest rating that the American them because they just might be useful would cause each one of the 100 of us to Bar Association can give a candidate. in opposing the nomination? Maybe he look deep within ourselves and say Is it that he does not have any expe- said something that we could pick maybe we vote yes, maybe we vote no rience? No. He is one of the most expe- apart somehow or another. on his nomination, but we should not rienced lawyers in the country. In fact, That is what is going on, and that is deny him a vote. That is partisanship he has argued at least 15 cases to the why four Democratic Solicitors Gen- and negativity and obstructionism that U.S. Supreme Court. I practiced law for eral and three Republican Solicitors is not worthy of the Senate. So we 20 years and only went to the Supreme General, those who are living today, all should not do that. Court three times, which is pretty wrote a letter unanimously saying this We should agree to let this nominee good. Most lawyers never get there. should not be done and all of them be voted on, cast the vote we believe is Fifteen times he has argued cases. would have recommended against it. appropriate, and then move on with the He answered every question that was I happened to work for one of the So- Nation’s business. At a time when we asked of him. He has been strongly rec- licitors General who is no longer alive. may well be on the brink of engaging ommended by members of the bench One of the things he told me over and in military conflict, and the President and bar all over the country, Demo- over again was that this is an office has a great many issues on his agenda crats and Republicans, including mem- considered by some to be the tenth to deal with in that regard, I think it bers of the former Democratic adminis- Justice on the Court. The Solicitor is unseemly for the Senate to be hold- tration. General is literally almost a member of ing up, filibustering, one of his highly There has been a question raised the Court in a sense because of the ob- qualified nominees to the DC Circuit about when he was an Assistant Solic- jectivity and forthrightness with which Court of Appeals. itor General and was providing advice he or she represents the views of the As the Senator from Nevada said ear- to his seniors, should his confidential Government before the Court. lier today, everything has been said, it memos be released to the public? For The Court often solicits a brief from is just that everybody has not said it. the first time, our colleagues on the the Solicitor General saying, we have Fine. Come on down and say it so we other side say, oh, yes, we want to see heard from both sides in this case but can get on with the vote, confirm all of that. we would like to hear from the lawyer Judge Miguel Estrada, and move on Now, I would kind of like to see the for the Government, the Solicitor Gen- with the Nation’s business. staff memos going to the Senators on eral, who is supposed to be a very hon- The PRESIDING OFFICER. The the other side. Would that be fair? est, forthright, and objective person. Democratic whip.

VerDate Dec 13 2002 02:00 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.068 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2265 Mr. REID. Madam President, if this ating a nominee to the Senate—not to This man, Fred Fielding, was the per- were a matter of retribution, it would the American Bar Association. In addi- son who gave Estrada the recommenda- have started a long time ago. tion, if you look at the ABA process, it tion while he was doing this. He was Senator DASCHLE came to the floor is far from perfect. The ABA delegates forming a committee he calls Com- after we took the majority in the Sen- the review of potential nominees to one mittee for Justice, with Boyden Gray, ate and said that as it related to judi- individual member of the ABA com- another partisan Republican, and the cial nominations this was not payback mittee for each circuit. In effect, these purpose was to pack the bench with time; we were not going to treat the nominations that the President gives right-wing conservative judges. They then-minority, the Republicans, as we us, no matter what party, go to one also raised money so that if someone were treated when we were in the mi- lawyer in the ABA, and that lawyer disagreed with them, they would run nority. To show that we were true to makes a recommendation. The ABA ads and intimidate them into agreeing our word, we approved 100 nominees delegates that review to one individual with them. It does call into question during the short time we had the ma- who nominates each nominee and ap- whether someone so heavily steeped in jority of the Senate. points to the ABA a recommended rat- partisan activities can objectively and I read into the RECORD earlier today ing of that nominee’s qualifications. impartially evaluate the qualifications the scores of judicial nominees who did In this instance, a man by the name of the nominees of the second highest not receive hearings, who waited and of Fred Fielding was in charge of evalu- court in the land. never got a vote on their nominations. ating potential nominees for the DC The Senate is not privy to Mr. They are out practicing law someplace. Circuit at the time Miguel Estrada was Estrada’s ABA report, and we have no This is not retribution. under consideration by the White way to evaluate how Mr. Fielding ar- Madam President, once in a while I House. In this role, Mr. Fielding was in rived at his recommendation, but I try to come up with something that charge of evaluating Mr. Estrada’s think at the very least his partisan ac- has not been said on the Senate floor qualification and was in charge of rec- tivities at the time he was charged during the last several days. My friend ommending a rating to the ABA. He with independently evaluating Mr. from Arizona said: Everything has been recommended well-qualified. The ABA Estrada create the appearance of a con- said, but not everyone has said it. I places heavy reliance upon the rec- flict of interest and should embarrass have come up with something that has ommendation of people such as Mr. the American Bar Association. not been said, in response to what my Fielding and approved Fielding’s rec- People expect the ABA reviews to be friend from Utah and others have said ommendation unanimously. conducted by independent, nonpartisan about this ABA rating that Estrada There have been some concerns about individuals, not by partisans who are has. The Republicans thought so much how this ABA process works and how it the President’s foot soldiers in the ef- of the ABA rating that when they had will work in this case. In this case, Mr. fort to pack the Federal courts. The the majority, they decided to do away Fielding, at the same time he was eval- circumstances of Estrada’s ABA eval- with it. But now they have decided it is uating DC Circuit Court nominees such uation are very serious—very serious. a good thing. as Miguel Estrada, continued to be These circumstances underscore the It is true, Estrada received a well- heavily involved in partisan politics. need for the Senate to independently qualified rating from the American Bar He was counsel to the Republican Na- evaluate Mr. Estrada’s record. Association. I think everyone acknowl- tional Committee for the Republican It would be somewhat shallow for edges that the ABA should not com- National Convention of 2000 and served people to say that this man, Fielding, pletely supplant the Senate’s role. on the Bush-Cheney transition team in who evaluated this judge to be, was fair Those on the other side have indicated 2000. At the same time he was serving and independent. I said the ABA should the ABA rating of Mr. Estrada should on the ABA committee that evaluated be embarrassed. What we are talking be afforded great weight. I think it DC nominees, Mr. Fielding cofounded, about here is Estrada. This has made should be afforded some weight. Some with C. Boyden Gray, something called an independent review impossible. I am have implied it should take the ABA’s the Committee for Justice. not willing to delegate my constitu- word for it when it comes to Estrada We all know C. Boyden Gray has been tional duty to Mr. Fielding, the co- and simply limit our role in reviewing a long-time, very partisan Republican. founder of a group designed to attack his record because he got a well-quali- There is nothing wrong with that. But Members of this body who do not agree fied rating from the ABA. that is a fact of life. This organization The American Bar Association rating was founded to help the White House with him. is a useful tool for the Senate. But that with the public relations effort to pack Earlier today, I had a chart here that is all it is, a tool. It is not a replace- the Federal bench with extreme judges. outlined Mr. Estrada’s assistance to ment for the Senate exercising its own They also founded it to run ads to in- this body so we could come up with an- independent judgment regarding a timidate Democrats from exercising swers to Judiciary Committee ques- nominee’s suitability for the second their constitutional duty to scrutinize tions. Some people called in and said highest court in the land. There are the President’s judicial nominees. Ads the chart was small and they could not good reasons for that. The best reason are now run to that effect, saying Sen- read it. I want to make sure they can is the Constitution, Mr. President. ate Democrats are really bad. The ads read this chart. It is titled ‘‘Miguel I am sorry, I referred to the Pre- are paid for by the Committee for Jus- Estrada’s answers to the Judiciary siding Officer as a ‘‘Mister.’’ I have the tice, which is this front that has been Committee’s questions.’’ Here are his greatest respect for the Senator from established by Fred Fielding and answers. North Carolina, having one of the most Boyden Gray. Their ads label Members There weren’t any. Those from the distinguished records of any Senator of this Chamber as ‘‘liberal extremists’’ other side can come here and talk and who has come to the Senate, having and ‘‘anti-Hispanic’’ even though the show us visual aids about all the an- served in so many different Cabinet po- Hispanic Caucus has said Miguel swers given to this committee that fill sitions that they are difficult to name; Estrada should not be placed in the DC volumes when, in fact, as Senator DUR- and, in addition, the highly visible role Circuit. BIN so well described, his answers were the Senator from North Carolina has These ads run by this organization evasive. held in different administrations. She that is led by Fielding and Gray are Mr. Estrada, give us the name of a Su- has been head of one of the greatest or- unfortunate. It is a right that Fielding preme Court Justice that you would like to ganizations in the history of the world, and Gray have to engage in these ac- be. the American Red Cross. I know who is tivities to mislead the American peo- I don’t have an opinion. presiding, and I was just reading from ple. They have that right. But it does Give us a case you disagree with. my notes and apologize for referring to call into question whether someone so I don’t have an opinion. the Senator as ‘‘Mr. President.’’ heavily steeped in partisan activities These were his answers to the Judici- The best reason we do not agree with can objectively and impartially evalu- ary Committee’s questions. the majority is the Constitution. The ate nominees’ qualifications to the sec- I had some other charts here, and Constitution assigns the role of evalu- ond highest court in the land. they said the writing was too small.

VerDate Dec 13 2002 02:41 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.077 S12PT1 S2266 CONGRESSIONAL RECORD — SENATE February 12, 2003 Here is one about Miguel Estrada’s him answer questions? Or he could do House of Representatives said is a real- legal memoranda. Here is the informa- something that is done a lot around ly bad idea. tion we have regarding Miguel here: File cloture. See if he can stop We can talk about a lot of things. Estrada’s legal memoranda. The writ- the debate. This is the Senate rules. We do not ing this morning was too small. But As I have said before, we are in har- have to talk about Miguel Estrada. I here is what it says: mony over here. We believe what we said to everyone yesterday and I have Miguel Estrada’s legal memoranda. are doing is principled and right. No said it today, everything has been said matter how many times the other side Here is what we have: Nothing. about Miguel Estrada, for and against My friend from Arizona said this says there is no problem, all they have him. But not everyone has said it. So to do is see what is going on here. would be chilling; why would we want we can be here, we can continue re- There is a problem. If they want to re- to set a precedent like this? hashing Miguel Estrada. solve that problem, all the cards are in It has been set in the past. We have But the President said—I think I am their hands and they can decide how had Chief Justice Rehnquist, for begin- quoting almost verbatim when he was they want to handle it. Otherwise, if ners. When he came before this body told there is a filibuster—the game is they want us to stay here, we will stay and we wanted to look at a memo, we over. in quorum calls or we will talk. got it. I don’t have all the names here, I don’t know what that means. That I have suggested to some of the Sen- is a term he used a lot. He said the but we know Civiletti and Roberts and ators here if we get past the morning others—it has happened on other occa- game is over in Iraq. The game is over hour when we have to be fairly ger- on Estrada. This is not a game; this is sions. This is no dangerous, misleading, mane to what is being talked about, I scary precedent. something we are doing based upon think it would be an excellent time, as principle. We have, by virtue of the Constitu- the Senator from West Virginia did tion of the United States, an obligation I think, for the good of the country, yesterday, I think we should have a lit- unless they are going to give us the in- to make sure that we advise and con- tle discussion about what is going on in sent to the nomination of the Presi- formation we want, this nomination the world. We are very close to going should be pulled. Then we can get on to dent. Article II, section 2, says that is to war. That is what I am told. I think our obligation, and that is what we are other things that I think are very it would be very important to the peo- pressing that we should get on to. doing. We have an obligation that is in ple of Nevada to have a discussion the depths of the Constitution to do I want to make sure I was right. I about that. I think we are going to win want to make sure I said this right. just that. the war, but are we going to win the If they, the majority, believe this peace in Iraq? That should be a subject. Senate Judiciary Committee Chairman man is as good as they say he is, let us Orrin Hatch . . . scoffed the Democrats’ de- If they want to keep us here all week- mand for more information about Estrada. share in the information, let us look at end, we could talk about that at some his legal memoranda, and let us also length. I said the President said: The game is have him answer questions. Mr. BYRD. Madam President, will over. You would think we would want to the Senator yield? Senator HATCH said that. He is know, as part of our constitutional du- Mr. REID. I am happy to yield for a quoting what the President said on ties, what a person’s legal philosophy question without losing the floor. other things. is. As the Senator from Illinois, Mr. Mr. BYRD. Are we likely to be in ses- That game is over. DURBIN, and I this morning indicated in sion this weekend? The game is over—this is not a game. an exchange, Mr. DURBIN, the distin- Mr. REID. That is a decision they This is not something that was arrived guished Senator from Illinois, the sen- have to make. I am just reading from at in a short period of time. In fact, the ior Senator from Illinois, he said to one of the publications. One of the Re- Democratic leader waited a number of Miguel Estrada: Give us the name of a publican leaders said they are really days before the decision was made, case in the Supreme Court that you going to get us on this. They are not after he conferred literally with every disagreed with. filing cloture, but what they are going Democratic Senator about how he felt As Senator DURBIN and I said: You to do is talk all night tonight and all about this. This is not an arbitrary de- know, we have been to law school. I night tomorrow night, to get a vote on cision made by the Democratic leader. will bet it is not too hard of a press to the Estrada nomination by the week- This is a decision made by Senator come up with a case about which you end. DASCHLE after having conferred with think the U.S. Supreme Court was Let me just say to everyone within every Democratic Senator, on more the sound of my voice, that will not get wrong. How about Dred Scott? Maybe than one occasion in most instances. them a vote on Estrada. We have told Dred Scott was wrong. That is what the body over here desired Not him. He wouldn’t tell us. No. them what we believe is appropriate. People may disagree with us. This is to do, and that is what we are doing. I have no opinion on that. the Senate. We have certain rules. We We hope everyone understands this is Miguel Estrada’s legal philosophy— are not dealing from under the deck. not a game. We are very serious about that is it. And because that is it, this We are not holding any cards up our what we are doing. We believe what we blank, we are going to make a deci- sleeves. We have said openly what we are doing is principled. sion? No. are doing. We are not going to allow a I suggest the absence of a quorum. The majority leader is the one here vote on this until we get the informa- The PRESIDING OFFICER. The who has to make a decision. He can go tion we want. So it is up to them. If clerk will call the roll. on like we are today, tonight, tomor- they want to threaten us, we could The legislative clerk proceeded to row. In fact, I read in a publication also—we could talk about the war, as call the roll. here that one of the Republican leaders the distinguished Senator from West Mr. BYRD. Madam President, I ask says: Virginia did yesterday. unanimous consent that the order for If [Democrats] want to stay through the I think it is also important to think the quorum call be rescinded. weekend, we’ll stay through the weekend. about this economic plan that has been The PRESIDING OFFICER. Without Boy, is that a threat that just chills suggested, the one the President has objection, it is so ordered. me. We may have to work here over the put forward that the Chairman of the TRIBUTE TO JOE MEADOWS weekend? That would be terrible. Is Federal Reserve says is not a good Mr. BYRD. Madam President, this that supposed to take away our con- plan. The chairman of the Ways and past Saturday my longtime, good stitutional duties, because they are Means Committee in the House says it friend, and former staff member, Joe going to make us work? I work wheth- is not a good plan. We could talk and Meadows, passed away. er I work here or go home. elaborate on how some of the Repub- Joe Meadows was a dedicated, hard- The leader has to make a choice: Are licans feel about their own plan. That working, conscientious, sincere, and they going to pull this nomination or would take a little bit of time. loyal individual. As the mail clerk in do they think enough of this man to We could talk about the President’s my office in the Hart Building, he man- give us his legal memoranda and have Medicare fix, which the Speaker of the aged the mailroom for me. He did his

VerDate Dec 13 2002 02:00 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.080 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2267 job effectively and efficiently. And ev- But Joe Meadows could do anything not had a happier moment in a long eryone else on the staff liked him. that Arthur Smith could do, and bet- time. And I very much appreciate the One couldn’t help but like Joe Mead- ter. stories he is telling. I was going to say, ows. From time to time, when I went The Grand Ole Opry, that is all we I guess we all ought to take this up, be- into his section of the office, I would had in those days. On Saturday nights cause 65 years of marriage to Erma— find Joe Meadows with a handful of pa- we would square dance and listen to and we all hope and pray she is in good pers, letters, correspondence, and files the Grand Ole Opry. There was the health again; and I hope she is—is in one hand. And with his glasses down Fruit Jar Drinkers. That was kind of a something we should all pay very good over his nose, he would look up over lousy band. I probably shouldn’t say attention to. his glasses. that. But I did not think as much of Now, I don’t know, these days, if the He was a wonderful man. He rarely the Fruit Jar Drinkers as I did the young ladies will just accept bubble talked about it, this quiet, soft-spoken, Dixieliners, by any means. And Roy gum. You might have to do a little hard-working, unassuming man. He Acuff used to sing ‘‘That Great Speck- more than that, maybe a whole basket was also one of the best country fiddle led Bird’’ Saturday nights. Saturday of candy or something. But it is good players in the United States. He was a nights, 1934. for us to know. bluegrass musician, born in a small I graduated from high school in 1934. I did not want to interrupt my col- coal town in southern West Virginia, I liked a pretty, pretty girl, too. She league. I just, in terms of the sched- on the last day of 1934. was not in my class. She was in the uling, ask if it might be all right to ask Joe never learned to read a note of next class behind me, and she was the unanimous consent that after the Sen- music. daughter of a coal miner. And that coal ator from West Virginia is finished I be Does the distinguished Senator from miner played a fiddle. His name was recognized for the time that I might New York have memories concerning Fred James. need. the year 1934? I took a liking to that daughter of The PRESIDING OFFICER. Is there Mr. SCHUMER. Madam President, I the coal miner. And I tell you, you objection? appreciate the Senator yielding. I say young ladies, and young men as well, Without objection, it is so ordered. to the Senator, my memories are those who are pages here, I tell you how I Mr. SCHUMER. Madam President, if my parents told me. courted my girl, my sweetheart, how I I may continue, I try to remember Mr. BYRD. Well, the Senator, I take won her hand in marriage. great speeches. One of the best speech- it, was not around in 1934? There was another boy in my class at es I ever heard was made by our col- Mr. SCHUMER. I was not. Mark Twain High School in 1934. His league from West Virginia when he Mr. BYRD. OK. Well, I was a high came to the floor, it must have been school senior in 1934. I graduated that name was Julius Takach. His father had a grocery store at Ury, what we about a year and a half ago, and year. And we were hearing talk, in talked, with as much love as he has for those days, about a gadget that would called Cooktown, about 3 miles south of Stotesbury where I lived. And Julius his employee who has passed and al- allow one to see a person as that per- most as much love as for his wife, son spoke or would allow one to see a Takach would, every morning, come to school with his pockets filled with that about the beauties of coming to West person who played the violin as the Virginia on a vacation. It was one of violin was being played. That was a few candy and chewing gum, bubble gum, and so on, from his father’s store. the finest, nicest speeches I ever heard. years right after the invention of the I will never forget it, and I think this television. Television was invented in Now, I tell you, I made it my busi- ness to be the first to greet Julius at one is going to be just as memorable. I 1926. And so I am talking about 1934, look forward to hearing my friend con- just 8 years after television was in- the schoolhouse door upon his arrival every day because he would give me tinue. I thank him for his courtesy. vented. Eight years after television Mr. BYRD. Madam President, I was invented, 1934. some of that candy and chewing gum. I tell you, it was something to be thank the distinguished senior Senator Oh, we heard about this gadget, as I from New York for his observations. I say. It was coming and would be on the able to present your girl, your sweet- heart, a piece of bubble gum. And I am very grateful to him. market in a few years. My, what a Like many lads in southern West Vir- never let her know that I did not buy change that made. 1934; well, the last ginia, including myself, Joe Meadows that, I did not purchase that gum or day of 1934, Joe Meadows was born. He grew up listening to the Grand Ole candy. I did not let her know it was never learned to read a sheet of music, Opry on radio—that was back in the given to me, but it was given to me by but he could really play it. He could days of the Great Depression—as well make that fiddle cry. He could make it Julius Takach. as ‘‘Farm and Fun Time’’ and other I would meet her when the classes scream. He did have neighbors and a fa- radio programs that featured country changed, and I would give her that ther who played the fiddle. and bluegrass music. And Joe Meadows candy and chewing gum. Boy, what a He had an extraordinary gift for absorbed it all. His ear was fixed on hit I thought I was, giving that pretty music: Joe Meadows from the hills of and naturally attuned to the fiddle southern West Virginia. He is one of girl that candy and chewing gum. Well, now, 65 years and almost 9 playing. Joe listened. Joe learned. And the finest bluegrass musicians I ever later, Joe performed what he had months after I married that pretty heard. Like many lads in southern heard. At the age of 16, Joe Meadows girl, I am here to tell these young men West Virginia, including myself, Joe began performing with Melvin and Ray, who are pages, that is the way you Meadows grew up listening to the the Goins Brothers, and from there he court your girl, with another boy’s Grand Ole Opry on the radio. The went on to tour with and recorded with Grand Ole Opry, I can remember the bubble gum. Mr. SCHUMER. Will my friend and the greatest names in country and times when that was all we had to lis- leader from West Virginia yield? bluegrass music including Jim and ten to on Saturday night—the Grand Mr. BYRD. Yes. Jesse, the Stanley Brothers, and the Ole Opry. Will the CONGRESSIONAL RECORD legendary Bill Monroe and his Blue Yes, I can remember the Solemn Old please note that there was laughter. Grass Boys. Judge and Deford Bailey. Deford Bailey The PRESIDING OFFICER. The Sen- Joe Meadows’ musical career in- played that harmonica. Oh, he could ator from New York. cluded 25 years on the road as a profes- make that harmonica scream. He could Mr. BYRD. Would the reporter kindly sional fiddle player and a 7-year run at make that harmonica play ‘‘Freight note there was laughter again in the the Grand Ole Opry. He had toured Eu- Train Blues,’’ Deford Bailey. And there CONGRESSIONAL RECORD. We have to rope four times and Japan once where was Sam and Kirk McGee. There was make that CONGRESSIONAL RECORD he was incredibly well received. Before Arthur Smith and His Dixieliners: come alive. I stopped playing the fiddle, Joe Mead- ‘‘Going on down that Dixie line, walk- Mr. SCHUMER. My colleague from ows and I would sometimes sit down on ing in my sleep’’—Arthur Smith and West Virginia, if he might yield—— weekends and play our fiddles together. His Dixieliners. He played ‘‘The Mock- Mr. BYRD. Yes. We usually taped our sessions, and ingbird.’’ He could make that mocking- Mr. SCHUMER. Is making everything then we listened to our recordings to- bird sing on that violin. come alive in this Chamber. We have gether to see how we could improve our

VerDate Dec 13 2002 02:10 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.083 S12PT1 S2268 CONGRESSIONAL RECORD — SENATE February 12, 2003 playing. Well, he couldn’t improve his We stand passively mute in the Sen- it our way, we will just brush you to playing much, but I had plenty of room ate today, paralyzed by our own uncer- the side. to improve my own. I always hoped to tainty, seemingly stunned by the sheer Do we fail to think about a possible be as smooth in handling that bow, turmoil of events. Only on the editorial moment down the road, a bit further that fiddle bow as Joe was. He had pages of some of our newspapers is on, when we may wish to have Ger- complete control of that fiddle bow. I there much substantive discussion con- many and France working with us and don’t think I ever got there, but he cerning the prudence or the impru- thinking with us, standing with us, be- never stopped trying to help me. dence of engaging in this particular cause there is a larger specter, at least Joe Meadows was not only naturally war. I can imagine hearing the walls of in my mind, looming behind the spec- endowed with a strong and supple bow this Chamber ring just before the great ter of Saddam Hussein and Iraq. There arm, the good Lord blessed him with a war between the States, a war that looms a larger specter, that of North great pair of fiddler hands. tore this Nation asunder and out of Korea, which has one or two nuclear I never have had the pleasure to ob- which the great State of West Virginia weapons now, and others within reach serve anyone whom I liked to listen to was born. within a few weeks. So there are huge better than I liked Joe Meadows. He But today we hear nothing, almost cracks, I say, emerging in our time- had nimble, quick fingers, and he used nothing, by way of debate. This is no honored alliances, and U.S. intentions them beautifully. small conflagration that we con- are suddenly subject to damaging The bluegrass and mountain music template. It is not going to be a video worldwide speculation. and old-time fiddling world has lost a game. It may last a day or 6 days. God Anti-Americanism based on mistrust, great musician. I have lost a good misinformation, suspicion, and alarm- friend. West Virginia has lost a good created Earth, and man, the stars, the planets, and the Moon in 6 days. This ing rhetoric from U.S. leaders is frac- and gracious son. turing the once solid alliance against My wife Erma and I extend our deep- war may last 6 days. It may last 6 weeks. It could last longer. This is no global terrorism which existed after est condolences to Joe Meadows’ fam- September 11, 2001. ily and to his many friends. small conflagration that we con- template. This is no simple attempt to Here at home, people are warned of Let fate do her worst. imminent terrorist attacks, with little There are relics of joy, defang a villain. No, this coming bat- tle, if it materializes, represents a guidance as to when or where such at- Bright dreams of the past tacks might occur. Family members turning point in U.S. foreign policy and That she cannot destroy. are being called to active duty, with no possibly a turning point in the recent They come in the nighttime idea of the duration of their stay away history of the world. Of sorrow and care, from their hearthside, away from their And bring back the features This Nation is about to embark upon That joy used to wear. the first test of a revolutionary doc- homes, away from their loved ones, with no idea of the duration of their Long, long be my heart trine applied in an extraordinary way, With such memories filled, at an unfortunate time—the doctrine stay or what horrors they may have to Like the vase in which roses of preemption, no small matter—the face, perhaps in the near future. Com- munities are being left with less than Have once been distilled. idea that the United States or any adequate police and fire protection, You may break, you may shatter other nation can legitimately attack a while we are being told that a terrorist The vase, if you will, nation that is not imminently threat- attack may be imminent. What about But the scent of the roses ening but which may be threatening in Will hang, ’round it still. those communities like little Sophia, the future. ON THE BRINK OF WAR The idea that the United States may WV? Mr. DURBIN. Will the Senator yield Mr. BYRD. Madam President, to con- attack a sovereign government because template war is to think about the for a question? of a dislike for a particular regime is a Mr. BYRD. Yes, I am happy to yield. most horrible of human experience. On radical, new twist on the traditional this February day, as this Nation Mr. DURBIN. I am happy the Senator idea of self-defense. It appears to be in stands at the brink of battle, every has taken the floor today. We have contravention of international law and American on some level must be con- spent most of our time discussing other the U.N. Charter. And it is being tested templating the horrors of war. matters. But this is a critically impor- My wife says to me at night: Do you at a time of worldwide terrorism, mak- tant matter in West Virginia and Illi- think we ought to get some of those ing many countries around the globe nois. large bottles, the large jugs, and fill wonder if they will soon be on our hit I ask the Senator, as a matter of them with water? She says: Go up to list, or some other nation’s hit list. record, if he would kindly recount, the attic and see if we don’t have two High-level administration figures re- since September 11, the efforts he has or three there. I believe we have two or cently refused to take nuclear weapons personally made, as well as speaking three there. off the table when discussing a possible on behalf of this side of the aisle in the And so I went up to the attic last attack on Iraq. What could be more de- caucus, to try to bring together the evening and came back to report to her stabilizing? What could be more world necessary resources and funds so that that, no, we didn’t have any large jugs shattering? What could be more future we can be prepared to deal with acts of of water, but we had some small ones, shattering? What could be more unwise terrorism against the United States. perhaps some gallon jugs filled with than this kind of uncertainty, particu- We were just alerted this weekend that water. And she talked about buying up larly in a world where globalism has we were on something called the or- a few things, groceries and canned tied the vital economic and security in- ange alert. The Senator noted that his goods to put away. terests of so many nations so closely wife asked what does this mean in I would suspect that kind of con- together? terms of water and protecting our fam- versation is going on in many towns There are huge cracks emerging in ilies and our houses. across this great, broad land of ours. our time-honored alliances. One won- Would the Senator be kind enough to And yet this Chamber is for the most ders what is going to happen, and about tell us for the record, as we reflect on part ominously, dreadfully silent. You what is happening to the United Na- whether we are prepared to deal with can hear a pin drop. Listen. You can tions. One should pause to reflect on terrorism, what we have tried to do— hear a pin drop. There is no debate. what is happening there at the United unsuccessfully—since September 11 to There is no discussion. There is no at- Nations, formed 54 years ago. And we respond to this challenge? tempt to lay out for the Nation the say: If you are not with us, you are Mr. BYRD. Madam President, I pros and cons of this particular war. against us. That is a pretty hard rule thank the very able and distinguished There is nothing. to lay down to the United Nations. If Senator from Illinois who is a graduate What would Gunning Bedford of Dela- you are not with us, you are against us. of the other body where I believe he ware think about it? What would John If you don’t see it our way, take the served on the Appropriations Com- Dickinson of Delaware think about it? highway. We say to Germany and we mittee. What would George Read think about say to France—both of whom have been He serves on the Senate Appropria- it? What would they say? around longer than we—if you don’t see tions Committee. I need only respond

VerDate Dec 13 2002 02:41 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.086 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2269 in a brief way at this point to the inci- scaring the American people—I am not time from his great comments—if he sive question which the distinguished saying it is not appropriate to have an would comment on the Churchill anal- Senator has asked. I refer him to the orange alert, but we have seen alert ogy. CONGRESSIONAL RECORD upon several after alert after alert, and in spite of Mr. BYRD. The Senator is pre- occasions last year when I said to the the alerts that have been so often set eminently correct. His mention of Wil- Senate that I was bringing to the floor, forth in this country by the adminis- liam Manchester reminds me of that or said to the Appropriations Com- tration’s own people, the administra- great book, ‘‘The Glory and the mittee, that I was bringing an amend- tion, the President, have turned their Dream’’ by William Manchester who ment up dealing with homeland secu- backs on these efforts of the Senate wrote about the Great Depression. In rity, and I shall do that again, hope- Appropriations Committee by unani- fact, Herbert Hoover was the first fully before this week is over. mous votes, including the Republicans President to have a telephone on his Let me say briefly in response to the on the committee, to provide ample desk in the White House. ‘‘The Glory able Senator, time and time again the moneys for homeland defense. and the Dream.’’ Senator has worked with me and with Again, having lost the $5 billion, I Yes, we have had time to prepare. In every other Senator on the Senate Ap- came back with an amendment pro- many respects, we have failed. Our propriations Committee, Republicans viding for $3 billion. We slimmed committee on which the distinguished and Democrats alike, to report meas- down—you can go to the store and get Senator from Illinois sits conducted ures from the Senate Appropriations the Slim Fast at the Giant. I go to the hearings and requested that the Home- Committee unanimously that provided store and do the shopping for my wife. land Security Director, former Gov. moneys for homeland security. She does not need Slim Fast, but I Tom Ridge, appear before the Appro- I remember our providing $2.5 bil- sometimes get Slim Fast. Well, we priations Committee to testify con- lion—$2.5 billion—for homeland secu- slimmed fast that $5 billion and cerning the needs of homeland security rity. We designated it in the com- brought it down to $3 billion, thinking in this country. Did he come? He prob- mittee as an emergency item, and all we would pick up some votes with the ably would have come but his boss, the that remained to be done—all that re- administration’s support. President, said, no, he shall not come. mained to be done—in order to have Did we get any more votes? No, the So we conducted 5 days of hearings on that $2.5 billion immediately flow to administration was against the $3 bil- homeland security in those early the policemen, the law enforcement of- lion, and today they are telling us all, months of 2002. As a result, we brought ficers, the firefighters, the health we better be on watch day and night. to the floor legislation based on the emergency personnel all over this Mr. DURBIN. Will the Senator yield testimony that had been adduced from country, all that needed to be done was for another question? witnesses from all over this country— for the President of the United States Mr. BYRD. Yes. mayors, Governors, and first respond- to attach his signature and likewise Mr. DURBIN. Madam President, the ers. designate that $2.5 billion as an emer- Senator is probably preeminent in this This legislation, to a large extent, gency. Chamber in his knowledge of history, was pretty much sneered at—it is hard How little to ask. But how much it and he certainly knows the history to respond in any other way—by the would have meant to the first respond- leading up to World War II when a administration. Based on the testi- ers in the many towns and cities and Member of the House of Commons by mony of those witnesses, we tried time rural communities in Illinois, in North the name of Winston Churchill took to and again to bring to the Senate and Carolina, in West Virginia, and cities the floor week after week, month after pass legislation that would provide for and hamlets all over this country if the month, year after year, warning the the needs of those local responders, the President had but condescended in that people of England that the looming cri- people at the local level, in the effort moment to sign his name on that item, sis, the rise of Nazism and fascism and to prevent terrorist attacks and in the making it an emergency item. their failure to prepare. William effort to deal with terrorist attacks The law requires that for an item to Manchester’s famous biography of that once they occurred. We got no help be declared an emergency item, both period of Winston Churchill’s life is en- from this administration. the Congress and the President have to titled ‘‘Alone’’ because he stood alone Did the people out there know it? designate the item as an emergency. warning the people of England of the Some of us attempted to tell the Amer- Congress did its part, and, in that case, crisis that was to come. ican people about these efforts, but the that involved $2.5 billion. The Presi- I say to my colleague from the State press has not picked up on it very well. dent literally gave the back of his hand of West Virginia, his role in this crisis Communities are being left with less to that effort on the part of the elected facing America has been Churchillian than adequate police and fire protec- representatives of the American people in that he has taken the leadership in tion. Other essential services are also in this Chamber and on that com- the Senate time and again to warn us shortstaffed. The mood of the Nation is mittee. He gave the back of his hand to of a looming crisis. I ask him if he grim, is the only way I know how to that effort on the part of Congress to agrees with most people that to have put it. The economy is stumbling. Eco- provide $2.5 billion for the local re- an orange alert and to tell mothers and nomic growth is worse than it has been sponders and people in the health lab- fathers across America to put aside in 50 years. Fuel prices are rising and oratories all over this country, for bor- some bottles of water, buy some duct may soon spike higher. der security, airport security, port se- tape and plastic sheeting, and prepare This administration, now in power curity, and all of the many facets that for the crisis of terrorism is not for a little over 2 years, must be judged are involved in homeland security. He enough; that we as a nation should on its record. I believe that record is turned his back on that effort. have taken this looming crisis seri- dismal. In that scant 2 years, this ad- Then last year, I believe in November ously long ago? ministration has squandered a large of this past year when we had the om- I believe I know the answer to this projected surplus of some $5.6 trillion. nibus appropriations bill before the question, but, Madam President, I How much is that? That is $5,600 for Senate, I offered an amendment, a $5 thank my colleague from West Vir- every minute since Jesus Christ was billion amendment, an amendment ginia for his leadership. I thank him born. making $5 billion available for home- for standing on this floor and remind- Let me say that again. In that scant land security. Did the administration ing us that there is still an unfulfilled 2 years—I am talking about the last 2 support that amendment? No, the ad- agenda, and that if we face terrorism, years—of this administration’s record, ministration fought it, and the amend- we have to be honest with the Amer- this administration has squandered a ment went down in flames, as it were, ican people. We have tried in the Sen- large projected surplus of some $5.6 on the floor of the Senate on virtually ate, but we have failed. We are not as trillion over the next decade and taken a party-line vote. prepared as we should be to face this us to projected deficits as far as the That $5 billion would have gone a threat. human eye can see. This administra- long way, would have been out there I ask the Senator from West Vir- tion’s domestic policy has put many of today when we have this orange alert ginia—I am not going to take any more our States, including my own, in a dire

VerDate Dec 13 2002 02:10 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.089 S12PT1 S2270 CONGRESSIONAL RECORD — SENATE February 12, 2003 financial condition, underfunding law enforcement officers. They are Are we better off than we were 2 years scores of essential programs for the State troopers. They are road builders. ago? people, the people out there who are They are doctors. They are teachers. One can understand the anger and watching through those electronic They are Sunday school teachers. the shock of any President after the lenses. These are the men and women who savage attacks of September 11. One This administration has fostered keep the lights burning when the snows can appreciate the frustration of hav- policies that have slowed economic fall and darkness comes. But on whom ing only a shadow to chase and an growth. This administration has ig- will we depend when these men and amorphous, fleeting enemy on which it nored urgent matters such as the crisis women are gone to foreign lands to is nearly impossible to exact retribu- in health care for our elderly. This ad- fight a war if a war faces us here at tion. But to turn one’s frustration and ministration has been slow to provide home, a different kind of war. anger into the kind of extremely desta- adequate funding for homeland secu- Our awesome military machine will bilizing and dangerous foreign policy rity. The distinguished Senator from do us little good if we suffer another debacle that the world is currently wit- Illinois, Mr. DURBIN, and I have been devastating attack on our homeland nessing is inexcusable from any admin- talking about that. which severely damages our economy. istration charged with the awesome This administration has been reluc- As I say, our military forces are al- power and responsibility of guiding the tant to better protect our long and po- ready being stretched thin and we will destiny of the greatest superpower on rous borders to the north and to the need the augmenting support of those the planet. south, and to the east and to the west, nations that can supply troop strength, Frankly, many of the pronounce- where the great oceans form the bor- not just sign letters cheering us on. ments made by this administration are ders. The war in Afghanistan has cost us outrageous. There is no other word. In foreign policy, this administration $37 billion so far. Yes, we bombed those Yet this Chamber is hauntingly si- has failed to find Osama bin Laden. In caves. We ran them into the holes, but lent—silent. What would John Langdon fact, yesterday we heard from him they could not hide. We ran them out of New Hampshire say about that? again marshaling his forces and urging of the holes, and we ran behind them to What would Nicholas Gilman of New them to kill, kill, kill. get them. But there is evidence that Hampshire say about that? What would Rufus King and Nathaniel Gorham of This administration has split tradi- terrorism may already be starting to Massachusetts say? What would Alex- tional alliances, possibly crippling for regain its hold in that region. We have ander Hamilton, who signed the Con- all time international order, crippling not found Bin Laden, and unless we se- stitution, from the State of New York, entities such as the United Nations and cure the peace in Afghanistan, the dark say about the silence in this Chamber? NATO. This administration has called dens of terrorism may yet again flour- What would Dr. Samuel Johnson of into question the traditional worldwide ish in that remote and devastated land. Connecticut say about the silence in perception of the United States as Pakistan, as well, is at risk of desta- this Chamber? What would William being a well-intentioned peacemaking, bilizing forces. This administration has Paterson or William Livingston or peace loving, peacekeeping nation. not finished the first war against ter- David Brearley or Jonathan Dayton of This administration has turned the rorism, and yet it is eager to embark New Jersey, the signers of the Con- patient art of diplomacy on its head. It on another conflict with perils much stitution, have to say about the silence has turned the patient art of diplomacy greater than those in Afghanistan. Is in this Senate which they created? into threats, labeling, and name calling our attention span that short? Have we What would Benjamin Franklin, Thom- of the sort that reflects quite poorly on not learned that after winning the war, as Mifflin, James Wilson, Robert Mor- the intelligence and sensitivity of our one must also secure the peace? ris, of Pennsylvania, have to say? What leaders and which will have con- Yet we hear little, precious little, would Thomas FitzSimons or sequences for years to come, calling about the aftermath of war in Iraq. In Gouverneur Morris, who signed the heads of state pygmies, labeling whole the absence of plans, speculation Constitution on behalf of the State of countries as evil—as though we are not abroad is rife. Will we seize Iraq’s oil Pennsylvania, have to say about the si- evil, as though there is no country that fields, becoming an occupying power lence that rings and reverberates from is not evil—denigrating powerful Euro- which controls the price and supply of these walls today, the silence with re- pean allies as irrelevant. These types of that nation’s oil for the foreseeable fu- spect to the war on which we are about crude insensitivities can do our great ture? There are some who think so. to enter? What would they have to say? To whom do we propose to hand the Nation no good. What would their comments be? Gun- We may have massive military reins of power in Iraq after Saddam ning Bedford, George Read of Delaware, might, and we have, but remember we Hussein? Will our war inflame the Mus- Daniel Carroll, Dan of St. Thomas have had massive military might be- lim world, resulting in devastating at- Jenifer of Maryland. These and more. fore. How many millions of men tacks on Israel? Will Israel retaliate What would these signers of the Con- marched to the drums of war only 60 with its own very potent nuclear arse- stitution have to say about this Senate years ago? Thirteen million American nal? What are we about to unleash which they created when they note the men under arms, was it? Millions. here? The genie is getting out of the silence, that is deafening, that ema- While we may have massive military bottle. Can it ever be put back? Will nates from that Chamber on the great might today, we cannot fight a global the Jordanian and Saudi Arabian Gov- subject, the great issue of war and war on terrorism alone. We need the ernments be toppled by radicals, bol- peace? Nothing. Nothing is being said cooperation and the friendship of our stered by Iran, which has much closer except by a few souls. Yet this Cham- time-honored allies, as well as the ties to terrorism than Iraq? Could a ber is hauntingly silent—hauntingly si- newer found friends whom we can at- disruption of the world’s oil supply lent on what is possibly the eve of hor- tract with our wealth. Our awesome lead to a worldwide recession? Has our rific infliction of death and destruction military machine will do us little good senselessly bellicose language and our on the population of the nation of Iraq. if we suffer another devastating attack callous disregard for the interests and Think about that. on our homeland which severely dam- opinions of other nations increased the Oh, I know Saddam Hussein is the ages this economy. global race to join the nuclear club and person who is primarily responsible. Our military manpower is already make proliferation an even more lucra- But how about us? How about our- stretched thin, and they are taking tive practice for nations which need selves? them from our States every day. Yes- the income? Yes, there are going to be old men terday, I talked to the Senate about In only the space of 2 short years, dying. There will be women dying. the vacancies, about the empty seats this reckless and arrogant administra- There will be children, little boys and at the dinner tables in the homes of tion has initiated policies which may girls dying if this war goes forward in many West Virginians, because of the reap disastrous consequences for years. Iraq. And American men and women National Guard and Reserve departures We have heard it asked, Are you bet- will die, too. every day from the State of West Vir- ter off today than you were 4 years Iraq has a population, I might add, of ginia. Yes, there they come. They are ago? The question can be shortened: which over 50 percent is under age 15.

VerDate Dec 13 2002 02:10 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.091 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2271 Over 50 percent of the population in membership on that committee, I re- I sit on this side of the aisle for, Iraq is under age 15. What is said about member President Clinton presented frankly, one major reason. I believe in that? This Chamber is silent—silent. his first budget. We were coming free enterprise. I do not believe in When it is possibly only days before we through a period of great deficits and creeping socialism. I believe if you are send thousands of our own citizens to President Clinton projected deficits for interested in social justice you will face unimagined horrors of chemical as far as the eye could see. But some- pursue those policies that leave more and biological warfare, this Chamber is thing happened to our economy, some- money at home and give people a silent. The rafters should ring. The thing entirely unrelated to Govern- chance to reemploy folks and to press galleries should be filled. Sen- ment, something entirely unrelated to produce products, to provide services ators should be at their seats listening the Clinton administration. We saw that other people want to buy. to questions being asked about this what has happened periodically in the So when I hear a statement like I war, questions to which the American great civilizations, and that is a specu- have just heard, with all due respect to people out there have a right to expect lative bubble, irrational exuberance, a great man in this Chamber, I think it answers. The American people are and we saw the stock market surge simply disregards the nature of the longing for information and they are with stock values wholly unrelated to economic system we are in. I say that not getting it. This Chamber is silent. their book values. as a businessman before I was a Sen- On the eve of what could possibly be a We began to witness a great bubble. ator. So I thank President Clinton for vicious terrorist attack in retaliation That is when Alan Greenspan and oth- doing the best job he could. I thank for our attack on Iraq, it is business as ers said there is irrational exuberance. President Bush for doing the best job usual here in the Senate, and business We have a problem. They began pulling he could. But in the middle of the ad- as usual means it is pretty quiet. There back on the money supply, and by the ministration there was a stock market is not much going on in the Senate. time George W. Bush took his oath of bubble that neither of them created for Business as usual. office, this country was in a full blown which we are now trying to deal with Oh, I know it may be scare talk to recession. He inherited this. For a col- the consequences of the bursting of talk about what may happen in the league to suggest that this President that bubble. has run this economy into the ground event of a terrorist attack. But when IRAQ the Twin Towers fell, it wasn’t scare is belied by the facts and it is belied by the common sense of the American Madam President, on the issue of talk. When hundreds of local fire- Iraq, I think every American feels dis- fighters and police officers, law en- people who do not blame this President for the condition of this economy that quiet about the fact that we are actu- forcement officers died as the walls of ally contemplating going on the of- the Twin Towers came tumbling down, he inherited and they, in fact, appre- ciate the fact that he is doing some- fense because we are trying to provide it wasn’t scare talk. It wasn’t scare for the defense of the American people. talk. thing about it and trying to do what I don’t think President Bush relishes We are truly sleepwalking through the Federal Government can, with the going to war. But I will tell you that I history. In my heart of hearts I pray levers available to it, to help put peo- am glad he does not check our national that this great Nation and its good and ple back to work, to grow the economy, security with the French or the Chi- trusting citizens are not in for a rudest to say to the country, to say to the nese or some international body which of awakenings. To engage in war is al- Congress: You know, the economy is tough. When the economy is tough, is, at the core, anti-American and anti- ways to pick a wild card. And war must families have to tighten their belts, Semitic. I am grateful we have a Presi- always be a last resort, not a first and Congress should do the same with dent who goes to such bodies and choice. the Government budget so we can leave But I truly must question the judg- makes America’s case and stays en- more money at home so people can ment of any President who can say gaged but never loses sight of the fact spend it to pursue their dreams, to bal- that a massive unprovoked military at- that America’s interests are best deter- ance their economies because when tack on a nation which is over 50 per- mined by Americans. they do that, we are more likely to see I have never believed there was a cent children is in the highest moral employers reemploying people. traditions of our country. This war is sharp line of coordination between all I must tell you, like my friend from the Islamic terrorist groups and Is- not necessary at this time. Pressure Wisconsin, before I came to this body I appears to be having a good result in lamic states. But I am not so naive to was in the business of meeting a pay- believe that this is not a loose confed- Iraq. Our mistake was to put ourselves roll. It was always a source of frustra- in a corner so quickly. Our challenge is eration of terrorism—a loose confed- tion to me to hear politicians from eracy that has as its purpose the mur- now to find a graceful way out of a box mighty places say that they were re- of our own making. Perhaps—just per- der of Jews and Americans and other sponsible for creating jobs, that they minorities who do not share their reli- haps—there is still a way, if we allow were somehow responsible for the con- gious faith. more time. dition of the private sector economy. It takes foolish people to look at all Madam President, I yield the floor. I We are citizens of a nation that has a suggest the absence of a quorum—I free market economy, not centrally the money moving around and all of withdraw that suggestion. planned. I have always been upset, the ammunition being bought and all The PRESIDING OFFICER. The Sen- whether from Republican or Demo- of the murder being committed to say ator from Oregon. cratic politicians, when there is the we just have to wait for them to hit us Mr. SMITH. Madam President, I be- claim that somehow we in the public again. lieve Senator SCHUMER is scheduled to sector create jobs. I thank God for a President who is speak. I understand he is not now going It is false. It is a lie. So when I hear willing to say: I am going to protect to claim his time. If I may, I would like speeches saying that President Clinton the American people, and I am going to to speak about Miguel Estrada. I appre- is to blame for it, or President Bush is go where the facts lead us. And even if ciate the Senator from West Virginia to blame for it, I say baloney because, it says we have to play defense by and his effort to present his perspec- as long as I have been in public life, I going on offense we are going to do tive. I find myself wanting not to be si- have seen us do various things with the that. lent, though, in response. He has a per- levers available to us to try to help the I don’t believe we are going to Iraq spective that is not one I share with re- economy, to take credit for it. But you out of reasons of oil. I believe we are spect to President Bush and the job he know what. We can’t. And may we going there for the security of the is doing as our Commander in Chief never be able to because if we do, we American people. Who can like the sit- and as the leader of the free world. So will have adopted the ways of western uation in the Middle East now? Per- before I speak about Miguel Estrada, I socialist societies, of Western Europe, haps there is a prospect of a better fu- would like to remain not silent. and these are failing models. These are ture. Perhaps there is a prospect of de- When I was elected to this body in not models designed to reemploy peo- mocracy that takes root in the middle 1996 I was given membership on the ple and to give them opportunity and of Arabia on the border of Persia that Senate Budget Committee. Being given hope. may ultimately figure out how to find

VerDate Dec 13 2002 03:34 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.094 S12PT1 S2272 CONGRESSIONAL RECORD — SENATE February 12, 2003 peace with their Jewish neighbors. We the Coif. Then he went on to clerkship You see, Miguel Estrada has never have no prospect of that in the current for United States Supreme Court Jus- told us what his views are. Maybe that arrangement. tice Anthony Kennedy. is what is wrong here. Maybe if he When I hear motives described of this You cannot get better credentials would come and pledge allegiance to President that his response to 9/11 is than this. Roe v. Wade all this opposition would somehow failed, I think maybe they He then served as Assistant Solicitor go away. But I want to lament that our are going to different briefings than I General of the United States under process has come down to single issue am. Maybe they are seeing different both the Bush and Clinton administra- litmus tests. I do not think it should. facts than I see. I don’t understand the tions, earning high praise from col- See, Miguel Estrada has said what charges that were just made here. The leagues, including President Clinton’s should be said in the case of abortion, charge was made that we are being si- Solicitor General, Seth Waxman, under issues coming before appellate courts. lenced. I diverted from my Miguel whom he served. He has said: I will follow the law. I un- Estrada speech because, frankly, I By the way, I also note that he ar- derstand stare decisis. And I am not don’t want to be silent if that is what gued the Government’s case against going to be out there trying to make people actually believe here because it the abortion clinic demonstrators. He new law. That is what he should say. is wrong. I want to make clear my op- upheld the law. What he has not said I think is feared position to it. He has the unanimous high rating by on that side; and that is, coming from Madam President, when I came to the American Bar Association as ‘‘very a Latin American part of our hemi- this body, I promised the people of Or- well-qualified’’—its highest rating. sphere, that he has a Catholic back- egon that while I have values I refuse That used to be the gold standard for ground, that he has a heritage, a tradi- the Democratic conference for people to check at the door, I would not have tion that sanctifies human life. And coming through the Judiciary Com- a single-issue litmus test when it came they are worried about that. mittee to this floor. to judicial nominees. Yet I have to say I think a lot of the He enjoys broad support from His- I remember very vividly our phones American people worry about that. I, panic communities, including the U.S. ringing off the hook with calls from for one, who describes myself as pro- Hispanic Chamber of Commerce, the conservative people in my State who life, understand completely that it is Hispanic National Bar Association, and were very upset at all the Clinton the Washington Post, of all papers, unlikely in our lifetime that early nominees for whom I voted. But I which editorialized that this confirma- rights to choose will ever be abridged wanted to keep my word that I would tion should be an ‘‘easy call’’. But it is by this place or by the Court. But I not have a single-issue litmus test. I not. It is all bollixed up. Charges have think Americans generally are increas- was going to focus on whether Presi- been raised against Miguel Estrada ingly discomforted by late-term abor- dent Clinton’s nominees were qualified that he is way out of the mainstream. tions. You have but to see the General Elec- and for some reason not disqualified by When you ask for evidence of that, I tric advertisement about seeing this personal conduct or ethics. find none forthcoming. They say he has So with that, I can think of only one couple looking at their unborn child in no judicial experience. Well, I have told exception when a nomination was de- utero and the inexpressible joy they you what his legal training is, as well feated on the floor of this body at the feel at the anticipation of the child’s as his legal practice at Gibson, Dunn & request of the two Senators of that birth. And to think: Well, this unborn Crutcher, a great law firm in Cali- State. child is of no consequence—it is of fornia. I voted time and time again for I would note that five of the eight enormous consequence. President Clinton’s nominees who current judges on the District of Co- I think there is a fear there that probably in most cases had different lumbia Circuit had no prior judicial ex- Miguel Estrada may have some of views than I did. I remember specifi- perience before they served on it. But, those beliefs. We do not know that. cally the nomination of Richard Paez clearly, that doesn’t cut it. And, frankly, I think he has said what of California which the Republicans I noted before that he has the highest is right and that is: I will enforce the held up for some time. But some of us rating of the American Bar Associa- law. pushed on this side to get him con- tion. Some have said: Well, but he de- Madam President, I, for one, say, firmed. fended antigang laws. These are known without reservation, Miguel Estrada I remember the nomination of Mar- as antiloitering laws. But I would point has my vote. And I think for the good sha Berzon, another Ninth Circuit out that he did that when he was hired of our institutions, some of our col- nominee. The conservatives couldn’t by Chicago’s Solicitor, at the request leagues on the other side ought to re- stand her. Some of us pushed through of Democratic Mayor Richard Daley, to member that some of us pushed and got her confirmed and voted for defend their constitutionality. There is through a lot of President Clinton’s her because we didn’t want to happen no partisan conspiracy in this. They nominees with whom we had dif- in this place what is happening now in wanted a good lawyer to defend it. This ferences because we were fearful of the case of Miguel Estrada. is a man who has argued 15 cases before going down the road of single issue lit- I was trained in the law. As a lawyer, the U.S. Supreme Court. No judicial ex- mus tests for judicial nominees, be- I have to tell you that I am envious of perience? That doesn’t hold up. cause if we go there, we are ratcheting the credentials of Miguel Estrada. I Some have said he didn’t answer all up to a different level, and it will be to will bet in all the time I serve here, few the questions. the lament of this country and its judi- nominees will come to this place who I can tell you I fear that what we are cial processes because we will leave too are better prepared and better doing in this Chamber by the process many places and seats vacant on the credentialed than Miguel Estrada. Yet that began with Robert Bork is setting bench, and that will mean justice de- it has come to this? A filibuster? Not a standard that if you provide the op- layed. And justice delayed means jus- for the Supreme Court but for an ap- position with your views and your tice denied. I urge his confirmation. peals court—an important one for sure records, you give them ammunition to I yield the floor. but not even the highest court. We are shoot you—at least politically speak- The PRESIDING OFFICER. The Sen- in the midst of a filibuster. ing—in this place. ator from Wisconsin. But consider what an Horatio Alger I come back to my belief that what Mr. DORGAN. Will the Senator from story is Miguel Estrada when it comes this really is is the victory of single- Wisconsin yield for a unanimous con- to American law. This man came to issue politics. I regret that. sent request? this country, from Honduras, at the My friend from Nevada holds the Mr. KOHL. I will. age of 17, speaking little English. He same view I do on single issue. He is Mr. DORGAN. I ask unanimous con- went to Columbia University. He grad- evidence that his party has had a big sent that I be recognized following the uated there magna cum laude. Then he enough part to include people who presentation by the Senator from Wis- went to Harvard Law School and he may—I emphasize ‘‘may’’—have a view consin. graduated there as the editor in chief as to the sanctity of life that is out of The PRESIDING OFFICER. Is there of the Harvard Law Review, Order of the mainstream, if you will. objection?

VerDate Dec 13 2002 02:10 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.096 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2273 Without objection, it is so ordered. correctly decided, and Mr. Estrada re- then I will be forced to oppose his nom- Mr. KOHL. Madam President, I rise fused to do so. ination. today to express my concerns about He refused to provide responsive in- I thank the Chair. the nomination of Miguel Estrada. formation to my own questions on a The PRESIDING OFFICER (Mr. Once a nominee is confirmed by the variety of topics, ranging from his Smith). The Senator from North Da- Senate, these men and women serve views on two recent Federal court kota. lifetime appointments, unanswerable opinions striking down the Federal Mr. DORGAN. Mr. President, I lis- to Congress, the President, or the peo- death penalty, to the Government’s tened to my colleague from Wisconsin, ple. They become the guardians of our role in protecting the environment, who serves on the Judiciary Com- liberties, of our Constitution, and of and to the use of ‘‘protective orders’’ mittee, on the nomination of Mr. our civil rights. Our duty to advise and mandating court secrecy in products li- Estrada to the DC Circuit Court. I also consent is the only check we will ever ability cases. This pattern of evasive- listened to my colleague from Oregon have on the qualifications and fitness ness and avoidance falls far short of and others who have spoken today. of those chosen to serve as Federal what we need to evaluate a candidate’s Mr. Estrada has had his name sub- judges. fitness to serve a lifetime appointment mitted to the Senate by the President, In considering judicial nominees, we on the DC Circuit Court of Appeals. acting under article II of the Constitu- can review their credentials, their pro- The importance of the court to which tion. And the President has the right fessional record, their writings, and the Mr. Estrada has been nominated makes to send nominations for lifetime ap- recommendations of their colleagues. his efforts to hide his views from us all pointments to the judiciary to the Sen- But to truly evaluate a nominee’s fit- the more serious. The DC Circuit, a ate for advice and consent. It is the ness, especially one with no judicial court second in importance only to the Senate’s responsibility to evaluate the record, we are dependent on the nomi- Supreme Court, is unique among the President’s nominees and determine nee to candidly share with us their Federal courts of appeals as the court whether to vote to confirm those nomi- opinions, their judicial philosophy, and that reviews decisions of the executive nees and provide someone a lifetime their approach to interpreting the Con- branch and the independent agencies. tenure on one of the Federal courts. stitution during the give and take of a The rules and regulations reviewed by That advice and consent is not in any confirmation hearing. this court are felt by all Americans way subordinate to the President’s The need for forthright testimony is every single day. If you work, your right of sending a nomination. We both especially crucial in the case of Mr. safety is protected by rules issued by have constitutional obligations. One is Estrada, given the minimal public the Occupational Safety and Health for the President to select and send record we have to evaluate him. He has Administration. When we drink water nominations to the Senate. The other never served as a judge and, therefore, and breathe the air, we are protected is for the Senate to evaluate and pro- unlike many appellate court nominees, by rules issued by the Environmental vide its advice and consent. has no judicial opinions to review. He Protection Agency. When we shop and The DC Circuit Court is the second has virtually no professional writings watch advertisements, we are pro- highest court in the land. It is very im- for us to read. And although he has ar- tected from fraud and deceit by the portant that for a lifetime appoint- gued before the Supreme Court, he has Federal Trade Commission. And when ment, we decide carefully whether we rebutted any attempt we made to at- we see our cable, phone, and internet want to confirm a nominee sent to us tach his personal views to the positions bills, we can be sure that the Federal by the President. Most of us would not he advocated in those cases. Therefore, Commerce Commission played an im- know the nominees personally. That is we were dependent on his testimony portant role. The decisions of the D.C. certainly the case in this cir- from his confirmation hearing. But Circuit on these and many other sub- cumstance. I don’t know Mr. Estrada this testimony gave us precious little jects have a real and immediate impact personally. on which to evaluate him. on the lives of all Americans. I have been to one hearing where he Instead, we have been told that Mr. My decision to oppose this nomina- appeared. I was there for only a brief Estrada is bright, capable, and quali- tion in the Judiciary Committee was period because a candidate for a Fed- fied. His proponents say ‘‘trust us, he not taken lightly. I have done so only eral judgeship in North Dakota was will make a good judge.’’ Trust is not six times in my more than 14 years of being heard at that time. This was a enough; trust leaves too much to service in the Senate, and I do so reluc- nomination of President Bush’s. I was doubt. When considering a nominee, we tantly in the case of Mr. Estrada. We pleased to be there to support Presi- do not owe the benefit of the doubt to recognize that Mr. Estrada is a tal- dent Bush’s nomination and to support the nominee but, rather, to the courts, ented attorney who has compiled an the candidate whose name had been the Constitution, and to our civil lib- impressive record of achievement, and sent to us. I went down to the hearing erties. that he is to be commended for devot- and supported Mr. Hovland’s can- A judicial confirmation hearing is ing a substantial portion of his profes- didacy. I am proud to say he is now a not an intrusive exercise. We do not sional career to public service. Federal judge in the West District of ask nominees to comment on pending My decision to support the need for a North Dakota. He is going to be a cred- cases or to speculate on unlikely facts. filibuster on this nomination is also it to the bench. He will be a wonderful Rather, we only ask them to help us not taken lightly. We take this step re- Federal judge. I was very pleased to reach a level of comfort with them as luctantly, and with the full under- support President Bush in sending this potential judges. Without candid and standing that we are left with no other nomination to the Senate. honest testimony by the nominee our choice. Our constitutional responsi- On that day when he was also testi- advice and consent process is meaning- bility to advise and consent has been fying, Mr. Estrada was there. That is less. compromised by a process that has pro- the only time I have seen him. I was Unfortunately, at his confirmation vided us with no opportunity to learn there for only a couple questions, and I hearing, Miguel Estrada refused to an- anything about this nominee. If we per- don’t know a great deal about him but swer question after question regarding mit Mr. Estrada’s nomination to pro- have read a lot about him since. his views and judicial philosophy. Mr. ceed, we have provided future nominees It is the case with respect to Mr. Estrada even went so far as to refuse, a roadmap to evade questions and hide Estrada’s appearance before the com- when asked by Senator SCHUMER, to who they are. This would be a dis- mittee and also the interviews and dis- name a single Supreme Court decision service to the people we were elected to cussions prior to his appearance before of which he was critical in the last 40 represent. the Judiciary Committee, that Mr. years. I myself have asked that very We cannot support Mr. Estrada’s Estrada decided he would not answer same question of many nominees, and nomination to the DC Circuit in the some basic questions put to him by every one had an answer—until now. face of his unwillingness to candidly Members of the Senate. Members of the This is not an isolated example. Sen- share his views, his approach and his committee were asking some pretty ator FEINSTEIN asked him to state judicial philosophy. If no further infor- basic questions. Tell us a bit about whether he believed Roe v. Wade was mation is provided about Mr. Estrada, your judicial philosophy, because you

VerDate Dec 13 2002 03:34 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.099 S12PT1 S2274 CONGRESSIONAL RECORD — SENATE February 12, 2003 don’t have experience as a judge and Estrada, have said: I don’t intend to one know? Does anyone who has spo- you have not served as a judge at any answer questions, and I don’t intend to ken in support of this nomination level in the judiciary system. Tell us make the information available with know? Can you answer that question? about how you see this job. Evaluate respect to what I was doing as assist- The answer is no one in this Chamber for us some of the decisions that have ant in the Solicitor’s Office. knows; no one in the Chamber can an- been made over time by the Supreme If that is the case, Mr. Estrada is swer the question because Mr. Estrada Court, and so on. Mr. Estrada essen- then a blank sheet. What are we to and the administration say you are not tially said, I don’t care to do that. make of Mr. Estrada? Who is he? How entitled to know. Contrast that for a moment, for ex- does he think? How does he reason? They are wrong. The Constitution re- ample, with Dan Hovland who is now a Would he be a good judge? This is, after quires us to know. It says we are enti- Federal judge in the West District of all, a lifetime appointment. This isn’t tled to know. I don’t believe we ought North Dakota. He was asked: What an appointment for 5 years, 10 years, or to vote on this nomination until we three U.S. Supreme Court cases can 20 years. We are being asked by the have received the information re- you identify that you disagree with? President to take Mr. Estrada’s nomi- quested. When we do, I think we should This is Mr. Hovland. He said: Well, nation and say, yes, we will put him on vote on this nomination. But until Behrens v. Peltier, 1996; a 2002 case, this Circuit court forever, for his entire then, in my judgment, this is not a Thompson v. Western States Medical life, and we have no right to get an- problem of our making, this is not Center; and then, of course, the case I swers to basic questions, to understand something someone from the other side suspect most would cite, Korematsu v. a bit about the philosophy of Mr. should shoehorn over here. This is a the United States. That is, of course, Estrada, a bit about his approach, his problem the administration and Mr. the case in which the Supreme Court thinking. We have no right to that? Estrada created by deciding on a strat- affirmed the conviction of a person of I have been astounded to hear some egy that, if we allow to continue, Japanese ancestry for a violation of a colleagues on the floor say: You have a would essentially say to the Senate, curfew order solely because of the indi- responsibility to approve this nomina- you consider us for lifetime appoint- vidual’s ancestry. tion. No, we have a responsibility ments and we won’t give you any infor- I think now most would view that under the Constitution to advise and mation about ourselves as we ask for Supreme Court decision as a profound consent. The President has a responsi- that consideration. mistake. Mr. Hovland did. He was bility to send us a nomination. We There are reciprocal obligations asked a simple question. He gave a have a responsibility to evaluate it and here—ours, the President’s, and the straightforward answer. He said: Here make a decision. Is this someone who nominee’s. We will and should meet is my notion of three Supreme Court should be given a lifetime appointment ours as soon as others have met theirs. decisions with which I would disagree. or not? That is our judgment. That The first test of that is to send the It gave Members a bit of an insight judgment doesn’t rest with others. It names of qualified people to the Senate into who Mr. Hovland was, what he rests with us. for judgeships. Mr. Estrada may well be thinks. That was helpful. I would like very much for Mr. very well qualified. The ABA says he is The same question was asked, for ex- Estrada to give us the information re- well qualified. The second obligation ample, of Freda Wolfson: What three quested. My colleagues on the Judici- on the part of those who send his nomi- U.S. Supreme Court cases can you ary Committee have repeatedly re- nation to us is for the candidate him- identify that you disagree with. quested this information. I would like self, or herself, to make themselves Plessey v. Ferguson, that would come very much to see the information. It is available to the Senate, answer ques- to mind almost immediately for every- entirely possible I would see all of this tions, and allow us to evaluate whether one. They held that the State statute information, understand a bit more this is the kind of person we want to requiring passenger railroads to pro- about Mr. Estrada, and decide to sup- provide a lifetime appointment to on vide separate but equal accommoda- port his nomination. I don’t know. I the Federal bench. That hasn’t been tions for African Americans and Cauca- would like to see the information and the case at this point. sians did not violate the 13th or 14th make a judgment. With respect to this nominee, we are amendments. It seems to me that is I believe I have voted for virtually all waiting; but we should not vote, and no probably an obvious case one would the nominations the President has sent one in this Chamber ought to pressure disagree with. to Congress with respect to judgeships. others to vote until we have the basic Yet questions of that type were I would hope to be able to support this information we have requested. What is asked repeatedly of Mr. Estrada, and and others as well. But I don’t intend so secret about all of this? What is he said he just wouldn’t offer an opin- to decide that we should force the Sen- there we should not know? Is there ion, wouldn’t answer the questions. So ate to vote for a lifetime appointment anyone qualified to serve on the second then the members of the committee for a candidate on the DC Circuit Court highest court of the land who doesn’t said: Well, you served in the Solicitor’s who tells us nothing about himself. have some basic views on past Supreme Office at the Justice Department. He seems to suggest, I am here for a Court decisions—especially some of the Could we be provided with the memo- job interview, but I will not tell you controversial ones—they might explore randa written there, the advice you anything about me. That would be a with us in order to give us some eval- were offering, to get some insight into job interview that would last a very uation of how they think and reason, how you feel about these issues, how short time. It ought to last a very what kind of capability they have to you reason, how you think? short time here. When Mr. Estrada and sit on the bench? If such a nominee is He said, no, those are confidential. the administration provide the infor- sent to the Senate, that nominee ought Those should not be released. mation that is requested, then, in my not ever be confirmed. Well, they have been released in the judgment, this Congress has a responsi- I don’t believe that is the case with past. On other occasions candidates bility to consider it, and consider it Mr. Estrada. I think he has views on all have indicated they wanted those pa- with great seriousness because this is, of these issues. He certainly could tell pers released. They were released. It after all, a Federal judgeship, not just us his views about Supreme Court deci- gave the committee, when making a a district judgeship, but a circuit court sions with which he would disagree and lifetime appointment, some better judgeship of DC, which is the second why, so we could develop some notion judgment about how this person highest court in the land. of his reasoning. He just refuses to do thinks, how this person reasons, what Judge Scalia once said—and I am not that. I don’t know why. I assume if this approach this person takes to dealing prone to quoting him often: is the case with this candidate and the with some of these questions. Mr. Indeed, even if it were possible to select Senate says that is fine, we will see fu- Estrada said, no, he couldn’t do that. judges who didn’t have preconceived views ture nominees refuse to answer any- What has happened with this nomina- on legal issues, it would hardly be desirable thing; our advice and consent will be- tion, a circuit court nomination is to do so. come a rubberstamp; and we will not that, both the President’s administra- What are the preconceived views on ask people to give us basic informa- tion and the candidate himself, Mr. legal issues of Mr. Estrada? Does any- tion. Then the next candidate will do

VerDate Dec 13 2002 03:34 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.100 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2275 exactly the same thing and we won’t fied briefings because we have not had and we talk, and we try to work have a constitutional responsibility at any—that trucks are leaving a facility through these issues. all here in the Senate. We will say, all in North Korea, potentially with spent With respect to al-Qaida and ter- right, whatever it is you decide to give fuel rods, which will, in the not-too- rorism, the fact we do not mention it, us, we will take, or whatever you de- distant future, be turned into weapons- the fact no one will talk about it, the cide to withhold, we will accept. grade plutonium, probably sold to a fact it is not something the Defense I am not willing to do that. Why not terrorist; and it is not out of the ques- Department, the State Department, or the materials from the Solicitor’s Of- tion that 18 or 24 months from now a others want to talk much about does fice? It has been done in other nomina- terrorist will have a nuclear weapon not mean it has gone away. It is as se- tions. Why not now? Why won’t the with which to hold hostage an Amer- rious today, perhaps more so, than candidate answer basic questions? ican city. ever, and we have a responsibility to Again, I come here not as a member of Is that a frightening thought? You deal with it. I worry a great deal about the committee and as someone who has bet your life it is. So what consumes these terrorist issues and the terrorist a preconceived notion that Mr. Estrada our attention today? Iraq. Saddam threat against our country. would not do a good job. I don’t know. Hussein. Oh, but today is a bit different My point is not to say somehow the And no one else in the Senate knows. in that Osama bin Laden also shows up. attention to Iraq is misplaced. It is to There is nobody in the Senate who can He is out there. The other day Osama say that the sole attention to Iraq at stand up and say Mr. Estrada has an- ‘‘been forgotten’’ is what I called him, the expense of, in my judgment, a more swered these questions for us, because because you don’t hear about him any- serious threat from North Korea, the he has refused to answer the questions more from the administration. They sole attention to Iraq at the expense of for all Senators. Some in the Senate cannot find him, don’t know where he attention to al-Qaida and the growth might be perfectly comfortable decid- is. I have flown over those mountains; and the continuation of a very serious ing the constitutional role granted us it was about a year ago. You can look threat of terrorist attacks is unwise, in in this process of lifetime appoint- down and see where the caves are, my judgment. It makes no sense. ments on the judiciary is not very im- where Osama bin Laden and his band of We have a responsibility to protect portant. But I am not among them. murderers plotted the murder of inno- the national interests of this country, THE STATE OF FOREIGN AND DOMESTIC POLICY cent Americans, thousands of them. and I will and always have supported Mr. President, let me speak for a mo- And so men and women wearing Amer- our President as we proceed to do that, ment, while I have the floor, about a ica’s uniform went into Afghanistan, but I think it is important with respect couple of other issues that are hap- kicked the Taliban out, ran the al- to not only advice and consent on pening that I think are very important. Qaida up into the hills. But Osama bin judgeships, but providing advice on I know others want to come and speak Laden was not found. Al-Qaida still issues as we perceive threats to this about the nomination. I want to talk lives. The head of the CIA said a couple country, it is important for some of us for a moment about what has been hap- of months ago that the terrorist threat to speak up to say: Mr. President, you pening in our country with respect to against this country is as serious now are right, Saddam Hussein is a bad guy, foreign policy and domestic policy. as it has ever been since September 11. In recent days, we have had the fol- but you are wrong to not pay attention lowing occur: We wake up in the morn- What of terrorism? What do we make to North Korea and the war on ter- ing and turn on the television pro- of North Korea? What about Bin rorism with equal vigor and equal grams. The lead story is, as it has al- Laden? And, yes, what about Iraq? strength. We have had a single track playing ways been in recent weeks, days, and Frankly, no one can take a look at months, the war with Iraq. When is it now for month after month about the what has happened in the last 6, 8, 10 going to happen? How is it going to country of Iraq. I want to see regime months and judge there has been that happen? When is it going to start? Who change in Iraq. I want to see Saddam kind of balance. My hope is that in the is going to support it? Who is going to Hussein displaced. My preference, by coming days we will see greater bal- be involved? Every week, day, and far, is that the free world in unison ance dealing with this terrorist threat month. says to this man: You leave, you dis- and also the threat of North Korea pro- As a result, this economy of ours, arm, or you are going to be disarmed, ducing more nuclear weapons and po- which desperately needs certainty, pre- and you are going to be replaced. I tentially moving those nuclear weap- dictability about the future—and this would hope very much the entire free ons into the hands of terrorists who the economy, in my judgment, is in a stall, world says that to Mr. Saddam Hus- next time they threaten us will do so serious trouble—is not going to come sein, but I also hope that we under- with a nuclear weapon. out of its problems unless we stop stand in this country—the President God forbid we will face a world in every day the lead news story being and, yes, his key advisers understand— which a nuclear weapon is used as an about war. I am not suggesting Iraq is that there are more threats and, in my act of terrorism, not killing 3,000 peo- not a problem; it is. Saddam Hussein is judgment, at this moment, more seri- ple but 300,000 people or 1 million peo- a bad guy. North Korea is a problem— ous threats with respect to North ple. a bigger problem than Iraq, I might Korea and the development of addi- If ever we wonder about these issues, say. Terrorism is a bigger problem tional nuclear weapons that could pos- we have a world in which there is than both of them. We have a situation sibly go into the hands of terrorists somewhere, we think, around 30,000 nu- in which we have to deal with all three. very quickly; more serious threats clear weapons. We do not know ex- I understand that. But the other day with respect to al-Qaida which still actly. With theater weapons, strategic we get an orange alert in the country, lives, and Osama bin Laden, who is still weapons, somewhere around 25,000 to the second highest alert for terrorist broadcasting to those who follow him, 30,000 nuclear weapons, one of which, activity in our country, the terrorist which is also a very serious threat to just one, missing or in the hands of ter- threat. Today, I understand we have this country and to the free world. rorists will cause chaos. The explosion hardware stores that are out of duct We need to understand that we face of one will be devastating, and the tape. Why? Because yesterday they very serious problems, and it is not genie will be out of the bottle. said we are on orange alert, under the just Iraq. Inattention to some parts of Pakistan and India have nuclear threat of terrorist attack, and we need our foreign policy, in my judgment, weapons, and the other day they were people to go out and buy gas masks and have contributed to this. I understand shooting at each other over Kashmir. plastic sheeting and duct tape. So the North Korea has lied to us. I under- Dangerous? You bet your life that is hardware stores in our country are stand that. But deciding not to talk to dangerous. being cleared out of duct tape. Why? them? It is not an option. We have a responsibility, especially People are concerned about the poten- There are only two options dealing in the shadow of the terrorist threat tial of a terrorist attack in our coun- with a problem that serious. One is against this country, in the shadow of try. military. We are not going to do that. what is now happening in North Korea North Korea. Apparently, we read in The second is diplomacy, and that and the potential of the spread of nu- the news—I have not heard it in classi- means we talk. We talk and we talk clear weapons, we have a responsibility

VerDate Dec 13 2002 02:10 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.103 S12PT1 S2276 CONGRESSIONAL RECORD — SENATE February 12, 2003 to decide that job No. 1 is protecting create designer nuclear weapons. Once Yesterday, Mr. Greenspan came to ourselves against the terrorist threat that thinking starts, the thinking that the Congress and I think he poured a 5- and then trying to find ways to reduce you can use nuclear weapons in cir- gallon pail of cold water on President the number of nuclear weapons in this cumstances such as that, others will Bush’s fiscal policy proposals. I am world. say: We can use nuclear weapons. Once thankful for that because the President I have kept in my desk for some long the thinking starts that you can use is proposing, in the face of the largest while a couple of items I have always preemptive strikes against countries budget deficits in history by far, more used to remind us of what this job is because you are worried what they tax cuts, the bulk of which will help about. might do later, other countries will upper income taxpayers. I do not think This little piece of metal, if I may say: We can do preemptive strikes. that is what we need to do for the econ- show by consent, Mr. President, this I worry a lot about where we are omy. little piece of metal is from a backfire headed with the multiple policies with As I said earlier, this economy is not bomber. This bomber was a Soviet respect to weapons programs. I think going to grow if every day, in every bomber. It used to be flown by Soviet we ought to be strong. I have supported way, the lead story is about war, as it aircrews hauling bombs that presum- many weapons programs, but I also be- has been every day and every week and ably would threaten the United States lieve, with respect to nuclear weapons, every month for some long while. This of America. It was at a Soviet airbase we must lead the world. We must stop economy does not grow when that hap- in Ukraine when it was destroyed. the spread of nuclear weapons. We pens. The price of oil increases. People How was this bomber destroyed? Did must reduce the stockpile of nuclear are uncertain about the future, and we shoot it down? No, this bomber was weapons all around the world. It is our they manifest that uncertainty by destroyed with a saw, a large circular job. It is our responsibility. We are the what they do. So we need to get metal saw. We sawed the wings off a world leader. We are the ones. through this. When we get through it, the question Soviet bomber, and we paid for it under ECONOMIC POLICIES is: How is a jump start provided to this Senate appropriations. These are challenging, difficult, We destroyed a bomber, not through tricky times. Every one of us in this ship of state of ours? How is this econ- omy provided a boost? The President hostile action but under what is called Chamber wants this President to suc- says what we need to do is more tax threat reduction. We destroyed mis- ceed. We want our country to succeed. cuts. He said what we ought to do is ex- siles. We took off the nuclear war- I do not want us to have foreign policy empt dividends from taxation. heads. In the Ukraine, where there was failures. I do not want us to have an economy that is in trouble. I want this That is interesting. Certainly, if one once a missile with a nuclear warhead were discussing tax reform, if that aimed at the United States of America, President to succeed. I am a Democrat. He is a Republican. It is in my interest were the subject, they would have that there is now no missile, no nuclear and our country’s interest for him to as part of their discussions, no ques- warhead, and sunflowers are now plant- do well. It is also in our interest, where tion about that. Of course, that is not ed on that ground. Is that progress? we have differences of opinion, dif- the subject at the moment. The subject Boy, I think so. ferences on policies, for us to bring out at the moment is, should we do an eco- This is ground up copper from a Rus- those differences and debate them ag- nomic stimulus package? So the Presi- sian submarine that I assume at one gressively. dent takes the opportunity to say let’s point or another was lingering off the There is an old saying that when ev- exempt dividends. east coast of the United States with eryone in the room is thinking the I am wondering why exempting tax- missiles in its tubes armed with nu- same thing, no one is thinking very ation from dividend checks has a pri- clear warheads. But we did not sink much. I know some do not like that. ority over exempting taxation from that submarine. This is copper wire There are some who think if questions work, such as paychecks. Dividend ground up from a submarine that was are raised these days, shame on you. checks should be exempt; paychecks taken apart under the Threat Reduc- But with the challenges we have in should be taxable? Is that a value sys- tion Program. both domestic and foreign policy, we tem that says let’s tax work and ex- Senator LUGAR, who is a real cham- ought to have questions flying from empt investment? If so, does that make pion of this issue, and former Senator every direction in every corner and sense? I do not know. I do not know Nunn were the first to start the fund- every philosophy of this Chamber and how one chooses that approach. I will talk now about where we are ing by which we actually paid to de- then pick the best of those ideas and and how we have gotten to this point. stroy weapons of our adversaries with suggestions. whom we had agreements on nuclear There is a tendency for each side to Mitch Daniels, who runs the fiscal pol- weapons reductions and the reduction want the other to lose these days, and icy program at the White House—he is of delivery systems. so instead of getting the best of each, at the Office of Management and Budg- We sawed the wings off a bomber; a we get the worst of both, and that does et—has been the prognosticator of submarine, we simply took it apart and not serve the interests of this country, where we have been and what we have been doing. ground up the copper wire. Is that whether it is foreign policy challenges, On March 2, 2001, which is not quite 2 progress? I think it is. If we do not in which I just discussed, or the chal- years ago, he said: this country assume world leadership lenges in economic policy which I am It has become clear that this new era of in stopping the spread of nuclear weap- going to talk about for a moment. We ons and reducing the stockpiles of nu- large surpluses is more dangerous to the tax- really need to understand that there is payer than the preceding era of large defi- clear weapons, our children and grand- not only one way to address these. On cits. children will almost certainly see a fu- some occasions, there are wrongheaded So Mr. Daniels was gnawing at his ture in which nuclear weapons are ideas, things that will make things fingernails worried about these large used. worse with the economy or with for- surpluses: Woe are we; the surpluses It is our job, our responsibility to be eign policy. There are some good ideas, are going to kill us. He said these big a world leader in this area. There are some brilliant ideas, some in the mid- surpluses are a big problem. That was some who seem not to understand or dle. Our job is to select from the range about 2 years ago. care about that responsibility. We have of alternatives and to work with this Then about a year and a half ago, he some right now in this town talking President. said: about designing new nuclear weapons. I will talk for a moment about the We’re going to have an enormous surplus, Let’s design a nuclear weapon, a de- challenge with respect to the economy. $160 billion or more. signer nuclear weapon, that will be a I know there are others who want to So he must have gotten his crystal cave buster. Hard to get into caves? speak. I started by talking about the ball at a Dollar Store, I guess, because Let’s design a little new nuclear weap- Estrada nomination, but I do want to in November—that is, about 15 months on to drop on a cave someplace. take a moment to talk about the for- ago—he said: Apparently, after the al-Qaida situa- eign policy and the economic policies It is, regrettably, my conclusion that we tion in which they hold up in caves, we that I think are significant challenges are unlikely to return to balance in Federal have some people thinking they can as well. accounts before, possibly, fiscal year 2005.

VerDate Dec 13 2002 04:19 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.105 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2277 What happened in that short period system that is curious to me. Why matter of choices. I asked, What of time? Well, we ran into a recession. would work be taxed and investment be choices? Exempting dividends? Or fund- I stood at this desk when they were exempted? Is work less worthy than in- ing an Indian school that does wonder- proposing their $1.7 trillion tax cut and vestment? ful things for people who want to ad- said: How can you be so certain? Maybe Yesterday, we had 10 Nobel laureates vance their education? we will not have surpluses. Maybe we in the field of economics, along with These are the choices. Yet there are will run into some problems. Guess 400 economists, who put an ad in the too many wrong choices being made. what we ran smack into. A recession, a New York Times, I believe it was—it My hope is as we confront these eco- September 11 terrorist attack, a war could have been the Washington Post— nomic challenges and foreign policy against terrorists, the largest cor- saying that this proposed fiscal policy challenges, this country will succeed. porate scandals in the history of this is going to lead to bigger deficits and We have survived a lot. This country country, the tech bubble burst, the bigger problems; it is going to saddle has been through a lot. We have sur- stock market pancake, and all of those our children and their children with vived a Great Depression. We beat back surpluses that Mr. Daniels was worried the burdens that we create, and it the oppressive forces of fascism and about turned to big deficits. makes no sense at all. It certainly will Hitler. This country has achieved what Did that change Mr. Daniels’ mind not stimulate or jump start this econ- no other country in the world has about what we ought to do with the omy. achieved. But it is not because it has economy? Oh, no. He has only one This country is a strong, resilient made bad choices, it is because it made speed in his transmission. In January— country. It will overcome bad policies good choices. just a year ago—he said: from Democrats and Republicans, and The question is, What are those good We project effective balance in 2004. it has had plenty in two centuries. It choices? They do not come from one lo- has also been benefited by good poli- So he is still using that same crystal cation. They come from all corners of cies, by visionaries who had the ball. A month later he says: this Chamber, all corners of this coun- strength and the endurance to stick to try. They come from, yes, the execu- Despite everything, the outlook is prom- those good policies that they knew ising for balance in the year after next and tive branch, but they come from the for a return to large surpluses thereafter. would allow this country to grow, that legislative branch, as well. It does no they knew would invest in working That was 1 year ago. Still predicting, service to our country to not have an families, they knew would give inves- Mr. Daniels says: aggressive, vigorous debate about these tors and entrepreneurs an opportunity. issues. Despite simultaneous war, recession and This country is a great place, but it emergency, we are in a position to fund the Let me finish where I started. I don’t faces very serious challenges at the requirements of victory, plus a stimulus particularly enjoy coming to the floor moment. Those challenges will not be package, and still be near balance. of the Senate saying we ought not vote resolved—domestic and foreign pol- That was 1 year ago. at this point on Mr. Estrada. That is of icy—by having our heads in the sand. March 27—11 months ago: The U.S. Mr. Estrada’s doing, not ours. That is Al-Qaida and terrorism is a very seri- budget is in an extremely good posi- of the White House’s doing, not ours. ous abiding threat in this country tion, Daniels said, adding that: When they ask us to give someone a right now. OMB expected the fiscal year 2002 budget The fact is, homeland security is not lifetime appointment to the Federal deficit to be about $50 billion. adequately funded and everybody bench, and then say to us we have no This is a guy who was excessively knows it. But no one will admit it. right to receive answers to basic ques- worried about having surpluses that North Korea is a bigger problem than tions asked—questions asked and an- were too large. I assume he was not Iraq and everyone understands and no swered by other candidates—we have sleeping; he was worried about large one will admit it. Yes, Iraq is a prob- no right to those answers, then we have surpluses. A year later, he is saying it lem, but it is not the only problem. It a responsibility to say, well, advise and is only going to be a $50 billion deficit. does not even lead the list with respect consent does not mean that we That will be the smallest recession def- to North Korea and the issue of ter- rubberstamp anything sent down to the icit in modern times. rorism. Congress. It means it is an obligation But then we come to February 2003, Having said all that, against that of ours to evaluate. Is this person wor- the same man, same crystal ball appar- backdrop of foreign policy challenges thy of being on the Federal bench? How ently, same prognosticator: as aggressive and difficult as we have do they reason? How do they think? Our projections, which incorporate ex- seen in some long time in this country, How do they approach this job? traordinarily conservative revenue esti- we have an economy that is sputtering I mentioned when we asked ques- mates, see deficits peaking this year, head- and has lost strength. It will not gain tions, or my colleagues on the Judici- ing back thereafter. strength by deciding to borrow more ary Committee asked questions of Mr. Now let me show the chart of Mr. money and add to the Federal budget Estrada, he said he would not answer Daniels. In 2002, he predicted our sur- deficit and do it for the purpose of re- them. Those same questions were plus would be $283 billion. We did not ducing the tax burden of those at the asked of Mr. Hovland. He is now a dis- have a surplus. We had a deficit of $159 upper income levels. trict judge. He answered. Questions billion. In 2003, he predicted we would Upper income people are wonderful were asked of Freda Wolfson. She an- have a surplus of $334 billion. We did people who do a lot for this country. swered the questions. Ed Kinkeade an- not have a surplus. We had a deficit of But should a proposal, when we are up swered the questions. Linda Rae Reade $304 billion. In 2004, he predicts a $387 to our neck in Federal debt—should a answered the questions. All are Federal billion surplus. He missed it by well proposal that gives an $80,000 average judges now because they came to the over half a trillion dollars. tax cut to the American who earns $1 Congress, not expecting and demanding I do not know what to make of this. million a year be a priority in this to be approved, just presenting them- This is the guy who is driving the country? selves as the President has done stage, with apparently 8 or 10 runaway Yesterday, I was at a hearing and I through nomination, to say, here I am; horses, and does not have the foggiest was told by the Secretary of the Inte- now, Members of the Senate, your job idea what is happening in this econ- rior: By the way, we will close, we will is to give advice and consent and to omy. He says we are going to have big zero fund a school called the United vote on this nomination. I am willing surpluses—that is his biggest fear— Tribes Technical College. It is a won- to answer questions. Here I am. Here is turns them into the largest deficits in derful school, 32 years in existence. Na- who I am. Ask me questions. I will an- this country’s history and says: Oh, by tive Americans from across the coun- swer them. the way, I can solve that. Let’s do try, some 40 States, go to school there. Mr. Estrada’s approach was different. more tax cuts, the bulk of which will It gives them a chance in life. These He said: Here I am. But I will only tell go to upper income people, and let’s de- schools are very important. Why are you my name and you get a chance to cide to keep taxing work but we will we going to defund it? Why doesn’t the look at me, but I will not answer your start exempting investment—a value administration want to fund it? It is a questions. We cannot allow that to

VerDate Dec 13 2002 03:28 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.107 S12PT1 S2278 CONGRESSIONAL RECORD — SENATE February 12, 2003 happen. If it happens on this nomina- in Missouri and around the country. It House of Representatives two terms in tion, it will happen on the next nomi- will also inhibit our ability to accom- a row. It is time tested. It is supported nation. plish what we need to do in health care on a bipartisan basis in the House. It What we have said to Mr. Estrada is, for small business. has the broad support of the small answer the questions. We have sub- HEATH CARE INSURANCE business community. It would not cost mitted a list of things he refused to an- I will take a few minutes and talk the taxpayers of this country a dime. I swer that others have routinely an- now about what could be the most sig- am talking about association health swered. We said: Release the informa- nificant measure that we could pass to plans. tion from your term working in the So- expand the cause of access to health in- Let me explain what association licitor’s office. Others have done that. surance for people who work for small health plans are. The best way to think Mr. Estrada is not a judge so we do not businesses in this country. of them is that they would simply em- have much of a record to go on regard- I chaired the Small Business Com- power small businesspeople of whatever ing how he thinks and how he ap- mittee in the House for two terms, and kind to get health insurance on the proaches his responsibilities. from the time I did that, I made it my same terms that big companies already He should, and I hope he will, decide point to interact with small business can. AHPs would reduce the cost of to meet the basic requirements of pro- people around the country and espe- health insurance to small businesses by viding information to the Senate. cially around Missouri. They have a 10 percent to 20 percent. This is how When he does that, in my judgment, I number of problems they are con- they would work. We need to pass a law think we ought to proceed. Until he fronting: Taxes are too high; in many empowering or enabling the major does, in my judgment, we ought not cases they face regulations that do not trade associations, the Farm Bureau, proceed under any circumstance. make any sense, that inhibit them and the Chamber of Commerce, the NFIB, Our job is to give advice and consent hurt them and burden them and accom- the medical associations, to sponsor on a lifetime appointment. Anyone who plish nothing in terms of environ- ERISA health care plans, including self treats that lightly does not understand mental quality or worker safety or any insured plans, the same way big compa- the responsibility under article II of of the social goals we want to achieve. nies can. the Constitution. Many small businesses have difficulty Then, if you joined the trade associa- Let me finish by saying I take no getting access to the capital they need tion, the association would have to pleasure in saying that Mr. Estrada has to grow, to expand, to create jobs. offer you coverage under the plans. additional requirements in front of Those are all problems. We need to They would have to offer it to you. him. But it is he himself who has vis- work on all those problems. But the They would have to carry you. So if ited that upon this Senate. Had he an- No. 1 problem facing small business in you were a small business you could swered the questions and provided the this country today is the rising cost of join the trade association and it would information, we would not be in this health insurance premiums. I have seen be as if you were becoming a little divi- situation. But we are in this situation it all over the State of Missouri. I have sion of a big company. It would be as if of requiring this nominee, before he is been in places in Cape Girardeau, in your small business had been bought voted upon, to provide the basic infor- Columbia, in Joplin, where small busi- by a bigger company and all of a sud- mation that we have requested in con- ness owners report to me premium in- den you were part of a large national sideration of whether he ought to re- creases of 25 percent in 1 year or pre- pool of people without having to pay ceive a lifetime appointment on the miums doubling over 3 years. The ef- the marketing costs or the profit mar- second highest court in this country. If fects of this are incalculable. Small gins of big insurance companies, and and when he provides that information, business people cannot compete effec- with much reduced administrative I will be happy to vote and make a tively for employees. They have to buy costs. One of the big reasons small judgment on Miguel Estrada. poor quality health insurance, and in businesses have to pay more for health I yield the floor. some cases have to drop their health insurance is that the administrative The PRESIDING OFFICER. The Sen- insurance altogether, or else the high cost for small businesses is so much ator from Missouri. premiums suck up money they want to greater. Mr. TALENT. Mr. President, I rise put in wage increases or to expand the As I said, this would not cost the tax- first of all in support of the Estrada business. The high premiums are tre- payers a dime. It is not a Government nomination and to say a word or two mendously unfair to them, very bad for program. It just allows small busi- about it. Mr. Estrada’s qualifications the country and, most importantly, nesses to pool together to help them- are excellent. I reviewed them the very bad for the people who work for selves and their employees. It is not a other day and it struck me that the small businesses. Of the 41 million peo- revolutionary change, but the impact man is so smart it is almost scary: ple in the United States who are unin- would be revolutionary on people who Harvard Law School, Phi Beta Kappa sured today, almost two-thirds of them work for small business who would graduate, clerk of the court of appeals, own a small business or work for a have access to health insurance. The clerked on the Supreme Court, argued small business or are dependents of number of uninsured would be reduced numerous cases before the Supreme somebody who owns a small business. by millions of people. Court. The impact on them is enormous. We have gone years without really I clerked on a court of appeals, and I And think of the impact on the rest good news in the health care sector, mean no disrespect to the members of of the health care system. Just because and association health plans have the the Federal judiciary when I say I wish these folks are uninsured doesn’t mean potential to be that good news. As I every Judge had Mr. Estrada’s quali- they don’t get sick. At a certain point, said, the bill has a history already, at fications when he or she went on the when they get sick enough they go to least in the House. It was introduced bench. Mr. Estrada is competent, quali- the emergency room or they go to the first in the 104th Congress 6 or 7 years fied, honest, and he deserves to be on hospital. Since, those costs are cur- ago by my good friend, then-Congress- the court of appeals. rently unsponsored, they have to be man Harris Fawell. We passed it twice I regret the filibuster that is cur- shifted to the rest of the population or 2 years running in the House. It had rently underway to prevent his con- hospitals have to eat those costs. What strong bipartisan support. I think the firmation. It is unfair to him. It is bad a difference it would make to the peo- bill when we introduced it originally in for the country. Worst of all, it intro- ple of this country and the small busi- the House had 85 Republicans and 25 duces a note of discord into the Senate ness sector and to the economy if we Democrats, including the ranking that makes me discouraged about our could introduce and pass a measure member of the Small Business Com- ability to do the other things we need that would help cover folks who cur- mittee in the House. It has very strong to do for this country—to pull together rently are uninsured. We can do that. support already in this body. I am behind a prescription drug plan, behind I have talked about the bad news. pleased to say the chair of the Small a jobs bill, behind a strong defense that The good news is that we have an idea Business Committee, Ms. SNOWE, is a will protect our men and women in uni- that can fix this problem very substan- strong supporter. Senator BOND is a form, protect our country, create jobs tially. It is an idea that passed in the strong supporter.

VerDate Dec 13 2002 03:28 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00048 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.110 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2279 There is simply no reason why we the Small Business Committee and nity. This is, as he has very well stat- cannot pass this bill. There is nothing people who are supportive of small ed, an extraordinary problem for the in this bill that implicates any of the business in the Senate. reasons he has outlined. great philosophical divisions that sepa- Obviously, as has been said, the ben- It is amazing to me that the small rate the two parties on other kinds of efit of an AHP, or association health businesses in this country continue to issues. The bill is in the mainstream of plan, is by allowing small businesses try to provide coverage. As we know, in both political parties. It would make a with similar interests across State his State as well as mine, they are all huge difference for America, for small lines, across the country, to come to- paying about 30 percent more in terms business, and for the people who are gether in one pool; they can gain the of the premiums than larger compa- uninsured, and we simply ought to get efficiencies of purchasing in volume; nies, and in many instances they have it done. They can gain the advantages of ad- a rapid turnover in terms of the compa- That is the kind of thing I am look- ministering overhead, which can be nies that are available to them. ing forward to working on in the Sen- spread across many businesses. For the This really is an extremely signifi- ate. Let us have an up or down vote on same reason that you pay less for soda cant part of the whole crisis in terms the Estrada nomination and then move in cans if you buy it by the case, or of the uninsured. There are a number forward together. multiple cases, than if you buy it one of different proposals to which we will We have to be able to create jobs. We at a time, buying health care is much have a chance to give focus. But I cer- tainly welcome the fact that he se- have to do something about the health the same. No. 1, you get efficiencies of lected as his maiden speech the whole care situation in this country. We have scale. You also have an opportunity to issue and question about the uninsured to attend to the national defense. We spread the risks. Those who have taken and the challenges that businesses, and should confirm the President’s quali- time to study health care know that small businesses, face. We may have fied nominees such as Mr. Estrada and the broader the pool, the broader the some difference in just how to deal then move on and pass this necessary actuarial component is, the more rea- with the issue, but I certainly look for- measure for small business and for the sonable the limits will be. ward to working with him and others people of the country. I see my colleague from Massachu- to see how we can make progress. I yield the floor. setts is ready to take the floor. I thank him for his statement and for The PRESIDING OFFICER (Ms. COL- Mr. TALENT. Will the Senator yield the fact that he is focusing on an issue LINS). The senior Senator from Mis- for just a moment? I certainly will not that is of such importance to our fel- souri. delay the Senator from Massachusetts. low citizens; that is, the question of Mr. BOND. Madam President, it is a He has been very kind in allowing me the uninsured and how we are going to great pleasure today to be able to wel- to speak, but I wanted to thank the continue to provide insurance for small come my new colleague from Missouri Senator for his kind remarks about me businesses. to this body. I think he will find, since and many kindnesses to me, and espe- Madam President, one of our most we are not limited to 1 minute on this cially coming out on the floor. I also important responsibilities as Senators side of the Capitol, that remarks are want to say, because I see the senior is the confirmation of federal judges. not nearly as concise as they would be Senator from Massachusetts and the These are lifetime appointments. Long in the other body. But certainly his ex- Senator from Nevada and the Senator after we have served our Senate terms, perience there will be of great value. from Utah, how impressed I have been the judges nominated by the President I have been proud and pleased to and how much I feel welcomed by the will continue to interpret the Constitu- know JIM TALENT and his wonderful many senior Members of this body who tion and federal laws. A President’s family for many years in the State of took a moment to come over on their nominees are an enduring legacy that Missouri. I knew him when he served as own and say hello to me. I am just will affect the life of our country and the Republican leader in the legisla- grateful for that. It is a real mark of the lives of our constituents for many ture. I worked with him closely when the congeniality of the Senate. I appre- years to come. he was the chairman of the Small Busi- ciate it. The important work we do in Con- ness Committee in the House. There I thank my friend and colleague from gress to improve health care, reform was a time when the State of Missouri Missouri for yielding. public schools, protect workers rights, had double duty in small business and Mr. BOND. I thank my colleague. I and ensure enforcement of civil rights it was a pleasure to work with him appreciate the indulgence of the Mem- means less if we fail to fulfill our re- then. bers on the floor. sponsibility to provide the best pos- I also know his children and his won- I yield the floor. sible advice and consent on judicial derful wife, Brenda. They are a great Mr. HATCH. Madam President, if I nominations. Tough environmental family. They make a great team. This may ask my colleague from Massachu- laws mean little to a community that fall I got to see a lot of them. They setts for a moment of privilege, I want can’t enforce them in our federal give him the courage and the support to personally praise my colleague from courts. Civil rights laws are undercut if he needs to do an excellent job. Missouri for his maiden speech today there are no remedies for disabled men We also were very saddened that his and for the excellent job he has been and women. Fair labor laws are only father, who meant so much to him, did doing ever since he began here. I just words on paper if we confirm judges not live to see him achieve this victory wish we had him on the Judiciary Com- who ignore them. in the end of the campaign. He lost his mittee as well because we know the For all of these reasons, we must father and, while it was quite a blow to great lawyer he is, and we also know carefully review the qualifications of him, he persevered. It was a mark of about the terrific experiences he has federal judges, particularly nominees the man that he came through these had over in the House and also in pri- to the DC Circuit. Because the supreme very difficult times. vate practice. Court hears relatively few cases, the I know this body will benefit from I just want him to know how much appellate courts are frequently the JIM TALENT’s contributions. He has we appreciate having him in the Senate courts of last resort for millions of been a champion for association health and how proud I am of him every day. Americans. And, of those appellate plans, which I think are essential for I thank my colleague from Massachu- courts, the DC Circuit is one of the enabling small businesses to partici- setts. most important. It has a unique and pate in the competitive marketplace, The PRESIDING OFFICER. The Sen- prominent role among the Federal to secure health insurance for employ- ator from Massachusetts. courts, especially in interpreting ad- ees and their families. JIM has cham- Mr. KENNEDY. Madam President, I ministrative law, and it has exclusive pioned this idea on the House side. I join with my colleagues in drawing at- jurisdiction over many laws affecting know it is a top priority of the Presi- tention to the remarks of our new col- the workplace, the environment, civil dent and the Secretary of Labor, and it league from Missouri speaking on the rights, and consumer protection. For is good to have him leading this charge issue of health insurance, the unin- the most vulnerable among us, the DC in the Senate now, along with Chair- sured and the challenges which are out circuit is often the final stop on the man SNOWE and the other members of there for the small business commu- road to justice.

VerDate Dec 13 2002 04:19 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.113 S12PT1 S2280 CONGRESSIONAL RECORD — SENATE February 12, 2003 Given its location and jurisdiction, from the harmful effects of automobile The DC Circuit’s willingness to over- the D.C. Circuit has often decided im- exhaust. In addition, the court took turn National Labor Relations Board portant cases involving separation of strict action when it upheld the ban on decision is deeply troubling because of powers, the role of the federal govern- the manufacturer and sale of the pes- the precedents being established. In ment, the responsibilities of Federal ticides DDT, heptachlor and chlordane. Freund Baking Co. v. NLRB, it re- officials, and the authority of Federal But in the mid-1980s, conservative versed the NLRB and set aside a union agencies. In the 1960s and 1970s, the DC judges on the DC Circuit began cutting election because the court felt that a Circuit had a significant role in broad- off access to the courts for environ- wage and hour lawsuit brought on be- ening public access to agency and judi- mentalists and injected an anti-envi- half of several workers shortly before cial proceedings, expanding civil rights ronmental point of view into decision the election interfered with a fair elec- guarantees, overseeing administrative after decision, regardless of even Su- tion. agencies, protecting the public interest preme Court precedents. In American In Macmillan Publishing. Co. v. in communications regulation, and Trucking Associations v. EPA in 1999, NLRB, the board had overturned a strengthening environmental protec- the DC Circuit issued a harsh decision union representation election, finding tions. denying the EPA the authority to es- that a company prevented a fair elec- In the 1980s, however, the DC Circuit tablish health standards for smog and tion by distributing a leaflet telling changed dramatically because of the soot. That decision was unanimously employees to vote against the union or appointment of conservative judges. As reversed by the Supreme Court. In an- risk losing a previously announced its composition changed, it became a other notorious decision, Sweet Home wage increase. The DC Circuit reversed move conservative and activist court— Chapter of Communities for a great Or- the board’s action. striking down civil rights and constitu- egon v. Babbitt, it struck down habitat The DC Circuit’s hostility to the tional protections, encouraging deregu- protections for endangered species. NLRB, to the detriment of workers and lation, closing the doors of the courts This decision also was reversed by the their unions, is also illustrated in to many citizens, favoring employers Supreme Court. other cases dominated by Reagan Bush over workers, and undermining federal When Congress passed the National appointees. In International Paper Co. protection of the environment. Labor Relations Act, it guaranteed v. NLRB, the court overturned the In the 1960s and 1970s, the DC Circuit workers the rights to join a union board’s decision and held that the com- expanded public access to administra- without discrimination or reprisal by pany’s permanent subcontracting of tive proceedings and protected the in- employers, and to bargain with em- employees’ job during a lockout was an terests of the public against big busi- ployers over the terms and conditions unfair labor practice. In Detroit Typo- ness. For example, the court enabled of employment. The National Labor graphical Union v. NLRB, the court more plaintiffs to challenge agency de- Relations Board interprets and en- overturned the NLRB’s determination cisions. It held that a religious group— forces the act and reviews appeals of that Detroit News and Free Press had as members of the listening public— decisions by administrative law judges. committed an unfair labor practice could oppose the license renewal of a NLRB decisions are appealable to the when it unilaterally implemented a televisionstation accused of racial and circuit court, where the unfair labor merit pay proposal immediately prior religious discrimination. It held that practice is alleged to have occurred, or to the beginning of a 19-month strike an organization of welfare recipients here the employer resides or transacts by newspaper employees. In Pall Corp. was entitled to intervene in pro- business, or in the DC Circuit. As a re- v. NLRB, the court overturned the ceedings before a Federal agency. No sult, the DC Circuit is always available board’s determination that it was an longer would these agencies be able to as a forum to challenge decisions of the unfair labor practice for an employer ignore the interests of those they were board. to unilaterally revoke a contract provi- supposed to protect. In 1980, the DC Circuit fully enforced sion on ways for the union to obtain But in the 1980s, with the ascent of the board’s decision 83 percent of the recognition at other facilities. conservative appointees, the DC Cir- time, and at least partly enforced the The DC Circuit also vacated a deci- cuit began denying access to the board’s decision in all the other cases. sion by the board to include handi- courts. It held that a labor union could By the year 2000, when the court had a capped workers at a Goodwill produc- not challenge the denial of benefits to 5-to-4 Republican majority, including a tion facility in the same bargaining its members—a decision later over- solid majority of Reagan/Bush ap- unit as other employees. The court turned by the Supreme Court. It held pointees, the DC Circuit enforced in held that the handicapped workers that environmental groups are not full only 57 percent of NLRB cases and were not employees. And in C.C. East- qualified to seek review of EPA Stand- enforced at least part of the board’s de- ern v. NLRB and North American Van ards under the Clean Air Act. These de- cisions just 70 percent of the time. Lines v. NLRB, the court overturned cisions are characteristic of the DC These enforcement statistics put the the board’s ruling that truck drivers Circuit’s flip-flop in the 1980s. After DC Circuit significantly below the na- are employees. Instead, the court held decades of landmark decisions allowing tional average of an 83.4 percent en- that the drivers are independent con- effective implementation of important forcement rate for the board in all the tractors unprotected by the National laws and principles, the DC Circuit is courts of appeals. Labor Relations Act. now creating precedents on labor Given these statistics, it is not sur- Immediately after Congress passed rights, civil rights, and the environ- prising that the DC Circuit has become the Occupational Safety and Health ment that will set back these basic the circuit of choice for employers try- Act of 1970, the DC Circuit issued major principles for years to come. ing to overturn NLRB decisions. In decisions that protected workers from In the 1970s and early 1980s, the DC 1980, the DC Circuit heard only 3 per- job-related hazards. The DC Circuit Circuit advanced the cause of environ- cent of the NLRB appeals heard by the issued a landmark ruling in United mental protection. In this period, the circuit courts. The DC Circuit ranked Steelworkers of America v. Marshall, court interpreted the Clean Air Act in next to last of all the circuits. Only the which upheld OSHA’s standard on lead ways consistent with Congress’ intent. Tenth Circuit heard fewer cases. in the workplace. This case continues In Lead Industries Associations v. As the Reagan/Bush effect on the DC to be important, because it upheld EPA, the court held that the EPA can- Circuit took hold, the court became in- basic principles and protections that not consider economic costs to indus- creasingly attractive to industries, and the agency went on to use in many try in setting air quality standards, be- the court;’s share of NLRB cases stead- other workplace safety standards. cause Congress had made health the ily rose. By the year 2000, the DC Cir- The DC Circuit also held the OSHA paramount concern in setting these cuit ranked first among all circuit Administrator to a high standard in standards. courts in the percentage of NLRB cases implementing the law. In 1983, the Decisions in leaded gasoline cases herd by those courts. Almost one in court ordered OSHA to expedite rule- also significantly advanced the effort five cases—18 percent—were filed in the making on ethylene oxide, a highly to reduce air pollution and protect peo- DC Circuit, and employers brought by toxic substance used to sterilize med- ple—particularly children in cities, far the largest number of these cases. ical equipment. In a subsequent case,

VerDate Dec 13 2002 03:28 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00050 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.024 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2281 the court sent an ethylene oxide stand- title VII even when there has been no tration has its way, we will see the ard back to OSHA for failure to adopt loss of tangible job benefits. The court continued erosion of civil rights laws. a short-term exposure limit that would also held an employer can be held lia- It is obvious that Mr. Estrada has have made the standard more protec- ble for sexual harassment by a super- been nominated to a court that is over- tive. visor, even if the employee is unaware turning important precedents and mov- In 1987, after unacceptable delay by of the supervisor’s actions. ing farther and farther to the right—a OSHA, the court ordered the agency to These cases were all important steps court that disregards congressional in- issue a field sanitation standard requir- on civil rights, enormously important tent and the letter and spirit of the law ing toilets and drinking water for to the kinds of conditions in the work- it has a duty to respect—courts like farmworkers, to protect them from dis- place, particularly for women on equal the current administration, more in- ease. pay and also in terms of the issues on terested in serving big business than in Today however, employees no longer sexual harassment. This was major serving justice. see the DC Circuit as a court in which progress in decisions made by the DC As I reviewed just briefly why this to bring worker safety and health ac- Circuit. nominee is so important, we get asked tions. Despite the court’s earlier will- People say: Why are we so concerned why is this particular nominee so im- ingness to hold OSHA to its statutory about this particular nominee? I have portant? As I mentioned, it is the DC mandate to protect workers, workers been trying to review for the Senate, Circuit. It is making and has made are turning elsewhere for relief, and big this afternoon, these various areas. these judgments time and time again business is counting on the DC Circuit Whether we are talking about the envi- in protecting individuals and the envi- for assistance. It is no accident that ronment, whether we are talking about ronment and protecting workers. We the National Association of Manufac- worker safety, whether we are talking have seen a significant shift in recent turers and other trade associations about issues on women’s rights—equal times. What we are trying to find out who filed a lawsuit to overturn OSHA’s pay, freedom from harassment—all of is what the nominee’s views are in the ergonomics standard chose the DC Cir- these judgments and decisions that general areas I have mentioned in cuit to bring their petitions for review. have been made by the DC Circuit have which this court has such important In decades past, the DC Circuit was advanced the cause of greater protec- jurisdiction. in the forefront of upholding Federal tion and greater equality for the citi- We could get no answers on the issue protections for minorities and women. zens in the workplace. of workers rights, no answers on the One of the most notable cases on racial These cases were all important steps issue of civil rights, no answers on the discrimination was a 1969 decision up- on civil rights. But when more conserv- issue of the environment, no answers holding measures to end the over- ative judges were appointed, the tide on the issue of the broad sweep of dif- crowding and segregation of schools in began to change. In 1973, the DC Cir- ferent questions that come in terms of the District of Columbia. In another cuit had required the Federal Govern- administrative agencies and the impor- important decision, the court held that ment to take steps to end segregation tance, what kind of precedence, what a written examination had a disparate in educational institutions receiving kind of latitude they give to adminis- impact on African Americans applying Federal funds. But a decade later, by a trative agencies. No, we are not enti- for positions in the police department. 6-to-4 vote, the DC Circuit held in tled to those answers at all. Absolutely The court held that unless the test had Adams v. Richardson that the plain- none. We just are denied any kind of sufficient relationship to job perform- tiffs could not obtain judicial review of opportunity to hear any response as to ance, it violated the Constitution. the Federal Government’s settlement a court of this importance. We are enti- The DC Circuit also contributed im- with higher education institutions, de- tled to hear the nominee, not for his portant precedents for women seeking spite the Government’s abandonment specific outcomes of a particular case justice and equality. In Laffey v. of its own desegregation criteria. but to show an understanding and a Northwest Airlines, female flight at- The workers and the firms affected grasp and an awareness of the impor- tendants were assigned to the all-fe- by such decisions are well aware that tance of the laws and a sense of the male ‘‘stewardess’’ classification, while the DC Court of Appeals is a powerful type of commitment he has in terms of men who performed essentially the court. This fact is not lost on the cur- fundamental constitutional protec- same job were paid more and called rent administration. For over two dec- tions. ‘‘pursers.’’ The female flight attend- ades, Republican administrations have I urge my colleagues to heed the ants sued Northwest Airlines for sex worked diligently to reshape this court warnings of the many Latino organiza- discrimination. The district court held and other courts. Current judicial tions and leaders who have raised con- that Northeast Airlines had violated nominees are clearly being chosen for cerns about Mr. Estrada’s nomination. Federal law, and the DC Circuit upheld their ideological beliefs. As 52 Latino labor leaders have writ- the argument that the Equal Pay Act None of us should have any doubt ten: extended to identical jobs, and held that the Bush administration is in- America’s working families look to the that it required equal pay for ‘‘substan- tensely pursing this goal today. federal courts to protect our rights at work, tially equal’’ jobs. The President’s nominees to the cir- to stop unfair labor practices by employers, This principle was emphasized in cuit courts are among the most con- and to ensure that employers respect laws Thompson v. Sawyer, involving a claim servative lawyers and judges in the regarding fair pay and equal treatment on of sex discrimination by employees of country. This administration is doing the job. the Government Printing Office. The all it can to reshape the Federal judici- Of all the federal courts, none—other than court held that jobs may be ‘‘substan- ary for a generation or more to come in the U.S. Supreme Court—is more important to working people than the U.S. Court of Ap- tially equal,’’ even it they involve its own conservative image. In doing peals for the District of Columbia Circuit. It work on different machines or equip- so, the administration is undermining is in this court that the legal rights of work- ment, as long as the skills, effort, re- the enforcement of important environ- ing people are won and lost. After a careful sponsibility and working conditions mental, labor, worker safety, immigra- review of Mr. Estrada’s record, on behalf of are the same. tion, and civil rights laws while ad- the working families of America, we have de- All of these decisions are advancing vancing harsh new policies. cided to oppose the nomination of Miguel the cause of equal pay for women in If this administration has its way, we Estrada. the workplace, enormously important will soon be drilling in the Arctic Na- These concerns are shared by the decisions. Because of these decisions, tional Wildlife Refuge, developing and United Steelworkers of America, the we see further compliance by other exploiting wetlands and waterways UAW, Community Rights Counsel, De- companies, knowing that this is the protected by the Clean Water Act, and fenders of Wildlife, Earth Justice, the law and it has to be respected. undermining policies that protect our Endangered Species Coalition, the En- In the late 1970s and mid 1980s, in the environment. vironmental Defense Fund, the Envi- area of sexual harassment, the court If this administration has its way, ronmental Working Group, Friends of held in a series of cases that sexual employees will have fewer labor and the Earth, the Sierra Club, the Wilder- harassment in the workplace violates workplace protections. If this adminis- ness Society, the Mexican American

VerDate Dec 13 2002 03:28 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00051 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.028 S12PT1 S2282 CONGRESSIONAL RECORD — SENATE February 12, 2003 Legal Defense Fund, the Puerto Rican ond time in 4 weeks the Congress will about another aspect of the President’s Legal Defense Fund, the Congressional reject President Bush’s inadequate edu- proposed budget to us, with which I Hispanic Caucus, the Congressional cation budget and insist on increased have found serious concern. Black Caucus, and many other organi- resources to carry out school reform. First, on the Estrada nomination for zations. And for the second time in 4 weeks, Re- the DC Court of Appeals, Miguel Earlier today we had meetings with publicans and Democrats in Congress Estrada has been nominated for that the leaders of the Hispanic Caucus. will reject the administration’s ongo- position, and, frankly, the concern I They reviewed with us how they have ing drive to divert scarce public school bring to this issue is that many of my interviewed various nominees over re- funding to private school vouchers. good friends and people whom I respect cent years, how they were able to get I see the Senator from Maine who, in the House of Representatives, in the some kind of a sense, and the degree of with our friend and colleague from Hispanic Caucus, have indicated that support they had given to many other Connecticut, during the authorization they oppose his nomination. When I nominees who they had a particular in- spoke so eloquently about the impor- said many, I should have said all. They terest in, who had a Hispanic back- tance of funding of title I. We made im- had quite a discussion and quite a pe- ground, and how they interviewed this portant progress in including approxi- riod of investigation of this nomina- nominee. mately 500,000 more children who tion, and they concluded unanimously I will take some time tomorrow to would be eligible for title I as the re- that the Hispanic Caucus of the House review in some detail with the Senate sult of the omnibus bill. of Representatives would oppose the their conclusions and their observa- The final year budget which effec- nomination. I have been contacted by tions. They are the ones who speak for tively will provide resources that will several members of that caucus and the Hispanic community. They are the be available to the school systems this urged to resist the nomination in the ones who understand the hopes and spring will provide 3.2 billion in edu- Senate. As I say, I have not taken the dreams of so many of our Hispanic cation over the previous year and 2.8 time to look into it in detail myself, brothers and sisters. They are the ones billion over President Bush’s budget. but I have great respect for these gen- who have, through life experience, a Title I, the key school reform program, tlemen and women who have worked keen awareness and understanding the No Child Left Behind, would be in- hard on this issue, and their strong op- about the importance of justice. creased by $1.4 billion, helping half a position is of concern to me. But some of the statements they million more needy children to be fully I am also concerned that not a single made this afternoon, which I found so served. In my State of Massachusetts, Democratic member of the Senate Ju- compelling, were the fact that when 46,000 more children will be served. diciary Committee determined to sup- the dust settles on the Presidency, IDEA will increase by $1.4 billion, put- port the nominee after hearing the whether it is one party or the other, ting us a step closer toward fully fund- nominee’s answers to questions before when the final action is taken in the ing the program as promised. My own the committee. I share my colleagues’ appropriations and the legislative State of Massachusetts will see a $32 concerns as expressed by many of those branch, the one place the Hispanics million increase in special education members on the Judiciary Committee have historically been able to look to funding. that we simply do not have enough in- and have a sense of confidence has been Support for improved teaching qual- formation about this nominee at this the American judicial system. They ity and reducing class size will increase time to cast an informed vote. During consider it sacrosanct in terms of the by $100 million—not nearly enough, but his confirmation hearing, he was not types of challenges they are facing we are going in the right direction. We willing to answer many basic questions will improve the quality of 24,000 more daily in our society. They challenge us that were propounded to him. He was teachers across the country. Programs to preserve that kind of equality. evasive when asked about his judicial They reviewed in careful detail, not that help English language learners philosophy. He refused to provide sam- just for us but for Americans, in the master English will increase by $25 ples of his work from the time he form of our meeting this afternoon million and will help 37,000 more chil- served in the Solicitor General’s Office. with the press exactly why they are so dren learn English. There have been requests for informa- We have made strong steps toward strongly opposed to this nominee. tion made that, in my view, have been meeting the promises of full funding I stand with these groups and the reasonable. outlined in No Child Left Behind and millions of Americans they represent As I understand it, the chairman and NIDA. But it is not enough. Teachers and urge the Senate to reject the nomi- ranking Democrat on the Judiciary and students need more support. nation. Committee and Senator DASCHLE are Teacher shortages are getting worse, continuing to request additional infor- EDUCATION FUNDING class sizes are increasing, State defi- mation before any vote is cast on that Mr. President, I see my friend and cits are skyrocketing. So we have a colleague from New Mexico. I would nomination. good deal of work to do. But as a result Some have attempted to turn this de- like to, if I may, proceed for about 3 or of the decisions that have been made 4 more minutes on a different subject, bate into a debate about the nominee’s recently in the Senate and in the con- ethnicity. I don’t believe that is the but one I know he is very much inter- ference report, there is some good news issue. I have supported many Hispanic ested in. I think it is important to on the way. candidates. In my State, I had the bring to the attention of the Senate. I thank my friend and colleague from That is the outcome of the omnibus New Mexico for permitting me to fin- great honor to recommend to President 2003 budget in the area of education. ish. Clinton, our previous President, and he We are going to have the final budget I yield the floor. in fact appointed a Hispanic nominee conference report in the next several The PRESIDING OFFICER. The Sen- to our Federal court in New Mexico. hours, but there are a number of parts ator from New Mexico is recognized. But that support was based on having a of it that effectively have been closed. Mr. BINGAMAN. Madam President, full record regarding the candidate’s It is important, since it affects the let me first thank my colleague from qualifications in each case. We do not families in this country who are con- Massachusetts for his eloquent state- have a full record as to this nominee at cerned about education, that we take a ment on the Estrada nomination and this point. I hope when we attain it, moment to review the positive out- also his other statement about the then we can move forward with the come that has taken place in the omni- level of funding for education con- vote at sometime in the future. bus 2003 budget that marks a victory tained in the omnibus appropriations THE PRESIDENT’S PENSION PROPOSAL for parents and teachers and principals bill. I know how hard he has worked on Madam President, I want to talk for and schoolchildren across the Nation. that issue for many years. I commend a few minutes about a set of proposals When the omnibus 2003 spending bill him for the progress that has been the administration has made related to is reported out of conference later to- made, and I agree with him that much pension coverage that I think are of se- night, it will include an education more progress needs to be made. rious concern. You might say, where budget increase that is eight times I want to say a few words about the does that fit into the other major President Bush’s request. For the sec- Estrada nomination and also talk issues being discussed here? As I see it,

VerDate Dec 13 2002 03:28 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00052 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.022 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2283 the President has presented his new need help the least. The President’s the first to point those out, and I have budget to the Congress, and part of proposal is based on the creation of two pointed them out many times. But to that budget involves reductions in rev- new super-IRAs: There is the RSA, Re- take away what we currently have in enue. Now, the portion of those reduc- tirement Savings Account, and the the way of a private retirement system tions in revenue that has been focused LSA. Each of these would allow indi- and the incentives that underpin that on most is the stimulus package, the viduals to set aside $15,000 a year in the system at this time I think would be recommended elimination of the tax on two together for favorable tax treat- very wrongheaded. dividends from stock, the recommenda- ments. Those with additional resources There is a rational basis for encour- tions to accelerate the anticipated would be able to set aside an additional aging employer-provided plans. Let me changes in the income tax rates; all of $75,000 a year for other family members show this chart which gives some sta- that has been what people have focused who could set up their own LSA; so if tistics. This is a Department of Labor on. you had two or three children, or a chart. It shows that for all workers for There are other parts of what the spouse, you could certainly do it for 1999, the coverage for all private sector President has proposed to us which are them as well. While some would benefit workers was 44 percent. That is, 44 per- also deeply troubling. I think it is time from this type of arrangement, the cent of private sector workers in the we begin to focus on those. The Presi- vast majority of Americans would be country had some kind of pension plan. dent has made some recommendations unable to find the resources to save on In those firms where the employer that I think carry with them some their own. sponsored a plan, it was substantially great danger. The creation of these new accounts higher. It was 58 percent. The partici- Let me address the first chart called negates the tax advantages currently pation when the employer sponsored a ‘‘Passed and Proposed Tax Cuts.’’ This available only for employer-provided plan was 75 percent for all workers. chart makes the obvious point that, in plans. The likely result is that without The point of this is clearly that em- 2001, Congress passed a major tax cut these current tax advantages, employ- ployee participation increases when bill which, over a 10-year period, was ers will simply stop offering their employers are sponsoring a plan. We estimated to reduce revenue to the plans. It will no longer be economical, have the very same thing as Federal Government by $1.35 trillion. That is a and it will no longer be the most effi- workers. The Federal Government says very large tax cut. At the time, there cient way to meet their own retire- that if we wish to put away funds for was great fanfare by those who sup- ment needs. retirement, the Federal Government, ported it that this was the largest tax About 80 years ago, Congress began through the Thrift Savings Plan, will cut in our Nation’s history. It reduced to offer employers preferential tax match the contribution that Federal individual tax rates; it repealed, essen- treatment if they would help their em- workers make up to a certain percent- tially, a temporary estate tax, in- ployees to pay into pension plans. age. I think it is 5 percent, in that creased contribution limits to retire- Then, as now, the Congress appreciated range. ment plans. the need to get the employer involved This is very similar to the kind of Two weeks ago, Congress received in the employee’s retirement savings. employee plan that many have—a the President’s proposed budget for In doing so, we created a series of non- matching plan. Some employers say this year. That budget says we should discrimination rules to guarantee that they will match dollar for dollar; some add to the $1.35 trillion and the 2002 employers provide benefits to all em- say they will match 50 cents for each stimulus bill a new tax cut, a new se- ployees, not just those who are the top dollar the employee puts in. The main ries of tax cuts that add up to $1.46 tril- level employees. point is, workers will take advantage We have seen many examples in re- lion. People say that is not the right of employer retirement plans when cent months, beginning with the Enron figure. The figure discussed here is 670- those plans are offered. scandal and then in the case of some-odd billion dollars; that is what This chart demonstrates one other WorldCom, and many others, where top it is going to cost, not $1.46 trillion. point, and that is, when you get down individuals in corporate structures But I refer you to the budget docu- to minority representation, the per- have benefited extremely well, while ments that were presented to the Con- centage of minority workers who are the average worker has been left unas- gress. We had a hearing in the Finance covered by pension plans is substan- sisted. Committee the other day with our new We have put in place in the tax law a tially less than the percentage in the Secretary of the Treasury. I asked him requirement that there not be discrimi- population as a whole, and there is about this. He said: I am not sure that nation in pension coverage. We also only 27 percent in the case of Hispanic is the right number. We read it back to created a series of tax incentives that workers, but it goes up dramatically him out of his own budget documents. encouraged employees to set aside where the employer is sponsoring the That is the right number. It includes their own funds in these same ac- plan. It goes from 27 percent to 68 per- the stimulus package, but it also in- counts. The combination of incentives cent. So employer sponsoring of plans cludes the CARE Act, MSA expansion for employers and incentives for em- is a very substantial factor in causing and permanency, and the proposal re- ployees have always been premised on people to save for their retirement. lated to pensions. the employer offering the employees a The administration, in my view, Let me talk about the pension-re- plan in which that employee could should be focusing on ways to encour- lated provisions for a few minutes. In save. age more employers, particularly small my view, these pension-related provi- Over the years, we have made signifi- businesses—in my State, most employ- sions that the President is now urging cant changes and adaptations to the ers are small businesses—to offer their on the Congress could have a dev- system. The primary goal has been to employees plans. We should not be giv- astating effect on retirements and the encourage employer-provided plans and ing employers reasons not to offer ability of workers to save for their re- to encourage employers to assist em- those plans or to discontinue plans tirement. These proposals mark a dan- ployees in this very important finan- they have historically offered. gerous and irresponsible shift away cial goal that employees need to have. Last year, Edward N. Wolf of the from existing policies that are in- The President’s current proposal, in Economic Policy Institute presented a tended to encourage retirement saving my view, dramatically ends this policy, report entitled ‘‘Retirement Insecu- by all of our workers in employer-pro- ends this effort to encourage employers rity: The Income Shortfalls Awaiting vided plans. to help employees save for their retire- the Soon to Retire.’’ That report dem- The proposal the President has made ment. At a time when we are facing onstrated the shift away from defined is to deemphasize employer-provided huge funding deficits in Social Secu- benefit plans to defined contribution plans and essentially take away the in- rity, it seems to me reckless to be con- plans over the last 30 years, and we centives for continuation of those sidering removing the underpinnings have seen that shift. It demonstrated plans and, instead, shift to a system and the stability of our current private that shift has not, in fact, improved where everyone is left to fend for him- retirement system. our Nation’s coverage rate, as it was self or herself. In my view, this would Our current private retirement sys- advertised to do. Instead, it has re- benefit only those in our society who tem has many defects, and I would be duced the overall retirement wealth for

VerDate Dec 13 2002 04:14 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00053 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.121 S12PT1 S2284 CONGRESSIONAL RECORD — SENATE February 12, 2003 the bulk of the workers in this coun- excess of a million dollars saw their re- top 10 percent receive 43 percent of the try. tirement wealth increase in 1999. This benefits and the top 1 percent get ap- The primary reason the companies chart shows every other class of re- proximately 10 percent of those bene- have shifted to these defined contribu- tiree. It starts with those with incomes fits. tion plans—and defined contribution of less than $25,000; $25,000 to $50,000; The President’s proposal, as I under- plan, of course, is nothing except a $50,000 to $100,000; $100,000 to $250,000; stand it, would significantly shift the plan which specifies how much will be $250,000 to $500,000; $500,000 to $999,999; Government-provided tax benefits to put in rather than specifying how and then over a million. the upper income categories, as only much a benefit the retiree will finally Between the period of 1983 and 1998, those with disposable income would be receive as a result of a plan—but the the changes in retirement wealth have able to participate. Unfortunately, this primary reason companies shifted to been negative. There has been a reduc- proposal we have been given makes it these defined contribution plans is that tion in retirement wealth for every sin- more cost effective and less adminis- under these plans, the employees make gle group in our society with the excep- tratively burdensome for employees to the majority of the contributions. The tion of those who earned over a million fund their own retirement outside of employee is the one who bears the risk dollars a year. That is the unfortunate the qualified plan. So the result is about what happens to the funds in- reality we face in this country. most workers will find themselves vested in that plan. This reduces the The President’s proposal would speed without an employer-provided plan employer’s cost. It makes it far more up this wealth gap immeasurably by that provides salary deferrals and of- attractive to the employer than a tra- forcing workers to solely fund their tentimes significant employer con- ditional pension plan. own retirement savings. For example, tributions. Instead, most workers will The President’s proposal takes it one under the President’s proposal, a have to put aside their own funds each step further, and it shifts us one step wealthy executive would be able to paycheck, either without a tax benefit further away from employer participa- save almost $50,000 a year with tax or the receipt of a tax benefit that does tion in retirement savings. In many preferences for a family of four, and not come until the end of the tax year. cases, the small business employer meanwhile workers living paycheck to Sadly, for many American families, would be able to save more themselves paycheck would likely be unable to set there are not enough resources avail- with the new IRA, so they could put aside any significant amount for retire- able for them to pay all of their ex- away $7,500, they could put away $7,500 ment. penses and still do what the President for their wife, and they would be able Clearly, what will be good for the top has in mind. to provide certain higher income em- floor will not be good at the shop floor I do not know what all of the motiva- ployees with matches, for the employ- level. This is not the first time Con- tions were behind this proposal. Before we move ahead, I very much hope we ees’ savings as well, without running gress has looked at IRAs. In 1986, as can look at it in great depth during afoul of any current discrimination part of the major tax reform we did hearings in the Finance Committee. As rules. then, we created what we call the ac- far as I can tell, it is designed to pro- Since IRAs are not covered by dis- tive participation rules that are still in vide tax incentives for additional sav- crimination rules or by ERISA, the em- place today. These rules limit those ings by those who need them the least, ployer could pick and choose which who can participate in an IRA based on and it certainly would have the effect employees they want to provide income. The reasons for the rules are of undercutting the employer-spon- matches to; they could provide those simple: Data clearly indicated the only sored retirement system we have long matches in the form of bonuses, or people taking advantage of IRAs at tried to strengthen. whatever. That is not allowed under that time were upper income people As I indicated earlier, I am one of the current rules and, in my view, should who also had employer-provided plans. first to admit the current employer- not be allowed. If an employer wanted, Congress realized then, as we still ap- sponsored retirement system we have they could even contribute to family preciate now, that IRAs are not uti- is not adequate and needs to be members, to shareholders, or to other lized by lower income workers. The strengthened, but eliminating the pri- nonworkers and avoid making con- President is proposing to essentially vate retirement system we have and tributions to the average worker work- replace the current retirement system undermining the incentives for em- ing for that company. with IRAs, and thereby ensuring lower ployers to maintain that system is not I think, for good reason, Congress has paid workers are not saving for retire- the solution to the problem. always opposed the creation of this ment. I yield the floor. kind of mechanism which would open According to the 1999 IRS statistics, The PRESIDING OFFICER (Mr. AL- the possibility for discriminatory that means less than 5 percent of in- EXANDER). The Senator from Utah. treatment among workers. The Presi- come earners who made less than Mr. HATCH. Mr. President, it seems dent’s proposal, in my view, opens the $50,000 a year were, in fact, putting to me if the Democrats are going to fil- floodgate to a whole range of new funds into an IRA. That means 95 per- ibuster, they ought to give some rea- abuses of this kind. cent of those earning $50,000 or less did sons for their filibuster. They have said At the same time, coverage rates not put a single dollar into an IRA. The they are going to filibuster, for the have remained flat and as employers majority of working families clearly do first time in the history of this coun- have shifted toward defined contribu- not need or benefit from expanding try, a Federal circuit court nominee, tion plans, the retirement income of IRAs as the President would have us and the first Hispanic nominated to the retirees, and those near retirement, do. Circuit Court of Appeals for the Dis- have decreased as compared to their A shift toward this type of savings trict of Columbia. current incomes. This is not new infor- away from employer-provided plans Where are they? We have had all mation to a great many older Ameri- will not help the majority of our work- kinds of talks on foreign policy, on cans. ers. running down the President’s financial In 1989, roughly 30 percent of house- This final chart indicates, using De- plans, running down his foreign policy. holds were projected as living on less partment of Treasury data from 1999, it I heard one Senator today talk about than half of their preretirement in- is clear we still have a great distance the real problem is North Korea. Of come. If we look a decade later, by 1998 to go. Based on the data reflected on course, it is a real problem. So is Iraq. this number had increased to 42 1⁄2 per- this chart, the lowest 40 percent of in- So is Osama bin Laden. cent. For African Americans and His- come earners receive roughly 2 percent These are the people who watched me panics, the numbers are significantly of the tax benefits currently provided in the middle of the 1990s be the first worse. In 1989, there was 43 1⁄2 percent under our Tax Code. one to tell President Clinton he better who lived on less than half of their pre- That is the lowest 20 percent, and the get on Osama bin Laden because he is retirement income. By 1998, that had second 20 percent, added together, get going to kill Americans. I actually was grown to over 50 percent—53 percent. about 2 percent. The lowest 60 percent the first to bring that forth. The Wolf report demonstrates that receive a little less than 12 percent of I have been on the Senate Select only those with retirement wealth in those benefits. At the same time, the Committee on Intelligence twice. They

VerDate Dec 13 2002 04:14 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00054 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.124 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2285 did nothing, and now they are moaning To do it against the first Hispanic never seen anything more unfair than and groaning because we have inher- nominated to the Circuit Court of Ap- what is happening here. With Senators ited a problem that has existed for a peals for the District of Columbia is hiding behind this, I think, phony re- long time. Because nothing was done? particularly reprehensible, especially quest for documents they know they Now they are saying, well, we should since he has every qualification a per- should not have a right to have and be concerned about North Korea. Yes, son needs to fulfill this responsibility. then try to represent on the floor that we should be. We should be concerned The White House and the general the few cases where somebody leaked about everything. counsel’s office have been working documents to them, that were not rec- It does not take many brains to real- overtime day and night to answer all ommendations for appeals, rec- ize a lot of the finances that come for the questions these people have asked ommendations for amicus curiae briefs, the terrorist movement throughout the over and over that are ridiculous in na- recommendations for certiorari, none Middle East and throughout the world ture. They have made Miguel Estrada of them were, but some were leaked come from Iraq. They have supported available for any Democrat who wants from the Solicitor General’s Office by virtually everybody. The Egyptian Is- to talk to him. The Democrats con- partisan Democrats and they have lamic Jihad, that is where Al-Zawahri ducted the hearing. It was all day, some of these. comes from. He is No. 2 to Osama bin which is extraordinary in and of itself. They have not seen fit to let us have Laden. That is where they have gotten They controlled every aspect of that copies of them, other than what they a lot of their money. They support the hearing. They asked the questions that are putting in the RECORD. We have Palestinian Islamic Jihad. They sup- they wanted to ask. He did not answer asked for them, but they did not have port virtually every Islamic terrorist some of them the way they would have time to give them to us. The one case group around. Now we are supposed to preferred. Then they could have de- they can show where the Department just stand back because some of the feated him for sure. That is not his job really did give some documentation Democrats think we ought to con- to try to please the Democrats or me was in the case of Robert Bork. The centrate our efforts on North Korea. Of or anybody else. His job is to tell the Department produced some documents course, we are concentrating our ef- truth, which is what he did. And he had concerning Bork’s firing of Archibald forts there. The President is doing ev- an obligation to tell the truth without Cox. It was a specialty situation. But erything he should do. It is not quite saying how he would vote on any given they were not documents of rec- the same. Those people are hemmed in issue, or otherwise he would have to ommendations of employees in the So- by China, who they have to have just recuse himself after he gets on the licitor General’s Office concerning ap- for food, and it is not in China’s best bench and be less effective. peals, concerning certiorari appeals, interest to allow North Korea to have Some of the arguments we have had and concerning amicus curiae briefs. around here are ridiculous. The very this kind of power and be able to irre- This is one of the phoniest excuses I people who are griping about getting sponsibly use it. Nor is it in the inter- have ever heard. Keep in mind, four of these confidential privileged memo- est of anybody in the Asian commu- their former Solicitors General, Demo- randa down at the Solicitor General’s nity, and it is certainly not in our in- crat Solicitors General, are on Miguel Office ignore the fact that of the seven terest. We have top people working on Estrada’s side. And three of them re- former current living Solicitors Gen- that and controlling it. viewed every one of those documents. It is hard to control wild men, and we eral, four of them are Democrats in the That is not good enough for them? have to really look hard to find one Solicitor’s Office. Three reviewed They know the administration cannot worse than Saddam Hussein. Saddam Miguel Estrada’s memoranda. give in to these requests because if Hussein has used weapons of mass de- How far do we go with these ridicu- they did, every time anybody is nomi- struction against his own people. Imag- lous arguments, these unfair argu- nated from any part of the Justice De- ine what he would do to us if he could. ments, these discriminatory and preju- partment they would have to get con- My colleagues on the other side know dicial arguments, against a person who fidential memoranda. as much as I know about it, or at least has every qualification to be on this they should, and that is before the first court? There is only one reason they The executive branch does have some session of inspections, Saddam Hussein are fighting like this. They think Re- rights. I know that some on the other came that close to having a nuclear de- publicans are going to back down. Or side do not believe that, but they do. vice. You think he is not trying to do that the President will back down. He They have some rights to have their that now, and in his country, the size will not back down. confidential documents remain con- of California, do you think it is hard I don’t think most Democrats feel fidential so they can get the best ad- for him to secrete his weapons of mass the way some of the radicals over there vice they possibly can to represent this destruction? He can hide those in a do. There are some people with reason- country, as the executive branch million different ways. This is a joke. able minds over there. I think most of should. This is one of the worst argu- We have to fight terrorism. We have them. I respect everyone on the other ments I have ever heard on the floor of to fight these types of people on all side, but I have to tell you, some of the Senate. And it is all done for polit- sides. And we are. This administration them are listening to the most radical ical purposes because they believe that is doing everything it can, and it really people on their side in bringing this fil- this Hispanic man, a Republican— needs to have a little less bellyaching ibuster and going against one of the which is very tough for them to take, and a little less criticism, a little less best nominees in history. who they believe to be conservative— partisanship than what we are getting I have been on the Judiciary Com- he is certainly probably moderate to sometimes around here. mittee almost 30 years, 27 years now. conservative—I just know he is quali- I heard other Senators get on this There are very few who you would rate fied. Everything about him says he is floor and say this court—to go back to at the level with Miguel Estrada. Every qualified. All of his experience tells me Miguel Estrada—the first Hispanic Hispanic in this country ought to be he is qualified. The fact he led the class nominated to the circuit court of ap- proud of it. I am calling on every His- at Harvard Law School says he is peals in this country who is being fili- panic in the country, whether Demo- qualified. The fact he was one of the bustered by people who, throughout crat, Independent, Republican, whether leaders of the class at Columbia Uni- the years, have said we would never fil- you are liberal, moderate or conserv- versity says he is qualified. The fact ibuster when they had the Presidency, ative, you better start calling the that he served Amalya Kearse, a Carter we would never use that type of a tac- Democrats and let them know this is appointee, and she praised him says he tic. Here they are, using it. It is hypo- not fair, this is not right. It is abysmal. is qualified. The fact he served for a critical. It is wrong. It is unfair. It is Some would say abominable. I think I Justice of the U.S. Supreme Court, An- establishing a precedent that could would be one of those. thony Kennedy, says he is qualified. hurt this country immeasurably. We I have seen some unfair things here But now the administration, in re- could only have the least common de- from time to time, and this is a tough sponse to these ridiculous claims and nominator on the Federal courts if body, there is no question. Sometimes these ridiculous statements made on some on the other side got their way. we do some dumb things, but I have the floor of the Senate, has now sent a

VerDate Dec 13 2002 04:14 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.126 S12PT1 S2286 CONGRESSIONAL RECORD — SENATE February 12, 2003 15-page, single-spaced letter that basi- I care for my colleagues on the Demo- We respect the Senate’s constitutional role cally covers every one of these stupid cratic side. But where are they? Why in the confirmation process, and we agree claims that have been raised. aren’t they telling us why? Why don’t that the Senate must make an informed I guess maybe I should not say that. they give us a reason that is a good judgment consistent with its traditional role Anyone can raise any claim, whether it and practices. However, your requests have reason for being against Miguel no persuasive support in the history and is stupid or otherwise, on the floor, and Estrada, with all of the qualifications precedent of judicial appointments. Indeed, every Senator can ask even the dumb- he has? Why couldn’t they treat us the the relevant history and precedent convinc- est questions of nominees if they want. way they wanted us to treat their cir- ingly demonstrate that a new and shifting That does not mean nominees have to cuit court nominees, which I made sure standard is being applied to Miguel Estrada. answer them. It does not mean they we treated right. Why can’t they be de- First, as the Department of Justice ex- have to answer them the way they cent to this Hispanic nominee, the first plained in its letters of June 5, 2002, October want to—the dumb questioners, that is. ever nominated to the Circuit Court of 8, 2002, and January 23, 2003, all living former Solicitors General (four Democrats and three We have all done that from time to Appeals for the District of Columbia, Republicans) have strongly opposed your re- time, and we all fit into that category, one of the most important courts? Why quest for Solicitor General memoranda and maybe, from time to time, but not con- is it that Senators from the Democrat stated that it would sacrifice and com- sistently. side get on the floor and act as if, be- promise the ability of the Justice Depart- There is nothing more than prejudice cause a person is conservative, that ment to effectively represent the United going on here; nothing more than un- person is not going to do what is right States in court. Even more telling, we are in- fairness going on here; nothing more under the law; that person is not going formed that the Senate has not requested than a double standard going on here; to make sure the law is fulfilled; that memos such as these for any of the 67 ap- nothing more than trying to trip up peals court nominees since 1977 who had pre- person is not going to make sure the viously worked in the Justice Department the President of the United States and principle of stare decisis or prior prece- (including the seven nominees who had pre- make his life even more miserable than dent is followed? Miguel Estrada says viously worked in the Solicitor General’s of- it is every day with North Korea, with he will, and he’s an honest man. He fice). The few isolated examples you have Iraq, with all the other problems we will. cited—in which targeted requests for par- have in this world, including France, Why is it they think only liberal ticular documents about specific issues were Germany, and Belgium, which are act- ideas are any good? I kind of admire accommodated for nominees to positions ing disgracefully and deserve the con- people who think only their point of other than the U.S. Courts of Appeals—simi- view is correct and everybody else is larly do not support your request here. demnation of the world for their con- Second, as explained more fully below with tinuous disgraceful disruptions of the wrong. But I have to tell you, some of respect to your request that Mr. Estrada an- unity of our NATO allies and for their the greatest judges in our country’s swer additional questions, the only specific refusal to back Turkey, our ally who history are conservatives. Some of the question identified in your letter refers to has stood up when others have not greatest judges are liberals. And some his judicial role models. You claim that Mr. stood up. We don’t need them. We will of the worst are liberals—and conserv- Estrada refused to answer a question on this back Turkey, and we should back Tur- atives. Miguel Estrada would make one topic. In fact, in his written responses to key. of the best, and he is the American Senator Durbin’s question on this precise What gets me is we are in the middle dream personified. He would open the subject that Mr. Estrada submitted three months ago, he cited Justice Anthony Ken- of a filibuster of a Federal judge, when doors for many Hispanic people, not nedy, Justice Lewis Powell, and Judge the Constitution says we should give just in the Federal judiciary but in so Amalya Kearse as judges he admires (he advice and consent, not advice and ob- many other ways throughout this soci- clerked for Justice Kennedy and Judge struction, not advice and a filibuster, ety because he will set an example that Kearse, and he further pointed out, of course, not advice and unfairness. will be exemplary for all of us to ob- that he would seek to resolve cases as he I have to admit there were some on serve. He should have a chance to sit analyzed them ‘‘without any preconception our side who treated President Clinton on this court and should not have to go about how some other judge might approach in a shabby fashion. Not very many, through this type of unfair treatment. the question.’’ Your letter to the President but there were a few. I remember as a No nominee to the Federal court ignores Mr. Estrada’s answer to this ques- tion. In any event, beyond this one query, young Senator I criticized President should have to go through a filibuster. your letter does not pose any additional Carter pretty strongly one day. Later, But, if the Democrats are going to fili- questions to him. Additionally, neither of I was on a 3-hour television show with buster, why don’t they get over here you has posed any written questions to Mr. him, sitting right beside him. We had and filibuster? Why don’t they tell us Estrada in the more than three months since plenty of time to discuss and talk, and the reasons why? If you look at their his all-day Committee hearing. Since the I apologized. I said I really feel badly; reasons, there is not a bit of substance hearing, Mr. Estrada also has met (and con- I felt I didn’t treat you fairly. He to any of them. tinues to meet) with numerous Democrat Senators interested in learning more about leaned over and smiled and said, ORRIN, I ask unanimous consent the most re- his record. Finally, as I will explain below, I never knew you did it. He said, you cent letter of the White House, this 15- Mr. Estrada forthrightly answered numerous were so fair in so many other ways, I page single-space typewritten letter I questions about his judicial approach and didn’t notice any unfairness. That is think answers every Democrat con- views in a manner that matches or greatly typical of what a fine, gracious man he cern, be printed in the RECORD. exceeds answers demanded of previous ap- is. There being no objection, the letter peals court nominees. Bill Clinton has plenty of faults, we was ordered to be printed in the With respect, it appears that a double all know that, like all the rest of us. RECORD, as follows: standard is being applied to Miguel Estrada. That is highly unfair inappropriate, particu- Maybe not like all the rest of us, but THE WHITE HOUSE, larly for this well-qualified and well-re- Washington, February 12, 2003. we all have faults, we will put it that spected nominee. DEAR SENATOR DASCHLE AND SENATOR way. And sometimes he wasn’t treated I will turn now in more detail to the var- as fairly as he should have been, but I LEAHY: On behalf of President Bush, I write in response to your letter to the President ious issues raised by your letter. I will ad- sure tried to do so. I certainly did with dated February 11, 2003. In the letter, you dress them at some length given the impor- regard to his judicial nominees. I will renew your previous request for confidential tance of this issue and the nature of your re- tell you one thing, we never, ever fili- Department of Justice memoranda in which quests. bustered a Clinton nominee, not once. Mr. Estrada provided appeal, certiorari, and I. MIGUEL ESTRADA’S QUALIFICATIONS AND There were some cloture votes, but it amicus recommendations while he was a ca- BIPARTISAN SUPPORT wasn’t part of a filibuster; it was more reer attorney in the Office of Solicitor Gen- Miguel Estrada is an extraordinarily quali- to move the Senate along. And nobody eral for four years in the Clinton Adminis- fied judicial nominee. The American Bar As- can claim anybody on our side actually tration and one year in the George H.W. sociation, which Senators Leahy and Schu- Bush Administration. You also request that mer have referred to as the ‘‘gold standard,’’ filibustered a Federal judge, which is a Mr. Estrada answer certain questions beyond unanimously rated Estrada ‘‘well qualified’’ disgraceful thing to do. the extensive questions that he already an- for the D.C. Circuit, the ABA’s highest pos- I have to say I care a great deal for swered appropriately and forthrightly during sible rating. The ABA rating was entirely ap- all of my colleagues in this body. These his Committee hearing and in follow-up writ- propriate in light of Mr. Estrada’s superb are 100 of the greatest people on Earth. ten responses. record as Assistant to the Solicitor General

VerDate Dec 13 2002 04:14 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00056 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.128 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2287 in the Clinton and George H.W. Bush Admin- political viewpoints.’’ One former colleague, fact, acted in a way that would shed a nega- istrations, as a federal prosecutor in New Richard Seamon, wrote that he is a pro- tive light on the court.’’ Congressional York, as a law clerk to Justice Kennedy, and choice, lifelong Democrat with self-described Record, March 19, 1997. Alexander Hamilton in performing significant pro bono work. ‘‘liberal views on most issues’’ who said he explained that the purpose of Senate con- Some who are misinformed have seized on would ‘‘consider it a disgrace’’ if Mr. Estrada firmation is to prevent appointment of Mr. Estrada’s lack of prior judicial experi- is not confirmed. ‘‘unfit characters from State prejudice, from ence, but five of the eight judges currently Similarly, Leonard Joy, head of the Fed- family connection, from personal attach- serving on the D.C. Circuit had no prior judi- eral Defender Division of the Legal Aid Soci- ment, or from a view to popularity.’’ Fed- cial experience, including two appointees of ety of New York, wrote that ‘‘Miguel would eralist No. 76. It was anticipated that the President Clinton and one appointee of make an excellent Circuit Court Judge. He is Senate’s approval would not often be refused President Carter. Miguel Estrada has tried as fine a lawyer as I have met and, on top of unless there were ‘‘special and strong rea- numerous cases before federal juries, argued all his intellectual abilities and judgment he sons for the refusal.’’ No. 76. many cases in the federal appeals courts, and would bring to bear, he would bring a desir- As to tactics, you have indicated that argued 15 cases before the Supreme Court of able diversity to the Court. I heartily rec- some Senate Democrats intend to filibuster the United States. That is a record that few ommend him.’’ to prevent a vote on this nominee. As you judicial nominees can match. And few law- Beyond the extensive personal testimony know, there has never been a successful fili- yers, whatever their ideology or philosophy, from those who worked side-by-side with him buster of a court of appeals nominee. Only a have volunteered to represent a death row for many years, the performance reviews of few years ago, Senator Leahy and other inmate pro bono before the Supreme Court Miguel for the years that he worked in the Democrat Senators expressly agreed with as did Miguel Estrada. Office of Solicitor General gave him the then-Governor Bush that every judicial Mr. Estrada’s excellent legal qualifications highest possible rating of ‘‘outstanding’’ in nominee was entitled to an up-or-down floor are all the more extraordinary given his per- every possible category. The reviews stated vote within a reasonable time. On October 3, sonal history. Simply put, Miguel Estrada is that Miguel: 2000, for example, Senator Leahy stated: an American success story. He came to this ‘‘states the operative facts and applicable Governor Bush and I, while we disagree on country at age 17 from Honduras speaking law completely and persuasively, with record some issues, have one very significant issue little English. Through hard work and dedi- citations, and in conformance with court and on which we agree. He gave a speech a while cated service to the United States, Miguel office rules, and with concern for fairness, back and criticized what has happened in the Estrada has risen to the very pinnacle of the clarity, simplicity, and conciseness.’’ Senate where confirmations are held up not legal profession. If confirmed, he would be ‘‘[i]s extremely knowledgeable of resource because somebody votes down a nominee but the first Hispanic judge to sit on the U.S. materials and uses them expertly; acting because they cannot ever get a vote. Gov- Court of Appeals for the D.C. Circuit. Given independently, goes directly to point of the ernor Bush said: You have the nominee. Hold his record, his background, and his integrity, matter and gives reliable, accurate, respon- the hearing. Then, within 60 days, vote them it is no surprise that Miguel Estrada is sive information in communicating position up or vote them down. Don’t leave them in strongly supported by the vast majority of to others.’’ limbo. Frankly, that is what we are paid to national Hispanic organizations. The League ‘‘[a]ll dealings, oral and written, with the do in this body. We are paid to vote either of United Latin American Citizens (LULAC), courts, clients, and others are conducted in a yes or no—not vote maybe. When we hold a for example, wrote to Senator Leahy to urge diplomatic, cooperative, and candid man- nominee up by not allowing them a vote and Mr. Estrada’s confirmation and explain that ner.’’ not taking any action one way or the other, he ‘‘is truly one of the rising stars in the His- ‘‘[a]ll briefs, motions or memoranda re- we are not only voting ‘maybe,’ but we are panic community and a role model for our viewed consistently reflect no policies at doing a terrible disservice to the man or youth.’’ A group of 19 Hispanic organiza- variance with Departmental or Govern- woman to whom we do this. tions, including LULAC and the Hispanic Na- mental policies, or fails to discuss and ana- Senator Daschle similarly stated on Octo- tional Bar Association, recently wrote to the lyze relevant authorities.’’ ber 5, 1999, that ‘‘[t]he Senate is surely under Senate urging ‘‘on behalf of an overwhelming ‘‘[i]s constantly sought for advice and no obligation to confirm any particular majority of Hispanics in this country’’ that counsel. Inspires co-workers by example.’’ nominee, but after the necessary time for in- ‘‘both parties in the U.S. Senate . . . put par- In the two years that Miguel Estrada and quiry it should vote him up or vote him tisan politics aside so that Hispanics are no Paul Bender worked together, Mr. Bender down. An up or down vote, that is all we seek longer denied representation in one of the signed those reviews. These employment re- for Berzon and Paez. And after years of wait- most prestigious courts in the land.’’ views thus call into serious question some ing, they deserve at least that much.’’ The current effort to filibuster Mr. press reports containing a negative comment In his East Room speech on October 30, Estrada’s nomination is particularly unjusti- from Mr. Bender about Mr. Estrada’s tem- 2002, President Bush reiterated that every ju- fied given that those who have worked with perament (which is the only negative com- dicial nominee deserves a timely up-or-down Miguel—including prominent Democrat law- ment made by anyone who actually knows floor vote in the Senate, no matter who is yers whom you know well—strongly support Mr. Estrada). Just as important, President President or which party controls the Sen- his confirmation. For example, Ron Klain, Clinton’s Solicitor General Seth Waxman ex- ate. Contrary to President Bush’s attempts who served as a high-ranking adviser to pressly refuted Mr. Bender’s statement. at permanent reform to bring order to the former Vice President Gore and former Chief In sum, based on his experience, his intel- process, your current effort to employ a fili- Counsel to the Senate Judiciary Committee, lect, his integrity, and his bipartisan sup- buster and block an up-or-down vote on the wrote: ‘‘Miguel is a person of outstanding port, Miguel Estrada should be confirmed Estrada nomination may significantly exac- character, tremendous intellect, and with a promptly. erbate the cycle of bitterness and recrimina- deep commitment to the faithful application II. THE SENATE’S ROLE tion that President Bush has sought to re- of precedent.... [T]he challenges that he solve on a bipartisan basis. We fear that the has overcome in his life have made him President Bush nominated Miguel Estrada nearly two years ago on May 9, 2001. As ex- damage caused by a filibuster could take genuinely compassionate, genuinely con- many years to undo. To continue on this cerned for others, and genuinely devoted to plained above, he is well-qualified and well- respected. By any traditional measure that path would also be, in Senator Leahy’s helping those in need.’’ words, ‘‘a terrible disservice’’ to Mr. Estrada. President Clinton’s Solicitor General, Seth the Senate has used to evaluate appeals We urge you to reconsider this extraordinary Waxman, wrote: ‘‘During the time Mr. court nominees, Miguel Estrada should have action, to end the filibuster of Mr. Estrada’s Estrada and I worked together, he was a been confirmed long ago. Your letter and nomination, and to allow the full Senate to model of professionalism and com- public statements indicate, however, that vote up or down. petence.... In no way did I ever discern you are applying both a new standard and that the recommendations Mr. Estrada made new tactics to this particular nominee. III. REQUEST FOR CONFIDENTIAL SOLICITOR or the analyses he propounded were colored As to the standard, the Senate has a very GENERAL MEMOS in any way by his personal views—or indeed important role in the process, but the Sen- You have suggested that Mr. Estrada’s that they reflected any consideration other ate’s traditional approach to appeals court background, experience, and support are in- than the long-term interests of the United nominees, and the approach envisioned by sufficient to assess his suitability for the States. I have great respect both for Mr. the Constitution’s Framers, is far different D.C. Circuit. You have renewed your request Estrada’s intellect and for his integrity. from the standard that you now seek to for Solicitor General memos authored by Mr. A bipartisan group of 14 former colleagues apply. Senator Biden stated the traditional Estrada. But every living former Solicitor in the Office of the Solicitor General at the approach in 1997: ‘‘Any person who is nomi- General signed joint letter to the Senate op- U.S. Department of Justice wrote: ‘‘We hold nated for the district or circuit court who, in posing your request. The letter was signed varying ideological views and affiliations fact, any Senator believes will be a person of by Democrats Archibald Cox, Walter that range across the political spectrum, but their word and follow stare decisis, it does Dellinger, Drew Days, and Seth Waxman. we are unanimous in our conviction that not matter to me what their ideology is, as They stated: ‘‘Any attempt to intrude into Miguel would be a fair and honest judge who long as they are in a position where they are the Office’s highly privileged deliberations would decide cases in accordance with the in the general mainstream of American po- would come at the cost of the Solicitor Gen- applicable legal principles and precedents, litical life, and they have not committed eral’s ability to defend vigorously the United not on the basis of personal preferences or crimes of moral turpitude, and have not, in States’ litigation interests—a cost that also

VerDate Dec 13 2002 04:14 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.030 S12PT1 S2288 CONGRESSIONAL RECORD — SENATE February 12, 2003 would be borne by Congress itself. . . . Al- irrespective of the party that controls the In our judgment, moreover, Mr. Estrada though we profoundly respect the Senate’s White House and the Senate. answered the Committee’s questions in a duty to evaluate Mr. Estrada’s fitness for the Your continued requests for these memo- manner that was both entirely appropriate federal judiciary, we do not think that the randa have provoked a foreseeable and inevi- and entirely consistent with the approach confidentiality and integrity of internal de- table conflict that, in turn, has been cited as that judicial nominees of Presidents of both liberations should be sacrificed in the proc- a basis for obstructing a vote on Mr. parties have taken for many years. Your sug- ess.’’ Estrada’s nomination. Respectfully, the con- gestions to the contrary do not square with It bears mention that the interest asserted flict is unnecessary because your desire to the hearing record or traditional practice. here is that of the United States, not the assess the nominee can be readily accommo- A. JUDICIAL ETHICS AND TRADITIONAL PRACTICE personal interest of Mr. Estrada. Indeed, Mr. dated in many ways other than intruding Estrada himself testified that ‘‘I have not into and severely damaging the deliberative In assessing your request that Miguel opposed the release of those records. . . . I process of the Office of Solicitor General. Estrada did not answer appropriate ques- am exceptionally proud of every piece of For example, you can review Mr. Estrada’s tions, we begin with rules of judicial ethics legal work that I have done in my life. If it written briefs and oral arguments both as an that govern prospective nominees. Canon were up to me as a private citizen, I would be attorney for the United Stats and in private 5A(3)(d) provides that prospective judges more than proud to have you look at every- practice. As you know, those documents are ‘‘shall not . . . make statements that com- thing that I have done for the government or publicly available and easily accessible; that mit or appear to commit the candidate with for a private client.’’ said, we would be pleased to facilitate your respect to cases, controversies or issues that The history of Senate confirmations of access to them. (Mr. Estrada’s hearing tran- are likely to come before the court’’ (empha- nominees who had previously worked in the script suggests that no Democrat Member of sis added). Justice Thurgood Marshall made Department of Justice makes clear that an the Committee had read Mr. Estrada’s many the point well in 1967 when asked about the unfair double standard is being applied to dozens of Solicitor General merits briefs, Fifth Amendment: ‘‘I do not think you want Miguel Estrada’s nomination. Since the be- certiorari petitions, and opposition briefs or me to be in a position of giving you a state- ginning of the Carter Administration in 1977, the transcripts of his 14 oral arguments when ment on the Fifth Amendment and then, if I the Senate has approved 67 United States he represented the United States.) You also am confirmed and sit on the Court, when a Court of Appeals nominees who previously may consider the opinions of others who Fifth Amendment case comes up, I will have had worked in the Department of Justice. Of served in the Office at the same time (dis- to disqualify myself.’’ Lloyd Cutler, who those 67 nominees, 38 had no prior judicial cussed above) and examine the nominee’s served as Counsel to President Carter and experience, like Miguel Estrada. The Depart- written performance reviews (also discussed President Clinton, has stated that ‘‘can- ment of Justice’s review of those nomination above). There is more than ample informa- didates should decline to reply when efforts records disclosed that in none of those cases tion for you to assess Mr. Estrada’s quali- are made to find out how they would decide did the Department of Justice produce inter- fications and suitability for the DC Circuit a particular case.’’ nal deliberative materials created by the De- based on the traditional standards the Sen- In 1968, in the context of the Justice Abe partment. In fact, the Department’s review ate has employed. Fortas’ nomination to be Chief Justice, the disclosed that the Senate did not even re- It also is important to recognize that polit- Senate Judiciary Committee similarly stat- quest such materials for a single one of these ical appointees of President Clinton have ed: ‘‘Although recognizing the constitutional 67 nominees. read virtually all of the memoranda in ques- dilemma which appears to exist when the Of this group of 67 nominees, seven were tion—namely, the Democrat Solicitors Gen- Senate is asked to advise and consent on a nominees who had worked as a Deputy Solic- eral Drew Days, Walter Dellinger, and Seth judicial nominee without examining him on itor General or Assistant to the Solicitor Waxman. None of those three highly re- legal questions, the Committee is of the view General. These seven nominees, nominated spected Democrat lawyers has expressed any that Justice Fortas wisely and correctly de- by Presidents of each party and confirmed by concern whatever about Mr. Estrada’s nomi- clined to answer questions in this area. To Senates controlled by each party, included nation. Indeed, Mr. Waxman wrote a letter of require a Justice to state his views on legal Samuel Alito, Danny Boggs, William Bryson, strong support, and Mr. Days made public questions or to discuss his past decisions be- Frank Easterbrook, Daniel Friedman, Rich- statements in support of Mr. Estrada. fore the Committee would threaten the inde- ard Posner, and Raymond Randolph. In sum, the historical record and past pendence of the judiciary and the integrity The five isolated historical examples you precedent convincingly demonstrate that of the judicial system itself. It would also have cited do not support your current re- this request creates and applies an unfair impinge on the constitutional doctrine of quest. In each of those five cases, the Com- double standard to Miguel Estrada. separation of powers among the three mittee made a targeted request for specific IV. REQUEST THAT MIGUEL ESTRADA ANSWER branches of Government as required by the information primarily related to allegations ADDITIONAL QUESTIONS Constitution.’’ S. Exec. Rep. No. 8, 90th of misconduct or malfeasance identified by Your letter also suggests that Miguel Cong. 2d Sess. 5 (1968). the Committee. Even in those isolated cases, Estrada should answer certain questions Even in the context of a Supreme Court the vast majority of deliberative memoranda that he allegedly did not answer in his hear- confirmation hearing, Senator Kennedy de- written by those nominees were neither re- ing. To begin with, we do not know what fended Sandra Day O’Connor’s refusal to dis- quested nor produced. With respect to Judge your specific questions are. In addition, this cuss her views on abortion: ‘‘It is offensive to Bork’s nomination, for example, the Com- request frankly comes as a surprise given suggest that a potential Justice of the Su- mittee received access to certain particular that (i) Senator Schumer chaired the hearing preme Court must pass some presumed test memoranda (many related to Judge Bork’s on Mr. Estrada, (ii) the hearing lasted an en- of judicial philosophy. It is even more offen- involvement in Watergate-related issues). tire day, (iii) Senators at the all-day hearing sive to suggest that a potential justice must The vast majority of memoranda authored asked numerous far-reaching questions that pass the litmus test of any single-issue inter- by Judge Bork were never received. With re- Mr. Estrada answered forthrightly and ap- est group.’’ Nomination of Sandra O’Connor: spect to Judge Trott, the Committee re- propriately, and (iv) only two of the 10 Dem- Hearings Before the Senate Comm. on the quested documents unrelated to Judge ocrat Senators then on the Committee even Judiciary on the Nomiantion of Judge San- Trott’s service to the Department. So, too, submitted any follow-up written questions, dra Day O’Connor of Arizona to Serve as an in the three other examples you cite, the and they submitted only a few questions (in Associate Justice of the Supreme Court of Committee requested specific documents pri- marked contrast to other nominees who re- the United States, 97th Cong. 6 (1981) (state- marily related to allegations of misconduct ceived voluminous follow-up questions). ment of Sen. Kennedy). or malfeasance identified by the Committee. It also bears mention that Mr. Estrada has Justice Ruth Bader Ginsburg likewise de- Of course, no such allegations have been personally met with a large number of Dem- clined to answer certain questions: ‘‘Because made in the case of Mr. Estrada. ocrat Senators, including Senators Landrieu, I am and hope to continue to be a judge, it In sum, the examples you have cited only Lincoln, Bill Nelson, Ben Nelson, Leahy, would be wrong for me to say or to preview highlight the lack of precedent for the cur- Feinstein, Kohl, and Breaux; is scheduled to in this legislative chamber how I would cast rent request. As the Justice Department has meet with Senator Carper; and would be mly vote on questions the Supreme Court explained to you previously, the existence of pleased to meet with additional Senators. may be called upon to decide. Were I to re- a few isolated examples where the Executive The only specific question your letter iden- hearse here what I would say and how I Branch on occasion accommodated a Com- tifies refers to Mr. Estrada’s judicial role would reason on such questions, I would act mittee’s targeted requests for very specific models, and you claim that he refused to an- injudiciously.’’ Similarly, Justice John Paul information primarily related to allegations swer a question on this topic. In fact, in Mr. Stevens stated in his hearing: ‘‘I really don’t of misconduct does not in any way alter the Estrada’s written responses to senator Dur- thinkk I should discuss this subject gen- fundamental and long-standing principle bin’s question on this precise subject, Mr. erally, Senator. I don’t mean to be unrespon- that memos from the Office of Solicitor Gen- Estrada cited Justice Anthony Kennedy, sive but in all candor I must say that there eral—and deliberative Department of Justice Justice Lewis Powell, and Judge Amalya have been many times in my experience in memoranda more broadly—must remain pro- Kearse as judges he admires and he further the last five years where I found that my tected in the confirmation context so as to pointed out, of course, that he would seek to first reaction to a problem was not the same maintain the integrity of the Executive resolve cases as he analyzed them ‘‘without as the reaction I had when I had the respon- Branch’s decisionmaking process. That is a any preconception about how some other sibility of decisions and I think that if I were fundamental principle that has been followed judge might approach the question.’’ to make comments that were not carefully

VerDate Dec 13 2002 05:28 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00058 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.033 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2289 thought through they might be given signifi- in the Constitution. In the main, the court Mr. Estrada indicated to Senator Durbin cance that they really did not merit.’’ has recognized them as being inherent in the that he admired the judges for whom he Justice Ginsberg described the traditional right of substantive due process and the lib- clerked, Justice Kennedy and Judge Kearse, practice in a case decided last year: ‘‘In the erty clause of the Fourteenth Amendment.’’ as well as Justice Lewis Powell. context of the federal system, how a prospec- When asked by Senator Feinstein whether Mr. Estrada stated to Senator Durbin that tive nominee for the bench would resolve the Constitution encompasses a right to pri- ‘‘I can absolutely assure the Committee that particular contentious issues would cer- vacy and abortion, Mr. Estrada responded, I will follow binding Supreme Court prece- tainly be ‘on interest’ to the President and ‘‘The Supreme Court has so held, and I have dent until and unless such precedent has the Senate. . . . But in accord with a long- not view of any nature whatsoever, whether been displaced by subsequent decisions of the standing norm, every Member of this Court it be legal, philosophical, moral, or any Supreme Court itself.’’ declined to furnish such information to the other type of view that would keep me from In response to Senator Grassley, Mr. Senate, and presumably to the President as applying that case law faithfully.’’ When Estrada stated: ‘‘When facing a problem for well.’’ Republican Party of Minnesota v. White, asked whether Roe v. Wade was ‘‘settled which there is not a decisive precedent from 122 S. Ct. 2528, 2552 n.1 (2002) (Ginsburg, J., law,’’ Mr. Estrada replied, ‘‘I believe so.’’ a higher court, my cardinal rule would be to dissenting) (emphasis added). Justice Gins- General Approach to Judging seize aid from anyplace where I could get it. burg added that this adherence to this ‘‘long- When asked by Senator Edwards about ju- Depending on the nature of the problem, standing norm’’ was ‘‘crucial to the health of dicial review, Mr. Estrada explained: ‘‘Courts that would include related case law in other the Federal Judiciary.’’ Id. In his majority take the laws that have been passed by you areas that higher courts had dealt with that opinion, Justice Scalia did not take issue and give you the benefit of understanding had had some insights to teach with respect with that description and added: ‘‘Nor do we that you take the same oath that they do to to the problem at hand. I could include the assert that candidates for judicial office uphold the Constitution, and therefore they history of the enactment, including in the should be compelled to announce their views take the laws with the presumption that case of a statute legislative history. It could on disputed legal issues.’’ Id. at 2539 n. 11 they are constitutional. It is the affirmative include the custom and practice under any (emphasis in original). burden of the plaintiff to show that you have predecessor statute or document. It could in- In some recent hearings, including Mr. gone beyond your oath. If they come into clude the views of academics to the extent Estrada’s, Senator Schumer has asked that court, then it is appropriate for courts to un- that they purport to analyze what the law is nominees identify particular Supreme Court dertake to listen to the legal arguments— instead of—instead of prescribing what it cases of the last few decades with which they why it is that the legislature went beyond should be. And in sum, as Chief Justice Mar- disagree. But the problems with such a ques- [its] role as a legislat[ure] and invaded the shall once said, to attempt not to overlook tion and answer were well stated by Justice Constitution.’’ anything from which aid might be derived.’’ Stephen Breyer. As Justice Breyer put it, Mr. Estrada stated to Senator Edwards In response to Senator Sessions, Estrada ‘‘Until [an issue] comes up, I don’t really that there are 200 years of Supreme Court stated: ‘‘I am very firmly of the view that al- think it through with the depth that it precedent and that it is not the case that though we all have views on a number of sub- would require. . . . So often, when you decide ‘‘the appropriate conduct for courts is to be jects from A to Z, the first duty of a judge is a matter for real, in a court or elsewhere, it guided solely by the bare text of the Con- to self-consciously put that aside and look at turns out to be very different after you’ve stitution because that is not the legal sys- each case by starting withholding judgment become informed and think it through for tem that we have.’’ with an open mind and listen to the parties. real than what you would have said at a When asked by Senator Edwards whether So I think that the job of a judge is to put cocktail party answering a question.’’ 34 U.C. he was a strict constructionist, Mr. Estrada all of that aside, and to the best of his Davis L. Rev. 425, 462. replied that he was ‘‘a fair construc- human capacity to give a judgment based Senator Schumer also has asked nominees tionist’’—meaning that ‘‘I don’t think that it solely on the arguments and the law.’’ how they would have ruled in particular Su- should be the goal of courts to be strict or In response to Senator Sessions, Mr. preme Court cases. Again, a double standard lax. The goal of courts is to get it right.... Estrada stated that ‘‘I will follow binding is being applied. The nominees of President It is not necessarily the case in my mind case law in every case . . . I may have a per- Clinton did not answer such questions. For that, for example, all parts of the Constitu- sonal, moral, philosophical view on the sub- example, Richard Tallman, a nominee with tion are suitable for the same type of inter- ject matter. But I undertake to you that I no prior judicial service who would now pretative analysis. . . [T]he Constitution would put all that aside and decide cases in serve on the Ninth Circuit, not only would says, for example, that you must be 35 years accordance with binding case law and even in not answer how he would have ruled as a old to be our chief executive.... There are accordance with the case law that is not judge in Roe v. Wade—but even how he would areas of the Constitution that are more binding but seems constructive on the area, have ruled in Plessy v. Ferguson, the infa- open-ended. And you adverted to one, like without any influence whatsoever from any mous case that upheld the discredited and the substantive component of the due proc- personal view I may have about the subject shameful ‘‘separate but equal’’ doctrine. So, ess clause, where there are other methods of matter.’’ too, in the hearing on President Clinton’s interpretation that are not quite so obvious Miranda/Stare Decisis nomination of Judges Barry and Fisher, Sen- that the court has brought to bear to try to Mr. Estrada stated that United States v. ator Smith asked whether the nominees bring forth what the appropriate answer Dickerson—a case raising the question would have voted for a constitutional right should be.’’ whether Miranda should be overruled—re- When Senator Kohl asked him about envi- to abortion before Roe v. Wade. Chairman flected a ‘‘reasonable application of the doc- ronmental statutes, for example, Mr. Hatch interrupted Senator Smith to say trine of stare decisis. In my view, it is rarely Estrada explained that those statutes to ‘‘that is not a fair question to these two appropriate for the Supreme Court to over- court ‘‘with a strong presumption of con- nominees because regardless of what hap- turn one of its own precedents.’’ pened pre-1973, they have to abide by what stitutionality.’’ Affirmative Action has happened post-1973 and the current In response to Senator Leahy, Mr. Estrada precedents that the Supreme Court has.’’ described the most important attributes of a With respect to affirmative action, Mr. judge: ‘‘The most important quality for a Estrada responded to Senator Kennedy that B. ANSWERS BY MIGUEL ESTRADA judge, in my view Senator Leahy, is to have ‘‘any policy views I might have as a private Miguel Estrada answered the Committee’s an appropriate process for decisionmaking. citizen on the subject of affirmative action questions forthrightly and appropriately. In- That entails having on open mind. It entails would not enter into how I would approach deed, Miguel Estrada was more expansive listening to the parties, reading their briefs, any case that comes before me as a judge. than many judicial nominees traditionally going back beyond those briefs and doing all Under controlling Supreme Court authority, have been in Senate hearings, and he was of the legwork needed to ascertain who is particularly Adarand Constructors, Inc. v. asked a far broader range of questions than right in his or her claims as to what the law Pena, 515 U.S. 200 (1995), if a government pro- many previous appeals court nominees were says and what the facts [are]. In a court of gram creates a racial classification, it will asked. We will catalogue here a select sam- appeals court, where judges sit in panels of be subject to strict scrutiny. Whether the ple of his answers. three, it is important to engage in delibera- program survives that sort of scrutiny will Unenumerated rights, privacy, and abortion tion and give ear to the view so colleagues often involve a highly contextual and face- When asked by Senator Edwards about the who may have come to different conclusions. specific inquiry into the nature of the jus- Constitution’s protection for rights not enu- And in sum, to be committed to judging as a tifications asserted by the government and merated in the Constitution, Mr. Estrada re- process that is intended to give us the right the fit between those justifications and the plied: ‘‘I recognize that the Supreme Court answer, not to a result. And I can give you classification at issue. Adarand and similar has said [on] numerous occasion in the area my level best solemn assurance that I firmly cases provide the framework that I would be of privacy and elsewhere that there are think I do have those qualities or else I required to apply, and would apply, in con- unenumerated rights in the Constitution, would not have accepted the nomination.’’ sidering these issues as a judge.’’ and I have no view of any sort, whether legal In response to Senator Durbin, Miguel Asked by Senator Leahy about the strict or personal, that would hinder me from ap- Estrada stated that ‘‘the Constitution, like scrutiny test, Mr. Estrada replied, ‘‘the Su- plying those rulings by the court. But I other legal texts, should be construed rea- preme Court in the Adarand case stated, as a think the court has been quite clear that sonably and fairly, to give effect to all that general rule, that the consideration of race there are a number of unenumerated rights its text contains.’’ is subject to strict scrutiny. That means

VerDate Dec 13 2002 05:28 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00059 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.036 S12PT1 S2290 CONGRESSIONAL RECORD — SENATE February 12, 2003 that though it may be used in some cases, it arms, and Mr. Estrada responded that the that the District of Columbia Council has to be justified by a compelling state in- Supreme Court had ruled that ‘‘if the gov- passes.’’ Judge Rogers did not provide her terest. And with respect to the particular ernment were to prove that the firearm had personal view of these subjects. context, there must be a fairly fact-bound in- at any time in its lifetime been in interstate Marsha Berzon (no prior judicial experi- dividual assessment of the fit between the commerce even if that had nothing to do ence). Senator Smith asked her views on Roe interest that is being asserted and the cat- with the crime at issue, that that would be v. Wade and whether ‘‘an unborn child is a egory being used. That is just another way of an adequate basis for the exercise of Con- human being.’’ Judge Berzon stated: ‘‘[M]y saying that it is a very fact-intensive anal- gress’ power.’’ role as a judge is not to further anything ysis in the context of a specific program and Right to Counsel that I personally believe or don’t believe, in the context of the justifications that are Senator Edwards asked about Gideon v. and I think that is the strength of our sys- being offered in support of the program.’’ Wainwright, the Supreme Court case guaran- tem and the strength of our appellate sys- Congressional Authority teeing the right to counsel for poor defend- tem. The Supreme Court has been quite de- With respect to the outer limits of Con- ants who could not afford counsel. Although finitive quite recently about the applicable gress’ power to confer authority on other Senator Edwards appeared to question the standard, and I absolutely pledge to you that governmental bodies, Miguel responded to reasoning in that landmark case, Mr. I will follow that standard as it exists now, Senator Kennedy that the Supreme Court Estrada responded that ‘‘I frankly have al- and if it is changed, I will follow that stand- has said that ‘‘particular factual context is ways taken it as a given that that’s—the rul- ard. And my personal views in this area, as in any other, will have absolutely no effect.’’ significant in analyzing the appropriateness ing in the case.’’ of a particular delegation. . . . Of course, the When Senator Smith probed about their per- C. ANSWERS BY PRESIDENT CLINTON’S NOMINEES fact that the Supreme Court only rarely has sonal views on abortion and Roe v. Wade, struck down statutes on this ground suggests Your criticism of Miguel Estrada’s testi- Chairman Hatch interrupted: ‘‘I don’t know that the Court has been quite deferential to mony creates a double standard. You did not how they can say much more than that at congressional judgments about the types of require nominees of President Clinton to an- this point in this meeting.’’ delegations that reasonably might be needed swer questions of this sort (keeping in mind Richard Tallman (no prior judicial experi- to carry on the business of government.’’ that you have not identified what your addi- ence). In response to written questions, When Senator Kohl asked Mr. Estrada tional questions to Mr. Estrada are). Presi- Judge Tallman explained that ‘‘[j]udicial about the 1995 Lopez case concerning the dent Clinton’s appeals court nominees rou- nominees are limited by judicial ethical con- scope of Congress’ power to regulate, Mr. tinely testified without discussing their siderations from answering any question in a Estrada pointed out that he had argued in a views of specific issues or cases. A few select manner that would call for an ‘advisory companion case ‘‘for a very expansive view of examples, including of several nominees who opinion’ as the courts have defined it or that the power to Congress to pass statutes under had no prior judicial experience, illustrate in effect ask a nominee to suggest how he or the Commerce Clause and have them be the point. (Please note that these are iso- she would rule on an issue that could upheld by the court. . . . Lopez has given us lated examples; there are many more we can foreseeably require his or her attention in a guidance on when it is appropriate for the provide if necessary.) future case or controversy after confirma- court to exercise the commerce power. It is Merrick Garland (no prior judicial experi- tion.’’ He was asked how he would have ruled binding law and I would follow it.’’ ence). In the nomination of Merrick Garland in Plessy v. Ferguson. He stated: ‘‘It is en- Ethnicity to the DC Circuit, Senator Specter asked tirely conjectural as to what I would have With respect to fact that the President had him: ‘‘Do you favor, as a personal matter, done without having the opportunity to noted Miguel’s ethnicity, Miguel responded capital punishment?’’ Judge Garland replied thoroughly review the record presented on to Senator Kennedy: ‘‘The President is the only that he would follow Supreme Court appeal, the briefs and arguments of counsel, leader of a large and diverse country, and it precedent: ‘‘This is really a matter of settled and supporting legal authorities that were is accordingly appropriate for him, in exer- law now. The Court has held that capital applicable at that time.’’ He gave the same cising his constitutional nomination and ap- punishment is constitutional and lower response when asked how he would have pointment powers, to select qualified indi- courts are to follow that rule.’’ Senator ruled on Roe v. Wade. When asked his per- viduals who reflect the breadth and diversity Specter also asked him about his views of sonal view on abortion, he wrote: ‘‘I hold no of our Nation.’’ the independent counsel statute’s constitu- personal views that would prevent me from With respect to the Democrat Congres- tionality, and Judge Garland responded: doing my judicial duty to follow the prece- sional Hispanic Caucus’s criticism of him, ‘‘Well, that, too, the Supreme Court in Mor- dent set down by the Supreme Court.’’ He Miguel responded to Senator Kennedy that rison v. Olson upheld as constitutional, and, gave the same answer about the death pen- ‘‘I strongly disagree, however, with the Con- of course, I would follow that ruling.’’ Judge alty. gressional Hispanic Caucus’ view that I lack Garland did not provide his personal view of Kim Wardlaw. In the hearing on Judge Kim an understanding of the role and importance either subject. Wardlaw’s nomination to the Ninth Circuit, of courts in protecting the legal rights of mi- Judith Rogers. In the hearing on Judge Ju- Judge Wardlaw was asked about the con- norities, of the values and mores of Latino dith Rogers’ nomination to the D.C. Circuit, stitutionality of affirmative action. She culture, or the significance of role models for Judge Rogers was asked by Senator Cohen stated (in an answer similar to Miguel minority communities.’’ about the debate over an evolving Constitu- Estrada’s answer to the same question): Racial Discrimination tion. Judge Rogers responded: ‘‘My obliga- ‘‘The Supreme Court has held that racial With respect to race discrimination, Mr. tion as an appellate judge is to apply prece- classifications are unconstitutional unless Estrada stated in response to Senator Ken- dent. Some of the debates which I have heard they are narrowly tailored to meet a compel- nedy: ‘‘I take a backseat to no one in my ab- and to which I think you may be alluding are ling governmental interest.’’ horrence of race discrimination in law en- interesting, but as an appellate judge, my Maryanne Trump Barry. In the hearing on forcement or anything else.’’ obligation is to apply precedent. And so the Judge Maryanne Trump Barry’s nomination Senator Feingold asked Mr. Estrada interpretations of the Constitution by the too the Third Circuit, Senator Smith asked whether he believed that racial profiling and U.S. Supreme Court would be binding on for her personal opinion on whether ‘‘an un- racially motivated law enforcement mis- me.’’ She then was asked how she would rule born child at any stage of the pregnancy is a conduct are problems in this country today. in the absence of precedent and responded: human being.’’ Judge Barry responded: Mr. Estrada replied, ‘‘I am—I will once again ‘‘When I was taking my master’s in judicial ‘‘Casey is the law that I would look at. If I emphasize I’m unalterably opposed to any process at the University of Virginia Law had a personal opinion—and I am not sug- sort of race discrimination in law enforce- School, one of the points emphasized was the gesting that I do—it is irrelevant because I ment, Senator, whether it’s called racial growth of our common law system based on must look to the law which binds me.’’ profiling or anything else. . . . I know full the English common law judge system. And Raymond Fisher. In the hearing on Judge well that we have real problems with dis- my opinions, I think if you look at them, re- Raymond Fisher’s nomination to the Ninth crimination in our day and age.’’ flect that where I am presented with a ques- Circuit, Senator Sessions asked Judge Fish- Senator Leahy asked Mr. Estrada about tion of first impression that I look to the er’s own personal views on whether the death whether statistical evidence of discrimina- language of whatever provision we are ad- penalty was constitutional. Judge Fisher re- tory impact is relevant in establishing dis- dressing, that I look to whatever debates are sponded that ‘‘My view, Senator, is that, as crimination. Mr. Estrada replied: ‘‘I am not available, that I look to the interpretations you indicated, the Supreme Court has ruled a specialist in this area of the law, Senator by other Federal courts, that I look to the that the death penalty is constitutional. As Leahy, but I am aware that there is a line of interpretations of other State courts, and it a lower appellate court judge, that is the law cases, beginning with the Supreme Court’s may be necessary, as well, to look at the in- that I am governed by. I don’t want in my ju- decision in Griggs, that suggests that in ap- terpretations suggested by commentators. dicial career, should I be fortunate enough to propriate cases that [such evidence] may be And within that framework, which I consider have one, to inject my personal opinions into appropriate. . . . I do understand that there to be a discipline, that I would reach a view whether or not I follow the law. I believe is a major area of law that deals with how in a case of first impression.’’ Finally, Judge that the precedent of the Supreme Court is you prove and try disparate-impact cases.’’ Rogers was asked her view of the three- binding and that is what my function is.’’ Congressional Authority to Regulate Firearms strikes law and stated: ‘‘As an appellate V. CONCLUSION Senator Feinstein asked whether Congress judge, my obligation is to enforce the laws Miguel Estrada is a well-qualified and well- may legislate in the area of dangerous fire- that Congress passes, or, where I am now, respected judicial nominee who has very

VerDate Dec 13 2002 05:28 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00060 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.040 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2291 strong bipartisan support. Based on our read- so carefully constructed among our This strong role that the Constitu- ing of history, we believe that you have three branches of Government. It is tion granted the Senate has only grown ample information about this nominee and something I think we ignore at our stronger in the years following the have had more than enough time to consider peril. adoption of our Constitution. We know questions about his qualifications and suit- ability. We urge you to stop the unfair treat- What is it we are talking about? very well that members of both parties ment, end the filibuster, allow an up-or-down Again, I sometimes wonder what our have historically expected judicial vote, and vote to confirm Mr. Estrada. friends and fellow countrymen who nominees to be fully candid and forth- Sincerely, might be watching this debate, as they right with any information that Sen- ALBERTO R. GONZALES look for something perhaps more inter- ators deem relevant. The Republicans Counsel to the President. esting or exciting on their televisions, are acting as though the questions we Mr. HATCH. I yield the floor. stop and think if they see one of us are asking and the opposition which we The PRESIDING OFFICER. The Sen- talking about advice and consent, or are presenting to the process that has ator from New York. talking about our Constitution. Article been adopted and the responses—or, I Mrs. CLINTON. Mr. President, I lis- II, section 2 states that: should say nonresponses—of the nomi- tened with great interest to my friend The President . . . shall nominate, and by nee are unprecedented. But I have to and colleague from Utah. I have the and with the Advice and Consent of the Sen- just point to recent history. We don’t highest respect for him. I must confess, ate, shall appoint . . . judges of the supreme have to go back to the Federalist Pa- in listening to him, though, it brought Court, and all other Officers of the United pers. We don’t have to go back to the to mind that wonderful old saw about States, whose Appointments are not herein 19th century. We only have to go back trial lawyers. You know: If the facts otherwise provided for and which shall be es- tablished by law. . . . a few years to find many instances in aren’t on your side, argue the law. If which my friends on the other side did the law isn’t on your side, argue the That is what the Constitution tells not rest until they had satisfied them- facts. If neither the facts nor the law us. It is our obligation, as it has been selves with the information provided are on your side, pound the table and ever since this body was formed, to de- by nominees sent up by a Democratic hope nobody notices. From my perspec- termine what that means and how we President. tive, that is exactly what we have been apply it. The Framers of our Constitu- A June 22, 1998, floor statement by tion did not envision the Senate’s hearing from our friends on the other Senator HATCH demonstrates that the side with respect to this very impor- power of advice and consent to be a advise and consent obligation is indeed tant matter that is not just about a mere formality. In fact, at the Con- a strong one. Here is what he said: stitutional Convention of 1787, the nomination but about the role and re- While the debate about vacancy rates on sponsibility of the Senate under our power of judicial appointment was a our Federal courts is not unimportant, it re- Constitution. subject of enthusiastic debate. mains more important that the Senate per- I rise today to expand on the points I The first proposal that came from form its advice and consent function thor- made yesterday because, after further delegates to the Convention was that oughly and responsibly. Federal judges serve reflection and careful thought about the choice of Federal judges should be for life and perform an important constitu- this body’s constitutional obligations left to the Senate alone—that it would tional function without direct account- to provide advice and consent on judi- be this body, acting on its own, that ability to the people. Accordingly, the Sen- would appoint judges to the bench. ate should never move too quickly on nomi- cial nominations, I believe there are nations before it. even greater reasons for us to focus Then a competing proposal was put I couldn’t agree more. I think Sen- during this time on that responsibility. forth arguing that, no, the President There has been, clearly, a debate should nominate and appoint judges ator HATCH was right in 1998. going on about the role of the Senate and that the Senate should have only He also stated that he had ‘‘no prob- in judicial nominations, and many of the power to reject or approve those lem with those who want to review . . . my friends on the other side have made candidates. nominees with great specificity.’’ That is all we are asking for. But we the point that their view is the Senate But what was it after the debate that can’t review this nominee with great defers to the executive when it comes our Founders decided was the Amer- specificity because he has become kind to judicial nominees. That would cer- ican way? How did they conclude what of an emblem of nonspecificity with tainly be a surprise to the 42nd Presi- was the proper balance between these nonanswers and nonresponses. dent of the United States, that that is competing positions? Clearly, the It is really hard to imagine someone the position of my friends on the other adopted language was a compromise. being considered for the important po- side. And, equally clearly, those who agreed Furthermore, there are those who to that compromise did not view our sition that he would hold for life tell- argue the Senate’s role is to give ad- role—the Senate’s role—as insignifi- ing Senators who inquired that he real- vice and consent, but that does not en- cant or deferential. In fact, Alexander ly didn’t have anything to say about compass an inquiry into a nominee’s Hamilton in Federalist No. 76 writes any Supreme Court decision in the his- judicial philosophy. that the Senate’s participation in the tory of the Court. I, for one, believe on both of those judicial nomination process was essen- Of course, my colleague from Mis- grounds our colleagues are mistaken. I tial in order ‘‘to promote a judicious sissippi, Senator LOTT, has also re- have done some further research and choice of men’’—of course, he would minded us that: inquiry into what is it we mean when say men and women were he writing Yes, the President has a right to make we open up our Constitution and we today—‘‘for filling the offices of the nominations to the Federal bench of his look at article II, section 2 and we see Union.’’ He further stated that the Sen- choice. However, we—namely, the Senate— have a role in that process. We should, and these words, ‘‘advice and consent.’’ ate’s advise and consent role serves as we do, take it very seriously. We should not Given the extraordinary brilliance and ‘‘a considerable and salutary restraint give a man or a woman life tenure if there is the economic use of words in the Con- upon the conduct’’ of the President. some problem with his or her background, stitution, I assume every word means There is plenty of evidence that ex- whether academically or ethically, or if something. Each word was battled ists which demonstrates what the there is a problem with a series of decisions over. Each word was poured over. A lot Framers intended with respect to the or positions they have taken. of effort went into coming up with advice and consent clause. This clause Of course, we don’t know whether those words that would help to guide added formation and, in all of the dec- there is any problem with respect to our infant Nation. So I take advice and ades since, contemplated a strong and this nominee’s decisions. He has never consent very seriously. decisive Senate role that would serve been a judge, and we have no idea what It is particularly important to recog- to advise and consent with respect to his positions are on anything. nize I am not alone in viewing this ob- the President’s nominees—or, to put it It is hard to imagine that any Mem- ligation with seriousness. From the another way, would serve to balance ber of this body could, as some of my very beginning of our country it has the power of the President’s nomi- colleagues on the other side have been been a concern. It was one of those ele- nating authority by Senate legislative saying over the last days, say that we ments in the balance of power that was power. really do not have to worry too much

VerDate Dec 13 2002 04:14 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00061 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.043 S12PT1 S2292 CONGRESSIONAL RECORD — SENATE February 12, 2003 about this advice and consent clause The Senate must be convinced that a litical branches together: the President because the Senate plays only a minor nominee is impeccably competent. But com- nominates, but the Senate must confirm. role in the nomination process. I would petence alone is not sufficient. It is not Providing ‘‘advice and consent’’ on judicial be more than happy to provide a list of enough that a nominee be skilled in legal ar- nominations, therefore, is no mere senatorial gument and knowledgeable about legal doc- courtesy but a constitutional duty of funda- citations and references so that any trine, and that . . . he be able to write clear- mental importance to the maintenance of Senator who has been led to believe ly and forcefully. our tripartite system of government. that would know it is not the case. A candidate for the federal bench must, as Those who wrote the Constitution cer- In fact, one of the very best descrip- Hamilton wrote in Federalist No. 78; ‘‘unite tainly did not envision the Senate’s power of tions of what advise and consent means the requisite integrity with the requisite ‘‘advice and consent’’ to be a formality. The in the Constitution that I have able to knowledge.’’ The nominee also must exhibit allocation of the appointment power was the find comes from a very well respected a strength of character and a range of vision subject of keen debate at the Constitutional former Republican Senator from Mary- that will help [him] look beyond the world Convention of 1787, which initially proposed a draft that left the choice of Federal judges land, Mr. Charles McC. Mathias. In that exists on the day on which [he] is nomi- nated. . . . to the Senate alone. The adopted language 1987, Senator Mathias submitted an [T]he full senate should have the oppor- was a compromise, and it is clear that those essay that was published in the Univer- tunity to consider each nomination on a who agreed to the compromise did not view sity of Chicago Law Review, a very complete record. . . .[Senators] should have the Senate’s role as merely ceremonial or prestigious publication. The essay is the opportunity to review the transcripts of ritualistic. entitled ‘‘Advice and Consent: The Role hearings and to solicit other advice on the The reasons that the Framers con- of the United States Senate in the Ju- merits of the issue before voting. templated a strong Senate role in the proc- ess of judicial appointments are plain. It dicial Selection Process.’’ This I would The goal of these procedures is not to sec- ond-guess the judgment of the president in must be remembered that Federal judges are commend to all of my colleagues be- not, like the President’s cabinet, to serve the cause the debate we are having today is submitting the nomination to the Senate, but to ensure that the factors underlying will of the Chief Executive, but officers ap- not just about one nominee. And it is that judgment are sufficiently disclosed to pointed for life to a separate and inde- not just about one President or one po- permit the Senate to make an informed and pendent branch of government. If those ap- litical party. It is about how we fulfill independent evaluation of the president’s pointed to these lifetime judicial posts our constitutional obligations. Senator choice. should ultimately prove unequal to the task or unsuited to the role, they cannot be dis- Mathias has it just right. That is really the nub of what we are missed. Impeachment by the House and trial Among the important points he concerned about. by the Senate is the only constitutionally makes are the following: Listen to the words of a former Re- authorized method of removing unfit judges, Among all the responsibilities of a United publican Senator who served with and the great difficulty of such a process States Senator, none is more important than great distinction in this body: makes it usable only in situations of out- the duty to participate in the process of se- rageous misconduct. The only practical op- The goal . . . is not to second-guess the lecting judges and justices to serve on the portunity to consider the merits of a judicial judgment of the president . . . but to ensure Federal courts. candidate, therefore, is before that appoint- that the factors underlying that judgment ment is made. It thus becomes not only ap- Senator Mathias goes on: are sufficiently disclosed to permit the Sen- propriate, but obligatory, that the Senate The Senate’s duty in this sphere is extraor- ate to make an informed and independent pass on judicial nominees with greater scru- dinary. Most other senatorial decisions are evaluation of the president’s choice. tiny than it reviews the President’s choices subject to revision, either by the Congress Senator Mathias concludes: itself or by the executive branch. Statutes for his own subordinates. can be amended, budgets rewritten, appro- For when the Senate carries out its func- Whatever the philosophy of government or priations deferred or rescinded, but a judicial tion of advice and consent, its first loyalty theory of law, the demands that the Nation nomination is different. When the Framers must be not to the political parties, nor to makes on its Federal judges are indisputably of the Constitution decided that Federal the president, but to the people and the con- great. The Federal courts play an increas- judges shall hold their offices during good stitution they have established. ingly critical part in American government. behavior, and may be removed only by the It is not only former Senators who The men and women of the Federal bench rarely utilized process of impeachment, they must possess open minds that are capable of have understood this and would be as- grasping sophisticated legal analysis, and guarantee respect for the principle of judi- tonished at the amnesia that seems to cial independent. that can grapple intelligently with funda- have descended upon us about what the mental constitutional issues. To Federal Senator Mathias goes on to point debate among the Framers was, about judges is given the task of policing the out: what the settled law and understanding boundaries between State and Federal gov- It will no longer provide—Their deci- of the Constitution was, about what ernment, of giving principled articulation to sion also meant, however, that the vote distinguished Senators who served in the content of the basic human rights pro- to confirm a judicial nominee must ex- this body always believed it to be. But tected by the Constitution, of enforcing the press the Senate’s confidence in the myriad and complex Federal statutes and this is the weight of all of the legal and regulations, and of overseeing complicated nominee’s ability to decide the burning academic analysis of the clause that legal controversy not only of the day commercial and criminal litigation. Sen- has been done over so many years. ators therefore have a duty, both to the Con- but of future decades as well. The Con- One of the most effective and thor- stitution and to the Nation’s citizens, busi- stitution gives the Senate the consent ough analyses of the advise and con- nesses, and public and private institutions to power, not as a mechanical formality sent obligation is found in a joint ensure that the President’s nominees have but as an integral part of the structure statement by Philip Kurland from the the experience, the talent, the intellectual of government . . . If the Senate does University of Chicago and Laurence acumen, and the fairness of mind to perform not take its role seriously, it will lose their functions and, particularly in the case Tribe from Harvard, dated June 1, 1986, of appellate judges, to contribute lucidly to its effectiveness as, in Hamilton’s entitled: ‘‘Joint Statement to the Sen- words— a body of legal precedents that can enlighten ate Judiciary Committee on the Role and guide trial courts, litigants, and those ‘‘a considerable and salutary restraint of Advice and Consent in Judicial who must try to enlighten and guide trial upon the conduct’’ of the President. Nominations,’’ submitted to the Judi- courts, litigants, and those who must try to Senator Mathias points out what ciary Committee. I ask unanimous con- anticipate what courts will do. Candidates for the Federal bench should should be obvious to us all. A nominee sent that it be printed in the RECORD. should: There being no objection, the mate- meet a higher standard than that required for most government officers. A career [E]merge from the nomination process rial was ordered to be printed in the knowing that the president and the Senate marked by integrity, capacity, wisdom, and RECORD, as follows: have confidence that he will preside with commitment is the minimal qualification. If only one unalterable loyalty, to the Con- June 1, 1986. it is not readily apparent that a candidate is stitution, and with only purpose, to assure To the Senate Judiciary Committee: truly distinguished, the burden should be on the individual standing before him a judg- The United States Senate has too often the President to demonstrate the merits of ment based upon the law of the land. been confused and uncertain about its role in the nominee. A nominee’s entire record—pro- approving Federal judicial nominees. The fessional achievements, public service, aca- Senator Mathias makes another very Constitution entrusts the power to appoint demic credentials, appellate briefs or other critical point in his University of Chi- the member of the third branch of the Na- legal writings, scholarly or other publica- cago Law Review article about the ad- tional Government not to the executive tions—should be reviewed carefully to screen vice and consent clause. He says: branch nor to the legislature, but to both po- out the merely competent, and certainly, the

VerDate Dec 13 2002 04:53 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00062 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.132 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2293 simply mediocre. Respect for the institution Mrs. CLINTON. Professors Kurland Even in the absence of evidence of a of the Federal courts—and for the onerous and Tribe, joined by Professors William nominee’s lack of adherence to con- responsibilities of the Federal bench—re- R. Kenan and Ralph S. Tyler, wrote stitutional values, it is something that quires nothing less. The responsibility of appointment to the that: we have to take seriously. We have to independent judiciary was divided between [P]roviding ‘‘advice and consent’’ on judi- be assured, we have to be reassured, the White House and the Senate in part to cial nominations . . . is no mere senatorial that when we cast our votes, we are avoid burdening the Federal courts with can- courtesy but a constitutional duty of funda- doing so in the best interests of our didates selected solely to satisfy criteria un- mental importance to the maintenance of Constitution and our country. related to judicial excellence. The President our tripartite system of government. It has been clear in the debate so far is certainly entitled to prefer loyal sup- Now, that is a mouthful that really that the Constitution has become porters and like-minded thinkers in choosing says a lot. This little clause—just three something of a political football. There among the exceptionally qualified; but no words—is so important to our tri- are those who—when the shoe was on President has a right to treat Federal judge- partite; namely, our three branches— ships as mere patronage appointments sim- the other foot and the occupant of the ply to reward friends or to assure a judiciary executive, legislative, and judicial—of White House was of another party— packed with ‘‘true believers.’’ And the Sen- Government. Well, it is. That is why were certainly more than ready to ask ate is surely not required to defer to the ap- we advocate it, not at our peril—we any question and to raise any objection pointment of men and women whose most sa- will come and go—but at the peril of that they could possibly imagine. lient qualification is their location in a par- undermining this extraordinary, bril- I listened, with great interest, to my ticular partisan line-up or their devotion to liant construction of the United a particular cluster of political or philo- good friend from Utah say, with great States, a tripartite form of Govern- conviction: We never, ever filibustered sophical views. ment, kept in equilibrium by a balance The Senate has the further obligation to a judge. assure itself that a nominee’s substantive of power. That may be technically true, but views of law are within the broad bounds of That is a heavy responsibility, to the reason is because they wouldn’t acceptability in American public life and not think of giving up advise and consent, give nominees hearings. They wouldn’t on its lunatic fringes—whether left or right. giving up the Senate’s constitutional give nominees votes, and they would The Republic may demand—and its Senators duty because, as this statement goes not bring them to the floor where they ought therefore to ensure—that is life- on to say: tenured judiciary does not disdain the Bill of possibly could be filibustered. It is The reasons that the Framers con- somewhat surprising to hear that argu- Rights or the Fourteenth Amendment’s com- templated a strong Senate role in the proc- mand for equal protection of the laws and ess of judicial appointments are plain. It ment being made with a straight face. due process. must be remembered that Federal judges are In the years between 1995 and 2000, The absence of evidence of a nominee’s not, like the president’s cabinet, to serve the the Judiciary Committee refused to lack of adherence to constitutional values will of the Chief Executive, but officers ap- hold hearings or to permit votes for should not be deemed a sufficient ground for pointed for life to a separate and inde- more than 50 judicial nominees sub- confirmation. When dealing with a lifetime pendent branch of government. mitted by President Clinton. Some appointment to the Federal bench, rather If those appointed to these lifetime judi- than the trial of a criminal defendant, one’s nominees waited years for a hearing. cial posts should ultimately prove unequal Some nominees waited years for a vote. doubts as to a candidate’s commitment to to the task or unsuited to the role, they can- the Bill of Rights or to constitutionally com- not be dismissed. One such nominee, a Hispanic judge, manded equality must be resolved in favor of Impeachment by the House and trial by Judge Paez, waited more than 1,500 the Constitution rather than the candidate. the Senate is the only constitutionally au- days. Others waited more than 1,500 None of this is to say that the Senate, any thorized method of removing unfit judges, days, never received the courtesy of a more than the President, is justified in using and the great difficulty of such a process hearing, never received the courtesy of litmus tests that seek out a candidate’s un- makes it usable only in situations of out- a vote. swerving commitment to upholding or re- rageous misconduct. The only practical op- versing a particular * * * dealing with * * * So here we are, and we are being portunity to consider the merits of a judicial somehow taken to task because the vised than the confirmation of ‘‘single-issue’’ candidate, therefore, is before that appoint- nominees who appear to have been selected ment is made. It thus becomes not only ap- other side never filibustered. But they solely on the basis of their aversion to or en- propriate, but obligatory, that the Senate controlled the committee. They didn’t dorsement of one particular line of legal doc- pass on judicial nominees with greater scru- have to filibuster. They just let nomi- trine. tiny than it reviews the president’s choices nees languish, twist in the wind, and Finally, the Senate must realize that, in for his own subordinates. eventually disappear. I didn’t approve the appointment process, the power of nomi- Whatever the philosophy of government or nation belongs to the President alone. Sen- of that. I thought that was unfair to a theory of law, the demands that the Nation lot of very decent Americans of tre- ators are not entitled to a ‘‘short list’’ of makes on its federal judges are indisputably their own. Therefore, it is not a sufficient great. The federal courts play an increas- mendous intellectual, academic, and objection to an otherwise legally distin- ingly critical part in American government. legal experience and qualifications. guished and constitutionally acceptable To federal judges is given the task of polic- What we are doing now is trying to nominee that a Senator would prefer some- ing the boundaries between state and federal do the work of the Judiciary Com- one from a different part of the legal profes- government, of giving principled articula- mittee. The Judiciary Committee sion or a different part of the country, or tion to the content of the basic human rights would not stand for the prerogatives of someone of a different race, gender, or ide- protected by the constitution, of enforcing ology. But neither is a confirmation vote in this body and insist the nominee an- the myriad and complex federal statutes and swer questions, provide information, order whenever the best that can be said of regulations, and of overseeing complicated a nominee is that he has spent some time in commercial and criminal litigation. require the administration to come for- law or public life and is untainted by any Senators therefore have a duty, both to the ward forthrightly and give the docu- major scandal. Even at levels below that of constitution and to the Nation’s citizens ments and the other background mate- the Supreme Court, where the need for ex- [who sent us here] to ensure that the presi- rial that was requested. The only way ceptional distinction should be beyond de- dent’s nominees have the experience, the tal- we can exercise our constitutional duty bate, the Nation has a right to expect more ent, the intellectual acumen, and the fair- to advise and consent is to raise these than minimum qualifications and probable ness of mind to perform their functions, and, fitness from its Federal judges. And it has a issues here in the Chamber. particularly in the case of appellate judges, I want to put this into the context of right to insist that the Senate, whatever the to contribute lucidly to a body of legal practice of the past decade or two, recall the precedents that guide [our] courts. . . . why this would be important to any- Framers’ vision of its solemn duty to provide The Senate has the further obligation to body outside the Senate. Again, I imag- advice and consent, rather than perfunctory assure itself that a nominee’s substantive ine people trying to make sense of all obeisance, to the will of the President. views of law are within the broad bounds of of this, trying to figure out what it is PHILIP B. KURLAND. acceptability in American public life and not all about. In fact, it is about the people WILLIAM R. KENAN, on its lunatic fringes—whether left or right. themselves. Senators come and go. Distinguished Service Professor, University of The Republic may demand—and its Senators Presidents come and go. The Constitu- Chicago. ought therefore to ensure—that its life- LAURENCE H. TRIBE. tenured judiciary does not disdain the Bill of tion, we hope, not only stays but pre- RALPH S. TYLER, Jr., Rights or the Fourteenth Amendment’s com- vails. The Constitution, which set up Professor of Constitutional Law, Harvard mand for equal protection of the laws and this genius form of government, unlike University. due process. anything that any group of human

VerDate Dec 13 2002 04:53 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00063 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.023 S12PT1 S2294 CONGRESSIONAL RECORD — SENATE February 12, 2003 beings have ever devised for them- stitution and to do what we are told to Let me say, with all due respect to my col- selves, is our underpinning. It is our do. leagues, I am not starting down any new bedrock. That is not what the decision was path. I am going to be very specific and The interpretation of it can change when the debate took place among our prove exactly my point that we are not starting down a new path of blocking a judi- from time to time. That is as it should Framers. If you look at the Federalist cial nominee. That path is well worn. We are be. That is part of the genius of our papers, if you look at all of the com- following a path; we are not starting down Constitution—that it was an organic, mentary in the many years since, this any new path. growing document to take into account was a solemn duty that was given to I could not say it better myself. In a nation that started out primarily the Senate. fact, I wish I had said it as well. But it agrarian and now is in the midst of the When people say: Why are you debat- is not only Senator SMITH, it is also information revolution. We couldn’t ing this, I think there are a number of Senator HATCH, on January 28, 1998: even imagine thinking we had to live reasons. First, because it seems to Conducting a fair confirmation process, and work and govern ourselves in the those of us who are debating, it is our however, does not mean granting the Presi- same way as our predecessors did 200 duty. It is our responsibility. We read dent carte blanche in filling the Federal ju- plus years ago. But the values don’t the Constitution. We read what people diciary. It means assuring that those who change. The balance of power that is said about it at the time it was writ- are confirmed will uphold the Constitution fundamental to our tripartite system ten, what people have said about it re- and abide by the rule of law. of government doesn’t change. Human cently. We read what our colleagues Senator HATCH, October 3, 2000: beings may fly through the air in air- have said about it, when the shoe was The President has broad discretion, as we planes rather than traverse from place on the other foot, and we have to con- know, to nominate whomever he chooses for to place on horseback, but fundamental clude we are fulfilling our constitu- Federal judicial vacancies. The Senate, in its role, has a constitutional duty to offer its human nature doesn’t change. tional responsibility. advice and consent on judicial nominations. The reason we have a balance of I went back and looked at the CON- Each Senator, of course, has his or her own power is because the Framers were ab- GRESSIONAL RECORD at some of the criteria for offering this advice and this con- solutely the best psychologists who comments some of my friends on the sent on lifetime appointments. The Judici- ever came together in any place in the other side have made in the past about ary Committee, though, is where many of world. They knew, as they revolted what we should do when it comes to ad- the initial concerns about nominees are against a king and a royal system, that vising and consenting. I agree with raised and arise. All of this information is, of what they said. When the shoe was on course, available to every member of the Ju- they were setting up the potential for diciary Committee and must be thoroughly self-government. They recognized in the other foot and it was a Democratic reviewed before the nominee is granted a order for self-government to work, you President sending judicial nominees, hearing by the committee. If questions about had to be realistic about human beings. the same speeches were said on the a nominee’s background or qualifications You couldn’t be too optimistic. You other side of the floor, which strikes arise, further inquiry may be necessary. Ob- couldn’t be too pessimistic. You had to me as definitive, conclusive proof of viously, this is a long process, as it must be. get it just right, kind of like Goldie what this is all about. After all, these are lifetime appointments. Locks. If you were too optimistic about For example, Senator SMITH, March Senator HATCH, May 23, 1997: human nature, you would certainly be 9, 2000: The primary criteria in this process is not disappointed. If you were too pessi- The Constitution gave the Senate the ad- how many vacancies need to be filled, but mistic about human nature, you vise and consent role. We are supposed to ad- whether President Clinton, or whoever the President is—whether their nominees are wouldn’t have enough hope to get up vise the President and consent, if we think the judge should be put on the court. We do qualified to serve on the bench and will not, and move forward and try to solve not get very much opportunity to advise be- upon receiving their judicial commission, problems. cause the President just sends these nomina- spend a lifetime, a career, rendering politi- So the Framers had to get it right. tions up here. He does not seek our advice. cally motivated activist decisions. And did they ever get it right. They And then we are asked to consent. It seems Then Senator HATCH goes on to say understood completely that we had to as if the Senate should be a rubber stamp, something else I agree with 100 per- restrain ourselves, that we had to have that we should just approve every judge that cent: comes down the line and not do anything systems that protect against runaway The Senate has an obligation to the Amer- about the advise and consent role. executive power, runaway legislative ican people to thoroughly review the records power, runaway judicial power. They I agree 100 percent with what Senator of all nominees it receives to ensure that had it absolutely right. SMITH then said: they are capable and qualified to serve as The advice and consent clause is part That is not the way that I read the Con- Federal judges. of how they got it right. I don’t care if stitution. I believe that is wrong. We have an Listen to that specific point that you are Republican or Democrat, if you obligation under the Constitution to review Senator HATCH made back in 1997: served in the Senate in the 19th or 20th these judges very carefully. There has to be a thorough inquiry and or 21st century, they got it right. In that same vein, Senator SMITH on the Senate has to determine whether a What we are saying is we don’t want another day, the same month, March 7, nominee would, upon receiving their to second-guess the Framers. We don’t 2000, went on to explicate this impor- judicial commission, spend a lifetime, want to substitute our judgment for tant responsibility. I wish all of us a career, rendering politically moti- theirs. We want to do what we are ex- would listen to it. I think this is ex- vated, activist decisions. That is really pected to do by the Constitution. actly right. He said: the nub of what we are looking to de- We wouldn’t even be here having this I think the constitutional process is very termine. debate if the constitutional responsi- clear, that the Senate has the right and the There is more than sufficient concern bility had been fulfilled in the Judici- responsibility under the Constitution to ad- that the nominee before us would do ary Committee. I have listened to my vise and consent. That is exactly what I intend to do in my just that. And the reason why the ad- colleagues talk about all of the paper role as a Senator as it pertains to the two ministration will not, and maybe per- that has been submitted and all of the nominees before us. The issue, though, is chance cannot provide the information time that has been taken to pass this whether it is OK to block judicial nominees. requested, is because to do so would nominee through the Judiciary Com- We have heard from a couple of my col- make abundantly clear that this is a mittee. But they know as well as we leagues in the last few moments that it isn’t nominee on a mission, that this is a that many of the critical questions OK to block judicial nominees, as if there nominee who will do exactly what Sen- was something unconstitutional about it. were never answered. Many of the es- ator HATCH warned about when the sential documents that would give us There is thinking by some that we should not start down this path of blocking a judi- shoe was on the other foot; namely, insight into the attitudes and the be- cial nominee whom we do not think is a good render politically motivated, activist liefs and the philosophy of this nomi- nominee for the Court because it may come decisions. nee were never produced and that, in back to haunt us at some point when and if Now, there may be some on the other effect, we are asked to basically abdi- a Republican should be elected to the Presi- side who believe they would agree with cate our advise and consent responsi- dency. these politically motivated activist de- bility, to turn our back on the Con- Senator SMITH goes on: cisions, so bring it on. But I don’t

VerDate Dec 13 2002 04:53 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00064 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.135 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2295 think that is our responsibility. Our re- might still be nominated and con- on a particular nominee, for whatever sponsibility is to know ahead of time. firmed, but the American people have a reason, I think that does a disservice The American people don’t get to right to know who these people are to the seriousness of our concerns be- interview and vote on these nominees. who are being nominated because they cause it was this nominee who would If some nominee overturns, when he or are going to be making decisions that not answer the questions. It was this she is on the bench, fundamental work- affect the daily lives of Americans. nominee who did not provide the mate- er protections for people who work When you nominate a stealth can- rials. hard and play by the rules of what they didate, when you send him up to the My very alert counsel has just re- are supposed to do at work, that affects Judiciary Committee and tell him to minded me that when Justice Taney the lives of millions of Americans. If dodge and duck and divert and do not was first rejected after being nomi- someone decides they don’t like the Vi- answer a straight question with a nated by President Jackson in 1835 and olence Against Women Act, or they straight answer, is it any wonder that then was renominated and confirmed in don’t believe there is a right to privacy people get a little suspicious and 1836, he went on to write one of the embedded in the Constitution, that af- maybe say: Wait a minute; if this man most discredited, racist, despicable fects millions of Americans. will not even come and tell us what Su- opinions in the history of our court. So I think it is imperative that we preme Court decision he agrees with, Judge Taney was the author of the listen to what our colleagues on the going back to Marbury v. Madison, and Dred Scott decision. Maybe the coun- other side of the aisle said during the he says he cannot name one; How about try would have been better off and 1990s. All of this concern about advice one with which you disagree? Well, I saved a whole lot of misery if the Sen- and consent, all of this caution about can’t name that either; that does not ate had delayed action and had never rushing to judgment and voting—slow pass the smell test, I am sorry. That is confirmed him when he was renomi- it down, do a thorough review, don’t a witness who has been well coached nated. We just never know. We have to move too quickly. In fact, don’t even and told: Don’t rock any boats, don’t do the best we can given our own give people hearings or a vote in com- answer any questions, don’t reveal human limitations and idiosyncrasies mittee. It is imperative that now we your true opinions. Just try to get based on the information available. try to get back to that balance of through the process. There are some, and I respect their power that the Constitution estab- That is why we need an advice and opinion, on both sides of the aisle who lished. consent clause in the Constitution, and say: If the President sends somebody Turning down nominations for a that is why the Framers put it there. It up, I am voting for it, no questions judgeship is something that goes back very well may be if he answered the asked. That is how I believe the Con- to the beginning of our Republic. It is questions forthrightly, if he said: My stitution is to be interpreted, as far as not as though this is the first time we favorite Supreme Court decision is I am concerned. have ever had this debate. We have had Marbury v. Madison, my least favorite With all due respect, I think that is many nominees rejected, starting with is—pick one out of thousands—we an abdication of responsibility. one of President Washington’s nomi- would say: We do not agree with you, For most of us, we try to get behind nees. John Rutledge was nominated in but OK. But he will not do that. the nomination. We try to understand, You have to ask yourself: Why won’t 1795 by President Washington. Why was not just the academic or legal back- he do that? Certainly given the kinds he turned down? He was thought to be ground which can be described by of questions that were asked of nomi- well qualified. He had quite an experi- where you worked, who you worked for, nees during the 1990s that went into all ence that could certainly be impressive what clients you had, what cases you kinds of areas—their associations, the when examined. He was a member of tried or argued, but if that is all we meetings they attended, how they even the Federalist Party, which should cer- did, we could put that into a computer. voted—it is hard to understand why We would not need the Senate. We tainly ring a bell with my colleagues this nominee cannot be expected to an- would computerize that decision. That on the other side. But he was turned swer pertinent questions about the law, is not what we are supposed to do. We down because of his political views. about his opinions concerning Supreme The idea that somehow the political are supposed to get behind the statis- Court decisions. views and positions of a nominee for a The fact he refuses to do so, or has tics, under the resume to satisfy our- lifetime appointment are off limits to been ordered not to do so, fundamen- selves that the person we give this life- the Senate has no basis in fact, his- tally defies the constitutional duty of time job to is motivated by only one tory, or law. The very first nominee in this body to advise and consent. reason: to render justice to the best of 1795 by probably the most popular I know there are those who have ar- his ability no matter who the parties President that we have ever had, be- gued that there is already an adequate are, no matter what the outcome of the cause he was the first—and lucky for amount of information in the record matter may be, not to serve a political him he didn’t have to be compared to that should be taken at face value. philosophy or ideology, not to serve a other people and given all of the dif- That is hard to do. That is hard to do political party or even a President but ficulties that our subsequent Presi- because, in the absence of a willingness to really do the hard work of justice. dents have faced—but President Wash- to answer pertinent, relevant ques- It is a hard job, it is a really hard job ington’s nominee was rejected because tions, many of us do not believe the and especially today. There are so of the political positions he had taken. nominee has sufficiently subjected many factors at work in our society, so Of course, that was not the only himself to the process that this body many difficult decisions to be made early nominee to be rejected. President has established to permit Senators to about how we keep this wonderful, pre- Madison nominated Alexander Wolcott make an informed decision. cious democracy of ours moving for- in 1811. He was rejected. If we go back and look at the reams ward that judges have a very tough job. He was rejected. President Jackson of material that I reviewed to deter- It is not for the casual or the indolent. nominated Roger Brook Taney in 1835. mine what was the basis for the advice It is for people who really care, will He was rejected the first time. He came and consent clause, I think that is ob- work hard, and will follow the law, the back a year later and was accepted. vious to us all it is there for a purpose. Constitution, and their conscience. There are many such situations. We ignore it at our peril. We have a We are judging not just a legal re- It is revising history to claim that duty to abide by it. sume. We are judging a potential judge. we cannot inquire into someone’s opin- I again urge my friends and col- We are asking ourselves: Will everyone ions. If we are going to put someone on leagues on the other side to read the who appears before this court get the the bench who does not believe there is extensive description of the advice and benefit of a fair rendering of justice? a right to privacy in the Constitution, consent clause and the role of the Sen- Until we can satisfactorily answer which would perhaps lead to the over- ate in the judicial selection process by that question about this nominee, we turning of many decisions that protect former Republican Senator Charles cannot move forward. We should not people’s privacy in the sanctity of their McC. Mathias. move forward. We should follow the home or with respect to their bodies, When my friends and colleagues raise words of our colleagues when the shoe we should know that. That person the issue that somehow this is focused was on the other foot and it was a

VerDate Dec 13 2002 04:53 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00065 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.138 S12PT1 S2296 CONGRESSIONAL RECORD — SENATE February 12, 2003 nominee from a Democratic President qualified by his own colleagues in the should be. I have seen the big thick that caused questions and concerns on American Bar Association. book that the chairman of the Judici- the other side. I find it interesting, as the case is ary Committee had, all the questions I personally think that was overdone, trying to be made, that somebody is he was asked, the responses. What else and that many good, decent people who being denied their constitutional is there to know about this man that would have made fine judges were de- rights, the constitutional right of ad- has not been revealed? Instead, we hear nied the right to go forward, but it was vice and consent. I tell the American ‘‘deny,’’ when not one person in the done in the name of the Constitution. people, no Senator is being denied ac- United States as a Member has been It was done under the rubric of advise cess to this floor. No Senator is being denied access to this floor. and consent. denied the ability to come to this floor Cases that have to do with public It is a little hard to understand how and make his or her case either in sup- lands have great ramifications for my friends on the other side can, with port or opposition to the confirmation Montana. Therefore, not only will I straight faces, say that is not what it of Miguel Estrada. Everyone is free to think he will be fair, judicial, and con- means at all. How dare we question do so and is afforded the opportunity to stitutional, but I believe it is also im- this nominee. How can we ask for more discuss the merits of one side or the portant to fill this vacancy. Right now, information? Because that is what we other. Nobody is being denied that. It we see declarations of emergencies in think our duty is, just as at a previous is pretty simple, and I think the Amer- so many of our appellate courts that time those on the other side thought it ican people understand that. Come we are seeing justice delayed, justice their duty. down and make your case. If you did denied. It is difficult to explain how the Con- not make it the first time, come back So what do we see happening today? stitution’s interpretation could flip so the second time, come back as many It is written in the Constitution about quickly. I do not think that is good for times as you like to respond. our rights not being denied, but we the Constitution. I do not think that is No one has been denied anything sure see a little bit of obstructing and good for this body. I do not think it is dealing with the merits of this man delaying in the confirmation process. good for the judiciary. Most of all, I do Miguel Estrada. Come down and make We will not even be denied a vote. not think it is good for our country. I your case. Then vote. It is very simple. Every Senator will come down and cast think no matter who is in the White There is nothing hard to understand his vote. House, no matter who is in the Senate, about that. He was rated the highest rating of we ought to do our level best to fulfill If a good case is made, there may be the American Bar Association. Yet we the duties the Constitution places upon 51 votes. Folks will vote for you and have heard it argued that he does not us. That is what I am attempting to do you have won, and we will say con- have the right qualifications to serve to the best of my ability. I know that gratulations. Nobody is being denied the court and therefore make a deci- is what all of my colleagues attempt to that. sion that we are going to talk the nom- do. We see quite a lot of dust being ination to death. The Senate is a better When we face a moment such as this, kicked up to fuzz up and confuse the body than that. Being around politi- which seems fraught with so much issue. The issue is Miguel Estrada. cians a lot, being talked to death hap- meaning not only with respect to a That is what it is about. He has been pens to be the worst death in the world. nominee and not only with respect to nominated to occupy a seat on the DC So, is he qualified? You bet he is. the judiciary but to that fundamental Court of Appeals. Does he meet the limits on some folks? balance of power, we have to be careful. I am not an attorney, never been Maybe not. Does he meet their litmus We will live with the precedents that hinged with that title, but I too get to test, maybe a personal litmus test? are set. vote. I too get to look at information, Maybe not. But there were people who Lord Acton had it right when he said, both positive and sometimes negative, disagreed with us when we ran for of- power corrupts and absolute power cor- about this man. He will be the first fice and no one was denied the vote. If rupts absolutely. Hispanic to serve on the DC Court of we had to go through this process just We must have those checks and bal- Appeals, and I applaud President Bush to get elected to the Senate by our con- ances. We must keep that fabulous, un- for nominating a candidate of this stituency, we might not ever get here; believable genius of our Framers alive. quality and this integrity. we would be talked to death at home. I hope we can see some attention being He is a living example of an Amer- We are not going to talk about his paid to the legitimate questions and ican attaining what he terms as his background. We are going to talk concerns that are being raised about American dream. Right now he is being about this American. No, he did not this nominee and about this process denied a vote. That seems sort of start here, but this American has ap- and about the Constitution we revere strange to me. He deserves an up-or- plied his talents and his intellect to be- and serve. down vote, and at the end of that we come an appellate judge. I am proud of I yield the floor. will count them up and we will move this man. Nowhere else do we see an The PRESIDING OFFICER (Mr. on. example of who we are and why we are COLEMAN). The Senator from Montana. Why should I, a Senator from Mon- Americans. Mr. BURNS. Mr. President, I rise tana, be interested in a nominee to the Mr. SESSIONS. Will the Senator today and join my colleagues in sup- DC Court of Appeals? Well, so many yield for a question? porting the confirmation of Miguel cases are argued before this court that Mr. BURNS. I am happy to yield. Estrada to the DC Circuit Court of Ap- have to do with the management of Mr. SESSIONS. The Senator makes peals. We have heard more information public lands and the management of his point about having a right to a on this man than anyone I can remem- our national parks. Because I am from vote. The argument has been made pre- ber in recent times. There is not much a public lands State, it matters a great viously that we need advice and con- about this gentleman or this situation deal that the laws of the land are prop- sent, but we never vote. The Senator is that has not been said thus far on the erly judged and adjudicated. Every aware that on a filibuster it takes 60 floor of the Senate. piece of information that I have been votes, and on an up-or-down vote it The history of this man I can relate able to read or listen to or watch tells takes a majority, 51 votes; is that cor- to. I kind of started out on my own me he understands one little word in rect? about that age, but I will never attain the English language that is very im- Mr. BURNS. That is the way I under- the level of society and dedication he portant to each and every one of us. stand it. has. He did it the hard way, by his own The word is ‘‘fair,’’ dedicated to the Mr. SESSIONS. The Constitution is bootstraps. He is a graduate of Harvard study of both sides of any issue and right on advice and consent, and we Law School, near the top of his class. then relating that to the law or the can debate forever about that, what We also know he is a very successful Constitution of the United States and that means. Basically, it means what appellate lawyer who argued 15 cases making judgments. any Senators believe it means; is that before the United States Supreme That is pretty simple. We make right? They can vote on any basis they Court. We know he has been rated well things a lot more difficult than they want?

VerDate Dec 13 2002 04:53 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00066 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.141 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2297 Mr. BURNS. That is my interpreta- we have outlined, and to refrain from passing so important there needs to be a check tion. judgment on his nomination until that in- and balance, so we need to have both Mr. SESSIONS. The Constitution quiry and the record is complete. the Senate and the President involved. says: The President shall have the Let me begin by saying the DC Cir- The President will nominate but the power, by and with the advice and con- cuit Court of Appeals is, in fact, an ex- Senate will have the responsibility of sent of the Senate, to make treaties, tremely important court in our Nation. reviewing and consenting to the nomi- provided two-thirds of the Senators It is very important to the people I rep- nation. That is the process that we are present concur; and he shall nominate resent in Michigan and to the people involved in right now. and, with the advice and consent of the that we all represent. It is, in fact, con- I might also say that we have con- Senate, shall appoint ambassadors, sidered the Nation’s second most im- firmed over 100 judges since President judges, and other court officers. portant court, second only to the U.S. Bush has come into his Presidency, and It did not say what the vote was, so Supreme Court. This court has exclu- just on Monday night we had three since the founding of our document, we sive jurisdiction over a broad array of votes. One was a Hispanic judge. We managed that to be a majority. Where important Federal regulations that af- moved forward in this process. But it needed a supermajority—more than fect people in their lives every single when we find someone comes to the Ju- 51 votes in this case—more than a sim- day—environmental protection, our diciary Committee and when he is ple majority, it set it out, two-thirds. civil rights, human rights, consumer asked to provide copies of his memos So wouldn’t the Senator agree that a protections, workplace statutes—items and information, when he basically fair reading of the Constitution would that touch our lives. We have the right says no, or I’ll just think about it, that indicate our Founders contemplated to know what someone’s views are in makes it very difficult for an informed that the vote here would be a simple general, and philosophy in general, as decision to be made. majority required for confirmation? that person is being considered for this Unlike other nominations that come Mr. BURNS. You are asking a man high court. before the Senate, such as ambassador- who is not trained in the legal dis- In addition, its judges are often nom- ships or executive nominees, Federal ciplines. inated to serve on the U.S. Supreme judicial nominations, again, are life- Mr. SESSIONS. But the Senator is Court, which is another reason why time appointments. I think it is so im- most trained in common sense. this is a particularly important nomi- portant to repeat that over and over Mr. BURNS. I say that the majority, nation, and a particularly important again. I have, in fact, supported the 50 plus 1, would be all it takes. decision for all of us in the Senate. confirmation of individuals, other Mr. SESSIONS. And that is what we Three of the current members of the nominees of the President for his Cabi- have done. Supreme Court, Justice Scalia, Justice net who certainly would not have been Is the Senator aware in his tenure in Thomas, and Justice Ruth Bader Gins- my personal first choice. But the Presi- this Senate that we have ever had a fil- burg, all previously served on the DC dent has the right to select his Cabi- ibuster maintained on a Federal judge? Circuit. So that is why this is particu- net—certainly within reason; has the Mr. BURNS. That is something else larly important and we should take the right to select his Cabinet, the people that sort of confused me the way you time necessary to make sure that the who will work with him during the 4 put your argument, but I am wondering right decisions are made. years that he is in office. That is not what this is about. This why we are raising the bar for this Despite the importance of the DC is about someone who will, in fact, nominee. Is that what we are doing Circuit Court, the administration is make decisions that will affect us, not here? Are we saying he has to stand a trying very hard to prevent the Senate for 3 or 4 years, but for 30 or 40 years, more difficult test than all others in from making an informed decision—an through numerous Presidents, making the past or all others will be asked in informed decision on Mr. Estrada. Mr. it even more important that we are not the future? Estrada has no judicial experience, nor a rubberstamp. The U.S. Senate has a I go back to that other old word, I is he a distinguished scholar or pro- very important role to play. say to my friend from Alabama: fessor, which means he lacks any real ‘‘Fair.’’ I guess that is all we ask, fair- As a part of this important responsi- public record. That is not disparaging bility, my Democratic colleagues on ness. Everything I have read and every- in terms of a comment as to his intel- the Judiciary Committee have tried to thing I have heard tells me that this lect, but it is a question of public obtain information, legal memos Mr. man is qualified to sit at any other record which we can review as to his Estrada wrote while serving in the Jus- man’s fire. And I would tell you they views and philosophies. tice Department. The Justice Depart- don’t come with a higher recommenda- He has spent the bulk of his career in ment has refused to provide these docu- tion than that. But let’s not ask this the Solicitor General’s Office and in ments which presumably would show man to be subjected to a higher bar private practice. This makes it ex- Mr. Estrada’s constitutional analysis than has been asked of every other traordinarily difficult for us to fairly of cases. This is very important. The American—not this American. evaluate him, and it makes his legal constitutional analysis of statutes— I yield the floor. memos and other work product abso- whatever his philosophies and beliefs— The PRESIDING OFFICER. The Sen- lutely critical for this evaluation. would give us insight into his judicial ator from Michigan. The Senate has a constitutional obli- reasoning, not on a particular case but Ms. STABENOW. Mr. President, I gation to advise and consent on a Fed- his reasoning. Unfortunately, as I indi- rise this evening to discuss the nomi- eral judicial nominee. This is a respon- cated before, he has not been forth- nation of Miguel Estrada to the DC Cir- sibility I take very seriously, as do my coming to the committee. In fact, he cuit Court of Appeals, and to express Senate colleagues, I know, from both has refused to answer the most basic grave concerns that we are being asked sides of the aisle. I might just remind questions before the committee. to vote on a lifetime appointment with us that as we read in our U.S. history During his nomination hearing, Mr. very little information on this nomi- books, there was a major debate as to Estrada refused to answer questions re- nee. There are many who have raised how to decide the nominees and the garding his judicial philosophy or his concerns about that very point. Let me members who would sit on the U.S. Su- views on important Supreme Court share one letter that has been written, preme Court. At one point, our Fram- cases, including Roe v. Wade. He even from the American Association of Uni- ers said the President should decide refused to name any Supreme Court versity Women. alone. At another point they said the case with which he disagreed. This re- We believe the information available re- Senate should be the one that has the fusal to provide necessary information garding Mr. Estrada’s record raises serious absolute right to decide who should be is absolutely unprecedented. Past ad- concerns about whether he should be given on this all powerful, important court ministrations and the current adminis- the enormous honor and responsibility of a that affects our lives so much. In the lifetime appointment to this Nation’s second tration have disclosed legal memos and most powerful Federal court. We strongly end they compromised, as they did in other information in connection with urge the members of the Judiciary Com- much of the discussions and the final both judicial and executive nominees. mittee to conduct a thorough investigation decisions as to the framing of our Gov- For example, in previous administra- of his record, including the areas of concern ernment. They said we believe this is tions the Senate has requested and the

VerDate Dec 13 2002 04:53 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00067 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.144 S12PT1 S2298 CONGRESSIONAL RECORD — SENATE February 12, 2003 Justice Department has provided simi- ministration when 10 of more than 30 mal processes of the Senate, I would lar memos, written by Justice Depart- Hispanic nominees were delayed or have the opportunity to take a mo- ment attorneys, including the writings blocked from receiving hearings or ment to do that. of Supreme Court Justice William votes by members of their caucus. I Mr. SESSIONS. If the Senator Rehnquist, the Ninth Circuit Nominee wish my colleagues had been outraged wouldn’t take long, if she wants to ban Stephen Trott, Supreme Court nominee when Ronnie White’s nomination lan- importation of some of that Canadian Robert Bork, Assistant Attorney Gen- guished for 21⁄2 years and then was re- lumber, I will join with her. I yield to eral nominee William Bradford Rey- jected on the Senate floor on a party- the Senator, if she is not going to be nolds, and Attorney General nominee line vote. I wish my colleagues had too long then. Benjamin Civiletti, among others. stood up for racial diversity when the Ms. STABENOW. I thank the Sen- This breaks with a longstanding President filed their brief opposing the ator. practice of cooperation between the University of Michigan’s admissions The PRESIDING OFFICER. The Sen- Justice Department and the Senate in policy to help create racial diversity in ator from Michigan has the floor. Ms. STABENOW. I thank the Chair. providing access to necessary mate- our law schools and our other colleges rials for nominations. and schools at the university. IMPORTATION OF CANADIAN WASTE The administration also has provided The Senate needs to apply the same Mr. President, I wanted to have an such memos for another nominee. The level of scrutiny and the same stand- opportunity this evening—realizing we Bush administration has provided the ards regardless of a nominee’s race or have an important topic on the floor— Senate with legal memos written by the politics of the administrations that to speak on the record about an impor- Jeffrey Holmstead, an attorney with nominated them. tant topic that affects many of our the White House Counsel’s Office, dur- Until we are given these memos that States, and Michigan is certainly one ing the consideration of his nomination are a part of Mr. Estrada’s record, we of them. There is a growing problem of Cana- as Assistant Administrator at the EPA. are not going to hold judicial nominees dian waste shipments to Michigan and This was for a term appointment, in to the same standards and the same other States. In 2001, Michigan im- contrast to a lifetime appointment, basic principles of fairness. It is time ported almost 3.6 million tons of mu- which is certainly much more signifi- to do that—to give us a true oppor- nicipal solid waste—more than double cant. tunity. the amount that was imported in 1999. I am also concerned that my col- I might also add that 100 percent of This gives Michigan, unfortunately, leagues on the other side of the aisle the Hispanic Caucus of the House of the undue distinction of being the third are applying a different standard for Representatives have joined with us largest dumping ground of waste in the nominees who are nominated by a Re- asking that we oppose or withhold United States. publican President than by a Demo- judgment—that we not proceed with My colleagues may be surprised to cratic President. During the Clinton this vote until we have the informa- know that the biggest source of this administration, and under Chairman tion. These are individuals who have waste is not another State but, in fact, HATCH, nominees were required to expressed grave concerns. They do not Canada. And more than half the waste produce volumes of information. For support moving forward. One-hundred that was shipped to Michigan in 2001 example, Judge Richard Paez was percent of the Hispanic Caucus of the was from Ontario, Canada, where these asked to provide documentation of House from all around the country imports, unfortunately, are growing every instance during his tenure as a joined with more than 30 different or- rapidly. In fact, on January 1, 2003, an- judge where he deviated downward ganizations expressing grave concern. other Ontario landfill closed its doors, from a sentencing guideline—every in- I think that says to us we need to and the city of Toronto is shipping stance. take the time that is necessary and we two-thirds to all of its trash—1.9 mil- Marsha Berzon, a Tenth Circuit need to receive information so that we lion tons—to a Michigan landfill. This nominee, was required to provide the can make an appropriate judgment. deal could last up to 20 years. I think it minutes from every California ACLU I will take just a moment to change is important for a statement to be meeting that occurred while she was a topics. made for the record as we move for- member of that organization, regard- I ask while moving from one impor- ward with this legislation that it is less of whether she even attended the tant topic to another to take just a time to do something about it. meeting. moment to speak to a bill I have intro- Not only does this waste dramati- Why was the bar placed so high for duced today regarding the growing im- cally decrease our own ability to have these Clinton nominees but there is portation of waste problem. a landfill capacity, but it also has a such a hard push by my colleagues to The PRESIDING OFFICER. The Sen- negative effect on the environment and confirm a nominee from whom we have ator from Alabama. on public health. Frankly, right now, I no information? Why is there such a Mr. SESSIONS. Mr. President, I am particularly concerned about the strong resistance by the administra- know the Senator would like to talk fact that this is a homeland security tion to allow the Senate the oppor- about another subject. But what is the issue for us. We now have our citizens tunity to learn more about this nomi- pending business we are on now? at high alert. We are telling them to nee’s writings and opinions? That is The PRESIDING OFFICER. The prepare themselves with duct tape, what this debate is all about. pending business is the Estrada nomi- with plastics, and with water for their I might just say that when I am nation. homes. There is a high degree of con- asked what is the philosophy, what is Mr. SESSIONS. I will, regretfully, cern about the possibility of a terrorist the judicial reasoning of this particular have to object to proceeding to another attack. nominee, I would have to say this— subject. That is a subject we are here Yet on Monday, I was able to go to these are the answers to the questions to talk about, and I have some remarks Port Huron, MI, and look at an inter- that Miguel Estrada gave to the Judici- I want to make. So I would object. national bridge where we have trucks ary Committee: An absolute blank Ms. STABENOW. Mr. President, I coming over bumper to bumper—over slate. Not one answer to one question. have been given the floor, as I under- 130 different semi-trailer trucks—from How can that give us the opportunity stand it, for 30 minutes. And I appre- Ontario, Canada, to Michigan every to determine whether or not this is a ciate the fact that we have a topic in day that have solid waste in them from nominee we wish to support? front of us. At this point, it is my un- Canada, waste that is not thoroughly Finally, I am extremely disappointed derstanding that it is not the Senator’s inspected. I think this is a serious issue by how some of my colleagues across prerogative to object to my being on as it relates to homeland security. the aisle have tried to make this an the floor and to be able to speak for a These trucks are going through the issue of race. I believe racial diversity moment, along with this important neighborhoods and on into Michigan. in our judicial system is extremely im- topic, to a bill I introduced about And the same is happening in a number portant. I wish my Republican col- waste coming into the United States of other States. leagues had made the same impas- and taking a moment to do that. It is I have joined with colleagues—first sioned speeches during the Clinton ad- my understanding that under the nor- with Senator LEVIN and Congressman

VerDate Dec 13 2002 05:28 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00068 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.146 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2299 DINGELL—to introduce legislation to whether or not he was a strict con- cated and high-quality legal briefs that enforce an agreement that was made structionist. I thought that was inter- convince you you were wrong, what between Canada and the United States esting. Somebody said that was an ex- does the judge do then? Judges should back in 1986 that would give notice to ample of a question he would not an- not opine on matters that are going to the EPA—30-day notice—and the abil- swer. come before them in the future. So he ity to reject waste coming into this I remember the answer that he gave answered the questions consistently, country. That is not being enforced because I thought it was special, really and over and over and over again. now. I support their efforts to enforce indicative of his brilliance and insight They say: ‘‘We have a right to advise this provision with the EPA. But I into the law. and consent. The constitution allows think we have to go a step further now Senator EDWARDS. Are you a strict con- that.’’ And it does say that. This Sen- and stop these shipments until we can structionist? ate—and every Senator—can vote for get the agreement enforced and have Mr. ESTRADA. I am a fair constructionist, I or against a nominee on any basis they the EPA step up and receive notice on think. choose—a proper or improper basis. It Senator EDWARDS. Do you consider your- is their right. Nobody can control me these shipments coming into the self a strict constructionist? States. Mr. ESTRADA. I consider myself a fair con- on how I vote on this floor. I believe the State of Michigan structionist. I mean, that is to say, I don’t But what ought we do? How ought we should be able to tell the EPA that think that it should be the goal of courts to handle matters of confirmation? they don’t want this trash in Michigan be strict or lax. The goal of courts is to get Let’s be truthful. The reality is that, and that the EPA should honor that it right. And that may be in some cases to in the past, there has been a preference and be able to reject those shipments interpret the text as it is written because given, a presumption given to the coming in from Canada. We need to act other consideration of every element of help President’s nominees. They were able that there is to give the text meaning tells now. This is a serious environmental to come before the Senate or submit us that that is what the lawmaker intended. documents or just have their names issue and a public health and homeland But it may be inappropriate to give it a more security issue. general construction. I think we can have submitted, and generally they have I urge my colleagues and invite my laws and constitutional text of both types. It been confirmed. It is part of the co- colleagues to join me in legislation is not necessarily the case in my mind that, operation, unwritten courtesies, that will stop the shipments and give for example, all parts of the Constitution are collegiality and tradition of the Sen- us the opportunity to enforce this suitable for the same type of interpretive ate, that the President’s nominees agreement that has been on the books analysis. would be confirmed, where possible. long term so that we can send a very A very insightful, thoughtful answer. And if there is a serious objection, that strong message that we are not inter- Senator EDWARDS. Excuse me. I am sorry. should be raised. ested in Canadian trash coming into I didn’t mean to interrupt you. My concern in the matter of Miguel Michigan or any other State that does Mr. ESTRADA. No, no. Estrada is, for the first time—maybe Senator EDWARDS. Were you finished? not wish to have it. this century maybe ever—a court of ap- Mr. ESTRADA. The example I was going to peals nominee is facing a confirmation I thank the Chair. I yield the floor. give is, you know, the Constitution says, for The PRESIDING OFFICER. The Sen- example, that you must be 35 years old in process that would require not a major- ator from Alabama. order to be our Chief Executive. There is not ity of votes in the Senate but a super- Mr. SESSIONS. Mr. President, it is a lot of hard study that has to go into fig- majority—60 votes—to be confirmed. really frustrating. I know Senator uring out whether somebody is in compli- That is something we have not done be- HATCH last night expressed his frustra- ance with the 35-year-old requirement. You fore. It is not something we should pro- tion about arguments that are made can read it and say I am 40 and I can run. ceed with. that are just not factual. There are areas of the Constitution that The Constitution, in article II, sec- are more open-ended, and you averted to one, tion 2, says: I know the Senator, as she finished like the substantive component of the due her remarks eloquently, as she does, process clauses, where there are other meth- [The President] shall have Power, by and was not at the Judiciary Committee ods of interpretation that are not quite so with the Advice and Consent of the Senate, hearing which I attended on Miguel obvious that the Court has brought to bear to make Treaties, provided two-thirds of the Estrada. The hearings started at 9 in to try to bring forth what the appropriate Senators present concur; and he shall nomi- answer should be. nate, and by and with the Advice and Con- the morning and went until 5 in the sent of the Senate, shall appoint Ambas- afternoon. There are hundreds of pages I thought that was a very rich, very sadors . . . Judges of the supreme Court, and of transcript of that testimony that he mature answer to that question and all other Officers. . . . gave answering every question I think was a good example of the way he an- The Constitution does not say what with the proper nuance each and every swered the questions. the vote should be, but it has been time on question after question after He was asked about his position on fully understood it meant a majority question. Roe v. Wade. He made it absolutely because when a supermajority of two- Remember, the questions they were clear that he considered it the law of thirds was required, the Constitution asking were during the time the Demo- the land and he would follow that law. spelled it out explicitly. crats controlled the majority in the And he cited Casey as being further ex- So the reason many of us on this Senate and Senator LEAHY was the plication of Roe v. Wade, and he would side, who have been involved and have chairman. He could have kept them follow that. So I think that is impor- studied the confirmation process, are there as long as he wanted. There is no tant for us to think about. deeply concerned by what is happening record that indicates Miguel Estrada People say he refused to allow him- here is because we are changing the said: Stop the hearing; I don’t want to self to be questioned about a judicial ground rules in an extraordinary way. answer any more questions. He was philosophy. I do not understand it that We are saying now—without any real never asked to come back to answer way at all. He refused to allow himself basis, without any statement of wrong- any more questions. The record was to be pressured into considering ques- doing by this nominee, any proof what- kept open, and Senators were allowed tions that he might have to deal with soever that he is extreme or will not to submit written questions in addi- on the bench or questions he had not follow the law—they are now asserting tion. Two Senators did that—Senator fully researched. And that is what he this young Hispanic, outstanding law- SCHUMER and Senator KENNEDY. Those should do. yer has to have 60 votes to be con- were answered by Mr. Estrada. If you are before a Senate committee, firmed, not 51. That is not right. I urge He has answered question after ques- and you are asked what your opinion is the Members of this body, I plead with tion after question. It is not true that on the right of privacy or some due the Members of this body: Do not do he did not answer one question. He an- process clause, and you express that, this. This knife cuts both ways. swered hundreds of questions. He an- and then you get on the bench, are you Are we setting a precedent we are swered them accurately and with skill obligated, since you were under oath going to follow as long as this Senate and with good judgment. when you were at that committee, to exists? If you do not like a nominee, It was said earlier in the debate that follow it? What if, once you get on the and 40 people get together, they can he would not answer the question of bench, and you receive highly sophisti- block that nominee? That was not done

VerDate Dec 13 2002 04:53 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00069 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.149 S12PT1 S2300 CONGRESSIONAL RECORD — SENATE February 12, 2003 when President Clinton was President. nominees. They ask what cases they They throw out these charges. I just There was not a filibuster of a Presi- have handled. They then make a list of happen to know some of them because dent Clinton nominee. There was not a the lawyers on the other side of the I have been involved in the hearings. blocking of any of the nominees in cases, and they go out and interview They said one judge was asked to give committee. the lawyers. They interview the judges all his downward departures in crimi- Last year, when the Democrats had who tried the cases. They don’t give nal cases. What a judge sentences in a the majority in the Judiciary Com- out well-qualified ratings that often. It criminal case is a public document. It mittee, they blocked two nominees in is rare to get a unanimously well-quali- is part of the public record. A down- committee on a straight party-line fied rating. ward departure means the judge has vote, both of whom would have been How can we say Miguel Estrada is violated the sentencing guidelines. But confirmed, it was clear, from news re- somehow out of the mainstream or a when he does that, he has to write a ports, had they reached the floor. They lunatic fringe nominee when the gold special opinion to justify why he down- killed them in committee. I thought standard, as one of my Democratic col- ward-departed and gave the criminal they had, but that may not be the case leagues said, the ABA, rated him well defendant less than the statutory min- today. That was a rachetting up of the qualified with their highest possible imum and sentencing guidelines would process. They said: Well, you held up rating? It can’t be done. require him to get as a sentence. I President Clinton’s nominees. He went to Harvard. He was editor of don’t think that was an extreme thing Let me tell you what the facts are the Law Review and spent 5 years in to ask. there. In the 8 years that President the Department of Justice Office of So- What they are asking this nominee Clinton was President, he had con- licitor General under the Clinton ad- to do is reveal internal memoranda he firmed 377 Federal judges. One of his ministration. Under the Clinton admin- wrote while he was a member of the nominees was voted down. That nomi- istration he was evaluated repeatedly Clinton administration to his fellow nee was opposed by the National Sher- by his supervisors, and he was given colleagues as they discussed how to iffs Association, law enforcement the highest possible evaluation you handle complex legal matters. Every groups, and both Home State Senators. could give an attorney in the Depart- single living Solicitor General has said It is the only one that was voted down. ment of Justice every year, the top rat- that this should not be done. There are Not one was killed in committee on a ing. seven of those, and four of them are party-line vote. Not one was filibus- Is this some sort of incapable stealth Democrats. They have said: No, we do tered. candidate we don’t know anything not want our attorneys’ work product, So I just say, that it is not true that about? No, sir. Not so. our internal memoranda popped up President Clinton’s nominees received One of our Senators talked about the every time somebody wants to do it. If unfair scrutiny. Yes, they were asked Constitution as a changing document members of our staff think they can’t questions, but they were asked respon- and that from time to time we just express an honest opinion in my law of- sible questions. And they were consist- change it. I think that is dangerous. fice as Solicitor General, then they are ently confirmed in large numbers. Our liberties are bound up in that doc- being chilled, if they are going to bring They said: Well, some of them did not ument. If we say we have a right to it out some day and say, you can’t be get through. The fact is, when Presi- change its meaning from time to time, a Federal judge because as a young dent Clinton left office, he had nomi- according to the length of the lawyer you wrote a memorandum that nated 41 judges who had not been chancellor’s foot, according to how a didn’t make sense. cleared. He confirmed 377, but 41 had judge may feel on a given day, our lib- Also they want the free and open dis- not cleared. erties have been eroded. cussion they get from the members of When former President Bush left of- I remember Professor Van Alstyne at their staff. That would be reduced if fice in 1992, there were 54 judges which Duke, a constitutional scholar, said: If these memoranda should be put for- the Democratic majority Senate had you love this Constitution and you ward. not confirmed. really respect the Constitution, you I ask my colleagues: Should those So it is a total falsehood to suggest will interpret it as it is written. You documents be produced? Is that some- the Clinton nominees were mistreated don’t interpret it as you wish it were. thing we have to do here? Is that a when they came through here. They If you do that, you don’t respect the good policy for America to say that got a higher percentage of them con- document. You undermine the docu- from henceforth, now and forever, firmed than did former President ment and the power that it has had for every member of the Department of Bush’s nominees. They were not fili- generation after generation to protect Justice, every member of a law firm bustered, and they were not blocked in our liberties and order. who wrote internal memoranda, they committee. I feel very strongly about They say: You are just pounding on have to produce all of those before they that. the table over there, Republicans. You can be confirmed? That is a dangerous It has been said that you Republicans have no argument whatsoever. precedent we ought not to follow. said advise and consent is not a That is not true. Mr. Estrada has one They say: Well, there are some exam- rubberstamp and you had a right to of the highest recommendations, with ples in which that happened. The Sen- raise questions and vote against nomi- one of the greatest backgrounds of any ator from Connecticut had some docu- nees. nominee I have ever seen come before ments and had a letter from the De- I agree with that. We all have that this Senate. I was in the committee partment of Justice asking for them right. We can vote against them. We and I heard his testimony. It was abso- back. He said: That proves they had to have a right to debate them. We have a lutely superb, one of the finest testi- exist because they asked for them right to ask questions. If we are not monies I have seen. He was responsive, back. satisfied with those answers, we have intelligent, quiet, thoughtful, cour- I asked him about it. He introduced an obligation to vote no. We should teous to the questioners, at times when them into evidence. I read them. Well, vote no. But wait a minute. What if we he should not have been. I was very im- it was the Bork confirmation. There don’t allow them to have a vote? Is pressed with him. were allegations about Watergate and that what we are saying? We are going Some think maybe the opposition to those kind of things, and they were to vote to not allow a vote? I am not at this young conservative Hispanic is be- asking questions before they wanted to all pleased with that. cause, who knows, President Bush put him on the court about specific One person suggested we are dealing might want to put him on the Supreme concerns that Bork may have acted im- with judges from the lunatic fringes. Court. I will just say this: I saw him properly in a series of positions and That was a quote made earlier. This testify. I read his record and back- events. So they asked for those docu- nominee cannot possibly be considered ground. He would make an outstanding ments, and at some point they turned a lunatic fringe nominee. This nominee Supreme Court Justice, a great Su- them over. unanimously was rated well qualified preme Court Justice. He has integrity That is not the routine thing. There by the American Bar Association. The and legal thought processes that are has not been a single suggestion Miguel ABA goes out and investigates these superb. I am very pleased with him. Estrada has done anything to implicate

VerDate Dec 13 2002 04:53 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00070 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.152 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2301 himself in a Watergate type matter. He tion and the statutes. That is what you are out’’ law. Those are activist was a lower echelon attorney in the So- Miguel Estrada’s judicial philosophy is. decisions and they threaten our judi- licitor General’s office of President Bill That is what it is. It is a hostility to cial process and deny the people the Clinton. They have not suggested he use the law for other matters. He be- right to control their destiny. would do anything corrupt. They have lieves in giving the law a fair construc- Federal judges, being lifetime ap- not suggested any particular issue he tion, as he said to Senator EDWARDS. pointed, are not subject to control by took some extreme view on that some- He asked a little bit about it, and Sen- the democratic process. So when they how we have to have this document. ator EDWARDS pursued the matter a lit- are given the power to carry on polit- They want a fishing expedition. Not tle later. He said: Well, President Bush ical agendas, then they are acting in an so. We ought not do that. I urge my said that he believes in strict construc- antidemocratic way. It is an anti-, un- colleagues, I plead with my colleagues, tion. You say you believe in fair con- democratic act when a lifetime ap- do not do this. We ought not to do it. struction, and Mr. Estrada replied that pointed judge, with no accountability It is not right we would do that. he had not talked to President Bush to the public, starts issuing opinions Well, the junior Senator from New about it. He said: You asked me my that affect public policy. York said that power corrupts, and opinion. My opinion is fair construc- Well, I will just say that it wasn’t somehow that moving this nominee, tion. Mr. President, that is an inde- long ago when the leadership on the who almost sat here for 2 years—mov- pendent and wise answer. other side, without any hesitation, op- ing forward and having a hearing and So we have seen courts do things that posed the filibustering of Federal all, is somehow corrupt or some sort of are really bizarre in America today. We judges. Senator LEAHY, past chairman corrupt thing—to ask for a vote and in- have seen the courts be utilized as a of the Judiciary Committee, and cur- sist we have a vote, that is corrupt. tool to further agendas. Many decisions rently the ranking Democrat on the Well, I say this: All of us have re- that we have seen rendered fly in the committee, said this: sponsibilities to use our power respon- face of logic. We had judges on the If we want to vote against somebody, vote sibly. We ought not abuse that power. Ninth Circuit Court of Appeals rule against them. I respect that. State your rea- Abuse of power is a form of corruption. that ‘‘under God’’ should be taken out sons. I respect that. But don’t hold up a But, may not the minority be corrupt of the Pledge of Allegiance. We have qualified judicial nominee. . . . I have stated if they use the rules and procedures of had one judge in Vermont—he had a over and over again on this floor that I this Senate to work a transformation good name, Sessions—whom we con- would . . . object and fight against any fili- buster on a judge, whether it is somebody I of the traditions of this Senate, to firmed. He is Senator LEAHY’s friend and was his campaign manager. It opposed or supported, that I felt the Senate block a nominee by requiring that they should do its duty. now have to have 60 votes instead of a wasn’t long after Judge Sessions got on That is a clear and unequivocal majority? Could that be a form of cor- the bench that he declared the Federal statement in opposition to a filibuster. ruption? I suggest it may be. Why? Be- death penalty unconstitutional. We He said that in 1998. cause hard left attack groups insist have heard Senators talk about Berzon In 2000, Senator LEAHY said: and jerk their chain and demand that and Paez having some difficulties. But they vote no, so they just fall in line I would say that perhaps they should I have said on the floor, although we are have had some difficulties. Since they different parties, I have agreed with Gov- with that kind of thinking. I am not ernor George Bush, who has said that in the happy with that. have been affirmed just a few years Senate a nominee ought to get a [floor] vote, I don’t believe this nominee deserves ago, after taking their positions on the up or down, within 60 days. this kind of delay. I believe he deserves Federal bench in California, they both Senator BIDEN, the past Judiciary a vote. I believe there is not one bit of have participated in separate opinions chairman: evidence that has come into this record declaring the California ‘‘three strikes that indicates he has any failings that and you are out’’ law unconstitutional. But I also respectfully suggest that every- one who is nominated ought to have a shot, would disqualify him from the federal This law has been the basis of tens of to have a hearing and to have a shot to be judiciary. I think we ought to give him thousands of convictions of defendants heard on the floor and have a vote on the a vote. They asked a nominee how he and has helped drive the crime rate floor. . . . It is totally appropriate for Re- voted on some issue. I remember that. down. Yet they said they thought it publicans to reject every single nominee if Somebody asked that question. The was cruel and unusual punishment to they want to. That is within their right. But nominee didn’t answer it, and I think have a mandatory penalty—really an it is not, I will respectfully request, Madam it was said that he should not answer odd and extreme view. President, appropriate not to have hearings it. He never answered it, and he was I felt very strongly that both of those on them, not to bring them to the floor, and not to allow them to have a vote. . . . confirmed. They are saying if you don’t nominees were going to be activist produce confidential, internal Depart- judges, were not going to be bound by Senator FEINSTEIN: ment of Justice memoranda, we are not the law, and I voted against them; but A nominee is entitled to a vote. Vote them going to confirm you. they both were confirmed. We didn’t up; vote them down. Well, what is this all about? I remem- filibuster them. They got their up-or- On and on that is mentioned. That ber quite a number of years ago, there down vote, and they were confirmed has been our policy. Sure, some nomi- was a ‘‘Meet the Press’’ program and with a majority of the vote in this Sen- nees have been held, but they usually Hodding Carter, who used to be assist- ate. So I just make that point. have been forced up for votes, and they ant to President Carter, was asked As one of our witnesses said in com- have gotten their vote. about judges and nominations when mittee, all in all, a judge who believes When President Clinton left office, President Reagan was in office. He in strict construction of the law, or a there were only 41 judges who did not made this comment. He said: The truth fair construction of the law, and who is get a vote. Only 41. There were 54 when is, we liberals have been asking the not an activist poses less threat to our President Bush left office, and it has Federal courts to do for us that which liberties than one who is an activist been historic in this body at the end of we can no longer win at the ballot box. judge. That is what Miguel Estrada be- a session when nominees come in and If you cannot win the issue at the lieves in. That is what President Bush people are thinking there might be a ballot box and you can get an activist believes in. He wants to bring some new President, the process slows down. judge on the bench, maybe you can just sanity back to our legal system. He That has happened for good or ill prob- file a lawsuit and they will rule your wants judges who have the classical ably for the last century. That is with- way. Maybe they will just reinterpret view of the law. He wants judges who in the realm of responsibility. To open- the meaning of the Constitution or do not feel it is incumbent upon them ly filibuster a qualified nominee (early statute and give it some new meaning to tell a city they cannot have Christ- in a term) is contrary to the traditions and just use the law to effect a polit- mas decorations. He does not believe of this body and would set a precedent ical agenda. they should be striking down the that would be quite dangerous. That is not right. When judges are Pledge of Allegiance, or striking down Once again, I urge my colleagues not given lifetime appointments, you need the Federal death penalty, or striking to go down this road. I urge my col- judges who are faithful to the Constitu- down the California ‘‘three strikes and leagues to think seriously before they

VerDate Dec 13 2002 04:53 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00071 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.154 S12PT1 S2302 CONGRESSIONAL RECORD — SENATE February 12, 2003 consider a routine filibuster. Maybe if versity, gender diversity—diversity in against the common enemy and when this nominee had ethical problems or general which has been promoted by they go to school together with a com- serious personal problems, that would not just the University of Michigan but mon goal, to learn. While we would all justify a filibuster, but not a nominee by most universities in this country, like to avoid the need to fight to- who is rated well-qualified by the bar, and it seems to me is to be encouraged. gether, we all know we can strengthen who has the support of virtually every- What George Washington sensed 205 our ties to democracy and to our coun- one with whom he has worked, who years ago was that a university had a try when we learn together about the demonstrated by his testimony ex- special ability to bring together dif- world and each other. traordinary skill and intelligence. I re- ferent people to help them learn about Learning together allows us to strip spect him. I believe he should be given each other, drop their fears of each away the prejudices that would other- a vote. I hope and believe that some- other and make us one Nation. wise keep us apart. The hope of George how we will avoid this and we will get This is what he wrote: Washington was later joined by the an up-or-down vote on him. I have regretted that another subject dream of Martin Luther King and by That is my request to my friends (which in my estimation is of interesting the promise and the potential of Brown across the aisle, and it would be a mis- concern to the well-being of this country) v. Board of Education a half century take if that does not occur. was not touched upon also: I mean Education ago, and they are now hanging in the Mr. President, I yield the floor. generally as one of the surest means of en- balance because of the issues that are The PRESIDING OFFICER. The Sen- lightening and givg. just ways of thinkg to raised in the University of Michigan af- our Citizens, but particularly the establish- ator from Michigan. ment of a University; where the Youth from firmative action cases before the Su- UNIVERSITY OF MICHIGAN all parts of the United States might receive preme Court. Mr. LEVIN. Mr. President, George the polish of Erudition in the Arts, Sciences In April, the U.S. Supreme Court is Washington was nearing the end of his and Belle Letters; and where those who were going to hear two oral arguments in Presidency. He dreamed of a national disposed to run a political course, might not two separate lawsuits challenging the university for the United States to be only be instructed in the theory and the University of Michigan’s diversity ad- located in Washington. This university principles, but (this Seminary— missions policy. The Court’s decision was going to bring together all the dif- Referring to the university— in these cases will result in the most ferent people of this great country into being at the Seat of the General Govern- far-reaching affirmative action ruling one educational setting to learn to- ment) where the Legislature wd. be in Ses- since the Bakke decision in 1978. The gether, to learn from each other, to get sion half the year, and the Interests and poli- Court will decide the critical issue of to know each other, to overcome preju- tics of the Nation of course would be dis- whether Bakke still remains the law of cussed, they would lay the surest foundation the land and whether racial or ethnic dices and intolerance. for the practical part also. President Washington actually But that which would render it of the high- diversity has a value at a university planned to include his vision of such a est importance, in my opinion, is, that the which can be considered in admissions university in his now famous and his- Juvenal period of life, when friendships are of higher education. toric Farewell Address. It was not in- formed, and habits established that will In the Bakke decision, the Court cluded in that Farewell Address. Ap- stick by one; the youth . . . from different ruled against rigid quotas or set-asides parently, one of the people who was parts of the United States would be assem- based on race but found that higher working with him on that Farewell Ad- bled together, and would by degrees discover education could consider race or eth- there was not that cause for those jealousies nicity as a factor in a properly consid- dress was Alexander Hamilton who and prejudices which one part of the Union urged, as he was writing the address, had imbibed against another part; of course, ered competitive admissions process to drafting it: sentiments of more liberality in the general achieve the educational benefits of di- The idea of the university is one of those policy of the Country would result from it. versity. which I think will be most properly reserved What, but the mixing of people from dif- If the Court overturns Bakke, it for your speech at the opening of the session. ferent parts of the United States during the could outlaw any consideration of race A general suggestion respecting education War rubbed off these impressions? A century or ethnicity in admissions to colleges will very fitly come into the address. in the ordinary discourse, would not have ac- and universities. In other words, what Hamilton was complished what the Seven years association There is a national security factor to in Arms did; but that ceasing, prejudices are this issue as well. There are going to be saying is this vision of yours, Mr. beginning to revive again, and never will be President, about a national university, eradicated so effectually by any other means a number of military officers and peo- where people can come to shed their as the intimate intercourse of characters in ple connected with national security prejudices from various parts of the early life, who, in all probability, will be at and defense who will be filing an ami- country, to live and work with each the head of the councils of this country in a cus brief in support of the University of other should be saved for a different more advanced stage of it. Michigan because universities run address. Leave it out of the Farewell He went on: ROTC programs. Those programs, Address. To shew that this is no new idea of mine, where there is diversity at the univer- In fact, President Washington ended I may appeal to my early communications to sities that have them, produce officers up leaving it out of his Farewell Ad- Congress; and to prove how seriously I have for the military, who in turn are di- dress, but he included it in a letter. It reflected on it since, and how well disposed I verse and reflect our population. The is a letter which has come down have been, and still am, to contribute my aid failure to have officers who reflect our through the generations, and that vi- towards carrying the measure into effect, I population in terms of race and eth- enclose you the extract of a letter from me nicity and gender, the failure to have sion of a national university was out- to the Governor of Virginia on this Subject, wardly reflected in this letter. and a copy of the resolves of the Legislature diversity in our officer corps, led to He stated his belief that this country of that State in consequence thereof. huge problems of morale in the mili- would be stronger if the children from I have not the smallest doubt that this do- tary for decades, until just about 20 different parts of the country could nation (when the Navigation is in complete years ago when we reached out and come together in an educational set- operation, which it certainly will be in less made great efforts to have diversity in ting to learn from each other and than two years), will amount to twelve or our officer corps. That is going to be a about each other. 1500 pounds Sterlg a year, and become a rap- part of the issue in an amicus brief I want to read a few parts of this let- idly increasing fund. The Proprietors of the filed in the University of Michigan Federal City have talked of doing something ter of George Washington because I handsome towards it likewise; and if Con- case. think it has an application to the Uni- gress would appropriate some of the Western I am not going to spend a lot of time versity of Michigan case which is cur- lands to the same uses, funds sufficient, and on that aspect, but I do want to at rently pending in the Supreme Court. of the most permanent and increasing sort least comment on the fact that a sig- I come from the State of Michigan. I might be so established as to envite the nificant number of very significant am proud of it, and I am proud of our ablest Professors . . . to conduct. . . . military officers, retired officers, who university and its effort to promote di- President Washington saw that the have been connected at the highest lev- versity, and not just racial diversity, two strongest ways to unite a country els with our Nation’s military and its but geographic diversity, economic di- are when people go to war together schools, are going to be filing a brief

VerDate Dec 13 2002 04:53 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00072 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.157 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2303 with the Supreme Court relative to Our military has done a spectacular arships get additional points, children this issue. job in terms of diversity. It has been a of alumni get additional points, stu- I want to comment on the more fun- huge factor in the promotion of democ- dents from economically disadvantaged damental issue, which is the value of racy in this country. Hopefully, we do backgrounds get additional points. And diversity in a university and whether it not have to go to war to promote com- at the University of Michigan, students is conceivable in this country that we ing together and learning to overcome from an underrepresented racial or eth- will say to universities that they can prejudices and differences. Hopefully, nic minority or attending a high school give additional points for geography, our universities can be allowed to serving a predominantly minority pop- which many universities do, including reach out, as they are with geography, ulation can receive additional points. the University of Michigan. In other to overcome the fact that some parts of And the provost can award additional words, they can reach out to students our States are totally underrep- points to applicants at his or her dis- in different parts of their State who resented in our educational institu- cretion. have been underrepresented and try to tions, to say, yes, we are going to reach The idea it is all right for colleges get better representation from those out to that part of the State and we are and universities to give special consid- underrepresented parts. They can give going to try to get more students from eration to all the other groups—chil- additional points for that. They can there; they may not have done quite as dren of alumni, large donors’ children— give additional points for gender. If the well on their SATs, because of various how is that one? It is OK to give spe- law school has not had women stu- historic factors or whatever, but they cial consideration to the children of dents, they can give additional points are highly qualified students, so we are large donors for whatever university for that in order to overcome the prob- going to give some additional points to purpose that serves—but it is not OK to lems which were created when women those students. But not race? Race give additional points to underrep- were discriminated against. They can would be singled out for not being per- resented minorities for the obvious have an affirmative action program for mitted to be given additional consider- university purpose that serves, which that. They can give additional points ation to achieve diversity which is so is a diverse student population, which to alumni, kids—and they all do—and valuable in education? That would be our first President, the Father of our athletes—and they all do—and the chil- an unthinkable, unconscionable result, Country, pointed out in this letter is dren of public officials—and many of and a distortion of the very purpose of absolutely essential if this country is them do. the equal protection clause. going to be one, if this country is going Geography alone, which George Of all the areas where we have the to be unified. Washington talked about—I went to a most hurdles to overcome, most bar- Indeed, he saw that 200-plus years college out east which I know for a fact riers to overcome, more attitudes to ago. I hope the Supreme Court will reached out geographically in this overcome, more prejudices to over- have the wisdom of reading that letter country to try to have good representa- come, with all the progress we have and seeing how important it is that tion from various parts of the country. made—and we have made a lot—we President Washington’s dream to bring I come from the Midwest. My SAT have a long way to go in the area of people from different parts of the coun- scores were not as high as some of the race. The idea that somehow or an- try, that people of different back- kids’ in the East, but the college I went other all that other diversity, all those grounds, which is the University of to decided it was important to those other additional points can be given— Michigan program, can, in fact, be re- kids from the East that they have kids alumni kids, you can get 10 points; ath- alized. That is what some of the stakes from the Midwest, kids from the Far letes, you can be given 20 points; gen- are in the University of Michigan case. West, kids from the South, kids from der, you can be given points; economic, Since we are talking judicial matters the Southwest, kids from Alaska, kids you can be given points—but not race, this evening, I wanted to raise that from Hawaii, kids from Africa—it is that would be, it seems to me, singling issue, as well. important to the education of our stu- out race for discriminatory treatment Mr. SESSIONS. Is the Senator going dents that they go to school with a di- when it comes to promoting diversity to another subject for long? verse group of students. So they gave at a university. Mr. LEVIN. It will be lengthy. out geographic points. I got points. I do The law school’s current policies Mr. SESSIONS. I would like to speak not think I would have gotten into my have been upheld by the Sixth Circuit on the Estrada nomination. college, my beloved college, Swarth- as being consistent with Bakke. The Mr. LEVIN. You can talk for quite more, but for the fact that I came from Sixth Circuit has explicitly rejected some time on that. You have talked the Midwest and I was given some addi- the plaintiff’s contention that the sys- longer, I believe, than I have on this tional points. I do not know for sure, tem used by the University of Michigan evening. but that is my belief, and that is the was the functional equivalent of a Mr. SESSIONS. Not as long as some likelihood, I have no doubt. I know quota. The Sixth Circuit found that the of the other Members over there. they have geographical affirmative ac- law school’s admissions program is Mr. LEVIN. Let me try to limit this tion. Is it conceivable that points can ‘‘virtually indistinguishable’’ from the to about 10 minutes. be given for everything but race to Harvard man, which Justice Powell The PRESIDING OFFICER. The Sen- achieve diversity, that race is singled held out in the Bakke decision as the ator from Michigan has the floor. out as the one area where we cannot appropriate model. NATIONAL SECURITY reach out to achieve diversity in our In the University of Michigan’s un- Mr. LEVIN. I will keep the floor and universities? Is it possible that is what dergraduate admissions program, 110 try to keep this down to 10 minutes. we are going to come to in this coun- points out of 150 are given for academic Earlier today we had a hearing in the try, that the equal protection clause factors, including grades, test scores, Armed Services Committee where we will be turned right on its head? The and curriculum. The greatest weight, received testimony from the intel- 14th amendment, which was designed, up to 80 points, goes to high school ligence community on worldwide at least in significant measure, to end grade point average. Applicants can threats to our national security. I gave the scourge of the remnants of slavery, earn up to 12 points for SAT or ACT an opening statement at that hearing, is going to be used to prevent diversity scores, up to 10 points for attending a parts of which I want to share with the from being achieved in one area where competitive high school, 8 points for Senate tonight because of the impor- it is most important that we have a di- taking the most challenging cur- tance of the subject of Iraq. We have a verse university, and that is the area of riculum, and 3 points for SAT quality. lot of work ahead of us. We have race. It is the one area where we have Other factors can be considered, includ- threats of all kinds, threats which are had the most difficulty in overcoming ing geography, athletics, relationship more immediate, more personal, more the kind of prejudices and obstacles to alumnus, economic disadvantage. imminent, than Iraq, particularly the President Washington talked about and Points can be added for students from al-Qaida terrorist network, even for which he said a university was the various parts of the State which have though that network has been weak- most suited, other than going to war been underrepresented at the univer- ened, it has been deprived of its safe together. sity. Students who have athletic schol- haven in Afghanistan.

VerDate Dec 13 2002 05:28 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00073 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.160 S12PT1 S2304 CONGRESSIONAL RECORD — SENATE February 12, 2003 It has, just over the last few months, sisting U.S. weapons inspectors to find heard before the inspections began attacked innocent civilians in Bali and or account for chemical or biological from the highest level of this govern- Tunisia and has attacked United weapons programs. Disagreement on ment that inspections were useless. We States service members and civilians how to address the Iraqi threat has di- heard it from Dr. Rice at the White in Kuwait and Jordan. vided the U.N. Security Council. House last week. She said specifically Last month, the United States and Surely there can be little doubt that inspections are doomed to failure. coalition forces fought the biggest bat- Osama bin Laden would like to see the I am also astounded that some of our tle in Afghanistan since Operation An- United States and Britain attack Iraq highest officials have gone so far as to aconda last spring. Even though our in- without the authority of the world refer in a derogatory way to the ‘‘so- telligence and our law enforcement community acting through the United called’’ U.N. inspectors. If these inspec- agencies are working with allied coun- Nations. Keeping the world community tors and inspections are useless with- tries to thwart further attacks in the together through the U.N. Security out Iraqi assistance in pointing out United States and abroad, the fact is Council is exactly what Osama bin where they have hidden or destroyed we remain highly vulnerable to al- Laden does not want to see. He does weapons of mass destruction, why are Qaida, to other terrorist groups. As a not want to see a United Nations. He we sharing any intelligence at all with matter of fact, the United States is at wants to be able to say it is the United the inspectors; and why are we appar- alert orange now—that is the second States, it is Britain, and it is a few of ently finally implementing U–2 flights highest level of alert in our military their personal, close allies. It is not the to support the inspectors? forces—and also at heightened force world that is going after Iraq, it is the It is one thing to be realistic about protection levels worldwide. We remain United States and Britain that are the limitations of the U.N. inspections vulnerable. We remain vulnerable not doing it. He does not want, it is obvi- and not have too high hopes about just to conventional explosives but ous, the world community to be united what they can produce. It is another now, we believe, more and more vulner- against the Iraqi threat. He wants to be thing to denigrate their value or pre- able to weapons of mass destruction. able, as does Iraq, to characterize the judge their value or to be dismissive Earlier this week, Federal officials effort as an American/British-led uni- and disdainful about the beliefs of oth- even suggested the public should make lateral, not having U.N. authority type ers on the U.N. Security Council about preparations for a terrorist attack in- of effort. their value, or to be cavalier about the volving chemical, biological, or radio- All of us want Saddam Hussein to be facts relative to those inspections. logical weapons. While we are placing disarmed. The best way to accomplish Referring to being cavalier about such a huge focus on Iraq, North Korea, the goal of disarming Saddam Hussein facts brings me to another point which a country that possesses weapons of without war is if the United Nations has to do with the sharing of intel- mass destruction and has ejected the speaks with one voice relative to Iraq. ligence information in our possession international nuclear inspectors, has I want to repeat that, as I think there with the U.N. inspectors. I have fol- declared it is resuming operation of its is so much concern about the possi- lowed this issue very closely. I have plutonium-related nuclear facility. bility of war with Iraq that that par- asked the CIA for months to give us North Korea is not just a country ticular point is frequently lost. the precise information as to how which proclaims it is engaged in a nu- The best way to accomplish the goal many suspect sites there are, how clear program as it now has with the of disarming Saddam Hussein without many of those suspect sites are of great enriched uranium program. North war is if the United Nations speaks significance, for how many of the sig- Korea is probably the world’s worst with one voice relative to Iraq. nificant sites have we shared informa- proliferator of ballistic missile and But if military force is going to be tion that we have with the United Na- missile technology. It is on the brink used, the best way of reducing the tions inspectors. They have given me of becoming an undisputed nuclear short-term risks, including risks to the the information in writing but, as it power. The administration has refused U.S. coalition forces, and the long-term turns out, it is erroneous. to open a direct dialog with North risks, including the risk of terrorist at- We just began sharing specific infor- Korea. That has serious ramifications. tacks on our interests throughout the mation in early January, according to Our ally which lives next to North world, is if the United Nations specifi- Secretary Powell, who is quoted in the Korea, which surely has got at least as cally authorizes the use of military Washington Post on January 9. I can’t much at stake as we do in the whole force. That is the bottom line. The best go into those classified details in the matter—and, I think, obviously a lot way of increasing any chance for dis- open. I can’t give the precise numbers, more since they are the ones nearest arming Hussein without war, and of how many suspect sites we have infor- the threat—our ally, South Korea, minimizing casualties in future at- mation on, how many of those suspect wants us to open a direct dialog with tacks on the United States if war does sites that we have information on are North Korea. They have openly ex- ensue is if the United Nations acts rel- of significance, and how many of those pressed the wish that this country have ative to Iraq. have we shared with the United Na- a direct dialog of the highest levels The next point, though, is essential tions. The numbers themselves are with North Korea. as well. Supporting U.N. inspections is classified. The administration has decided not an absolutely essential step if we are I can say in an unclassified setting, to do that, and all of a sudden, what is going to keep the Security Council to- in public, that as of a couple of weeks obviously a crisis to most of us and gether. We are not going to have a ago we had shared information on only most of the world, is not even described chance of keeping the United Nations a small percentage, a fraction of the as a crisis by the administration. Even Security Council speaking with one suspect sites in Iraq, and we had not though the failure to have contact, the voice unless we support United Nations shared information on the majority of linking it to the axis of evil and the an- inspections, which are and have been the suspect sites. That was confirmed nouncement we will have a preemptive such an important part of the Security by CIA staff. policy using military force, could lead Council’s position. Yet when I asked the Director of the to additional provocative and irrevers- How do we support those U.N. inspec- CIA yesterday about this subject, he ible action on their part because it is tions? First, by sharing the balance of told us that we have now shared with stoking the paranoia which exists in the information that we have about the U.N. inspectors information about North Korea. suspect sites; No. 2, by quickly getting every site where we have credible evi- On top of that, Iran has admitted U–2 aircraft in the air over Iraq, with dence—all of a sudden, going from a now it is mining uranium. That surely or without Saddam Hussein’s approval, fraction of the sites to we have now must underscore our concern that its and by giving the inspectors the time shared all the sites. nuclear energy program is intended for they need to do their work as long as Then last night, in Director Tenet’s nuclear weapons, not just for the pro- the inspections are unimpeded. presence and in the presence of Senator motion of nuclear energy. Iraq is the I disagree with those, including high WARNER, his staff acknowledged that focus and Iraq continues to flout the officials in our government, who say as a matter of fact we still have useful international community. It is not as- that U.N. inspections are useless. We information that we have not shared

VerDate Dec 13 2002 04:53 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00074 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.164 S12PT1 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2305 with the inspectors—which is the oppo- member would then be authorized to morrow, is really a prelude to the nom- site of what Director Tenet told the In- use military force in response. ination of the next Justice for the Su- telligence Committee yesterday in When President Bush addressed the preme Court. The effort is being made open session. If we have not yet shared United Nations General Assembly on by the Democrats to have their accept- all the useful information that we have September 12 of last year, he said that: able ideology without the traditional with the U.N. inspectors, that would We want the United Nations to be effec- deference which has been paid to the run counter to the administration’s po- tive, and respectful, and successful. President. sition that the time for inspections is We have some responsibility to help The Senate has been maneuvered over. the United Nations achieve that. Say- into a position here, an institution The same type of issue exists relative ing to other countries, including allies, with lines being drawn in the sand, and to the U–2s. The inspectors have asked that if you don’t see it our way you Republicans on one side and Democrats for U–2 surveillance planes. These are must have some ulterior motive, on the other being backed into a cor- planes which have a capability of doesn’t help us in leading the United ner—sort of a macho-macho game tracking those suspicious vehicles on Nations to a united front against Sad- where no one wants to play the chicken the ground that have been referred to dam Hussein. While a number of heads game. What we are really seeing is by Secretary Powell in his speech, of State and Governments have called gridlocking this institution on a per- tracking the vehicles that are at a sus- for the United Nations Security Coun- manent basis, if no one yields. picious site and going to another site. cil to take appropriate action, nec- The Judiciary Committee has three They have the advantage of being able essary action in response to the threat, nominees on the Executive Calendar to loiter. Unlike a satellite, a U–2 can and others have pledged to contribute tomorrow, and the Democrats have loiter and actually keep track of a ve- military forces to that effect, others served notice that they are going fili- hicle as it moves from one suspicious believe we should give strengthened in- buster. If at least one Democrat does place to another and can connect that spections the time that they need to not vote to end the filibuster, nothing information to inspectors in real time. finish their job. But all of the groups will happen there. They are intensely valuable to the in- agree on the necessity of disarming So we have a long litany of judges— spectors. They have asked over and Iraq. some of whom have been held up for 2 over again for the U–2 flights. Why Rather than following a course that years—and nothing is going to happen. haven’t they been provided to the in- divides the United Nations and sepa- What we may be seeing here is the spectors? rates us from some of our closest allies, foundation laid for a grand political ar- Well, because Saddam Hussein says we should fairly consider courses of ac- gument in the Presidential election of he can’t guarantee the safety of the pi- tion that unite the world community 2004. We are laying it right on the line. lots. So instead of going to the U.N. against Iraq. If the American people want judges and saying: Resolution whatever the I yield the floor. confirmed, there are going to have to number is, the United Nations author- The PRESIDENT pro tempore. The be 60 votes in the President’s party. izes these U–2 flights and if Saddam Senator from Utah. Both sides have been at fault in the Hussein interferes with these flights Mr. HATCH. Mr. President, I ask past, in my opinion. When President that will be considered an act of war unanimous consent that the distin- Clinton was in the White House and the against the United Nations—instead of guished Senator from Pennsylvania be Republicans controlled the Senate, we doing that, to give the inspectors this allowed 6 minutes without my losing wouldn’t confirm people. There were additional capability, at least until the right to the floor and that I imme- some breakthroughs but relatively few. yesterday or perhaps today, Saddam diately be recognized thereafter. When President Bush submitted nomi- Hussein has been given a veto by the The PRESIDENT pro tempore. Is nees for 2 years, or a year and 7 U.N.—including us; we are part of the there objection? months, the Democrats stopped the U.N.—over the use of surveillance Without objection, it is so ordered. nomination process. planes, which would contribute to the The Senator from Pennsylvania. likelihood that inspectors would catch Mr. SPECTER. Mr. President, I have It is high time we had a protocol him with the goods. sought recognition to comment about which both sides respected wherein so I hope that is over now. I don’t know the current procedures with respect to many days after a nomination, there is for sure that it is. I hope now there is the selection of judges, and what is a hearing, so many days later, a vote in an arrangement made to use the U–2 happening in the Senate today is a con- committee, and so many days later, a flights. But if we believe it is impor- stitutional revolution. vote on the full floor. tant, short term and long term, to both The Constitution provides that the But we are really heading for ex- avoiding war, and if war comes, to re- Senate will give advice and consent to traordinary deadly deadlock in this ducing its risks, that we have a United the President. And the tradition of this body. I think we ought to recognize it Nations that is united, speaking with country for 215 years has been that the for what it is. There is a constitutional one voice against Iraq, we then must President makes selections as he revolution underway here to change deal with the United Nations’ key re- chooses, and advice can come from the the fundamental way judges are se- quest that we have an inspection proc- Senate. Consent has been given with- lected. ess which is complete and robust. And out challenging the President to a If the Democrats insist on a full part- we must lead at the United Nations to partnership arrangement where the nership with the President, if any help make it robust. And that includes Senate has to consent to the nominee party insists on a full partnership with the use of the U–2 planes. before the President can submit the the President of the opposite party, We have made the suggestion, Sen- nominee to the Senate with any chance then it is going to take 60 votes. And ator CLINTON and myself, in a letter for confirmation. we may be setting the stage for 60 which we sent to Secretary Powell, What the Democrats are doing here votes in the 2004 election. that that kind of resolution be intro- today is really seeking a constitutional But it is my hope that cooler heads duced at the United Nations which revolution. What they want as the mi- can prevail and we can sit down and would provide that the U–2 planes be nority party in the Senate is a full work this out so that when the shoe is authorized by the United Nations, have partnership with the President on se- on the other foot, we don’t have this the United Nations flag, and, if inter- lecting Federal judges. kind of gridlock and this effort to real- fered with by Saddam Hussein, that What we are doing with Miguel ly upset longstanding constitutional would be considered an act of war Estrada, and other nominees who are principles. against the United Nations and every coming up for an executive session to- I thank the Chair. I yield the floor.

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