E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 108 CONGRESS, FIRST SESSION

Vol. 149 WASHINGTON, WEDNESDAY, FEBRUARY 12, 2003 No. 26—Part II Senate EXECUTIVE SESSION The problem here is that he didn’t cuit Court of Appeals for the District answer the questions the way they of Columbia. wanted him to. He answered them the Mr. SANTORUM. Mr. President, will NOMINATION OF MIGUEL A. way he should have. We put those ques- the Senator yield for a question? ESTRADA, OF VIRGINIA, TO BE tions and those answers into the UNITED STATES CIRCUIT JUDGE Mr. HATCH. I am happy to yield for RECORD today. a question without losing my right to FOR THE DISTRICT OF COLUM- It is unfair, after what this man has BIA CIRCUIT the floor. gone through—after all the hearings, Mr. SANTORUM. Mr. President, one (Continued) all the questions, all the time that has of the issues I have heard raised by the The PRESIDENT pro tempore. The elapsed—almost 2 years—that this other side is that the nominee has not Senator from Utah. highly qualified individual is now being had judicial experience. In fact, the Mr. HATCH. Mr. President, here we filibustered on the floor of the Senate. chairman of the House Democratic His- are in the middle of an unprecedented If the Democrat Members of the Sen- panic Caucus wrote a letter to the Ju- filibuster against the first Hispanic ate do not like his answers, then they diciary Committee, I understand. have a remedy; that is, vote against nominee to the Circuit Court of Ap- I want to quote from Congressman peals for the District of Columbia— Miguel Estrada. I can live with that. BOB MENENDEZ, who says: against a man who has a unanimously That is their right. If that is what they well-qualified rating by the ABA, want to do, that is a proper exercise of If the Senator— which was the gold standard of the their constitutional duty. Referring to Senator HATCH— But really understand that to con- Democrats and something that a lot of chooses to ignore one of the many reasons confirmed judges did not have; a man stitutionally modify the advice and we oppose the Estrada nomination, simply who has all the credentials in the consent process of the Constitution and put, he has no judicial expedience. world—magna cum laude from Colum- now require 60 votes in order to have a Presidential nominee confirmed by the Now, I find this to be a particularly bia, magna cum laude from the Har- amazing argument coming from some- vard School of Law, editor in chief of Senate is unprecedented, except in one case, and that was Judge Fortas. Presi- one who is Hispanic, given the paucity the Law Review, clerked for two Fed- of Hispanics on the bench right now, eral judges, one on the Second Circuit dent Nixon himself fought against that and argued against that. But it was a that we are setting this bar before a Court of Appeals put on the bench by group that only has about 3-percent President Carter, a Democrat, and, the bipartisan filibuster, if you have to characterize it. representation on the bench right now other, Supreme Court Justice Anthony but comprises 14 percent of the popu- Kennedy—lots of experience, worked in To simply deny the Senate a vote is unfair. It is unfair to the Senate, it is lation of this country, that someone the Solicitor General’s Office. who heads the Democratic Hispanic We have heard a lot of arguments, unfair to the President, it is unfair to Caucus will put this bar to Hispanic and many respected arguments. We the process, and it certainly is unfair nominees, that they do not have judi- have heard that Mr. Estrada has not to this Hispanic American, who, by the cial experience. answered the questions of Senators on way, has risen to be one of the best ap- that side. Well, he has. He spent a full pellate lawyers in the country even Has such a bar ever been placed be- day when they conducted the hearings. though he has the speech impediment fore that you are aware of for nomi- They set the agenda. They asked any disability. Think of it. He has a speech nees? questions they wanted to ask. They impediment, and yet he has argued 15 Mr. HATCH. First, let’s understand were in control. They have even said on cases before the U.S. Supreme Court, the Democratic Hispanic Caucus. They the floor during this debate that the winning 10 of them. I can’t name many did not allow the Republican Hispanics, hearings were conducted fairly by candidates for judicial office in my 27 the three of them in the House of Rep- them. years in the Senate who had even come resentatives, to become part of that. Then, when the election was lost, all close to that record. So it is clearly a very partisan group. of a sudden they now want to ask more I think this is an abuse of the proc- We have a couple of our colleagues in questions. And, by the way, they had ess. It is an abuse of what has really the Chamber from the House of Rep- an opportunity to ask any written been precedent through all of these resentatives watching this very care- questions after the full hearing. Only years. It is an abuse by the minority. It fully, people who have spoken out for two Senators asked written questions— is nothing more than what some would the Hispanic community. Senator DURBIN from Illinois and Sen- call the tyranny of the minority Secondly, by saying that he does not ator KENNEDY from Massachusetts. He against the first Hispanic nominee in have any judicial experience, therefore, answered those questions. the history of this country to the Cir- he doesn’t qualify to be on the Federal

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

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VerDate Jan 31 2003 01:00 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.169 S12PT2 S2308 CONGRESSIONAL RECORD — SENATE February 12, 2003 bench, what does that say to every Janet Reno Justice Department. And it speaking any English when he was a member of the Hispanic Bar Associa- would seem highly unlikely to me that teenager? tion, none of whom, really, except cur- a right-wing ideologue would be hired Mr. HATCH. He came to the United rent judges, have any judicial experi- to work for the Clinton Justice Depart- States at age 17, if I recall it correctly. ence in the sense of having been judges. ment. But that is the charge that is He had a very limited knowledge of It means he is saying they cannot be being brought against him; is that cor- English, taught himself English, went judges either. rect? on to Columbia University, graduating What kind of a representative of the Mr. HATCH. The nominee, Miguel magna cum laude, and from there went Hispanic community would make that Estrada, worked for the Clinton admin- on to Harvard University, where he kind of a statement, if he really wants istration. He worked in the Solicitor also graduated magna cum laude and to help the Hispanic community? Or is General’s Office of the Justice Depart- also was editor in chief of the Harvard that representative just making par- ment in the Clinton administration. Law Review. tisan remarks, which is what I believe And it is highly unlikely that he would Yes, he overcame a lot of problems. he was doing? have received the support of Seth Wax- As I say, that is in addition to his dis- The fact is, we have confirmed 26 man and other prominent Democrats if ability that has not stopped him from Clinton judges who have not had judi- he were a right-wing ideologue. In fact, reaching the heights of the legal pro- cial experience—26. That is the Seth Waxman says he is not. fession. phoniest argument I have heard yet, Now, Seth Waxman was a Democrat Mr. GREGG. Will the Senator yield and it is a disgrace to argue it in the Solicitor General under Clinton. By the for a further question? sense that Hispanics cannot serve on way, the seven living former Solicitors Mr. HATCH. I yield further to the the judiciary if they have not had judi- General are backing Miguel Estrada, distinguished Senator from New Hamp- cial experience. four of whom are Democrats: Seth shire. Now, let’s think of one other thing. Waxman, Drew Days, Walter Dellinger, Mr. GREGG. That is one incredible Miguel Estrada was a law clerk to and Archibald Cox. record. Is not Columbia University a Amalya Kearse, a Carter appointee, on Mr. BROWNBACK. I thank my col- university in New York City? I believe the Second Circuit Court of Appeals. league for responding to the question. I the Senator from New York was on the That is judicial experience. He helped find it so odd that would be a charge floor. In fact, it is one of the finest uni- write some of the opinions that she brought against him. He worked for the versities in the United States. And an made. He was a law clerk to Anthony Clinton administration, the Janet extremely competitive person came Kennedy on the Supreme Court of the Reno Justice Department. over when he was 17. He must have United States of America. That is a lot Mr. REID. Mr. President, I object. I been admitted when he was 19 or 20. He more than a lot of others, than any of object to the statement. I object. I ob- matriculated there, and graduated the 26 Clinton appointees had. ject. magna cum laude; is that correct? He So to say that he has not had judicial Mr. HATCH. I ask for the regular must be an extremely bright indi- expedience—but even if you do not order. vidual. And then he went on and grad- count that as judicial experience, this The PRESIDENT pro tempore. Reg- uated from Harvard. And he was editor is a man with every qualification, and ular order. Regular order. The Senator of the Harvard Law Review, one of the they have not laid a glove on him. It is from Utah has the floor. Members ask- finest law reviews in the country. really very unfair, and I think we ing questions will address the Chair. He must be an incredibly bright indi- ought to all stop and think about that. Mr. NICKLES. Mr. President, will the vidual; is he not? But I would also like to point out—I Senator from Utah yield for a ques- Mr. HATCH. The Senator is abso- do not mean to take too long on this tion? lutely correct. Miguel Estrada is a bril- question, but I also would like to point Mr. HATCH. I will, without losing liant individual. out 108 men and women have served on my right to the floor. Mr. GREGG. If the Senator will yield the Supreme Court, and of the 108, 43 Mr. NICKLES. When the Senator was for a further question, are either of had no judicial experience at all. In the talking about judicial experience or those universities considered conserv- Court’s history, 8 of the 16 Chief Jus- legal experience, correct me if I am ative schools? tices—most recently, Chief Justice wrong, but didn’t Miguel Estrada argue Mr. HATCH. I would never want to Earl Warren—had no prior judicial ex- 15 cases before the Supreme Court? And characterize either as being liberal or perience when appointed to the Su- doesn’t that mean he has a lot of expe- conservative. But I think people who preme Court. Of those Justices ap- rience, legal experience, and that he know can very easily characterize pointed in the last 50 years, Justices must be held in highest esteem to be them. William Rehnquist, Lewis Powell, Jr., able to argue 15 cases before the Su- Mr. CHAMBLISS. Mr. President, will Abe Fortas, Arthur Goldberg, and preme Court? the Senator yield for a question? Bryon White had no prior judicial expe- Mr. HATCH. It is a good question. Mr. HATCH. Without losing my right rience when they were appointed to the Miguel Estrada is a full partner in one to the floor. U.S. Supreme Court. of the great law firms of the country, Mr. CHAMBLISS. As a new member I know that is the phoniest argument Gibson, Dunn & Crutcher, at his young of your committee, I do not have the I have heard yet. age. He has argued 15 cases before the pleasure of knowing Mr. Estrada as you Mr. NICKLES. Will the Senator Supreme Court, winning 10 of them. do, but expanding on what the Senator yield? That is a pretty good record. By the from New Hampshire just said, I be- Mr. HATCH. If I could first yield to way, I mentioned he did that suffering lieve that Mr. Estrada has established the Senator from Kansas. a disability. himself in the legal profession in a Mr. BROWNBACK. If you would yield This man has arisen above language very unqualified manner, that he is for a question, I had the pleasure of barriers, immigration barriers, edu- just extremely qualified, is an excel- serving on the Judiciary Committee cational barriers, legal barriers, to at- lent lawyer. And I wish you would give last session of Congress, although we tain to the position he has. He has us the benefit of some of his legal work didn’t get a lot of judges on through lived a Hispanic dream life. And here and his legal background. and cleared, and we are trying to clear he is being held up on the floor of the Mr. HATCH. Well, keep in mind, those now. Senate—without one good reason. Miguel Estrada is a partner in the very But Miguel Estrada was up last ses- Mr. GREGG. Mr. President, will the prestigious law firm of Gibson, Dunn & sion of Congress. One of the charges Senator from Utah yield for a ques- Crutcher. But he got there by clerk- against him, by a number of people, tion? ing—to get a clerk’s position in a Fed- was that he is an ideologue, he is a Mr. HATCH. I will, without losing eral court is a very high honor. To be right-wing ideologue. my right to the floor. editor of the Law Review at Harvard is I would ask the question: It is my un- Mr. GREGG. Mr. President, I ask the one of the highest honors any law derstanding Mr. Estrada worked with Senator from Utah, didn’t Mr. Estrada school can offer. But then he becomes a the Clinton administration for the come to the United States without clerk to Amalya Kearse on the Second

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.170 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2309 Circuit Court of Appeals, which is one Fourteen of his colleagues, I believe, at writing, the confidential recommenda- of the great circuits in this country. the Solicitor General’s Office and tions in writing of appeals, amicus cu- She is a great judge. And then he later throughout the Government, including riae and certiorari petitions. became a clerk to Justice Anthony Seth Waxman, who was Solicitor Gen- Mr. SMITH. A further question, Mr. Kennedy on the Supreme Court, and is eral in the Clinton administration, and President, isn’t it true, though, he has still one of his best friends and advis- I might add Ron Klain, who worked on said he has no problem with their re- ers, and vice versa. And, of course, he the Judiciary Committee, was Al lease? has become a partner in one of the Gore’s most faithful legal advisor, went Mr. HATCH. He has said that. But great law firms in this society. everywhere with Al Gore, totally de- the Justice Department has tremen- He has tried all kinds of cases, 15 be- voted to him, have said he would make dous problems. They not only consider fore the Supreme Court, winning 10. a wonderful judge. He has the tempera- it a matter of principle, they consider When the ABA, which my friends on ment and ability to do so. it a matter of absolute principle. the other side have called the gold Only one person has issued a negative Mr. SMITH. And they are not his to standard, did their thorough investiga- opinion, and that was Professor Paul release? tion of Miguel Estrada, they came to Bender. If you read the record—I don’t Mr. HATCH. That is right. They are the conclusion he is unanimously well want to go through it again—I think not his to release even if he wanted to. qualified, the highest rating the Amer- that opinion should be totally dis- Mr. SMITH. I believe the Washington ican Bar Association can give. That is carded when you look at the facts. Post and others have described this. in spite of all of the impediments this Mr. SMITH. Mr. President, will the Mr. REID. Mr. President, I object. young man has had coming up through Senator from Utah yield for a ques- This is not a time for making state- the ranks from Honduras to this coun- tion? ments. The PRESIDENT pro tempore. The try to college to law school to these Mr. HATCH. I am happy to, without Senator from Utah has the floor. various positions. By the way, I didn’t losing my right to the floor. Mr. HATCH. Let him ask the ques- mention he worked in the Solicitor Mr. SMITH. I wonder if the Senator from Utah could tell us about the in- tion. General’s Office giving very effective The PRESIDENT pro tempore. Sen- ternal memoranda our colleagues on opinions for both the first Bush admin- ators will address the Chair and try to the other side are seeking. It is my un- istration and the Clinton administra- ask a question of the Senator from derstanding Mr. Estrada wrote these tion. Utah. The Senator from Oregon had his memoranda when he served as Assist- Mr. CHAMBLISS. If the Senator will question answered. He did not ask for a ant Attorney General. It is also my un- continue to yield, is it not true he did chance to have another question. The derstanding he has said he has no prob- serve as a Solicitor General in the Senator from Utah may respond. lem with their release. But it is my Clinton administration for several Mr. SMITH. If I could rephrase my further understanding that every living years, advising that administration the question, hasn’t the Washington Post Solicitor General, Republican and same as Republican administrations? opined this is out of bounds, not fair Democrat, has advised against their re- Mr. HATCH. He did. He served as an game, a fishing expedition? assistant to the Solicitor General and lease; is that correct? Mr. HATCH. No question about it. It came away with virtual raves for his Mr. HATCH. That is true. All seven is a fishing expedition. And why is it? work. Only one person has criticized living Solicitor Generals—four Demo- We received the last letter to produce him, and we have more than made it crats, three Republicans—oppose this these materials after they had been re- clear that that criticism is blown away request. The Democrats are Archibald fused, in eloquent, very deliberate and by that person’s, Professor Paul Bender Cox, Seth Waxman, Drew Days, and straightforward letters from the White from Arizona State University, raving Walter Dellinger. The Republicans are House; we received the last request, I reviews of his work when he was actu- Charles Fried, Robert Bork, and Ken think, the day before the hearing on ally there. I think we would rely on Starr. I might add that both the Wash- Miguel Estrada. Frankly, it is clearly a those raving reviews rather than the ington Post and the Wall Street Jour- fishing expedition, trying to find some- political statement that was made nal oppose the demand for these thing because they don’t have anything later. memos. on this man. They just don’t like the There is good reason for that. When Mr. CHAMBLISS. I thank the Sen- fact he is a conservative Republican the Democrats requested the memos, ator. Hispanic. Mr. ALLARD. Mr. President, will the they requested his recommendations Mr. SMITH. I thank the Senator Senator yield? on appeals, his recommendations on from Utah. Mr. HATCH. Yes, without losing my certiorari petitions, his recommenda- The PRESIDENT pro tempore. The right to the floor. tions on amicus curiae briefs. Never in Senator from Virginia. Mr. ALLARD. I have heard some on the history of the Justice Department Mr. WARNER. Mr. President, I ask the floor try and imply that somehow have those type of materials that are the distinguished Senator from Utah if Mr. Estrada has a hot temper, a short privileged, confidential work product he will yield for a question. fuse. First, I would have to say that materials been given to this branch of Mr. HATCH. Without yielding my seems inconsistent with the many let- Government or any other branch. right to the floor. ters from those who know him. That The Democrats have said there are Mr. WARNER. Mr. President, col- includes such people as his former col- four or five cases where the Depart- leagues, this nomination for this Sen- leagues in the Solicitor General’s Of- ment of Justice materials have been ator is a personal matter, for the rea- fice, Ron Klain and Seth Waxman, who given. They have scoured the Justice son that I was privileged to—— all praised his personal demeanor. But Department; the administration and Mr. REID. Mr. President, I have the beyond that, is the Senator as troubled the current Justice Department have utmost respect for my friend from Vir- as I am by the use of these code words scoured those records, and they have ginia. He is making a statement, not that perpetuate stereotypes about His- found in all but Bob Bork there was no asking questions. panics and makes you wonder if we are evidence anybody had given up those Mr. HATCH. Mr. President, I think debating Ricky Ricardo or Miguel records to anybody here. If they have we ought to give the—— Estrada? I see high praise in a New records, they must have been leaked by The PRESIDENT pro tempore. The York Post article that describes him as friends of the Democrats in the admin- Senator from Utah has the floor. The a great American success story. istration. They were not provided by Chair was trying to obtain a ruling I wonder if the Senator from Utah the Justice Department. from the Parliamentarian and did not would respond to that question. In the case of Bob Bork, they did give hear the question. Will the Senator Mr. HATCH. If there is a greater suc- some special request memoranda, be- from Virginia restate his question? The cess story, I would like to meet the cause it was up to the Supreme Court, Senator from Utah, let the Senator person. If you were to meet Miguel affecting the area involving his deci- from Virginia restate his question. Estrada, you would say this is truly a sions with regard to Archibald Cox. Mr. HATCH. I think he should be al- wonderful man and a great lawyer. Certainly not the recommendations in lowed to ask his question.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.172 S12PT2 S2310 CONGRESSIONAL RECORD — SENATE February 12, 2003 Mr. WARNER. I will phrase it as a Mr. BOND. Is it not true, then, that The PRESIDENT pro tempore. Does question. I just wanted to lay a predi- perhaps the best judge of the legal ca- the Senator from Missouri seek to have cate, a foundation for the purpose of pabilities of a law clerk, Assistant So- the question answered? the question. I said this was a personal licitor General, or assistant attorney Mr. BOND. I simply ask the question, matter. I assert that because I had the would be those for whom that clerk or as a Senator, would you ever consent privilege of introducing this distin- assistant worked? to have confidential memoranda pre- guished nominee—— Mr. HATCH. That is correct. And pared for you by a lawyer who hap- Mr. REID. Mr. President, I object to three Democrat Solicitors General re- pened to be in your employ, who is sub- the form of the statement by my friend viewed these materials and had access sequently nominated for a judicial po- from Virginia. He has the right to ask to them, and they have nothing but sition—would you ever consent to a a question. He has no right to make a praise for the work of Mr. Estrada. wholesale turnover of all that work statement. Mr. BOND. Mr. President, there is product prepared for you as a U.S. Sen- The PRESIDENT pro tempore. The something very troubling that I wish ator? Senator has a right to have a preamble to pursue and that is whether a nomi- Mr. HATCH. Put it this way. If one of nee—— to a question before he asks it. He has my excellent staff people was nomi- not asked a question. The Senator from Mr. REID. Mr. President, I object. The PRESIDENT pro tempore. The nated to a Federal judgeship and some- Virginia will continue. body tried to pull that one over on me, Mr. WARNER. I was about to say, I Senator may not address a question to the Chair. I would raise such cane that it would had the privilege of introducing him blow the lid off this building, and I and I did so for several reasons. One, I Mr. BOND. Mr. President, I will ask the question of the Senator from Utah, think anybody else would, too. You can carefully examined the distinguished imagine how the Solicitor General’s dossier of this lawyer. But am I not who happens to be in the line of sight of the Chair, both of whom I respect. I Office must feel for this type of an in- correct this is a nomination to the appropriate request for a confidential, Federal Circuit Court of Appeals for will focus the question to the Senator from Utah. Do you share the concern privileged matter that they have to the District of Columbia? keep that way if they want to not chill Mr. HATCH. You are correct. that should a clerk, assistant counsel Mr. WARNER. Mr. President, I was to a U.S. Senator, or perhaps a Member honest discourse within the Solicitor privileged to be a law clerk. of the other body, be nominated for a General’s Office. This is absurd. That is The PRESIDENT pro tempore. The judicial position, under this principle what they are pinning their hat on Senator will ask another question, enunciated by our friends on the other here. please. side of the aisle the nominee would Let me tell you, if that is what it Mr. WARNER. Yes, Mr. President. I have to turn over all of the papers pre- comes down to, it is going to be hard to shall pose it in the form of a question. pared for that Senator, or that House get any judge through that one or the I had the privilege of being a law clerk Member, or the committee for which other side has a difference with in the on the same circuit court of appeals that nominee may have worked? slightest degree. There is no reason to many years ago. I ask my distin- Mr. HATCH. Well, I have to say that disagree with Mr. Estrada. I have not guished colleague, when a United the Solicitor General’s Office is one of heard one legitimate, good reason—not States Senator goes before the Judici- the most important offices in the coun- one yet. ary Committee for the purpose of in- try. This is the advocate for our coun- Mr. ENSIGN. Will the Senator yield troducing a nominee, does not that try. These opinions are extremely im- for a question? Senator place his or her credibility be- portant. They want the best opinion Mr. HATCH. Yes, without losing my fore that committee in making those they can get from the people who serve right to the floor. statements? there and write the opinions, as Miguel Mr. ENSIGN. Mr. President, I have a Mr. HATCH. As you know, Senator, Estrada did. By necessity, they have to preamble to my question. I heard my you did that. We respect your credi- be confidential and privileged because, colleague refer to the opposition to bility. I think both sides respect your otherwise, the Solicitor General’s Of- Miguel Estrada as imposing an intel- credibility, as we should. You did make fice would not function as well on be- lectual glass ceiling for Hispanics who a very formal and important statement half of the American citizens. are not liberals. We hear a lot about di- So in all honesty, if our friends on on behalf of Miguel Estrada. versity on the courts. Yet some people the other side were to prevail in forc- The PRESIDENT pro tempore. The seem intent on blocking this nominee ing any administration, or if we would Senators cannot have a dialog on the for having a diversity of opinion as do so later because they do so now, floor under the guise of asking ques- compared to what those on the left then that means no privileges will be tions. want. Don’t you agree that an impor- respected in the executive branch of Mr. WARNER. I thank the Chair. tant kind of diversity is the diversity the Government. Now, if we start doing Mr. BOND. Will the Senator yield? of ideas, and isn’t that exactly what Mr. HATCH. Mr. President, I am that, I have to ask you, where does it the opponents of Mr. Estrada and his happy to yield for a question without end? Does it end where the opinions confirmation are trying to prevent—di- losing my right to the floor. our staffs give us at our request have Mr. BOND. Mr. President, I ask the to be given up if they are nominated? verse ideas from a Hispanic nominee? Senator from Utah, who has experience Mr. BOND. That is the question I am Mr. HATCH. It certainly looks that with the entire judicial process. As one asking, the same principle. Would the way to me. One argument is that he is who has served as a law clerk, I ask is same principle apply, that someone not Hispanic enough. That is ridicu- it not commonplace for law clerks, for who had served you or me as a counsel, lous. Others have said he hasn’t had assistants, to write memoranda that do if nominated, would have to provide all any judicial experience. I think we not necessarily reflect their views, but of the memoranda, drafts, and opinions have more than blown that away. I are designed to explain the rulings prepared, or memoranda prepared for don’t think any reasonable person made by the judge or other lawyer or you or me, were they to be nominated? would make that argument. Yet I have solicitor who may serve? Mr. HATCH. Well, let’s just be honest heard argument after argument that he Mr. HATCH. Without question, that about it. Considering a nomination for doesn’t have any judicial experience. is so. a judgeship like it is being done here I agree that some special interest Mr. BOND. Is it the experience and would become just a methodology for groups, and others that have been criti- knowledge of the distinguished chair- anybody. If you didn’t get the papers cizing Mr. Estrada, think all minorities man of the committee that the legal you wanted from some source or other have to think alike. If you are a minor- scholarship may be shown by these rul- in the Federal Government—and it ity, if you don’t toe the liberal line, ings, by these drafts, but they do not in might even include the Senate—then they don’t want anything to do with any way reflect, necessarily, the views you can hold up judges just as they are you. That is the problem here. of the clerk or the assistant? doing here. Look, that would—— I don’t think my colleagues are Mr. HATCH. The Senator is correct Mr. BOND. Mr. Chairman, would you against Mr. Estrada because he is His- once again. ever—— panic. No, it is because he is a Hispanic

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.175 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2311 Republican, and they think conserv- The PRESIDENT pro tempore. Is is nothing to prevent us from taking a ative, who may not agree with some of there objection? stand and voting up or down on Miguel their more liberal ideas. Mr. REID. Objection. Estrada other than the obstructionist It seems to me that this is fundamen- The PRESIDENT pro tempore. Objec- delays being perpetuated by the other tally un-American. I don’t think there tion is heard. side. is anyplace in our system for this type The majority leader. Mr. HATCH. Mr. President, I say to of thinking. Miguel Estrada reached Mr. FRIST. Mr. President, as you can the Senator, that is absolutely true. his views by examining all the facts see, the Chamber, at least on this side Mr. ALLEN. I ask, Mr. President, a and coming to his conclusions, and to of the aisle, is full and ready to vote. further question. Is it not true that on suggest that he or anyone else has to Therefore, I modify the request to ask the DC Court of Appeals there are 12 arrive at a certain political bent—and that the vote occur no later than 1 judges allocated to that court? one only—is simply not fair. He is not week from this Friday, 7 days from Mr. HATCH. That is correct. being treated fairly here. I don’t think now. Mr. ALLEN. Is it not true that there anybody who watches this or looks at Mr. REID. Reserving the right to ob- are four vacancies on that court, it, or understands it would think he is ject. which, calculating, means a third are being treated fairly. He is just not. The PRESIDENT pro tempore. The unfilled? The PRESIDENT pro tempore. Does Senator from Nevada. Mr. HATCH. This is correct. the Senator from Utah yield the floor? Mr. REID. Mr. President, as has been Mr. ALLEN. Does the Senator believe Mr. HATCH. Yes. outlined in detail on many occasions justice is being delayed and, thus, de- The PRESIDENT pro tempore. The here, if the nominee is willing to sub- nied on the DC Court of Appeals due to majority leader is recognized. mit his—— a third of this court being vacant? Mr. FRIST. Mr. President, we opened Mr. GREGG. Regular order, Mr. Mr. HATCH. I agree, justice delayed the Senate a little over 12 hours ago. President. is justice denied, and this is a very im- At the outset, I mentioned that I hoped Mr. REID. Objection. portant court. The problem is our we would have the opportunity to have The PRESIDENT pro tempore. Objec- friends on the other side just do not a good, robust discussion over the day, tion is heard. want a conservative Hispanic ap- and that after that discussion we would The majority leader. pointed by a Republican President on have an opportunity to vote up or down Mr. FRIST. Mr. President, because I that court. on this outstanding, well-qualified think we have had adequate debate, Mr. ALLEN. I ask, Mr. President, a nominee. and discussion—Miguel Estrada is a further question, if the Senator will I am delighted, as I look around the well-qualified nominee, and there is a yield. Chamber, to see at practically every shortage of judges in the United States Mr. HATCH. For a question. Republican desk someone behind it of America, a critical shortage—I mod- Mr. ALLEN. Does the Senator from ready to vote. The discussion has been ify my request to ask that the vote Utah recognize the people of America good today. It has been complete occur no later than 2 weeks from this believe there are many important today. And as my colleagues on the Friday. issues facing this country—terrorism, other side of the aisle mentioned this The PRESIDENT pro tempore. Is war possibly in Iraq, moving forward morning, everything, in essence, has there objection? been said about this well-qualified Mr. REID. Mr. President, we have ap- with creating more jobs and improving nominee. If that is the case and we, in- proved 103 judges—— health care, education—and by the deed, have given sufficient time: It has Mr. BROWNBACK. Regular order. Democratic Party’s obstruction here of been 5 days, since last Wednesday; we Mr. REID. Up to this point. I object. actually voting one way or the other have spent 5 days on this nominee talk- The PRESIDENT pro tempore. Objec- on Miguel Estrada, they are delaying ing about his qualifications, which has tion is heard. this body from acting on these very im- been fascinating over the course of Mr. FRIST. I yield the floor. portant matters for security and job today. Each time I listened to one of The PRESIDENT pro tempore. The opportunities for Americans? our Senators, I learned something. Senator from Utah. Mr. HATCH. I agree 100 percent with Every time, I got more and more ex- Mr. HATCH. Mr. President, as you the distinguished Senator from Vir- cited about this particular nominee. can see, there is no fairness in this ginia. We have attempted to have the up-or- process. This is the first filibuster for a Mr. ALLEN. I thank the Senator. down vote, in fact, on three previous circuit court of appeals nominee in the Several Senators addressed the occasions. We have had a unanimous history of this country. The majority Chair. consent request, and at this juncture I leader has been very fair in granting Mr. DURBIN. Will the Senator yield will again try to reach an agreement extra time. The other side said they for a question? with my Democratic colleagues. have debated it long enough. We have The PRESIDENT pro tempore. Who I therefore ask unanimous consent always voted up or down at this junc- seeks recognition? that there be an additional—an addi- ture, and the minority is unfairly fili- Mrs. HUTCHISON. Mr. President, tional—6 hours for debate on the bustering this nominee for the first will the Senator from Utah yield for a Estrada nomination; provided, further, time in history, this Hispanic-Amer- question? that the time be equally divided be- ican nominee who has climbed every Mr. HATCH. I will be happy to, with- tween the chairman and the ranking step of the way into the American out losing my right to the floor. member, or their designees, and that dream. They are taking an attitude The PRESIDENT pro tempore. The following the conclusion of that time, and a position that takes away from Senator from Texas. the Senate proceed to a vote on the that American dream. Mrs. HUTCHISON. Will the Senator confirmation of the nomination, with Mr. DURBIN. Will the Senator yield from Utah yield for a question? no intervening action or debate. for a question? Mr. HATCH. Without losing my right The PRESIDENT pro tempore. Is Mr. ALLEN. Mr. President, will the to the floor, I will be happy to yield. there objection? Senator—— Mrs. HUTCHISON. Mr. President, I Mr. REID. Reserving the right to ob- The PRESIDENT pro tempore. The ask the Senator from Utah, how many ject, for the reasons outlined since last Senator from Utah has the floor. Who votes does it say in the Constitution Wednesday by the minority, an objec- seeks recognition? are required to confirm a judge in the tion is raised. The Senator from Virginia. Senate? The PRESIDENT pro tempore. Objec- Mr. ALLEN. Mr. President, I ask if Mr. HATCH. A simple majority. It tion is heard. the Senator from Utah will yield for a says we have the power of advising and The majority leader. question. consenting. It does not say we have the Mr. FRIST. Mr. President, I therefore Mr. HATCH. Without losing my right power to advise and filibuster or ob- modify my request to ask that the vote to the floor. struct, which is what is going on here. occur no later than Friday of this Mr. ALLEN. I ask the Senator from Mrs. HUTCHISON. That is my ques- week. Utah if it is true that right now there tion. If the Constitution says 51 votes,

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.177 S12PT2 S2312 CONGRESSIONAL RECORD — SENATE February 12, 2003 or a simple majority, I am asking if it was treated fairly, but in the end he leagues on the other side, but I think would be an effort to go around the had a vote. In the end he sits on the what has gone on does not deserve Constitution to filibuster a Federal Ninth Circuit Court of Appeals even much consideration. judge. Is it even really seemly to fili- though our side, almost to a person, in Mr. KYL addressed the Chair. buster a Federal judge nominee when fact to a person, disagreed with that The PRESIDENT pro tempore. The the Constitution is very clear on this nomination. But we gave him a vote. current occupant of the Chair is no issue? Is it setting a new standard with Let me tell you something— model of decorum, but I am trying to Miguel Estrada that we are going to all The PRESIDENT pro tempore. The establish it. of a sudden have the Constitution Senator will address the Chair, not the Mr. HATCH. I figured that the Chair averted to start requiring 60 votes out Senator. would understand. of 100 to confirm a Federal judge, a Mr. HATCH. Let me address the Several Senators addressed the nominee, which is the President’s abso- Chair then in answering this question. Chair. lute right to make, his right and re- Miguel Estrada, without one thing The PRESIDING OFFICER. The Sen- sponsibility, and he has nominated against him—and by the way, Judge ator from Arizona. these qualified judges? Paez had plenty of things against him Mr. KYL. Will the Senator yield for a Mr. HATCH. There is no question. I that indicated he was not only an ac- question? agree with the distinguished Senator tivist judge but ruled without regard to Mr. HATCH. Yes, without losing my from Texas. That is what is going on the law. There were some legitimate right to the floor. here, and they are depriving this quali- concerns on our side, even though I be- Mr. KYL. To the Senator from Utah, fied Hispanic of his right to sit on this lieved he should have a vote and he ul- I have three questions regarding the bench without any real justification. timately did, unlike Miguel Estrada. Paez nomination which he just referred That is what bothers me. It is a double Let me tell you something, I have to. The first is if the Senator from standard. It is clearly a double stand- not seen one legitimate, substantive Utah could tell us which party was in ard, and it is a double standard that is reason to not give Miguel Estrada the control of this body and by whom the unseemly. I think the Senator put it same privilege that, yes, it took time cloture petition was filed. exactly right. to do and I had to fight it through and Mr. HATCH. Well, I will be happy to. Two of our Hispanic Republican col- there were all kinds of problems; some As I understand it, the Democrats were leagues in the House have come over were very justified problems—— in control, and they filed the cloture here to show their support for Mr. Mr. DURBIN. Will the Senator yield motion—we were in control? OK. We Estrada, Mr. MARIO DIAZ-BALART and for another question? were in control and we filed the cloture Mr. DEVIN NUNES. Mr. HATCH. It is time to give Miguel motion. I am sorry. I am so tired I can- Mrs. HUTCHISON. I thank the Chair. Estrada the same privilege that we not think straight. I yield the floor. gave to Judge Paez. Mr. KYL. The Senator, of course, Several Senators addressed the Mr. DURBIN. Will the Senator yield makes the point. The cloture motion in Chair. for a further question? the case of Judge Paez was filed by the Mr. LEAHY. Will the Senator yield Mr. HATCH. I will be happy to yield party in control of this body, by the for a question? without losing my right to the floor. distinguished majority leader of the The PRESIDENT pro tempore. Who Mr. DURBIN. Would the Senator be Republican Party at that time, TRENT seeks recognition? kind enough to explain that when he LOTT. Several Senators addressed the was chairman of the Senate Judiciary I would also ask this question: Is it Chair. Committee and this Hispanic nominee not true that the debate for Richard The PRESIDENT pro tempore. The Richard Paez was held up for over 1,500 Paez lasted 1 day; that there was no fil- Senator from Illinois. days before his nomination was ibuster of his nomination? Mr. DURBIN. Will the Senator from brought to the floor, it was necessary Mr. HATCH. Well, that is correct, Utah yield for a question? to file a cloture motion to close debate and I suspect that my colleague and Mr. HATCH. I will be happy to yield, to bring his name for a vote before the friend from Illinois would not vote for without losing my right to the floor. Senate? cloture for Mr. Estrada as I did for Mr. DURBIN. I would like to ask the Mr. HATCH. It was not necessary. It Judge Paez—as we did for Judge Paez. Senator the following question: Is it was not necessary because I was fight- Mr. KYL. Mr. President, will the Sen- not true that Richard Paez, a Hispanic ing to have that happen and it did in ator from Utah yield for one final ques- American, nominated to be a U.S. Cir- fact happen, unlike what is happening tion? cuit Judge for the Ninth Circuit, at a today. Mr. HATCH. I will be happy to yield, time when the Senator from Utah was Let me make a suggestion to my col- without losing my right to the floor. chairman of the Senate Judiciary Com- leagues on the other side. I am willing Mr. KYL. With respect to the Paez mittee, waited over 1,500 days before to have one cloture vote, but then let’s nomination, is it not also true that a that committee was forced to finally vote up or down on Estrada. And if you majority of the Republicans supported face a Senate record vote, a cloture win, I will live with that. If you can de- the cloture motion vote so that Judge vote on March 8, 2000, before his nomi- stroy this man’s career so that he can- Paez could get a vote but that many of nation was approved by the Senate? not be a Federal circuit court of ap- those very same Senators then voted Mr. HATCH. It was a disgrace. peals judge, I will live with that. You against him? Having given everyone in Mr. DURBIN. I am sorry. I gave the have a right to vote against him. But this body an opportunity to vote, they wrong date on that. March 8, 2002. you do not have a right to filibuster exercised their right to vote against Mr. HATCH. It was a disgrace that this man, nor should you. It is shame- him but did not deny the right of all Judge Paez had to wait that long, but ful. And it is shameful to put him the other Senators to vote for him, and Judge Paez had an up-or-down vote on through this without one substantive that he was confirmed? this floor allowed by my colleagues at reason to do it other than a phony re- Mr. HATCH. That is correct. I am my request. There was no formal fili- quest for privileged documents that ev- glad the Senator reminded me of that buster at the time. Nobody said there erybody knows is phony. matter. was going to be a filibuster. We know The PRESIDENT pro tempore. The Mr. REID. Will my friend from Utah we have had some cloture votes in the Senator from Utah has the floor. The yield for a question? past, but they have been for votes of Senator from Utah will please restrain Mr. HATCH. I would be delighted to convenience or the majority leader has from referring to another Senator by yield without losing my right to the called them for some reason or another ‘‘you.’’ The Senator must be referred to floor. but not because there was a filibuster. as ‘‘the Senator.’’ Mr. REID. Is the Senator from Utah The important thing is—and, look, I Mr. HATCH. I will be happy to abide aware that earlier this evening we vol- think it is time for your side to under- by that, and I am happy to be corrected untarily gave up the floor, as we knew stand it. The important thing is here by the Chair. I do get a little excited in that you and the majority leader want- was a judge that, yes, I do not think this matter, and I apologize to my col- ed to come and make a statement?

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.180 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2313 Mr. HATCH. Which we would have Mr. REID. Is the Senator aware that Mr. HARKIN. Will the Senator yield? done for you. based on cloture votes, there have Mr. HATCH. I am happy to yield to Mr. REID. I guess the question I am been—— my colleague without losing my right asking is: Who is filibustering this? The PRESIDENT pro tempore. Is the to the floor. Mr. HATCH. I guarantee you it is not Senator asking the Senator from Utah Mr. HARKIN. Mr. President, I ask my us. I guarantee you it is you, and if you to yield? friend from Utah, please explain why deny it I would be happy to go to a vote Mr. REID. Yes, I ask the Senator if the difference in substance rather than right now. he would yield for a further question? form of what happened 2 years ago, Mr. REID. I was just wondering. This Mr. HATCH. I yield for a question, now almost 21⁄2 years ago, in the year is taking quite a while. without losing my right to the floor. 2000. The Judiciary Committee held a Mr. HATCH. Let’s go to a vote. If you Mr. REID. Based on cloture votes, hearing in May 2000 on the nomination are not filibustering, let’s vote. are you aware that there have been 17 of one Bonnie Campbell, former attor- Mr. REID. Another question, if I filibusters on judicial nominees? Are ney general of the State of Iowa to be could, Mr. President? you aware of that? a justice for the Eighth Circuit—and Mr. HATCH. Mr. President, I ask for Mr. HATCH. No way. Nobody has then, nothing. the yeas and nays. ever called those a filibuster and there Then the Republican leadership Mr. REID. On what? has never been a true filibuster against would not bring her name on the floor Mr. HATCH. On this nomination. a circuit court of appeals nominee for a vote. Seven times that fall I came The PRESIDENT pro tempore. Is until this one, and your side has an- to the floor, I say to the Senator, to there a sufficient second? nounced that this is a filibuster. No ask that her name be brought up to Mr. REID. It is debatable after that. one has ever agreed that those others vote, up or down or that at least she So what difference does it make? were filibusters. There were cloture get a vote in committee. The Repub- The PRESIDENT pro tempore. No, it votes, no question about it. But no cir- lican leadership would not bring her is not debatable. cuit nominee has ever been defeated by name up for a vote. I ask the Senator Several Senators addressed the denying cloture, none; zero; nada. from Utah, other than form, what is Chair. Mr. REID. Will the Senator yield for the difference in substance between The PRESIDENT pro tempore. There a question? that and today? is a sufficient second. Mr. HATCH. I would be glad to yield, Mr. HATCH. She was never brought This is ordering the yeas and nays on without losing my right to the floor. to the floor. I acknowledge that. She Mr. REID. The Senator is aware and this nomination. was not. She was 1 of 41 who were left has acknowledged that there have been Several Senators addressed the hanging at the end of that administra- a number of occasions where cloture Chair. tion in contrast to the 54 left hanging had to be invoked on numerous judges, The PRESIDENT pro tempore. It is when the Democrats lost the Presi- not the least of which were Richard improper to ask for the yeas and nays. dency and a Republican was President. Paez and Marsha Berzon in recent There is a sufficient second. In other words, 13 less. And 9 of the 41 years? The Senator from Utah. were put up so late there was no way Mr. HATCH. Let me answer that Mr. HATCH. I will be happy to yield, anyone could get through, so we are question. There has never been a true without losing my right to the floor. down to 32. And with 32 we had other filibuster, until this one, against a cir- Mr. HARKIN. He loses the right to problems. We can have all the statis- cuit court of appeals nominee. In re- the floor on the motion. tics, but we ‘‘bettered’’ the Democrats cent years, both sides have used clo- Mr. HATCH. I will be happy to yield in every case. ture on various occasions other than to the distinguished Senator from Ne- She was not brought up so there was, for filibuster purposes, but there has vada for a question, without losing my naturally, no filibuster. never ever been a true filibuster right to the floor. The PRESIDENT pro tempore. The against a circuit court of appeals nomi- The PRESIDENT pro tempore. The Senator from Maine. Senator from Utah has the floor. nee until this time. And whenever Ms. COLLINS. Mr. President, would Mr. HARKIN. He lost the right to the there has been a cloture vote, the the Senator from Utah yield for a ques- floor. nominee received his or her vote up or tion? Mr. REID. Is the Senator aware that down. Mr. HATCH. Without losing my right Mr. REID. Will the Senator yield? both Democrats and Republicans have to the floor. Mr. HATCH. Which is not being given sought cloture in response to debate or Ms. COLLINS. Would the Senator here and which is being denied here by objections to judicial nominees since from Utah be so kind as to explain the the minority. the cloture rule was extended in 1949? Mr. REID. Will the Senator yield for ABA rating system under which it is Is the Senator aware of that? one final question? my understanding that Mr. Estrada re- Mr. HATCH. I did not hear the ques- Mr. HATCH. Without losing my right ceived the highest possible rating? tion. to the floor. Would the Senator further explain Mr. REID. The question is, Are you Mr. REID. I wish the Senator would whether there was a split rating, or aware that cloture votes on judicial explain to me what a filibuster is. whether it was unanimous, and what nominees are well precedented in re- What is a true filibuster? the general concession of those on the cent history? Mr. HATCH. When there is an at- other side of the aisle has been toward Mr. HATCH. Not for true filibusters. tempt to try and stop debate, when ABA ratings in the past? I agree we have had cloture votes but there is an attempt to try to defeat a Mr. HATCH. I thank the Senator for not for true filibusters. It has been be- candidate. And in every case we have her very erudite question. Let me start cause a majority leader wanted to have had a vote up and down and the judge with the last part of that. a cloture vote, not because we were not has been approved. When the Democrats were in control willing to vote on nominees on either Mr. REID. But the Senator would ac- of the Judiciary Committee and they side. Your side was willing to vote and knowledge it took cloture to have that had a Democrat President, they said we were willing to vote and even when occur? the ABA was the gold standard. I can- they had to go to cloture on Paez, the Mr. HATCH. No. No, I would not. not remember when a nominee who had majority of Republicans voted for clo- Technically, yes, but not because a ‘‘unanimously well-qualified’’ rating, ture, and then a number of Republicans there was a filibuster. And the Senator the highest rating the American Bar voted against. But they did give him an knows that. Association gives, had any difficulty up-or-down vote, even though there In recent years we have used cloture like this. They went through. It was was widespread disagreement with motions for almost everything. But the that simple. There is a double standard Judge Paez. Senator is talking to the Senator from here against this Hispanic gentleman. Mr. REID. Is the Senator—— Utah who knows what a real filibuster I have to admit I was not very Mr. HATCH. I voted for him, by the is, and there has never been a true fili- pleased with the ABA during many of way. buster until today, until this filibuster. the years when they made ratings that

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.182 S12PT2 S2314 CONGRESSIONAL RECORD — SENATE February 12, 2003 were split all the time because of par- Ms. COLLINS. I thank the Senator from Utah as to how it is any different tisanship. They have cleaned that up. from Utah for clarifying this issue for to have Enrique Moreno, with a well- The ABA is doing a decent job and has the Senator from Maine. qualified rating from the American Bar done a pretty decent job in the last 4 or Mr. HATCH. I thank my colleague. Association, nominated to the Federal 5 years. The PRESIDING OFFICER. The Sen- judiciary, refused a hearing before What happens is when a President de- ator from Illinois. then-Chairman Orrin Hatch, because cides to nominate somebody, the ABA Mr. DURBIN. Will the Senator from two Republican Senators from Texas then conducts its own investigation. Utah yield for a question? refused to approve him, thus, frankly, They send top examiners—lawyers, if Mr. HATCH. Without losing my right giving him less consideration than you will—into the area from where this to the floor. Miguel Estrada who is before us today. individual nominee is nominated. They Mr. DURBIN. Pursuing the same Mr. HATCH. I don’t think that is ac- do a complete review with the top, question, can the Senator ever recall a curate at all. The fact is there was no most ethical, highest rated lawyers in Hispanic nominee suggested by Presi- consultation. I informed the counsel at that area, and others, and then they dent Clinton, when he was chairman of the White House there was no consulta- come and meet in what is called a the Senate Judiciary Committee, His- tion, and we were not going to bring standing committee and then they de- panic nominee for the Federal judici- this nominee up without consultation termine what kind of a rating to give. ary who received a well-qualified rat- with both home State Senators. And And the ratings, generally, are ‘‘not ing in which the Senator, then-chair- both home State Senators agreed with qualified,’’ ‘‘qualified,’’ or ‘‘well-quali- man of the Senate Judiciary Com- that. Frankly, I think any chairman fied.’’ Sometimes those ratings have a mittee, refused to even give that nomi- would have handled it exactly the same split rating where some will be well nee a hearing? way. And it is not the same at all. qualified in part and qualified in part. Mr. HATCH. Do you have anyone spe- Miguel Estrada not only had a hear- We have even seen some ratings, well- cifically you are referring to. ing, but he came through the process. qualified and not qualified. Mr. DURBIN. Enrique Moreno. It was a difficult process for him, but In this particular case with this His- Mr. HATCH. In the case of Enrique he came through it and the Judiciary panic nominee, Miguel Estrada, he re- Moreno, there was no consultation, a Committee approved the nomination of ceived the highest possible unani- refusal to consult with home State Miguel Estrada. Miguel Estrada is now mously qualified rating of the Amer- Senators. That is basically something on the floor, so it is completely dif- ican Bar Association. we do not allow in the Judiciary Com- ferent from that situation. There was Just last year, two of the Senators— mittee. It is one of the reasons that we consultation in the case of Miguel the Senator from New York, Mr. SCHU- will use both sides—if there is not ade- Estrada. And, frankly, we are sitting MER, and the Senator from Vermont, quate consultation, it is one of the rea- here right now in a filibuster for the Mr. LEAHY—called the ABA rating the sons we will use to not bring a nominee first time in history of a circuit court gold standard for reviewing judges. up. And I think the distinguished Sen- of appeals nominee, without question. They were not the only ones. Now, all ator from Illinois should know that. If The PRESIDING OFFICER. The Sen- of a sudden, that standard does not you do not, be advised, that was the ator from Arizona. Mr. KYL. Mr. President, I would like seem to be good enough. reason Enrique Moreno did not come Ms. COLLINS. Mr. President, would to address a question to the Senator up. the Senator from Utah yield for just I even wrote a letter to the then- from Utah if he would yield. one more followup question on the Mr. HATCH. Without losing my right Chief Counsel of the White House. I ABA? to the floor. think it was Chuck Ruff at the time, Mr. HATCH. Without losing my right Mr. KYL. Mr. President, I ask the to the floor. bless his memory. I wrote a letter to Senator from Utah, first of all, if the Ms. COLLINS. Is the Senator from him saying: You will not consult—they Senator is aware there are many nomi- Utah aware of any other case in which basically admitted that—and they were nees who, for one reason or another, a judicial nominee received a highly going to bring this up regardless. It never got out of the Judiciary Com- qualified rating from the ABA and was was not adequate or good enough and mittee? In other words, isn’t it correct subject to a filibuster on the Senate no chairman, I think, would allow that there are many nominees who, for a va- floor? nominee to come forward without con- riety of reasons, do not make it to the Mr. HATCH. I can’t think of one sultation—it is just that simple—Dem- floor of the Senate? Is that correct? case. In fact, there has never been a ocrat or Republican. Mr. HATCH. The Senator is correct, true filibuster conducted. In the cases Mr. DURBIN. Will the Senator fur- in both Democratic control of the com- where they have raised the question of ther yield for a question? If the Sen- mittee and Republican control of the cloture votes, cloture votes are called ator will further yield for a question? committee. There are many reasons. for one reason or another by majority Mr. HATCH. Without losing my right The reason may be because of failure to leaders, but in each of those cases, as I to the floor. consult. It may be because of further recall, the nominees had an up-and- Mr. DURBIN. I do not want to bore investigations that have to be con- down vote. I would be happy to go to a the membership with another debate ducted. It may be further FBI inves- cloture vote with our friends on the about the blue slip policy which the tigations have to be conducted. It may other side if afterwards they allow an Senator indicated is going to change, be because of lack of time. It may be up-and-down vote regardless of what but I want to make sure it is clear for because of holds on the Senate floor, happens on the cloture vote—happy to the record in this case, we had a His- which have been used by both sides do it. panic American nominated for the through time. They do not seem to be inclined to do bench by President Clinton, Enrique But I can tell you this. There were that. They want to filibuster the first Moreno, who received a well-qualified less holdovers at the end of my tenure Hispanic nominee to the Circuit Court rating from the American Bar Associa- as chairman of the committee than of Appeals for the District of Columbia, tion, and was refused a hearing before there were in 1992, at the end of the who has a ‘‘unanimously well-quali- the Senate Judiciary Committee when Democrats’ tenure when there was a fied’’ rating by the American Bar Asso- you were chairman because the two Re- Republican President. ciation, their gold standard, and who publican Senators from Texas refused Let me add one last thing to that, has all of these other qualifications to approve the nomination. How is that and that is none of us complained, to that lawyers only dream about. And he different from a filibuster, for the fate my knowledge, about Senator BIDEN as has fulfilled the American dream. He is of Enrique Moreno? chairman when there were 54 holdovers being denied his opportunity to serve The PRESIDING OFFICER (Mr. EN- and 97 vacancies. We had 41 holdovers, by a double standard here that is being SIGN). Will the Senator from Illinois and nine of those were put up so late applied by my colleagues on the other address in the third person, not di- there was no way I could have gotten side. rectly. to them in the remaining few weeks we It is some Members. I know all of Mr. DURBIN. The Chair is correct. I had. So there were really only 32 hold- them cannot feel that way. ask the Chair to address the Senator overs and there were a number of those

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.185 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2315 for which there were justifiable reasons was returned. It is some 25 pages in Rogers & Wells. Position: Summer Asso- for not bringing them up. length and is a complete answer, and ciate, Summer 1984. Mr. KYL. Further on this line of in- he does not refuse to answer any of the Harvard Law School. Position: Research Assistant to Professor Hal S. Scott, 1985– quiry, if I could ask the Senator from questions that were posed by the com- 1986. Utah to yield, other than the case of mittee. These are the same questions Boards: Justice Abe Fortas, does the Senator that are asked of every nominee who 1. Since June 2000, I have been a trustee of from Utah know of any situation in comes before the committee. the Supreme Court Historical Society, an or- which a nominee for the Supreme May I also ask the Senator from ganization dedicated to expanding public Court or the circuit court of appeals, Utah if the answers to this question- awareness of the history of the Supreme Court of the United States. for example, got to the floor of the naire have been printed in the RECORD, 2. Since 1998, I have been a member of the Senate and then was stopped by a fili- and if they have not, if the Senator National Board of Directors of the Center for buster? from Utah would place them in the the Community Interest, an organization Mr. HATCH. There has only been one Record? dedicated to improving the quality of life in true filibuster in the history of this Mr. HATCH. They have not been public spaces. 7. Military Service: Have you had any mili- country, and that was the Fortas nomi- placed in the RECORD. Therefore, I ask nation. I have to say even President tary service? If so, give particulars, includ- unanimous consent the questionnaire ing the dates, branch of service, rank or rate, Nixon was against that filibuster. But and the answers be printed in the serial number and type of discharge received. it was a bipartisan filibuster of both RECORD. Anybody who looks at that I have never served in the military. Democrats and Republicans, unlike will realize it is a very intrusive ques- 8. Honors and Awards: List any scholar- what we are faced with today where a tionnaire. ships, fellowships, honorary degrees, and minority of Democrats are filibus- There being no objection, the mate- honorary society memberships that you be- tering against a Hispanic nominee for rial was ordered to be printed in the lieve would be of interest to the Committee. My college and law degrees were both award- the Circuit Court of Appeals for the RECORD, as follows: ed with high honors. I was elected to Phi District of Columbia, a double stand- I. BIOGRAPHICAL INFORMATION (PUBLIC) Beta Kappa in college. ard. 9. Bar Associations: List all bar associa- 1. Full name: Miguel Angel Estrada tions, legal or judicial-related committees or Mr. KYL. Mr. President, I ask the Castan˜ eda conferences of which you are or have been a Senator from Utah to yield for two 2. Address: Residence—Alexandria, Vir- member and give the titles and dates of any other questions. ginia; Office—Gibson, Dunn & Crutcher LLP, offices which you have held in such groups. Mr. HATCH. Without losing my right 1050 Connecticut Avenue, N.W., Washington, (a) Members, American Bar Association to the floor. D.C. 20036. (1987–1993, 2001-present), (b) Barrister, Ed- 3. Date and place of birth: September 25, Mr. KYL. This goes back, I would ad- ward Bennett Williams White Collar Crime 1961, Tegucigalpa, Honduras (became natu- vise the Senator from Utah, to the Inn of Court, Washington, D.C. (since 1998), ralized U.S. Citizen on 2/4/86). question of whether or not there has (c) Barrister, Edward Coke Appellate Inn of 4. Martial Status (including maiden name of been a full opportunity to discover Court, Washington, D.C. (since 2001), (d) wife, or husband’s name). List spouse’s occu- Member, The Barristers, Washington, D.C. what this nominee believes, what his pation, employer’s name and business ad- (since 1998), (e) Member, The Federalist Soci- background is, whether he is well dress(es). Married to Laury Lea Estrada (nee ety (since 1993). qualified, whether there has been an Gordon), Senior Trial Attorney, U.S. Depart- 10. Other Memberships: List all organiza- opportunity, in other words, to ques- ment of Justice, Narcotic and Dangerous tions to which you belong that are active in tion him and whether he has provided Drugs Section, 1400 New York Avenue, N.W., lobbying before public bodies. Please list all full and complete information. Would Washington, D.C. 20005. other organizations to which you belong. To the Senator from Utah advise all of us 5. Education: List each college and law my knowledge, no organization of which I school you have attended, including dates of how many hours, if it was hours, this am a member is active in lobbying public attendance, degrees received, and dates de- bodies. In addition to the bar associations nominee was before the Judiciary Com- grees were granted. State University of New mittee and whether he answered all of listed in response to question 9, I belong the York at Old Westbury, May 1979 to June 1980 following organizations: (a) Member, Old the questions that were put to him at (no degree) Columbia College, Sept. 1980 to Town Civic Association, Alexandria, Vir- that hearing? June 1983; A.B. degree granted June 1983 Har- ginia, (b) Member, Old Town Walled Garden Mr. HATCH. In an unusual hearing, vard Law School, Sept. 1983 to June 1986; Club, Alexandria, Virginia, (c) Member, The which was much longer than most cir- Juris Doctor Degree granted on June 1986. Alexandria Association, Alexandria, Vir- cuit court of appeals hearings, from 10 6. Employment Record: List (by year) all ginia, (d) Member, Smithsonian Associates, o’clock to 5:30 that day, he was asked business or professional corporations, com- Washington, D.C. panies, firms, or other enterprises, partner- question after question. He was asked 11. Court Admission. List all courts in which ships, institutions and organizations, non- you have been admitted to practice, with question after question by Democrats profit or otherwise, including firms, with dates of admission and lapses if any such as well as Republicans, but mainly which you were connected as an officer, di- memberships lapsed. Please explain the rea- Democrats, to the extent that we have rector, partner, proprietor, or employee son for any lapse of membership. Give the this transcript that is larger than most since graduation from college. same information for administrative bodies transcripts we have, other than Su- Employment: Gibson, Dunn & Crutcher which require special admission to practice. preme Court nominees, where he an- LLP. Positions: Of Counsel attorney, July I have been admitted to practice in the 1977–December 1999, and Partner, January swered the questions. The problem courts of the State of New York (since July 2000-present. 1987) and the District of Columbia (since De- with the Democrats, as I understand it, Office of the Solicitor General, United cember 1998). There have been no lapses in is he just didn’t answer the questions States Department of Justice. Position: As- my admission to those courts. In addition, I the way they wanted. But he answered sistant to the Solicitor General, Sept. 1992 to am a member in good standing of the bars of them and he answered them in accord- July 1997. the following federal courts: ance with the directions of no less than Wachtell, Lipton, Rosen & Katz. Position: U.S. Court of Appeals, Second Circuit, 3/25/ Lloyd Cutler, one of the leading Demo- Associate, Sept. 1987–February 1988, Feb- 91; U.S. District Court, Southern District of crat lawyers in the country. ruary 1989–March 1990, and May 1992–Sep- New York, 5/26/92; U.S. District Court, East- Mr. KYL. Mr. President, my final tember 1992. ern District of New York, 5/26/92; U.S. Su- United States Attorney’s Office, Southern preme Court, 7/17/92; U.S. Court of Appeals, question to the Senator from Utah, if District of New York. Position: Assistant Fifth Circuit, 2/17/93; U.S. Court of Appeals, he would yield please. United States Attorney, March 1990 to May Ninth Circuit, 11/10/97; U.S. District Court, Mr. HATCH. I would be happy to 1992. Western District of New York, 1/13/98; U.S. without losing my right to the floor. United States Supreme Court. Position: Court of Appeals, Third Circuit, 3/13/98; U.S. Mr. KYL. I think I counted 30 ques- Clerk to Hon. Anthony M. Kennedy, Feb- Court of Appeals, Fourth Circuit, 3/30/98; U.S. tions that were orally asked during the ruary 1988 to February 1989. Court of Appeals, Eleventh Circuit, 5/01/98; course of a hearing that, as I under- United States Court of Appeals for the Sec- U.S. Court of Appeals, District of Columbia stand it, went from 10:06 a.m. to 5:25 ond Circuit. Position: Clerk to Hon. Amalya Circuit, 5/07/98. L. Kearse, August 1986 to July 1987. 12. Published Writings: List the title, pub- p.m. In addition to that, the committee Debevoise & Plimpton. Position: Summer lisher, and dates of books, articles, reports, routinely sends a questionnaire to Associate, Summer 1986. or other published material you have written these candidates. That questionnaire Sullivan & Cromwell. Position: Summer or edited. Please supply one copy of all pub- was provided to Miguel Estrada, and it Associate, Summer 1985. lished material not readily available to the

VerDate Jan 31 2003 01:00 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.188 S12PT2 S2316 CONGRESSIONAL RECORD — SENATE February 12, 2003 Committee. Also, please supply a copy of all My last physical examination occurred on sociate, Sept. 1987–February 1988, February speeches by you on issues involving constitu- March 15, 2001. I am advised that I am in 1989–March 1990, and May 1992–September tional law or legal policy. If there were press good health. 1992. reports about the speech, and they are read- 14. Judicial Office: State (chronologically) United States Attorney’s Office, Southern ily available to you, please supply them. any judicial offices you have held, whether District of New York, One St. Andrew’s I have not written books, articles or re- such position was elected or appointed, and a Plaza, New York, New York 10007, Assistant ports, save for a law review note I authored description of the jurisdiction of each such United States Attorney, March 1990 to May while I was a student at the Harvard Law court. 1992. School. That Note, The Policies Behind I have never held judicial office. b. 1. What has been the general character Lending Limits, may be found at 99 Harv. L. 15. Citations: If you are or have been a of your law practice, dividing it into periods Rev. 430 (1985). I was a member of the edi- judge, provide: (1) citations for the ten most with dates if its character has changed over torial board of the Harvard Law Review—a significant opinions you have written; (2) a the years? student journal—from the Fall of 1984 to the short summary of and citations for all appel- I was a corporate lawyer, engaged pri- Spring of 1986. late opinions where your decisions were re- marily in transactional work, during the ap- I have occasionally been asked to offer, versed or where your judgment was affirmed proximately two years I worked at Wachtell, and have given, comments on drafts of schol- with significant criticism of your sub- Lipton, Rosen & Katz. arly articles. Although I do not regard my stantive or procedural rulings; and (3) cita- After leaving Wachtell, Lipton in March role in the writing or publication of those ar- tions for significant opinions on federal or 1990, I became an Assistant United States At- ticles as ‘‘editorial,’’ the following published state constitutional issues, together with torney, a job I held for over two years. As an articles reflect author acknowledgments of the citation to appellate court rulings on Assistant United States Attorney, I rep- my comments: such opinions. If any of the opinions listed resented the government in federal criminal Donald J. Boudreaux & A.C. Pritchard, were not officially reported, please provide trials (both jury and non-jury), bail and Civil Forfeiture and the War on Drugs: Les- copies of the opinions. change-of-plea hearings, and in appeals be- sons from Economics and History, 33 San I have never held judicial office. fore the United States Court of Appeals for Diego L. Rev. 79 (1996). 16. Public Office: State (chronologically) the Second Circuit. Debra Livingston, Police, Community any public offices you have held, other than I left the U.S. Attorney’s Office in May Caretaking and the Fourth Amendment, 1998 judicial offices, including the terms of serv- 1992 to join the Office of the Solicitor Gen- U. Chi. Legal. F. 261. ice and whether such positions were elected eral, where my practice principally involved Robert A. Ragazzo, Reconsidering the Art- or appointed. State (chronologically) any un- representing the U.S. government in cases ful Pleading Doctrine, 44 Hastings L.J. 273 successful candidacies for elective public of- before the United States Supreme Court. I (1993). fice. also handled some cases in the regional Robert A. Ragazzo, Transfer and Choice of I have never been a candidate for, or held, courts of appeals, and gave advice to govern- Federal Law: The Appellate Model, 93 Mich. elective public office. I have served in the ment agencies concerning whether adverse L. Rev. 703 (1995). following appointive public offices: trial court rulings should be appealed to a Robert A. Ragazzo, Unifying the Law of Law Clerk to Hon. Amalya L. Kearse (Aug. regional court of appeals. Although most Hostile Takeovers: Bridging the Unocal/ 1986–July 1987), United States Court of Ap- cases I personally argued before the Supreme Revlon Gap, 35 Ariz. L. Rev. 989 (1993). peals for the Second Circuit, Foley Square, Court involved criminal-law issues, a signifi- Benjamin E. Rosenberg, Criminal Acts and 40 Centre Street, New York, New York 10007. cant portion of my practice—e.g.,, advising Sentencing Facts: Two Constitutional Lim- Law Clerk to the Honorable Anthony M. other agencies on the advisability of appeal- its on Criminal Sentencing, 23 Seton Hall L. Kennedy (Feb. 1988–Feb. 1989), United States ing adverse decisions and opposing petitions Rev. 459 (1993). Supreme Court, One First Street, N.E., for a writ of certiorari—raised a broad range From time to time, I have been asked to Washington, D.C. 20543. of issues typical of civil litigation. I re- speak on issues of federal appellate practice, Assistant United States Attorney (Mar. mained in the Office of the Solicitor General which sometimes raise broader issues of 1990–May 1992), United States Attorney’s Of- for approximately five years. legal policy, at continuing legal education fice, Southern District of New York, One St. I left the Solicitor General’s office to join seminars sponsored by bar organizations. Andrew’s Plaza, New York, New York 10007. the Washington, D.C. office of Gibson, Dunn For example, for the past several years I Assistant to the Solicitor General (Sept. & Crutcher in July 1997. My practice at Gib- have been a participant in the appellate liti- 1992–July 1997), Office of the Solicitor Gen- son, Dunn has primarily involved handling gation seminar that the District of Columbia eral, United States Department of Justice, appellate matters, usually in civil cases, al- Bar organizes every October. For the past 950 Pennsylvania Avenue, N.W., Washington, though I have also occasionally handled several years, I also participated as a pan- D.C. 20530. trial-court litigation. elist in appellate practice seminars orga- 17. Legal Career: 2. Describe your typical former clients, and nized by the National Association of Attor- a. Describe chronologically your law prac- mention the areas, if any, in which you have neys General. I also participated in a similar tice and experience after graduation from specialized. program sponsored by the New York Bar in law school including During my nearly eight years in public New York City in 1999. In May 1999, I was a 1. whether you served as clerk to a judge, service, my client was the United States of panelist at a conference organized by the and if so, the name of the judge, the court, America. In private practice, my former cli- United States Sentencing Commission and and the dates of the period you were a clerk; ents have included, among others, major in- the Federal Bar Association; my panel’s dis- From August 1986 until July 1987, I served vestment banks acting as advisors in merg- cussion addressed, among other things, con- as a law clerk to the Honorable Amalya L. ers and acquisitions, health care providers stitutional issues raised by sentences im- Kearse, United States Court of Appeals for defending against malpractice, ERISA and posed under the federal Sentencing Guide- the Second Circuit. From February 1988 until RICO allegations, corporations seeking to lines. I have not retained any notes reflect- February 1989, I served as a law clerk to the set aside excessive damage awards, individ- ing my remarks as one of the panelists in Honorable Anthony M. Kennedy, Associate uals seeking to set aside criminal convic- such bar seminars, nor am I aware of the ex- Justice, United States Supreme Court. tions, and a qui tam relator seeking to sue a istence of any transcript of my remarks. 2. whether you practiced alone, and if so, State of the Union for fraud. In the Spring of 1999, I participated in a de- the addresses and dates; c. 1. Did you appear in court frequently, bate organized by National Public Radio’s I have never practiced alone. occasionally, or not at all? If the frequency Justice Talking on the public policy issues 3. the dates, names and addresses of law of your appearances in court varied, describe raised by a City of Chicago loitering ordi- firms or offices, companies or governmental each such variance, giving dates. nance, which was then under review by the agencies with which you have been con- Both as a governmental lawyer and as a Supreme Court of the United States. See nected, and the nature of your connection lawyer in private practice, I have appeared City of Chicago v. Morales, 527 U.S. 41 (1997). with each; in court frequently. I was asked to participate in that debate be- In addition to the clerkships identified 2. What percentage of these appearances cause I had authored an amicus brief in sup- above, I have been associated or employed by was in: (a) federal courts; (b) state courts of port of Chicago’s position on behalf of the the following firms and agencies: record; (c) other courts? U.S. Conference of Mayors, the National Gibson, Dunn & Crutcher LLP, 1050 Con- The great majority of my court appear- League of Cities, and the National Gov- necticut Avenue, N.W., Suite 900, Wash- ances (approximately 99%) occurred in fed- ernors’ Association. My opponent in that de- ington, D.C. 20036, Of Counsel attorney, July eral court. I have rarely appeared in state bate was Harvey Grossman, the Legal Direc- 1997–December 1999, and Partner, January courts. tor of the American Civil Liberties Union of 2000–present. 3. What percentage of your litigation was: Illinois, who was counsel for the parties who Office of the Solicitor General, United (a) civil; (b) criminal? sought to challenge the Chicago ordinance. States Department of Justice, 950 Pennsyl- Approximately 70% of the litigation I per- The debate was broadcast in the Fall of 1999. vania Avenue, N.W., Washington, D.C. 20530, sonally handled was criminal. The remainder A transcript is attached. Assistant to the Solicitor General, Sept. was civil. 13. Health: What is the present state of 1992–July 1997. 4. State the number of cases in courts of your health? List the date of your last phys- Wachtell, Lipton, Rosen & Katz, 51 West record you tried to verdict or judgment ical examination. 52nd Street, New York, New York 10019, As- (rather than settled), indicating whether you

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.046 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2317 were sole counsel, chief counsel, or associate sonally argued 15 case before the Supreme Opposing counsel: Ann C. German, P.O. counsel. Court. Among the cases I have argued before Box 1530 Libby, Montana 59923; Tel.: (406) 293– I tried approximately ten cases to judg- that court are: 4191. ment while I was a federal prosecutor. I was 2. Stricter v. Greene, 527 U.S. 263 (1999). I 6. Degen v. United States, 517 U.S. 820 chief counsel in four of those, and was sole represented the petitioner, a death row in- (1996). I represented the United States. The counsel in the remainder. mate, in a federal habeas challenge to his petitioner had been indicted on federal nar- 5. What percentage of these trials was: (a) conviction and death sentence. The principal cotics violations and had fled to Switzerland jury; (b) non-jury? issue in the case was whether the prosecu- to avoid prosecution. The issues for the Su- All but one of the cases (approximately tion violated the rule of Brady v. Maryland, preme Court were (i) whether federal courts 90%) were tried to a jury. 373 U.S. 83 (1963), by failing to disclose to de- possess inherent authority to forfeit prop- 18. Litigation: Describe the ten most signifi- fense counsel that a purported eyewitness to erty civilly, without a hearing, when the cant litigated matters which you personally the crime had been repeatedly interviewed party claiming such property is a fugitive handled. Give the citations, if the cases were by the police and had made statements cast- from United States justice, and (ii) whether reported, and the docket number and date if ing doubt on her in-court identification. I such a forfeiture would violate the claim- unreported. Give a capsule summary of the was the principal draftsman of the peti- ant’s due process rights. I was the principal substance of each case. Identify the party or tioner’s merits briefs in the United States draftsman of the government’s brief and also parties whom you represented; describe in Supreme Court, and also argued the case be- argued the case before the Supreme Court. detail the nature of your participation in the fore the Supreme Court. The Supreme Court The Court ruled that federal courts slack in- litigation and the final disposition of the ruled that the evidence was exculpatory herent authority to forfeit a fugitive’s prop- case. Also state as to each case: (a) the date under Brady, but that it was not sufficiently erty. of representation; (b) the name of the court material to create a reasonable probability Opposing counsel: Lawrence S. Robbins, and the name of the judge or judges before of acquittal. Mayer, Brown & Platt, 2000 Pennsylvania Av- whom the case was litigated; and (c) the in- Co-Counsel: Barbara Hartung, 1001 East enue, N.W. Washington, D.C. 2006; Tel.: (202) dividual name, addresses, and telephone Main Street, Richmond Virginia 23219; Tel.: 463–2000. numbers of co-counsel and of principal coun- (804) 649–1088. 7. Citizens Bank of Maryland v. Strumpf, sel for each of the other parties. Opposing counsel: Pamela A. Rumpz, As- 516 U.S. 16 (1996). I argued the case on behalf 1. In re Managed Care Litigation, MDL No. sistant Attorney General, Commonwealth of of United States as amicus curiae in support 1334 (S.D. Fla., Moreno, J.). I am counsel for Virginia, 900 East Main Street, Richmond, of reversal. The issue in this case was wheth- Aetna, Inc. and its healthcare subsidiaries Virginia 23219; Tel.: (804) 786–2071. er the ‘‘automatic stay’’ provisions of the (‘‘Aetna’’) in a series of putative nationwide 3. United States v. Gonzales, 520 U.S. 1 Bankruptcy Code, see 11 U.S.C. § 362, are vio- class actions that have been filed throughout (1997). I represented the United States. The lated when a creditor temporarily withholds issue in the case was whether 18 U.S.C. the United States against Aetna and most payment of a debt that the creditor owes to § 924(c), which provides mandatory sentences members of the managed care industry. The the bankrupt debtor in order to protect the for defendants who use firearms in connec- Judicial Panel on Multidistrict Litigation creditor’s set-off rights. The Supreme Court tion with narcotics crimes or violent offense, has consolidated those cases for coordinated ruled that a creditor in such circumstances permits federal courts to impose a concur- pretrial proceedings in the United States does not violate the Code’s ‘‘automatic stay’’ rent sentence when the defendant already is District Court for the Southern District of provisions. Florida. The suits generally allege that cost- serving a state sentence. I was the draftsman Co-counsel: Irving E. Walker, Miles & containment mechanisms used by Aetna and of the certiorari petition and the petitioner’s Stockbridge, P.C., 10 Light Street, Balti- briefs on the merits, and also argued the case other managed care companies amount to more, Maryland 21202; Tel.: (410) 727–6464. violations of RICO, ERISA and various state before the United States Supreme Court. The Opposing counsel: Roger Schlossberg, 134 laws—because they allegedly provide incen- Supreme Court ruled that Section 924(c) re- West Washington Street, Hagerstown, Mary- tives for physicians to provide deficient med- quires that sentences under that provision land 21740; Tel.: (301) 739–8610. ical care, and thus fraudulently reduce the must be consecutive to any other sentence 8. United States v. Robertson, 514 U.S. 669 value of the insurance coverage purchased by that the defendant might be serving. (1995). I wrote all briefs and argued the case Opposing counsel: (1) Angela Arellanes, 320 subscribers—and they seek billions of dollars on behalf of the United States. The principal Gold Avenue, S.W., Suite 1111, Albuquerque, in damages. I share with one of my partners issues in this case were (i) whether the Rack- New Mexico 87102; Tel.: (505) 247–2417, (2) Ed- the day-to-day supervision of this litigation eteer Influenced and Corrupt Organizations ward Bustamante, 610 Gold Street, S.W., Al- on behalf of Aetna, which is the largest de- Act, 18 U.S.C. § 1961 et seq. reaches the full buquerque, New Mexico 87102; Tel.: (505) 842– extent of conduct that Congress could con- fendant. In that connection, I have been re- 9093, and (3) Roberto Albertorio, One Civic ceivably regulate under the Commerce sponsible for developing our client’s legal Plaza, Room 4030, Albuquerque, New Mexico Clause of the U.S. Constitution, and (ii) strategy, preparing all briefs in the case, and 87102; Tel.: (505) 924–3917. arguing dispositive motions. 4. Old Chief v. United States, 519 U.S. 172 whether the evidence in the case satisfied Opposing Counsel: Jerome Marcus, Berger (1997). I argued the case before the United the statute’s ‘‘interstate commerce’’ require- & Montague, 1622 Locust Street, Philadel- States. The issue for the Court was whether ment. The Court ruled that the evidence sub- phia, PA 19103; Tel.: (215) 875–3013. a criminal defendant may ever prevent the mitted by the government—including evi- Co-counsel: (1) Richard Doren, Gibson, government from introducing evidence of a dence that the defendant shipped materials Dunn & Crutcher, 333 South Grand Avenue, fact relevant to the prosecution’s case by from California to Alaska—satisfied the Los Angeles, California 90071; Tel.: (213) 229– stipulating to the existence of that fact. The statutory and constitutional requirements. 7038 (co-counsel for Aetna); (2) John D. Supreme Court ruled that a criminal defend- Opposing counsel (last known address and Aldock, Shea & Gardner, 1800 Massachusetts ant may, in some circumstances, keep the telephone number): Glenn Stewart Warren, Avenue, N.W., Suite 800, Washington, D.C. government from introducing evidence of the 2442 Fourth Avenue, San Diego, California 20036; Tel.: (202) 828–2140 (counsel for Pruden- defendant’s prior conviction if the defendant 92101; Tel.: (619) 232–6052. tial); (3) Brian D. Boyle, O’Melveny & Myers, offers to stipulate before the jury that he is 9. United States v. Mezzanatto, 513 U.S. 196 LLP, 555 13th Street, N.W., Washington, D.C. indeed a felon. (1995). I wrote the briefs and argued the case 20004; Tel.: (202) 383–5263 (counsel for Opposing counsel: Daniel Donovan, Federal on behalf of the United States. In order to Humana); (4) Edward M. Crane, Skadden Defenders of Montana, 9 Third Street North, induce the prosecutor to engage in plea nego- Arps Slate Meagher & Flom, LLP, 333 West Great Falls, Montana 59403; Tel.: (406) 727– tiations, the defendant in this case had Wacker, Suite 2100, Chicago, Illinois 60606: 5328. agreed to waive the protections of Fed. R. Tel.: (312) 407–0522 (counsel for Foundation 5. Montana v. Eglehoff, 518 U.S. 37 (1996). I Evid. 410, which ordinarily render all evi- Health Systems); (5) Robert Denham, Powell, represented the United States as amicus cu- dence of plea negotiations inadmissible in Goldstein, Frazer & Murphy LLP, 191 Peach- riae in support of the position of the State of court. The defendant later changed his mind, tree Street, N.E., 16th Floor, Atlanta, Geor- Montana. The issue in the case was whether and testified at trial to a story that was in- gia 30303; Tel.: (404) 572–6940 (counsel for Cov- the Due Process Clause of the Fourteenth consistent with what he had told the pros- entry); (6) William E. Grauer, Cooley Amendment, invalidates state legislation ecutor. In reliance on the defendant’s agree- Godward LLP, 4365 Executive Drive, Suite that renders any evidence of involuntary in- ment, the trial court permitted the pros- 1100, San Diego, California; Tel.: (858) 550– toxication irrelevant and inadmissible in a ecutor to impeach the defendant with his 6050 (counsel for PacificCare); (7) John G. prosecution for intentional homicide. I was prior inconsistent statements. The U.S. Harkins, Jr., Harkins Cunningham, 2800 One the draftsman of the United States’ brief, Court of Appeals for the Ninth Circuit re- Commerce Square, 2005 Market Street, and also presented argument before the versed, ruling that the rules of evidence—in- Philadelphia, Pennsylvania 19103; Tel.: (215) United States Supreme Court in support of cluding Rule 410—may never be waived by 851–6701 (counsel for CIGNA); and (8) Jeffrey Montana position. By a vote of 5 to 4, the agreement of the parties. The Supreme Court S. Klein, Weil, Gotshal & Manges, 767 Fifth Court upheld the constitutionality of the granted certiorari to review that conclusion, Avenue, New York, New York 10153; Tel.: statute. and, after briefing and argument, reversed (212) 310–8790 (counsel for United Healthcare) Co-counsel: Pamela P. Collins, Assistant the Ninth Circuit’s ruling. The Supreme I have also briefed numerous cases in the Attorney General, Justice Building, 215 Court held that rules of evidence, like most federal courts of appeals and in the Supreme North Sanders, Helena, Montana 59620; Tel.: rights conferred by statute, may be waived Court of the United States, and I have per- (406) 444–2026. by agreement of the parties.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.047 S12PT2 S2318 CONGRESSIONAL RECORD — SENATE February 12, 2003 Opposing counsel: Mark R. Lippman, 8070 with or without compensation, during your states that it is inappropriate for a judge to La Jolla Shores Drive, La Jolla, California service with the court? If so, explain. hold membership in any organization that 92037; Tel.: (858) 456–5840. No. invidiously discriminates on the basis of 10. National Organization for Women, Inc. 4. List sources and amounts of all income race, sex, or religion. Do you currently be- v. Scheidler, 510 U.S. 249 (1994). I wrote the received during the calendar year preceding long, or have you belonged, to any organiza- briefs and argued the case on behalf of the your nomination and for the current cal- tion which discriminates—through either United States as amicus curiae in support of endar year, including all salaries, fees, divi- formal membership requirements or the petitioner. The issue in the case was whether dends, interest, gifts, rents, royalties, pat- practical implementation of membership the Racketeer Influenced and Corrupt Orga- ents, honoraria, and other items exceeding policies? If so, list, with dates of member- nizations Act, 18 U.S.C. § 1961 et seq. incor- $500 or more. (If you prefer to do so, copies of ship. What you have done to try to change porates a ‘‘pecuniary purpose’’ requirement the financial disclosure report, required by these policies? for liability, so that only criminal enter- the Ethics in Government Act of 1978, may I do not currently belong, nor have I ever prises that violate RICO for mercenary rea- be substituted here.) belonged, to any organization that discrimi- sons would be liable civilly or criminally. Please refer to my Ethics in Government nates in any way on the basis of race, sex, or (That interpretation of RICO had originated Act report. religion. with the U.S. Court of Appeals for the Sec- 5. Please complete the attached financial 3. Is there a selection commission in your ond Circuit, which had reversed the criminal net worth statement in detail. (Add sched- jurisdiction to recommend candidates for convictions of several Croatian terrorists ules as called for.) nomination to the federal courts? If so, did it who engaged in multiple bombings and ar- Please refer to attached statement. recommend your nomination? Please de- sons for ‘‘ideological’’ reasons related to 6. Have you ever held a position or played scribe your experience in the entire judicial their desire to achieve independence for a role in a political campaign? If so, please selection process, from beginning to end (in- their homeland). The Supreme Court unani- identify the particulars of the campaign, in- cluding the circumstances which led to your mously held that RICO does not embody a cluding the candidate, dates of the cam- nomination and interviews in which you par- ‘‘pecuniary purpose’’ requirement. paign, your title and responsibilities. ticipated). Co-counsel: Fay Clayton, Robinson, Curley I have never played any role in any polit- There is no selection commission that rec- & Clayton, P.C., 300 South Wacker Drive, ical campaign. ommends candidates for nomination to the Suite 1700, Chicago, Illinois 60606; Tel.: (312) III. GENERAL (PUBLIC) United States Court of Appeals for the Dis- 663–3100. 1. An ethical consideration under Canon 2 trict of Columbia Circuit. Attorneys from Opposing counsel: G. Robert Blakey, Notre of the American Bar Association’s Code of the White House Counsel’s Office asked me Dame Law School, Notre Dame, IN 46556; Professional Responsibility calls for ‘‘every to interview for the position. I was inter- Tel.: (219) 231–6371. lawyer, regardless of professional promi- 19. Legal Activities: Describe the most sig- viewed once by two White House attorneys. I nence or professional workload, to find some was later informed that I was likely to be nificant legal activities you have pursued, time to participate in serving the disadvan- including significant litigation which did not nominated for the position. I was nominated taged.’’ Describe what you have done to ful- on May 9, 2001. progress to trial or legal matters that did fill these responsibilities, listing specific in- not involve litigation. Describe the nature of 4. Has anyone involved in the process of se- stances and the amount of time devoted to lecting you as a judicial nominee discussed your participation in this question, please each. omit any information protected by the attor- with you any specific case, legal issue or The bulk of my legal career has been in the question in a manner that could reasonably ney-client privilege (unless the privilege has public sector, but I have consistently de- been waived). be interpreted as asking how you would rule voted time to pro bono obligations while on such case, issue, or question? If so, please In addition to the litigation described working in private practice. During my first above, my practice has included preparing explain fully. stint in private practice (at Wachtell, No. for civil litigation that did not proceed to Lipton), I accepted an appointment to rep- trial or that was settled during trial; han- 5. Please discuss your view on the fol- resent an incarcerated defendant who was lowing criticism involving ‘‘judicial activ- dling an international contract dispute that seeking habeas relief from his state convic- arose out of the privatization of oil fields ism’’: The role of the Federal judiciary with- tion. I wrote all appellate briefs and argued and refineries in a central Asian republic (I in the Federal government, and within soci- the case before the United States Court of and one of my partners represented our cli- ety generally, has become the subject of in- Appeals for the Second Circuit. See ent in the arbitration of that contract dis- creasing controversy in recent years. It has Campaneria v. Reid, 891 F.2d 1014 (2d Cir. pute, which was conducted under UNCITRAL become a target of both popular and aca- 1989). The amount of time devoted to this rules); advising clients conducting internal demic criticism that alleges that the judicial matter was approximately 300 hours. corporate investigations into possible viola- branch has usurped many of the prerogatives Since returning to private practice (at Gib- tions of federal criminal law; and briefing of other branches and levels of government. son Dunn), my pro bono activities have in- and/or arguing appeals in civil and criminal Some of the characteristics of this ‘‘judicial cluded: cases. activism’’ have been said to include: (a) a a. Writing an amicus curiae brief on behalf II. FINANCIAL DATA AND CONFLICT OF tendency by the judiciary toward problem- INTEREST (PUBLIC) of the U.S. Conference of Mayors, the Na- solution rather than grievance-resolution; 1. List sources, amounts and dates of all tional League of Cities and the National (b) a tendency by the judiciary to employ the anticipated receipts from deferred income Governors’ Association in City of Chicago v. individual plaintiff as a vehicle for the impo- arrangements, stock, options, uncompleted Morales, 527 U.S. 41 (1997). Morales was a sition of far-reaching orders extending to contracts and other future benefits which constitutional challenge to a Chicago ordi- broad classes of individuals; (c) a tendency you expect to be derived from previous busi- nance that made it unlawful for members of by the judiciary to impose broad, affirmative ness relationships, professional services, street gangs to loiter in public spaces. The duties upon governments and society; (d) a firm memberships, former employers, cli- amicus brief, to which I devoted approxi- tendency by the judiciary toward loosening ents, or customers. Please describe the ar- mately 120 hours, supported the arguments jurisdictional requirements such as standing rangements you have made to be com- made by the City of Chicago. and ripeness; and (e) a tendency by the judi- b. Representing a death row inmate in a pensated in the future for any financial or ciary to impose itself upon other institutions challenge to his conviction and sentence. See business interest. in the manner of an administrator with con- Strickler v. Greene, 527 U.S. 263 (1999). I was I do not expect to have any deferred in- tinuing oversight responsibilities. the principal draftsman of petitioner’s Su- come or other benefits from any previous In my view, federal judges may decide only preme Court briefs on the merits and argued business relationships or employment. If I concrete cases or controversies that properly the case on his behalf in the Supreme Court. am confirmed, my law firm has agreed to pay come to them; they may not ‘‘make law’’ or I devoted approximately 450 hours to this out my capital, together with my annualized reach beyond the facts and circumstances of representation. share of the firm’s income for the current the particular case they must decide. That c. Representing the City of Annapolis, year, in cash at the time I resign my part- limited judicial role flows from the text of Maryland in defending the City’s loitering nership to begin judicial service. the Constitution, the separation of powers ordinance—which prohibits loitering with 2. Explain how you will resolve any poten- inherent in our constitutional scheme, the the intent to engage in drug dealing—from tial conflict of interest, including the proce- federal-state balance, and the presumption constitutional attack. See N.A.A.C.P., Anne dure you will follow in determining these of validity that generally attaches to legisla- Arundel County Branch v. City of Annapolis, areas of concern. Identify the categories of tive actions. litigation and financial arrangements that Civ. No CCB–00–771 (D. Md). I have devoted are likely to present potential conflicts-of- approximately 120 hours to that representa- FINANCIAL STATEMENT NET WORTH interest during your initial service in the po- tion. In April 2001, after the district court Provide a complete, current financial net sition to which you have been nominated. issued a ruling invalidating the ordinance, worth statement which itemizes in detail all I will follow the dictates of the Code of Ju- the City of Annapolis determined not to fur- assets (including bank accounts, real estate, dicial Conduct and the provisions of applica- ther defend the constitutionality of the ordi- securities, trusts, investments, and other fi- ble recusal laws, such as 28 U.S.C. § 455. nance. nancial holdings) all liabilities (including 3. Do you have any plans, commitments, or 2. The American Bar Association’s Com- debts, mortgages, loans, and other financial agreements to pursue outside employment, mentary to its Code of Judicial Conduct obligations) of yourself, your spouse, and

VerDate Jan 31 2003 01:00 Feb 14, 2003 Jkt 019060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.048 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2319 other immediate members of your house- er LLP, has agreed to pay my share of the Mr. HATCH. I respect the Senator, hold. firm’s capital and insurance reserve in cash anyway. ASSETS promptly after the resignation from the Mr. REID. I ask the distinguished partnership. The firm has also agreed to pay Cash on hand and in banks ...... $73K Senator from Utah, we are here. It is me, at the same time and also in cash, my U.S. Government securities—add now 10:30 at night. annualized share of the firm’s income for the schedule (savings bonds) ...... 12K We have an agenda with people who current year, computed on the basis of the Listed securities—add schedule ...... 0 per-share income earned by the firm during are going to be covering the floor for Unlisted securities—add schedule ...... 0 us. But I ask the Senator, because we Accounts and notes receivable: ...... 0 the year 2000. IX. CERTIFICATION. have other people on the floor: How Due from relatives and friends ...... 0 I certify that all information given above much longer does he think he is going Due from others ...... 0 (including information pertaining to my Doubtful ...... 0 to want to take tonight on this matter, spouse and minor or dependent children, if Real estate owned—add schedule 1105 just so my colleagues over here know. any) is accurate, true, and complete to the Prince St., Alex., VA ...... 575K Obviously the Senator knows. He best of my knowledge and belief, and that Real estate mortgages receivable ...... 0 any information not reported was withheld knows a little more than I know be- Autos and other personal property .... 120 because it met applicable statutory provi- cause it seems to be thinning out a lit- Cash value—life insurance ...... 0 sions permitting non-disclosure. tle bit here. Can the Senator inform Other assets—itemize: ...... I further certify that earned income from the Senate—especially this Senator—as IRAs, 401(k), and KEOGH Plans ...... 164K outside employment and honoraria and the Total Assets ...... 824K to how much longer we are going to go acceptance of gifts which have been reported tonight? CONTINGENT LIABILITIES are in compliance with the provisions of 5 Mr. HATCH. I am not quite sure. I As endorser, comaker or guarantor ... 0 U.S.C. app. § 501 et. seq., 5 U.S.C. § 7353 and have a statement to make, and I want On leases or contracts ...... 0 Judicial Conference regulations. to get that in the RECORD. I would like Legal Claims ...... 0 Mr. REID. Will the Senator from Provision for Federal Income Tax ..... 0 to take any questions my colleagues Utah yield for a question? have on either side of the aisle. This is Other special debt ...... 0 Mr. SESSIONS. Will the Senator an important issue. So it is 10:30 at LIABILITIES yield? night. It is nothing to me. I am fight- Notes payable to banks—secured ...... 0 Mr. HATCH. Let me yield first to the ing for Miguel Estrada. Notes payable to banks—unsecured ... 0 distinguished Senator from Alabama Mr. REID. Will the Senator yield for Notes payable to relatives ...... 0 and then I will be happy to yield to my one final question? Notes payable to others ...... 0 friend from Nevada without losing my Accounts and bills due ...... 0 Mr. HATCH. Sure, without losing my Unpaid income tax ...... 0 right to the floor. right to the floor. Other unpaid tax and interest ...... 0 Mr. SESSIONS. I will ask the distin- Mr. REID. I understand the impor- Real estate mortgages payable— guished chairman of the Judiciary tance of this nomination. I know the schedule (schedule attached ...... 386K Committee, who has been involved in Senator believes I understand its im- Chattel mortgages and other liens these matters for so many years, aren’t portance. I am not in any way deni- payable ...... 0 we confusing here home State Sen- grating or trying to stop anyone from Other debts—itemize ...... ators’ objections with a filibuster? And DOJ TSP Loan ...... 19K speaking tonight. I only would ask if isn’t it true that, to this very day, real- the Senator would give us some general Mastercard ...... 10K ly earlier in this year, the Democratic American Express ...... 10K idea as to whether we are going to be Student Loan ...... 21K Senators on the Judiciary Committee here all night or another hour or two Total liabilities ...... 446K virtually demanded home State Sen- hours. Can the Senator give us any in- Net Worth ...... 378K ators be given even more power to dication? Total liabilities and net worth ...... block nominees than in the past? Mr. HATCH. I am prepared to be here GENERAL INFORMATION Mr. HATCH. I believe there have been all night, if that is what it takes. I do Are any assets pledged? (Add sched- some demands that have been far in ex- not want to foreclose any questions ule.) ...... 0 cess of what has been allowed by their from my colleagues. I don’t know how Are you defendant in any suits or own chairmen in the past, especially many questions there will be. But I am legal actions? ...... 0 Chairman KENNEDY and Chairman here to answer them, and I would like Have you ever taken bankruptcy? ..... No BIDEN. I think the Senator states it to make a statement for the RECORD MIGUEL A. ESTRADA MORTGAGES correctly. before we finish. I will try to expedite 1. Temple-Island Mortgage Corporation Mr. SESSIONS. My second question, that, if I can. (first mortgage on residence) $256,000. Mr. President, would be: The point is The PRESIDING OFFICER. The Sen- 2. Bank of America (line of credit secured there has been no movement from the ator from Oklahoma. by second mortgage on residence) $130,000, other side to change the basic tradi- Mr. INHOFE. Mr. President, I have Total $386,000. tional view of the power of home State been listening to these brilliant legal FINANCIAL DISCLOSURE REPORT FOR Senators to object. In fact, they affirm NOMINEES minds asking questions. I. POSITIONS. Partner, Gibson, Dunn & that and insist they should be given Mr. REID. Mr. President, does the Crutcher LLP; Trustee, Supreme Court His- that, and even expand it. Senator from Oklahoma have the floor? torical Society; Director, Center for Commu- Mr. HATCH. I think the Senator is Mr. INHOFE. Yes. nity Interest. correct. The PRESIDING OFFICER. The Sen- II. AGREEMENTS. 2001 Termination of I said I would yield to the distin- ator from Utah has the floor. Partnership Agreement. guished Senator from Nevada. Mr. HATCH. I yield for a question. III. NON-INVESTMENT INCOME 1999 Gib- Mr. REID. Without the Senator los- Mr. INHOFE. I thank the Senator son, Dunn & Crutcher LLP, $301,000; 2000 Gib- ing his right to the floor, I attempted from Utah. son, Dunn & Crutcher LLP $510,000; 1999 De- 20 minutes or so ago to add a little lev- I was trying to get across with just a partment of Justice (attorney); 2000 Depart- ity to this debate, indicating the dis- prelude, if you will accept that. There ment of Justice (attorney). are several of us here who are not at- VI. LIABILITIES—American Express, tinguished Senator from Utah is aware Citibank MasterCard, Alabama Comm’n on I attempted to add a little levity by torneys and who are certainly not Higher Education. suggesting you had joined in the fili- great legal minds. As we look at this, I VII. Page 1 INVESTMENTS and TRUSTS— buster. That didn’t go over. It wasn’t recall, though, another hearing, the or- income, value, transactions: Solomon Smith very funny, as I learned very quickly. igin of filibuster dealing back with the Barney Money Market Fund; Citibank Ac- Mr. HATCH. It wasn’t very funny, days of civil rights. And what comes to counts America’s First Federal; Credit Union but I appreciate the Senator trying to my mind is, as I have been listening to Savings Accts; Vanguard 500 Index Fund; interject levity. We could use maybe a these questions being asked and the ob- Dreyfus S&P 500 Index Fund; SouthTrust jections to Miguel Estrada by the mi- Bank Account. little bit around here, but this is a VIII. ADDITIONAL INFORMATION OR tough issue and we are all upset. nority—correct me if I am wrong—that EXPLANATIONS Mr. REID. It should be a little more the filibuster was created and main- Part II (Agreements): In the event I am con- humorous, obviously, than I was able tained for some civil rights legislation firmed, my law firm, Gibson, Dunn & Crutch- to provide. in the first place. Is that correct?

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.050 S12PT2 S2320 CONGRESSIONAL RECORD — SENATE February 12, 2003 Mr. HATCH. That is generally the Mr. GRAHAM of South Carolina. It is Mr. GRAHAM of South Carolina. Will viewpoint around here. my understanding one of the attacks is the Senator agree that for any conserv- Mr. INHOFE. Will the Senator share Mr. Estrada is in fact a rightwing ative to be able to work for the Clinton with those of us who are not attorneys ideolog who may use his political phi- administration and do well shows a tre- the origin for filibuster? losophy to shape the law in an unfair mendous amount of tolerance? Mr. HATCH. The filibuster comes way. Is that correct? Mr. HATCH. I certainly agree with from the word filibustero, which is Mr. HATCH. I suspect that is what is that. Mr. Waxman, who is a highly re- Spanish. It is a word for pirating, by worrying people on the other side. garded and respected lawyer, was the taking improper control, in this case of Mr. GRAHAM of South Carolina. Is Solicitor General—one of them. Mr. the Senate. I hope I am saying that my understanding correct that it is not Estrada worked under three Democrat right. I think I am pretty close. only the Senator’s suspicion, but they Solicitors General who saw his work Mr. INHOFE. I thank the Senator. have actually said that? People on the product. Mr. Waxman is highly re- The PRESIDING OFFICER. The Sen- other side have said one of the con- spected. I doubt he would put his rep- ator from Missouri. cerns they have about this gentleman utation on the line, as he did, by Mr. TALENT. Mr. President, will the is they are suspicious of his ideology vouching for Mr. Estrada if he were not Senator yield for a question? and that he may be inflexible in apply- absolutely convinced he would be a fair Mr. HATCH. Without losing my right ing the law in a fair way. Is that cor- and unbiased Federal judge. That is to the floor. rect? none other than Seth Waxman, the So- Mr. TALENT. I wonder if my col- Mr. HATCH. My colleagues on the licitor General in the Clinton adminis- league read the statement by former other side who don’t know Miguel tration. Congressman Herman Badillo from Estrada—there is only one person who I don’t understand all this argument New York who called the opposition to has given their criticism, and that was by the other side and why a filibuster block Mr. Estrada ‘‘grandstanding’’ Professor Bender from Arizona State of this highly qualified person who has and ‘‘this treatment of Mr. Estrada is University who I think has more than the highest rating of the American Bar demeaning and unfair not only to the been rebutted here on the floor. Association, their gold standard. I have Mr. GRAHAM of South Carolina. nominee but the confirmation process to say I have to admit it is a good Along those lines, if the Senator will and the integrity of the Senate.’’ standard at this point, too. They are continue to yield. I wonder if my colleague believes doing a fair job. It isn’t just because of Mr. HATCH. Could I take a moment that is a pretty remarkable statement Mr. Estrada I say that. I have been say- to read a few paragraphs from the coming from a former Democratic ing it for a couple of years. But one White House letter responding to the Member of Congress about the opposi- time I wasn’t very pleased with it. Senate Democrats’ continuing action tion being mounted to a fellow His- Mr. ENZI. Mr. President, will the here on the notion that Mr. Estrada did panic. Senator from Utah yield for a ques- not answer questions of the Members? Mr. HATCH. I did read the quote in tion? When asked by Senator EDWARDS the Wall Street Journal, and I thought Mr. HATCH. Without losing my right it was a tremendous article. It was about judicial review, Mr. Estrada an- swered: to the floor. written by the former Democratic Con- Mr. ENZI. In the Senator’s 27 years gressman from the State of New York. Courts take the laws that have been passed by you and give you the benefit of under- serving in this body, has the Senator I was privileged to hear Congressman standing that you take the same oath that seen anything that has progressed on a Badillo the other day at our press con- they do to uphold the Constitution. And, judicial nomination the way this nomi- ference when the Hispanic community therefore, they take the laws with the pre- nation has, and does he have any con- came together to decry what is going sumption that they are constitutional. It is cern this may be setting a precedent? on against Miguel Estrada. He made the affirmative burden of the plaintiff to Mr. HATCH. There is no question one of the most profound and strong show that you have gone beyond your oath. that this is setting a precedent. In re- statements at that press conference. I If they come into court, then it is appro- sponse to my colleague’s very impor- have nothing but respect for him. I re- priate for courts to undertake to listen to tant question, this is a very terrible the legal arguments, which is that the legis- spected him when he was in Congress, lature went beyond its role as a legislature precedent because if the Democrats and he certainly has been speaking up, and invaded the Constitution. succeed in filibustering the first His- and he is a Democrat. That is a deliberative and very im- panic judge nominee to the Circuit But he is not the only Democrat. portant answer to questions they claim Court of Appeals of the District of Co- Seth Waxman is one of the all time he never answered. lumbia—the first filibuster in the his- great Solicitors General—wonderful Mr. GRAHAM of South Carolina. Will tory of the country, a true filibuster, Democrat attorney who I happen to the Senator continue to yield for one then Katy bar the door. I remember have a lot of respect for. He has spoken more question? there were some on our side who want- up for Miguel Estrada as have so many Mr. HATCH. I would be delighted to, ed to filibuster, and cooler minds took other colleagues at the Solicitor Gen- without losing my right to the floor. over and said, We are not going to do eral’s Office. But Mr. Badillo very firm- Mr. GRAHAM of South Carolina. that. First of all, we think it is wrong. ly feels this is an injustice, that it is a Would the Senator agree with me that Second, we think it is unconstitu- double standard, that this is prejudice if one of the really serious questions tional to do it. against this nominee. I can’t speak for about whether or not this man is a Third, it isn’t fair to the President, him, but this is what I got out of his rightwing ideolog who couldn’t shape to the Senate, to the nominee, nor to remarks and out of his article; and the law in a proper fashion—that any the process. It isn’t fair. And that is that there is no justification whatso- rightwing ideolog would have a very the position we took. ever in fighting against Miguel difficult time working for the Clinton And now we have what I consider to Estrada, and absolutely no justifica- administration? Would you agree with be a very unfair process, for no good tion in conducting the first filibuster me about that concept? reason, because I have not heard one in the history of the country against a Mr. HATCH. That was my experience substantive argument against Miguel circuit court of appeals nominee. with the Clinton administration. I Estrada, not one in all of this debate, I have to say I was very impressed don’t know of any rightwing other than: We didn’t like his answers. with his article, and I appreciate the ideolog—— Well, that is tough. Vote against him if Senator reading from it. Mr. GRAHAM of South Carolina. Did you don’t like his answers. That is The PRESIDING OFFICER. The Sen- this gentleman in fact work for the your right. Some of our people voted ator from South Carolina. Clinton administration? against some of their judges because Mr. GRAHAM of South Carolina. Mr. Mr. HATCH. He did, indeed, and he they did not like their answers. That is President, will the Senator yield for a received rave reviews for his work at OK. It is honorable. question? the Solicitor General’s Office in the But do not filibuster a circuit court Mr. HATCH. I am delighted to, with- Clinton administration by a Democrat of appeals nominee or a Federal judge out losing my right to the floor. Solicitor General. of any stature.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.193 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2321 Mr. SANTORUM. Mr. President, will acted reprehensibly under the cir- duced any information or any informa- the Senator from Utah yield for a ques- cumstances. tion has been produced that shows that tion? Mr. SANTORUM. So, Mr. President, his principles or ideology are outside of Mr. HATCH. Without losing my right if the Senator will yield for just a the mainstream? Has any evidence to the floor. clarifying question. been produced to that effect? Mr. SANTORUM. Mr. President, has Mr. HATCH. Without losing my right Mr. HATCH. Absolutely none. And any Member of the Senate questioned to the floor. that is one reason it is a fishing expedi- the nominee’s intelligence? Mr. SANTORUM. What I understand tion—because they want to see if they Mr. HATCH. Not one. Nobody could. the Senator from Utah is saying is that can find something for which they can We know how bright he is. on every quality by which judicial criticize him. But not only did they Mr. SANTORUM. And has any person nominees are judged traditionally here wait 615 days to hold a hearing—which questioned his temperament? in the Senate, on every single one of they controlled, they chaired, they Mr. HATCH. Yes, Paul Bender has. those qualities, he has either had no questioned—but they also allowed for But he—— argument from the other side that he written questions afterwards. And only Mr. SANTORUM. Has any Member of does not meet those standards or, in two of them—the Senator from Illinois the Senate questioned his tempera- many cases, he has exceeded those and the Senator from Massachusetts— ment? standards, except in one case with re- prepared written questions for him, Mr. HATCH. There have been some spect to judicial temperament. In that which he answered, which we put into who have been concerned about that case, we have the person who makes the RECORD today. because of Mr. Bender’s comments. But those claims having written contem- Frankly, I do not know of anyone Mr. Bender, when he was his supervisor poraneous reports that rebut his own who could point out any defect in this at the Department of Justice, gave him later testimony, and the supervisor re- man’s character and his ability to be a rave reviews in all categories. butting that testimony. So other than great circuit court of appeals judge. Now, I think the contemporaneous that one case, on all of the other quali- Mr. SCHUMER. Will my colleague rave reviews, which Mr. Bender tries to ties by which we are to judge a can- yield? get out of now, should take precedence didate here, there is no argument Mr. INHOFE. Will my colleague over his partisan comments made long about his qualifications? yield? after the fact. Mr. HATCH. That is right. By the Mr. HATCH. To further answer that Mr. SANTORUM. Will the Senator way, when the ABA does its review, it question, I would like to read from the yield for a further question? is looking for every one of those quali- letter the White House just sent up Mr. HATCH. Without losing my right ties. It is looking for people who would here today: to the floor. rebut those qualities. It is looking for In some recent hearings, including Mr. Mr. SANTORUM. I ask the Senator people who both support him and are Estrada’s, Senator Schumer has asked that from Utah, what is generally the stand- opposed to him. It is looking for people nominees identify particular Supreme Court ard by which the Senate is to analyze who say he does not have the right cases of the last few decades—— nominees and pass judgment on them? temperament, or he does not have the I think the correct reference was to What are the qualities and characteris- right intelligence, or he does not have the last 40 years, although I have heard tics of a nominee that are the tradi- the right integrity, or he does not have Senator after Senator on the other side tional areas by which individuals who the right health. The ABA goes into all talk about the whole jurisprudence of have been nominated are judged? of that. So does the administration. the country, even though the question Mr. HATCH. Well, for a Federal cir- And so do we as Senators if we want to. is referring to the last 40 years. But: cuit court nominee, it would be hon- In this particular case, virtually ev- In some recent hearings, including Mr. esty, integrity, temperament, physical erybody who worked with him gives Estrada’s, Senator Schumer has asked that capacity—or ability to work—but, in him high raves. nominees identify particular Supreme Court addition, an FBI report that is favor- Mr. SANTORUM. Mr. President, if cases of the last few decades with which they able, and an ABA rating, that isn’t nec- the Senator will yield for an additional disagree. But the problems with such a ques- essarily followed but, nonetheless, is question. tion and answer were well stated by Justice helpful if it is favorable. And in this Mr. HATCH. Without losing my right Stephen Breyer. case it is not only favorable, but it is to the floor. Of course, Justice Breyer is a Demo- the highest rating they could possibly Mr. SANTORUM. Given that he is crat, and he is now sitting on the Su- give. And there are other legitimate qualified on all of those grounds, one is preme Court. considerations, but all of them he has left with the possibility that he may be The White House letter goes on: passed. objected to because of his ideological As Justice Breyer put it, ‘‘Until [an issue] Mr. SANTORUM. Further, I guess the position. Has any comment been made comes up, I don’t really think it through question I have is, other than Mr. or any evidence been produced by any with the depth that it would require . . . so Bender’s comment, which came well Senator that his ideology is out of the often, when you decide a matter for real, in after the fact and does not comport mainstream of traditional jurispru- a court or elsewhere, it turns out to be very different after you’ve become informed and with his contemporaneous reports— dence in any of the activities in which think it through for real than what you other than that one particular state- he has been involved? would have said at a cocktail party answer- ment—of all the qualifications that are Mr. HATCH. I am not aware of any- ing a question.’’ traditionally used by Members of the one. I have heard remarks on the floor Senator Schumer also has asked nominees Senate to evaluate nominees for judi- by colleagues on the other side that how they would have ruled in particular Su- cial positions, circuit court positions, they are concerned he may not uphold preme Court cases. Again, a double standard has any Member of the Senate ques- all of their believed decisions. But he is being applied. The nominees of President tioned any of those qualities? has said he would uphold precedent, Clinton did not answer such questions. For Mr. HATCH. Not really. Not really. example, Richard Tallman, a nominee with that he would abide by the law as no prior judicial service who now serves on Not really, other than some who relied enunciated by the Supreme Court, and the Ninth Circuit, not only would not answer on Mr. Bender’s comments. And I that he would examine everything as how he would have ruled as a judge in Roe v. might add that Mr. Bender worked for thoroughly as he could, do the very Wade—but even how he would have ruled in Seth Waxman, who rebutted what Mr. best job he could to be fair. He has said Plessy v. Ferguson, the infamous case that Bender said, and put his reputation on exactly the right things you would upheld the discredited and shameful ‘‘sepa- the line as a Democrat former Solicitor want a circuit court nominee to say. rate but equal’’ doctrine. So, too, in the General, and speaks very favorably on Mr. SANTORUM. Mr. President, if hearing on President Clinton’s nomination of all of those issues with regard to Mr. the Senator would yield for an addi- Judges Barry and Fisher, Senator Smith asked whether the nominees would have Estrada. tional question, I would just ask that voted for a constitutional right to abortion I would certainly give much more to be clarified. Has the other side pro- before Roe v. Wade. Chairman Hatch inter- credibility to Mr. Waxman than I duced any evidence that, in the history rupted Senator Smith to say ‘‘that is not a would to Mr. Bender, who I think has of this nominee as a lawyer, he has pro- fair question to these two nominees because

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.196 S12PT2 S2322 CONGRESSIONAL RECORD — SENATE February 12, 2003 regardless of what happened pre-1973, they the court because not only has he ar- screening process, and she was ap- have to abide by what has happened post-1973 gued before the Supreme Court, he was pointed to the State trial bench. and the current precedents that the Supreme a clerk at the Supreme Court. He Mr. SANTORUM. Regular order. Court has.’’ knows how the Court works. He knows Mr. SCHUMER. My question is, did In other words, I corrected a member how it moves, thinks, and breathes. my good friend from Utah not say of my party on the committee for ask- Yet he is being mistreated here. Why about Judge Barkett: ing that question of a Clinton nominee. the double standard? I can only think I led the fight to oppose [Judge Rosemary I hate to say it, but Miguel Estrada of one, and that is, they don’t like Barkett’s] confirmation . . . because [her] has answered their questions. He just what they think his philosophy is. judicial records indicated she would be an hasn’t answered them the way they They don’t like the fact that a Repub- activist who would legislate from the bench? wanted because they haven’t been able lican President has supported him and Why is that any different than people to find any real defects in the answers has nominated him. They don’t like on this side opposing Miguel Estrada he has given. the fact that he is a Hispanic conserv- because he might be a judicial activist The PRESIDING OFFICER. The Sen- ative Republican. They are afraid that who would legislate from the bench? ator from Tennessee. because he is a Hispanic conservative Why is my colleague accusing some Mr. ALEXANDER. Mr. President, Republican, he might upset the balance on this side of being anti-Hispanic will the Senator from Utah yield for a on this court. And on this court, over when he opposed a Hispanic judge simi- question? 90 percent of the cases are unanimously larly rising through the ranks because Mr. HATCH. Without losing my right decided. he disagreed with her philosophy? to the floor. I can tell you, all of their fears are I yield to my colleague for an answer Mr. ALEXANDER. Is the Senator unjustified. They are incredible the to that question. from Utah aware that the following Su- way they are being made. And they Mr. HATCH. I am happy to have the preme Court Justices had no prior judi- are, most importantly, unfair criti- question from my dear colleague from cial experience: Harlan Fiske Stone, cisms—most importantly, unfair. That New York. No. 1, I didn’t know she was Louis Brandeis, Hugo Black, and Wil- is what bothers me. Why can’t we be Hispanic. That is irrelevant to me any- liam O. Douglas? fair to this Hispanic nominee who has way. I didn’t know that. And if she is, Mr. HATCH. All giants of the law and fought so hard to be part of the Amer- I didn’t know it until today. No. 2, I did none of whom had prior judicial experi- ican dream and has earned a right? read her judicial records. She was an ence. Why can’t we be fair to him? What is activist. I did vote against her. But Mr. ALEXANDER. Will the Senator wrong over here? What is wrong? there is a difference here: I voted. I al- yield for a further question? Not only is he a Hispanic nominee, a lowed you to have a vote. We had a Mr. HATCH. Yes. Republican, appointed by this Presi- vote, and she is now sitting on the Mr. ALEXANDER. Is the Senator dent, whom I can see some of my col- court. aware that Felix Frankfurter and Earl leagues don’t like. I can accept that. Mr. SCHUMER. Will my colleague Warren and Byron White and Lewis But Miguel Estrada is a person who yield for a further question? Powell and William Rehnquist and Ste- suffers from a handicap as well. He has Mr. HATCH. Sure. phen Breyer and Thurgood Marshall a speech impediment. And if you Mr. SCHUMER. That is not the ques- and Harry Blackmun and Warren Burg- watched the hearings, you could see tion I asked. er and Ruth Bader Ginsburg all had no that. Yet this young man has gone to Mr. HATCH. You asked me why this prior judicial experience before they the height of the profession in spite of is different from—wait, let me just fin- were appointed and confirmed to the those things. In spite of all the blocks, ish. U.S. Supreme Court? all the barriers, all the glass ceilings, Mr. SCHUMER. Will my colleague Mr. HATCH. The Senator is exactly all of the criticisms, he has lived the yield for an additional question? right. It just goes to prove how ridicu- American dream. He is an example to Mr. HATCH. I will yield in just a sec- lous the accusations are that some every young lawyer, not just Hispanic ond. Let me finish. have made against Miguel Estrada. young lawyers—especially to them— The PRESIDING OFFICER. Senators And it also goes to show that there is but every young lawyer of how you can will address through the Chair, not to a double standard with regard to this fulfill the American dream. each other. Hispanic nominee. I haven’t seen a glove laid on him by Mr. HATCH. Let me just finish here. Mr. ALEXANDER. Would the Sen- the other side. Yet they are still fili- You asked me why should this be any ator yield for one final question? bustering him. Why the double stand- different from Miguel Estrada. There is Mr. HATCH. Without losing my right ard? I think the Senator makes a tre- nobody who can say that Miguel to the floor. mendous set of points there. I am per- Estrada would legislate from the Mr. ALEXANDER. If the Senator sonally grateful for his participation. bench. There is nobody who has one would agree that all of those distin- Mr. ALEXANDER. I thank the Sen- ounce of information that would indi- guished men and women with no prior ator. cate he would be an activist judge. He judicial experience went on to become The PRESIDING OFFICER. The Sen- isn’t a judge. In fact, your side has ar- distinguished members of the U.S. Su- ator from New York. gued that because he doesn’t have judi- preme Court, then can the Senator help Mr. SCHUMER. Mr. President, will cial experience, he should not go on us understand why the Members of the my colleague from Utah yield for a this position—some have argued. I hope other side suddenly think it is not just question? it hasn’t been the distinguished Sen- important but disqualifying for some- Mr. HATCH. Without losing my right ator from New York with his great one who is nominated for a lower court to the floor. knowledge of the law. to have no judicial experience? Why is Mr. SCHUMER. My colleague from But there was a complete difference. this suddenly a new criterion when Utah has talked about how it is unfair The bottom line is this: Yes, I still many of the most distinguished jurists to block a conservative nominee who is think I was right on that particular in our country’s history have had a di- Hispanic. I would like to ask my col- vote. I may have been wrong, but I be- verse background of experience? Why is league a question about Judge Rose- lieved I was right. I did it sincerely. this suddenly a new standard for mary Barkett, a Hispanic woman, born But she did have a vote. And she did Miguel Estrada? in Mexico, who spent her early years pass, as I recall. She is now sitting as Mr. HATCH. The Senator really there before her parents immigrated to a judge. And I didn’t hold her up, nor raises the issue—that is why there is a the United States. At an early age, she did I filibuster her, nor did I stand on double standard—when all of these devoted herself to religious service and this floor and say she should not have great Supreme Court Justices and oth- took vows to become a nun, then a a chance for a vote, which is what your ers never had a day of judicial experi- schoolteacher, educating children in side—I should say, the Democrat side ence. I will submit Miguel Estrada has Florida, then became a very distin- in this Chamber—is doing. I think had more time in the judiciary than guished lawyer. After years in private there is a lot of difference, a world of any of them had before they came to practice, she underwent a rigorous difference, between my vote which was

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.198 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2323 cast sincerely. I have hardly voted Mr. INHOFE. One last question. You cluded by that record there was judi- against any judges since I have been have answered it already, and this is cial activism? Is there any record that here. I have been one of the strongest not whether or not we want to vote for would lead any Member on the other supporters of the Federal judiciary, if or against Miguel Estrada, but does he side to suggest that Miguel Estrada not the strongest supporter in this deserve a vote, a public vote, on the would be a judicial activist? Chamber, ever since I have been here. floor of the Senate? Mr. HATCH. Of course, he is not a I can say this: I still believe my vote Mr. HATCH. Based upon the past his- judge. Rosemary Barkett was a judge was right. If it was wrong, I apologize, tory of this body, he deserves a vote. and had written a number of legal opin- but I didn’t hold her up. I didn’t fili- He is not getting it right now because ions. Some of them I thought were buster her. I made sure she had a vote. of a filibuster for the first time in his- whacko and, frankly, were. And she got one, and she sits on the tory. I have to say I decry that. That is Mr. DURBIN. Will the Senator yield court today. not fair. It is a double standard. It is for a question? I can’t ask a question, I guess, of the not right. Mr. HATCH. I am still answering the Senator, but I will just ask him to The PRESIDING OFFICER. The Sen- question of the Senator from Pennsyl- think it through. There is really a dif- ator from Minnesota is recognized. vania. ference between Rosemary Barkett’s Mr. COLEMAN. Will the Senator Mr. DURBIN. I will bet you are. handling and Mr. Estrada’s. He is not yield for a question? Mr. SANTORUM. Will the Senator even getting a chance for a vote. She Mr. HATCH. Yes, without losing my yield for an additional question? did get her chance for a vote. I was one right to the floor. Mr. HATCH. Yes, without losing my who helped her to get it. Mr. COLEMAN. Mr. President, I was right to the floor. Mr. SCHUMER. Will my colleague an urban mayor of a vibrant, diverse Mr. SANTORUM. Is there anything yield for an additional question? community, including Chicanos, Salva- in Mr. Estrada’s background that Mr. HATCH. Without losing my right dorans, and Puerto Ricans. Is it true would give you the opinion he would be to the floor. that Miguel Estrada was attacked by a judicial activist on the court? Mr. SCHUMER. Now that the Sen- Democratic Hispanic Members of the Mr. HATCH. Not any. In fact, even ator from Utah knows that Judge House as being Hispanic in name only? the Democrats who have known him Barkett is Hispanic, would he in any Mr. HATCH. Well, in essence, because have been praising him and have sup- way characterize his own action as he was basically accused of not being ported him. I might add that I don’t anti-Hispanic? Hispanic enough. I believe he was ac- think you would get better support Mr. HATCH. No. Nor am I character- cused of being Hispanic in name only. than Ron Klain. There should not be a izing yours that way. I have character- They even said he didn’t give back Democrat on that side who doesn’t be- ized it as anti-conservative Hispanic enough to the community, even though lieve he is an honest lawyer. There Republican, which is different. this man worked his guts out to get to should not be a Democrat on that side The PRESIDING OFFICER. The Sen- where he is as a Hispanic lawyer in this who doesn’t accept Seth Waxman as a ators are advised not to address each country and deserves credit for it, and great lawyer, or one who doesn’t be- other in the first person. he is an idol and will be an idol to a lot lieve Walter Dellinger is an exceed- The Senator from Oklahoma is recog- of young people who want to do the ingly fine law professor, lawyer, and nized. same. practicing attorney. There should not Mr. INHOFE. Will the Senator yield Mr. COLEMAN. Will the Senator be a Democrat who should disagree for a question? yield for one more question? with the former African-American So- Mr. HATCH. Yes, without losing my Mr. HATCH. Yes, without losing my licitor General of the United States. right to the floor. right to the floor. I want to say this. I don’t see any Mr. INHOFE. It is a sincere last ques- Mr. COLEMAN. Is it true that Miguel comparison with Rosemary Barkett at tion. It is very important because I Estrada—we have heard this before— all. This man is not a judge. In accord- just got a phone call that I am going to came here as a teenager, learned to ance with the double standard, it has be asked a question. First of all, I want speak English, overcame a disability, been said he should not be a judge be- to inform the Senator from Utah that graduated with honors in college, grad- cause he has no judicial experience. We in Oklahoma, our fastest growing popu- uated with honors magna cum laude in just have proven there are all kinds of lation has been Hispanic for 25 years. I law school, was editor of the law re- Clinton judges who had no prior judi- used to be a commercial pilot in Mex- view, and he came back to public serv- cial experience. Yet we put them ico. I know Hispanics. ice? Is it true, then, that he is sup- through and they are serving well, as When I was the mayor of Tulsa, we ported by many Hispanic organiza- have literally hundreds of judges who appointed the first Hispanic commis- tions, really as a role model of the never had a day of judicial experience. sion anywhere in the Southwest. It is American dream? It is just unfair, plain unfair. still there today. Mr. HATCH. You should have heard The PRESIDING OFFICER. The Sen- Now, the question is this, and I am the LULAC press conference this week. ator from Illinois is recognized. going to be asked this question this It was truly remarkable. He was ac- Mr. DURBIN. Will the Senator yield weekend: Why was this Hispanic man, cused by his opponents of being very for a question? when nobody could question his quali- unfair. LULAC happens to be the oldest Mr. HATCH. Yes, without losing my fications, rejected? I have to answer Hispanic organization in the country. I right to the floor. this to the Hispanic commission of believe, if I am right, the head of Mr. DURBIN. I ask the Senator from Oklahoma Saturday. What shall I say? LULAC is a Democrat. I may be wrong. Utah, when the Senator was chairman Mr. HATCH. There is no legitimate He is outraged, by the way. With this of the Senate Judiciary Committee and reason. It is a double standard. It is un- double standard that is going forth refused a hearing and vote for Enrique fair. It is unfair to him and to our against Miguel Estrada, he is right to Moreno, who was rated well-qualified President, and he should be given at be outraged. for an appointment to the Fifth Circuit least a vote up or down. If my col- The PRESIDING OFFICER. The Sen- Court of Appeals, was the chairman of leagues want to vote against him, that ator from Pennsylvania is recognized. the committee, the Senator from Utah, is their privilege. I would find no fault Mr. SANTORUM. Will the Senator aware of the fact that Mr. Moreno was with that, even though I would dis- yield for a question? born in Juarez, Mexico, in the company agree. It is unfair to the process and to Mr. HATCH. Yes, without losing my clinic of a smelting plant where his fa- the Senate. right to the floor. ther was employed; when he was 2 What is going on here is that for the Mr. SANTORUM. Isn’t the difference years old, his family emigrated to El first time in history, a true filibuster is the Senator from New York suggested Paso, TX, where Mr. Moreno attended being waged against a nominee. It hap- about your comment about Judge school and his father worked as a car- pens to be the first Hispanic ever nomi- Barkett and the situation with Miguel penter, his mother as a seamstress; he nated to the Circuit Court of Appeals Estrada that Judge Barkett had an ex- left El Paso to attend undergraduate for the District of Columbia. tensive record to analyze and you con- and then law school at Harvard, and he

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.201 S12PT2 S2324 CONGRESSIONAL RECORD — SENATE February 12, 2003 practiced for 19 years? Was the Senator just like your chairman when he was As chairman, I had no choice other from Utah aware of that background chairman, Senator LEAHY, had prob- than to do that. I think the Senator when he would not give him an oppor- lems on his side with some who have knows that. That is why I believe the tunity for even a hearing before the always wanted to manipulate the sys- questions are very unfair to me. Senate Judiciary Committee, or a vote tem a little bit differently. But I was Now, I will admit, Miguel Estrada before that committee, or on the floor fair, and I do resent anybody implying was given a hearing by the Democrats. of the Senate? that I was not fair. Senator SCHUMER presided over it, and Mr. HATCH. Mr. President, I believe In the case of Enrique Moreno, he there was more than one Democratic the Senator is being very offensive. He would have had hearings had there Senator present. It was a fair hearing. normally is quite partisan but quite been consultation, which I am sure the I believe it was. It went from about 10 reasonable. He is being offensive be- distinguished Senator from Illinois in the morning to 5:30 at night, longer cause he keeps referring to me as deny- would be the first to raise if he was not than most hearings. They asked every ing him a vote in committee when, in consulted with regard to judges coming question they wanted to ask. fact, I have explained before that there from his State. I assumed the Democrats believed was no consultation. The Senators Mr. DURBIN. Will the Senator yield they were going to win the election and from Texas told me there was no con- for a question? therefore they would never have to sultation, which they demand on their Mr. HATCH. Without losing my right have Miguel Estrada come up for a vote side all the time, and which we demand to the floor. any time. When we won the election, Mr. DURBIN. I would like to ask the on our side all the time, which I de- suddenly I got a request for confiden- Senator from Utah this question: He manded of the Clinton administration, tial documents of the Solicitor Gen- has raised the issue of fairness when it and I demand of the Bush administra- eral. I should say the White House got comes to Hispanic nominees. that request the day before the hear- tion. Mr. HATCH. That is right, and I ing. He has had a hearing. He has had I think the Senator is being very un- wanted fairness when you asked ques- a vote in committee. He has come out fair by trying to imply that I delib- tions. erately kept Enrique Moreno, who may Mr. DURBIN. Let me finish the ques- of the committee. be all of these wonderful things, and I tion. He is now on the floor, and now we assume that he is—I cannot recall all Mr. HATCH. Well, finish it then. find this situation where for the first those details. I have respect for him; I Mr. DURBIN. The Senator suggested time in history, a circuit court of ap- have tremendous respect for him. I it was fair for two Republican Senators peals nominee is being denied a right would like to have seen him have a from Texas to block a man like to an up-or-down vote. That is abys- chance, had there been consultation. Enrique Moreno from even having a mal. And he just happens to be the first But I do respect the home State Sen- hearing because that was their right. Hispanic nominee to the Circuit Court ators, and I think I respect the Demo- Mr. HATCH. Is there a question of Appeals for the District of Columbia. crat home State Senators, too. there? I think it is wrong. I think it is unfair. I have not even talked about the Mr. DURBIN. The question is com- I think it is unfair to the President. It withholding of blue slips because that ing. Is it not the right of Senators to is unfair to him. It is unfair to the Sen- was not the issue. The issue was con- raise questions on the floor about ate. It is unfair to the Senate Judiciary sultation and, in this case, there was Miguel Estrada? Why is that unfair Committee. It is unfair, I think, to the zero, ‘‘nada’’ consultation. while the treatment of Enrique Moreno whole process. Mr. DURBIN. Will the Senator yield was fair? He did not even have a hear- Mr. DURBIN. Will the Senator yield for another question? ing. Miguel Estrada had a hearing, an for a question? The PRESIDING OFFICER. The Sen- opportunity to answer questions, and Mr. HATCH. Without losing my right ator from Utah has the floor. he refused to answer the questions. to the floor. Mr. HATCH. Wait a minute, I feel I How is this fair to Enrique Moreno and Mr. DURBIN. I ask this question in have been unfairly attacked by the unfair to Miguel Estrada? relation to Richard Paez, and I will not Senator, by someone who knows the Mr. HATCH. I will tell you again. go to the question of the cloture vote process and I think ought to be fair and How many times do I have to repeat it necessary to bring him to the floor, but I think normally is. for somebody who has been on the Ju- I ask the then-chairman of the Senate Mr. DURBIN. Will the Senator yield diciary Committee and ought to know? Judiciary Committee if it was fair to for a question? If there was not consultation, you Richard Paez, nominated by the Presi- Mr. HATCH. No. Look, as chairman, I would be the first to say: I am not dent, to the Ninth Circuit, well-quali- can only do certain things. I will tell going to let that person go. Or you fied by the ABA, to have waited 3 years you this, I put through, as ranking would be the first to criticize the ad- and then to have faced a motion to pro- member or chairman, 377 Clinton ministration. ceed on the floor which the Senator judges, the second most judges con- The PRESIDING OFFICER. The Sen- from Utah and a majority of the Re- firmed for a President in history. The ator is reminded not to say ‘‘you’’ in publicans voted against after this man highest confirmed happened to be the first person. had waited for 3 years for a vote? Was through President Reagan, and there Mr. HATCH. Let me say this to the that fair to Richard Paez? were 382, 5 more. I believe that I would Chair. I have answered it about three Mr. HATCH. There were plenty of have put through even more than times now. Let’s be fair about it. As reasons Richard Paez was held up by President Reagan or President Clinton chairman, I cannot do everything. All I people on our side. He had ruled in a had it not been for Democrat holds on can do is abide by the rules of the com- number of cases in ways that appeared the floor against other Democrat nomi- mittee, which are that there has to be to be, and I think was, in fact, activist nees. consultation, not phony requests for judging. Without my support, Richard Let me go further because—let’s be consultation. You have to at least con- Paez would not be sitting on the Ninth fair about it—President Reagan had 6 sult. They did not even consult. Circuit Court of Appeals. So, again, I years of his own party in control of the I wrote a letter to the then-counsel, feel impugned by the question because Senate, in the Senate Judiciary Com- bless his departed soul, Chuck Ruff, for without me going to bat for him, which mittee to help him get those 382 judges. whom I happened to care a great deal, I did, without me fighting for him on President Clinton had 6 years of the op- and there are very great reasons I do. the floor, which I did, without me giv- position party, and yet we gave him He was a great lawyer, and I got along ing him a vote, which I did—which you virtually the same number as the all- well with him. I said: You did not con- are not; I should say the Democratic time champion, President Reagan. sult and they did not. He basically ad- side is not—he would not be sitting on Mr. DURBIN. Will the Senator yield? mitted it. Those two Senators were the Ninth Circuit Court of Appeals, and Mr. HATCH. I think my record shows well within their rights to say: We are he knows it and you know it—every I have not only been fair, I have bent not going to have him if we are not Democrat on the other side knows it. over backwards. I will acknowledge going to get consultation. And they Unfortunately, I want to talk person- that I have had problems on my side, were within their rights. ally to my colleagues. I will do it

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.204 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2325 through the mechanism of the Chair. the end. Admittedly, I wish it did not Mr. HATCH. Sure, without losing my But the fact is, had I not supported have to be delayed that long, but in all right to floor. him, he did not have a chance to be on honesty he was treated fairly in the Mr. SCHUMER. My friend from Utah the court because there were many end. I wish it had been earlier, but I just characterized the kinds of ques- people who believed he was an activist have to say I had my own qualms and tions, such as what are your opinions judge and, I have to confess, it was a my own questions and there were plen- of court cases, in an attempt to destroy close question. ty of reasons for that. There were peo- the career of Mr. Estrada. I would like I finally asked him to come visit ple all over California who did not to ask the Senator, you were just talk- with me. I sat down with him. He is a want him on the Ninth Circuit Court of ing about Judge Paez with Senator nice man. He is a good man. I have to Appeals, which is considered one of the SESSIONS. I ask the Senator, my friend admit, I felt he was an activist judge. most activist courts in the country, be- from Utah, if you recall some of the But I also felt he was a good man. cause of the ‘‘activist’’ decisions he questions Senator SESSIONS asked Mr. DURBIN. Will the Senator from was making in contradistinction to Richard Paez: In your opinion, what is Utah yield for a question? what California law really was. Prior the greatest Supreme Court decision in Mr. HATCH. Let me just finish. I told to each and every cloture vote in the American history? What is the worst him I would support him, and I did. Un- past which has been mentioned, the Supreme Court case? like this particular situation, he got Senators in the leadership on our side I would ask my colleague two ques- his vote and he passed with my sup- agreed to provide enough votes to in- tions. Was Senator SESSIONS attempt- port, which would never have happened voke cloture before the cloture peti- ing to destroy the career of Richard without it. tions were even filed on these Demo- Paez? Second, does he recall that in- Mr. DURBIN. Will the Senator yield crat nominees. stead of saying, I cannot answer that, for one final question? I promise I will I wish my colleagues on the other Senator Paez gave answers to both of not ask any further questions. side would agree to that precedent in those questions? Mr. HATCH. Without losing my right relation to the cloture votes they keep Mr. HATCH. Do you mean Judge to the floor. referring to. Would they assure us, as Paez? Mr. DURBIN. In the case of Richard we did them, that their side will pro- Mr. SCHUMER. Now Judge Paez. Paez, a Hispanic nominee who waited vide enough votes to invoke cloture be- Mr. HATCH. I believe it is within the over 4 years for a vote, was there ever fore we even file a cloture petition for power of each Senator on the Judiciary a time when Richard Paez refused to Estrada? That is what we did for Judge Committee to ask any question they answer questions you posed to him? Paez and now Judge Berzon. want to, no matter how stupid they Mr. HATCH. Not that I know of. So there was no real filibuster. You may be, and we have had plenty of stu- Mr. DURBIN. Was he evasive to you cannot call that a filibuster. We pro- pid questions from both sides, to be or did he try to in any way conceal his vided the necessary votes for them to honest with you. true background and true record? Was get votes on the floor, and they did get I do not think those are stupid ques- there ever an instance of that? their votes up or down. That is some- tions. Nor did I think the Senator’s Mr. HATCH. I have to say we did not thing Miguel Estrada is being denied questions when he basically asked try to destroy the man. We did not try right now. Miguel Estrada this question, can you to ask questions that were improper. Where is the fairness? I do not see think of any cases in the last 40 years We did not try to ask him his opinions any fairness in that. Why should he be with which you disagree with the Su- on how he was going to vote, all of denied the same privileges we gave to preme Court, nor do I find fault with which was done with Miguel Estrada, two people most every Republican dis- Mr. Estrada saying, no, I do not. You and he refused to answer those kind of agreed with, but nevertheless gave and I might. I could think of some questions, as he should have, as any- them a vote and they are now both sit- cases where we have passed laws. I was body who reads Lloyd Cutler would ting on the Ninth Circuit Court of Ap- the cosponsor of the Violence Against agree he should have. peals? Women Act. I did not like to see it I refer you to the President’s letter I have to tell you I had much angst overturned. On the other hand, I do un- which I am going to get to in a minute, and many upset stomachs that oc- derstand why it was and I do think it if my colleagues will allow me to, be- curred because of these two nominees, was a legitimate decision even though cause I want to make a statement be- but I voted for both. Without me, nei- I may have disagreed with it at the fore we finish this evening. In all hon- ther of them would have made the time. esty, Miguel has not been treated very Ninth Circuit Court of Appeals. It is Mr. SCHUMER. Will the Senator fairly and he is certainly not being just that simple. yield for another question? treated fairly by a filibuster—or should Mr. SESSIONS. Mr. President, to fol- Mr. HATCH. Without losing my right I say the ‘‘filibustero’’?—on the floor of low up on that question, I felt strongly to the floor. the Senate. about those nominees. I did not dislike Mr. SCHUMER. I am glad to see we Several Senators addressed the them personally, but I felt Paez and are not destroying careers by asking Chair. Berzon were activists. In fact, their those kinds of questions. The PRESIDING OFFICER. The Sen- writings clearly indicated that. Mr. HATCH. The only way we are de- ator from Alabama. Is it not a fact both Paez and Berzon, stroying careers, in all fairness, is by Mr. SESSIONS. Mr. President, with in separate opinions, have declared the having filibusters, not by having up-or- respect to the Paez and Berzon mat- longstanding ‘‘three strikes you’re down votes. If we distort the record of ters, I ask the chairman if he remem- out’’ law in California unconstitu- people, I think that—I think both sides bers I was one who questioned those tional? And I think one of them has have done that from time to time, I am nominees and he made a decision in been reversed already by the Supreme not saying deliberately, but neverthe- both of those cases to support them Court more than once? less there have been some times where after serious thought was given to it? Mr. HATCH. That is my recollection. I think the Senate has not acted in the Mr. HATCH. That is correct. And I have to say there are those who best form. Mr. SESSIONS. Is it not a fact the believe at least one, if not both, are ac- Mr. SCHUMER. Will the Senator Republican majority leader, TRENT tivists on the Ninth Circuit Court of yield for a question? LOTT, was the one who moved for clo- Appeals, which is virtually reversed Mr. HATCH. Yes, without losing my ture on Paez and Berzon? every time by the Supreme Court. It is right to the floor. Mr. HATCH. No question about it. the most reversed court of appeals in Mr. SCHUMER. I was pursuing this Mr. SESSIONS. The vote was 86 to 14, the country. line of questioning before, and then and 85 to 13 to invoke cloture, and I Mr. SCHUMER addressed the Chair. somehow we turned to other people to supported cloture even though I op- The PRESIDING OFFICER. Will the ask questions. But when I asked my posed the nominees? Senator yield for a question? colleague before how he could say this Mr. HATCH. That is correct. I have Mr. SCHUMER. I would like to ask about Judge Barkett, which is a rea- to say our side was fair to Mr. Paez in my friend from Utah a question. sonable thing for him to say—I do not

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.207 S12PT2 S2326 CONGRESSIONAL RECORD — SENATE February 12, 2003 begrudge him one bit. I do not think he won the election. He ought to have the where any Judiciary Committee has has an ounce of discrimination in his right to appoint the judges he wants. I been able to get them all through. body—how that was not anti-Hispanic, believe that with every fiber of my Frankly, I think you can go back in but opposing Judge Estrada was anti- being. I think that is what you get time and find more nominees left hang- Hispanic, he prefaced his remarks by when you get a President. ing when the Democrats controlled the saying, well, you are opposing not His- I didn’t think most of President Clin- committee at the end of the first Bush panics but conservative Hispanics; you ton’s judges—I would not have ap- administration than we left at the end are anti-conservative Hispanics—was pointed most of them if I were Presi- of the Clinton administration. You my friend from Utah being anti-liberal dent, but I was not President. And I could go through all the statistics and Hispanic when he opposed Judge submit I don’t believe the distin- criticize all you want and some criti- Barkett or was he simply ignoring the guished Senator from New York would cisms are justified. fact that she was Hispanic—he said he probably nominate the same judges as I wish we could have done a better did not even know—and instead oppos- President Bush, but President Bush de- job back then when I was on the Judi- ing her on her views and her record, serves the courtesy of having his ciary Committee. I give an illustra- something at least to this Senator is judges voted up and down, and that is tion. Tomorrow we have a markup on not only legitimate but an obligation a courtesy not being granted for the three circuit court of appeals nomi- to know about the views and the first time in history. nees. Some have indicated the Demo- record? So I would like to— When the minority mentions some crats will filibuster the markup. One The PRESIDING OFFICER. The Sen- cloture votes, we have no majority to person on that markup is Mr. Roberts, ator is reminded to address the Senator make sure it is invoked. There was no who has been sitting there for 11 years. through the Chair and in the third per- filibuster to make sure the nominees Mr. Paez sat there for 4 years, but he son. get a vote up and down. I would be got a vote and he is now sitting on the Mr. SCHUMER. I thank the Chair. happy if my friends on the other side Ninth Circuit Court of Appeals. Mr. So, Mr. President, I ask my col- would do the same for this fine nomi- Roberts has been sitting there for 11 league, the Senator from Utah, how nee, even if you disagree, and then vote years and has had three nominations one is any different from the other. no as some colleagues did. I voted yes by two different Presidents and is con- And isn’t, as it seems to most of us, on some of the most controversial sidered one of the two greatest appel- one the mirror image of the other, ei- judges because I start with the premise late lawyers in the country by Su- ther exactly blasphemous or equally that the President deserves support, preme Court Justices and many others. pure? whoever the President is, as long as the There is not anything you can find Mr. HATCH. I believe the Senators nominee is qualified. against him other than he is appointed can ask any questions they want. Like As much as I disagreed with Marsha by President Bush, a Republican Presi- I say, no matter how dumb or stupid or Berzon, she was very qualified. She was dent, and he may be conservative. I intelligent or alert they are—I have one of the top labor lawyers in the don’t know whether he is or is not, but seen both. In the case of Rosemary country. I admit, some of my col- he has been held up for 11 years Barkett, I confess I never knew she was leagues did not feel the same way as I through three nominations. Hispanic. And even if I did, it would be did. I led the fight to put her on the I have been informed that there may irrelevant to me. Nor have I accused bench. She personally came to me and be a filibuster in committee tomorrow. any Democrat of being prejudiced thanked me, as did Judge Paez. That would be the first filibuster that against Miguel Estrada because he is I would like to see the same fair I have seen in my 27 years on the Judi- Hispanic. I do not believe that. I do not treatment to Miguel Estrada. I don’t ciary Committee. If that is true—I can- believe there is a prejudiced bone over see it here. I think I made a pretty not believe it is true. I believe my col- there. I do not believe there is over good case it is not here and there is leagues would allow votes and allow here either. But I have said I believe nothing fair about this process. them to come to the floor in an orderly our colleagues on the other side are Mr. SCHUMER. If my colleague from fashion. I have to say that I hope that filibustering because Miguel Estrada is Utah will yield for a final question. is not true. If that is true, then I think a Hispanic Republican conservative Mr. HATCH. Without losing my right any reasonable person can conclude nominated by President Bush, a Repub- to the floor. that my colleagues on the other side lican President. Mr. SCHUMER. One judge nominated are not willing to do their constitu- I have also said I believe one of the to the same DC Circuit Court of Ap- tional duty to fill the courts with the reasons why there is such a vicious peals, Mr. SNYDER—a fine judge, well President’s nominees. fight to stop him from going on the respected, the highest ABA rating, I will stay here all night and debate Court of Appeals for the District of Co- same thing as Miguel Estrada in a lot my record with the Senator from New lumbia is because my colleagues on the of ways—never got a hearing, he never York or anyone else, but this has noth- other side believe he is conservative, got a vote. He is from DC. There were ing to do with the—— and believe he might tip the balance of no home State Senators to object to Mr. SCHUMER. Will the Senator the court. That is what we get when we him, unlike Mr. Moreno. yield? get a President. That is what we get I ask my colleague, why wasn’t it Mr. HATCH. I am answering a ques- when we vote. very unfair not to let Mr. SNYDER have tion. If my colleagues on the other side a vote on the very same circuit to The PRESIDING OFFICER. The Sen- disagree with Miguel Estrada, you have which we are debating Miguel ator from Utah has the floor. every right to vote against him. I Estrada’s entrance? Mr. HATCH. I will stay all night to think you shouldn’t. There is no reason Mr. HATCH. I cannot answer that debate my record in comparison to any at all. I don’t see one substantive rea- other than to say I wish we could have. Democratic record. That has nothing son so far, advanced by the minority, He was not named for the 11th seat on to do with whether or not Miguel why he shouldn’t sit on the court. Cer- the Circuit Court of Appeals for the Estrada should be confirmed. The only tainly, the fact he has no judicial expe- District of Columbia, in contrast to thing that has to do with is whether we rience in the eyes of the Democrats, Mr. Estrada who was nominated for the vote. And I think it would be very un- that is not a valid reason. ninth seat. There is a real difference fair not to vote up or down on Miguel Since we are talking about things I because there was a question whether Estrada. may have said about Clinton nominees, the 11th and 12th seats at that time The PRESIDING OFFICER (Mr. I have been in on hundreds, if not thou- should have been filled. But the ninth SUNUNU). The Senator from New York. sands, of judges since I have been in seat certainly should be filled, and ev- Mr. SCHUMER. I ask my final ques- the Senate. Let me remind the Senator eryone I know agrees with that, includ- tion. I have so many but I know the from New York what I said prior to the ing people on the Democrat side. hour is late. cloture vote on one Clinton nominee. I I wish I could have gotten them all Mr. HATCH. I add one last thing on said: I personally do not want to fili- through, to be honest. To also be hon- that. I cannot see any reason for this buster Federal judges. The President est, I don’t know of an end of session action against Miguel Estrada unless,

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.210 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2327 of course, the opposition to Mr. the first time I recall a filibuster in the wretched thing to do, filibuster a Estrada, based upon what I have been committee. If that is so, then it is clear judge. It is the first time in history. If hearing tonight, is really retribution that we have the politics of mass ob- they want to filibuster some judges, for perceived past wrongs perpetrated struction—which politics were sug- why would they pick on the first His- against Clinton nominees when I was, gested by two very ultraliberal law panic ever nominated to the Circuit in fact, one of the best assets you had professors at a Democrat retreat in Court of Appeals for the District of Co- in getting nominees through. I took a 2001. If that is true, then this is all part lumbia, a man who suffers from a dis- lot of criticism from the conservative of the game, to slow down everything ability yet rose to the top of his profes- right who I told to get lost, I have to in the judiciary no matter how many sion. He came up the hard way. He ful- say, in contrast to what I think is the emergencies we have, and we have filled the American dream, a man who liberal left who seem to have lockjaw plenty, and to stop President Bush is an example to every young Hispanic control over my colleagues on the from having his judges confirmed. person in this country, and to me. He is other side. I don’t think it is fair. I don’t think an example to me, and I think every- I yield for a question as long as I anybody else who watches it thinks it body in this body. don’t lose my right to the floor. is fair. I call upon my good friends to Why wouldn’t we let this fellow have Mr. SCHUMER. The final question in be fair. an up-or-down vote like we always did? relation to the hearing tomorrow, I have to say, I like everybody in this We always made sure that, regardless would the chairman of the committee, body. I care for everybody in this body. of the reason for a cloture vote, we the Senator from Utah, just give us 1 I care for my friend from New York and made sure that cloture was invoked day of questions for Mr. Roberts? As he knows it. I know he cares for me. and a vote up or down occurred. the Senator well knows, we had an un- But it is time to wrap it up and say, I have to say, I think there is an ele- precedented three court of appeals look, you have had your shot. And ment of unfairness here that I have not nominees before us in 1 day—all three knowing you, you always take your seen in my 27 years in the Senate. It is controversial, all three very erudite. shot. I should not be talking to you a shame that it is happening against We never had that before. We took all personally, I acknowledge to the Chair. the first Hispanic ever nominated to day. My friend from New York is not known the Circuit Court of Appeals for the To his credit, our chairman waited for shyness, but he is known as a fair District of Columbia, who has not had until 9:30 but that is when the ques- person and he is known as a good law- a glove laid on him. And because they tions finished with Mr. Sutton and one yer, at least by me. I am asking him to can’t find anything wrong, they want of the reasons many Members find dif- help be a leader on that committee. I to go on fishing expeditions long after ficulty voting on Judge Roberts, who is am asking the distinguished Senator they held their hearing, and then try to a brilliant man. I would just like to from New York and others to be lead- justify this holdup and this filibuster ask some questions. We have not had a ers on this committee, to help us do for those reasons. It is unbelievable to chance to ask questions. me. I ask my colleague, if you give us 1 our job, to help fill these courts. Yes, you may not like him. My col- Look, I made this point before and I day of hearings on Judge Roberts, we am going to make it one more time and would agree to vote the very next day. leagues on the other side might not I hope everybody in America watches Would that be acceptable to the Sen- like the nominees of President Bush this. The Senate Democrats held a re- ator? any more than we liked the nominees Mr. HATCH. Of course not. Because of President Clinton. But I put them treat. They can’t deny this. It has been we had a full day of hearings. Mr. Rob- through. Like I say, President Clinton, reported thoroughly. They were given erts was there, Mr. Sutton was there, he would have been the all-time cham- suggestions by at least two very liberal Justice Cook was there. We went from pion in confirmation had it not been law professors. Once President Bush be- 9:30 that morning to 9:30 at night, and for Democratic holds on your side. So I came elected, these law professors, I was prepared to stay all night if I had think we were fair. I would like you to wanting to promote only their ide- to. Any Senator could have come and be fair to our people. ology, suggested that, No. 1, bottle up asked any questions they wanted. If there are no further questions, I the nominees in committee. If we have Many Senators asked all the questions would like to make a statement. a filibuster tomorrow, they are ful- they wanted to at that time. After- The PRESIDING OFFICER. The Sen- filling that part of their suggestions of wards we kept the record open for Sen- ator from Alabama. mass obstruction. We have a filibuster now here on the ators to read and review the record and Mr. SESSIONS. Mr. President, I ask floor, but I will get to that. Then they submit any written questions that they the Senator to yield for one question. Mr. HATCH. Without losing my right said: If you can’t bottle them up in wanted. We have had 2 weeks to do to the floor. committee, then inject ideology into that. There comes a time when you have to Mr. SESSIONS. I say to the Senator, the confirmation process, and that is say let’s treat these people fairly. I know in the heat of this debate some exactly what has happened. Some of I know there is no reason in the on the other side have seemingly ques- the Senators on the other side have de- world to hold up Mr. Roberts or the tioned the fairness of your leadership. I manded to know the ideology of the other two either. The fact that my col- know they have not had the oppor- nominees, as if that is relevant. And leagues spend all their time—not all tunity to be in Republican conference every nominee, and especially Miguel their time but enough of their time in- when you have been absolutely con- Estrada, if you read his answers to terrogating Mr. Sutton, they still in- sistent with the views you expressed questions, has said we will abide by terrogated Mr. Roberts and Justice here on the floor to the Republicans prior precedent. We will observe the Cook. I think we should proceed and I who may have had different views. principle of stare decisis. We will rule think it is fair to proceed. I think the Would you share with us what you have in accordance with the law and with Senator said it right when he said he is advised Republicans in meetings about the rule of law. So there is no reason to a distinguished appellate lawyer, one of the impropriety of filibusters and how inject ideology because they said they the best in the history of the country. you have been consistent in that and would put their own personal beliefs I don’t see any reason for the delays in other issues that arise on matters here aside. Miguel Estrada said that on nu- these matters. today? merous occasions in response to ques- I was open, as I have always been, to Mr. HATCH. I thank my colleague for tions by the Democrats. any questions that the Senators from asking that question because every- If they can’t win on injecting ide- the other side wanted to ask. We body knows, including my friends on ology, and we are seeing that at every stayed there for a very lengthy hear- the other side, that I argued vocifer- step of the way here now, then seek all ing. ously against the few who wanted to unpublished opinions. I will never for- Look, fair is fair. Let’s treat these filibuster on our side. get Dennis Shedd. He was chief of staff people fairly. I expect my colleagues in good faith to Senator Thurmond on this com- I hope my colleagues will not fili- to argue on their side against that. It mittee, one of the nicest people we buster tomorrow because that will be is a dangerous thing to do. It is a have ever had work on this committee.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.212 S12PT2 S2328 CONGRESSIONAL RECORD — SENATE February 12, 2003 I would compare him to Ron Klain, two are filibustering the first Hispanic order for our Judiciary to effectively really nice guys, two really smart nominee for the Circuit Court of Ap- administer justice, it is incumbent guys, two really decent people, two peals for the District of Columbia who upon the ability of the Executive and wonderful attorneys. Ron Klain was Al has lived the American dream, who has the Legislative branches of Govern- Gore’s top aide, and at the time I be- the highest rating possible unani- ment to work together. lieve he worked on the Judiciary Com- mously—and it is their gold standard— Throughout the quarter century I mittee. I can’t remember which Sen- of the American Bar Association. have had the honor of representing the ator he worked for at the time, but he It is absolutely amazing that we are Commonwealth of Virginia in the went throughout the whole campaign going through this. We have now been United States Senate, I have conscien- with Al Gore. He was one of his top ad- doing it for over a week. You would tiously made the effort to work on ju- visers. He is one of the top lawyers in think this is a Supreme Court nominee. dicial nominations with the Presidents this city and he is a personal friend. I Of course, that is part of this. The with whom I have served. Whether our admire him. whole purpose of giving Miguel Estrada President was President Carter, Presi- But when they couldn’t get Judge a rough time is to say, Mr. Estrada, we dent Reagan, President Bush, Presi- Shedd in any other way, they requested don’t want your kind on the Supreme dent Clinton, or President George W. all his unpublished opinions. He has Court. Bush, I have accorded equal weight to been serving for over 10 years. Where That is really what the bottom line the nominations of all Presidents, irre- are those unpublished opinions? Pub- is here. That is why these professors spective of party. lished opinions are where the judge are doing that—because this President Based on the last several years, I am writes an opinion and it becomes pub- has nominated some of the greatest concerned that we as a body are no lished and printed in some law book. lawyers in the history of the country longer according equal weight to the Unpublished opinions are stored in re- on the circuit court of appeals. And nominations of our Presidents irrespec- positories. To get 10 years of unpub- every one of them has to be considered tive of party. The process has become lished opinions took thousands and ultimately for the Supreme Court. highly politicized and, as a result, we thousands of hours, an estimated But this is a shot across the bow are ultimately discouraging highly $75,000. They had to go to Atlanta, as I right now—that you had better darned qualified nominees from serving in our recall, to do this, all for the purposes of well conform to a particular ideology Judiciary. If we as a Senate continue to let par- a fishing expedition, hoping to find just or you are just not going to make it. tisanship remain the hallmark of the something to hang on Dennis Shedd, I hope our colleagues, those with Senate’s judicial confirmation process, who is a well-respected Federal district clear minds and fair attitudes, will pre- and we hold up judicial nominees based court judge. That is the kind of crap vail on that side, as we had to prevail on their party affiliation, then our ju- they had to go through. on this side against filibustering. If I understand one of these professors they don’t, ‘‘Katie bar the door,’’ be- diciary will suffer. Throughout my 25 years in the at that infamous retreat will be here cause I am not sure I will be around United States Senate, I have always tomorrow to speak to the Democrats next time to stop the filibusters—not carefully scrutinized judicial nominees and possibly continue to misguide to say that I am all that important. and considered a number of factors be- them. But the fact is, I did stop them the last fore casting my vote to confirm or re- Then they said if bottling him up in time. There were only a few who want- ject. committee doesn’t fully work—of ed to do that. The vast majority of the The nominee’s character, profes- course it will work for a while, which Republicans said that would be awful, sional career, experience, integrity, we may see tomorrow if they filibuster and I think the vast majority of Demo- and temperament are all important these judges, inserting ideology into crats ought to say the same. I think factors. In addition, I consider whether the confirmation process. If that they ought to wake up and realize what the nominee is likely to interpret law doesn’t work then, if they are judges, they are doing. It is wrong. It is not according to precedent or impose his or seek all unpublished opinions and see if fair to this President. I admit many of her own views. The opinions of the offi- you can find something to pin on them them do not like this President, but he cials from the State in which the nomi- to defeat them. If that doesn’t work, is the President. It is unfair to the Ju- nee would serve and the views of my then do this: Seek privileged internal diciary Committee who voted this man fellow Virginians are also important. memoranda, which they are trying to out of committee. It is unfair to the In addition, I believe our Judiciary do in this case without one ounce of process, which has always had an up- should reflect the broad diversity of justification, to try and get into the or-down vote once the person has been the citizens in serves. actual memoranda written by Miguel brought up on the floor. It is unfair to These principles have served well as I Estrada in his job, in his duty as an As- Miguel Estrada. have scrutinized the records of over a sistant Solicitor in the United States I think I have said all that I care to thousand judicial nominees. One most Solicitor General’s Office, in three say this evening. recent instance that is important for areas: his recommendations on appeal, I yield the floor. us to remember is my support for the his recommendations on certiaria, and Mr. WARNER. Mr. President, I rise nomination of Judge Gregory to serve his recommendations on amicus curae today in support of the nomination of on the United States Court of Appeals matters. Never in the history of the Miguel Estrada, who has been nomi- for the Fourth Circuit. Justice Department has the Solicitor nated by our President to serve on the Judge Gregory was first nominated General’s Office ever been willing to United States Court of Appeals for the by President Clinton and subsequently give up those privileged documents; District of Columbia Circuit. nominated by President Bush. Regard- and they shouldn’t. It is the phoniest, Article II, Section 2 of the Constitu- less of which President nominated most unjustified request that I have tion provides the President with the Judge Gregory, the fact is that he was seen in a long time, and I have seen a authority to nominate, with the ‘‘Ad- highly qualified for the federal bench. lot of phony, unjustified requests. vice and Consent of the Senate,’’ indi- Therefore, I supported his nomination If all of that doesn’t work—if bot- viduals to serve as judges on the Fed- when President Clinton nominated him tling up doesn’t work, injecting ide- eral courts. Thus, the Constitution pro- late in the 106th Congress, and when ology, seeking all unpublished opin- vides a role for both the President and President Bush nominated him early in ions, and if you can’t get privileged, the Senate in this process. The Presi- the 107th Congress. Judge Gregory is unpublished memoranda, then these dent has the power to nominate, and now the first African American Judge law professors said to filibuster—for the Senate has the power to render to ever serve on the United States the first time in the history of the ‘‘Advice and Consent’’ on the nomina- Court of Appeals for the Fourth Cir- country, filibuster. tion. cuit, and he is serving with distinction. That is what we are going through Article II, Section 2 of the Constitu- Judge Gregory’s qualifications were right now. Isn’t it a crime—well, tion places the composition of our Ju- clear-cut. Regardless of which Presi- maybe that is too harsh. Isn’t it a diciary entirely in the hands of the dent nominated him, he deserved the shame and even despicable that they President and the Senate. Therefore, in support of the United States Senate.

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.215 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2329 The same is true with the nomina- I will talk about a number of issues, Court in 1987 was defeated after 8 days tion of Miguel Estrada. but the first thing I want to talk about of debate. Mr. Estrada has received a unani- is the fact that cloture or filibusters on So when the majority says that fili- mous ranking of ‘‘Well Qualified’’ by judicial nominations are well-estab- buster on judicial nominations is with- the American Bar Association. And, in lished precedents; they have been long- out precedent, ask them about the fili- my view, his record indicates that he established in this body and are appro- buster led by Senator Thurmond—re- will serve as an excellent jurist. priate in the context of Senate’s Con- cently retired—in 1968 on the nomina- Mr. Estrada’s resume is an impres- stitutional responsibility to advise and tion of Justice Abe Fortas to be Chief sive one. Born in Honduras, Miguel consent. There is no question that the Justice of the United States. Ask the Estrada came to the United States at use of filibusters has increased in re- majority about the filibuster in 1994 on the age of 17. At the time, he was able cent years. the nominations, as we have heard to- to speak only a little English. But just The Congressional Research Service night, on Barkett and Sarokin. Ask 5 years after he came to the United reports that filibuster and cloture are them about the nomination of Berzon, States, he graduated from Columbia used much more regularly today than and Paez to the Ninth Circuit, and the College with Phi Beta Kappa honors. at any time in the Senate’s past. Ap- scores of other judicial nominations Three years after he graduated from proximately two-thirds of all identifi- that were held up by using extreme de- Columbia, Mr. Estrada graduated from able Senate filibusters have occurred laying tactics when the Republicans Harvard Law School where he was an since 1970. Cloture was sought most fre- were in charge. editor of the Harvard Law Review. quently on nominations in the 103rd I stated earlier that of the 79 Clinton Mr. Estrada then went on to serve as Congress; that is, in 1993–1994 when the judicial nominations not confirmed in a law clerk to a Judge on the United House and the Senate were controlled the first Congress, there were 31 circuit States Court of Appeals for the 2nd Cir- by the Democrats, and the Republicans and 48 district court nominees. Fifty- cuit and as a law clerk to Judge Ken- used the filibuster and cloture as the nine of these were never allowed a vote nedy on the United States Supreme tool of the minority. In that Congress, by the Republican-controlled Senate— Court. cloture was sought on 12 nominations— 59 out of the 31 circuit and 48 district After his clerkships, Mr. Estrada judicial and otherwise, and invoked in court judges. Out of the 79 judges, 59 of worked as an Assistant United States only 4. them weren’t even allowed a vote. The Attorney, as an assistant to the Solic- Cloture votes on judicial nominees Republicans didn’t have to worry about itor General in the Department of Jus- are well precedented in recent history. a filibuster. They simply didn’t bring tice, and in private practice for two Both Democrats and Republicans have up President Clinton’s nominees. prestigious law firms. sought cloture in response to debate on As I have indicated, being more spe- Throughout his career, Mr. Estrada judicial nominations since the cloture cific, 31 circuit court nominees and 22 has prosecuted numerous cases before rule extended to nominations in 1949. were blocked from getting the vote and Federal district courts and Federal ap- Cloture was not sought on the nomina- being confirmed. And I read into the peals courts, and he has argued 15 cases tions until 1968 because prior to that RECORD all the names of the district before the United States Supreme concerns over nominations were re- court judges who simply were blocked Court. solved, or the nominee was defeated be- from getting a vote and were not con- Without a doubt, Mr. Estrada’s legal hind closed doors. firmed. I also read into the RECORD cir- credentials make him well qualified for Since that time, all Senators who cuit court nominees who were not the position to which he was nomi- have served in this body have recog- given an opportunity to be voted on, nated. I am thankful for his willingness nized that things have changed a great and certainly were not confirmed. to resume his public service, and I am deal since 1968. There were very few Now, it was the Framers’ intent that confident that he would serve as an ex- votes, period, in the Senate in those we do exactly what we are doing now. cellent jurist. early days. Now we have hundreds of And there have been a number of Mr. President, Miguel Estrada’s nom- votes in every session. From 1968 to writings on that. It is very important ination is a clear-cut case. I urge the 2000, there were 17 cloture attempts on we understand that what is being done Senate to confirm his nomination. judicial nominees. Of the 17 cloture at- here does not happen very often, but it The PRESIDING OFFICER. The Sen- tempts on judicial nominations, in 6 of does happen, Mr. President. ator from Nevada. them the Democrats were in the major- I personally—other than this right Mr. REID. Mr. President, I know the ity and in 7 of them the Republicans here—have been involved in only one audience has dwindled since this phase were in the majority. Of the 17 cloture other filibuster involved in nuclear of this debate started at 9 o’clock. I attempts, 2 involved nominees to the waste. I am told that I hold the record apologize to the Presiding Officer and U.S. district courts, 8 involved nomi- as a first-year Senator for the longest to the staff that has been here for 2 nees to the U.S. court of appeals, and 3 filibuster in the history of the country. workdays already today. But it would involved nominations to U.S. Supreme So I know what a filibuster is. Most certainly be unfair to the people who Court. Senators have never been involved in a we represent on this side of the aisle Opposition to judicial nominations filibuster. We have one here. for me not to say a few words to coun- have been based on objections to judi- Why? Because we are in an area teract and rebut the statements they cial philosophy of the nominee, con- where we really do believe that the per- have made for 3 hours. cerns that the nominee would treat all son who is being asked—Miguel First, I like President Bush. I cer- parties fairly on procedural grounds, Estrada—to be confirmed as a member tainly disagree with what my friend and, in this instance, I might add, for of the DC Circuit is a person from from Utah has said—that people over lack of having information on the nom- whom we are entitled to get some in- here dislike the President. I don’t ination given us by the President. formation. know if that is the case. President There is ample precedent for filibus- As I said to the majority leader, per- Bush is one of the most likable people tering judicial nominations. Based on sonally, and I have said publicly, there I have ever met. I don’t agree with a cloture votes, there have been, as I are only a few things that can be done significant number of policies that he have stated, 17 filibusters on judicial in the procedural posture of which the has enunciated, but that has nothing to nominations. Often there is extended Senate is now engaged. These are not do with disliking President Bush. This debate on the nomination. in order of priority: No. 1, pull the debate has everything to do with our For example, the nomination of nomination. No. 2, the leader or anyone constitutional prerogative under arti- Clement Haynesworth to the U.S. Su- can get a petition signed for cloture cle II, section 2, of the Constitution preme Court was defeated after lengthy and try to invoke cloture. Or it would that requires Senators to review the debate—7 days of debate. The nomina- seem to me the other thing that we judicial nominations sent to us by the tion of G. Harrold Carswell to the U.S. could do is have this man, who said he President of the United States. We Supreme Court was defeated after 12 does not care, prevail upon the Presi- have a right, we have an obligation to days of debate in 1970. The nomination dent to say: Give them those memos I do that. of Robert Bork to the U.S. Supreme wrote while I worked at the Solicitor

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.053 S12PT2 S2330 CONGRESSIONAL RECORD — SENATE February 12, 2003 General’s Office. It has been done be- And if we want to talk a little bit Solicitor General’s Office is that it fore, he should say. It has been done about his legal philosophy, I think it is may give us some idea how he stands with Chief Justice Rehnquist. Senator important because my friend, the dis- on legal issues. LEAHY has the stack of those memos tinguished chairman of the committee, He won’t tell us, so maybe we can provided in Rehnquist’s case. He want- said he wanted to know about—I can- find out from reviewing some of the pa- ed to become Chief Justice, Judge not remember all the names, Marsha pers he has written while he was em- Rehnquist did. We said: We want to see Berzon, Richard Paez, all the names he ployed. That is why we are concerned. those records, those solicitor general mentioned—he wanted to know if they We are concerned because we honestly memoranda. We got them. We reviewed were judicial activists, wanted to know believe we have a constitutional obli- those. It has been done in other cases. their judicial philosophy. And he said, gation to review this man’s records. So there is certainly precedent for with a couple of them, they were judi- Let me just say there has been a lot that. Similarly we should be privy to cial activists. He said he knew that, of talk tonight. There are TV ads run- Mr. Estrada’s memoranda; Mr. Estrada but he felt—for example, for Paez, Sen- ning as we speak. By the way, these TV should answer our questions. ator HATCH is absolutely right, he ads are being paid for by an organiza- I know my friend, the distinguished interceded with Richard Paez and was tion, the ‘‘Committee for Justice’’, Senator from Utah, has stated: I have a able to help get that nomination that was founded by the man who gave book here with all the answers to these through. No question. Senator HATCH Miguel Estrada the rating from the questions. made a very valid, honest statement. American Bar Association, Fred Field- Well, earlier today, I compared But even then, he knew in his mind ing. Mr. Fielding is the one who started Miguel Estrada’s answers to the ques- what the judicial philosophy of Richard this group, and he is running ads tions to a series of answers my grand- Paez was. against us. That is an interesting prop- son gave to questions my son asked We do not know what Miguel osition. At the ABA, the person who re- him. He just turned 3 years old. And I Estrada’s legal philosophy is. We do viewed and interviewed Miguel will repeat it. not know. For example, a question by Estrada, gave his recommendation to We have a home in Nevada. It is new. Senator DURBIN, a Senator from Illi- the ABA—and they accepted what he It is in Searchlight, NV. We have some told them—is a person who formed this new furniture in our new home. And we nois, asked: Give us an idea of some Supreme Court opinions with which committee that is running ads against had my grandchildren and some of my us. They are running all over the coun- boys there. And my little grandson, you disagree. He had no opinion. And as we talked about earlier today, try. Wyatt, wrote on one of the couches I wonder if some people who have not It seems to me the ABA has a slight with a pen. So his dad was upset, and been to law school, maybe have taken problem. According to their manual: he began to interrogate his son, my a course in constitutional law in under- No member of the Committee shall partici- grandson. graduate school—and if you are a law- pate in the work of the Committee if such He said: Did you do this? And little participation will rise to the appearance of Wyatt said: No. So my son, becoming yer like he is—couldn’t you dig up impropriety or would otherwise be incompat- more concentrated in his interrogation maybe the Dred Scott decision that ible with the purposes served and functions of this 3-year-old boy, said: Well, who said slavery was legal and constitu- performed by the Committee. did it, then? And my 3-year-old grand- tional? I don’t think he agrees with The ABA better review this proce- son said: I don’t remember his name. that. Couldn’t he have let us know? dure they have, make sure their re- Well, that is like the answers we Here is Miguel Estrada’s legal philos- viewers comply with it. have gotten from Miguel Estrada. They ophy: a big blank. To say he has rep- What these ads Mr. Fielding is run- are answers that I compare to my resented clients as a private lawyer is ning are saying, among other things, is grandson’s answers. Sure, he said no answer, provides little insight into that we are anti-Hispanic. That’s the something. My grandson gave an an- his philosophy. rhetoric of my friends on the other side swer. And if you printed that out in a As I said earlier today, I have been to of the aisle. book, it would fill up a sentence or so. trial lots of times. I have tried cases We have been accused by one Senator And Miguel Estrada has filled up a before courts over 100 times, presented of sending the message ‘‘if you are a book answering questions by not an- the client’s case to a jury. And a jury minority and a conservative, we hate swering. had to arrive at a decision based on you.’’ The distinguished chairman of When we were in the majority, we how I conducted that case. But after the committee said: ‘‘Hispanics face a could have stopped a lot of judges. We having reviewed every case that I tried, new obstacle from Democrats who have heard people over here asking there would be no way of determining would smear anyone who would be a their questions to the distinguished what my judicial philosophy is because positive role model for Hispanics.’’ chairman of the committee: Is this ret- every time I went to court, I was rep- I am disturbed by the hyperbole, the ribution? Is this vengeance? Well, we resenting somebody charged with mur- rhetoric being used to propel the nomi- said, when we took over control of the der, or someone who was charged with nation of Miguel Estrada to one of the Senate, that, in fact, if we wanted to robbery, or I was representing someone most powerful courts in the United really be mean spirited and treat the who was trying to get money as a re- States, the DC Circuit. I am at a loss Republicans like they treated us, we sult of a wrongful eviction from an to understand it as anything other could have stonewalled the appoint- apartment house, on and on with all than an attempt to silence Senators ment of judges. We said we would not the different cases that I tried. From who today seek to exercise their con- do that. And our record stands: 100 that, no one would know what my judi- stitutional duty to decide whether this judges in a period of 17 months. And cial philosophy would be because I was judicial nominee merits support. just this past Monday we voted unani- representing individuals in cases. Let no one within the sound of this mously for three additional judges. So to say, Estrada has argued cases, Senator’s voice be mistaken: We are And we will vote for a lot more. why don’t you look at the cases he ar- not going to be intimidated from ful- We believe this man, Mr. Estrada, gued? That has nothing to do with his filling this constitutional role. has some serious problems. We believe judicial philosophy. We want answers We know these statements about we have a few questions we want to questions, as we got answers to Democrats are false. The Hispanic Miguel Estrada to answer. As I have questions from the 100 judges Demo- community, the American people, and stated, Miguel Estrada’s answers to the crats moved through this body when my colleagues know the truth: The Judiciary Committee’s questions are we were in the majority, and the three Democratic party has put the vast ma- just like on this chart: a big blank. We who were just approved, confirmed jority of Hispanic appellate court do not know any more, other than the with us in the minority. judges on the bench. This is the first tone of his voice in what he said, what So we are entitled to know what Hispanic circuit court nomination we he knows. With the answers he gave, Miguel Estrada’s legal opinions are. have ever received from the President. we do not know anything more than You see, the reason we are making This is the first one, Miguel Estrada. when we started the Judiciary Com- such a big deal about trying to get As important as our record on His- mittee hearing. these memoranda from his work at the panic judges, the Democratic party is

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.234 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2331 the champion of issues of importance split. There is some dissension among My opposition to Miguel Estrada’s con- to the Hispanic community, from fair the ranks, some claim. The 20 members firmation is based upon the following. First, labor practices to immigration to pro- of the Hispanic Caucus are unani- I believe that Mr. Estrada showed himself tection of civil rights. mously opposed to the nomination of unwilling to allow the Senate to fully evalu- ate his record. He was less than candid in his To recount our record: Of the 10 Miguel Estrada. responses. Yet, Mr. Estrada, as every other Latino appellate court judges who are A release was issued yesterday where nominee who is a candidate for a lifelong ap- now serving, 80 percent were appointed Ciro D. Rodriguez, a Member of Con- pointment, must be prepared to fully answer by Democrats. Several of these nomi- gress from Texas, chairman of that basic questions, particularly where, as here, nees were denied Senate consideration caucus, said: there is no prior judicial record and no legal for years, while the Republicans con- It is disheartening to see that Members of scholarly work since law school to scruti- trolled the Senate. Judge Paez, we the Republican Senate continue to make nize. He declined to give full answer to many have heard about that. Thirty-nine Re- misleading and unfounded statements re- of the questions posed to him by the Senate Judiciary Committee. When he did give an- publicans voted against his nomina- garding the Congressional Hispanic Caucus’s opposition to the Bush nominee Miguel swers, those answers raised troubling doubts tion. Judge Sonia Sotomayor, nomi- concerning his ability to be fair. nated to the Second Circuit, was simi- Estrada. The [Congressional Hispanic Cau- cus] will continue to stand by its unanimous There are serious questions raised by his larly stalled. Her confirmation took 433 opposition to this unqualified nominee and sparse record on basic civil rights and con- days. Twenty-nine Republicans voted will not waiver. stitutional matters. It is unclear that Mr. against her confirmation. Senate Republicans continue to hit below Estrada would recognize that the First And then there were the Hispanic the belt, insulting Hispanic Members of this Amendment protects the rights of Latino nominees who were denied hearings or Congress who have been elected to serve as a youth to congregate and associate on public even votes by Senate Republicans dur- voice for the people in their community. streets. It is also likely that Mr. Estrada ing the Clinton administration: Jorge Today Senate Judiciary Chairman Orrin would not place proper limits on law enforce- ment as required by the Fourth Amendment. Rangel, Enrique Moreno, Christine Hatch continues to make misleading, par- tisan swipes. He incorrectly claims that the Given his views of enumerated rights, there Arguello, Ricardo Morado, Annabelle [Congressional Hispanic Caucus] is split in are serious questions whether he would rec- Rodriguez. These facts and these names its opposition, and he mischaracterizes our ognize a suspect’s right not to make incrimi- bear witness to the false claims made arguments. Yesterday, the [Congressional nating statements. His record leads me to by my colleagues on the other side of Hispanic Caucus] released a letter to Senator conclude that he would not take seriously the aisle. Hatch demanding an apology for comments and fairly Latino allegations of racial Despite these facts, Democrats don’t he made during Senatorial debate, likening profiling by law enforcement. Based on his believe that turnabout is fair play. Members of the [Congressional Hispanic Cau- actions in pro bono litigation, there is a cus] ‘‘to the lioness eating her cubs.’’ question whether he believes that organiza- Where President Bush has sent the tions which have long represented the inter- Senate open and direct nominees, those They go on to say: ests of communities would have the right to nominees have won swift confirmation We have yet to receive an apology or even represent those interests in court. In addi- in the Democratic-controlled Senate. an acknowledgement from the Senator that tion, his views concerning the continued via- President Bush has nominated eight his comments were out of line and insulting. bility of affirmative action programs are Hispanic Americans to the Federal dis- The [caucus] has supported numerous high- also suspect. trict courts, four have been swiftly ly qualified Hispanic appointees by the Bush Given these concerns, I oppose the con- administration. We oppose Mr. Estrada based firmation of Mr. Miguel Estrada. confirmed: Judge Christina Armijo, on our review of his inadequate qualifica- Judge Philip Martinez, Randy Crane, Finally, I am dismayed and disturbed with tions for what is viewed as the second most the tone that has been adopted by some of Jose Martinez. powerful court in the Nation. This anti-Hispanic rhetoric is a red Mr. Estrada’s most vocal supporters. Instead There has been a lot of talk about of focusing on the merits, they have resorted herring. LULAC being so widely in favor of to name-calling and insults. If they cannot Mr. Estrada’s background has noth- Miguel Estrada. Mario G. Obledo, who obtain sufficient support for Mr. Estrada on ing to do with my concerns. The red is a recipient of the Presidential Medal the merits alone and can only gain it by herring nature of this debate is belied of Freedom Award, past national Presi- falsely accusing Senators of being anti-His- panic or accusing Latino organizations who by the fact that leading Latino groups dent of LULAC, cofounder of the don’t support Estrada. They include oppose him of ‘‘selling out’’ their people, Southwest Voter Registration and Edu- then it does make one wonder whether Mr. the Congressional Hispanic Caucus; the cation Project, first general counsel Puerto Rican Defense and Education Estrada deserves the life-term appointment and past president of MALDEF, co- after all. There are some brilliant lawyers Fund; the Mexican American Legal De- founder of the Hispanic National Bar who cannot serve as fair and impartial ju- fense and Education Fund; the Na- Association, founder of the National rists. I now conclude that Mr. Estrada may tional Association of Latino Elected & Coalition of Hispanic Organizations, be a very talented lawyer but he cannot Appointed Officials; the National Coun- opposes the confirmation of Miguel serve as a fair and impartial jurist. His nom- ination should be defeated. cil of La Raza; National Puerto Rican Estrada. Coalition; Puerto Rican Defense and He says, among other things: Mr. President, we also have a letter Education Fund, California La Raza I write to join other Latino civil rights or- dated today, from the League of the Lawyers. ganizations in opposing the confirmation of United Latin American Citizens, These groups are joined by scores of Miguel Estrada to the D.C. Circuit Court of LULAC, addressed to Senators others in opposition to Estrada, includ- Appeals. My history in the Latino civil DASCHLE and HATCH. Among other ing the Leadership Conference on Civil rights community is lengthy. I am a past Na- things, this letter goes on to say that Rights, the Alliance for Justice, the tional President of LULAC, a co-founder of the LULAC organization supports National Organization for Women, the the Southwest Voter Registration and Edu- Miguel Estrada. But the second para- cation Project, the first General Counsel and National Association for the Advance- graph says: ment of Colored People, People for the later President of MALDEF, as well as a co- We are extremely disappointed that his American Way. founder of the Hispanic National Bar Asso- ciation. I am a recipient of the President nomination became mired in controversy. These groups are all dedicated to as- Medal of Freedom Award, this nation’s high- That said, we are alarmed by suggestions by suring equal opportunity in America, est civilian honor in recognition of my in- some of the backers of Mr. Estrada that the protection of minority rights, and ad- volvement with civil rights. I have been an Senate Democrats and members of the Con- vancement of the public interest. They, attorney for 43 years, and a former member gressional Hispanic Caucus are opposed to like many of my colleagues, are deeply of the faculty of Harvard Law School. I was the nomination because of race, ethnicity, concerned by Mr. Estrada’s limited formerly the Secretary of Health and Wel- and Hispanic bias. We do not subscribe to record and his unwillingness to engage fare for the State of California. I am the this view at all, and we do not wish to be as- with the Senate in an open and search- founder and President of the National Coali- sociated with such accusations. tion of Hispanic Organizations. I mention I ask unanimous consent that this ing discussion of judicial philosophy some of my past and current work in the letter be printed in the RECORD. and his record. Latino community so that there is an under- While we are talking about this, let standing of how intertwined my life has been There being no objection, the mate- me say there has been some talk that and still is with the betterment of my com- rial was ordered to be printed in the the Congressional Hispanic Caucus is munity. RECORD, as follows:

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G12FE6.236 S12PT2 S2332 CONGRESSIONAL RECORD — SENATE February 12, 2003 LEAGUE OF UNITED memoranda Mr. Estrada wrote when he and not refuse to provide the memos LATIN AMERICAN CITIZENS, was in the Solicitor General’s office; that he wrote in the Solicitor General’s Washington, DC, February 12, 2003. other people have not had to give office. Hon. ORRIN G. HATCH, them, so why should he? Other people They say this is the first true fili- Washington, DC. Hon. THOMAS DASCHLE, have turned these memos over is the buster. That certainly is not the case. Hart Senate Office Building, short answer. Another answer is that There have been a number of filibus- Washington, DC. Mr. Estrada—going to why it’s so im- ters—at least 17 on judges. Republicans DEAR SENATOR HATCH AND SENATOR portant here—is that he has virtually have filibustered Democratic nomi- DASCHLE: As you are aware, the League of no other record for us to examine. The nees. Republicans can call it what they United Latin American Citizens, has taken a other side of the aisle, my colleagues, want. Their attempts to invoke cloture position in support of Miguel Estrada for the have called the request for these walked, talked, and looked like filibus- D.C. Circuit Court of Appeals based upon our memos unprecedented. Senator LEAHY ters—they were filibusters. They didn’t review of his qualifications and legal record. We believe that he is an extremely well produced a number of actual Solicitor have the votes to sustain any number qualified nominee with an outstanding legal General memos turned over in the past. of those instances. record that demonstrates his knowledge of We have heard a lot about Mr. Paez There has been talk in the evening the law, his solid judicial temperament, and and about Marsha Berzon. Let me take that the reason the judge from Texas, his ability to set aside any personal beliefs them as an example. This woman was Judge Moreno, didn’t get a vote is be- he may have and make sound legal argu- asked to produce the minutes of meet- cause there was no consultation; it had ments based on the constitution and prece- ings she attended when she was a mem- nothing to do with blue slips, simply dent. ber of the ACLU, American Civil Lib- with the fact that there was no con- We are extremely disappointed that his erties Union. My colleagues went fur- nomination has become mired in con- sultation. troversy. That said, we are alarmed by sug- ther and even required Ms. Berzon to I ask unanimous consent that this gestions from some of the backers of Mr. supply the minutes of the meetings of letter be printed in the RECORD, dated Estrada that the Senate Democrats and the the ACLU while she was a member April 28, 1997, from Charles Ruff, the members of the Congressional Hispanic Cau- even if she didn’t attend the meetings. attorney for President Clinton—like cus are opposing his nomination because of We don’t want to go nearly that far. Gonzales is the attorney for President his race, ethnicity or an anti-Hispanic bias. We want to find out what is in the Bush now. We do not subscribe to this view at all and memoranda. It is not unprecedented. There being no objection, the mate- we do not wish to be associated with such ac- My friends have said these documents cusations. rial was ordered to be printed in the LULAC has had a long and productive are privileged. Everybody in this body RECORD, as follows: knows that the attorney-client privi- working relationship with many Senate THE WHITE HOUSE, Democrats and all of the members of the lege doesn’t apply to the Senate. In the Washington, DC, April 28, 1997. Congressional Hispanic Caucus and our expe- 15-page letter that the President’s law- Hon. ORRIN G. HATCH, rience is that they would never oppose any yer, Mr. Gonzalez, wrote back to the U.S. Senator, Russell Office Building, Wash- nominee because of his or her race or eth- Senate today—actually to Senators ington, DC. nicity. On the contrary, it is most often the LEAHY and DASCHLE in response to our DEAR SENATOR HATCH: Thank you for tak- Democratic members of the Senate who sup- request to produce these memoranda— ing the time to meet with the Attorney Gen- port LULAC’s priority issues and score high- eral and me. est on the National Hispanic Leadership even Mr. Gonzalez recognizes that these are not privileged. Both the As I told you, we are making every effort Agenda’s congressional scorecard which to send forward in the next weeks nomina- LULAC helps to compile. Nine times out of House and the Senate have explicitly tions for the senior positions at the Depart- ten it is the Congressional Hispanic Caucus rejected calls to incorporate that privi- ment of Justice, including Associate Attor- that is the champion or our legislative prior- lege into our rules. A judgment has al- ney General, and Assistant Attorney General ities as outlined in the enclosed LULAC leg- ready been made that to do so would for the Civil Rights and Criminal Divisions, islative platform. impede our ability to do our work, and and the Office of Legal Counsel. We share Nevertheless, the under representation of would impede it certainly with this your commitment to fill these critical posi- Hispanics in the Federal judiciary is of great nomination. tions at the earliest possible date and appre- concern to our organization and we have ciate your willingness to work with us in consistently encouraged both Democratic My friends on the other side of the aisle have implied that our requests achieving that goal. and Republican Presidents to appoint more With respect to judicial nominees, we rec- Hispanics to the Federal courts. Hispanics, are dangerous. I don’t believe that. ognize that, although the selection of judges however, remain severely underrepresented They have implied it would cripple the is among the President’s most important in the judiciary comprising only 3.8% of fed- Solicitor General’s office if these constitutional duties, senators from both eral judges while making up 14% of the US memoranda were released. The office parties have historically played an impor- population. functioned just fine after we got the in- tant role not only through their formal votes Consequently, we do not support the at- formation from Bork and Rehnquist. on such nominations but by providing their tempts of either party to prevent qualified, advice before a nomination comes to a vote. fair-minded, Hispanic nominations from The Solicitor General’s office survived just fine. We knew when we asked for We are committed to achieving the fullest moving forward for a timely confirmation possible measure of bipartisan consultation vote. While we clearly believe that the fili- that information before that it was on before the President makes his selection of a buster of Miguel Estrada is unfair, we also a very limited basis and it would only nominee. As we discussed, the nature of that believe that the delay of many of President apply to them and not to everybody. consultation should be shaped to meet the Clinton’s Hispanic nominees including Rich- The administration claims that these circumstances in particular states—the in- ard Paez, Enrique Moreno and Sonia documents—it reminds me of some terests of the senators involved, the number Sotomayor were unfair. It would be in the other documents that this administra- and type of openings to be filled, and other best interest of both Democratic and Repub- tion has tried to hide. I remember the factors. For example, we met recently with lican Senators to encourage more Hispanic Senators Gramm and Hutchison to discuss nominations to the federal courts and to Vice President and his National Energy Policy Development Group. We wanted their interest in having commissions review avoid embroiling these nominees in the par- the qualifications of candidates, and my staff tisan disputes that prevent the consideration to know if the Vice President met fre- will be working with theirs to determine how of these candidates based on their merits. quently with the oil companies in for- best to implement such a process. Similarly, Sincerely, mulating the nation’s energy policy. I understand that Attorney General HECTOR M. FLORES, They went to court to stop that. Edmisten is working with Senators Nickles LULAC National President. I would simply say here that what we and Inhofe to develop a bipartisan process Mr. REID. This letter goes on to say are asking for is certainly fair and we for identifying potential District Court can- they have had a longstanding relation- should get it. It would be the right didates. And in Pennsylvania, Senators Spec- ship with us, the Democrats; and basi- thing to do. ter and Santorum have worked with Con- cally it goes on to say that they sup- If the President and those on the gressman Murtha to establish commissions to review the qualifications of interested port Latino nominees for courts. They other side of the aisle think so much of candidates. In addition to these formal vehi- want more. this man, it seems that is a very light cles for consultation, we have met and will Mr. President, we have heard state- step to take: to answer the questions continue to meet with Republican senators ments here that we don’t need these and give reasonable, detailed answers, and their staffs to explore how best to obtain

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.059 S12PT2 February 12, 2003 CONGRESSIONAL RECORD — SENATE S2333 their input and to ensure that they are ad- from Harvard. It is a fine law school. ance of impropriety or would otherwise be vised when the President is preparing to an- But let’s not brag about this ABA rat- incompatible with the purposes served and nounce a nomination in their state. ing, in the manner it was obtained. functions performed by the Committee. Because confidentiality and discretion are I know that you fully appreciate the na- While serving on the ABA review ture of the President’s special prerogatives of critical importance to the evaluation in this important area, just as we are sen- committee, Mr. Fielding founded the processes of the Committee, only the Presi- sitive to the special role played by the mem- partisan ‘‘Committee for Justice’’ with dent of the Association, his designee, or the bers of the Senate. We are grateful for your C. Boyden Gray, another partisan Re- Chair of the Committee shall respond to any leadership and your assistance, and we will publican. There is nothing wrong being media or general public inquiries or make be happy to discuss further any specific Republican partisan. It is part of our any statements to the media or general pub- issues that may arise relating to the nomi- system. Some of my best friends are lic relating to the work of the Committee. The President of the Association shall take nation process. Republican partisans. But they should Sincerely, any action necessary to ensure adherence to not be involved in giving people ratings CHARLES F.C. RUFF, these principles. Counsel to the President. at the ABA and then setting up com- Mr. REID. Mr. President, Mr. mittees and paying for ads—running Mr. REID. Mr. President, he says, Fielding’s work in this so-called well- partisan ads if somebody does not ap- among other things: qualified rating does not meet the prove their nominee. smell test. It certainly does not meet We are committed to achieving the fullest The committee is running untrue possible measure of bipartisan consultation the test the ABA adopted. before the President makes his selection of a partisan ads against Democratic Sen- We have also heard tonight, last nominee. . . .We met recently with Senators ators in an attempt to keep us from night I should say at this point, that Gramm and Hutchison to discuss their inter- performing our constitutional duty. there is a vacancy crisis on the Federal est in having commissions review the quali- When Fielding recommended Estrada’s bench. Yet when my colleague, Senator fications of candidates, and my staff will be well-qualified rating, he was serving on HATCH, served as chairman of the Judi- working with theirs to determine how best President Bush’s transition team and ciary Committee during the Clinton to implement such a process. serving as a lawyer for the Republican years, he declared that a vacancy rate So there was consultation. National Committee. This does not of 67 judgeships on the Federal bench This President does not abide by the seem quite right to me. was ‘‘full employment’’ basically. advice and consent clause of the Con- You have to ask yourself, when My colleagues have also asserted stitution. Article II, section 2: We have Americans hear that the ABA rates a there is a crisis in the DC Circuit, not- a constitutional obligation to do just nominee well qualified, do they think ing there are four vacancies in the DC what we are doing. Republicans held up the President’s foot soldiers in the ef- Circuit. I say to my colleagues, if they scores of Clinton nominations. These fort to pack the bench play a major were concerned about such a crisis in nominees were subjected to secret role in making that rating? I doubt it. the DC Circuit, why didn’t they fill the holds, given no hearings or even votes. You have to ask yourself, doesn’t Mr. vacancies? Do you know why? They On two separate occasions today, I Fielding’s dual role—purportedly said the court had too many judges; have read into the RECORD the names ‘‘independent’’ evaluator and partisan they did not need more judges. Even of these people who simply were foot soldier—violate the ABA’s rules? though we had well-qualified people, dumped without even a hearing. ‘‘Governing Principles of the Stand- such as Elena Kagan and Allen Snyder, My friends on the other side of the ing Committee on Federal Judiciary, they said the court had enough judges aisle did not make their objections Appendix,’’ adopted by the ABA Board to do the work they do. known to the American people. We of Governors February 1988. I ask unan- They held them up so they could fill have in the light of day. They did not imous consent that this appendix be the court—hoping they would take the raise their objections in the light of printed in the RECORD. It states, among majority and the White House. They day. They never engaged in debate like other things: wanted their judges on this important this because they hid behind secret No member of the Committee shall partici- court that rules on civil rights, work- holds. pate in the work of the Committee if such ers’ rights, environmental protections, Their assertion that holding up participation would give rise to the appear- women’s rights, and a number of other Miguel Estrada is anti-American, anti- ance of impropriety or would otherwise be issues. Hispanic. I hope we have answered that incompatible with the purposes served and Now suddenly the court that was functions performed by the Committee. assertion. This charge is simply with- jammed to the gills, which really did There being no objection, the mate- out foundation. Democratic adminis- not need more judges, now needs them rial was ordered to be printed in the trations have placed nearly all the all. RECORD, as follows: judges who now serve at the appellate We are going to help them fill vacan- court level. The Democrat-controlled APPENDIX: GOVERNING PRINCIPLES OF THE cies because we believe the circuit Senate expeditiously approved all of STANDING COMMITTEE ON FEDERAL JUDICIARY needed the help when we were in the President Bush’s Hispanic nominees to The Standing Committee on Federal Judi- majority, when we had President Clin- the Federal district courts. ciary shall continue to direct its activities ton as President. But one of those peo- We have done the very best we could to evaluating the professional qualifications ple we are not going to allow to go to to move forward on judicial nomina- of persons being considered for appointment to the federal bench on the basis of predeter- the DC Circuit is Miguel Estrada unless tions, and we have determined it was mined and objective evaluation criteria we get the information we have re- time to draw the line because we are which shall be provided prior to evaluation quested. entitled to more than a blank page. to persons whose qualifications are to be Let me briefly state again that there Miguel Estrada’s ABA rating means evaluated. The Committee will continue, if has been some statement that the So- we should approve him. That is what asked, to provide to the Attorney General licitor General’s memoranda are privi- we are being told. Of course, all should and, following nomination, the Senate Judi- leged. They are not. Senate rules do be reminded that the Republicans, ciary Committee, its appraisal of the profes- not incorporate the attorney-client when they were in the majority, got rid sional competence, integrity and judicial privilege. Both the House and Senate temperament of such persons. of the ABA rating. They did not want In view of the special nature of the func- have declined to adopt that privilege as them to be part of the process. But now tion performed by this Committee and the part of their rules because we found it because Miguel Estrada got this ABA confidence reposed in the Committee’s eval- would impede our ability to do our rating given by Fred Fielding, my col- uations, the integrity and credibility of its work. leagues have deemed the ABA the gold processes and the perception of these proc- The wisdom of that is revealed in the seal of approval. esses are of vital importance. debate of this nominee. He has written Mr. Estrada did receive a well-quali- No member of the Committee while serv- very little besides these memoranda, if fied rating from the ABA, and he may ing as a member or within one year following anything. I understand he wrote one such service, shall seek or accept a nomina- deserve it, but it just does not look tion to the federal bench. law review note in law school. My col- right. I am not here to in any way im- No member of the Committee shall partici- leagues have opined providing these pugn the legal qualifications of a Har- pate in the work of the Committee if such memoranda would decimate the Solic- vard law graduate. I didn’t graduate participation would give rise to the appear- itor General’s Office. As I established,

VerDate Jan 31 2003 18:35 Feb 13, 2003 Jkt 019060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\A12FE6.054 S12PT2 S2334 CONGRESSIONAL RECORD — SENATE February 12, 2003 it did not with the nomination of Bork In the long term, this debate is going current law, we can change hearts and when we got the information, it did not to be extremely important and helpful minds as well. with Rehnquist when we got the infor- to the Senate because what it means is f mation, it did not with Easterbrook Presidents in the future, when they JACKIE ROBINSON when we got the information, and Civi- send nominees to go on courts, are letti and others. going to have to answer a few ques- Mrs. BOXER. Mr. President, I am Mr. President, this is, as Senator tions. They cannot send blank slates to proud to join Senators KERRY and HATCH would call it, a true filibuster. become judges. MCCAIN in co-sponsoring their bill to They do not happen very often. There I apologize to the Chair and to the award Jackie Robinson the Congres- have to be strong principles involved, very tired staff. They have worked long sional Gold Medal in recognition of his and there are. As I said last night, my and hard. The Presiding Officer and I profound and lasting contributions to friend from Utah can state as many will be home asleep, and these folks the cause of equality and civil rights in times and in as many different ways he will still be working to prepare the America. wants that there is not a problem with RECORD and take care of things. Jackie Robinson has always been a this nominee, and all I can say is, there So I apologize to everyone for keep- hero of mine—initially because he was is a problem with this nominee. ing them late. I know how hard they the greatest of all Brooklyn Dodgers We, on this side of the aisle, try to be work and how important each of them when I was a young Dodger fan growing very fair, as does the other side of the really is to the Senate and the institu- up six blocks from Ebbets Field, and aisle. We have a wide-ranging political tion. I hope we can wrap things up later because I realized how he had philosophy on our side of the aisle, and pretty quickly. changed America forever and for bet- it is not really often—because Demo- I yield the floor and suggest the ab- ter. crats are noted for their independ- sence of a quorum. Jackie Robinson was a peerless ath- ence—that we unite in this manner. The PRESIDING OFFICER. The Sen- lete who excelled in many sports and We do so here because important ator from Missouri. changed the way that baseball was principles are at stake, because our Mr. TALENT. Mr. President, I think played. He helped Brooklyn win five constitutional duty is at issue. We do pennants and one unforgettable World so because a nominee to a life-time the Senator from Nevada spoke with his usual eloquence and none of us Championship, when we no longer had seat on the second highest court in the to ‘‘wait till next year.’’ land should engage with us in a forth- could tell he was up that early in the morning. Even more important, he was a cou- right manner as he asks for the honor rageous pioneer who overcame tremen- to one day pass judgment on important f dous pressure and prejudice to break freedoms enjoyed by the American LEGISLATIVE SESSION the color line in major league baseball. people. It is hard for us today to imagine the It is not very often we join together Mr. TALENT. Mr. President, I ask obstacles he faced back in 1947, when in a cause, but we have joined together unanimous consent that the Senate our nation’s schools, military, and pub- in this cause because it is wrong for proceed to legislative session. lic facilities were all strictly seg- Miguel Estrada to go rushing on to the The PRESIDING OFFICER. Without regated. Overcoming taunts, assaults, DC Court of Appeals with a blank slate, objection, it is so ordered. and death threats, Jackie Robinson our not knowing what his judicial phi- f losophy is, not knowing what his played baseball—and played magnifi- record is. We want to know what he MORNING BUSINESS cently. His grace, dignity, determina- wrote when he had the opportunity to tion, and tremendous ability made him Mr. TALENT. Mr. President, I ask a hero to millions of Americans of all write memos when he was Assistant unanimous consent that the Senate Solicitor General, and we want him to races and backgrounds. proceed to a period for morning busi- Jackie Robinson once said, ‘‘A life is answer questions. We are entitled to ness. know that. These are not outlandish not important except in the impact it The PRESIDING OFFICER. Without has on other lives.’’ By this high stand- requests. objection, it is so ordered. The legal memoranda are a blank ard, Jackie Robinson’s life had monu- sheet of paper. His legal philosophy is a f mental importance. As Senator KERRY pointed out when introducing this bill, blank sheet of paper. His answers to LOCAL LAW ENFORCEMENT ACT Dr. Martin Luther King once said that the Judiciary Committee’s questions OF 2001 are a blank piece of paper. We deserve he could not do what he was doing if more than that. The Constitution de- Mr. SMITH. Mr. President, I rise Jackie Robinson had not done what he mands more than that. today to speak about the need for hate did. As our nation keeps struggling to Let me again apologize to the Chair crimes legislation. In the last Congress realize Dr. King’s great dream, we can for taking a few minutes this morning, Senator KENNEDY and I introduced the salute Jackie Robinson as one of the but I believed it would be a bit of lazi- Local Law Enforcement Act, a bill that fathers of that dream. ness on my part to walk out tonight, would add new categories to current I urge all of my colleagues to honor after having heard 3 hours of debate by hate crimes law, sending a signal that this great American by co-sponsoring my friend from Utah giving one side of violence of any kind is unacceptable in and passing this bill to award Jackie the story, because this has two sides. our society. Robinson the Congressional Gold This debate has two sides. Of course, I would like to describe a terrible Medal. we believe strongly that on a matter of crime that occurred November 24, 2001, f principle we are right. The Republicans in Cincinnati, OH. Theodore Jenkins, AMERICAN HEART MONTH believe they are right. That is what the 43, was savagely beaten and stabbed. Senate is all about. Jenkins told police that he was at- Mr. TALENT. Mr. President, I rise We are doing nothing that is unusual tacked by five men who beat him with today in recognition of February as or untoward. That is what the Senate a nightstick and stabbed him four American Heart Month. As a strong is all about. That is why the Founding times in the back. The attackers used supporter of the American Heart Asso- Fathers gave the Presiding Officer and racial slurs during the beating, and po- ciation, I want to make clear that pre- me the opportunity to serve, to rep- lice investigated the incident as a hate vention of heart disease should be a resent a State. There are two Senators crime. priority of health care funding. I have from each State. The small State of I believe that government’s first duty always believed that focusing resources New Hampshire, with two Senators, is to defend its citizens, to defend them on prevention will save lives as well as has as much opportunity, right, and against the harms that come out of taxpayers dollars. power in this body as the two Senators hate. The Local Law Enforcement En- Heart disease is the leading cause of from California with 35 million people hancement Act is a symbol that can death in Missouri and in the United in it. That is what the Senate is all become substance. I believe that by States. Almost 18,000 people in Mis- about. passing this legislation and changing souri died of heart disease in 1999.

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