S2144 CONGRESSIONAL RECORD — SENATE February 11, 2003 votes to get a confirmation? The Sen- serves a vote—but why I think the ju- those objections and show they are ate responsibly, wisely, backed away dicial confirmation process is broken merely pretext for what is really going from that position. and has fallen into a state beneath the on here. I urge my colleagues, come to the dignity of this institution and this The American people know what is floor, state your concerns. If you have body. going on here, though, regardless of additional questions, I guess there is Indeed, I think if you could charac- what Members may claim. They realize still time to get some answers. But we terize what has been going on with re- the judicial confirmation process in need to have an up-or-down vote on gard to this confirmation process, you the Senate has become a game of polit- this nominee this week. He has been could talk about ‘‘delay’’—the fact ical football, where the participants pending since May 9, 2001, as have some that Miguel Estrada’s name had been think they are going to score points other very qualified nominees for the sent up for consideration by the Senate against their opponent—Republicans Federal judiciary. How long is enough? some 18 months ago, on May 9, 2001. against Democrats, Democrats against How much time do you need to review Second, I would choose the word ‘‘de- Republicans. But while the people who the record and look at the credentials, feat’’ in talking about this nomination. engage in this game of political foot- the qualifications of a nominee? It is clear the overarching objective of ball may believe they are scoring It is actually embarrassing, the way those who choose to oppose this nomi- points, it is the American people who the questions are being raised about nation are those who wish to defeat lose. this nominee, that we wouldn’t give President Bush on any and every front Again, I want to associate myself this nominee an overwhelming and per- they can find, where they don’t believe with the thoughtful remarks made the haps unanimous confirmation to this they will have to pay a political price. other day by the senior Senator from Pennsylvania who called for an end to position. Is it a fear that this brilliant, You could also talk about ‘‘deny’’— the fingerpointing, the recriminations young Hispanic who has lived and denying an opportunity for immigrants and the faultfinding. He called for the taken advantage of the American like Miguel Estrada, someone who is beginning of a new protocol, a new dream might some day be rec- living the American dream, to serve in process that befits the dignity of this ommended for the Supreme Court? Is a position of public trust. institution, one that would provide a that what is going on here? If it is, why Finally, I will use the word ‘‘dis- timely, comprehensive, and efficient don’t we at least wait and worry about pirit.’’ Clearly, there is an attempt to way to evaluate and vote on judicial that when he gets nominated to the dispirit those who would offer them- nominees, regardless of which party is Supreme Court. selves for public service, to make it so burdensome and so distasteful that in power in the White House. He is qualified. He will be an out- First of all, I want to address the ob- standing Federal judge. I urge my col- they will choose not to offer them- selves for public service. jection that has been noted about Mr. leagues to stop using very weak argu- Estrada’s refusal to state a political ments about how maybe he didn’t an- So I believe much of this debate en- compasses these four concepts: Delay, position or ideological position on a swer detailed questions about what his whole range of issues that will, in all rulings might be in a hypothetical defeat, deny, and dispirit. Now, how have opponents to Miguel likelihood, come before him on the case. That is not usually the basis we Estrada’s confirmation chosen to ap- bench. use for voting against a nominee. proach their opposition? First, I be- Everyone knows judges are not sup- I thank Senator HATCH for the job he lieve they have used scare tactics. The posed to be politicians, running on the has done on the committee. I am glad Senator from Massachusetts said the basis of a party platform, and, worse this process is beginning to break loose other day: yet, everyone knows judges are not now for men and women, minorities, supposed to prejudge cases that may who have been pending for close to 2 When this or any other administration nominates judges who would weaken the come before them. Why have a trial? years and who deserve to be considered core values of our country and roll back the Why have the adversaries in a court of by the Senate. I wholeheartedly en- basic rights that make our country a gen- law argue about what the facts are or dorse this nominee and look forward to uine democracy, the Senate should reject what the application of the law to seeing the leadership he will provide on them. those facts should be if a judge is going this particular circuit court of appeals. And then we heard from the Senator to prejudge that case? That is not jus- I yield the floor. from Vermont: tice; that is the antithesis of justice f We see an emboldened executive branch and the dispassionate impartiality we RECESS wielding its rising influence over both expect from judges. Houses of Congress and ever more deter- Every lawyer—and this body is chock The PRESIDING OFFICER (Mr. SES- mined to pack the Federal courts with activ- full of lawyers—knows that cases are SIONS). Under the previous order, the ist allies, to turn the independent judiciary decided on the basis of the facts and hour of 12:30 having arrived, the Senate into a political judiciary. the law, not—in a court of law, at will stand in recess until 2:15 p.m. Mr. President, if either one of those least—on the basis of a political per- Thereupon, at 12:37 p.m., the Senate statements were true, if I believed suasion or an ideological position. Of recessed until 2:15 p.m., and reassem- those accusations were supported by course, Mr. Estrada is well within his bled when called to order by the Pre- the evidence, I would not support this rights to say, I am not going to pre- siding Officer (Mr. VOINOVICH). nomination, nor would, I believe, any judge a case because I do not know ex- f Senator, Republican or Democrat, sup- actly how the facts may come before port this nomination. But I believe NOMINATION OF MIGUEL A. me; I do not know how the jury may more than anything else that sort of ESTRADA, OF VIRGINIA, TO BE decide the facts, and therefore I cannot rhetoric, unsubstantiated in fact, is UNITED STATES CIRCUIT JUDGE tell you how the law may apply to that proof positive this confirmation proc- particular set of facts on a case-by-case FOR THE DISTRICT OF COLUM- ess is broken. And I say enough is basis. BIA CIRCUIT—Resumed enough. Under our system of government, The PRESIDING OFFICER. The Sen- Opponents of Miguel Estrada’s con- judges hold a very different job from ator from Texas is recognized. firmation claim he has an inadequate that held by a member of the legisla- Mr. CORNYN. Mr. President, I have record. They claim he has little rel- ture or even the President, a member listened with great interest, and even evant practical experience. They claim of the executive branch. Judges, if they great concern, to the debate that has because he would not engage with them are going to be true to their oath, if taken place in this Chamber on the in a debating tactic, asking him wheth- they are going to interpret the law, not issue of Miguel Estrada’s nomination er there is any Supreme Court decision make law, are bound by what this body to serve on the DC Circuit Court of Ap- with which he disagreed, and finally, says the law should be when we pass a peals, and I feel impelled to stand and they claim that he has not clearly stat- bill or the President signs a bill into explain the reasons why I think not ed his judicial philosophy. law, by the Constitution, and by prece- only Miguel Estrada deserves con- In my remarks over these next few dents; that is, earlier decisions made firmation by this body—indeed, he de- minutes, I hope to address each one of by high court.

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Again, I tion, and I applaud Mr. Estrada for re- and to claim he is not qualified is pre- ask: Why would he or anyone else like fusing to submit himself to that sort of posterous. him subject himself to this broken process and refusing to prejudge cases Of course, you cannot have the expe- process? or to act like a politician campaigning rience of being a judge until you have If he were here today, he would say, for confirmation. actually been one. People have to start as he told me in my office, that accept- During the Judiciary Committee somewhere. Even the senior Senator ing this nomination to serve on the DC hearing and during the executive ses- from New York has stated that Miguel Court of Appeals is not about personal sions in which I participated as a mem- Estrada passes his self-styled test for accomplishment, personal achieve- ber of the executive committee, Mr. excellence. He said: Excellence is legal ment, but it is a sense of duty and obli- Estrada was asked: Do you disagree excellence, the quality of the mind. We gation to our country, his adopted with any previous decision of the U.S. don’t want political hacks on these im- country. Supreme Court? I am afraid that dem- portant courts. No one disputes that This country took in his mother and onstrates again what the judicial con- Mr. Estrada passes this point with fly- his sister, and himself. At age 17, he firmation process has degenerated into. ing colors. He comes highly rec- came from Honduras to America, bare- It should not be trivialized, and it ommended in this regard. When the ly speaking English. Working together should not be reduced to a law school ABA, the American Bar Association, and at great sacrifice, his mother put classroom where narrow and provoca- recommends him, that is all they are Miguel through law school, with his tive points of law are debated. evaluating. help. He worked odd jobs. It is also Does anyone really doubt that if any I believe it is a red herring to argue worthwhile to note, they put his sister nominee disagreed with a Senator’s that Miguel Estrada has insufficient through medical school. view on policy issues, no matter how experience to serve on this important These immigrants, one a distin- wrong under the law, we would see court. guished lawyer, another a distin- nothing but further degeneration of the What is really going on? I think a guished doctor, by dint of hard work, confirmation process? comment in the CONGRESSIONAL access to a good education, have I believe that Mr. Estrada, being a RECORD on February 5, 2003, by the achieved what we all recognize as the good lawyer and highly qualified to ranking minority member of the Judi- American dream and what every immi- serve on the DC Court of Appeals, is ciary Committee, the Senator from grant hopes for. Indeed, we are a nation following the dictum of a Supreme Vermont, is very telling, and I want to of immigrants. Through education and Court Justice who said the Supreme read this twice so there is no missing hard work, they have found prosperity, Court is not final because it is always what he said. and this opportunity, this hope, is the right; it is right because it is final. In He said: best civil right this country can give to other words, the way the Supreme I have friends who range across the polit- any immigrant. Court decides a case puts it to rest un- ical spectrum. But I think I also would be Miguel Estrada sees this as an oppor- less, in the legislative area, Congress willing to state what my political philosophy tunity to contribute to a way of life comes back and passes a statute that, is, or certainly what my judicial philosophy that provided him a way out, an oppor- in effect, overrules that decision by is, if I am going to ask for a lifetime appoint- tunity for great achievement and suc- changing the law and making it per- ment to the bench, just as I have to state cess, and an opportunity for public haps clearer what its intent is, or even, what my political philosophy is when I ask service. Only under our broken, de- in the rarest of circumstances on a the people of Vermont to elect or reelect me. structive judicial confirmation process, constitutional point, that the people So it is clear, what the Senator is as it has now become in this body, choose to amend the Constitution and saying is he expects a person nomi- someone can be demonized, not just say that does not represent what we, nated by the President, before this criticized but demonized, for such an the people, want the Constitution to body for confirmation, to express a po- honorable goal. It is a shame. reflect or it does not reflect our values. litical philosophy, just like he or any America has always been, and God And there is a process, of course, for other Member of this body would run- willing will always be, a land of oppor- that as well. ning for the Senate. tunity. Yes, despite our imperfections, One of the most extraordinary argu- I believe that demonstrates exactly despite our mistakes, millions have ments I have heard by opponents to how wrong the concept is of what the flocked to these shores seeking a better Miguel Estrada’s confirmation is that advice and consent function of the Sen- life for themselves, their children, and he does not have the experience to sit ate should be under our Constitution, their grandchildren. America is, of on the DC Court of Appeals. and how wrong the concept is of what course, a land of immigrants, where I have been honored during my career a judge should be under our Govern- those who come look for freedom to to serve as a judge at a trial court ment of separated powers. I want to speak as they wish, to associate with level, at a State supreme court level, talk about that in a moment. whom they choose, to worship accord- and I have been honored to serve as an When I think about the scare tactics ing to the dictates of their conscience attorney general of my State, the that have been employed over the last and, yes, to seek justice. Those who State of Texas, before I came to the few weeks with regard to Miguel have come have spared nothing, some- Congress. I will tell you that Mr. Estrada, it becomes crystal clear to me times even their own lives, seeking op- Miguel Estrada has exactly the kind of why our Government has a difficult portunities for those who come after. experience that has prepared him bet- time recruiting talented individuals to At different times during the course of ter than virtually anyone could pos- leave the private sector and offer this Nation’s history, they have come sibly be for service on this court. themselves for public service. Why from England, Italy, Ireland, Spain, Of course, we all know his record, a would anyone in Miguel Estrada’s posi- Mexico, Canada, Asia. They have come distinguished academic record. We tion, a successful lawyer, someone who, by the thousands and tens of thou- know he served in the Solicitor Gen- as I said, has been to the Super Bowl 15 sands. What has drawn them irresist- eral’s Office during the Clinton admin- times, subject himself to such a spec- ibly to this country is their hope and istration and argued 15 cases before the tacle? their ambition, not just for themselves U.S. Supreme Court. As attorney gen- Mr. Estrada is very good at what he but for those who would come after eral of Texas, I had the honor of argu- does. He has a successful law practice them. ing twice before the U.S. Supreme as a partner in a prestigious firm. In It is that diversity, that desire, that Court myself, and I must tell you that the 16 years he has practiced law, his dedication, that is the bedrock of is the Super Bowl for someone in my reputation is unblemished. For the American strength and resilience, and profession and someone in Miguel first time in his career, his profes- which has made America a beacon of Estrada’s profession. That is the peak sionalism, his temperament, his will- hope for the rest of the world.

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2146 CONGRESSIONAL RECORD — SENATE February 11, 2003 To me, one of the most amazing a judge under our Constitution. Judges ment; and must ultimately depend upon the things about Miguel Estrada’s story is are bound to follow Supreme Court aid of the executive arm even for the efficacy in many ways it is not unique. It is ex- precedent, whether they agree with it of its judgments. emplary, but it is not unique. His or not as a personal matter. If there is I would like to address one other learning to speak English at 17, his such a thing as the rule of law as op- comment that is made from time to subsequent admission and outstanding posed to the rule of men, judges are time about the role of the Senate in accomplishment at the premier insti- bound to follow the acts of the legisla- performing its advice and consent func- tutions of higher learning in this coun- ture and judicial precedent, whether tions. Some Senators I have heard say try, have all been remarkable, but the they agree with them or not. Mr. they perceive their role as seeking to simple immigrant story that is his life Estrada has committed to follow the achieve balance of the courts, by which has been repeated time and again over law, whether he agrees with it or not. I take them to mean they believe that the course of this Nation’s history. Personal views and ideology have no a court, the District of Columbia Court People have come to work in this coun- role whatsoever to play. I believe that of Appeals, must be evenly split with try with little but their hopes and under our Constitution—and I believe judges of different philosophies. their dreams, and by dint of faith, hard that is what is taught in our class- That concept is completely alien to work, determination, sacrifice, they rooms in civics every day across this our Constitution. Balance and inde- achieve the American dream. Each Nation—this is the appropriate role for pendence, in our judicial branch, are time this happens, and it has happened a judge and for our judicial branch. We not meant to be determined by Repub- time and again during the course of don’t want them making legislative licans and Democrats choosing their this Nation’s history, America redeems policy. We do not want judges who are respective champions. The President a promise it makes to all who would legislators in robes. has a right granted to him under the come here: Liberty and justice for all. My colleagues across the aisle in this Constitution to appoint judges of his Too often, we focus on what is wrong Chamber know, we all know, that is choosing, subject to the advice and with our country. No doubt we should our job. We stand accountable to the consent of the Senate. That is one of strive to correct our mistakes, strive American people and to the voters of the reasons we vote for a candidate to to overcome our shortcomings when- our States for doing that job. That is serve as President of the United States. ever and however we can, but we would what we have accepted by coming here All we should rightly do as Senators is be a cynical people, knowing the costs and agreeing to represent our States. determine whether or not a nominee of everything and the worth of nothing, A lot of the debate we are hearing has the qualifications and the tempera- if we did not also celebrate what is today, this week—and who knows how ment to be a judge. Included, of course right in America. We should celebrate long this will go on—is not just about as an element of that temperament, we occasions like this when the hopes, Miguel Estrada but about what is the should expect that nominees will dreams, and aspirations of an immi- appropriate role for our three branches pledge to a sound judicial philosophy, grant family from Honduras have be- of Government. Heaven knows, this is to uphold the law, by giving the legis- come a reality, confirming once again not a brandnew debate. But I would lature deference and by following judi- America is indeed the last best hope of think most of the country would have cial precedent. Miguel Estrada has mankind, where all who come here and thought that matter already settled. pledged to do exactly that, and we who are willing to work hard to sac- Indeed it was. Alexander Hamilton should ask no more and no less of any rifice can live up to their God-given po- wrote about it in the Federalist Pa- nominee. tential. pers, of course, as the President knows, I said earlier I believe our judicial We have heard it said Mr. Estrada when the people of New York were con- confirmation process is broken, that has not laid out his judicial philos- sidering this new Constitution, wheth- the kind of things we see going on in ophy. I was surprised to hear that in er to ratify it. He was explaining the the process—delay, defeat, denial, and the Senate Judiciary Committee the various provisions of this new Con- a dispiriting of those who would offer other day, when the senior Senator stitution to the people at that ratify- themselves for public service—has cre- from New York made that charge, and ing convention in New York. It is ad- ated a terrible situation. The process said all he has told us is he will follow dressed in Federalist No. 78, what is has become so politicized that we find the law, he has not told us what his ju- the role we expect of the judiciary and ourselves in situations such as this, dicial philosophy is. Well, I think Mr. how does that relate or compare to the where Senators on the other side of the Estrada has articulated the best judi- role we have for the legislature or for aisle are now talking filibuster, to cial philosophy that we as Americans the executive branch—the President. deny this President the prerogative, could possibly hope for, a judicial phi- He said: granted to him under the Constitution, losophy and a dedication to the law Whoever attentively considers the dif- to appoint a highly qualified individual that the American people who appear ferent departments of power must perceive, such as Miguel Estrada to serve on the before the bench require. that, in a government in which they are sep- District of Columbia Court of Appeals. What he has said is he will not pursue arated from each other, the judiciary, from It is obvious to any reasonable per- his own agenda. He will not pursue a the nature of its functions, will always be son that the Senate needs a fresh start. social or political agenda. He will not the least dangerous [branch] to the political We need a fresh start on judicial nomi- try to make the law according to his rights of the Constitution; because it will be nees and on the judicial confirmation liking. He will give the legislatures’ least in a capacity to annoy or injure them. process. Miguel Estrada, like other The Executive [on the other hand] not only nominees, has waited for an inordinate enactments and the acts of Congress dispenses the honors, but holds the sword of deference and will seek to determine the community. amount of time—18 months so far. We owe it to the men and women who are our intent as policymakers and as In other words, the executive’s job is nominated by the President to do our those in the political branch who run to execute the laws passed by the legis- job on a timely basis, and to do it ap- for office based on a platform saying lature. what we are for and then are voted for plying constitutional standards, not by the people of our State to come The legislature not only commands the those that we make up or which we purse, but prescribes the rules by which the here. By saying he would follow the duties and rights of every citizen are to be perhaps prefer, or those which serve law, he is saying he would not only regulated. the political interests of some con- stituency. The truth is, we owe it not honor legislative acts, he would follow In other words, the legislature makes only to the men and women who are judicial precedence. That is the deci- policy, makes the law. nominated, we owe it to the American sions by the highest court in the land. He goes on to say: As legislators, as those in the Senate people to do our job, to do it on a time- who have the awesome responsibility of The judiciary, on the contrary, has no in- ly basis, and to apply correct constitu- fluence over the sword or the purse; no direc- advice and consent, we should want to tion either of the strength or of the wealth tional standards, because we know, and hear that. We should embrace it. There of the society; and can take no active resolu- common sense will tell us, that the is no role for advocacy of personal be- tion whatever. It may truly be said to have failure of this body to timely act on liefs or political agendas on the part of neither FORCE nor WILL, but merely judg- the President’s nominees means that

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Instead, he stonewalled serious and delayed is justice denied. mous consent that Senator BYRD, the valid questions—serious and valid ques- As someone new to this body, I hope distinguished Senator from West Vir- tions that have been answered by many a new system can be devised enabling ginia, be recognized following the re- other nominees who have appeared be- us to consider, on a bipartisan basis, marks of Senator EDWARDS. fore the committee. new rules, a new agreement, a new par- The PRESIDING OFFICER. Without Other judicial nominees of President adigm, a new protocol that will guide objection, it is so ordered. Bush have discussed at length their us in the manner in which we consider The Senator from North Carolina. views in hearings before the Senate Ju- the President’s nominees. That is not Mr. EDWARDS. Mr. President, I be- diciary Committee. For example, Mi- just for this President, but anyone lieve judges have no greater responsi- chael McConnell, whom I voted for and elected by the people to serve in that bility than to ensure fair treatment who was recently confirmed to the important office, regardless of who is and equal justice under the law. I also Court of Appeals for the Tenth Circuit, in power, whether it is a Republican or believe one of our greatest responsibil- thoroughly discussed his views on sub- a Democrat. ities as Senators is to advise and con- jects such as Roe v. Wade and the Su- The result of this fresh start should sent on the President’s nominees to the preme Court’s recent ‘‘federalism’’ or be timely consideration of a nominee’s bench. I, for one, take this responsi- ‘‘States rights’’ decisions limiting the qualifications and an up-or-down vote bility very seriously. It is not our duty authority of Congress. by the Judiciary Committee—and cer- as Members of the Senate to just rub- But with Mr. Estrada, it is very dif- tainly no one is suggesting that any ber stamp the President’s nominees— ferent. The Justice Department refused Senator ought to do anything other particularly nominees who we doubt to produce any legal memoranda writ- than to cast their vote either for or are committed to protecting equal ten by Mr. Estrada during his 5 years against a nominee. But they ought to rights for every single American. as a lawyer in the Solicitor General’s do so on a timely basis. We should not Having read the record of this nomi- office. In this position, Mr. Estrada re- have the kind of delay which we have nee very carefully, I feel compelled to searched the law, he wrote memoranda, had in this case. But if a nominee is oppose the nomination of Miguel pleadings, and briefs on behalf of the voted out of the Judiciary Committee, Estrada for two reasons. First, what we Federal Government on critical and then, of course, there ought to be that know about his record raises serious constitutional and statutory questions timely vote by the entire Senate re- questions about his commitment to that were before the U.S. Supreme gardless of who is President. Let us not protecting equal rights under the law. Court. hold to the delays and obstructions of Second, and more importantly, his I understand the administration has the past as methods for treating judi- refusal to answer reasonable questions concerns about executive privilege, but cial nominees in the future. during the confirmation process makes there are ways to strike a balance be- In closing, I urge my colleagues to it impossible to examine his views of tween the privileges of the executive confirm Miguel Estrada. I believe we the law and determine whether his per- and the rights of the Senate to learn ought to have a vote today on his nom- sonal views would overrule law and about a nominee before we make a de- ination. We have had many days of de- legal precedent. cision about him. That is what has bate. We have had 18 months since the Federal judges wield enormous power happened during the judicial nomina- President first proposed his name. Mr. and have a huge impact on the rights tion process of other nominees who Estrada has been scrutinized and ques- of individuals all across America. have worked in the Solicitor General’s tioned. His background has been inves- Given the fact that the Supreme Court office, including Robert Bork and Chief tigated by the FBI. I believe he de- reviews fewer than 100 cases per year, Justice William Rehnquist. We tried to serves a vote either up or down today. circuit courts, such as the DC Circuit discuss Mr. Estrada’s views with him Of course, I will, for the reasons I where Miguel Estrada is being nomi- during the hearing, but instead of have just stated, vote for his confirma- nated to, ends up as the courts of last being forthcoming in answering our tion. I believe the Nation will benefit resort for nearly 30,000 cases each year. questions, Mr. Estrada was extraor- from his experience, and he will be Let me repeat that. Fewer than 100 dinarily evasive. Time after time, Mr. given the opportunity to give back to cases are reviewed before the Supreme Estrada refused to answer our ques- his adopted country through this posi- Court, and 30,000 cases are decided at tions because he claimed not to have tion of honorable public service. the circuit court level. an opinion since he has not been per- I yield the floor. These cases affect the interpretation sonally involved, read the briefs, lis- The PRESIDING OFFICER. The Sen- of the Constitution as well as statutes tened to oral arguments, or independ- ator from Nevada. enacted by us to protect equal rights. ently researched the case. Mr. REID. Mr. President, first, I have The circuit courts are the courts where Anybody who has attended law enjoyed the presentation of the Sen- Federal regulations will be upheld or school, including myself, knows that ator from Texas. But I would suggest overturned, where many personal law students and lawyers express opin- that my experience here over for now rights will either be kept or lost, and ions about Supreme Court cases every more than two decades indicates that where invasions of freedom will be al- day because of their ramifications for the problem isn’t a matter of whether lowed or curtailed. They are the courts current cases with similar issues. it is a Democrat or a Republican Presi- where thousands of individuals will Nine times during his testimony Mr. dent. The process is broken down there. have a final determination in matters Estrada refused to name any Supreme It is not up here. The advice and con- that affect their financial future, their Court case with which he disagreed. sent role which we have under the Con- health, their liberty, and their lives. And time after time after time, Mr. stitution is something that should The District of Columbia Circuit is Estrada just flat out refused to offer us work and should continue to work. an especially important court in our any explanation of or insight into his I suggest here on the floor myself judicial system. It is the most pres- view of his judicial philosophy. that we need to do something to speed tigious and powerful appellate court For example, we have heard the up the process down there. When these below the Supreme Court level because President state on many occasions that people apply for judgeships, the work is it has exclusive jurisdiction over crit- he intended to appoint judges who are unending. For people who want to have ical Federal constitutional rights. strict constructionists—a term com- Cabinet or sub-Cabinet jobs, the proc- About Mr. Estrada: The little that we monly used in describing judicial phi- ess is unending, and we have to do know of Miguel Estrada’s approach to losophy and often applied to Justices something to get that speeded up. The the law is troubling. But Mr. Estrada’s Scalia, Thomas, and Rehnquist. I asked problem is not up here. record is not the main reason I can’t Mr. Estrada a simple question of The Senator from North Carolina support his nomination at this time. whether he considered himself within wishes to speak for up to 10 minutes. The main reason is that he has not ex- that category; did he consider himself

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2148 CONGRESSIONAL RECORD — SENATE February 11, 2003 a strict constructionist? But he refused as Justice Scalia to someone such as long the Senator from Minnesota wish- to provide a straight answer. Justice Stevens. But Mr. Estrada said es to speak? Question to Mr. Estrada: they were all ‘‘fair constructionists,’’ Mr. COLEMAN. Mr. President, I say Are you a strict constructionist? which basically meant the term had no to the Democratic whip, I have about Answer: meaning at all. 21⁄2 pages typed, probably no more than I am a fair constructionist, I think. It is like asking someone, ‘‘Which 10 minutes, 5 to 10 minutes maximum. Member of the Senate has your philos- Mr. REID. Why don’t you go ahead Question: ophy?’’ and the answer being, ‘‘Well, and speak for, what did you say, up to Do you consider yourself to be a strict con- they all do.’’ We do not all have the 10 minutes? structionist? same philosophy in the Senate. I do not Mr. COLEMAN. At the maximum. Answer: think anyone would question that. Mr. REID. I ask unanimous consent I consider myself to be a fair construc- He refused to answer a question that following the statement of the tionist. I mean, that is today. I don’t think about his views of any judge, living or Senator from Minnesota, the Demo- that it should be the goal of our courts to be dead. cratic leader be recognized. strict or lax. The goal of the courts is to get The PRESIDING OFFICER. Without it right. . . . Question: In terms of judicial philosophy, please objection, it is so ordered. The Senator I tried again. name several judges, living or dead, whom from Minnesota is recognized. Question: you admire and would like to emulate on the Mr. COLEMAN. Mr. President, this Let me ask the same question a little dif- bench? morning the distinguished Senator ferently. The President gave a speech last Answer: from New York made some statements night at a fundraiser and specifically re- There is no judge, living or dead, whom I about the Senate’s constitutional ad- ferred to your nomination, among others. vice and consent responsibility. I would The President said, ‘‘For a stronger America, would seek to emulate on the bench, whether we need good judges. We need people who in terms of judicial philosophy or other- like now to respond to those state- will not write the law from the bench, but wise.... ments because some of her views of the people who’’—and I am quoting him now— Again, ‘‘none of your business.’’ Senate’s appropriate role in judicial ‘‘strictly interpret the Constitution.’’ As a judge on the D.C. Circuit, nominations are different from mine. Do you fall within the President’s defini- Miguel Estrada would have an enor- I speak as a former solicitor general tion? mous impact on the lives of millions of of the State of Minnesota. I had an op- Mr. Estrada’s answer: Americans. The American people de- portunity to argue on many occasions I have not spoken with the President about serve to know about this man who will before the highest courts in my State. this or any other subject. I don’t know what have such an effect on their lives. They I have a great love and appreciation for he meant. If I had to take his text as a stat- deserve to know whether he will re- our Constitution and its history. ute, I would want to know more about the spect and protect their civil rights. In its enumeration of the President’s circumstances in order to figure out whether powers, the Constitution has provided I can answer your question. They deserve to know this before he dons the cloak of silence he will get a role for the Senate in the appoint- Question: once he is on the bench. The American ment of various Federal officials, in- You haven’t been asked that question by people deserve more from Miguel cluding Federal judges. The relevant anyone during the course of your nomination Estrada than ‘‘none of your business.’’ text, which is set forth in article II, process? I look forward to working on a bipar- section 2, of the Constitution, reads: If I can interject here, this is some- tisan basis to elevate qualified, mod- The President . . . shall nominate, and by thing the President talks about regu- erate nominees to the Federal bench. and with the Advice and Consent of the Sen- larly—appointing judges who are strict In particular, in the Fourth Circuit, ate, shall appoint . . . Judges of the Supreme Court, and all other Officers of the United constructionists. where North Carolina is, I have high He has now been asked several times States, whose Appointments are not herein hopes President Bush will nominate a otherwise provided for, and which shall be by me in the hearing whether he is a highly qualified candidate whom I will strict constructionist. His answer was established by law[.] be able to support. As one scholar has noted: artifice language without answering But, based upon Mr. Estrada’s record, the question. a reasonable reading of the text suggests this is clearly not the right man. I will that because the Senate’s role in the ap- I asked the question whether he is a not just rubberstamp nominees who strict constructionist. I asked: pointments process is outlined in Article II have not proven they are qualified for enumeration of presidential powers, rather You haven’t been asked that question by the extraordinary responsibilities of a than described in the Article I enumeration anyone during the course of your nomination Federal judge, and particularly the ex- of congressional powers, the Senate plays a process? traordinary responsibilities of a judge more limited role in the appointment of Answer: who would sit on the DC Circuit Court judges. No. I was asked very similar questions, and of Appeals. As a result, I urge my col- A reading of Alexander Hamilton’s they generally had to do with how I go about leagues to oppose this nomination. commentary on the Appointments generally interpreting the Constitution and I thank you, Mr. President. Clause sheds some additional light on statutes—and I gave the answer that I gave how the Framers viewed the Senate’s you a few minutes ago. The PRESIDING OFFICER (Mr. CRAPO). The Senator from West Vir- duty of advise and consent. Hamilton In other words, ‘‘none of your busi- ginia. acknowledged the danger that the Sen- ness’’ was the answer. Mr. BYRD. Mr. President, parliamen- ate’s advise and consent role could cre- Other Senators tried to get a straight tary inquiry. Is the Senate in executive ate an overly indulgent Senate rela- answer from Mr. Estrada. session? tionship to appointed officeholders en- Question: The PRESIDING OFFICER. The Sen- gaged in malfeasance. Hamilton rebut- Of the current members of the Supreme ate is in executive session. ted this point by arguing that the Sen- Court, who would you characterize as a Mr. BYRD. I thank the Chair. ate would have a strong interest in ap- strict constructionist? Who would you char- pointing qualified leaders and in pro- acterize as a fair constructionist? Mr. President, I ask unanimous con- sent to speak as in legislative session. tecting its reputation for appointing That was his language. The PRESIDING OFFICER. Without quality officeholders. He further point- How would you characterize the remaining objection, it is so ordered. ed out—and this is important—that the Justices? (The remarks of Mr. BYRD are printed Senate does not have the power to Answer: in today’s RECORD under ‘‘Morning choose officeholders, but only to advise I would characterize each member of the Business.’’) and consent. In a moment of amazing current Court as a ‘‘fair constructionist.’’ Mr. REID. Mr. President, the Senator prescience, he stated that he felt that The people on the Supreme Court from Minnesota is here. I am holding Senators might have political reasons today have totally different philoso- the floor now because the Democratic for confirming or rejecting a nominee. phies. Everyone knows that. You have leader has been waiting since 2:15 to He nevertheless observed—or perhaps a broad spectrum from someone such come and speak. I am wondering how hoped—that since the President alone

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 11, 2003 CONGRESSIONAL RECORD — SENATE S2149 makes the nominations, Senators I have taken the time to share with works, there are very few glitches. would be somewhat constrained in my colleagues some of the historical When it works, Republicans and Demo- their voting decisions and that self-in- details of the judicial confirmation crats can come together and make terested decisions would be offset by process in order to put the debate over their best judgment. other Senators. He predicted that vot- Mr. Estrada’s nomination into perspec- It worked in this case. Why did it ing decisions on the merits would be- tive. What was enumerated in the Con- work? It worked in part because these come much more the norm. stitution as ‘‘advice and consent’’ has nominees came before the Judiciary I wonder what Alexander Hamilton in practice devolved to ‘‘negotiation Committee and they did their best to would say about the debate we have and cooperation’’ in the best cases, and answer the questions presented to had over Miguel Estrada’s nomina- ‘‘obstruct and delay’’ in the worst them. They did their best to offer as tions. I can’t imagine that he would be cases, aided and abetted by the liberal much information as they could about pleased. Washington special interest groups. I their past, about their record, about Hamilton believed that the appoint- fear that we are seeing the latter at others’ judgments, and about their ments powers were wisely vested in the work in Mr. Estrada’s case. record. Having presented their infor- hands of two parties, the President and I was recently elected to get things mation, having made their case, the the Senate. On one hand, Hamilton be- done. I was elected, and I heard my Judiciary Committee voted, they were lieved the President, acting alone, voters say: Put aside the bitter par- passed out of committee, they came to would be the better choice for making tisanship that is stopping the Senate the floor, and the Senate voted. nominations, as he would be less vul- from moving forward and that has pre- Not one Republican Senator has men- nerable to personal considerations and vented the Senate from getting a pre- tioned that process today. They say political negotiations than the Senate scription drug benefit and Medicare for that somehow we are abrogating our and more inclined, as the sole decision seniors, that stopped us from getting responsibilities in requesting exactly maker, to select nominees who would disaster relief assistance, that stopped the same information from Miguel reflect well on the presidency. On the us from getting a budget and appro- Estrada—not any more but not any other hand, he argued that the Sen- priations bills passed. less. ate’s role would act as a powerful Now we are facing the first partisan So this is not a question about dis- check on unfit nominees by the Presi- filibuster of a circuit court judicial allowing conservative judges. We do dent. As he put it, Senate confirmation nominee. Now we are facing a new that. We actually do it fairly regularly. ‘‘would be an excellent check upon a standard—not the gold standard of the It is my view that there are times spirit of favoritism in the President, American Bar Association but talks when judges we view to be outside the and would tend greatly to prevent the about qualified, or well-qualified, of mainstream—extreme, in other words— appointment of unfit characters from which Mr. Estrada has received the ought to be considered on the basis of State prejudice, from family connec- highest ranking—a new Federal stand- their philosophical points of view. But tion, from personal attachment, or ard. But, instead, we are facing a if they fall within what we view to be, from a view to popularity.’’ standard of political acceptability. Our as best as we can tell, the philosophical So there you have it, straight from Constitution is being tested. It is being mainstream in spite of their conserv- Alexander Hamilton himself. The role tested by the reaction to Mr. Estrada’s atism, I think a President has a basic of the Senate is a limited one of pro- nomination. right to nominate those in whom he tecting against the appointment of He is someone who comes to us as an has confidence. nominees who are unfit for the federal immigrant who worked his way up, There are those who have argued in bench. I agree that the Senate owes who became the top of his class in col- the last couple of days that this is real- some deference to the President’s lege, the top of his class in law school, ly about our opposition to diversity, choices. magna cum laude from Harvard, editor that somehow we are opposed to His- Hamilton also believed that the Sen- of the Law Review, clerked for Federal panic judges. That is not only unfortu- ate would act on judicial nominees judges, clerked for Supreme Court nate and not only in error, but I think with integrity in order to avoid public Judges, and comes to us with the high- it does a disservice to this debate. disapproval. Now, the last thing I want est qualification rating by the Amer- Frankly, they ought to know better to do is cast aspersion on the integrity ican Bar Association. But now we are than to resort to that kind of rhetoric of my colleagues who oppose Mr. facing a new standard. which demeans the debate. If this were Estrada’s nomination. But I must say I urge my colleagues on both sides of about diversity, if this were about that the amount of misinformation the aisle to reject the political consid- some concern for Hispanic judges as being repeated here on the Senate floor erations and get back to that view and some have asserted, we would be hard about Mr. Estrada, and the manner in that perspective on whether they are pressed to find one, much less virtually which his opponents have ignored his fit, whether they are qualified, and the entire Congressional Hispanic Cau- vast legal experience and record, is whether they have the right kind of ju- cus, in opposition. Yet that is what we cause for grave concern. dicial temperament. Let us put an end find. Virtually every member of the Historically, deliberation by the Sen- to this debate. Let us support and con- Hispanic Caucus in the House of Rep- ate on judicial nominations was quite firm Mr. Estrada’s nomination. resentatives has opposed this nomina- short, especially when compared to I yield the floor. tion. Why? In large measure for the what we are seeing on the Senate floor The PRESIDING OFFICER (Mr. same reasons we oppose this nomina- on Mr. Estrada’s nomination. Take, for CHAFEE). The Democratic leader. tion, unless we have more information. example, the 1862 nomination and con- Mr. DASCHLE. Mr. President, last They don’t know either where Mr. firmation of Samuel F. Miller to the night the Senate voted on three judi- Estrada stands. They have no record ei- United States Supreme Court. The Sen- cial nominations. And we voted unani- ther. In spite of their best efforts, there ate formally deliberated on the nomi- mously—Republicans and Democrats. is a shroud of secrecy around this nation for only 30 minutes before con- We voted unanimously, recognizing nominee that is very disconcerting. firming him. Confirmations on the that those nominations were very like- Why is it that nominee after nominee same day, or within a few days of the ly ones with which we had perhaps comes before the Judiciary Committee nomination were the norm well into even broad philosophical differences. and provides the information required? the 20th century. But we voted. We didn’t delay. We had Why is it we have access to the infor- Contrast this with what we are see- debate. We all had an opportunity to mation, the records of virtually every ing on Mr. Estrada’s nomination. We make our evaluation. We came to some other nominee? Why is it, with that are now on our fourth day of debate conclusion. record of performance, that when it with no end in sight. The Republicans That is how it should work. That is comes to this nominee—whether it is have offered at least two generous time what our Founding Fathers had envi- before the Judiciary Committee or be- agreements to set a vote for Mr. sioned. That is what the distinguished fore the Hispanic Caucus or before any- Estrada’s nomination, but the Demo- Senator from Minnesota was just allud- body else seeking information—we cratic leadership rejected both of them. ing to—advise and consent. When it come up with nothing?

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2150 CONGRESSIONAL RECORD — SENATE February 11, 2003 Mr. President, either this nominee So we have no choice. We have an ob- considering controversial nominations or knows nothing or he feels he must hide ligation to live up to the same stand- when evaluating a candidate with a limited something. It is one or the other: He ard with this nomination that we have public record. The Chairman of the Senate knows nothing or feels the need to hide with all the others. All we are sug- Judiciary Committee wrote to your Adminis- tration on May 15, 2002 to request such sup- something. gesting is that our colleagues live up to plemental documents to assist in Senate Now, I suppose if this were a tem- it as well. Provide us with the informa- consideration of the Estrada nomination. In porary nomination, if this were some- tion. Answer the questions. Once that particular, the request was made for appeal thing within the administration, with happens, we will make our judgment on recommendations, certiorari recommenda- a beginning and an end to the term—a this nomination. Some already have. tions, and amicus recommendations that Mr. commission, even a Secretary—perhaps But there are many others who deserve Estrada worked on while at the Department we could let this go by, perhaps we the right to make a proper evaluation. of Justice. should not feel quite as troubled by I must say, based on the limited in- Prior Administrations have accommodated similar Senate requests for such documents. this lack of willingness to be more formation available to us, there al- Such documents were provided during Sen- forthcoming. But this is for the second ready are serious questions about Mr. ate consideration of the nominations of Rob- highest court in the land. And not only Estrada’s qualifications. His imme- ert H. Bork, William Bradford Reynolds, the second highest court in the land, diate supervisor at the Justice Depart- Benjamin Civiletti, Stephen Trott, and Wil- this is actually for, arguably, the most ment said: I cannot, in good con- liam H. Rehnquist. important court in all of the circuits in science, recommend this man to serve Your Administration has refused to accom- this country. on the Circuit Court of the United modate the Senate’s request for documents It is within this circuit that we find in connection with the Estrada nomination. States of America. I cannot do that. In That refusal was a matter of inquiry at the perhaps the single most complex, the fact, he went on to say: I can’t even confirmation hearing held on this nomina- most serious, the most hotly debated, trust this person. That is from the su- tion on September 26, 2002. Following the the most contentious issues to come pervisor, the person who probably hearing, Senator Schumer wrote to the At- before the courts. Those who will serve knows this man the best. torney General on January 23, 2003, to follow on this court will decide the future of Mr. President, if a supervisor at the up on the request. title IX, the future of workers rights, Justice Department cannot find within In addition to requests for documents, Sen- the future of campaign finance, the himself to support this nominee, how ators frequently question judicial nominees during their confirmation hearings to deter- status of toxic waste cleanup. Those in the world is it we say we know bet- mine their judicial philosophy, views and and many more issues will be decided ter? temperament. For example, then-Senator in the D.C. Circuit. If Mr. Estrada has more information John Ashcroft asked nominees: ‘‘Which judge So we are left with a very serious di- he can share that would shed some has served as a model for the way you would lemma: Do we vote on what is essen- light on what it is that has caused his conduct yourself as a judge and why?’’ Mr. tially a blank slate or do we say: supervisor to be as concerned as he was Estrada refused to answer a similar question. ‘‘Look, we will vote, we will be pre- to oppose this nomination, then I During consideration of President Clin- pared to move forward on this and any would say it would be in his interest to ton’s judicial nominees, Republican Senators asked repeated questions regarding nomi- other nomination so long as that infor- bring it forward, to let us look at it. nees’ judicial philosophy, views or legal mat- mation can be provided’’? And that is why the Solicitor General ters, and approaches to interpreting the Con- Today, Senator LEAHY and I have papers are so critical. stitution. They insisted on and received an- sent a letter to the President asking So, Mr. President, I do not know how swers. During his consideration before the that the documentation that has been long this debate will go on, but I will Senate Judiciary Committee, Mr. Estrada provided on numerous other occa- say this: We have thought about this failed to answer these kinds of questions. sions—the Solicitor General records— very carefully now for many days. And These questions have not only been rou- be provided as they were with Mr. it is not without a great deal of con- tinely asked by the Senate, they have been Bork, Mr. Rehnquist, Benjamin Civi- cern and disappointment that I come routinely answered by other nominees—in- cluding other nominees from your Adminis- letti, and many others. That precedent to the floor with the report I have just tration. has long since been established. We shared. For the Senate to make an informed deci- have asked for the same information Our colleagues feel as strongly about sion about Mr. Estrada’s nomination, it is provided to the Senate that was pro- this as anything that has been pre- essential that we receive the information re- vided on those nominees. Why? Because sented to us. There is no doubt we have quested and answers to these basic legal there is no record. Why? Because there the votes to sustain whatever proce- questions. Specifically we ask: dural efforts are made to bring this de- 1. That you instruct the Department of is no basis upon which to make a pub- Justice to accommodate the requests for lic judgment unless we have that infor- bate to a close. I would hope that documents immediately so that the hearing mation. would not be necessary. process can be completed and the Senate can That is all we are asking: Give us This matter can be resolved if we have a more complete record on which to some record upon which to make our simply have access to the documents consider this nomination; and judgment, No. 1. And, No. 2, let us just and have answers to the questions. 2. That Mr. Estrada answer the questions ask Mr. Estrada to present to us the Mr. President, I ask unanimous con- that he refused to answer during his Judicial answers to the same questions that sent that the letter Senator LEAHY and Committee hearing to allow for a credible re- I sent to the President be printed in view of his judicial philosophy and legal have been asked by Republican col- views. leagues to nominees in past Congresses the RECORD. We would appreciate your personal atten- and by Democratic and Republican There being no objection, the mate- tion to this matter. Senators to nominees in this Congress. rial was ordered to be printed in the Sincerely, Why is it we should give some exclu- RECORD, as follows: TOM DASCHLE. sion to this particular nominee? What U.S. SENATE, PATRICK LEAHY. is it about this nominee that gives him Washington, DC, February 11, 2003. Mr. DASCHLE. Answer the questions. that right to say: ‘‘No, I’m above that. The PRESIDENT, Provide the information. Let’s move I don’t have to provide that informa- The White House, this debate forward. Let’s do the right Washington, DC. thing. Let’s live up to our constitu- tion. I don’t have to provide the same DEAR MR. PRESIDENT: We are writing in information that Mr. Bork provided or reference to your nomination of Miguel tional obligation. Let’s respect the ad- that Mr. Rehnquist provided. I don’t Estrada to the U.S. Court of Appeals for the vice and consent clause of the United have to do that. I’m unique’’? District of Columbia Circuit. Pursuant to States Constitution. Let’s do what our There is nothing unique about the Constitution, the Senate is to act as a forefathers expected of us. Let’s not defying the Senate. Others have at- co-equal participant in the confirmation of carve out an exemption for Mr. Estrada tempted to do so. But when one defies judges to the federal bench. Unlike nomina- or anybody else. Let us make a wise de- tions made by a President for Executive the Senate, defies the Constitution, cision about this nomination, as we when someone undermines the con- Branch appointments, judicial nominees are reviewed by the Senate for appointment to have in so many other cases. stitutional obligation we have to ad- lifetime positions in the Judicial Branch. I yield the floor. vise and consent, we take that seri- The Senate has often requested and re- The PRESIDING OFFICER. The ously. ceived supplemental documents when it is Democratic whip.

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 11, 2003 CONGRESSIONAL RECORD — SENATE S2151 Mr. REID. Mr. President, earlier I will now address the procedural tac- pointed article III judges and the un- today there was a colloquy between the tic that is being used against Miguel derlying principle that the Senate per- junior Senator from New York and this Estrada, and I am talking about a fili- form that role through the majority Senator, following remarks of the dis- buster of this nomination. A filibuster vote of its Members are such issues. tinguished Chair of the Judiciary Com- of Mr. Estrada’s nomination will re- Nothing less depends on the recogni- mittee, who said the Congressional His- quire a cloture vote by the Senate to tion of these principles than the con- panic Caucus was divided on their feel- end debate, unless reasonable minds on tinued untarnished respect for our ings about the nominee now before this the Democratic side can prevail. third branch of Government, the one body. I know there are some who are work- branch of Government intended to be I mentioned to the Senator from New ing to try to prevail, just like I had to above political influence, the Federal York I had been privy to a conversa- work on our side to prevail over those judiciary. tion just a few days ago with the chair- who wanted to filibuster some of Presi- On the basis of principle, I have al- man of the Hispanic Caucus and other dent Clinton’s nominees. I am hoping ways tried to be fair to judicial nomi- members of that caucus who said they reasonable people on the Democrat side nees, regardless of the political affili- unanimously oppose Miguel Estrada to will prevail. They simply must prevail ation of the President making the be district judge for the District of Co- because we really do not want to start nomination. The opposition to now lumbia. down the road of a filibuster. Judge Berzon and now Judge Paez, two I will now read into the record a As I say, a filibuster of Mr. Estrada’s Clinton nominees, was led by members statement of the Chair of the Hispanic nomination will require a cloture vote of my own party. They believed very Caucus, Congressman CIRO D. RODRI- by the Senate to end debate. This deeply that Marcia Berzon, with her GUEZ, dated today, which reads: means that a supermajority of 60 votes very liberal philosophy, would become ‘‘It is disheartening to see that Members of will be required to allow us to proceed an activist judge. They knew, in their the Republican Senate continue to make to an up-or-down vote on Miguel eyes—and I think they were pretty misleading and unfound statements regard- Estrada’s nomination. That is an insult right—that Judge Paez as a Federal ing the Congressional Hispanic Caucus’s op- to Miguel Estrada. It is an insult to the district court judge was an activist position to Bush judicial nominee Miguel Senate. It is an insult to Hispanic peo- Estrada,’’ said Congressman Ciro D. Rodri- judge, writing activist decisions. I met ple all over this country who are Judge Paez, and he said he would be guez, chair of the Congressional Hispanic watching what is happening. Actually, Caucus. ‘‘The CHC will continue to stand by very careful not to be activist in the its unanimous opposition to this unqualified it is an insult to this coequal branch of future. It did not take him long on the nominee and will not waiver.’’ government, the judiciary. Ninth Circuit Court of Appeals, in the ‘‘Senate Republicans continue to hit below I have taken the Senate floor on eyes of some, to go back to his activist the belt, insulting Hispanic Members of this more than one occasion to decry the ways. Activism means acting as a Congress who have been elected to serve as a tactic of enforcing judicial nominees superlegislator on the bench, making voice for the people in their community,’’ through a cloture vote. My position laws that should be made by those who continued Congressman Rodriguez. ‘‘Today, has been the same, regardless whether Senate Judiciary Chairman Orrin Hatch con- have to stand for reelection—Members the nominee was appointed by a Demo- of Congress and the President. tinues to make misleading, partisan swipes. cratic or Republican President. I am He incorrectly claims that the CHC is split When members of my own party proud to say during my nearly 30 years in its opposition, and he mischaracterizes fought against Judge Berzon, now in the Senate, I have never voted our arguments. Yesterday, the CHC released Judge Berzon, and then Judge Paez, against cloture for a judicial nominee, a letter to Senator Hatch demanding an during that time I stood against the apology for comments he made during Sen- even on the rare occasion when I op- use of cloture to attempt to thwart a atorial debate, likening Members of the CHC posed a judicial nomination and ulti- vote on their nominations, and I was ‘to the lioness eating her cubs . . .’ We have mately voted against that nomination. yet to receive an apology or even an ac- An example in point is the nomina- successful. Now it is my friends across knowledgment from the Senator that his tion of Lee Sarokin to the Third Cir- the aisle first subjecting Miguel comments were out of line and insulting.’’ cuit. Even though I voted against his Estrada’s nomination to a cloture vote. ‘‘The CHC has supported numerous highly I stand just as firmly today against the qualified Hispanic appointees by the Bush nomination, I voted in favor of cloture because I strongly believed his nomina- use of this tactic to prevent his nomi- Administration,’’ noted Congressman Rodri- nation from coming to the floor of the guez. ‘‘We oppose Mr. Estrada, however, tion deserved to succeed or fail on the based on our review of his inadequate quali- basis of the votes of a simple majority Senate for an up-or-down vote, which is fications for what is viewed as the second of the Senate, not on the will of merely what the President deserves. If we are most powerful court in the nation.’’ 41 Senators who vote against cloture. I going to be fair to the President of the I suggest the absence of a quorum. argued strenuously in favor of invoking United States, whoever the President The PRESIDING OFFICER. The cloture on two of President Clinton’s may be, we should always provide that clerk will call the roll. judicial nominees, Marcia Berzon and opportunity to have an up-or-down The assistant legislative clerk pro- Richard Paez. vote on these nominees. ceeded to call the roll. There are times when legislators To be sure, this body has on occasion Mr. HATCH. Mr. President, I ask must, to be effective, demonstrate engaged in the dubious practice of fili- unanimous consent that the order for mastery of politics, but there are also busters of judicial nominees, but forc- the quorum call be rescinded. other times when politics, though ing the filing of cloture on a judicial The PRESIDING OFFICER (Mrs. available, must be foresworn. This is nominee remains the exception rather DOLE). Without objection, it is so or- one of those times. There is a quote of than the rule. We have always been dered. Disraeli that addresses this situation able to thwart the attempted filibuster Mr. HATCH. Mr. President, I have perfectly. To paraphrase, next to know- by some who I think at the time did been on the Senate floor since the de- ing when to seize an opportunity, the not fully realize the import of their ac- bate on the Miguel Estrada nomination most important thing is knowing when tions. commenced last week. I have stated in to forgo an advantage. We have always been successful. the strongest terms my support for his I hope my colleagues will forgo their Overall, these episodes have been infre- qualifications. I am not alone. Vir- perceived advantage of a filibuster of quent and they have been unfortunate tually anybody who knows him, any- Miguel Estrada’s nomination. Forcing in each case. I hope they will remain as body who has any background on a supermajority vote on any judicial such and that what we are seeing today Miguel Estrada, feels the same way. I nominee is a maneuver that needlessly is not the beginning of a long battle of have stated in the strongest terms this injects even more politics into the al- fighting filibuster threats against support. The record is replete with rea- ready overpoliticized confirmation President Bush’s judicial nominees. sons why he would be an excellent ad- process. I believe there are certain There is real cause for concern that is dition to this DC Circuit and with facts areas that should be designated as off not to be taken lightly in the wake of dispelling the specious arguments of limits from political activity. The Sen- the November elections. Leading lib- his detractors. ate’s role in confirming lifetime ap- erals hit the newspapers to urge my

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2152 CONGRESSIONAL RECORD — SENATE February 11, 2003 Democratic colleagues to use the fili- While Democrats Feingold and Kohl both [From the New York Times, Nov. 10, 2002] buster as a tool to defeat President take positions supporting abortion rights, DEFENDING THE JUDICIARY women in Wisconsin must not take for Bush’s judicial nominees. The biggest fallout from last week’s Re- granted, Smeal told an overflow crowd of 250 On November 11 of last year, the publican capture of the Senate may be that that packed into the Marquee Room at the it will now be harder to block ideologically Legal Times published an article: ‘‘A Madison Civic Center Wednesday night for extreme nominees to the federal courts. But Major Shift in the Battle for the ‘‘Never Go Back,’’ a national campaign contrary to what some conservatives claim, Bench.’’ The article was subtitled: aimed at putting a spotlight on the protec- nothing in the election returns suggests that ‘‘With GOP steering the Judiciary tion of abortion rights.’’ I hope this campus Americans want the courts packed with such organizes like it has never organized before,’’ Committee, liberal advocates turn to judges. Given the new political lineup, Smeal told the group, which was nearly all more desperate measures.’’ The article Democratic and moderate Republican sen- female and filled with many UW-Madison reported on the plans of liberal interest ators must be more involved in the confirma- students. groups to refocus their energies against tion process to ensure that Justice Depart- The political landscape is making those ment ideologues do not have a free hand in President Bush’s judicial nominees on who cherish the right to choose an abortion shaping the federal judiciary for decades to the Senate floor where ‘‘filibusters and nervous, and Smeal and local activists who come. legislative horse trading may give lib- spoke. For all of the talk of Republican ascend- eral interest groups their best shot at ‘‘What Nov. 5 (the midterm election) has ancy, last week’s election returns did not done is made it clear to everybody what we influencing the process.’’ produce anything like a right-wing mandate. are up against,’’ said Smeal, president of the The senior legislative counsel of one Republicans running in the hardest-fought Feminist Majority Foundation and three- liberal group called the filibuster a elections hewed to the political center. The time president of the National Organization ‘‘plausible weapon.’’ victory margins in the races that ended up for Women. Also on November 11, two liberal law shifting the Senate—Minnesota and Mis- Smeal led the first national abortion professors published an op-ed in the souri—were less than three percentage rights march in 1986, which drew about points. Los Angeles Times entitled: ‘‘No to a 100,000 to rally in Washington, D.C. In 1989, Far-Right Court: Use Filibusters.’’ In Despite President Bush’s campaign prom- more than twice as many marched, she said. ise to ‘‘unite, not divide,’’ many of his judi- an implicit nod to the rarity of the use And then, in 1992, the march turned out more cial nominees have done the reverse. They of a filibuster to defeat a judicial nomi- than 700,000. favor taking away the right to abortion, nee, the article urged ‘‘courageous ‘‘I believe we are going to have to march striking down reasonable environmental reg- Democrats’’ that a filibuster is the again and again and again,’’ she said. ulations and turning back the clock on race. only way to thwart President Bush’s Vacancies on the U.S. Supreme Court may (One pending nominee at one point criticized appear as early as this summer, and it is ex- the Supreme Court’s ruling that Bob Jones nominees. pected that President George W. Bush will The New York Times on November 10 University should lose its tax-exempt status seek to appoint justices who oppose abor- for discriminating against black students.) similarly urged Democrats ‘‘not [to] be tion. afraid to mount a filibuster,’’ which, With the Senate in Republican control, the Smeal is touting a plan to save abortion administration is likely to choose even more again, implicitly acknowledges the ex- rights now that the country has a conserv- troubling nominees. tremity of filibustering a judicial nom- ative president and U.S. Senate majority. Senate Democrats must insist on two ination. The strategy focuses on the Senate because things going forward: consultation and con- On November 14, the Madison Capital it has the power to confirm, reject or block sensus. Senator Patrick Leahy, who will be Times reported that a Federal feminist nominees to he U.S. high court. the ranking minority member of the Judici- The tactic would call on senators to fili- group was targeting Wisconsin for a ary Committee, should ask to meet with the buster in order to block anti-abortion nomi- administration in advance to head off unac- grassroots campaign to drum up sup- nees. A filibuster is a parliamentary tech- port for the filibustering of Bush Su- ceptable candidates before they are nomi- nique that allows a minority of senators to nated. Consultation of this kind occurred in preme Court nominees. The paper can- keep a vote from being taken. Defeating a the Clinton years, and it should be the norm didly reported: nominee requires a majority vote in the Sen- for judicial selections, no matter which The tactic would call on Senators to fili- ate, but only 41 of the 100 senators are need- party holds the White House. buster in order to block [pro-life] nominees. ed to sustain a filibuster. Senate Democrats should also make it A filibuster is a parliamentary technique ‘‘It’s the safest tool we have to save the clear that they will not accept extremist that allows a majority of Senators to keep a lives of the next generation of women,’’ nominees. They must draw a line in the sand vote from being taken. Defeating a nominee Smeal said. and say that those whose politics cross it requires a majority vote in the Senate, but If the Supreme Court overturns Roe v. will not be confirmed. only 41 of the 100 Senators are needed to sus- Wade, the 30-year-old decision that struck Democrats in the Senate no longer control tain a filibuster. down restrictive state abortion laws, abor- the Judiciary Committee, which has until tion rights will again be determined state by now been screening out the worst nominees, The rallies in Madison and Mil- state. That means rich women will be able to waukee were only 2 of 12 such cam- and cannot win party-line votes. But they hop a plane to get an abortion, while poor should reach out to moderate Republican paigns by this group on college cam- women will be left to bring unwanted preg- senators and build a mainstream coalition. puses nationwide to drum up support nancies to term or seek dangerous, ‘‘back And when a judicial nominee is unaccept- for filibustering judicial nominees alley’’ abortions, Smeal said. able, they should not be afraid to mount a based on the single litmus test issue of ‘‘We’ll lose centuries,’’ she added. filibuster, which Republicans would need 60 abortion. Dr. Dennis Christensen, medical director of votes to overcome. Madam President, I ask unanimous the Madison Abortion Clinic, also spoke. He Rumors have been swirling around Wash- said the huge turnout for the event was one consent editorials be printed in the ington that there could be one or more Su- of the few bright spots he’s seen since last preme Court vacancies in the next few RECORD. week’s election. For the first time in 30 months, making the stakes as high as can There being no objection, the mate- years he really feels the urgency of the abor- be. With the White House representing the rial was ordered to be printed in the tion rights cause, he said. far right in the nominating process, it re- RECORD, as follows: ‘‘Where were the women in this election?’’ mains up to the Senate—even in its new con- [From Capital Times, Nov. 14, 2002] he asked. figuration—to represent the rest of the coun- ‘‘Christensen said he is not a politician or try. ACTIVIST: URGE SENATORS TO SAVE ABORTION a fund-raiser. He is a physician who is able RIGHTS to help women ‘‘with this problem that they Mr. HATCH. What these articles sug- (By Samara Kalk Der) have.’’ gest is that the liberal interest groups Women’s rights leader Eleanor Smeal was ‘‘I don’t have to worry about it. I’m not are just as intent as ever on using in Milwaukee and Madison Wednesday urg- going to get pregnant,’’ he added. every trick in the book to defeat Presi- ing grass-roots abortion rights supporters to If Roe v. Wade is overturned, abortion in dent Bush’s judicial nominees. From send a message to U.S. Sens. Russ Feingold Wisconsin will become illegal the next day, the start of their record, as they have and Herb Kohl. Christensen said. Wisconsin is one of just 14 tried to do with Miguel Estrada and Smeal said she came to Wisconsin because states where abortion will be considered ille- others, by forcing a cloture vote, it ap- it is the only state where both of its senators gal should the federal law get struck down, sit on the Judiciary Committee, which he added. pears the liberal interest groups will wields considerable power when it comes to ‘‘I don’t think I’m ready to spend my re- stop at nothing to further their agen- the scrutiny and confirmation of Supreme tirement in jail,’’ he quipped. ‘‘I plan to da. What is more, it looks as if the de- Court justices. spend it on the golf course.’’ feat we are seeing on Miguel Estrada is

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 11, 2003 CONGRESSIONAL RECORD — SENATE S2153 not so much about him as it is about I . . . do not want to see the Senate go But he was out to make sure the system seeing how well a filibuster works in down a path where a minority of the Senate could function. He had Republican Presi- case there is a Supreme Court nominee is determining a judge’s fate on votes of 41. dents nominating judges. He processed their this summer. He continued: nominations. He brought them to the floor of the Senate. He gave the Senate a chance to It also may have a more sinister pur- I . . . took the floor on occasion to oppose vote on them up or down for those people to pose: To desensitize the American peo- filibusters to hold . . . up [nominations] and get confirmed. that process is breaking ple to filibustering judicial nominees believe that we should have a vote up or down. down. so that the practice will become more On another occasion Senator BIDEN acceptable and so that less outrage will On a different occasion, the same col- said: be expressed over the filibustering of league said: So any member who is nominated for the other circuit nominees and ultimately I have stated over and over again on this district or circuit court who, in fact, any a Supreme Court nominee. This is all floor that . . . I would object and fight Senator believes will be a person of their part of the strategy of changing the against any filibuster on a judge, whether it word and follow stare decisis, it does not ground rules on judicial nominations is somebody I opposed or supported; that I matter to me what their ideology is, as long that Senate Democrats discussed at felt the Senate should do its duty. as they are in a position where they are in their retreat back in April of 2001. And another Democratic colleague the general mainstream of American polit- I am not the only one who recognized put it simply when she said: ical life and they have not committed crimes of moral turpitude, and have not, in fact, the dangerous precedent that some A nominee is entitled to a vote. Vote them acted in a way that would shed a negative Democrats would set in filibustering up or vote them down . . . If someone has an light on the court. But I also respectfully qualified nominees. The Washington opposition to a judge, they should come to suggest that everyone who is nominated is Post, hardly a bastion of conservatism, the floor and say that. entitled to have a shot, to have a hearing warned in a December 5, 2002, editorial I agree wholeheartedly with these and to have a shot to be heard on the floor that ‘‘a world in which filibusters serve statements. and have a vote on the floor. as an active instrument of nomination Miguel Estrada waited more than 16 That was a statement of Senator JO- politics is not one either party should months for his confirmation hearing. SEPH BIDEN, CONGRESSIONAL RECORD, want.’’ He waited another 4 months for a com- March 19, 1997 at S2540. The Washington Post urged Demo- mittee vote on his nomination. And This is a statement of Senator BAR- crats to ‘‘stand down’’ on any attempt now his nomination is being subjected BARA BOXER on the nomination of Mar- to deny Miguel Estrada a vote because to yet another hurdle: Extended floor garet Morrow, to the Ninth Circuit his nomination ‘‘in no way deserves a debate on his nomination with no end Court of Appeals: filibuster.’’ in sight. If we’re going to debate Mr. According to the U.S. Constitution, the I couldn’t agree more. Estrada’s nomination, then let’s do it, President nominates, and the Senate shall I hope I am wrong about the extent vote on it, and get on with the other provide advice and consent. It is not the role to which the liberal interests groups important matters that are the work of of the Senate to obstruct the process and have had a role in orchestrating this prevent numbers of highly qualified nomi- this body. nees from even being given the opportunity lengthy debate on Miguel Estrada’s I hope my colleagues are not going to nomination. I hope that this is not an- for a vote on the Senate floor. the unworthy ends of filibustering the That statement of Senator BOXER other example of an attempt by some President’s nominees. It is unfair to of my Democratic colleagues to change was printed in the CONGRESSIONAL the President. It is unfair to the proc- RECORD, May 14, 1997 at S4420. the ground rules on judicial nominees. ess. It is unfair to Miguel Estrada who I hope that my Democratic colleagues On the nomination of Judge Richard has earned the right to be here. Paez, to the Ninth Circuit, Senator will exercise the same independence I think it is important to remind my that I did when I joined them to invoke LEAHY, the distinguished ranking Democratic colleagues of statements member and Senator from Vermont, cloture on the nominations of Clinton they have made over the years oppos- judicial nominees who were opposed by said: ing filibusters of judicial nominees. Of I have heard rumors that some on the Re- many of my Republican colleagues. course, there was a Democratic Presi- When I argued to invoke cloture on publican side planned to filibuster this nomi- dent in the White House at the time nation. I cannot recall a judicial nomination the nominations of Judge Berzon and these statements were made. I guess being successfully filibustered. I do not re- Judge Paez, I noted several important that is the double standard for Mr. call earlier this year when the Republican reasons for avoiding a filibuster of ju- Estrada, in more ways than one. Chairman of the Judiciary Committee and I dicial nominees. One is that the Sen- I remember, on the nomination of noted how improper it would be to filibuster ate’s constitutional duty of advise and a judicial nomination. During this year’s Merrick Garland, here was a statement consent contemplates that a vote by a long-delayed debate on the confirmation of of Senator SARBANES, who came to the simple majority of the Senate deter- Margaret Morrow, Senator Hatch said: ‘I Senate the same time I did, and whom mine the fate of a judicial nominee. think it is a travesty if we ever start getting I respect, the Senator from Maryland. into a game of filibustering judges.’ Well, it There is nothing in the Constitution It was on the nomination of Merrick appears that travesty was successfully that gives that power to a minority of Garland, President Clinton’s nominee threatened by some on the Republican side 41 Senators, just as that power should of the aisle and kept the Minority Leader not be yielded by 10 Senators in a to the very same court, the Circuit Court of Appeals for the District of Co- from fulfilling his commitment to call up party-line vote in committee. the nomination for a confirmation vote. Another reason is that most of the lumbia, for which Miguel Estrada has been nominated. He said this: That is printed in the CONGRESSIONAL fight over a nomination has occurred RECORD, October 14, 1997 at S12578. well before a nominee arrives at the It is worse than that. It is not whether you He said: let the President have his nominees con- Senate floor. The battles are largely If Senators are opposed to any judge, bring fought between the White House and firmed. You will not even let them be consid- ered by the Senate for an up-or-down vote. them up and vote against them. But don’t do the Judiciary Committee, since it is That is the problem today. In other words, an anonymous hold, which diminishes the our job to vet the nominees. By the the other side will not let the process work credibility and respect of the whole U.S. Sen- time a judicial nominee reaches the so these nominees can come before the Sen- ate. I have had judicial nominations by both Senate floor, he or she deserves a vote ate for judgment. Some may come before the Democrat and Republican Presidents that I on the merits without having to clear Senate for judgment and be rejected by the intended to oppose. But I fought like mad to the procedural hurdle of a cloture vote. Senate. That is OK. But at least let the proc- make sure they at least got a chance to be ess work so the nominees have an oppor- on the floor for a vote. I have stated over and In the past, several of my Democratic over again on this floor that I would refuse colleagues have joined me in con- tunity and the judiciary has an opportunity to have these vacant positions filled so the to put an anonymous hold on any judge; that demning the practice of forcing judi- I would object and fight against any fili- cial nominees through a cloture vote. court system does not begin to break down because of the failure to confirm new judges. buster on a judge, whether it is somebody I For example, during the debate on The Senator from Delaware, when he was opposed or supported; that I felt the Senate Clinton nominees, one of my Demo- chairman of the committee, always meas- should do its duty. cratic friends spoke passionately about ured up to that responsibility, I think often That was printed in the CONGRES- this tactic. He said: taking a lot of political heat for doing it. SIONAL RECORD, June 18, 1998 at S6523.

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2154 CONGRESSIONAL RECORD — SENATE February 11, 2003 He said: plemental documents to assist in Senate the Democrats and Republicans back in I hope we might reach a point where we as consideration of the Estrada nomination. In September when he had his hearing. a Senate will accept our responsibility and particular, the request was made for appeal My Democratic colleagues are unhappy vote people up or vote them down. Bring the recommendations, certiorari recommenda- only because Mr. Estrada did not say names here. If we want to vote against them, tions, and amicus recommendations that Mr. anything they could use to oppose him. vote against them. Estrada worked on while at the Department of Justice. In other words, he didn’t tell them That was printed in the CONGRES- Prior Administrations have accommodated what they really wanted to hear, which SIONAL RECORD, October 22, 1997 at similar Senate requests for such documents. would have been mistakes, or some S10925. Such documents were provided during Sen- error, or some difference in opinion He also said: ate consideration of the nominations of Rob- they could then use to oppose him. He I hope that when we return . . . there will ert H. Bork, William Bradford Reynolds, answered the questions. He just didn’t be a realization by those in this body who Benjamin Civiletti, Stephen Trott, and Wil- answer them the way they wanted him have started down this destructive path of liam H. Rehnquist. to answer. attacking the judiciary and stalling the con- Your Administration has refused to accom- That is why they are trying to en- modate the Senate’s request for documents firmation of qualified nominees to the Fed- gage in this fishing expedition and de- eral bench that those efforts do not serve the in connection with the Estrada nomination. national interest or the American people I That refusal was a matter of inquiry at the manding unprecedented, unfettered ac- hope that we can once again remove these confirmation hearing held on this nomina- cess to the internal privileged memo- important matters from partisan and ideo- tion on September 26, 2002. Following the randa Mr. Estrada offered at the De- logical politics. hearing, Senator Schumer wrote to the At- partment of Justice. These memoranda torney General on January 23, 2003, to follow That is a statement of Senator PAT- are attorney work product done for our up on the request. RICK J. LEAHY printed in the CONGRES- country when he worked for the Solic- I note parenthetically that was after SIONAL RECORD of November 13, 1997 at itor General. Any lawyer would object S12569. President Bush won the election and to having to hand them over. He didn’t. There are other statements by my the control of the Judiciary Committee He was proud of his work. He didn’t colleagues, but I don’t want to bore the was on its way to the Republicans in care if the Government would give Senate with any more. Let me just say, the Senate. them over. But the Government has I hope we do not have a double stand- To continue with the letter: taken a principled position; that is, ard, but it sure looks as if we do. If In addition to requests for documents, Sen- these internal documents should not be Miguel Estrada’s nomination is truly ators frequently question judicial nominees turned over to the Senate Judiciary during their confirmation hearings to deter- Committee to be used to try to thwart filibustered—and I hope it is not, but mine philosophy, views and temperament. we are getting to the point where we the nomination of anybody, or to be For example, then-Senator John Ashcroft used, since they were internal con- know it will be and we know that it is asked nominees: ‘‘Which judge has served as because the time is passing—then I a model for the way you would conduct your- fidential documents. They were the think this body is going to be sorry be- self as a judge and why?’’ Mr. Estrada re- work products of attorneys within the cause in the past we have been able to fused to answer a similar question. Solicitor General’s Office. It is like stop filibusters. Both sides have la- During consideration of President Clin- asking a nominee to give up all of the ton’s judicial nominees, Republican Senators bored diligently to do so. confidential information his law firm asked repeated questions regarding nomi- had and that he worked on during the I have to tell you, if this is the way nees’ judicial philosophy, views on legal it is going to be in the future, nobody time at his law firm that is not in the matters, and approaches to interpreting the public record. Any lawyer would object is going to be able to stop them. It just Constitution. They insisted on and received means that really highly qualified can- answers. During his consideration before the to turning that over. didates who are controversial to one Senate Judiciary Committee, Mr. Estrada What are we going to do when we dis- side are going to be filibustered. It is failed to answer these kinds of questions. agree with somebody who worked for Senator HATCH? Are we going to ask that simple. I don’t want to see that These questions have not only been rou- for all of the internal documents the day come. tinely asked by the Senate, they have been I am disappointed and somewhat out- routinely answered by other nominees—in- man or woman did while he worked for cluding other nominees from your Adminis- me that were given for my purview as raged with the recent letter that was tration. sent to the President of the United their supervisor, and as their Senator, For the Senate to make an informed deci- so I could take those documents and States. This was sent by the distin- sion about Mr. Estrada’s nomination, it is determine what to do in the future? guished minority leader and the distin- essential that we receive the information re- Let us make it even more clear. guished Democrat leader on the Judici- quested and answers to these basic legal questions. Specifically we ask: Should Senator DASCHLE’s staff be ary Committee. The fact of the matter subject to this kind of thing? is, Miguel Estrada’s hearing was held 1. That you instruct the Department of Justice to accommodate the requests for Why would the Solicitor General’s in September of last year while the documents immediately so that the hearing Office be subject to having to turn over Senate was under Democratic control. process can be completed and the Senate can confidential documents that were The Democrats remained in control for have a more complete record on which to meant to help the Solicitor General the rest of the 107th Congress. If they consider this nomination; and make decisions on behalf of our coun- weren’t satisfied with Miguel Estrada’s 2. That Mr. Estrada answer the questions try? Can you imagine how that would answers at the hearing, they could that he refused to answer during his Judici- ary Committee hearing to allow for a cred- chill the work of the people in that of- have held another hearing. fice if attorneys there wanted to be- But this is what the letter said: ible review of his judicial philosophy and legal views. come judges someday? You don’t think DEAR MR. PRESIDENT: We are writing in We would appreciate your personal atten- that would cause them to be putting reference to your nomination of Miguel tion to this matter. their fingers up into the wind and ask- Estrada to the Estrada to the U.S. Court of Sincerely, ing, How will this be interpreted some- Appeals for the District of Columbia Circuit. TOM DASCHLE. day if I ever come up for a judicial Pursuant to the Constitution, the Senate is PATRICK LEAHY. to act as a co-equal participant in the con- nomination? Hopefully they wouldn’t, firmation of judges to the federal bench. Un- Madam President, as I said before, if but, of course, they would. Let us be like nominations made by a President for they weren’t satisfied with Miguel honest about it. Executive Branch appointments, judicial Estrada’s answers at his hearing which But here, unlike Senator DASCHLE’s nominees are reviewed by the Senate for ap- they conducted and which they con- representations—he certainly is a pointment to lifetime positions in the Judi- trolled, then they could have held an- friend of mine. He signed this letter. It cial Branch. other hearing. Nothing would have is the Department of Justice, not Mr. The Senate has often requested and re- stopped them. They had the power to Estrada, that holds the memos. The ceived supplemental documents when it is do so. They did not. They could have considering controversial nominations or Department has set forth the reasons when evaluating a candidate with a limited asked him followup questions in writ- why it is so inappropriate to release public record. The Chairman of the Senate ing. Only two of the Democrats did. these memos. It is crystal clear to Judiciary Committee wrote to your Adminis- The fact of the matter is Estrada did me—to all seven remaining former So- tration on May 15, 2002 to request such sup- answer the questions he was asked by licitors General of the United States,

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 11, 2003 CONGRESSIONAL RECORD — SENATE S2155 and to the Washington Post. It is clear others would have us believe, and as I ited number of documents related to to them, and to the Wall Street Jour- have mentioned before, during the last specific topics of interest to the com- nal. It is to just about everyone, it ap- Congress the Senate confirmed Jona- mittee. The Department of Justice did pears, except to my Democratic col- than Adelstein, a former aide to Sen- not agree to the fishing expedition that leagues. Why would they want these ator TOM DASCHLE to a position on the was demanded, and they certainly did memoranda? To see if they could find FCC. The Republicans did not demand not agree to the type of fishing expedi- some reason to again attack Mr. all of Mr. Adelstein’s memoranda to tion that my Democratic colleagues Estrada? Is this Hispanic gentleman so Senator DASCHLE on telecommuni- now seek to impose upon Mr. Estrada unqualified they have to go on fishing cations issues before confirming him, in the Justice Department. expeditions to try to find things to give despite the fact they would have been As the Department of Justice ob- him a difficult time with? useful in determining how Mr. served: The fact of the matter is he is as Adelstein would have approached his The vast majority of memoranda authored qualified as anybody we have had be- decisions as a commissioner. This is or received by Judge Bork when he served as fore the committee, and the American because of the obvious reason that to Solicitor General were neither sought nor do so would have intruded into the de- produced. And the limited category of docu- Bar Association said so. I know the Su- ments that were produced to the Committee preme Court Justices feel so. I know a liberative relationship between Mr. did not reveal the internal deliberative rec- lot of leading Democratic lawyers in Adelstein and Senator DASCHLE. No- ommendations or analysis of assistance to this town are saying this is the man body here ever wanted to do that, even the Solicitor General regarding appeal, cer- who deserves confirmation. Why is he if we didn’t like the appointment of tiorari, or amicus recommendations in pend- being treated differently? Mr. Adelstein. And some on our side ing cases. One of my colleagues the other day definitely did not like that appoint- Exactly what they have been asking was complaining he thinks some of us ment. I was not one of them, but there for here is something that has not been over here are calling our Democratic was a considerable number who did not done. Yet I know it has been rep- colleagues racists because they are agree with this appointment for the resented to some of my Democratic against Miguel Estrada. No. Nobody same reason, and for other equally colleagues that the Department of Jus- over here has made that comment. No- sound reasons that I will detail. tice did give these kinds of documents. body over here has even implied that. No Member of this body should advo- Well, they did not. And I hope my col- But what I have said is it isn’t because cate holding Mr. Estrada’s nomination leagues are watching this so they can he is Hispanic they are against him—it hostage to demands for access to inter- get the truth. is because he is a Hispanic Republican nal, confidential documents he au- This is hardly the unfettered, unprec- who they think is conservative and thored at the Solicitor General’s Of- edented access to privileged work prod- who is going on a court they think is fice. uct that my Democratic colleagues equally divided—where over 90 percent My Democratic colleagues have now seek. And why do they seek it for of the cases are unanimous decisions, claimed that the Department of Jus- this fellow who has every qualification anyway, in that court. tice has a history of disclosing pre- to be on the Circuit Court of Appeals It is the worst excuse for voting viously confidential, internal docu- for the District of Columbia, and more, against him I have ever heard. But it is ments in connection with confirmation who they have not laid a glove on, who because he is a Hispanic Republican proceedings. This is simply not accu- they cannot name one thing that would conservative. That is the reason they rate. refute his nomination other than these In a letter dated October 8, the De- are against him. They are so afraid he specious arguments that he has not an- partment of Justice points out that might not please them when he gets on swered the questions? Sure, he has an- since the beginning of the Carter ad- swered the questions. They just don’t the Circuit Court of Appeals for the ministration there have been 67 former like the answers. District of Columbia. Department of Justice employees con- My Democratic colleagues also claim I suggest to them he is a great law- firmed as Federal circuit judges—38 of that policy considerations weigh heav- yer. He understands precedent. He un- whom, like Mr. Estrada, had no prior ily on the side of disclosure. Curiously, derstands the rule of precedent. He un- judicial experience. Eight of these however, they fail to mention the let- derstands the rule of what we call stare nominees, again like Mr. Estrada, had ter that the committee received from decisis in the law, and he more than worked in the Solicitor General’s Of- all seven living former Solicitors Gen- told every one of them who questioned fice. eral of the United States, four of whom him over and over that he would apply The Department of Justice could find are leading Democrat lawyers, leading the law as it is, regardless of his per- no record of having produced internal, Democrat former Solicitors General. sonal beliefs. deliberative materials created by the I know some of my colleagues on the What more can anybody say? They nominee while a DOJ lawyer in any of other side have not heard that yet be- are accusing him of not being respon- these cases. cause I asked some of them what is sive? I am accusing them of not being Madam President, one of my Demo- going to happen here and they indi- fair to a Hispanic conservative Repub- cratic colleagues listed six nominees in cated they are probably going to fili- lican. I do not know what his point of connection with which he claimed that buster. And then one of them said: Why view is on Roe v. Wade. To this day, I the Department of Justice released don’t you give up those documents don’t know. I do know he at one time confidential, internal documents. In its from the Justice Department? I said: helped the National Organization for October 8 letter, the Department of Well, seven former Solicitors General, Women in a serious case, which I think Justice explained that of these nomi- four of whom are Democrats, said that if they were offering him as a nominee nees, the hearings of only one—only would be preposterous, that they they would argue means he is all right. one; Judge Bork—involved documents should not do that. Those are confiden- I do not know what his position is. But from their service in the Solicitor Gen- tial. That is the work product of attor- I will tell you this. He deserves to be eral’s Office. neys in the Solicitor General’s Office. confirmed as a jurist on the Circuit I think there have been those mis- You should have seen the surprised Court of Appeals for the District of Co- representations made to Senators in look on some of my colleagues’ faces? lumbia. their caucus, and they are absolutely ‘‘Really?’’ It seems to me, if you are Let me address in a little more detail false, because I chatted with some of going to argue against a person, you why this letter Senator DASCHLE and my Democratic friends on my way over ought to at least tell the truth and the Senator LEAHY sent to President Bush to the medical liability hearing I con- facts on the other side. is so outrageous in its continuous de- ducted this afternoon, and they were Why is it they are picking on this mand for privileged documents. citing these same specious arguments young, terrific Hispanic candidate for At the outset, I must note the nature that they had been told. Look, if we this job, who has the highest rating of this request for unfettered access to are going to tell our colleagues things, from the American Bar Association, a the universe of Mr. Estrada’s work they ought to be accurate. unanimously well-qualified rating? product is truly extraordinary. Con- In that one case—Judge Bork’s—the The letter, dated June 24, 2002, was trary to what Senator DASCHLE and Department of Justice produced a lim- signed by Democrat Seth Waxman—we

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2156 CONGRESSIONAL RECORD — SENATE February 11, 2003 all respect Seth; he is a great lawyer— editorial, which appeared on June 11, on the Circuit Court of Appeals for the Walter Dellinger—one of the great they called the request ‘‘outrageous’’ District of Columbia but the first His- teachers in this country; taught at and noted that the true goal was ‘‘to panic to serve on the U.S. Supreme Duke; a fine man; I have grown to delay, [to] try . . . to put off the day Court. think a great deal of him as I have lis- when Mr. Estrada takes a seat on the I am not saying the court is going to tened to him on a variety of matters, D.C. Circuit Court of Appeals, from pick Miguel Estrada, but he would be where in the early days I was not sure which President Bush could promote on the short list; He is that good. How I did—Drew Days, who is a wonderful him to become the first Hispanic- many Senators have argued 15 cases be- African-American former Solicitor American on the U.S. Supreme Court.’’ fore the Supreme Court, winning 10 of General, and a very adamant Demo- The Wall Street Journal got it pretty them? How many Senators graduated crat; all of them are—and Archibald right. What is really behind all this is magna cum laude from Columbia or Cox. You have to go pretty far to find to damage this person as much as they from Harvard, which he did? How many somebody more prestigious than Archi- can so this Hispanic gentleman, with Senators held the prestigious position bald Cox. All Democrats: Waxman, all of these qualifications, can never of editor of the Harvard Law Review? I Dellinger, Days, and Cox. And it was receive a nomination to the U.S. Su- don’t know of any. signed, as well, by Republicans Ken preme Court, can never be considered. All I can say is, how many Senators Starr, Charles Fried, and Robert Bork. Well, I am doing my best to make could have served not only a circuit The letter notes that when each of sure that does not happen, that he will court of appeals judge but also as a the Solicitors General made important have a chance, just as any other great clerk to a Justice of the U.S. Supreme decisions regarding whether to seek lawyer in this country, to someday be Court, Justice Anthony Kennedy? I Supreme Court review of adverse appel- nominated. And that is one reason why don’t think any of them. Maybe some, late decisions and whether to partici- I have spent so much time on the floor. but I don’t know of them. pate as amicus curiae in other high- Let me conclude. The bottom line is We have reached the point where it is profile cases, they ‘‘relied on frank, that my Democratic friends are seek- just terrible. We have waited long honest and thorough advice from ing internal, confidential material that enough. We have been going on this de- [their] staff attorneys like Mr. Estrada. any reasonable person, thinking about bate now for a week. That is longer . . .’’ it, would agree should not be delivered than most Supreme Court nomina- The letter explains that the open ex- by the Justice Department to the Sen- tions. This man certainly deserves to change of ideas, which must occur in ate for partisan purposes—for any pur- have an up-or-down vote and not a vote such a context, ‘‘simply cannot take poses. on cloture. place if attorneys have reason to fear Those seven former Solicitors Gen- I have been asked by the leader to that their private recommendations eral had no axes to grind. They under- make the following unanimous consent are not private at all, but vulnerable to stand how important those documents request: I ask unanimous consent that public disclosure.’’ are, and how important they are to be there be an additional 6 hours for de- The letter concludes that: held confidential. Yet my colleagues on bate on the Estrada nomination; pro- vided further that the time be equally [A]ny attempt to intrude into the Office’s the other side keep acting as if that is highly privileged deliberations would come a right they should have no matter divided between the chairman and at a cost of the Solicitor General’s ability to what. ranking member or their designees, defend vigorously the United States’ litiga- Their attempts have been criticized and that following the conclusion of tion interests—a cost that also would be by all seven living former Solicitors that time, the Senate proceed to a vote borne by Congress itself. General and by at least two major on the confirmation of the nomination This is a bipartisan group of seven newspapers of which I am aware. But with no intervening action or debate. former Solicitors General—all the liv- more fundamental is the fact that Mr. The PRESIDING OFFICER (Mr. ing ones. Estrada does not object to turning over ALEXANDER). Is there objection? The former Solicitors General are these memoranda. He has nothing to Mr. DODD. I object. not the only ones who are disturbed by hide. It is the Department of Justice The PRESIDING OFFICER. Objec- my Democratic colleagues’ efforts to that has an institutional interest and a tion is heard. obtain privileged Justice Department rightful institutional interest in refus- Mr. HATCH. I would modify my memoranda. The editorial boards of ing to comply with my Democratic col- unanimous consent request to 8 addi- two prominent newspapers have also leagues’ request. I, for one, understand tional hours in addition to the 6 I have criticized the attempt to obtain these and agree with the Department’s posi- asked for. The PRESIDING OFFICER. Is there records. I am sure there are others as tion but the Department’s recal- citrance in this dispute should neither objection? well. Mr. DODD. I object. be imputed to nor held against Mr. On May 28 of last year, the Wash- The PRESIDING OFFICER. Objec- Estrada. ington Post—as I say, hardly a bastion tion is heard. What bothers me is that we have had of conservative thought—editorialized Mr. HATCH. Let me modify it to 10 colleague after colleague from the that the request ‘‘for an attorney’s additional hours. work product would be unthinkable if other side come to the floor knowing The PRESIDING OFFICER. Is there the work had been done for a private that these seven Solicitors General objection? client. The legal advice by a line attor- have given this opinion—knowing it— Mr. DODD. I object. ney for the federal government is not and have not informed their colleagues, The PRESIDING OFFICER. Objec- fair game either.’’ some of whom are very mixed up about tion is heard. According to the Washington Post: this. Why? Why wouldn’t they tell Mr. HATCH. Let me go further, let Particularly in elite government offices them the truth? I guess to embarrass me modify it to 20 additional hours, such as that of the solicitor general, lawyers Mr. Estrada. which would probably be close to 3 need to speak freely without worrying that This is a fishing expedition par excel- more days. the positions they are advocating today will lence. It is wrong. They just don’t want The PRESIDING OFFICER. Is there be used against them if they ever get nomi- a conservative Hispanic Republican on objection? nated to some other position. this court at this time, especially one Mr. DODD. Madam President, reserv- Gee, that is a pretty good reason who has all the credentials that Miguel ing the right to object, the good Sen- from the Washington Post. I have to Estrada has because he would have to ator, my friend from Utah, can add as tell you, that is a wise editorial, and it be on anybody’s short list for the Su- many hours as he would like, but the is true. And it goes along with the preme Court of the United States of Senate wants to be heard on this mat- seven former Solicitors General, four America. The longer they can delay ter. There will be objections noted on of whom are Democrats. him from taking his seat, the more dif- every request for additional time. The Wall Street Journal also criti- ficult it will be for him to have any Mr. HATCH. Is the Senator telling cized my Democratic colleagues’ re- chance of being on the Supreme Court me no matter what I offer that Senate quest in two editorials. In its second and become the first Hispanic not only Democrats are going to object?

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 11, 2003 CONGRESSIONAL RECORD — SENATE S2157 Mr. DODD. To try to limit debate on I notice my colleague has been pa- 2. I will quote it. Article II, section 2, this matter, I tell my good friend from tiently waiting for a long time. I apolo- in part, reads, in the second paragraph: Utah, that any effort to limit debate gize to him, but I had to make these He [the President] shall have, Power by will be objected to. comments. and with the Advice and Consent of the Sen- Mr. HATCH. Even if I go up to 40 or I yield the floor. ate, to make Treaties, provided two-thirds of 50 hours? The PRESIDING OFFICER. The Sen- the Senators present concur; and he shall Mr. DODD. This is not about the ator from Connecticut. nominate, and by and with the Advice and amount of time. The Senate wishes to Consent of the Senate, shall appoint Ambas- Mr. DODD. Madam President, I am sadors, other public Ministers and Consuls, be heard on this matter. I object. not a member of the Judiciary Com- judges of the Supreme Court, and all other The PRESIDING OFFICER. Objec- mittee. I was in the other body some Officers of the United States. . . . tion is heard. years ago when I served there. But like By and with the advice and consent Mr. HATCH. I don’t blame the distin- many of my colleagues here who have guished Senator from Connecticut for of the United States Senate. served in this institution for some time Those two provisions are critically having to make these objections. and have been involved in any number Mr. DODD. I don’t blame the good important to keep in mind as you lis- of judicial nominations, going back Senator from Utah for making the re- ten to this debate and discussion about now over the past two decades, this is quests. this particular nomination. The debate Mr. HATCH. I am going to keep mak- a unique moment. and discussion, I suggest, goes far be- ing them because it is apparent now My friend and colleague from Utah yond the individual attributes, quali- that we are in the middle of a fili- has called this a moment of historic fications of Miguel Estrada. buster. I just want to warn the Senate, significance. I agree with him about For those reasons, I totally agree that is not a good thing. It is not fair that. This is an important moment his- with my colleague from Utah that this to the President. It is not fair to torically. It is an important moment is a historic moment in terms of how Miguel Estrada. It is not fair to the for this institution. we consider this process, which has process. It is not fair to the judiciary. I enjoy carrying every day with me survived for more than 200 years. It has It is not fair to Senators who have been in my pocket a copy of the Declaration never been changed. Over the history of fair to Democrat nominees who were of Independence and the Constitution this institution, Senates have taken heavily contested where there were no given to me some years ago by my the role of advice and consent to vary- cloture votes or no, should I say, real seatmate, Senator ROBERT C. BYRD of ing degrees with more or less serious- filibuster. It is just plain not fair. West Virginia, a rather tattered look- ness. There have been times when there What is so wrong with giving this ing copy now. I carry it with me and was hardly any advice and consent, and Hispanic man, who may be conserv- refer to it quite frequently as a re- matters went through here rather rou- ative and who is Republican, an oppor- minder to myself of what a wonderful tinely. I think most historians look tunity to serve, to break through that privilege it is to serve in this institu- back on those periods and would define intellectual glass ceiling that suddenly tion and the sacred obligation we bear, those moments as being less than stel- seems to have been erected and give each and every one of us, when we are lar periods of this institution’s history. him an opportunity to serve since he sworn in as Members of this body to When this institution, a coequal has such great ability to be able to do uphold and defend this Constitution. branch of Government with the article so and has proven it? There are two important relevant I and article III branches of govern- I repeat again, he has the highest points during the next few moments as ment, has taken its advise and consent recommendations of the American Bar I share my thoughts on the matter of role seriously—particularly with life- Association, the gold standard of my this nomination. The first begins with time appointments—then I think we colleagues on the other side. They are article III of the Constitution written have lived up to the Founding Fathers’ the ones who said that the ABA rec- more than 200 years ago by our Found- ambitions for this body. ommendations are the gold standard, ing Fathers. It says: I have voted for almost every Presi- and he holds a unanimously well-quali- The judicial Power of the United States, dential nominee to serve in a cabinet fied, highest rating of the American shall be vested in one supreme Court, and in or ambassadorial post. I received sig- Bar Association. How can we stand such inferior Courts as the Congress may nificant criticism when I voted for here and filibuster somebody like that? from time to time ordain and establish. John Tower more than a decade ago All I can say is that I hope everybody The judges, both of the supreme and infe- during the administration of the first in America is watching us because it is rior Courts, shall hold their offices during President Bush. I voted for John just plain not fair nor is it right. If we good Behaviour . . . [in a sense for life]. Ashcroft to be Attorney General of the are going to do this, it is a road I sure- It is a unique office in the judicial United States and received substantial ly don’t want to see the Senate go branch in this country. Unlike article criticism, and still do, to this day from down. I am hoping that my good friend II on the Presidency, in article III, ju- people in my own party. I did so not be- from Connecticut will talk to his dicial nominations serve, during good cause I agreed with John Ashcroft or friends on the other side and my behavior, for the rest of their lives. with John Tower, but I happen to be- friends on the other side and get some This nominee is in his early forties, I lieve that, when it comes to cabinet of- reason. am told. God willing, Miguel Estrada ficers or ambassadors for periods of We are now at a new point in history may have as many as 40 or 50 years to limited duration, Presidents ought to for this body. In the confirmation of ju- serve on the judicial branch of this be able to have their counsel and offi- dicial nominees, this will be the first country, either at the circuit court cial team to advance the ideas and val- time in the history of this country and level, or possibly the Supreme Court ues they articulated during their cam- of this body that a filibuster will be level, having listened to my friend paigns and which the American public conducted against a circuit court of ap- from Utah about the possibility of supported through the election process. peals nominee, a true filibuster. I am being on a short list. That is not to say I would vote for going to keep the door open for my col- So in assessing this nomination and every single nominee of whatever kind, leagues to see the error of their ways, the process, it is critically important because I take the advice and consent and hopefully we can resolve this mat- that my colleagues and others be mind- role seriously. ter before the end of this week or in ful of this article III, section 1 provi- I have always felt when it comes to any reasonable time. I offered up to 50 sion, that judges are nominated by the judicial nominations, because of that hours that were objected to. I am sure- President and serve, if confirmed, for article III, section 1 language that ly hoping that my colleagues who life. These are unique positions in the gives them the right to serve for life, think a little more clearly on the other entire constellation of offices that far beyond the tenure of the President side will influence all of our other col- could be held in the Federal Govern- who appoints them or the Congress leagues who are seemingly so caught ment—for life, during good behavior. that confirms them, far beyond any up in an ideological warfare and give The second provision that is impor- tenure of anyone who serves in any of- this vote to Miguel Estrada who de- tant to take note of as you engage in fice in the Federal Government, there serves it. this discussion is in article II, section is a heightened degree of responsibility

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2158 CONGRESSIONAL RECORD — SENATE February 11, 2003 to fulfill the article II, section 2 provi- should not walk away from our respon- tually no information about his judi- sions of the Constitution to provide our sibility simply because Mr. Estrada is cial philosophy or judicial competency. advice and consent. Hispanic and, apparently, of good back- We have been offered some evidence So it is with that background I come ground. I am not arguing about all of that Mr. Estrada is a good lawyer, but to this nomination, not because I want the good things I’ve heard about Mr. good lawyers do not necessarily make to necessarily become embroiled in the Estrada. What concerns me is the good judges and, in my view, Mr. conditions or qualifications of Miguel President and the nominees, or the ap- Estrada, like all judicial nominees, has Estrada, but because I am deeply con- pointees at the Justice Department, an obligation to show the Senate he cerned we are getting away from ful- have had an opportunity to inquire of can be a good judge. He showed the filling the Senate’s historic respon- Mr. Estrada about his views, and that President he can be a good judge, obvi- sibilities of fulfilling its article II, sec- this body—a coequal branch—the Con- ously. He showed the staff at the Jus- tion 2 functions and responsibilities. stitution requires we who exercise our tice Department he could be a good So I rise to express my opposition to advice and consent function are being judge. But he has not shown the Mem- this confirmation and to vote, when denied that same opportunity. So no bers of this body, nor has the American the matter occurs, against this nomi- one that I know of—maybe there are public had the opportunity, through us, nation, for one simple reason: The ad- some, but certainly not this Member— to draw that same conclusion. ministration and Mr. Estrada have is questioning the accomplishments of We are not hiring a lawyer, we are failed to provide this Member and this Mr. Estrada. What many in the Cham- confirming a judicial nomination. One institution and its Members with suffi- ber have questioned, however, is of the fundamental differences between cient evidence to demonstrate that Mr. whether Mr. Estrada is likely to be a lawyers and judges is that lawyers are Estrada would fairly and objectively fair and unbiased appeals court judge supposed to zealously represent the in- decide cases that will come before the for life. terests of their clients, but judges are Court of Appeals for the DC Circuit. This is an extremely important nom- supposed to be balanced, of even tem- I have no doubt in my mind, nor ination for the reasons I have just tried perament, fair, impartial. We want should anyone, that Mr. Estrada was to articulate. The Court of Appeals for lawyers to be passionate in advocating not chosen in some sort of a blind lot- the District of Columbia is an impor- the causes of their clients, defending tery. His name wasn’t just picked out tant court that has exclusive jurisdic- those who deserve to be defended and of the blue because we thought we tion to review many Federal adminis- prosecuting those who deserve to be would like to have a Hispanic on the trative law questions. In a sense, the prosecuted. We have an entirely dif- bench—he has a Hispanic heritage; Court of Appeals for the District of Co- ferent expectation of judges in terms of therefore, we will take Mr. Estrada. I lumbia is the Nation’s second highest demeanor and behavior. promise you there were people who court, because its decisions can pro- Again, the fact that Mr. Estrada is a questioned Mr. Estrada about his views foundly impact how the Federal Gov- very good lawyer, a passionate advo- before his nomination was made by the ernment conducts the people’s busi- cate on behalf of his clients, is cer- President of the United States. Let ness. The decisions made by the court tainly a good recommendation, but not there be no doubts or illusions about of appeals affect all of us across the necessarily a recommendation that he that. The question remains, then, if the country. This is not a debate, as I said bears the temperament to sit as a President is satisfied this nominee is a moment ago, about whether Mr. judge on the circuit court of appeals. qualified to sit on the District’s Circuit Estrada should be appointed to serve as That may be the case, but when we are Court of Appeals, why should those of a trial judge where he might gain some denied the opportunity to inquire of us who have to vote on this nomination judicial experience, although were he him about his judicial temperament, not also be entitled to the same oppor- to go through the process and refuse to about his philosophy, then, in my view, tunity to be full informed about his respond to the questions, I would have we really don’t know. And if we con- views? Not about particular cases that the same concerns, even for a district firm a nomination when we really may or could come before the court. I court nominee. I think the precedent is don’t know we are setting a precedent have always felt we have no business dangerous. When the President nomi- that I think is dangerous indeed. inquiring of a judicial nominee what nates someone to serve as an appellate Mr. Estrada, apparently on the ad- his or her views might be about a pend- court judge and we allow the non- vice of the administration, has chosen ing matter that might come before answers to stand, the matter is even not to respond to the Senate’s ques- them. But on general questions about that much more serious because it is tions, refusing to answer questions on their judicial philosophy, their de- an appellate court. what he thinks about legal issues. He meanor, how a nominee would conduct Rather, this is a debate about wheth- was asked by Senator SCHUMER, I am him or herself as a judge, those are en- er Mr. Estrada, who has never served as told, in the committee to name one Su- tirely legitimate issues. In fact, we a judge anywhere before, should be ap- preme Court decision over the last 40 bear a responsibility to see that those pointed as a judge who will judge or 50 years with which he disagreed. I questions are raised—certainly, just as judges and issue final decisions on a do not know of a person in this Cham- the President or his appointees have wide-ranging set of legal questions that ber who could not answer that question questioned Mr. Estrada on those mat- will have national impact. in about 2 minutes, particularly those ters. Before they sent his name up My colleague from New York, Sen- who are members of the bar, attorneys here, I promise you they did that. Cer- ator SCHUMER, as well as others who by profession. Certainly, we all know of tainly those of us who have the respon- are members of the Judiciary Com- cases, maybe even cases we learned sibility under the Constitution to pro- mittee, has pointed out Mr. Estrada is when we were in law school that we vide our advice and consent, and ulti- a young man, as I mentioned earlier. thought were wrong. mately our votes, should be entitled to He is in his early forties. If confirmed, If Mr. Estrada, this terrific lawyer, a the same opportunity. We have been he may spend the next half century graduate of Harvard Law School, Phi denied that opportunity. But whatever making decisions that will affect our Beta Kappa, cannot name one Supreme reasons and motivations there may be children, our grandchildren, and gen- Court case with which he disagrees, this is a process issue that should not erations to come. This is a lifetime ap- then we are getting a message: I am be tolerated. pointment. not going to answer your questions To suggest a nomination can be made Again, I emphasize that point under about these matters, period. I think it by the President and sent to this body, article III, section 1. There is no going is dangerous to allow nominees to and that this body should confirm such back if we find out Mr. Estrada is not refuse to respond. a nominee without having a meaning- a good judge. This vote is final, and if My colleague from Utah, the chair- ful opportunity to solicit information we confirm Mr. Estrada, we are all man of the committee, Senator HATCH, from the nominee is a precedent I don’t going to have to live with that decision once noted that when it comes to judi- think we ought to make. That is why I the rest of our lives. We are being cial nominations: agree with my colleague from Utah asked to confirm Mr. Estrada even The Senate has a duty not to be a that this is a historic moment. We though we have been provided with vir- rubberstamp.

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 11, 2003 CONGRESSIONAL RECORD — SENATE S2159 I could not agree more with my wide range of constitutional issues— troubling that he refuses to make friend and colleague from Utah on that the merits of Roe v. Wade, the con- those opinions known, not just to me point. This is not a trivial matter to be stitutionality of affirmative action or members of the committee but to taken lightly. I believe it would be ir- programs, the death penalty, employ- the American public who have sent us responsible to vote to confirm a judi- ment discrimination against homo- to the Senate to represent them. They cial nominee without knowing some- sexuals, the balance between environ- have a right to know how this indi- thing about his or her judicial tem- mental protection and property rights, vidual would at least view some of perament. the public’s right to know about health these basic fundamental constitutional Not every judicial nominee comes to and safety standards versus a litigant’s questions. the Senate with years of experience on right to privacy in product liability Instead of honestly and openly an- the bench, but when a nominee, such as cases. swering questions about his judicial Miguel Estrada, has no judicial experi- Is there any doubt that the President philosophy, Mr. Estrada decided to ence, we bear a responsibility to look or his appointees or staff at the Justice keep quiet, to take his chances, and for other evidence of his demeanor and Department have a good idea of how roll the dice on the floor of the Senate, his ability to put aside rancor in favor Mr. Estrada feels about those ques- hoping that the dice would be loaded in of balanced judicial reasoning. tions? Does anyone believe for a second his favor and that there would be no I would like to add that when nomi- they would send his nomination to the way to stop this nomination from nees with similar backgrounds as Mr. Senate without having some idea of going forward. Estrada have provided us with evi- where he stood on these questions? And Senator SCHUMER once again pointed dence, they have been confirmed by the do not I as a Member of this body, in a out that if we confirm Miguel Estrada, Senate regardless of their ideologies. It coequal branch of Government, have a we are ratifying a don’t-ask-don’t-tell was a few months ago the Senate Judi- right, before I cast my vote, to at least policy for judicial nominees. Trag- ciary Committee and the full Senate have the opportunity to raise these ically, I think that characterization is voted unanimously to confirm Pro- questions and get some answers to correct. fessor Michael McConnell as a judge on them? I think I do. Mr. Estrada sat before the Judiciary the Tenth Circuit Court of Appeals. De- If we set the precedent of saying you Committee and said nothing, believing spite his impressive credentials as a can be nominated by a President of any if he did not say a word, the majority lawyer and scholar, he had never been party, that your appointed staff at the of the Senate would rubberstamp his a judge before and, as we all know, a Justice Department can ask these nomination. And in turn, the adminis- number of groups were concerned that questions and know the answers, but tration has willingly participated in his clearly conservative ideologies Members of the Senate, Democrats or this conspiracy of silence to deny the would influence his decisions on the Republicans, have no right to solicit or Senate and the American people access bench. find out this information, that is dan- to information by refusing to release However, after Professor McConnell gerous. That is precedent setting. That copies of Mr. Estrada’s legal memo- openly and extensively discussed his is troubling, indeed. randa from his time in the Solicitor opinions on issues, such as federalism Regardless of who the nominee is, re- General’s Office. and Roe v. Wade, in his hearing before gardless of who the President is who I listened to my colleague from Utah the Judiciary Committee, then the full sends a nominee to this Chamber, if we go on at some length about this point. Senate, Democrats as well as Repub- set the precedent that people can go There is no legal requirement that licans, agreed that he would fulfill his through the confirmation process and memoranda from the Solicitor Gen- duties as a judge impartially regardless not share with us their general views— eral’s Office be withheld from the Sen- of his personal views. not their views on how they would rule ate. It is true that previous Solicitors That is a recent example of a nomi- on individual pending cases; I would General have said they would prefer nee unanimously confirmed by this strenuously object to questions like that these documents not be forwarded body. But Professor McConnell had the that—but to get some sense of the to the Senate for the reason that this courage of his convictions. He was not nominee’s demeanor, judicial philos- might make it difficult in future years ashamed to stand up and say what he ophy and ideas. Much to the great cred- to get the kind of candid assessments believed and why he believed it. As a it of Professor McConnell, with whom I by Justice Department lawyers. I am result of that kind of forthrightness, would disagree on many matters, I be- somewhat sympathetic to that argu- this body unanimously confirmed him lieve, I admire the fact he had the in- ment forwarded by my colleague from to be a circuit court judge. He had no testinal fortitude to stand up and say: Utah, but in the absence of any other judicial experience, but he was not This is what I believe. information it is more necessary to see ashamed of who he was or in what he As a result of that, the full support of documents. Certainly, if a person is believed. the Senate. But I am deeply troubled forthcoming in sharing their views and I do not know Mr. Estrada, and I pre- with the idea that a person can stone- thoughts, then the necessity to go and sume he is not ashamed of his views, wall, not answer these questions, and solicit documents from the Justice De- but the reluctance to share those views then be confirmed by this body. This partment where a nominee may have with the membership of the Senate, issue goes far beyond Miguel Estrada. worked before ought to be avoided, but with the members of the Judiciary Our failure to understand that, I think, the issue arises when a nominee refuses Committee, is troubling, to put it mild- is dangerous. to answer any questions. Where there ly. When a nominee will not answer When asked about each and every one are no other papers, no documents, questions, when they cannot name a of the issues I’ve discussed, Mr. very few written materials that the single Supreme Court case with which Estrada refused to articulate an opin- nominee has produced, the value of they disagree, then we begin to get ion to the members of the Judiciary these legal memoranda is heightened. concerned that this is a stonewalling Committee. It ought to be troubling to So that in the absence of being forth- operation. every one of us, regardless of our views, coming when the questions are asked, During a hearing before the Senate to set that precedent. It is troubling, where does one go? What do I rely on? Judiciary Committee, Mr. Estrada re- to say the least, that a prospective ap- Do I say to my constituents back home fused to answer a long list of questions pellate court judge and one who clear- that I am sorry he would not say any- about his positions on important legal ly, should a vacancy arise in the Su- thing and, by the way, there is no legal matters. Mr. Estrada refused to explain preme Court, according to my friend requirement but the Solicitor Gen- whether he is inclined to support the from Utah—and I believe he is cor- eral’s Office won’t share information interests of business, States rights, the rect—will be on the short list to be on either? rights of workers, consumers, or chil- the Supreme Court—that he would Now, based on some research that has dren. He refused to comment on wheth- have no opinions on any of these mat- been done, there is precedent for the er he would approve the administra- ters. Solicitor General sharing information, tion’s environmental rollbacks. He If Mr. Estrada does indeed have opin- that is really true, and I will leave it to even declined to give his opinion on a ions on these issues, it is even more my friend and former chairman of the

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2160 CONGRESSIONAL RECORD — SENATE February 11, 2003 Judiciary Committee, the Senator committee that were provided by the whole or in part to the Office of Watergate from Vermont, Mr. LEAHY, to comment Solicitor General’s Office, and the as- Special Prosecution Force or its specifically on that. sistant attorney general is asking for predecessors- or successors-in-interest; b. The dismissal of Archibald Cox as Spe- Going back a number of years ago, them back. What do you mean, they cial Prosecutor; the Judiciary Committee sought and had not been sent up? They were. c. The abolition of the Office of Watergate received a number of documents, I be- I do not want to dwell on this point, Special Prosecution Force on or about Octo- lieve during the Bork nomination and but when we get no information from ber 23, 1973; several others. I think Judge Trott was the nominee about where he stands on d. Any efforts to define, narrow, limit or another case. There were two or three important matters—by the way, here is otherwise curtail the jurisdiction of the Of- fice of Watergate Special Prosecution Force, others who had worked in the Solicitor a list of the documentation in that par- or the investigative or prosecutorial activi- General’s Office or other offices at the ticular case that goes on for four pages. ties thereof; Department of Justice, and they shared I ask unanimous consent that these e. The decision to reestablish the Office of with the Senate Judiciary Committee matters be printed in the RECORD. Watergate Special Prosecution Force in No- the work product of those employees. There being no objection, the mate- vember 1973; Those documents were used by the Ju- rial was ordered to be printed in the f. The designation of Mr. Leon Jaworski as Watergate Special Prosecutor; diciary Committee during the con- Record, as follows: g. The enforcement of the subpoena at firmation process. U.S. DEPARTMENT OF JUSTICE, OF- issue in Nixon v. Sirica; I do not disagree with the Senator FICE OF LEGISLATIVE AND INTER- h. Any communications on October 20, 1973 from Utah that there are some con- GOVERNMENTAL AFFAIRS, between Robert H. Bork and then-President cerns about going that route for the Washington, DC, September 2, 1987. Nixon, Alexander Haig, Leonard Garment, reasons I have stated, but there is Hon. JOSEPH R. BIDEN, Jr., Fred Buzhardt, Elliot Richardson, or William precedent where that information has Chairman, Senate Judiciary Committee, Ruckelshaus; U.S. Senate, Washington, DC. 1. Any communications between Robert H. been made available to the Senate Ju- DEAR MR. CHAIRMAN: Attached is one set of Bork and then-President Nixon, Alexander diciary Committee when considering copies of documents assembled by the De- Haig and/or any other federal official or em- nominations for the Federal judiciary. partment in response to your August 10, 1987 ployee on the subject of Mr. Bork and a posi- Mr. HATCH. Will the Senator yield request for documents relating to the nomi- tion or potential position as counsel to on that point? nation of Robert Bork to the supreme court President Nixon with respect to the so-called Mr. DODD. Let me finish my state- of the United States, and provided in re- Watergate matter; ment, and I will come back because I sponse to requests made to date by Com- m. Any action, involvement or participa- mittee staff. These documents are being pro- tion by Robert H. Bork with respect to any am going to put in the RECORD a large vided under the conditions stated in my Au- issue in the case of Nader versus Bork, 366 F. number of documents that make that gust 24, 1987 letter to you. Supp. 104 (D.D.C. 1975), or the appeal thereof; case. Sincerely, n. Any communication between Robert H. Mr. HATCH. I just ask the Senator to JOHN R. BOLTON, Bork and then-President Nixon or any other yield on that narrow point. Assistant Attorney General. federal official or employee, or between Mr. Mr. DODD. I would like to finish my Attachments. Bork and Professor Charles Black, con- statement rather than engage in a de- U.S. SENATE, cerning Executive Privilege, including but COMMITTEE ON THE JUDICIARY, not limited to Professor Black’s views on the bate on this particular point. President’s ‘‘right’’ to confidentiality as ex- Mr. HATCH. I do not want to debate. Washington, DC, August 10, 1987. Hon. EDWIN MEESE III, pressed by Professor Black in a letter or ar- I just want to make one point. Attorney General, Department of Justice, ticle which appeared in the New York Times Mr. DODD. I yield for one question. Washington, DC. in 1973 (see Mr. Bork’s testimony in the 1973 Mr. HATCH. Is the Senator aware DEAR GENERAL MEESE: As part of its prepa- Senate Judiciary Committee hearings on the that I just went through that the Jus- ration for the hearings on the nomination of Special Prosecutor); tice Department proved that these Judge Robert Bork to the Supreme Court, O. The stationing of FBI agents at the Of- types of documents have never been the Judiciary Committee needs to review fice of Watergate, Special Prosecution Force certain material in the possession of the Jus- on or about October 20, 1973, including but given to anybody? not limited to documents constituting, de- Mr. DODD. I was not going to dwell tice Department and the Executive Office of the President. scribing, referring or relating to any commu- on the point. Attached you will find a list of the docu- nication between Robert H. Bork, Alexander Mr. HATCH. We go over and over it. ments that the Committee is requesting. Haig, or any official or employee of the Of- Mr. DODD. Then I will go over and Please provide the requested documents by fice of the President or the Office of the At- over it. In the past documents were August 24, 1987. If you have any questions torney General, on the one hand, and any of- submitted to the Senate Judiciary about this request, please contact the Com- ficial or employee of the FBI, on the other; Committee. mittee staff director, Diana Huffman, at 224– and p. The establishment of the Office of Wa- Mr. HATCH. No, they weren’t. 0747. Thank you for your cooperation. tergate Special Prosecution Force, including Mr. DODD. There are four pages of but not limited to all documents consti- list here that go on. They sent us a Sincerely, JOSEPH R. BIDEN, Jr., tuting, describing, referring or relating in long list. Chairman. whole or in part to any assurances, represen- Mr. HATCH. Is the Senator aware of tations, commitments or communications by REQUEST FOR DOCUMENTS REGARDING THE any member of the Executive Branch or any the list from the Justice Department? NOMINATION OF ROBERT H. BORK TO BE AS- agency thereof to any member of Congress Mr. DODD. In fact, I have a letter SOCIATE JUSTICE OF THE UNITED STATES SU- regarding the independence or operation of from the Justice Department dated PREME COURT May 10, 1988, signed by Thomas M. the Office of Watergate Special Prosecution Please provide to the Committee in accord- Force, or the circumstances under which the Boyd, Acting Assistant Attorney Gen- ance with the attached guidelines the fol- Special Prosecutor could be discharged. eral, in which he says to Chairman lowing documents in the possession, custody 3. The following documents together with Biden: or control of the United States Department any other documents referring or relating to As assistant attorney general John Bolton of Justice, the Executive Office of the Presi- them: noted in an August 24, 1987, letter to you, dent, or any agency, component or document a. The memorandum to the Attorney Gen- many of the documents provided to the com- depository of either (including but not lim- eral from then-Solicitor General Boark, mittee reflect or disclose purely internal de- ited to the Federal Bureau of Investigation): dated August 21, 1973, and its attached ‘‘re- 1. All documents generated during the pe- liberations within the Executive Branch, the draft of the memorandum intended as a basis riod from 1972 through 1974 and constituting, work product of attorneys in connection for discussion with Archie Cox’’ concerning describing, referring or relating in whole or with government litigation or confidential ‘‘The Special Prosecutor’s authority’’ (type- in part to Robert H. Bork and the so-called legal advice received from or provided to cli- set copies of which are printed at pages 287– Watergate affair. ent agencies within the Executive Branch. 288 of the Senate Judiciary Committee’s 1973 2. Without limiting the foregoing, all docu- We provided these privileged documents to ‘‘Special Prosecutor’’ hearings); ments generated during the period from 1972 the committee in order to respond fully to b. The letter addressed to Acting Attorney through 1974 and constituting, describing, re- the Committee’s request and to expedite the General Bork from then-President Nixon, ferring or relating in whole or in part to any confirmation process. dated October 20, 1973., directing him to dis- of the following: charge Archibald Cox; Would you send them back, in es- a. Any communications between Robert H. c. The letter addressed to Archibald Cox sence. These were documents in the Bork and any person or entity relating in from then-Acting Attorney General Bork,

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 11, 2003 CONGRESSIONAL RECORD — SENATE S2161 dated October 20, 1973, discharging Mr. Cox 9. All documents constituting, describing, Department all copies of documents pro- for his position as Special Prosecutor; referring or relating in whole or in part to duced by the Department in response to d. Order No. 546–73, dated October 23, 1973, Robert H. Bork and any study or consider- Committee requests for records relating to signed by then-Acting Attorney General ation during the period 1969–1977 by the Ex- the nomination of Robert Bork to the Su- Bork, entitled ‘‘Abolishment of Office of Wa- ecutive Branch of the United States Govern- preme Court. As Assistant Attorney General tergate Special Prosecutor Force’’; ment or any agency or component thereof of John Bolton noted in an August 24, 1987, let- e. Order No. 547–73, dated October 23, 1973, school desegregation remedies. (In addition ter to you, many of the documents provided signed by then-Acting Attorney General to responsive documents from the entities the Committee, ‘‘reflect or disclose purely Bork, entitled ‘‘Additional Assignments of identified in the beginning of this request, internal deliberations within the Executive Functions and Designation of Officials to please provide any responsive documents in Branch, the work product of attorneys in Perform the Duties of Certain Offices in Case the possession, custody or control of the U.S. connection with government litigation or of Vacancy, or Absence therein or in Case of Department of Education or its predecessor confidential legal advice received from or Inability or Disqualification to Act’’; agency, or any agency, component or docu- provided to client agencies within the Execu- f. Order No. 551–73, dated November 2, 1973, ment depository thereof.) tive Branch.’’ We provided these privileged signed by then-Acting Attorney General 10. All documents constituting, describing, documents to the Committee in order to re- Bork, entitled ‘‘Establishing the Office of referring or relating in whole or in part to spond fully to the Committee’s request and Watergate Special Prosecution Force’’; the participation of Solicitor General Robert to expedite the confirmation process. g. The Appendix to Item 2.f., entitle ‘‘Du- H. Bork in the formulation of the position of Although the Committee’s need for these ties and Responsibilities of Special Pros- the United States with respect to the fol- documents has ceased, their privileged na- ecutor’’; lowing cases: ture remains. As we emphasized in our Au- h. Order No. 552–73, dated November 5, 1973, a. Evans v. Wilmington School Board, 423 gust 24, 1987, letter, production of these doc- signed by then-Acting Attorney General U.S. 963 (1975), and 429 U.S. 973 (1976); uments to the Committee did not constitute Bork, designating ‘‘Special Prosecutor Leon b. McDonough v. Morgan, 426 U.S. 935 (1976); a general waiver of claims of privilege. We Jaworski the Director of the Office of Water- c. Hills v. Gautreaux, 425 U.S. 284 (1976); therefore request that the Committee return d. Pasadena City Board of Education v. gate Special Prosecution Force’’; all copies of all documents provided by the Spangler, 427 U.S. 424 (1976); i. Order No. 554–73, dated November 19, 1973, e. Roemer v. Maryland Board of Public Edu- Department to the Committee, except docu- signed by then-Acting Attorney General cation, 426 U.S. 736 (1976); ments that are clearly a matter of public Bork, entitled ‘‘Amending the Regulations f. Hill v. Stone, 421 U.S. 289 (1975); and record (e.g., briefs and judicial opinions) or Establishing the Office of Watergate Special g. DeFunis v. Odegaard, 416 U.S. 312 (1975). that were specifically made a part of the Prosecution Force’’; and GUIDELINES record of the hearings. j. The letter to Leon Jaworski, Special Please contact me if you have any ques- Prosecutor, from then-Acting Attorney Gen- 1. This request is continuing in character tions. Thank you for your cooperation. eral Bork, dated November 21, 1973, con- and if additional responsive documents come Sincerely, to your attention following the date of pro- cerning Item 2.i. THOMAS M. BOYD, 4. All documents constituting, describing, duction, please provide such documents to Acting Assistant Attorney General. referring or relating in whole or in part to the Committee promptly. 2. As used herein, ‘‘document’’ means the Mr. DODD. So there is precedent for any meetings, discussions and telephone con- original (or an additional copy when an this. I do not want to dwell on that versations between Robert H. Bork and then- original is not available) and each distribu- President Nixon, Alexander Haig or any point because we ought to avoid that tion copy of writings or other graphic mate- other federal official or employee on the sub- at least when we get nominees who are rial, whether inscribed by hand or by me- ject of Mr. Bork’s being considered or nomi- more forthcoming when questions are chanical, electronic, photographic or other nated for appointment to the Supreme asked. means, including without limitation cor- Court. I will wrap this up because I see my 5. All documents generated from 1973 respondence, memoranda, publications, arti- cles, transcripts, diaries, telephone logs, colleague from New Jersey is in the through 1977 and constituting, describing, re- Chamber and wants to speak on this ferring or relating in whole or in part to message sheets, records, voice recordings, tapes, film, dictabelts and other data com- matter. The Senator from Vermont, Robert H. Bork and the constitutionality, who knows far more about this than appropriateness or use by the President of pilations from which information can be ob- the United States of the ‘‘Pocket Veto’’ tained. This request seeks production of all this Senator does, is also present. power set forth in Art. I, section 7, paragraph documents described, including all drafts Since the matter was raised by my 2 of the United States Constitution, includ- and distribution copies, and contemplates friend and colleague from Utah earlier ing but not limited to all documents consti- production of responsive documents in their in his remarks, I thought it was appro- tuting, describing, referring or relating in entirety, without abbreviation or expur- priate to address and respond to the whole or in part to any of the following: gation. 3. In the event that any requested docu- issue of whether or not documents a. The decision not to petition for certio- ment has been destroyed or discarded or oth- from the Solicitor General’s Office had, rari from the decision of the United States erwise disposed of, please identify the docu- in fact, been provided to the Judiciary Court of Appeals for the District of Columbia ment as completely as possible, including Circuit in Kennedy v. Sampson, 511 F.2d 430 Committee in the past. Of course, there without limitation the date, author(s), ad- (1947); is ample evidence that they have been. b. The entry of the judgment in Kennedy v. dressee(s), recipient(s), title, and subject I do not blame Mr. Estrada for this, Jones, 412 F. Supp. 353 (D.D.C. 1976); and matter, and the reason for disposal of the by the way. These are not his docu- c. The policy regarding pocket vetoes pub- document and the identity of all persons who ments. These documents are the docu- licly adopted by President Gerald R. Ford in authorized disposal of the document. 4. If a claim is made that any requested ments of the Solicitor General’s Office, April 1976. document will not be produced by reason of and therefore the allegation that Mr. 6. All documents constituting, describing, Estrada is unwilling to provide these referring or relating in whole or in part to a privilege of any kind, describe each such Robert H. Bork and the incidents at issue in document by date, author(s), addressee(s), documents is not fair. It is the Depart- United States v. Gray, Felt & Miller, No. Cr. 78– recipient(s), title, and subject matter, and ment of Justice that has made that de- 00179 (D.D.C. 1978), including but not limited set forth the nature of the claimed privilege cision. I am disappointed that Mr. to all documents constituting, describing, with respect to each document. Estrada has not been willing to respond referring or relating in whole or in part to Mr. DODD. I ask unanimous consent to Senators’ questions about judicial any of the exhibits filed by counsel for Ed- that the letter to Senator BIDEN from philosophy and temperament but, rath- ward S. Miller in support of his contention Thomas Boyd dated May 10, 1988, re- er, refused to answer any questions. that Mr. Bork was aware in 1973 of the inci- questing these materials back from the That is a separate matter, but I dents at issue. Senate Judiciary Committee also be 7. All documents constituting, describing thought it was important for our col- printed in the RECORD at this point. or referring to any speeches, talks, or infor- leagues to make the distinction. mal or impromptu remarks given by Robert There being no objection, the mate- It is unfortunate this has come to be H. Bork on matters relating to constitu- rial was ordered to be printed in the seen as a partisan debate. This should tional law or public policy. RECORD, as follows: not be the case. This ought to be a 8. All documents constituting, describing, DEPARTMENT OF JUSTICE, matter of concern to every single Mem- referring or relating in whole or in part ei- OFFICE OF LEGISLATIVE AFFAIRS, ber. If this is the way we conduct these ther (i) to all criteria or standards used by Washington, DC, May 10, 1988. judicial nominations in the future and President Reagan in selecting nominees to Hon. JOSEPH R. BIDEN, JR., this becomes the precedent, then I the Supreme Court, or (ii) to the application Chairman, Senate Judiciary Committee, of those criteria to the nomination of Robert U.S. Senate, Washington, DC. think this institution suffers terribly H. Bork to be Associate Justice of the Su- DEAR CHAIRMAN BIDEN: This letter requests in terms of fulfilling its article II, sec- preme Court. that the Committee return to the Justice tion 2, requirements of the advice and

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2162 CONGRESSIONAL RECORD — SENATE February 11, 2003 consent when the President submits our committee system, that troubles Mr. SESSIONS. Probably 15 minutes. nominations. Of course, for lifetime ap- this Senator deeply. Whether this Senator DODD mentioned some docu- pointees, this matter becomes even nominee was made by a Democratic ments. Have those been offered for the that much more serious. President or a Republican President, I RECORD? I will not take more of the Senate’s would stand here and make the same Mr. DODD. Yes. time on my feelings on this. I do not case, that this institution and its Mem- Mr. SESSIONS. I would be pleased to speak on all of these matters. I pointed bers have an obligation in this historic take a look at those. out earlier that this Member has, in hour to say to the President, this is not The PRESIDING OFFICER. Without the overwhelming majority of cases, the way to do business around here. objection, it is so ordered. Mr. HATCH. Mr. President, I tell my voted to confirm nominees from all You cannot send up nominees in this dear colleague from Connecticut that I these administrations over the years manner and expect this body to rubber think he has been very badly misled by where the nominations have been for a stamp a nomination and to send the some of the people on his side. Mr. limited duration. I pointed out I voted nominee off for the many years he may Estrada waited over 500 days for a for John Tower and John Ashcroft. I serve, making decisions without any hearing conducted by Democrats. Sen- believe Presidents ought to have their knowledge of whether or not he will ator SCHUMER is no shrinking violet. teams. I recall very vividly, with great conduct his affairs as a judge in a way We all know that. He is another friend warmth, voting for the Presiding Offi- that will bring credit to himself and to of mine, and he is no shrinking violet. cer when he was considered as a nomi- the federal courts, let alone the insti- They asked questions for a lengthy, nee before this body. tution which is responsible for ulti- extraordinary period of time compared When someone gets elected Presi- mately voting to confirm this nominee. to other nominees. This is the hearing dent, they ought to have their team. I yield the floor. transcript. My gosh. He answered ques- The public ought to understand that The PRESIDING OFFICER. The Sen- tion after question after question. But when the President appoints someone ator from Utah. he just did not answer them the way he to a high office, a Cabinet office or an Mr. HATCH. I agree with my col- wanted them to answer. And he did not ambassador, that certainly requires league that what he was saying is true, make any mistakes, apparently, and he the advice and consent of the Senate. as I am sure he intended it to be. He is did not give them anything to hang But for a lifetime appointee, particu- a dear colleague and close friend. I him with. larly a young man of 40 years of age, agree he has an open mind with regard There is a double standard being who could be on that bench for 40 or 50 to nominees and has exhibited that played here. I remember the distin- years, far beyond the tenure of this through the years. He has been totally guished Senator from Connecticut say- President’s term of office, far beyond misled on these matters. ing he is sorry that Miguel Estrada has the tenure of probably every single That is something that is starting to to be used in this way as a bad exam- Member who would vote on his nomina- bother me. I have run into a number of ple. He is being used all right because tion, that rises to a different level, Democrat Senators who have spouted they cannot pin anything on him that with all due respect, to the other nomi- the same things that are just plain not they do not like other than they claim nees who come before this institution. right or factual—not everything he he did not answer the questions. The advice and consent function on a said. Well, they had the committee. They lifetime appointment requires a But he is correct, I did make a speech could have asked all the questions they heightened degree of responsibility, in at one time where I said we should not wanted to, and they did, and it went on my view, and when nominees will not rubber stamp these people, and I still for hours. I might add that he answered answer questions about judicial tem- believe that. However, this is not rub- them. He just did not answer them the perament and demeanor, it is deeply ber stamping. way they wanted him to answer. Talk troubling to me. Conservatives and lib- First, it was 516 days before Miguel about a double standard. erals ought to join together in saying: Estrada even got his hearing. For those Why is this Hispanic person going I am sorry, but, Mr. President, if you who think he did not answer any ques- through this? I will tell you why. Be- send us nominees and instruct them to tions, take a look at this hearing cause he is a Hispanic conservative Re- do this, then all of us will join together record. My gosh, I can hardly lift the publican who they are afraid will tip against that. Regardless of whether it doggone thing. He answered question the balance of power on the Circuit is a Democrat or Republican in the after question after question. He just Court of Appeals for the District of Co- White House, as Senators, as Members did not answer questions the way they lumbia and might even be considered of a coequal branch of Government, we wanted. I suspect, as is very evident for the Supreme Court of the United cannot fulfill our constitutional re- here today, and evident throughout States of America. They are going to sponsibility if that is the way in which this matter, they do not have anything do everything they can in their power the President conducts his business. on him. to delay his nomination. This goes beyond Miguel Estrada. I The distinguished Senator from It is pathetic. It is shameful. I am regret he has been caught in this. He Vermont wanted to speak and I am pre- sick and tired of it. I am tired of my has, for whatever reason, decided to be pared to turn the time over to him colleagues being misled by their own used in this way. That is terribly un- when he returns. I ask unanimous con- colleagues. We go over and over the fortunate for him but far more unfortu- sent that after my remarks the distin- facts in this matter. The requests they nate for this institution and the future guished Senator from New Jersey—how were making of the Justice Depart- of judicial nominations if, in fact, this much time does the Senator desire? ment were for confidential documents. becomes the platelet on how you get Mr. CORZINE. About 30 minutes. I will take a few minutes, because it confirmed for a lifetime appointment: Mr. ALLARD. I need about 15 min- is important, after this last speech. I Don’t answer any questions; don’t re- utes. know my colleague would not have said spond to issues about constitutionality Mr. HATCH. I ask unanimous consent some of the things he said if he had of various provisions. that the distinguished Senator from been given the true facts. I am not dis- I repeat: I have on numerous occa- New Jersey immediately follow me for agreeing with everything he said, but I sions voted for judicial nominees with 30 minutes, the distinguished Senator certainly disagree with an awful lot of whom I have disagreed. But because from Colorado follow the distinguished what he said. they have been forthcoming, they have Senator from New Jersey for 15 min- Fact versus fiction—I will cite what been honest about their views, because utes, and that the distinguished Sen- has really gone on here. Their base is they have convinced me they would be ator from Alabama be permitted then People for the American Way, a na- impartial and fair sitting on a bench, I to speak. tional abortion rights league, the Alli- have never used the litmus test wheth- Mr. REID. I have no objection, but ance for Justice—you can name 20 er I ideologically disagree with a judi- just so we have some idea, and I really other far left organizations that just cial nominee. But when you do not an- don’t care how long the Senator from plain do not want any of President swer my questions or the questions of Alabama speaks, but do you how long Bush’s circuit court of appeals nomi- my colleagues on whom I rely under you might speak tonight? nees being treated fairly. They do not

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 11, 2003 CONGRESSIONAL RECORD — SENATE S2163 want them at all. They disagree with Fletcher, Margaret McKeown, Sidney Other judicial nominees of President Bush, them because they are left wing and Thomas, and Michael Hawkins all had including some with significant ‘‘paper these nominees are moderate to con- no judicial experience prior to taking trails, have discussed their jurisprudential views extensively in hearings before the Sen- servative. At least, we hope they are. the bench. Seven of these eight—all but ate Judiciary Committee. Just last year, Mi- Certainly, the President hopes they Fletcher, who was a law professor— chael McConnell— are. were in private practice when they You heard Senator DODD bring this And I might add, the President does were nominated by President Clinton up— not tell them what to say up here, and confirmed by the Senate. confirmed to the 10th Circuit, thoroughly which was implied in the last remark. Several Supreme Court Justices had discussed his views on such subjects as Roe I know how they vote these judges. no prior judicial experience before v. Wade and the Supreme Court’s recent They do not ask them questions like their first appointment to the bench. ‘‘federalism’’ decisions limiting the author- that. We know darned well the minute Louis Brandeis spent his entire career ity of Congress. they do our questionnaire would bring in private practice before he was Here is what People for the American it up. We make it very clear in the named to the Supreme Court in 1916. Way have to say: questionnaire that is not supposed to Byron White, a personal friend of mine, Mr. Estrada refused to reveal his jurispru- happen, but, naturally, they help these one of the great Justices, spent 14 dential views . . . in response to questions by people understand what is going on. years in private practice and 2 years in Senators. For example, despite repeated at- Let me use People for the American the Justice Department. He worked for tempts by Senator Schumer, he refused to Way, just for one of these left-wing the Justice Department. I guess that identify even a single Supreme Court deci- groups that is almost always wrong. sion over the past 40 years with which he dis- was an inhibiting factor before his ap- agrees. Here is an argument against Miguel pointment to the Court by President At least they got that right—the 40 Estrada. This is in the Senate Demo- Kennedy in 1962. He had no prior judi- years part—because we have had Sen- cratic Policy Committee briefing book cial experience. ator after Senator come here and say on the nomination of Miguel Estrada: Thurgood Marshall had no judicial he refused to talk about any decisions Lack of judicial experience. Mr. experience when President Kennedy re- with which he disagreed. Wouldn’t he Estrada has no judicial experience. He cess appointed him to the Second Cir- have disagreed with Dred Scott or has had no publication since a banking cuit in 1961. Marshall served in private Plessy v. Ferguson? Those were a long law article he wrote in law school. He practice and as special counsel and di- time before the 40 years that Senator is not a distinguished legal scholar or rector of the NAACP prior to his ap- SCHUMER asked about. But let’s go a professor and he has never taught a pointment. class. The bulk of his career has been Why is Miguel Estrada, this Hispanic little further. People for the American spent in the Solicitor General’s Office gentleman, being treated differently? Way says: and in private practice. Because he is a Hispanic conservative Estrada refused to answer key questions at Hey, that ain’t bad right there, Solic- his Senate Judiciary Committee hearing Republican, or at least they think he is about his judicial philosophy, such as his itor General’s Office and private prac- conservative. I am not sure. views on important Supreme Court deci- tice. But the fact he has no judicial ex- Let me go back to the Democratic sions. For example, he refused to name a sin- perience is a joke—as if that is an in- Policy Committee. gle Supreme Court decision in the last 50 hibiting factor. Mr. SESSIONS. Will the Senator years that he thought was wrong. This is what People for the American yield for a question? Then they go on to say this. This is Way said in a letter from the president, Mr. HATCH. Sure. again a letter from Ralph Neas. Ralph Neas, to the Senate Judiciary The PRESIDING OFFICER. The Sen- Other judicial nominees of President Bush, Committee, dated January 29, 2003: Mr. ator from Alabama. including some with significant ‘‘paper trails Estrada has worked for the Justice De- Mr. SESSIONS. I know the Senator have discussed their jurisprudential views partment for more than half of his ca- is so knowledgeable about these mat- extensively in hearings before the Senate Ju- reer and has never served as a judge or ters. This is an appellate bench, which diciary Committee. Just last year, Michael a magistrate or law professor and, in- handles appellate matters. But isn’t it McConnell, who was recently confirmed to deed, has not published any legal true that Mr. Estrada was a law clerk the Court of Appeals for the 10th circuit, thoroughly discussed his views on such sub- writings since law school. It is vir- for a Second Circuit Federal judge and jects as Roe v. Wade and the Supreme tually the same thing in the Demo- a U.S. Supreme Court Justice? Court’s recent federalism or States rights de- cratic policy books. But here are the Mr. HATCH. He was a law clerk to cisions limiting the authority of Congress. facts. Only 3 of the 18 judges confirmed Amalya Kearse on the Second Circuit That was a letter dated January 24, to the DC Circuit since President Court of Appeals and law clerk to Jus- 2002. Carter’s term began in 1977 previously tice Kennedy. He had lots of experience Let me give you the facts to show had judicial experience—only 3 of them on the judiciary. I am glad the Senator how wrong they are. That is what is of the 18 judges. pointed that out. killing me, that my colleagues would Here is another fact. Democrat-ap- The Senate Democratic policy book misrepresent like this on the floor of pointed DC Circuit judges with no prior on the nomination: the Senate and misrepresent to their judicial experience include Harry Mr. Estrada often refused to answer ques- own colleagues. That is what is killing Edwards—I think he is the current tions. me. Here are the facts. chief judge, isn’t he, or he was— We are getting this bullcorn on the Cannon 5A(3)(d) of the American Bar Asso- Merrick Garland, Ruth Bader Gins- floor today, and we have gotten it ciation’s Model Code of Judicial Conduct burg, Abner Mikva, David Tatel, and every day we have been here. They states that prospective judges ‘‘shall not . . . Patricia Wald. They are all Democrats, don’t seem to listen to the facts. make pledges or promises of conduct in of- fice other than the faithful and impartial of course. All were appointed by either Mr. Estrada often refused to answer ques- performance of the duties of office . . . [or] Carter or Clinton and had no prior judi- tions, or provided extremely evasive answers make statements that commit or appear to cial experience. during his confirmation hearing. Why is it fair for them to be on this commit the candidate with respect to cases, You should have heard all of their controversies or issues that are likely to court with no prior judicial experience nominees, whom we allowed to go come before the court. but it is not fair for Mr. Estrada? Why through. OK. It goes on to say: Justice Thurgood Marshall made the the double standard? My gosh, they are He declined to answer all questions about same point in 1967 when he refused to not treating this guy fairly at all. his judicial philosophy and his views on im- answer questions about the fifth Let me give another fact. Several portant Supreme Court cases. For example, amendment. other Clinton appointees to the courts when Senator Schumer asked Mr. Estrada to I do not think you want me to be in a posi- of appeals received their appointments name a single case from the entire history of tion of giving you a statement on the Fifth the Supreme Court law that he disagreed despite having no prior judicial experi- Amendment and then, if I am confirmed and with, Mr. Estrada refused. ence. Ninth Circuit appointees Richard sit on the Court when a Fifth Amendment Tallman, Marsha Berzon, Ronald My goodness. The policy statement case comes up, I will have to disqualify my- Gould, Raymond Fisher, William says: self.

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2164 CONGRESSIONAL RECORD — SENATE February 11, 2003 Or Lloyd Cutler, who is one of the tisans. They are left-wing partisans. I But they don’t tell you that the fol- great lawyers in Washington, DC, and, don’t blame them. They believe in that lowing groups, among others, have an- frankly, in the country: left-wing philosophy of theirs, and I re- nounced their support for Estrada: Lloyd Cutler, President Clinton’s former spect people who believe in their phi- League of United Latin American Citi- White House Counsel, testified before the losophies. The ones I don’t respect are zens (LULAC) (nation’s oldest and larg- Senate Judiciary Committee last year that those who distort the record. That is est Hispanic civil rights organization); ‘‘it would be a tragic development if ideology unfortunate. That is what they have U.S. Hispanic Chamber of Commerce; became an increasingly important consider- been doing. Hispanic National Bar Association; ation in the future. To make ideology an On May 28, 2002, the Washington Post issue in the confirmation process is to sug- Hispanic Business Roundtable; the gest that the legal process is and should be editorialized that the committee’s re- Latino Coalition; National Association a political one. That is not only wrong, it is quest for attorney work product of Small Disadvantaged Businesses; a matter of political science; and also serves ‘‘would be unthinkable if the work had Mexican American Grocers Associa- to weaken public confidence in the courts.’’ been done for a private client. The tion; and the Hispanic Contractors of Think about it. Think about it. The legal advice by a line attorney for the America, Inc. reason Mike McConnell had to answer federal government is not fair game ei- Of course, you can see many other very carefully is that he had written so ther.’’ things. There are so many groups that extensively that he pretty well had to According to the Post editorial: support him. acknowledge that that is what he Particularly in elite government offices I attended a press conference today wrote on Roe v. Wade. He was highly such as that of the solicitor general, lawyers where the head of LULAC was so out- critical of Roe v. Wade. I respect my need to be able to speak freely without wor- raged at the double standard and the rying that the positions they are advocating way Miguel Estrada is being treated— colleagues for accepting Professor today will be used against them if they ever McConnell. On the other hand, he had get nominated to some other position. and, I might add, LULAC is not a con- servative organization but it is a re- 305, many of whom were the most lib- These people in the Solicitor’s Office spected organization, and I have al- eral law professors in the country, sup- are generally the top lawyers around. ways respected them. Its leader ripped porting him because he is so honest Many of them are going to serve in into what is going on over on the other and decent and smart, rated as one of other positions in the Government. A side of the floor like you can’t believe. the two or three top constitutional ex- number of them are going to be judges. He is one of the leading Hispanics in perts in the country. We just named eight of them. There are Just think about it. These kind of America, and rightfully so. seven former Deputy Assistants for the things bother me. Let me just talk Let me tell you, I think the Hispanic Solicitor General now serving on Fed- about the SG memo, the Solicitor Gen- people are starting to catch on—that it eral circuit courts of appeals. None had eral memos we have heard so much is outrageous the way this man is any prior judicial experience, and the about here. This is what the Demo- being treated. He is being treated with committee did not ask the Justice De- cratic Policy Statement says: a double standard. He is being mis- partment to turn over any confidential treated with a double standard. Due to Mr. Estrada’s almost nonexistent internal memoranda those nominees paper trail, the Judiciary Committee Demo- I must say that I was a little sur- crats have tried to obtain legal memoranda prepared while serving in the Solicitor prised when I saw the similarities be- he wrote while serve at DOJ. DOJ has re- General’s Office. tween the Democrats’ handbook on Mr. Why is Miguel Estrada being treated fused to provide these documents which pre- Estrada and the propaganda being cir- like this? Why is he being treated so sumably would show Mr. Estrada’s constitu- culate by People for the American tional analysis of cases and statutes and give unfairly and differently from anybody Way. I guess it’s now clear where my members a window into his judicial rea- else? Why is he being treated dif- Democratic colleagues’ talking points soning. ferently than those seven others, many are coming from. Maybe my Demo- Here is what People for the American of whom are Democrats? Is there a dou- cratic colleague should examine a lit- Way said in a letter from Ralph Neas ble standard here? You doggone right tle more closely the euphemistically- dated January 29: there is. It is because he is a Hispanic named People for the American Way. As several Senators have explained, Mr. conservative Republican. That is why— Over the past two years, I have Estrada has a limited paper trail, particu- because they cannot pin anything on larly because the Justice Department has re- watched the war of propaganda waged him. When you can’t pin something on against President Bush’s judicial nomi- fused to release the legal memoranda he somebody, you do fishing expeditions wrote while serving in the Department. nees. I have seen the records of good to find any amount of dirt you can get. men and women distorted and smeared Let’s get the real facts. All seven liv- A fishing expedition into confidential ing former Solicitors General of the simply because they are the nominees memoranda in the Solicitor General’s of a conservative President. And I have United States—Seth Waxman, Drew Office should not be allowed, and it has Days III, Walter Dellinger, Kenneth decried the pertpetrtors of these smear not been. campaigns who have nothing to lose by Starr, Charles Fried, and Robert Let me go back to the Democrat pol- their misrepresentations but every- Bork—have written the Judiciary Com- icy statement: mittee defending the need to keep such thing to gain when it come to raising LACK OF SUPPORT FROM HISPANIC AND OTHER money to promote their left-wing agen- documents confidential. Four of those ORGANIZATIONS da. are leading Democrats. Mr. Estrada is opposed by, among others, The letter noted that the SG, the So- the following organizations: Congressional I am taking about the liberal Wash- licitors General: Hispanic Caucus, Congressional Black Cau- ington special interest groups that are relied on frank, honest and thorough advice cus, Mexican American Legal Defense and the ones manufacturing the weapons of from their staff attorneys like Mr. Estrada— Education Fund, Puerto Rican Legal Defense mass obstruction. And that the open exchange of ideas and Education Fund, Leadership Conference That is what they are—weapons of which must occur in such a context— on Civil Rights, AFL–CIO, Sierra Club, NOW, mass obstruction in this case, and oth- National Women’s Law Center, NARAL and ers as well. simply cannot take place if attorneys have SEIU. reason to fear that their private rec- One of these groups, People for the ommendations are not private at all, but On January 30, People for the Amer- American Way, claims that ‘‘Ameri- vulnerable to public disclosure. ican Way again; this is a press release cans could lose fundamental rights, I have said that on the floor of the rather than a letter: freedoms, and protections that they Senate so many times I am getting Neas noted that leading Hispanic organiza- have enjoyed for decades’’ if the Senate sick of saying it. Yet I have had Demo- tions opposing Estrada’s confirmation—in- confirms Miguel Estrada. How low can cluding the Congressional Hispanic Caucus, crats tell me today: You mean seven you get? When I learned this, I said to Mexican American Legal Defense and Edu- myself, with a name like People for the Solicitors General said that, four of cation Fund, Puerto Rican Legal Defense whom are Democrats? and Education Fund—have been joined in op- American Way, maybe I should rethink They were amazed to hear that. position by a diverse coalition of environ- my position on the Estrada nomina- Why did the people for the American mental protection, women’s rights, and tion. I began thinking, Who are these Way say that? Because they are par- other public interest groups. folks who call themselves People for

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That is why it is especially impor- am a person, and I am all for the Amer- I hope my colleagues on the other tant that Senators assure themselves ican way—which, in my book, stands side of the aisle will stand up to the about the quality of a nominee and for truth, civility, fidelity, and justice. pressure tactics of the left and recog- their philosophy before he or she is So I asked around my neighborhood nize that only in America can a teen- sent to the bench. This power should and, well, it doesn’t appear that any of age immigrant from Honduras apply not be just a review of their biographi- my neighbors are members. My family his intellect and talent to rise to a cal information or their academic cre- and friends aren’t members. Nor does it Presidential appointment to our Na- dentials, their resume. It ought to be appear that any of my veteran friends tion’s highest court. That is the Amer- complete with regard to understanding are members. ican way. their judicial philosophy and how they So who are they, these People for the Only in America can someone such as may approach their demeanor on the American Way? I went to their Web Miguel Estrada come here hardly bench. site to find out. It appears that they speaking English, accomplish so much Of course, while all judicial nomina- are a very busy bunch of people who and rise to the point where the Presi- tions deserve careful review, the par- raise money for left-wing causes. In- dent of the United States has nomi- ticular nomination before us is unusu- deed, their Web page on President nated him to one of the most impor- ally important. I think it is pretty Bush’s judicial nominees contained tant courts in the country. And only in clear that the Court of Appeals for the four separate solicitations for dona- America can his record be distorted District of Columbia is widely ac- tions, four on one page. Profiting at like it is being distorted by the People knowledged to be the most powerful the expense of trashing other people’s for the American Way, and others. appellate court in the Nation, below reputation may qualify for the Na- They have a right, I suppose, under the only the Supreme Court itself. Because tional Enquirer way—but it is not the first amendment to do any kind of dis- it hears appeals for so many cases, in- American way. Of course, this organi- tortions they want, but it isn’t right volving Federal agencies, the work of zation should be free to raise money for them to do so. Government, its decisions often have and exercise its first amendment I yield the floor. broad national impact. It regularly es- rights. But the Senate is not obligated The PRESIDING OFFICER. Under tablishes rules with profound implica- to do its bidding or jump when it says the previous order, the Senator from tions for workers’ safety, consumer so. New Jersey is recognized. protection, civil rights, the environ- Mr. CORZINE. Mr. President, I rise Unfortunately, you can see where a ment, and on and on. And its decisions today to express my opposition to the lot of the language is coming from— help determine the extent to which or- nomination of Miguel Estrada to the People for the American Way over and dinary Americans are allowed to chal- U.S. Court of Appeals for the District over. It is false. lenge the decisions of their Govern- of Columbia. So I became more curious. Maybe if I ment or the judiciary. learned who its board members are I As many of my colleagues have ex- Moreover, the person who is ulti- would be convinced that they truly are pressed—and my remarks are not from mately selected to fill the current va- people who stand for the American the talking points of the People for the cancy is likely to be a swing vote on Way. American Way—there are a few respon- I did a little more surfing on this sibilities of Senators that are more im- the court. The fact is, there currently Web site and found out that People for portant than the review of judicial are eight active judges in place, who the American Way, board members, in- nominations. There are few things we are often divided on a 4–4 split. So this clude a Hollywood actor. will involve ourselves in on the floor of individual will almost certainly have Gee, I think that is great—to have a the Senate that actually will survive an enormous impact on the lives of Hollywood actor acting in politics. We many of us in our careers in the Sen- millions of Americans and vital con- certainly have a few of them, don’t we? ate. The Constitution delegates us both cerns to them, for better or worse. The board members include a record the authority to advise the executive That, no doubt, is largely why the executive, a Democratic lobbyist, and a about possible nominations and the President and the majority of the Sen- former Clinton White House staffer power to give or withhold consent. It is ate have made it such a high priority. who was the center of the FALN ter- critical that we exercise these respon- And it is a high priority. That is why rorist clemency debacle. Are these sibilities seriously and with the utmost all Senators need to think long and mainstream Americans? Are these peo- care. We need to be judicious. hard before approving this or any nom- ple to whom we defer on what qualifies After all, judicial nominations are ination. as the American way? Maybe in Holly- fundamentally different than nomina- Unfortunately, at this point, all of wood or on the Upper East Side of Man- tions for executive branch appoint- my colleagues face a serious problem hattan. But not in my neighborhood ments. Unlike the nominations of Cabi- in evaluating the nomination before us. nor, would I say, in most of America. net officers, judges, ambassadors, they We simply do not have enough informa- This is something that deeply trou- do not serve the President. They func- tion to do the job properly. At least bles me. Too many of my colleagues on tion in an entirely independent branch that is my view. That is because this the other side of the aisle appear be- of Government, a branch with signifi- nominee has no record in public office, holden to groups such as People for the cant power to shape the actions and and basically has refused to provide us American Way. But their brand of poli- policies of the other two. As a con- with information necessary to evaluate tics includes obstructing the confirma- sequence, there is far less reason to be his judgment, fitness for appointment tion of qualified men and women to the deferential to a President’s judicial to the second highest court in the land. Federal judiciary using any available nominations than executive branch He has refused to answer many basic weapon. To them, this is war, and all is nominations. A President deserves to questions that were posed during the fair—even if it means smearing the rep- have his own team, but when we are Senate Judiciary Committee review. utation of good, solid nominees such as talking about the judiciary, we are And he has withheld examples of his Miguel Estrada. talking about an independent branch of work and thought in the past, things I Not qualified? Give me a break. An Government. think would be available to anyone ABA rating, unanimously well-quali- Perhaps even more important, who would be actually scrubbing down fied, the highest you can have; 15 U.S. judges, unlike executive branch offi- this nominee if he were in the execu- Supreme Court arguments; Columbia, cials, have lifetime appointments. Once tive branch. and Harvard Law magna cum laude; the Senate approves their nominations, As a result, it is extremely difficult— editor of the Harvard Law Review; law there are few effective ways to hold frankly, impossible—for any Senator to

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2166 CONGRESSIONAL RECORD — SENATE February 11, 2003 evaluate his full set of views, his tem- perament, and how one would approach lifetime appointment over which we perament, values, and method of ana- issues, there were no answers to the will have no control once confirmation lyzing legal issues, and his likely ap- questions. Nor has the administration is in place. proach to the bench. been willing to share any of Mr. Let me ask my colleagues this: Do we Fundamental questions on issues be- Estrada’s work product during his serv- really think the White House and the fore the Nation are at stake very regu- ice in the Solicitor General’s Office—a Justice Department nominated Mr. larly in this court with respect to af- refusal that is apparently not con- Estrada without knowing his views and firmative action, Roe v. Wade, how our sistent with precedent, at least in a approach to the law? Do we really labor laws are interpreted, interpreta- number of cases in recent history, Jus- think the same kinds of questions we tion of the commerce clause, basic fun- tice Bork’s nomination being one of would expect to ask ourselves, maybe damental directions I think Senators those cases. But there are a number of of our own employees or someone who should understand and at least have a others as well. was giving us legal advice, don’t we little bit of perspective about on how This is the kind of stonewalling, think that process was followed by the this nominee might feel about it. frankly, that I find unacceptable, and I Justice Department and the White Let me be clear, I recognize it is not think the American people would find House? Once again, if that didn’t hap- appropriate to ask judicial nominees to unacceptable if they were focused on it. pen, I would be disappointed. I would say anything in the nomination proc- We, as Senators, must not tolerate it think the executive branch would not ess that would undermine their ability either. If this stealth and secretive ap- be following its responsibilities. I to judge particular cases in the future. proach to nominations is validated in doubt anyone would take on someone They should not be asked to evaluate this case, I am afraid all nominees in with a lifetime appointment in a most particular facts, nor to comment on the future will adopt a similar ‘‘secret serious position without understanding specific legal issues likely to come be- strategy.’’ It will not reveal anything, where they stood philosophically, tem- fore them, if confirmed. Nominees have and so we will sort of play Russian rou- perament-wise, and with regard to how a right and responsibility to exercise lette with how candidates will serve they view the law. Beyond the constitutional issue, reasonable discretion throughout the once they get to the bar. nomination process. I respect that. I Senators will be asked to exercise which by a wide margin is the most im- think my Senate colleagues do. their constitutional duties with little portant, I would like to take a moment That said, we still need to have an or no information. Frankly, being to respond to some claims that have understanding of how one might ap- blindfolded as a Senator when you are been made by supporters of the nomi- proach generally the philosophy of considering such an important issue is nation during the course of the debate. I am actually a little bit offended by it. being a judge, how one might look at not acceptable. First, some of the supporters of Mr. the Constitution, their judicial tem- Governing in the dark, governing in Estrada have suggested those opposed perament. All those kinds of things secret is most certainly contrary to to the nomination somehow are ob- seem to be fair questions people ought the philosophy underlying our con- structing the process of filling vacan- to have some understanding of before stitutional premises, and approving a cies on the Federal bench. This is a ri- someone is approved. nomination in such circumstances diculous statement on its face. During While it is not appropriate to expect would represent a gross abdication of the last 17 months of the last Congress, to comment on specific cases, it is en- our responsibilities. In effect, we be- under Democratic leadership, the Sen- tirely appropriate for nominees to an- come nothing more than a ate confirmed 100 of President Bush’s swer general questions about their phi- rubberstamp. I hear there has been judicial nominees. In fact, under Demo- losophy, their views and thoughts on some argument about the rubberstamp cratic leadership, the Senate worked at broad types of legal issues. In fact, it is concept. The distinguished Senator a rate almost twice the average during essential to do so. Otherwise, Senators, from Utah used that phrase when he the preceding years when a Republican- in my view, will be unable to exercise was taking a different view about judi- led Senate repeatedly blocked the their own constitutional responsibil- cial philosophy for other candidates at nominees of a Democratic President. ities to provide serious advice and con- another point in time and didn’t appre- I can tell you in my own experience sent in this process. ciate it. I don’t think we should at this in New Jersey, we had four openings on By the way, this is fundamental. It is point accept it and embrace it as our the district court. We worked very clearly a bipartisan viewpoint. It cer- approach. carefully and thoughtfully and coop- tainly was as we looked at the judicial We need to be a part of this process eratively with the administration to appointment process under the pre- and understand more about the nomi- fill those vacancies with a diverse set vious administration. People wanted to nee. Remember the stakes that could of candidates, quite broad based. And understand what a candidate’s judicial well be involved in the pending nomi- we are now working very cooperatively philosophy was and how issues might nation. Is the Senate really willing to to try to fill a circuit court judgeship be framed in a general context as they put the fate of worker safety in the in the same way that is now being de- went forward and looked at nominees hands of someone we know so little bated with regard to the district court forthcoming from the previous admin- about? What about the myriad of con- in Washington, DC. This is not some- istration. sumer protections or civil rights, envi- thing where cooperation is lacking. Unfortunately, the nominee before us ronmental protections, and so on? Over and over and over again people today—and I believe this is really the Would any of my colleagues be will- are prepared to reach out even when heart of the matter—has essentially re- ing to hire a legal counsel into their people have different judicial philoso- fused to answer any of those relevant own staff, would any of us bring any- phies and work together. questions. He won’t provide any infor- body into our own activities, as we rep- I am not suggesting Democrats mation about his approach to the legal resent the people from our States, should block nominations in some sort issues. He won’t comment about any without knowing at least something of a tit for tat. In fact, we have not. I past cases. He won’t give us even a clue about their general approach to how don’t agree with that approach. I don’t about his judicial philosophy or his they would deal with issues and how think it would be appropriate. But it is views on the way judges should handle they approach their worklife? Who wrong and unfair for others to argue we their responsibilities. Instead, time would do that? I don’t know that any- are being obstructionist just because after time, in his appearance before the body would do that in the private sec- we refuse to serve as rubberstamps. I Judiciary Committee, he simply re- tor where I came from, and I doubt don’t plan on being one. I was not fused to answer questions at all. very seriously anybody would do that elected to be a rubberstamp. Now, that does not mean there right here with their own staffs. That Let’s remember, Senator SCHUMER wasn’t any testimony or there were no is true even though any of us can eas- has pointed out so eloquently that in questions answered. I saw a big book ily remove our own staffers if they fail the case of judicial nominations, the raised up that has a transcript of the to perform adequately. burden of proof does not lie with the hearing, but when it got to the basic In the case of a judicial nomination, Senate or those opposed to a nomina- questions of judicial philosophy, tem- by contrast, we are talking about a tion. The burden appropriately rests

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 11, 2003 CONGRESSIONAL RECORD — SENATE S2167 with the nominee himself or herself Now let’s look at the record of Re- those questions, to be diligent, thor- and the President who made the nomi- publicans in the Congress. During ough, and judicious, and to make sure nation. It is their affirmative obliga- President Clinton’s tenure, 10 of the we have an impartial judiciary after we tion to convince the Senate of a nomi- more than 30 Hispanic nominees were go through the process. nee’s suitability. delayed or blocked from receiving I hope enough of my colleagues will It is clear in this case Mr. Estrada hearings or votes, and many highly have the strength to stand up to the and the administration have not met qualified Hispanic nominees were de- demagogic attacks coming from many this obligation. To the contrary, they layed for extended periods of time. proponents and supporters of this nom- have tried to say as little as possible Take Richard Paez, for example. He ination. I hope some of those on the about Mr. Estrada and his views. was a highly qualified candidate, well other side will reconsider their ap- Again, we have a stealthy, secretive respected in his profession, yet his con- proach. nomination process going on, and it is firmation was delayed for more than Speaking for myself, this is one Sen- inconsistent with what our responsibil- 1,500 days—1,500 days and we are com- ator who cannot and will not face down ities are. It degrades the integrity of plaining about 500 here. And 39 Repub- under these irresponsible attacks. This our role as Senators in the confirma- lican Senators voted against him then. is one Senator who will not abandon tion process. In sum, the other party doesn’t have his sense of responsibility to our Con- Unfortunately, others in this body a strong record when it comes to pro- stitution. I simply cannot, in good con- have also gone so far as to say that op- moting this. I think it is hard to put it science, support this nomination as it position to Mr. Estrada’s nomination into a framework that somehow or an- stands today without the information has been based on an ethnic back- other this campaign is anti-Hispanic. being provided that is necessary to un- ground. I heard that just recently. It Speaking for myself, I strongly be- derstand the context of the nominee. has even been suggested that oppo- lieve in promoting diversity on the I would very much like to see a more nents of the nomination are intent on Federal bench. I was proud to join my diverse court, and I will work to make keeping Hispanics off the court and op- colleagues who spoke about the efforts sure it happens. But I will not put my position is disrespectful to our His- of working together with the White seal of approval on an individual who panic citizens. House and actively supporting the has basically challenged the nomina- Let’s get real. These kinds of attacks nomination of Jose Linares to the dis- tion process in refusing to answer the are outrageous, part of an attempt to trict court last year. Mr. Linares, a kinds of questions that would allow me intimidate those opposed to the first-generation American born in to have the assurance, when I speak to Estrada nomination. Frankly, they Cuba, has been a leader in the Hispanic the people of New Jersey, that I under- just don’t represent the kind of debate community in my State for many stand how someone with a lifetime ap- we should be having in the Senate, and years, serving as president of the New pointment might think about some of they won’t work. After all, most major Jersey Hispanic Bar Association and the most important issues that impact national organizations that exist to representing many clients of Hispanic represent the Hispanic community are their lives in the days and years and origin while operating in private prac- actively opposing this nomination. I decades ahead, particularly for a 43- tice. Mr. Linares is just one example of know this from actual dialog, not from year-old nominee. I do not intend to be my continued dedication, and I believe some lobbying organization that rep- a rubberstamp. most of us in the Senate on both sides I thank the Chair. resents a particular judicial philos- of the aisle, to promoting diversity on The PRESIDING OFFICER (Mr. TAL- ophy. I hear it from the Congressional ENT). Under the previous order, the Hispanic Caucus, hardly an anti-His- the Federal bench. While I strongly believe in the value Senator from Colorado is recognized panic organization. I hear it from the of promoting diversity and increased for 15 minutes. National Association of Latino Elected Hispanic representation in the judici- Mr. ALLARD. Mr. President, I rise to and Appointed Officials; again, hardly ary, that doesn’t mean the Senate share an observation made by my col- an anti-Hispanic organization; Mexican should be rubberstamping any and league on this side of the aisle—the American Legal Defense and Education every Hispanic nomination. In this chairman of the Judiciary Committee, Fund—I could go on and on—National Senator HATCH from Utah—that, like Puerto Rican Coalition; Puerto Rican case, we have a nominee who has con- him, I believe there is a double stand- Legal Defense and Education Fund. sistently refused to answer any sub- ard. None of these organizations are anti- stantive questions regarding judicial Last week, I came to the floor to Hispanic. philosophy, has no judicial experience, By the way, those of us on this side and is actively opposed by most of the urge my colleagues to support the con- of the aisle who are trying to express a mainstream organizations that rep- firmation of Miguel Estrada, President principle with regard to the Constitu- resent the Hispanic community. Bush’s nominee to the DC Circuit tion are not, either. To have any kind I hope my colleagues will remember Court. Last week, I had my statement of implication that we are is over the what is at stake here. This is not just focused on the late Byron White, Jus- top. When virtually every credible His- another vacancy on a single court. This tice to the U.S. Supreme Court. During panic group opposes this nomination, it debate, ultimately, is about our re- my comments, I pointed out that Jus- simply does not pass the laugh test to sponsibilities as Senators. The ques- tice White’s judicial career began in a argue otherwise. The claim is ridicu- tion is whether we are going to become manner very similar to that of Miguel lous. nothing more than that proverbial Estrada. Justice White was nominated It is similarly preposterous to claim rubberstamp, abandoning our duty of by President John F. Kennedy when he the Democratic Party is anti-Hispanic. advice and consent on judicial nomina- was only 44 years old. He went on to Of the 10 Hispanic appellate judges cur- tions. The question is whether we are serve his country for three decades, rently seated in the Federal courts, going to start approving nominees without having any judicial experience eight were appointed by President Clin- about whose philosophies we know vir- prior to joining the Supreme Court. ton. Three of President Clinton’s first tually nothing; whether we are going And he did an exemplary job on the 14 judicial nominees were Hispanic, and to vote like a gambler, blindly spin- bench. he nominated more than 30 Hispanic ning a wheel of chance and hoping for Yet opponents of Miguel Estrada men and women to Federal courts. the best. have pointed to his lack of judicial ex- Let’s contrast that record to that of I don’t think the American people perience as the ‘‘poison pill’’ to his our friends from the other side of the want that. I know the folks in New Jer- nomination. This is an unacceptable aisle. First, let’s look at the Bush ad- sey don’t want that kind of attitude double standard. This experience lit- ministration record. Of the 42 vacan- out of their Senator. I, for one, hope mus test, as I call it, is nothing but an cies that existed in the 13 circuit that the Senate will live up to our con- obstructionist argument that is in- courts of appeal during President stitutional duties and that Senators tended to undermine the entire judicial Bush’s tenure, the President has nomi- will embrace the responsibilities en- nomination process. It is wreaking nated only two Hispanics. That is 42 trusted to us by the people who elected havoc with our constitutional duty to vacancies, two Hispanics. us. That is why we are here: To ask confirm the President’s nominations.

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2168 CONGRESSIONAL RECORD — SENATE February 11, 2003 To say that Mr. Estrada, one of the being voiced by a single Senator that deputy chief of the appellate section, best appellate court lawyers in the he was involved in a Senate race which and law clerk to Judge Amalya L. country, should not be confirmed be- was hailed by local newspapers as a bit- Kearse of the U.S. Court of Appeals for cause he lacks prior judicial experience ter interparty slugfest, and the opposi- the Second Circuit. is simply ridiculous. Justice White, a tion to Miguel Estrada wants to com- Judge Lucero practiced law in Colo- great Coloradan, would never have plain about politics. rado. Miguel Estrada practiced law in been confirmed had he faced such a Upon his confirmation, Judge Lucero front of the U.S. Supreme Court where strenuous litmus test; nor would an- correctly stated it was ‘‘an unfortunate he argued 15 cases. Mr. Estrada’s quali- other great Coloradan, Carlos Lucero, vestige of history’’ that it had taken so fications are clear and abundant. The have been confirmed had that test been long for the Tenth Circuit to seat a obstructionist charade must stop. applied to him. Hispanic judge. It certainly was not be- Over the past 2 years, many of my Judge Lucero was nominated to the cause of delays in a Republican Senate. colleagues have come to the floor to Tenth Circuit Court of Appeals by With the nomination of Miguel make statements regarding the sad President Bill Clinton on March 23, Estrada, the Senate has an opportunity pace of judicial nominations during the 1995, and was confirmed by the Senate to place the first Hispanic judge on the last Congress. They have made excel- on June 30, 1995. Three months is all it bench of the DC Circuit Court, a man lent points, but I believe the most tell- took. Like Justice White and Miguel who came to this country at age 17 as ing statistic is simply that more ap- Estrada, Judge Carlos Lucero had an immigrant from Honduras, and a peals court nominees have had to wait never served as a judge prior to joining man who is well equipped to serve as over a year for a hearing in President the court. Regardless of this fact, with- the Nation’s second most important Bush’s Presidency than in the last 50 in 3 months of his nomination, the Ju- court, certainly a success story of years combined. diciary Committee, then under the America and one that I like to herald Let me repeat that. The most telling statistic is simply that more appeals leadership of Chairman HATCH, held a time and again. confirmation hearing for Mr. Lucero. When Judge Lucero was before the court nominees have had to wait over a At no point during the confirmation committee, he was not asked his posi- year for a hearing in President Bush’s hearing—not even once—did a member tion on one issue, and yet my col- Presidency than in the last 50 years of the committee discuss his lack of ju- leagues just saw my colleague from combined. The stalemate on the Bush nominees dicial experience; nor did they consider Utah show the Members of this Senate must end. In the wake of September 11, it to be an impediment to his nomina- three pages of facts and testimony that we now understand the somber reality tion. Instead, the Judiciary Committee had been collected on Miguel Estrada. that the most basic of our country’s moved forward with the nomination in There were a couple questions in committee. I have them right here. values and traditions are under attack. a Republican-controlled Senate. That is why it is so important that we Judge Lucero had served as a staff This is the committee record on move the nomination process forward assistant to a U.S. Senator. He had Lucero. We saw the 3-inch committee and provide the judiciary branch of served on the staff of the Senate Judi- record on Miguel Estrada. When Judge Government the tools that are nec- ciary Committee, clerked for Judge Lucero from Colorado was on the essary to carry out its constitutional Doyle of the Colorado District of the Tenth Circuit Court of Appeals, they duty. We cannot continue to allow par- U.S. District Court, and practiced law asked him two questions: No. 1—it was tisan politics to interfere with prin- an open-ended question—give this com- in the private sector prior to joining cipled jurisprudence that is intended to mittee some idea why you think you the Federal bench. serve justice on those who have done us Let’s look at Miguel Estrada. He was qualify to serve on the Tenth Circuit harm. a graduate from Harvard Law School Court of Appeals. It was an open-ended Justice cannot be delivered from an with high honors. We have a lot of his question, a softball. No. 2—it was in- empty bench. Miguel Estrada’s life qualifications listed on the board be- tended to be somewhat humorous and story defines the very notion of our Re- hind me. He served as a law clerk to bring some levity to the committee public. Like Judge Lucero and Justice Supreme Court Justice Anthony Ken- hearing—they simply kidded him with White, he is an American success story, nedy, and he worked as an Assistant a question: Is it easier to become a building his success by combining en- Solicitor General of the United States Senator or is it easier to become a ergy and opportunity with self-respect in both the Bush and the Clinton ad- judge? That was the extent of the ques- and integrity and values. ministrations. Neither Carlos Lucero— tions, other than a few introductory re- It is time for the confirmation proc- now Judge Lucero—nor Miguel Estrada marks that were made in committee on ess to move forward and for a vote on had judicial experience at the time of Carlos Lucero. the floor of the Senate. At least we can their nomination. They both had a Yet we have information collected of have a vote on the floor of the Senate. breadth of legal experience that en- an extremely qualified candidate, And it is time to drop the double stand- sured success on the bench. Miguel Miguel Estrada. I have to tell you, ard and to confirm this very highly Estrada’s outstanding record of accom- there is a double standard. Unlike qualified nominee. I thank the Chair. plishment and real-life experiences Judge Lucero who was nominated by The PRESIDING OFFICER. The Sen- prove that he will be no different than President Clinton, Miguel Estrada has ator from Utah. Judge White or Judge Lucero and that been forced to put his life on hold while Mr. BENNETT. Mr. President, I have he will perform his judicial duties with special interests play games with our been watching these proceedings on great conviction and enthusiasm. system of justice, delaying his con- television in my office. I have heard Within 3 months, Mr. Lucero was firmation and perpetrating an unfortu- some of the presentations that have nominated, confirmed, and seated on nate status quo. been made. It seems that emotions are the bench of the Tenth Circuit, becom- Miguel Estrada’s nomination has running high on this issue on both ing that court’s first Hispanic judge. been pending since May 9, 2001. That is sides, and I can understand that, and Somehow, the fact that Mr. Lucero had nearly 2 years, and this is simply ridic- maybe, given the stakes we are playing no judicial experience did not stop a ulous. Judge Lucero was nominated with, applaud the fact that people feel Clinton appointee from being con- and confirmed in 3 months. Miguel strongly enough to come to the floor firmed, but that is not the only ironic Estrada has been waiting for 2 years. and express themselves. argument. Judge Lucero ran for the Senate twice. I wish to make a few comments sim- The Lucero nomination points out a Miguel Estrada is far less political ply in reaction to some of the state- second double standard being put for- than Judge Lucero. ments I heard this afternoon, however. ward by his opponents that Miguel Judge Lucero clerked for a U.S. dis- Perhaps no one will notice, but in my Estrada is too political. Carlos Lucero trict judge but had no judicial experi- own mind I will have done something was a two-time candidate for the Sen- ence. Miguel Estrada served as a clerk to set the record straight. ate and a member of one of President to Justice Kennedy of the U.S. Su- The Democratic leader talked at Carter’s advisory committees. Yet he preme Court, Assistant to the Solicitor some length about Miguel Estrada’s su- still was confirmed without a concern General, assistant U.S. attorney, and pervisor at the Department of Justice,

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 11, 2003 CONGRESSIONAL RECORD — SENATE S2169 a supervisor who has now publicly stat- would expose Mr. Estrada as part of the failed that test and therefore must be ed that he does not think Mr. Estrada vast right-wing conspiracy. I think opposed, and we will make up these should be confirmed. That is obviously they would find the excellent work of a other reasons to oppose him, even that supervisor’s right, and it is some- superb lawyer so that it would prob- though we cannot apply these same thing I think we should appropriately ably help Mr. Estrada’s case if those reasons to other candidates for whom take into consideration. memos were brought forth in estab- we have voted. That which I would point out, how- lishing his competence and his ability. I hope I am wrong. Some will say: ever, is that while Mr. Estrada was But professional ethics say that a law- That is a facetious, almost capricious, working there, that same supervisor yer does not disclose that which he has statement on your part, Senator BEN- gave him the highest possible ratings prepared for a client, particularly in NETT. But I renew the request. I ask in his annual performance reviews. We the case where the client says: Do not those who have determined in advance are told there is no paper trail on Mr. do it. Mr. Estrada has not done it and the test that Estrada must pass, and Estrada, but there is a paper trail in is being attacked now on the floor of who have determined that he has failed terms of the written performance re- the Senate for what, in my opinion, is to pass that test, to do us the courtesy views of his activities while he was in his appropriate professional stance. of telling us what that test is, telling the Department of Justice, and those So we have the circumstance where a us in advance what hoop the nominees reviews are unanimously and man who is responding to his profes- must pass through in order for them to unchangingly glowing, giving us the in- sional requirements, a man whose ca- allow the nominees a vote on the floor dication, at least in the written opin- reer is fully open and clear for every- of the Senate. Until they tell us, this ion of his supervisors filed for the one to see, a man who has hidden noth- whole process we are going through record in a situation where there was ing and has no holes at any point in his will remain somewhat of a mystery. no political pressure one way or the chronological resume, is being held up I yield the floor. other, that Mr. Estrada is certainly and being denied a vote on the floor of The PRESIDING OFFICER. The Sen- qualified in every way for the assign- the Senate. As I have said before, we do ator from Utah. ment he had at the Department of Jus- not really know why. We do not know Mr. HATCH. Mr. President, we are tice and the implication, of course, is what particular test is being applied to about to wrap up for this evening. I that he would be qualified for further this confirmation. have been very disappointed with some assignments later in his career. We know there are others whose rat- of the debate today because it is appar- I should also like to point out that ing by the American Bar Association is ent that some of our colleagues have this was not the Ed Meese Justice De- not as good as Mr. Estrada’s who have not looked at the record, have not got- partment, this was not the Richard gone through without any difficulty. ten the facts, that they are listening to Kleindienst Justice Department, those We know there are those whose ‘‘lack People for the American Way and all who have been attacked as being un- of judicial experience’’ is exactly the the distortions that come from there. duly partisan because of the nature of same as Mr. Estrada’s, others for whom That is disturbing to me. the particular Attorney General and the lack of judicial experience made no When I was chairman of this com- his closeness to the President. This was difference but which in his case sud- mittee for 6 years during the Clinton the Janet Reno Justice Department, denly is touted as making all the dif- administration, we put through 377 and Mr. Estrada was there not for a ference in the world. Federal judges. There were a number week or two in transition but he was We know these are straw arguments who gave great angst to people on my there for a matter of years. If he is part because we can find plenty of cases side because of the differences in phi- of the vast right-wing conspiracy, as where others in exactly the same situa- losophy, differences in judging, dif- some have suggested, why did the peo- tion as Mr. Estrada did not have them ferences in approaches to judging, but ple of the Reno Justice Department raised against them. we put them through. We did not mis- speak so highly of him and retain him So what we have is a situation where treat people, at least as far as I can for so long? an additional test, unannounced and see, not like this. There can be only one logical answer. therefore unknown, is being applied in It is important for people to realize Either the people involved in the hiring this case. I have tried to figure it out. what he has been through, because to of the Justice Department under Janet I have asked Senator LEAHY to disclose hear this talk on the other side, one Reno were incredibly blind to Mr. what particular test he is applying in would think nobody ever even looked Estrada’s ideological bent or they saw this situation. I have been unable to at this man; that they had not had a in him a lawyer of incredible and sig- find a satisfactory answer. As I have chance to question him; that he did not nificant ability and wanted his services said, perhaps facetiously but with some answer any questions. and retained his services. seriousness, I have come to the conclu- This binder contains the hearing The Democratic leader made a great sion that the test that is being applied record. Most hearing records would be point out of the fact that none of Mr. is passing muster with the editorial 10 pages. This is his hearing record. My Estrada’s memos, while he was at the board of the New York Times. If the gosh, the hearing was conducted by Justice Department, is being supplied New York Times editorial board de- Democrats. They controlled the whole to the committee for review. He did not cides Mr. Estrada is not to be accepted, shebang. They asked every question tell us that Mr. Estrada’s supervisor, that means he must be turned down be- they wanted to, and he answered them. the Solicitor General of the United cause the New York Times is the voice I can see today he did not answer them States, appointed by President Clinton of what I call the responsible left in the way they wanted him to, so that and serving under Attorney General this country. We have the irresponsible they could complain about him, but he Reno, says those memos should not be left, but we have the responsible left. did answer them. I think he answered made public. The Solicitor General, There are those who claim the New them better than most of their judges not Mr. Estrada, was the client. The York Times is completely middle of whom I put through answered our ques- client who received the memos is the the road, the New York Times has no tions. one saying the memos should not be ideology. Those who are making that Think about what he has been made public, and yet the lawyer who claim do not read the New York Times, through. Before a person gets nomi- prepared the memos, in confidentiality or if they do, they do not understand nated, the White House does a thor- for his client, is being attacked for not it. It is the voice of the left in this ough review. They do a thorough re- violating his client’s request. country, the responsible left. search on whether or not to nominate I think it is fairly clear that the cli- If its editorial board has decided that the person. They also interrogate the ent is right in this case and that Mr. Miguel Estrada must not be confirmed, person as to whether there are any dif- Estrada is acting in the highest levels there are those who say we cannot ficulties that person might have. Then of his profession to see to it that those cross the editorial board of the New if they decide they are ready to go for- memos are not made public. If they York Times, we must follow their dic- ward, they are subject to an FBI re- were made public, I do not think they tates, and therefore, without announc- port. They then send out the Federal would find anything in them that ing it, we recognize that Estrada has Bureau of Investigation.

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2170 CONGRESSIONAL RECORD — SENATE February 11, 2003 The Federal Bureau of Investigation has not been investigated, then we go way they wanted him to, but that is does a terrific investigation. Generally to the FBI and say, You have to do fur- not his obligation; he didn’t make any on a judgeship like Estrada, it is a ther investigation. We want this done. mistake—he did not give them some- notebook at least this thick, where And the FBI then does it, pursuant to thing to feed on to destroy him with. they interview the nominee’s friends, our rules. It is, again, a very big, ardu- There has not been a good argument neighbors, business associates, en- ous, difficult process. against him made since we have start- emies, wackos, crazies. This is what Then, as in the case of Estrada, the ed this debate other than ‘‘he did not you call a raw FBI report. Then assum- Democrats controlled the committee. answer the questions.’’ Well, some ing that goes well, the administration They took a total of 516 days—16 questions did not deserve being an- then makes a determination whether months—before they even had a hear- swered, but he answered a lot of ques- to submit the name. As they submit ing. Now, generally these hearings go 2 tions. or 3 hours at the most. Estrada’s hear- the name, they generally notify—some- Then, when the hearing is closed, ing was virtually all day. It was con- times even before they submit the they do a transcript. That is what this ducted by the Democrats. In fact, Sen- name—the American Bar Association. big document is, a transcript of that The American Bar Association then ator SCHUMER chaired the hearing. Sen- hearing. That is given to the Senators takes one of their examiners after all ator SCHUMER, as I have said before, is who want it. And most everyone does. the FBI has done and their examiner no shrinking violet. He is a tough guy. Then the Senators pour over that tran- generally is from the same area as the He is a very smart lawyer. I value our script and if they see questions that nominee. That examiner then goes and friendship because he is always were not answered in that transcript, talks to the leading attorneys, the straightforward. We have a decent, then they have a right to write written leading lawyers in the area—and oth- good, workable relationship. But he, questions. And the Senators who are ers, if the person is so led—to deter- along with other Democrats, then came really interested then write written mine ethical standards, legal ability, in and asked questions of Miguel questions for him to answer. Guess how industriousness, health, strength, tem- Estrada. They asked voluminous ques- many Democrats wrote written ques- perament, and so forth. All that is in- tions. That is what this hearing tran- tions? Two. And he answered those vestigated by the ABA. Most nominees script is all about. You do not see written questions. He may not have an- get a rating of ‘‘qualified.’’ That is a many hearing transcripts that big. I swered them the way they wanted him high rating. Anytime you can get the have been here almost 30 years and I to do so they could attack him and try rating of ‘‘qualified’’ from the Amer- have seen very few that large until to destroy his nomination, but he an- ican Bar Association, you have done there is some real problem. But in all swered them. Where were all of the something pretty worthwhile. That of this hearing, out of it came their questions they are now raising when means you have achieved in this life. comments that he really did not an- they had every opportunity to ask I used to be pretty upset at the swer the questions. But he did answer those questions? American Bar Association when I saw the questions. Some of the questions he partisan politics being played with the did not want to answer because they By the way, that hearing was fin- standing committee that investigated may have involved issues that could ished in September of last year. Ordi- people. The perfect illustration was in come before him as a judge. And he was narily when you have a hearing—not the Bork case. Unanimously well quali- not supposed to answer those ques- always but ordinarily—the next Judici- fied when he came up for the Circuit tions. Lloyd Cutler, whom I quoted ary Committee markup, the persons Court of Appeals for DC, the same over the last week many times, says put on that Judiciary Committee court we are talking about here, and they should not answer questions that markup where you can raise anything just a few years later, found to be ‘‘well involve matters that might come be- you want to. Did they put him on a qualified’’ by a majority of the stand- fore them. markup between September and Janu- ing committee, and ‘‘not qualified’’— The Circuit Court of Appeals for the ary of this year? Not on your life. They one of the leading intellects in law in District of Columbia has a tremen- did not give him a chance. He would the history of this country? I happen to dously broad jurisdiction. It is, like the not have made it. And the Republicans know one or two of the people on there people said, the second most important then won control of the Senate. He who voted ‘‘not qualified’’ who were court in the country and in some ways would not have had a chance. So they very partisan Democrats and did not the most important court because they relied on being able to kill this nomi- want a conservative like Bob Bork on have thousands of cases that the Su- nation by never calling it up. Why the court. They won in the end. preme Court of the United States of would they want to kill a nomination Since then we have had our problems America will never hear because they of one of the brightest young Hispanic with the ABA. When I became chair- can only take 80 to 100 cases a year. So leaders in America who is totally man, I took the ABA out of the proc- it is a very important court. It is a qualified for the Circuit Court of Ap- ess, and my argument was then, and it court of last resort to many. Because, peals for the District of Columbia? I’ll is still a good argument, why let one of as I said, those cases do not go to the tell you why. It is a very simple rea- the bar associations, even though it is Supreme Court. son, to be honest with you. It is be- the largest one, and not all the other Not only did they ask questions all cause he is a Hispanic Republican, ap- ones, vote these people? If we let them day long and ask serious questions and pointed by a Republican President. all vote, we would never get through he gave serious answers—and if you They didn’t like it. And they think he the process. In fact, it takes at least 2 read the transcript, you will see that— is conservative. I don’t know whether months to 3 months for the ABA. They they had every crack they wanted. If he is or isn’t. I presume he is. I guess say they can do it in 30 days, but it is they did not have it, they could have they think he is on the fast track to generally between 35 and 60 days to do called for another day of hearing. That the Supreme Court, and I suspect their research. When the nominee would have been extremely unusual for Miguel Estrada has a chance of becom- comes up to the Judiciary Committee, a circuit court nominee, but they could ing not only the first Hispanic nominee all of that is submitted to the Senate have. They controlled the committee. on the Circuit Court of Appeals for the Judiciary Committee. There would have been absolutely District of Columbia, but the first His- Now, the chairman and the ranking nothing I as ranking member on that panic on the United States Supreme member, in particular, have staff— committee could have done other than Court. And he is not the right kind of skilled, honest, decent staff on both complain. I probably would not have Hispanic. sides—who, along with the chairman complained. But they did not do that. I am the chairman of the Republican and ranking member, go through all of They did not ask anymore questions. Senatorial Hispanic Task Force. That those materials that the FBI especially Now, after the full hearing and all of task force is made up of Democrats, has collected. Sometimes it is ex- this time it took to do that, and all of Republicans, and Independents. We tremely voluminous. If we see, in going the questions all of the Democrats didn’t worry about their political ide- through the materials, that something asked at that time—which he answers; ology. We worried about getting to- has not been answered, or something maybe, I admit, he did not answer the gether with them and seeing what we

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 11, 2003 CONGRESSIONAL RECORD — SENATE S2171 could do to help the Hispanic commu- Way. That, as I have said earlier today, things that there is not a problem. nity. That has been an amazingly suc- is not the American way, to treat a There is a problem. In this country, the cessful Hispanic task force. human being the way this man is being Constitution of the United States, arti- I can tell you I fought very hard for treated. cle II, section 2, says that we as a Sen- Hispanics my whole Senate career, and I warn my friends on the other side, ate have a right to advise and consent for other people of color, other minori- if you are going to filibuster Miguel on nominations the President gives us ties as well. But the reason they don’t Estrada, then Katie bar the door be- for a wide variety of offices, not the like him is because he was appointed cause I know people on our side who least of which is the judiciary. by a Republican; a Hispanic appointed are going to filibuster anybody they That is something that has been done by a Republican, who is conservative, disagree with when the Democrats in this country for a long time and it they believe, and a Republican himself. have the Presidency. That will be a will continue a long time after the That is enough to give him this kind of sorry state of affairs. Estrada matter has ended. For my a rough time here on the floor of the As chairman of this committee, I friend, who has served with such dis- Senate. worked very hard to make sure some of tinction as the chairman of the Judici- But even then, they had between Sep- our firebrands did not get their way in ary Committee and ranking member tember of last year and January of this wanting to filibuster Carter and Clin- for many years, to say he thinks it is year. As a matter of fact, they had be- ton judges. And I won. I was able to unconstitutional to do what we are tween September of last year and Feb- convince people it was not the thing to doing leaves me without any logic. I ruary of this year to ask even further do. don’t understand how he could say questions if they wanted to. It would I question, under the Constitution, that. have been very improper for them to do whether you can do this. I really ques- I repeat, there is a problem with so because he had already been ques- tion it. I don’t believe you can. I think Estrada. You may not agree with what tioned. They controlled, certainly right it is outrageous to try. It is dangerous we believe is a serious problem, a up to January, the middle of January to try. And it is not fair to the first flawed nominee, but we believe there is of this year. They could have asked Hispanic nominated to the Circuit a problem. This isn’t something we any questions they wanted. They could Court of Appeals for the District of Co- have jumped into in a matter of 10 min- have had another hearing if they want- lombia, especially when they have had utes, 20 minutes, 10 hours. This has ed. It would have been highly extraor- every chance and we are now in the taken a matter of days, to take a look dinary and highly unusual, but that is 21st month for Mr. Estrada. at this nominee and to make a decision what they could have done. I guess we can learn to expect that about what we were going to do. It is partisanship. That is what is because Mr. Roberts, who is on our The majority has various things they showing its ugly face here. markup on Thursday, who is consid- can do at their disposal. We believe As chairman of the Hispanic Task ered one of the two greatest appellate there are questions he did not answer. Force in the Senate, I can tell you the lawyers in the country—Estrada is con- All nine members of the Judiciary Hispanic people in this country, the sidered one of the top appellate law- Committee who are Democrats agree Latino people, have helped to make yers, but Roberts is considered one of this man is not, for many different rea- this country what it is. The Latino the two greatest in the country and sons, a person who should go on the people are basically conservative. They that’s from Supreme Court Justices District Court of Appeals. believe in families. They believe in themselves and many others—Roberts We have heard it before, and I am re- staying together in their marriages. has been sitting here for 11 years, wait- minded of my friend, Mo Udall, a long- They believe in educating their chil- ing for approval by the Senate; nomi- time Member of Congress from Ari- dren. They believe in hard work. They nated three times by two different zona, who said: have built the railroads. They have Presidents. Everything has been said, but not everyone helped mine the mines. They have That is what we are going through. has said it. helped build our buildings. This is a big slowdown, trying to That is what has happened here. We Now we have young Hispanics such as thwart the process because they don’t have talked for days and days, and we Miguel who have gone on to profes- like President Bush. will tomorrow, and if someone can sional schools and they are making a A lot of our people didn’t care too come up with something that hasn’t difference in this country that deserves much for President Clinton. I did, but a been said by either side—I doubt it. commendation. Look what Miguel lot of the others didn’t. But that didn’t They will continue to say what has Estrada is going through for all of stop us from treating him fairly. been said in the last few days. We have that, a fellow who is fulfilling the We have taken enough time. opposition of the Congressional His- dream that America makes for us. Mr. REID. Has the Senator yielded panic Caucus. We believe, as has been Miguel deserves better than what he the floor? done with a number of other people is getting. Frankly, he is being treated Mr. HATCH. I will be happy to yield the who have been sent to the Senate by very unfairly. I, for one, am really dis- floor to my colleague. Presidents, we are entitled to the turbed by it. To filibuster Miguel The PRESIDING OFFICER. The Sen- memos he wrote when he was a mem- Estrada with the thin line of com- ator from Nevada. ber of the Solicitor’s Office. plaints they have is, I believe, going Mr. REID. Mr. President, my father- I recognize that some say that is not beyond the pale; to filibuster for the in-law, may he rest in peace, was a chi- a good idea. It has been done in the first time in a true filibuster the first ropractor, but he knew a lot about peo- past. If the majority believes this man Hispanic ever nominated to the Circuit ple’s illnesses and how people handled is as good as they say he is, why don’t Court of Appeals for the District of Co- sickness. One thing he always said—he they give us those memos? Are they lumbia because he is a Hispanic Repub- died as a young man—one thing he al- afraid he said something there that lican who they think is conservative, ways said was, when somebody says may weigh against his being a judge? I appointed by a Republican President they are sick, you believe they are do not know. But I think they protest who they don’t like. I am not saying sick. We have all said ‘‘they are not too much. all the Democrats don’t like him, but really sick.’’ When someone says they There is a problem with this nomina- the ones who are making these, I are sick, they are sick. tion. We don’t need a numbers game think, very unsubstantiated argu- This debate here reminds me of my here. But this is a filibuster. There are ments, do not. father-in-law’s statement. My friend, ways you can get rid of a filibuster: Time after time we have refuted no matter how many times the distin- Take down the nomination, and vote to their arguments in absolute terms and guished chairman of the committee invoke cloture. That is about what you they come right back and keep spewing says there is not a problem with can do. Or you can do what has been out the same stuff. The reason I went Estrada, there is a problem with suggested by the ranking member of through People for the American Way Estrada. You can say there is not. You the Judiciary Committee and the is because all of that stuff has been can have pictures of him. You can do Democratic leader in a letter sent to coming from People for the American all kinds of things, say all kinds of the President, which basically says let

VerDate Mar 15 2010 21:19 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11FE3.REC S11FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2172 CONGRESSIONAL RECORD — SENATE February 11, 2003 us have another hearing, let us ask But that is in fact why we are here. We proceed to a period of morning busi- some questions of this man, and have think there is a problem with this man ness. him submit those memos. It wouldn’t being given this appointment. Accord- The PRESIDING OFFICER. Without take very long. I assume he didn’t ing to us, he has not answered ques- objection, it is so ordered. write too many memos, but we could tions, and he has not submitted his f memos. And he is opposed by a lot of tell. I am sure they could be reviewed AMERICA UNGUARDED in a day. I am sure the hearing could groups who should be supporting him take place in a day. and don’t because they believe he is Mr. BYRD. Mr. President, as Presi- To say that this opposition is be- not a person who should go on the Dis- dent Bush gears up for a possible war cause he is Hispanic and he is a con- trict Court of Appeals. in Iraq, we have been treated to re- servative simply is not based on the The PRESIDING OFFICER. The Sen- peated announcements of troop deploy- facts. ator from Utah. ments and callups of Reserve forces. A But I accept what my friend from Mr. HATCH. Mr. President, I appre- fourth aircraft carrier battle group Utah has said. That is what he be- ciate my colleague. I agree with him; centered around the USS Theodore Roo- lieves. I know he believes that. I sub- there is a problem here. I don’t think sevelt is steaming toward the Persian mit that it is not right. He has a right there is any question about it. There is Gulf, and the Navy is reportedly pre- to believe that. As I have said before, a problem of whether we are going to pared to send up to three more carrier people have made statements over here treat a person fairly. I appreciate my battle groups to the region. Two Ma- about why they oppose Miguel Estrada. colleague in his own characteristic rine amphibious groups of seven ships That doesn’t mean that my friend from quiet and cautious and decent way. He each are also already in the gulf. Mili- Utah has to agree. But that is how peo- has outlined what he feels. tary installations around the Nation ple over here feel. Think about it. Where were the ques- are taking on an empty, shuttered feel- We have a problem with this nomina- tions during the time they controlled ing as unit after unit after unit packs tion. We are now in the throes of a fili- the Senate right up through the middle up, says goodbye, wipes the tears away buster. The majority leader has said he of January? They didn’t ask any fur- from their faces, from the faces of thinks the debate tomorrow should go ther questions. Only two Senators gave loved ones, and ships out. This is hap- for a long time. If that is what he written questions. They could have pening more and more and more all wants, that is fine. I spend all of my held an additional hearing. They did over this country. National Guard and Reserve forces legislative life here in the Chamber. I not do it. I guess they rolled the dice, have been mobilized not only to go to can spend a night or two here. It figuring they were going to win any- the Persian Gulf but also to guard mili- doesn’t really matter that much. We way, and they would kill this nomina- tary installations around the United have a lot to do. I know we have other tion no matter what happened. The States. And more and more and more, things the leader wants to do. I know fact is they lost, and now the Repub- one will look at dinner tables and at we have a very important appropria- licans are in control of the Senate, and countless workplaces, and there they tions bill that should be coming for- we want to see this man get fair treat- will see vacant chairs, vacant spots. ward in the form of a conference report ment. I admit there is a problem. But the The 300th Chemical Company, very soon. We have to do that. Constitution doesn’t say the Senate headquartered in Morgantown, WV, The other reason we may be going was ordered, on January 3, 2003, to re- through this process is that the leader should advise and filibuster these nominations. It says the Senate should port to Fort Dix, NJ, in anticipation of doesn’t want to bring any of that stuff deployment to some as yet undeter- forward. Maybe this is an excuse for advise and consent to these nomina- tions. That is a far cry from filibus- mined final destination. doing nothing. But whatever the ma- West Virginia: one State, the 35th jority leader wants to do, I understand tering. I question a filibuster in the case of State in the Union. Every Senator here the procedures here in the Senate, and judges in the third branch of Govern- can look at his or her own State and we are here because he determines ment. They are a coequal branch of see what is happening, see the same what we do on this floor. But one of the Government. thing happening as I am seeing in West things we have a right to do is take a With regard to the memos, Mr. Virginia. These troops may be gone for look, because of the Constitution of the Estrada said it is fine with him if they a year. They may be gone longer. United States, at nominations that are give up the memos. He doesn’t have Other West Virginia Guard and Re- given us. That is what we are doing. anything to hide. He is proud of his serve units have already been called As I started my brief little talk here work. But the Justice Department, in up, including members of the Bluefield- tonight, you may not think there is a its wisdom, says we don’t give up these based 340th Military Police Company. problem. But take the word of my fa- kinds of memos; it is a bad precedent, That is on the southern border of West ther-in-law. May he rest in peace. and we are not going to do it. So why Virginia, on the border with the State There is a problem. I would suggest blame Estrada for that? Why hide be- of Virginia. And then there is the Rom- there are well over 40 Democrats who hind that when Estrada isn’t the one ney-based 351st Ordnance Company. believe there is a problem. It seems to causing the problem. Romney is in the northeastern part of me that is the case; there is a problem. I happen to agree with the Justice West Virginia, a community that There are only a few ways to deal Department. I don’t think they should changed hands 56 times in the Civil with it. You can stay here and talk day give up confidential memoranda that War. after day after day and run TV ads, as could chill the work that goes on in the There, too, we see vacant chairs at they are doing right now, saying that Solicitor General’s Office. I don’t see the dinner tables. We see the families, we are anti-Hispanic. It is not going to how anybody with a straight face could the spouses with the children, spouses change the belief of people over here make that argument as much as it has who have remained behind. They and that Miguel Estrada should answer been made with straight faces today. their children bow their heads at meal- questions and that he should provide time and say: ‘‘God is great. God is his memos. f good. And we thank Him for this food. If they do not want to do that, they LEGISLATIVE SESSION By Thy goodness all are fed. Give us, can continue running their ads and Mr. HATCH. Mr. President, I ask Lord, our daily bread.’’ having to stay here late at night—stay unanimous consent that the Senate And the same scene is repeated and here all night, and have us stay here now return to legislative session. repeated in Kansas, in Florida, in Cali- during our vacation. When I say ‘‘vaca- The PRESIDING OFFICER. Without fornia, in Washington, in Oregon, in tion,’’ as everyone knows, they are not objection, it is so ordered. Virginia, in South Carolina, in North vacations; we go back to the States f Carolina, Pennsylvania, New York, and work. But we are here. We have Massachusetts, and on and on and on. signed onto this. We as a matter of MORNING BUSINESS And pretty soon it adds up. principle oppose this nomination. Peo- Mr. HATCH. Mr. President, I ask Then there is the Kenova-based 261st ple may disagree with our principle. unanimous consent that the Senate Ordnance Company and the Bridgeport-

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