March 11, 2003 CONGRESSIONAL RECORD — SENATE S3429 Mr. SANTORUM. I will get the an- Mr. REID. Will the Senator yield for tion and under this legislation would swer to the first question. I do not have a question? continue to be legal. So we did not re- the answer, but I will get that, No. 1. Mr. SANTORUM. Sure, I am happy to strict at all the procedures that are No. 2, this is different than the Ne- yield. done in any hospital in this country, braska statute. In fact, it was drafted Mr. REID. Let me say, through the because hospitals do not do this proce- in response to the Supreme Court’s rul- Chair, to the Senator from Pennsyl- dure. Abortion clinics do this proce- ing in the Carhart v. Stenberg case. vania, the manager of this bill, the ma- dure. To the other question, have there jority leader asked Senator DASCHLE As I have said many times, they do it been hearings conducted about it, the and I to try to do something to move for one reason: the convenience of the answer is, no, there have not been this legislation along. In good faith, we abortionist to do more abortions in a hearings in the Senate. I do not know have narrowed the number of amend- shorter period of time. The doctor who whether the House has conducted hear- ments to seven or eight that we have developed this procedure developed it, ings on this language or not, but I can offered. The reason Senator MURRAY in his words, so he could do more late- certainly find that out. and I did this amendment is we term abortions. He said this procedure We are making the case and we will thought we would get all the preven- takes 15 minutes. The other one takes continue to make the case, and I as- tion issues out of the way quickly. 45. So he could do more abortions in 1 sume those who oppose this legislation The point I am trying to make to my day. That does not strike me as one will make their case, as to the con- friend is that we are going to offer that was developed for medical neces- stitutionality of this legislation in its these together or separately. We are sity or to protect the health of women, amended form that was struck down by going to have votes on these amend- but to protect the pocketbook of an the U.S. Supreme Court. I will go ments one way or the other. That is abortionist, and that is not the kind of through those arguments repeatedly. I why we have asked that there be no medicine that we should confirm or af- do not have time now because we only second-degree amendments. Everyone firm in the Senate. have about 5 minutes and I do have should understand that we will come I yield the floor. some other things I want to say. back and reoffer these. f Clearly, we believe we have addressed In good faith, we are trying to move the issue of health. The Supreme this legislation along. There is no ef- EXECUTIVE SESSION Court, in the Carhart v. Stenberg case, fort to stall or to delay in any way. In took the record of the lower court. The good faith, we are trying to work this NOMINATION OF MIGUEL A. lower court found that the health ex- out with the other side. I only say this ESTRADA, OF VIRGINIA, TO BE ception was needed based on the because the Senator said the commit- UNITED STATES CIRCUIT JUDGE record, and the U.S. Supreme Court tees wanted to look this over. Senator FOR THE DISTRICT OF COLUM- took the findings of fact from the dis- MURRAY and I are going to get a vote BIA CIRCUIT trict court and applied the standard on these four issues. We would like to The VICE PRESIDENT. Under the that they would apply to this case, do it all at once. That would be the previous order, the hour of 11 a.m. hav- that the district court was clearly er- best way to do this. I want to make ing arrived, the Senate will now go roneous in coming to that decision. sure the leader hears from us what we into executive session and resume con- They did not find that standard to be are trying to do. sideration of Executive Calendar No. met and so they accepted the under- Mr. SANTORUM. I certainly respect 21, which the clerk will report. the desire of the Senator from Nevada lying premise. The assistant legislative clerk read Congress has, on repeated occasions, to get votes on these amendments, and the nomination of Miguel A. Estrada, made findings of fact in preparation for we may well be able to accommodate of Virginia, to be United States Circuit review by the courts, and in a vast that in a clean fashion directly, but I Judge for the District of Columbia Cir- number of these cases, the courts have do not know the answer to that. I am cuit. been very deferential to Congress, as a still waiting to hear from the chairmen The VICE PRESIDENT. Under the body, that gets into much more detail who have just seen this amendment a previous order, the time until 12:30 through the process of hearings. We few minutes ago, to get a sense as to p.m. shall be equally divided between have had numerous hearings about this whether they believe there are some the two leaders or their designees. procedure in both the Senate and the things that can be done to improve The majority leader is recognized. House. upon this recommended language. Mr. FRIST. Mr. President, thank you So while the Senator from Illinois The second point, in response to the for presiding this morning. I appreciate has asked if we have had any recent Senator from Illinois, is the issue of your participation as our Presiding Of- hearings, we have had plenty of hear- vagueness. That was the other issue ficer in what we all recognize is an im- ings on this issue and plenty of hear- with which the Supreme Court dealt. portant moment for the Senate, the ings about the medical necessity of We have come up with a much clearer Senate that we all serve. this procedure. I ask the Senator from definition. I have asked for this session over ap- Illinois or any Senator who opposes The Senator from Washington said proximately the next hour and a half this legislation, please come to the this is a deceptive amendment, that because one of our most important floor and present one case where this this language is very broad language roles as Senators is to vote on execu- procedure is medically necessary. I do and it does not limit it to a partial- tive nominations, including judges, not think we need any more hearings. birth abortion. I ask the Senator from lifetime appointees, who serve such a All I need is one case where this proce- Washington, or the Senator from Cali- vital role in our constitutional design. dure would be medically necessary. In 7 fornia who was on the floor last night Because of the current debate, I have years, no one has come to the floor of with the same argument, if they could looked to our Founders for some guid- the Senate, no one has come to a hear- describe a procedure that would be ance. John Adams, who helped create ing, no one has come before a hearing, banned by the language in this bill. our Federal judiciary with his inde- no one has come anywhere, publicly, Give me another procedure and give me pendence and its lifetime appoint- privately or otherwise, and presented a the definition of that procedure and ments, gave us a guide. He wrote that case where this is medically necessary tell me how that procedure would be judges should be: for the health of the mother. So if banned by this bill. Men of experience on the laws, of exem- there are no cases where it is medically The Senator from Washington plary morals, invincible patience, unruffled necessary for the health of the mother, brought in a case which certainly is a calmness, indefatigable application. . . (and) it is by definition outside of the rubric very distressing case, one that I can re- subservient to none. of Roe v. Wade. Now, that is a finding late to on a personal basis, of a child This is a high standard for a nominee of Congress. That is a finding of Con- who was discovered in utero with a and one I believe that Miguel Estrada gress that is continuing to be substan- fetal abnormality. The abortion per- has met. But it is also a charge for our tiated by the inaction of those who op- formed on that child was done at 16 Senate as the steward of an inde- pose this to come up with a case. weeks. It was not a partial-birth abor- pendent judiciary. Has the Senate met

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S3430 CONGRESSIONAL RECORD — SENATE March 11, 2003 the Adams test or has this unprece- Estrada’s life is an example of the American should ‘‘schedule up or down votes on judi- dented filibuster and delay brought us Dream. He came to this country from Hon- cial nominees within a reasonable time after all to the point of failing to meet that duras as a teenager barely speaking English receiving the nomination.’’ and went on to graduate with honors from I ask Senators of both parties to come to- charge of John Adams? Harvard Law School. He has argued 15 cases gether to end the escalating cycle of blame Elected by my constituents, I am a before the Supreme Court of the United and bitterness and to restore fairness, pre- Senator. Selected by my colleagues, I States and served in the United States De- dictability, and dignity to the process. I ask serve as Republican leader. Recognized partment of Justice under Presidents of both that the Senate take action, including adop- by the Chair, I act as majority leader. political parties. The American Bar Associa- tion of a permanent rule, to ensure timely up With these responsibilities, I am en- tion has given him its highest rating. When or down votes on judicial nominations both trusted as a guardian of the Senate. Its appointed, he will be the first Hispanic ever now and in the future, no matter who is to serve on the D.C. Circuit. President or which party controls the Sen- institutions, its traditions, its obliga- I submitted Mr. Estrada’s nomination to ate. This is the only way to ensure that our tions are my unique charge, not only the Senate on May 9, 2001. But his nomina- Judiciary works and that good people remain as leader but as a Member. tion has been stalled for partisan reasons for willing to be nominated to the Federal I am sensitive to this serious respon- nearly 2 years in which the Senate has not bench. sibility and I look forward to the dis- held a vote either to confirm or to reject the All Senators should have a chance to have cussion over the next hour and a half nomination. their voices heard and their votes counted. as we elevate the debate to what was The Senate has a solemn responsibility to All Presidents should have their judicial exercise its constitutional advice and con- nominees considered and voted upon in a rea- intended under advise and consent as sent function and hold up or down votes on sonable time. All nominees should have the spelled out in the Constitution. As we judicial nominees within a reasonable time certainty of an up or down Senate vote with- move forward in the conversation over after nomination. Senators who are filibus- in a reasonable time. All Judges should have the course of the morning, with not tering a vote on Miguel Estrada are flouting the assurance that vacancies on their courts just this nomination at issue but, real- the intention of the United States Constitu- will not persist for years. And all Americans ly, our overall function as an institu- tion and the tradition of the United States should have the assurance that the Federal tion under scrutiny, I will listen to all Senate. The filibuster is the culmination of courts will remain open and fully staffed to to hear their concerns and ideas about an escalating series of back-and-forth tactics resolve their disputes and protect their that have marred the judicial confirmation rights and liberties. how best to move forward in a way that process for years, as many judicial nominees As I stated last October, the current state does justice to this nominee, but also have never received up or down Senate votes. of affairs in the United States Senate is not to our institution and our Constitu- And now, a minority of Senators are threat- merely another round of political wrangling. tion. ening for the first time to use ideological It is a disturbing failure to meet a responsi- To that end, our president, George filibusters as a standard tool to indefinitely bility under the Constitution. Our country Bush, has sent a letter to Senator block confirmation of well-qualified nomi- deserves better, the process can work better, and we can make it better. The Constitution DASCHLE and myself on this topic. nees with strong bipartisan support. This has to end. has given us a shared duty, and we must Among his observations, he wrote the The judicial confirmation process is bro- meet that duty together. Thank you for your following: ken, and the consequences for the American attention to this important matter. I ask Senators of both parties to come to- people are real. Because of the Senate’s fail- Sincerely, gether to end the escalating cycle of blame ure to hold timely votes, the number of judi- GEORGE W. BUSH. and bitterness and to restore fairness, pre- cial vacancies has been unacceptably high Mr. FRIST. Mr. President, I will des- dictability, and dignity to the process. I ask during my Presidency and those of President ignate Senator HATCH to be in control that the Senate take action, including adop- Bill Clinton and President George H.W. of the remaining time on the Repub- tion of a permanent rule, to ensure timely up Bush. The Chief Justice has warned that the or down votes on judicial nominations both high number of judicial vacancies, when lican side. now and in the future, no matter who is combined with the ever-increasing caseloads, With that, I yield the floor. President or which party controls the Sen- leads to crowded courts and threatens the The VICE PRESIDENT. The Demo- ate. This is the only way to ensure that our administration of justice. When under- cratic leader is recognized. judiciary works and that good people remain staffed, the Federal courts cannot act in a Mr. DASCHLE. Mr. President, I re- willing to be nominated to the Federal timely manner to resolve disputes that af- gret to say that the White House and bench. fect the lives and liberties of all Americans. many of our Republican colleagues All senators should have a chance to have The courts cannot decide constitutional have twisted this debate beyond all their voices heard and their votes counted. cases promptly, which harms people seeking recognition. It is sadly ironic that Re- All Presidents should have their judicial to vindicate and protect their rights, and the publicans now seek to cast this as a de- nominees considered and voted upon in a rea- courts cannot rule on commercial cases effi- sonable time. All nominees considered and ciently, which hurts the economy, busi- bate about constitutionality, for it is voted upon in a reasonable time. All nomi- nesses, and workers. Our system of equal jus- Republicans who evidently are quite nees should have the certainty of an up-or- tice under law administered fairly and effi- ready to throw over our Constitution’s down Senate vote within a reasonable time. ciently is at risk. The American Bar Associa- enduring principles merely because All judges should have the assurance that tion in 2002 accurately described the situa- they do not fit the politics of the mo- vacancies on their courts will not persist for tion as an ‘‘emergency.’’ ment. years. And all Americans should have the as- My concern about the state of the judicial Democrats have been accused of sub- surance that the federal courts will remain confirmation process is not new. In June verting the Constitution for mere po- open and fully staffed to resolve their dis- 2000, I proposed timely votes for all nomi- putes and protect their rights and liberties. nees, stating that the confirmation process litical gain. We have been accused of subjecting a nominee to ‘‘unprece- As leader, I tend to listen closely and ‘‘does not empower anyone to turn the proc- dented obstructionism.’’ We have been patiently to the deeply held opinions ess into a protracted ordeal of unreasonable delay and unrelenting investigation.’’ In accused of employing these tactics in expressed on the floor in hopes we can May 2001, when I announced my first judicial the service of racism. Enough is rise above the moment and act as our nominations, I urged the Senate to rise enough. It is time to call the rhetoric Founders intended. I ask unanimous above the bitterness of the past and again of some of our Republican colleagues consent the letter dated March 11 to asked that every judicial nominee receive a for what it is: Rank hypocrisy and cyn- myself and Senator DASCHLE from the timely up or down vote. In October 2002, ical manipulation of fact. President of the United States be after nearly two additional years in which too many nominees did not receive votes, I While in the majority, Democrats fa- printed in the RECORD. cilitated the confirmation of 100 of the There being no objection, the mate- proposed a specific, commonsense plan in- volving all three Branches that, among other President’s nominees to the Federal rial was ordered to be printed in the steps, would ensure that all judicial nomi- bench. After proving our cooperation, RECORD, as follows: nees receive an up or down Senate vote with- we now have the temerity to ask one THE WHITE HOUSE, in 180 days of nomination. nominee a series of simple questions Washington, DC, March 11, 2003. Over the years, many Senators of both po- that go directly to the question of his Hon. BILL FRIST, litical parties have publicly agreed with the Majority Leader, U.S. Senate, Washington, DC. principle that every judicial nominee should qualifications and judicial tempera- DEAR SENATOR FRIST: The Senate is debat- receive a timely up or down Senate vote. ment. ing the nomination of Miguel A. Estrada to Similarly, the Federal Judiciary, speaking We asked the administration to pro- be a Judge of the United States Court of Ap- through the Chief Justice in his 2001 Year- vide the documents the nominee draft- peals for the District of Columbia. Miguel End Report, has stated that the Senate ed during his tenure at the Department

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3431 of Justice, documents that have been Under the Republican majority, more Alexander Hamilton, foremost among provided by both Democratic and Re- than 50 different Clinton administra- the Framers in his support for a strong publican administrations in the past. tion judicial nominees saw their nomi- presidency, wrote in the Federalist Pa- We ask these questions not to score nations killed, not because of the pers that the Senate’s role in confirma- cheap political points but to fulfill our shared objections of 41 Republican Sen- tions was an indispensable check on ex- solemn obligations under the Constitu- ators, but because a single Senator ecutive power. tion. chose to place an anonymous hold on In explaining the advise and consent The Senate, not just the Senate ma- their nomination. These nominations clause, he wrote: jority but the entire Senate, is re- never received a hearing or a vote in Might not [the President’s nomination] be quired under the Constitution to pro- the Judiciary Committee, let alone overruled? I grant that it might. . . . [but] if vide advice and consent to the Presi- consideration on the floor of the Sen- by influencing the President be meant re- dent on his nominations. All we have ate. straining him, that is precisely what must asked is that we be given the informa- By describing this sad history, I do have been intended. tion necessary to provide that in- not mean to indicate how the con- Mr. President, every Member of this formed consent. Mr. Estrada, however, firmation process should work. It body took an oath ‘‘to uphold and de- has chosen not to cooperate. should not. fend the Constitution of the United That is his right. But it is our con- The President promised he would States.’’ That is exactly what Demo- stitutional duty to reserve our judg- work with us on his judicial nominees. crats are doing. ment until we know the whole picture. But instead he continues to nominate I yield the floor. Imagine a job applicant refusing to many extraordinarily controversial The VICE PRESIDENT. The Senator fill out the last four pages of a five- candidates. from Utah is recognized. page application. We stand ready to cooperate in the Mr. HATCH. Mr. President, I have You couldn’t get a job flipping burg- nomination and confirmation of quali- listened to the distinguished majority ers with that response. Surely, the fied judges who will enforce the law leader, and I have been very interested American people would not reward and protect the rights of all Ameri- in what he has had to say. The fact is, such intransigence with a lifetime ap- cans. We demonstrated that on many in spite of what he has said, there has pointment to the second-most powerful occasions already in this Congress. never been a filibuster that has been court in the land. But we fear that we will be kept successful against a circuit court of ap- Republicans disagree, and so it is the waiting. peals nominee—never—in the history recalcitrance of the nominee and the The suggestion that the Democratic of the Senate. administration, not Democratic oppo- request for information is inappro- During the time President Clinton sition, that is responsible for this delay priate is equally ludicrous. was President of the United States, I When Robert Bork was nominated to today. was chairman of the committee for 6 the Supreme Court, the Senate sought Today, Republicans, one after an- years. I admit there were some on our and received his memos as Solicitor other, will come to this chamber to side who wanted to filibuster some of General, including one to the President claim that they are shocked that any his nominees. I worked very hard and on the application of Executive privi- nominee could be treated to this un- diligently to make sure no filibuster lege to the case of the Nixon audio- precedented obstructionism. could succeed. As a matter of fact, I Let me be charitable and say that tapes. When Justice William Rehnquist was don’t think there was a serious, true only willful amnesia allows our col- filibuster at any time against any of leagues to levy such charges. nominated to the Supreme Court, the Senate sought and received all of the the Clinton nominees. In 1994, Senate Republicans stood be- I suppose people can have their own memos that he had written as a clerk fore this chamber trying to persuade viewpoint, but the fact is that we to Justice Robert Jackson. their colleagues to filibuster one of helped to make sure no filibuster would President Clinton’s nominations to the When Stephen Trott was nominated to the Ninth Circuit, the Senate sought succeed. We on this side made sure— Federal bench. the leadership on this side, including The current Chairman of the Judici- and received line attorney memos re- myself as leader of the Judiciary Com- ary Committee said then that the mi- garding the appointment of special mittee—that no filibuster would suc- nority has to protect itself and those prosecutors. ceed. the minority represents.’’ When Benjamin Civiletti was nomi- In 2000, the Senate was forced to vote nated to be Attorney General, the Sen- In fact, there is only one filibuster in on cloture because for 4 years, Repub- ate sought and received his line attor- the history of the country that has suc- licans filibustered judicial nominee, ney memos regarding anti-trust settle- ceeded, and that was against Justice Richard Paez and, for two years, Mar- ment recommendations. Fortas, back in 1968. I do not agree sha Berzon. And when William Bradford Reynolds with that. I think it was the wrong Fifteen Republican Senators, includ- was nominated for Associate Attorney thing then. It is the wrong thing now. ing Senator FRIST, Senator INHOFE, General, the Senate sought and re- It is really the big issue we are talking Senator CRAIG, Senator BROWNBACK, ceived his memos to the Solicitor Gen- about today. Senator DEWINE, and others voted to eral regarding a discrimination case, a With regard to the request for addi- continue the filibuster of Richard Paez. school prayer case, and internal legal tional information from Mr. Estrada Thirty Senators voted to ‘‘indefi- memos on a redistricting case. and the unfortunate claim that he has nitely postpone‘‘—quoting from the Our request for information from Mr. not cooperated with the other side, resolution—Mr. Paez’s nomination, Estrada is both appropriate and well- look at the transcript—almost 300 which had then been pending for more grounded in precedent. Yet because pages long. It is one of the longest than 1,500 days. That’s right, 1,500 days. that precedent stands in the way of hearings on a circuit court of appeals No Republicans objected then. No Re- their political ends, Republicans now nominee in history. Just look at the publican expressed concern for the un- seek to deny their own words and their transcript. He answered question after precedented obstructionism that could own actions. question after question. endanger the Constitution that we are They are here today claiming that Then every Democrat on the com- likely to hear about this morning. the Constitution is threatened by the mittee was given an opportunity to No Republican dared to castigate his very same procedures they themselves submit written questions. Only two colleagues by calling the opposition to employed. They are here today claim- did. The others didn’t avail themselves Mr. Paez ‘‘anti-Hispanic.’’ ing that the Constitution can be of that opportunity. They called that But the truth is, by comparison to threatened by the very same powers hearing a very fair hearing. It was con- the treatment of other nominees by the that it grants. ducted by them. It could have gone on Republican majority, Mr. Paez and Ms. The Constitution is secure. The longer. They could have gone on an- Berzon could almost be considered for- Democrats support it by refusing to let other day if they had wanted to, or tunate; at least their nominations one third of our Government become a more than 1 day, more than 2 days. made it to the floor. rubber stamp. They didn’t do it. The reason they

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S3432 CONGRESSIONAL RECORD — SENATE March 11, 2003 didn’t is that they thought they would course, be no exertion of choice on the part spite a bipartisan majority of Senators never call him up anyway. Unfortu- of the Senate. They may defeat one choice of who stand ready to vote on his nomina- nately for them, they lost the election the Executive, and oblige him to make an- tion, a vocal minority of Senators is other; but they cannot themselves choose— and today the Republicans are in con- they can only ratify or reject the choice he precluding the Senate from exercising trol and he has been called to the floor. may have made. its advice and consent duty. This is Once called to the floor, he deserves an It is significant that the Constitution tyranny of the minority, and its is un- up-or-down vote under our laws. outlines the Senate’s role in the ap- fair. It is unfair to the nominee, who must They are saying that, in spite of an pointments process in the enumeration put his life on hold while he hangs in almost 9-hour committee hearing, in of presidential powers in Article II, endless limbo, wondering whether he spite of having all of his briefs and his rather than in the enumeration of con- will be confirmed. It is unfair to the ju- oral arguments before the Supreme gressional powers in Article I. This diciary, our co-equal branch of govern- Court in 15 cases, in spite of the fact choice suggests that the Senate was in- ment, which needs its vacancies filled. that he has the unanimously well tended to play a more limited role in It is unfair to our President, who has a qualified highest recommendation of the confirmation of Federal judges. their gold standard, the American Bar Hamilton’s discussion of the Appoint- justified expectation that the Senate Association, in spite of the fact that ments Clause in The Federalist No. 76 will give his nominees an up-or-down they have numerous other documents supports this reading. Hamilton be- vote. And it is unfair to the majority of and records and have documented his lieved that the President, acting alone, Senators who are prepared to vote on cases, they are saying they do not would be the better choice for making this nomination. The filibuster of Mr. Estrada’s nomi- know enough about Mr. Estrada so nominations, as he would be less vul- nation also represents a new low in the they have to go into the highly privi- nerable to personal considerations and annuals of judicial confirmations. If leged matters concerning recommenda- political negotiations than the Senate Mr. Estrada is not confirmed, he will tions for appeals, certiorari, and ami- and more inclined, as the sole decision be the first lower court judicial nomi- cus curiae matters, some of the most maker, to select nominees who would nee defeated through a filibuster. More privileged documents in the history of reflect well on the presidency. The broadly, he will be the first judicial the country, in the Solicitor General’s Senate’s role, by comparison, would be nominee, period, defeated through a Office, in spite of the fact that seven to act as a powerful check on ‘‘unfit’’ party-line filibuster, since the fili- living former Solicitors General have nominees by the President. As he put buster of the Fortas nomination for said that should never be allowed. it, Chief Justice was supported by Demo- In each of the cases that the distin- [Senate confirmation] would be an excel- guished majority leader has cited lent check upon a spirit of favoritism in the crats and Republicans alike. This bi- where some documents have been President, and would tend greatly to prevent partisan opposition was apparently given, these documents were given pur- the appointment of unfit characters from well grounded, since Justice Fortas ul- suant to specific requests for docu- State prejudice, from family connection, timately resigned from the Supreme ments. from personal attachment, or from a view to Court amid allegations of ethical mis- In this case, we have the generalized popularity. conduct. request of a fishing expedition into vir- This is a far cry from efforts we’ve Of course, no such allegations of mis- tually every document he ever worked seen over the past couple of years to conduct surround Mr. Estrada—only on at the Solicitor General’s Office. No inject ideology into the nominations pure partisan politics can be blamed one has ever allowed a fishing expedi- process, and to force nominees to dis- for the obstruction of a vote on his tion into these privileged documents of close their personal opinions on hot- nomination. Let me take a moment to the Justice Department, let alone the button and divisive policy issues like illustrate. Solicitor General’s Office. abortion, gun control, and affirmative What does it take? There are so I join my colleagues here to voice action which undoubtedly will come many Republican efforts to confirm grave concern over what appears to me before the courts. Miguel Estrada that the nomination is to be a system in serious danger of Historically, deliberation by the Sen- in the fifth week of debate on the Sen- breaking. I am talking about the sys- ate could be quite short, especially ate floor. There is no end in sight. Sev- tem by which the Senate exercises its when compared to today’s practice. enteen attempts for unanimous con- constitutional obligation to provide Take, for example, the 1862 nomination sent to end the debate and have the advice and consent on judicial nomi- and confirmation of Samuel F. Miller vote were all rejected by our colleagues nees. to the United States Supreme Court. on the other side. The White House At the outset of my remarks, let me He was nominated, confirmed, and offer for Mr. Estrada to answer written take a moment to set straight the commissioned all on the same day! The questions was rejected by all but one proper role of the Senate in the con- Senate formally deliberated on his Democratic Senator—all but one when firmation of judicial nominees, start- nomination for only 30 minutes before they offered him to answer written ing with the text of the Constitution. confirming him. His experience was not questions. The White House offer for In its enumeration of presidential pow- the exception. Confirmations on the Estrada to meet with Senators was re- ers, the Constitution specifies that the same day, or within a few days, of the jected by all but one Democratic Sen- confirmation of judges begins and ends nomination were the norm well into ator. with the President. The Senate has the the 20th century. It doesn’t sound to me as if they real- intermediary role of providing advice Contrast the Estrada nomination. He ly want to know what is on his mind. and consent. Here is the precise lan- waited nearly a year and a half for his In my opinion, they could easily do so guage of Article II, Section 2: confirmation hearing, which lasted for by merely meeting with him and ask- hours. His nomination is now in its The President . . . shall nominate, and by ing him any questions they want. and with the Advice and Consent of the Sen- fifth week of debate on the Senate Of course, cloture filed to end the de- ate, shall appoint . . . Judges of the supreme floor, nearly 2 years after the President bate was rejected. Court, and all other Officers of the United nominated him. Clearly, this is a far The system is broken. This case illus- States, whose Appointments are not herein cry from the role for the Senate that trates it more than any other case that otherwise provided for, and which shall be the Framers contemplated. What was has ever come before the Senate. established by Law. enumerated in the Constitution as ad- There can be little doubt that the There is no question that the Con- vice and consent has in practice breakdown in the Senate’s advice and stitution squarely places the appoint- evolved to negotiation and cooperation consent role is not limited to Mr. ment power in the hands of the Presi- in the best cases, and delay and ob- Estrada’s nomination. All nominees for dent. As Alexander Hamilton explained struction in the worst cases—like that the circuit courts of appeals have suf- in The Federalist No. 66: of Mr. Estrada. fered, as these charts illustrate. It will be the Office of the President to The Estrada nomination illustrates Let me just go through this. I am nominate, and, with the advice and consent what is wrong with our current system talking about a system in danger of of the Senate, to appoint. There will, of of confirming judicial nominees. De- breaking. I think it is broken. This

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3433 shows the average days pending for cir- much more that we can do to ensure power to appoint judges and this mo- cuit court nominees for the first 2 that no other judicial nominee repeats tion was adopted without any objec- years of a President’s tenure. In the this experience. I urge my colleagues tion. On June 19, the Convention for- case of Ronald Reagan, it took an aver- to join me in my efforts to put an end mally adopted a working draft of the age of 51 days for circuit court nomi- to partisan politics in the confirmation Constitution, and it gave the Senate nees to be pending before they got to a process. the exclusive power to appoint judges. vote on the floor. In the case of Presi- I have to say, both sides have not On July 18, the Convention re- dent George Herbert Walker Bush, it been right in this process in the past affirmed its decision to grant the Sen- took an average of 83 days in order to years. I am not trying to just find fault ate the exclusive power. James Wilson get a judge pending. In the case of there, but one fault I can find: Never in again proposed ‘‘that the Judges be ap- President Clinton, it did go up. It took the history of this country has there pointed by the Executive’’ and again an average of 107 days. With George W. been a filibuster succeed against a cir- his motion was overwhelmingly de- Bush, the current President, it has cuit court of appeals nominee. To feated. The issue was considered again taken 355 days. argue that he has not provided enough on July 21, and the Convention again That is a system in need of repair. documentation or enough answers agreed to the exclusive Senate appoint- What we are seeing is a slowdown in when they refused to meet with him, ment of judges. In a debate concerning the confirmation of Federal judges. refused to submit written questions, the provision, George Mason called the Look at this: Again, a system in dan- when they had one of the longest hear- idea of executive appointment of Fed- ger of breaking. ings on record for a circuit court of ap- eral judges a ‘‘dangerous precedent.’’ The confirmation rate of circuit peals nominee, when they have a mas- Not until the final days of the Con- court nominees for the first 2 years: sive amount of documents, not only all vention was the President given power Reagan, 95 percent; Bush, 96 percent; the arguments he made before the Su- to nominate Judges. On September 4, 2 and, Clinton, 86 percent of his circuit preme Court but his briefs as well and weeks before the Convention’s work court nominees were confirmed. George a tremendous, almost 300-page record was completed, the committee pro- W. Bush has 53 percent. of proceedings before the committee, it posed that the President should have a Mr. SARBANES. Mr. President, will certainly makes my point. role in selecting judges. It stated: ‘‘The the Senator yield for a question? Does To come here and say that we now President shall nominate and by and the Senator have a chart that would have to have privileged records on a with the advice and consent of the Sen- indicate the very same information but fishing expedition that doesn’t name ate shall appoint judges of the Supreme would take the Clinton nominees in the anything specifically seems to me to Court.’’ first 2 years when the control of the fly in the face of what is right and The debates, make clear, however, Senate was in the Senator’s party? proper. that while the President had the power Mr. HATCH. I don’t have that chart. As I understand it, we will go back to nominate judges, the Senate still Mr. SARBANES. Wouldn’t that be a and forth. I yield the floor. had a central role. That is what the de- The VICE PRESIDENT. Under the more pertinent chart? bate made clear. For instance, Gov- previous order, the Senator from Mas- Mr. HATCH. Let me put it this way: ernor Morris of Pennsylvania described sachusetts is recognized for 10 minutes. If we had not gone through— Mr. KENNEDY. Mr. President, Re- the provision as giving the Senate the Mr. SARBANES. The Senator picked publicans claim that we do not have a power ‘‘to appoint Judges nominated to the Clinton years when his own party right to an extended debate on a judi- them by the President. was in the majority. cial nominee lacks any foundation. The The Convention, having repeatedly Mr. HATCH. That is right. Constitution gives a strong role to the rejected proposals that would lodge ex- Mr. SARBANES. What is happening Senate in confirming federal judges. clusive power to select judges with the here—my perception, at least—is that Both the text of the Appointments executive branch, could not possibly what the Senator is now complaining Clause of the Constitution and the de- have intended to reduce the Senate to about is a tactic which was instituted bates over its adoption make clear that a rubber stamp role. by the other side of the aisle in the the Senate should play an active and The reasons given by delegates to the very recent past. independent role in selecting judges. Convention for making the selection of Now we are being told this isn’t the The Constitutional Convention met judges a joint decision by the President right way to do business. But no one on Philadelphia from late May until mid- and the Senate are as relevant today as that side of the aisle said it wasn’t the September of 1787. On May 29, 1787, the they were in 1787. The Framers refused right way to do business only a few Convention began its work on the Con- to give the power of appointment to a years ago when they were doing ex- stitution with the Virginia Plan intro- ‘‘single individual.’’ They understood actly the same thing. duced by Governor Randolph, which that a more representative judiciary Mr. HATCH. May I reclaim my time? provided ‘‘that a National Judiciary be would be best served by giving Mem- The VICE PRESIDENT. The Senator established, to be chosen by the Na- bers of the Senate a major role. from Utah has the floor. tional Legislature.’’ Under this plan, The Senate has never hesitated to Mr. HATCH. If the Senator has ques- the President had no role at all in the fully exercise this power. During the tions, I will be happy to take them. In selection of judges. first 100 years after ratification of the the case of President Clinton, yes, in When this provision came before the Constitution, 21 of 81 Supreme Court the first 2 years it was 86 percent. Yes, Convention on June 5th, several mem- nominations—one out of four—were re- JOE BIDEN was chairman at that time. bers were concerned that having the jected, withdrawn, or not acted on. Yes, the Republicans cooperated to whole legislature select judges was too During these confirmation debates, ide- make sure those circuit court nomi- unwieldy. James Wilson suggested an ology often mattered. John Rutledge, nees went through. In the first 2 years alternative proposal that the President nominated by George Washington, of George W. Bush, the Democrats were be given sole power to appoint judges. failed to win confirmation as Chief in control of the committee. We co- That idea had almost no support. Rut- Justice in 1795. Alexander Hamilton operated all we could. That is the best ledge of South Carolina said that he and other Federalists opposed him be- we could get done. I think those statis- ‘‘was by no means disposed to grant so cause of his position on the controver- tics still stand up very strongly. great a power to any single person.’’ sial Jay Treaty. A nominee of Presi- What we are seeing is a slowdown in James Madison agreed that the legisla- dent James Polk was rejected because the confirmation of Federal judges—a ture was too large a body, and stated of his anti-immigration position. A systematic and calculated effort to that he was ‘‘rather inclined to give nominee of President Hoover was re- block the nominees of the President of [the appointment power] to the Senato- jected because of his anti-labor view. this country from the Federal bench. It rial branch’’ of the legislature, a group A very substantial number of us be- is time to stop it. It is time to reform ‘‘sufficiently stable and independent’’ lieve that we are facing another his- the system, to de-escalate. The first to provide ‘‘deliberate judgments.’’ toric constitutional confirmation step, of course, is to vote on Mr. A week later, Madison offered a for- which only the Senate’s power and Estrada’s confirmation. But there is mal motion to give the Senate the sole processes can resolve. Our President

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S3434 CONGRESSIONAL RECORD — SENATE March 11, 2003 has embarked on a course that threat- share in the process of judicial selec- On the confirmation process of ens the balance of powers and the inde- tion. Merrick Garland, I asked the question: pendence of the judiciary. His legal ad- The Senator from South Dakota Do you favor, as a personal matter, visors have set him on a course to raised the consideration that no one on capital punishment? stack the U.S. Courts with judges who this side of the aisle had spoken up, Mr. Garland replied: This is really a will judge in accordance with a narrow when in effect the shoe was on the matter of settled law now. The Court and extreme set of views, views outside other foot when the Democrats con- has held that capital punishment is of the judicial mainstream and aimed trolled the White House and Repub- constitutional and lower courts are ex- at making draconian and sudden licans controlled the Senate. There pected to follow the rule. changes in the direction of life and lib- were those on this side of the aisle who Because of time limitations, I shall erty in this Nation. President Bush is spoke up and said worthy nominees not go into detail on that. When Mar- not the originator of this court-stack- submitted by President Clinton should sha Berzon appeared before the com- ing plan. It began decades ago with his be confirmed. I was one of them. We did mittee, she was asked by Senator Rob- predecessors in the White House and confirm a number of contested nomina- ert Smith about the abortion issue. Justice Department. It has been en- tions: Judge Richard Paez, Marsha Marsha Berzon was later confirmed. abled by the successful efforts of some Berzon, Roger Gregory, and others. I ask for 2 additional minutes. So it is true there have been delays Mr. HATCH. Mr. President, I yield in our own body to retard the filling of when one party has controlled the the Senator 2 more minutes. judicial vacancies over the past two White House and the other party has Mr. SPECTER. Marsha Berzon re- presidential terms. controlled the Senate. And Republicans sponded that the matter was settled, The White House and its allies have are not blameless in this process. But I regardless of what her views were. A not been bashful about admitting their submit that in the 107th Congress, with similar response was given by Judith radical goal. Our own respect for the President Bush in the White House and Rogers to questions by former Senator judiciary leaves no doubt that our the Democrats in control of the Sen- Cohen. President was lawfully elected. But ate, the process has been carried to With respect to Miguel Estrada’s there is not the slightest basis for the great extreme. This year, with the Re- work as an Assistant Solicitor General, argument that any popular mandate publicans controlling both the White seven former Solicitors General wrote supports such a massive shift in judi- House and the Senate, we have had the to Senator LEAHY, laying out the fact cial direction. unprecedented position of a filibuster that it is of ‘‘vital importance of can- As Senators we have the power, and on a judge for the court of appeals. dor and confidentiality in the Solicitor the responsibility to ourselves, our In the history of the judicial con- General’s decision-making process that constituencies and our institution, to firmation process, there has been only Miguel Estrada’s work should not be resist revolutionary change in the bal- one prior filibuster, and that was on disclosed.’’ ance of power. We have the power—and Justice Abe Fortas, nominated to be I am delighted that we have been responsibility—to reject the notion Chief Justice. That involved an issue of joined by a number of Senators from that a President can suddenly fashion integrity, and that was a bipartisan fil- the other side of the aisle. It is my the judiciary in his own image. We ibuster. We had, perhaps, the most bit- hope that we will yet get five addi- have a special responsibility to do so ter contest on confirmation when Cir- tional Senators who will break the when the Senate is so evenly divided cuit Judge Clarence Thomas was up for deadlock and we will move to cloture that, after due consideration and de- confirmation to the Supreme Court. and we will end this debate. bate based on all the necessary infor- Within 50 minutes, let alone 5 minutes, This controversy is poisoning the mation, the switch of a few votes could I could not begin to summarize the Senate beyond any question. It is dis- change the result. We certainly have contest there on the bitterness of the tracting the Senate from other very the obligation to do so when the Execu- proceedings. Justice Thomas was con- important business. I hope we will find tive Branch prevents us from exer- firmed 52–48. But no one suggested a way out promptly and ultimately es- cising our assigned constitutional pow- there ought to be a filibuster. The reg- tablish a protocol so many days after a ers of advice and consent by depriving ular rule was followed. Even though nomination is submitted, a hearing by us of any access to the only documents there was a tie vote in the Judiciary the Judiciary Committee; so many which might tell us what kind of a Committee, which would not custom- days later, a committee vote; so many judge a nominee will be—the very doc- arily, under Judiciary Committee days later, floor action; so that regard- uments which the President’s lawyers rules, permit the matter to be ad- less of what party controls the White used to select and vet the nominee. vanced to the full body, it did come to House and what party controls the The issue before us today is about the full Senate and there was no fili- Senate, the public business will be at- much more than Miguel Estrada. It is buster, and Justice Thomas was con- tended to and the partisanship will be about the essential nature of our gov- firmed. taken out of the selection and con- ernment; it is about the core values of When the Democrats—and I very firmation of Federal judges. the Senate; it is about our history and much deplore the partisan nature of I yield the floor. our legacy. this debate, but it is a matter of Demo- The VICE PRESIDENT. Under the We must not let the Founders down. crats versus Republicans, and it is my previous order, the Senator from Ne- We must not let our predecessors down. hope we will find a way to solve it. vada is recognized for 5 minutes. We must not let our constituents down. When the Democrats raise issues about Mr. REID. My colleagues on the We must not let our Nation down. Miguel Estrada answering more ques- other side of the aisle argue that the The VICE PRESIDENT. Who yields tions, or raise the contention that his Senate’s extended debate over Mr. time? work as an assistant Solicitor General Estrada’s nomination is somehow un- Mr. HATCH. Mr. President, I yield 5 ought to be disclosed, they are, pure constitutional. This is, at the very minutes to the Senator from Pennsyl- and simple, red herrings. least, curious. They say Senate rule vania. A long litany of nominees have come XXII, which allows for cloture on judi- Mr. SPECTER. Mr. President, I begin before the Judiciary Committee who cial nominations, is unconstitutional. by taking direct issue with the argu- have declined to answer questions and Very curious. That rule provides that a ments by the Senator from Massachu- have been confirmed. In the judicial vote of 60 Members of this body may setts. The advice and consent function process, judges are not expected to give end debate. set forth in the Constitution has been opinions until there is a case in con- They point to the Constitution which consistently interpreted for 216 years troversy, until there are facts, until provides several examples where a to confirm Presidential nominations, briefs are submitted, until there is oral supermajority is required to approve a unless there is a reason not to. That argument, until there is deliberation measure. Since nominations are not has been the practice. Now we have a among the judges, then a decision is mentioned, they argue, only a simple new position advocated by the Demo- made—not to answer a wide variety of majority should be required. crats, saying if there are 41 obstruc- hypothetical questions that are posed But the majority’s focus on the vote tors, then the Democrats want an equal in nomination proceedings. count misses the point. If cloture had

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3435 not been extended to nominations, seeks to wield unchecked power over with the ever-increasing caseloads, leads to among other things, in 1949, what the appointment of lifetime Federal crowded courts and threatens the adminis- would be the result? Well, maybe a sin- judges, but that is not what the Found- tration of justice. gle Senator could engage in unlimited ers of our country had in mind or what It has also long been recognized that debate. There would be no provision the Constitution provides. The Con- ‘‘justice delayed is justice denied,’’ and whatsoever to cut off that debate. stitution divides power over nomina- that is exactly what is happening to There would be no provision to get to a tions between the President and the American citizens throughout this vote—whether it be a supermajority or Senate. country, while President Bush’s judi- a majority vote. In an article in the Emory Law Jour- cial nominees are being filibustered Surely my colleagues do not argue nal, Professor Carl Tobias discussed and slow boated. The President is being that extended debate in the world’s how that intent of the Constitution’s denied his prerogative of choosing his greatest deliberative body is unconsti- drafters has been carried out: nominees for Federal benches subject tutional. The Senate has actively participated in to the advice and consent, the proper We will continue to exercise our naming judges since the chamber’s creation constitutional role of the Senate, being right to debate this nominee until he because members of this body have a signifi- exercised. answers the Judiciary Committee’s cant stake in affecting . . . appointments. I rise this morning with great con- questions and provides the committee He continued: cern about the state of our judicial with his memoranda. There has also been a venerable tradition confirmation process, something that The vigorous debate we continue to in the senatorial involvement in the choice Senator SPECTER and others have com- have on the Estrada nomination re- of nominees. . . . The state’s senators or sen- mented on. They have called for re- flects our fidelity to our constitutional ior elected officials who are members of the form, for a fresh start, and I believe obligations to advise and consent to President’s political party have ordinarily that is called for. recommended candidates whom the Chief Ex- Presidential judicial nominees. ecutive in turn has nominated. The Constitution makes clear that It is that role that is the proper sub- In short, judicial selection has been a the President appoints judges with the ject of a constitutional debate. shared responsibility of the President and advice and consent of the Senate. It What did the Founding Fathers have the Senate. . . . has long been established, by constitu- in mind when they made that provi- I would add that this is as the Found- tional text, by Senate tradition, and by sion? In the Federalist Paper No. 47, ers intended. Supreme Court precedent, that that James Madison, quoting Montesquieu, The Cato Institute’s ‘‘Handbook for means a majority of the Senate. But stated: Congress’’ puts it quite nicely: today, a bipartisan majority of the There can be no liberty where the legisla- More important than knowing a nominee’s Senate is being denied the opportunity tive and executive powers are united in the ‘‘judicial philosophy’’ is knowing his philos- to vote on Miguel Estrada, by a minor- same person, or body of magistrates. ophy of the Constitution. For the Constitu- ity that is intent on changing the In Federalist No. 76, Alexander Ham- tion, in the end, is what defines us as a na- rules, applying a double standard, and ilton was more specific when he ex- tion. denying Miguel Estrada an up-or-down plained that the Senate’s role: The Constitution defines the role of vote in this Chamber. [w]ould be an excellent check upon a spirit the President and the role of the Sen- Somehow, this process has disinte- of favoritism in the President, and would ate— grated to the point where a partisan tend greatly to prevent the appointment of The VICE PRESIDENT. The Senator unfit characters [while serving as an] effica- minority of the Senate will not even has spoken for 5 minutes. allow a bipartisan majority to vote. cious source of stability in the Administra- Mr. REID. Mr. President, Senator tion. This, of course, is not what the Con- KENNEDY used all his time. I ask for an In a lecture at the Heritage Founda- stitution says or what the Founders additional minute. had in mind. Our Founders never in- tion in 1993, David Forte said, in Fed- The VICE PRESIDENT. The Senator eralist No. 10 and 51, Madison proposed tended that the judicial confirmation is recognized. process would become so poisonous as division within the central government Mr. REID. Continuing with the it has today. into a complex separation of powers. quote: Forte said: This filibuster, this act of preventing More important than knowing a nominee’s a bipartisan majority from expressing The liberties of the people would therefore ‘‘judicial philosophy’’ is knowing his philos- be protected, first by the residuum of sov- ophy of the Constitution. For the Constitu- its consent to Mr. Estrada’s nomina- ereignty left to the states, and secondly, by tion, in the end, is what defines us as a na- tion, is, as we have heard, without tying different constituencies to separate tion. precedent. parts of the federal government—House of The Constitution defines the role of I could not help but think also about Representatives, Senate, Executive, and Ju- last year’s debate over the confirma- diciary—and giving each branch some part of the President and the role of the Sen- ate in the process of selecting lifetime tion of another nominee of President each other’s powers in order to defend itself Bush, someone with whom I served on against any branch’s aggrandizement of its Federal judges. It is a shared responsi- own powers. bility. This administration and this the Texas Supreme Court, and that is As Justice Brandeis said in Myers v. nominee seek to exercise near total Justice Priscilla Owen, who will come United States: power over that process. If there is up again this Thursday for another The doctrine of separation of powers was something unconstitutional afoot in hearing in the Senate Judiciary Com- adopted by the Convention of 1787 not to pro- the consideration of Mr. Estrada’s mittee. mote efficiency, but to preclude the exercise nomination, it is that the President Some people during that process of arbitrary power. seeks to prevent the Senate from exer- criticized the Texas system of electing Justice Brandeis went on to say: cising its constitutional duty. judges, one that has been established in The purpose was not to avoid friction, but, Mr. HATCH. Mr. President, I yield up our constitution since Reconstruction by means of the inevitable friction incident to 5 minutes to the distinguished Sen- and which also is replicated in the con- to the distribution of the governmental pow- ator from Texas. stitutions of other States. ers among three departments, to save the The VICE PRESIDENT. The Senator Justice Owen has, as I have, long people from autocracy. from Texas is recognized. been an advocate for reforming the way Indeed, this is the heart of the Mr. CORNYN. I thank the Chair. in which Texas selects judges. But, Mr. Estrada debate. The administration Mr. President, Daniel Webster once President, whatever the problems the has advised this nominee not to answer said that ‘‘justice is the greatest inter- various States may have in their judi- our questions. It refuses to turn over est of man on Earth.’’ I cannot help but cial selection systems, nothing—abso- documents which have been provided in think of that phrase as I read from to- lutely nothing—compares to how badly the past and which would help evaluate day’s letter from President George W. broken the system of judicial con- this nominee. Bush, which was previously admitted firmation is here in Washington, DC. The administration has made it im- as part of the RECORD, when he says: In Texas, at least, the people are possible for the Senate to fulfill its The Chief Justice warns that the high given a choice of judicial nominees and constitutional duty. The White House number of judicial vacancies, when combined there is an opportunity for debate and

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S3436 CONGRESSIONAL RECORD — SENATE March 11, 2003 discussion and, at long last, there is a ception to within the last 40 years, or Estrada to have said that he disagreed vote. Whatever you can say about the even beyond, he went on to say: with Plessy v. Ferguson, the basis of process, we always get there. We al- I ought not to undertake to, in effect, hold segregation in America for almost 100 ways hold a vote. the Court to task for the purpose of having years? He refused, and that is why his Somehow we have lost our way in the gotten something wrong when I haven’t been nomination languishes. Senate. When the President nominates in their shoes in the sense of having had ac- I yield the floor. individuals of high caliber to serve the cess to all of the materials, argument, re- The VICE PRESIDENT. The Senator American people through an appoint- search, and deliberation that they had. from Utah. ment to the Federal bench, and bipar- He ducked the question, a question so Mr. HATCH. I yield 4 minutes to the tisan majorities of the Senate stand basic that a law student in a constitu- distinguished Senator from South enthusiastically ready to confirm those tional law course would answer that Carolina. The VICE PRESIDENT. The Senator individuals, the process of confirming question. But Miguel Estrada refused. from South Carolina is recognized. these highly qualified nominees is sim- And that raises another question. I think he has received poor advice from Mr. GRAHAM of South Carolina. Mr. ply obstructed. President, I have been in the Senate As I say, I have long believed we need the White House, because the White House has said that he cannot produce now for a couple of months at most—it a fresh start, as articulated by others, seems longer—and I am bearing wit- to the judicial confirmation process, for us documentation that really tells the story of his legal views, docu- ness to a change in the Constitution I and the first step would be to bring never envisioned I would be a witness this fine judicial nominee, Miguel mentation that has been presented by many nominees. They have said, no, we to. Estrada, to a vote. It has already been The minority on the other side, not are stonewalling it; we are not going to too long. It is time to vote. all of them because some of them voted I yield the floor. release that information to Congress. to allow Miguel Estrada a vote up or The VICE PRESIDENT. Who yields So now Miguel Estrada is stalled in the down, are, in effect, changing the Con- time? Senate because he has refused to co- stitution. We can have an academic de- Under the previous order, the Sen- operate in the questioning, refused to bate whether it is legal or not, but ator from Illinois is recognized for 5 produce the documents, refused to an- there are five situations in the Con- minutes. swer basic questions which Republican stitution where the Framers required a Mr. DURBIN. I thank the Chair. Senators asked time and again of supermajority vote. Confirming a judge Mr. President, this is a curious situa- Democratic nominees, fair questions, was not one of them. We are witnessing tion: A person with an extraordinary reasonable questions. and we are part of a change to our Con- background, Miguel Estrada, coming to This last weekend, I went to Ala- stitution by the fact that they are fili- the United States as an immigrant bama. It was my first visit to that bustering this judge requiring 60 votes with limited knowledge of English, in a State ever. I went with a group known to confirm a judge. few years rises to the top of the Har- as Religion in Politics, with Congress- Why is this happening? What is going vard Law School; he then goes on to man JOHN LEWIS and Senator SAM on? It is not about the way questions work in the Solicitor General’s Office BROWNBACK, to visit in Montgomery, were answered. It is not about getting dealing with Supreme Court decisions, Selma, and Birmingham, the sites of memos that no Solicitor General would working in the Department of Justice some of the most dramatic historic allow to be released on their watch, at the very highest levels. events in the civil rights movement in Democrat or Republican. This is a cal- It is an extraordinary story of per- America. It was something to stand on culated effort by our friends on the sonal achievement, academic achieve- Edmund Pettus Bridge in Selma with other side post-2002 election to go after ment, and professional achievement. JOHN LEWIS on Saturday near the 38th our President. That is why the conduct of Miguel anniversary of that march, at the exact They had a meeting before Miguel Estrada during this confirmation proc- spot where he was beaten down, hit in Estrada had a hearing, and their meet- ess has been so puzzling. the head, suffered a concussion. JOHN ing was about: You are laying down too I believe he has received bad advice. LEWIS said to me: There never would much for President Bush. You need to I think the people at the Department have been a Selma to Montgomery stand up to him. of Justice who said to him, whatever march were it not for the courage of They made a calculated decision to you do do not answer questions di- one Federal district court judge, Frank stand up to him by going after his rectly, they were not fair to Miguel Johnson. Frank Johnson, a Republican judges. They are, in effect, changing Estrada. appointee under the Eisenhower admin- the Constitution, and this is wrong. It When you consider the questions istration, stood up for what was right is wrong politically and it is wrong which he refused to answer, these were in the civil rights movement. With his constitutionally. Whether it is illegal, I do not know, but I know it is going to not unreasonable questions. My col- courage, he not only had death threats hurt our country and history will judge league and friend from Alabama, Sen- on a regular basis, his mother’s home us poorly for allowing this to happen. ator SESSIONS, regularly asked Demo- was fire bombed. This man had the This is an effort to go after the Presi- cratic nominees the same questions we courage to stand up for the right thing. dent in a way that no other party has asked of Miguel Estrada in reference to When he passed away, Senator HATCH ever gone after a President before, and Supreme Court Justices whom he ad- was right to introduce a resolution we will pay a price as a nation if this mired, in reference to Supreme Court honoring Frank Johnson for his cour- is successful. decisions with which he agreed or dis- age, saying that he had the courage to I know my colleagues are better than agreed. No one argued that this was stand up against Plessy v. Ferguson, this. I know they are capable of doing out of bounds or unfair. They said Sen- separate but equal. He had the courage better than this because I can read ator SESSIONS was entitled to ask that to argue for one man one vote before what they said on other occasions of judicial nominees. its time had come. when the shoe was on the other foot. I have before me Richard Paez, Mar- I put that experience in the context When I came to the Chamber a few sha Berzon, all of the different Demo- of this conversation. This is not a rou- minutes ago, the Senator from Massa- cratic nominees who faced those very tine decision. This is not another thing chusetts was giving us a history lesson questions and answered them, as they that the Senate should consider as part about the role of the Senate and the should have. of some process that really we do not President in confirming judges. This is When the same questions were posed have to dwell on. We are appointing what he said on March 7, 2000: Over 200 to Miguel Estrada, his handlers at the men and women to positions on the years ago, the Framers of the Constitu- Department of Justice said: Stay away bench where they can make historic tion created a system of checks and from those questions. Do not answer decisions. Frank Johnson did. balances to ensure that excessive those questions. The court that Miguel Estrada as- power is not concentrated to any When Senator SCHUMER of New York pires to is an even higher court, the branch of the Government. The Presi- asked Miguel Estrada about Supreme second highest court in the land. Would dent was given the authority to nomi- Court decisions that he would take ex- it not have been reasonable for Miguel nate Federal judges with the advice

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3437 and consent of the Senate. The clear Mr. LEAHY. If the Senator would 2 million Americans who do not have intent was for the Senate to work with read the whole quote in context, I am jobs, who have lost jobs since President the President, not against him, in the happy to answer any questions he has. Bush became President? Why can’t we process. In recent years, however, by If he is unwilling— be debating that issue? I urge my col- refusing to take timely action on so Mr. GRAHAM of South Carolina. Ab- leagues to start talking about that and many of the President’s nominees, the solutely, I will. I do not have it, but if how we will stimulate the economy; Senate has abdicated its responsibility. somebody will give it to me. and to start talking about how we will He was right then. He could see at Mr. LEAHY. It is obvious that the gain more allies in our struggle with that moment the problems that were Senator from South Carolina did not Iraq; and to start talking about how we being created for this country if we have the whole quote or he would not will pay for postwar Iraq. overly played politics with judicial have quoted me out of context so It is at the insistence of my col- nominations. He is wrong today be- badly. leagues that we continue to debate this cause he is blinded by the politics of The VICE PRESIDENT. The addi- issue, although we have reached an im- 2002. tional time of the Senator from South passe. We are not going to yield on We owe it to Americans across the Carolina has expired. something we think is a constitutional country to give these nominees a vote. Who yields time? Under the previous principle. We can sit here and debate If our Republican colleagues do not order, the Senator from New York is and debate and debate, but you will not like them, do not like their answers, do recognized. change anyone’s voting. The reason is not like the way they are behaving, do Mr. HATCH. I yield time for the dis- very simple. The reason is we believe not like the advice they are getting—I tinguished Senator from South Caro- sincerely and firmly this is not about am adding this now—vote against lina to complete his question, and I any one individual, but this is about them, but give them a vote. That was hope the distinguished Senator from the constitutional process of advise Senator KENNEDY, February 3, 1998. Vermont will answer his question. and consent. This is about learning If Senators want to vote against The VICE PRESIDENT. The Senator what potential judges think before somebody, vote against them. I respect from South Carolina is recognized. they go to the bench to make decisions that. State their reasons. I respect Mr. GRAHAM of South Carolina. I do that affect our lives for a generation. that. But do not hold up a qualified ju- not want to misquote the Senator. I do We are entitled to do that. That is dicial nominee. not want to put words in his mouth. I what the Founding Fathers intended, it Senator LEAHY said: I have stated do not want to take one part of his is clear. over and over again on this floor that I quote to suggest it means something In the first nomination to the Su- would object and fight against any fili- that it really does not. preme Court, where many of the origi- buster on a judge, whether somebody I My question simply put: In June 1998, nal Founding Fathers who wrote the opposed or somebody I support. I was the Senator trying to tell the Sen- Constitution were present, Mr. Rut- thought the Senate should do its duty ate that it is wrong to filibuster a ledge, the nominee of President Wash- by giving them a vote. judge? ington, was turned down because they They were right then. They could see Mr. LEAHY. Mr. President, am I re- did not agree with his views on the Jay clearly. sponding on the time of the Senator Treaty. Mr. LEAHY. The Senator happened from Utah? The other side wanted debate; when to mention my name. I ask if the Sen- The VICE PRESIDENT. The Senator they had nominees, they questioned. ator will yield? is correct. People asked, what is the difference? Mr. GRAHAM of South Carolina. Yes. Mr. LEAHY. If the Senator would My colleagues on the other side knew Mr. LEAHY. Would the Senator be read the whole quote, he would under- Judge Paez’s record and they knew willing to state the whole quote? He stand I was talking about the anony- Judge Berzon’s record, and they chose has left out a very significant part in mous holds on Judge Sotomayor, and to vote against him. That is fair. We that quote. Is he willing to put the anonymous holds were being used as a all let ideology enter into the way we whole quote, the accurate quote? filibuster. I made that very clear in vote. Those who deny it are being less Mr. GRAHAM of South Carolina. Ab- that statement. than candid. Otherwise, the votes solutely. Interestingly enough, even though we would be sprinkled evenly between The VICE PRESIDENT. The time has have corrected the record a number of Democrats and Republicans. expired. times on the floor, pointing out when When the other side was there, let me Mr. GRAHAM of South Carolina. I that misstatement has been made, ap- will be glad to do that. Could I, in turn, read a quote from Senator HATCH, a parently those were times when the man I greatly respect and regard as a ask the Senator a question? distinguished Senator from South The VICE PRESIDENT. The Sen- friend. Carolina was not on the floor. ator’s time has expired. The careful scrutiny of judicial nominees The VICE PRESIDENT. The time of Who yields time? is one important step in the process, a step Mr. HATCH. I will yield time for the the Senator is expired. Under the pre- reserved to the Senate alone . . . I have no vious order, the Senator from New problem with those who want to review these question. nominees with great specificity. Mr. GRAHAM of South Carolina. Is York is recognized for 5 minutes. Senator LEAHY willing to answer my Mr. SCHUMER. Mr. President, I am My colleagues on the other side of question? so glad to see so many of my colleagues the aisle, we are simply carrying out Mr. LEAHY. Mr. President, whose in the Chamber today, although I wish what Senator HATCH said was perfectly time is this on? they were here to debate the issues the appropriate, what he had no problem The VICE PRESIDENT. The time of American people are asking us about. with. We have not learned anything the Senator from Utah. What is happening with the impending about Miguel Estrada’s views with Mr. LEAHY. Is the Senator from war in Iraq? How will we pay for it? great specificity. And what we fear— North Carolina going to answer the What is happening with stimulating and you will regret it if there comes a question I asked him? Is he willing to the economy? What are we going to do Democratic president—is that nomi- read the whole quote? The Senator to have average working men and nees will refuse to answer all ques- from South Carolina. women gain jobs? We have lost 2 mil- tions, as Miguel Estrada did, and they Mr. GRAHAM of South Carolina. lion jobs. will have no track record, and Presi- South Carolina. Let the record show the reason we dents will endeavor to find people who Mr. LEAHY. I beg your pardon. I are not talking about those issues and have no known views when they nomi- apologize. Will the Senator from South we are continuing to talk about Mr. nate them to the bench. Carolina be willing to read the whole Estrada is that is what the Republican My guess is the White House knows quote? majority wants to do. Miguel Estrada’s views. My guess is Mr. GRAHAM of South Carolina. Ab- Mr. Estrada has a job. I think he they carefully researched it. When it solutely. Rather than taking the time, probably gets paid a very nice salary, comes time to make those views pub- I will put it in the RECORD. and he deserves it. But what about the lic, part of the constitutional process,

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All of under the doctrine of checks and bal- other vital amendments. them released the same documents the ances, which is inherent in the Con- I say to my colleagues, this is not a White House refuses to release now. stitution, we could thwart the ability laughing matter. This is serious stuff I ask the American people, ask your- of this Nation having any Federal judi- about the one nonelected branch of selves a question, my friends. Why are ciary. Government. they so afraid to reveal Miguel Mr. SCHUMER. If I might answer The Founding Fathers wanted, in the Estrada’s record? If he proves to be a briefly, my colleague. advice and consent process, serious mainstream conservative, he will pass Mr. HATCH. On your own time. questions. Just as Senator HATCH said, this Chamber. I have voted for over 100 Mr. SCHUMER. I was asked a ques- it was a part of the process to ask of the 110 nominees. I disagree with tion. those questions when President Clin- most of them, but I don’t think they The VICE PRESIDENT. The time of ton’s nominees were before us. What is are out of the mainstream, and the the Senator has expired. Who yields good for the goose is good for the gan- President deserves some benefit. But if time? der. I yield. Mr. Miguel Estrada’s record shows he Mr. LEAHY. I yield 1 minute to the The VICE PRESIDENT. The Senator is so far beyond the mainstream that Senator. from Utah. Mr. SCHUMER. If I might answer my Mr. HATCH. I yield up to 3 minutes he will try to make law from the bench good friend from Virginia, I have tre- to the Senator from Missouri. and not interpret the law, which those mendous respect for his integrity. Mr. TALENT. Mr. President, I want who are on the far left and far right Yes, there was a vote on Mr. Rut- to place this debate in historical con- tend to do, he should not be made a ledge—after he revealed his views on text. The tradition of the Senate has judge. The bottom line is, we have no the Jay Treaty and other issues. Of been to confirm judicial nominations way of answering that question until course, we should have a vote on of the President if the nominees were we follow Senator HATCH’s mandate. Miguel Estrada. I don’t disagree with competent, if they were qualified, if Mr. WARNER. Will the Senator that. But not until we know how he they were honest, if they had a record yield? feels on the vital issues of the day. and background in the law, in the prac- The VICE PRESIDENT. The time of How does he feel about the first tice of law or on the bench or in aca- the Senator has expired. amendment? How does he feel about demia, that suggested they could live Mr. WARNER. I ask if the manager the commerce clause? Does he believe, up to the standards of the judiciary. If will give me a minute or two? like some on the bench, that the com- they did, they were confirmed and con- Mr. REID. Will the Senator from Vir- merce clause has been expanded too firmed without having to answer ques- ginia yield so we can enter into a unan- broadly and we ought to go back to tions that nobody ever has had to an- imous consent request? regulation by the 50 States? swer and would usurp and undermine The VICE PRESIDENT. Who yields I have no idea, I say to my friend the executive branch and the Solicitor time? from Virginia. I have no idea of how he General’s Office if they had to answer Mr. REID. Mr. President, I ask unan- feels. it. Under those standards, hundreds of imous consent debate on this matter be Mr. LEAHY. I yield one more minute people in Miguel Estrada’s cir- extended until the hour of 12:50 with to the Senator. cumstances have been confirmed with- the time equally divided between both Mr. SCHUMER. I have no idea how he out even any controversy, much less a sides. feels about the first amendment or filibuster, and everybody here knows The PRESIDING OFFICER. Without about the 11th amendment, and the it. objection, it is so ordered. balance between the Federal Govern- You can always invent a reason to be Mr. HATCH. I yield to the Senator ment and the States, the very issues opposed to somebody. Senators on the from Virginia. the Founding Fathers wanted us to other side have been good at doing that Mr. WARNER. I say to my col- know. with regard to Miguel Estrada, but he league— The judiciary, and I know my col- ought to be confirmed. At least he Mr. SCHUMER. I am delighted to league knows this, is the one non- ought to have a vote, if we are going to yield for a question. elected branch of the government. The follow the traditions of the Senate. Mr. WARNER. You brought up the advice and consent clause—— Now those traditions have broken history of Rutledge. I discussed this at Mr. HATCH. I can speak for Mr. down to the point we not only are vot- length last night on the Senate floor. Estrada. I know he feels very good ing not to confirm people, we are not Mr. SCHUMER. Mr. President, that about the first amendment. All of us even allowing a vote. We have Senators is on the time of the Senator from do. I don’t think that is the question. conducting a filibuster on somebody Utah. The Senator has a right to ask writ- because they suspect they might dis- Mr. WARNER. You brought up the ten questions and meet with him per- agree with his jurisprudence. very important case of George Wash- sonally to ask how he feels about some- What is it we are so afraid Miguel ington’s nomination, Rutledge, who thing. I am sure he feels very good Estrada might believe; a man who went had been a constitutional Framer, and about him. to Harvard Law School, was an editor his colleagues in this Chamber, some of The VICE PRESIDENT. Who yields of the Law Review, served in the Solic- whom were constitutional Framers, time? itor General’s Office, has been given turned him down, correct—but they did Mr. SCHUMER. Mr. President, may I high marks by everybody who has ever it by a vote. Am I not correct on that? have 1 minute? supervised him? Of course he is in the Mr. SCHUMER. You are correct. Mr. LEAHY. I yield an additional 1 mainstream. Mr. WARNER. That is the essence of minute. In the past, we gave people the ben- what we are trying to establish here, The VICE PRESIDENT. The Senator efit of the doubt. We don’t have time, namely that a vote is what the Fram- from New York is recognized. with every judicial nominee, to go ers envisioned when they put in the Mr. SCHUMER. If Mr. Estrada feels through everything they might believe supermajority, as the Senator from good about the first amendment, I ask about every particular judicial issue. South Carolina put it. They did not put my colleague, why can’t he tell us? The fact is, if we were applying the tra- a supermajority in for nominations, And why can’t he elaborate? What does ditions of the Senate, or anything the concept being that the President he feel about Buckley v. Valeo, a case close, this man would be confirmed and and the Senate would work together. we debated here for a long time? It is a we could move on. Now we cannot even Otherwise, the President could thwart past case. How far does he feel the first get a vote, and everybody here knows the process by putting no one up for ju- amendment ought to go? that.

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3439 The Senate is broken. It is broken at Middle East to the Korean peninsula to tions about his views at his hearing, to a time where we may be going to war. Iran and Iraq, we should feel very hon- act consistent with last year’s Su- The economy is in trouble. Of course ored that the Vice President would preme Court opinion by Justice Scalia we need to move on. I hear Senators take time out of his schedule related to in a case the Republican Party won to from the other side saying we should those kinds of issues to be with us allow judicial candidates to share their not be debating this, we should be mov- today. views, and to stop the pretense that he ing on. Yes. Exactly. But you can’t I hope he will come back to the Sen- has no views. The White House is using stand up and conduct a filibuster and ate when we debate the disastrous eco- ideology to select its judicial nominees then say you are not obstructing. You nomic situation in the country, the but is trying to prevent the Senate are. Let us have a vote on this man. He loss of 2.5 million jobs in the last 2 from knowing the ideology of these will probably carry. Other nominees we years following 8 years of a million new nominees when it evaluates them. have votes on may not carry. Let’s get jobs being added every year, or the Instead, it appears that the Senate the Senate working together. 300,000 lost last month. Republican majority, at the direction It is not the end of the world if some- I know Senator DASCHLE sought for of the White House, chose to extend body gets on the court of appeals that weeks to proceed to debate on S. 414, this debate because its political you don’t like. He is not going to the Economic Recovery Act of 2003, operatives hope to use it to falsely change the Constitution. He is on the which among other things includes the paint those who will not be steam court of appeals. Let’s vote on him and First Responders Partnership Grant rolled as somehow being ‘‘anti-His- let’s move on. Act, something that we could use in panic.’’ The Republicans’ resort to par- What concerns me is something to Vermont and Utah and Wyoming and tisanship regarding this nomination which the Senator from New York re- everywhere else, but the Senate Repub- disregards the legitimate concerns ferred. I am concerned that a few years lican majority has blocked debate and raised by many Senators as well as by from now a Democratic President may action on the Economic Recovery Act. respected Hispanic elected officials and get elected and he is going to start So, today, instead of debating the Hispanic civil rights leaders. Moreover, nominating people and we are going to international situation, the need to the Republican approach and the Presi- get back on this, except from this side pass an economic stimulus package, dent’s approach has been to divide: to of the aisle. It would be wrong. the need for an increased commitment divide the Senate, to divide the Amer- I have three kids. They are 12, 10, and to homeland defense, the need for legis- ican people and, on this particular 6. lation to provide a real prescription nomination, to divide Hispanic Ameri- The VICE PRESIDENT. The time of drug benefit for seniors or the many cans against each other. the Senator has expired. other matters so deeply concerning That is wrong. It is wrong because Mr. TALENT. Can I have another Americans, Republicans are insisting the President campaigned on a plat- form of uniting, not dividing. It is minute to talk about my family? on returning again in some form to de- wrong because our country needs us to Mr. HATCH. I grant the Senator 1 bate the nomination of Miguel Estrada. build consensus and work together, es- more minute. I wonder if I might have order, Mr. pecially in these most challenging The VICE PRESIDENT. The Senator President? The VICE PRESIDENT. The Senate times. is recognized. Instead of bringing up legislation Mr. TALENT. I appreciate it. Some- will be in order. that could unite us or setting aside Mr. LEAHY. I note that what has im- times I go down to our little rumpus time for debate on the international peded a Senate vote on the Estrada room and they are arguing about some- and domestic challenges our country is thing, and the one thing I tell them I nomination has been the political facing, the Republicans have again re- don’t want to hear is: They started it. game being played by the White House turned to the nomination of Mr. He started it. with this nomination. It is part of an Estrada and they have set aside an There is a code of conduct to which effort to pack the Federal courts. hour and one-half this morning for a you should adhere. Let’s adhere to it. In many ways, the debate has been in constitutional debate. Many Demo- That is in the interest of this Senate. the hands of the White House. This is a cratic Senators have already spoken It is in the interests of the Constitu- debate that could have ended at any about the Senate’s proper role in the tion and the interests of the people. time the White House wanted it to end. confirmation process under the Con- What must the people think when they We wonder, is there something in Mr. stitution. I recall, in particular, state- see us doing this on an appellate court Estrada’s writings that the White ments by Senators DASCHLE, REID, nomination? I ask my friends from the House doesn’t want us to see? The BINGAMAN, BOXER, CLINTON, CORZINE, other side of the aisle, I know it was White House could have long ago DODD, DORGAN, DURBIN, EDWARDS, done—not to this extent but from this solved this impasse by letting the Sen- FEINGOLD, FEINSTEIN, HARKIN, JOHNSON, side of the aisle—to some of President ate have access to Mr. Estrada’s KENNEDY, KOHL, LAUTENBERG, LEVIN, Clinton’s nominees. Let’s go back to memos, especially since Mr. Estrada MIKULSKI, SARBANES and SCHUMER, the standard we always followed. Let’s said he is perfectly willing to have us among many others. make the Senate work. Let’s keep it see those memos. We have plenty of What is disconcerting about the re- from being broken. questions we wanted to ask about it cent debate is what appears to be the I thank the Senator for yielding. but we have to have the paperwork. He Republican majority’s willingness to The VICE PRESIDENT. Who yields told us even though he said under oath sacrifice the constitutional authority time? The Senator from Vermont is he is willing to let us see it, the White of the Senate as a check on the power recognized. House told him he could not. of the President in the area of lifetime Mr. LEAHY. Mr. President, how So really this debate is in the control appointments to our federal courts. I much time is available to both sides? of the White House, not in the control fear, Mr. President, that the Repub- The VICE PRESIDENT. The majority of the leaders of the Senate. Past ad- lican majority’s efforts to re-write Sen- has 10 minutes 13 seconds; the minor- ministrations provided legal memos in ate history in order to rubber-stamp ity, 14 minutes 11 seconds. connection with the nominations of this White House’s federal judicial Mr. LEAHY. I thank the distin- Robert Bork, William Rehnquist, Brad nominees will cause long-term damage guished Presiding Officer. Reynolds, Stephen Trott, and Ben- to this institution, to our courts, to I welcome the distinguished Pre- jamin Civiletti, and this administra- our constitutional form of government, siding Officer to the Senate today in tion actually provided White House to the rights and protections of the his capacity as President of the Senate. Counsel’s office memos of its nominee American people and to generations to It is not often we see the Vice Presi- to the EPA. come. I have served in the Senate for 29 dent in the chair of the Senate. With Our request for his memos was made years, and until recently I have never the U.N. Security Council meeting nearly one full year ago, Mr. President. seen such stridency on the part of an today, the OPEC meeting, the unset- The White House also could have executive administration or such will- tled and threatening circumstances in helped resolve this impasse through in- ingness on the part of a Senate major- so many parts of the world from the structing the nominee to answer ques- ity to cast aside tradition and upset

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S3440 CONGRESSIONAL RECORD — SENATE March 11, 2003 the balances embedded in our Constitu- [From the Washington Post, Apr. 25, 1993] luminating concerning the meaning and spir- tion so as to expand presidential power. GEORGE WILL, MIGUEL ESTRADA, AND THE it of the Constitution—set the Senate’s per- CLOTURE VOTE: HOW WILL’S FLIP-FLOP OF missive tradition regarding extended debate. In the time set aside by the Repub- POSITIONS ILLUSTRATES THE INCREASING There was something very like a filibuster in lican majority for this debate today, I COLLAPSE OF THE POLITICS/LAW DISTINCTION the First Congress.’’ Fair enough. Until one reads the column welcome the opportunity to shed light By Edward Lazarus on the fiction that cloture votes, ex- Will published last week in The Washington The flurry over Miguel Estrada’s con- Post regarding the Estrada nomination. tended debate, and discussion of the troversial nomination to the U.S. Court of Here’s what Will has to say now (with em- views of nominees are anything new or Appeals for the District of Columbia con- phases added): unprecedented. What I do find unprece- tinues on. So does the Senate Democrats’ fil- ‘‘The president, preoccupied with regime dented is the depths that the Repub- ibuster to stop Estrada from being con- change elsewhere, will occupy a substan- tially diminished presidency unless he de- lican majority and this White House firmed. Meanwhile, a rarely-invoked Senate Rule feats the current attempt to alter the con- are willing to go to override the con- on the cloture vote has once again become a stitutional regime here. If at least 41 Senate stitutional division of power over ap- hot political football. Senate Rule XXII re- Democrats succeed in blocking a vote on the pointments and longstanding Senate quires 60 votes of the Senate’s 100 to stop de- confirmation of Miguel Estrada to the U.S. practices and history. It strikes me bate, and break a filibuster. Court of Appeals for the D.C. Circuit, the Rule XXII’s constitutionality is debated. Constitution effectively will be amended.’’ that some Republicans seem to think If Senate rules, exploited by an anti-con- that they are writing on blank slate Some believe that votes must be by a simple majority of 51, not a supermajority of 60, ex- stitutional minority, are allowed to trump and that they have been given a blank cept in the limited cases in which the Con- the Constitution’s text and two centuries of check to pack the courts. They show a stitution imposes a different rule. practice, the Senate’s power to consent to disturbing penchant for reading our Attorney Lloyd Cutler has put the argu- judicial nominations will have become a Constitution in isolation from its his- ment as follows: ‘‘The text of the Constitu- Senate right to require a 60-vote super- tory and the practices that have en- tion plainly implies that each house must majority for confirmations. By thus nul- take all its decisions by majority vote, ex- lifying the president’s power to shape the ju- dured for two centuries, in order to diciary, the Democratic Party will wield a suit their purposes of the moment. cept in the five expressly enumerated cases where the text itself requires a two-thirds presidential power without having won a A few years ago, when Republicans vote: the Senate’s advice and consent to a presidential election. were in the Senate minority and a treaty, the Senate’s guilty verdict on im- Wait a second. So Will now agrees with Cutler? And not only that, he reads both the democratically elected Democratic peachments, either house expelling a mem- ber, both houses overriding a presidential Constitution’s text and ‘‘two centuries of President was in the White House, col- veto and both houses proposing a constitu- practice’’ relating to filibusters entirely dif- umnist George Will, for example, had tional amendment.’’ ferently than he once did? What’s prompted no complaint about a super-majority of It’s an interesting argument. Even more his change of mind? And doesn’t he owe Cut- 60 votes being needed to get an up or interesting is that the high priest of conserv- ler an apology? ative columnists, George F. Will, has, over Obviously, conscientious commentators do down vote on legislation or nomina- change their views when they re-examine tions proposed by the President. In time, taken both sides of it—first attacking it, and now recently embracing it. them and find them in error. I am no fan of fact, reflecting Republican sentiment What spurred Will’s change of mind? Sadly, a ‘‘foolish consistency’’ in such matters. But at the time, what he said in his defense it seems to be purely politics. That would be this kind of change of mind—without expla- of the Republican filibuster of Presi- fine if it were an issue of policy, and politics. nation or apology—is quite troubling. Also troubling is the fact that Will’s close But it’s not: It’s an issue of constitutional dent Clinton’s proposals, was the fol- analysis of the Constitution and the First law, which is supposed to have an answer de- lowing: Congress’s proceedings, so important to him riving from history and precedent—an an- in 1993, is entirely missing here. And his The Senate is not obligated to jettison one swer that transcends politics. venom—once directed at Cutler—now draws of its defining characteristics, permissive- GEORGE WILL’S FLIP-FLOP ON THE CLOTURE on Cutler (without attribution) instead. Only ness regarding extended debate, in order to VOTE one conclusion seems possible: This is an ex- pander to the perception that the presidency Will, a historian of sorts, frequently opines quisitely brazen example of intellectual flip- is the sun about which all else in American on legal and constitutional issues. He gen- floppery that has nothing to do with law or government—even American life—orbits. erally holds himself out, as most commenta- the Constitution, or American history, and This is from the Washington Post on tors do, as an honest broker of ideas, albeit everything to do with conservative politics. a broker with a distinct perspective. April 25, 1993. It apparently did not WHAT THE FLIP-FLOP MEANS FOR WILL, AND In that role, Will has twice addressed the FOR ALL OF US trouble him or other Republicans when issue of Rule XXII. The flip-flop is an embarrassment to Will they were in the Senate minority that The first time was in 1993. At the time, and his reputation. Sadly, it may also be the Constitution expressly requires Democratic stalwarts, such as Cutler, were more than that as well. I fear that Will’s ad- more than a simple majority for only a challenging Rule XXII. They feared that, de- venture in hypocrisy is emblematic of what few matters. In fact, Mr. Will wrote: spite Democratic majorities in both the may well be the worst truth in American po- House and Senate, Republicans would use ‘‘Democracy is trivialized when re- litical discourse: nothing is shameful any- the filibuster to frustrate the agenda of the more. And no sense of integrity—an integ- duced to simple majoritarianism—gov- new Democratic president, Bill Clinton. rity that transcends politics—remains. ernment by adding machine. A mature, At the time, Will took Cutler to task for It seems especially ironic (or perhaps ap- nuanced democracy makes provision his doubts about the constitutionality of propriate) that Will should come to rep- for respecting not mere numbers but Rule XXII. He complained that taking issue resent this problem. After all, he—and com- with the Rule was ‘‘institutional tinkering’’ also intensity of feeling.’’ mentators of his ilk—have spent the last that ‘‘would facilitate the essence of the lib- decade or two bemoaning the rise of moral Of course, that was in 1993 and Presi- eral agenda—more uninhibited government.’’ relativism in our society. They mourn the dent Clinton’s proposals and a Demo- And he took direct aim at Cutler’s argument death of ‘‘shaming’’ as an instrument of be- cratic Senate majority were being con- about the Rule. havior modification for politicians and citi- Specifically, Will argued that the five in- tested by Republican filibusters. What zens alike. stances of supermajority votes listed in the In the culture wars, Will and others like is different a mere 10 years later? Just Constitution were the only time super- him have been the army defending such con- that the parties have switched roles majority votes could be used for externally- cepts as objective truth and personal respon- and this year Democrats are in the oriented legislation—‘‘the disposition by sibility. They have been the ones saying Senate minority and a Republican oc- each house of business that has consequences there is a right thing to do, independent of cupies the White House. I ask unani- beyond each house, such as passing legisla- politics, independent of the times. They have tion or confirming executive or judicial carried the banner of integrity, in short. mous consent that a recent article by nominees.’’ However, ‘‘procedural rules in- Now it’s plain, though, that Will has torn up Edward Lazarus that critiques Mr. ternal to each house,’’ according to Will, that banner even while pretending to uphold Will’s new position be printed in the ‘‘are another matter.’’ And in that sphere, a it. RECORD. supermajority cloture vote was fine. I confess that I’m a sucker. I believe in Indeed, Will pointed out, history supports these kinds of things—integrity, truth, cer- There being no objection, the mate- this view: ‘‘[T]he generation that wrote and tain absolute moral values, a right thing to rial was ordered to be printed in the ratified the Constitution—the generation do. Maybe it’s all that Plato I read in col- RECORD as follows: whose actions are considered particularly il- lege. I’ve always believed there is such a

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3441 thing as a ‘‘true’’ answer (even if we cannot matters, which includes judicial nomi- at stake in judicial nominations are know it with certainty), and that there are nations. Thus, prior to 1949, there was lifetime appointment for judges who ways of discerning better from worse, wheth- no mechanism to limit debate on nomi- will have the power to change how the er in argument or music or literature. nations, and in fact, disputes over Constitution is interpreted and wheth- Nowhere did these beliefs seem to be more nominations—to the few hundred seats important than in the field of law. Courts er civil rights, environmental protec- wield great power to shape the social order in the federal judiciary—were handled tions, privacy and our fundamental and control the destiny of individuals. Their and resolved by Senators behind closed freedoms will be upheld. With respect integrity rests ultimately on the belief that doors. to the Estrada nomination, what is at their decisions are not merely just that—ex- Earlier in this debate today, one Sen- stake is a seat on the second highest ercises of power—but are, in addition, prin- ator indicated that all prior Supreme court in the country and the swing cipled attempts to discern the proper mean- Court nominees had been given votes. I vote on that important court. ing of the law. And the idea that there is a will just name a few judicial nominees Most of the decisions issued by the ‘‘proper meaning’’ in the first place, in turn who were not acted upon by the Senate D.C. Circuit in the nearly 1,400 appeals presumes a universe that recognizes a gen- earlier in American history: John M. filed per year are final because the Su- uine ability to choose better arguments over Read, nominated by President Tyler on weaker ones, regardless of what one thinks preme Court now takes fewer than 100 of the results the arguments lead us to. February 7, 1845; Edward Bradford, cases from all over the country each In according with these principles, I’ve nominated by President Fillmore on year. This court has special jurisdic- critiqued legal reasoning even when I agree August 16, 1852; Henry Stanbery, nomi- tion over cases involving the rights of with its result, if I’ve felt the reasoning nated by President Andrew Johnson on working Americans as well as the right itself was flawed. For instance, though I sup- April 16, 1866; and Stanley Mathews, to a cleaner environment. This is a port abortion rights, I’ve expressed strong nominated by President Hayes on Jan- court where federal regulations will be qualms about Roe. uary 26, 1881. The facts are that many upheld or overturned, where privacy Now, however, it seems integrity is being judicial or executive nominations were radically redefined, as pure loyalty—fealty rights will either be retained or lost, defeated in the Senate by inaction or and where thousands of individuals will to the party, the political beliefs, the results by the threat of a filibuster over the that one prefers. Lying in the service of a have their final appeal in matters that years. cause has become, in some circles, honorable affect their financial future, their Republicans resurrected and ampli- to do. health, their lives and their liberty. fied those tactics in the years 1995–2001 CHANGING TIMES HAVE USHERED IN A NORM OF This is a court that has vacant seats to defeat more than 50 of President INTELLECTUAL DISHONESTY due to anonymous Republicans block- Clinton’s judicial nominees and to Intellectual dishonesty is pure poison to ing the last two nominees to this court delay for years the confirmation of the enterprise of the law. Yet countless ex- by a Democratic President. Those many others. In 1999, only 22 percent of amples show intellectual dishonesty has now nominees had outstanding legal cre- President Clinton’s circuit court nomi- become a routine, expected part of American dentials and qualifications but during nees were confirmed. That was the first discourse. The most obvious half-truths and President Clinton’s last term, the Re- hypocrisies are greeted with shrugged shoul- time in recent memory that a circuit publican-controlled Senate would not ders and a grunt of ‘‘what did you expect?’’ court nominee was substantially more These dishonesties that we have come to likely not to be confirmed than to be proceed to an up or down vote on either accept too easily range from the non-rea- confirmed. For all of 1999 and 2000, only of them. The word ‘‘filibuster’’ derives from soning of Bush v. Gore, to the logic-defying 44 percent of President Clinton’s cir- economic rationale for more tax cuts, to the the Dutch word for piracy, or taking cuit court nominees were confirmed, ever-shifting justification of war in Iraq. And property that does not belong to you. making it more likely than not that they extend to just about every other signifi- Under that ordinary definition, it his circuit court nominees would not cant issue of law and policy that affects would be accurate to say that at least American life. be confirmed, unlike the nominees of two of the vacancies on the D.C. Cir- Why does this happen? It cannot be be- the prior three Presidents, even during cause all the people perpetrating these intel- their last years in office. That is why cuit, for which Republicans blocked lectual frauds are bad people. It’s been my vacancies on the circuit courts more qualified nominees, were filibustered, experience (limited, I admit) that most peo- than doubled from 16 in 1995 to 33 when as well. Republicans, who exploited ple who go into government or devote them- the Senate reorganized in the summer every procedural rule and practice to selves to a life of public policymaking or in- block scores of Clinton nominees anon- tellectualism, do so for the best of reasons— of 2001. That is why this President has had so many circuit vacancies to fill, ymously from ever receiving an up or because they want to help shape the world down vote, now want to change the for the better. and he has shown little bipartisanship Then why? I found a partial answer watch- in his choices. In fact, rather than rules midstream, to their partisan ad- ing, last night, an old clip of Daniel Ellsberg uniting people with his choices for life- vantage, again so that all of their being interviewed by Walter Cronkite, in the time appointments, he has sent for- nominees get votes as quickly as pos- wake of Ellsberg’s controversial release of ward a slate of circuit court nominees sible. The whole reason this President the Pentagon Papers. To paraphrase, that has generated tremendous con- has so many circuit vacancies to fill is Ellsberg contended that our society had be- because this was the booty of their pi- come so divided, with each side so bent on troversy and division. In essence, until Republicans had a racy, their filibustering of judicial perpetuating itself in power, that govern- seats that arose during the Clinton Ad- ment and the world around it imposed a sus- Republican President, Republicans in- tained and terrible pressure on good people terpreted the Advice and Consent ministration while they prevented to make a choice. They could either leave Clause of the Constitution to allow a votes on that President’s qualified that world or, far worse, give up the search handful of anonymous Republican Sen- nominees. for truth, in exchange for the search for vic- ators to prevent an ‘‘up or down’’ vote For example, a Mexican-American tory. by the full Senate on scores of qualified circuit court nominee of President That was more than 30 years ago. Has any- and moderate, mainstream judicial Clinton, Judge Richard Paez, was thing much changed? nominees of President Clinton. Now, forced to wait more than 1,500 days to Mr. LEAHY. As Mr. Will noted in when Democratic Senators have ex- be confirmed. Even after the Repub- 1993, one of the key attributes of the pressed genuine concerns about the lican filibuster was broken by a cloture Senate is the venerable tradition of ex- lack of information regarding Mr. vote to end debate, many Republicans tended debate and deliberations. In Estrada and have made a well-founded joined an unsuccessful motion to in- fact, not until 1917 was there even a request to see his writings as a public definitely postpone his nomination. provision in the Senate rules to allow servant, Republicans claim it is wrong None of the more than 30 Republicans for cloture, a procedure by which the and unconstitutional for Senators to who voted against cloture in connec- Senate acts to cut off debate. The Sen- act in accordance with Senate rules tion with that nomination or who ate first adopted the cloture rule in and tradition and their longstanding voted in favor of Senator SESSIONS un- 1917. At that time, cloture was limited role as a check and balance on the precedented motion ‘‘to indefinitely to and could only be sought on legisla- President’s appointment power. postpone’’ the vote on Judge Paez’s tive matters. The cloture rule was ex- The disregard for rules and traditions nomination, which had been pending tended in 1949 to include measures and is especially unfortunate when what is for more than 1,500 days, should be

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S3442 CONGRESSIONAL RECORD — SENATE March 11, 2003 heard to complain if Democratic Sen- ally defeated more than 50 judicial chart shows some of the Republican ators seek more information about this nominees without a recorded Senate filibusters of nominations, leaving out President’s nominees before proceeding vote of any kind, just by refusing to their filibusters of legislation. to a vote for a lifetime appointment. proceed with hearings and Committee So when Republican Senators now Senator Bob Smith, a straight talker votes due to the anonymous acts of one talk about the Senate Executive Cal- from New Hampshire, outlined the Sen- or more Republicans. endar and presidential nominees, it ate’s history of filibusters of judicial Beyond the question of judicial nomi- must be remembered that they re- nominees and said: nees, Republicans also filibustered cently filibustered several nominees Don’t pontificate on the floor and tell me President Clinton’s nomination of Dr. and they succeeded in blocking many that somehow I am violating the Constitu- Henry Foster to become Surgeon Gen- nominees by cloture votes and through tion . . . by blocking a judge or filibustering eral of the United States. This was an anonymous holds. Here is a more com- a judge that I don’t think deserves to be on Executive Branch nominee that Repub- plete list of recent Republican filibus- the court. That is my responsibility. That is ters: my advise-and-consent role, and I intend to licans filibustered successfully in spite of two cloture votes in 1995. Dr. David exercise it. REPUBLICAN FILIBUSTERS OF NOMINEES Thus, the Republicans’ claim that Satcher’s subsequent nomination also Democrats are taking ‘‘unprecedented’’ required cloture but he was success- Cloture fully confirmed. Year Nominee and position petitions action regarding the circuit court nom- filed ination of Mr. Estrada—much like the Other executive branch nominees bogus White House claim that our re- who were filibustered by Republicans 1968 Abe Fortas, Supreme Court ...... *1 included Walter Dellinger, whose name 1980 William Lubbers, NLRB ...... 3 quest for Mr. Estrada’s work while paid 1980 Don Zimmerman, NLRB ...... 3 by taxpayers was ‘‘unprecedented’’—is has been invoked with approval by Re- 1980 Stephen Breyer, 1st Circuit ...... 2 publicans during the debate on the 1987 Melissa Wells, Ambassador ...... 1 simply untrue. Republicans’ desire to 1987 William Verity, Commerce ...... 1 Estrada nomination. Mr. Dellinger was 1993 Walter Dellinger, Justice ...... 2 rewrite their own history is wrong. 1993 Five State Department Nominees ...... 2 They should come clean and tell the nominated to be Assistant Attorney 1993 Janet Napolitano, Justice ...... 1 General for the Office of Legal Counsel 1994 Larry Lawrence, Ambassador ...... 1 truth to the American people about 1994 Rosemary Barkett, 11th Circuit ...... 1 their past practices on nominations. and two cloture petitions were required 1994 Sam Brown, Ambassador ...... *3 to be filed and both were rejected by 1994 Derek Shearer, Ambassador ...... 2 They cannot change the plain facts to 1994 Ricki Tigert, FDIC ...... 2 fit their current argument and pur- Republicans. In this case we were able 1994 H. Lee Sarokin, 3rd Circuit ...... 1 finally to obtain a confirmation vote 1995 Henry Foster, Surgeon General ...... *2 poses. 1998 David Satcher, Surgeon General ...... 1 Back in 2000, Senator HATCH candidly after significant efforts and Mr. 2000 Marsha Berzon, 9th Circuit ...... 1 admitted after cloture was invoked on Dellinger was confirmed to that posi- 2000 Richard Paez, 9th Circuit ...... 1 tion with 34 votes against him. He was the Paez nomination and Senator SES- I would note that the Fortas, Brown SIONS made his unprecedented motion never allowed to be a confirmed Solic- itor General because Republicans had and Foster cloture votes resulted in ef- to indefinitely postpone any vote on fect in the defeat of their lifetime or that judicial nomination that Judge made clear their opposition to him. In addition, in 1993, Republicans ob- short-term appointments. Some of Paez’s nomination had been filibus- these filibusters occurred when the Re- tered. He said: jected to State Department nomina- tions and even the nomination of Janet publicans were in the minority—as Indeed, I must confess to being somewhat with Senator Helms’ filibuster of a baffled that, after a filibuster is cut off by Napolitano to serve as the U.S. Attor- ney for Arizona, resulting in cloture State Department appointee of Presi- cloture, the Senate could still delay a final dent Reagan, and some were while Re- vote on a nomination. A parliamentary rul- petitions. In 1994, Sam Brown was nom- ing to this effect means that, after today, inated to be an Ambassador. After publicans were in the majority—as with the filibuster of Judge Paez’s our cloture rule is further weakened. three cloture petitions were filed, his nomination. Republicans should not have come to nomination was returned to President Notwithstanding the recent Repub- the floor and told the American people Clinton without Senate action. This lican efforts to filibuster that Hispanic over the last month that Democratic was another successful filibuster by circuit court nominee and their failure Senators had done something unprece- Republicans, and this was to a short- to give hearings or votes to three other dented in debating and opposing the term appointment to serve in the Exec- Hispanic circuit court nominees of Estrada nomination. They themselves utive Branch, not to a lifetime appoint- President Clinton in addition to other did it quite recently and have done it ment. Also in 1994, Derek Shearer was nominees, Republicans have come to repeatedly. Let us be honest about this nominated to be an Ambassador and it this floor and made unfounded attacks and straight with the American people. took two cloture petitions to get to a against Democrats who have expressed Given the time allotted for today’s de- vote before he was confirmed. In 1994, concerns about Mr. Estrada’s nomina- bate, I cannot discuss them all but I Ricki Tigert was nominated to chair tion. It appears the Senate Republican will include in the record some of the the FDIC and it took two cloture peti- majority, at the direction of the White other examples of Republican filibus- tions to get to a vote and confirmation House, chose to extend this debate be- ters of presidential nominations from of that executive nomination. cause political operatives hope to use the nomination of Justice Abe Fortas In addition, some remember Repub- it to falsely paint those who were not to be Chief Justice of the United States lican unwillingness to allow a Senate to be steamrollered as somehow anti- Supreme Court through the nomina- vote on the nomination of Bill Lann Hispanic. The Republican’s approach of tions of Stephen G. Breyer, now Jus- Lee to serve as the Assistant Attorney crass partisanship regarding this nomi- tice Breyer, to the First Circuit; Rose- General for the Civil Rights Division at nation—— mary Barkett to the 11th Circuit; H. the Department of Justice. He told the Mr. SANTORUM. Mr. President, will Lee Sarokin to the 3rd Circuit; and Judiciary Committee that he would the Senator yield for a question? These Marsha Berzon and Richard Paez to the follow the law and enforce the law. He were not times when Republicans were 9th Circuit. was the choice of the President to in charge, is that correct? Even more frequent during the years serve in that President’s administra- Mr. LEAHY. Once I finish my speech from 1995 through 2001, when Repub- tion, but Republicans would not accord I will be glad to yield to questions. I licans controlled the Senate majority, him an up or down vote before the control the floor. Once I have finished were Republican efforts to defeat United States Senate. my speech I will be glad to. President Clinton’s judicial nominees Republicans now claim that extended Mr. SANTORUM. Will he yield for a through inaction and anonymous holds debate on this nomination is somehow question? for which no Republican Senator could unprecedented. I would point out that Mr. SCHUMER. Regular order, Mr. be held accountable. Republicans held we have had a lot of extended debates President. up almost 80 judicial nominees who and cloture votes over the last decade. Mr. SANTORUM. I just want to make were not acted upon during the Con- I lost count of the number of times we sure the RECORD is correct because the gress in which President Clinton first had to vote on cloture when President Senator said Republicans were in nominated them, Republicans eventu- Clinton was making nominations. This charge at that time.

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3443 The PRESIDING OFFICER (Mr. SES- under oath that he is perfectly willing I would be willing to yield to the SIONS). The Senator from Vermont has to answer the questions, but the White Senator from Utah on his time. the floor. House told him he is not allowed to. Mr. HATCH. I will ask the question Mr. SANTORUM. I just want to make Once they are willing to, let us have a on my time. Will the Senator answer sure the RECORD is correct. hearing and then let us go forward on on his time? Mr. LEAHY. The partisanship regard- questions based on what is in there. Mr. LEAHY. On the time of the Sen- ing this nominee disregards the legiti- The administration, however, seems ator from Utah. mate concerns raised by many Sen- to believe that somehow the Senate is Mr. HATCH. Let me ask the question ators. It is wrong because distinguished their own unit to be used for whatever on my time. I would like the answer on Latino leaders, who have spent their type of politicking they want. They re- the Senator’s time. lives seeking justice and greater rep- nominated Judge Charles Pickering de- As to the number of circuit court of resentation of Hispanic lawyers as spite his ethical lapses. They renomi- appeals judges, No. 1, who was in judges, have been attacked by Repub- nated Justice Priscilla Owen despite charge of the Senate when Abe Fortas licans for showing courage and honesty her record as a conservative activist was defeated by a filibuster? No. 2, in their judgment that this nomination judge and after being rejected by the were any of those circuit court nomi- is wanting. Joining the League of Judiciary Committee. Both of these nees defeated by filibuster, or were United Latin American Citizens, which nominees were rejected by the Senate they all confirmed? Mr. LEAHY. Mr. President, I will previously wrote to the Senate disasso- Judiciary Committee after fair hear- refer to this in my statement. All of ciating itself with Republican attacks ings and open debate last year. Sending these were Republican filibusters and a on Democratic Senators, yesterday the these renominations to the Senate is few times a few Democrats joined with National Council of La Raza issued a unprecedented. No judicial nominee the Republicans in their efforts to statement condemning the treatment who has been voted down in Committee has ever been renominated to the same block these nominees. Some of the Re- of Congressional Hispanic Caucus by position by the President. The White publican filibusters were successful, Republicans. The NCLR statement House in tandem with the new Repub- and some were not, but they all were notes how ‘‘deeply offended’’ it is by lican majority in the Senate is choos- filibusters and they all involved clo- Mr. Estrada’s supporters calling Con- ing these battles over nominations pur- ture petitions. A filibuster is still a fil- gressional Hispanic Caucus members posefully. Dividing rather than uniting ibuster even if it does not succeed in ‘‘tyrannical,’’ ‘‘racist,’’ and ‘‘anti- has become their modus operandi. blocking the nominee forever. The Re- Latino’’. Among the consequences of this par- publican filibuster of Judge Paez’s cir- Moreover, the Republican approach tisan strategy is that for the last cuit court nomination proves that. and the President’s approach have been month, the Senate has been denied by I fear that what the Republican ma- to divide the Senate, to divide the the Republican leadership meaningful jority is trying to do is rewrite Senate American people—may I have order, debate on the situation in Iraq. I com- history in order to rubberstamp the Mr. President? May I have order? mend Senator BYRD, Senator KENNEDY Federal judicial nominees of this White Mr. SCHUMER. Mr. President, may and the other Senators on both sides of House and that this will cause long- we have order? the aisle who have nonetheless sought term damage to the Senate and the The PRESIDING OFFICER. The Sen- to have the Senate fulfill its constitu- courts. ator from Vermont has the floor. He tional role as a forum for debate and I have served in the Senate for 29 may or may not yield. careful consideration of our nation’s years. I have never seen a President so Mr. LEAHY. That is wrong. The foreign policy in accordance with the eager to divide rather than unite. I President campaigned on a platform of shared power provided in the Constitu- have never seen such stridency on the uniting, not dividing. It is wrong be- tion. The decision by the Republican part of an executive administration or cause our country needs us to build Senate majority to focus on controver- such willingness as this Senate major- consensus and we should work together sial nominations rather than the inter- ity’s to cast aside tradition, the rules, especially in these most challenging national situation or the economy says and those things that give us a check times. These are the years of Repub- much about their mistaken priorities. and balance. It is unfortunate because lican filibusters of judicial or executive The Republican majority sets the agen- the country expects more of us. branch nominees: 1968, 1980, 1980, 1980, da and they schedule the debate, just We see the most deliberative body on 1987, 1987, 1993, 1993, 1993, 1994, 1994, 1994, as they have here this morning. Earth—the Senate—not even debating 1994, 1994, 1994, 1995, 1998, 2000, 2000. Among the consequences of this par- the war we are about to go to in a mat- For Republicans to claim that they tisan strategy, of course, what has hap- ter of days, if the news accounts are have never filibustered a circuit court pened by the Republican scheduling of correct, and we are talking about this nominee is just incorrect. For them to debate on this nomination is we don’t because this is the Republican agenda, claim that they have never ‘‘success- have sufficient time to debate the Iraq packing the courts. fully’’ filibustered a lifetime or short- situation. We don’t talk about war in In the debate Republicans have in- term appointee’s nomination is also in- Iraq even though there is great division sisted upon, a number of fictions have correct. The debate on Mr. Estrada’s in this country. We don’t talk about an been told. The cloture votes, the ex- nomination is important. administration which inherited the tended debate, and the discussion of I think in the debate on this nomina- largest surplus any administration has the views of nominees is not anything tion, this is not a nomination that ever inherited. The Clinton administra- new or unprecedented. What is going unites rather than divides. Certainly tion left the largest budget surplus to on here is unprecedented—with the Re- within the Hispanic community itself, this administration than any adminis- publican blank slate, no past history, highly respected members of the His- tration ever had, and now Republicans and they think they can do whatever panic community oppose Miguel are creating the largest deficit in his- they want to do. Estrada. tory. The Clinton administration cre- During the time when President Clin- Mr. HATCH. Mr. President, will the ated a million new jobs a year. This ad- ton was here and the Republicans were Senator yield for a question? ministration is losing a million jobs a in charge, there were scores of nomi- Mr. LEAHY. I would be glad to. Let year. But if the Republican controlled nees on which we didn’t even have a me finish these comments, and then I Senate continues to schedule debate on vote. We had anonymous holds by Re- will yield on the time of the Senator Miguel Estrada, they will not have to publicans. We didn’t have up-or-down from Utah. talk about that. votes. Now, when we express genuine In this case, it appears to me that That kind of tells me why they are concern, now, when we say why can’t the White House really wants to play doing this. Here is the greatest delib- Mr. Estrada show us the writings that politics. They could end this debate erative body in the world, and we don’t he has said under sworn testimony he today if they wanted to. They can have a debate on the war in Iraq. The is willing to show us but the White make these papers available so that Canadian Parliament does. The British House blocks him from showing us, Miguel Estrada can be asked questions Parliament does. The U.S. Senate does somehow we are blocking. Maybe it ap- based on them. Miguel Estrada has said not. pears that the Republicans like the

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S3444 CONGRESSIONAL RECORD — SENATE March 11, 2003 rules when they are using them, but for debate? Does my colleague think it that is happening more and more in the they don’t like the rules when we are is even worse than trying to figure out Senate. Regrettably, it has occurred using them. what his views are than never having recently in connection with judicial Even though Republicans blocked the debate on the floor and never nominees before the Judiciary Com- some Hispanic nominees of President bringing them up and never giving mittee, when the Republicans insisted Clinton and scores of others, I must them a chance? on breaching Rule IV, a longstanding add that the debate on the nomination Mr. LEAHY. The Republicans rule of our Committee that allows for of Mr. Estrada is not part of any retal- wouldn’t allow over 50 of President extended debate, as well. iation. We have genuine concerns about Clinton’s nominees to ever have a hear- I would like to address a most trou- his nomination, his answers and the ing or ever have a vote. Many of these bling development that demonstrates documents we have requested to better individuals were nominated years ear- how Republicans are violating long- understand his unvarnished views. In lier. We never got to know what the standing Senate rules to suit them- addition, we worked hard to move reasoning behind the anonymous Re- selves. Two weeks ago in a meeting of quickly on the vast majority of this publican holds was. Even when we fi- the Senate Judiciary Committee, the President’s judicial nominations, to nally did, for example, a Mexican- Chairman unilaterally declared the demonstrate our fairness and biparti- American circuit court nominee of termination of debate on two con- sanship. In just 17 months, the Demo- President Clinton, Judge Richard Paez, troversial circuit court nominations. cratic-led Senate confirmed 100 of was forced to wait more than 1,500 days Senator DASCHLE termed it deeply President Bush’s judicial nominees, to be confirmed. And even then, we had troubling and a ‘‘reckless exercise of even though Republicans averaged only to vote in favor of cloture to get the up raw power by a Chairman,’’ and he is 38 per year. We more than doubled the or down vote on his nomination. Fif- right. The Democratic Leader observed rate of confirmation. We also held teen Republicans voted against clo- that the work of this Senate has for hearings for 20 circuit court nominees ture—after he waited more than 20 over 200 years operated on the principle and confirmed 17 of them in just 17 months for a floor vote during the four- of civil debate, which includes protec- months, following on the heels of a Re- plus years he was pending before the tion of the minority. When a Chairman publican average of just 7 circuit nomi- Senate. In fact, one Republican Sen- can on his own whim choose to ignore nees confirmed per year, and one year ator moved to indefinitely postpone our rules that protect the minority, in which they allowed zero circuit Judge Paez’s nomination, even though not only is that protection lost, but so court nominees to be confirmed. So, we he had waited for 1,500 days, and 31 Re- is an irreplaceable piece of our integ- worked very hard to return the nomi- publicans voted in favor of indefinitely rity and credibility. nation process to a more consistent postponing that nomination in March The Democratic Leader noted that and steady pace, after the obstruction of 2000. If they had had the votes they faithful adherence to rules is especially in prior years. So far this year, 5 judi- never would have let him be confirmed. important for the Senate and for its cial nominees of this President have al- Not one Republican came to the floor Judiciary Committee. He noted ‘‘how ready been confirmed. during the time Judge Paez was wait- ironic that in the Judiciary Com- The confirmation of 100 judges nomi- ing for a vote and suggested that the mittee, a Committee which passes nated by this President was not enough Republican filibuster during any of judgment on those who will interpret for Republicans to be satisfied. They those 1,500 days was unconstitutional the rule of law,’’ that it acted in con- want every one of this President’s judi- or anti-majoritarian. scious disregard of the rules that were cial nominees to be confirmed no mat- In fact, today made me think of this established to apply to its proceedings. ter their ethical record or record of ac- when we have the two distinguished If this is what those who pontificate tivism or their controversy. They want Presiding Officers, the distinguished about ‘‘strict construction’’ mean by every judicial nominee on the courts Vice President and the distinguished that term, it translates to winning by immediately despite the serious con- Senator from Alabama. The distin- any means necessary. If this is how the cerns raised by Senators and citizens guished Senator from Alabama actu- judges of the judicial nominees act, alike. They want to pack the court ally objected to the Vice President at how can we expect the nominees they with many divisive judicial nominees that time being in the chair in the support as ‘‘strict constructionists’’ to who will tilt the balance of the courts closing moments of the debate on behave any better? Given this action in for decades to come. Judge Paez’s nomination because the The fact is, it appears to me, the de- executive branch had nominated him disrespect of the rights of the minor- cision is being made not here in the and that was a conflict of interest in ity, how can we expect the Judiciary Senate but by a political arm of the his view. Of course, Republicans did Committee to place individuals on the White House. not make a similar motion today when bench who respect the rule of law? In They have made these controversial it was a Republican Vice President in my 29 years in the Senate and in my appointments despite the recent his- the chair during a debate about a Re- reading of Senate history, I cannot tory of the moderate nominees to these publican nominee. think of so clear a violation of Sen- circuits of President Clinton who were Let us just be a little bit honest ators’ rights. blocked. If we use the ordinary defini- about what is going on here. This is I am gravely concerned about this tion of filibuster, we could say that at sauce for the goose and sauce for the abuse of power and breach of our Com- least two of the vacancies on the Dis- gander. And yet this Administration mittee rules. When the Judiciary Com- trict of Columbia Circuit were filibus- and many Republicans have not ac- mittee cannot be counted upon to fol- tered despite the well-qualified nomi- knowledged our effort to turn the other low its own rules for handling impor- nees sent up by President Clinton. cheek and confirm 100 of this Presi- tant lifetime appointments to the fed- They were never allowed to be voted dent’s judicial nominees in the prior 17 eral judiciary, everyone should be con- on. They didn’t make it to the floor. months of Democratic leadership of the cerned. In violation of the rules that Republicans blocked nominees in a far Senate. Many of those nominations have governed that Committee’s pro- easier way. They didn’t even bring were to seats that were blocked from ceedings since 1979, the Chairman chose them up. They were nonpersons—al- being filled during the prior period of to ignore our longstanding Committee most like the old Soviet Union. When Republican control of the Senate. Rules and short-circuit Committee you looked at the picture of the Polit- It cannot be that only the rules Re- consideration of the nominations of buro, you would find out the next year publicans like at the times that they John Roberts and Deborah Cook. Sen- when the picture was shown they were like them are the rules that are fol- ator DASCHLE spoke to that matter X’d out. lowed in the Senate, but more and that day. Senator FEINSTEIN, Senator Mr. SCHUMER. Mr. President, will more that seems to be what the Repub- SCHUMER and Senator DURBIN have also my colleague yield for a question? lican majority is demanding. They spoken to the Senate about this breach Mr. LEAHY. Certainly. should not pretend the rules no longer of our rules as well as a number of Mr. SCHUMER. How many of these apply simply because the Republican other liberties that Republicans have nominees were never brought up even majority finds them inconvenient, but been taking with the rules.

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3445 This protection for the minority has debate was, in fact, terminated pre- Circuit nominees in those four years as been maintained by the Judiciary Com- maturely. Senator HATCH completely well as to numerous other circuit mittee for the last 24 years under five reversed his own position from the Bill nominees. Last month, in sharp con- different chairmen—Chairman KEN- Lann Lee nomination and took a step trast, this Committee was required to NEDY, Chairman Thurmond, Chairman unprecedented in the history of the proceed on two controversial nomina- BIDEN, under Chairman HATCH pre- Committee. tions to those circuit courts in con- viously and during my tenure as chair- In his recent letter to Senator travention of the rules and practices of man. DASCHLE, Senator HATCH now contends the Committee. This can only be seen Rule IV of the Judiciary Committee that he ‘‘does not believe the Com- as part of a concerted and partisan ef- provides the minority with a right not mittee filibuster should be allowed and fort to pack the courts and tilt them to have debate terminated and not to [he] thinks it is a good and healthy sharply out of balance. be forced to a vote without at least one thing for the Committee to have a rule In circumstances such as these, when member of the minority agreeing. That that forces a vote.’’ I ask that the ex- the rights of the minority are being rule and practice had until last month change of letters between Senator violated and Senate rules and long- always been observed by the Com- HATCH and the Democratic Leader be standing practices are breached, the mittee, even as we have dealt with the included in the RECORD. minority is left with very few options most contentious social issues and Our Committee rule, while providing and very little choice in how it must nominations that come before the Sen- a mechanism for terminating debate proceed. This President has been the ate. and reaching a vote on a matter, does most politically aggressive and the Until last month, Democratic and so while providing a minimum of pro- most unilateralist President I have Republican Chairmen had always acted tection for the minority. It is even that seen in my 29 years in the Senate in his to protect the rights of the Senate mi- minimum protection that Chairman nominations. The Republican majority nority. The rule has been the Commit- Hatch will no longer countenance. It is is now choosing to abet his efforts at tee’s equivalent to the Senate’s cloture Senator HATCH who has ‘‘turned Rule 4 the expense of the Senate minority’s rule. It had been honored by all five on its head’’ last month, after 24 years rights and the constitutional role of Democratic and Republican chairman, of consistent interpretation and imple- the Senate. That is most regrettable. including Senator HATCH, until last mentation by five chairmen. Never be- The PRESIDING OFFICER. The Sen- month. fore his letter to Senator DASCHLE has ator from Utah. It was rarely utilized but Rule IV set anyone since the adoption of the rule Mr. HATCH. Mr. President, how the ground rules and the backdrop in 1979 ever suggested that its purpose much time remains on both sides? The PRESIDING OFFICER. Nine against which rank partisanship was was to be narrowed and redirected to minutes, 42 seconds; the other side has required to give way, in the best tradi- thwart what he called ‘‘an obstreperous tion of the Senate, to a measure of bi- 40 seconds. Chairman who refuses to allow a vote Mr. HATCH. I would like to correct partisanship in order to make progress. on an item on the Agenda.’’ After all, the RECORD. When all of those circuit That is the other important function of as Senator HATCH recognizes in his let- court judges were approved and con- the rule. ter, it is the chairman’s prerogative to firmed, during the time when the fili- Besides protecting minority rights, it set the agenda for the mark-up. buster occurred on Fortas—the only enforced a certain level of cooperation This revisionist reading of the rule is filibuster which was really a true fili- between the majority and minority in not justified by its adoption or its prior buster—it was bipartisan and the order to get things accomplished. That, use and appears to be nothing other Democrats controlled the Senate. too, has been lost as the level of par- than an after the fact attempt to jus- I yield 2 minutes to the distinguished tisanship on the Judiciary Committee tify the obvious breaches of the long- Senator from Tennessee. and within the Senate reached a new standing Committee rule and practice Mr. ALEXANDER. Mr. President, the low when Republicans chose to over- that occurred last month. That novel Senator from Illinois earlier brought ride our governing rules of conduct and interpretation was not even articulated up the distinguished late Judge Frank proceed as if the Senate Judiciary contemporaneously at the business Johnson of Alabama and commended Committee were a minor committee of meeting. him for doing the right thing. I wanted the House of Representatives. The Committee and the Senate have to remind the Senate of why Judge In fact, the only occasion I recall crossed a threshold of partisan over- Johnson was able to do the right thing when Senator HATCH was previously reaching to rubber-stamp judicial in desegregating the south. It was be- faced with implementing Committee nominees that should never have been cause of John Minor Wisdom of Lou- Rule IV, he did implement it. In 1997 crossed. I urge the Republican leader- isiana and John Brown of Texas and El- Democrats on the Committee were ship to recommit the nominations of bert Tuttle of Georgia, who were Re- seeking a Senate floor vote on Presi- Deborah Cook and John Roberts to the publican appellate court judges ap- dent Clinton’s nomination of Bill Lann Judiciary Committee so that they can pointed by a Republican President Lee to be the Assistant Attorney Gen- be considered in accordance with the named Eisenhower at a time in the eral for Civil Rights at the Department Committee’s rules. The action taken 1950s when the Democratic side of the of Justice. Then, Senator HATCH ac- last month should be vitiated and order Senate was using the filibuster to kill knowledged: ‘‘Rule IV of the Judiciary restored to the Senate and to the Judi- every important piece of civil rights Committee rules effectively establishes ciary Committee. I urge the Judiciary legislation that was proposed in the a committee filibuster right . . . .’’ In Committee and the Senate to rethink Senate. 1997, Chairman HATCH acknowledged: the misstep taken last month and urge Senator Eastland of Mississippi, Sen- ‘‘Absent the consent of a minority the Chairman and the Committee to ator Stennis of Mississippi would never member of the Committee, a matter disavow the misinterpretation and vio- have approved Judge Wisdom’s nomina- may not be brought to a vote.’’ In that lations of Rule IV that occurred. Order tion or never have agreed with it if case, in 1997, Chairman HATCH followed and comity need to be restored to the they had known that he and Judge the rules of the Committee. Judiciary Committee. An essential step Brown and Judge Tuttle would order Last month the bipartisan tradition in that process is the restoration of mi- the admission of James Meredith to and respect for the rights of the minor- nority rights under Rule IV and rec- the University of Mississippi. ity ended when Chairman HATCH de- ognition of minority rights thereunder. So at a time when these distin- cided to override the rule rather than During the last four years of the guished former Democratic Senators follow it. He did so expressly and inten- Clinton Administration, his entire sec- were filibustering every piece of civil tionally, declaring: ‘‘[Y]ou have no ond term in office after being reelected rights legislation in the Senate, they right to continue a filibuster in this by the American people, the Judiciary didn’t even consider filibustering an committee.’’ He decided, unilaterally, Committee refused to hold hearings appellate judge. That way Judge Wis- to declare the debate over even though and Committee votes on his qualified dom, Judge Brown, and Judge Tuttle all members of the minority were pre- nominees to the D.C. Circuit and it re- all were confirmed, and all ordered pared to continue the debate and that fused to give hearings to three Sixth James Meredith to be admitted.

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S3446 CONGRESSIONAL RECORD — SENATE March 11, 2003 The relevance of the point of the Sen- building, a significant event took place and fight against any filibuster on a judge, ator from Illinois is that today’s Demo- which provides us with a warning. A whether it is somebody I opposed or sup- crats, our friends on the other side, are young Architect of the Capitol wanted ported; that I felt the Senate should do its going further than the Democratic fili- to improve the sight lines in the Su- duty. If we don’t like somebody the President busters against the civil rights bills in preme Court Chamber on the first nominates, vote him or her down. But don’t the 1950s. They are denying the Presi- floor. Calculating that one of the sup- hold them to this anonymous unconscionable dent the traditional right to nominate port pillars was unnecessary, he limbo, because in doing that, the minority of and appoint judges. I don’t know what brought in a crew to remove it. Half- Senators really shame all Senators. happened in the past, but I know what way through the project, the ceiling My statement is simply this: We are this one Senator will do in the future. fell in on the Supreme Court Chamber, bearing witness to a constitutional If there is a Democratic President and which was also the floor of the Senate change. And having looked at the I am in this body, and if he nominates above, destroying both Chambers for a statement of Senator LEAHY and his a judge, I will never vote to deny a vote period of time. The lesson is that when present conduct, we are bearing wit- on that judge. If two or three more you tamper with one branch of Govern- ness to a change on his part. He was Senators on both sides will do the same ment, it can affect others in a way you right in 1998 to oppose the filibusters. thing, we could go back to having more cannot anticipate, and any attempt to He is wrong today to engage in one. respect for our judicial nominating tamper with the delicate balance of The PRESIDING OFFICER. The Sen- process. power must be met with suspicion and ator from Vermont. The PRESIDING OFFICER. The Sen- repelled with conviction. Mr. LEAHY. Mr. President, I thank ator from Utah. We are tampering with that balance the Senator for being the first person Mr. HATCH. Mr. President, I yield 2 when we now, through filibuster, re- on his side of the aisle to actually read minutes to the distinguished Senator quire a supermajority to confirm a my whole statement. It is obvious I from Texas. Federal court of appeals judge. was speaking of a filibuster by an Mrs. HUTCHISON. Mr. President, President Bush did not get all the anonymous hold. when the Founding Fathers wrote our popular votes or all the electoral votes. I welcome the Vice President to the Constitution, they said that judicial The election was decided in an unprec- Senate today in your capacity as Presi- nominees would be confirmed by the edented manner. But when he was dent of the Senate. It is not often that advice and consent of the Senate. sworn in, he received all the constitu- we see the Vice President in the chair. Clearly that has always been a major- tional powers of the Presidency. His With the meeting of the United Na- ity vote. They specified in the Con- ability to be the Commander in Chief is tions Security Council today and the stitution when a larger vote was nec- not partial. His ability to sign or veto OPEC meeting and the unsettled and essary, such as treaties, which require legislation is not compromised. His threatening circumstances in so many two-thirds. In fact, when the 25th ability to submit judicial nominees to parts of the world, from the Middle amendment to the Constitution was this body for an up-or-down vote, some- East to the Korean peninsula to Iran approved by the Senate in 1965, the thing every President has exercised for and Iraq, the Vice President has chosen Vice President of the United States, if over 200 years, is in no way limited. appointed, would be required to receive Politics has its place, but not to the to be in the Senate this morning. I a majority vote of the House and Sen- extent of stopping a vote on a judge at look forward to seeing him as well if ate for confirmation. So to say that a any and all costs. Let’s discuss the the Senate ever turns its attention to judge should require a supermajority is merits of this nominee, his qualifica- the disastrous economic situation in to amend the Constitution without tions, his judicial temperament, but this country and the loss of more than going through the process. then let us follow the constitutional 2.5 million jobs in the last two years That is what is happening today with process we have followed for two cen- and more than 300,000 last month. Sen- Miguel Estrada. We are being required turies and vote yes or no on advice and ator DASCHLE and the Democratic lead- to muster 60 votes. We know we have 55 consent for the President’s nominee to ership have sought for weeks to pro- because we have had a vote now. We the court of appeals. ceed to debate on S. 414, the Economic have had a cloture vote, and 55 people For my colleagues who have concerns Recovery Act of 2003, which includes in the Senate believe Miguel Estrada about Mr. Estrada’s answers, or if you the First Responders Partnership should be confirmed for the Federal didn’t like the things he didn’t answer, Grant Act, but the Senate Republican bench. And yet he is not confirmed be- vote against him. But give him a vote. majority has blocked debate and ac- cause we have a higher threshold. Let’s follow the Constitution. Let’s not tion. This morning, instead of debating We can’t amend the Constitution change the constitutional standing. the international situation, the need to through a filibuster. We cannot take I yield the floor. pass an economic stimulus package, away the power of the President’s ap- The PRESIDING OFFICER. The Sen- the need for increased commitment to pointments that are given in the Con- ator from Utah. homeland defense, legislation to pro- stitution with a filibuster. This is dif- Mr. HATCH. Mr. President, I yield vide a real prescription drug benefit for ferent from any other filibuster. A fili- the remainder of my time to the distin- seniors or the other matters so deeply buster on an issue is a legitimate tool. guished Senator from South Carolina. concerning Americans, we are return- But a filibuster on a judicial nominee The PRESIDING OFFICER. The Sen- ing in some form to debate a nomina- takes the balance of power and skews ator from South Carolina. tion that we have debated for over a it in favor of the legislature over the Mr. GRAHAM of South Carolina. Mr. month and on which cloture was de- President’s right to have his people ap- President, I am now going to read a feated last week. pointed to the Federal bench. June 18, 1998 statement of the Senator I note that what has impeded a Sen- The Senate needs to look carefully at from Vermont involving Clarence ate vote on the Estrada nomination the precedent being set. It is not right Sundram and other judges who were has been the political game being in a judicial nomination to hold a 60- subject to discussion on that day: played by the White House with this vote threshold when the Constitution If Senators are opposed to any judge, bring nomination as part of its effort to pack clearly says 51. them up and vote against them. But don’t do the Federal courts. The White House The PRESIDING OFFICER. The Sen- an anonymous hold, which diminishes the could have long ago solved this impasse ator’s 2 minutes have expired. credibility and respect of the whole U.S. Sen- by honoring the Senate’s role in the Mr. HATCH. Mr. President, I yield 2 ate. appointment process through providing minutes to the distinguished Senator I have had judicial nominations by both the Senate access to Mr. Estrada’s from Minnesota. Democrats and Republican Presidents that I legal work—just as past administra- The PRESIDING OFFICER. The Sen- intended to oppose. But I fought like mad to tions have provided legal memos in make sure they at least got a chance to be ator from Minnesota. on the floor for a vote. connection with the nominations of Mr. COLEMAN. Mr. President, many I have stated over and over again on this Robert Bork, William Rehnquist, Brad years ago when the Senate was the Su- floor that I would refuse to put an anony- Reynolds, Stephen Trott, and Ben Civi- preme Court’s upstairs neighbor in this mous hold on any judge; that I would object letti and this administration did with a

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3447 nominee to the EPA—and through in- month, the Senate has been denied by democratically elected Democratic structing the nominee to answer ques- the Republican leadership meaningful President was in the White House, col- tions about his views—consistent with debate on the situation in Iraq. I com- umnist George Will, for example, had last year’s Supreme Court opinion by mend Senator BYRD, Senator KENNEDY no complaint about a super-majority or Justice Scalia—and to stop pretending and the other Senators on both sides of 60 votes being needed to get an up or that he has no views. The White House the aisle who have nonetheless sought down vote on legislation or nomina- is using ideology to select its judicial to have the Senate fulfill its constitu- tions proposed by the President. In nominees but trying to prevent the tional role as a forum for debate and fact, reflecting Republican sentiment Senate from knowing the ideology of careful consideration of our Nation’s at the time, what he said in his defense these nominees when it evaluates foreign policy. The decision by the Re- of the Republican filibuster of Presi- them. publican Senate majority to focus on dent Clinton’s proposals, was the fol- Instead, it appears that the Senate controversial nominations rather than lowing: Republican majority, at the direction the international situation or the econ- The Senate is not obligated to jettison one of the White House, chose to extend omy says much about their mistaken of its defining characteristics, permissive- this debate because its political priorities. The Republican majority ness, regarding extended debate, in order to operatives hope to use it to falsely sets the agenda and they schedule the pander to the perception that the presidency is the sun about which all else in American paint those who will not be steam debate, just as they have here this rolled as somehow ‘‘anti-Hispanic.’’ government—even American life—orbits. morning. (Washington Post, April 25, 1993.) The Republican’s approach of crass Many Democratic Senators have al- It apparently did not trouble him or partisanship regarding this nomination ready spoken to the Constitution and other Republicans when they were in disregards the legitimate concerns the Senate’s proper role in the con- raised by many Senators as well as by the Senate minority that the Constitu- firmation process. I recall, in par- tion expressly requires more than a respected, Hispanic elected officials ticular, statements by Senators and Hispanic civil rights leaders. More- simple majority for only a few matters. DASCHLE, REID, BINGAMAN, BOXER, over, the Republican approach and the In fact, Mr. Will wrote: CLINTON, CORZINE, DODD, DORGAN, DUR- President’s approach have been to di- Democracy is trivialized when reduced to BIN, EDWARDS, FEINGOLD, FEINSTEIN, vide: to divide the Senate, to divide the simple majoritarianism—government by HARKIN, JOHNSON, KENNEDY, KOHL, American people and, on this par- adding machine. A mature, nuanced democ- LAUTENBERG, LEVIN, MIKULSKI, SAR- ticular nomination, to divide Hispanics racy makes provision for respecting not BANES and SCHUMER, among many oth- mere numbers but also intensity of feeling. against each other. That is wrong. It is wrong because ers. Of course, that was in 1993 and Presi- What is disconcerting about the re- the President campaigned on a plat- dent Clinton and a Democratic Senate cent debate is what appears to be the form of uniting not dividing. It is majority were being contested by Re- Republican majority’s willingness to wrong because our country needs us to publican filibusters. What is different a sacrifice the constitutional authority build consensus and work together, es- mere 10 years later? Just that the par- of the Senate as a check on the power pecially in these most challenging ties have switched roles and this year of the President in the area of lifetime times. It is wrong because distin- Democrats are in the Senate minority guished Latino leaders, who have spent appointments to our Federal courts. I and a Republican occupies the White their lives seeking justice and greater fear, Mr. President, that the Repub- House. I ask unanimous consent that a representation of Hispanic lawyers as lican majority’s efforts to re-write Sen- recent article by Edward Lazarus that judges, have been attacked by Repub- ate history in order to rubber-stamp critiques Mr. Will’s new position be in- licans for showing courage and honesty this White House’s Federal judicial cluded in the RECORD. in their judgment that this nomination nominees will cause long-term damage As George Will noted in 1993, one of is wanting. Joining the League of to this institution, to our courts, to the key attributes of the Senate is the United Latin American Citizens, which our constitutional form of government, venerable tradition of unlimited de- previously wrote to the Senate disasso- to the rights and protections of the bate. In fact, not until 1917 was there ciating itself with Republican attacks American people and to generations to even a provision in the Senate rules to on Democratic Senators, yesterday the come. I have served in the Senate for 29 allow for cloture, a procedure by which National Council of La Raza issued a years, and until recently I have never the Senate acts to cut off debate. The statement condemning the treatment seen such stridency on the part of an Senate first adopted the cloture rule in of the Congressional Hispanic Caucus executive administration or such will- 1917. At that time, cloture was limited by Republicans. The NCLR statement ingness on the part of a Senate major- to and could only be sought on legisla- notes how ‘‘deeply offended’’ it is by ity to cast aside tradition and upset tive matters. The cloture rule was ex- Mr. Estrada’s supporters calling Con- the balances embedded in our Constitu- tended in 1949 to nominations by gressional Hispanic Caucus members tion so as to expand presidential power. amending it to include measures and ‘‘tyrannical,’’ ‘‘racist,’’ and ‘‘anti- In the time set aside by the Repub- matters, which included judicial nomi- Latino.’’ lican majority for this debate today, I nations. Thus, prior to 1949, disputes This Administration has also shown am glad to have an opportunity to shed over nominations—to the 100 seats in disrespect for the concerns of Senators light on the fiction that cloture votes, the Federal judiciary—were handled in renominating both Judge Charles extended debate, and discussion of the and resolved by Senators behind closed Pickering, despite his ethical lapses, views of nominees are anything new or doors and many judicial nominations and Justice Priscilla Owen, despite her unprecedented. What I do find unprece- were defeated in the Senate by inaction record as a conservative ‘‘activist’’ dented is the depths that the Repub- or the threat of a filibuster. Repub- judge, both of whom were rejected by lican majority and this White House licans resurrected those tactics in the the Senate Judiciary Committee after are willing to go to override the con- years 1995–2001 to defeat more than 50 fair hearings and open debate last year. stitutional division of power over ap- of President Clinton’s judicial nomi- Sending these re-nominations to the pointments and longstanding Senate nees. Senate is unprecedented. No judicial practices and history. It strikes me In essence, until they had a Repub- nominee who has been voted down has that some Republicans seem to think lican President, Republicans inter- ever been re-nominated to the same po- that they are writing on blank slate preted the Advice and Consent Clause sition by any President. The White and that they have been given a blank of the Constitution to allow a handful House in conjunction with the new Re- check to pack the courts. They show a of anonymous Republican Senators to publican majority in the Senate is disturbing penchant for reading our prevent an ‘‘up or down’’ vote by the choosing these battles over nomina- Constitution in isolation from its his- full Senate on scores of qualified judi- tions purposefully. Dividing rather tory and the practices that have en- cial nominees. Now, when Democratic than uniting has become their modus dured for two centuries to suit their Senators have expressed genuine con- operandi. purposes of the moment. cerns about the lack of information re- Among the consequences of this par- A few years ago, when Republicans garding Mr. Estrada and have made a tisan strategy is that for the last were in the Senate minority and a well-founded request to see his

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S3448 CONGRESSIONAL RECORD — SENATE March 11, 2003 writings, Republicans claim it is wrong booty of their piracy, their filibus- cloture, the Senate could still delay a final and unconstitutional for Senators to tering of judicial seats that arose dur- vote on a nomination. A parliamentary rul- act in accordance with Senate rules ing the Clinton Administration while ing to this effect means that, after today, and tradition and their longstanding they prevented votes on that Presi- our cloture rule is further weakened. role as a check and balance on the dent’s qualified nominees. Republicans should not have come to President’s appointment power. For example, a Mexican-American the floor and told the American people It cannot be that only the rules Re- circuit court nominee of President over the last month that Democratic publicans like at the times that they Clinton, Judge Richard Paez, was Senators had done something unprece- like them are the rules that are fol- forced to wait more than 1,500 days to dented in opposing the Estrada nomi- lowed in the Senate, but more and be confirmed, and even after the Re- nation. They themselves did it quite more that seems to be what the Repub- publican filibuster was broken by a clo- recently and have done it repeatedly. lican majority is demanding. They ture vote to end debate, many Repub- Let us be honest about this and should not pretend the rules no longer licans joined an unsuccessful motion to straight with the American people. apply simply because the Republican indefinitely postpone his nomination. Given the time allotted for today’s de- majority finds them inconvenient, but None of the more than 30 Republicans bate, I cannot discuss them all but I that is happening more and more in the who voted against cloture in connec- will include in the RECORD some of the Senate. Regrettably, it has occurred tion with that nomination or who other examples of filibusters of presi- recently in connection with judicial voted in favor of Senator SESSIONS’ un- dential nominations from the nomina- nominees before the Judiciary Com- precedented motion ‘‘to indefinitely tion of Justice Abe Fortas to be Chief mittee, when the Republicans insisted postpone’’ the vote on Judge Paez’s Justice of the United States Supreme on breaching Rule IV, a longstanding nomination, which had been pending Court through the nominations of Ste- rule of our Committee that allows for for more than 1,500 days, should be phen G. Breyer, now Justice Breyer, to extended debate, as well. heard to complain if Democratic Sen- the First Circuit; Rosemary Barkett to What is at stake in judicial nomina- ators seek more information about the 11th Circuit; H. Lee Sarokin to the tions are lifetime appointment for nominations before proceeding to a 3rd Circuit; and Marsha Berzon and judges who will have the power to vote for a lifetime appointment. Richard Paez to the 9th Circuit. change how the Constitution is inter- I also recall that during the closing Even more frequent during the years preted and whether civil rights, envi- moments of that debate Senator SES- from 1995 through 2001, when Repub- ronmental protections, privacy and our SIONS objected that the Vice President licans controlled the Senate majority, fundamental freedoms will be upheld. of the United States was presiding over were Republican efforts to defeat With respect to the Estrada nomina- the Senate in his capacity as the Presi- President Clinton’s judicial nominees tion, what is at stake is a seat on the dent of the Senate. The Senator from through inaction and anonymous holds second highest court in the country Alabama objected that he should not for which no Republican Senator could and the swing vote on that important be allowed to preside. I have not raised be held accountable. Republicans held court. that objection to the Vice President up almost 80 judicial nominees who Most of the decisions issued by the presiding here today but have, instead, were not acted upon during the Con- D.C. Circuit in the nearly 1,400 appeals welcomed the Vice President. This is gress in which President Clinton first filed per year are final because the Su- further demonstration that Democrats nominated them and eventually de- preme Court now takes fewer than 100 have been more moderate and much feated more than 50 judicial nominees cases from all over the country each more cooperative with this Adminis- without a recorded Senate vote of any year. This court has special jurisdic- tration than Republicans were with the kind, just by refusing to proceed with tion over cases involving the rights of prior Democratic Administration. hearings and Committee votes. working Americans as well as the right I will include in my full statement Beyond the question of judicial nomi- to a cleaner environment. This is a for the RECORD the words of the Repub- nees, Republicans also filibustered the court where Federal regulations will be lican Senators who filibustered Presi- nomination of Dr. Henry Foster to be- upheld or overturned, where privacy dent Clinton nominees. Senator Bob come Surgeon General of the United rights will either be retained or lost, Smith, a straight talker from New States. This was an executive branch and where thousands of individuals will Hampshire, outlined the Senate’s his- nominee that Republicans filibustered have their final appeal in matters that tory of filibusters of judicial nominees successfully in spite of two cloture affect their financial future, their and said: votes in 1995. Dr. David Satcher’s sub- sequent nominaton also required clo- health, their lives and their liberty. Don’t pontificate on the floor and tell me This is a court that has vacant seats that somehow I am violating the Constitu- ture but he was successfully confirmed. due to anonymous Republicans block- tion . . . by blocking a judge or filibustering Other executive branch nominees who ing the last two nominees to this court a judge that I don’t think deserves to be on were filibustered by Republicans in- by a Democratic President. Those the court. That is my responsibility. That is cluded Walter Dellinger, whose name nominees had outstanding legal cre- my advise-and-consent role, and I intend to has been invoked with approval by Re- dentials and qualifications but during exercise it. publicans during the debate on the President Clinton’s last term, the Re- Thus, the Republicans’ claim that Estrada nomination. Mr. Dellinger was publican-controlled Senate would not Democrats are taking ‘‘unprecedented’’ nominated to be Assistant Attorney proceed to an up or down vote on either action—much like the bogus White General and two cloture petitions were of them. House claim that our request for Mr. required to be filed and both were re- The word ‘‘filibuster’’ derives from Estrada’s work while paid by taxpayers jected by Republicans. In this case we the Dutch word for piracy, or taking was ‘‘unprecedented’’—is simply un- were able finally to obtain a confirma- property that does not belong to you. true. Republicans’ desire to rewrite tion vote after significant efforts and Under that ordinary definition, it their own history is wrong. They Mr. Dellinger was confirmed to that would be accurate to say that at least should come clean and tell the truth to position with 34 votes against him. He two of the vacancies on the D.C. Cir- the American people about their past was never confirmed to his position as cuit, for which Republicans blocked practices on nominations. They cannot Solicitor General because Republicans qualified nominees, were filibustered, change the plain facts to fit their cur- had made clear their opposition to him. as well. Republicans, who exploited rent argument and purposes. In addition, in 1993, Republicans ob- every procedural rule and practice to Senator HATCH candidly admitted jected to State Department nomina- block scores of Clinton nominees anon- after cloture was invoked on the Paez tions and even the nomination of Janet ymously from ever receiving an up or nomination and Senator SESSIONS Napolitano to serve as the U.S. Attor- down vote, now want to change the made his unprecedented motion to in- ney for Arizona, resulting in cloture rules midstream, to their partisan ad- definitely postpone any vote on that petitions. In 1994, Sam Brown was nom- vantage, again. The whole reason this judicial nomination: inated to be an Ambassador. After President has so many circuit vacan- Indeed, I must confess to being somewhat three cloture petitions were filed, his cies to fill is because this was the baffled that, after a filibuster is cut off by nomination was returned to President

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3449 Clinton without Senate action. Also in mittee cannot be counted upon to fol- mittee filibuster right. . . .’’ In 1997, 1994, Derek Shearer was nominated to low its own rules for handling impor- Chairman HATCH acknowledged: ‘‘Ab- be an Ambassador and it took two clo- tant lifetime appointments to the fed- sent the consent of a minority member ture petitions to get to a vote before he eral judiciary, everyone should be con- of the Committee, a matter may not be was confirmed. In 1994, Ricki Tigert cerned. In violation of the rules that brought to a vote.’’ In that case, in was nominated to chair the FDIC and have governed that Committee’s pro- 1997, Chairman HATCH followed the it took two cloture petitions to get to ceedings since 1979, the Chairman chose rules of the Committee. a vote and confirmation of that execu- to ignore our longstanding Committee Last month the bipartisan tradition tive nomination. Rules and short-circuit Committee and respect for the rights of the minor- So when Republican Senators now consideration of the nominations of ity ended when Chairman HATCH de- talk about the Senate Executive Cal- John Roberts and Deborah Cook. Sen- cided to override the rule rather than endar and presidential nominees, they ator DASCHLE spoke to that matter follow it. He did so expressly and inten- must be reminded that they recently that day. Senator FEINSTEIN, Senator tionally, declaring: ‘‘[Y]ou have no filibustered many, many qualified SCHUMER and Senator DURBIN have also right to continue a filibuster in this nominees. [chart] In addition, some of spoken to the Senate about this breach committee.’’ He decided, unilaterally, us remember Republican unwillingness of our rules as well as a number of to declare the debate over even though to allow a Senate vote on the nomina- other liberties that Republicans have all members of the minority were pre- tion of Bill Lann Lee to serve as the been taking with the rules. pared to continue the debate and it Assistant Attorney General for the The protection for the minority has was, in fact, terminated prematurely. Civil Rights Division at the Depart- been maintained by the Judiciary Com- Senator HATCH completely reversed his ment of Justice. He told the Judiciary mittee for the last 24 years under five own position from the Bill Lann Lee Committee that he would follow the different chairmen—Chairman KEN- nomination and took a step unprece- law and enforce the law. He was the NEDY, Chairman THURMOND, Chairman dented in the history of the Com- choice of the President to serve in that BIDEN, under Chairman HATCH pre- mittee. President’s administration, but Repub- viously and during my tenure as chair- In his recent letter to Senator licans would not accord him an up or man. DASCHLE, Senator HATCH now contends down vote before the United States Rule IV of the Judiciary Committee that he ‘‘does not believe the Com- Senate. provides the minority with a right not mittee filibuster should be allowed and Now let me turn to a most troubling to have debate terminated and not to [he] thinks it is a good and healthy development that demonstrates how be forced to a vote without at least one thing for the Committee to have a rule Republicans are violating longstanding member of the minority agreeing. That that forces a vote.’’ I ask that the ex- Senate rules to suit themselves. Two rule and practice had until last month change of letters between Senator weeks ago in a meeting of the Senate always been observed by the Com- HATCH and the Democratic Leader be Judiciary Committee, the Chairman mittee, even as we have dealt with the included in the RECORD. unilaterally declared the termination most contentious social issues and Our Committee rule, while providing of debate on two controversial circuit nominations that come before the Sen- a mechanism for terminating debate court nominations. Senator DASCHLE ate. and reaching a vote on a matter, does termed it deeply troubling and a ‘‘reck- Until last month, Democratic and so while providing a minimum of pro- less exercise of raw power by a Chair- Republican Chairmen had always acted tection for the minority. It is even that man,’’ and he is right. The Democratic to protect the rights of the Senate mi- minimum protection that Chairman Leader observed that the work of this nority. The rule has been the Commit- HATCH will no longer countenance. It is Senate has for over 200 years operated tee’s equivalent to the Senate’s cloture Senator HATCH who has ‘‘turned Rule 4 on the principle of civil debate, which rule. It had been honored by all five on its head’’ last month, after 24 years includes protection of the minority. Democratic and Republican chairmen, of consistent interpretation and imple- When a Chairman can on his own whim including Senator HATCH until last mentation by five chairmen. Never, be- choose to ignore our rules that protect month. fore his letter to Senator DASCHLE, has the minority, not only is that protec- It was rarely utilized but Rule IV set anyone since the adoption of the rule tion lost, but so is an irreplaceable the ground rules and the backdrop in 1979 ever suggested that its purpose piece of our integrity and credibility. against which rank partisanship was was to be narrowed and redirected to The Democratic Leader noted that required to give way, in the best tradi- thwart ‘‘an obstreperous Chairman who faithful adherence to rule is especially tion of the Senate, to a measure of bi- refuses to allow a vote on an item on important for the Senate and for its partisanship in order to make progress. the Agenda.’’ After all, as Senator Judiciary Committee. He noted ‘‘how That is the other important function of HATCH recognizes in his letter, it is the ironic that in the Judiciary Com- the rule. chairman’s prerogative to set the agen- mittee, a Committee which passes Besides protecting minority rights, it da for the mark-up. judgment on those who will interpret enforced a certain level of cooperation This revisionist reading of the rule is the rule of law,’’ that it acted in con- between the majority and minority in not justified by its adoption or its prior scious disregard of the rules that were order to get anything accomplished. use and appears to be nothing other established to apply to its proceedings. That, too, has been lost as the level of than an after the fact attempt to jus- If this is what those who pontificate partisanship on the Judiciary Com- tify the obvious breaches of the long- about ‘‘strict construction’’ mean by mittee and within the Senate reached a standing Committee rule and practice that term, it translates to winning by new low when Republicans chose to that occurred last month. It was not any means necessary. If this is how the override our governing rules of conduct even articulated contemporaneously at judges of the judicial nominees act, and proceed as if the Senate Judiciary the business meeting. how can we expect the nominees they Committee were a minor committee of The Committee and the Senate have support as ‘‘strict constructionists’’ to the House of Representatives. crossed a threshold of partisan over- behave any better? Given this action in In fact, the only occasion I recall reaching that should never have been disrespect of the rights of the minor- when Senator HATCH was previously crossed. I urge the Republican leader- ity, how can we expect the Judiciary faced with implementing Committee ship to recommit the nominations of Committee to place individuals on the Rule IV, he did so. In 1997, Democrats Deborah Cook and John Roberts to the bench that respect the rule of law? In on the Committee were seeking a Sen- Judiciary Committee so that they can my 29 years in the Senate and in my ate floor vote on President Clinton’s be considered in accordance with the reading of Senate history, I cannot nomination of Bill Lann Lee to be the Committee’s rules. The action taken think of so clear a violation of Sen- Assistant Attorney General for Civil last month should be vitiated and order ators’ rights. Rights at the Department of Justice. restored to the Senate and to the Judi- I am gravely concerned about this Then, Senator HATCH acknowledged: ciary Committee. I urge the Judiciary abuse of power and breach of our Com- ‘‘Rule IV of the Judiciary Committee Committee and the Senate to rethink mittee rules. When the Judiciary Com- rules effectively establishes a com- the misstep taken last month and urge

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Last week the Throughout our history the Senate in that process is the restoration of mi- distinguished minority leader said that has had one consistent answer to the nority rights under Rule IV and rec- Mr. Estrada is too conservative and question of what ‘‘advice and consent’’ ognition of minority rights thereunder. that he opposes his confirmation. How meant for lower court judicial nomi- During the last four years of the could the minority leader possibly have nees. That settled, bipartisan constitu- Clinton Administration, his entire sec- reached that conclusion if the record is tional understanding of ‘‘advice and ond term in office after being reelected so bare? How could he have reached consent’’ was that only a majority vote by the American people, the Judiciary any conclusion? The answer is obvious: is required. Now, a determined minor- Committee refused to hold hearings Mr. Estrada’s record is more than ity is determined to change the mean- and Committee votes on his qualified ample for Senators to explore. Just as ing of those words. And that is indeed nominees to the D.C. Circuit and the over 51 Senators have reviewed the a ‘‘constitutional revolution,’’ just as Sixth Circuit. Last month, in sharp record to their satisfaction and con- Senator SPECTER has said. contrast, this Committee was required cluded that Mr. Estrada is qualified Let’s turn to the Constitution. I to proceed on two controversial nomi- and should be confirmed, so must Sen- know some of my Republican col- nations to those circuit courts in con- ator DASCHLE have reviewed the record leagues have argued that the Constitu- travention of the rules and practices of and concluded that he should not be tion mandates ‘‘advice and consent’’ by the Committee. This can only be seen confirmed. He did not need more infor- a simple majority vote. They may be as part of a concerted and partisan ef- mation. right. As has been said, the Constitu- fort to pack the courts and tilt them So, why are we still here? Why is tion contains seven provisions calling sharply out of balance. does this debate continue? Let us put for a supermajority from the legisla- In circumstances such as these, when aside these arguments about sup- ture: overriding a veto, convicting on the rights of the minority are being posedly unanswered questions and dis- impeachment, expelling members of violated and Senate rules and long- closure of confidential memoranda, and the House or Senate, ratifying treaties, standing practices are breached, the let’s focus on what this is really about: proposing constitutional amendments, minority is left with very few options power. An unprecedented power-play establishing Presidential incapacity, and very little choice in how it must by a partisan minority to re-define our and during the Civil War era, removing proceed. This President has been the constitutional ‘‘advice and consent’’ the disabilities of rebellious office- most aggressive and unilateral I have obligation at least for circuit court ju- holders. But the Constitution is silent seen in my 29 years in the Senate in his dicial nominees. This filibuster is as to ‘‘advice and consent.’’ The U.S. nominations. The Republican majority about changing the rules of the game Supreme Court has observed that a is now choosing to abet his efforts at forever. simple majority is the background rule the expense of the Senate minority’s For 214 years, the Senate has inter- in legislatures. It is therefore under- rights and the constitutional role of preted ‘‘advice and consent’’ to require standable that many have concluded the Senate. That is all most regret- majority approval for any judicial that ‘‘advice and consent’’ mandates a table. nominee who reaches the Senate floor. simple majority for confirmation. Cer- I yield back my time. But if filibustering Democrats prevail Mr. KYL. Mr. President, in order to tainly as a democratically-elected body here, that rule will forever be changed. understand the constitutional problem we should always have a strong pre- No longer will the ‘‘advice and con- we face with the filibuster of Miguel sumption in favor of rule by simple ma- sent’’ clause mean majority rule. In- Estrada, it is important for the Senate jority. Only when an alternative super- and the public to focus on what is real- stead, it will mean 60 votes. majority rule is clear should we depart Now, my filibustering colleagues may ly going on here. from that democratic tradition. This filibuster is not a dispute about say, ‘‘well, no—we’re not trying to I also appreciate the argument that a Mr. Estrada’s answers to questions. If change the standard; we just want filibuster in this context is different it were about unanswered questions more information.’’ The time for dodg- than a filibuster on legislation because then more than two Democrats would ing the essence of this constitutional the appointment and confirmation of have taken up the White House’s offer moment has passed. There can no judges is a shared responsibility we to pose new written questions to Mr. longer be any question that the true have with the President. Respect and Estrada or to meet with him privately goal of this filibuster is to defeat Mr. comity demand that we give proper and ask them in person. But they did Estrada’s nomination by preventing a deference to presidential prerogatives. not, and it is now clear that the re- vote, to change the standard from a I certainly agree that filibustering a peated refusal even to ask questions simple majority to a 60-vote require- presidential judicial nominee endan- has exposed the emptiness of that argu- ment. gers the traditional respect between ment. I hope we hear no more of it. A month ago the Senior Senator the branches of Government, and that This filibuster also is not a dispute from Pennsylvania called this power- as Senators we have a responsibility to about confidential documents from the play a ‘‘constitutional revolution,’’ and protect the relationship between the Solicitor General’s office. Our filibus- it saddens me to say that I must agree. branches both for present and future tering colleagues must know that for A key part of our Constitution is its or- Senators and Presidents. the administration to comply with this dering of power between the different So it might be the case that the con- demand is to undermine the effective- branches and parts of Government. Our stitutional text and structure mandate ness of the Department of Justice and Constitution is written, but we rely a simple majority, but I must say that its ability to defend the American peo- upon more than just the written word I am not 100 percent convinced. It is ple’s interests in court. They must to understand its meaning. We rely possible that the Constitution’s silence know that the President will not jeop- upon the considered opinions of those on this question was exactly that: si- ardize the people’s interests and that who are charged with its interpreta- lence. And it is possible that by re- these confidential documents cannot tion. In most cases, that is the Su- maining silent, the Founding Fathers be disclosed. So this document request preme Court and the inferior courts intended to leave the question open for is an unserious demand made precisely that Congress establishes. But the Su- its own interpretation. I think we because the administration will not preme Court is not the only body should allow for that possibility. But comply—just as four former Democrat charged with interpreting the Con- my skepticism does not change my Solicitors General have advised. No, stitution, because some areas of the conclusion, which is that we should this dispute is not about confidential Constitution are not subject to conven- apply a simple-majority requirement memos. tional judicial review. One of those for confirmations. The fact is that there is plenty of in- areas is the ‘‘advice and consent’’ obli- Why do I reach this conclusion? Be- formation available—more than gation of Congress. To understand that cause the weight and precedent of the

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3451 Senate’s longstanding constitutional where so much is based upon tradition, What is happening here is dramati- interpretation of its own ‘‘advice and sometimes tradition is all we have to cally different. Here, a minority—not a consent’’ obligation compels it. Thus, enforce constitutional norms. We rely simple majority, and certainly not a even if the question was open in 1789, upon our colleagues to say, as Senator supermajority—seeks to change a set- we have 214 years of experience and LEAHY said, that they will fight on tled constitutional rule and overturn tradition to tell us what the right in- principle against the abuse of process 214 years of the Senate’s constitutional terpretation was. And the right inter- regardless of whose particular ox is interpretation. I submit that this fun- pretation is that the same interpreta- being gored. That is why I voted for damental change to our constitutional tion that bipartisan majorities of the cloture on the Paez nomination, and understanding of the ‘‘advice and con- Senate have forever believed—that against confirmation. I refused to sent’’ power must not be allowed to only a simple majority is required to upset 214 years of settled constitu- take effect. And it certainly should not confirm a lower court nominee. tional interpretation and change our be undertaken by a minority of Sen- The most obvious evidence of this constitutional norms forever. I was un- ators for short-term gain. To do so tradition is the history itself. No lower willing to risk the damage to the Sen- jeopardizes not only the Senate’s rela- court nominee has ever been rejected ate and to the nominations process tionship with the President, who has due to a heightened, 60-vote require- that would result. the constitutional obligation to make ment. To be sure, some Senators have Let there be no mistake about it: If a judicial nominations, and the Judici- contemplated this change before. Over minority of Senators are able to force ary, which is understaffed and in des- 30 Democrats tried to filibuster J. a change to our 214-year-old constitu- perate need for a fair process con- Harvie Wilkinson in 1984, Sidney tional tradition, we do great damage to sistent with our longstanding constitu- Fitzwater in 1986, and Edward Carnes this body and to the process by which tional norms. It jeopardizes the respect in 1992. A much smaller group of my judges are nominated and confirmed. that future Senates will give to our fellow Republicans tried to filibuster And those changes will be permanent. traditional constitutional norms. And Marsha Berzon and Richard Paez in Now, I am a conservative, and I natu- it calls into question whether the Sen- 2000. So the issue has been raised be- rally resist unnecessary tinkering with ate can be trusted with its stewardship fore, although never in such a dramatic our constitutional system. But I also over those norms in the future. Will and pointed fashion as it is today. understand that constitutional changes the Supreme Court ultimately become Let me address for a moment the do happen, and that they are not al- involved in Senate affairs? I certainly unique case of Abe Fortas. In 1968, Jus- ways bad. I am an original sponsor of a hope not, but I have less confidence tice Abe Fortas was nominated for the constitutional amendment, S. 1, in this today than I did a month ago that no Chief Justice position. Opposition was very Congress. But we have an amend- court would involve itself in these mat- roughly divided between the political ment process for changes to the Con- ters. And that is a day I do not want to parties, based significantly upon al- stitution. We require 2/3 of each House see. leged improper financial dealings and of Congress, and then 3⁄4 of the States. So, as I said, this is not about need- other ethical issues that eventually We have a process, and our constitu- ing more information. The distin- drove him to resign under threat of im- tional stability depends on respecting guished minority leader made that peachment. Unlike the case at hand, that process. clear last week. Senator DASCHLE has there is no record in that case of a Sen- This constitutional issue is unique, enough information. He opposes the ate majority willing to confirm Mr. because the issue is probably not jus- nominee. This is about power—the Fortas. The single cloture vote failed ticiable. I do know that a few profes- power of the minority to change 214 45–43. So it cannot be said that the will sors have concluded that a judicial years of constitutional norms and in- of the majority was thwarted, because nominee in Mr. Estrada’s shoes may terpretation. I urge my filibustering no majority appears to have existed to have standing to challenge a filibuster, colleagues on the other side of the aisle confirm that nomination. The Presi- but the last thing we want is for a to step back, look at the history, and dent withdrew the nomination before court to get involved. This is a Senate ask themselves whether they truly be- we ever found out the answer to that matter. And as a Senate matter, all we lieve that it should take 60 votes to question. So unlike in the present case, have is our wisdom and respect for a confirm a judge. And, equally impor- the majority was not thwarted by fili- 214-year tradition to guide us. Can tra- tant, whether they believe that a mi- buster. ditions change? Of course they can. We But returning to the more recent his- should be very wary of upsetting set- nority of Senators should be able to tory, it is important to point out that tled traditions because for the most wash away the Senate’s longstanding in every one of those cases, however, part, traditions exist for a reason, but traditional understanding of its advice cooler heads prevailed. The Senate we should always be open to improve- and consent obligations. I submit that stepped back from that precipice and ment. our obligation to the Constitution and said ‘‘No, this we will not do. We will However, if we are going to upset 214 to the institution of the Senate de- not filibuster judicial nominees.’’ Sen- years of constitutional interpretation mands more than what we are seeing ators such as the ranking member of and institutional tradition, shouldn’t today. the Judiciary Committee, Senator we require something more than the Mr. HATCH. Mr. President, I rise in LEAHY, were so opposed in principle to intransigence of 44 Senators who won’t response to my colleagues’ assertions such a constitutional change that he even admit that they are trying to about the Senate’s role in the judicial declared that he would ‘‘object and change the constitutional rule? The confirmation process. I am compelled fight against any filibuster on a judge, Founding Fathers recognized that by their statement to provide a more whether it is somebody I opposed or when we change constitutional rules, complete record on the origins of the supported.’’ The Washington Post re- we should do so based on supermajority Senate’s constitutional obligation to ports that in 1991 during the Clarence votes, not minorities’ refusals to votes. provide advice and consent on judicial Thomas nomination battle, Senator As I said a moment ago, when we nominees. LEAHY declared himself ‘‘totally op- amend the Constitution, it takes two- The constitutional duty of the Presi- posed’’ to a filibuster, even as abortion thirds of both Houses of Congress. Then dent to nominate and appoint, and the activists urged such a step. And in 2000 if it passes, it cannot be enacted until intervening duty of the Senate to pro- a clear majority of Republicans joined three-quarters of the States support it. vide advice and consent, is set forth in with Democrats and invoked cloture on That is not minority rule, but super- Article II, Section 2: the Berzon and Paez nominations. majority rule. I might add that even This is our tradition. We do not block when the Supreme Court changes its The President . . . shall nominate, and by judicial nominees by filibuster. This constitutional interpretations through and with the Advice and Consent of the Sen- ate, shall appoint . . . Judges of the Supreme isn’t a Republican constitutional inter- its decisions, they have to act by ma- Court, and all other Officers of the United pretation. It isn’t a Democrat constitu- jority vote or new law is not created. States, whose Appointments are not herein tional interpretation. It is the Senate’s Without a majority, there is no change otherwise provided for, and which shall be interpretation. And in the Senate, to the constitutional rule. established by Law.

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S3452 CONGRESSIONAL RECORD — SENATE March 11, 2003 Some of my Democratic colleagues resolution of the respective roles of the Contrary to the charges we have been have argued that the record of the de- President and the Senate are found in hearing over the last few days, I be- bate of the Constitutional Convention the language of the Constitution, lieve this filibuster is precisely what leads to the conclusion that the Senate which in Article II vests the nomina- the Founders of this Nation had in plays the central role in this process. tion and appointment powers in the mind when they created a three- This assertion is based on the Conven- President. branched system of government with tion’s initial—and, I should add, tem- As Alexander Hamilton explained in checks, balances, advice and consent. porary—adoption of proposals that a The Federalist No. 66: This filibuster is not about pre- national judiciary be established to be It will be the Office of the President venting a conservative nominee from chosen by the national legislature, and to nominate, and, with the advice and getting onto the court. Rather, this fil- its concurrent rejection of proposals consent of the Senate, to appoint. ibuster is about a failure of this admin- that the President be given the sole There will, of course, be no exertion of istration to adequately seek the advice power to appoint judges. My colleagues choice on the part of the Senate. They and participation of the U.S. Senate in suggest that only in the final days of may defeat one choice of the Execu- the judicial nominations process, par- the Convention was the President tive, and oblige him to make another; ticularly with regard to this nominee. given a role—the power to nominate but they cannot themselves choose I have spoken several times about judges—and that somehow this time they can only ratify or reject the Mr. Estrada specifically, and each time line of events signals a more central choice he—may have made. I have been clear, as have my col- role for the Senate than the actual text The distinguished Assistant Demo- leagues—this is a nominee about whom of the Constitution suggests. cratic Leader referred to The Fed- we know very, very little, and he and It is first important to note that, eralist No. 76, wherein Alexander Ham- this administration have simply not contrary to the impression that my ilton discussed the appointing power of done enough to give us the kind of in- colleague from Massachusetts may the Executive. Hamilton stated ‘‘To formation we need to properly perform have left, the record of the Convention what purpose then require the co-oper- our constitutional duty of advice and indicates that the discussion of the es- ation of the Senate? I answer, that the consent. Because we are prevented tablishment of the judiciary was lim- necessity of their concurrence would from performing this constitutional ited to only a few actual days. During have a powerful, though, in general, a duty, we have been forced to resort to that time there were, indisputably, silent operation. It would be an excel- a procedure, well within the Senate competing views as to how the judici- lent check upon a spirit of favoritism rules and by no means unprecedented, ary should be established—by the Exec- in the President, and would tend great- to enforce those rights. utive or by the legislature. But a care- ly to prevent the appointment of unfit The filibuster is one of the key de- ful review of the notes of the Constitu- characters from State prejudice, from vices throughout our nation’s history tional Convention leads to the conclu- family connection, from personal at- that has protected the right of the mi- sion that the Framers bestowed on the tachment, or from a view to popu- nority party, or even of one Senator. President the paramount role in ap- larity. In addition to this, it would be Without a filibuster right on nomina- an efficacious source of stability in the pointing judges. tions, there might never be advice and There was significant opposition to administration.’’ This passage indi- consent at all. And that would turn the the proposals to place the appointment cates the Founders’ understanding of a Constitution on its head. power exclusively in the Senate. For limited role for the legislature in the My colleagues on the other side of example, according to the notes from confirmation process. That role is for the aisle have attempted to make the Convention for July 18, 1787, a dele- the Senate to act as a check on im- much of the fact that the Constitution gate from Massachusetts, Nathaniel proper appointments resulting from fa- does not provide for a ‘‘super-major- Ghorum, suggested ‘‘that the Judges be voritism or unfit character by the ity’’ vote on nominations, unlike con- President. appointed by the Executive with the stitutional amendments or treaties. The treatment of Mr. Estrada by the advice & consent of the 2d. branch, in This is true—the Constitution is silent Senate is far different from the advice on the issue of how many votes a nomi- the mode prescribed by the constitu- and consent role contemplated by the tion of Masts. This mode had been long Framers. A vocal minority of Senators nation should take. But the Constitution is equally silent practiced in that country, & was found is blocking the majority, which stands about how many votes it would take to to answer perfectly well.’’ James Wil- ready to vote on his nomination. This proceed to other measures as well—a son, one of the leading figures at the is tyranny of the minority and it is un- patient’s bill of rights, for example. Or Convention, made a motion ‘‘that the fair to all—to the Senate, to the Presi- a ban on human cloning. Or the assault Judges be appointed by the Executive.’’ dent, to the nominee, and to the Judi- Mr. WILSON later wrote, ‘‘Instead of ciary. weapons ban. Or education bills. Or controlling the President still farther Mr. President, I call upon my col- even major civil rights legislation. Yet with regard to appointments, I am for leagues who are denying an up or down nobody argues that it would be uncon- leaving the appointment of all the vote on the nomination of Mr. Estrada stitutional for one or more Senators to principal officers under the Federal to let the Senate work its will. The filibuster these bills. Unwise, perhaps. Government solely to the Presi- President has done his duty in nomi- Subject to public outcry, maybe. A le- dent. . . .’’ nating Mr. Estrada. It is now our duty gitimate subject of reasoned debate, Thus the debate progressed over ex- to consent or to withhold consent by absolutely. But unconstitutional? No. clusive appointment by the legislature an up or down vote. Let’s end the de- Now let me address the issue of versus exclusive appointment by the bate on this nomination and proceed to whether this filibuster is ‘‘unprece- President. James Madison sought a that vote. dented,’’ as some have charged. If we compromise when he suggested the Thank you, Mr. President. I yield the look at the facts, we soon see that the power of appointment be given to the floor. only really unprecedented aspect of President with the concurrence of 1/3 of Mrs. FEINSTEIN. Mr. President, I this filibuster may be its success. Many the Senate. This is an interesting sug- rise to speak about charges that the have tried, but few have succeeded. gestion, given that we now face a vir- ongoing filibuster against Miguel And this may be a good indication of tual veto by a minority. Madison’s pro- Estrada is somehow unconstitutional, how strongly we feel about enforcing posed compromise has been turned on as some have claimed. our constitutional role of advice and its head. Rather than a supermajority I take this job very seriously, and it consent to this and other nominations to disapprove the President’s nominee, is not often that I support preventing now before us. this Senate is demanding a super- an up or down vote on any issue. In The majority now argues that any majority for approval. fact, this is the only time I have ever filibuster of a judicial nominee is un- Some of my colleagues on the other supported a filibuster against a judicial constitutional because it essentially side of the aisle seem to want to con- nominee, and I do so for very specific establishes a new, 60-vote threshold for tinue the debate of the Constitutional reasons, as do so many of my Demo- judicial nominees. But this 60-vote Convention. That debate is over. The cratic colleagues. threshold has long been in place for

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY March 11, 2003 CONGRESSIONAL RECORD — SENATE S3453 controversial nominees facing objec- on. In fact, dozens of Clinton nominees United States here today, and I appre- tions from one or more Senators. were blocked in committee by anony- ciate the gravity of this debate. Again, the only real difference be- mous holds or other obstructionist tac- But I urge the Republican leader and tween the situation with Miguel tics, so there was no need for a fili- my colleagues to move beyond this de- Estrada and the situations where clo- buster on the floor. bate so we can resolve these other, ture votes were required on other It is most surprising to hear these very important issues. nominees is that here, today, there are charges of unconstitutionality from The PRESIDING OFFICER. The Sen- not enough votes to meet that 60-vote the other side of the aisle, given that ate majority leader. threshold. many of my Republican colleagues ac- Mr. FRIST. Mr. President, I appre- The procedure is the same—a cloture tually participated in filibusters ciate the consideration of both sides of vote. against Clinton nominees. the aisle. We extended the debate for The debate is the same—over a nomi- Richard Paez, for example, was one of an additional 20 minutes. Normally we nation to the federal judiciary. President Clinton’s Hispanic nominees would have completed at 12:30. I think Only the outcome is different, and I to the circuit court, and he could not that represents the fact that the de- don’t see how the outcome can deter- move on the floor until a cloture peti- bate has been valuable, informative, mine the constitutionality of the proc- tion was filed. When the vote finally and I do appreciate so many Members ess. came to end the filibuster, the major- on both sides of the aisle coming for- Let me list some other filibusters ity of the Senate voted to do so and ward and speaking during this period of and cloture votes throughout recent Richard Paez is now a federal judge. time where my objective, as I said 2 history. But many of my Republican col- hours ago, was to elevate the debate In 1968, Abe Fortas was actually pre- leagues voted to continue that fili- and talk about advice and consent as vented from becoming Chief Justice of buster, just three short years ago. In- spelled out in the Constitution. the Supreme Court by filibuster. The deed, almost exactly three years ago, Much of what we have heard about is other side may argue that this was a on March 8, 2000, fourteen Republican larger than any single nominee, even bipartisan filibuster, and they are Senators voted to continue the fili- one as distinguished and compelling as right—but this is not the point. The buster against Richard Paez, including Miguel Estrada. I think most of us point is, a filibuster was used as a tool, some of those who now argue that fili- would agree that the process of advise and the nomination failed. busters themselves are unconstitu- and consent has gone awry. I suspect In 1980, Stephen Breyer had to go tional. most of us will probably have different through two cloture motions to obtain And when the cloture vote came on viewpoints on why that has happened, a seat on the First Circuit—to debate, that same day for Marsha Berzon, an- why it has evolved to the point where we are today. I respect those differing Miguel Estrada has only had one clo- other Clinton nominee who waited views. ture vote. years for a hearing and up or down One thing is clear to me—the system In 1994, a cloture vote finally stopped vote, thirteen Republican Senators is not working well, it is broken, and a filibuster against Rosemary Barkett, voted to continue that filibuster as that is a disheartening thought on my a nominee to the 11th Circuit. well. How can these Senators now argue part. But to America it is an unfortu- In 1994, H. Lee Sarokin’s nomination that this filibuster is unconstitutional? nate truth. I think it is coming to the to the Third Circuit required a cloture Is it only unconstitutional when Demo- time we need to stop blaming each vote before it could proceed. crats filibuster a nominee, but con- other and find a way to fix the system In 2000, the nominations of both Mar- stitutional for Republicans to do the itself. With 17 unanimous consent re- sha Berzon and Richard Paez to the same? Is it only unconstitutional if the quests, 100 hours of debate, still the Ninth Circuit Court of Appeals—nomi- filibuster succeeds? nominee being subjected to a filibuster, nations which had been stopped dead in The fact is, this filibuster is very where we don’t see an end in sight, an their tracks literally for years by that constitutional, and in fact it may even up-or-down vote, I conclude the system time—underwent cloture votes. Rich- be necessary to enforce the constitu- is not working. ard Paez had waited for more than 1,500 tion’s other provisions, such as the ad- As has been pointed out, filibusters days before he was given that cloture vice and consent power granted to the on executive nominations—until now, vote. U.S. Senate. recently—has been exceedingly rare. As To be perfectly frank, hearing these I do not relish where we find our- leader, that strikes me as a good thing. charges from the other side of the aisle selves today, nor do any of my col- But it seems to be changing, and that is surprising given how many other leagues—on either side of the aisle. is why it is important for us to care- Clinton nominees were stopped cold by We stand poised to enter a war fully examine advise and consent as secret holds and other parliamentary against Iraq, and under the constant spelled out in the Constitution and our tactics, both in committee and on the threat of international terrorism. Our interpretation of that. floor. budgets are running at record deficits, I do want to make a proposal for the For instance, Elena Kagan was a the economy is still in trouble, and we other side of the aisle and I ask the as- Clinton nominee to the D.C. Circuit recently reorganized our entire home- sistant minority leader to think about Court of Appeals—the same circuit to land security apparatus. All of these it. The proposal is not in the form of a which Miguel Estrada is now nomi- issues require the attention in this unanimous consent request at this nated. In fact, Ms. Kagan was Miguel body. point but possibly after lunch today. Estrada’s supervising editor on the The nominations debate is clearly The proposal recognizes the context in Harvard law review, yet Republicans very important to the future of our ju- which we find ourselves. It may be pos- stopped her nomination cold without diciary and to the rule of law for dec- sible in the near future that we will even getting to the point of a fili- ades to come, and there is no question have a military conflict, although I buster, or a public accounting of who that this issue should not, can not, and hope and pray that is not the case. But was for, and who was against, that will not, be ignored. we need to begin later this week, and nominee. But we should be concentrating our aggressively next week, addressing the Elena Kagan was never filibustered efforts, and our limited resources in issue surrounding the Federal budget. on the floor, but she was effectively terms of time, staff and attention, on We want to focus on the economy and ‘‘filibustered’’ in committee by one or these other important issues as well. get it moving again. We have Medicare two Senators who prevented a hearing It is clear now that Miguel Estrada and prescription drugs, which we must or a committee vote. will not become a federal judge unless address. We have a lot to do. The pro- Other nominees to the circuit courts our requests are met. Any further de- posal that I will make—and I would who were denied hearings or committee bate on this nominee is really a dis- like for the other side of the aisle to votes include Helene White for the traction from the many other impor- consider this—to the chairman and Sixth Circuit, Jorge Rangel for the tant issues we should address. ranking member is that arrangements Fifth Circuit, Bonnie Campbell for the I appreciate the attendance of the will be made for Miguel Estrada to ap- Eighth Circuit, and the list goes on and distinguished Vice President of the pear again before the Senate Judiciary

VerDate Mar 15 2010 21:20 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\2003SENATE\S11MR3.REC S11MR3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S3454 CONGRESSIONAL RECORD — SENATE March 11, 2003 Committee in exchange for a date cer- Thereupon, the Senate, at 12:56 p.m., to Mr. Roberts at this time until there tain for an up-or-down vote on his recessed until 2:15 p.m. and reassem- is another hearing in the Judiciary nomination. bled when called to order by the Pre- Committee. The second hearing is something we siding Officer (Mr. VOINOVICH). The PRESIDING OFFICER. Objec- had not believed was appropriate, but I tion is heard. f want to show both sides of the aisle Mr. FRIST. Mr. President, as in exec- that we are trying to reach out to do LEGISLATIVE SESSION utive session, I ask unanimous consent everything possible to go that extra that with respect to Calendar No. 35, mile and try to get an answer that John Roberts, to be a U.S. circuit judge works. PARTIAL-BIRTH ABORTION BAN for the DC Circuit, there be 4 hours for This is not a formal unanimous con- ACT OF 2003—Continued debate equally divided between the sent request at this time, but I do want The PRESIDING OFFICER. Under chairman and ranking member, or to offer that opportunity. Again, it the previous order, the Senate will now their designees, and that following the would be in exchange for a vote, up or return to legislative session and con- conclusion of that time, the Senate down, at a time certain—to actually tinue consideration of S. 3, which the proceed to a vote on the confirmation of the nomination, with no intervening have another formal Judiciary Com- clerk will report. mittee hearing with Miguel Estrada. It action or debate. The assistant legislative clerk read is my hope the other side of the aisle Mr. REID. Objection. as follows: will decide it is time to conclude the The PRESIDING OFFICER. Objec- debate and that we can focus on the A bill (S. 3) to prohibit the procedure com- tion is heard. monly known as partial-birth abortion. challenges that lie ahead. Mr. FRIST. Mr. President, as in exec- Mr. REID. Will the leader allow me Mr. REID. I suggest the absence of a utive session, I ask unanimous consent to respond? Otherwise, I will use leader quorum. that with respect to Calendar No. 36, time. The PRESIDING OFFICER. The Jay S. Bybee, to be a U.S. circuit judge Mr. FRIST. Yes. clerk will call the roll. for the Ninth Circuit, there be 4 hours Mr. REID. I appreciate that since The assistant legislative clerk pro- for debate equally divided between the being chosen majority leader the Sen- ceeded to call the roll. chairman and ranking member, or ator from Tennessee has gone out of Mr. FRIST. Mr. President, I ask their designees, and that following the his way to make sure we have ample unanimous consent that the order for conclusion of that time, the Senate debate. He has used the cloture motion the quorum call be rescinded. proceed to a vote on the confirmation rarely, and we appreciate that very The PRESIDING OFFICER. Without of the nomination, with no intervening much. But I say, regarding the Estrada objection, it is so ordered. action or debate. The PRESIDING OFFICER. Is there matter, we have been very consistent f in our requests. No. 1 is that he answer objection? questions. The Senator said he would UNANIMOUS CONSENT REQUEST— Mr. REID. Reserving the right to ob- try to satisfy that. But until he sup- EXECUTIVE CALENDAR NOS. 32, ject, Mr. President, Senator BIDEN had plies the memoranda from the Solici- 34, 35, 36 AND 55 an objection to this proposed judge. We heard from his staff earlier today that tor’s office, it is not going to change Mr. FRIST. Mr. President, as in exec- probably has been resolved, but we will the position of the people on this side utive session, I ask unanimous consent not know that until they check with of the aisle. So if he makes the unani- that with respect to Calendar No. 32, Senator BIDEN who, as my colleague mous consent request, we will simply Jeffrey Sutton, to be a U.S. circuit renew our unanimous consent request, knows, is indisposed having had sur- judge for the Sixth Circuit, there be 4 gery. We will get back later, hopefully as we have done on other occasions. hours for debate equally divided be- Mr. FRIST. Mr. President, I yield the today. Therefore, I object. tween the chairman and the ranking The PRESIDING OFFICER. Objec- floor. member, or their designees, and that Mr. LEAHY. Mr. President, would the tion is heard. following the conclusion of that time, Mr. FRIST. Mr. President, there are distinguished majority leader take a the Senate proceed to a vote on the moment just to make a quick observa- five individuals who are on the Execu- confirmation of the nomination, with tive Calendar. This is the last of the tion? no intervening action or debate. Mr. FRIST. Mr. President, I will five. I will ask unanimous consent for The PRESIDING OFFICER. Is there yield for 1 minute, and then we will go him, as well, but clearly we want to objection? to lunch. move ahead as much as possible and Mr. LEAHY. Mr. President, I appre- Mr. REID. Reserving the right to ob- want to continue to work with the ciate very much the distinguished ma- ject, Mr. President, on the circuit other side. We do want to reach out jority leader trying to figure out a way court judges, we have a couple circuit once again. These unanimous consent to get through this impasse. It is in the court judges on which we believe we requests are a part of our efforts to tradition of majority leaders, and I can work out an agreement. Jeffrey reach out and advance the process. I have served with every majority leader Sutton is not one of them. So I object. hope we can resolve this shortly. since the time of Mike Mansfield. Ma- The PRESIDING OFFICER. Objec- Mr. President, as in executive ses- jority leaders try to work these mat- tion is heard. sion, I ask unanimous consent that ters out, and I appreciate that. Mr. FRIST. Mr. President, as in exec- with respect to Calendar No. 55, Tim- I urge him, in doing so, to look at the utive session, I ask unanimous consent othy Tymkovich, to be a U.S. circuit fact that Miguel Estrada has said he is that with respect to Calendar No. 34, judge for the Tenth Circuit, there be 4 willing to discuss his papers and find a Deborah Cook, to be a U.S. circuit hours for debate equally divided be- way that that could be done. I think judge for the Sixth Circuit, there be 4 tween the chairman and ranking mem- his suggestion of a hearing where ques- hours for debate equally divided be- ber, or their designees, and that fol- tions would be asked based on that tween the chairman and ranking mem- lowing the conclusion of that time, the would be very workable. But I com- ber, or their designees, and that fol- Senate proceed to a vote on the con- mend the distinguished majority leader lowing the conclusion of that time, the firmation of the nomination, with no for doing what is the tradition of lead- Senate proceed to a vote on the con- intervening action or debate. ers—to try to find a way through this. firmation of the nomination, without The PRESIDING OFFICER. Is there Mr. FRIST. Thank you, Mr. Presi- intervening action or debate. objection? dent. The PRESIDING OFFICER. Is there Mr. REID. Reserving the right to ob- f objection? ject, Mr. President, I have spoken to Mr. REID. Reserving the right to ob- the leader and to the ranking member RECESS ject, this woman, along with Mr. Rob- of the Judiciary Committee on the The PRESIDING OFFICER. The hour erts, is part of those nominations we other judges. I have not spoken to ei- of 12:30 p.m. having arrived and passed, believe were improperly reported out of ther of them about this man. For that the Senate is adjourned. the committee. So I object to her and reason, I object.

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