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

Vol. 149 WASHINGTON, MONDAY, FEBRUARY 10, 2003 No. 24 House of Representatives The House was not in session today. Its next meeting will be held on Tuesday, February 11, 2003, at 12:30 p.m. Senate MONDAY, FEBRUARY 10, 2003

The Senate met at 11 a.m. and was great things for You throughout this SCHEDULE called to order by the Honorable NORM new week. You are our Lord and Sav- Mr. FRIST. Mr. President, this morn- COLEMAN, a Senator from the State of iour. Amen. ing the Senate will resume consider- Minnesota. f ation of the nomination of Miguel Estrada to be a circuit judge for the DC PRAYER PLEDGE OF ALLEGIANCE Circuit. The Chaplain, Dr. Lloyd John The Honorable NORM COLEMAN led On Thursday we attempted to reach a Ogilvie, offered the following prayer: the Pledge of Allegiance, as follows: consent agreement which would have Gracious God, who knows our needs allowed for a vote on that nomination before we ask You for Your help, and I pledge allegiance to the Flag of the United States of America, and to the Repub- during today’s session. Unfortunately, has plans for us and our Nation ready lic for which it stands, one nation under God, that consent was not granted last to reveal to leaders who humble them- indivisible, with liberty and justice for all. Thursday. However, it is still my hope selves and seek Your guidance, we f to work with my colleagues on the praise You for the privilege of being other side of the aisle to set a time cer- alive and the delight of serving You. APPOINTMENT OF ACTING tain for a vote on the confirmation of Give us a positive attitude for the PRESIDENT PRO TEMPORE this important nomination. I know challenges and problems of this day. The PRESIDING OFFICER. The there are additional Members who Help us utilize Your divinely inspired clerk will please read a communication want to speak on the nomination, and gift of imagination to energize our vi- to the Senate from the President pro I hope they do so today, that they take sion of Your very best for the individ- tempore (Mr. STEVENS.) advantage of the opportunity, begin- uals, concerns, and complicated issues The legislative clerk read the fol- ning in a few minutes, over the course we must creatively confront today. lowing letter: of today. Empower us to prayerfully picture I do want to express our willingness Your solutions and direction and speak U.S. SENATE, PRESIDENT PRO TEMPORE, to go as long as necessary tonight to with the tone of Your articulated inspi- Washington, DC, February 10, 2003. allow for that open discussion, that ration in our souls. Help us not to go it To the Senate: open debate, so colleagues do have the alone today on our own limited re- Under the provisions of rule I, paragraph 3, opportunity to express their wishes. sources but draw on the inspiration of of the Standing Rules of the Senate, I hereby I do want to make sure my col- the vivid images You play on the appoint the Honorable NORM COLEMAN, a leagues understand it is our intent to screen of our inner eye of vision. Senator from the State of Minnesota, to per- finish this nomination and vote on this Today we pray for all in the Senate form the duties of the Chair. nomination as early as possible this family who are ill or recovering from TED STEVENS, week. I would love to have that oppor- President pro tempore. surgery. Especially we pray for Sen- tunity to do so either later tonight or ators ROBERT GRAHAM and MITCH Mr. COLEMAN thereupon assumed tomorrow—again recognizing that it is MCCONNELL, two distinguished Sen- the Chair as Acting President pro tem- important people have the opportunity ators who are recovering from heart pore. to speak. Again, we are perfectly happy surgeries and procedures. Infuse Your f to stay here as long as necessary to- healing power into their bodies and night. give them strength and renewed resil- RECOGNITION OF THE MAJORITY In addition, three district court iency. We thank You for these two LEADER judges were reported by the Judiciary great leaders. The ACTING PRESIDENT pro tem- Committee on Thursday. We are work- We expect great things from You pore. The majority leader is recog- ing towards an agreement for a vote on today, dear God, and we will attempt nized. one of those nominations this evening,

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

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VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00001 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.000 S10PT1 S2066 CONGRESSIONAL RECORD — SENATE February 10, 2003 or possibly all three nominations this The ACTING PRESIDENT pro tem- are not in order and are not to be evening. We will report shortly after pore. The majority leader. played. At the end of the day, we ex- discussion with the leadership on both Mr. FRIST. Let me say, first, I appre- pect no filibuster—again, that is a deci- sides of the aisle, but we expect the ciate the assistant Democratic leader sion which will be made on your side— first vote to be at 5:15 this afternoon. outlining that. It is very important because the American people deserve Also, as a reminder, the current con- that we hear from people who have better. If there is insistence on a fili- tinuing resolution is set to expire on very important things to say. It is real- buster, we will use everything within Friday of this week. We are still hoping ly a matter of time management at our power being in the majority under the appropriators will complete their this juncture, so I very much appre- the Senate rules to bring this to an up- work on the conference report and ciate it. If we could just have a gentle- or-down vote. therefore the Senate would consider man’s agreement for those times with- Mr. REID. One last thing I would like the conference report later this week, out locking it in, and then allowing the to say is we are having, as the majority as soon as it becomes available. chairman and ranking member to de- leader knows, a conference committee We are also attempting to clear sev- termine the specifics of those times, meeting of the Appropriations Com- eral important items that are on the but it sounds agreeable to me. mittee at 6:30 this evening. There are Legislative Calendar. Each may re- Mr. REID. That sounds like a good still a number of open issues. We will quire a short period of debate this week idea. hear from Senator STEVENS and others. and a rollcall vote. Thus, we have a Mr. FRIST. Again, it is not our side But this thing has moved along signifi- very full week over the next 5 days. of the aisle I think at this point that cantly over the weekend. Senators should expect a busy session will do the majority of talking. We Mr. FRIST. Mr. President, I will this week and, indeed, as I mentioned have a number of Members who want close. earlier, late nights are possible. It is to speak as well. But our goal is to We have the opportunity of a very likely that there will be several late have an up-or-down vote on this impor- productive and very useful week. When nights this week, including tonight if tant nomination after sufficient time you look at the continuing resolution people will take advantage of that, in as judged by the other side of the aisle and completing the appropriations bills terms of discussing and bringing their and our side of the aisle. with the omnibus package and the views to the floor. I encourage, once again, the Senator three judges tonight, if we can finish The ACTING PRESIDENT pro tem- to continue scheduling just as he has the Estrada nomination early enough pore. The Democratic whip. done, which I appreciate, but to go as in the week, there are two other bills Mr. REID. If I could, while the major- long today as he is comfortable doing we are working on, including the Mos- ity leader is in the Chamber, first, on because we want to make sure he has cow treaty. There is other legislation the vote on the judges, the ranking that opportunity. But it is my inten- that is to follow. We have the oppor- member of the committee, Senator tion to bring this matter to a vote as tunity of a very productive week before LEAHY, has said he is aware of the soon as practical as we go forward. going out on recess. We have to keep three judges and he would like a roll- Mr. REID. I also say to the distin- call vote on each of the three and that the train moving. guished majority leader and the distin- The reason why I mention that is, if you and Senator DASCHLE can work on guished Chair of the committee that members want to talk on the other for the time of when at least the first will one of the things we are concerned occur this evening. 30 minutes or 45 minutes each tonight, about—and we know there has been Mr. FRIST. Let me remind the Sen- we want to make that opportunity ator, I would like to do all three this very little time used on the debate so available, and we hope the other side evening. We can plan on having the far, as the Senator knows, and as Sen- will seize that opportunity since we ex- first vote at 5:15 and then we can dis- ator DASCHLE stated publicly, the press that willingness. cuss about the other two. I think it Democrats have not decided whether Thank you, Mr. President. would be our intent to have all three there is going to be a filibuster. That is Mr. LEAHY. Mr. President, will the tonight. something the majority leader and Senator from Tennessee yield for just a Mr. REID. Fine. Senator DASCHLE can speak about later moment, the distinguished majority I also say to the distinguished Sen- today. But I ask for the cooperation of leader? ator from Tennessee, the majority the majority; that, in effect—and I Mr. FRIST. I yield to the Senator. leader, last week there were a number don’t mean this to be a derogatory Mr. LEAHY. A couple of things of problems, as the leader is aware. term—no games be played. If somebody should be mentioned. There were memorial services—it was steps off the floor in the next few As the distinguished senior Senator difficult to have people speak. Also, it hours, I hope the question would not be from Nevada has noted, we have a com- was difficult to get some Democrats to called on this nomination until we get mittee of conference on the appropria- speak because the distinguished chair- into a more—I want to use the right tions this evening, which is a very sig- man took a lot of time speaking. It was word. Until we get into a more com- nificant one because of the level of ap- hard to work in other people. petitive phase of this debate, I hope propriations bills being rolled into one. With that in mind, and with the dis- there would not be anything like that A number of us who might speak on the tinguished chairman of the committee done. floor are also on that committee. Sen- in the Chamber, what I would like to Could I have the assurance of the ior members of the Appropriations do is arrange some times for people to chairman of the committee that in fact Committee have to be at the meeting. speak today so we do not have people would be the case? Some have said and others have com- waiting around and so the chairman of Mr. FRIST. Mr. President, I think for mented about games-playing here. I the committee and ranking member today, of course, we will agree to that. don’t think the distinguished majority know who is planning on coming. If it But again, I want to come back to the leader or the distinguished acting is appropriate, I will give those times fact of whether it is competitive and Democratic leader would want to do to both the leader and to the chairman. the accusations of a filibuster going that. I would suggest just for my The ranking member, Senator LEAHY, back and forth. That is going to sort of friend—looking around the floor—hav- is here and he is available all of the occur. ing been here longer than anybody else day, of course, if necessary. Let me just say on the part of the on the floor right now, in the majority But from 1 to 2, Senator FEINSTEIN chairman and myself that as long as we four or five times, and four or five would like to be able to speak; from 2 are having good participation, it is im- times in the minority with very distin- to 2:45, Senator KENNEDY would like to portant—not just listening to people guished majority leaders, Senator speak; from 3 to 4 o’clock, Senator because they want to get out and talk Mansfield, Senator BYRD, Senator SCHUMER would like to speak; and Sen- for an hour, which looks like a fili- Baker, Senator LOTT, Senator ator LEVIN would like to speak after buster—to the American people that DASCHLE, Senator Mitchell— that until the vote. And then Senator we work in good faith to come to what Mr. REID. Senator Dole. FEINGOLD would like to speak at 5:30. I hope will be a fair up-or-down vote in Mr. LEAHY. And Senator Dole, and They may not use all this time. a reasonable period of time, and games also having served as minority leader

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00002 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.003 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2067 back and forth—all of them realized EXECUTIVE SESSION prevented a lower-court nominee’s confirma- that anyone can come down at any mo- tion, the White House says. And that’s good, It’s hard enough to get swift Judiciary Com- ment of inattention and, using the NOMINATION OF MIGUEL A. mittee action and floor votes for judicial rules, gain a one-time advantage. With ESTRADA, OF VIRGINIA, TO BE nominees. The possibility of a filibuster all the distinguished leaders, I never UNITED STATES CIRCUIT JUDGE probably checks rash or overly partisan saw a single one of them do that, even nominations; one can imagine candidates so FOR THE DISTRICT OF COLUM- wrong or offensive that the tactic would be when over and over again they had an BIA justified. but a world in which filibusters opportunity to do it. Many times when The ACTING PRESIDENT pro tem- serve as an active instrument of nomination I was chairman of the Agriculture pore. The Senate will now resume exec- politics is not the either party should want. Committee, when I was chairman of Mr. Estrada’s nomination in no way justi- utive session and the consideration of fies a filibuster. The case against him is that Judiciary Committee, when I was Executive Calendar No. 21, which the he is a conservative who was publicly criti- chairman of the Foreign Operations clerk will report. cized by a former supervisor in the Office of Committee, and when I was chairman The legislative clerk read the nomi- the Solicitor General, where he once worked. of a number of others, we would have nation of Miguel A. Estrada, of Vir- He was not forthcoming with the committee in its efforts to discern his personal views on hotly contested issues and cases where ginia, to be United States Circuit Judge for the District of Columbia Cir- controversial issues—as many nominees are the ranking Member, the only other not—and the administration has (rightly) de- cuit. person on the floor, had to leave the clined to provide copies of his confidential Mr. HATCH. Mr. President, of course, floor for a phone call or something like memos from his service in government. Hav- there are not going to be any games ing failed to assemble a plausible case that. And, of course, I always protected played. Nobody on this side wants to against him, Democrats are now arguing their rights. That is something that play games. This is important stuff. We that this failure is itself grounds for his re- has been done. It is the role of the ma- understand there are those on the mi- jection—because it stems from his own and jority leader, of course, to try to move nority side who do not agree with this the administration’s discourteous refusal to arm Democrats with examples of the extre- legislation forward. It has always been nomination. They have a right to not mism that would justify their opposition. my feeling, whether being in the ma- agree. But they have a right to vote Such circular logic should not stall Mr. jority or in the minority, that the ma- against Miguel Estrada if that is what Estrada’s nomination any longer. It cer- jority leader should do that. I think we they really think is right. tainly doesn’t warrant further escalating a war that long ago got out of hand. can. But I also think everybody should On the other hand, should there be a filibuster it will be the first filibuster Mr. HATCH. I would like to take a realize that last week was a rather ex- in history against an inferior court, few moments this morning to respond traordinary week with, first, the serv- the circuit court of appeals or the dis- to some of the allegations that Miguel ices in Houston, and then the services trict court. Estrada lacks support in the Hispanic at the National Cathedral, and then With regard to the 100 nominees that community. Nothing could be further the Republicans had a conference made it through in the last few years, from the truth. where they had to go on Friday. A lot that was a very good record, primarily Young men and women from Mexico, was chopped into that week. just for judges. I am more interested in Central and South America, who come to the United States—sometimes with I have already said the three judges how many are left over. I am more in- terested in how we reduce the number their parents, sometimes without— which are on the Executive Calendar— of holdovers. Let us hope we can do have helped to build this country. those which were actually going to be that. I am going to do everything in There is no question about it. They put over by the Republicans initially in my power to do it, and I hope I will have mined our mines. They have built the executive markup—I said to the have the cooperation of those on the our railroads. They have worked on the distinguished Senator from Utah, let minority side in trying to do what is roads. They have advanced themselves us go ahead and vote them out so we really our job; that is, to put the Presi- in education. They are now doctors, lawyers, and filling positions in vir- can get them on the floor. But also the dent’s—whoever the President is— tually every walk of life in this coun- majority leader may not be aware of nominees through. We always have try, and rightly so. the fact—at least from some of his someone on both sides who wants to They struggled in a foreign country statements—that during 17 months we slow the process down. We understand to make a better life, and the gifts did get through 100 of President Bush’s that. But hopefully we can get people they have brought to this Nation are judges and got all of them confirmed of goodwill to not slow the process what has made this Nation a great na- on the floor. I know the distinguished down and to not filibuster this wonder- tion. And they still do today. The His- ful Hispanic judge named Miguel Senator from Utah would like to come panic community leaders I have Estrada. close to that record, a record that was worked with over the years consider Mr. President, in that regard, I ask Miguel’s success as their success. And not achieved when the Republicans unanimous consent that a Washington were chairing that committee and they know that all young Latinos Post editorial entitled ‘‘Filibustering across the country—whether they live when President Clinton was here. I Judges’’ be printed in the RECORD. in border town colonia, a barrio in Chi- There being no objection, the mate- know he would want to try for that cago, or Miami’s Calle Ocho—need role rial was ordered to printed in the now. Of course, I would be happy to go models such as Miguel to emulate. forward on those and vote those three RECORD, as follows: Miguel arrived in this country with out. There will be rollcall votes. I real- [From the Washington Post, Feb. 5, 2003] his mother at age 14. He lived in a mod- ize that last year sometimes we had 10 FILIBUSTERING JUDGES est home, and his parents worked hard or 12 at a time by voice vote. I think ‘‘Tell Senators: Filibuster the Estrada to send him to private schools. There is Nomination!’’ cries the Web site of People no crime in that. In fact, many Latino that escaped the attention of the press, for the American Way. The subject is Presi- the White House, the Republican Sen- dent Bush’s nomination of Miguel A. Estrada families work two and three jobs just ate campaign committee, and others. to a seat on the U.S. Court of Appeals for the to be able to send their children to pri- DC Circuit. Democratic senators may not vate schools, which are usually Catho- I yield the floor. need much encouragement. With the Estrada lic schools. That is no crime. In fact, nomination due to come to the Senate floor the Catholic schools are among the f today, they are contemplating a dramatic es- best schools in this country. I do not calation of the judicial nomination wars. blame any parent for wanting to send RESERVATION OF LEADERSHIP They should stand down. Mr. Estrada, who is their children to Catholic schools. well qualified for the bench, should not be a They learn a lot of important things in TIME tough case for confirmation. Democrats who Catholic schools. It is a sign of a His- The ACTING PRESIDENT pro tem- disagree may vote against him. They should not deny him a vote. panic parent’s love and dedication, and pore. Under the previous order, leader- Senators have on occasion staged filibus- it is a manifestation of Latino values ship time is reserved. ters on judicial nominees, but none has ever at their best.

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00003 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.006 S10PT1 S2068 CONGRESSIONAL RECORD — SENATE February 10, 2003 Latino groups that oppose Miguel’s portunity. They have fought hard all Latino people are for him, and they do confirmation—notably, the Mexican these years they have been in this not like these games being played. American Legal Defense and Education country. Indeed, the second oldest His- Some have suggested he is not His- Fund, the Puerto Rican Legal Defense panic organization in the country, the panic enough. That is a joke: He is not and Education Fund, and the Demo- American GI Forum, came into exist- Hispanic enough; he has not been in cratic Congressional Hispanic Caucus— ence in 1948, when a fallen war hero this country long enough—even though argue that the courts lack Hispanic was refused a proper burial in Texas be- he has been here since he was 14 years representation. That is always inter- cause he was a Mexican. Similarly, of age, and earned his way, and grad- esting to me. They are constantly ar- LULAC, established in 1927, and the uated with honors from Columbia Uni- guing that there are not enough His- National Council of La Raza, estab- versity, and in the highest part of his panics on our Federal courts, but they lished in 1968, came into existence to class in law school at Harvard Univer- are not looking for diversity—these ensure equality of opportunity for all sity. Not many people can claim that. three groups. They only want Hispanic Hispanic Americans, leaving a legacy He worked for two judges, and yet judges who look, think, and act like for generations to come. one of the arguments is that he does them. That is pretty apparent in this But today that legacy is threatened not have any judicial experience. We, case. as this community, once united by a more or less, blew that away last week A good judge is one who understands common vision and a shared experi- when we brought out how many judges, that there are competing interests ence—sadly, one of discrimination— great judges in our country’s history, which must be balanced within the rule finds itself divided along party lines in never were judges before they were of law. Miguel Estrada is exceedingly what appears to be purely political pur- nominated and confirmed. capable of making that assessment. poses—at least on the side of those who But what they ignore is that Miguel And every Latino in this country—and oppose Miguel Estrada. In the process, Estrada has been a clerk for two every person in this country—ought to it is subjecting one of their own, judges. His judicial experience is a lot appreciate that fact and ought to be Miguel Estrada, to a ‘‘Latino’’ litmus more than that of most people who very proud of what this young man has test, and subjecting him to the very come through the Judiciary Com- done with his life. Of course, he wants type of discrimination they have mittee, I will tell you that right now. to administer the law fairly. And I fought so hard to eradicate. There is no But it is not critical that a person have know he will. place in the judicial nomination proc- judicial experience. It may be helpful A review of the Congressional His- ess for single litmus tests. in certain cases, but it is not critical. panic Caucus’s statement in opposition I have taken that position the whole Some of the greatest judges in his- is most disappointing to me. It was time I have been on the Senate Judici- tory—and I will just cite Brandeis as issued in advance of Miguel Estrada’s ary Committee, or at least have tried an illustration—never had prior judi- hearing. My colleagues in the House, to. Others may disagree with me, but I cial experience other than peripher- who have argued persuasively for a fair do not believe any single litmus test ally. And in Miguel’s case, he was actu- process, decided that Miguel Estrada should stop a person who is otherwise ally a law clerk for two major Federal was not so entitled. They pronounced qualified. And Miguel Estrada is not judges. judgment beforehand. But that should only qualified, Miguel Estrada is one of He clerked for the U.S. Supreme not surprise us. That caucus is a Demo- the most qualified people we have ever Court. Talk about judicial experience. cratic machine, or a Democratic Party seen to come before the Judiciary Com- How many have clerked for the U.S. machine, to be a little more accurate. mittee. Supreme Court? Not very many. You The Republican members of the cau- I think the judicial process is one can go down through the ridiculous ar- cus were forced out because they did that must remain free of single-issue guments they are using against him, not think and act like their Demo- litmus tests and politicization, in par- and it is pitiful. This man has the high- cratic counterparts. So you have a ticular. I urge groups such as MALDEF est rating—I might add it is unani- purely partisan Democrat Party ma- and the Congressional Hispanic Caucus mously the highest rating—of the chine over in the House that did not to think back a couple of years to the American Bar Association, which, ac- even listen to Estrada before they pending nomination of Richard Paez. I cording to my colleagues on the other made this pronouncement and this was not happy with the way that was side when they were upset about some judgment. handled, and I was the one who was of the others, was their gold standard. There are no Republican members of trying to get him through. I have to admit I did not think the the Congressional Hispanic Caucus. As chairman of the Judiciary Com- American Bar Association did a very You would think they would want to mittee, I worked hard to ensure the good job in bygone days. I have to get together with Republicans and, in a process was fair. In the early stages it admit today I think they are doing a joint way, in a bipartisan way, work was not fair, in my opinion. He de- better job, and I support them for it. I not only for and on behalf of the His- served a vote, and I made sure he got applaud them for it. But it is not easy panic community, but for and on behalf one. It took years to get it. And there to get a unanimously well-qualified, of everybody in this country. were some reasons—some legitimate highest rating from the ABA, and that The Democrat Congressional His- reasons—why some opposed Paez. I do is a lot more than some of the critics panic Caucus may oppose Miguel not see one legitimate reason why any- would ever get. Estrada, but the Republican Congres- body would oppose Miguel Estrada. Let’s go to the Clinton circuit judges sional Hispanic members—LINCOLN Miguel deserves a vote. with no prior judicial experience: DIAZ-BALART, ILEANA ROS-LEHTINEN, Reasonable people can disagree on Judge David Tatel, Judge Merrick HENRY BONILLA, MARIO BALART—they how one might vote in this instance, Garland, both on the DC Circuit, where all support his confirmation, and they but I call upon these organizations to Miguel Estrada will go; Sandra Lynch, support him very strongly, as they step forward with the same fervor and First Circuit; Guido Calabresi, Second should—and so should our Democratic intensity that drove their campaigns Circuit Court of Appeals; Robert Sack, friends in the House. to call for a vote for Richard Paez. I Second Circuit; Sonia Sotomayor, Sec- Ordinarily, I would think they would urge them and my colleagues to recom- ond Circuit; Robert Katzman, Second come out of their chairs in leading the mit to a process that is fair, that is Circuit—these are all pretty darn good charge to try to help Miguel Estrada, free from double standards and par- judges—Thomas Ambro, Third Circuit; but, for some reason, they are not tisan politics. Blane Michel, Fourth Circuit; Robert doing it. And I suspect that the reason Look at this I have in the Chamber. King, Fourth Circuit; Karen Nelson is Miguel does not look, think, and act Yes, there are three organizations—and Moore, Sixth Circuit; Eric L. Clay; like they do. there may be a few more; they are cer- Dianne Wood; Kermit Buye; Eighth There is a lesson in this, and it is a tainly all the left-wing anti-Bush judge Circuit; Sidney Thomas; M. Margaret hard one to take. Hispanic Americans organizations that crop up on every McKowen, Ninth Circuit; William have fought hard to counter injustices, circuit court of appeals nominee—that Fletcher, Ninth Circuit; Raymond to demand respect and equality of op- are opposed to Miguel Estrada. But the Fisher, Ninth Circuit; Ronald Gould;

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00004 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.008 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2069 Marcia Berzon; Richard Talman, Ninth to all of the Hispanic lawyers in this judicial experience. In fact, she did Circuit; John E. Rawlinson, Ninth Cir- country who don’t have any judicial have prior judicial experience. She had cuit; B. Robert Henry; Carlos Lucero; experience and might want to serve in been appointed originally by the first William Bryce on Federal Circuit; Ar- the Federal circuit courts someday? It President Bush as a Federal court thur Gajarsa; Richard Lynn; Anthony basically says you don’t have a chance, judge. B. Dyk. in the eyes of the people who take that In an example, when time and time Many of these judges were appointed attitude, because you don’t have any and time again President Clinton nom- by Democratic Presidents—all without judicial experience—in spite of the fact inated people for the court of appeals judicial experience and serving well in that many Federal judges didn’t have and other judicial nominees who had the circuit courts of this country. That any experience and some of the great- been appointed by Republican Presi- is not even talking about the Judge est judges in history have not had judi- dents—something we have never seen Brandeis, and others who have served cial experience. in this administration and probably with such distinction throughout the Miguel Estrada had judicial experi- won’t—but I know of at least three years. ence in serving two Federal judges, one members of the Second Circuit Court of I would like to go to the other chart. a Supreme Court Justice. I get a little Appeals who were appointed by Repub- I will make one or two points there. I tired of some of this ‘‘anti-Miguel- lican Presidents versus district court want to talk about those who support Estrada syndrome’’ that seems to be judges, two by President Bush, one by Miguel Estrada. These are great orga- going on. I know Miguel Estrada. He is President Reagan. All were then ele- nizations: a terrific human being, and he is quali- vated to the court of appeals by Presi- League of United Latin American fied. He has been given the highest rat- dent Clinton. Citizens, the oldest Hispanic organiza- ing the ABA gives. He has the support Judge Sotomayor, of course, was held tion in the country; Hispanic National of virtually all the Hispanic groups in up by Republicans for a considerable Bar Association, which works very the country, except for the few I have period of time, even though she had originally been appointed to be a Fed- hard to try to get good Hispanics nomi- mentioned. Miguel Estrada would eral judge by President Bush, contrary nated in both parties; U.S. Hispanic make a wonderful Federal Circuit to what the chart of my friends, the Chamber of Commerce, one of the old- Court of Appeals judge. He would add a Republicans, says. It is in absolute con- est and most prestigious Hispanic asso- great deal to the Circuit Court of Ap- tradiction to what they said. She was ciations in the country; Association for peals for the District of Columbia, blocked for a very long time by Repub- the Advancement of Mexican Ameri- which only has 8 judges of the 12 seats licans, and when she finally was able to cans—they are all important to asso- there right now, and they cannot keep ciations—the Latino Coalition; Mexi- get a vote, 29 voted against her. up with the workload. Let’s be honest about what happened. can American Grocers Association; We ought to all be working hard to Judge Sotomayor, a superb judge, was Hispanic Contractors Association; put Miguel Estrada on the bench. I am appointed first by a Republican to the IntraAmerican College of Physicians afraid there are those who don’t want district court bench, not, as my friends and Surgeons; Congregacion Cristiana him there because they are afraid he say, someone with no experience, and y Misionera ‘‘Fey Alabanza’’; American would be on the fast track to the Su- President Clinton nominated her to the GI Forum; Casa De Sinaloense; Cuban preme Court. That may be, but the fact Second Circuit Court of Appeals. She American National Foundation; His- is we are talking right now of the Cir- was blocked initially by the Repub- panics Business Roundtable; Nueva cuit Court of Appeals for the District licans, and they finally allowed it Esperanza, Inc.; MANA, a national of Columbia. through, but 29 voted against her. Latino organization; Cuban American I yield the floor. With Judge Paez, 39 voted against Voters National Community; Cuban The ACTING PRESIDENT pro tem- him. In fact—this is an interesting fact Liberty Council; Federation of Mayors pore. The Senator from Vermont is rec- on Judge Paez. I wonder if everybody is of Puerto Rico; Puerto Rican American ognized. aware of the fact that initially Repub- Mr. LEAHY. Mr. President, I have Foundation. licans filibustered a motion to proceed I wonder why there is one Puerto listened with interest as my friend to his appointment to the Circuit Rican organization that is not for him from Utah has made arguments against Court of Appeals. I heard mention when the rest are. It is not hard to see the Democrats using the old thing of somewhere that this never happened, why the Democrat-controlled Hispanic the straw man debate. I have heard a that there were not any kind of delay- Caucus in the House is not for him—be- lot of arguments the Senator from ing tactics on district court or Circuit cause they are partisan, and they are Utah says we make against Mr. Court of Appeals nominees, but on a controlled, in large measure, in these Estrada, but I have not heard them motion to proceed, something Demo- matters by left-wing groups in Wash- from us. I did hear some interesting crats did not block in any way with ington and are continually unfairly things. He has expressed his support for Judge Estrada, Republicans did. Fifty- interfering with President Bush’s Judge Richard Paez. After blocking it three of them voted against that mo- nominees. They are against everybody for several years, the Senator from tion. I am surprised the Senator from President Bush nominates for the cir- Utah did vote for him. I commend him Utah does not remember that fact be- cuit court of appeals—or at least al- for that. It is interesting, however, cause he is one of the 53 who voted most everybody. So far, my impression that he does not speak of the strong against proceeding to bring up Judge is that they are against every one of opposition to Judge Paez by the Repub- Paez. I say this just to make sure we his circuit court nominees, unless they licans. A very large number of their have accuracy in our debate. have been Democrats. votes were against him, and the fact Debate on this nomination began last This President has nominated more that he was blocked by the Republicans week on Wednesday, within seconds of Democrats, as I understand it, than year after year after year, while the the Senate adopting S. Res. 45, to any Republican President in recent nominee was here, that, the Senator honor the Space Shuttle Columbia as- years, in order to reach out to Demo- from Utah suggests, is legitimate; tronauts, and after we observed a mo- crats and try to bring them along. whereas there seems to be a strong sug- ment of silence. Many of us were not They have been good people, and I have gestion that if Democrats were to talk on the floor Thursday because we were certainly supported them, as have I only a few days about Mr. Estrada, and attending a memorial for the space think all of my colleagues. some may even vote against him, that shuttle astronauts at the National Ca- Now, it is outrageous for some of is not legitimate. thedral. these partisan Hispanic leaders to say I also note that it is easy to accept I thank those who did participate in that Miguel Estrada is ‘‘not Hispanic the arguments if you don’t put all the the debate last week. I commend to the enough’’ or that he has no judicial ex- facts forth. For example, the charge of Senate and to the American people the perience and therefore he should not the distinguished Senator from Utah— remarks of Senator REID, Senator KEN- serve. Let’s just think about that. He take one judge, Sonia Sotomayor of NEDY, and Senator SCHUMER, each of has no judicial experience; therefore, the Second Circuit. He puts her down whom added important dimensions and he should not serve. What does that say as a Clinton circuit judge with no prior perspectives to this debate.

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00005 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.011 S10PT1 S2070 CONGRESSIONAL RECORD — SENATE February 10, 2003 I also wish to take a personal mo- nee but of the administration, to keep Federal bench than any President be- ment to commend the senior Senator information from the Senate. It is typ- fore him. from Nevada, HARRY REID. While he is ical of so many of these nominees. The I ask unanimous consent to print in not a member of the Judiciary Com- White House has made absolutely no the RECORD letters in opposition to Mr. mittee, he spoke so eloquently on this effort—absolutely no effort—to try to Estrada from MALDEF and other His- subject and was able to carry on the work out any kind of a bipartisan un- panic organizations. debate while others of us, as I said, had derstanding on these judges. In fact, it There being no objection, the mate- to be at the very sorrowful memorial has done just the opposite. They have rial was ordered to be printed in the service for our astronauts. stonewalled any request for informa- RECORD, as follows: I had hoped that at some point in the tion. MEXICAN AMERICAN LEGAL DEFENSE last 2 years or so we would have seen Frankly, I am sorry my friends on AND EDUCATIONAL FUND AND an effort on the part of the President the other side of the aisle are willing to SOUTHWEST VOTER REGISTRATION and others to seek to unite rather than accept this with absolutely no informa- AND EDUCATION PROJECT, divide. Instead, we see a continuation tion, even to having a vote in the com- January 29, 2003. Re opposition to the nomination of Miguel of dividing the American people, as mittee with several members of the deeply as we have seen the 19 members Estrada to the D.C. Circuit Court of Ap- committee never even having sat in on peals. of the Judiciary Committee divided. what hearing there was on Miguel Many of us would like to know the Hon. ORRIN HATCH, Estrada. It is a case of ‘‘don’t ask be- Chairman, Committee on the Judiciary, U.S. record, would like to have a strong cause we know you won’t tell, so we Senate, Washington, DC. confidence in the type of judge Mr. will just go along with it.’’ ‘‘Don’t ask, Hon. PATRICK LEAHY, Estrada will be, and be able to vote in you’re not going to tell, we’ll just go Ranking Member, Committee on the Judiciary, favor of this nomination. along with it.’’ U.S. Senate, Washington, DC. Since I have been in the Senate, I There was an interesting editorial DEAR MR. CHAIRMAN AND RANKING MEMBER: have voted on hundreds of nominees— cartoon in Roll Call this morning On behalf of the Mexican American Legal Republican nominees—to the Federal Defense and Educational Fund (MALDEF) showing, like a meatpacking business, and Southwest Vote Registration and Edu- judiciary. I suspect I have voted for Federal judges coming down this as- more Republican nominees to the Fed- cation Project (SVREP), we write you on a sembly line and the Republicans on the matter of great importance to not only the eral judiciary than most of my friends Senate Judiciary Committee stamping Latino community but all Americans—the on the other side of the aisle have OK, OK, OK, similar to the way beef is nomination of Miguel Estrada to the D.C. voted for Democratic nominees. I do stamped for the USDA. Circuit Court of Appeals. As you may know, not need any lectures on how we should Unfortunately, that does not help the our organizations weigh in on judicial nomi- be bipartisan. In fact, when I was American public. People can vote for nations with varying frequency; although we chairman, we were able to get 100 or against Mr. Estrada as they want, are consistently and firmly committed to the view that the selection of federal judges nominations through the committee but they should at least have some idea and to the floor, any one of which of for life-long appointments who will serve as of on what they are voting, not this the balance to the legislative and executive President Bush’s nominees could have ‘‘don’t ask because we won’t tell.’’ branches is critically important to our com- been stopped simply by not bringing We are being asked to consider a munity. As a community, we recognize the the person up for a vote. We got nominee with no judicial experience, importance of the judiciary, as it is the through 100. Whether I agreed with or with little relevant practical experi- branch to which we have turned to seek pro- was against the person, I felt that at ence, who is opposed by many Hispanic tection when, because of our limited polit- least we had a record so we knew what leaders and organizations and many ical power, we are not able to secure and pro- tect our rights through the legislative proc- this person thought. We are being other Americans. asked, after all, to uphold our oath of ess or with the executive branch. This has While he counts Justice Scalia, become perhaps even more true in light of office and vote to confirm somebody to former Judge Kenneth Starr, and Ted some of the actions Congress and the execu- a lifetime position. The reason we are Olson among his friends and mentors, tive branch have taken after 9/11, particu- asked to do that is the judiciary is sup- information about his decisionmaking larly as these actions affect immigrants. posed to be outside the political realm. or what his values are, what he brings After an extensive review of the public The judiciary is supposed to be inde- to this court, are locked away from record that was available to us, the testi- pendent and is supposed to be for all any Senate consideration. mony that Mr. Estrada provided before the Americans and is supposed to be life- Last week I met with leaders of the Senate Judiciary Committee, and the writ- ten responses he provided to the Committee, time positions, positions for which Congressional Hispanic Caucus, the we have concluded at this time that Mr. most of us who vote on them will not Mexican American Legal Defense and Estrada would not fairly review issues that be in the Senate for the full terms of Education Fund, the Puerto Rican would come before him if he were to be con- these judges. So we have to at least Legal Defense and Education Fund, firmed to the D.C. Circuit Court of Appeals. look at the nominees if we are going to Hispanic labor leaders, and they all As such, we oppose his nomination and urge answer to the American people. There told me they oppose this nomination. I you to do the same. are 275 million Americans. They expect was impressed by that because these While the appointment to any Federal an independent Federal judiciary. They bench is important to our community, ap- are leaders who have come to me and pointments to circuit courts become even know this country has a reputation of other Senators over the years and have more important when the Supreme Court ac- having the most independent Federal strongly backed Hispanic judicial cepts fewer than 100 cases a year to hear. judiciary, and there are only 100 of us, nominees. Thus, circuit courts are often the last arbi- however, who can represent those 275 We have 10 Hispanic judges on the ters on determining the rights of individuals million Americans and use our impri- courts of appeals now. Eight of them and communities. The D.C. Circuit is per- matur and our vote to confirm. We put were appointed by President Clinton. I haps even more important than the other forth an imprimatur for the whole know they were all backed by these circuit courts because of the role it plays in country that this is somebody who will Hispanic leaders. In fact, there were a reviewing an extensive amount of Federal agency actions, from regulatory actions to maintain the independence of the judi- number of other Hispanic judges who the orders and decisions of various Commis- ciary and will not be somebody who were also nominated by President Clin- sions and Boards. It has been reported that comes to the Federal bench with an ton who were also backed by the orga- nearly half of the D.C. Circuit’s caseload ideological agenda, and we say that be- nizations, and unfortunately, the Re- consists of appeals from federal regulations cause we have looked at the people. publicans would not allow them to or decisions. That is not the record before the Ju- even come to a vote in the committee, In the memorandum attached, we outline a diciary Committee, and it is not the say nothing about coming to a vote on number of the areas which lead us to oppose record before the Senate on Miguel Mr. Estrada’s nomination. Our research and the floor of the Senate. analysis cover a wide array of constitutional Estrada. I remain concerned he is going Notwithstanding the number who legal issues that affect not only the Latino to be an activist on the court, espe- were blocked by Republicans from ever community, but all Americans, including the cially when one looks at the very de- even coming to a vote, President Clin- First Amendment, the Fourth Amendment, termined efforts, not only of the nomi- ton did appoint more Hispanics to the the Fifth Amendment (Miranda), and due

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00006 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.014 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2071 process clauses of the U.S. Constitution. Our graphic presence, we have never had someone ment. While the Supreme Court is the high- review also covers such additional issues as serve as the President of this country, and est court, the appellate courts wield consid- racial profiling, affirmative action programs, we remain the only minority group that is erable power. During its most recent term, immigration, and abusive or improper police underrepresented in our federal work force. the Supreme Court heard only 83 cases, while practices, particularly when those practices We have no Latinos serving in the Senate, the circuit courts decided 57,000 cases. As a are adopted under the ‘‘broken windows’’ and only twenty-two Latinos in the House of practical matter, circuit courts set the theory of law enforcement. Finally, our cri- Representatives. At the state level, we have precedent in most areas of federal law. tique of Estrada includes an analysis of his a little more representation but still are sig- We are united at this time around our be- views on such issues as standing for organi- nificantly underrepresented. For example, lief that Mr. Estrada’s nomination deserves zations representing minority interests, out of all the Governors in this country, only full, thoughtful, and deliberate consider- claims by low-income consumers, labor one is Latino. ation. The President proposes to place Mr. rights or immigrant workers, and the right MALDEF serves as the lawyer for the Estrada, who has no judicial experience, on of minority voters under the Voting Rights Latino community across this country in arguably the single most important federal Act. our courts. As such, we have established two appeals court to decide a myriad of statutory MALDEF sent the full Senate Judiciary major goals for our community to shape the and regulatory issues that directly affect the Committee and the White House a memo- federal judiciary—often, the only place Latino community. Every appointment to a randum outlining these concerns prior to Mr. where we have a chance to be heard and have powerful court is important as we recently Estrada’s hearing. We believe the burden to our rights protected. The first goal is to in- witnessed in the Supreme Court’s 5–4 deci- address the concerns we raised rested with crease the presence of Latino lawyers on the sion in Hoffman Plastics that stripped un- the nominee, Mr. Estrada, and the Judiciary federal bench. Only about 5% of those serv- documented workers of certain labor law Committee gave Mr. Estrada ample oppor- ing as judges in our federal courts are of His- protections. This decision, which inevitably tunity to address them. Ultimately, Mr. panic background. When we number 12.5% of will result in increased exploitation of the Estrada had the affirmative obligation to the population, there is a lot of room for im- undocumented, as well as weaker labor show that he would be fair and impartial to provement. On this score, President Bush standards for all low-wage workers, under- all who would appear before him. After re- has to do a better job. scores the importance of nominations such viewing the public record, the transcript of Our second goal, which is as important as as this one, not just to Hispanics, but all the hearing, and all written responses sub- the first, is that we want judges appointed to Americans. mitted by Mr. Estrada, we conclude that he the federal courts who will be fair to our This decision comes on the heels of a series failed to meet this obligation. He chose one community and the issues we must bring be- of Supreme Court decisions which, in our view, have unnecessarily and incorrectly of two paths consistently at his hearing and fore the courts. The issues we must bring to narrowed civil rights and other protections in his written responses: either his responses the court are often complex and controver- for Latinos. While we look to see if judicial confirmed our concerns, or he chose not to sial—including such issues as discrimina- nominees meet certain basic requirements reveal his current views or positions. tion, affirmative action, racial profiling, and We must in good conscience oppose the use of excessive force by law enforcement. such as honesty, integrity, character, tem- nomination of Miguel Estrada to the D.C. We need judges who will approach these perament, and intellect, we also look for Circuit Court of Appeals. Based on the record issues by objectively and fairly evaluating qualities that go beyond the minimum re- available, we conclude that he would not the law and the facts, and not judges who quirements. We look to see if a nominee, re- fairly review matters before him as a judge come to the courtroom already convinced gardless of race or ethnicity, has a dem- in a number of areas that will have a great that our arguments are without merit. Presi- onstrated commitment to protecting the impact on our community. We urge you to dent Bush has failed our community on this rights of ordinary U.S. residents and to pre- oppose this nomination to a life-long ap- score as well, as too many of his nominees serving and expanding the progress that has pointment to the second most important come to the process with set ideological be- been made on civil rights, including rights court in the country. The power is too great liefs that they cannot set aside. protected through core provisions in the to place in the hands of someone who has not The most difficult situation for an organi- Constitution, such as the Equal Protection shown that he would be fair in all cases that zation like mine is when a President nomi- Clause and Due Process Clause, as well as come before him. nates a Latino who does not reflect, resonate through the statutory provisions that pro- Sincerely, or associate with the Latino community, and tect our legal rights. who comes with a predisposition to view We are aware that some are demanding a ANTONIO GONZA´ LEZ, commitment from you and the Judiciary President, Southwest claims of racial discrimination and unfair Committee to announce a date certain for Voter Registration treatment with suspicion and doubt instead action on Mr. Estrada’s nomination. We and Education of with an open mind. Unfortunately, the agree with the proposition that every nomi- Project. only Latino who President Bush has nomi- nated in two years to any federal circuit nee deserves timely consideration. For this ANTONIA HERNA´ NDEZ, reason, we urged the Senate to act on the President and General court in the country is such a person. Presi- nomination of Judge Richard Paez to the Counsel, Mexican dent Bush nominated Miguel Estrada to the Ninth Circuit Court of Appeals, who was American Legal De- D.C. Circuit Court of Appeals. After a thor- forced to wait for four years before being fense and Education ough examination of his record, his con- confirmed. We also believe, however, that if Fund. firmation hearing testimony, and his written answers to the U.S. Senate, we announce a nominee’s record is sparse the Judiciary today our formal opposition to his nomina- Committee should allow sufficient time for MEXICAN AMERICAN LEGAL DEFENSE tion. We cannot in good conscience stand on those interested in evaluating his record, in- AND EDUCATIONAL FUND, cluding the U.S. Senate, to complete a thor- Washington, DC, January 27, 2003. the sideline and be neutral on his nomina- tion or others like his. We oppose his nomi- ough and comprehensive review of the nomi- PRESS STATEMENT BY MARISA J. DEMEO, nation and that of others that will prevent nee’s record. We therefore respectfully re- REGIONAL COUNSEL, DC the courts from serving as the check and bal- quest that you consider scheduling a hearing MALDEF EXPRESSES SERIOUS CONCERNS ABOUT ance so desperately needed by our commu- no earlier than August, prior to the sched- STATE OF FEDERAL JUDICIAL NOMINATIONS— nity to the actions being taken by the execu- uled recess. This leaves sufficient time for ANNOUNCES OPPOSITION TO NOMINATION OF tive and legislative branches. action prior to adjournment if his record is MIGUEL ESTRADA TO THE DC CIRCUIT COURT strong enough to receive substantial bipar- OF APPEALS WASHINGTON, DC, May 1, 2002. tisan support. (WASHINGTON, DC).—The U.S. government Hon. PATRICK LEAHY, In the interim, we pledge to conduct a fair system is set up as a checks and balances Chairman, Committee on the Judiciary, and thoughtful assessment of Mr. Estrada’s system, among the executive, legislative and U.S. Senate, Washington, DC. record, and to communicate our views on his judicial branches of our government. Since DEAR MR. CHAIRMAN: As national Latino nomination to you, Ranking Member Hatch, the founding of this country, the interests civil rights organizations, we write on a mat- and other Committee members in a timely and rights of minorities, whether they be re- ter of great importance to U.S. Latinos, and manner. ligious minorities, racial minorities, or all Americans—the nomination of Miguel Sincerely, other groups of people who do not have the Estrada to the D.C. Circuit Court of Appeals. ANTONIA HERNANDEZ, power of the majority on their side, have Although historically we have expressed our President and General been difficult to protect. During the civil views on judicial nominees with different Counsel, Mexican rights struggle in this country, it was the levels of frequency, we are united in our view American Legal De- courts which ensured that the values con- that all federal judicial appointments are fense and Edu- tained in our Constitution were preserved important because they are life-long ap- cational Fund. even for those who did not have equal rep- pointments, because they are positions of MANUEL MIRABAL, resentation or an equal voice in the legisla- great symbolism, and because federal judges President, National tive or executive process. interpret the U.S. Constitution and federal Puerto Rican Coali- Today, Latinos number 37 million resi- laws serving as the balance to the legislative tion. dents in the U.S. Despite this growing demo- and executive branches of the federal govern- RAUL YZAGUIRRE,

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00007 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.006 S10PT1 S2072 CONGRESSIONAL RECORD — SENATE February 10, 2003 President, National ination. Based on our research, but is un- zation that spoke, he was allowed to Council of LaRaza. clear whether he would be fair to Latino come to a vote, but almost 40 Repub- JUAN FIGUEROA, plaintiffs as well as others who would appear licans voted against him. President and General before him with claims under the First I talked about Judge Sonia Counsel, Puerto Amendment, the Fourth Amendment, the Rican Legal Defense Fifth Amendment (Miranda), and the process Sotomayor. This is somebody who had and Education clauses of the U.S. Constitution. Further, we a unanimous well-qualified rating from Fund. found evidence that suggests that he may the ABA, the highest rating possible. ARTURO VARGAS, not serve as a fair and impartial jurist on al- One would think this would have been Executive Director, legations brought before him in the areas of a slam dunk. She was supported by National Association racial profiling, immigration, and abusive or every Hispanic organization. She had of Latino Elected improper police practices where those prac- first been appointed to the Federal and Appointed Offi- tices are adopted under the ‘‘broken window bench by the first President Bush. This cials. theory’’ of law enforcement. We also have concerns about whether he would fairly re- should have been very easy, but every CALIFORNIA LARAZA LAWYERS & view standing issues for organizations rep- time we wanted to bring her up for a MEXICAN AMERICAN LEGAL DE- resenting minority interests, affirmative ac- vote on the floor, there was an anony- FENSE AND EDUCATIONAL FUND, tion programs, or claims by low-income con- mous hold on the Republican side. No- September 24, 2002. sumers. We are also unsure, after a careful body wanted to step forward. Hon. PATRICK LEAHY, review of his record, whether he would fairly I will step up and state my opposi- Chairman, Committee on the Judiciary, U.S. protect the labor rights of immigrant work- tion to Miguel Estrada. I feel that is Senate, Washington, DC. ers or the rights of minority voters under the only fair. I do not believe in anony- DEAR MR. CHAIRMAN: On behalf of Latino Voting Rights Act. legal and civil rights organizations, we write We believe the burden to address these con- mous holds. But every time we tried to you on a matter of great importance to not cerns lies with the nominee, Mr. Estrada. bring up Sonia Sotomayor, a person only the Latino community but all Ameri- The Judiciary Committee should ask ques- who is listed by my friend from Utah as cans—the nomination of Miguel Estrada to tions about these issues and give Mr. Estrada being one of the marks of excellence, a the D.C. Circuit Court of Appeals. As you an opportunity to address the concerns. Ulti- Republican would put on an anony- may know, our organizations weigh in on ju- mately, Mr. Estrada has the affirmative obli- mous hold, not even come forward and dicial nominations with a variety of fre- gation to show that he would be fair and im- say, look, I want a debate against this quency; however, we are all firmly com- partial to all who would appear before him. mitted to the view that the selection of fed- person. We hope you will be able to gather informa- She finally came to a vote. Twenty- eral judges for life-long appointments who tion at the hearing as to whether he meets will serve as the balance to the legislative this affirmative burden. nine Republicans voted against this and executive branches is critically impor- We look forward to the hearing and antici- outstanding person. To his credit, my tant to our community. As a community, we pate we could have further recommendations friend from Utah voted for her. I do ap- recognize the importance of the judiciary, as to you once we have had a chance to fully preciate that, and I complimented him it is the branch to which we have turned to evaluate the answers that Mr. Estrada pro- at that time. seek protection when, because of our limited vides to the Committee at the hearing and Even though President Clinton ap- political power, we are not able to secure and afterward. protect our rights through the legislative pointed 80 percent of the Hispanic cir- Sincerely, cuit judges that are now on the court, process or with the executive branch. This CHISTOPHER ARRIOLA, has become even more true in light of some California LaRaza there would have been more. He ap- of the actions of the legislative and execu- Lawyers. pointed two from Texas to the Court of tive branches after 9/11 as these actions af- ANTONIA HERNANDEZ, Appeals for the Fifth Circuit, Jorge fect immigrants in particular. Mexican American Rangel and Enrique Moreno of Texas. After an extensive review of the public Legal Defense and What happened? No Republican voted record that was available to us, we have con- Educational Fund. cluded at this time that we have serious con- against them, to their credit. But why? cerns about whether Mr. Estrada would fair- Mr. LEAHY. Latino labor leaders They never received a hearing or a ly review issues that would come before him made this point: They say Mr. Estrada vote. They were never allowed to come if he were to be confirmed to the D.C. Circuit is a stealth candidate whose views and to a vote. So nobody had to vote Court of Appeals. While the appointment to qualifications have been hidden from against them. They were backed by any federal bench is important to our com- the American people and from the Sen- every single Hispanic group that I munity, appointments to circuit courts be- ate. He has refused to answer impor- know of. come even more important when the Su- tant questions about his views and his Before we say, oh, my gosh, what are preme Court accepts fewer than 100 cases a year to hear. Thus, circuit courts are often judicial philosophy. They say it would we doing to this poor Hispanic Amer- the last arbiters on determining the rights of be simply irresponsible to put him on ican, here are two who were backed by individuals and communities. The D.C. Cir- the bench, and that is true. every single Hispanic group, had high cuit is perhaps even more important than To go back to some of the judges my ratings, nominated to the Court of Ap- the other circuit courts because of the role it good friend from Utah, the senior Sen- peals for the Fifth Circuit, and they plays in reviewing an extensive amount of ator from Utah, has talked about, were never allowed to have a vote. federal agency actions, from regulatory ac- Judge Richard Paez was a man strong- Christine Arguello of Colorado was tions to the orders and decisions of various ly supported by his home State Sen- nominated to the Tenth Circuit. As I Commissions and Boards. It has been re- ators. He was supported by every single ported that nearly half of the D.C. Circuit’s recall, she was backed by every single caseload consists of appeals from federal reg- Hispanic organization, and he was Hispanic group there was. She was ulations or decisions. made to wait 1,500 days for a vote. I never allowed to have a vote. Some of us have stated during the previous think a lesser person would have said: What I tried to do during the slightly Administration that we believe in a nomi- I am not going to stand, I am not going over a year I was able to be chairman nee’s right to have a hearing. Many of us to do it. But with the very strong sup- of the Judiciary Committee, I wanted pushed in the past for hearings, with mixed port he had from the Hispanic commu- to bring back some fairness to the con- success, for such Latino nominees as Richard nity, he did not want to let them down. firmation process. I tried to address Paez, Sonia Sotomayor, Enrique Moreno and Jorge Rangel. We still believe it is right to He did not want to let down his family. the vacancies we inherited as a result give a nominee a hearing once his or her pub- I talked with him many times during of a refusal to have votes on President lic record has been explored to the fullest ex- that time and encouraged him to stay Clinton’s nominees. I brought a num- tent possible. That is why we support the Ju- with it. Elections came and went and ber of them forward. I also said I would diciary Committee’s decision to have a hear- he held on. Finally, he was given a not agree to this idea of anonymous ing on Mr. Estrada. This public hearing will vote. President Clinton had to get re- holds, something that had blocked so give Mr. Estrada, the Senate and the public elected as President to have this hap- many of these Hispanic judges. a chance to hear from Mr. Estrada himself pen. When we hear how great it was Late last week President Bush nomi- about the concerns that we and others have that they put him through finally, nated one more Hispanic American to about his nomination. In the memorandum attached, we outline a after 5 years of total humiliation, and the Fifth Circuit. That is good; he has number of the areas which lead us to have that is 5 years during which he was en- now nominated two, which is, of our grave concerns about Mr. Estrada’s nom- dorsed by every single Hispanic organi- course, a fraction, two-thirds, of those

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00008 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.008 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2073 who were blocked from votes during tration’s brief opposing the University Let me share with the Senate an ac- the last administration. of Michigan affirmative action case. count of Republican use of ideology in It is not Senate Democrats who have There have been a series of reports of a connection with judicial nominations. created a confrontation over the ‘‘loud whispering campaign’’ in which There was a column in the Wall Street Estrada nomination. It begins on the right-wing conservatives touted Miguel Journal in the summer of 1998 explain- other end of Pennsylvania Avenue. I Estrada as a safer, more reliable, con- ing the anonymous Republican holds told this to the distinguished majority servative Hispanic for the President to on the nomination of Judge Sonia leader again this morning, that I have nominate to the Supreme Court in lieu Sotomayor to the Second Circuit Court tried to work with the White House to of Alberto Gonzales. of Appeals. I worked hard for 2 years on see if there is some way we might move Why? Pure and simple: Ideology; and that nomination. It is my circuit. It is this process back to the kind of bipar- a belief that you can nominate some- the circuit court I argued in front of tisan process it was when I first came body who will vote not as an inde- when I was in private practice. I was to the Senate, and that it was under pendent member of the Judiciary but astounded when Republicans held her both Republican and Democratic lead- as a Republican and—more than that— up for months without a vote. I could ership for a long time but which it is be part of the small, very conservative not understand why such an out- not now. coterie of the Republican Party, and do standing nominee was being stalled by I have urged the White House to it consistently and predictably. Republicans. After all, she initially make an effort to unite rather than di- I went to law school. As a lawyer, I was appointed to the Federal bench by vide and then we might go somewhere, argued a lot of cases before Federal a Republican President. Not only that, but there is a deafening silence from courts. You assume the judge will be she had an outstanding record as a the other side of the Pennsylvania Ave- independent and will not treat anyone judge and, before that, an outstanding nue. I do not think they really care. I one way or the other depending upon record in private practice and an out- think they see court packing as being their political party, but that he or she standing record as a prosecutor. an answer to right-wing ideologues. I will decide the case based on the facts. What was not to like about this His- think they see that there should be a This apparently is no longer enough for panic woman appointed initially by a political move on the major Federal this administration. They want a Re- Republican and now nominated by a courts that, even though that would publican judge who will vote as a Re- Democrat? She had been confirmed by destroy their independence, even publican who will be consistent and the Senate to the U.S. District Court though that would diminish substan- predictable. In other words, if you are for the Southern District of New York tially the integrity of the Federal a Democrat coming before the Federal in 1992 after being nominated by the courts, they think it should be an ideo- court or if you do not eschew a par- first President Bush. She started in a logical court packing. ticular Republican ideology when you housing project in the Bronx. She then We see this coordinated effort to im- come before that court, you are not attended Princeton University and pose a narrow ideology on our Federal going to get independent treatment. Yale Law School. She worked for more courts. The President campaigned say- That is wrong. than 4 years at the New York District ing that Justices Scalia and Thomas USA Today noted that when the Bush Attorney’s Office as assistant district are his model nominees, and that is administration did not go as far as attorney. She was in private practice what he would use as a model for GOP hardliners wanted in opposing the in New York. whomever he appoints. The Estrada University of Michigan’s affirmative So then Mr. Gigot explained to all nomination is evidence of that. Justice action program, some blamed Gonzales. what was the problem behind the Scalia particularly was a nominee who That has led to an unusually aggres- closed doors of the Republican Cloak- is not only strident in his views but re- sive whispering campaign. Conserv- room. Republicans were fearful, if she fused to share them with the Senate ative activists have been successful in were confirmed quickly, she could be in before his confirmation. Senators on persuading President Bush to nominate line to be nominated to the U.S. Su- both sides of the aisle stood up and said hardline candidates, but lower courts preme Court. Mr. Gigot wrote: they were concerned with this made it clear to reporters that George If liberals do prevail, the president could stonewalling and they would not stand W. Bush and others do not believe turn to 43-year-old district court judge Sonia for it in the future. At least one side of Gonzales is Supreme Court material. Sotomayor. She’s every Republican’s con- the aisle has stuck with that. They go on to report conservatives also firmation nightmare—a liberal Hispanic Now, last year there was a panel dis- touting Miguel Estrada, native of Hon- woman put on the district bench by George cussion at the Federalist Society duras and former Justice Department Bush. luncheon in which Lawrence Silberman lawyer, who has been nominated by That was what the Republicans and and others discussed the strategy of President Bush to serve on the U.S. ap- the Wall Street Journal editorial writ- saying nothing in confirmation hear- peals court in Washington, DC. ers said. ings. The report was that Judge Silber- The administration seeks to have it Then the Wall Street Journal fol- man offered the same advice he had both ways. They want to take credit lowed up, based on what they had been given Antonin Scalia when Scalia was with the Federalist Society when they told by the Republican Cloakroom. nominated to the Supreme Court in nominate ideological nominees, but They editorialized a few days later and 1986: Keep your mouth shut. Mr. they also want to pretend to the Amer- issued these instructions. I recall, Estrada has followed that to the letter. ican public that ideology does not mat- when we were issued instructions and I ask, why is the record for the Sen- ter. the majority leader, George Mitchell, ate’s consideration being kept so thin? I ask this: If ideology does not mat- put together a plan that brought about The answer is, so the White House can ter to the Republicans, why did they a balanced budget, they said it would have it both ways. They choose nomi- obstruct scores of President Clinton’s bring about economic ruin. We then nees based on narrow judicial ideology nominees to the courts, including sev- had 8 years of the most spectacular rise but insist the Senate proceed without eral to the DC Circuit? If ideology does in our economy and the highest em- considering it and, if possible, without not matter, why did Republicans vote ployment we ever had. knowing it. Secrecy and intimidation in lockstep against Justice Ronnie They issued instructions on June 8, are the preferred methods of operation. White of Missouri to be confirmed to 1998. We would like to think the Repub- Anyone who had any remaining the district court? If ideology does not licans may be having second thoughts doubt about the criteria used by the matter, why did Republicans filibuster and are deliberately delaying her con- White House to select judicial nomi- the nominations of Justice Rosemary firmation to see whether Justice Ste- nees need only consider the admissions, Barkett to the Fifth Circuit, Judge H. vens announces his retirement when including news reports over the last Lee Sarokin to the Third Circuit in the current Court term ends this couple of weeks following the reports 1994, Judge Richard Paez and Marsha month. in late January of Robert Novak and Berzon to the Ninth Circuit in 2000? To The reason for the delay was con- White House Counsel Alberto say we would never do this obscures firmed by a subsequent report in the Gonzales’s role in crafting the adminis- the record and blurs the rationale. New York Times. That is just one of

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00009 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.018 S10PT1 S2074 CONGRESSIONAL RECORD — SENATE February 10, 2003 scores of nominations the Republicans Since 9/11, America has been embroiled in a Voters recalled Cruz Reynosos from the have delayed or stalled or defeated be- serious public debate about who we are as California bench along with Rose Bird in cause of ideology in recent years. Americans and what are the limits of our 1986. Vilma Martinez has been a liberal civil- rights litigator. Gilbert Casellas ran the I ask unanimous consent to have freedoms, who should enjoy the protections of our laws, and what rights are to be ex- Equal Employment Opportunity Commission printed in the RECORD the May 29, 1998, tended or denied to Latinos. but has been passed over by Mr. Clinton for column and the June 8, 1998, editorial When the Supreme Court recently stripped the appellate bench. in the Wall Street Journal. immigrant workers of important employee The list’s one genuine legal heavyweight is There being no objection, the mate- protections (Hoffman Plastics), Latinos in- Jose Cabranes, a Puerto Rican immigrant rial was ordered to be printed in the quired why their voices mattered so little named to the federal Second Circuit by Mr. when so much was at stake. Many asked why Clinton in 1994. A former Yale general coun- RECORD, as follows: Latinos have had so little representation in sel, Judge Cabranes was advertised as a fi- [From the Wall Street Journal, June 18, 2002] a judiciary that has the power to shape their nalist when the president made his last Su- VISIBLE ABSENCE OF LATINOS ON FEDERAL lives. Legitimate debate is integral to the ju- preme Court pick. He’s a judicial moderate COURTS dicial selection process, and therefore it is and his confirmation would be a bipartisan (By Antonia Hernandez, President and Gen- legitimate to have this debate within the breeze. eral Counsel, Mexican American Legal De- context of confirming individuals who are But his very moderation is making him less acceptable to many Clintonites this fense and Education Fund, Los Angeles supposed to serve as impartial referees in this public debate. time. White House aides are already telling Senate sources and others that Mr. Cabranes Your editorials claim that Senate Judici- [From the Wall Street Journal, May 29, 1998] isn’t reliably liberal enough to replace Jus- ary Chairman Patrick Leahy is taking too tice Stevens. He’s especially suspect on the SUPREME POLITICS: WHO’D REPLACE JUSTICE long to confirm Miguel Estrada to the D.C. liberal orthodoxy of classifying everyone by STEVENS? Circuit Court of Appeals position that is racial and ethnic identity. He’s no conserv- (By Paul A. Gigot) often viewed as a stepping stone to the Su- ative, but he’s spoken out publicly for the preme Court (‘‘No Judicial Fishing,’’ June 11 President Clinton could soon make his ‘‘Western civilization curriculum’’ attacked and ‘‘The Estrada Gambit,’’ May 24). third Supreme Court appointment, and his by the left. Yet no mention was made of the delays for political play will be to trump Senate Re- Liberals also fret about the influence of Latino-nominated judicial candidates to the publicans by naming the first Hispanic jus- Mr. Cabranes’s daughter, whose sin is to circuit courts during the Clinton administra- tice. have belonged to the Federalist Society and tion under a Republican-controlled Senate. Such speculation is in high gear among Re- to have clerked for Judge Ralph Winter, a It took four years to confirm the nomination publicans because the White House is already Reagan appointee. It may seem odd to blame of Judge Richard Paez to the Ninth Circuit floating the names of potential replacements a father for the beliefs of his daughter, but Court of Appeals, and he had to be nomi- should Justice John Paul Stevens pack it in Clinton liberals believe in guilt by conserv- nated three times. In two instances, the Sen- when the high court’s term ends in the next ative association. ate did not even schedule a hearing for two month. If liberals do prevail, the president could Retirement for the flinty, independent 78- eminently qualified Latinos to the Fifth Cir- turn to 43-year-old New York district court year-old justice is no sure thing. Merely cuit Court of Appeals: Enrique Moreno and judge Sonia Sotomayor. She’s every Repub- hearing such speculation could cause him to Jorge Rangel, whose nominations languished lican’s confirmation nightmare—a liberal stay on, and by all accounts he’s in good and died in the Judiciary Committee. Hispanic woman put on the district bench by mental and physical health. It’s also clear The Mexican American Legal Defense and George Bush (at the request of Democratic from his Clinton v. Jones opinion that he’s Education Fund (MALDEF) believes it is un- Sen. Pat Moynihan). no great admirer of this president. Her willingness to legislate from the bench fortunate the federal judiciary remains pre- But friends who’ve spoken with Justice was apparent in her recent decision that a dominantly white and male. Latinos are visi- Stevens say that for the first time he seems private group giving work experience to the bly absent from the Supreme Court and like a man seriously contemplating retire- homeless must pay the minimum wage. many of the federal appellate courts. but ment. He already spends much of his time in Never mind if this makes them that much just being Latino is not enough. At the end Florida, where his wife wouldn’t mind seeing harder to employ. Mr. Clinton has nominated of the day, the decisions made by these indi- him more. He’s also talked about the subject Judge Sotomayor to join Mr. Cabranes on viduals apply to all regardless of race, eth- with more than one of his bench colleagues. the Second Circuit, and she’s said to be a fa- nicity, gender or immigrant status. The timing would certainly make ideolog- vorite of Hillary Rodham Clinton. The fact that a nominee is Latino should ical sense for the court’s ranking liberal. By All of which means that a Stevens retire- not be a shield from full inquiry, particu- retiring this year, he’d shelter his succes- ment would put a large political burden on larly when a nominee’s record is sparse, as in sor’s confirmation from the presidential pol- the protean shoulders of Judiciary Chairman Mr. Estrada’s case. It is vital to know more itics that will be going strong next summer. Orrin Hatch. His own choice would probably about a nominee’s philosophies for inter- A Clinton nominee next year would also be Judge Cabranes. And the Utah Republican preting and applying the Constitution and probably face a Senate with even more Re- has privately explained his brisk approval of laws. publicans than the current 55. Clinton lower-court nominees as a way to It is also important for Latinos to raise If Mr. Stevens waits until the summer of gain leverage and credibility for the more questions about how a nominee’s views 2000, he’d run the risk that his successor significant Supreme Court pick. But Mr. might affect our community. MALDEF is would be named by a conservative president. Clinton has fooled Republicans before. not seeking to stall Republican nominees. While the justice appointed by Gerald Ford Maybe Republicans are better off begging During President Bush’s first year, two likes to claim GOP credentials, you can bet Justice Stevens to stay. Latinos whom MALDEF supported were he doesn’t want to be replaced by another Mr. LEAHY. When the Republicans nominated and have been confirmed. We Antonin Scalia. If he wants to preserve the have met with White House officials and now protest that the Senate can only current court’s precarious liberal-conserv- look at where a person went to school, asked them to nominate more Latinos. To ative balance, this is the year to depart. date, President Bush has nominated only one The biggest beneficiary would be Mr. Clin- and the rating the newly compliant Latino to the circuit court. ton, who is eager to pad his lackluster leg- ABA provides, they are disregarding We firmly believe that all judicial nomi- acy. That argues for naming the first His- their own past practices. A young con- nees should have hearings once their records panic justice, an act of symbolic politics servative activist spilled the beans have been adequately examined in a fair and that would enhance Democratic ties to the quite explicitly recently on the ‘‘Cross- impartial manner. nation’s fastest growing ethnic group. fire’’ television program in which he Individuals appointed to the federal bench, The move would also mousetrap Senate said: a lifetime appointment, must meet basic re- Republicans, who will be loathe to oppose quirements such as honesty, integrity, char- anyone with a Hispanic surname. Still . . . the second [he] gets in there he’ll over- acter and temperament. smarting from the backlash against their rule everything you love— But the inquire must not stop there. We anti-immigration idiocy of 1994–96, some Re- Everything moderates have worked must also look to the nominee’s record as it publicans would vote to confirm Geraldo Ri- to enact over the years. reflects his/her demonstrated understanding vera. That seems to be the badly kept se- and commitment to protecting the rights of And the problem is, they might have to cret, as to why the White House chose ordinary residents and to preserving and ex- vote on the judicial equivalent. The lineup of Mr. Estrada for this nomination—pre- panding the progress that has been made on qualified Hispanic Democratic judges is cisely because of his ideology. Keeping civil rights, including rights protected shorter than admirers of Monica Lewinsky’s through core provisions in the Constitution, lawyer William Ginsburg. A list submitted to that secret is apparently what moti- such as the equal protection clause and the the White House (and delivered in person to vated the strategy that resulted in his due process clause, as well as through the Vice President Al Gore) by the Hispanic Na- extraordinary lack of responsiveness to statutory provisions that protect our legal tional Bar Association contains only six substantive questions regarding his rights. mostly minor-league names. views and judicial philosophy.

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00010 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.020 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2075 Nobody can look at opinions of the I agree with that. What I do not judges of Republican Presidents— Supreme Court and believe that Jus- agree with is that we say we must have President Ford, President Reagan, tice Scalia and Justice Thomas do not a standard of impartiality on judges, former President Bush, and the current have an agenda, the two stated by the that they cannot be activists, that President Bush, just as I have for President to be his model for nominees. they must answer their questions—we Democratic Presidents. I have also But I am left with a fear that Mr. can say that is the standard if it is a voted against judges, those nominated Estrada, likewise, comes to this nomi- Democrat referring them to the Judici- by Democratic Presidents as well as by nation with a hidden agenda. ary Committee, but that all goes out Republican Presidents. I do this be- Maybe it is the nature of the beast, the window when it is a Republican. cause I know it is a lifetime appoint- but I have never seen so many croco- I agree that we must ask what their ment and we want to make sure of dile tears in my life from the other side judicial philosophy is and they must what we do. Most I voted for confirma- of the aisle as they ask: Why are we answer the questions. That is the tion. asking these questions? How can you standard that the Republicans set over As I said before, we set an all-time possibly question this man? How can and over again, both those who went on record—certainly the record for the you possibly question this man? to serve in the White House and my last 10 or 15 years—during the year and I am going to tell the Senate a secret friend from Utah when he was chair- a half or so that I was chairman of the as to why it is we asked for this. I man of the Senate Judiciary Com- Senate Judiciary Committee, sending know my friends on the other side may mittee. It is a standard on which we out 100 Federal judges, both circuit and not want to let this out, so I will tell should all agree. district, including, I say to the Senator it just to those in this room where we But what I do not agree on is when it from Alabama and the Senator from learned to look into this. We heard it is a Republican making the nomina- Utah who is in the Chamber, judges from a speech given to the Federalist tion, no standards are required—no from their States—not Democrats. Society in which the Senator speaking standards are required. We can’t ask They were Republicans. I think a lot of said: about philosophy. We can’t ask about their philosophy is different than mine. [T]he Senate can and should do what it can temperament. We can’t ask what they I trusted their integrity, and they an- to ascertain the jurisprudential views a are going to do with this lifetime ap- swered the questions. nominee will bring to the bench in order to pointment. But here, the little record we have prevent the confirmation of those who are In this case specifically, Mr. Estrada calls into question whether this person likely to be judicial activists. Determining refused to provide us the answers about can be a neutral referee or an advocate who will become activists is not easy since the types of jurisprudential views that and activist from the bench. That is many of President Clinton’s nominees tend Chairman HATCH and Mr. Flanigan said really where we are. to have limited paper trails . . . Determining We have a duty to the American pub- which of the President’s nominees will be- they must—they must—answer. At least they said they must answer when lic to say when we give our imprimatur come activists is complicated and it will re- by voting to confirm somebody to a quire the Senate to be more diligent and ex- it was a Democrat nominating them. tensive in its questioning of a nominee’s ju- But I guess if it is a Republican nomi- lifetime position on the Federal courts risprudential views. nating them we get kind of a pass; that that we have made every effort possible to make sure we are going to maintain I read that speech. In a sense of bi- there is going to be jurisprudential pu- the integrity and the independence of partisanship, I want you to know that rity. the Federal judiciary; that we are not I agree exactly with what Senator Extensive questioning of this nomi- going to turn the Federal judiciary HATCH said in Utah when he gave that nee’s jurisprudential views have been forestalled and short circuited. He does into a political arm. speech to the Utah branch of the Fed- We elect Presidents. In electing have a paper trail but it has been kept eralist Society. When Senator HATCH them, we say they can be political. I secret by the White House. There is a said that we have to prevent the con- said I wish Presidents would be uniters paper trail that says what his jurispru- firmation of those who are likely to be and not dividers. In this case, they dential views are, but the White House judicial activists; the Senate must be have been a divider and not a uniter— has kept it secret. more diligent and extensive in its ques- but the nature of it is they are ex- We want judges to be fair and impar- tioning of nominees’ jurisprudential pected to be political. views, I think my friend from Utah had tial. That is what I believe most Amer- We elect men and women to the it absolutely right and, guess what, icans want. An independent judiciary is House of Representatives and to the that is exactly what we are doing here. a bulwark against us losing our rights Senate to carry a political agenda, but In fact, when a Democratic President and our freedoms. I say it again. The we put people on the Federal judiciary was sending judicial nominees to the vast majority of people, if they go into to be independent and nonpolitical. Senate, the man who would later be- Federal court, want to be treated fair- Here we are being told that we are come the principal Deputy White ly. They want to look at that judge and going to fill out a political agenda. House Counsel for the President, the say, it doesn’t make a difference My friend from Alabama wishes to man who played a significant role in whether I am Democratic or Repub- speak. I will speak further but give him the selection of President Bush’s judi- lican, conservative, liberal, rich, poor, a chance to speak. cial nominees, Tim Flanigan, said, the what my color is, or what my creed is, Mr. President, I ask unanimous con- Judiciary Committee and the Senate or anything else; I am now before the sent that several editorials and letters must be extraordinarily diligent in ex- Federal courts, the most respected ju- opposing Mr. Estrada’s nomination be amining the judicial philosophy of ju- dicial system in the world, and I am printed in the RECORD. dicial nominees. going to be treated fairly. There being no objection, the mate- This man, who went on to help the But, whether they know it or not, rial was ordered to be printed in the current President Bush pick judicial whether they think of it or not, they RECORD, as follows: nominees, said: have that sense that it is going to be a [From the New York Times, Jan. 29, 2003] In evaluating judicial nominees, the Sen- fair treatment because historically the AN UNACCEPTABLE NOMINEE ate has often been stymied by its inability to Senate has maintained that integrity The Senate Judiciary Committee is sched- obtain evidence of a nominee’s judicial phi- and independence of the Federal judici- uled to vote tomorrow on Miguel Estrada, a losophy. In the absence of such evidence, the ary. nominee to the D.C. Circuit Court of Ap- Senate has often confirmed a nominee on the From the first part of our Nation’s peals. Mr. Estrada comes with a scant paper theory they could find no fault with the history when the Senate even turned trail but a reputation for taking extreme po- nominee. I would reverse the presumption down judges nominated by President sitions on important legal questions. He and place the burden squarely on the judicial George Washington, the most popular stonewalled when he was asked at his con- nominee to prove that he or she has a well- firmation hearings last fall to address con- thought-out judicial philosophy, one that President in our history, the Senate cerns about his views. Given these concerns, recognizes the limited role of Federal judges. has maintained the integrity and inde- and given the thinness of the record he and Such a burden is appropriately borne by one pendence of the Federal judiciary. his sponsors in the administration have cho- seeking life tenure to wield the awesome ju- As I said before, I have voted on hun- sen to make available, the Senate should dicial power of the United States. dreds of judges. I voted for hundreds of vote to reject his nomination.

VerDate Dec 13 2002 02:06 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00011 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.021 S10PT1 S2076 CONGRESSIONAL RECORD — SENATE February 10, 2003 Mr. Estrada, a native of Honduras and defense of Mississippi’s anti-miscegenation The available record of Estrada’s legal po- graduate of Harvard Law School, has a laws, throws another steak to the far right sitions raises grave concerns about how he strong legal resume. But people who have and sand in the eyes of most Americans. might rule on constitutional matters affect- worked with him over the years, at the solic- There could be another explanation for ing Latinos. For example, his work in the itor general’s office and elsewhere, report Bush’s decision, just weeks after denouncing area of criminal justice raises serious doubts that his interpretation of the law is driven Lott, to again shove Pickering on the Amer- as to whether he would recognize the 1st by an unusually conservative agenda. Paul ican people. Perhaps the president doesn’t Amendment rights of Latino urban youths Bender, a law professor and former deputy really care whether Pickering, Whom he’s in- and day laborers, and it casts serious doubt solicitor general, has called Mr. Estrada an dignantly defended as ‘‘a fine jurist . . . a on whether he would fairly review Latino al- ideologue, and said he ‘‘could not rely on his man of quality and integrity,’’ is confirmed. legations of racial profiling. written work as a neutral statement of the Maybe Bush calculates that Sens. Edward In 1977 he worked pro bono to defend the law.’’ In private practice, Mr. Estrada de- M. Kennedy (D–Mass.), Charles E. Schumer city of Chicago’s ban on loitering, which was fended anti-loitering laws that civil rights (D–N.Y.) and others, justly incensed that the designed to curb gangs and drug activity. In- and groups have attacked as racist. judge is back before them, will embarrass a stead, the ban resulted in police harrassment Unlike many nominees who are named to Republican or two into joining them and de- of Latino and African American youths. an appeals court after years as a trial judge feat his nomination a second time. The presi- After the Supreme Court struck down the or- or professor, Mr. Estrada has put few of his dent may be figuring that if they can call in dinance as unconstitutional, Estrada volun- views in the public record. One way to begin enough chits on Pickering, the Democrats teered to defend a similar one in Annapolis, to fill this gap, and give the Senate some- won’t have the votes to stop the many other Md., which was also found to be unconstitu- thing to work with, would be to make avail- men and women he hopes to place in these tional. able the numerous memorandums of law that powerful, lifetime seats on the federal bench. As a government attorney, he argued that None of those nominees can be tarred with Mr. Estrada wrote when he worked for the police discretion was wide, that officers Pickering’s in-your-face defense of segrega- solicitor general’s office, as other nominees could execute a search warrant in a felony tion. But many, including Texas Supreme have done. But the White House has refused drug investigation without knocking and an- Court Justice Priscilla Owen, lawyers Miguel senators’ reasonable requests to review these nouncing who they were. This indicates his Estrada and Jay S. Bybee, North Carolina documents. disdain for the protections of the 4th Amend- Judge Terrence Boyle and Los Angeles Supe- Mr. Estrada, now a lawyer in Washington, ment. rior Court Judge Carolyn B. Kuhl, share a also had an opportunity to elaborate on his In other areas, Estrada has stated that he disdain for workers’ rights, civil liberties views, and assuage senator’s concerns, at his has never raised the issue of diversity in any guarantees and abortion rights. Their con- confirmation hearing, but he failed to do so. of his workplaces and that he would not seek firmations would be no less a disservice to to help Latinos by hiring them as clerks, and When asked his opinion about important the American people than that of Pickering, he dismissed concerns about the lack of di- legal questions, he dodged. Asked his views who now has been nominated two times too versity among Supreme Court law clerks. In of Roe v. Wade, the landmark abortion case, many. Mr. Estrada responded implausibly that he 2001, in the Annapolis anti-loitering case, had not given enough thought to the ques- [From the Los Angeles Times, Feb. 5, 2003] Estrada argued that the NAACP had no tion. standing to represent the interests of Afri- LATINO WOULD SET BACK LATINOS Senators have a constitutional duty to can Americans. This indicates he probably weight the qualifications of nominees for the (By Antonia Hernandez) would question the right of access to the federal judiciary. But they cannot perform It is ironic the President Bush, whose law- courts of groups that have historically rep- this duty when the White House sends them yers excoriated affirmative action at the resented the interests of Latinos. candidates whose record is a black hole. Mr. University of Michigan, would nominate Our opposition is not partisan. MALDEF Estrada’s case is particularly troubling be- Miguel Estrada, an unqualified Latino, to has supported President Bush’s nomination cause the administration has more informa- the U.S. Court of Appeals for the District of of well-qualified Latinos who are conserv- tion about his views, in the form of his solic- Columbia in order to achieve diversity. The ative and will continue to do so. However, itor general memos, but is refusing to share full Senate takes up the nomination this when a nominee, like Estrada, is an ideo- it with the Senate. week. logue who hides his views and who is so lack- If Mr. Estrada is confirmed, he is likely to The Mexican American Legal Defense and ing in experience, we have little choice but be high on the administration’s list for the Educational Fund, or MALDEF, and other to oppose the nomination. The courts and next Supreme Court vacancy. The D.C. cir- Latino and civil rights organizations believe the job of justice are too important. cuit is a traditional feeder to the Supreme that in a nation of more than 37 million Latinos, the federal judiciary should not re- Mr. LEAHY. Mr. President, I yield Court, and it is widely thought that for po- the floor. litical reasons the administration would like main overwhelmingly white and male. The to name a Hispanic. nation needs judges who understand us, the The ACTING PRESIDENT pro tem- The very absence of a paper trail on mat- Latinos are visibly absent from the Supreme pore. The Senator from Alabama is rec- ters like abortion and civil liberties may be Court and many of the federal appellate ognized. one reason the administration chose him. It courts. The judiciary is the branch of gov- Mr. SESSIONS. Mr. President, I be- is also a compelling—indeed necessary—rea- ernment to which we have turned to seek lieve Senator KYL was in the line to son to reject him. protection when, because of our limited po- speak next. I think probably he will be litical power, we are not able to secure and here shortly. [From the Los Angeles Times, Jan. 13, 2003] protect our rights through the legislative process or the executive branch. I would like to say one thing about BUSH’S FULL-COURT PRESS However, Estrada has neither dem- this issue of ideology. We had hearings There are at least two explanations—one onstrated that he understands the needs of on it. I know Senator SCHUMER advo- even more cynical than the other—for Presi- Latino Americans nor expressed interest in cated that we ought to consider ide- dent Bush’s renomination last week of Judge the Latino community. A thorough review of ology—I guess he meant politics—of Charles W. Pickering, a man the Senate his sparse record indicates he would probably the nominee. Some of my friends rightly rejected last year for a seat on the make rulings that roll back the civil rights federal appeals court. of Latinos. Simply being a Latino does not across the aisle asked: Why do Repub- Perhaps Bush really didn’t mean it last make one qualified to be a judge. licans nominate Republicans and month when he denounced as ‘‘offensive . . . The decisions made by judges apply to all, Democrats Democrats, if ideology and wrong’’ Mississippi Sen. Trent Lott’s regardless of race, ethnicity, gender or im- doesn’t matter? nostalgic musings about the segregated migrant status. Individuals appointed to the We voted for those nominees. Presi- South. The Republican Party has long tried federal branch, a lifetime appointment, must dent Clinton had confirmed during his to have it both ways on race: ardently court- meet basic requirements such as honesty, tenure as President of the United ing minority voters while winking at party open-mindedness, integrity, character and States 377 Federal judges. This Senate stalwarts who consistently fight policies to temperament. They must also go a step be- establish fairness and opportunity for mi- yond that and affirmatively demonstrate voted down one judge. That is all we norities. Even Bush has not always been that they will be fair to all who appear be- voted down on the floor of the Senate. above such doublespeak, encouraging Afri- fore them in court. None were blocked in committee. All can Americans to vote GOP and touting his Estrada’s lack of qualifications has were voted out of committee, unless Spanish-language facility on the campaign prompted many prominent Latino organiza- they had objections from home State trail as a come-on to Latino votes even as he tions and others to oppose him, including Senators and came up until the last of dropped in at Bob Jones University, which, MALDEF, the Puerto Rican Legal Defense the administration. And 41 judges had until three years ago, barred interracial cou- and Education Fund, the Southwest Voter ples from sharing a pizza. Registration and Education Project, Latino been nominated and were pending ei- Bush’s renomination of Pickering, a man union leaders, the Leadership Conference on ther in committee or on the floor when whose law career is unremarkable but for his Civil Rights and Congress’ Hispanic and President Clinton left office. Com- longtime friendship with Lott and his dogged Black causes. paring that to when President Bush

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00012 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.010 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2077 left office and the Democrats con- sumption of confirmation. I thought it ture would not act, so the judges had to trolled the Senate, there were 54 nomi- was pretty successful in how we han- act. That is not legitimate. If the legis- nees pending and unconfirmed. dled it, and that the evaluations we lature did not act, that is a decision of I think all of us need to take a deep considered on the issue should not be the legislature, a decision not to act. It breath and to remember that the judi- changed. The rules ought not to be is no less valid than a decision by a leg- ciary is made up of human beings. changed to going to a different way of islature to act on a matter. They are appointed by the President. considering nominations. Judges ought to follow the law as Our President believes in judicial re- Senator HATCH—I have to agree, and written. They ought to understand the straint. He believes that judges should I think my colleague, Senator LEAHY, great power of that branch of Govern- not enact political agendas from the would agree with this—set forth a prin- ment. They ought to be independent. bench. That is the criteria he has cipal position for evaluating judges. He They should strike down laws that are used—that and excellence and integ- said we should consider judicial philos- unconstitutional. That is not being ac- rity. Miguel Estrada, probably as much ophy. He did not say we should con- tivist. If a law is in violation of the as any nominee we have ever had, rep- sider their politics. He talked about ju- Constitution, a conservative or liberal resents excellence, integrity, and expe- dicial philosophy and the danger. The judge, I hope, will strike it down. We rience that would qualify him for the issue that concerned him and con- have accepted that since Marbury v. job. Indeed, he unanimously won the cerned most Americans was the ques- Madison, since virtually the beginning highest rating from the American Bar tion of judicial activism. This was a of this country. But that is not activ- Association, ‘‘well qualified.’’ philosophy taught in law school for ist. What is activist is to misrepresent But I will just say that we did, in many years. I think maybe hopefully what the Congress intended, to twist fact, vote overwhelmingly for Presi- that it is a little less prominent today the meaning of the words of the Con- dent Clinton’s judges—377, and one we than it was 15 or 20 years ago—that gress, or to alter the meaning of the voted down. Only 41 were left pending good judges shove the envelope, good words of the Constitution to promote a when he left office, which is well with- judges should be activists, they should short-term political agenda. I really in the tradition of this Senate. promote good causes and use the power think that is our problem. Activism Frankly, if people get nominated of their office to further causes which late, they don’t have time for hearings. can be defined in a number of ways, but they believe are just and to strike it is quite different from a person’s po- Sometimes the Senate will think, let’s blows for the poor, and that kind of see how the election comes out and litical philosophy. thing. It was a strong philosophy. To me, the high water mark of judi- leave some hanging. That has always But the truth is that is a dangerous cial activism was when we had two happened here. That can be criticized. philosophy. When you are talking members of the U.S. Supreme Court But we do that. What we are seeing about a lifetime appointment of a per- dissent on every single death penalty now is a slowdown of nominees at the son to the Federal bench, they should case. Their dissent was, they believed beginning of the process. understand that they are not empow- the death penalty was cruel and un- I also note that as we considered ered to render rulings that go beyond usual punishment and the Constitution these nominees we had hearings on the the plain meaning of the law. They prohibits the imposition of cruel and burden of proof. A group of liberal pro- should not render rulings that twist unusual punishment. They said, ac- fessors met with the Democratic lead- the meaning of words—giving words cording to the changing standards they ership soon after President Bush was new and different meanings than were live in today, this was no longer com- elected President. They made a pro- intended when the Congress passed leg- patible with humane or legal systems posal that the ground rules of judicial islation, or when the Constitution was or modern thought, and therefore they nominations should be changed. They written. That is a very important issue just found it cruel and unusual to exe- didn’t propose it while President Clin- to me. cute anyone by any means, and there- ton was nominating his nominees, On this question of activism, when fore the whole death penalty statute many of which were ACLU members, you give an unelected judge and an should be struck down. and many of which were strongly pro- unelected court lifetime appointments The reason that was particularly ill abortion, and those kinds of things. with no accountability to the people, advised, in my view, is that at the time They didn’t raise that then. But as the power to redefine the meaning of the Constitution was adopted, it had soon as the election was over, they pro- words and to change historic under- the cruel and unusual punishment lan- posed changing the ground rules, ac- standings of our clauses and phrases in guage in it but it also had six or eight cording to the New York Times report our statutes and in our Constitution, references in an approving way to a of that event. One of the things was we have diminished democracy because death penalty. They talked about cap- that they would consider ideology. An- they are democratically accountable. If ital crimes and what the rules should other one was that they would change we changed the law, they can vote us be in a capital crime. And capital the burden of proof—that for the first out of office. The next group of Sen- crimes are death penalty cases. They time in history the burden would be on ators or Congressmen can change the said life, liberty, and property cannot the nominee to somehow prove that law if we vote badly. But if they de- be taken without due process of law— they were worthy of the appointment clare that the Constitution says you you can’t take life. That means a death instead of having the Senate review the can’t do this or you must do that, then penalty. presumptive power of the President to it is much, much more difficult to deal Every State in the Union at the time make the nominee and then if dis- with. the Constitution was written had a agreeing object to them. That was a Certainly, in this Congress we do not death penalty, and so did the Federal big deal. We had hearings on that in want to impeach judges because we dis- Government have death penalties. So the court subcommittee of the Judici- agree with their opinion. What we need for those two judges to actually dissent ary, of which I am a member. are judges on the bench who are honor- in case after case after case, to me, was Senator SCHUMER was an advocate of able, intelligent, capable, and who un- merely imposing their personal views both of these positions. But the hear- derstand their role, which is to enforce at one moment in time over the estab- ings he held were fair, and we had an the law as written. And that is the lished will of the legal system that had interesting debate about it. kind of judge we ought not have fear been from the beginning. It is also con- I will just say, being the ranking Re- of, as one witness said. trary to the views of the majority of publican during that time, that the Why should we fear a judge who the States in the United States. And witnesses and the evidence we took to shows restraint? Our liberties are not the polls have shown—if they want to me clearly did not support changing at risk by a judge who shows restraint. go to evolving standards of decency the ground rules. People such as Lloyd Our liberties are at risk when we have that the American people oppose the Cutler, who was counsel to the White a judge who believes they have the death penalty—that, in fact, over- House under Presidents Carter and ability to go beyond what statutes say whelmingly they favor the death pen- Clinton, opposed that. He believed that and to do what they think is right. You alty. So I think we do need to watch nominees should be given also the pre- have heard them say: Well, the legisla- that.

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00013 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.025 S10PT1 S2078 CONGRESSIONAL RECORD — SENATE February 10, 2003 (Mr. CHAMBLISS assumed the done then? No. The history of our con- and use it to undermine the established chair.) firmation process and the strong opin- law of the land? And they would all Mr. SESSIONS. One of the big issues ion of the American Bar Association, say: We will enforce the law. we have before us, as we consider Presi- an independent arbiter in these mat- That is how they came to be con- dent Bush’s nominees, is: Are we look- ters, is that they should not be lured firmed. I hope and trust to this day ing to have people on the bench to fur- into expressing opinions on cases that they are complying with that. Our sys- ther our political agenda, or are we are likely to come before them on the tem would not work were it otherwise. just looking for a neutral arbiter, bench. That is so fundamental and so I reiterate my growing admiration someone who can evaluate the cases sound a principle that I cannot imagine for Miguel Estrada’s capabilities. He between litigants and make a fair and anyone would suggest it be changed. came here as a teenager, was an honors just rendering of an opinion on it? That Lloyd Cutler, White House Counsel to graduate, the highest possible honors is what it is all about. Presidents Clinton and Carter, wrote at Columbia College. He went to Har- One of the things that was raised in this: vard Law School where he finished at complaint about Miguel Estrada was he Candidates should decline to reply when ef- the top of his class and was chosen edi- would not answer all their questions forts are made to find out how they would tor of the Harvard Law Review. For a about his views on cases and lawsuits, decide a particular case. graduating law senior from a law and so forth. They said he would not That was his testimony in our hear- school to be editor of the Law Review produce his internal memoranda when ing as we discussed these issues in the is one of the highest, probably the he was a part of the Solicitor General’s Judiciary Committee. That certainly is highest, honor that can be received. He Office of the Department of Justice. correct to me. I believe that is sound was chosen that by his fellow members. Every living former Solicitor General policy, whether we have a Republican He didn’t clerk for a Second Circuit of the United States, Republican and President or a Democratic President. I Court of Appeals judge. They say he Democrat, to my knowledge, has writ- do not recall that Senator HATCH ever doesn’t have judicial experience. He sat ten that he ought not to do that. Law- insisted a judge tell him how he was at the right hand of a Federal circuit yers ought to be encouraged to write to going to rule. judge, doing the kind of work he will be their clients, the Department of Jus- My good friend Senator LEAHY, he doing as a judge today, for 2 years. Not tice superiors, and give their opinions. likes to talk about the Federalist Soci- only that, he was such an astoundingly Let me add one thing about that ety and Senator HATCH making a qualified and capable young lawyer, he issue. The memoranda that he wrote speech at the Federalist Society. They was chosen to be a law clerk for Jus- were not to John Mitchell. The memo- take no position over any of these legal tice Anthony Kennedy on the Supreme randa that he wrote were for Janet issues. They are a forum for debate. Court of the United States. Anybody Reno and the Clinton Department of Most of the members, perhaps, believe who knows anything about the legal Justice. He was in the Solicitor Gen- in a restrained judiciary, but they have profession knows being chosen as a law eral’s Office during that time. And he a lot of different ideas and vigorous de- clerk by a Supreme Court judge is a was evaluated and given the highest bate, and they publish articles that dis- great honor, something very few people possible evaluation by the Clinton De- agree with one another. ever get the opportunity to do. It is partment of Justice attorneys. One of But we confirmed a host of Federal considered a matter of great signifi- them specifically noted in that evalua- judges under President Clinton who cance. tion that he followed the procedures were members of the American Civil Of course, Justice Kennedy is consid- and policies of the Clinton Department Liberties Union. You may say: Well, ered one of the swing justices on the of Justice. So I do not see how it can be you know the American Civil Liberties Supreme Court, not one my colleagues suspected that he was writing right- Union. They do some good work. I like to talk about as an extreme con- wing extremist memoranda within that don’t think we should just vote against servative. That is who he clerked for, Department of Justice while having them for that reason. And we didn’t. and remains close to Justice Kennedy the kind of respect and high evalua- We confirmed almost all of them. As a to this day. He is admired by him. tions that he had. So I believe that is matter of fact, I am not sure any of Then he went to the Department of important. them who were members did not get Justice to the Solicitor General’s of- There is a real reason that judicial confirmed. fice. The Solicitor General’s office is nominees—and I know the Presiding Look at the Web site of the ACLU. It the law firm for the United States be- Officer is a lawyer and understands takes positions on issues. The ACLU fore the Supreme Court. It is within these issues—why someone thrown into believes there should be total separa- the Department of Justice. They pre- a hearing ought to be reluctant to an- tion of church and State. I am sure pare the arguments before the Supreme swer questions about complex cases they agree with the proposal that we Court, the appellate courts. Of course, when we have a hearing on the con- ought to take ‘‘under God’’ out of the that is what Miguel Estrada will be firmation of a nominee to the Federal Pledge of Allegiance. They believe in considered for, an appellate court courts of the United States. If they are the legalization of drugs. They believe judge, not a trial judge, but an appel- confirmed, they will be given impor- pornography laws should not be on the late court judge. He did a remarkable tant cases on which to rule. I hope and books and are unconstitutional. They job there, receiving the highest pos- I pray they will spend many hours believe even that child pornography sible evaluations by the Department of reading the briefs of the parties, read- laws are unconstitutional. That is a Justice. ing personally the major cases in the stated position. After that, he went into practice country that deal with that issue, and Out of deference to President Clin- with one of the premier law firms in they give it sincere thought and pray- ton’s nominees and his power and pre- the world in Washington, DC, and was erful consideration before they render rogative of appointment, we confirmed evaluated by the American Bar Asso- a verdict. That is what we want. a bunch of them who were members of ciation. The American Bar Association To throw somebody in a hearing and the ACLU, one of whom was a litiga- takes its evaluation seriously. They do to start asking them how they are tion committee chairman for the an independent background check. going to rule on this matter or that ACLU. Others had been State directors They make the nominee submit a list matter is improper. And asking them of the ACLU. of their most significant cases. They that would bind them, if they got in. In What did we do? We asked them in have to give the names and addresses other words, let’s say that they said: the hearing: Do you personally support of the judge who tried the case, names Well, I favor this, Mr. Senator; I hope all those views? They would usually and addresses of the opposing counsel, that makes you happy; and I agree say they didn’t. and maybe even cocounsel, and to sum- with you. And then they become a We would say: Well, whether you marize the case. judge, and they get a stack of briefs, agree or not on drug legalization, let When that is done, the ABA inter- and they start reading the opinions, me ask you this: If we pass a law that views them. They don’t interview just and they come back out with the belief says drugs are illegal, will you enforce their friends. They interview the law- that that is wrong. What have they it? Will you take your office as judge yers on the other side of the cases.

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00014 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.027 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2079 They want to know, was this person a filibuster, almost evenly divided be- nees; in fact, have even voted for clo- fair litigator; did he understand the tween Republicans and Democrats. It ture but against the nominee on the law; were his arguments coherent; did was not a concerted effort by one side merits. I have done the same thing he have integrity; did you respect him or the other to galvanize their mem- with respect to two nominees President in the course of this litigation. Out of bers into speaking as long as it took to Clinton nominated. It is quite possible that evaluation, the American Bar As- cause the withdrawal of the nomina- to oppose someone on the floor but to sociation unanimously voted he was tion by the leader. understand that we should never get well qualified for the court of appeals, If the minority leadership decides to the Senate in a position where filibus- and ‘‘well qualified’’ is the highest engage in that tactic with respect to tering a judge is the order of the day evaluation given. Miguel Estrada, it would be not just and, therefore, a 60-vote majority is re- We are proud of his achievements. unfortunate but permanently dam- quired for confirmation. President Bush has nominated an ex- aging to the relationship between the Since Senator LEAHY is here, because traordinary judge. As I study more Senate and the executive and to the I think he said it very well, in two dif- about Miguel Estrada and see more of process by which we confirm nomina- ferent contexts, I will quote his own his record, the more confident I am he tions. words on the subject. On June 18, 1998, will be not just a good justice but a It is both a matter of tradition and Senator LEAHY said: great one. I believe that strongly. comity. I know there are some who I have stated over and over again on this I see Senator KYL is here. We have make the argument that there is a re- floor that I would object and fight against been going back and forth, so if you quirement the Senate’s confirmation any filibuster on a judge, whether it is some- were able to allow him to speak at this process be by majority vote. I don’t body I have opposed or supported. time, that would be good. think that case has been definitively I think that is the essence of the tra- Mr. LEAHY. Mr. President, if the established, but it certainly has been a dition of this body: That while we may Senator from Arizona has something matter of tradition. have disagreements sometimes and we else, of course, I will be here a lot There is a reason for it. That goes to are each free to cast a vote against a longer, I believe. If it would accommo- the second. It has been a matter of nominee, we understand that a fili- date him, I would be more than happy comity. The way our separation of buster to prevent a nominee from being to do that. And then if we could go powers works is each branch respects voted on would be very wrong; it would back to this side, I would appreciate it. the power of the other. set a very bad precedent. Mr. SESSIONS. I thank Senator Now, when the Founding Fathers set I think Senator LEAHY was exactly LEAHY. I yield to the Senator from Ari- it up, they were clear to provide juris- correct when he uttered those words. zona. diction, but they left a lot of gray area In fact, he also said a year later, on The PRESIDING OFFICER. The Sen- between the jurisdiction of the three September 16, 1999: ator from Arizona. branches; and over the course of 200- I do not want to get into having to invoke Mr. KYL. I thank Senator LEAHY. I plus years, the three branches of Gov- cloture on judicial nominations. I think it is was hoping I would be able to speak a ernment have accommodated to each a bad precedent. little bit earlier because there are spe- other’s jurisdiction in a way with He said it more succinctly than I cifically some things the Senator from which the Supreme Court has infre- have tried to say it here, but I agree Vermont said, so I am pleased he is quently, but importantly, dealt. with the distinguished ranking member here and I can respond to couple of The Supreme Court, as a matter of of the committee that a filibuster on a comments he made. He is someone fact, exercising that degree of judg- judge, whether you oppose or support a who, as chairman of the committee and ment and comity, generally has stayed nominee, is wrong and it should be now as ranking member, has important out of what it calls political issues, for fought. I hope Senator LEAHY will fight remarks about this process. I want to example. Part of that comity is that it. Many in his party would like to see specifically relate to some of the the Senate has always believed it im- a filibuster. Nobody disagrees that ev- things he did have to say. portant to consider the most important erybody should have a complete say on There are two aspects of this nomina- nominees of a President and that the the matter. I agree with that. We are tion of Miguel Estrada that should votes on those nominees be determined willing to talk about Miguel Estrada catch our attention. The first has to do by a majority vote rather than extraor- for as long as it takes. Because he is so with the qualifications of this extraor- dinary majorities or special procedures well qualified, it is fun to talk about dinary American. The second has to do of the Senate. him, and it is going to be good to get with the process by which he is being That is because, in the modern idiom, him confirmed. When the talking is considered. If we are not careful, this ‘‘what goes around comes around,’’ over, we need to have a vote up or body could set a very bad precedent. If which is a crude way of saying we down. Senators actually decide to filibuster know that, over the long haul, all of us May I also turn to a couple of other the nomination of Miguel Estrada, are going to be in the majority and in things the Senator from Vermont said. something I understand is being con- the minority and each will serve under He talked about uniting and not divid- sidered by the leadership on the other Presidents of different parties. If we ing. I don’t think there is anything di- side, if the decision were made to fili- are to cooperate over the long haul in visive about Miguel Estrada. He is one buster him and his nomination failed the Government to ensure that the ju- of the kindest appearing people you as a result, it would be the first time in diciary is made up of people who are can ask for. The ABA has given him a the history of the Senate. It would the very best qualified candidates and unanimous well-qualified rating. They drastically change the way nomina- that we respect the judgment of the take into account judicial tempera- tions for high judicial office are consid- American people in electing a Presi- ment as well as qualifications. He has a ered by the Senate, essentially sub- dent, the Senate is required to give great life story. He is certainly not a stituting a 60-vote majority required those nominees its very best judgment, controversial person. So I personally for confirmation for the 50-vote major- thorough consideration, but at the end don’t think words such as ‘‘narrow, ide- ity that has heretofore been the stand- of the day a vote to confirm by 51 rath- ological court-packing’’ and the like ard. er than a supermajority. are the way to describe the President’s We can talk later about situations in In fact, no less an expert in the area approach to this. which motions for cloture have been than the distinguished Senator from The President is certainly not trying filed for one reason or another, but Vermont, the former chairman and to divide the country in nominating a there has only been one real filibuster now ranking member of the committee very well qualified Hispanic judge such in the Senate in the past, and that was has been among what I would call the as Miguel Estrada. Actually, I think the filibuster of Justice Abe Fortas. very responsible members of his party the concern is more to another point His nomination was withdrawn after a who have spoken out on this issue in the Senator from Vermont made, cloture petition failed. In other words, the past and have urged against the use which is that, in some people’s view, debate was not cut off. The filibuster of filibuster as a technique for holding there is not enough of a record on did continue. But that was a bipartisan up the nomination of judicial nomi- Miguel Estrada, that maybe he is a

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00015 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.030 S10PT1 S2080 CONGRESSIONAL RECORD — SENATE February 10, 2003 closet ideologue. I have heard that ing only a few words of English. He attends nominee. Seven past nominees to the Courts phrase bandied about. Again, the Columbia College, making Phi Beta Kappa of Appeals had worked in the Solicitor Gen- ABA’s rating—considered to be the and graduating magna cum laude, then Har- eral’s office—yet not one was asked to dis- gold standard by many colleagues— vard Law School, becoming editor of the Law close attorney-client memoranda. And every Review. living former Solicitor General—including would demonstrate that he is not an Next, he serves as a clerk first to U.S. Democrats Archibald Cox, Seth Waxman and ideologue. There is no evidence of that. Court of Appeals Judge Amalya L. Kearse (a Walter Dellinger—signed a letter to the Ju- I think some are searching for that evi- President Carter appointee), and then to Su- diciary Committee stating that sharing dence, and they don’t have anything preme Court Justice Anthony M. Kennedy. these confidential memos would damage the against him, so they are saying the From there, he joins the Solicitor General’s Justice Department’s ability to represent record is incomplete. So it is a catch- Office, serving as assistant to the solicitor the United States before the Supreme Court. general of the United States for a year under 22. Some civil-rights groups complain that in President George H.W. Bush and for four private practice, Estrada defended anti-loi- I also note that the Judiciary Com- years under President Clinton. tering laws. In truth, he was retained by the mittee itself, then including under the Then Estrada becomes a partner in a pres- Democratic City Solicitor of Chicago to de- leadership of the Senator from tigious private law practice—yet finds the fend the constitutionality of the anti-gang Vermont, has always submitted a ques- time to perform significant pro bono service, ordinances of Democratic Mayor Richard M. tionnaire to our judicial nominees. One including some four hundred hours rep- Daley. of the questions goes right to the point resenting a death row inmate before the Su- Miguel Estrada brings a proven ability to preme Court. work with others in a fair and constructive of trying to determine whether or not In recognition of his special abilities and anybody is applying a litmus test to way, and his appeal is not limited to any set achievements, President Bush nominates of ideological backers. President Clinton’s Miguel Estrada to the U.S. Court of Appeals the nominee. I can remember back in Solicitor General, Seth Waxman, called his for the D.C. Circuit. He is supported by no Ronald Reagan’s days there were oppo- former colleague a ‘‘model of professionalism fewer than 16 Hispanic groups, who express nents of President Reagan who said: and competence’’ and described his ‘‘great enormous pride at the prospect of the first You are applying a litmus test on the respect both for Mr. Estrada’s intellect and Hispanic joining one of America’s most pres- for his integrity.’’ Ronald Klain, former abortion issue. Reagan said: I never tigious courts. Also supporting him are nu- Counselor to Vice President Gore, wrote: asked anybody their view on the ques- merous prominent Democrats, including ‘‘Miguel is a person of outstanding char- tion. President Clinton’s solicitor general and acter, tremendous intellect, and with a deep The Judiciary Committee wanted to Vice President Gore’s counselor and chief of commitment to the faithful application of make sure nobody was trying to find Staff. Sounds pretty good? Well, here’s where precedent.’’ out what a nominee’s positions were on The Senate must fulfill its duty to con- issues they would be confronting on this story run the risk of a most unhappy— and unfair—ending. sider the appropriateness of judicial nomi- the court. That would be wrong. There- For nearly two years, Senate Democrats nees. But that ‘‘advice and consent’’ was fore, one of our questions to every judi- have delayed action on the nomination of never meant to empower special-interest cial nominee is: Has anybody ever Miguel Estrada. groups to hijack the appointments of abun- asked you about your specific views on Citing no specific issues, Democratic sen- dantly qualified, eminently decent nominees. ators vaguely alluded to Estrada being ‘‘way If senators who feel it’s their right to let issues or about cases and how you special-interest agendas derail Estrada, the might rule on cases that might come out of the mainstream.’’ Others raised equal- ly hollow charges—all of which have not judiciary will lose a wonderful opportunity. before you? And, if so, please state the only kept Estrada from getting the vote he Far worse, the entire system will have fallen circumstances and the names. deserves, but denied the American people of victim to narrow and misguided attempts to The committee, in other words, a talented and effective jurist. thwart the Constitution. wanted to make sure nobody was try- Obviously, the fact that the Judiciary The stalling of Miguel Estrada’s confirma- ing to find out from candidates how Committee was controlled by the Democrats tion has been not only unseemly and de- they would rule on particular issues, or until this year helped delay action. Last meaning, but a perversion of the system of week, the committee finally voted to ap- judicial selection. It is also the escalation of what their particular ideology was, be- prove Estrada’s nomination, hewing strictly a dangerous trend. In their first two years in cause we didn’t believe that to be ap- to party lines. But now a few Democratic office, Presidents Bill Clinton, George H.W. propriate in judging nominees. Now it senators want to prevent a vote before the Bush and Ronald Reagan saw more than 90 appears that there are some who be- full Senate by way of a filibuster. percent of their nominees to federal appeals lieve exactly the opposite, that indeed Despite all the racket, the knocks against courts confirmed. In the first two years of we must find out everything we can Estrada are so easily dismissed that it is dif- this administration, the figure is barely 50 about the ideology of a candidate, and ficult to see them as anything other than a percent. thin veil disguising his detractors’ true mo- if it is not considered ‘‘mainstream Some say that’s because President Bush tives. Let’s take a look at them: isn’t nominating qualified individuals. But enough’’ by some, that would be Some note that Estrada lacks judicial ex- Miguel Estrada clearly puts the lie to that grounds for denying the confirmation perience. Yet five of the eight judges now on suggestion. of the candidate. That has never been the D.C. circuit had no previous judicial ex- I urge the Senate to allow this worthy man the test and should not be now. perience—including Chief Judge Harry Ed- a vote. I urge the Senate not to underesti- I hope we can continue to apply the wards, who when President Carter appointed mate what a fair vote will mean to Hispanic questionnaire from the Judiciary Com- him in 1979 was even younger than Estrada is all across America. now. Indeed, several Supreme Court jus- mittee and ensure that candidates are I feel certain the result will be a confirma- tices—including Byron White and Chief Jus- tion—another wonderful chapter in a true not punished for not answering ques- tice William Rehnquist—had never been American success story. tions that we ourselves don’t think it judges when they were named to the land’s Mr. KYL. Mr. President, in this won- appropriate to ask. highest court. derfully written piece, Rudy Giuliani The Senator from Vermont made one Estrada is no rookie. He has argued 15 talks about the astonishing record of rather astonishing claim, and that was cases before the Supreme Court and was a this immigrant from Honduras, speak- that—I believe I have the quotation— highly respected Assistant U.S. Attorney in my old office, the Southern District of New ing only a few words of English, who Miguel Estrada has had ‘‘little relevant York. And the American Bar Association attended Columbia, made Phi Beta experience.’’ My goodness, if it hasn’t unanimously gave him its highest rating— Kappa, graduated magna cum laude, been put in the RECORD, I ask unani- ‘‘well qualified,’’ a designation that some of then went to Harvard Law School, and mous consent that the op-ed in the the very senators who now oppose him have became editor of the Law Review. He New York Post today by Rudolph called the ‘‘gold standard.’’ clerked on the U.S. Court of Appeals Giuliani be printed in the RECORD. Some object that the Bush administration and then for Justice Kennedy on the There being no objection, the mate- won’t produce memoranda from Estrada in the Solicitor General’s Office. Bear in mind U.S. Supreme Court. He joined the So- rial was ordered to be printed in the the Solicitor General’s function: His office licitor General’s Office, serving as an RECORD, as follows: represents the United States in court—in assistant under two Presidents, a Re- [From the New York Post, Feb. 10, 2003] other words, the government is his client. publican and a Democrat, and he was a Why would a client or his attorney choose to AN UGLY STALL partner in a prestigious law firm. He reveal their private and privileged commu- (By Rudolph Giuliani) nications? has argued 15 cases before the Supreme A 17-year-old named Miguel Estrada immi- The zeal to read a nominee’s private Court. And he has ‘‘little relevant ex- grates to this country from Honduras, speak- memoranda seems to apply only to this perience’’?

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00016 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.032 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2081 The courts are full of judges who The PRESIDING OFFICER. Does the tions for the important, life-tenured position were not judges before they were ap- Senator want to say what they are? of Circuit Judge. Because our offices are lo- pointed to the court. At some point, a Mr. LEAHY. Why don’t I read them cated seven blocks away from ‘‘Ground Zero’’ in New York City, our diligent efforts person has to go from being a lawyer to into the RECORD? I will read them and were interrupted by a six-month delay to a judge before he can be a judge. Cer- there will be no question. Will Senator mourn, reflect, and recover after the tragic tainly, there are a lot of non-lower- GRASSLEY yield time? It will take 15 events of September 11. Thereafter, we re- court judges, district court judges, who minutes to read them. sumed our extensive examination of Mr. have been appointed not only to the The PRESIDING OFFICER. The Estrada’s history and record. We reviewed circuit court of appeals to which this Chair will be glad to insert them with- his available writings, although such nominee is nominated, but also even to out objection. The Chair thought the writings are extremely limited. We con- the U.S. Supreme Court. In fact, I be- Senator would want to identify them. ducted dozens of interviews with individuals lieve that in this piece Giuliani points Mr. LEAHY. I am sorry, Mr. Presi- familiar with Mr. Estrada, including those who have studied and worked with him as out that on this very circuit, Chief dent, I was following the procedure fol- well as those who have lived in the same Judge Harry Edwards who, when Presi- lowed by the other side this morning of communities with him. We also surveyed all dent Carter appointed him—and he was putting items in the RECORD without available news media reports and other pub- even younger than Miguel Estrada—did identifying them. lic materials concerning Mr. Estrada. Fi- not have previous judicial experience, Why don’t I read them all so there nally, we interviewed Mr. Estrada himself. nor did five of the eight justices now on will be no question, if the Senator from As a national civil rights organization pri- the court. So that is not a predicate for Iowa does not mind waiting 20, 30, 40 marily concerned with advancing and pro- tecting the civil and human rights of the serving on this court. minutes for me to do that, or if there Latino community and all Americans This is hardly a rookie candidate. I is no objection, I will renew my request through litigation, policy analysis, and edu- think you carry this argument too far. that the Puerto Rican Legal Defense cation, we sought to answer several ques- I urge my colleagues to consider this. and Education Fund position state- tions in evaluating Mr. Estrada’s nomina- With respect to many minorities, they ments regarding Mr. Estrada be printed tion. First and foremost, is Mr. Estrada suf- are almost saying, you are not going to in the RECORD. ficiently qualified? Second, are or should Mr. get a chance because we don’t have There being no objection, the mate- Estrada’s reportedly extreme views by dis- that many minorities who serve on rial was ordered to be printed in the qualifying? third, would Mr. Estrada’s life courts today. If the requirement for experiences bring to the D.C. Circuit the RECORD, as follows: unique sensitivities and perspectives of His- service on a higher court is that you FOR IMMEDIATE RELEASE, JANUARY 27, 2003 panic-Americans? Finally, does Mr. Estrada already are a judge, we are going to cut Puerto Rican Legal Defense and Education possess the proper judicial temperament re- off a lot of minorities from consider- Fund—Reissues Its Position Statement Op- quired for appeals court nominees? ation. That is a glass ceiling, Mr. posing the Nomination of Miguel A. For the reasons stated below, we believe President, which we should not impose. Estrada to the United States Court of Ap- that Mr. Estrada is not sufficiently qualified; Finally, the Senator from Vermont peals for the District of Columbia Circuit that his reportedly extreme views should be talked about a lot of candidates he sup- We previously expressed our strong opposi- disqualifying; that he has not had a dem- ported who had not been confirmed. tion to the candidacy of Miguel Estrada for onstrated interest in or any involvement with the organized Hispanic community or But that is not relevant to Miguel a Judgeship on the D.C. Circuit Court of Ap- peals. The hearing which Mr. Estrada was Hispanic activities of any kind; and that he Estrada. The question before us today lacks the maturity and judicial tempera- given by the Senate Judiciary Committee in is: should Miguel Estrada be con- ment necessary to be a circuit court judge. September 2002 did nothing to address our firmed? I know the Senator from Accordingly, we oppose his nomination and grave concerns about his fitness to serve as urge the United States Senate Judiciary Vermont is not saying he opposes Mr. an Appellate Judge. In fact, the hearing Committee to reject his nomination. Estrada for spite or for retribution be- raised more questions then it answered. Ac- cause of candidates he supported. That cordingly, we are reissuing our position II. CONCERNS ABOUT HIS QUALIFICATIONS would not be appropriate. I know the statement in strong opposition to Mr. While the positions Mr. Estrada has held Senator does not mean that. Estrada’s nomination. In our review, it is and his intellectual abilities may initially Let’s get back to Miguel Estrada and clearly not in the best interests of Hispanic appear impressive, they are neither as com- talk about his qualifications. It boils Americans or for that matter all Americans, plete nor as impressive in depth and scope as to appoint an individual about whom there those of many others who have been or could down to two things, it seems to me: Is be appointed to the elevated position of Cir- this person qualified to serve on the DC are serious and for that matter unanswered doubts concerning his ability to render jus- cuit Judge. Mr. Estrada seems to us to have Circuit Court of Appeals? To that, tice in a fair and impartial manner. had insufficient experience for the position there can be no answer but as the PIERRE M. LARAME´ E, of United States Circuit Judge, especially in American Bar Association unani- Executive Vice President. the powerful D.C. Circuit. His experience is mously said, he is very well qualified. not as extensive as that of others who have To the second point, after we are done Reissued: January 27, 2003. been appointed to the federal appellate courts and have had greater depth and talking about Miguel Estrada, after ev- POSITION STATEMENT ON THE NOMINATION OF breadth of experience. erything has been said, should we call MIGUEL A. ESTRADA TO THE UNITED STATES Historically, both judicial experience and for an up-or-down vote, or is this going COURT OF APPEALS FOR THE DISTRICT OF CO- academic experience have been given great to be the first time in the history of LUMBIA CIRCUIT weight in considering nominations for cir- the Senate where we kill a nominee for I. BACKGROUND cuit court judgeships. Perhaps most due to circuit court by a partisan filibuster? On May 9, 2001, Miguel A. Estrada was his relatively young age of 39 when he was That would be, as the Senator from nominated by President George W. Bush to nominated, however, Mr. Estrada had not Vermont pointed out, a very bad prece- the United States Court of Appeals for the had any judicial experience whatsoever. Nor dent, and I hope all the rest of my col- District of Columbia Circuit. That court is has he had any academic or teaching experi- widely considered to be the second most pow- ence. Much of his legal experience has been leagues join the Senator from Vermont erful court in the nation and traditionally devoted to handling criminal law matters. In in objecting and fighting against any has served as a launching pad for judges to addition, he simply has not developed a suffi- filibuster on a judge, whether it is be appointed to the United States Supreme cient record upon which one could fairly somebody they oppose or support. Court. Mr. Estrada has been touted as the evaluate his positions, fairness and rea- If we approach this nominee in this first Hispanic-American nominated to the soning skills. way, I think we will confirm Miguel DC Circuit, and many believe that he is Traditionally, the written record from ei- Estrada, and it will do the Senate being groomed to be the first Hispanic-Amer- ther scholarly works or judicial opinions has proud and it will do the Nation proud. ican Supreme Court Justice. Because of the historically served as the best basis upon Several Senators addressed the tremendous importance of this nomination which candidates for appellate courts have Chair. to our nation’s nearly 40 million Latinos, been evaluated. Where a written record does The PRESIDING OFFICER. The Sen- and to all Americans in general, the Puerto not exist, life experiences and activities have Rican Legal Defense & Education Fund been relied upon to help measure fairness ator from Vermont. (PRLDEF), has decided to take a position on and reasoning skills. Mr. Estrada’s record Mr. LEAHY. Mr. President, if the his nomination. provides a wholly inadequate basis upon Senator will withhold for a moment, I Since Mr. Estrada was nominated, which to conclude that he can be a fair and ask unanimous consent to print in the PRLDEF has sought to learn as much as it impartial court judge. This is especially rel- RECORD a number of items. could about his background and qualifica- evant and important given the fact that a

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number of his colleagues have said unequivo- IV. CONCERNS OF THE HISPANIC-AMERICAN his quasi-public status as a judicial nominee, cally that Mr. Estrada has expressed extreme COMMUNITY our comments might otherwise be action- views that they believe to be outside the Of greatest concern to the Latino commu- able. He stated that we ‘‘had probably al- mainstream of legal and political thought. nity is Mr. Estrada’s clear lack of any con- ready made up [our] minds to oppose his Unfortunately, we could not fully test these nection whatsoever to the issues, needs, and nomination because the person [we] had sup- strong impressions against Mr. Estrada’s concerns of the organized Hispanic commu- ported had lost the presidential election.’’ In very limited record. If Mr. Estrada first nity. It is indeed ironic that someone pro- fact. PRLDEF had not made up its mind nor served as a district court judge or in another moted as a Hispanic has neither shown any had it endorsed any presidential candidate. judicial capacity, we would have a much demonstrated interest in, nor has had any Mr. Estrada also made a fleeting reference to more complete record upon which to assess involvement with many Hispanic organiza- ‘‘[our] Democratic senator friends on the his later nomination to the court of appeals. tions or activities throughout his entire life Hill.’’ In fact, PRLDEF has Republican sen- in the United States. Nor has he been in- ator friends on the Hill as well. He also chal- III. CONCERNS ABOUT HIS VIEWS volved with, supportive of, or responsive to lenged PRLDEF’s board chair on how [we] Despite the absence of a written record of issues of concern to Latinos. could say that ‘‘there is a strong consensus Mr. Estrada’s views, concerns over whether Some have attempted to portray his story among Hispanic attorneys and Hispanics in Mr. Estrada could impartially serve on an as a compelling one of a Hispanic who came general that they do not want to see a His- appellate court have been heightened be- to this country speaking little to no English. panic Clarence Thomas on the U.S. Supreme cause individuals who have worked with and In stark contrast with this story, however, Court.’’ even supervised him have both privately and the reality is that Mr. Estrada appears to VI. CONCLUSION publicly stated that he is an ideologue with have come from a privileged background and For all of the above reasons, we strongly extremely strong ideological views, and received English training and education believe that Mr. Estrada’s nomination would have difficulty keeping those views prior to his arrival in the United States. should be opposed and rejected. Potential from affecting his judgment when deciding This training enabled Mr. Estrada to partici- nominees who aspire to such important posi- cases as an appellate judge. He has report- pate fully in the educational opportunities tions as circuit judges should be better quali- edly made strong statements that have been afforded to him in the United States. As the fied and possess the unquestioned ability to interpreted as hostile to criminal defend- son of a lawyer and a bank vice president be fair, open-minded and committed to equal ants’ rights, affirmative action and women’s who had the resources to finance superior justice for all Americans. They should be rights. Additionally, he has clearly chosen to educational opportunities for him, Mr. connected to the real-world concerns of the be actively engaged principally with ideolog- Estrada has not lived the educationally or people who will be governed by their deci- ical causes and organizations, such as the economically disadvantaged life his pro- sions. They should also be even-tempered. In Federalist Society and the Center for the ponents would have others believe. Nor have our view, Mr. Estrada clearly does not pos- Community Interest. Members of these Mr. Estrada’s life experience resembled or sess the qualities necessary to be placed in groups have been outspoken on the issues we been shared with those of Latinos who have such an important position of trust—for a believe are of concern to minorities, the very experienced discrimination or struggled with lifetime—interpreting and guarding the groups Mr. Estrada should be sensitive to. It poverty, indifference or unfairness. rights of ordinary Americans. is also particularly noteworthy that some of Knowledge of people and of their aspira- For more information contact the offices the most ideologically extreme organiza- tions for fairness and justice should be pos- of Pierre M. LaRame´e, Executive Vice Presi- tions in our nation have endorsed his nomi- sessed by all candidates for judicial office. dent Puerto Rican Legal Defense and Edu- nation. Mr. Estrada has lived a very different life cation Fund. Because of Mr. Estrada’s very limited writ- from that of most Latinos—a life isolated ten record, coupled with his refusal to an- from their experience and concerns. Once he Mr. LEAHY. Mr. President, very swer detailed questions about his ideological made it, he both disappeared from and never briefly, we were going back and forth. became connected or committed to the His- views, the public and private reports of his I agreed to let the Senator from Ari- extreme ideological views were not effec- panic community. As a result, we believe that he lacks the sensitivity and perspec- zona go out of order. I see the Senator tively rebutted, and should therefore be dis- from Iowa waiting, and he will also be qualifying. tives shared by the majority of Hispanic- Americans in our country. During our inter- out of order. I know the Senator from The Senate Judiciary Committee asked view with him, he took offense at the view California is coming to the Chamber. Mr. Estrada to provide information on the that he is disconnected from the Hispanic Will the Senator from Iowa give me ten most significant litigated matters that community, but he countered those concerns he personally handled and whether he had some idea how much time he wants? I merely by asserting that he listens to His- have no objection to him going out of played any role in a political campaign. Cu- panic music and reads Spanish language riously, Mr. Estrada failed to include two books. We believe that he is disconnected order. important activities in his response. He ne- from the real-world activities that would en- Mr. GRASSLEY. I have no objection glected to mention that he participated in able him to contribute uniquely to the devel- coming back at 5:30 p.m. the preparation of a brief in the Bush v. Gore opment of the law and the enhancement of Mr. LEAHY. The Senator from Iowa election recount litigation, and that he the administration of justice, as have other is here, and the Senator from Cali- served on the Bush Department of Justice Hispanics who have served as judges before fornia is not here. Why doesn’t the Transition Team. him. Senator from Iowa go forward and then When questioned on whether the Supreme V. CONCERNS ABOUT HIS JUDICIAL yield to the Senator from California Court has hired enough minority law clerks, TEMPERAMENT Mr. Estrada’s response was ‘‘if there was after she arrives? Will the Senator We have serious concerns about Mr. from Iowa have any objection to that? some reason for underrepresentation, it Estrada’s judicial temperament. Simply put, would be something to look into . . . but I Mr. GRASSLEY. In other words, if he has been described as one who is arrogant she comes in, I would stop and let her don’t have any reason to think it’s anything and elitist. It has been reported that he ‘‘ha- other than a reflection of trends in society.’’ rangues his colleagues’’ and ‘‘doesn’t listen speak? He said that he does not know whether he to other people.’’ We witnessed these quali- Mr. LEAHY. How much time? has been a beneficiary of affirmative action ties first-hand during our interview. Mr. GRASSLEY. I think 20 minutes. or not. He explained that he may be for or Based largely on our personal observa- Mr. LEAHY. Mr. President, why against affirmative action depending upon tions, we now firmly believe that Mr. doesn’t the Senator just go ahead. the particular issues at hand. Estrada lacks the maturity and tempera- Mr. GRASSLEY. Like I said, I can Bush Administration supporters of Mr. ment that a candidate for high judicial office come back at 5:30 p.m. Estrada tout his nomination by stressing should possess. In our view, he does not have Mr. LEAHY. The Senator should feel that he is the first Hispanic to be nominated the humility or the demeanor typical of wor- to the D.C. Circuit Court of Appeals, and thy nominees to our nation’s federal bench. free to go ahead. When he is finished, could become the first Hispanic Supreme He does not appear to us to be even-tem- then if the Senator from California can Court Justice. This ‘‘Hispanic’’ touting is at pered. While Mr. Estrada may have been un- be recognized next. odds with Mr. Estrada’s clearly expressed de- derstandably apprehensive about the oppor- I might also note the Senator from sire to be judged only ‘‘on the merits.’’ Mr. tunity to meet with PRLDEF to allay its Arizona was speaking of stopping a fili- Estrada’s views on the ethnic dimension of concerns, he was surprisingly contentious, buster; otherwise stopping somebody his candidacy notwithstanding, it is clear confrontational, aggressive and even offen- from being heard on the floor. I note that the Bush Administration fully intends sive in his verbal exchanges with us. there are many ways of doing this. For this to be a ‘‘Hispanic’’ nomination to the He made several inappropriately Court. This intent is what compels our inter- judgmental and immature comments about example, the Senator from Arizona is est in and underscores both the importance PRLDEF. He characterized some of one who voted against even the motion of this nomination and the relevance of this PRLDEF’s president’s comments as ‘‘bone- to proceed on Judge Richard Paez and issue to the Hispanic community. headed.’’ He indicated that were it not for then also voted against him. That is

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00018 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.018 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2083 one of the many well-qualified or high- the capacity for judicial tempera- buster, but I did not do it—we did not est qualification nominees of President ment.’’ This was from the American do it—because it is not right. Clinton’s against whom he voted. That Bar Association’s rating of well quali- This nominee, like all nominees, de- is one of the many ways of stopping a fied. serves an up-or-down vote. Anything nomination. We ought to demand that more of less is absolutely unfair. I hope my col- Mr. KYL. Mr. President, since the these people be appointed to the bench leagues on the other side of the aisle Senator from Vermont just mentioned rather than fighting their nomination. will strongly consider this proposed fil- my name, may I briefly respond? Mr. Estrada then certainly deserves ibuster before they cross this Rubicon Mr. LEAHY. Mr. President, the Sen- the American Bar Association’s most and establish new precedent for con- ator from Arizona mentioned my name qualified rating. firmation. about 20 different times. If we are As my colleagues know, I am not a Mr. Estrada’s opponents claim he has going to respond to each one, I will be lawyer. There is nothing wrong with not answered questions or produced glad to do it. I am trying to yield so going to law school, but I did not. I documentation, and so he should not be the Senator from Iowa can have the have been on the Judiciary Committee confirmed to the Federal bench. I can floor. my entire time in the Senate. I know think of a number of Democratic nomi- Mr. KYL. Mr. President, will the Sen- some of the qualifications that are nees who did not sufficiently answer ator from Iowa give me 15 seconds, and needed to be a Federal judge and par- even my questions, but that did not I will be happy to respond. ticularly a Federal judge on this DC lead me to filibuster. As far as I know, The PRESIDING OFFICER. Without Circuit that handles so many appeals Mr. Estrada has answered all questions objection, it is so ordered. from administrative agencies and is posed to him by the Judiciary Com- Mr. KYL. I voted for invoking cloture often considered, by legal experts, to be mittee members, and that the Justice on the Paez nomination because, of the second highest court of our land. Department has directed certain in- course, I agree with Senator LEAHY Mr. Estrada’s academic credentials house memos not be turned over be- that we should not filibuster a judge are stellar. He earned his juris doc- cause this is the policy of the Depart- nominated by the President. torate from Harvard University, magna ment and this documentation has Mr. LEAHY. As I recall, we all voted cum laude, where he was editor of the never been produced to the Judiciary for cloture. The motion to proceed to Harvard Law Review. Mr. Estrada did Committee. This is not just the policy even get there was the crucial vote not just attend Harvard Law School; he of this administration, the Bush ad- when the Senator from Arizona voted graduated with honors. He also served ministration, a Republican administra- against the motion to proceed. as the editor of the Harvard Law Re- tion. This has also been the policy I yield to the Senator from Iowa. view. under Democratic Presidents. The PRESIDING OFFICER. The Sen- To be selected as the editor of a law So once more, we see a coalescing of ator from Iowa. review is a feat that only the most ex- liberal activists circling the wagon Mr. KYL. Will the Senator yield me ceptional of law students attain. Not around a very talented, very prin- 10 seconds? only did he excel in law school, but he cipled, highly qualified legal mind to The PRESIDING OFFICER. Without graduated from Columbia University defeat Mr. Estrada’s nomination solely objection, it is so ordered. with his bachelor’s degree magna cum because these activists have deter- Mr. KYL. There were several votes laude and was also a member of Phi mined that he may not comply with against cloture that did not pass Beta Kappa. some sort of liberal ideological agenda. unanimously. Mr. Estrada certainly has the intel- These liberal interests only want the The PRESIDING OFFICER. The Sen- lect required to be a Federal Court of Senate to confirm judicial nominees ator from Iowa is recognized. Appeals judge. His professional back- who will be sure to implement a left- Mr. GRASSLEY. I thank the Chair. ground also gives testament to his wing agenda, and if there is any ques- Mr. President, I thank Senator LEAHY being qualified for a Federal Court of tion they will not do their bidding, for his consideration. Obviously, since I Appeals judgeship as opposed to just then those judges and those nominees voted for this nomination out of com- any judgeship. better watch out. mittee and I argued last year that the After law school, Mr. Estrada served As far as I can see, the concerns nomination should have come up last as a law clerk to the Second Circuit raised about Mr. Estrada are pure spec- year, I am strongly in support of Presi- Court of Appeals, and to Justice Ken- ulation and, most importantly, highly dent Bush’s nominee, Miguel Estrada. I nedy, on the United States Supreme politically motivated. This is a dis- think he is a very qualified judicial Court. Subsequently, he served as an grace. It is an outrage, but we must put nominee and will make an excellent Assistant U.S. Attorney and Deputy a stop to these unfounded political at- member of the U.S. Court of Appeals Chief of the appellate section of the tacks and get on with the business of for the DC Circuit. U.S. Attorney’s Office of the Southern confirming to the Federal bench good Not only is he regarded as one of the District of New York, and then as as- men and women who are committed to Nation’s top appellate lawyers, but the sistant to the Solicitor General of the doing what judges should do, interpret American Bar Association, which I United States of America, officed in law as opposed to those who make law think Democrats consider the gold Washington, DC. from the bench, because it is our re- standard of determination of a person’s Mr. Estrada has been in the private sponsibility to make law as members of qualifications to be a judicial nominee, sector as well. He is a partner with the the legislative branch. has given him a unanimous rating of, Washington, DC, office of the law firm Additionally, we have concerns mate- in their words, ‘‘well qualified.’’ This of Gibson, Dunn & Crutcher. So for a rializing out of thin air that Mr. happens to be the highest American very young lawyer, I think I can give Estrada may not have the right judi- Bar Association rating. It is a rating my colleagues a person who can truly cial temperament for the job. Of they would not give to just any lawyer be labeled an American success story. course, that goes contrary to the anal- who comes up the pike. According to In fact, instead of downgrading his ysis made by the American Bar Asso- the American Bar Association, quoting ability to serve as a circuit court ciation committee which gave him a from their standard: judge, we should all be proud of Mr. well-qualified determination, and that To merit a rating of well qualified, the Estrada’s many accomplishments. well-qualified determination only goes nominee must be at the top of the legal pro- We are hearing that the Democrats to those people who have judicial tem- fession in his or her legal community, have are considering a filibuster of this ex- perament. outstanding legal ability, breadth of experi- ceptionally qualified lawyer. In all my This determination against Mr. ence, the highest reputation for integrity years on the Judiciary Committee— Estrada, by these activists, goes to the and either have demonstrated or exhibited and that has been my entire tenure in point that he is some right-wing ideo- the capacity for judicial temperament. the Senate—Republicans never once logue who will impose his own views Just think of some of those words: filibustered a Democratic President’s and cannot be trusted to follow the law ‘‘The highest reputation for integrity’’ nominee to the Federal bench. There written by Congress. In my opinion, and having ‘‘demonstrated or exhibited are many I may have wanted to fili- these concerns and these allegations

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00019 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.035 S10PT1 S2084 CONGRESSIONAL RECORD — SENATE February 10, 2003 are fabrication and pure speculation. judge. In fact, as far as I know, every- LEAHY, the president of the National They have no basis in fact. To the con- one else who has worked with Mr. Association of Small Disadvantaged trary, numerous present and former co- Estrada has praised his record to the Businesses said: Mr. Estrada’s appoint- workers, as well as individuals who high heavens and believes he is more ment as a first Hispanic member of the know Mr. Estrada and his work very than qualified for this judgeship. It is DC Circuit will be a benefit to us in well, have written letters to the Judici- obvious that Mr. Estrada’s record and further illustrating the wide range of ary Committee expressing strong sup- his integrity have been unfairly and talent in the minority community just port for Mr. Estrada. They go on to say baselessly attacked by a political waiting to be effectively and fully he will take the law seriously, apply hatchet person. used. Supreme Court precedent faithfully, To whom are we going to listen? To Mr. Estrada was not nominated just and not rule based upon personal views whom do we 100 Senators listen? The because he is Hispanic. The President and political perspectives. American Bar Association, which nominated him because he is one of the If a judge has the law in front of him, interviewed scores of people and gave most qualified lawyers in the country if a judge is willing to follow the inter- Mr. Estrada a unanimous ‘‘well-quali- to serve in this position, not one of the pretation of the Supreme Court, and if fied’’ rating. The colleagues who know most qualified Hispanic lawyers. How- a judge leaves out his personal views and who have observed Mr. Estrada’s ever, because he is Hispanic, his nomi- and leaves out his own political per- work over the years? Or are we going nation sends the clear message that spectives, then what he has in front of to listen to an advocate for freeing with hard work anyone can achieve him is only the language of the law and child pornographers, a man who is so success. It speaks all about oppor- the precedent. That is what a judge is extreme that his outrageous legal tunity, the offering of opportunity for supposed to make his decision on. That views were universally condemned in all kinds of people in America. In this is what he said he would do. More im- that vote on child pornography in the case, especially, to Hispanics. He abso- portantly, people who have known him House and Senate? lutely is the kind of role model that over a long period of time are con- In addition, last week, in a Demo- Hispanic youth should look up to, and vinced he will so do. cratic caucus press conference held by we ought to encourage that oppor- Letters from Republicans and Demo- the Senator minority leader, a rep- tunity. crats have highly praised Mr. Estrada’s resentative of the Mexican American Unfortunately, some in the Hispanic intellect, judgment, integrity, and eth- Legal Defense and Education Fund community do not believe Mr. Estrada ics. Yet we still have some who are criticized the statement that I made in is Hispanic enough. I don’t know where quick to lend credence to unfounded at- the Judiciary Committee’s consider- they are coming from—Hispanic enough? What does that mean? Accord- tacks which appear to have been gen- ation of Mr. Estrada when I was speak- ing to the National Review at last erated primarily by Paul Bender, a ing for his name to be voted out of week’s Democratic press conference, former politically appointed supervisor committee. This is what I said: If we representatives of the Congressional in the Solicitor General’s Office during deny Miguel Estrada this position on Hispanic Caucus, an organization I re- the Clinton administration. the DC Circuit, it would be to shut the ferred to before with the acronym Clearly, Mr. Bender’s allegations are door on the American dream for His- MALDEF, and then another organiza- politically motivated. Not only is Mr. panic Americans everywhere. tion, the Puerto Rican Legal Defense Bender a liberal activist, his own out- I said that because I believe it. Mr. and Education Fund, criticized Mr. of-the-mainstream views on matters Estrada is an example and a role model Estrada for not being authentically such as pornography cast serious for all Americans, but he is a particu- Hispanic. If you are Hispanic, who is doubts on his ability to fairly judge larly bright and shining light for the going to say whether or not you are au- Mr. Estrada’s qualifications. Need I re- Hispanic and immigrant communities thentically Hispanic? He is Hispanic as mind my colleagues of the Clinton ad- in the United States of America. I a result of his birth and the back- ministration where they had a flip-flop don’t happen to be alone in that belief. ground of generations before him. Is fiasco in the Knox case, where Mr. The League of United Latin American that somehow supposed to fit people Bender had a heavy hand in formu- Citizens agrees with me because in a into a class that you isolate yourself lating a very extremist position that letter to Senator LEAHY, the League of and you have to have certain aspects directly ran counter to a child pornog- United Latin American Citizens ex- about you that are uncompromising, or raphy statute and to clear congres- pressed its strong support for Mr. is it OK in America, whether you are sional intent about that child pornog- Estrada, saying: Few Hispanic attor- German, Italian, African American, raphy statute. neys have as strong educational cre- Hispanic, don’t you have a right to be Need I remind my colleagues that dentials as Mr. Estrada, who graduated an individual? Can’t you just be Mary Mr. Bender’s position would have re- Phi Beta Kappa from Columbia College Smith and Joe Smith and Mr. Estrada sulted in the freeing of a twice-con- and magnum cum laude from Harvard, and anybody else you want to be as an victed child pornographer who had where he was editor of the Harvard individual? What is there about being demonstrated a tendency to lure under- Law Review. authentically Hispanic? age girls into criminal relationships. Continuing: He also served as a law I ask unanimous consent that an ar- Need I remind my colleagues of the res- clerk to the Honorable Anthony M. ticle from the National Review entitled olution they themselves voted on in Kennedy in the U.S. Supreme Court, ‘‘Dems to Miguel Estrada: You’re not the House and Senate that soundly re- making him only one of a handful of Hispanic Enough’’ be printed in the jected Mr. Bender’s position in the Hispanic attorneys to have had this op- RECORD after my statement. Knox brief? I highly doubt Mr. Bender’s portunity. He is truly one of the rising The PRESIDING OFFICER. Without own judgment is unbiased enough to stars in the Hispanic community and a objection, it is so ordered. provide an accurate recommendation role model for our youth. That is from (See exhibit 1.) of Mr. Estrada’s ability to be a judge the League of United Latin American Mr. GRASSLEY. Also at that press on the DC Circuit, particularly when Citizens. conference, remarks were made that these statements contradict Mr. Bend- The Latino Coalition, a national one had to have more than a Hispanic er’s own contemporaneous, glowing Latino organization, also agrees that surname to be considered Hispanic. I evaluations of Mr. Estrada when Mr. Mr. Estrada should be approved. They find these remarks do not make any Estrada was one of those he supervised expressed in a press release last April sense. What they are saying is, unless at the Solicitor General’s office. Mr. that ‘‘to deny Latinos, the Nation’s you think as they do, you are not real- Estrada was given glowing evaluations largest minority, the opportunity to ly Hispanic. In other words, if you do by Mr. Bender. have one of our own serve on this court not think as they do, you cannot pos- I also point out that Mr. Bender ap- in the Nation’s Capital is unforgiv- sibly be Hispanic. What an outrageous pears to be the only one of Mr. able.’’ I agree. idea in 21st century America. The tag Estrada’s former colleagues at the De- We also have the National Associa- line that Mr. Estrada ‘‘isn’t Hispanic partment of Justice that now questions tion of Small Disadvantaged Busi- enough’’ is code words for ‘‘he isn’t lib- Mr. Estrada’s ability to be a good nesses. In another letter to Senator eral enough.’’ Yet at this Democratic

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00020 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.038 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2085 press conference, participants describe this country, Menendez argued, he falls short The PRESIDING OFFICER. Is there the underrepresentation of Hispanics in of being a true Hispanic. ‘‘Mr. Estrada told objection? Without objection, it is so the legislative and executive branches us that him being Hispanic he sees having ordered. of the Federal Government. absolutely nothing to do with his experience Mr. GRASSLEY. I yield the floor. or his role as a federal court judge. That’s The PRESIDING OFFICER (Mr. AL- The President has nominated one of what he said to us.’’ Menendez found that the most qualified attorneys in the deeply troubling. EXANDER). The Senator from Cali- country to be a judge on the second But Menendez was relatively kind to fornia. highest court of the land, and this per- Estrada compared to the representatives of Mrs. FEINSTEIN. Mr. President, I son, of outstanding capabilities, with Hispanic interest groups. Angelo Falcon, an rise to explain my position on the nom- degrees from Columbia and Harvard, official of the Puerto Rican Legal Defense ination of Miguel Estrada and to speak happens to be a Hispanic. Not only is and Education Fund, railed about the more generally on the state of the he Hispanic, but he is an immigrant to ‘‘Latino Horatio Alger story that’s been con- nomination process in today’s Senate. cocted’’ about Estrada’s success and, more this country who at the age of 17 came This is a difficult time for all of us in generally, about the ‘‘concocted, invented the Senate and, indeed, the Nation. We here from Honduras speaking little Latino imagery’’ of Estrada’s life. English. He learned the language, ‘‘As the Latino community becomes larger stand on the brink of war, with an worked hard, rose to the top of his and larger in the country, as we gain more economy that is sputtering, and the legal profession. One would think these political influence, as we become more di- threat of international terrorism as groups would be happy with this nomi- verse, the issue of what is a Hispanic be- close at hand as it has ever been. These nation. But no, they stand in firm op- comes more problematic,’’ Falcon explained. are serious issues, issues the American position to Mr. Estrada. You see, these ‘‘It’s not good enough to simply say that be- people have sent us here to debate and cause of someone’s genetics or surname that groups believe a person is only His- to try to solve. In doing so, it is vital they should be considered Hispanic.’’ we come together as a Government, panic when he or she believes what Marisa Demeo from the Mexican American these groups believe. Legal Defense and Education Fund went not as Democrats versus Republicans, That is intellectual prejudice. I urge even farther. Not only is Estrada not authen- or Congress versus the White House, my colleagues to resist the rhetoric of tically Hispanic, Demeo argued, but his ele- but as one Government and one Nation. ideological prejudice and to over- vation to the federal bench would ‘‘crush’’ As best we can, we should work to- whelmingly support the confirmation the American dream for millions of genuine gether, consult each other, debate the of Miguel Estrada to the U.S. Court for Hispanics in the United States. issues forthrightly and with strength Demeo was particularly angry at Repub- the DC Circuit. of purpose, and then come to agree- lican Judiciary Committee member Sen. ment on how to solve the problems I yield the floor. Charles Grassley, who last week said that, EXHIBIT 1 ‘‘If we deny Mr. Estrada a position on the that confront us. [From the National Review, Feb. 6, 2003] D.C. Circuit, it will be to shut the door on One of the reasons this issue is so im- portant is because the judges we con- DEMS TO MIGUEL ESTRADA: YOU’RE NOT the American dream of Hispanic Americans HISPANIC ENOUGH everywhere.’’ ‘‘Actually, the reverse is true,’’ firm over the next few years will help (By Byron York) Demeo said. ‘‘If the Senate confirms Mr. decide whether acts of Congress will Estrada, his own personal American dream stand or will be struck down. They will The headline from Senate Minority Leader will come true, but the American dreams of Tom Daschle’s news conference Wednesday decide how far the law will go to pro- the majority of Hispanics living in this coun- tect the safety and rights of the Amer- was his threat to filibuster the appeals-court try will come to an end through his future nomination of Miguel Estrada. ‘‘There is legal decisions.’’ ican people. They will have the power overwhelming opposition within our caucus Through it all, Daschle stood by impas- to limit or expand civil rights protec- to Mr. Estrada,’’ Daschle said. ‘‘Because sively. He couldn’t very well cite Estrada’s tions. They will have great leeway to we’re in the minority, we have no other op- alleged lack of authentic Hispanic-ness as a interpret the laws protecting or lim- tion in some cases . . . than to filibuster reason to filibuster and kill the nomination; iting a woman’s right to choose. They nominations. We don’t take that responsi- even the most partisan Democratic senator will be able to expand or limit gun con- bility lightly, but we hold it to be an impor- would have a hard time making that argu- tant tool that we will use.’’ Daschle said he trol laws, laws against child pornog- ment. Yet he remained quiet while his allies raphy, campaign finance laws, and will make the filibuster decision next week. bashed Estrada in the most personal terms. But the more interesting story from It made some observers question just why many more. In a real sense, these Daschle’s appearance was the strange dis- Democrats are opposing Estrada. Do they judges will have as much power, or connect between the reasons he gave to op- really believe their words about their ‘‘con- more, than any of us in this body. pose Estrada and the reasons cited by a num- stitutional obligations,’’ or are they going Clearly, the court with the biggest im- ber of Hispanic interest-group leaders who along with the angry interest groups who are pact will be the Supreme Court. But appeared with Daschle. pushing them to do it? To hear Daschle tell it, Estrada’s alleged the District of Columbia Circuit Court refusal to answer questions at his confirma- The PRESIDING OFFICER. The Sen- is a close second and is often cited as tion hearing had virtually forced Democrats ator from California. the most powerful court in the Nation. to vote against him, and perhaps to fili- Mr. GRASSLEY. Mr. President, could It is no coincidence that the DC Circuit buster the nomination. Democratic senators I read something for the administra- has produced more Supreme Court Jus- take their advise-and-consent role very seri- tive staff? tices than any other circuit. Three of ously, Daschle said, and, ‘‘In our view, we The PRESIDING OFFICER. The Sen- the nine current Justices—Justice have been thwarted from fulfilling our con- ator from Iowa. stitutional obligation.’’ Scalia, Justice Thomas, and Justice But to hear representatives from the Con- Mr. GRASSLEY. I assume this is Ginsburg sat on the DC Circuit. In fact, gressional Hispanic Caucus, the Mexican without objection from the other side. it is hard to overstate the importance American Legal Defense and Education I thank the Senator from California. of an appointment to the United States Fund, the Puerto Rican Legal Defense and I ask unanimous consent that at 5 Circuit Court of Appeals and particu- Education Fund, and others tell it, the o’clock today the Senate proceed to larly the DC Circuit. Estrada nomination should be killed not be- the consideration of the following The Supreme Court of the United cause of Estrada’s alleged refusal to answer nominations en bloc: Executive Cal- States is our Nation’s court of last re- questions or because of constitutional obli- gations but because Estrada, who was born endar Nos. 28, 29, 30; provided further sort. But it heard less than 80 cases in and raised in Honduras before coming to the that there be 15 minutes of debate the 2000–2001 session. In contrast, the United States and learning English at the equally divided between the chairman Federal courts of appeal considered age of 17, is simply not authentically His- and ranking member. I further ask over 27,000 cases during the same pe- panic. unanimous consent that following that riod. For so many of the legal injuries ‘‘Being Hispanic for us means much more debate, the Senate then immediately for which people seek redress, the than having a surname,’’ said New Jersey proceed to three consecutive votes on courts of appeal are the last stop, the Rep. Bob Menendez, a member of the Con- the confirmation of the nominations, ultimate decisionmaker. And the DC gressional Hispanic Caucus. ‘‘It means hav- ing some relationship with the reality of with no intervening action or debate; Circuit is the most important of all cir- what it is to live in this country as a His- provided further that, following those cuit courts because it is the court that panic American.’’ Even though Estrada is of votes, the President be immediately most closely oversees the actions of Hispanic origin, and even though he lives in notified of the Senate’s action. Federal agencies; actions that have

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00021 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.041 S10PT1 S2086 CONGRESSIONAL RECORD — SENATE February 10, 2003 real, everyday impact on the lives of All in all, it is quite clear that the first area where we find no record to all Americans. The DC Circuit reviews District of Columbia Circuit is con- help us in our decision. appeals regarding decisions by the Fed- stantly at the center of complex key Mr. Estrada is not a prolific writer. eral Communications Commission, the issues of the day. So we have no real record of writing to National Labor Relations Board, the Currently, there is a delicate balance examine. Again, this alone would not Federal Election Commission, the on this court. There are four Repub- be dispositive, but it is strike 2 in Americans With Disabilities Act, the lican appointees, four Democratic ap- terms of where we can get information Federal Energy Regulatory Commis- pointees, and four vacancies. There- about this nominee. sion, the Endangered Species Act, and fore, this nominee effectively tilts the We have not been granted access to the Environmental Protection Act, in- balance on that court. That is why the memos he wrote at the Department cluding the Resource Conservation and many of us believe it is so important to of Justice. So we can only take the Recovery Act; the Superfund, the Clean learn how this nominee thinks, what word of the man who supervised him Water Act, the Clean Air Act, and his judicial temperament would be, and that those memos were ideologically countless other agencies and statutes. so on. driven and that he could not be trust- Because the Supreme Court reviews During the last several years of the ed. so few cases, the DC Circuit essentially Clinton administration, two highly Mr. Estrada refused to adequately has the last say on whether decisions qualified Clinton nominees were participate in his own confirmation by these agencies will stand or will not blocked permanently. Some believe its hearings, which I will comment on as a stand. In recent years, the DC Circuit purpose was to initiate a concerted, great surprise to me and the reason I has become a hostile forum for envi- planned effort to keep vacancies open changed my view. So we have no real ronmental protections. Since 1990, the on that court so they could be filled answers to our questions. Let me expand on this last point be- DC Circuit has struck down or hindered with conservatives in the event of a cause I think it is instructive to exam- a long list of crucial environmental Republican President. ine and contrast our experience with protections, including clean air protec- When President Bush took office, he Mr. Estrada and our experience with tions for soot and smog, habitat pro- sent us two nominees for the district circuit. One of them is Miguel Estrada. one other nominee. tection under the Endangered Species At last week’s markup, I was struck I don’t believe it is appropriate for us Act, clean water protection for mil- by the lack of information about this to simply block all nominees to the lions of acres of wetlands, fuel effi- nominee. Yet, as I said, I liked him District of Columbia Circuit in retalia- ciency standards known as CAFE very much when I met with him per- standards, designation of sites on the tion for that having been done to sonally. But I was startled by his per- Superfund National Priorities List, and Democratic nominees. That is not why formance at the public hearing. guidelines on treatment of petroleum I am here today. But at the same time, So I got the transcripts, and I reread wastewater. we cannot ignore the fact that this im- the transcripts to try to see if there As Senator KENNEDY pointed out in portant circuit is now so closely di- was anything I missed—something I Miguel Estrada’s hearing, the recent vided. In deciding whether to confirm a could zero in on that would let me case of Maryland/DC/Delaware Broad- given nominee to such a delicately bal- know he would in fact be fair and im- casters Association v. the FCC, the DC anced court, we must ensure that the partial. Circuit found a portion of the FCC’s judges we send to the court can admin- What came to my mind was the real equal opportunity policy unconstitu- ister the law fairly and impartially. contrast with another nominee. That tional. Specifically, the court struck That is the case before us today: Can nominee is a man by the name of Jef- down a policy of broad outreach for mi- Miguel Estrada administer the law frey Sutton. He also was controversial. nority broadcasters. This decision, fairly and impartially? The disabilities community had a lot right or wrong, will have a significant We have before us a 41-year-old nomi- of concerns about him. But Mr. Sutton impact on the ability of the FCC to en- nee about whom we know very little. at his hearing answered every question courage minority participation in the To properly discharge our constitu- put to him intelligently, in a fulsome broadcast industry. tionally derived advise and consent way, and I thought forthrightly. So I Incidentally, Mr. Estrada essentially function, the Members of the Senate could tell how he would act as an ap- refused to comment on this case when must be given enough information to pellate court judge. The committee asked to do so. make the right decision about a given was able to gauge his intelligence, his Steffan v. Perry involved a young nominee. manner of thinking, and we can use man at the U.S. Naval academy, Jo- In this case, I have heard many com- that back-and-forth to help us predict seph Steffan, who admitted to two of ments on this nominee as a very bright whether Mr. Sutton would be a good his classmates that he was gay, al- but ideologically driven young attor- and fair judge or whether he would though he never admitted actually per- ney, one who would put his beliefs skew outcomes of cases to meet his forming any homosexual acts. Steffan ahead of the law if confirmed to the own ideological goals. was discharged under Department of Federal bench. So I want to try to fig- Mr. Estrada, on the other hand, did Defense regulations indicating that ho- ure out whether or not that is true. his best to keep from putting himself mosexuality is incompatible with mili- Many who knew him, know him, have on the record on any issue of real sub- tary service. Steffan argued his dis- supervised him, or have spoken to him stance. For instance, when Senator missal was impermissible, as it was believe strongly that he does not have SCHUMER asked Mr. Estrada to name based on status—being gay—not con- the temperament or impartiality nec- three Supreme Court cases in the last duct. The DC Circuit held, in 1994, that essary to fairly administer the law. 40 years with which he disagreed, Mr. the Defense Department regulations My office has received literally thou- Estrada simply refused to answer. were permissible, however, and that sands of calls about this nomination— When I asked him whether he be- the Steffan dismissal would stand. more than 7,900 phone calls, to be lieved Roe v. Wade was correctly de- I could go on and on with cases— exact. Fewer than 300 of those 7,900 cided, he declined to answer on the United States v. Bailey, for instance. calls were in favor of Miguel Estrada’s basis that he had not done what the Or AKA v. Washington Hospital Center, nomination. ‘‘judicial function would require’’ to where the court ruled in favor of an or- To counteract serious concerns from determine whether the Court correctly derly who, after 19 years of work, was those who know him and from those decided the case. forced to have heart surgery and who whom we represent, we need evidence When Senator LEAHY asked him what was then denied the right to transfer to that would contradict these opinions. he thought of the decision in Romer v. another job within the hospital that Quite frankly, we do not have that evi- Evans, a case involving discrimination would not require the same level of dence. against homosexuals, Estrada re- physical activity. Miguel Estrada has never been a sponded ‘‘I can’t know because I was The District of Columbia Circuit is judge. So we have no record of judicial not a judge in the case.’’ also the court that most often reviews decision-making to examine. This is When Senator KENNEDY asked Mr. terrorism cases on appeal. not dispositive in itself, but it is the Estrada a written question about a

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00022 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.043 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2087 union retaliation case decided by the There being no objection, the mate- ‘‘[A]ll dealings, oral and written, with the DC Circuit in 2001 and reversed by the rial was ordered to be printed in the courts, clients, and others are conducted in a Supreme Court last term, Estrada re- RECORD, as follows: diplomatic, cooperative, and candid man- sponded ‘‘Although I have read the Su- ner.’’ THE WHITE HOUSE, ‘‘[A]ll briefs, motions or memoranda re- preme Court’s opinion . . . I have not Washington, DC, February 3, 2003. viewed consistently reflect no policies at read the briefs in the case, was not Hon. DIANNE FEINSTEIN, variance with Department or Governmental present at the oral argument, and have U.S. Senate, policies, or fails to discuss and analyze rel- not independently researched the issue Washington, DC. evant authorities.’’ DEAR SENATOR FEINSTEIN: I write in re- ‘‘[i]s constantly sought for advice and decided by the Court. For those rea- sponse to your vote in the Judiciary Com- counsel. Inspires co-workers by example.’’ sons, I am not in a position to know mittee on the nomination of Miguel Estrada Apart from the contemporaneous reviews how I might have resolved the issue and to respectfully urge that you reconsider that Mr. Bender himself signed, it also bears . . . nor am I in a position to answer this important nomination when you vote on mention that the Committee has received it in the full Senate. I write in particular be- the question whether the Supreme letters from Seth Waxman, President Clin- cause it appears from your statement in the Court acted appropriately.’’ ton’s Solicitor General, and a bipartisan Committee (and on your web site) that you When Senator KENNEDY asked him in group of 14 former colleagues of Mr. Estrada may possess inaccurate or incomplete infor- writing whether another case involving in the Solicitor General’s office. Seth Wax- mation on certain issues that you have diversity outreach had been decided man wrote to the Committee that Estrada is deemed important to the Estrada nomina- a ‘‘model of professionalism and com- correctly, Estrada again fell back on tion. the argument that because he had not First, it appears you relied on the fact that petence’’ and that he has ‘‘great respect both heard oral arguments and had not read Estrada has no previous judicial service. But for Mr. Estrada’s intellect and for his integ- the briefs, he could not answer. five of the eight judges currently serving on rity.’’ He continued: ‘‘In no way did I ever the D.C. Circuit had no previous judicial ex- discern that the recommendations Mr. When Senator KENNEDY asked Estrada made or the views he propounded Estrada about yet another Supreme perience when appointed. That includes two of President Clinton’s nominees, Merrick were colored in any way by his personnel Court case, American Trucking v. EPA, views—or indeed that they reflected any- where the Supreme Court reversed the Garland, whose Justice Department record was quite similar to that of Miguel Estrada, thing other than the long-term interests of District of Columbia Circuit, Estrada and David Tatel. In addition, Judge Harry the United States.’’ And the bipartisan group again fell back on the argument that Edwards had no prior judicial experience of former colleagues from the Office of Solic- he had not been present for oral argu- when he was nominated by President Carter itor General wrote to the Committee that ments and could not, therefore, com- in 1979, and he was younger than Estrada. In Estrada ‘‘would be a fair and honest judge addition, several Ninth Circuit judges from who would decide cases in accordance with ment on whether the case had been cor- applicable legal principles and precedents.’’ rectly decided. California who were appointed by President Clinton, and had your support, had no prior Finally, to the extent Mr. Bender’s own per- That kind of answer makes it truly sonal political and ideological views are rel- difficult to get a sense of where a nomi- judicial experience. That includes Judge Wil- liam Fletcher, Judge Raymond Fisher, and evant, we call your attention to Senator nee is coming from in terms of Judge Marsha Berzon. Hatch’s opening statement at the hearing on thoughtful process, analysis, and legal The American Bar Association, which September 26, 2002. expertise. Democrat Senators Leahy and Schumer have Third, you referenced the fact that Miguel When it comes to the most important referred to as the ‘‘gold standard,’’ unani- Estrada has been ‘accused’’ of using an ideo- circuit court in the Nation and there is mously rated Estrada ‘‘well qualified’’ for logical litmus test when assisting Justice no record and there is no writing, the the D.C. Circuit, the ABA’s highest possible Kennedy in the selection of his law clerks. We respectfully do not think this ‘‘accusa- Senate of the United States is entitled rating. We think the ABA rating was quite appropriate in light of Estrada’s excellent tion’’ is credible or supported. In fact, Mr. to know these answers. Estrada explained at his hearing that he in It strains credibility that a nominee record, including his work as an Assistant Solicitor General in the Clinton and Bush fact has been very supportive, for example, for the circuit court of appeals would Administrations, his record as a federal pros- of the hiring of one law clerk for Justice still have no opinion on whether a case ecutor in New York, his service as a law Kennedy who at the time worked for Presi- such as Roe was correctly decided or clerk to Justice Kennedy, and his pro bono dent Clinton, is a strong Democrat, and now whether any case in the last 40 years work including his volunteer representation works for Senator Leahy on the Judiciary was incorrectly decided. of a death row inmate before the Supreme Committee. Fourth, you noted concern among ‘‘His- Finally, it is troubling to get these Court. He has argued 15 cases before the Su- preme Court of the United States, a figure panic organizations.’’ In fact, the over- answers from a nominee about whom whelming majority of national Hispanic or- we know so little and who is nominated that few lawyers can match, and particularly impressive for someone who immigrated to ganizations have supported Mr. Estrada. to a court that will decide so much for this country at age 17 speaking little That includes the Hispanic National Bar As- so many. English. sociation, the League of United Latin Amer- Taken as a whole, I could not, in Second, you also referenced a news report ican Citizens, the U.S. Hispanic Chamber of good conscience, vote for this nominee, quoting the views of Paul Bender, a former Commerce, the Hispanic Business Round- with so little information, recom- Deputy Solicitor General. Mr. Bender has table, and the Latino Coalition, among many mending him to such an important life- not written a letter to the Committee or others. To be sure, MALDEF and PRLDEF otherwise publicly explained his views, so we do oppose Mr. Estrada. As to Hispanic mem- time appointment. And I cannot help bers of the House, we understand that all of but wonder: Why didn’t the President are unclear whether this news report was ac- curate. But more important, as I explained the Republican Hispanics support him while appoint him to a District court? He is in a September 17, 2002, letter to then-Chair- the Democrat Hispanics do not. In any event, younger than my daughter. Give him man Leahy and Senator Hatch, Paul Bender LULAC’s statement is noteworthy, as it an opportunity to produce a record and in fact signed the performance reviews of states: ‘‘[Estrada] is truly one of the rising then move him on to an appellate court Miguel Estrada for the two years that they stars in the Hispanic community and a role when that record could, in fact, be ex- worked together. The performance reviews model for our youth.’’ amined. for those years gave Estrada the highest pos- Thank you for considering this nominee in sible rating of ‘‘outstanding’’ in every pos- light of the above information. This is an A few days after I cast my committee historic nomination, as Miguel Estrade vote against Mr. Estrada, White House sible category. Significantly, the perform- ance reviews that Bender signed also stated would be the first Hispanic to serve on the Counsel Al Gonzales sent a letter ad- the following to support the judgment that D.C. Circuit. We urge you to vote to confirm dressed to me personally criticizing my Estrada’s performance was ‘‘outstanding.’’ him. vote and asking me to reconsider. Be- ‘‘States the operative facts and applicable Sincerely, cause Judge Gonzales has made the let- law completely and persuasively, with record ALBERTO R. GONZALES, ter available to others, and it has now citations, and in conformation with court Counsel to the President. appeared in the press, I find it nec- and office rules, and with concern for fair- Mrs. FEINSTEIN. Mr. President, in essary that I correct the record. And I ness, clarity, simplicity, and conciseness.’’ his letter, Judge Gonzales suggested I ‘‘[I]s extremely knowledgeable of resource based my decision to vote against Mr. would like to do so. materials and uses them expertly; acting Mr. President, I ask unanimous con- independently, goes directly to point of the Estrada on ‘‘inaccurate or incomplete sent that this letter from White House matter and gives reliable, accurate, respon- information on certain issues that you Counsel Alberto Gonzales, dated Feb- sive information in communicating position have deemed important to the Estrada ruary 3, 2003, be printed in the RECORD. to others.’’ nomination.’’

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00023 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.045 S10PT1 S2088 CONGRESSIONAL RECORD — SENATE February 10, 2003 Needless to say, I disagree with that and I would not hesitate to do so again ward only after Dr. Fletcher’s mother, assessment. It is not because I was mis- when appropriate. Although I think it a Federal judge herself, agreed to take informed that I voted against this preferable, if possible, to have nomi- senior status, and after President Clin- nominee. It is because this nominee did nees with judicial experience, I also ton and the Republican leadership not inform the committee enough. recognize that many brilliant lawyers agreed to appoint a judge, named by Simply put, Mr. Estrada did not ade- with no such experience have become Republicans, to a vacancy on the Ninth quately answer the questions put to excellent and, in fact, even legendary Circuit. That is a good example of com- him in his hearing. judges. munication and even negotiation be- Particularly with a nominee who is In this case, it was not the lack of ju- tween the White House and the Senate so young, has such a very limited or dicial experience itself that concerned on the issue of judicial nominations. I nonexistent written record, and has me but the fact that this lack of expe- remember it well. And I thank those been accused by so many of being too rience, when combined with the lack of leaders of our committee who engaged ideologically driven to serve impar- information from other sources, left in those discussions. tially on the second highest court in the committee with no real basis to I am not saying that I believe Judge the land, it is incumbent on each Mem- evaluate this nominee. Fletcher’s nomination path should be- ber of the Senate, in our advise and In his letter to me, Judge Gonzales come the norm, but since Judge consent role, to thoroughly examine mentioned a number of specific individ- Gonzales mentioned Judge Fletcher by the nominee’s thought processes and to uals nominated to the Ninth Circuit by name, it is interesting to note how determine whether the nominee can President Clinton, nominees I sup- that nominee, with no judicial experi- and will be an impartial judge. ported despite their lack of judicial ex- ence, fared under the Republican-con- In this case, it was impossible to perience. These nominees—Judges Wil- trolled Senate back then. make such an assessment because the liam Fletcher, Marsha Berzon, and Marsha Berzon, another nominee nominee himself would not let us. Raymond Fisher—all had distinguished mentioned in Judge Gonzales’ letter, Judge Gonzales raised four specific backgrounds and a wealth of back- was nominated on January 27, 1998. Her issues in his letter. I would like to take ground materials for the committee to first hearing came 6 months later—not some time to go through the Gonzales review, but no judicial experience. bad—on July 30, 1998. Again, at that charges and to answer them one by Since these specific nominees were hearing Mrs. Berzon answered every one. mentioned, I thought it would be inter- conceivable question about her back- First, Judge Gonzales stated in his esting to note the paths they took to ground, her thought process, and her letter to me ‘‘[I]t appears that you re- confirmation because the nature of the other issues. Right, she had no prior ju- lied on the fact that Estrada has no deliberative process the Senate was dicial experience. Then almost a year previous judicial service.’’ able to undertake with these nominees went by with no further action until It is true that Mr. Estrada has no is in striking contrast to what we are she underwent a second hearing and previous judicial experience, but I did confronted with today. again submitted herself to questioning not rely on Mr. Estrada’s lack of judi- William Fletcher, for instance, was by the committee. cial experience, at least not exclu- nominated on April 25, 1995. His first Just to cite one example from that sively. hearing came on December 19, 1995, second hearing, Senator SESSIONS I said in my statement before the about 8 months later. Dr. Fletcher had asked Mrs. Berzon to expand upon an committee ‘‘[i]n this case, it is truly been a prolific academic writer and a answer she had given at her first hear- difficult to make this decision, because distinguished law professor at the Uni- ing about the death penalty. Quoting we have before us a fairly young nomi- versity of California at Berkeley for al- Senator SESSIONS now: nee—just 41 years old—who has never most 20 years by the time he was nomi- I remember I asked you about Justice been a judge, has little written record nated. At his hearing, he had the op- Brennan’s decision on the unconstitution- to speak of, and who has not given us portunity—and he took it—to discuss ality of the death penalty. He believed that a real sense of what kind of judge he articles he had written that were crit- the death penalty was unconstitutional. . . . would be. He, essentially, is a blank ical of certain Supreme Court decisions [a]nd I asked you . . . .how you felt about slate. And if confirmed, he could serve and to explain and discuss other arti- Justice Brennan’s view, and you said you did not like to say what you agree with and for 30, 40 or even 50 years on one of the cles he had written on a variety of sub- what you do not agree with when you highest courts in this nation. We had jects. The Judiciary Committee had ac- haven’t had time to think about it. Fair better be right about this decision.’’ cess to a wide range of written mate- enough. Have you had time now and would I truly believe this. This is a big deci- rials about or written by Dr. Fletcher. you like to comment now? sion, as are all our decisions to place And just as importantly, the com- In her response, Mrs. Berzon stated: nominees in lifetime positions of such mittee members also had the oppor- . . . I certainly have had a chance to think power and influence over the lives of tunity to engage in a back and forth about it and go back and look at the Con- people. with the nominee to learn about his stitution. And having done so, I would cer- I was concerned, and I remain con- thought process. tainly agree that the indications of that doc- cerned, that given Mr. Estrada’s lack In contrast to the Estrada hearing, ument are that the Framers of the Constitu- of judicial experience, the Judiciary Professor Fletcher answered every tion understood that capital punishment Committee needed to turn to other question forthrightly and fully. Where would be permitted under the Constitution. sources of information to get a better . . . I was a law clerk to Justice Brennan, as Estrada stated he could not answer, you know, I admire him enormously as a sense—any sense, really—of the kind of Fletcher engaged in real discussion. man and a mentor. I did not agree with ev- judge he would be. Despite this, however, William erything that he said, and I think in par- Unfortunately, we had few other Fletcher’s nomination sat without ac- ticular that I intend to take a more literal sources of information to which we tion until April of 1998, 3 years after view to statutes and to constitutional provi- could turn. With so few writings, no his first hearing. And after those 3 sions than he does. It makes me more com- record as a professor, no access to legal years, he was not yet given a vote. In- fortable, and it is the way I tend to think. memos he wrote while at the Depart- stead, he was given a second hearing. It is this back and forth that gives ment of Justice, our committee was Finally, on October 8, 1998, almost 31⁄2 committee members a sense of how left with little to go on as we con- years after he was first nominated, nominees think and, therefore, how templated this nominee. William Fletcher was finally con- they will approach the duties con- Mr. Estrada’s lack of judicial experi- firmed. Judge Fletcher, at the time of fronting them as Federal judges. ence was just one factor that made it his nomination, had no judicial experi- By the time Marsha Berzon was fi- more difficult to review his way of ence, but the committee had a wealth nally confirmed on March 9, 2000, more thinking and to determine what kind of other information about him and than 2 years and two hearings after she of judge he would become if confirmed. written by him to properly gauge his had been nominated, the Judiciary I have supported nominees without suitability for the Ninth Circuit. Committee and the Senate had more judicial experience in the past—I don’t Furthermore, it has been reported than enough of a record to judge her want anyone to get the wrong idea— that his nomination finally moved for- nomination, despite her lack of judicial

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00024 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.047 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2089 experience. This information is simply ternal Justice Department evaluations The third issue raised in the letter not there for Miguel Estrada. indicating that Professor Bender had sent to me and published by White Raymond Fisher was the third Ninth given Mr. Estrada positive reviews House counsel is the fact that I ‘‘ref- Circuit nominee mentioned in the while at the Justice Department. It is erenced the fact that Miguel Estrada Gonzales letter. Here again is a nomi- relevant to the decisionmaking process has been ‘accused’ of using an ideolog- nee with no judicial experience but, when a nominee’s former supervisor ical litmus test when assisting Justice here again, unlike Mr. Estrada, Ray- feels compelled to comment that he is Kennedy in the selection of his law mond Fisher had a depth and breath of too ideologically driven to be a fair clerks.’’ other experiences that allowed the judge, and it is certainly possible at This is true. Specifically, I was con- committee to fully examine the nomi- the very least that an attorney could cerned that two individuals who had nee and his nomination and come to an be both an excellent legal scholar and tried to get a clerkship with Justice informed decision. an excellent advocate but be ill-suited Kennedy believed very strongly that Raymond Fisher proved himself in for the judiciary, as suggested by Pro- they had been subjected to a litmus many different functions to be impar- fessor Bender. test for being too liberal and had been tial, to gain the respect of his peers, In any event, I recently asked my rejected out of hand as a result. Both and to evidence the temperament re- staff to contact Professor Bender by individuals had been quoted in the quired to be a Federal judge. From telephone and ask him about his com- press, and while these accusations were serving as a Supreme Court clerk to ments to the press and his past evalua- by no means dispositive in my deci- working in private practice, to serving tions of Miguel Estrada. In doing so, sionmaking, they were yet another ex- as the head of the Los Angeles Police my staff discovered some interesting ample of comments made by those who Department’s civilian oversight panel, facts. First, I am told that Professor know Mr. Estrada, or worked with him, Fisher was often in the public eye and Bender stands by his statements to the that he is simply too ideological for continuously showed an press ‘‘100 percent’’ and would say so if the bench. evenhandedness and ability to work asked. When I first heard about these com- through complex issues that would Second, according to Professor Bend- ments, I was concerned but also wary. clearly serve him well from the bench. er, the positive evaluations that Judge Because the quotes we were given came Then-mayor Richard Riordan of Los Gonzales and others cited consisted from anonymous sources in a news ar- Angeles, a Republican, said that he merely of boilerplate language next to ticle, I wanted to be sure they were ac- chose Fisher for the police commission check marks. He stated every em- curate. job ‘‘because he did not have a political ployee received the highest evaluation But having done a bit more research agenda and called the facts as he saw automatically. on the subject, I am confident these them.’’ And perhaps of most relevance, Pro- two individuals truly believe that a lit- That is exactly what we look for in a fessor Bender indicated to my staff mus test was applied to them. nominee. And in the case of Miguel that he was already so concerned about Without countervailing evidence, Estrada, I am not convinced that we Mr. Estrada’s ideological bent while su- such as a written record or substantive have it. pervising him at the Department of responses to committee questioning, it Additionally, in the Fisher, Berzon, Justice that he learned not to rely on is difficult to assuage the concerns and Fletcher cases, we had volumes of his memos and in fact stopped assign- raised by these applicants and others. support letters from every conceivable ing him important work. In other Now that I have outlined some of my source of every political background words, as an employee of the Justice concerns about Miguel Estrada, I want and, most importantly, there was not Department whose job it was to advo- to take a few moments to talk about significant opposition as exists in the cate to the best of his ability, Miguel the general state of the nominations Estrada case. Estrada’s direct supervisor did not process and what I see as a real lack of Quite frankly, if everyone who knows trust him to be fair and impartial. consultation between the White House a nominee comes to the committee I asked my staff to call Professor and many Members of the Senate in with glowing praise and statements Bender and read this to him, and he making these nominations. It is this that the nominee has perfect knowl- stands by it. This was not a last- lack of consultation in the nomina- edge, experience, and temperament to minute conversion as some have sug- tions process that has led, I think, be a judge, it is obviously easier to feel gested but an ongoing concern. many in the minority party to become comfortable confirming that nominee I have listened to some of the attacks increasingly concerned about indi- regardless of the level of actual judi- on Mr. Bender. I don’t think they re- vidual nominees, about scheduling, and cial experience. Likewise, even a nomi- flect well on the Senate. I may not whether or not there will be any real nee with overwhelming judicial experi- agree with everything Professor Bender advice and consent for the Senate. ence might face trouble if a large num- has done or advocated within his life- Early on in the Bush Presidency, I ber of people who had worked with or time, but this is a man with very im- sat down with representatives from the for that nominee expressed strong con- pressive credentials. White House and we worked out to- cerns about his or her impartiality. Paul Bender graduated magna cum gether a system for nominating dis- Here, with Miguel Estrada, we have a laude from Harvard Law School in 1957. trict court judges in California that man with no judicial experience and He served as a law clerk to Judge works, and works well. Essentially, we who has been the subject of a large vol- Learned Hand of the U.S. Court of Ap- set up one nominating committee for ume of concern about his temperament peals for the Second Circuit and then each district in California. Each com- and his ability to fairly and impar- was a law clerk to Supreme Court Jus- mittee is made up of six members, tially judge a given situation. This, in tice Felix Frankfurter before embark- three chosen by the White House and my opinion, presents a problem. ing on a distinguished career as a pro- one chosen by me, one chosen by Sen- The second issue raised in the fessor and in the U.S. Solicitor Gen- ator BOXER, and then Senator BOXER Gonzales letter involves Professor Paul eral’s Office. He spent 24 years as a fac- and I choose the third representative Bender, Mr. Estrada’s direct supervisor ulty member at the University of together. In other words, each com- at the Solicitor General’s office. Spe- Pennsylvania Law School, and he also mittee is made up of three Democrats cifically, I mentioned in my committee served as dean of the Arizona State and three Republicans, an even num- statement on the Estrada nomination College of Law. He has argued more ber. No name can be forwarded to the that I was concerned about a state- than 20 cases before the U.S. Supreme President for nomination unless a ma- ment Professor Bender had made in the Court. jority of the commission members press that Miguel Estrada is so ‘‘ideo- As a result, I think it is worth taking agree. So this means that at least one logically driven that he couldn’t be his comment into consideration as one member of each party must consent to trusted to state the law in a fair, neu- of many factors we must look at when every name forwarded to the President tral way.’’ trying to determine whether Mr. for consideration. For each vacancy, In response to this quote from me, Estrada can be a fair and impartial the commission submits several names, Judge Gonzales cited a number of in- judge. so the President may still choose the

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00025 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.049 S10PT1 S2090 CONGRESSIONAL RECORD — SENATE February 10, 2003 particular nominee. But we have in that role and consent to the nomi- to be at least a willingness to give any agreed that no individual will be nomi- nees themselves. benefit of the doubt to those nominees. nated without first receiving at least a Without any prior advice role, it Then we have independent agencies majority vote. sometimes becomes necessary for the which go on for a period of time beyond This has really worked, Mr. Presi- consent process to become more the time of a given President, and we dent, and worked well. It is producing confrontational, as it has recently. But advise and consent on those nominees. well-qualified, nonideological judges it is my hope that in coming months And then we have the Federal courts. If for California district courts. These we will come together as a Senate—not we make a mistake in terms of a par- commissions have already worked to as Democrats or Republicans, but one ticular judge, we have the circuit produce eight highly qualified, non- body—to work through the nomination courts to which matters can be ap- controversial nominees. Five of those issues that have so torn us apart over pealed, and then ultimately the Su- have already been confirmed, one more the last decade. preme Court. Our highest value is fo- was voted out of committee, and two It is also my hope that this President cused on the Supreme Court—lifetime more were only recently received by will work with all Senators, as he has appointments, and under the distribu- the Senate. worked with me, to establish a frame- tion of powers defined in the Constitu- Here is the point: The five judges now work for producing moderate, qualified tion, a shared power with the President confirmed spent an average of only 93 judges for every district court in the appointing and the Senate giving its days—about 3 months—from the day Nation. It is my hope that we can advice and consent. It is a shared they were nominated to the day they make these debates about substance power. were confirmed. The process is work- and qualifications, not about ideology Many assume the Senate of the ing. or partnership. United States should rubberstamp a It was my hope when we established I cannot at this time support Miguel nominee; if we cannot find something this process that the White House Estrada for the D.C. Circuit court. As I wrong with a nominee, that we should would move quickly to establish simi- pointed out earlier, I might very well give our stamped approval. That clear- lar agreements with other States. support him for a district court posi- ly is in conflict with the views of our After all, the Constitution gives the tion. He is 41. This is a 40- or 50-year Founding Fathers and in conflict with Senate the responsibility of advising position. the great traditions of this institution. the President on his or her nominees, This is a debate that will not end We have a very high standard when it and consenting or declining to consent today or tomorrow or in the coming comes to this particular court because, to those nominations. It is thus our months, unless we can all calm the although it is not the Supreme Court, duty to work with each President in rhetoric, sit down, and discuss how we it is a lesser court, of the very special helping to select and to judge the can move through the process with responsibilities and unique responsibil- qualifications of nominees to the Fed- greater consultation, greater fairness, ities it has. Therefore, we have a duty eral bench. and a greater respect for the constitu- to find out the views and commitments This advise and consent role should tional role of the Senate. of a nominee to the core values of the not be taken lightly. Helping to shape I thank the Chair and yield the floor. Constitution, not expecting that a the Federal judiciary may well be one The PRESIDING OFFICER. The Sen- nominee is going to answer a question of the most important things any Sen- ator from Massachusetts. about a particular case or a particular ator will do during his or her term. The Mr. KENNEDY. Mr. President, I com- outcome, but talk about their views, quality and nature of the nominees we mend my friend and colleague from their developed views, their mature pass through the Senate will alter the California for an excellent presentation views about constitutional values, makeup of the courts for years to to the Senate outlining the historic re- issues on civil rights, issues on the come, often long after we have retired sponsibilities that the executive and first amendment, on the role of the from this body. the Senate have in meeting all of our Congress in terms of our responsibil- Too many of my colleagues have responsibilities to ensure we have ities in meeting the general welfare found themselves with no ability to qualified members on the courts of this clause, the separation of church and consult on nominees to the district country. She gave an excellent analysis State, the issues of privacy and other court, or even the circuit court. Indeed, of both the past activities of the court civil rights issues—all of these matters in some instances the White House has and rebutting a number of the mis- which are of enormous importance and completely disregarded the advice or representations that have been made consequence to the people of this coun- even nominated the candidate most op- about those who have raised serious try in which we have seen a generation posed by a home State Senator. In questions about this nominee. struggle and individuals in a number of other instances, vacancies kept open I thought the Senator from Cali- instances give their lives to these by the deliberate inaction of the Re- fornia summarized in an important causes. publican-controlled Senate of recent way the compelling reasons why many We have a very special and important years may now be filled en masse, with of us have reservations about this responsibility to make sure those far more ideological nominees, artifi- nominee. I thank her very much for the words that are above the Justice De- cially skewing these courts to the statement, and I hope our colleagues partment, ‘‘Equal Justice Under Law,’’ right. This is the environment sur- will pay close attention to it. are going to be equal justice under law rounding the nomination of Miguel One of the most important functions for every person in this country. Estrada. We have before us a nominee of the Senate is its constitutionally There is, I believe, a responsibility, who was controversial from the very mandated advise-and-consent role in not just to any member of the Judici- start. the selection of judges. This role is ary Committee, not just to the Judici- When the Judiciary Committee tried meant to ensure the appointees to the ary Committee, but to the American to find out more about him, we were Federal courts are independent and fair people, that a nominee has because we stymied at every turn: No written judges, who hear all cases with an open act as their agents in terms of our record, no work product, and unrespon- mind, independent of the political votes, and there is a responsibility to sive answers to our questions at the process but also of personal ideology. the American people that a nominee hearing. We have all asked at one time or an- will at least talk about the Constitu- The Constitution established a sys- other what is the criteria we use in the tion and talk about these fundamental tem of checks and balances, one that advise-and-consent role. I have over values and what the Constitution has served this Nation well for more time supported the idea that, obvi- means. That has been the time-honored than two centuries. The President is ously, enormous deference is given at tradition of a nominee, going back for the Commander in Chief, but the Con- the time a President is elected to the pretty much the history of this coun- gress declares war and funds the mili- fact that he or she ought to be able to try. tary. The President signs treaties, the have the advisers of their choice. That In this instance, there is such a com- Senate ratifies them. The President is a period of time, before the Presi- plete contrast. There is an individual makes nominations, but we advise him dent’s term expires, when there ought who will not give any information, or

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00026 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.051 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2091 respond to any of the constitutional With this troubling and inadequate every defendant against whom he had issues he was asked, not just by any record, I do not believe Mr. Estrada tried a case over the period of his ca- single member, but by all the members, should be confirmed to this important reer—a young man came before the and also a refusal to provide the mate- court, the second most powerful court committee and said: Look, we differed rial which other nominees for other po- in the Nation. with Bill Lann Lee on the issues of the sitions have provided in the past. The Federal courts have the power to facts, but we want to tell this com- Judge Bork provided material when he make far-reaching decisions affecting mittee that this was an extraordinary was a nominee for the Supreme Court; lives of people and the life of our Na- lawyer who did a lawyer’s job in under- Brad Reynolds, when he was being con- tion. We have the responsibility to en- standing the law when arguing his sidered as head of the Civil Rights Di- sure that the people who serve on the case. We had nothing but the highest vision, and other nominees, Repub- courts will protect important constitu- regard and respect for his presentation, licans and Democrats alike. With Mr. tional and statutory rights. I do not be- his ability, and the way he conducted Estrada, no; no, we are not going to lieve Mr. Estrada is such a person. himself. Senators testified to this be- provide that information to the Judici- Although he is a distinguished legal fore the Judiciary Committee. ary Committee. No, we are not going to advocate, his commitment to core con- But was Bill Lann Lee able to get a answer questions about views on the stitutional values is far from clear. Mr. vote in the Judiciary Committee? No, Constitution. No, we are not going to Estrada prevented us from learning absolutely not. Do you think he was provide past work. No, we are not much at all about his legal and con- able to get consideration on the floor going to provide that. No, we are not stitutional philosophy, and throughout of the Senate? No, he was denied that. going to give that information. And this process he has evaded even the With all of the hopes and dreams there yet we expect somehow the Senate will most basic questions concerning how were for hundreds of thousands, or even go ahead and give its approval to a he would serve as a judge. In addition, millions, of Asian Americans and the nominee who comes to this nomina- Mr. Estrada and the administration re- hopes and dreams of all of his family tion. fused to produce the documents from and relatives, he was denied confirma- I congratulate Mr. Estrada. He comes Mr. Estrada’s time in government prac- tion and turned back. We will let the to this position on the basis of very tice that might have helped us answer other side give the explanations for humble roots and a life of personal questions. So these are very serious that. But this outstanding nominee, achievement. Does that guarantee one problems, and they would require this who eventually had a temporary ap- will hold a position on the district body to reject any nominee who came pointment to the Justice Department court because one has had that experi- before it. and did an extraordinary job, was de- ence? Should that entitle someone? Unfortunately, some of our Repub- nied the opportunity to be voted on. Should one think of serving on the lican colleagues have decided it is in The Bush White House, by contrast, courts as an entitlement or as a re- their best interest to claim that we are until a short time ago, has nominated ward? Clearly not. There are too many opposing Mr. Estrada because he is only one Latino to the court of ap- issues involving the everyday life expe- Latino. This irresponsible accusation is peals, and that is Mr. Estrada. rience of American citizens that are absurd. It is belied by the strong his- One of the most important functions being decided by that court and that tory of those who are members of our of the Senate is constitutional advice will affect the lives of individuals in party who have fought for opening the and consent. We cannot perform this this country. Therefore, this is too im- doors for all minorities in America, in- function if we are not allowed access to portant a position for anyone, as tal- cluding Latinos. The Republican accu- the nominee’s record, and by refusing ented as they are and as unique as sation is also dangerous and destruc- to provide the Senate with the most their past experience, to expect they tive. It has even been said that if we important memoranda produced by Mr. are just going to be in a privileged po- did not confirm Mr. Estrada to the DC Estrada when he was in the Solicitor’s sition and not have to be responsive to Circuit, we would shut the door on the Office, the administration is trying to the inquiries of the members of the American dream of Hispanic Ameri- prevent us from performing our con- committee. cans everywhere. Nothing could be fur- That is the dilemma in which we find stitutional duty. ther from the truth. As they say in The administration’s refusal to pro- ourselves with this particular nominee. sports, let’s look at the record. In fact, vide these memoranda is not based in The Senator from California reviewed President Clinton nominated 11 law or precedent. Past administrations the facts, and I wish to address them as Latinos to the Nation’s most powerful have disclosed the legal memos in con- well this afternoon. Mr. President, we also heard impor- courts. He nominated 21 Latinos to the nection with both judicial and execu- tant testimony about the judgment, district courts. For these nominees, tive nominations. We have repeatedly temperament, and the commitment to achieving the American dream meant made the administration aware of the statutory projections and core con- being sensitive to the core values that clear precedence on the disclosure of stitutional values that are necessary to make this country strong, that are em- confidential internal documents relat- serve as a Federal judge, especially on bodied in the words at the entrance to ing to the nominations of several a court as important as the U.S. Court the Supreme Court: ‘‘Equal justice judges, including Robert Bork to be- of Appeals for the DC Circuit. Then we under law.’’ come Associate Justice on the Supreme have had the assault and attack on Nonetheless, Republicans unfairly Court, Brad Reynolds as Assistant At- those who question his core commit- blocked many of these nominees. Not torney General, Benjamin Civiletti to ment to the values of the Constitution, only these nominees, but I remember become Attorney General, Stephen but the fact is, we do not know because Bill Lann Lee who was an Asian Amer- Trott to become a judge on the Ninth he refused to answer the most basic ican, who was denied the opportunity Circuit, Justice Rehnquist to become questions. to have a vote. He was absolutely an Chief Justice. We heard the pillorying by many who extraordinary and distinguished nomi- In some of those instances, they expressed opinions in opposition to Mr. nee whose life experience in many re- made those memoranda available only Estrada, and their characters were as- spects was similar, if not more compel- to the members of the committee, and saulted as well, I think unfairly and ling, in terms of his own personal suc- then they asked us for the memoranda unjustly. We would not have to resort cess. He came from extraordinarily back. Agreements were worked out to the opinions of others if Mr. Estrada humble beginnings. He did not speak with the members of the Judiciary had been willing to respond to the the language. He worked his way Committee. But not with regard to this questions. through school, was able to get a schol- nominee. We were effectively denied all Mr. Estrada has refused to answer arship, I believe to Yale University. He of this. Justice Rehnquist, Bradford the basic questions posed to him in the had an absolutely distinguished record, Reynolds, Assistant Attorney General confirmation process. As I mentioned, went on as a lawyer to help knock for Civil Rights Benjamin Civiletti to the White House refused to release the down the walls of discrimination. He become Attorney General, Robert Bork materials necessary for a full review of was selected as the head of the Civil to become an Associate Justice of the his qualifications. Rights Division. He had just about Supreme Court—we were able to get

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00027 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.054 S10PT1 S2092 CONGRESSIONAL RECORD — SENATE February 10, 2003 those memoranda. But not from Mr. ported that some of Mr. Estrada’s col- stitutionally vague because it did not Estrada. They told us: You cannot have leagues have said he is not open-mind- provide adequate notice of the pre- the memoranda. And we have a nomi- ed and he ‘‘does not listen to other peo- scribed conduct and did not set min- nee who will not answer any questions ple.’’ imum guidelines for law enforcement. on this. Then Members are asked why After an in-depth meeting with Mr. At his hearing, Mr. Estrada sug- they are concerned about this process. Estrada, a member of the Congres- gested that minority lawmakers sup- Indeed, the administration has itself sional Hispanic Caucus said he ap- ported the antiloitering ordinance. disclosed the past memoranda for pur- peared to have a short fuse and did not This is false. In fact, the ordinance was poses of evaluating its nominees. The have the judicial temperament nec- initiated by residents in a predomi- Bush White House disclosed legal essary to be a judge. According to the nantly white neighborhood, and drawn memoranda written by an attorney in Puerto Rican Legal Defense Fund, with up by several white aldermen. The ma- the White House Counsel’s Office in whom Mr. Estrada met, he is not even- jority of the African American alder- connection with the nomination of Jef- tempered and he became angry during men on the Chicago City Council voted frey Holmstead for the position of as- their meetings with him and even against it. Several aldermen compared sistant administrator at the Environ- threatened the group with legal action it to an apartheid-era law in South Af- mental Protection Agency. They are because they raised concerns about his rica. When the case came before the prepared to give all of the memoranda record. Supreme Court, many of the civil to the appropriate committees for Jef- Now, we have that information, but rights minority groups joined amicus frey Holmstead, when he was in the we are denied any information on the briefs against the ordinance, including White House Counsel’s Office in con- other side. Anyone who has questioned the National Council of La Raza, Mexi- nection with a position as assistant ad- Mr. Estrada finds they are questioned can American Legal Defense, and the ministrator of the Environmental Pro- themselves. But we are denied the in- NAACP. tection Agency, but they will not give formation that may reflect an entirely Before I come back to that issue, I it to the Senate for a nominee for the different temperament. take a moment to discuss the opposi- DC Circuit in our Nation’s Capital. Some of our Republican colleagues tion to Mr. Estrada’s nomination that Why is that? Why do they give it on have said Democrats who oppose Mr. has been voiced by some of these the one hand and refuse to give it on Estrada’s nomination are motivated by groups. Let me finish with the legal de- the other? What is the justification his ethnic background, but these re- fense. Now we had the holding by the that they do not have to do it? ports that raise serious concern about Supreme Court in finding that the Chi- Then they list a number of promi- Mr. Estrada come from some of the cago ordinance was unconstitutional. nent figures, many of them Democrats, most important Latino organizations The Supreme Court said the broad who say they are under no obligation in the country. These groups correctly antiloitering ordinance in the Chicago- to do it. But clearly, in the past, under point out that Mr. Estrada had not Morales case was unconstitutional. Mr. Republicans and Democrats, when taken any steps to reflect or serve his Estrada devoted man-hours in defend- there has been an interest in trying to community and has never provided any ing the City of Annapolis following this reach accommodation and to have an pro bono legal expertise, supported or against the challenges to the Constitu- understanding about the nominees, joined or participated in events of any tion of a similar antiloitering ordi- there has been a willingness to do it. organization dedicated to serving or nance. When the NAACP challenged But, no, they are not going to do it. advancing the Latino community, the ordinance, he would take the city’s We can only assume that the Admin- never made any efforts to open the case all the way to the Supreme Court, istration’s inconsistent position means doors of opportunity for Latino law if necessary, free of charge. Mr. that it has something to hide in Mr. students or junior lawyers. Mr. Estrada Estrada’s memoranda. Estrada lost that case, too, however, Given the administration’s recal- appears to be committed neither to his after a district court struck down the citrance about providing the Estrada community nor to an open, fair, and law as unconstitutional. memoranda, the Senate is left with impartial judicial process. Here he went all the way to the Su- Mr. Estrada has attempted in the very little to review to assure our- preme Court on the antiloitering. The past to limit the first amendment selves that Mr. Estrada has the com- Supreme Court made a finding, and rights of minorities. I have inquired mitment to constitutional and statu- then he takes the time to go right back about his standing in this particular tory protections necessary to serve on to another antiloitering ordinance and case. He sits on the board of the Center the DC Circuit. What little we do know insists on taking all of that and it was is very troubling because Mr. Estrada’s for Community Interest which advo- struck down in the district. It is dif- direct supervisor in the office has cates for police tactics that have often ficult to understand on an issue such as raised questions about whether Mr. led to harassment and racial profiling, that why he would have been so in- Estrada had the necessary tempera- and his efforts reflect a lack of concern volved in that kind of continued activ- ment to sit on the DC Circuit. for important American ideals. ity when it reaches issues involving the As my friend and colleague from In a case heard by the Supreme first amendment. California has pointed out, Mr. Bender Court, Chicago v. Morales, he rep- I am deeply concerned by Mr. has stated that those statements he resented the U.S. Conference of Mayors Estrada’s intense focus on enforcing an made were entirely true and he still in an amicus brief defending a tenant- antiloitering ordinance. As MALDEF stands by them. We will hear a brutal loitering ordinance in Chicago. The noted, many of the individuals who are assault on Mr. Bender and his char- Center for Community Interest also targeted under such ordinances are mi- acter. We have heard it previously in submitted a brief in support of the or- norities. Often Latino urban youth are the Judiciary Committee, and we have dinance. The Chicago antiloitering or- harassed by police enforcing such ordi- heard it here. He is an outstanding in- dinance applied to any group of two or nances, and day laborers—most often dividual, a former clerk to Justice more individuals who gather, with no newly arrived immigrants—congre- Frankfurter. He argued before the Su- apparent purpose, in any public place, gating on particular streets waiting to preme Court, had an extraordinary and including streets, parks, restaurants, be offered a manual labor job are often distinguished record, but we will hear or any other location open to the pub- targeted. Mr. Estrada does not seem to him assaulted because he has ques- lic, and mandated if a police officer appreciate this effect on the minority tioned the temperament of Mr. reasonably believed any of the individ- population and did not let it affect his Estrada. uals to be a gang member, he could defense of those statutes. These serious allegations require order all of the individuals, including Other statements by Mr. Estrada some response on the merits and some those not suspected of gang member- raise additional concern about his com- evidence to the contrary. Instead, some ship, to disperse and remove them- mitment to civil rights, expressing of my colleagues in the Senate have re- selves from the area. The Supreme skepticism about affirmative action. sponded by attacking Mr. Bender. Court found the ordinance violated the The DC Circuit has become closely di- Mr. Bender is not alone in the assess- due process clause of the 14th amend- vided on affirmative action and public ment of Mr. Estrada. It has been re- ment. It held the ordinance was uncon- employment programs, and a narrow

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00028 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.056 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2093 majority of the DC Circuit held the clusive jurisdiction over many work- We see a number of other new chal- Federal Government cannot require place, environmental, civil rights, and lenges coming in the workplace in broadcasters to conduct targeted out- consumer protection statutes. Because more recent times. Nonetheless, it has reach to minorities and women even the Supreme Court grants reviews of been effective legislation. for the purpose of increasing the pool only a small number of lower court de- Do you care about wetlands, do you of qualified applicants. cisions, most administrative law is es- care about clean air, do you care about According to MALDEF, in meetings tablished by the DC Circuit. Despite clean water? The D.C. Circuit Court is where Mr. Estrada has answered ques- the importance of the DC Circuit to a the final court that is going to be mak- tions, he has made statements about broad array of Americans, some Repub- ing judgments on these environmental affirmative action, calling into ques- licans have worked to undo any bal- issues. We have seen where the admin- tion whether he would find a compel- ance on the court. During the Clinton istration has gone ahead and cut back ling interest to justify such programs. administration, the Senate, controlled on the protection of those environ- Mr. Estrada indicated he has not raised by Republicans, refused to approve two mental issues. We have already seen the issue of diversity in places where of President Clinton’s nominees to the the appeals working their way through he has worked and he would not be par- DC Circuit, Elena Kagan and Allan the courts and they are going to end up ticularly vigilant about giving oppor- Snyder. to the DC Circuit courts. Do you care tunities to Hispanic clerks. Mr. Last fall’s hearing for Mr. Estrada about clean air? Do you care about Estrada was asked about the possible was the first hearing for a nominee to clean water? Do you care about the en- reason for the lack of minority law the DC Circuit in 5 years. No questions vironment? The DC Circuit Court is clerks by a reporter for USA Today. were raised about the qualifications of where these matters are going to be de- According to the article, Mr. Estrada either Ms. Kagan or Mr. Snyder. Both cided. dismissed statistics showing little rep- had stellar qualifications. Neverthe- Do we have anything from Mr. resentation of minorities and indicated less, hearings for these nominations Estrada to indicate whether he has any if there was some reason for underrep- were delayed. After they finally re- interest at all in protecting the envi- resentation, it would be something to ceived hearings, they were refused a ronment? Whether he has any interest look into, but I don’t have any reason vote in the committee or on the floor. at all in workplace justice? Any inter- to see it as other than a trend in soci- Many Republicans argued that the DC est at all in workplace safety? It just ety. This is contrasted with quotes of Circuit did not need any more judges. goes on from there. others saying there are a variety of Yet shortly after President Bush was The D.C. Circuit will also hear cases reasons for the lack of minority clerks. elected, two judges were nominated for on civil liberties. In the past, the wire- All of these aspects of Mr. Estrada’s the court. tap issue has come up in the appeals prior work indicate he would not bring I see my good friend and colleague process. Are we going to be a country a fair and open mind and sensible judi- from New York here, Senator SCHUMER. that protects its Constitution? cial temperament and commitment to I know others want to speak about this The list goes on, issue after issue, de- civil rights and equal opportunity to important issue. fining what this country stands for. In the bench. The DC Circuit Court has a major in- terms of protecting rights, the D.C. During the course of the hearing on fluence on decisions involving the Na- Court is the court. To stonewall the Mr. Estrada, he did little to allay our tional Labor Relations Board. The Na- committee on each and every one of concerns about his record. In fact, tional Labor Relations Board is the ar- these subjects, as the nominee has many concerns were actually intensi- biter of disputes between workers and done, refusing to talk about any of fied by Mr. Estrada’s unwillingness to employers. We have a process where them, I think reflects a contemptuous respond to even the most basic and in- that board is to work and work effec- attitude towards the whole nomination nocuous questions about his views. For tively. There has been enormous def- process. In that way, he is not worthy instance, Mr. Estrada refused to name erence given to administrative boards to receive the support of the Senate of a single Supreme Court case of which by the circuits generally, and by the the United States. he was critical. DC Circuit in particular, but that is no To reiterate, one of the most impor- In addition, Chairman LEAHY asked longer the case. We are finding increas- tant functions of the Senate is its con- Mr. Estrada whether an employer or ing numbers of decisions that are made stitutionally mandated advice and con- school could take race or ethnicity by the National Labor Relations Board sent role in the selection of Federal into consideration in hiring admissions appealed to the DC Circuit and effec- judges. This role is meant to ensure and Mr. Estrada refused to give any tively overturned. This has an enor- that appointees to the federal courts opinion on the matter. Chairman Leahy mous impact and affect on workers’ are independent and fair judges who asked Mr. Estrada what he thought rights, with all of the implications that hear all cases with an open mind, inde- about the Supreme Court decision in workers’ rights have in terms of health pendent not only of the political proc- Romer v. Evans, a decision he was pur- care policy, in terms of wages, and in ess but also of personal ideology. ported to criticize, and he refused to terms of pensions. Miguel Estrada does not fit this agree whether he agreed with the deci- This DC Circuit Court has great in- model. He lacks the judgment, tem- sion, stating because he did not hear fluence on whether our occupational perament, and commitment to statu- the arguments he could not have an health and safety laws are going to be tory protections and core constitu- opinion. At the same time, Mr. Estrada enforced. tional values that are necessary to gave contradictory answers in response We have seen over the period of re- serve as a Federal judge, especially on to a series of questions about whether cent times a reduction in funding for a court as important as the United he had an applied ideological litmus the enforcement of these laws. That States Court of Appeals for the D.C. test to clerks. has been true. But, nonetheless, some Circuit. He has refused to answer many I take a moment or two again to un- of these find their way on up to the DC basic questions posed to him in the derline the importance of the DC Cir- Circuit Court. Having someone there confirmation process, and the White cuit Court. Mr. Estrada’s nomination is who is going to understand the law, un- House has refused to release the mate- particularly troubling, given the im- derstand the importance of that legis- rials necessary for a full review of his portance of the DC Circuit to issues of lation, and who can interpret that leg- qualifications. On this troubling and concerns for a broad range of Ameri- islation in a fair and reasonable way is inadequate record, Mr. Estrada should cans seeking to enforce their basic going to be enormously important if we not be confirmed to this important rights. The DC Circuit is widely re- want safety in the workplace. The DC court, the second most powerful court garded as the second most important Circuit Court is the court that makes in the nation. court in the United States, behind only those judgments and decisions. We cannot stand by and allow a Re- the Supreme Court. With a unique and We have seen what has happened, publican White House and Republican- prominent role among the Federal even since OSHA has been enacted. We controlled Senate to steamroll the con- Courts of Appeal, particularly in the have reduced the number of deaths in firmation of controversial nominees area of administrative law, it has ex- the workplace by half. like Mr. Estrada, who would undermine

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00029 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.058 S10PT1 S2094 CONGRESSIONAL RECORD — SENATE February 10, 2003 the important role of the Federal sity of the Federal bench increased by trict Court in Texas; and Anabelle courts as a place for a full, fair, and confirming Latino nominees, even Rodriguez, nominated twice to the Dis- impartial hearing. The Federal courts when those nominees come from a Re- trict Court in Puerto Rico. None of have the power to make far-reaching publican White House. these qualified individuals were con- decisions affecting the lives of our peo- Senate Democrats have eagerly con- firmed by the Republicans. ple and the life of our Nation. We have firmed Latino nominees, even when Mr. Estrada, on the other hand, re- the responsibility to ensure that the those Latino nominees are relatively ceived a hearing from the Democratic- people who serve on these courts will conservative. So when some Members controlled Senate. We wanted to look protect important constitutional and of the Senate say that Democrats have into his record and see what kind of statutory rights. a different standard for Latino nomi- judge he would be. But we were blocked Mr. Estrada is not such a person. Al- nees, that accusation is unfounded. at every turn. The Bush administration though he is a distinguished legal advo- Nonetheless, these accusations have refused to let us look at some of Mr. cate, his commitment to core constitu- continued. It is a dangerous and irre- Estrada’s most important work as a tional values is far from clear. Mr. sponsible attempt to play politics with Deputy Solicitor General in the Justice Estrada has prevented us from learning important issues of race, and frankly it Department. Mr. Estrada himself has much at all about his legal or constitu- is beneath the dignity of this body. For refused to answer questions about his tional philosophy. Throughout this example, Senator LOTT has said quite views on the law and the courts. process, he has evaded even the most bluntly that Democrats ‘‘don’t want We have serious concerns about Mr. basic questions concerning how he Miguel Estrada because he’s Hispanic.’’ Estrada that have nothing to do with would serve as a judge. In addition, Mr. Senator HATCH has said that Demo- his ethnic background. We have been Estrada and the administration have crats are creating a glass ceiling for prevented from learning anything refused to produce documents from Mr. Latinos, so that ‘‘if they do not think about him. We certainly have not been Estrada’s time in government practice a certain liberal way . . . then they are allowed to learn enough to justify sup- that might help us answer questions not good enough.’’ port for this nomination. about his record and the approach he Senator DOMENICI has said that he is Our Republican colleagues also claim would bring to judging. perilously close to saving our opposi- that Mr. Estrada ‘‘has tremendous sup- These are very serious problems, and tion to Miguel Estrada’s nomination is port among Hispanic people.’’ In fact, they would require this body to reject because of his race. Senator DOMENICI major Latino organizations have raised any nominee who came before it. Some is right about one thing, these state- strong concerns about Mr. Estrada. of our Republican colleagues, unfortu- ments are perilous. The Congressional Hispanic Caucus has nately, have decided it is in their inter- They are also just plain wrong. Dur- opposed his nomination. Other Latino est to claim that we are opposing Mr. ing the last Democratic administra- organizations that have opposed or Estrada because he is Latino. This irre- tion, 23 Latino nominees were con- raised concerns about Mr. Estrada in- sponsible accusation is absurd. It is firmed to the Federal court—more than clude: the Mexican American Legal De- belied by a strong history in the Demo- in any prior administration, Repub- fense Fund, the Puerto Rican Legal De- cratic Party of opening doors for all lican or Democrat. fense Fund, the National Association of minorities in America, including It has been Senate Republicans who Latino Elected and Appointed Officials, Latinos. The Republicans’ accusation have unfairly blocked the confirmation the National Council of La Raza, the is also dangerous and destructive. of Latino nominees. The Republican- California La Raza Lawyers, the It has even been said that if we do controlled Senate refused to confirm Southwest Voter Registration Project not confirm Mr. Estrada to the D.C. eight Latino nominees. No one accused and the Illinois Puerto Rican Bar Asso- Circuit, we would ‘‘shut the door on the Republicans of prejudice. Jorge Rangel ciation. American dream of Hispanic-Ameri- and Enrique Moreno, both nominated These groups represent a wide array cans everywhere.’’ Nothing could be to the Fifth Circuit Court of Appeals of views and the broad diversity of the further from the truth. In fact, Presi- from Texas, were not even afforded Latino community. Listen to what dent Clinton nominated 11 Latinos to hearings by the Republicans. Still, no they say about him, and why they op- the Nation’s powerful appellate courts. one cried prejudice. pose him. The Congressional Hispanic He nominated 21 Latinos to the district Mr. Rangel and Mr. Moreno each Caucus has said: courts. For these nominees, achieving waited more than a year in the Senate. The appointment of a Latino to reflect di- the American dream meant being sen- When Senate Republicans refused to versity is rendered meaningless unless the sitive to the core values that make this give these nominees a hearing, their nominee can demonstrate an understanding country strong, and that are embodied nominations were returned to the of the historical role courts have played in by the words above the entrance to the White House. President Clinton re- the lives of minorities in extending equal Supreme Court: ‘‘equal justice under nominated Enrique Moreno, but Presi- protections and rights; has some involve- law.’’ Nonetheless, Republicans un- dent Bush withdrew his nomination. In ment in the Latino community that provides his place, President Bush nominated insight into the values and mores of the fairly blocked many of these nominees. Latino culture in order to understand the The Bush White House, by contrast, Judge Pickering and Justice Owen, two unique legal challenges facing Latinos; and has, until last week, nominated only divisive and controversial nominees recognizes both the role model responsibil- one Latino to the courts of appeals: with very troubling records on issues ities he or she assumes as well as having an Mr. Estrada. such as civil rights. appreciation for protecting and promoting The White House and some Senate Just as disturbing, Senate Repub- the legal rights of minorities who histori- Republicans have complained that Sen- licans expressed the notion that Mr. cally have been the victims of discrimina- ate Democrats have not supported Mr. Moreno may not have been qualified tion. Estrada because he is Latino. We for the position. Mr. Moreno, like Mr. Based on the totality of the nominee’s Estrada, was a Harvard-educated law- available record and our meeting with him, should not lightly accuse other Mem- Mr. Estrada fails to meet the CHCs criteria bers of this body of such prejudice, but yer who was adjudged well-qualified by for endorsing a nominee. make no mistake: That is exactly what the American Bar Association. Mr. In our opinion, his lack of judicial experi- some Republicans are accusing Demo- Moreno was eminently qualified for the ence coupled with a failure to recognize or crats of. The record belies this accusa- position, but Senate Republicans dis- display an interest in the needs of the His- tion. paraged him without even affording panic community do not support an appoint- Until last week, President Bush had him a hearing. Still, we did not say ment to the federal judiciary. nominated 130 people to the Federal this was the result of bigotry. There is no mention of the fact that courts. Out of those 130 nominees, Other Hispanic-Americans who were Mr. Estrada is conservative. The Con- there were only 8 Latinos. Six of these never confirmed by the Republican- gressional Hispanic Caucus did not Latino nominees were confirmed last controlled Senate include Christine come out against the other Latino session when Democrats controlled the Arguello, nominated to the Tenth Cir- nominees put forward by the Bush ad- Senate. The record is clear that Senate cuit Court of Appeals from Colorado; ministration. Their opposition is Democrats are eager to see the diver- Ricardo Morado, nominated to the Dis- grounded in the fact that Mr. Estrada

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00030 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.025 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2095 himself does not reflect the views of Indeed, this administration has itself In a case heard by the Supreme the Latino community, and that he has disclosed past memoranda for purposes Court, Chicago versus Morales, Mr. shown to be unable or unwilling to set of evaluating its nominees, including Estrada represented the U.S. Con- aside his conservative ideology in his the nomination of Jeffrey Holmstead ference of Mayors in an amicus brief legal analysis. for the position of Assistant Adminis- defending an antiloitering ordinance in The Mexican American Legal Defense trator at the Environmental Protec- Chicago. Fund issued a statement opposing Mr. tion Agency. We can only assume that The Chicago antiloitering ordinance Estrada last Monday, stating: the administration’s inconsistent posi- applied to any group of two or more in- The most difficult situation for any Latino tion means that it has some thing to dividuals who gather with ‘‘no appar- organization is when a President nominates hide in Mr. Estrada’s memoranda. ent purpose’’ in any public place in- a Latino who does not reflect, resonate or as- Given the administration’s recal- cluding streets, parks, restaurants, and sociate with the Latino community, and who comes with a predisposition to view claims citrance about providing Mr. Estada’s any other location open to the public. of racial discrimination and unfair treat- memoranda, the Senate is left with The ordinance allowed police to dis- ment with suspicion and doubt instead of very little to review to assure our- perse any group of two or more individ- with an open mind. Unfortunately, the only selves that Mr. Estrada has the com- uals, so long as they reasonably be- Latino who President Bush has nominated in mitment to constitutional and statu- lieved any of the individuals to be a two years to any federal circuit court in the tory protections necessary to serve on gang member. The Center for Commu- county is such a person. President Bush the D.C. Circuit. What little we do nity Interest also submitted a brief in nominated Mr. Estrada to the D.C. Circuit know is very troubling. Mr. Estrada’s Court of Appeals. support of the ordinance. Many civil After a thorough examination of his direct supervisor in the Office of the rights and minority groups joined ami- record, his confirmation hearing testimony, Solicitor General has raised questions cus briefs against the ordinance, in- and his written answers to the U.S. Senate, about whether Mr. Estrada has the nec- cluding the National Council of La we announce today our formal opposition to essary temperament and moderation to Raza, the Mexican American Legal De- his nomination. sit on the D.C. Circuit. fense Fund, and the NAACP. Is this the racism that Senator Mr. Bender is not alone in this as- The Supreme Court found that the DOMENICI is perilously close to claim- sessment of Mr. Estrada. It has been ordinance violated the Due Process ing? No. These groups and others raise reported that some of Mr. Estrada’s Clause of the fourteenth amendment. serious concerns about Mr. Estrada’s colleagues have said that he is not I want to take a moment here and ability or willingness to be sensitive to open-minded and that he ‘‘does not lis- discuss the opposition to Mr. Estrada’s the needs Latino and other minority ten to other people.’’ After an in-depth nomination that has been voiced by communities. meeting with Mr. Estrada, a member of some of the groups that argued against Other groups have echoed these con- the Congressional Hispanic Caucus the Chicago ordinance. These groups, cerns. The Puerto Rican Legal Defense stated that Mr. Estrada appeared to including the National Council of La Fund also oppose his nomination. They have a ‘‘very short fuse’’ and that he Raza and MALDEF have understand- have stated: did not ‘‘have the judicial tempera- ably opposed Mr. Estrada’s nomina- We strongly believe that Mr. Estrada’s ment that is necessary to be a judge.’’ tion. Some of my Republican col- nomination should be opposed and rejected. According to the Puerto Rican Legal leagues would have you believe that Potential nominees who aspire to such im- Defense Fund, with whom Mr. Estrada this opposition, which I share, is some- portant positions as circuit judges should be better qualified and possess the unquestioned met, he is not ‘‘even-tempered’’—in- how on account of his ethnic back- ability to be fair, open-minded and com- deed he became angry during their ground. It is not. One of our colleagues mitted to equal justice for all Americans. meetings with him, and he even threat- has said of Democrats that ‘‘if you’re a They should be connected to the real-world ened the group with legal action be- conservative and a minority, we hate concerns of the people who will be governed cause they had raised concerns about you.’’ In fact, the Democratic-led Sen- by their decisions. They should also be even- this record. ate has confirmed a number of Latino tempered. In our view, Mr. Estrada clearly Some of our Republican colleagues judges who have been nominated by the does not possess the qualities necessary to be have said that Democrats opposed to placed in such an important position of conservative White House. We con- trust—for a lifetime—interpreting and Mr. Estrada’s nomination are moti- firmed Judge Christina Armijo, Judge guarding the rights of ordinary Americans. vated by his ethnic background, but Phillip Martinez, Judge Jose Martinez, These groups and others like them these reports that raise serious con- Magistrate Judge Alia Ludlum, Randy raise serious concerns about this nomi- cerns about Mr. Estrada come from Crane, and Judge Jose Linares. nee. They certainly are not opposed to some of the most important and com- Mr. Estrada is opposed, not because Mr. Estrada because of his race, and mitted Latino organizations in the he is Latino, but because what little neither are the Senate Democrats who country. record we have been allowed to review feel that this nominee lacks the judg- These groups correctly point out that shows that he is not concerned with ment and temperament to serve on the Mr. Estrada has not taken any steps to important constitutional rights, and he Court of Appeals for the D.C. Circuit. reflect or serve his community. He has is unable to separate his ideology from One of the most important functions never provided any pro bono legal ex- his legal analysis. of the Senate is our constitutional ad- pertise to the Latino community. He Even after the clear rebuke from the vice and consent role. We cannot per- has never joined, supported, volun- Supreme Court about broad form this function, however, when we teered for or participated in events of antiloitering ordinances in Chicago are not allowed access to a nominee’s any organization dedicated to serving versus Morales, Mr. Estrada devoted record. By refusing to provide the Sen- and advancing the Latino community. many hours to defending the City of ate with the important memoranda And he has never made any efforts to Annapolis against challenges to the produced by Mr. Estrada when he was open doors of opportunity to Latino constitutionality of a similar in the Solicitor General’s office, the law students or junior lawyers. Mr. antiloitering ordinance. When the administration is trying to prevent us Estrada appears to be committed nei- NAACP challenged the ordinance, Mr. from performing our constitutional ther to his community, nor to an open, Estrada ‘‘offered to take the city’s case duty. fair and impartial judicial process. all the way to the U.S. Supreme Court, The administration’s refusal to pro- Mr. Estrada has attempted in the if necessary, free of charge.’’ Mr. vide these memoranda is not based in past to limit the first amendment Estrada lost that case too, however, law or precedent. Past administrations rights of minorities. He even sits on after a Federal District Court struck have disclosed legal memos in connec- the board of the Center for Community down the law as unconstitutional. tion with both judicial and executive Interest, which advocates for police I am deeply concerned by Mr. nominations, including the nomina- tactics that have often led to harass- Estrada’s intense focus on enforcing tions of justice Rehnquist to be Chief ment and racial profiling in minority antiloitering ordinances. As MALDEF Justice of the United States, and of communities. His efforts reflect a star- has noted, Stephen Trott to be a judge on the tling lack of concern for important many of the individuals who are targeted Ninth Circuit. American ideals. under such ordinances are minorities, and

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00031 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.028 S10PT1 S2096 CONGRESSIONAL RECORD — SENATE February 10, 2003 often, Latino urban youth are harassed by fused to answer whether he agreed with My Republican colleagues, unfortu- police enforcing such ordinances. Day labor- the decision, stating—incredibly—that nately, have decided to react to these ers who are most often newly arrived immi- because he did not hear the arguments serious allegations by simply leveling grants who look for work by congregating on in the case, he could not have an opin- personal attacks against the individ- particular public streets to wait to be offered a manual labor job for the day ion. uals who were interviewed by Mr. At that same time, Mr. Estrada gave Estrada. Such personal attacks seem to are often targeted under these ordi- contradictory answers in response to a be a pattern. Our Republican col- nances. Mr. Estrada did not seem to ap- series of questions about whether he leagues have attacked Paul Bender, preciate this effect on the minority had applied an ideological litmus test Mr. Estrada’s direct supervisor, be- population, and he certainly did not let to clerks. Mr. Estrada, along with cause they did not like what he had to it affect his defense of those statutes. other former law clerks of Justice An- say about Mr. Estrada’s inability to Other statements by Mr. Estrada thony Kennedy, helps the Justice in separate his ideology from his legal raise additional concerns about his choosing clerks by interviewing appli- analysis. They have attacked Senate commitment to civil rights. For in- cants. Two prospective clerks stated in Democrats, accusing us of opposing Mr. stance, Mr. Estrada has expressed skep- an article in the Nation last September Estrada on account of his ethnic back- ticism about affirmative action. The that Mr. Estrada told them that he ground, when the concerns we raised D.C. Circuit has recently been closely screened clerks for Justice Kennedy in are legitimate concerns about his ide- divided on affirmative action in public order to prevent Justice Kennedy from ology. And now they attack these law employment programs. A narrow ma- hiring any liberal clerks, apparently in clerk applicants, whose voices have jority of the D.C. Circuit recently held response to Justice Kennedy’s voting joined a growing chorus of people who that the Federal Government cannot to strike down the anti-gay rights stat- question Mr. Estrada’s ability to keep require broadcasters to conduct tar- ute at issue in Romer versus Evans. his conservative ideology from affect- geted outreach to minorities and Senator SCHUMER asked Mr. Estrada ing his professional judgment. I call women even for the purpose of increas- whether he ‘‘had ever told anyone that upon my Republican colleagues to halt ing the pool of qualified applicants. you do not believe any person should these personal attacks, and talk about According to MALDEF, in meetings clerk for Justice Kennedy because that Mr. Estrada’s qualifications to serve on where Mr. Estrada has answered ques- person is too liberal, not conservative the D.C. Circuit. tions since his nomination, he has enough, because they didn’t have the Mr. Estrada’s nomination is particu- made statements about affirmative ac- appropriate ideology, politics, or judi- larly troubling given the importance of tion that call into question whether he cial philosophy or because you were the D.C. Circuit to issues of concern to would find a compelling interest to jus- concerned that person would influence a broad range of Americans seeking to tify such programs. Mr. Estrada indi- Justice Kennedy to take positions you enforce their basic rights. The D.C Cir- cated that he had not raised the issue did not want him taking?’’ Mr. Estrada cuit is widely regarded as the second of diversity in places where he has answered unequivocally that he had most important court in the United worked, and that he would not be par- not. After the break for lunch, how- States, behind only the Supreme Court. ticularly vigilant about giving oppor- ever, Mr. Estrada revised his answer It has a unique and prominent role tunities to Hispanic clerks. saying: among the federal courts of appeals, Mr. Estrada was asked about the pos- there is a set of circumstances in which I particularly in the area of administra- sible reasons for the lack of minority would consider somebody’s ideology, if you tive law. It has exclusive jurisdiction law clerks by a reporter for USA want to call it that, in trying to interview over many workplace, environmental, Today. According to the article, Mr. somebody for Justice Kennedy, whether on civil rights, and consumer protection Estrada ‘‘dismissed the statistics show- the left or on the right. And that is to say, statutes. Because the Supreme Court ing little representation of minorities’’ if I thought that there was somebody who had views that were so strongly held on any grants review of only a small number and stated that ‘‘if there was some rea- of lower court decisions, most adminis- son for under-representation, it would subject, whether, you know, the person thinks there ought not to be the death pen- trative law is established by the D.C. be something to look into, but I don’t alty or whether the person thinks that the Circuit. have any reason to think it is anything income tax ought not to be constitutional or Despite the importance of the D.C. other than a reflection of trends in so- anything, if I think that the person has some Circuit to a broad array of Americans, ciety.’’ His quote was contrasted with extreme view that he will not be willing to some Republicans have worked to undo statements by others that a variety of set aside. any balance on the court. During the reasons are to blame for the lack of mi- Again, when Senator SCHUMER re- Clinton administration, the Senate, nority clerks. peated his earlier question, Mr. controlled by Republicans, refused to All of these aspects of Mr. Estrada’s Estrada hedged, saying that ‘‘I have approve two of President Clinton’s prior work indicate that he would not taken account the ideological nominees to the D.C. Circuit—Elena bring a fair and open mind, a sensible learnings of a potential law clerk only Kagan and Allan Snyder. Last fall’s judicial temperament, and a commit- when it appears to me—and this is hearing for Mr. Estrada was the first ment to civil rights and equal oppor- something that I don’t have a final say hearing for a nominee to the D.C. Cir- tunity to the bench. on, but I do tell Justice Kennedy that cuit in 5 years. No questions were Mr. Estrada’s hearing did little to this person has a strongly held view on raised about the qualifications of ei- allay our concerns about his record. In a subject that he would not be willing ther Ms. Kagan or Mr. Snyder—both fact, many concerns were actually in- to put aside in the service of the Jus- had stellar qualifications. Neverthe- tensified by Mr. Estrada’s unwilling- tice.’’ less, hearings for these nominees were ness to respond to even the most basic Mr. Estrada later conceded that ide- delayed, and after they finally received and innocuous questions about his ology was one of the areas he ‘‘would hearings they were refused a vote in views. For instance, Mr. Estrada re- explore in trying to find whether the the Committee or on the floor. fused to name a single Supreme Court law clerk candidate was suitable for Many Republicans argued then that case of which he was critical. In addi- Justice Kennedy.’’ the D.C. Circuit did not need any more tion, Chairman LEAHY asked Mr. This response is troubling, because it judges. Yet shortly after President Estrada whether an employer or a suggests a lack of candor in answering Bush was elected, two judges were school could take race or ethnicity the first, very clear question put to Mr. nominated to the D.C. Circuit. into consideration in a hiring or admis- Estrada by Senator SCHUMER. Clearly, Given the importance of this circuit, sions decisions. Mr. Estrada refused to it would be troubling if Mr. Estrada and the Republicans’ obstruction of give any opinion on the matter. were subjecting clerks to an ideolog- President Clinton’s nominees, scrutiny Chairman LEAHY asked Mr. Estrada ical litmus test in order to ensure that of this nominee is particularly war- what he thought about the Supreme only conservative clerks would gain ranted. Court decision in Romer versus clerkships with Justice Kennedy and to Mr. Estrada’s record is troubling, and Evans—a decision he was reported to avoid outcomes that Mr. Estrada found his unwillingness to supplement the have criticized. Mr. Estrada again re- unfavorable. record with meaningful answers to

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00032 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.031 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2097 questions or the production of the licans, say you should not be dis- icy that prevents the consideration of memoranda from his tenure at the So- cussing in nomination hearings issues anonymous allegations against a nomi- licitor General’s office, preclude his that might possibly come before the nee. These are also grossly inconsistent confirmation to the important D.C. cir- court that you will be sitting upon. with Mr. Estrada’s superiors’ and col- cuit. A life-tenure appointment to a We have quoted regularly and with leagues’ statements that Mr. Estrada’s court so important is resolving issues good reason—Lloyd Cutler is one of the work in the Solicitor General’s Office involving workers, immigrants, great lawyers in this country. He is a was superb and that he was a well-re- women, and the environment cannot be Democrat. He has been chief counsel spected colleague. given to a nominee about whom we for both Jimmy Carter and Bill Clin- Seth Waxman, President Clinton’s know so little. ton. He had no difficulty at all working Solicitor General, a Democrat, but one The Constitution does not con- with us up here because we all respect we all respect, wrote to us that Estrada template a Senate that acts as a rubber him. But he said, regarding judicial is a ‘‘model of professionalism and stamp. A genuine advise and consent nominees, in unequivocal terms ‘‘can- competence’’ and that he had ‘‘great role is essential. If the administration didates should decline to reply when ef- respect both for Mr. Estrada’s intellect continues to nominate judges who forts are made to find out how they and for his integrity.’’ would weaken the core values of our would decide a particular case.’’ Mr. Waxman, this Democrat, former country and roll back the civil rights In Lloyd Cutler’s opinion, he says: Solicitor General under the Clinton ad- laws that have made our country a ‘‘What is most important is the ap- ministration, continued: more inclusive democracy, the Senate pointment of judges who are learned in In no way did I ever discern that the rec- should reject them. the law.’’ ommendations Mr. Estrada made or the Everything we know of Miguel You are going to have to go a long views he propounded were colored in any way Estrada leads to the conclusion that he way to be more learned than Miguel by his personal views, or indeed that they re- would be such a judge. His confirma- Estrada, who, by the way, has the high- flected anything other than the long-term interests of the United States. tion should be rejected. est rating, by their own standard, of The PRESIDING OFFICER (Mr. the American Bar Association—unani- But Mr. Waxman isn’t the only Dem- SUNUNU). The Senator from Utah. mously highest rating. Normally that ocrat who testified to Estrada’s fair- Mr. HATCH. Mr. President, I listened would put anybody through this proc- ness and integrity. A bipartisan group to my good friend and colleague from ess. But it is not good enough for this of 14 colleagues from the Office of the Massachusetts and you would think Hispanic gentleman who they are Solicitor General also wrote to the only Democrats care about clean air, afraid, if he gets on the DC Circuit committee that Estrada ‘‘would be a clean water, the environment, workers’ Court of Appeals, might not rule the fair and honest judge who would decide rights, civil liberties. I want him to way they want him to rule. Because, cases in accordance with applicable know we care about them, too. But we No. 1, he is a Republican and he may be legal principles and precedents.’’ want them to work. We don’t want I ask unanimous consent that a copy conservative. He may even be critical them all left-wing, one-sided ap- of this be printed in the RECORD. of Roe v. Wade, the great standard that proaches. There being no objection, the mate- seems to be the underlying problem I have had questions in committee rial was ordered to be printed in the with all of these so-called moderate to from some of my friends on the other RECORD, as follows: side asking some of these nominees conservative nominees. Lloyd Cutler says: SEPTEMBER 19, 2002. who have served in judicial positions Re nomination of Miguel A. Estrada. why they have not found, always, for What is most important is the appoint- ment of judges who are learned in the law, Hon. Patrick J. Leahy, the worker? And actually they have Chairman, Senate Committee on the Judiciary, been criticised because they occasion- who are conscientious in their work ethic, and who possess what lawyers describe as ju- SD–224 Dirksen Senate Office Building, U.S. ally—or many times—found for the dicial temperament. Senate, Washington, DC. corporation, as if corporations can’t be Hon. Orrin G. Hatch, I have heard some comments about right and that workers are always Ranking Member, Senate Committee on the Ju- judicial temperament here. The only right. diciary, SD–152 Dirksen Senate Office We all know, regarding workers’ person who indicated even slightly that Building, U.S. Senate, Washington, DC. DEAR CHAIRMAN LEAHY AND SENATOR issues generally, the ones that are le- Miguel Estrada may have a tempera- HATCH: We are writing to express our support gitimate and good are generally always ment problem is Paul Bender, who is as far left a law professor as you can find. for the nomination of Miguel A. Estrada to settled. Any attorney who has dealt in be a Judge of the United States Court of Ap- labor law knows that. The hard cases He is a brilliant man. I have no prob- peals for the District of Columbia Circuit. come to the courts. Many times the lems there. What I have problems with We served with Mr. Estrada in the Office of corporations are right. But to hear our is a man who gives him the highest the Solicitor General, and we know him to colleagues, any case that goes against performance ratings while he is serving be a person of exceptional intellect, integ- a worker, the judge has to be biased under him at the Solicitor General’s of- rity, and professionalism who would make a fice, ratings that just brag about him superb Circuit Judge. and bigoted and wrong. That just is not Miguel is a brilliant lawyer, with an ex- true. If we have to have judges just and then, when the chips are down and he is up for a nomination, undermines traordinary capacity for articulate and inci- finding for one side, whether they are sive legal analysis and a commanding knowl- right or wrong—especially if they are him with comments that he is an edge of and appreciation for the law. More- wrong—then what kind of justice ideolog. Paul Bender is the only one I over, he is a person whose conduct is charac- would that be in America? know of who has said that—from the terized by the utmost integrity and scru- I have heard this antiloitering case Solicitor’s office. pulous fairness, as befits a nominee to the business. By the way, the hearing was In fact, let me talk a little bit about federal bench. In addition, Miguel has a deep conducted by the Democrats. They con- temperament. I have heard some of my and abiding love for his adopted country and ducted it. They could have made it Democratic colleagues say allegations the principles for which is stands, and in par- have been raised about Miguel ticular for the rule of law. We hold varying however long they wanted. They know ideological views and affiliates that range there are certain questions nobody is Estrada’s temperament. The only per- across the political spectrum, but we are going to answer, especially when it son I know who has raised questions unanimous in our conviction that Miguel comes to issues that possibly could be about his temperament happens to be would be a fair and honest judge who would decided by the court upon which the Paul Bender. We all know he lacks decide cases in accordance with the applica- nominee may sit. Any nominees who do credibility. ble legal principles and precedents, not on answer those kinds of questions, you But let me say a word about relying the basis of personal preferences or political really have to question whether they on anonymous allegations about Mr. viewpoints. Estrada’s temperament. These allega- We also know Miguel to be a delightful and have the judicial standing and the judi- charming colleague, someone who can en- cial acumen to be able to be on the tions certainly should not be believed. gage in open, honest, and respectful discus- courts. These allegations violate not only a sion of legal issues with others, regardless of We have had top authorities from basic right to confront one’s witnesses, their ideological perspectives. Based on our both sides, both Democrats and Repub- but also longstanding committee pol- experience as his colleagues in the Solicitor

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00033 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.034 S10PT1 S2098 CONGRESSIONAL RECORD — SENATE February 10, 2003 General’s office, we are confident that he often devastated by drug violence. quotes by Mayor Daley in support of possesses the temperament, character, and That is what was behind it. the antigang-loitering ordinance be qualities of fairness and respect necessary to For example, according to a 1997 re- printed in the RECORD. be an exemplary judge. In combination, port issued by the Clinton Justice De- There being no objection, the mate- Miguel’s exceptional legal ability and talent, partment, ‘‘Gangs have virtually over- rial was ordered to be printed in the his character and integrity, and his deep and varied experience as a public servant and in taken certain neighborhoods, contrib- RECORD, as follows: private practice make him an excellent can- uting to the economic and social de- CHICAGO DEMOCRATIC MAYOR RICHARD DALEY didate for service on the federal bench. cline of these areas and causing fear ON ANTI-GANG LOITERING STATUTES We hope this information will be of assist- and lifestyle changes among law-abid- ‘‘I tell you one thing, those drug dealers ance to the Committee in its consideration ing residents.’’ and gang-bangers are terrorists, too.’’ Chi- of Mr. Estrada’s nomination. He is superbly Another Reno-era Justice Depart- cago Sun-Times, Nov. 23, 2001. qualified to be a Circuit Judge for the Dis- ment report concluded that: ‘‘It’s the average person on a block; it’s a trict of Columbia Circuit, and we urge your senior citizen; it’s an eight year old girl From the small business owner who was favorable consideration of his nomination. going to a school or trying to get to the bus literally crippled because he refused to pay Very truly yours, stop, or someone trying to go to the store. protection money to the neighborhood gang Thomas G. Hungar, Gibson, Dunn & They can’t go there. The gangs and drug to the families who are hostages within their Crutcher LLP; Richard P. Bress, dealers own the corner. And that’s what this homes living in neighborhoods ruled by pred- Latham & Watkins; Edward C. Du- is all about.’’ All Things Considered, June 10, atory drug trafficking gangs, the harmful ef- Mont, Wilmer, Cutler & Pickering; 1999. fect of gang violence is both physically and Paul A. Engelmayer, Esq., Wilmer, ‘‘We are determined to get those gangs off psychologically debilitating. Cutler & Pickering; David C. Fred- our streets, where they sell dope, terrorize erick, Kellogg, Huber, Hansen, Todd & At this hearing, Mr. Estrada told us innocent people and attract drive-by shoot- Evans, P.L.L.C.; William K. Kelley, he got involved in the City of Chicago ings. Chicago Daily Herald, March 29, 2000. ‘‘[W]e have to ask ourselves if it is con- Notre Dame Law School; Paul J. v. Morales case at the request of the stitutional for gang-bangers and drug dealers Larkin, Jr., Alexandria, VA 22302. Democratic leadership of Chicago. to own a corner. . . . [E]veryone knows that Maureen E. Mahoney, Latham & Wat- If the distinguished Senator from they aren’t out there cooking hot dogs and kins; Ronald J. Mann, Roy F. & Jean Massachusetts doesn’t like the fact he studying Sunday-school lessons.’’ New York Humphrey Proffitt Research, Professor was representing these people in this Times, June 12, 1999. of Law, University of Michigan Law case, and decries the fact that this may ‘‘I don’t see too many gang-bangers on School; John F. Manning, Columbia Lake Shore Drive.’’ Chicago Tribune, Oct. 1, Law School; Jonathan E. Nuechterlein, have involved some first amendment principles—which I am sure it did— 2000. Wilmer, Cutler & Pickering; Richard H. ‘‘[T]hese aren’t middle-class communities. Seamon, Associate Professor, Univer- then he ought to go back to his Demo- These are poor communities. People want a sity of South Carolina, School of Law; cratic friends in the City of Chicago right to survive. It is as simple as that.’’ Chi- Amy L. Wax, Professor of Law, Univer- who were concerned about these mat- cago Tribune, January 12, 2000. sity of Pennsylvania Law School; ters. He tried this case at their request. ‘‘We held hearings all over the city [to find Christopher J. Wright, Harris, Wilt- One of the primary proponents of the out] what community leaders wanted. Their shire & Grannis LLP. Chicago ordinance was none other than message was very clear: Do whatever you Mr. HATCH. Mr. President, the anon- Democratic Mayor Richard Daley. have to do to satisfy the court, but get those ymous rumors about his temperament gang-bangers and dope dealers off our cor- Let me read a few quotes about the ners.’’ Chicago Sun-Times, January 12, 2000. are just that—mean-spirited rumors ordinance by Mayor Daley, who the Mr. HATCH. Mr. President, one of that have been ginned up by liberal New York Times described as the the things I like about Mayor Daley is special interest groups that don’t want ‘‘law’s fiercest advocate.’’ If you are he is a really good mayor who is trying to have a smart minority member of going to criticize Miguel Estrada, criti- to do the best job he can, and he will do the judiciary who does not toe their cize Mayor Daley, too, except I don’t it in a bipartisan way, if he can. And special-interest line on the issues. That think either deserves criticism. I think here Miguel Estrada is getting criti- is exactly what is behind all of this. these quotes will dispel any notion cized for supporting him. These are or- The fact is Mr. Estrada has over- that the law was somehow intended to dinances that were supported by mem- whelming support among Hispanic or- hurt rather than help minority resi- ganizations and the Hispanic commu- bers of the minority community. dents of Chicago. But then, again, in One thing I find ironic is the persons nity, and he should. I am ashamed of Miguel Estrada’s case, why is it they some of those who have just played who criticize the antigang-loitering are stooping to such a level as to criti- statutes rarely live in the neighbor- partisan politics because they said Mr. cize him on sincerely-fought cases, and Estrada is not Hispanic enough. Can hoods plagued by chronic gang activ- especially this one where he was basi- ity. I am not too sure anybody in the you believe that? Some of his own fel- cally representing the Democrats in low Hispanics say he is not Hispanic Senate is living in those types of areas. Chicago? But the ones who complain generally enough. He has only been here since he But here is what Mayor Daly said. was 14 years of age. My gosh. I might say that in November—we have never had to live in those gang The oldest Hispanic organization, the have a chart—Mayor Daley said: areas. These ordinances were enacted League of United Latin American Citi- I tell you one thing, those drug dealers and in direct response to pleas by commu- zens—the oldest one—is behind him. gangbangers are terrorists, too. nities that have members of gangs. As Mayor Daley explained: The Hispanic National Bar Associa- In November 2001, Mayor Daley de- We held hearings all over the city to find tion—the Hispanic lawyers in this fended his antiloitering law in the Chi- country—is behind Estrada; the United out what community leaders wanted. Their cago Sun-Times by making that com- message was very clear: Do whatever you States Hispanic Chamber of Com- ment. have to do to satisfy the court, but get those merce—very prestigious; the Hispanic In October 2000, he observed: gangbangers and dope dealers off our cor- Business Roundtable; the Latino Coali- I don’t see too many gangbangers on Lake ners. tion; and many other Latino organiza- Shore Drive. Betty Meaks, head of the Southwest tions strongly support Estrada. Everyone knows Lake Shore Drive is Austin Council on Chicago’s West Side, I was surprised to see this an exclusive area of Chicago. lived in a neighborhood where gang antiloitering case stuff brought up Mayor Daley is trying to solve some members routinely sold drugs on street here. I was surprised that there is a problems for minorities, and here it is corners and intimidated passers-by. question raised here about antigang- being criticized because Miguel According to Meaks: loitering cases Mr. Estrada worked on. Estrada tried the case at their request. If we don’t use this law as a tool, how are Although some have attempted to Again, in January 2000, Mayor Daley we going to get these guys off the corner? mischaracterize the statutes that were said: What about the constitutional rights of my the crux of these cases as racially dis- [T]hese aren’t middle-class communities. neighbors whose kids have to walk by that criminatory, the exact opposite is true. These are poor communities. People want a corner every day on their way to school? These statutes were enacted to protect right to survive. It is as simple as that. That is a resident of that gangbanger the quality of life of low-income mi- I could go on and on. But, instead, I area and that drug-ridden area who is norities whose neighborhoods are too ask unanimous consent that a list of tired of it.

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00034 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.036 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2099 Another Chicago resident, 74-year-old cago ordinance was unconstitutionally lack of judicial experience is a red her- Emmitt Moore, saw his house sprayed vague, Justices O’Connor and Breyer ring, as are all of these issues. If you with bullets during a gang turf war. wrote a concurring opinion that gave really get into them, if you really go Referring to the anti-gang loitering municipalities a roadmap on how to through them, you realize there is not law, he said: enact constitutionally sufficient any substance to these arguments. The Constitution is supposed to protect my antiloitering laws. So it was not a bat- Now, apparently Paul Bender told rights, too. What is a more basic right than tle that was in vain. It was a battle Senator FEINSTEIN’s staff that he stood feeling safe on my property or being able to that ultimately will lead to resolution by his comments, that he believes walk on my street? of those inner-city poor people’s prob- Miguel Estrada is an ideologue, and The fact these cases were lost doesn’t lems. And it was Miguel Estrada who that the personal reviews that he gave, take away from the fact these were sin- took them on, took on the gangs, took that were so laudatory and commend- cere people living in gang-ridden areas on the drug dealers—and, I might add, able about Miguel Estrada, were just and drug-ridden areas trying to do at the request of Mayor Daley. And boilerplate that they did for everybody. what they could to get these problems Mayor Daley took them on—something And apparently, according to what he solved. And their rights were being any good mayor I think would do, but told Senator FEINSTEIN’s staff, he taken away while we talk about eso- certainly I respect Mayor Daley. stopped assigning important matters teric rights of the first amendment. Under Mayor Daley’s leadership, in to Estrada because he was too ideolog- Nobody believes in the first amend- following the O’Connor-Breyer road- ical. ment more than I do. But I have to tell map, Chicago enacted a new ordinance At the request of the committee, Mr. you there are other rights involved, in the year 2000. So, yes, he lost the Estrada provided copies of his annual too, that are also first amendment case before the Supreme Court but won performance evaluations during his rights. These poor people living in it in the end, in helping these poor peo- tenure at the Solicitor General’s Of- these areas have some rights, too. ple in Chicago to have some protection fice. These documents cast serious The Annapolis ordinance was even a from gangbangers and drug dealers. doubt on Mr. Bender’s allegations more explicit example of the under- And he is being criticized by my col- about Mr. Estrada. The evaluations privileged taking the initiative to com- leagues on the other side during these show that during each year that Mr. bat crime in their neighborhoods. nomination proceedings? No. The thing Estrada worked at the Solicitor Gen- What gets me is some of these His- that is wrong with Miguel Estrada is eral’s Office, he received the highest panic groups that are against Miguel he is not the right kind of Hispanic. He possible rating of ‘‘outstanding’’ in Estrada say he hasn’t done enough in does not agree with them in every- every job performance category. Either the Hispanic community. thing, maybe. I don’t know what his Mr. Bender was telling the truth then Think about these cases where he positions are in every degree, but I can or he is playing politics now. The rat- took them on—yes, in a losing cause, tell you this: He is honest, he is smart, ing official who prepared and signed but took them on—trying to help these he is capable, he answered a lot of the performance reviews for 1994 to 1996 was none other than Mr. Bender. minority residents in these tough com- questions before our committee—even I will admit Mr. Bender is a very munities. There are not too many peo- though he did not please all the Demo- ple who could have done it. bright and intelligent man. I will crats—and he has the highest rating admit he has been a law professor for Under the Annapolis ordinance, an anybody can get, unanimously, from area could be designated as a ‘‘drug loi- many years. And I will admit he has the American Bar Association. many wonderful qualities. But anybody tering free zone’’ only if a neighbor- The problem of inner-city gang vio- who looks at what has happened here hood association or resident first sub- lence is so pervasive that we in Con- knows he is playing partisan politics mitted a petition to the city council. gress recognized it and addressed it in Some critics have described Mr. right down the line. 1994. Were we bad people because we Let me read a few excerpts from the Estrada’s Annapolis case because it tried to address this problem that evaluations Mr. Bender signed. They challenged the NAACP’s standing to might have curtailed some people’s say that Mr. Estrada: bring the action against the ordinance. rights to do whatever they wanted to But, as Mr. Estrada testified at the States the operative facts and applicable do in our society? That is what crimi- law completely and persuasively, with record hearing, the decision to challenge the nal laws are about. citations, and in conformance with court and NAACP’s standing was made by other Mr. President, 18 U.S.C. 521 mandated office rules, and with concern for fairness, lawyers—not him—before he ever got additional penalties of up to 10 years clarity, simplicity, and conciseness. involved in the case. Yet they are try- imprisonment for individuals convicted I do not know any lawyer in the ing to pin that on him. That is the kind in certain gang-related offenses. I note world who would not want to have that of ‘‘fairness’’ we have had in this whole that eight of my Democratic col- set of accolades written about them. process. leagues on the committee, who were He goes on to say, Miguel Estrada: I do not think anybody watching this Members of Congress in 1994, voted in Is extremely knowledgeable of resource process would say it is very fair. And favor of section 521. materials and uses them expertly; acting you can start with Paul Bender. Either Now, where is the beef? I have been independently, goes directly to point of the Paul Bender is right when he says asking that all the way through—bor- matter and gives reliable, accurate, respon- Miguel is an ideologue—long after the rowing Walter Mondale’s comment. sive information in communicating position fact—or he was right when he was ethi- Where is the legitimate criticism of to others. cally giving his opinion that Miguel this person other than these esoteric Or this one: Estrada is one of the best people who and, I think, unfair criticisms that I All dealings, oral and written, with the ever worked down there at the Solic- have been hearing on the floor since courts, clients, and others are conducted in a diplomatic, cooperative, and candid manner. itor General’s Office. Which is it? I sug- this debate began? gest to you that it was the written Calling for a vote against Estrada be- Or this one: opinions given in the Justice Depart- cause he does not have any judicial ex- All briefs, motions or memoranda reviewed ment, that are backed up by Seth Wax- perience—oh, he was a law clerk to two consistently reflect no policies at variance with departmental or governmental policies man and 14 other coworkers, all of Federal judges, one a Supreme Court or fails to discuss and analyze relevant au- whom say Miguel is great and a good Justice. If that isn’t judicial experi- thorities. person. It is amazing to me that some ence, then I don’t know what is. He did You see, Miguel Estrada was also of these arguments are made. not decide the cases, but he helped working for the Clinton administra- Although Mr. Estrada’s efforts to de- write the answers, and he sat there and tion. fend the constitutionality of these watched all the judicial proceedings. Another quote: ‘‘is constantly sought statutes were unsuccessful, he may And I have just listed 26 Democratic for advice and counsel; inspires co- have lost the battle but he won the appointees to the Federal bench, none workers by example.’’ war, as they say. I am referring to the of whom had any judicial experience Either Mr. Bender was telling the Supreme Court’s decision in Morales. before we confirmed them, without truth then or he isn’t telling the truth Although the Court held that the Chi- raising that ridiculous issue. So the now. Both of them can’t be accurate.

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00035 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.065 S10PT1 S2100 CONGRESSIONAL RECORD — SENATE February 10, 2003 These comments represent Mr. Bend- vate memoranda of employees of the ultraliberal political magazine, The er’s contemporaneous evaluation of Mr. Solicitor General’s Office, given with Nation. These allegations concern com- Estrada’s legal ability, judgment, tem- good intent to their superiors so they ments that he supposedly made to per- perament, and reputation for fairness can make decisions on behalf of our sons who came to him in search of a and integrity. These comments country, something that would cer- Supreme Court clerkship with Justice unmask Mr. Bender’s more recent tainly be chilled if they knew that Kennedy. It is bad enough to put a wit- statements made after Mr. Estrada’s sometime in the future their docu- ness in the impossible position of de- nomination for what they are—a politi- ments or these documents with their fending against anonymous allega- cally motivated effort to smear Miguel best advice could be utilized to destroy tions, but things got worse when Estrada and hurt his chances for con- their chances of being on one of the Miguel Estrada was asked followup firmation. I am disappointed in Mr. Federal courts. questions about these allegations that Bender, or Professor Bender, if you As the Department of Justice ob- were so broadly worded, vague, and want me to use those terms. I am dis- served: compound that he could not have pos- appointed that a law professor would The vast majority of memoranda authored sibly crafted a satisfactory answer play this game, which is what he is or received by Judge Bork when he served as under the circumstances. doing. solicitor general were neither sought nor It has long been the policy of the The performance evaluations confirm produced, and the limited category of docu- committee—that is, the Judiciary ments that were produced to the committee what other Clinton administration law- did not reveal the internal deliberative rec- Committee—instituted under the lead- yers and virtually every other lawyer ommendations or analysis of the assistant to ership of Senator BIDEN, chairman at who knows Miguel Estrada have said the solicitor general regarding appeals, cer- the time, that we will not subject about him—that he is a brilliant attor- tiorari or amicus recommendations in pend- nominees to anonymous charges. Un- ney who will make a fine Federal ing cases. This is hardly the unfettered, un- fortunately, that is just what happened judge. precedented access to privileged work prod- to Miguel Estrada. The nature of the request of my uct that has been argued. It is worth reminding my colleagues Democratic colleagues for unfettered In that case, the Bork case, the De- about Senator BIDEN’s standard when access to the universe of Mr. Estrada’s partment of Justice produced a limited it came to anonymous sources. He said: privileged attorney-client work prod- number of documents related to spe- The nominee has the right to be confronted uct is really extraordinary and unprec- cific topics of interest to the com- by his accuser so any accusation against any edented. These documents were not re- mittee. As the Department of Justice nominee before any committee which I chair quested for the eight previous circuit observed: that is not able to be made public to the court nominees who had worked in the The vast majority of memoranda authored nominee will not be made known to the Sen- Solicitor General’s Office. This request or received by Judge Bork when he served as ate unless the individual wishes to do it all was opposed by all seven living former solicitor general were neither sought nor by themselves. Then it is known to the nominee. This is not a star chamber. Solicitors General in a letter to the produced, and the limited category of docu- ments that were produced to the committee committee citing the debilitating ef- I surely agree with Senator BIDEN. did not reveal the internal deliberative rec- Here is another example of Senator fect it would have on how the Depart- ommendations or analysis of the assistant to BIDEN’s policy on anonymous sources. ment of Justice does business. Demo- the solicitor general regarding appeals, cer- crats Archibald Cox, Seth Waxman, tiorari or amicus recommendations in pend- In 1992, the Atlanta Journal-Constitu- Drew Days, and Walter Dellinger all ing cases. tion reported: signed this letter—as they should have. This is hardly the unfettered, unprec- Committee Chair Joseph Biden, according The Democrats have failed to show a edented access to privileged work prod- to his staff, felt strongly that he was not going to circulate some anonymous charge. persuasive precedent for this request. uct that my Democratic colleagues They first claimed that the Depart- now seek. This is a standard of fairness that the ment of Justice has a history of dis- As for the claim that the Department committee has always followed, and we closing previously confidential internal of Justice produced internal memo- have really gone way below the deck documents in connection with con- randa written by Seventh Circuit here. Some of my colleagues are bul- firmation proceedings. This is simply Judge Frank Easterbrook, DOJ has no lying this nominee into a political not accurate. It is not fair either. In a record of producing these documents to game of gotcha. That is what it comes letter dated October 8, the Department the committee, and there is no indica- down to. More fundamentally, the of Justice points out that since the be- tion that the committee ever requested anonymous allegations of The Nation ginning of the Carter administration, those documents. So how did they are at odds with the overwhelming evi- there have been 67 former Department come about? Probably through leaks dence of Mr. Estrada’s fairness that we of Justice employees, 38 of whom, like by people who wanted to scuttle now- have received in letters of support and Miguel Estrada, had no prior judicial Judge Easterbrook’s confirmation in examples of cases he has argued. I experience. Eight of these nominees process. have mentioned letters from Seth Wax- had worked in the Solicitor General’s It is important to note that the Re- man and others. Office. The Department of Justice publicans have not used this tactic They are simply not credible on their could find no record of having produced ever—never once—as much as there face, particularly when you consider internal deliberative materials created have been criticisms and questions Mr. Estrada’s recommendation to Jus- by the nominee while the Department about Democratic nominees through tice Kennedy that he hire a law clerk of Justice lawyer in any of those the years. In fact, during the last Con- who was a colleague of Mr. Estrada’s in cases—in any of those cases. gress, when Jonathan Adelstein, a the Clinton Justice Department and My Democratic colleagues have men- former aide to Senator DASCHLE, was a who now works as a staffer for Senator tioned six nominees in connection with nominee to the FCC, Republicans could LEAHY, or did work up until recently. whom they claim the Department of have asked for all of the internal At a fundamental level, these are Justice released confidential internal memoranda written by him, but we did simply not the actions of a right-wing memoranda or documents. The Depart- not. ideologue. That is just true. It is a ment of Justice has explained in a let- I would like to respond to a matter shame to try to make something out of ter to the committee that of these that deeply troubled me at Mr. anonymous allegations that Mr. nominees, the hearings of only one, Estrada’s hearing which has now been Estrada wasn’t even given the privilege Judge Bork, involved documents from resurrected. I am appealing to my col- of trying to answer. his service in the Solicitor General’s leagues, to their sense of fairness on Mr. President, I yield the floor. Office. this matter, which I think is, frankly, The PRESIDING OFFICER. The Sen- In that case, the Department of Jus- serious and, frankly, outrageous. ator from New York is recognized. tice produced a limited number of doc- At his hearing, Miguel Estrada was Mr. SCHUMER. Mr. President, I uments related to specific topics of in- asked a series of questions regarding know my good friend from Utah feels terest to the committee. They did not some anonymous allegations about him very strongly about this and has spo- allow a fishing expedition into the pri- that appeared in an article in the ken for about 30 minutes, so I think it

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00036 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.068 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2101 would be appropriate to go to the other hearing, and he put it well when he pursue and what arguments to present side. But I have spoken to my col- said the following: in each case. It is in the interest of the league from Ohio and he only has about I do recognize that there are certain inter- public that these issues are fairly de- 10 minutes of remarks. ests that have been asserted in this case that bated and vetted internally so that the I ask unanimous consent that my go beyond my own personal interest, and Attorney General or the Solicitor Gen- colleague from Ohio be allowed to go those are the institutional interests of the eral can make informed decisions. for 10 minutes and then I be given the Justice Department. Attorney General Ashcroft described floor when he has finished. Mr. Estrada was pressed to ask the the internal second-guessing that a ca- The PRESIDING OFFICER. Without Attorney General to release the reer attorney could go through if the objection, it is so ordered. memos. He was asked: Won’t you go to Department of Justice disclosed these Mr. DEWINE. Mr. President, I rise the Attorney General and ask them to internal deliberative memos. That at- today in support of Miguel Estrada’s release the memos? This is what he torney may question: Are these memos nomination. I wish to talk about just said: somehow going to be used against me one aspect of this nomination, one as- I have been a practicing lawyer for all later so that I should tone down my re- pect about this debate. I am very con- these years, and one of the things I have sponse? Should I adjust what I am say- cerned about an argument some have come to learn is that a practicing lawyer ing because someday a Senate com- been making regarding their ability to . . . ought not put his own interests ahead of the stated interests of his client. . . . mittee, or someone else, is going to assess this nominee’s nomination to want to look at it? Should I act in the DC Circuit Court of Appeals. Some The argument has been made that ways that are more consistent with my are arguing that they cannot judge since he is no longer the Assistant So- aspirations to be a judge someday in- Miguel Estrada’s qualifications be- licitor General, and because he no stead of my responsibility to serve in a cause they have not seen some memos longer works at the Department of Jus- particular case? that he wrote when he worked for the tice, he doesn’t have to protect their Ultimately, we need an environment Department of Justice from 1990 to internal deliberations. But that argu- that allows for a complete discussion of 1997. Some argue they cannot vote in ment really, of course, misses the point all the arguments, both the pros and favor of his nomination because they entirely. What is important is that the cons. Attorneys have to be able to have not seen these memos. these privileges do not exist to protect present all sides of a case. If an attor- I am here this afternoon because I be- the lawyer. Rather, these privileges ney who is engaged in a case discussion lieve that this line of thinking is really exist to protect the client. Accord- holds back, it hurts the case, it hurts not a prudent way to view the debate ingly, these privileges simply do not the free and open exchange of ideas. If on this nomination. This is why. First, disappear when the lawyer no longer an attorney is afraid to talk about all Mr. Estrada has nothing to do with works for his client. the arguments and angles of a case be- whether these memos are released. A lawyer’s obligation to protect his cause he or she is afraid of getting Under the rules of privilege, it is not client’s privileges carries on indefi- quoted at some future point, it hurts the attorney who produces the work nitely, whether that client is a private the case. It has a chilling effect on the who decides whether or not to disclose person, the Attorney General, or a U.S. discussion. It hurts the entire litiga- it. Instead, it is the client for whom Senator. In the case of a private person tion process. the work was produced who has this who hires a lawyer, the attorney-client Let’s bring this a little closer to right. To be blunt, this is not Mr. privilege exists to encourage full and home. Most Members of the Senate Estrada’s fight. In fact, Mr. Estrada frank communication between clients have attorneys on their staffs. This is has testified that were it up to him and their attorneys. A client can con- especially true for those of us who personally, he would be willing to turn fidently disclose all relevant informa- serve on the Judiciary Committee. We over the memos. In fact, let me quote tion to his attorney so that the attor- often require counsel on complex legal from a transcript of his nomination ney can provide informed advice to the and policy issues that come before the hearing: client. committee. I have several attorneys on You are right that I have not opposed the If the client thought that the attor- my staff. Other Members do as well. We release of those records. I have been a lawyer ney would reveal the client’s highly rely on our staffs, attorneys and non- in practice for many years now, and I would personal information, full disclosure attorneys, for candid and complete ad- like the world to know that I am exception- would be significantly chilled. Simi- ally proud of every piece of legal work I have vice. done in my life. If it were up to me as a pri- larly, it is in the client’s interest that I insist they provide me with points vate citizen, I would be more than proud to a lawyer’s advice to him or her remains of view and arguments from all sides of have you look at everything that I have done confidential. Any number of a client’s any given policy debate. Often, one of for the Government or for a private person. decisions could be undermined if the my attorneys will present one side of a I think it is clear that Mr. Estrada attorney’s advice influencing those de- debate and the other will take up the believes he has nothing to hide in those cisions were revealed. other side just so we get a give-and- memos and would be willing to turn In a May 28, 2002, editorial supporting take. This is a scenario that takes them over. However, as Mr. Estrada Mr. Estrada’s nomination, the Wash- place many times a day every day in understands, it is not up to him to de- ington Post recognized that: the Senate. I must have and other cide whether or not those memos are Such a request for an attorney’s work Members must have complete faith released. Instead, it is up to his cli- product would be unthinkable if the work that we are getting the entire picture ent—in this case, the Justice Depart- had been done for a private client. from our staffs and that we are receiv- ment. It is their decision. So it is clear The Washington Post got it right. It ing their unvarnished opinions. As it that Mr. Estrada is not responsible for seems completely reasonable to sup- stands now, I am confident that I get this dispute. It would be very unfair, I port private assertions of privilege. such advice because my staff knows maintain, to hold up Mr. Estrada’s Some, however, will argue that this anything they communicate to me is nomination because these memos have situation is different. Some will argue completely internal and will not be dis- not been released. that this is a Government lawyer closed. Perhaps more importantly, in terms whose client is the people of the United Imagine the difference if their advice of the underlying merits of the dispute, States. Some will argue that all those were subject to disclosure. Many staff- it is clear that the Justice Department documents and deliberations should be ers are in the early stages of their ca- is correct in refusing to turn over these public because the public is the client. reers and may find themselves down memos. Precedent is clearly on their But that simply ignores reality, how the road serving the Government in side. It is entirely appropriate for the the real world works and should work. many different capacities. Some may Department to assert its privilege in The Department of Justice makes go on to appointed positions that order to protect work product that was difficult decisions about litigating might require Senate confirmation. used as part of the Department’s inter- some of the most complex and sen- How could I rely on their work if it nal deliberative process. Mr. Estrada sitive cases before our courts. The De- were influenced by some fear that their discussed this issue at his nomination partment must decide which cases to advice would someday be revealed in

VerDate Dec 13 2002 02:06 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00037 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.070 S10PT1 S2102 CONGRESSIONAL RECORD — SENATE February 10, 2003 the confirmation process? Think about is about whether the Senate should people on this side of the aisle sup- it. automatically defer to the President or ported Republican Hispanics, conserv- I know I am protected as a Member whether the Senate should fully exer- ative Hispanics. It seems only when by the speech and debate clause and cise its constitutional powers and one disagrees with my good friend from that my staff’s advice to me will not be closely examine Mr. Estrada before we Utah and those on the other side of the revealed because of that protection, hand him a lifetime appointment to aisle do, the names get hurled and but the principles are really the same. the Nation’s second most important there is no consistency, there is no Our staff, Congress’s staff, needs to be court. This debate is about whether we measure of appropriateness. It is simi- able to do its work without fear of fu- should blithely rubberstamp nominees lar to using a sledgehammer, a bludg- ture repercussions for arguments made or whether we should insist that when eon, to get the nominee through. in good faith, but the same is true of we have questions, they are answered None of the seven who have been the staff of the Attorney General or to our satisfaction. nominated by President Bush—I do not the Solicitor General. We have been subject to accusations know if my colleagues know how many I wish to reiterate that this is not and allegations that would be funny if are Republican. I do not, but again Mr. Estrada’s fight. they were not so demeaning to those probably most of them—have raised red I ask unanimous consent for 1 addi- who state them and to those they are flags that they will be activists on the tional minute. purporting to defend. Let me quote ver- bench. None raised serious concerns The PRESIDING OFFICER. Without batim some of the remarks the other that they will try to make law instead objection, it is so ordered. side has made in the course of debating of interpreting law. Mr. DEWINE. This is not Mr. this nomination. So when a Republican Senator says if Estrada’s fight. He should not be pun- We have heard it often said of late, someone is a minority and a conserv- ished for a dispute that is really just but I believe Senator LOTT was the ative, we are against them, that is not about disclosure of documents between first to say this last year: only ludicrous, it is wrong; it is dead branches. It is that simple. They don’t want Miguel Estrada because wrong and it is disproven by the facts I support his nomination. I will be he’s Hispanic. of what has happened in the Judiciary back in the Chamber later to talk It is so ludicrous that it is hard to Committee and on the floor of this about the merits, but I wanted to talk imagine we have to respond to it, but Senate repeatedly last year and even about this one particular aspect of the to make sure the record is set straight, tonight. Those kinds of allegations do debate. I will. not do anything to heighten the qual- Mr. President, later today, in less Under Chairman LEAHY’s leadership ity of dialog and debate. I am saddened than 2 hours, we will be voting on sev- in the last Congress, we considered by it. It is not a high moment for the eral district court nominations. One of every other Latino nominee who could Senate, and it is not the way to win a them is John Adams from the State of be considered, all six of them: Chris- nomination. I wish, probably hope Ohio. I personally know John Adams. tina Arguello from New Mexico, Judge against hope, that we would try to John Adams is a very well respected Philip Martinez from Texas, Randy raise the level of this debate, because judge from Summit County. He is a Crane from Texas, Judge Jose Martinez those kinds of comments debase us, very decent human being. He is some- from Florida, Judge Alia Ludlum from they debase this process, and everyone one who is well respected in the com- Texas, and Jose Linares from New Jer- knows they are false. They are a red munity. He will bring great common sey. Every one of them was picked by herring. sense to the Federal district court the President, every one of them was Mr. HATCH. Will the Senator yield? Mr. SCHUMER. No wonder people are bench. I urge my colleagues to approve confirmed quickly, and every one of fed up with Washington. No wonder his nomination when we vote on it them is Hispanic. We moved them on they do not want to pay attention to later today. the bench because no red flags were the work we are trying to do. Com- I thank the Chair and yield the floor. raised suggesting they were extremists ments like that turn people off. It is a The PRESIDING OFFICER. Under and because they did nothing to under- real disservice to the process, to the the previous order, the Senator from mine the Senate’s role in the confirma- Senate, and to the country, and it New York is recognized. tion process. ought to stop. Mr. SCHUMER. I thank the Chair. A seventh Latino nominee, Judge I will defer for a brief moment to my Mr. President, I very much thank my Otero from California, was unani- colleague from Utah. colleagues from Utah and Iowa for mously supported by the Judiciary The PRESIDING OFFICER. The Sen- going through the order we did. I have Democrats just last week, myself in- ator from Utah. spoken about this issue before for cluded, and I have every reason to be- Mr. HATCH. The Senator has been what, at least for me, is an lieve the entire Democratic caucus will making the point that no one on his uncharacteristically long amount of support his nomination when the ma- side is making this a racial problem or time. I did not finish what I had to say jority leader brings it to the floor as a Hispanic problem. Is the Senator then. There is more to say. I wish to scheduled later this evening. So this aware of an important letter I received take up where I left off. has nothing to do with Mr. Estrada’s this morning from Jennifer Braceras, We are beginning to hear that anyone race, his ethnicity, or his heritage. who is a commissioner on the U.S. who opposes Mr. Estrada is anti-His- The only ones around here who are Commission on Civil Rights? Let me panic. I have to tell you, Mr. President, claiming that this debate is about race, bring it to the Senator’s attention, be- I am disappointed in that rhetoric. I ethnicity, and heritage are my col- cause I know he is a fair Senator. He is think it is low, I think it is not appro- leagues from across the aisle, and their tough but fair, and he is my friend. I priate, and I think it is a way of hiding position puts them in the ludicrous po- found him to be honest. the real feelings here. sition of saying the Congressional His- We know there are those in the Con- I cannot confine my remarks to such panic Caucus or the Puerto Rican gressional Hispanic Caucus of the expressions because they do not begin Legal Defense Fund is anti-Hispanic House who have made comments that to convey how deeply offensive those because they oppose Mr. Estrada. As I certainly have caused a lot of con- statements are. We deserve an apology, said, it is ludicrous. It is demeaning. sternation in the Hispanic community. the American people deserve an apol- Let’s debate this on the merits but not This is a letter I received just this ogy, and, frankly, Mr. Estrada today on anything else. morning from Jennifer Braceras, who deserves an apology. As I mentioned, Senate Democrats is a commissioner on the U.S. Commis- This is not a debate about Mr. unanimously supported seven Latino sion on Civil Rights, and I will tell the Estrada’s ethnic background, plain and nominees already, all candidates of- Senator what Ms. Braceras had to say simple, and everyone in this Chamber fered by the President; all, I presume, about what she believes some Senate knows it. It is a cheap argument to in- sharing a conservative legal philos- Democrats are doing to Miguel voke. ophy. I do not know if they are Demo- Estrada’s nomination. Let me tell you, Mr. President, what crats or Republicans, but I doubt all Mr. SCHUMER. I am going to re- this debate is really about. This debate seven were Democrats. So then a lot of claim my time.

VerDate Dec 13 2002 02:06 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00038 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.073 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2103 Mr. HATCH. Could I ask the Senator Commission on Civil Rights, I write to ex- of 10 Hispanic appellate judges cur- if he is aware of this? I hope the Sen- press my outrage over the efforts of the Sen- rently seated in the Federal courts, ator will give me some time to read ate Democratic leadership to oppose by dis- eight were appointed by President Clin- this letter. It is from a leading member honorable means the nomination of Miguel Estrada to the United States Court of Ap- ton. Three other Hispanic nominees of of the U.S. Commission on Civil peals for the District of Columbia Circuit. President Clinton to the appellate Rights. The Senator has made these Many fellow Latinos and I are disturbed courts were blocked by my friends from comments. I know he is fair, and I that the Democratic leadership has chosen the party on the other side, in addition think this is something that is right on this moment to apply a new test for judicial to others for the district courts. point. nominees—to attack a nominee on the In fact, in contrast to President Mr. SCHUMER. I am going to re- ground that there is no evidence that would Bush’s selection of only one Hispanic claim my time from my colleague, if I otherwise disqualify him—and to choose a circuit court nominee in more than 2 might. Latino candidate as their first target of this disingenuous test. years, with the second being nominated The PRESIDING OFFICER. The Sen- In the absence of a principled or coherent only last week, three of President Clin- ator from New York. basis for opposition to this nomination, the ton’s first 14 judicial nominees were Mr. SCHUMER. I am not familiar Democratic leadership has shamelessly at- Hispanic. He nominated more than 30 with those comments. I will certainly tempted to play the race card against our Hispanics to the Federal courts. read them, but I do not think one per- people—speaking in code words and ques- I am not saying Clinton’s superior son on a commission—I do not know tioning the ethnic authenticity of one who emigrated from Honduras at age 17, and who, record on appointing Hispanic judges who she is. I do not know if she is a Re- makes anyone on the other side or publican appointee or a Democratic ap- indeed, still speaks with the Spanish accent of his homeland. This effort to paint Mr. President Bush anti-Hispanic. That pointee or anything to that effect. claim would be ludicrous, the same as Mr. HATCH. She is Hispanic. Estrada as Hispanic ‘‘in name only’’ is an in- Mr. SCHUMER. But it does not gain- sult to the intelligence of all Americans, but to say those of us who are opposing the most especially to the dignity of Latinos nomination of Miguel Estrada are anti- say the argument that we have repeat- throughout the country. It has exposed a edly approved Hispanic nominees in Hispanic. I just want to go over what deep hypocrisy, rooted in racism, on the happened to some Hispanic nominees this body, Hispanic nominees nomi- question of diversity. nated by President Bush, Hispanic Contrary to the assumptions of the Demo- when the Republicans ran the Senate nominees who are Republican, and His- cratic leadership, the Latino community is during President Clinton’s tenure. The panic nominees who are conservative. truly diverse—we come in all colors, reli- consideration of Judge Richard Paez I say this to my good friend from gions, and, yes, political inclinations. Yet was delayed for over 1,500 days. Thirty- Utah: Of the 10 Hispanic appellate the Democratic leadership has decided that nine Republicans voted against it, be- judges currently seated in the Federal the only ‘‘genuine’’ Latinos are those they cause of his liberalism and their allega- can control. Anyone else is simply unaccept- courts, eight were appointed by Presi- tions that he was a judicial activist. able, a renegade to be extirpated as not truly These allegations were centered around dent Clinton. Three other Hispanic ‘‘Hispanic.’’ nominees of President Clinton to the The Democratic leadership seeks political two sentences contained in a lecture he appellate courts were blocked by the cover for its despicable actions from the left- gave to an audience of law students. other side a few years ago. I did not wing special interest groups that have as- They ran Judge Paez up and down the hear charges from Senators—I do not sumed the mantle of ‘‘spokesmen’’ for our ladder. They demanded he answer more know what the outside world says, but community. But Hispanics are in no sense questions and produce more docu- I do not recall a single charge by a Sen- represented by non-membership organiza- ments. tions such as the Mexican-American Legal Did my colleagues put Judge Paez ator saying that blocking those was Defense and Education Fund (MALDEF)—the anti-Hispanic. If somebody made those true constituencies of these purveyors of vic- through the ringer because they were charges, they would be wrong. timization are the foundations and donors anti-Hispanic? I ask that to my col- Mr. HATCH. Will the Senator yield who bankroll them. league from Utah. Did his friends, not for a point of clarification? The effort to stigmatize as unfit for public him—I know he tried to get the nomi- Mr. SCHUMER. Just as my colleague office an eminently well-qualified Latino nee through. After 1,500 days, he suc- from Utah considers us friends, so do I. simply because he has failed to pledge all al- ceeded. That is close to 4 years. I think I have tremendous respect for him and legiance to the liberal orthodoxy is an af- it is a little more than 4 years, but I say the same as he said about me. He front to the diverse Latino community of some of his colleagues and my friends this nation. It promises to do lasting damage is tough, but he is fair. Please. to the American polity and ultimately un- on that side of the aisle vehemently op- Mr. HATCH. I am grateful for that dermine the Democratic party’s efforts to posed Judge Paez. Some of the argu- and I very much rely on that friendship maintain a base in the Hispanic community. ments they made were the Ninth Cir- on the committee. Make an mistake about it, Hispanic Ameri- cuit is out of balance, has a very lib- The Senator is aware, is he not, that cans seek nothing less than full integration eral representation, and it does not members of the House, specifically into the American system, with prominence need another liberal judge. Those argu- Representative MENENDEZ of the Con- in both major political parties. Miguel ments can be weighed for whatever gressional Hispanic Caucus, has said on Estrada embodies these aspirations, and his nomination to one of the most prestigious they are worth, and different people several occasions that Mr. Estrada is will think they are worth different not Hispanic enough and there have courts in the land is a source of pride for Latinos across the country. That is why non- things, but it clearly does not make been other comments made that are partisan Hispanic organizations like the His- our friends from the other side who very similar? panic National Bar Association, the Hispanic held up that nomination anti-Hispanic. I ask unanimous consent that this Chamber of Commerce, and the League of Mr. HATCH. Will the Senator yield letter be printed in the RECORD at this United Latin American Citizens (the nation’s on that point? point so that my dear friend can read oldest and largest Latino membership orga- Mr. SCHUMER. I am going to—— it, because Ms. Braceras is not only a nization) support the nomination. And that Mr. HATCH. I thought the Senator is why I write to lend my unequivocal sup- member of the U.S. Commission on asked me a question. Civil Rights but her father is a judge port to Mr. Estrada’s nomination to the Dis- trict of Columbia Circuit. Mr. SCHUMER. I yield to my col- on the Second Circuit Court of Appeals. league for the last time. There being no objection, the mate- Sincerely, JENNIFER C. BRACERAS, Mr. HATCH. I was disappointed with rial was ordered to be printed in the Commissioner. the Paez nomination. RECORD, as follows: Mr. HATCH. I might add Ms. It took too long. But there were le- U.S. COMMISSION ON CIVIL RIGHTS, Braceras’ father is a Clinton appointee gitimate questions that were raised Washington, DC, February 8, 2003. that had nothing to do with race. There Re nomination of Miguel Estrada. to the Second Circuit Court of Appeals, and she is outraged at what is hap- were various questions about cases, but Hon. ORRIN G. HATCH, pening to Miguel Estrada. it took too long. I worked very hard to Chairman, Committee on the Judiciary, U.S. get him a final vote and, as the Sen- Senate, Hart Senate Office Building, Wash- I thank my colleague for giving me ington, DC those few minutes. ator knows, I voted for him. I have to DEAR SENATOR HATCH: As an Hispanic Mr. SCHUMER. I am happy to read say I took a certain amount of criti- American and a member of the United States the letter. What I was saying was that cism from some who felt very deeply,

VerDate Dec 13 2002 02:06 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00039 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.076 S10PT1 S2104 CONGRESSIONAL RECORD — SENATE February 10, 2003 not against Judge Paez as a Hispanic cuit nominees, Rosemary Barkett and say Hispanics on the right are not person but because they thought he Sonia Sotomayor, who were also de- qualified because of ideology. That is was a judicial activist, and there were layed. Judge Sotomayor, who was ap- patently unfair. That is wrong. Again, a number of cases that certainly were pointed to the district court by Presi- it demeans this great Senate. It is a very questionable cases and even I had dent George H.W. Bush, was targeted sad day for the Senate when that hap- problems with that. by some on the other side for delay or pens. It ought to stop. I also found Judge Paez, who—after a defeat on the grounds of ideology or Enrique Moreno, Christine Arguello, lengthy period of time I asked him if philosophy. Were they anti-Hispanic and Jorge Rangel were all nominated he would come and see me and I was when they opposed her? I doubt it. to the circuit courts by President Clin- very impressed with Judge Paez as a While she was eventually confirmed, 29 ton and were never afforded a hearing human being. It did not hurt him a bit Republicans voted against her. Were or vote in the Judiciary Committee that his family lived in Utah, and they they anti-Hispanic? I doubt it. Yet we when Republicans controlled. In addi- are very good people. That certainly hear from some who voted against tion, Hispanic district court nominees was very persuasive to me, too. And he Judge Sotomayor and against Judge such as Ricardo Morado and Hilda is a very good person. But there were Paez, from some of those who have held Tagle of Texas were also blocked. Mr. legitimate legal questions that had those nominees up, the charge here. It Moreno and Mr. Rangel were blocked been raised that had to be kind of sift- was wrong then. It is wrong now. It by blue slips. Senator HATCH, my friend ed through in order for me to get to a ought to stop. and colleague, exercised his legitimate point where we could have that vote. Judge Barkett was targeted for delay power as chairman of the Judiciary I agree with my colleague; it took and defeat on the claims about her ju- Committee to honor the blue slips from too long. I agree there have been faults dicial philosophy. Thirty-six Repub- a Texas Senator or Texas Senators. Of on both sides throughout this process, licans voted against her confirmation. course, now that we have someone else as long as I have been on the Judiciary My good friend from Utah—again, a appointing the judges, Senator HATCH Committee, and there have always true good friend; that is not just rhet- is changing the blue slip policies. But been people who have not made it who oric, a fine man—said this of Judge that is not the point. The point is, have been left over at the end, but I Barkett: I led the fight to oppose her when a Texas Senator is blocked, Mr. have to tell my colleague during my confirmation because her judicial Moreno and Mr. Rangel and the Repub- tenure we put through 377 Clinton records indicated she would be an ac- lican leadership allowed these well- judges, the second highest total, only tivist who would legislate from the qualified, widely respected, moderate five less than Reagan. bench. Hispanic nominations, approved by the Mr. SCHUMER. I am going to re- I don’t doubt for a minute my bar association, just as Mr. Estrada claim my time because we do not want friend’s sincerity. I don’t doubt for a was, to die on the vine. to go through a rehash of who put minute that Chairman HATCH opposed I don’t recall any claims coming through more judges. I do not think Judge Barkett because he disagreed from Senators on this side of the aisle that is helpful. with her ideology and thought she that they they were anti-Hispanic. Mr. HATCH. I agree. would be an activist on the bench. I Again, to bring charges from outside Mr. SCHUMER. I say this to my don’t doubt for a minute he does not this body, whether it be someone on friend from Utah. He said his col- have an anti-Hispanic bone or atom in the civil rights commission or someone leagues on the other side thought Paez his body. in one of what my friend from Utah might be a judicial activist. They dis- However, I say to my colleague, the calls the ‘‘left-wing Hispanic groups’’— agreed with some of the ways Judge same is true, the mirror image is going all the groups he disagrees with are Paez thought. Fair enough. I did not on here. Some on this side disagree left-wing Hispanics and all the groups agree with them. Nobody called them with Mr. Estrada’s philosophy. There he agrees with are fine Hispanic anti-Hispanic. We have had charges on are some who believe he will be a judi- groups. But the point being we should this floor that to oppose Mr. Estrada cial activist, although none of us know not bring these issues up among our- makes one Senator or another anti- for sure because the record is so thin. selves because it demeans this body. Hispanic. That is my point. That is de- So there is an additional argument When these nominees were blocked, I meaning to this process, and it ought about the record. assume my colleagues had their rea- to stop. The Senators who are opposing Just as we did not doubt the sin- sons. Maybe they were negotiating Mr. Estrada are no more anti-Hispanic cerity of our friends from across the something. Maybe they had concerns than those who opposed Mr. Paez. aisle when they opposed Hispanic about how the fine men would perform By the way, there were 39 Repub- nominees who they thought would be on the bench. But I assume those con- licans who voted against him. Are activist judges—not my words; out of cerns had nothing to do with their those 39 Republicans anti-Hispanic? We the mainstream, who would legislate being Hispanics. So why is it when would laugh at that. If someone on this from the bench—I hope they will not they use procedural powers to block a side of the aisle tried to raise that doubt ours. nominee it is OK, but when we want a charge, there would be a fury over When scores and scores of our col- nominee to answer questions, disclose there. Correctly so. leagues delayed Judge Barkett and written materials and show he is not If someone had never voted for a His- Judge Sotomayor, when scores of Re- out of the mainstream, that he is not panic nominee, if President Clinton publicans voted against them, was it extreme, we get called vituperative had not nominated Hispanic nominees, about race? Was it about ethnicity? names? then maybe there would be someone Was it about heritage? Of course not. It sounds like a bad joke. I feel as if bringing up this argument. But the They had concerns about what kind of I traveled through the looking glass. record is to the contrary. In terms of jurists Judge Barkett and Judge We have a candidate whose picture is the criteria of Hispanic nominees to Sotomayor would be. It was not be- permanently on the floor but whose an- the bench, this side of the aisle has a cause they are Hispanic. swers are permanently absent, who will far better record than the other side. By the way, that is, in my judgment, not tell us what he really thinks. This I think those comments are demean- just what the Founding Fathers want- is not the way the world really works. ing. Those comments are wrong. Some ed. They wanted to debate the philos- The Senate, if we do not watch it, on the outside may make them. We ophy and views of potential nominees could turn into a nonsensical Cali- cannot help that. This is a free coun- as well as their legal ability, their pro- fornia Wonderland. try. God bless America. They should bity, and where they came from in Last week my good friend from Utah, not be made on the floor of the Senate. terms of judicial philosophy. That is who is doing a fine job defending some- I implore my colleagues to cease. They what they wanted. thing he believes in deeply here this know it is wrong. It is not even an ef- But it seems there is a double stand- afternoon and throughout this week fective debating technique. ard in this Senate now. It is OK to say and last weekend, said: I have never Let me go over a few other Latino Hispanics on the left are not qualified seen any Hispanic nominee whose nom- nominees. There were two Latino cir- because of ideology, but it is not OK to ination has so resonated with the

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00040 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.077 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2105 Latino community except for the par- organizations. It is absurd, and it record—because virtually every ques- tisans, the partisan Democrats. ought to stop. They may have a philos- tion we asked Mr. Estrada was asked That is just not the case. The fact is ophy closer to that of the Senator from by Republican Senators of President the opposite. No Hispanic nominee has Vermont—or to mine, for that mat- Clinton’s judicial nominees. The only ever engendered such opposition. Many ter—but they clearly make up their difference is that when the Republicans mainstream Latino leaders and organi- own minds. It is one of the meanest asked questions, President Clinton’s zations have come to the conclusion things I have heard in 30 years in gov- nominees gave answers. that Mr. Estrada should not be con- ernment. Again, it is demeaning. It is It is also worth noting that we put firmed. The nomination is not reso- demeaning to this body; it is demean- the same questions to other nominees nating with them. The nomination is ing to the groups; it is demeaning to of President Bush. The only difference not resonating with the millions of Senator LEAHY. It ought to stop. here, too, is that they answered. But Hispanic Americans represented by the I have not heard a single word on this don’t take my word for it; let’s go to Puerto Rican Legal Defense and Edu- floor denigrating the groups who have the record. cation Fund, the Mexican American supported Mr. Estrada. I don’t know Senator DURBIN asked Mr. Estrada: Legal Defense Fund, La Raza, and most who the Hispanic Chamber of Com- In terms of judicial philosophy, please of all the Congressional Hispanic Cau- merce is, but I am sure they are fine name several judges, living or dead, whom cus. people. I don’t know who the Hispanic you admire and would like to emulate on the I have heard that there are some Lawyers Association is, but I am sure bench. groups of Hispanic lawyers who support they are fine people. I am not going to Mr. Estrada declined, claiming there Mr. Estrada or Hispanic denounce them. I am not going to char- is no judge whatsoever, not one single businesspeople. Good for them. They acterize them. So why is it OK to char- judge in the entire history of jurispru- are participating in the American proc- acterize other Hispanic groups, with dence, whom he would ‘‘seek to emu- ess. But in my State, Congressman whom some on the other side disagree, late on the bench, whether in terms of ´ SERRANO and Congressman VELAZQUEZ in such derogatory ways? I just assume judicial philosophy or otherwise.’’ He represent not only Hispanic lawyers that the groups on one side, cited by named a couple of judges he was friend- and Hispanic businesspeople, but the one Senator, and the groups cited by ly with, a couple of judges he had per- whole Hispanic community. They are another looked at the same nominee sonal respect for, but not one judge liv- the two highest elected Latino officials and came to a different conclusion; ing or dead whom he would emulate in we have. They would seem to me to that is all. terms of judicial philosophy or other- speak better than any group, left, Another thing our colleagues across wise. That is a pretty extraordinary right, or center, for or against Mr. the aisle said was that we are taking answer from a man who wants a life- Estrada—at least talking about His- blindfolded swings at Mr. Estrada. time appointment on the Nation’s sec- panics in New York. They are against Maybe there is a little Freud in there. ond highest court. He is basically say- him. To the extent that we are blindfolded, ing: ‘‘Trust me, I am very smart’’— So this battle of the organizations is it is only because Mr. Estrada will not which he is—‘‘so I’ll be a good judge.’’ a little silly. But it seems to me that answer questions, won’t give us the Forgive us if we want a little more by the very precepts of our democracy, memos he wrote, and we are being kept proof. If a party in court before Mr. those who have been elected to office in the dark about what he believes. Estrada tried to make a case with such are the ones who are probably the most I suggest we get this debate out of a paucity of evidence, I can’t imagine representative, unless there is some- the low levels where it has been, at that Mr. Estrada, then a judge, would thing so flawed in our democracy that least at certain points in time, and rule in his favor. it doesn’t work. They seem to be over- back on the merits. Let’s stop this Maybe this is an unfair question. whelmingly—not exclusively, but over- foolishness. Let’s start talking about Maybe, as my friends from the other whelmingly against Mr. Estrada. side are suggesting, this question I have sat and talked to the members whether the Senate should confirm a should not have to be answered by of the Hispanic Caucus. It is not simply man about whom so many red flags someone seeking such a powerful posi- a political issue to them. They feel it have been raised, a man who I believe tion. Maybe it is wrong for us to pro- passionately. They believe deeply that is thwarting the Senate’s role in the pound such questions to judicial nomi- the views that best represent those of constitutional process by refusing to the Hispanic people are not the views answer questions, a man who is asking nees. Perhaps we should call up the De- of Mr. Estrada. us to hand to him a lifetime appoint- These are the very organizations, by ment to this Nation’s second most partment of Justice and ask the Attor- the way, some of the organizations I vital court without giving us even the ney General what he thinks about Sen- mentioned and some of the individuals slightest inkling as to what kind of ator DURBIN’s question, because when I mentioned, who have worked vigi- judge he would be in terms of how he Attorney General Ashcroft was a Sen- lantly for years to put more Hispanics would rule, in terms of his philosophy. ator, he agreed that Senator DURBIN’s on the bench. Not so many of the oth- In the interest of moving the debate question was a fair one. How do I ers, who are claiming someone is not along, let me move to the attacks that know? Because Senator Ashcroft asked truly representing the Hispanic com- some have made on our insisting that the very same question himself. And munity. But these are the people who Mr. Estrada answer the questions we guess what. When Senator Ashcroft have done it. Do we think they have have asked him. Another place where asked it, the question was answered. taken this position blithely, when they we venture into Alice in Wonderland is Let me quote Senator Ashcroft: take such pride and have spent so this idea, How dare we ask Mr. Estrada Which judge has served as a model for the much of their time trying to elevate to answer questions? way you would want to conduct yourself as a Hispanics in the courts? Of course not. Go back and look. The very ones of judge, and why? They have serious concerns, concerns our colleagues who are condemning In response, William Traxler, a nomi- about what kind of judge Mr. Estrada questions being asked of Mr. Estrada nee of President Clinton, responded by would be, legitimate concerns about asked the most questions of previous naming a specific judge, John Gentry, what Mr. Estrada will do if given a life- nominees. God bless them for it. That a State court judge before whom Mr. time appointment to the Nation’s sec- is their right. It helped the debate. It Traxler appeared when he was a liti- ond highest court. helped the process. gator, as exactly the kind of judge Mr. My friends across the aisle have ac- Our friends have suggested that the Traxler would want to emulate. cused my good friend and colleague—I questions put to Mr. Estrada, the ques- I am sure my friends on the other know he is a friend and colleague of my tions he refused to answer, were unrea- side will say, Well, you know, Senator friend from Utah—Senator LEAHY, of sonable. I say to my friends on the Ashcroft didn’t specifically ask about ‘‘playing star marionette to these His- other side that they ought to look judicial philosophy. But remember, Mr. panic groups.’’ more closely at the questions we asked, Estrada’s answer to Senator DURBIN’s That is an insult both to our col- and then look in the mirror—or per- question went way beyond judicial phi- league from Vermont and to these fine haps more correctly, look in the losophy. Mr. Estrada said he could not

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00041 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.079 S10PT1 S2106 CONGRESSIONAL RECORD — SENATE February 10, 2003 name one single solitary judge he for you, we are happy to do so. Just let cases that she believed were judicial would want to emulate, in terms of ju- us know and we will put together some activism. dicial philosophy ‘‘or otherwise.’’ charts demonstrating the double stand- So there is just no question that our Regardless, we don’t have to get into ard of these attacks on us. I think we questions were reasonable. that argument. Let us look at what all know what that research would So there was no question that, at happened when the same question was show. I think we all know how unfair least by John Ashcroft’s standard, our put to another of President Clinton’s and inconsistent the other side is questions were reasonable. nominees, Inge Prytz Johnson. Guess being. I don’t want to go back a couple Once again, why isn’t it that what is what. She answered. of years to the questions they asked, good for the goose has to be good for Senator Ashcroft’s question was: but we can do it if we have to. the gander? Why does it seem there is ‘‘Which Supreme Court Justice, past or By the standards our colleagues set a double standard; that it is OK when present, do you most admire and why? and by any objective measure, our there were Democratic nominees to ask them question after question after Judge Johnson named Justice Potter questions were well within bounds. question about their philosophy, but Stewart and explained why she ad- And, frankly, these weren’t even when Mr. Estrada comes before us we mired him. hardball questions. There was no sur- don’t need to know anything more? All Senator Ashcroft’s followup question prise in these questions—they had all was: ‘‘What Judge or Justice has most he has to do is say, I will follow the been asked before in one form or an- law. influenced your thinking concerning other. Mr. Estrada simply just did not the constitutional separation of pow- Suggesting that there’s something want to answer. wrong with our asking the exact same ers?’’ My colleagues have cited Canon 5 of Now we are getting right into judi- questions our friends asked is nothing the Code of Judicial Conduct of the short of absurd. cial philosophy. American Bar Association as the de- Now this is, for all intents and pur- Let me note as well, that the very fense for Mr. Estrada’s refusing to an- same question I asked of Mr. Estrada, I poses, a question addressing the nomi- swer questions. asked of the five District Court nomi- nee’s judicial philosophy on separation As Chairman HATCH has said, Canon 5 nees whose hearings were held the of powers issues. that expressly forbids nominees to ju- same day as Mr. Estrada’s. They all an- I want to read Judge Johnson’s an- dicial duty from making ‘‘pledges or swered. I asked the same question of swer in its entirety because it is really promises of conduct in office [or] state- Jeffrey Sutton, a circuit court nominee a model answer. It is the kind of an- ments that commit or appear to com- whose hearing we held a couple of swer we should not only expect from mit the nominee with respect to cases, weeks ago. He answered too. nominees, it is the kind of answer we controversies, or issues that are likely Judge Linda Reade, a judge who I should demand from them. to come before the courts.’’ voted for in committee and on the Judge Johnson said: Let us be clear. My questions were Floor—one of the 96 Bush judicial Judge Learned hand was one of the pre- about already decided Supreme Court nominees I have supported so far—and eminent advocates of judicial restraint and cases, cases that by definition will whom we unanimously confirmed to a of respect for the doctrine of separation of District Court judgeship in Iowa, gave powers. He said: ‘‘Some of us have chosen never come before Mr. Estrada; cases America as the land of our adoption; the rest that he can never reconsider; and cases some particularly interesting answers. of us have come from those who did the that would not even arguably justify Judge Reade was crucial of two Su- same. For this reason we have some right to invoking Canon 5 as a basis for refusing preme Court cases that expanded police consider ourselves a picked group, a group of to answer. powers and diminished privacy rights those who had the courage to break from the Why are these questions important? under the fourth amendment. She an- past and brave the dangers and the loneli- Because the answers will give us in- swered interesting questions. It was a ness of a strange land. What was the object sight into how Mr. Estrada approaches great moment for the committee. that nerved us, or those who went before us, One of the cases, United States v. the law. They will help tell us what to this choice? We sought liberty....’’ Rabinowitz, held that police had the kind of judge he will be. Is he likely to Judge Learned Hand demonstrated through power to search someone’s office when his opinions that this liberty can most be a Marshall or a Scalia? A Brennan he was arrested with an arrest warrant fiercely be protected through respect for our or a Rehnquist? Probably not. There is but without a search warrant. constitutional doctrine of separation of pow- quite a bit of difference among those ers. The other case was Harris v. United judges. These are legitimate questions States where the court held, again, That is a pretty straightforward an- that don’t even begin to lead to a viola- that a search of an arrestee’s entire swer. It shows us a little bit about tion of Canon 5. four-bedroom apartment was constitu- what kind of judge this nominee as- But don’t take my word for it. Take tional despite the fact that the police pired to be. It helped the Senate decide John Ashcroft’s. did not have a search warrant. that she merited confirmation. There I don’t mean to limit my laudatory Her concerns about these cases re- was nothing wrong with Senator comments to Senator Ashcroft, but he flect a heightened sensitivity to pri- Ashcroft asking the question and there asked such good questions when he was vacy rights protected by the fourth was nothing wrong with Judge Johnson here that I can’t help citing him favor- amendment. I don’t want judges who answering it. ably. Mr. Attorney General, if you are read the fourth amendment so expan- Shall we go on? watching this debate, I hope that by sively that the police are handcuffed I asked Mr. Estrada to name a Su- complimenting your fine work on this and unable to do their jobs. I want preme Court case he disagreed with. I issue I’m not hurting your reputation judges who will balance privacy rights first asked him to name a case from with certain communities. with law enforcement interests. the last 40 years of Supreme Court his- Then-Senator Ashcroft asked this I tend to be more conservative on tory. Then I expanded the question to question of Marcia Berzon, a Ninth Cir- criminal justice issues. I tend to side cover all of Supreme Court jurispru- cuit nominee: more with law and order than with the dence. He refused to answer, claiming Please define judicial activism. Is Lochner liberals out there. So I may not agree he could not name a single such case. v. New York an example of judicial activism? 100 percent with Judge Reade’s an- My friends on the other side suggest Please identify three Supreme Court opin- swers. But her answers are fair and rea- there is something unfair about this ions that you believe are examples of judi- sonable, and it allowed those of us on question. Let me tell you, as I go cial activism (not including Lochner if your the committee to see what she was through the records of questions they answer to the previous question was yes). Is talking about. put to President Clinton’s nominees, Roe v. Wade an example of judicial activism? Her answers suggest to me that this question pales in comparison. Judge Berzon answered. She waited a Judge Reade will be attuned to Ameri- Time and again, Republican Senators few years for the Senate to confirm can’s privacy rights. I appreciate her asked Clinton nominees to take posi- her, but she answered. She said candor, I appreciate her forthrightness, tions on issues that would come before Lochner was an example of judicial ac- and I appreciate her straightforward- them if confirmed as Federal judges. If tivism. She said Roe was not. And she ness. She is not hiding a thing. She is you want us to detail those instances named three other Supreme Court telling us what she thinks.

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00042 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.081 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2107 And there is obviously not a single Supreme Court cases with which they York, when given an opportunity to Senator in this body who thinks Judge disagree will faithfully follow the law vote for Senator Ashcroft to be Attor- Reade’s answers disqualify her for a despite their disagreements. These are ney General, voted against him. So we Federal judgeship. Not a single one of mainstream judges who have conserv- do see some inconsistencies on citing us objected to her nomination or voted ative but not extreme ideologies. I re- Senator Ashcroft and then not voting against her. The same is true of the spect them. I have voted, as have al- for him. four other nominees we asked ques- most all of my colleagues, for 99 per- Let’s focus on this situation and the tions the day of Mr. Estrada’s hearing. cent—or some number like that—of nomination before this body: Miguel So this idea that the canons of ethics them so far. And I will continue to vote Estrada. Miguel Estrada is a highly will be violated by asking questions for them as long as I believe they will qualified nominee to be a judge. He has about judicial philosophy is contra- not be activists or extremists on the impeccable character. People always dicted, is gainsaid, by the very fact bench. look at the character of an individual that all of us voted for somebody who We are simply trying to hold Mr. to determine how that person will act answered questions such as that. I do Estrada to the same set of standards when put in a position of responsi- not think we would vote for someone that other nominees are meeting. We bility. One way to judge is by their who we thought repeatedly violated are asking even less of him than Re- past performance. the canons of ethics. publicans asked of President Clinton’s Some will say that Miguel Estrada So we want answers, we want forth- nominees. It is obvious these are fair, does not have judicial experience. right answers; we do not want the ball reasonable, and legitimate questions. There are others who have been ap- hidden. And then if judges appear to be It is obvious there is nothing wrong, pointed to the courts who do not have somewhere within the mainstream— constitutionally or by the canons of judicial experience. So then you try to even though we may not agree with ethics or anything else, with answering determine their judicial philosophy. I them on just about every issue—we them because hundreds of nominees am convinced, in my examination of will confirm them. That is what we did have and they have been approved by Miguel Estrada, that he has the right with these four nominees. We did it this body. It is also obvious that Mr. judicial philosophy. I am confident quickly. I voted for every one of them. Estrada is stonewalling us by refusing that when Miguel Estrada puts on that If the questions had been unreason- to tell us what he thinks. robe and is appointed for life, he will able, my colleagues on the other side, I So these two areas that I have had a understand that judges are to interpret presume, would not have asked them of chance to discuss today—whether oppo- the law, not to make the law, which is Democratic nominees. But, as we have sition to Mr. Estrada can legitimately the responsibility of the legislative seen a little glimpse, the very ques- be labeled anti-Hispanic in any way, branch. I am very confident that as a tions we asked Mr. Estrada, Senators and whether it is fair to answer ques- judge on the DC Court of Appeals, on the other side asked Democratic tions—again, are both pervaded by a Miguel Estrada will adhere to this nominees, and there was no outcry or double standard. It seems what folks principle. objection. Others have said that since he has Just recently, I asked this question on the other side of the aisle were say- not been a judge, how are we going to of a potential nominee in New York ing 2 years ago they are not saying know about his temperament. There whom the President asked me to con- today. I hope we will be somewhat con- are not many Latino or Hispanic Amer- sider. I have not taken a position on icans who serve on the federal courts. her yet. She has not even been nomi- sistent. I hope we will be somewhat By arguing that he has not had judicial nated. But let me tell you how much fair. The nomination of judges, and experience, and therefore, he cannot she impressed me with her answers. then the advice and consent the Senate She named two cases, both of recent gives them, is a sacred process, one serve, implicitly would make it very vintage. that the Founding Fathers debated difficult, if nearly impossible, for many The first case came from just last long and hard. To ridicule the process Hispanic Americans to serve on the year, striking down the Child Pornog- by saying there are not legitimate federal bench. raphy Prevention Act. In that case, a 6- questions to be asked and answered, to Miguel Estrada has justifiably been to-3 Supreme Court said the first ridicule the process by saying that called the personification of the Amer- amendment protects purveyors of child when those questions are not answered ican dream. He was born in Honduras pornography when they are using im- someone is opposing a nominee because and immigrated to the United States ages of virtual children instead of ac- of his background, particularly when when he was a teenager at the age 17. tual children. I think the Court got the so many of those opposing this nomi- He learned English as a second lan- answer totally wrong. We are hopefully nee have had great records in terms of guage and then went on and ultimately going to remedy that problem caused bringing Hispanics to the bench—far graduated with honors—magna cum by the Court with legislation I am co- better than President Bush or those on laude from Columbia College and sponsoring with Senators HATCH and the other side of the aisle—is unfair, is magna cum laude from Harvard Law LEAHY, among others. But I was unwise, and demeans this body. I hope School. He was even a member of the pleased to hear that the nominee it will end. editorial board of the Harvard Law Re- agreed that the Court got the ruling Mr. President, I yield the floor. view. wrong. The PRESIDING OFFICER. The Sen- Mr. Estrada went on to serve as a law The other case was another decision ator from Virginia. clerk on the U.S. Court of Appeals for from last year where the Court held Mr. ALLEN. Mr. President, it is my the Second Circuit and also served as that police were allowed to ask bus pleasure to rise and speak on behalf of the Assistant to the Solicitor General passengers permission to search their Miguel Estrada, a fellow Virginian and of the United States. During his legal bags without explaining that pas- President Bush’s nominee to serve on career, Miguel Estrada argued 15 cases sengers have the right to say no. the U.S. Court of Appeals for the Dis- in the Supreme Court of the United Just as I was with Judge Reade’s an- trict of Columbia. States, winning two-thirds of those swers, I was conflicted about this one. I have been listening to the Senator cases. I believe in privacy rights, but I also from New York and listening to his de- Miguel Estrada has also performed believe, in this post-9/11 world, police scription of what is fair and reason- significant pro bono service, or free have to have some legitimate tools at able. I do find it interesting that the legal services, including representation their disposal to fight both crime and Senator, on several occasions, talked of a Virginia death row inmate before terrorism. So while I may not agree or about the standards of questions that the U.S. Supreme Court, to which disagree at this point with the answer, were propounded in years past by Sen- Miguel Estrada dedicated approxi- I was pleased to hear that if this nomi- ator Ashcroft. mately 400 hours of time. nee becomes a judge, this nominee will If Senator Ashcroft was such a won- We previously heard from the Sen- be sensitive to citizens’ privacy rights. derful model for questioning and judi- ator from New York that he wanted to I do not doubt that Judge Reade and cial standards, I do find it interesting determine whether Miguel Estrada had the other nominees who have named that that same Senator from New mainstream judicial values or had a

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00043 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.043 S10PT1 S2108 CONGRESSIONAL RECORD — SENATE February 10, 2003 mainstream view of the role of the 33 percent of the DC Court of Appeals Mr. Estrada is nominated for a lifetime courts in various cases, stare decisis, has vacancies in those seats. appointment on what is arguably the and precedent. What Senator HATCH and I want is second highest court in the land. The Miguel Estrada has unanimously fair consideration and confirmation of DC Circuit has exclusive jurisdiction earned the highest rating of ‘‘well the President’s well-qualified and di- over a broad range of cases, including qualified’’ from the American Bar As- verse judicial nominees. While many issues from consumer and environ- sociation. The American Bar Associa- on the other side may work to hijack mental protection to civil rights and tion’s rating is based on ‘‘integrity, the nominations process to score par- workplace rules. The court’s jurisdic- professional competence and judicial tisan political points or obstruct fair tion is vast. temperament.’’ consideration, this nomination de- The DC Circuit has the obligation to In addition, Miguel Estrada’s nomi- serves a vote. It has deserved a vote for interpret rules for access to courts nation is strongly supported by the a long time. which allow Americans to challenge Hispanic National Bar Association; the This nomination has been pending the Government when any agency League of United Latin American Citi- since May 9, 2001. That is over 20 takes an action which affects their zens, LULAC, which is the nation’s old- months ago. A hearing was not even health. It is this circuit which is est and largest Hispanic civil rights or- held for Miguel Estrada until Sep- charged with protecting Americans to ganization; the United States Hispanic tember of 2002. challenge the Government. It is this Chamber of Commerce; and the His- I respectfully urge my colleagues to DC Circuit that has either concurrent panic Business Roundtable. fill these vacancies—particularly this jurisdiction or exclusive jurisdiction in Miguel Estrada is also supported by vacancy on the DC Circuit Court—and cases involving the NLRB, OSHA, Fed- these other mainstream organizations: vote to confirm Miguel Estrada. eral Communications Commission, The Latino Coalition; the National As- Look at the record. You will find Americans with Disabilities Act, Fed- sociation for Small Disadvantaged that Miguel Estrada is superbly quali- eral Energy Regulatory Commission, Businesses; the Mexican American Gro- fied to serve on the DC Circuit. Indeed, Federal Elections Commission, Endan- cers Association; the Hispanic Cham- Miguel Estrada is an American success gered Species Act, and the Environ- bers of Commerce from a variety of story, with exemplary credentials and mental Protection Agency, just to towns and cities across the country, in- qualifications. Hispanic Americans will name a few. cluding the Greater Kansas City area rejoice in his success, as indeed all The judges on this court are widely and Las Cruces; the Puerto Rican Americans will rejoice and applaud his viewed as potential nominees to the American Foundations; the Federation success. Supreme Court. In fact, three current of Mayors of Puerto Rico; the Hispanic I join my Latino constituents in say- members of the Supreme Court—Jus- Engineers Business Corporation; the ing: Sigamos adelante con Miguel tices Scalia, Thomas, and Ginsberg— Association for the Advancement of Estrada. Let us move forward with served on the DC Circuit. Mexican Americans; Nueva Esperanza; Miguel Estrada. Despite the importance of the issues the Hispanic Engineers Business Cor- The PRESIDING OFFICER. The Sen- that routinely come before the court, poration, the Hispanic Contractors of ator from Michigan. we have very little information about America, the Cuban Liberty Council, Mr. LEVIN. Mr. President, an inde- the current nominee’s views on funda- the Cuban American Voters National pendent Federal judiciary is a funda- mental constitutional issues. Mr. Community, and the Cuban American mental part of our constitutional de- Estrada has no judicial experience so National Foundation. mocracy. In fact, nominating judges to we have no record of decisions from This is a broad spectrum of individ- the Federal bench is among the most which to draw an impression of his ju- uals, organizations and associations important and lasting decisions that a dicial philosophy. Mr. Estrada is not from a variety of backgrounds and en- President can make. Equally impor- widely published. He has apparently terprises from all across the country tant is the Senate’s role of advice and not published since he wrote an article which are very much a part of the consent on judicial nominations. on banking law in law school. It is not mainstream of America which support Breakdowns in the nomination and a disqualification if a person has no ju- Miguel Estrada. confirmation process can impact not dicial experience or has not published I believe the Senate’s prompt action only the proper functioning of the judi- their views on the law. However, the on Mr. Estrada’s long-delayed nomina- cial branch but the independence which lack of a record gives the Senate a par- tion is especially important. The DC is so critical to maintaining public ticular obligation in carrying out our Court of Appeals is one of the most im- confidence in the courts. constitutional duty to look at the portant courts of appeal in the entire It is the President’s responsibility to views of somebody on very funda- country, with cases of national impli- work with Senators of both parties to mental constitutional issues. cation. It is a primary forum for deter- fill vacancies on the Federal courts. It We have a higher duty, a greater re- mining the legality of federal regula- is the duty, the constitutional duty of sponsibility to probe where there is no tions and laws that control vast areas the Senate to carefully deliberate over decision record and where there are no of American life. Recent retirements the President’s nominees. writings upon which to base a judg- have left this court slowed down with Nobody can challenge the President’s ment. The administration’s failure to four vacancies—four vacancies which authority to nominate judges. It is in- provide the Senate with legal memo- are hindering the court’s ability to de- disputable. That the Senate has the randa and Mr. Estrada’s failure to ask cide cases expeditiously. right to advice and consent is equally the administration to provide the Sen- Delays in administration of justice in indisputable. The two rights exist in ate with those memoranda—particu- the DC Circuit Court of Appeals have the very same sentence of the Con- larly, again, in light of the absence of consequences that can cost millions of stitution. a judicial record and publications—will dollars and affect thousands of lives. That is why the administration’s re- make it more difficult for Senators to Indeed, justice delayed is justice de- peated failure to consult with Demo- weigh the evidence as to what kind of nied. cratic Senators on the nomination of a judge Mr. Estrada would be, nomi- The senior Senator from Massachu- Federal judges is so troubling. Refusal nated as he is to what, in effect, is the setts, Mr. KENNEDY, said on this floor, by a nominee to provide the Senate second highest court in the land. at approximately 2:37 p.m., that he was with adequate information to evaluate There is much evidence from the concerned about the process of the their record undermines our ability to record before the Judiciary Committee Miguel Estrada nomination. I will ex- carry out our constitutionally man- as to a failure on the part of Mr. press my concerns about the process. dated duties. Estrada to give information that is Today there is a crisis in our courts, It is this latter point, the lack of in- highly relevant to the Senate and to as too many federal courts lack a suffi- formation provided by a nominee to the committee. Senator LEAHY asked: cient number of judges, especially the evaluate their record, which is particu- Is diversity a factor that an employer or a DC Court of Appeals, which has four of larly relevant to the nominee currently school could take into consideration? their 12 judgeships vacant. That means under consideration, Miguel Estrada. Answer:

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00044 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.093 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2109 Because this is a matter that is being ac- ing to appeals written by Department Finally, after one particularly tively litigated in the courts and may come attorneys, including the memoranda of unhelpful exchange, Senator KOHL before the court, if I am confirmed, I don’t William Bradford Reynolds, nominated seemed to sum up the feeling of many think it would be appropriate generally to for Associate Attorney General; Ben- members of the committee when he answer that question. jamin Civiletti, nominated for Attor- told Mr. Estrada: In fact, it is very appropriate gen- ney General. Steven Trott, nominated With all due respect to your answer, I am erally to answer the question. What is for the Ninth Circuit; and William trying to know more about you, and I am not inappropriate would be to answer that Rehnquist, when he was nominated for sure I am. question relative to a specific set of Chief Justice, among others. That sort of sums it up. With all due facts that are pending before a court or The current Bush administration, in respect, we are trying to know more might come before a court if Mr. fact, provided the Senate with legal about you, and we are not sure we are Estrada is confirmed. memoranda, which Jeffrey Holmstead able to. Senator KOHL asked: wrote—an attorney with the White Mr. Estrada’s failure to provide mem- In light of growing evidence that a sub- House counsel’s office—when there was bers of the Judiciary Committee with stantial number of innocent people have an inquiry during the consideration of answers to even the most basic ques- been sentenced to the death penalty, does his nomination to be Assistant Admin- tions on his view of the law is deeply that provide support in your mind for the troubling. We don’t have writings. two Federal district court judges who have istrator to the EPA. So these requests recently struck down the death penalty as are not unprecedented. There are none. That is not his fault. It unconstitutional? The key is, will Mr. Estrada ask the does not disqualify him, but there are Answer: administration to release the docu- none. We don’t have opinions. That is not his fault. He has never been a I am not familiar with the cases, Senator, ments? That would give this Senate an but I think it would not be appropriate for opportunity to get his ideas about judge. There are none. But what is his me to offer a view on these types of issues basic constitutional issues. He is not decision? It is not to ask the adminis- which are currently coming in front of the obligated to request the Justice De- tration for documents which he wrote court and may come before me as a judge. partment to provide this information. that would give us some answers as to Not even offer a view on these types We should be clear on that. There is no whether or not we are in agreement of issues—not on the specific issues in obligation on the part of Mr. Estrada with his fundamental legal philosophy. the cases referred to by Senator KOHL, to request the Justice Department to His tactic of refusing to answer ques- but these types of issues. provide the information that I have tions could become a standard method Senator KOHL says: discussed, but his refusal to do so of operation for future nominees, to To what extent should a judge be required comes at risk to his nomination. the detriment of both the nominating to balance the public’s right to know against We are not obligated to vote for process and the frustration of the Sen- the litigant’s right to privacy when the in- someone who is not willing to ask the ate’s advice and consent duty, if we ac- formation sought could be sealed and could Justice Department to provide infor- cept the standard he is setting forth by keep secret a public health and safety haz- mation that will give us the oppor- his refusal. ard? tunity to get a better feel for where a Mr. Estrada and the administration Mr. Estrada: nominee is on some basic, fundamental had the opportunity to make the case for confirmation. The administration Senator, there is a long line of authority in constitutional issues. the DC Circuit, as it happens, dealing with Justice Rehnquist said the following chose not to provide information for public access in cases that are usually in a 1972 case: Senators to properly evaluate his nom- brought to gain access to Government ination. Mr. Estrada chose to remain Since most Justices come to this bench no records by news organizations, and those silent on key questions despite oppor- cases, as I recall—I haven’t looked at them earlier than their middle years, it would be unusual if they had not by that time formu- tunities to clarify his views. in some time—do recognize a common law Mr. President, I understand from a right of access to public records, which must lated at least some tentative notions that be balanced against the interest of the gov- would influence them in their interpretation signal from the Parliamentarian that ernmental actor that is asserting the need of the sweeping clauses of the Constitution we are supposed to stop at this time, for confidentiality. I am not aware of any and their interaction with one another. It The PRESIDING OFFICER. Under case, though there may be some that dealt would be not merely unusual, but extraor- the previous order, the Senate is sched- with this issue in the context that you’ve dinary if they had not at least given opinions uled to consider en bloc several nomi- outlined, but I would hesitate to say more as to constitutional issues in their previous nations at 5 o’clock. than that because I don’t know how likely it legal careers. Mr. LEVIN. I will finish with other is that that very issue that you have just I agree with Justice Rehnquist. Ap- views of Mr. Estrada at another time. I outlined would come before me in the DC parently, Mr. Estrada does not. yield the floor. Circuit if I were fortunate enough to be con- When asked by Senator SCHUMER at firmed. f the Judiciary Committee hearing to NOMINATIONS OF JOHN R. ADAMS So now if he believes there are cases name three cases of which he was crit- TO BE U.S. DISTRICT JUDGE FOR that might come before the DC Circuit, ical in the last 40 years of Supreme THE NORTHERN DISTRICT OF he says: I am not going to comment Court jurisprudence, Mr. Estrada said OHIO; S. JAMES OTERO TO BE even in general on the subject matter he was ‘‘not sure that I could think of U.S. DISTRICT JUDGE FOR THE of those cases. But where he doesn’t three that I would be—that I would CENTRAL DISTRICT OF CALI- know whether or not issues are coming have a sort of adverse reaction to. FORNIA; AND ROBERT A. JUNELL before the DC Circuit, he says: I am not . . .’’ TO BE U.S. DISTRICT JUDGE FOR going to comment on that either. As we have heard from Senator SCHU- THE WESTERN DISTRICT OF Again, he said: I hesitate to say more MER, other nominees have been more than that because I don’t know how than willing to state where they have TEXAS likely it is that that very issue that not been in agreement with Supreme The PRESIDING OFFICER. Under you have outlined would come before Court opinions. Yet this nominee is not the previous order, the Senate will now me in the DC Circuit if I am confirmed. willing to give us even one Supreme consider en bloc the following nomina- Either way, he is not going to give us Court opinion in the last 40 years tions, which the clerk will report. an opinion. Other nominees have pro- where he would ‘‘have a sort of adverse The assistant legislative clerk read vided information of the type that Mr. reaction,’’ to use his words. the nominations of John R. Adams, of Estrada will not give us. We have the He was asked by Senator DURBIN to Ohio, to be United States District circumstance—for instance, there are name judges, living or dead, whom he Judge for the Northern District of multiple cases where the Justice De- admired and would emulate on the Ohio; S. James Otero, of California, to partment cooperated with past re- bench. be United States District Judge for the quests of the Judiciary Committee. He answered: Central District of California; and Rob- The Senate requested past Justice De- There is no judge, living or dead, whom I ert A. Junell, of Texas, to be United partments to provide this type of would seek to emulate on the bench, whether States District Judge for the Western memoranda, such as memoranda relat- in terms of judicial philosophy or otherwise. District of Texas.

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00045 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.096 S10PT1 S2110 CONGRESSIONAL RECORD — SENATE February 10, 2003 The PRESIDING OFFICER. Under The PRESIDING OFFICER (Ms. MUR- United States Attorneys and three the previous order, there are 15 min- KOWSKI). The Senator from Vermont. United States Marshals who were re- utes equally divided for debate on the Mr. LEAHY. Madam President, we viewed and confirmed in that period of nominations. will vote on three judges. Let me men- time. The Senator from Utah. tion them briefly. This is in great contrast to the fate Mr. HATCH. Mr. President, I ask Mr. HATCH. Will the Senator yield? of many of President Clinton’s nomi- unanimous consent that Senator ENZI Mr. LEAHY. Yes. nees from Texas, who were blocked and of Wyoming be recognized for up to 10 Mr. HATCH. I reserve the remainder delayed by the Republican majority, minutes immediately following the of my time. I may have a few people including Enrique Moreno, nominated final vote in the series of votes at 5:15 who wish to speak. I thank the Sen- to the Fifth Circuit Court of Appeals p.m. to speak on the Estrada nomina- ator. who never got a hearing, never got a tion and that Senator FEINGOLD be ac- Mr. LEAHY. Madam President, today vote; Jorge Rangel, nominated to the corded at least 10 minutes immediately the Senate will vote on the confirma- Fifth Circuit Court of Appeals who following Senator ENZI. tion of John Adams to the United never got a hearing, never got a vote, The PRESIDING OFFICER. Without States District Court for the Northern and; Hilda Tagle to the District Court, objection, it is so ordered. District of Ohio. Judge Adams, inciden- whose confirmation was delayed nearly Mr. LEAHY. Mr. President, par- tally, is named to replace Judge George two years for no good reason. liamentary inquiry. Am I correct, Washington White, so we have the his- So I am glad to see another judge ap- while there is time divided between the torical circumstance of another John pointed to the Texas bench, and am distinguished chairman and myself Adams following another George Wash- confident he will serve with more dis- prior to these votes, there will be three ington. tinction than at least one of his future separate votes, and have the yeas and Judge Adams has had an admirable colleagues, Judge Ron Clark. Judge nays been ordered? career as an attorney and a judge. He Clark, a personal friend of the Presi- The PRESIDING OFFICER. The yeas has worked in private practice and dent’s was among the judges we con- and nays have not been ordered. served as a prosecutor. He has handled firmed last year to a district court seat Mr. LEAHY. I ask unanimous con- civil matters as well as criminal, and in Texas. Judge Clark’s commission sent that it be in order to request the he has devoted a significant amount of was not immediately forthcoming from yeas and nays on all three nomina- time to issues beyond his law practice. the White House. We learned that Mr. tions. As a judge, Mr. Adams has been a mem- Clark was quoted as saying that he had The PRESIDING OFFICER. Without ber of the Summit County Civil Justice asked the White House to delay signing objection, it is so ordered. Commission, whose goal is to institute his commission while he ran for polit- Mr. LEAHY. I ask for the yeas and reforms in the administration of civil ical office as a Republican so that he nays on all three nominations. justice in Summit County, and the could help Republicans keep a majority The PRESIDING OFFICER. Is there a Summit County Criminal Justice Co- in the Texas State House until the end sufficient second? ordination Council, whose goal is to of the session in mid-2003. The White There is a sufficient second. make recommendations and oversee House was apparently complicit in The yeas and nays were ordered. the operations of the criminal justice these unethical partisan actions by a The PRESIDING OFFICER. The Sen- system and corrections in Summit person confirmed to the federal bench. ator from Utah. County. He is also involved in the Ohio Clark, who was confirmed to a seat on Mr. HATCH. Mr. President, I ask my Community Corrections Organization, the federal district court in Texas, was dear friend if it is possible to vote on which tries to work together to de- actively campaigning for election de- all three en bloc, with one vote being velop, improve, expand, and promote spite his confirmation. considered three separate votes? adult and juvenile community correc- These actions brought discredit to Mr. LEAHY. Mr. President, in answer tions by bringing judges, prosecutors, the court to which Mr. Clark was nomi- to that question, to accommodate a defense attorneys, law enforcement of- nated by the President and confirmed number of Senators on the distin- ficials, treatment providers and other by the Senate, and call into question guished chairman’s side of the aisle, at parties together to work toward com- Judge Clark’s ability to put aside his the time I was chairman, I tried doing mon goals of community intervention partisan roots and be an impartial ad- that once, and the objection was so vo- for offenders. judicator of cases. Even in his answers ciferous from both sides that I said I Judge Adams has been involved in a under oath to this Committee, he was never going to try that again. I number of other charitable, civic and swore that if he were ‘‘confirmed’’ he would have no objection. I have tried professional organizations. He is a life would follow the ethical rules. Canon 1 to do that. I have been told there are member of the NAACP. He has also of the Code of Conduct for United many who feel that would be inappro- served as a member of, among others, States Judges explicitly provides that priate, so we will not be able to do it. the following organizations: the Sum- the Code applies to ‘‘judges and nomi- Mr. HATCH. I withdraw the request. mit County Mental Health Association, nees for judicial office’’ and Canon 7 The PRESIDING OFFICER. The Sen- part of a network of professionals and provides quite clearly that partisan po- ator from Utah. volunteers committed to improving litical activity is contrary to ethical Mr. HATCH. Mr. President, these are America’s mental health and seeking rules. In his answers to me, Mr. Clark three excellent district court nomi- victory over mental illness. His is the promised ‘‘[s]hould I be confirmed as a nees. They deserve to be confirmed, as sort of solid record of accomplish- judge, my role will be different than I think all of President Bush’s nomi- ments, and not ideology, that the that of a legislator.’’ Yet, even after nees deserve to be confirmed. I rec- President should try and seek out in his confirmation he was flaunting the ommend every Senator vote for each of his future federal court nominees. promises he made to me, to the Senate these three nominees. I hope we can I congratulate Judge Adams and his Judiciary Committee and to the Senate get other nominees to the floor as soon family and friends on his confirmation. as a whole. That the White House was as possible as well. Today the Senate will also vote on prepared to go along with these she- I thank my colleagues on the other the confirmation of Robert Junell, nanigans reveals quite clearly the po- side for being willing to move to these nominated to the U.S. District Court litical way they approach judicial three nominees last week in our mark- for the Western District of Texas. His nominations. up and to allow them to be brought up will be the eighth of President Bush’s Only after the New York Times re- this early. I believe we will all be district court judges confirmed to serve ported these unseemly actions, did the pleased we can vote for such excellent in the State of Texas. Seven of those President sign Judge Clark’s appoint- nominees. I hope we can move all the judges were given hearings and votes ment papers. Judge Clark then an- other judgeship nominees this Presi- during the 17 months I served as chair- nounced that he would stop ‘‘cam- dent has nominated as quickly as pos- man of the Judiciary Committee. That paigning’’, but he insisted on remind- sible. was nearly one judge for Texas every ing State voters that they still had a I yield the floor. other month, in addition to the four choice in the election in November. His

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00046 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.098 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2111 name remained on the ballot. And in- see that repeated. Fine nominees such of Concho Valley and the San Angelo deed, he was elected to his old seat in as Jorge Rangel, Enrique Moreno and AIDS Foundation. He is a lifetime the Texas Legislature. Ricardo Morado were never given hear- member of the NAACP. He meets the I trust that Mr. Junell, who comes ings. Others, including Judge Richard high standards we set for Federal highly recommended by Representative Paez, Judge Sonia Sotomayor, and judges. I know he is going to be a real- Charlie Stenholm of Texas, and who Judge Hilda Tagle, were stalled for no ly terrific Federal judge, because he has also been a member of the Texas good reason. I am proud that did not knows the law and he knows what is House of Representatives, has a better happen on my watch, I am glad to say fair. He has that sense about him of understanding of the proper role of a that we quickly considered and con- what is right and what is not. He also Federal judge than did Mr. Clark, and firmed nominees such as Christina knows the place of a judge. Having will serve the people of the Western Armijo to the District Court in New been a legislator, he knows it is the District of Texas with distinction. Mr. Mexico, Philip Martinez to the District elected representatives who should Junell has certainly worked hard dur- Court in Texas, Jose Martinez to the make law, not judges with lifetime ap- ing his varied career as a litigator and District Court in Florida, Alia Ludlum pointments. So he will change his a politician to help numerous disadvan- to the District Court in Texas, and course now from being a legislator, taged individuals. A life member of the Jose Linares to the District Court in elected by the people, and making very NAACP, Mr. Junell is also a former New Jersey. important laws for my State of Texas, member of the board of directors of the I congratulate Judge Otero and his to becoming a judge and interpreting La Esperanza clinic. family on his confirmation and the those laws and trying to see what the I congratulate the nominee and his people of California on a fine Federal legislature meant. family on his confirmation. judge to fill the seat of such Judge It is my honor to speak on behalf of With today’s confirmation of Judge Richard Paez in the Central District. Rob Junell and recommend him to my S. James Otero to be a United States The PRESIDING OFFICER. The Sen- colleagues in the Senate for confirma- District Judge for the Central District ator from Utah. tion. of California, the Senate is filling a va- Mr. HATCH. I yield such time as she I thank the chairman, Senator cancy that by all rights could have may consume to Senator HUTCHISON HATCH, and the ranking member, Sen- been filled years ago. Judge Otero, now from Texas. ator LEAHY, for acting expeditiously on serving on the Los Angeles Superior The PRESIDING OFFICER. The Sen- this nomination, and I especially thank Court, will be filling a seat left open on ator from Texas. Senator HATCH for reserving time for the elevation of Judge Richard Paez to Mrs. HUTCHISON. Madam President, me. the Ninth Circuit Court of Appeals in how many minutes remain for Senator I yield the floor. Mr. DEWINE. Mr. President, I rise 2000. Judge Paez, of course, was nomi- HATCH? nated to that vacancy on the appellate The PRESIDING OFFICER. There today in support of the nomination of Judge John Adams. Judge Adams, from court more than 4 years before he was are 5 minutes remaining. Akron, has been nominated to be U.S. confirmed. Mrs. HUTCHISON. I ask the Pre- Judge Otero’s nomination is a good siding Officer to notify me at 3 min- District Judge for the Northern Dis- example of the kinds of bi-partisan utes. trict of Ohio. He currently serves as a candidates the President ought to be Madam President, I am very pleased Judge on the Court of Common Pleas sending the Senate. He comes to us to speak on behalf of someone who I in Summit County, Ohio. Judge Adams is a 1978 graduate of after being unanimously approved by really know well and have a great deal Bowling Green State University, where California’s bipartisan Judicial Advi- of confidence in, and that is State Rep- he earned a Bachelor of Science degree sory Committee—a committee estab- resentative Rob Junell. Rob is being in Education. In 1983, he received his lished through an agreement Senator nominated, and hopefully confirmed law degree from the University of FEINSTEIN and Senator BOXER reached today, to be the U.S. district judge for Akron School of Law. While a law stu- with the White House. This committee the Western District of Texas. He will dent at Akron, Judge Adams clerked works to take the politics out of judi- reside in Midland. for Judge W.F. Spicer with the Summit cial nominations. It reviews qualified, This is a very important court. It has County Court of Common Pleas. consensus nominees who will serve on been designated as a judicial emer- Following this clerkship, Judge the Federal judiciary with distinction. gency by the Judicial Conference of the Adams spent 5 years in private practice Too often in the last 2 years we have United States. with the law firm of Germano, Rondy, seen the recommendations of such bi- Rob is a native of West Texas and is Ciccolini Co., and during this time, partisan panels rejected or stalled at currently of counsel to a San Angelo also served as Assistant Summit Coun- the White House. Instead, they should law firm. He served seven terms in the ty Prosecutor. In 1989, Judge Adams re- be honored and encouraged. Texas legislature where he was chair- turned to private practice as an asso- I note that Judge Otero has contrib- man of the Appropriations and Budget ciate and then a partner at the firm of uted strongly to his community, work- Committees. I worked with him to try Kauffman & Kauffman in Akron. ing with and on behalf of Latinos na- to make sure Texas had a limitation on Since 1999, Judge Adams has served tionally and in California. He has State debt, and it was because of Rob- as a Judge on the Court of Common worked on a pro bono project for the ert Junell’s absolute insistence we pass Pleas for Summit County. In this posi- Mexican Legal Defense and Education this legislation that we were able to do tion, Judge Adams has demonstrated Fund, and served as a member of the it in one session, and it has served my that he is an intelligent, hard working, Mexican Bar Association, the Stanford State of Texas well to have a limit on and dedicated jurist. He is well re- Chicano Alumni Association, and the State debt. Rob Junell deserves credit spected, both inside the courtroom and California Latino Judges Association, for that. out, and exhibits an excellent judicial among others. This stands in stark Rob Junell earned a degree from the temperament. He has shown that he contrast to a nominee such as Miguel New Mexico Military Institute and has what it takes to be an excellent Estrada, whose nomination has domi- from Texas Tech University. He also District Court Judge. nated debate today. Judge Otero has graduated from the University of Ar- In endorsing his re-election effort taken many opportunities to help His- kansas with a master’s degree in polit- last November, the Akron Beacon panics and all Californians. ical science and a law degree with hon- Journal stated that Judge Adams ‘‘has During the 17 months I was chairman ors from Texas Tech Law School. the potential to be a distinguished fed- of the Judiciary Committee, I worked Rob Junell has been a leader in the eral judge, building on the record of hard to ensure that Hispanics were State of Texas. I have worked with him fairness and thoughtfulness that has confirmed to the Federal bench, and I in many ways. I think he is one of the marked his three years on the county am proud of that record. Many His- smartest people with whom I have ever bench.’’ I agree completely with that panics nominated by President Clinton worked. He also took time to be a part sentiment. were blocked or delayed by the Repub- of his community of San Angelo. He Judge Adams’ accomplishments are lican majority, and I did not want to served on the boards of the United Way indeed impressive, and I am pleased

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00047 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.038 S10PT1 S2112 CONGRESSIONAL RECORD — SENATE February 10, 2003 that the Senate is voting on his nomi- The yeas and nays have been ordered. Senator from New Jersey (Mr. nation today. I urge my colleagues to The clerk will call the roll. CORZINE), the Senator from Illinois join me in voting to confirm Judge The legislative clerk called the roll. (Mr. DURBIN), the Senator from Florida Adams. Mr. FRIST. I announce that the Sen- (Mr. GRAHAM), and the Senator from Mr. HATCH. Madam President, I am ator from Kentucky (Mr. MCCONNELL) Massachusetts (Mr. KERRY) are nec- pleased that we have three excellent and the Senator from Texas (Mr. essarily absent. district court nominees on the floor CORNYN) are necessarily absent. I further announce that, if present this evening, John Adams for the Mr. REID. I announce that the Sen- and voting, the Senator from Delaware Northern District of Ohio, Robert ator from Delaware (Mr. BIDEN), the (Mr. BIDEN), the Senator from New Jer- Junell for the Western District of Senator from New Jersey (Mr. LAUTEN- sey (Mr. CORZINE), the Senator from Il- Texas, and Judge Samuel Otero for the BERG), the Senator from Illinois (Mr. linois (Mr. DURBIN), and the Senator Central District of California. They DURBIN), the Senator from Florida (Mr. from Massachusetts (Mr. KERRY) would have been nominated to fill seats con- GRAHAM), the Senator from Massachu- each vote ‘‘aye’’. sidered judicial emergencies by the setts (Mr. KERRY), the Senator from The result was announced—yeas 94, U.S. Judicial Conference, so our action New Jersey (Mr. CORZINE), and the Sen- nays 0, as follows: ator from Georgia (Mr. MILLER) are today is especially important. I sup- [Rollcall Vote No. 32 Ex.] port all of them without any reserva- necessarily absent. YEAS—94 tion, and I ask my colleagues to join I further announce that, if present me in confirming their nominations. and voting, the Senator from Delaware Akaka Dole Lugar (Mr. BIDEN), the Senator from New Jer- Alexander Domenici McCain Let me say a few words about each Allard Dorgan Mikulski ORZINE nominee. sey (Mr. C ), the Senator from Il- Allen Edwards Miller John Adams, Jr., our nominee to the linois (Mr. DURBIN), and the Senator Baucus Ensign Murkowski U.S. District Court for the Northern from Massachusetts (Mr. KERRY) would Bayh Enzi Murray each vote ‘‘aye’’. Bennett Feingold Nelson (FL) District of Ohio, has extensive experi- Bingaman Feinstein Nelson (NE) The result was announced—yeas 91, Bond Fitzgerald ence in both the private and public sec- Nickles nays 0, as follows: Boxer Frist tors of the legal community. Judge Pryor [Rollcall Vote No. 31 Ex.] Breaux Graham (SC) Adams has 15 years of experience in Brownback Grassley Reed private practice, and he served for 3 YEAS—91 Bunning Gregg Reid Akaka Dole Lugar Burns Hagel Roberts years as an assistant county prosecutor Rockefeller at the Summit County Prosecutor’s Of- Alexander Domenici McCain Byrd Harkin Allard Dorgan Mikulski Campbell Hatch Santorum fice. Since 1999, Judge Adams has Allen Edwards Murkowski Cantwell Hollings Sarbanes served on the Court of Common Pleas Baucus Ensign Murray Carper Hutchison Schumer for Summit County. Bayh Enzi Nelson (FL) Chafee Inhofe Sessions Chambliss Inouye Bennett Feingold Nelson (NE) Shelby Robert A. Junell, nominated to the Clinton Jeffords Bingaman Feinstein Nickles Smith U.S. District Court for the Western Bond Fitzgerald Cochran Johnson Pryor Snowe Boxer Frist Coleman Kennedy District of Texas, has distinguished Reed Specter himself both as an advocate and a leg- Breaux Graham (SC) Collins Kohl Stabenow Brownback Grassley Reid Conrad Kyl islator. Mr. Junell has over 25 years of Roberts Stevens Bunning Gregg Cornyn Landrieu Sununu Rockefeller Craig civil litigation experience, with a spe- Burns Hagel Lautenberg Talent Santorum Crapo Leahy cialty in personal injury law, and he Byrd Harkin Thomas Campbell Hatch Sarbanes Daschle Levin Voinovich has served as a member of the Texas Cantwell Hollings Schumer Dayton Lieberman Warner House of Representatives since 1988. Carper Hutchison Sessions DeWine Lincoln Wyden Our third nominee, Judge Samuel Chafee Inhofe Shelby Dodd Lott Otero, who has been nominated for the Chambliss Inouye Smith Clinton Jeffords Snowe NOT VOTING—6 Central District of California, served as Cochran Johnson Specter Biden Durbin Kerry a Los Angeles deputy city attorney for Coleman Kennedy Stabenow Corzine Graham (FL) McConnell Collins Kohl 10 years, handling approximately 130 Stevens The nomination was confirmed. superior court and municipal court Conrad Kyl Sununu Craig Landrieu Talent Mr. SCHUMER. Mr. President, I cases during his tenure. Since being Crapo Leahy Thomas move to reconsider the vote. Daschle Levin nominated to the California bench in Voinovich Dayton Lieberman Mr. THOMAS. I move to lay that mo- 1988, Judge Otero has served on both Warner DeWine Lincoln tion on the table. the Los Angeles Superior and Munic- Dodd Lott Wyden ipal Courts. The motion to lay on the table was NOT VOTING—9 I am confident that all three nomi- agreed to. nees will serve with honor and distinc- Biden Durbin Lautenberg The PRESIDING OFFICER. The Cornyn Graham (FL) McConnell tion. I compliment the President for question is, Will the Senate advise and Corzine Kerry Miller consent to the nomination of Robert A. putting their nominations forward and The nomination was confirmed. I look forward to their confirmation. Junell, of Texas, to be United States Mr. LEAHY. I move to reconsider the District Judge for the Western District I yield the floor. vote. The PRESIDING OFFICER. The Sen- of Texas? The yeas and nays have been Mr. DORGAN. I move to lay that mo- ordered. The clerk will call the roll. ator from Nevada. tion on the table. The legislative clerk called the roll. Mr. REID. I know the time is run- The motion to lay on the table was ning, but I ask the distinguished Sen- agreed to. Mr. FRIST. I announce that the Sen- ator from Utah if he would ask the ma- The PRESIDING OFFICER (Mr. TAL- ator from Mississippi (Mr. LOTT), the jority leader if we could have 10-minute ENT). The question is, Will the Senate Senator from Kentucky (Mr. MCCON- votes after this first vote which is 15 advise and consent to the nomination NELL), and the Senator from Oklahoma minutes. of S. James Otero, of California, to be (Mr. NICKLES) are necessarily absent. Mr. HATCH. I ask unanimous consent United States District Judge for the Mr. REID. I announce that the Sen- that after the first vote, the two re- Central District of California? The yeas ator from Delaware (Mr. BIDEN), the maining votes be no longer than 10 and nays have been ordered. The clerk Senator from New Jersey (Mr. minutes. will call the roll. CORZINE), the Senator from Illinois The PRESIDING OFFICER. Without The assistant legislative clerk called (Mr. DURBIN), the Senator from Florida objection, it is so ordered. the roll. (Mr. GRAHAM), the Senator from The question is, Will the Senate ad- Mr. FRIST. I announce that the Sen- Vermont (Mr. JEFFORDS), and the Sen- vise and consent to the nomination of ator from Kentucky (Mr. MCCONNELL) ator from Massachusetts (Mr. KERRY) John Adams, of Ohio, to be United is necessarily absent. are necessarily absent. States district judge for the Northern Mr. REID. I announce that the Sen- I further announce that, if present District of Ohio. ator from Delaware (Mr. BIDEN), the and voting, the Senator from Delaware

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00048 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.107 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2113 (Mr. BIDEN), the Senator from New Jer- Mr. HATCH. I will be happy to yield. Beta Kappa with a bachelor’s degree sey (Mr. CORZINE), the Senator from Il- Mr. REID. Mr. President, I agree from Columbia University in 1993. He linois (Mr. DURBIN), and the Senator with the Senator. I think the debate was nominated because he also grad- from Massachusetts (Mr. KERRY) would has been very constructive today. The uated magna cum laude from Harvard each vote aye. chairman of the committee and this Law School in 1986 where he was also The PRESIDING OFFICER. Are there Senator spoke with the majority leader editor of the Law Review. He served as any other Senators in the Chamber de- today, and we expect some more debate a law clerk for Supreme Court Justice siring to vote? tomorrow. The two leaders will speak Anthony Kennedy, as a Federal pros- The result was announced—yeas 91, tomorrow after the caucuses. ecutor in New York, and as an Assist- nays 0, as follows: The PRESIDING OFFICER. Under ant Solicitor General for both the Bush [Rollcall Vote No. 33 Ex.] the previous order, the Senator from and Clinton administrations, and as YEAS—91 Wyoming is recognized for 10 minutes. the leading appellate lawyer at a na- Akaka Dodd Lugar Mr. REID. Mr. President, while the tional law firm. Altogether, he has ar- Alexander Dole McCain Senator is in the Chamber, it is my un- gued 15 cases before the Supreme Allard Domenici Mikulski derstanding that Senator ENZI is going Court, including one case in which he Allen Dorgan Miller Baucus Edwards Murkowski to speak for a period of 10 minutes and represented a death row inmate pro Bayh Ensign Murray the Senator from Wisconsin will speak bono. Bennett Enzi Nelson (FL) for up to 12 minutes. I am wondering if One will have to search long and hard Bingaman Feingold Nelson (NE) Bond Feinstein there are any other speeches. We have to find anyone anywhere more quali- Pryor Boxer Fitzgerald an important conference committee fied for a position on the DC Circuit Reed Breaux Frist Reid that starts at 6:30 tonight. Court of Appeals, and yet in spite of all Brownback Graham (SC) Mr. HATCH. I know of no other Bunning Grassley Roberts of his qualifications and personal in- Burns Gregg Rockefeller speeches. tegrity, Mr. Estrada has had to wait al- Byrd Hagel Santorum Mr. REID. I do not think we have most 2 years for the Senate to com- Campbell Harkin Sarbanes anyone on our side. plete his nomination. Cantwell Hatch Schumer Mr. HATCH. Mr. President, I ask Carper Hollings Sessions Why? I must say that as far as I can Chafee Hutchison Shelby unanimous consent that these be the tell, his confirmation has been delayed Chambliss Inhofe Smith last speeches. for reasons that have absolutely noth- Clinton Inouye Snowe The PRESIDING OFFICER. Without ing to do with his qualifications or in- Cochran Johnson Specter objection, it is so ordered. Coleman Kennedy Stabenow tegrity as a judge. Instead, they have Collins Kohl Stevens The Senator from Wyoming. everything to do with partisan politics Conrad Kyl Sununu Mr. ENZI. Mr. President, I rise to and partisan bickering. Cornyn Landrieu Talent support the nomination of Miguel Craig What is most tragic about this situa- Lautenberg Thomas Crapo Leahy Estrada to the U.S. Court of Appeals tion is that these delays have not come Voinovich Daschle Levin for the Washington, DC, Circuit. We Warner without a cost. There are victims in Dayton Lieberman have a great need in our Nation for this situation who have been denied DeWine Lincoln Wyden qualified judges who have the patience, their rights to a fair and impartial ju- NOT VOTING—9 perseverance, and integrity to ensure dicial process because there are not Biden Graham (FL) Lott that the United States continues to be enough judges to hear their appeals. Corzine Jeffords McConnell a nation that is ruled by law and not The real victims of these delays are not Durbin Kerry Nickles by uncontrolled emotion; by reason Mr. Estrada or the Bush administra- The nomination was confirmed. and not by political expediency. tion or even the Republican Party. No. The PRESIDING OFFICER. Under I am confident that Mr. Estrada is The real victims are the people whose the previous order, the President will that kind of man and will be that kind rights have been set aside by partisan be notified of the Senate’s action on of judge. There is no question that Mr. bickering and whose appeals are forced the three nominations. Estrada is qualified. He has proven The Senator from Utah. to wait because we do not have enough himself through his education. He has judges. f proven himself through his work expe- There is a saying: Justice delayed is NOMINATION OF MIGUEL A. rience. And he has proven himself justice denied. There are those in ESTRADA, OF VIRGINIA, TO BE through his own perseverance, for he Washington who are willing to deny UNITED STATES CIRCUIT JUDGE has been forced to wait for almost 2 justice by making people with very FOR THE DISTRICT OF COLUM- years—2 years—for the Senate to con- real needs and very real issues wait BIA CIRCUIT—Continued sider this nomination. He has done this while they try to score a few points in Mr. HATCH. Mr. President, I ask with the kind of patience and integrity this game of politics. They force people unanimous consent that on Tuesday that befits a U.S. Federal judge. seeking justice to drag out their court there be an additional 6 hours for de- We often talk about the ideal in our costs, their attorney’s fees, their res- bate on the Estrada nomination; pro- debates in the Senate. We hold up a titution and damage payments, all be- vided further, that the time be equally picture of what things should look like cause they want to get one up on the divided between the chairman and the and how things should be done in the other party. ranking member, or their designees; hope that someday we can move our We have a crisis in our courts that and that following the conclusion of Nation forward to the point where the we can solve. Mr. Estrada is part of that time, the Senate proceed to a vote ideal is more than a dream, but is in- that solution. He was given the highest on the confirmation of the nomination, stead a reality. possible rating of unanimously well with no intervening action or debate. One of those ideals that has been pre- qualified by the American Bar Associa- Mr. REID. I object. sented is a world where our judges and tion. He has similar, if not more, expe- The PRESIDING OFFICER. Objec- our courts are more representative of rience than five of the eight judges cur- tion is heard. America. Our courts have been accused rently serving in the DC Circuit. He Mr. HATCH. Mr. President, we have of being elitist. The Bush administra- has been praised by his colleagues as had a robust debate on the nomination. tion has been working hard to change having those attributes most sought I still remain very hopeful that we will that image by making sure our judges for in a judge; namely, brilliance, com- reach a consent to have a vote on the are more diverse. By confirming passion, fairness, and a respect for nomination after some further reason- Miguel Estrada to the DC Circuit Court precedence. able period of time. I hope our col- of Appeals, we will, for the first time, It is not only my opinion that is leagues on the other side will permit a have a Hispanic judge in the DC Cir- changing. I picked up a copy of Roll vote on Miguel Estrada. I think it is cuit. But I can tell you, Mr. Estrada Call today and found a full-page ad by the right thing to do. was not nominated just because he is the Latino Coalition, which is a little Mr. REID. Will the Senator from Hispanic. He was nominated because he bit upset over the delay in getting this Utah yield? graduated magna cum laude and Phi nomination approved. They say the

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00049 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.048 S10PT1 S2114 CONGRESSIONAL RECORD — SENATE February 10, 2003 only controversy regarding Miguel eral Election Campaign Act, the DC since law school. The Justice Depart- Estrada is his race. This is an impres- Circuit is the last word, as the Su- ment has refused to let the committee sion that is being given to America. preme Court accepts relatively few see his memos from when he worked in They say Senators have supported non- cases on appeal from the circuit courts. the Solicitor General’s office, which Hispanic judicial nominees with fewer The DC Circuit is now evenly split, may or may not be revealing of his qualifications and less experience. So and has been for some time, between views. the only difference here is that they nominees of Democratic and Repub- This is where we are: we were left cannot support an independent-minded lican Presidents. There are four judges with the hearing to explore with Mr. and well-qualified Hispanic, an impres- who were appointed by Republicans Estrada directly the question of what sion that is being put out there to and four by Democrats, and there are kind of judge he would be on the D.C. America. four vacancies. In the last Congress of circuit. As a member of the Judiciary Of course, they give the arguments President Clinton’s term, he made two Committee, I attended much of that that he is qualified, that the American nominations that were never acted hearing. Mr. Estrada steadfastly re- Bar Association gave him a well-quali- upon by the Senate Judiciary Com- fused to help us get a sense of his fied rating, that he does have experi- mittee. In one case, the committee views. And his way of resisting the ence, and that there is a double stand- held a hearing but never scheduled a committee’s legitimate inquiry was, in ard for Hispanics. Five of the eight vote, and in another, the Clinton nomi- my mind, extraordinary. I have been on judges currently serving on the DC Cir- nee was not even given the courtesy of that committee for over 8 years and cuit had no previous judicial experi- a hearing. have never quite seen this. He took the ence when appointed. That includes Now we hear that President Bush is position that he could not express an two of President Clinton’s nominees: not only going to fill those two seats, opinion about a case that had already Merrick Garland, whose Justice De- but also two others that Republicans been decided by the Supreme Court un- partment record was quite similar to have argued for years did not need to less he took the time to review not that of Miguel Estrada, and David be filled at all because of the court’s only the opinion of the court, which for Tatel. In addition, Judge Harry Ed- supposedly smaller workload in com- many would be sufficient, but all the wards had no prior judicial experience parison to other circuits. I have heard briefs and the arguments of the parties, when he was nominated by President this time and again in the Judiciary and also, and I’m quoting here from Carter in 1979, and he was younger and committee, we do not need these posi- one of his answers: ‘‘[doing] all the had less experience than Estrada. tions filled. Now that there is a Repub- legwork of investigating every last They go on to talk about whether he lican Senate, suddenly they are going clue that the briefs and the arguments has a conservative ideology, and they to be filled. So this nomination be- offer up.’’ suggest you tell that to Clinton ap- comes a pivotal nomination, and this Mr. Estrada says he has to do all that pointees, prominent Democrats, and circuit could very quickly become di- just to give his reaction to a decision they mention a number of them. Again, vided 8 to 4 between Republican ap- of the Supreme Court. That is not the this is an impression that is out there pointees and Democratic appointees. type of approach I have seen most peo- in the world about what is happening Again, this is the context where Presi- ple take when being up for a nomina- right here and now. dent Clinton’s nominees were not given tion in front of the Senate Judiciary They are concerned about the com- a chance to have a vote. Committee. The result? Mr. Estrada ments they have heard that perhaps he I am disappointed that the Bush ad- gave us no evidence of the kind of is not Hispanic enough, and they are a ministration has not been willing to judge he would be. For me, given the little upset with that. They listed a extend an olive branch on this circuit importance of his circuit and the his- number of organizations that are back- in particular. There are enough vacan- tory of appointments to this circuit, ing him and are getting the message cies to accommodate both of the pend- that is a big problem. The Senate has a out that here is a person who is well ing nominees and the two nominations right to complete and responsive an- qualified and that there is a belief that by President Clinton who were treated swers to its questions before con- there is some discrimination occurring. so badly in the 107th Congress. But firming someone to a life term on such I hope we can get this rapidly con- that does not seem likely to happen. an important court. cluded and get this outstanding man on It is worth mentioning as well that In a few areas, we have something to the bench. seats on the DC Circuit have also in re- go on because Mr. Estrada undertook The PRESIDING OFFICER. Under cent years served as springboards for pro bono representation of a group the previous order, the Senator from the Supreme Court. Three of the cur- called the Center for Community Inter- Wisconsin is recognized for 12 minutes. rent nine justices on the Supreme est on whose board he served. Unfortu- Mr. FEINGOLD. Mr. President, I op- Court, Justices Scalia, Ginsburg, and nately, even though this is one of the pose the nomination of Miguel Estrada. Thomas, first sat on the DC Circuit. few pieces of information we have, I Let me take a few minutes to explain Many commentators and activists, was not reassured by what I learned. why. on the right and the left, believe that Mr. Estrada not only defended an anti- First, I want to discuss the back- Mr. Estrada is being groomed for a Su- loitering statute ultimately struck ground of this nomination, which I preme Court appointment. down by the Supreme Court, but on a think is an important factor for the For all of these reasons, I believe it is radio program he took a very aggres- Senator to consider. The DC Circuit, to our duty to give this nomination very sive stance in dismissing the argu- which Mr. Estrada has been nominated, close scrutiny. Unfortunately, Mr. ments made against the statute. He as many people have said, is widely re- Estrada has not made this task easy. In even went so far as to suggest there garded as the most important Federal fact, by failing to answer questions at was something improper about the fact circuit. It has jurisdiction over the ac- his hearing candidly and completely, that this legal challenge had been tions of most Federal agencies. Many he has made it even more difficult. Un- brought, and that attitude carried over of the highest profile cases that have like many of the circuit court nomi- in his arguments in a challenge to an- been decided in recent years by the Su- nees that the Judiciary Committee has other anti-loitering ordinance, which preme Court concerning regulation of reviewed so far, Mr. Estrada is not a Mr. Estrada argued that the NAACP economic activity by Federal agencies judge on a lower court, with a record of did not have standing to challenge the in areas such as the environment, judicial opinions that we can review to law. health and safety regulation, and labor get an idea of his views and his judicial I was also not satisfied with Mr. law, went first to the DC Circuit. In the philosophy for this lifetime appoint- Estrada’s answers to questions con- area of administrative law and the in- ment. Unlike some of the other nomi- cerning his role in helping to screen terpretation of the major regulatory nees we have seen, he is not a law pro- law clerk applicants for Justice An- statutes such as the Clean Air Act, the fessor, with extensive written work thony Kennedy of the Supreme Court. Clean Water Act, the Occupational that we can review and about which we Allegations have been made that Mr. Safety and Health Act, the National can ask questions. He is a private at- Estrada saw himself as an ideological Labor Relations Act, and even the Fed- torney, with no published writings gatekeeper of sorts, with the task of

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00050 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.106 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2115 making sure no one was too liberal for back and forth over his body, ulti- That means farmers who were hurt by his tastes to be a clerk for the Justice. mately killing him. The attackers were trade last year will not be able to get After first asserting the comments as- known to describe Warren using racial the assistance to which they are enti- cribed to him were meant as a joke, epithets and antigay slurs. tled under the law. That is just not Mr. Estrada then gave very careful I believe that government’s first duty right. lawyerly answers to follow-up ques- is to defend its citizens, to defend them Year in and year out, agriculture is tions. against the harms that come out of one of the few bright spots in our inter- I cannot say for certain that he was hate. The Local Law Enforcement En- national trade picture. At a time when untruthful. I am not saying that. But hancement Act is a symbol that can we are running $400 billion annual he certainly was not forthcoming. And become substance. I believe that by trade deficits, agriculture is one of the this is the pattern throughout the passing this legislation and changing few sectors to show a trade surplus. process of trying to examine this nomi- current law, we can change hearts and Yet too often in trade negotiations our nation of Mr. Estrada. minds as well. agricultural interests have been traded Both to this area and in answers to f away to get agreement in other areas. questions concerning specific decisions And the results can be devastating. TRADE ADJUSTMENT ASSISTANCE of the courts or legal principles, I For example, in North Dakota we LEGISLATION FOR FARMERS think the Senate has the right and have had a bitter experience with the duty to demand more openness and re- Mr. CONRAD. Mr. President, I want Canadian Free Trade Agreement. As a sponsiveness from someone whose pub- to take a few minutes today to express result of defects in that agreement, lic record is so thin and who has been my concern about yet another imple- North Dakota wheat and barley grow- nominated for such an important judi- mentation foulup at the Department of ers have been subjected to a flood of cial position. Agriculture. Over the past several unfairly traded Canadian imports, cost- Let me be clear, I very much want to months, many colleagues and I have ing our farmers hundreds of millions of be fair about something such as this. I been extremely disappointed to find dollars in lower prices and lost sales. probably would vote to confirm Miguel that USDA has deliberately ignored Not surprisingly, support for trade ex- Estrada to a Federal district court congressional intent in implementing pansion out in farm country, where it judgeship. He has a distinguished aca- the farm bill. Today, I want to point ought to be stronger than anywhere demic and employment record. But for out to my colleagues that this pattern else, has slipped dramatically. My TAA this crucial seat on this crucial court, is not limited to the farm bill. for Farmers legislation is designed to we need to be confident that a nomi- Six months ago, we enacted com- create a safety net to help farmers in nee, if confirmed, will be fair, impar- prehensive trade legislation that gave this circumstance. My hope is that this tial, and not devoted to advancing an the President trade promotion author- legislation will also help rebuild sup- ideological agenda. ity. In return for this authority, the port for trade agreements than can in- Based on the record before us, I do President embraced an expansion of crease our agricultural imports. not have that confidence in Mr. the Trade Adjustment Assistance pro- But that certainly won’t happen if Estrada. I must, therefore, reluctantly gram to help those who suffer ill ef- Secretary Veneman and the USDA ig- oppose his nomination. fects as a result of trade agreements. I nore the law and fail to implement the I yield the floor. was extremely pleased that this expan- program. So I want to put the Sec- sion of Trade Adjustment Assistance retary on notice that, while I cannot f included legislation I authorized to say I am surprised that she has once LEGISLATIVE SESSION make the TAA program work for farm- again failed to come through for farm- ers. ers, I am certainly disappointed. And I Mr. ENZI. Mr. President, I ask unani- When a trade agreement causes man- mous consent that the Senate now re- will be watching very closely to make ufactured imports to increase, and sure that the timetable does not slip turn to legislative session. plants close and workers lose their The PRESIDING OFFICER. Without again and that the final rule is con- jobs, the workers are eligible for cash sistent with congressional intent. objection, it is so ordered. benefits and retraining under TAA so f f that they can adjust to this dislocation BLACK HISTORY MONTH MORNING BUSINESS and find new work. But when a trade agreement or change in our trade pol- Mr. KOHL. Mr. President, I rise Mr. ENZI. Mr. President, I ask unani- icy results in a flood of agricultural today to commemorate the observance mous consent that the Senate now pro- imports that collapse prices and cost of Black History Month. ceed to a period for morning business. farmers tens of thousands of dollars in Dr. Carter Godwin Woodson launched The PRESIDING OFFICER. Without the lost income, farmers could not ‘‘Negro History Week’’ in 1926 to objection, it is so ordered. qualify for assistance because the pro- counter widespread ignorance and dis- f gram requires that you lose your job. tortion about the history of African Farmers don’t lose their jobs. They Americans in the United States. In LOCAL LAW ENFORCEMENT ACT still bring in the harvest. But when 1976, the week was expanded to a OF 2001 prices collapse, they can end up losing month and renamed ‘‘Black History Mr. SMITH. Mr. President, I rise a lot more than income than the manu- Month.’’ February was chosen because today to speak about the need for hate facturing worker who does lose a job. many key dates in black history occur crimes legislation. In the last Congress That is unfair, and it is wrong. in that month: the birthdays of Senator KENNEDY and I introduced the My TAA for Farmers legislation Fredrick Douglass, W.E.B. Dubouis, Local Law Enforcement Act, a bill that would fix it to make sure farmers can Langston Hughes, and Abraham Lin- would add new categories to current receive assistance when trade causes coln; the founding of the NAACP; the hate crimes law, sending a signal that their prices and incomes to collapse. swearing in of the first African Amer- violence of any kind is unacceptable in The law we passed last year directed ican Senator, the Honorable Hiram our society. USDA to get this program up and run- Revels; and passage of the 15th amend- I would like to describe a terrible ning by February 3—this past Monday. ment to the Constitution proclaiming crime that occurred July 4, 2000, in But just a few days ago, without any the right of U.S. citizens to vote re- Grant Town, WV. Arthur ‘‘J.R.’’ Carl prior warning, USDA informed me that gardless of race, color, or previous con- Warren, Jr., 26, an openly gay African- Secretary Veneman and her top depu- dition of servitude. American man, was brutally murdered. ties had ignored the law. They never African-Americans are responsible The two 17-year-old boys who killed bothered to direct anyone to write the for rich contributions to the State of Warren beat him and repeatedly kicked rules to implement TAA for Farmers. Wisconsin as well as the entire Nation. him with steel-toed boots. They threw USDA is only now getting started on I would like to encourage all Wisconsin him in a car and drove across town this project, and it will take at least 6 residents to honor Black History where they beat him further and drove months before the rules are in place. Month by utilizing local resources such

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00051 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.108 S10PT1 S2116 CONGRESSIONAL RECORD — SENATE February 10, 2003 as America’s Black Holocaust Museum and financial base. During Dr. Harvey’s lows those in the race to see the boun- in Milwaukee, the Wisconsin Black tenure as President, the student enroll- tiful beauties of New Mexico, from our Historical Society, and the Milwaukee ment at Hampton University has in- pristine deserts to our snow-covered Art Museum. In addition, numerous creased from approximately 2,700 stu- mountains. sites around the State commemorate dents to over 6,000. Moreover, the SAT The race, which starts out with a 13- Underground Railroad activity in Wis- scores of entering freshmen have in- mile bike ride, begins in the desert; as consin including the Milton House Mu- creased approximately 300 points. His the competition continues up Mount seum. These sites, as well as your local commitment to expansion and innova- Taylor, the athletes are able to see 100 library, are wonderful resources for tion in academic programs has resulted miles from horizon to horizon on a learning more about the invaluable in 45 new academic programs. These clear day and are given the oppor- contributions of African-American new programs, together with existing tunity to appreciate why New Mexico teachers, writers, artists, healers, free- ones, have placed and kept Hampton on is indeed the Land of Enchantment. dom fighters, farmers, businessmen and the cutting edge of higher education. I applaud Grants for being innovative women, and families to the history of Dr. Harvey has long been active on in not only promoting tourism, but our Nation. the national scene as a result of his ap- also by encouraging healthy lifestyles Many Wisconsin colleges and univer- pointments to national boards by four throughout their community and the sities are celebrating African-Amer- United States presidents. He has served world. The Quadrathlon, which solicits ican contributions and heritage this on the President’s National Advisory participants from New Mexico and February as well. For example, the Council on Elementary and Secondary across the globe, has improved the University of Wisconsin-Stevens Point Education, the Defense Advisory Com- lives of many New Mexicans by giving is holding the annual Soul Food Dinner mittee on Women in the Service, the them healthy goals for which to strive. and Gospel Festival. The University of Fund for the Improvement of Postsec- Grants has fostered a world renowned Wisconsin-Superior will be hosting a ondary Education, the Commission on event by promoting the Quadrathlon visit from author Bakari Kitwana, and Presidential Scholars, the President’s for the past 20 years. I am proud to rec- the Association of Students of African Advisory Board on Historically Black ognize Grants and the surrounding Descent will sponsor performances of Colleges, and the U.S. Department of community for continually supporting African American readings, poetry, and Commerce Minority Economic Devel- such a beneficial event. On behalf of music. At the University of Wisconsin- opment Advisory Board. Currently, Dr. the Senate and the State of New Mex- Madison, the Wisconsin Black Student Harvey serves as a board member of ico, I thank these special New Mexi- Union is sponsoring lectures and movie the First Union National Bank (Mid- cans for making a difference in our showings. Atlantic Division—South Carolina, lives.∑ As stimulating as all this activity in North Carolina, Tennessee, Virginia, f February is, however, we should not Washington, D.C., and Maryland); New- RECOGNIZING LARRY LAYMAN relegate the study of black history to port News Shipbuilding, Inc., and just this 1 month. February should be, Trigon Blue Cross Blue Shield of Vir- ∑ Mr. ALLEN. Mr. President, today I and remain a starting point for a year ginia. recognize Larry Layman, a Halifax long and life long exploration of the His achievements have been recog- area forester, who retired on January rich and varied contributions of our Af- nized through inclusion in Personal- 1, 2003, ending a 30-year career of serv- rican-American communities. ities of the South, Who’s Who in the ice to the Virginia Department of For- estry. f South and Southwest, Who’s Who in Black America, Who’s Who in Amer- Larry Layman graduated from Vir- ADDITIONAL STATEMENTS ican Education, International Who’s ginia Tech with a Forestry and Wildlife Who of Intellectuals, Two Thousand degree in 1973 and began his career with the Virginia Department of For- RECOGNIZING DR. WILLIAM R. Notable Americans, Who’s Who in Busi- estry as a forester in the Farmville Re- HARVEY ness and Finance, and Who’s Who in America. gional Office. On August 1, 1974, he was ∑ Mr. ALLEN. Mr. President, today I I congratulate Dr. Harvey on his ac- promoted to Halifax County Area For- recognize Dr. William R. Harvey as he complishments and wish him continued ester. celebrates his 25th year as the Presi- success.∑ Mr. Layman has spent countless dent of Hampton University. f hours providing forest management ad- A native of Brewton, AL, he is a vice, supervising planting crews, sup- graduate of Southern Normal High THE ULTIMATE CHALLENGE pressing forest fires, working with School and Talladega College. After ∑ Mr. DOMENICI. Mr. President, I rise crews in the application of herbicides graduating from Talladega College, Dr. today in recognition of Grants, NM, and marking pine stands to be thinned. Harvey served 3 years on active duty and the 20th Annual Mount Taylor His ability to communicate proper for- with the United States Army. During Winter Quadrathlon. ‘‘The Ultimate est resource management practices to that time, he served in Europe and the Challenge’’ is a great program that en- forest landowners has resulted in United States. He is currently a lieu- courages tourism and health in New greatly improved forest resources in tenant colonel in the Army Reserve. He Mexico. the county. earned his doctorate in college admin- I commend the people of Grants and I congratulate Mr. Layman on his istration from Harvard University in Cibola County for their initiative to years of dedicated service to the people 1972. Prior to assuming his current po- promote tourism in New Mexico of Halifax County and the Common- sition, he served as administrative vice through conducting the world-re- wealth of Virginia and wish him well in president at Tuskegee University; ad- nowned Mount Taylor Winter his retirement.∑ ministrative assistant to the president Quadrathlon. ‘‘The Ultimate Chal- f of Fisk University; and as assistant for lenge’’ is an innovative program which governmental affairs to the dean of the has adapted the traditional Triathlon RECOGNIZING THE GAZETTE- Graduate School of Education at Har- to the varying terrain of Grants and VIRGINIAN vard University. the surrounding area. Instead of being ∑ Mr. ALLEN. Mr. President, today I President of Hampton University a traditional Triathlon, which includes recognize the Gazette-Virginian news- since 1978, Dr. William R. Harvey has biking, running, and swimming, con- paper in South Boston, Virginia, as it introduced innovations that have so- testants have the opportunity to bike, celebrates its 100th birthday. lidified Hampton University’s stellar run, ski and snow-shoe. The Gazette-Virginian is Virginia’s position among the Nation’s colleges The Quadrathlon begins in Grants at ninth largest nondaily newspaper. Its and universities. His innovative leader- 6,500 feet and continues all the way up predecessor, the South Boston Times, ship is reflected in the growth and Mount Taylor to an elevation of 11,301 began publication over 114 years ago as quality of the University’s students, feet, and concludes with a return trek a weekly newspaper serving the South academic programs, physical facilities to Grants. This multi-sport event al- Boston area of Virginia. In 1903, the

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00052 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.085 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2117 name was changed to the Halifax-Ga- from the President of the United velop better ways to train workers for zette. Since that time, the paper has States, together with an accompanying new jobs. We will make the Nation’s continued to grow to meet the needs of report; which was referred to the Joint regulations and tax code less onerous the area. Economic Committee: and more reflective of the demands of a Acquired by the Shelton Family par- ECONOMIC REPORT OF THE PRESIDENT dynamic economy, and expand opportu- tially in 1946 and then wholly in 1958, To the Congress of the United States: nities for open trade and stronger the paper has flourished under their The economy is recovering from the growth in all nations, especially for leadership. O. Lynn Shelton served as effects of the slowdown that began in emerging and developing economies. editor of the paper and was succeeded the middle of 2000 and led to the subse- Our Nation’s economic progress in this position by his son, Keith quent recession. The American econ- comes from the innovation and hard Shelton. omy has been hit hard by the events of work of Americans in a free market In 1963, the Halifax-Gazette became the past three years, most tragically that creates opportunities no other the Gazette-Virginian and began publi- by the effects of the terrorist attacks system can offer. Government does not cation twice weekly. In 1998, the Ga- of September 11, 2001. Our economy and create wealth, but instead creates the zette-Virginian went on-line, offering investor confidence were hurt when we economic environment in which risk its readers a new avenue of commu- learned that some corporate leaders takers and entrepreneurs create jobs. nication. Today, the Gazette-Virginian were not playing by the rules. The with the right policies focused on employs 21 dedicated, full-time em- combined impact of these events, along growth and jobs, strong economic fun- ployees and boasts a circulation of with the three-year decline in stock damentals—and hard work—I am con- 11,500, making it the most subscribed values that impacted business invest- fident we will extend economic oppor- to paper in Halifax County. ment, slowed growth in 2002. Despite tunity and prosperity to every corner I congratulate the Gazette-Virginian these challenges, the economy’s under- of America. on its success and wish it many pros- lying fundamentals remain solid—in- GEORGE W. BUSH. perous years of outstanding news cov- cluding low inflation, low interest THE WHITE HOUSE, February 2003. erage to come.∑ rates, and strong productivity gains. f f Yet the pace of the expansion has not EXECUTIVE AND OTHER CELEBRATING BAILEY’S U.S. POST been satisfactory; there are still too COMMUNICATIONS OFFICE’S CENTENNIAL many Americans looking for jobs. We will not be satisfied until every part of ∑ Mr. LOTT. Mr. President, I take this The following communications were opportunity to recognize the U.S. Post our economy is vigorous and every per- laid before the Senate, together with Office in Bailey, MS, as it celebrates son who wants a job can find one. accompanying papers, reports, and doc- We are taking action to restore the its 100th year of existence. The Bailey uments, which were referred as indi- robust growth that creates jobs. In Post Office began its service in Decem- cated: January, I proposed a growth and jobs ber of the year 1902, when John A. Bai- EC–1020. A communication from the Assist- plan to add needed momentum to our ley was appointed as the first local ant Secretary of Legislative Affairs, Depart- economic recovery. We will accelerate postmaster by Henry C. Payne, the ment of State, transmitting, pursuant to the the tax relief already approved by Con- Arms Export Control Act, the report of a Postmaster General of the United gress and give it to Americans now, certification regarding the proposed transfer States. The Bailey Post Office was of major defense equipment valued at opened in the already existing struc- when it is most needed. Lowering tax rates and moving more Americans into 14,000,000 or more to Israel; to the Committee ture of the Bailey Grocery and has on Foreign Relations. been serving the Bailey community the lowest tax bracket will help our EC–1021. A communication from the Dep- ever since. economy grow and create jobs. Faster uty Secretary, Division of Corporate Fi- Since its inception in 1902, the Bailey marriage tax relief and a faster in- nance, Securities and Exchange Commission, Post Office has reliably served the peo- crease in the child tax credit will espe- transmitting, pursuant to law, the report of ple of the city of Bailey and the sur- cially help middle-class families, and a rule entitled ‘‘Disclosure in Management’s rounding area and currently has two should take effect now. We will take Discussion and Analysis about Off-Balance Sheet Arrangements and Aggregate Contrac- mail routes that cover 700 families in steps to encourage small business in- vestment, helping them to expand and tual Obligations (3235–AI70)’’ received on the Bailey community. Such longevity January, 29, 2003; to the Committee on Bank- can be attributed to the character and create jobs. We will end the unfair dou- ing, Housing, and Urban Affairs. work ethic that Bailey Post Office em- ble taxation of corporate income re- EC–1022. A communication from the Dep- ployees have exhibited over the years, ceived by individuals. By putting more uty Secretary, Division of Investment Man- but more than that, it is a tribute to money back in the hands of share- agement, Securities and Exchange Commis- the small town values present in a holders, strengthening investor con- sion, transmitting, pursuant to law, the re- place such as Bailey. The fact that fidence in the market, and encouraging port of a rule entitled ‘‘Proxy Voting By In- Leon Bailey, the grandson of the first more investment, we will have more vestment Advisers (3235–AI65)’’ received on growth and job creation. These steps February, 1, 2003; to the Committee on Bank- ever Postmaster General in Bailey, ing, Housing, and Urban Affairs. still lives in Bailey speaks volumes will allow Americans to keep more of EC–1023. A communication from the Dep- about the tightly knit community the their own money to spend, save, or in- uty Secretary, Division of Investment Man- people of Bailey enjoy. During the re- vest. They will boost the economy, en- agement, Securities and Exchange Commis- cent centennial celebration, more than sure that the recovery continues, and sion, transmitting, pursuant to law, the re- 300 members of the community gath- provide long-term economic benefits port of a rule entitled ‘‘Disclosure of Proxy ered to commemorate the occasion. through higher productivity and higher Voting Policies and Proxy Voting Records by Such a sense of community is rare in incomes. Registered Management Investment today’s world, and as such it should be As our economy recovers, we also (RIN3235–AI64)’’ received on January, 29, have an obligation to help Americans 2003; to the Committee on Banking, Housing, commended. That is why I felt the need and Urban Affairs. to pay tribute to the current and past who have lost their jobs. That is why EC–1024. A communication from the Acting workers of the Bailey Post Office as we extended the unemployment pay- Deputy Associate Administrator, Environ- well as the current and past members ments for workers who lost their jobs mental Protection Agency, transmitting, of the community.∑ and improved incentives for invest- pursuant to law, the report of a rule entitled ‘‘Approval and Promulgation of Air Quality f ment to create new jobs. I also pro- posed a bold new program of reemploy- Implementation Plans; Alabama Update to ECONOMIC REPORT OF THE PRESI- ment accounts to help workers search- Materials Incorporated by Reference (FRL DENT DATED FEBRUARY 2003 ing for jobs. 7444–7)’’ received on January 31, 2003; to the WITH THE ANNUAL REPORT OF Our commitment to a strong econ- Committee on Environment and Public Works. THE COUNCIL OF ECONOMIC AD- omy does not stop with these impor- VISERS FOR 2003—PM 14 EC–1025. A communication from the Acting tant steps. We will continue to Deputy Associate Administrator, Environ- The PRESIDING OFFICER laid be- strengthen investor confidence in the mental Protection Agency, transmitting, fore the Senate the following message integrity of our markets. We will de- pursuant to law, the report of a rule entitled

VerDate Dec 13 2002 02:17 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00053 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.089 S10PT1 S2118 CONGRESSIONAL RECORD — SENATE February 10, 2003 ‘‘Revisions to the California State Imple- Committee on Environment and Public ting, pursuant to law, the report of a rule en- mentation Plan, Imperial County Air Pollu- Works. titled ‘‘Thiophanate Methy; Pesticide Toler- tion Control District and Montery Bay Uni- EC–1035. A communication from the Chair- ance for Emergency Exemption (FRL 7285– fied Air Pollution Control District (FRL man and President, Export-Import Bank of 9)’’ received on January 31, 2003; to the Com- 7441–5)’’ received on January 31, 2003; to the the United States, transmitting, pursuant to mittee on Agriculture, Nutrition, and For- Committee on Environment and Public law, the report relative to transactions in- estry. Works. volving U.S. Exports to Pakistan; to the EC–1046. A communication from the Acting EC–1026. A communication from the Acting Committee on Banking, Housing, and Urban Principle Deputy Associate Administrator, Deputy Associate Administrator, Environ- Affairs. Environmental Protection Agency, transmit- mental Protection Agency, transmitting, EC–1036. A communication from the Presi- ting, pursuant to law, the report of a rule en- pursuant to law, the report of a rule entitled dent of the United States, transmitting, pur- titled ‘‘Cyprodinil; Pesticide Tolerance (FRL ‘‘Interim Final Determination to Stay and/or suant to law, a report relative to the con- 7289–7)’’ received on January 31, 2003; to the Defer Sanctions, Imperial County Air Pollu- tinuation of the national emergency with re- Committee on Agriculture, Nutrition, and tion Control District (FRL 7441–7)’’ received spect to Sierra Leone and Liberia to extend Forestry. on January 31, 2003; to the Committee on En- beyond January 18, 2003; to the Committee EC–1047. A communication from the Execu- vironment and Public Works. on Banking, Housing, and Urban Affairs. tive Director, Commodity Futures Trading EC–1027. A communication from the Acting EC–1037. A communication from the Presi- Commission, transmitting, pursuant to law, Deputy Associate Administrator, Environ- dent of the United States, transmitting, pur- the Federal Managers’ Financial Integrity mental Protection Agency, transmitting, suant to law, the 6-month periodic report on Act, 2002 Report; to the Committee on Agri- culture, Nutrition, and Forestry. pursuant to law, the report of a rule entitled the National Emergency with respect to Si- EC–1048. A communication from the Ad- erra Leone and Liberia that was declared in ‘‘Determination of Nonattainment as of No- ministrator, Food Safety and Inspection Executive Order 13194 of January 18, 2001 and vember 15, 1996, and Reclassification of the Service, transmitting, pursuant to law, the St. Louis Ozone Nonattainment Area; States expanded in scope in Executive Order 13213 of report of a rule entitled ‘‘Termination of of Missouri and Illinois (FRL 7444–4)’’ re- May 22, 2001; to the Committee on Banking, Designation of the State of Missouri With ceived on January 27, 2003; to the Committee Housing, and Urban Affairs. Respect to the Inspection of Meat and Meat on Environment and Public Works. EC–1038. A communication from the Mili- Food Products and Poultry and Poultry EC–1028. A communication from the Acting tary Health System, Department of Defense, Food Products (Doc. No. 00–052F)’’ received Deputy Associate Administrator, Environ- transmitting, pursuant to law, the report on January 27, 2003; to the Committee on Ag- mental Protection Agency, transmitting, relative to evaluation of the feasibility and riculture, Nutrition, and Forestry. pursuant to law, the report of a rule entitled practicability of using telecommunications EC–1049. A communication from the Acting ‘‘Approval and Promulgation of Air Quality to provide health care services and pharmacy Director of Human Resource Management, Implementation Plans; State of Colorado services; to the Committee on Armed Serv- Department of Energy, transmitting, pursu- (FRL 7443–8)’’ received on January 27, 2003; to ices. ant to law, the report of a nomination con- the Committee on Environment and Public EC–1039. A communication from the Sec- firmed for the position of Deputy Secretary, Works. retary of the Army, transmitting, pursuant Department of Energy, received on January EC–1029. A communication from the Acting to law, the report relative to a cost breach 10, 2003; to the Committee on Energy and Deputy Associate Administrator, Environ- for both the Program Acquisition Unit Cost Natural Resources. mental Protection Agency, transmitting, (PAUC) and Average Procurement Unit Cost EC–1050. A communication from the Gen- pursuant to law, the report of a rule entitled (APUC) thresholds for the Comanche Pro- eral Counsel, Federal Energy Regulatory ‘‘Approval and Promulgation of State Plan gram; to the Committee on Armed Services. Commission, transmitting, pursuant to law, for Designated Facilities and Pollutants: EC–1040. A communication from the Con- the report of a rule entitled ‘‘Accounting and Alabama (FRL 7444–9)’’ received on January gressional Review Coordinator, Animal and Reporting of Financial Instruments, Com- 27, 2003; to the Committee on Environment Plant Health Inspection Service, Department prehensive Income, Derivatives and Hedging and Public Works. of Agriculture, transmitting, pursuant to Activities Final Rule’’ received on January EC–1030. A communication from the Acting law, the report of a rule entitled ‘‘Exotic 28, 2003; to the Committee on Energy and Deputy Associate Administrator, Environ- Newcastle Disease; Additions to Quarantined Natural Resources. mental Protection Agency, transmitting, Area (Doc. No. 02–117–3)’’ received on Janu- EC–1051. A communication from the Chief, pursuant to law, the report of a rule entitled ary 29, 2003; to the Committee on Agri- Regulations Unit, Internal Revenue Service, ‘‘Approval and Promulgation of State Plans culture, Nutrition, and Forestry. Department of the Treasury, transmitting, For Designated Facilities and Pollutants: EC–1041. A communication from the Con- pursuant to law, the report of a rule entitled New Hampshire; Plan for Controlling MWC gressional Review Coordinator, Animal and ‘‘Annual update of list of areas in which the Emissions From Existing Municipal Waste Plant Health Inspection Service, Department IRS will not issue ruling (Rev. Proc. 2003–3)’’ Combustors (FRL 7447–7)’’ received on Janu- of Agriculture, transmitting, pursuant to received on January 28, 2003; to the Com- ary 31, 2003; to the Committee on Environ- law, the report of a rule entitled ‘‘AQI User mittee on Finance. EC–1052. A communication from the Chief, ment and Public Works. Fees: Extension of Current Fees Beyond Fis- EC–1031. A communication from the Acting cal Year 2002 (Doc. No. 02–085–2)’’ received on Regulations Unit, Internal Revenue Service, Department of the Treasury, transmitting, Deputy Associate Administrator, Environ- January 29, 2003; to the Committee on Agri- pursuant to law, the report of a rule entitled mental Protection Agency, transmitting, culture, Nutrition, and Forestry. ‘‘Taxpayer Identification Number (RIN 1545– pursuant to law, the report of a rule entitled EC–1042. A communication from the Con- BB88)’’ received on January 31, 2003; to the ‘‘Approval and Promulgation of Air Quality gressional Review Coordinator, Animal and Committee on Finance. Implementation Plans; Maryland: Amend- Plant Health Inspection Service, Department EC–1053. A communication from the Chief, ments to Volatile Organic Compound Re- of Agriculture, transmitting, pursuant to Regulations Unit, Internal Revenue Service, quirements from Specific Processes (FRL law, the report of a rule entitled ‘‘Mexican Department of the Treasury, transmitting, 7437–7)’’ received on January 31, 2003; to the Fruit Fly; Addition of Regulated Area (Doc. pursuant to law, the report of a rule entitled Committee on Environment and Public No. 02–121–2)’’ received on January 29, 2003; to ‘‘Guidance Regarding the Definition of For- Works. the Committee on Agriculture, Nutrition, eign Personal Holding Company Income EC–1032. A communication from the Acting and Forestry. (RIN1545–BA33)’’ received on January 31, Deputy Associate Administrator, Environ- EC–1043. A communication from the Acting 2003; to the Committee on Finance. mental Protection Agency, transmitting, Principle Deputy Associate Administrator, EC–1054. A communication from the Chief, pursuant to law, the report of a document Environmental Protection Agency, transmit- Regulations Unit, Internal Revenue Service, entitled ‘‘Assessing and Monitoring Float- ting, pursuant to law, the report of a rule en- Department of the Treasury, transmitting, able Debris’’ received on January 27, 2003; to titled ‘‘Polycholrinated Biphenyls; Manufac- pursuant to law, the report of a rule entitled the Committee on Environment and Public turing (Import) Exemptions (FRL 7288–6)’’ ‘‘Information Reporting and Backup With- Works. received on January 27, 2003; to the Com- holding for Payment Card Transactions EC–1033. A communication from the Acting mittee on Agriculture, Nutrition, and For- (1545–BA17)’’ received on January 31, 2003; to Deputy Associate Administrator, Environ- estry. the Committee on Finance. mental Protection Agency, transmitting, EC–1044. A communication from the Acting EC–1055. A communication from the Chief, pursuant to law, the report of a document Principle Deputy Associate Administrator, Regulations Unit, Internal Revenue Service, entitled ‘‘National Recommended Water Environmental Protection Agency, transmit- Department of the Treasury, transmitting, Quality Criteria; 2002’’ received on January ting, pursuant to law, the report of a rule en- pursuant to law, the report of a rule entitled 27, 2003; to the Committee on Environment titled ‘‘6-Benzylandenine; Temporary Ex- ‘‘Guidance Necessary to Facilitate Elec- and Public Works. emption From the Requirement of a Toler- tronics Tax Administration (1545–AY56)’’ re- EC–1034. A communication from the Acting ance (FRL 7287–2)’’ received on January 31, ceived on January 31, 2003; to the Committee Deputy Associate Administrator, Environ- 2003; to the Committee on Agriculture, Nu- on Finance. mental Protection Agency, transmitting, trition, and Forestry. EC–1056. A communication from the Direc- pursuant to law, the report of a document EC–1045. A communication from the Acting tor, Regulations and Forms Services, Immi- entitled ‘‘Office of Water Quality Trading Principle Deputy Associate Administrator, gration and Naturalization Service, Depart- Policy’’ received on January 27, 2003; to the Environmental Protection Agency, transmit- ment of Justice, transmitting, pursuant to

VerDate Dec 13 2002 02:22 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00054 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.053 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2119 law, the report of a rule entitled ‘‘Removal ern Pacific; Coastal Pelagic Species Fish- By Mr. LUGAR: of Visa and Passport Waiver for Certain Per- eries; Annual Specifications; Pacific Sardine S. Res. 50. An original resolution author- manent Residents of Canada and Bermuda Fishery (0648–AP88)’’ received on January 21, izing expenditures by the Committee on For- (1115–AG68) (INS no. 2202–02)’’ received on 2003; to the Committee on Commerce, eign Relations; from the Committee on For- February 4, 2002; to the Committee on the Science, and Transportation. eign Relations; to the Committee on Rules Judiciary. EC–1067. A communication from the Sec- and Administration. EC–1057. A communication from the Direc- retary of Transportation, transmitting, pur- f tor, Regulations and Forms Services, Immi- suant to law, the report relative to the noti- gration and Naturalization Service, Depart- fication of two critical military skills identi- ADDITIONAL COSPONSORS ment of Justice, transmitting, pursuant to fied for the purpose of authorizing a reten- law, the report of a rule entitled ‘‘Adjust- tion bonus; to the Committee on Commerce, S. 6 ment of Immigration Benefit Fees (1115– Science, and Transportation. At the request of Mr. NELSON of Flor- AG96) (INS no. 2257–03)’’ received on January ida, his name was added as a cosponsor f 27, 2003; to the Committee on the Judiciary. of S. 6, a bill to enhance homeland se- EC–1058. A communication from the Dep- REPORTS OF COMMITTEES curity and for other purposes. uty Assistant Attorney General, Department of Justice, transmitting, pursuant to law, The following reports of committees S. 16 the report of a rule entitled ‘‘Establishment were submitted: At the request of Mr. NELSON of Flor- of Minimum Safety and Security Standards By Mr. LUGAR, without amendment: ida, his name was added as a cosponsor for Private Companies that Transport Vio- S. Res. 50. An original resolution author- of S. 16, a bill to protect the civil lent Prisoners (1105–AA77)’’ received on Jan- izing expenditures by the Committee on For- rights of all Americans, and for other uary 27, 2003; to the Committee on the Judi- eign Relations. purposes. ciary. EC–1059. A communication from the Chair, f S. 56 United States Sentencing Commission, INTRODUCTION OF BILLS AND At the request of Mr. JOHNSON, the transmitting, pursuant to law, the report en- JOINT RESOLUTIONS name of the Senator from Louisiana titled ‘‘Increased Penalties Under The Sar- (Ms. LANDRIEU) was added as a cospon- banes-Oxley Act of 2002’’; to the Committee The following bills and joint resolu- sor of S. 56, a bill to restore health care on the Judiciary. tions were introduced, read the first EC–1060. A communication from the Assist- coverage to retired members of the and second times by unanimous con- uniformed services. ant Secretary, Pension and Welfare Benefits sent, and referred as indicated: Administration, Department of Labor, trans- S. 92 By Mr. BREAUX (for himself, Mr. mitting, pursuant to law, the report of a rule At the request of Mrs. LINCOLN, the HATCH, Mr. BAUCUS, Mr. BOND, Mr. entitled ‘‘Final Rule Relating to Civil Pen- name of the Senator from Kansas (Mr. alties Under ERISA Section 502(c)(7) and BURNS, Ms. COLLINS, Mr. HARKIN, Mr. ROBERTS) was added as a cosponsor of Conforming Technical Changes On Civil Pen- KOHL, Ms. LANDRIEU, Mrs. LINCOLN, alties Under ERISA Sections 502(c)(2), Mr. NELSON of Florida, Mr. ROCKE- S. 92, a bill to accelerate and make per- 502(c)(5), and 502(c)(6) (1210–AA91)(1210– FELLER, Mr. SANTORUM, Mr. SMITH, manent the child tax credit. Mr. JEFFORDS, Mr. MILLER, and Ms. AA93)’’ received on January 27, 2003; to the S. 141 Committee on Health, Education, Labor, and STABENOW): S. 333. A bill to promote elder justice, and At the request of Mr. KERRY, the Pensions. name of the Senator from Connecticut EC–1061. A communication from the Under for other purposes; to the Committee on Fi- (Mr. LIEBERMAN) was added as a co- Secretary of Defense, Personnel and Readi- nance. ness, Department of Defense, transmitting, By Ms. LANDRIEU: sponsor of S. 141, a bill to improve the pursuant to law, the report of the annual S. 334. A bill to amend title 38, United calculation of the Federal subsidy rate audit and report of the Activities of the States Code, to provide eligibility for astro- with respect to certain small business American Red Cross; to the Committee on nauts for Servicemembers’ Group Life Insur- loans, and for other purposes. ance; to the Committee on Veterans’ Affairs. Health, Education, Labor, and Pensions. S. 150 EC–1062. A communication from the Con- By Mr. JOHNSON: gressional Liaison Officer, Trade and Devel- S. 335. A bill to expand the calling time re- At the request of Mr. ALLEN, the opment Agency, transmitting, pursuant to strictions on telemarketing telephone calls name of the Senator from Montana law, the report relative to the Trade and De- to include the period from 5:30 p.m. to 7:30 (Mr. BURNS) was added as a cosponsor velopment Agency funding obligation re- p.m., and for other purposes; to the Com- of S. 150, a bill to make permanent the garding the Federal Air Traffic Control Au- mittee on Commerce, Science, and Transpor- moratorium on taxes on Internet ac- thority (FATCA) Project Management Tech- tation. cess and multiple and discriminatory nical Assistance in Serbia; to the Committee By Mr. DOMENICI: S. 336. A bill to amend title 10, United taxes on electronic commerce imposed on Appropriations. by the Internet Tax Freedom Act. EC–1063. A communication from the Under States Code, to expand reimbursement for Secretary of Defense, Comptroller, Depart- travel expenses of covered beneficiaries for S. 156 ment of Defense, transmitting, pursuant to specialty care in order to cover specialized At the request of Mr. VOINOVICH, the law, the report of a violation, case number dental care; to the Committee on Armed name of the Senator from Idaho (Mr. Services. 99–09B, totaling $82,617, occurred in fiscal CRAPO) was added as a cosponsor of S. year 1996 for the Family Housing, Navy ap- By Mr. NELSON of Florida: S. 337. A bill to amend the Federal Insecti- 156, a bill to amend the Atomic Energy propriation; to the Committee on Appropria- Act of 1954 to reauthorize the Price-An- tions. cide, Fungicide, and Rodenticide Act and the EC–1064. A communication from the Ad- Solid Waste Disposal Act to prohibit the use derson provisions. ministrator, NASA, transmitting, pursuant of arsenic-treated lumber as mulch, compost, S. 173 to law, the fiscal year 2002 Annual Report of or a soil amendment, and to prohibit the At the request of Mr. LIEBERMAN, his the Centennial of Flight Commission; to the manufacture of arsenic-treated wood for use name was added as a cosponsor of S. as playground equipment for children, Committee on Commerce, Science, and 173, a bill to amend the Internal Rev- Transportation. fences, walkways, or decks or for other resi- EC–1065. A communication from the Sec- dential or occupational purposes, and for enue Code of 1986 to extend the financ- retary of the Commission, Bureau of Eco- other purposes; to the Committee on Envi- ing of the Superfund. nomics, Federal Trade Commission, trans- ronment and Public Works. S. 173 mitting, pursuant to law, the report of a rule By Mr. LAUTENBERG: At the request of Mr. REED, his name entitled ‘‘Annual Adjustment of Ceiling on S. 338. A bill to protect the flying public’s was added as a cosponsor of S. 173, Allowable Charge for Certain Disclosures safety and security by requiring that the air under the Fair Credit Reporting Act Section traffic control system remain a Government supra. 612(a)’’ received on January 21, 2003; to the function; to the Committee on Commerce, S. 196 Committee on Commerce, Science, and Science, and Transportation. At the request of Mr. ALLEN, the Transportation. f names of the Senator from Missouri EC–1066. A communication from the Dep- (Mr. TALENT) and the Senator from uty Assistant Administrator for Regulatory SUBMISSION OF CONCURRENT AND New Mexico (Mr. DOMENICI) were added Programs, Office of Sustainable Fisheries, SENATE RESOLUTIONS National Marine Fisheries Service, Depart- as cosponsors of S. 196, a bill to estab- ment of Commerce, transmitting, pursuant The following concurrent resolutions lish a digital and wireless network to law, the report of a rule entitled ‘‘Fish- and Senate resolutions were read, and technology program, and for other pur- eries off West Coast States and in the West- referred (or acted upon), as indicated: poses.

VerDate Dec 13 2002 02:06 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00055 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.055 S10PT1 S2120 CONGRESSIONAL RECORD — SENATE February 10, 2003 S. 219 S. 289 STATEMENTS ON INTRODUCED At the request of Mr. CRAIG, the At the request of Mr. GRASSLEY, the BILLS AND JOINT RESOLUTIONS name of the Senator from South Caro- name of the Senator from Washington By Mr. BREAUX (for himself, Mr. lina (Mr. GRAHAM) was added as a co- (Ms. CANTWELL) was added as a cospon- HATCH, Mr. BAUCUS, Mr. BOND, sponsor of S. 219, a bill to amend the sor of S. 289, a bill to amend the Inter- Mr. BURNS, Ms. COLLINS, Mr. Tariff Act of 1930 to clarify the adjust- nal Revenue Code of 1986 to improve HARKIN, Mr. KOHL, Ms. ments to be made in determining ex- tax equity for military personnel, and LANDRIEU, Mrs. LINCOLN, Mr. port price and constructed export for other purposes. NELSON of Florida, Mr. ROCKE- price. S. 300 FELLER, Mr. SANTORUM, Mr. S. 238 At the request of Mr. KERRY, the SMITH, Mr. JEFFORDS, Mr. MIL- At the request of Mr. REED, the name of the Senator from South Da- LER, and Ms. STABENOW): names of the Senator from Nevada (Mr. kota (Mr. JOHNSON) was added as a co- S. 333. A bill to promote elder justice, REID), the Senator from Delaware (Mr. sponsor of S. 300, a bill to award a con- and for other purposes; to the Com- CARPER), and the Senator from Massa- gressional gold medal to Jackie Robin- mittee on Finance. chusetts (Mr. KERRY) were added as co- son (posthumously), in recognition of Mr. BREAUX. Mr. President, I rise to sponsors of S. 238, a bill to reauthorize his many contributions to the Nation, introduce S. 333, the Elder Justice Act. the Museum and Library Services Act, and to express the sense of Congress Despite the rapid aging of America, few and for other purposes. that there should be a national day in pressing social issues have been as sys- S. 245 recognition of Jackie Robinson. tematically ignored as elder abuse, ne- At the request of Mr. BROWNBACK, the S. 314 glect, and exploitation. name of the Senator from Georgia (Mr. At the request of Mr. KENNEDY, the This abuse of our seniors takes many CHAMBLISS) was added as a cosponsor of name of the Senator from Ohio (Mr. forms. It can be physical, sexual, psy- S. 245, a bill to amend the Public DEWINE) was added as a cosponsor of S. chological, or financial. The perpe- Health Service Act to prohibit human 314, a bill to make improvements in the trator may be a stranger, an acquaint- cloning. Foundation for the National Institutes ance, a paid caregiver, a corporation S. 250 of Health. and, far too often, a spouse or another family member. Elder abuse happens At the request of Mr. DURBIN, the S. 318 everywhere—in poor, middle-class and names of the Senator from Washington At the request of Mr. KERRY, the upper income households; in cities, (Mrs. MURRAY), the Senator from names of the Senator from Maine (Ms. suburbs, and rural areas. It knows no Michigan (Mr. LEVIN), and the Senator SNOWE) and the Senator from Virginia from Connecticut (Mr. LIEBERMAN) demographic or geographic boundaries. (Mr. ALLEN) were added as cosponsors The cost of such abuse and neglect is were added as cosponsors of S. 250, a of S. 318, a bill to provide emergency bill to address the international HIV/ high by any measure. The price of this assistance to nonfarm-related small abuse is paid in needless human suf- AIDS pandemic. business concerns that have suffered S. 252 fering, inflated health care costs, de- substantial economic harm from pleted public resources, and the loss of At the request of Mr. THOMAS, the drought. names of the Senator from North Da- one of our greatest national assets— S. 332 kota (Mr. DORGAN) and the Senator the wisdom and experience of our el- At the request of Mr. DORGAN, the from South Dakota (Mr. JOHNSON) were ders. names of the Senator from South Da- added as cosponsors of S. 252, a bill to With scientific advances and the kota (Mr. JOHNSON) and the Senator amend the Internal Revenue Code of graying of millions of baby boomers, from Minnesota (Mr. DAYTON) were 1986 to provide special rules relating to this year the number of elderly on the added as cosponsors of S. 332, a bill to the replacement of livestock sold on planet passed the number of children amend the Federal Insecticide, Fun- account of weather-related conditions. for the first time. Although we have gicide, and Rodenticide Act to permit a made great strides in promoting inde- S. 262 State to register a Canadian pesticide pendence, productivity, and quality of At the request of Mr. BINGAMAN, the for distribution and use within that life, old age still brings inadequate name of the Senator from Massachu- State. health care, isolation, impoverishment, setts (Mr. KENNEDY) was added as a co- S.J. RES. 3 abuse, and neglect for far too many sponsor of S. 262, a bill to amend the At the request of Mr. LIEBERMAN, the Americans. temporary assistance to needy families Studies conclude that elder abuse, program under part A of title IV of the name of the Senator from New Mexico (Mr. BINGAMAN) was added as a cospon- neglect, and exploitation are widely Social Security Act to improve the under reported and these abuses sig- provision of education and job training sor of S.J. Res. 3, a joint resolution ex- pressing the sense of Congress with re- nificantly shorten the lives of older under that program, and for other pur- victims. A single episode of mistreat- poses. spect to human rights in Central Asia. S. RES. 44 ment can tip over an otherwise inde- S. 272 At the request of Mr. GRAHAM of pendent, productive life, triggering a At the request of Mr. SANTORUM, the downward spiral that can result in de- name of the Senator from Ohio (Mr. South Carolina, the name of the Sen- ator from South Dakota (Mr. JOHNSON) pression, serious illness, and even DEWINE) was added as a cosponsor of S. death. 272, a bill to provide incentives for was added as a cosponsor of S. Res. 44, a resolution designating the week be- Too many of our frailest citizens suf- charitable contributions by individuals fer needlessly and cannot simply move and businesses, to improve the public ginning February 2, 2003, as ‘‘National School Counseling Week’’. away from the abuse. Frequently, they disclosure of activities of exempt orga- cannot express their wishes or suf- nizations, and to enhance the ability of S. RES. 48 fering. And, even if they can, often low income Americans to gain finan- At the request of Mr. AKAKA, the they do not, fearing retaliation. cial security by building assets, and for name of the Senator from Utah (Mr. Congress has passed comprehensive other purposes. HATCH) was added as a cosponsor of S. bills to address the ugly truth of two S. 285 Res. 48, a resolution designating April other types of abuse—child abuse and At the request of Mr. CAMPBELL, the 2003 as ‘‘Financial Literacy for Youth crimes against women. These bills names of the Senator from Alaska (Ms. Month’’. placed these two issues into the na- MURKOWSKI) and the Senator from New S. RES. 49 tional consciousness and addressed the Mexico (Mr. DOMENICI) were added as At the request of Mr. HATCH, the issues at a national level. cosponsors of S. 285, a bill to authorize name of the Senator from Ohio (Mr. The law created new Federal infra- the integration and consolidation of al- DEWINE) was added as a cosponsor of S. structure and funding—focusing re- cohol and substance abuse programs Res. 49, a resolution designating Feb- sources, creating accountability, and and services provided by Indian tribal ruary 11, 2003, as ‘‘National Inventors’ changing how we think about and treat governments, and for other purposes. Day’’. abuse of women and children. And most

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00056 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.059 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2121 jurisdictions now have established co- the devastating consequences of elder of the other men and women who ordinated social service-public heath- mistreatment. stepped forward to help the families of law enforcement approaches to con- It increases collaboration by requir- these national heroes. It is selfless in- front these abuses. ing ongoing coordination at the federal dividuals like Mr. Smith and his col- But despite dozens of congressional level, among Federal, State, local and leagues that make America the great- hearings over the past two decades on private entities, law enforcement, est nation in the world. the devastating effects of elder abuse, long-term care facilities, consumer ad- Despite the sacrifice of these individ- neglect and exploitation, interest in vocates and families. uals, the fact is that the government the subject has waxed and waned, and, It aids prosecution by assisting law should have taken care of the families to date, no Federal law has been en- enforcement and prosecutors to ensure of these astronauts. Just as we take acted to address this issue in a com- that those who abuse our Nation’s frail care of our veterans, we should ensure prehensive manner. In these hearings, elderly will be held accountable, wher- that our astronauts do not have to elder abuse was called a ‘‘disgrace’’ and ever the crime occurs and whoever the worry about the financial survival of a ‘‘burgeoning national scandal.’’ In- victim. their families if the unthinkable hap- deed, we found no single Federal em- It helps consumers by creating a re- pens. And while there will always be a ployee working full time on elder abuse source center for family caregivers and place for organizations like the Space in the entire Federal Government. those trying to make decisions about Shuttle Children’s Trust Fund, Con- The time has come for Congress to different types of long-term care pro- gress has a responsibility to take care provide seniors a set of fundamental viders. of the brave men and women in our protections. That is why, along with The importance of defending our human space flight program. Senators HATCH, BAUCUS, COLLINS, right to live free of suffering from Unfortunately, it pains me to say SMITH of Oregon, LINCOLN, BOND, NEL- abuse and neglect does not diminish that this is one lesson we did not learn SON of Florida, BURNS, ROCKEFELLER, with age. If we can unlock the mys- from the Challenger disaster. After the SANTORUM, LANDRIEU, JEFFORDS, HAR- teries of science to live longer, what do Columbia explosion, I was shocked to KIN, MILLER, STABENOW, and KOHL, I am we gain if we fail to ensure Americans learn that there is still no provision for introducing a bill, the Elder Justice live longer with dignity? the Federal Government to ensure that Act, the first comprehensive Federal More and more of us will enjoy the families of astronauts are taken effort to address elder abuse in the longer life in relative health, but with care of in these tragic circumstances. this gift comes the responsibility to United States. We all pray that we will never have Our bill will elevate elder abuse, ne- prevent the needless suffering too often to suffer through another tragedy like glect, and exploitation to the national borne by our frailest citizens. the Challenger and Columbia explosions. stage in a lasting way. We want to en- I appreciate the work of my fellow But it is the responsibility of Congress sure Federal leadership to provide re- members and a wide array of groups on to ensure that we are prepared in case sources for services, prevention, and behalf of elder justice and look forward it does happen again. Therefore, today enforcement efforts to those on the to continued support from both sides of I am introducing a bill that would front lines. the aisle and in both houses to make allow astronauts to participate in the A crime is a crime whoever the vic- elder justice a reality for those Ameri- Servicemember’s Group Life Insurance tim and wherever it occurs. Crimes cans who need it most. program. As my colleagues know, this against seniors must be elevated to the is the insurance program that is set up level of child abuse and crimes against By Ms. LANDRIEU: for our men and women in the mili- women. S. 334. A bill to amend title 38, tary. With relatively low payments, It is clear in confronting child abuse United States Code, to provide eligi- service members are eligible to up to and violence against women that the bility for astronauts for $250,000 in life insurance. I believe that best methods of prevention is two- Servicemembers’ Group Life Insurance; astronauts should also be eligible for pronged—through both law enforce- to the Committee on Veterans’ Affairs. this program, and that is why I am pro- ment and social services. With offices Ms. LANDRIEU. Mr. President, our posing this legislation. in the Departments of Health and Nation continues to mourn the terrible Human Services and Justice, this legis- tragedy that we all experienced on Sat- In closing, something like this should lation ensures a combined public urday with the explosion of the Space have been done in 1986, following the health-law enforcement coordination Shuttle Columbia. The loss of these Challenger disaster. Unfortunately, 17 at all levels. In addition, because elder seven brave men and women proved years later, Congress still has not abuse and neglect have been virtually that space flight is still dangerous. Un- acted to fix this problem. I say to my absent from the national research fortunately, I come to the floor today colleagues, we must not let even one agenda, this bill establishes research to call my colleagues’ attention to an- more astronaut put his or her life at centers of excellence, and funds re- other tragedy, one which Congress can risk until we have ensured that the search projects to fuel future legisla- and should correct. government will be there to provide for tion. After the 1986 Challenger explosion, a their children and their families. I These measures lay the foundation to terrible oversight on the part of our hope my colleagues will join me in sup- address, in a meaningful and lasting government came to light. We learned porting this measure, and I hope we way, a devastating and growing prob- that NASA astronauts, with the excep- can get it approved quickly. I thank lem that has been invisible for far too tion of those in the military, often can- the chair. long. We can no longer neglect these not get life insurance. Their jobs are difficult issues afflicting frail and el- too high-risk for them to be able to By Mr. DOMENICI: derly victims. easily obtain private insurance. And, S. 336. A bill to amend title 10, This effort takes numerous steps to up until now, the government has not United States Code, to expand reim- prevent and treat elder abuse: provided any type of safety net for bursement for travel expenses of cov- It improves prevention and interven- these men and women, who risk their ered beneficiaries for specialty care in tion by funding projects to make older lives every day to advance our Nation’s order to cover specialized dental care; Americans safer in their homes, facili- space program. to the Committee on Armed Services. ties, and neighborhoods, to enhance Fortunately, a private fund, the Mr. DOMENICI. Mr. President, I rise long-term care staffing and to stop fi- Space Shuttle Children’s Trust Fund, today to offer legislation entitled the nancial fraud before the money goes was formed to fill this breach. The fund ‘‘Military Family Access to Dental out the door. paid an estimated $1.2 million to the Care Act.’’ This legislation, while lim- It enhances detection by creating fo- families of the astronauts killed in the ited in its scope, will have a profound rensic centers and developing expertise Challenger explosion. I would like to effect on the lives of our military serv- to enhance detection of the problem. take a moment to commend Mr. Del- ice members and their families particu- It bolsters treatment by funding ef- bert Smith, a Washington, DC attorney larly those serving our country at re- forts to find better ways to mitigate and chairman of the fund, as well as all mote rural bases.

VerDate Dec 13 2002 02:06 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00057 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.064 S10PT1 S2122 CONGRESSIONAL RECORD — SENATE February 10, 2003 Current law provides reimbursement Mr. NELSON of Florida. Mr. Presi- I urge my colleagues to support this for military dependents who, when re- dent, I rise today to discuss an issue legislation. ferred, must travel at least one-hun- I’ve fought long and hard on—the risk dred miles to receive specialty health posed to children by arsenic-treated By Mr. LAUTENBERG: care. However, specialty dental care wood playground equipment. S. 338. A bill to protect the flying has not been interpreted within the There is now a government study public’s safety and security by requir- scope of this provision. In a rural State which demonstrates the link between ing that the air traffic control system like New Mexico, this exclusion has a wood laced with an arsenic preserva- remain a Government function; to the real impact on quality of life. tive called chromated copper arsenate Committee on Commerce, Science, and For example, a military dependent or CCA and an increased risk of lung Transportation. stationed at Cannon Air Force Base in and bladder cancer. Mr. LAUTENBERG. Mr. President, I eastern New Mexico is not able to re- Last Friday, the scientists at the rise to introduce the Safe and Secure ceive periodontic or orthodontic care Consumer Product Safety Commission Skies Act of 2003, a bill that would pro- in nearby Clovis these specialties are issued a report that concluded that 2 to tect the safety and security of the fly- simply not available. Instead, to re- 100 children out of 1 million will get ing public by requiring that air traffic ceive such care, that dependent would bladder and lung cancer from their ex- control remain a government function. have to travel 225 miles to Albu- posure to arsenic-treated wood play- This legislation is necessary because querque, 110 miles to Lubbock, Tx, or ground equipment. the Bush administration has taken sev- 104 miles to Amarillo often two or This is disturbing. eral steps to privatize our Nation’s air three times to alleviate a special den- Especially since CCA was used to pre- traffic control system. tal problem. The cost of traveling these serve 98 percent of the wood produced On September 11 air traffic control- long distances can eat away at a mili- for residential uses in the United lers across the Nation performed hero- tary family’s income and degrade their States in 2001. ically, as they guided thousands of air- quality of life. Since March of 2001, when media re- craft out of the sky. From the tower at The legislation I propose expands the ports emerged about elevated levels of Newark International Airport, air traf- scope of existing law to ensure that arsenic in playground soil and numer- fic controllers in my State could see travel of at least one-hundred miles for ous playgrounds in the State of Florida the Twin Towers burning as they referred specialty dental care is reim- closed as a result, I have been pushing worked to return tens of thousands of bursable. It is my firm belief that this the Environmental Protection Agency Americans to the ground safely. small but practical bill can improve to complete its long-awaited study on Like many public servants on that the lives of many military families, es- the dangers posed by this arsenic pre- day, they are heroes. Along with po- pecially those assigned to bases in the servative. lice, firefighters, and other emergency West. What is more, it sends a signal to I am still waiting. personnel, these public employees gave our military personnel and their fami- To spur action on this issue, in the 110 percent to secure the safety of the lies that we recognize the sacrifices last 2 years, I have filed legislation American people. they make for us and want to respond mandating warning labels on all ar- In the aftermath of these tragic by addressing their needs whenever we senic-treated wood to inform con- events, the American people demanded can. I hope that my colleagues will join sumers that the wood they were pur- one thing in particular of their govern- me in supporting this bill. chasing contained a carcinogen. ment: they wanted government per- I ask unanimous consent that the Further, my past legislation required sonnel—not private contract firms—to text of the bill be printed in the the EPA to complete its study, begun perform security screening of baggage RECORD. long before the CPSC started its study, at our Nation’s airports. And Congress There being no objection, the bill was regarding the risks posed by arsenic- compiled with this request, as we ordered to be printed in the RECORD, as treated wood. turned the privatized baggage screen- follows: And, finally, I introduced legislation ing system over to Federal workers S. 336 to ban the residential uses of arsenic- with the new Transportation Security Be it enacted by the Senate and House of Rep- treated wood. Agency. resentatives of the United States of America in Meanwhile, EPA reached an agree- That is why it is so surprising to me Congress assembled, ment with the wood preserving indus- that the administration is now taking SECTION 1. REIMBURSEMENT OF COVERED try to voluntarily phase out the manu- steps to privatize the air traffic control BENEFICIARIES FOR CERTAIN TRAV- facture of CCA-treated wood for resi- system in this country. It makes little EL EXPENSES RELATING TO SPE- dential purposes by December 31, 2003. sense, especially after September 11. It CIALIZED DENTAL CARE. However, a year has passed since is the opposite of what the public Section 1074i of title 10, United States Code, is amended— EPA reached that agreement and they wants. (1) by inserting ‘‘(a) IN GENERAL.—’’ before still have not published a final rule in The safety and security of the Amer- ‘‘In any case’’; and the Federal Register making the phase- ican people should not be the responsi- (2) by adding at the end the following new out permanent, they still have not bility of the lowest bidder. Rather, it is subsection: completed their own risk assessment of a core responsibility of government. ‘‘(b) SPECIALTY CARE PROVIDERS.—For pur- the dangers posed to children playing But the administration is moving poses of subsection (a), the term ‘specialty on CCA-treated equipment and a New rapidly in the opposite direction. Al- care provider’ includes a dental specialist ready we have seen the jobs of air traf- (including an oral surgeon, orthodontist, York Times article in December 2002, prosthodontist, periodontist, endodontist, or reported that the administration may fic control specialists—those who re- pediatric dentist).’’. be reconsidering the phaseout. pair, inspect, and maintain the air traf- For those reasons, today I again in- fic control system—opened up to By Mr. NELSON of Florida: troduce legislation to ban the manufac- outsourcing. And the administration S. 337. A bill to amend the Federal ture of arsenic-treated wood for resi- just completed a ‘‘feasibility study’’ of Insecticide, Fungicide, and Rodenticide dential uses, including use as a mulch, privatizing the jobs of flight service Act and the Solid Waste Disposal Act to set a date certain for completion of station controllers—the experts who to prohibit the use of arsenic-treated EPA’s risk assessment and to require provide critical weather, safety, and se- lumber as mulch, compost, or a soil the EPA to conduct a public education curity alerts to pilots. amendment, and to prohibit the manu- program to inform the public about Next on the agenda for the adminis- facture of arsenic-treated wood for use how they can decrease their risk of tration are the air traffic controllers, as playground equipment for children, contracting cancer from CCA-treated who monitor and guide thousands of fences, walkways, or decks or for other wood. aircraft every day over the United residential or occupational purposes, The legislation also provides for the States. and for other purposes; to the Com- safe disposal of CCA-treated wood to The administration has already pro- mittee on Environment and Public prevent arsenic from contaminating posed air traffic controller privatiza- Works. our groundwater. tion in two of its annual budgets. In

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00058 Fmt 0637 Sfmt 0634 E:\CR\FM\G10FE6.083 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — SENATE S2123 June 2002, President Bush issued an ex- safety policy, bad homeland security training of the professional staff of such ecutive order stripping air traffic serv- policy, and the public doesn’t want it. committee (under procedures specified by ices of its ‘‘inherently governmental’’ I therefore ask my colleagues to sup- section 202(j) of the Legislative Reorganiza- status. And in December 2002, the ad- port my Safe and Secure Skies Act, tion Act of 1946). SEC. 3. The Committee shall report its ministration issued a document desig- which will declare these critical air findings, together with such recommenda- nating air traffic control a ‘‘commer- traffic control functions to be ‘‘inher- tions for legislation as it deems advisable, to cial’’ activity, opening the door to con- ently governmental’’, and therefore not the Senate at the earliest practicable date, tracting out the jobs of air traffic con- eligible for outsourcing. but not later than February 28, 2005. trollers to the lowest bidder. The safety of our skies should not be SEC. 4. Expenses of the Committee under This change from ‘‘inherently gov- put in the hands of the lowest bidder. this resolution shall be paid from the contin- gent fund of the Senate upon vouchers ap- ernmental’’ to a ‘‘commercial’’ func- f tion is more than a technical change— proved by the chairman of the committee, SUBMITTED RESOLUTIONS except that vouchers shall not be required (1) ‘‘inherently governmental’’ functions for the disbursement of salaries of employees can never be privatized, while ‘‘com- paid at an annual rate, or (2) for the pay- mercial’’ functions may be outsourced. ment of telecommunications provided by the The administration is trying to ac- SENATE RESOLUTION 50—AUTHOR- IZING EXPENDITURES BY THE Office of the Sergeant at Arms and Door- complish its privatization plan under keeper, United States Senate, or (3) for the the public’s radar screen through the COMMITTEE ON FOREIGN RELA- payment of stationery supplies purchased Office of Management and Budget’s A– TIONS through the Keeper of the Stationery, United 76 process. We in Congress have the Mr. LUGAR submitted the following States Senate, or (4) for payments to the power to stop this process and the bill resolution; from the Committee on Postmaster, United States Senate, or (5) for Foreign Relations; which was referred the payment of metered charges on copying I am introducing today will reverse the equipment provided by the Office of the Ser- administration’s plan. to the Committee on Rules and Admin- geant at Arms and Doorkeeper, United My Safe and Secure Skies Act will istration: States Senate, or (6) for the payment of Sen- return air traffic control functions to S. RES. 50 ate Recording and Photographic Services, or ‘‘inherently governmental’’ status, Resolved, That, in carrying out its powers, (7) for payment of franked and mass mail thus barring any privatization action. I duties, and functions under the Standing costs by the Sergeant at Arms and Door- do want to note, however, that my leg- Rules of the Senate, in accordance with its keeper, United States Senate. islation will not affect the existing jurisdiction under rule XXV of such rules, in- SEC. 5. There are authorized such sums as cluding holding hearings, reporting such may be necessary for agency contributions FAA ‘‘Contract Tower’’ program, related to the compensation of employees of which involves some small, visual hearings, and making investigations as au- thorized by paragraphs 1 and 8 of rule XXVI the committee from March 1, 2003, through flight rules airports. of the Standing Rules of the Senate, the September 30, 2003; October 1, 2003, through We currently have the best air traffic Committee on Foreign Relations, is author- September 30, 2004; and October 1, 2004, control system in the world. Over 15,000 ized from March 1, 2003, through September through February 28, 2005, to be paid from dedicated Federal air traffic control- 30, 2003; October 1, 2003, through September the Appropriations account for ‘‘Expenses of lers guide more than 2 million pas- 30, 2004; and October 1, 2004, through Feb- Inquiries and Investigations.’’ sengers a day home safely. Maintaining ruary 28, 2005, in its discretion (1) to make f expenditures from the contingent fund of the and inspecting the system are over NOTICES OF HEARINGS/MEETINGS 11,000 air traffic specialists, and nearly Senate, (2) to employ personnel, and (3) with 3,000 flight service station controllers the prior consent of the Government depart- COMMITTEE ON INDIAN AFFAIRS ment or agency concerned and the Com- Mr. CAMPBELL. Mr. President, I provide critical information and alerts mittee on Rules and Administration, to use to pilots. They are expert professionals would like to announce that the Com- on a reimbursable or non-reimbursable basis mittee on Indian Affairs will meet on who perform under pressure every day the services of personnel of any such depart- to keep our skies safe. ment or agency. Wednesday, February 12, 2003, at 10:30 I believe our air traffic controllers SEC. 2(a). The expenses of the committee a.m. in Room 495 of the Russell Senate are almost a wing of the military, and for the period March 1, 2003, through Sep- Office Building to conduct a Confirma- they play a major role in homeland se- tember 30, 2003, under this resolution shall tion hearing on the President’s nomi- curity. When President Bush gave the not exceed $2,933,624, of which amount (1) not nation of Mr. Ross O. Swimmer to be to exceed $210,000 may be expended for the Special Trustee for American Indians State of the Union speech last month, procurement of the services of individual it was the flight service station air at the U.S. Department of the Interior. consultants, or organizations thereof (as au- Those wishing additional information traffic controllers who sent alerts to thorized by section 202(i) of the Legislative avoid the expanded ‘‘no-fly’’ zone Reorganization Act of 1946, as amended), and may contact the Indian Affairs Com- around Washington. And when the (2) not to exceed $5,000 may be expended for mittee at 224–2251. space shuttle Columbia tragically dis- the training of the professional staff of such f committee (under procedures specified by integrated in the skies over Texas, it NATIONAL INVENTORS’ DAY was the air traffic controllers who di- section 202(j) of the Legislative Reorganiza- tion Act of 1946). rected aircraft away from the falling Mr. ENZI. Mr. President, I ask unani- (b) For the period October 1, 2003, through mous consent that the Senate now pro- debris field. September 30, 2004, expenses of the com- These men and women perform a ceed to the immediate consideration of mittee under this resolution shall not exceed Calendar No. 10, S. Res. 49. critical government function. $5,163,940, of which amount (1) not to exceed Some claim that privatization will $210,000 may be expended for the procure- The PRESIDING OFFICER. The save money. But when you look at ment of the services of individual consult- clerk will report the resolution by other countries’ experiments with air ants, or organizations thereof (as authorized title. traffic control privatization, all you by section 202(i) of the Legislative Reorga- The legislative clerk read as follows: see are financial messes and safety haz- nization Act of 1946, as amended), and (2) not A resolution (S. Res. 49) designating Feb- to exceed $5,000 may be expended for the ruary 11, 2003 as National Inventors’ Day. ards. Australia, Canada, and Great training of the professional staff of such Britain all have privatized systems committee (under procedures specified by There being no objection, the Senate that are now in crisis. Costs have gone section 202(j) of the Legislative Reorganiza- proceeded to consider the resolution. up and safety has gone down. tion Act of 1946). Mr. LEAHY. Mr. President, I am Since Great Britain adopted privat- (c) For the period October 1, 2004, through pleased the Senate is passing S. Res. 49 ization, near misses have increased by February 28, 2005, expenses of the committee that Senator HATCH and I introduced to 50 percent and delays have increased by under this resolution shall not exceed recognize February 11, 2003, as National 20 percent. The British Government $2,201,453, of which amount (1) not to exceed Inventors’ Day. $210,000 may be expended for the procure- More than 200 years ago, on July 30, has already had to bail out the ment of the services of individual consult- privatized air traffic control company ants, or organizations thereof (as authorized 1790, Samuel Hopkins, a resident of twice. by section 202(i) of the Legislative Reorga- Vermont, was granted the first United Privatization of the air traffic con- nization Act of 1946, as amended), and (2) not States patent. He had discovered a trol system is bad fiscal policy, bad to exceed $5,000 may be expended for the process for making potash, and was

VerDate Dec 13 2002 02:06 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00059 Fmt 0637 Sfmt 0634 E:\CR\FM\A10FE6.067 S10PT1 S2124 CONGRESSIONAL RECORD — SENATE February 10, 2003 awarded his patent by President Today’s inventors are individuals in day, February 11. I further ask that fol- George Washington, Attorney General a shop, garage or home lab. They are lowing the prayer and the pledge, the Edmund Randolph and Secretary of teams of scientists working in our larg- morning hour be deemed expired, the State Thomas Jefferson. est corporations or at our colleges and Journal of proceedings be approved to Samuel Hopkins is just one of the universities. In the spirit of inde- date, the time for the two leaders be many resourceful and creative inven- pendent inventors, small businesses, reserved for their use later in the day, tors from Vermont. The town of Bran- venture capitalists and larger corpora- and the Senate then proceed to execu- don can boast Thomas Davenport, a tions in Vermont and all over the tive session to resume consideration of self-educated blacksmith interested in United States, I would like to recog- the nomination of Miguel Estrada to be electricity and magnetism. Through nize February 11, 2003, as ‘’National In- a circuit judge for the DC Circuit. hands-on experiments with ventors’ Day.’’ I further ask unanimous consent that electromagnets, he built the first true Mr. ENZI. I ask unanimous consent the Senate recess from the hour of 12:30 electric motor in 1834. Initially, his that the resolution and preamble be p.m. to 2:15 p.m. for the weekly party patent request was denied because agreed to, the motion to reconsider be caucuses. there was no prior patent on electric laid upon the table, and any state- The PRESIDING OFFICER. Without machinery. But he garnered the sup- ments relating thereto be printed in objection, it is so ordered. port of numerous professors and phi- the RECORD. losophers who examined his invention The PRESIDING OFFICER. Without f and endorsed his right to a patent on objection, it is so ordered. his novel device. In 1837, his deter- PROGRAM The resolution (S. Res. 49) was agreed minism paid off, and he secured a pat- to. Mr. ENZI. For the information of all ent. The preamble was agreed to. Senators, tomorrow the Senate will re- John Deere was born in Rutland, VT turn to the consideration of the and spent most of his early life in The resolution, with the preamble, reads as follows: Estrada nomination to the DC Circuit Middlebury. After moving out West, Court. As stated earlier, we are at- John Deere realized the cast-iron plows S. RES. 49 tempting to reach an agreement that he and other settlers brought with Whereas the American people and the would allow us to lock in a final vote them were not going to work in the world have benefited from the creations and on the nomination. It is hoped that an discoveries of America’s inventors; and Midwest soil. He studied the problem agreement can be reached during to- and developed the first successful steel Whereas the patents that protect those creations and discoveries spur technological morrow’s session. Votes are possible plow using steel from a broken saw progress, improve the quality of life, stimu- during tomorrow’s session. blade. This new steel plow became the late the economy, and create jobs for Ameri- key for successful farming in the West, cans: Now, therefore, be it f and ‘‘John Deere’’ is still synonymous Resolved, That the Senate— ADJOURNMENT UNTIL 9:30 A.M. with farming equipment today. (1) honors the important role played by in- Vermont continues to be a leader in ventors in promoting progress in the useful TOMORROW inventing and obtaining patents. My arts; The PRESIDING OFFICER. Under a State ranks fourth in the Nation for (2) recognizes the invaluable contribution previous order, the Senate stands ad- number of patents issued. IBM’s Essex of inventors to the welfare of the people of journed until 9:30 a.m., Tuesday, Feb- Junction Plant, which designs and the United States; (3) designates February 11, 2003, as ‘‘Na- ruary 11, 2003. makes computer technology for a wide tional Inventors’ Day’’; and Thereupon, the Senate, at 6:45 p.m., range of products, received 411 patents (4) requests the President to issue a procla- adjourned until Tuesday, February 11, from the U.S. Patent & Trademark Of- mation calling upon the people of the United 2003, at 9:30 a.m. fice in 2002. Vermont’s plant also has 18 States to celebrate such day with appro- inventors who together have earned priate ceremonies and activities. f more than 600 patents. One of those in- f CONFIRMATIONS ventors is Steve Voldman, the top pat- ent winner. Over the past 10 years, he ORDERS FOR TUESDAY, Executive nominations confirmed by has received 110 patents. In 2002, he re- FEBRUARY 11, 2003 the Senate February 4, 2003: ceived 29. Many of his 2002 patents had Mr. ENZI. Mr. President, I ask unani- DEPARTMENT OF DEFENSE to do with silicon germanium, a new mous consent that when the Senate PAUL MCHALE, OF PENNSYLVANIA, TO BE AN ASSIST- completes its business today, it stand ANT SECRETARY OF DEFENSE. technology that has produced the CHRISTOPHER RYAN HENRY, OF VIRGINIA, TO BE DEP- world’s fastest chip. in adjournment until 9:30 a.m., Tues- UTY UNDER SECRETARY OF DEFENSE FOR POLICY.

VerDate Dec 13 2002 01:04 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00060 Fmt 0637 Sfmt 9801 E:\CR\FM\A10FE6.072 S10PT1 February 10, 2003 CONGRESSIONAL RECORD — Extensions of Remarks E177 EXTENSIONS OF REMARKS

SENATE COMMITTEE MEETINGS Board for the remainder of the term ex- cusing on the Department of Transpor- piring September 14, 2004. tation. Title IV of Senate Resolution 4, SD–215 SD–608 agreed to by the Senate on February 4, Foreign Relations Commerce, Science, and Transportation 1977, calls for establishment of a sys- To hold hearings to examine the recon- To hold hearings to examine infrastruc- tem for a computerized schedule of all struction of Afghanistan. ture needs of minority serving institu- meetings and hearings of Senate com- SD–419 tions. mittees, subcommittees, joint commit- Judiciary SR–253 tees, and committees of conference. To hold hearings to examine judicial Energy and Natural Resources This title requires all such committees nominations. To hold hearings to examine oil, gas, Hy- to notify the Office of the Senate Daily SD–226 drogen, and conservation, focusing on 10 a.m. Digest—designated by the Rules com- oil supply and prices. Health, Education, Labor, and Pensions SH–216 mittee—of the time, place, and purpose Business meeting to consider commit- of the meetings, when scheduled, and tee’s rules of procedure for the 108th FEBRUARY 14 any cancellations or changes in the Congress, subcommittee assignments, meetings as they occur. S. 239, to amend the Public Health 9:30 a.m. As an additional procedure along Services Act to add requirements re- Governmental Affairs To hold hearings to examine the Presi- with the computerization of this infor- garding trauma care, proposed legisla- tion entitled ‘‘Keeping Children and dent’s proposal to create a terrorist mation, the Office of the Senate Daily threat integration center, including Digest will prepare this information for Families Safe Act of 2003’’, proposed legislation concerning NIH Founda- consolidating intelligence analysis. printing in the Extensions of Remarks tion, proposed legislation concerning SD–342 section of the CONGRESSIONAL RECORD birth defects, and proposed legislation on Monday and Wednesday of each entitled ‘‘Animal Drug User Fee Act’’. FEBRUARY 25 week. SD–430 9:30 a.m. Meetings scheduled for Tuesday, Feb- Indian Affairs Armed Services ruary 11, 2003 may be found in the To hold hearings to examine the nomina- To hold hearings to examine the Defense Daily Digest of today’s RECORD. tion Ross O. Swimmer, to be Special Authorization Request for Fiscal Year Trustee—American Indians, Depart- 2004 and the Future Years Defense Pro- MEETINGS SCHEDULED ment of the Interior. gram, to be immediately followed by a SR–485 closed hearing in SH–219. FEBRUARY 12 2:30 p.m. SD–106 9:30 a.m. Commerce, Science, and Transportation Foreign Relations Armed Services Oceans, Atmosphere, and Fisheries Sub- To hold hearings to examine world food To hold hearings to examine the current committee aid. and future worldwide threats to the na- To hold hearings to examine Coast Guard SH–216 tional security of the United States; to transition to Homeland Security. 10 a.m. SR–253 be followed by a closed meeting to be Energy and Natural Resources held in SH–219. To hold hearings to examine the Presi- FEBRUARY 13 SH–216 dent’s proposed budget request for fis- Commerce, Science, and Transportation 9:30 a.m. cal year 2004 for the Department of En- To hold joint hearings with the House Environment and Public Works ergy. Committee on Science Subcommittee Clean Air, Climate Change, and Nuclear SD–366 on Space and Aeronautics to examine Safety Subcommittee Health, Education, Labor, and Pensions the recent space shuttle Columbia acci- To hold oversight hearings to examine To hold hearings to examine terrorism, dent. the Nuclear Regulatory Commission. focusing on state and local response. SR–325 SD–406 SD–430 Environment and Public Works Armed Services Business meeting to markup S. 195, to To hold hearings on proposed legislation 2 p.m. amend the Solid Waste Disposal Act to authorizing funds for fiscal year 2004 Veterans’ Affairs bring underground storage tanks into for the Department of Defense, and the To hold joint hearings with the House compliance with subtitle I of that Act, Future Years Defense Program. Committee on Veterans’ Affairs to ex- to promote cleanup of leaking under- SH–216 amine a legislative presentation of the ground storage tanks, to provide suffi- Commerce, Science, and Transportation Disabled American Veterans. cient resources for such compliance To hold hearings to examine United SH–216 and cleanup, and an original resolution States Olympic Committee reforms. 2:30 p.m. authorizing expenditures by the com- SR–253 Energy and Natural Resources mittee. Judiciary To hold hearings to examine oil, gas, Hy- SD–406 Business meeting to consider judicial drogen, and conservation, focusing on Finance nominations. gas supply and prices. To continue hearings to examine pro- SD–226 SD–366 posals for economic growth and job cre- 10 a.m. ation, focusing on incentives for con- Energy and Natural Resources FEBRUARY 26 sumption; to be followed by hearings to To hold hearings to examine the Presi- 10 a.m. examine the nominations of Joseph dent’s proposed budget request for fis- Health, Education, Labor, and Pensions Robert Goeke, of Illinois, to be a Judge cal year 2004 for the Forest Service of Business meeting to consider pending of the United States Tax Court, Glen L. the Department of Agriculture. calendar business. Bower, of Illinois, to be a Judge of the SD–366 SD–430 United States Tax Court, Daniel Pear- Finance son, of Minnesota, to be a Member of To hold hearings to examine Enron, fo- FEBRUARY 27 the United States International Trade cusing on the Joint Committee on Tax- Commission, Charlotte A. Lane, of ation’s investigative report. 9:30 a.m. West Virginia, to be a Member of the SD–215 Foreign Relations United States International Trade 2:30 p.m. To hold hearings to examine proposed Commission, and Raymond T. Wagner, Budget legislation authorizing funds for the Jr., of Missouri, to be a Member of the To resume hearings on the President’s Department of State. Internal Revenue Service Oversight proposed budget for fiscal year 2004, fo- SD–419

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor.

VerDate Jan 31 2003 00:38 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00001 Fmt 0626 Sfmt 0634 E:\CR\FM\M10FE8.000 E10PT1 E178 CONGRESSIONAL RECORD — Extensions of Remarks February 10, 2003 10 a.m. Veterans’ Affairs MARCH 13 Energy and Natural Resources To hold joint hearings with the House 10 a.m. To hold hearings to examine oil, gas, Hy- Committee on Veterans’ Affairs to ex- Veterans’ Affairs drogen, and conservation, focusing on amine legislative presentations of the To hold joint hearings with the House energy production on federal lands. Military Order of the Purple Heart, the Committee on Veterans’ Affairs to ex- SD–366 Paralyzed Veterans of America, Jewish Health, Education, Labor, and Pensions War Veterans, the Blinded Veterans amine legislative presentations of the To hold hearings to examine the Work- Association, and the Non-Commis- Retired Enlisted Association, Gold force Investment Act. sioned Officers Association. Star Wives of America, the Fleet Re- SD–340 345 Cannon Building serve Association, and the Air Force Sergeants Association. MARCH 4 MARCH 11 345 Cannon Building 10 a.m. 10 a.m. Energy and Natural Resources Energy and Natural Resources MARCH 20 To hold hearings to examine oil, gas, Hy- To hold hearings to examine oil, gas, Hy- 10 a.m. drogen, and conservation, focusing on drogen, and conservation, focusing on Veterans’ Affairs financial conditions of the electricity federal programs for energy efficiency To hold joint hearings with the House market. and conservation. Committee on Veterans’ Affairs to ex- SD–366 SD–366 amine legislative presentations of AMVETS, American Ex-Prisoners of MARCH 6 MARCH 12 War, the Vietnam Veterans of America, 10 a.m. 10 a.m. the Military Officers Association of Energy and Natural Resources Veterans’ Affairs America, and the National Association To hold hearings to examine oil, gas, Hy- To hold joint hearings with the House of State Directors of Veterans’ Affairs. drogen, and conservation, focusing on Committee on Veterans’ Affairs to ex- 345 Cannon Building energy use in the transportation sec- amine a legislative presentation of the tor. Veterans of Foreign Wars. SD–366 345 Cannon Building

VerDate Jan 31 2003 00:38 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00002 Fmt 0626 Sfmt 0634 E:\CR\FM\M10FE8.000 E10PT1 Monday, February 10, 2003 Daily Digest Senate Nominations Confirmed: Senate confirmed the fol- Chamber Action lowing nominations: Routine Proceedings, pages S2065–S2124 By unanimous vote of 91 yeas (Vote No. EX. 31), Measures Introduced: Six bills and one resolution John R. Adams, of Ohio, to be United States Dis- were introduced, as follows: S. 333–338, and S. Res. trict Judge for the Northern District of Ohio. Pages S2109–13 50. Page S2119 By unanimous vote of 94 yeas (Vote No. EX. 32), Measures Reported: S. James Otero, of California, to be United States S. Res. 50, authorizing expenditures by the Com- District Judge for the Central District of California. mittee on Foreign Relations. Page S2119 Pages S2109–13 Measure Passed: By unanimous vote of 91 yeas (Vote No. EX. 33), Robert A. Junell, of Texas, to be United States Dis- National Inventors’ Day: Senate agreed to S. Res. trict Judge for the Western District of Texas. 49, resolution designating February 11, 2003, as Pages S2109–13 ‘‘National Inventors’ Day’’. Pages S2123–24 Executive Communications: Pages S2117–19 Nomination Considered: Senate resumed consider- ation of the nomination of Miguel A. Estrada, of Additional Cosponsors: Pages S2119–20 Virginia, to be United States Circuit Judge for the Statements on Introduced Bills/Resolutions: District of Columbia Circuit. Pages S2120–23 Pages S2067–S2109, S2113–15 Additional Statements: Pages S2116–17 A unanimous-consent agreement was reached pro- Notices of Hearings/Meetings: Page S2123 viding for further consideration of the nomination at 9:30 a.m., on Tuesday, February 11, 2003. Record Votes: Three record votes were taken today. Page S2124 (Total—33) Pages S2112–13 Messages from the President: Senate received the Adjournment: Senate met at 11 a.m, and adjourned following message from the President of the United at 6:45 p.m., until 9:30 a.m., on Tuesday, February States: 11, 2003. (For Senate’s program, see the remarks of Transmitting, pursuant to law, the Economic Re- the Acting Majority Leader in today’s Record on Page S2124.) port of the President dated February 2003 with the Annual Report of the Council of Economic Advisers for 2003; to the Joint Economic Committee. Committee Meetings (PM–14) Page S2117 No committee meetings were held.

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VerDate Jan 31 2003 02:06 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00001 Fmt 0627 Sfmt 0627 E:\CR\FM\D10FE3.REC D10FE3 February 10, 2003 CONGRESSIONAL RECORD — DAILY DIGEST D109 House of Representatives for fiscal year 2004 for the Department of the Interior, Chamber Action 10 a.m., SD–366. The House was not in session today. It will meet Full Committee, to hold hearings to examine the nom- on Tuesday at 12:30 p.m. for morning hour debate. ination of Joseph Timothy Kelliher, of the District of Co- lumbia, to be a Member of the Federal Energy Regu- latory Commission, 2:30 p.m., SH–216. Committee Meetings Committee on Finance: to hold hearings to examine pro- No committee meetings were held. posals for economic growth and job creation, focusing on incentives for consumption, 10 a.m., SD–215. Committee on Foreign Relations: to hold hearings to exam- f ine the future of Iraq, 9:30 a.m., SD–419. NEW PUBLIC LAWS Committee on Health, Education, Labor, and Pensions: with the Committee on the Judiciary, to hold joint hearings (For last listing of Public Laws, see DAILY DIGEST, p. D84) to examine patient access crisis, focusing on the role of H.J. Res. 18, making further continuing appro- medical litigation, 2:30 p.m., SD–106. priations for the fiscal year 2003. Signed on February Committee on the Judiciary: with the Committee on 7, 2003. (Public Law 108–5) Health, Education, Labor, and Pensions, to hold joint hearings to examine patient access crisis, focusing on the f role of medical litigation, 2:30 p.m., SD–106. COMMITTEE MEETINGS FOR TUESDAY, Select Committee on Intelligence: to hold hearings to exam- ine current and projected national security threats, 10 FEBRUARY 11, 2003 a.m., SD–106. (Committee meetings are open unless otherwise indicated) Full Committee, to hold closed hearings to examine certain intelligence matters, 2:30 p.m., SH–219. Senate Special Committee on Aging: to hold hearings to examine Committee on Banking, Housing, and Urban Affairs: to guardianship over the elderly, focusing on security pro- hold oversight hearings to examine the Semi-Annual vided or due process denied, 10 a.m., SD–628. Monetary Policy Report of the Federal Reserve; and to hold a business meeting to consider the nomination of House William H. Donaldson, of New York, to be a Member Committee on Appropriations, to meet for organizational of the Securities and Exchange Commission, 10 a.m., purposes, 10 a.m., 2359 Rayburn. SH–216. Committee on International Relations, to meet for organi- Committee on the Budget: to hold hearings to examine the zational purposes, and to consider an Oversight Plan for President’s International Affairs Budget, 10 a.m., the 108th Congress, 5:45 p.m., 2172 Rayburn. SD–608. Committee on Rules, to consider the Conference Report Committee on Commerce, Science, and Transportation: to to accompany H.J. Res. 2, making further continuing ap- hold hearings on proposed legislation authorizing funds propriations for the fiscal year 2003, 7 p.m., H–313 Cap- for the Federal Aviation Administration, Department of itol. Transportation, 9:30 a.m., SR–253. Committee on Veterans’ Affairs, hearing on the Depart- Committee on Energy and Natural Resources: to hold hear- ment of Veterans Affairs Budget request for Fiscal Year ings to examine the President’s proposed budget request 2004, 10 a.m., 334 Cannon.

VerDate Jan 31 2003 02:06 Feb 11, 2003 Jkt 019060 PO 00000 Frm 00002 Fmt 0627 Sfmt 0627 E:\CR\FM\D10FE3.REC D10FE3 D110 CONGRESSIONAL RECORD — DAILY DIGEST February 10, 2003

Next Meeting of the SENATE Next Meeting of the HOUSE OF REPRESENTATIVES 9:30 a.m., Tuesday, February 11 12:30 p.m., Tuesday, February 11

Senate Chamber House Chamber Program for Tuesday: Senate will continue consider- Program for Tuesday: Consideration of suspensions. ation of the nomination of Miguel A. Estrada, of Vir- ginia, to be United States Circuit Judge for the District of Columbia Circuit. (Senate will recess from 12:30 p.m. until 2:15 p.m. for their respective party conferences.)

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