S4666 CONGRESSIONAL RECORD — SENATE April 2, 2003 identify all the high-risk radioactive sources 10 most viable sites. Additional funds Mr. COCHRAN. Mr. President, I ask that are being used and have been aban- in the supplemental would start the unanimous consent that the order for doned.’’ The Secretary told the conference program much earlier and increase the the quorum call be rescinded. ‘‘We are ready to assist other interested number of sites to be protected. The PRESIDING OFFICER. Without countries to speed the needed improvements, and we want to begin immediately.’’ I have worked with Senator DOMENICI objection, it is so ordered. I am sure his heart was in the right for many years, as the ranking member f and chairman—going back and forth— place, but he had no ability to deliver EXECUTIVE SESSION of the Energy and Water Subcommittee on the statement he made to this con- f ference. on Appropriations. We have the respon- He went on to say: sibility to take care of our nuclear MIGUEL A. ESTRADA, OF VIR- We are prepared to work with other coun- weapons. Large amounts of money are GINIA, TO BE UNITED STATES tries to locate, consolidate, secure, and dis- appropriated every year. We in the CIRCUIT JUDGE FOR THE DIS- pose of high risk radiological sources by de- United States appropriate large sums TRICT OF COLUMBIA CIRCUIT veloping a system of national regional re- of money to make sure our nuclear The PRESIDING OFFICER. Under positories to consolidate and securely store stockpile is safe and reliable. A nuclear the previous order, the hour of 1:30 p.m. these sources. stockpile is not like storing a car. It is having arrived, the Senate will now go The administration has never re- not like storing canned goods. These into executive session and resume con- quested a penny for this purpose. It weapons have elements that go bad, sideration of Executive Calendar No. seems now that this supplemental ap- and you need to constantly review, ex- 21, which the clerk will report. propriations bill is where we should amine these weapons to find if they are The legislative clerk read the nomi- make the Secretary’s offer of assist- safe and reliable. The Russians know nation of Miguel A. Estrada, of Vir- ance to the international community this. But they have not had the re- ginia, to be United States Circuit credible. sources to help. It is in our best inter- Judge for the District of Columbia Cir- This bill calls for $20 million for non- est to work with them, with Nunn- cuit. proliferation assistance to nations Lugar and other such methods, to try The PRESIDING OFFICER. The Sen- other than the former Soviet Union. to help them make their stockpile safe ator from Vermont. The Materials, Protection, Controls, and reliable. Here is $12 million for ad- Mr. LEAHY. Mr. President, I under- and Accounting Agency nuclear non- ditional funds that, as I have indicated, stand the distinguished chairman is on proliferation programs to date have would help the ICBMs in Russia be safe his way over. As we have evenly di- only targeted nations of the former So- and reliable. vided time and time is running, I will viet Union. There is no money to do When the war with Iraq ends and we anything about it, to assist countries begin and will yield when he arrives. find weapons of mass destruction in We have another in a series of cloture all over the world, especially in South- with nuclear material, we need to east Asia—no money. Obviously, the votes on this divisive nomination make sure we will have some way of today. Actually, nothing has changed point is made there. disposing of them. We have provided in We have $20 million in this bill for significantly since the leadership this bill for that. We want to make forced the three previous cloture votes. funds that are needed to develop the sure there is money for nuclear mate- analytical capability to determine the I did read in the New York Times rial detection regarding materials and over the weekend that Mr. Estrada nature and origin of a stolen nuclear devices. weapon or captured improvised nuclear spoke about the memos he wrote as Funds are also needed to help develop being perhaps somewhat divisive. device or what happened and who did it advanced materials that will enable in the event of nuclear detonation on Maybe that is why the White House the fielding of room-temperature, high- does not want us to see them. The only U.S. soil. resolution, hand-held and portable ra- We need research and development. If reason we are having these problems is diation detection and identification a nuclear device is found, we need to be the administration has refused to bring equipment. Our labs can do that with able to determine what kind of a device forward the writings on which one the scientific community, many of it is, how it will detonate, how to could form an idea whether he should which are in the private sector. defuse it. We have $20 million, a rel- have a lifetime appointment to the sec- atively small amount, the Department We have another problem. We need to ond highest court in the country. needs to improve material and be able to detect any nuclear explosion The White House has had access to radiochemical analysis methods, the from proliferant countries that have all these writings and they eagerly sampling and modeling of nuclear ex- very low yield. We don’t have the committed the political capital to go plosion debris, and the implications of equipment to do that. We need $10 mil- forward. But they don’t want us to see nuclear weapons design. lion to do that. What we have in this them. The administration remains in- Our weapons labs around this coun- amendment is a number of efforts to sistent that the Senate rubberstamp try have the best scientists in the simply make our country safer, to nominees without fulfilling the Sen- world. I have been to the weapons labs: make homeland security apply also to ate’s constitutional advise and consent Livermore, Sandia, Los Alamos. They things nuclear. role in this most important process. have the best and the brightest. But I am going to offer this amendment Everyone has known for a long time they can’t do anything to help us un- when we get the parliamentary prob- how to solve the impasse in the Miguel less they have money to do the re- lem worked out. The threat of loose Estrada nomination. The Democratic search. That is what this will do. nukes worldwide scares me as much as leader’s letter pointed the way back in In this amendment, we have $15 mil- anything that I am afraid of. We have early February. Some say that the ad- lion for nuclear nonproliferation to do something about it. We have not ministration is proceeding this way be- verification, $12 million for non- talked about it. It is like the perennial cause they do not care whether he goes proliferation assistance to Russian ostrich sticking his head underground through or not. They think somehow it strategic rocket forces. What is this so he cannot see what is going on. I see is a political issue. That is the problem amount? Certain elements of the Rus- what is going on, and the Senate must if this administration continues in its sian military prefer to deal with our see what is going on. This bill, which is efforts to politicize the Federal courts. Department of Energy rather than the extremely important—as important as There has been too much politicizing. Department of Defense. For example, anything we do for homeland secu- The Federal courts are not a branch all work by the United States to secure rity—contains $400 million, directed to- that belongs to either the Republican Russian Navy warheads has been done tally to things nuclear. or Democratic party. They are not a by DOE. The fiscal year 2004 budget I suggest the absence of a quorum. branch of whoever is in the White proposes for the first time for DOE to The PRESIDING OFFICER (Mr. House or in control of the Congress. assist the Russian strategic rocket HAGEL). The clerk will call the roll. They are the one independent branch of force ICBMs to secure its weapons. It The assistant legislative clerk pro- Government. They are supposed to be contains funds to secure 2 of the first ceeded to call the roll. above politics, outside of politics, and

VerDate Mar 15 2010 21:02 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\2003SENATE\S02AP3.REC S02AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY April 2, 2003 CONGRESSIONAL RECORD — SENATE S4667 yet in this case the White House could that we actually moved more than the produced immediately and what might easily move forward with this nomina- previous 30-month period under them. I require further discussion. They want tion but is choosing to keep it in did not allow the secret holds they had to put this young man, at 41 years old, limbo. Unfortunately, too many Mem- used extensively to block President on the second highest court in the bers are willing to dance to that tune. Clinton’s nominees. At times, they ac- land. But they don’t want us to know Remember, it says advise and con- tually required 100 Senators to be for about his legal work and judgment sent not advise and rubberstamp. The somebody before they would go when he was working for the govern- administration and Mr. Estrada do not through it. ment. They are saying: We’ll nominate; want to show Members his writings. A former Republican leader accepted you rubberstamp. I am saying it is ad- This is part of the work and experience part of the blame for how the Senate vice and consent. That has worked in that made the White House such an came to this, and I appreciate him the Constitution for all the history of eager supporter of him. The American doing that. He acknowledged you fili- this country and will continue to work. people and their representative ought buster a lot of different ways. The Re- We had an example of internal Jus- to know how he thinks and have the publican majority often defeated nomi- tice Department documents that were best basis to predict how he would act nees by making sure they were never the work on another of the President’s as a judge, whether as an ideologue or given a hearing or a vote. I don’t be- controversial nominees that have pre- as an impartial judge. lieve in that. viously been produced to the Senate. Past administrations—and I have If a nominee will go through the nor- At least the papers came forth. We find been here with President Ford, Presi- mal process, if the White House will that she, working for a previous Repub- dent Carter, President Reagan, former stop playing games, if they will stop lican administration, had strongly or- President Bush, and President Clin- stonewalling, I am perfectly willing to ganized, in fact, went out of her way to ton—they have all shown similar type go forward. help support a tax exemption for a col- writings to the Senate. We had nomi- Mr. DURBIN. I might say to the Sen- lege that discriminated against African nations of Robert Bork, William ator from Vermont, if he will yield fur- Americans, discriminated against Rehnquist, Brad Reynold, Ben Civi- ther, in my experience in trial practice Catholics, discriminated against Mor- letti, and others. Even this administra- before I was elected to Congress, one’s mons, took the most radical position, tion did so for a nominee to the Envi- curiosity was always raised when the but was a darling of the Republican ronmental Protection Agency. party on the other side refused to dis- Party. Her nomination to a major We have had senior members in the close a document. You had to go to court of appeals position by this ad- Republican Party say they wish the court and have a decision made by the ministration is now pending. But at White House would show some coopera- judge in discovery as to whether they least we knew of her work and at least tion, as past White Houses have, to get would be required to produce the docu- she could be questioned on it. forward on this. Instead, we continue ment. You naturally believed, if they I would say to my friend from Illinois being blocked by the administration’s were holding back a document, then that we began this because we were position when we should be going for- certainly it might be a document that waiting for the distinguished chair- ward. would compromise their position or man. He is here. I suggest I reserve the Mr. DURBIN. Will the Senator yield? jeopardize their position. remainder of my time and yield to the Mr. LEAHY. Of course. I would like to ask the Senator from distinguished chairman as I had agreed Mr. DURBIN. I thank the Senator for Vermont, is it not a fact now that be- when we called off the quorum at the his service as ranking Democrat on the cause of this long delay and because of request of the Republican side. Senate Judiciary Committee. I would this intransigence by the White House The PRESIDING OFFICER. The Sen- like to put the Senator from Vermont to release these documents, there is ator from Utah. on the spot with a question. more and more curiosity as to what is Mr. HATCH. How much time remains If the White House will allow these contained in them? Here we have a on both sides? writings that are in controversy here nominee who, despite an excellent aca- The PRESIDING OFFICER. The Sen- by Miguel Estrada to be released to the demic resume, really has little to show ator from Utah has 15 minutes remain- Congress for review, and if we are then in terms of legal writings or things ing. The other side has 6 minutes 30 given a chance to review them, to bring that give us an insight into why he seconds remaining. Mr. Estrada for a hearing, if necessary, should be selected for a lifetime ap- Mr. HATCH. Mr. President, this is so we can ask questions, some of which pointment to the DC Circuit Court. the first true filibuster in history of a he has not answered completely before, I ask the Senator from Vermont, circuit court of appeals nominee—the at that point would the Senator from isn’t it fairly obvious at this point first one in history. It just has never Vermont personally urge the Demo- that, if the White House will release happened before, no matter how con- crats in committee to allow this proc- these documents and start the orderly troversial the nominee—and this one ess to move forward in an orderly fash- process, then we can have a final dis- certainly is not controversial. They ion to consideration in committee, to a position of Mr. Estrada, just as soon as just haven’t found anything to criticize vote in the committee, and to a vote on they respond? him with, and that is the problem. the floor? Mr. LEAHY. I would think so, I say The distinguished Senator from Mr. LEAHY. I say to my friend from to my friend from Illinois. Again, the Vermont says he is not going to Illinois, of course I would. I have said point is the White House has had ac- rubberstamp anybody. Don’t anybody this right along. I may or may not vote cess to these papers. Surely they did a worry about that. The Democrats have for Mr. Estrada based on what is in the thorough review of this nomination. not rubberstamped one of these judicial writings, but I will never give a blank Surely someone in the administration nominations of President Bush so far. check to any President—I have not— must know what these documents con- In fact, they voted against a high per- Democrat or Republican. I want to tain if they are refusing to provide centage of President Bush’s nominees. know what is in there. After all, there them and Republican Senators are as- Frankly—ask all those who have have been statements by this person’s serting that they are ‘‘privileged’’. I gone through this process—it is an ar- supervisor that he did not fairly state would hope that no one, and certainly duous, difficult, and in many ways a the law in the course of his work. We no one with legal training, would as- demeaning process as a result of the should have the basis to determine the sert a privilege without knowing way my colleagues on the other side quality of his work. whether it applies. My recollection is seem to be attacking these nominees. As the Senator from Illinois knows, that the administration took several The White House has been accused of when I was chairman of the committee, weeks to respond to our request for the political games in putting Miguel in 17 months we certainly moved far documents. Surely they were not sim- Estrada up, and in not allowing fishing more of President Bush’s nominees ply ignoring our request for those expeditions into the most sensitive than the Republicans did when they weeks. I would have assumed they were documents in the Justice Department. were in the chair the previous 17 using that time to review the docu- Those documents are the appeal, cer- months for President Clinton. I believe ments and determine what could be tiorari, and amicus recommendations

VerDate Mar 15 2010 21:02 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\2003SENATE\S02AP3.REC S02AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S4668 CONGRESSIONAL RECORD — SENATE April 2, 2003 made by people such as Mr. Estrada Mr. LEAHY. Is this one of those [T]he criticisms of the current process are while they are there. unnamed sources? telling. Supporters of the administration ob- Seven living former Solicitors Gen- Mr. HATCH. Mr. President, I ask for ject that members of the Senate, and private eral have all said there is no way that the regular order. groups generally critical of the Administra- any administration should give those The PRESIDING OFFICER. The Sen- tion, expend enormous energy not in disin- terested inquiry but in trying to ‘catch’ the documents to the Senate. I might add, ator from Utah has the floor. nominee: to find some statement in her four of those are Democrats, three of Mr. HATCH. It appears the real rea- record that reveals a belief so extreme as to whom were Democratic Solicitors Gen- son for the filibuster—I suggest to the be ‘out of the mainstream.’ eral with whom Miguel Estrada worked distinguished Senator, just read The When I read this statement, I and for whom they had great affection. Nation magazine and you can find out thought it sounded familiar, so I took Seth Waxman, who is a great lawyer for yourself. Why should I provide in- a look at the remarks of my colleague here in this town and a partisan Demo- formation to you anymore? from New York Senator SCHUMER, It appears that the real reason for crat, basically said Estrada has every when he chaired a hearing in June 2001 this filibuster is the threat of a Justice qualification a person should have for at which he argued that a judicial Estrada on the Supreme Court. Of the bench and basically said he did a nominee’s ideology should play a role good job while at the Department. course, I take issue with the assertion in the confirmation process. I heard the distinguished Senator that Mr. Estrada would do any so- Sure enough, here is what my good from Illinois say he has little to show called damage on any court. In fact, I friend said: in legal writings. What about the 15 am confident that he would be a fair briefs he has written for the U.S. Su- and unbiased judge who would follow [T]his unwillingness to openly examine preme Court? That is a lot of legal ideology has sometimes led Senators who op- the law. He would not be an activist, pose a nominee to seek out non-ideological writings, more than almost any nomi- which is probably what this staffer disqualifying factors, like small financial nee we have had here in the history of meant when he said that Mr. Estrada improprieties from long ago, to justify their my 27 years on the Judiciary Com- would do a lot of damage. But I find it opposition. This, in turn, has led to an esca- mittee. What about all the appeal ironic that this staffer knew enough lating war of ‘‘gotcha’’ politics that, in my briefs he has written and the reply about Miguel Estrada last September judgment, has warped the Senate’s confirma- briefs he has written, not only on the to proclaim that he must be stopped at tion process and harmed the Senate’s reputa- Supreme Court but in the circuit all costs, when some of my Democratic tion. courts of appeals? They have access to friends insist on continuing this fili- Professor Sunstein also argues that: every one of those. What about all the buster because they allegedly do not [t]he senate should place the burden of written questions they have given him? know enough about his views. Read the proof—with respect to character, excellence, Only two asked for them after the Nation magazine. I think the real rea- and point of view—on the nominee. hearing, and then we agreed to provide son for this filibuster lies in the rest of He continues: him to answer more written questions, the staffer’s quote: That Mr. Estrada is In exercising its consent power, the Senate and only one or two have asked further a Supreme Court caliber attorney is entitled to reject nominees simply because written questions. whose ascension to the Federal bench they have not established that they have the There is no desire on the part of my must be stopped now. requisite qualities, even if there is consider- Democratic colleagues to learn more This unparalleled filibuster is one of able uncertainly on that point. about Miguel Estrada. There is a desire many weapons of obstruction designed Well, as we all know, after Senator to find something they can hang their to prevent the President from having SCHUMER’s hearing on ideology in the hat on to stop him because he is on the his nominees fairly considered and confirmation process, he held a second fast track to the Supreme Court, they voted upon by the Senate. This is ac- hearing arguing Professor Sunstein’s believe. The best way they can show cording to a partisan game plan, devel- precise point: That the burden of prov- President Bush they are not going to oped and coordinated as early as April ing worthiness for confirmation should have a conservative Hispanic on the 2001, when, according to the New York be on the nominee. In fact, this is one court is by attacking Miguel Estrada, Times, Senate Democrats met in a pri- of the factors sustaining this filibuster: and that is what is behind this matter. vate retreat to forge a unified party The ill-formed perception that Miguel Today we are debating a historic strategy to combat the White House on Estrada has not proven that he de- fourth cloture vote on the nomination judicial nominees. I would like them to serves to be confirmed to the DC Cir- of Miguel Estrada. No other Executive deny this. I would like them to tell me cuit. Calendar nominee, judicial or non- The New York Times misquoted and Back to Professor Sunstein. He also judicial, has ever been subjected to didn’t tell the truth here. They can’t says: four cloture votes in this body. Let me state that a clear majority of deny it. As one participant in the The President, his opponents say, chooses meeting stated, according to that press ‘stealth’ nominees whom he has reason to be- this body supports this nomination, as lieve are deeply conservative, but whose has been determined by the past three account, it was ‘‘important for the Senate to change the ground rules’’ on views the Senate will not be able to uncover. cloture votes. So it is regrettable that This, of course, is precisely how Sen- a minority of Senators have followed judicial nominations. ator SCHUMER characterized Mr. their script of obstructionism to pre- One of the three noted liberals who coached Senate Democrats on changing Estrada in The Nation magazine last vent the Senate from concluding this fall. He said: debate on this nomination and allow- the ground rules on judicial nomina- ing the Senate to proceed to a final tions was University of Chicago law Estrada is like a Stealth missile—with a professor Cass Sunstein. Just the other nose cone—coming out of the right wing’s vote. However, it is not surprising they deepest silo. have stalled this nomination. In Sep- day I came across a Yale Law Review I have heard a number of my other tember of last year, a Democratic article that Professor Sunstein co-au- Democratic colleagues join in the cho- staffer on the Judiciary Committee is thored in 1992 entitled The Senate, the rus of labeling Mr. Estrada a stealth quoted in The Nation magazine as say- Constitution, and the Confirmation nominee. ing: Process. This article advocates a con- firmation process in which the Senate Mr. President, I think I have made Estrada is 40, and if he makes it to the cir- cuit then he will be Bush’s first Supreme plays a more aggressive and high-pro- my point. This 1992 article written by Court nominee. He could be on the Supreme file role. I found surprisingly familiar Cass Sunstein provided the basis for Court for 30 years and do a lot of damage. We many of the principles he propounds in the model that some of my Democratic have to stop him now. that article because I have heard a colleagues are using to stall up or down That, by the way, is a Democratic number of my Democratic colleagues votes on President Bush’s judicial staffer on the Senate side. also arguing for their adoption time nominees, including Miguel Estrada. Mr. LEAHY. Will the Senator yield? and again in the Judiciary Committee This filibuster is part of a coordinated Do you have the name? and on the Senate floor. attack designed to deny President Mr. HATCH. I am not going to name For example, Professor Sunstein Bush’s circuit nominees a seat on the names on the floor. says: Federal bench.

VerDate Mar 15 2010 21:02 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\2003SENATE\S02AP3.REC S02AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY April 2, 2003 CONGRESSIONAL RECORD — SENATE S4669 Don’t get me wrong—Professor including the majority leader, Bill Frist, control the White House and Congress and Sunstein is an unabashedly liberal law voted to filibuster when President Clinton are now aiming for the third branch of gov- professor, and as such it can be argued nominated Richard Paez, a Mexican-Amer- ernment. Not only will Bush likely get the that he has carte blanche, or even an ican, to an appeals court. Rather than de- chance to push the divided Supreme Court monizing Democratic senators, the White rightward with an appointment or two. He obligation, to push the far-left enve- House should look for common ground. In already is reshaping the appeals courts one lope, which he regularly does. But this the case of Mr. Estrada, it should respect the level below the Supreme Court. Because fed- does not mean that my Democratic col- Senate’s role in the process by making his eral judgeships are for life, what is at stake leagues have an obligation to blindly full record available. And going forward, it is what the law of the land will be for the follow him into the far-left. Some of should choose judicial nominees from the next two or three decades. That’s why the them have refused to do so, and I com- ideological mainstream, who do not prompt continuing Senate filibuster transcends mend them for that. the sort of bitter partisan divisions that Mr. Estrada. Its aim is to use what little Demo- For the others, I will repeat my sen- Estrada has. cratic power is left to force the White House and Senate Republicans to the table to ham- timents which I stated here on the Sen- [From the Connecticut Law Tribune, Mar. 24, mer out a more bipartisan, more balanced ate floor just a few weeks ago. This his- 2003] approach to judge-picking. toric cloture vote represents another NOMINATION BATTLES opportunity for my Democratic col- Because federal judgeships are for life, [From the Troy Record Editorial, Mar. 10, leagues to reverse course. This is the what is at stake is what the law of the land 2003] time to end their dangerous obstruc- will be for the next two or three decades. SENATE JUDGMENT WISE IN ESTRADA tionist tactics and grant Mr. Estrada That’s why the continuing Senate filibuster NOMINATION the up or down vote any judicial nomi- transcends Estrada. Its aim is to use what In reality, a Court of Appeals judgeship is nee deserves. They are free to vote little Democratic power is left to force the a lifetime appointment. This means that the against confirming him if they truly White House and Senate Republicans to the 39-year-old Estrada could be making deci- believe that he has not answered their table to hammer out a more bipartisan, more sions from the bench for 30 or 40 years. . . . questions, or that his record is incom- balanced approach to judge-picking. Democrats on the Committee want to get a feel for how Estrada will rule when the rub- plete without examining the Solicitor [From the Daily News, Mar. 31, 2003] General memoranda. But they should ber meets the road, and that is certainly THE QUOTABLE LINCOLN fair. Is it out of the question for Estrada to not continue to obstruct the will of the By President Lincoln’s reasoning, Mr. let the committee know the name of a judge majority of this body that desires to Estrada is not qualified for the court ap- he admires? Why wouldn’t he name a Su- give this nominee a vote. pointment if his opinions are unknown pub- preme Court decision he disagrees with, or Mr. President, how much time re- licly. The full quotation comes to light as approves of? These are not unreasonable mains on my side? the Senate Republicans vow to keep bringing questions. . . . The Senate is right not to The PRESIDING OFFICER. The Sen- up the Estrada nomination against the oppo- simply rubber stamp his nomination. ator from Utah has 6 minutes 10 sec- sition of all but a handful of the Democrats. onds. The Republicans, including both Maine sen- [From the American Prospect, Mar. 17, 2003] Mr. HATCH. Mr. President, I reserve ators, have been unable to muster more than RULE BREAKER: WHEN IT COMES TO HELEN the remainder of my time. 55 of the necessary 60 votes to break the fili- THOMAS, MIGUEL ESTRADA AND ACTS OF buster. Mr. LEAHY. To date, there have been WAR, GEORGE W. BUSH ISN’T BIG ON CON- VENTION at least 77 editorials and op-eds in sup- [From the Times Union, Mar. 20, 2003] port of the position of Democratic Sen- Then there’s the tussle over judicial nomi- ESTRADA SHOULD ANSWER QUESTIONS IN nee Miguel Estrada. Bush doesn’t like the ators on the nominations of Mr. Miguel PUBLIC Estrada’s nomination to the Court of fact that Democratic senators are filibus- Since Mr. Estrada doesn’t have experience tering Estrada’s nomination. So he sug- the Appeals for D.C. Circuit. On March to bolster his candidacy, he must provide gested changing the rules to ‘‘ensure timely 6, 2003, I placed in the CONGRESSIONAL convincing evidence of his ability to per- up-or-down votes on judicial nominations RECORD excerpts of the editorials and form. If he is qualified to serve, he should both now and in the future, no matter who is op-eds that had been published by that step up to the plate and tell us, in a public the president or what party controls the date, because Republicans had been as- hearing. If not, he should step aside and let Senate.’’ According to the Senate’s Web site, serting that there were only a handful the Senate get on with its business. filibusters have been around since the early of editorials or op-eds in support of our days of Congress and have been popular since [From the Orlando Sentinel Tribune, Mar. 23, concerns. Here are some excerpts from the 1850s. It’s hard to remember the last 2003] time a president suggested that the Senate 24 additional editorials and op-eds ex- WILL ESTRADA PROTECT THE RIGHTS OF change one of its oldest traditions. There pressing concerns about Mr. Estrada’s LATINOS? have been plenty of presidents who haven’t nomination, bringing the total to at At his hearing before the Senate, Estrada liked congressional rules, but that doesn’t least 77. This controversial nomination failed to answer senator’s questions, and he mean they’ve suggested changing them just continues to divide, rather than to hid his views from the Senate and the public. to accomplish one goal. unite, the American people. Because of his limited record, it was impor- I ask unanimous consent to print in tant for Estrada to be forthcoming and give [From the Times Herald-Record, Mar. 9, 2003] the RECORD excerpts of 24 recent edi- senators the opportunity to find out more HOW TO END THE FILIBUSTER about the kind of judge he would be; yet he torials or op-eds, in addition to those That’s not nearly as bad as the charge by chose to remain silent. . . . The little we do printed last month. some Republicans that Democrats are oppos- know about his record is very troubling. . . . There being no objection, the mate- ing Estrada because he’s Hispanic and, as a Defeating his nomination would not send the result, Democrats are preventing a group of rial was ordered to be printed in the message to Latinos that ‘‘only a certain kind people from achieving a milestone. Do these RECORD, as follows: of Latino need apply.’’ On the contrary, it people ever listen to themselves? For a host [From the New York Times, Mar. 13, 2003] would send the message that everyone in of reasons, including support of immigration America is judged by the same standard. If HOLD FIRM ON ESTRADA and education reform, pro-union and pro- you cannot be fair and protect the basic con- [Supporters] argued that handing over Mr. labor policies and a philosphy that embraces stitutional rights of the common person, you Estrada’s memorandums would be a viola- affirmative action, the Democratic Party do not deserve to serve in a judicial appoint- tion of privacy, although other nominees, in- has enjoyed the support of a majority of the ment, no matter what your race or ethnicity cluding Chief Justice William Rehnquist and nation’s growing Hispanic community for is. Judge Robert Bork, did so in their own con- some time. In fact, many Hispanic groups op- firmation hearings. Supporters have also pose Estrada’s nomination because they do [From the Connecticut Law Tribune, Mar. 24, contended, shamefully, that opposition to not think he understands or is sensitive to 2003] Mr. Estrada is anti-Latino, even though his issues and aspirations that are important to nomination is opposed by the Congressional NOMINATIONS BATTLES Hispanics in America.... It would have Hispanic Caucus, the Mexican American Miguel Estrada is being treated the same been nice, then, had Clinton been able to se- Legal Defense and Educational Fund and way Republicans treated Democratic nomi- cure a floor vote for other highly qualified other leading Latino groups. Now Repub- nees for years, Hispanic or otherwise. The Harvard Law School graduates whose nomi- licans are attacking Democratic senators for battle is intense because the stakes are high. nations languished and eventually died in using a filibuster. The criticism rings hol- At issue is the American principle of checks the Senate Judiciary Committee, which was low, given that some Republicans making it, and balances, and more. Republicans already controlled by Republicans.... The Senate

VerDate Mar 15 2010 21:02 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\2003SENATE\S02AP3.REC S02AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S4670 CONGRESSIONAL RECORD — SENATE April 2, 2003 should not rubber stamp a president who [From the Orlando Sentinel, Mar. 16, 2003] ert Bork’s 1987 confirmation battle, written wants to tilt the court heavily to one side. SENATE NEEDS MORE INFORMATION ON by a lawyer in the solicitor general’s office ESTRADA who held precisely the same job as Estrada. [From the Dayton Daily News, Mar. 14, 2003] [T]he issue we are debating, the relative [From the Chicago Sun Times, Mar. 14, 2003] THERE’S EASY FIX FOR JUDGE HOLDUPS roles of the executive and legislative, is not President Bush has called on the Senate to a trivial issue. It goes to the heart, as John IF ESTRADA THINKS THAT BEING LATINO IS permanently ban any filibustering over judi- Adams said, of the stability of government, ENOUGH TO GET HIM CONFIRMED, HE’SIN cial nominations.... A president genuinely because it goes to the independence of the ju- FOR A RUDE AWAKENING interested in a judiciary that works won’t diciary.... I believe we are being called to Bush obviously wants to score political map a strategy that allows presidents to resist an effort to inappropriately utilize ex- points with Latino voters . . . Latinos de- push through any nominee at will. Doing so ecutive power and to exclude the legislative serve and demand better. Estrada may be allows for, even invites, an ideological judi- role in the appointment of federal judges. well-qualified, but so are other Latinos ciary prone to extremes. It undermines merit whose legal writings are not being guarded appointments in favor of lifetime appoint- [From the San Antonio Express, Mar. 13, as if they were state secrets. Bush may be ments handed out like so many political 2003] able to get Congress to pass a bill without al- plums. AN OK FOR ESTRADA WON’T HELP NATION lowing it to be read first, but the Senate should not abdicate its constitutional obliga- We should expect more than a federal judi- [From the Sarasota Herald-Tribune, Mar. 16, tion to give its advice and consent on these cial nominee, and we should not set a prece- 2003] lifetime appointees. Bush’s political stock is dent that would allow future presidents and POWER, NOT ETHNICITY, AT ISSUE sinking, and Latino political stock is rising. nominees to act without regard for the Sen- The way I see it, Bush needs us more than we The Republican strategy is to win his ap- ate’s role in a system of checks and balances. proval by charging that opponents are moti- need him. So Bush should nominate someone most Latinos can live with, be proud of and vated by prejudice.... It is also a totally [From the Chattanooga Times/Chattanooga support, or no one at all. Time is on our side. despicable tactic, designed to avoid discus- Free Press, Mar. 12, 2003] sion of the reason most Democrats oppose Bush doesn’t get it: Not just any Latino Estrada. This reason has nothing to do with THE CASE AGAINST ESTRADA judge will do. Estrada’s ethnicity or legal ability, but rath- Senate Democrats are hanging tough er the drive by Bush and like-minded Repub- against President Bush’s nomination of [From the Copley News Service, Mar. 6, 2003] licans to pack the federal courts from top to Miguel Estrada for a federal appellate judge- THE DECISION OF A LIFETIME ship. Wish them well. They are doing right- bottom with radical rightists. Not, mind Miguel Estrada, along with the White eous work. The Constitution obliges the Sen- you, conservatives interested in preserving House and Republican Senate leadership, ate to advise and consent on judicial ap- our institutions and values but radical activ- would do well to take notice. They complain pointments. This is the advise part and, no, ists who want to uproot many of the laws that the Democrats seek too much informa- this meltdown does not have anything to do and court decisions of the last 50 years. tion as their price for putting Estrada’s nom- with who is pro- or anti-Hispanic, as Repub- Estrada would be such a judge. . . Senators ination to a vote.... Under White House licans are charging in a campaign that is who try to keep that from happening deserve coaching, perhaps, Estrada proved strangely cynical even by Washington standards. There the thanks of the American people, not the tight-lipped. Inasmuch as he has not served a is a very serious issue at the core of this dis- calumny heaped on them by a president who previous judgeship, there was no ‘‘paper pute—nothing less than the fundamental na- last week showed his lack of understanding trail’’ by which to gauge the man’s legal phi- ture of the federal judiciary—and the at- of the roles of the separate branches of gov- losophy. ernment by pressuring the Senate to change tempt to defame opposition to Estrada as anti-Hispanic prejudice is absurd on its face. its rules for debate and allow a one-vote ma- [From the Houston Chronicle, Mar. 16, 2003] jority to ramrod presidential appointments through the Senate.’’) [From the Sarasota Herald-Tribune, Mar. 16, OH, NO, IDEOLOGICAL JUDGES; SAY IT ISN’T SO 2003] Estrada is bright and far right. Just how [From the Copley News Service, Mar. 20, POWER, NOT ETHNICITY, AT ISSUE far right is a question that the Bush admin- istration doesn’t want to answer. The White 2003] The Republican strategy is to win his ap- House is refusing to let senators see memos WISE WORDS FOR THE SENATE proval by charging that opponents are moti- Estrada wrote while working in the solicitor Republicans like to blame Democratic vated by prejudice. This is a powerful weap- general’s office and that would shed plenty stalling for judicial vacancies. But that on in states with heavy Mexican or Cuban of light on the issue. Instead, Republicans starts the book in the middle. The early populations. It is also a totally despicable are offering a second Estrada appearance be- chapters, which the GOP ignores, deal with tactic, designed to avoid discussion of the fore the Judiciary Committee. Judging by Republican inaction on Clinton’s nominees. reason most Democrats oppose Estrada. This Estrada’s lock-jawed performance last Sep- reason has nothing to do with Estrada’s eth- tember, it would be a gigantic waste of time [From the Capital Times, Mar. 11, 2003] nicity or legal ability, but rather the drive (which, of course, the White House knows). BLOCKING A BAD CHOICE by Bush and like-minded Republicans to There is a common theme in Estrada’s and pack the federal courts from top to bottom The White House has stonewalled the re- Owen’s attempts to get on the circuit court with radical rightists. Not, mind you, con- quest for the papers and has refused to allow bench. It involves, to put it mildly, evasion servatives interested in preserving our insti- Estrada to participate in a public hearing and equivocation. where he could be asked further questions. tutions and values but radical activists who want to uproot many of the laws and court Those hardball tactics have upset even mod- [From the Ventura County Star, Mar. 16, decisions of the last 50 years. Estrada would erate and conservative members who might 2003] be inclined to support Estrada. Daschle and be such a judge. At least that is a fair as- the Democrats are right on this one. Unless sumption based on the record of the Senate WHAT DO WE KNOW ABOUT JUDICIAL NOMINEE? Estrada and the White House are willing to committee hearing on his confirmation. He Judges are supposed to be able to look at cooperate with the confirmation process, the wasn’t willing to offer his views on many of attorney’s arguments with impartiality and Senate need not consider this nomination. the most pertinent and controversial con- determine which side has a stronger case stitutional questions of concern to courts, within the letter and spirit of the law. To be [From the Reno Gazette Journal, Mar. 11, Congress and the public. He declined to make effective and just, the judiciary must be nei- 2003] available memoranda he wrote for the office ther liberal nor conservative. The judiciary YOUR TURN: JUDICIAL CANDIDATE SHOULD of solicitor general when he worked there. must be independent, concerned only with ANSWER QUESTIONS The solicitor general has provided such docu- the integrity of law. That’s a high ideal and, ments in other confirmation hearings, in- of course, nearly impossible to reach, but it’s When asked his views on civil rights, wom- cluding those of Rehnquist, Bork and what we should be reaching for. The fact is en’s rights, environmental protections, Esterbrook. we have no idea if Mr. Estrada is capable of workers’ rights, Mr. Estrada said he had no impartiality, and he’s not willing to discuss views. When asked which Supreme Court jus- [From the New Republic, Apr. 7, 2003] it. tice he would emulate, Mr. Estrada said he couldn’t answer. The service promoting Mr. PRIVATE OPINION [From the Houston Chronicle, Mar. 7, 2003] Estrada—the White House—surely asked One reason Senate Democrats haven’t been these questions before nominating him. To swayed by these arguments is that they’re YAKETY, YAK—KEEP TALKING SENATORS be sure, they got the answers .... Other really not true: Democratic researchers have So undemocratic, wail the Republicans nominees have asked similar questions. They unearthed records from at least five judicial- desperate to get on with a vote on the nomi- are provided the same type of docu- confirmation hearings in which government nation of Miguel Estrada to the U.S. Circuit ments.... Would you hire him for the job? legal memoranda were delivered to the Sen- Court of Appeals for the District of Columbia Would you hire him if you couldn’t fire him? ate. Their favorite example is the Justice before anyone can find out how right-wing Of course not. Department’s release of memos during Rob- the former Justice Department official

VerDate Mar 15 2010 21:02 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\2003SENATE\S02AP3.REC S02AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY April 2, 2003 CONGRESSIONAL RECORD — SENATE S4671 might actually be. Some of these Repub- But as the former Republican leader Court Justices, when he wrote an At- licans are the same people—and are certainly admitted—and I commend him for torney General Opinion in 1941 ac- of the same party—who over the years have this—they did not have to go to filibus- knowledging that among the occasions attempted to talk to death many bills and nominations. ters on most of these because they when exceptions should be made and never brought them up at all. They Executive department files would be Additionally, here is an excerpt of an never had a hearing on them. They produced to the Congress would be con- additional news article that is note- never had a vote on them in committee firmations. As Attorney General Jack- worthy for its assessment of the refusal or anywhere else. In effect, they had a son noted: of the White House to release the docu- filibuster of one. If any one Republican ments requested, despite the precedent Of course, where the public interest has Senator objected to any one of Presi- seemed to justify it, information as to par- and despite the interest of some Repub- dent Clinton’s nominees, or just a few, ticular situations has been supplied to con- lican Senators in doing so: the caucus would make the determina- gressional committees by me and by former [From the Weekly Standard, Mar. 17, 2003] tion they would never get a hearing. Attorneys General. For example, I have taken the position that committees called FILIBUSTER SI, ESTRADA NO! The distinguished chairman at that The White House refused . . . access to upon to pass on the confirmation of persons time would not give them a hearing. recommended for appointment by the Attor- Estrada’s working papers. Period. This ada- They would not get a vote. It was only mantine posture, in the eyes of some in Sen- ney General would be afforded confidential ate GOP leadership circles, handcuffed Frist. if the caucus decided that they would access to any information that we have—be- ‘‘There’s some frustration,’’ said a top GOP be allowed to go forward would they cause no candidate’s name is submitted leadership aide. ‘‘From the very beginning even get a vote. without his knowledge and the Department we told them that was the only way out and So it begs credulity to hear this kind does not intend to submit the name of any a face-saver for everyone. But it came down of sophistry on the Senate floor and person whose entire history will not stand to the fact that no one on the White House the nature of a ‘‘filibuster’’ being con- light. or Justice team wanted to walk into the stantly redefined. They would not I mentioned the additional example Oval Office and say to the president, ‘‘You allow them to come to a vote at all. of similar materials that were provided might have to give up these memos.’’ The ad- During the 17 months when we con- to Congress in 1982 by the Reagan ad- ministration’s position on the memos re- trolled the Senate Judiciary Com- ministration when the Senate Finance flects its deeply held ethic of aggressively Committee held a hearing to consider defending executive branch prerogatives. mittee, we confirmed 100 of President Though the White House has never charac- Bush’s nominees. We had hearings on legislation to deny federal tax-exempt terized the Estrada matter as one of execu- 103. We voted down 2. We confirmed 100. status to private schools practicing ra- tive privilege ... it falls into the broad cat- There was no similar period of time cial discrimination. A number of Jus- egory of executive branch muscularity. And when President Clinton was in office tice Department memoranda, as well as while most Republicans generally support and the Republicans were in control communications between high-level of- this posture, some Bush allies on and off that they passed anywhere near as ficials, were turned over by the Reagan Capitol Hill have come to question the ad- many judges for President Clinton. administration to the Senate Finance ministration’s fastidiousness in the Estrada Committee in connection with the fight. I wonder if I could have order just for hearing, just months after the docu- In addition, there have been dozens the sake of precedent. The PRESIDING OFFICER. The Sen- ments were first written. The issues at and dozens and dozens of letters to the ate will be in order. that hearing reveal that some of the editor published in opposition to edi- The Senator from Vermont. documents turned over were much torials supporting the Republican posi- Mr. LEAHY. We moved them more sensitive than those requested of tion on this nomination. Here is just through. And we got rid of the anony- Mr. Estrada, but they were still pro- one sample of those many letters from mous holds. We got rid of the secret vided to Congress by the Reagan ad- citizens across the country: holds. I will explain in greater detail. ministration. [From the Washington Post, Mar. 20, 2003] Mr. President, the Republican leader- The documents turned over to the BEHIND THE ESTRADA FILIBUSTER ship in the Senate has chosen today for Senate included: The depth of Mr. Estrada’s sentiments on another in a series of cloture votes on Letters from Representative TRENT issues facing the federal courts seems to be this divisive nomination. Nothing has LOTT to Secretary Regan, IRS Commis- known only to the far-right members of the significantly changed since it forced sioner Egger, and Solicitor General legal community who support him and to the Lee, urging change in the administra- Bush administration. The question is wheth- the three previous cloture votes. The er the Senate, which has an equal say in administration’s obstinacy continues tion’s position on Bob Jones; memo- whether Mr. Estrada will sit on the U.S. to impede progress to resolve this mat- randum from Associate Deputy Attor- Court of Appeals for the D.C. Circuit, has an ter. The administration remains intent ney General Bruce Fein to Deputy At- equal right to the information, including on packing the Federal circuit courts torney General Edward Schmults, ad- Justice Department memorandums, that is and on insisting that the Senate rubber vising Schmults on private schools; available to the administration. It is far stamp its nominees without fulfilling memorandum from Carolyn Kuhl, Spe- from extortionate that senators not be cial Assistant to the Attorney General, forced to vote without the information the the Senate’s constitutional advise and administration holds. consent role in this most important to Ken Starr, noting Reagan/Bush cam- paign statements on private schools; The PRESIDING OFFICER. Who process. The White House could have yields time? long ago helped solve the impasse on memorandum from Peter Wallison, The Senator from Vermont. the Estrada nomination by honoring Treasury General Counsel, to Sec- Mr. LEAHY. Mr. President, I try to the Senate’s role in the appointment retary Regan briefing him on meeting keep a straight face when I hear my process and providing the Senate with with Representative LOTT; memo- good friend, the distinguished Senator access to Mr. Estrada’s legal work. randum from Treasury General Counsel from Utah, speaking, but it is hard. He Past administrations have provided Wallison to Deputy Secretary has been able to master the ability to such legal memoranda in connection McNamar and Secretary Regan on Gov- look stern and self-righteous, as he has with the nominations of Robert Bork, ernment’s position in Bob Jones case; throughout a recitation of the revi- William Rehnquist, Brad Reynolds, memorandum from Civil Rights Divi- sionist history here. Stephen Trott and Ben Civiletti, and sion Head, William Bradford Reynolds, The question of precedent? The Re- even this administration did so with a to Attorney General Smith justifying publicans joined the filibusters of Ste- nominee to the Environmental Protec- changes in administration’s position on phen Breyer to the First Circuit, Judge tion Agency. In my statement in con- Bob Jones; memorandum from Treas- Rosemary Barkett to the Eleventh Cir- nection with the last cloture vote I ury Assistant Secretary for Public Af- cuit, Judge H. Lee Sarokin to the outlined additional precedent for shar- fairs, Ann McLaughlin, to Deputy Sec- Third Circuit, Judge Richard Paez to ing the requested materials with the retary McNamar on ‘‘press strategy’’ the Ninth Circuit, and Judge Marsha Senate as did Senator KENNEDY. for releasing Bob Jones decision; Berzon to the Ninth Circuit. We had to We have the statement of Attorney memorandum from IRS Chief Counsel have cloture votes on all but one of General Robert H. Jackson, who later Gideon to Treasury Deputy General these and on several others. became one of our finest Supreme Counsel Government’s statement in

VerDate Mar 15 2010 21:02 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\2003SENATE\S02AP3.REC S02AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S4672 CONGRESSIONAL RECORD — SENATE April 2, 2003 Bob Jones; letter from IRS Chief Coun- what happened during the years in missed some arguments by junior law- sel Gideon to Civil Rights Division which the Republican majority in the yers.’’ Our review of the requested doc- Head Reynolds on formulation of Gov- Senate blocked and delayed so many of uments would end the mystery and ernment’s statement in Bob Jones; and President Clinton’s judicial nominees. speculation. memorandum from Assistant Attorney The Senator from Mississippi also ac- One of the most disconcerting as- General Theodore Olson, Office of knowledged that ‘‘you filibuster a lot pects of the manner in which the Sen- Legal Counsel, to Attorney General of different ways.’’ I thank the Senator ate is approaching these divisive judi- Smith and Deputy Attorney General from Mississippi for trying to be con- cial nominations is what appears to be Schmults responding to the analysis in structive and for suggesting that the Republican majority’s willingness Reynolds’ memo on Bob Jones. ‘‘something can be worked out’’ on the to sacrifice the constitutional author- In 1982, the Republican administra- request for Mr. Estrada’s work papers ity of the Senate as a check on the tion at that time released to the Sen- from the Department of Justice. power of the President in the area of ate documents that included internal A recent edition of The Weekly lifetime appointments to our federal memoranda among high-level Justice Standard, a report suggests that other courts. It should concern all of us and Department officials, inter-agency Senate Republicans, ‘‘several veteran the American people that the Repub- communications, and documents relat- GOP Senate staffers’’ and ‘‘a top GOP lican majority’s efforts to re-write Sen- ing to the government’s position in an leadership aide’’ asked the White House ate history in order to rubber stamp important Supreme Court case. They to show some flexibility and to share this White House’s federal judicial also included letters to the Solicitor the legal memoranda with the Senate nominees will cause long-term damage General. to resolve this matter, but they were to this institution, to our courts, to Moreover, the Reagan administration rebuffed. It is regrettable that the our constitutional form of government, turned over these documents within White House will not listen to reason to the rights and protections of the months after being written, and no from Senate Democrats or Senate Re- American people and to generations to harm was done to the workings of the publicans. If they had, there would be come. Justice Department or the administra- no need for this cloture vote. The Republicans are now willing to tion. The Bush administration is White House is less interested in mak- breach the 24-year-old rule of the Judi- claiming that it is unprecedented to ing progress on the Estrada nomina- ciary Committee that had always pro- turn over such documents—and that tion than in trying to score political tected the right of the minority to de- the release of documents written by points and to divide the Hispanic com- bate a matter. Republicans have now Mr. Estrada 6 to 10 years earlier would munity. established a double standard with re- irreparably harm the government. I The real ‘‘double standard’’ here is spect to the opposition of home-state urge the administration and Repub- that the President selected Mr. Estrada Senators. If the opposition to a judicial lican Senators to consider this addi- based in large part on his work for four nominee is that of a Republican home tional precedent. and a half years in the Solicitor Gen- State Senator to a nominee of a Demo- I also noted how in 2001, this White eral’s Office as well as for his ideolog- cratic President, it is honored and no House agreed to give access to memo- ical views, but the Administration says hearing may go forward. But if the op- randa written by Jeffrey Holmstead, that the Senate may not examine his position is to a judicial nominee of a nominated to be an Assistant Adminis- written work from the office that Republican President by a Democratic trator of the Environmental Protection would shed the most light on his views. home State Senator, well that is too Agency. The Senate Committee on En- The White House says that the Senate bad and the Republican majority does vironment and Public Works requested should not consider the very ideology not choose to defer or care or honor memoranda from Holmstead’s years of the White House took into account in that objection. service in the White House counsel’s of- selecting a 41-year-old for a lifetime The White House is using ideology to fice under former President Bush. In seat on the country’s second-highest select its judicial nominees but is try- particular, the Committee was inter- court. Another double standard at ing to prevent the Senate from know- ested in materials related to work here is that this is a nominee who ing the ideology of these nominees Holmstead’s handling of an amendment is well known for having very pas- when it evaluates them. It was not so to the Clean Air Act and other environ- sionate views about judicial decisions long ago when then-Senator Ashcroft mental issues. In the summer of 2001, and legal policy and is well known for was chairing a series of Judiciary Com- the Bush administration resolved an being outspoken, and yet he has re- mittee hearings at which Edwin Meese impasse with the Committee over the fused to share his views with the very III testified: people charged with evaluating his nomination by permitting Committee I think that very extensive investigations staffers to review memoranda that nomination. It seems to be a perversion of each nominee—and I don’t worry about Holmstead wrote while in the White of the constitutional process to require the delay that this might cause because, re- House counsel’s office. In sum, the ad- the Senate to stumble in the dark member, those judges are going to be on the ministration allowed access to docu- about his views, when he shares his bench for their professional lifetime, so they ments from the White House counsel’s views quite freely with others and have got plenty of time ahead once they are office—a more sensitive post than the when this Administration has selected confirmed, and there is very little oppor- one Mr. Estrada held when he was in him for the privilege of this high office, tunity to pull them out of those benches once they have been confirmed—I think a the Department of Justice. and for life, based on those views. Just this past weekend, a story in careful investigation of the background of So, despite this administration’s con- each judge, including their writings, if they tinued insistence on confidentiality, it The New York Times reported that have previously been judges or in public posi- has turned over, allowed access or during his nomination hearing which I tions, the actions that they have taken, the worked to reach an accommodation on scheduled and Senator SCHUMER decisions that they have written, so that we access to documents similar to those chaired last September, ‘‘Mr. Estrada can to the extent possible eliminate people requested in connection with the took what is often called ‘the judicial who would turn out to be activist judges Estrada nomination in other cases and fifth,’ declining to answer many ques- from being confirmed. for other committees. In the matter of tions by saying that he could not com- Timothy E. Flanigan, an official the Estrada nomination, the question ment on issues that might come before from the administration of the Presi- before the Senate concerns a lifetime him should he be confirmed.’’ The re- dent’s father, and who more recently appointment to the second-highest port correctly continued: ‘‘It is a com- served as Deputy White House Counsel, court in the land. mon approach for judicial nominees, helping the current President select his The former Republican leader accept- but Mr. Estrada was more reticent judicial nominees, testified strongly in ed ‘‘part of the blame’’ for how the than most.’’ The report also notes that: favor of ‘‘the need for the Judiciary Senate has come to consider judicial ‘‘Mr. Estrada gave a hint that what the Committee and the full Senate to be nominations. I appreciate that because memorandums might disclose was his extraordinarily diligent in examining it is one of the few times a Republican impatient manner when he told the the judicial philosophy of potential Senator has accepted responsibility for committee he might have harshly dis- nominees.’’ He continued:

VerDate Mar 15 2010 21:02 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\2003SENATE\S02AP3.REC S02AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY April 2, 2003 CONGRESSIONAL RECORD — SENATE S4673 In evaluating judicial nominees, the Sen- suggestions that the Democratic leader never confirmed to his position as So- ate has often been stymied by its inability to and assistant leader have consistently licitor General because Republicans obtain evidence of a nominee’s judicial phi- made during this debate when he had made clear their opposition to him. losophy. In the absence of such evidence, the Senate has often confirmed a nominee on the agreed on February 14 that they point- In addition, in 1993, Republicans ob- theory that it could find no fault with the ed the way out of the impasse. Regret- jected to a number of State Depart- nominee. tably, his efforts and judgment were ment nominations and even the nomi- I would reverse the presumption and place also rejected by the administration. nation of Janet Napolitano to serve as the burden squarely on the shoulders of the The Supreme Court, in an opinion au- the U.S. Attorney for Arizona, result- judicial nominee to prove that he or she has thored last year by none other than ing in cloture petitions. a well-thought-out judicial philosophy, one Justice Scalia, one of this President’s In 1994, Republicans successfully fili- that recognizes the limited role for Federal judicial role models, instructs that ju- bustered the nomination of Sam Brown judges. Such a burden is appropriately borne by one seeking life tenure to wield the awe- dicial ethics do not prevent candidates to be an Ambassador. After three clo- some judicial power of the United States. for judicial office or judicial nominees ture petitions were filed, his nomina- Now that the occupant of the White from sharing their judicial philosophy tion was returned to President Clinton House no longer is a popularly-elected and views. without Senate action. Also in 1994, Democrat but a Republican, these prin- With respect to ‘‘precedent,’’ Repub- two cloture petitions were required to ciples seem no longer to have any sup- licans not only joined in the filibuster get a vote on the nomination of Derek port within the White House or the of the nomination of Abe Fortas to be Shearer to be an Ambassador. And it Senate Republican majority. Fortu- Chief Justice of the United States Su- likewise took two cloture petitions to nately, our constitutional principles preme Court, they joined in the fili- get a vote on the nomination of Ricki and our Senate traditions, practices buster of Stephen Breyer to the First Tigert to chair the FDIC. So when Re- and governing rules do not change with Circuit, Judge Rosemary Barkett to publican Senators now talk about the the political party that occupies the the Eleventh Circuit, Judge H. Lee Senate Executive Calendar and presi- White House or with a shift in majority Sarokin to the Third Circuit, and dential nominees, they must be re- in the Senate. Judge Richard Paez and Judge Marsha minded that they recently filibustered The White House, in conjunction Berzon to the Ninth Circuit. The truth many, many qualified nominees. with the new Republican majority in is that filibusters on nominations and Nonetheless, in spite of all the in- the Senate, is purposeful in choosing legislative matters and extended de- transigence of the White House and all these battles over judicial nomina- bate on judicial nominations, including of the doublespeak by some of our col- tions. Dividing rather than uniting has circuit court nominations, have be- leagues on the other side of the aisle, I become their modus operandi. The de- come more and more common through can report that the Senate has moved cision by the Republican Senate major- Republicans’ own actions. forward to confirm 115 of President ity to focus on controversial nomina- Of course, when they are in the ma- Bush’s judicial nominations since July tions says much about their mistaken jority Republicans have more success- 2001. That total includes 15 judges con- priorities. The Republican majority fully defeated nominees by refusing to firmed so far this year, including two sets the agenda and they schedule the proceed on them and have not publicly controversial nominees to the circuit debate, just as they have again here explained their actions, preferring to courts. today. act in secret under the cloak of ano- Those observing these matters might I have served in the Senate for 29 nymity. From 1995 through 2001, when contrast this progress with the start of years, and until recently I have never Republicans previously controlled the the 106th Congress in which the Repub- seen such stridency on the part of an Senate majority, Republican efforts to lican majority in the Senate was delay- administration or such willingness on defeat President Clinton’s judicial ing consideration of President Clin- the part of a Senate majority to cast nominees most often took place ton’s judicial nominees. In 1999, the aside tradition and upset the balances through inaction and anonymous holds first hearing on a judicial nominee was embedded in our Constitution, in order for which no Republican Senator could not until mid-June. The Senate did not to expand presidential power. What I be held accountable. In effect, these reach 15 confirmations until September find unprecedented are the excesses were anonymous ‘‘filibusters.’’ of that year. Accordingly, the facts that the Republican majority and this Republicans held up almost 80 judi- show that Democratic Senators are White House are willing to indulge to cial nominees who were not acted upon being extraordinarily cooperative with override the constitutional division of during the Congress in which President a Senate majority and a White House power over appointments and long- Clinton first nominated them, and they that refuses to cooperate with us. We standing Senate practices and history. eventually defeated more than 50 judi- have made progress in spite of that It strikes me that some Republicans cial nominees without a recorded Sen- lack of comity and cooperation. seem to think that they are writing on ate vote of any kind, just by refusing We worked hard to reduce federal ju- a blank slate and that they have been to proceed with hearings and com- dicial vacancies to the lowest level it given a blank check to pack the courts. mittee votes. has been in more than seven years. They show a disturbing penchant for Beyond judicial nominees, Repub- That is an extremely low vacancy num- reading the Constitution to suit their licans also filibustered the nomination ber based on recent history and well purposes of the moment rather than as of executive branch nominees. They below the 67 vacancies that Senator it has functioned for more than 200 successfully filibustered the nomina- HATCH termed ‘‘full employment’’ on years to protect all Americans through tion of Dr. Henry Foster to become the federal bench during the Clinton its checks and balances. Surgeon General of the United States administration. The Democratic Leader pointed the in spite of two cloture votes in 1995. Dr. It is unfortunate that the White way out of this impasse again in his David Satcher’s subsequent nomina- House and some Republicans have in- letter to the President on February 11. tion to be Surgeon General also re- sisted on this confrontation rather It is regrettable that the President did quired cloture but he was successfully than working with us to provide the not respond to that reasonable effort to confirmed. needed information so that we could resolve this matter. Indeed, the letter Other executive branch nominees proceed to an up-or-down vote. Some he sent last week to Senator FRIST was who were filibustered by Republicans on the Republican side seem to prefer not a response to Senator DASCHLE’s include Walter Dellinger’s nomination political game playing, seeking to pack reasonable and realistic approach, but to be Assistant Attorney General, and our courts with ideologues and leveling a further effort to minimize the Sen- two cloture petitions were required to baseless charges of bigotry, rather than ate’s role in this process by proposing be filed and both were rejected by Re- to work with us to resolve the impasse radical changes in Senate rules and publicans. In this case we were able fi- over this nomination by providing in- practices to the great benefit of this nally to obtain a confirmation vote formation and proceeding to a fair Administration. after an elaborate effort, and Mr. vote. A distinguished senior Republican Dellinger was confirmed to that posi- I was disappointed that Senator BEN- Senator saw the reasonableness of the tion with 34 votes against him. He was NETT’s straightforward colloquy with

VerDate Mar 15 2010 21:02 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\2003SENATE\S02AP3.REC S02AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S4674 CONGRESSIONAL RECORD — SENATE April 2, 2003 Senator REID and me on February 14, of them pro-life, which have been fa- that the Senate has a very important which pointed to a solution, was never vorably considered by this body. role in the selection of judges. In fact, allowed by hard-liners on the other It was not the Members on this side the power initially was to rest solely side to yield results. I am disappointed who have changed the rules. The fact with the Senate. Although now the that all my efforts and those of Sen- is, it has been this administration’s at- power to nominate rests with the ator DASCHLE and Senator REID have tempt to shape the Federal judiciary. President, it is clear that the Senate’s been rejected by the White House. The And as the constitutional debates advice and consent role is a sub- letter that Senator DASCHLE sent to showed so clearly, there was to be a stantive role, and a critical role. As the President on February 11 pointed balance. Alexander Hamilton said in Federalist the way to resolving this matter rea- Initially, during the Constitutional No. 77: sonably and fairly. Republicans would Convention, the Senate of the United If by influencing the President meant re- apparently rather engage in politics. States was to be the sole namer of Fed- straining him, this is precisely what must Republican talking points will un- eral judges. It was only at the end that have been intended. doubtedly claim that this is ‘‘unprece- that was to be a shared responsibility. The role of the Senate is vital to en- dented’’. They will ignore their own re- There are some who just want us to suring a strong and independent judici- cent filibusters against President Clin- rubberstamp whatever the President ary that will protect citizens’ rights. ton’s executive and judicial nominees recommends. We do not believe that is When Republicans try to force the Sen- in so doing. The only thing unprece- what our Founding Fathers intended us ate to confirm Mr. Estrada without dented about this matter is that the to do, as bearing responsibility for the any significant information about him, administration and Republican leader- Federal judiciary. they are attacking the role of the Sen- ship have shown no willingness to be The fact remains, this nominee is ate and undermining this important reasonable and accommodate Demo- known only to the administration, but constitutional provision. cratic Senators’ request for informa- not to the Judiciary Committee or the Despite a growing and disturbing trend during this administration, of tion traditionally shared with the Sen- American people. They know how he giving the Senate less and less infor- ate by past administrations. That this stands. They have understandings of mation about judges, the Senate has is the fourth cloture vote on this mat- all of his positions. But the Judiciary made clear our position that we need ter is an indictment of Republican in- Committee and the American people do this information to fulfill our constitu- transigence on this matter, nothing not. That is what is being asked of tional role. We have had many nomi- more. What is unprecedented is that now. nees who were not particularly forth- there has been no effort on the Repub- There have been other times in our coming in their committee hearing lican side to work this matter out as history where we have had nominees about their views on certain topics. these matters have always been worked who did not respond to questions, but But we typically had a large written out in the past. What is unprecedented they had written documents, and they had articles, speeches, and other deci- record to help us understand those is the Republican insistence to sched- nominees’ approach to judging. Often, ule cloture vote after cloture vote sions that reflected their judicial phi- losophy. This does not exist here. This the Senate attempted in good faith to without first resolving the underlying accommodate the President and review problem caused by the administration’s is a unique, special situation. And the Senator from Vermont has stated time the record as it was given to us. In inflexibility. other cases, if a nominee had only very I urge the White House and Senate in and time out over the course of the little record to examine, we could rely Republicans to end the political war- debate the reasons for it. He should be supported on it. I stand with him. I on their answers at their hearing to fare and join with us in good faith to give meaningful advice and consent. stand with the institution, the Senate, make sure the information that is Mr. Estrada represents the extreme that says to be able to exercise our re- needed to review this nomination is of this trend. At his hearing, he was si- provided so that the Senate may con- sponsibility in advice and consent, we lent on important issues that would clude its consideration of this nomina- ought to be exercising balanced judg- help us determine what kind of judge tion. I urge the White House, as I have ment based on the views of the nomi- he would be. He does not have a writ- for more than two years, to work with nee and his views of the Constitution of ten record to review. The one thing us and, quoting from a recent column the United States. We have not re- that would help us is the body of work by Thomas Mann of The Brookings In- ceived his views on it. And he refused by Mr. Estrada at the Justice Depart- stitute, to submit ‘‘a more balanced to give it. Nor do we understand from ment. But the White House will not ticket of judicial nominees and past writings, statements, or other po- turn these documents over, despite the engag[e] in genuine negotiations and sitions what his views are. And the fact that they have turned over similar compromise with both parties in Con- American people are entitled to it. documents for other nominees in the gress.’’ Mr. President, we must be very clear past. The President promised to be a about what is at stake in this debate Confirming Miguel Estrada on this uniter not a divider, but he has contin- over the nomination of Miguel Estrada record would not only undermine the ued to send us judicial nominees that to the second highest court in the land. Senate’s important advice and consent divide our nation and, in this case, he Confirming Mr. Estrada to the DC Cir- role, it would also threaten the rights has even managed to divide Hispanics cuit would give a major victory to the of millions of Americans who are af- across the country. The nomination Republican drive to pack the Federal fected by the judges of the DC Circuit. and confirmation process begins with courts with judges who are hostile to Unless we preserve this important the President, and I urge him to work civil rights, workers’ rights, and many role, the independence of the Federal with us to find a way forward to unite, other basic guarantees that define the courts will be lost. And it is this inde- instead of divide, the nation on these rights and liberties of all our citizens. pendence of the judicial branch from issues. Confirming him would also deal a the executive and legislative branches Mr. President, does the Senator from blow to the Senate’s advice and con- that gives the Federal courts an indis- Massachusetts wish the remainder of sent role in the selection of federal pensable role in protecting and uphold- my time? judges. This role is among the most im- ing the basic rights guaranteed by the The PRESIDING OFFICER. The Sen- portant of the checks and balances Constitution. ator from Massachusetts. that make our government work. It In defending the role of the Senate in Mr. KENNEDY. Mr. President, I has ensured that whoever is in the confirming judicial nominees, we are thank my friend from Vermont for White House cannot use their short also protecting the role of the Federal making very plain for the record and to term in power to pack the courts by courts in our constitutional form of the American people exactly what has giving lifetime appointments to judges government. It is our responsibility to happened over the last period of time. who will decide cases for years in a bi- defend both of these important aspects As he has pointed out, there have been ased way. of our democracy, and we intend to more than 100 judges who have been As we all know, the debates at the continue to do so. I urge my colleagues recommended by President Bush, many constitutional convention make clear to vote against cloture today.

VerDate Mar 15 2010 21:02 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\2003SENATE\S02AP3.REC S02AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY April 2, 2003 CONGRESSIONAL RECORD — SENATE S4675 Mr. President, I yield back the re- just cannot quite see some of the argu- joining 51 on this side of the aisle to in- mainder of my time. ments that have been given. voke cloture and to confirm this wor- The PRESIDING OFFICER. Who Mr. President, how much time is left? thy nominee. yields time? The PRESIDING OFFICER. The Sen- I do believe there is going to have to Mr. HATCH. Mr. President, how ator has 3 minutes 30 seconds. be some dramatic action taken so that much time remains? Mr. HATCH. Mr. President, I would Americans understand the travesty The PRESIDING OFFICER. The Sen- like to be interrupted at the end of 1 going on in the Senate Chamber today. ator from Utah has 6 minutes 7 sec- minute so I can give 2 minutes to the I thank the Chair and yield the floor. onds. distinguished Senator from Pennsyl- The PRESIDING OFFICER (Mrs. Mr. HATCH. Mr. President, how vania. DOLE). The Senator from Vermont. much time remains on the other side? Let me say something about the Mr. LEAHY. Madam President, as my The PRESIDING OFFICER. The memoranda that my Democratic col- statement indicated, the Senate did other side has 1 minute 22 seconds. leagues demand the White House re- have filibusters on Judge Stephen The Senator from Utah. lease. These are appeal, certiorari, and Breyer, Judge Rosemary Barkett, Mr. HATCH. Mr. President, I think amicus recommendations that Mr. Judge H. Lee Sarokin, Judge Richard the Senator is correct to say that oppo- Estrada authored while a career lawyer Paez, and Judge Marsha Berzon, con- nents have a right to feel the way they at the Justice Department. Let’s be trary to the implication of my good do, but they do not have a right con- clear on that. friend from Utah. stitutionally to filibuster a judicial I keep hearing my Democratic col- I actually have sympathy for my nominee, in my opinion. And they can leagues say there is all this precedent friend from Utah. He has been put in an vote against this nominee if they want for the release of documents by the untenable position. He is seeking to up- to. If they feel that deeply about their White House. Well, of course, the White hold an unreasonable position taken by points of view, they ought to vote House releases documents to the Sen- the White House. The White House is against the nominee, but they should ate every day. But they are not appeal, trying to tell the Senate what to do. not use some phony fishing expedition certiorari, and amicus recommenda- He is being a good soldier and I com- request, knowing that no administra- tions, and there is absolutely no prece- mend him for that. tion can give up these documents be- dent for the large-scale fishing expedi- The fact is, if the Senate was allowed cause they are the most privileged doc- tion they seek on Mr. Estrada—not to be the Senate and make its own de- uments in the Justice Department. any. cisions and not let the White House And the former Democrat Solicitors I agree with the seven former living dictate what to do, this matter would General who are alive say that. Solicitors General, four of whom are have been settled a long time ago. We I talked to the current Solicitor Gen- Democrats, who say that the White would have followed the tradition and eral, and he said there is no way they House is right not to release Mr. logic set forth by former Supreme can give those documents up. It would Estrada’s memoranda. Court Justice Robert Jackson when he ruin the work of the people’s attorney, The PRESIDING OFFICER. The Sen- was Attorney General. He indicated the Solicitor General. And they know ator from Utah has 2 minutes 30 sec- that such material should be provided that. So that is just a phony excuse to onds remaining. to the Senate. He wrote: be able to try and stop this nominee. Mr. HATCH. Mr. President, I reserve . . . I have taken the position that commit- By the way, with regard to what the the remainder of my time. tees called upon to pass on the confirmation distinguished Senator from Vermont The PRESIDING OFFICER. The Sen- of persons recommended for appointment by said—he brought up that certain nomi- ator from Pennsylvania. the Attorney General would be afforded con- nees Stephen Breyer, Rosemary Mr. SPECTER. Mr. President, I fidential access to any information that we have—because no candidate’s name is sub- Barkett, Richard Paez, and Marsha thank the chairman for yielding time mitted without his knowledge and the De- Berzon were filibustered. Not one of to me. partment does not intend to submit the them was filibustered. He brought up When you strip this argument down, name of any person whose entire history will they were not confirmed, but they were it boils down to an effort by the other not stand light. all confirmed. There has never been a side of the aisle to rewrite the advice The White House has access to Mr. judicial nominee to the circuit court of and consent clause of the Constitution. Estrada’s papers. It is hard to believe appeals in this country stopped by a For more than 200 years, the President that they have not reviewed these pa- filibuster—never—until this one. And, has had discretion in the nomination of pers. They are part of the information as far as I am concerned, this one is Federal judges. And unless there is that the administration has about one not going to be stopped either, if we do some reason not to confirm them, they of its nominees. All previous adminis- what is right. then are confirmed. trations followed the path of working And, of course, a cloture vote does Miguel Estrada has an extraordinary with the Senate and making sure that not always signify a filibuster. A lot of record, Phi Beta Kappa, Columbia; the entire history of the person would these cloture votes we have had in the magna cum laude, magna at Harvard, stand the light of scrutiny. This ad- past—that is why I talk in terms of Harvard Law Review, 15 cases in the ministration does not want us to know. true filibusters versus time manage- Supreme Court. The issue of wanting The PRESIDING OFFICER. The as- ment devices used by the majority to see some of his writings is a red her- sistant Democratic leader. leader, whoever that may be. In some ring. The issue of wanting further am- Mr. REID. Madam President, Sec- cases, our own majority leader moved plification of his views on the Constitu- retary Rumsfeld will be here at 2:30. I for cloture. So don’t give me the argu- tion is another red herring. This is sim- spoke briefly to the manager of the ment that this is not the first fili- ply an effort, when 41 Members from bill, Senator STEVENS. He indicated to buster. This is the first filibuster, first the other side of the aisle decide to op- me he would have no problem with a true filibuster of a circuit court of ap- pose cloture, to continue this fili- recess. I checked with our leader. He peals nominee in history. buster. said he would have no problem with it Now, no Republican has claimed that It is my view that we are not going either. During this break, the two lead- Lavenski Smith or Julia Smith Gib- to resolve this matter until we have a ers will have to determine whether bons were filibustered, but both of real, live, honest to goodness filibuster, there is going to be a recess for Sec- these Bush circuit nominees were sub- and that where the other side of the retary Rumsfeld. I wanted to say this jected to cloture votes last year. So aisle has to talk. We haven’t had one to alert Members that there may be a that is just a phony argument. since 1987. The American people do not break after this vote to go listen to the Now, they have so much information know what is going on inside the belt- Secretary. on this man there is little or no excuse way and are likely not to find out until The PRESIDING OFFICER. All time for not proceeding to a vote. The prob- this issue is raised in the conscious is yielded back. lem is, they cannot find anything level of the American people. Then I Under the previous order, the clerk wrong with him. There is so much that think we will find more than four will report the motion to invoke clo- is right about Miguel Estrada. And I Members of the other side of the aisle ture.

VerDate Mar 15 2010 21:02 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\2003SENATE\S02AP3.REC S02AP3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S4676 CONGRESSIONAL RECORD — SENATE April 2, 2003 The senior assistant bill clerk read as LEGISLATIVE SESSION these men and women, nor their fami- follows: The PRESIDING OFFICER. Under lies, to compensate them for what they CLOTURE MOTION the previous order, the Senate will now are giving to our country, but this ef- We the undersigned Senators, in accord- return to legislative session. fort on the Senate floor, in a bipartisan ance with the provisions of rule XXII of the Mr. REID. I suggest the absence of a fashion, shows we are dedicated to Standing Rules of the Senate, do hereby quorum. work together to express our gratitude move to bring to a close debate on Executive not just in speeches but by giving a Calendar No. 21, the nomination of Miguel A. The PRESIDING OFFICER. The Estrada to be United States Circuit Judge clerk will call the roll. helping hand to these families who are for the District of Columbia Circuit: The legislative clerk proceeded to struggling. Bill Frist, Orrin G. Hatch, John Ensign, call the roll. I send a modification of the amend- Sam Brownback, Jim Inhofe, Michael Mr. ROCKEFELLER. Madam Presi- ment to the desk on behalf of myself, B. Enzi, Wayne Allard, Michael Crapo, dent, I ask unanimous consent that the Senators STEVENS, INOUYE, WARNER, Susan M. Collins, Robert F. Bennett, CHAMBLISS, MIKULSKI, DOLE, DASCHLE, Pete V. Domenici, Conrad R. Burns, order for the quorum call be rescinded. The PRESIDING OFFICER. Without LANDRIEU, CLINTON, and PRYOR. Kay Bailey Hutchison, John E. Mr. STEVENS. Madam President, I Sununu, Norm Coleman, Charles E. objection, it is so ordered. Grassley. now ask that this be deemed the origi- f nal amendment before the Senate, that The PRESIDING OFFICER. By unan- SUPPLEMENTAL APPROPRIATIONS it be the Stevens-Durbin amendment, imous consent, the mandatory quorum ACT TO SUPPORT DEPARTMENT plus any other Senators who wish to call has been waived. OF DEFENSE OPERATIONS IN The question is, Is it the sense of the add their name to it. IRAQ FOR FISCAL YEAR 2003— Senate that debate on the nomination The PRESIDING OFFICER. Without Continued of Miguel A. Estrada, of Virginia, to be objection, it is so ordered. The amend- United States Circuit Judge for the The PRESIDING OFFICER. The Sen- ment is so modified. District of Columbia Circuit, shall be ator from Alaska. Mr. STEVENS. I ask that the Senate brought to a close. Mr. STEVENS. Madam President, is cast a unanimous vote in support of The yeas and nays are required under the pending business the Durbin this raise of combat pay and family al- the rule. amendment to the Stevens amend- lowances for our men and women who The clerk will call the roll. ment? are in harm’s way. The legislative clerk called the roll. The PRESIDING OFFICER. The Sen- The PRESIDING OFFICER. Is there Mr. REID. I announce that the Sen- ator is correct, that is the pending further debate on the amendment? ator from Massachusetts (Mr. KERRY) question. If not, the question is on agreeing to is necessary absent. Mr. STEVENS. Madam President, I amendment No. 436, as modified. I further announce that, if present am pleased to yield to the Senator The amendment (No. 436), as modi- and voting, the Senator from Massa- from Illinois. I believe we have reached fied, was agreed to, as follows: chusetts (Mr. KERRY) would vote ‘‘no.’’ an agreement on this amendment, and In the amendment strike are after the first The PRESIDING OFFICER. Are there I would be glad to have him modify his word and insert the following: any other Senators in the Chamber de- amendment if he wishes to do so. (a) INCREASE IN IMMINENT DANGER SPECIAL siring to vote? PAY.—Section 310(a) of title 37, United The yeas and nays resulted—yeas 55, The PRESIDING OFFICER. The Sen- States Code is amended by striking ‘‘S150’’ nays 44, as follows: ator from Illinois. and inserting ‘‘S225’’. [Rollcall Vote No. 114 Ex.] AMENDMENT NO. 437 TO AMENDMENT NO. 436, (b) INCREASE IN FAMILY SEPARATION ALLOW- WITHDRAWN ANCE.—Section 427(a)(1) of title 37, United YEAS—55 Mr. DURBIN. Madam President, I States code, is amended by striking ‘‘S100’’ Alexander Dole Murkowski and inserting ‘‘S250’’. Allard Domenici withdraw my amendment. Nelson (FL) (c) EXPIRATION.—(1) The amendments made Allen Ensign The PRESIDING OFFICER. The Sen- Nelson (NE) by subsections (a) and (b) shall expire on Bennett Enzi Nickles ator has that right. September 30, 2003. Bond Fitzgerald Roberts Mr. DURBIN. I ask unanimous con- Breaux Frist Santorum (2) Effective on September 30, 2003, sections Brownback Graham (SC) Sessions sent to withdraw my second-degree 310(a) of title 37, United States Code, and Bunning Grassley Shelby amendment. 427(a)(1) of title 37, United States Code, as in Burns Gregg Smith The PRESIDING OFFICER. Without effect on the day before the date of the en- Campbell Hagel Snowe actment of this Act are hereby revived. Chafee Hatch objection, it is so ordered. The amend- Specter Chambliss Hutchison ment is withdrawn. (d) EFFECTIVE DATE.—The amendments Cochran Inhofe Stevens made by subsections (a) and (b) shall take ef- AMENDMENT NO. 436, AS MODIFIED Coleman Kyl Sununu fect on Oct. 1, 2002 and shall apply with re- Collins Lott Talent Mr. DURBIN. Madam President, I spect to months beginning on or after that Cornyn Lugar Thomas thank the Senator from Alaska. I par- date. Craig McCain Voinovich ticularly thank the Senator from Vir- Crapo McConnell Warner Mr. DURBIN. Madam President, I DeWine Miller ginia, Mr. WARNER, who has acted as move to reconsider the vote. good counsel to both the Senator from NAYS—44 Mr. REID. I move to lay that motion Alaska and the Senator from Illinois. on the table. Akaka Dorgan Leahy Let me tell my colleagues what this Baucus Durbin Levin The motion to lay on the table was Bayh Edwards Lieberman amendment does because I think the agreed to. Biden Feingold Lincoln Senate can be proud of the outcome. Mr. STEVENS. Madam President, I Bingaman Feinstein Mikulski What we are going to do is to increase Boxer Graham (FL) would like to make sure we show this Murray combat pay for the men and women in Byrd Harkin Pryor was a unanimous vote. Beyond that, I Cantwell Hollings Reed uniform by 50 percent from $150 a have a letter I received from the Boe- Carper Inouye Reid month to $225 a month, and we are Clinton Jeffords ing Company which is relevant to what Rockefeller Conrad Johnson going to increase the family separation we have just done, because some of the Sarbanes Corzine Kennedy allowance by 150 percent from $100 people who are covered by this amend- Daschle Kohl Schumer month to $250 a month. Our action in Stabenow ment are men and women of the Na- Dayton Landrieu this fiscal year will be retroactive to Dodd Lautenberg Wyden tional Guard and Reserve. The Boeing October 1. So it covers the entire fiscal Company has notified me it has 2,000 NOT VOTING—1 year. It is going to mean a helping valued employees who serve our Nation Kerry hand through a difficult time for the in the military as members of the Na- The PRESIDING OFFICER. On this men and women in uniform, and their tional Guard and Reserve. They state: vote, the yeas are 55, the nays are 44. families. Over the last 3 years, some 950 men and Three-fifths of the Senators duly cho- As I have said, and I am sure the Sen- women have proudly stepped forward for dif- sen and sworn not having voted in the ator from Alaska will agree, there is no fering periods of military duty in support of affirmative, the motion is rejected. amount of money that we can give the September 11-related operation. To date,

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