Congressional Record United States Th of America PROCEEDINGS and DEBATES of the 108 CONGRESS, FIRST SESSION

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

Vol. 149 WASHINGTON, WEDNESDAY, FEBRUARY 26, 2003 No. 31—Part II Senate NOMINATION OF MIGUEL A. that during that 17-month period the But the Senator used no excuse to ESTRADA, OF VIRGINIA, TO BE Senator from Vermont’s office received avoid going ahead with President UNITED STATES CIRCUIT JUDGE a letter which contained anthrax, Sen- Bush’s nominations to the judiciary. FOR THE DISTRICT OF COLUM- ator DASCHLE’s office received a letter Is that true? BIA CIRCUIT which contained anthrax, and 9/11 oc- Mr. LEAHY. The distinguished Sen- Continued curred. In spite of all that, and the ator is absolutely correct. I might say Senate being, in effect, locked down that I commend especially the staff Mr. REID. Madam President, on the and the country being locked down, who in some instances were working floor today is the former chairman of still the Judiciary Committee, led by out of their cars, working out of my the Judiciary Committee, now the the distinguished Senator from hideaway or in the hallways, just be- ranking member of the Judiciary Com- cause even our committee rooms were mittee, the distinguished senior Sen- Vermont, approved a record number of judges, in spite of those items I men- closed. I had people working out of the ator from Vermont. The Senator has family room in my house. We did all of heard me on a number of occasions tioned—two anthrax attacks, one on the Senator who is now before me, one this so we could continue what turned boast about the work he has done as out to be a recordbreaking number of the leader of the Democrats in the Ju- on the distinguished majority leader, the Democratic leader, and 9/11. hearings and votes on President Bush’s diciary Committee and the leader of nominees. the Senate in the Judiciary Com- Is that true? Mr. LEAHY. The Senator is abso- Mr. REID. Madam President, I want mittee. There has been a lot of talk lutely correct. Obviously, we all re- to make a brief statement to the dis- about the Democrats holding up judi- member how much disruption there tinguished senior Senator from West cial nominees during the time we were was. The letter to the distinguished Virginia. in power in the Senate. I ask unanimous consent that he be Senator from South Dakota ended up It is my understanding—I ask the recognized following my very brief closing the Hart Building and tempo- Senator to respond to this question— statement. that while the distinguished Senator rarily the Dirksen Building. The letter The PRESIDING OFFICER. Is there from Vermont was chairman of the Ju- that was sent to me was so toxic that objection? Without objection, it is so diciary Committee for a very short pe- two people who touched it died. Died. ordered. riod of time—17 months—he broke all We had not canceled a single hearing. Mr. REID. Madam President, I want records of the body in approving some In fact, on one day when the Senate the RECORD to reflect that the Senator 100 Federal judges for President Bush. was being evacuated because we had from Vermont has been an exemplary Is that a fair statement? scheduled a time to vote out some of chairman of one of the most important Mr. LEAHY. Madam President, it is a President Bush’s nominees, I literally committees during one of the most dif- fair statement. In fact, I think in mid- grabbed Senators and held them here ficult times in the history of this coun- July we finally got an agreement to or- long enough to vote out some of Presi- try. And for anyone to ever—I have ganize the committee. Ten minutes dent Bush’s nominees. been on this floor defending the Sen- after we got that agreement, I noticed I say this knowing that when the Re- ator, as I will continue to do my entire the first hearing and set the first hear- publicans were in charge and President career. If anyone ever suggests the ing on President Bush’s judges. Clinton was in office, we sometimes Senator from Vermont didn’t do stal- The Republicans had been in charge went 8 or 9 months without even hav- wart and exemplary work, I will take up to that time—up until July—and ing a vote on nominees. We were doing them to task for it. In the most dif- there were a number of nominees of it several times a month. ficult of circumstances, in the most President Bush, but they had not held I appreciate the Senator asking those partisan times in the history of this any hearings whatsoever. I began the questions. country, the Senator from Vermont process of holding them within 10 min- Mr. REID. Will the Senator also an- was not partisan. He moved the com- utes of the time I became chairman. swer this question? When the Hart mittee along in a nonpartisan, bipar- Then, during the next 17 months, we Building was locked down, we were out tisan basis. As I recall, 100 judges were held hearings on 103, we voted through of space around the Capitol and the approved and only two judges were 100, voted down 2, and had 1 remaining. Senator had every excuse as chairman turned down by the committee. There is no 17-month period under of that committee not to hold hear- I think it is remarkable what has Republican control with President ings. I remember the Senator holding been done. I appreciate the Senator re- Clinton when that was done. hearings down in the basement of the sponding to those brief questions. Mr. REID. Will the Senator also re- Capitol. There was not room for people. I want to just say briefly there has spond to this? It is also my recollection People were jammed into that room. been some suggestion we have been

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

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VerDate Dec 13 2002 00:43 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.076 S26PT2 S2770 CONGRESSIONAL RECORD — SENATE February 26, 2003 trying to hold up things here. The only The PRESIDING OFFICER. Yes, it is. to the Senate Armed Services Com- one holding up things is the majority. Mr. BYRD. I ask unanimous consent mittee, and was asked what the admin- They can move off this nomination five to speak as in legislative session. istration projected that a war in Iraq seconds from now. They could give us The PRESIDING OFFICER. Without would cost, he would only say that the information we want or try to in- objection, it is so ordered. such costs are ‘‘not knowable.’’ Let us voke cloture. The reason we are not off Mr. BYRD. I thank the Chair. contemplate that answer: ‘‘not this nomination is they have no plan THE BUDGETARY COSTS OF A WAR IN IRAQ knowable.’’ Does the Secretary of De- and nothing to do. Mr. BYRD. Madam President, since fense mean to say that this great Na- I would like to read into the RECORD last August, the administration has tion does not yet know what its plans what Bob Novak—we all know Bob worked aggressively to convince the include for a war with Iraq? Is that Novak. He is one of the most conserv- American public that Saddam Hussein why the costs are ‘‘not knowable’’? ative—it is his birthday today. I heard is a brutal dictator who directly Does he mean to say that we do not yet it on Public Radio. I wish Bob Novak a threatens the United States. The Presi- know exactly what we are going to try happy birthday. Bob Novak hasn’t been dent has been unambiguous, and often to achieve in Iraq? Is that why the very prone to saying good things about dangerously blunt, about his passion to costs are ‘‘not knowable’’? Or does he Democrats. But here is what he said. use military force to destroy Saddam simply mean to indicate that he does Novak: Well, the Republicans figured that Hussein’s regime. not want to divulge the potential costs, they would be home at their recess last week The Bush administration has pro- therefore to us they are ‘‘not and find out what the people wanted. Appar- moted a vision of Saddam’s removal knowable’’? ently, the people weren’t interested in from power quickly, easily, and One must presume that by now the Estrada, because the Republicans have no bloodlessly. Indeed, part of the ration- idea what to do in the Senate. They had a administration would have made sev- ale for support for this war is that eral internal forecasts of the military leadership meeting yesterday afternoon, America’s tremendous military superi- couldn’t figure anything out, had a luncheon cost of the war using various scenarios, of all the Republican senators, didn’t figure ority over Iraq will confine a military and that the White House Council of it out. All that’s decided is, they’re not conflict to a relatively painless contest Economic Advisors would have pre- going to ask for a cloture vote to force an between the United States’ awesome pared for the President a classified end to the filibuster, because they’d lost military forces and the relatively study of the projected economic impact that. But they have no strategy for around- weak, conventional military machine of the war. Reportedly, OMB Director the-clock sessions. They don’t know what to of Saddam Hussein. do. The Democrats are winning. A swift and simple military victory Mitch Daniels has been working on war That is Bob Novak. certainly is one possibility, but in our estimates for months, and yet we are I want this RECORD spread with the democratic Republic the administra- told that these costs are ‘‘not fact that the Democrats if we wanted tion also has a responsibility to inform knowable.’’ None of this information to hold things up, we could be object- the American people that much less has been made available to the public, ing to committees meeting. We could pleasant scenarios are also possible and nor, I suspect, is it likely to be released be doing a lot of things just to slow even likely. The Congress has a respon- in the near future. This Congress— things down. We want to speed things sibility to explore all possible sce- these two Houses; the people’s elected up. We want to get to the business of narios with an eye to the eventual Representatives—has a responsibility this country dealing with the economy. costs of this war. We must not just ac- to demand that information. The peo- I listened to the radio this morning cept the rosy projections so far offered ple have a right to know. They are that they were going to have a debate by the administration. Frankly, I have going to suffer the costs. Congress in the British Parliament about the seen little effort by either the adminis- must not accept the answer, ‘‘not Iraqi war. The senior Senator from Illi- tration or the Congress to inform the knowable.’’ The American people, I nois told me he listened to an hour of American taxpayer about the likely say, deserve to know. They deserve to that debate this morning. I think it is costs of this war. know the truth. wonderful that the British people are In both dollars and human lives, the There was one cost estimate provided able to listen to their leaders debate a administration has been ominously by the administration which came war. It does not matter what side you quiet about its internal calculations from an interview last fall with Larry are on. Wouldn’t it be important to de- and estimates. What is even worse is Lindsey, the President’s former eco- bate the pros and cons of this war? that the Congress has barely bothered nomic advisor, who said that a war And I say to my friend—my esteemed to ask about them. with Iraq could cost between $100 bil- friend, somebody I admire greatly—the Earlier this month, the President un- lion and $200 billion. He went on to senior Senator from West Virginia, you veiled his budget for the fiscal year opine that that was ‘‘nothing.’’ have been able to come here and sneak 2004. Even assuming the most primitive Yet the White House quickly a little bit of time—sneak it in—to and loose definition of the term ‘‘fiscal distanced itself from that comment, talk about the war. It has been hard for responsibility,’’ that budget request and the Director of the Office of Man- the Senator to get floor time to talk should certainly have included some agement and Budget rebuked that esti- about this issue. rough estimate cost for a war with mate, saying that Lindsey’s estimate I respect and admire both of these Iraq. Even a range of costs would have was ‘‘very, very high.’’ Senators on the floor for being such been somewhat illuminating. The OMB Director suggested that the great examples to me. But I want ev- But no cost estimate was included in cost of the war would be closer to $60 eryone to know that we are not trying the budget of the President’s. Now let billion or $70 billion. The Pentagon re- to take advantage of anyone. If we me repeat that. There is no estimate of cently stretched that estimate to $95 were doing that, there would be all the cost of the looming war with Iraq billion. I wonder just what we are to kinds of things we could do in a par- in the President’s budget—no cost esti- make of these conflicting estimates. liamentary sense. We are not doing mate. That is hard to believe, isn’t it? How are we to gauge the validity of that. We believe the burden is on the But that is the case. The possible war such widely varying numbers? How are majority to move the legislation of has dominated the airwaves for the American people to gauge the va- this country, and it is not being moved. months, and yet there is no cost esti- lidity of such widely varying numbers? The PRESIDING OFFICER. The Sen- mate in the President’s budget. Presi- Do these figures contemplate other ator from West Virginia. dent Bush mentions the looming con- complications? What if casualty esti- Mr. BYRD. Madam President, I flict in nearly every public pronounce- mates grow into the thousands? And thank the distinguished Senator from ment, and yet no cost estimate to fight they may. What if oil prices skyrocket, Nevada for his kind comments and al- the war appears in the President’s sparking inflation and lines at the gas ways for the great services he performs budget—none. Is the administration pump and costing the U.S. economy for the American people here in this trying to tell the people of this Nation thousands of American jobs? Suppose body. it is for free? the Middle East erupts in a tornado of Madam President, is the Senate in When the Defense Secretary pre- violence, toppling regime after regime executive session? sented the President’s defense budget in the region.

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.077 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2771 Even a rudimentary list of the pos- are now going up toward the $300 bil- We are being led into a war—led into sible contingencies shows that costs lion level—and which have broken us a war—by an administration that may grossly exceed what the adminis- out of the situation we were in only a makes no effort whatsoever to tell the tration wants the public to believe. couple of years ago where we were run- American people what they are likely The Congressional Budget Office re- ning surpluses—do not encompass po- to pay in treasure, in lives, and espe- ported last September that the incre- tential costs of this military action in cially with regard to a postwar Iraq. I mental cost of just deploying a force to Iraq. In other words, the deficits would think it is going to be like a bottom- the Persian Gulf—that is, those costs be significantly enhanced by whatever less pit. incurred above those budgeted for rou- the amount of the cost would be; is Mr. SARBANES. I thank the Senator tine operations—could be between $9 that correct? for bringing this to our attention. It is billion and $13 billion. Prosecuting a Mr. BYRD. Astoundingly, the Presi- an extremely important point, and the war, according to the CBO, could cost dent’s budget does not present such a Senator is absolutely right. It has sim- between $6 billion and $9 billion per cost. The Senator is exactly right. ply been glossed over in any consider- month. And after hostilities ended, the Mr. SARBANES. I was listening care- ation of this matter. cost just to return U.S. forces to their fully to the Senator. As I understand Mr. BYRD. Oh, yes, glossed over. home bases could range between $5 bil- it—and the estimates are all over the There seems to be no thought given to lion and $7 billion. lot—the administration represents that it. I want to tell the Senator from Regardless of the swiftness of a mili- it could last 4 days, or it could last 4 Maryland that we on the Appropria- tary victory—it could be swift, but it weeks, or it could last 4 months; and tions Committee and the American might not be—there remains the cost you try to get them to pinpoint it, and taxpayers are going to learn about it at of a postwar occupation of Iraq, which they say: Well, who can tell what is some point when it is over, and the the administration says could last for going to happen? I gather even the costs of this war may be colossal. up to 2 years and could mean another Pentagon—and presumably they want The time to ask questions is now, not $1 billion to $4 billion, or more, per to present the best light—is estimating a year from now, not when the body month during that period. On top of a $100 billion cost. bags start coming back, not when the that, the United States might face a Mr. BYRD. It is $95 billion, right paying of the toll is coming due. humanitarian crisis, including rampant under that. Madam President, I thank the distin- disease and starvation, if Saddam Hus- Mr. SARBANES. And you have an es- guished Senator, one of the most able sein employs a scorched earth strategy timate for the reconstruction that was Senators I have ever seen in my 45 in defending his regime. What about $30 billion, roughly speaking. years in this body and in my 50 years the need for a cleanup of biological and Mr. BYRD. At a minimum, $30 bil- on Capitol Hill. He is on committees chemical weapons if the Iraqi Repub- lion. that know something about dollars and lican Guard employs them against U.S. Mr. SARBANES. At a minimum. Of cents and how they add up. I thank him soldiers? course, that was assuming we would for his incisive questions. Reconstruction and nation-building not have this kind of devastation out Mr. SARBANES. I thank the Sen- costs resulting from installing a demo- there that might be possible if the ator. cratic government in Iraq have to also weapons of mass destruction were to be Mrs. BOXER. Madam President, will be thought about. The American Acad- utilized. my friend yield briefly for a followup emy of Arts and Sciences projected Mr. BYRD. Yes. to Senator SARBANES’ questions? that the minimum reconstruction and Mr. SARBANES. Well, these are tre- Mr. BYRD. Madam President, I do nation-building cost for Iraq could be mendous costs that are staring us in yield. as high as $30 billion, and that is under the face, are they not? Mrs. BOXER. I thank my friend. I the very best of circumstances. Will Mr. BYRD. They are indeed. It is wish to add my voice to that of Sen- the administration propose something amazing. ator SARBANES and thank the Senator similar to the Marshall plan for Iraq? Mr. SARBANES. I think it is a very from West Virginia for his great lead- The Academy reported that U.S. in- important service the Senator is ren- ership. I want him to know that in vestments in Western Europe after dering in order to lay this out. Many California, my constituents have World War II under the Marshall plan people seem to be skipping right over talked to me about the Senator’s state- cost a total of $13.3 billion over a 4- this dimension, in terms of evaluating ments many times. I spent the week in year period. That is the equivalent of the path we should follow in dealing California, and they have received $450 billion over 4 years if measured as with the challenge we confront in the through e-mail a copy of the most re- a percentage of GDP in 2002. region. cent statement Senator BYRD made on Mr. SARBANES. Madam President, Mr. BYRD. Scriptures say that the the Senate floor. It gives them hope to will the Senator yield for a question? wages of sin is death. We are not being know that he is out here with all his Mr. BYRD. Madam President, I am told what the wages of this war are years, his sage years here, and it really glad to yield. going to amount to. There is no discus- helps. It is a great help to me as well Mr. SARBANES. Madam President, sion. One may be led to believe that as a newer Senator, although one who let me say how much I appreciate the this is going to be like a video game: It has been here for 10 years and 10 years clarion call which the very distin- will be just over in a matter of mo- on the other side. guished Senator from West Virginia ments, in days or weeks. There is no I wish to pick up on the questions of, has been sounding. It is an extremely discussion of the cost. There is no esti- as we look at the costs of this war, to important issue—actually the No. 1 mate. set aside the human costs, about which challenge facing the country. Now, I find it very hard to believe I have spoken at length and about Am I correct that the budget sub- that the administration has not care- which the Senator from West Virginia mitted by the administration—and I fully explored the potential cost of has continually been so eloquent, there know the very able Senator probably what the American people are going to is also the cost, for example, of pay- knows more about the appropriations be asked to bear; and I think the polls ments to our friend and ally, Turkey, process than any Member of this we read about, which indicate a pretty which, as I understand it, also is not in body—did not contain any money for a high degree of support for the Presi- the budget request; am I correct? potential war in Iraq or for subsequent dent in his passion to lead us into this Mr. BYRD. The able Senator is cor- reconstruction efforts? war—I don’t believe those people who rect. Mr. BYRD. The distinguished Sen- are asked questions have any idea Mrs. BOXER. We are hearing every- ator from Maryland is preeminently whatsoever as to what the costs are thing from $6 billion in cash to an addi- correct. There is no estimate of what going to be. Why should they? We our- tional $10 billion to $20 billion in loan the war will cost in the President’s selves don’t have any idea. The admin- guarantees, and yet not a word in the budget. istration is not presenting us with any budget. I wish to ask a final question of Mr. SARBANES. So the deficits pro- estimates of the cost. This seems to me my friend, and that is, I was amazed to jected in the President’s budget, which to be strikingly strange. read that our friend, CARL LEVIN, on

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.080 S26PT2 S2772 CONGRESSIONAL RECORD — SENATE February 26, 2003 the Armed Services Committee, was in 1991, many of our allies are unlikely especially if it initiates new terrorist asking questions of the Pentagon about to want to help much in defraying attacks around the globe, could further how many troops would be needed in these costs. scare the already jittery financial mar- the aftermath of war, immediately fol- Right now, the administration is try- kets and rattle consumers. lowing perhaps for 2 years, perhaps ing to coax other nations to join the If the war goes badly—and it could. longer, the number of troops that need ‘‘coalition of the willing’’ by paying Who knows? If the war goes badly, ei- to be put out there. The answer was them, not by asking them to help us ther through heavier than expected 200,000 troops, and it took the breath of pay for the war. A ‘‘coalition of the causalities, protracted bloody urban many of our colleagues. Again, I ask willing,’’ or a COW for short. It appears warfare, massive foreign denuncia- my friend a question: Is there any men- to me that the U.S. is the ‘‘cow’’—the tions, chemical and biological warfare, tion of that fact in the 2004 budget and cash cow in this instance. We are the or major terrorist attacks here and the impact of that on our budget? ones who are being milked. abroad, we may be plunging our econ- Mr. BYRD. No, there is no mention of The administration reportedly has omy into unfathomable debt which this that fact. I must say, I have been in- negotiated a multibillion-dollar pack- nation cannot easily sustain. formed that figure was inaccurate and age of grants and loans for the Repub- But even if one discounts these sce- that the general who used that figure lic of Turkey for use of its bases to narios as unlikely, and sets them all later retracted the figure. open a possible northern front against aside, the potential costs of a limited Mrs. BOXER. Does my friend know Iraq. The administration is negotiating war in Iraq could continue to pile up what they are talking about in terms similar multibillion-dollar packages for years, depending on the total dam- of the number of troops? I suppose a lot with Egypt, Israel, Jordan, and other age to Iraq, the civilian casualties, and would depend upon whether we have a allies in the Middle East. I wonder if the possibility that the war’s effects lot of our allies with us, would it not? Members are aware of the details of could spread into other countries. Mr. BYRD. I am sure it would depend any of these deals in the works or their This is a dangerous and damaging in great measure upon that. I do not projected costs over time. game the administration is playing think the administration has made any I believe the cost of this war will be with the American public—with you, presentation of such a figure at all. I staggering. you who are looking through those understand the British are going to We know that our Nation’s most pre- electronic lenses at the Senate. supply 26,000 personnel, but there is no cious treasure, the lives of our young Glossing over the cost of a war with indication of what the other coun- men and women in uniform, will most Iraq may make it easier to win short- tries—and there are supposed to be a certainly be threatened. But we do not term support. But without any serious considerable number of other countries know how great the risk is because the attention to costs, the American peo- that would be supporting us, but no- administration will not talk about its ple cannot be engaged in a fulsome body has indicated how many troops plans. public discussion about the eventual those other countries are going to In addition, the cost in terms of tax- wisdom of undertaking this war. Public support cannot be sustained to accom- present, and I am not sure they could payer dollars will be absolutely enor- plish our post-war goals in Iraq if the present a great number. Angola, Cam- mous. We hear of negotiations ongoing Nation has been misled about the dura- eroon, there are various and sundry with Turkey that are in the area of $30 tion and difficulty and costs of such a other nations, some of which names I billion. We learn of requests from conflict. We cannot treat the citizens am almost unfamiliar with. They are Israel for $12 billion. In addition, Jor- of this Nation as if they are children included in this array of allies we are dan wants to be compensated. We read who must be fed a fairy tale about going to have supporting the effort. that negotiations are underway to pro- fighting a glorious war of ‘‘liberation’’ (Mr. CORNYN assumed the Chair.) vide economic assistance to Mexico, which will be cheap, short and blood- Mrs. BOXER. In closing, I again Chile, and various African nations, all less. If the President is going to force thank my friend very much. The fact of which are members of the United this Nation to engage in this unwise, that a general, a very highly placed Nations Security Council. potentially disastrous, and alarmingly general, would come out with a number Where will this all end? Where? How expensive commitment, he must lay that is not correct, is in itself astound- many nations will be promised Amer- out all of the costs and risks to the Na- ing. It means he certainly is not in- ican economic assistance just for their tion. formed either. Not only are we unin- tacit support? And how strong is sup- Now we will come back to these lines formed, but he is uninformed, and this port that can be bought with promises again and again. If I am not here, the should give even more pause about this of American dollars? This is no way to American people will still come back whole situation. I thank my friend for operate. This is no way to fight a war. to the record that is being written. the energy he is putting into this issue. If the case against Saddam Hussein What is particularly worrisome is Again, my people in California are very were strong enough on its merits the how naively the idea of establishing a grateful for what the Senator from United States would not have to buy perfect democracy in Iraq is being West Virginia is doing. the support of the international com- tossed around by this administration. Mr. BYRD. Mr. President, I thank munity. If the world truly believes that If the administration engages in such a the distinguished Senator, and I thank Saddam Hussein poses an imminent massive undertaking without the the people of California for their inter- threat, then let the world say so clear- American people understanding the est in the subject matter, and they cer- ly. But do not taint that decision, do real costs and long-term commitment tainly should be interested in it. not taint the possible sacrifice of that will be required to achieve this vi- No one likes to talk about putting a American soldiers, sailors, and airmen, sionary scheme, our efforts in Iraq price tag on national security, but by prying open the door to war with a could end with chaos in the region. these costs simply cannot be ignored in blank check from the American tax- Chaos, poverty, hopelessness, hatred— light of our current sagging economy payers. that is exactly the kind of environment and given a projected budget deficit of If war is undertaken without U.N. that becomes a fertile breeding ground $307 billion for the fiscal year 2004. Re- sanction or broad international sup- for terrorists. member—remember, Mr. President— port, the United States taxpayer can The administration is asking the this Government is going to have to expect to pay the costs of the war for American public and the international borrow the money to finance this war. decades and pay the interest costs for community to support this war. The The total price of a war in Iraq could decades more. administration must also put all of its easily add up to hundreds of billions of And that is to say nothing about the cards on the table. A list of real risks dollars, even a trillion or more, over- larger macroeconomic costs to the and down sides do the Nation no good whelming a Federal budget that is al- economy. The economic ripples of a locked in Donald Rumsfeld’s desk ready sliding into deep deficits and war could spread beyond direct budg- drawer. They must be brought into the warping the U.S. economy and impact- etary costs into international energy sunshine for the people to assess. ing the economies of other nations for markets through higher oil prices. The The American people are willing to years to come. And, unlike the gulf war psychological effects of a war in Iraq, embrace a cause when they judge it to

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.082 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2773 be noble and both its risks and its ben- those who support the nomination. consideration of the nomination of Wil- efits are explained honestly to them. Many of the arguments come in the liam Bradford Reynolds to be Associate But if information is withheld, long- form of twisting and misstating the Attorney General at the Department of term political support can never be reasons given by opponents, in order to Justice, exactly these kinds of sustained. Once the order is given and ridicule them. Many have been cre- memos—recommendations on appeals the bombs start falling, the lives of ating straw men in order to knock and amicus briefs written by line attor- American troops and innocent civilians them down. neys—were turned over to the Judici- on the ground hang in the balance. For example, we have heard numer- ary Committee. Then, during the con- Once ‘‘boots are on the ground,’’ con- ous times that Senators oppose Mr. sideration of the nomination of Robert cerns about the monetary cost of war Estrada because he has no judicial ex- Bork to the Supreme Court, a large necessarily take a back seat. This na- perience, and the answer to that straw amount of material was turned over to tion will not shortchange the safety of man is that many distinguished judges the Committee, including memos writ- our fighting men and women once they had no judicial experience. That is cer- ten to or from Judge Bork when he are in harm’s way. tainly true. I agree with that. Some served as Solicitor General. In par- But our people and this Congress great appellate judges had no prior ju- ticular, memos to Judge Bork from should not have to wait until our dicial experience. Some of them sat or Judge Frank Easterbrook, who then troops are sent to fight to know what sit on the DC Circuit. served in exactly the same position as we are facing, including the painful But those of us who note Mr. Mr. Estrada did when he was in Solic- costs of this war in dollars, political Estrada’s lack of judicial experience itor General’s office, were made avail- turmoil, and blood. are not saying that that should dis- able to the Senate. qualify him from serving in this posi- In a democratic-Republic, secrecy Still the Justice Department dis- tion. What we are saying is that his has no place. Hiding information from puted the facts and continued to insist lack of experience means he lacks a the public to rally support behind a that only limited materials were made record to evaluate, unlike many of the war, at the very time when the govern- available during the Bork nomination other individuals that President Bush ment should be striving for maximum and other materials must have been has nominated to the circuit courts, trust will eventually undermine our leaked. But Senator LEAHY has dis- who have served for many years as US nation’s strength. This conflict will be closed a 1988 letter from Acting Assist- District Court judges. At the same paid for with the people’s treasure and ant Attorney General Thomas Boyd to the people’s blood. This is no time to time, Mr. Estrada has not been a law professor and written scholarly articles Senator BIDEN, requesting the return of affront that sacrifice with beltway spin materials that had been turned over and secrecy. for publication. His lack of judicial experience is part of his lack of a record during the confirmation proceedings. I yield the floor and suggest the ab- Mr. Boyd states: sence of a quorum. that we can review in order to see what [M]any of the documents provided to the The PRESIDING OFFICER. The kind of judge he will be. That brings me to the Solicitor Gen- Committee, ‘‘reflect or disclose purely inter- clerk will call the roll. nal deliberations within the Executive The assistant legislative clerk pro- eral memos. In a way, this is really the crux of the problem with Mr. Estrada. Branch, the work product of attorneys in ceeded to call the roll. connection with government litigation or Mr. FEINGOLD. Mr. President, I ask Because Mr. Estrada has no judicial ex- confidential legal advice received from or unanimous consent that the order for perience, because he has not written provided to client agencies within the Execu- the quorum call be rescinded. articles as a law professor, because he tive Branch.’’ The PRESIDING OFFICER. Without is so young and some of his most sig- We provided these privileged documents to objection, it is so ordered. nificant legal experience was as a law- the Committee in order to respond fully to Mr. FEINGOLD. Mr. President, for yer in the Solicitor General’s office, the Committee’s request and to expedite the the past few weeks, we have had a vig- and because questions have been raised confirmation process. orous debate on the floor and in the about his performance in that office, It is abundantly clear that the Jus- country on this nomination. I dis- we have asked to see the memos that tice Department has provided these cussed my reasons for opposing Mr. he wrote to his superiors on questions kinds of materials in the past, despite Estrada’s nomination before the recess. such as whether the United States Gov- their confidentiality. And that is as it As I said then, I would probably vote to ernment should appeal an adverse rul- should be. I have enormous respect for confirm Mr. Estrada to a lower court. ing to the Supreme Court or whether it some of the former Solicitors General But for this crucial court, at this cru- should file an amicus brief in a case who have written to us and given their cial time, he is not the right person for that the Supreme Court has decided to view that these memos should not be the job. I have reached that conclusion hear. released. But with respect, they are not This request was originally made by in part because Mr. Estrada gave us so Senators. They are not accountable to then Chairman LEAHY in May 2002, little to work with in trying to under- constituents for the votes that they months before Mr. Estrada had his stand what kind of judge he would be. take on whether to confirm judicial hearing before the Senate Judiciary When we are talking about a lifetime nominees. They have never made pol- Committee. So the claim that the re- icy for this body, and unless they run appointment to the second highest quest for these documents is a last court in this country, we cannot be ex- for election in the States where they minute effort to derail the nomination live, they never will. pected to take it on faith that Mr. is patently untrue. We have been seek- The White House and some of our col- Estrada will be a fair and impartial ing these documents for nearly a year judge, with no ideological axe to grind. now, and the administration has been leagues have also argued that these The Senate’s role is too important to stonewalling for nearly a year now. kinds of memos have not been re- just ‘‘hope for the best.’’ No, when we I am afraid I have to say it has also quested of all nominees who once are asked to confirm a nominee to such been stonewalling in a really disingen- served in that office or in a similar po- a significant post, we have a right to uous way. The administration, echoed sition in the Department of Justice. expect that nominee to be forthcoming by supporters of Mr. Estrada here on True enough. But that only under- in answering our questions, and we the floor, has claimed that our request scores how important our request is. I have a right to expect the administra- is unprecedented, that no such memos say again, it is because Mr. Estrada has tion to be cooperative in providing any have ever been turned over to the Sen- no judicial experience, because he has information that is relevant to making ate. One Senator stated unequivocally: not written articles as a law professor, our decision. That is what the advice Never in the history of the Justice Depart- because he is so young and some of his and consent process is about. Not some ment have those type of materials that are most significant legal experience was kind of phony ‘‘consultation’’, and cer- privileged, confidential work product mate- as a lawyer in the Solicitor General’s tainly not a rubberstamp for the Presi- rials been given to this branch of Govern- office, and because questions have been dent’s nominees. ment or any other branch. raised about his performance in that Today I want to respond to some of That is a pretty strong statement. It office, that we have asked to see these the arguments that have been raised by is also untrue. For example, during the materials.

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.085 S26PT2 S2774 CONGRESSIONAL RECORD — SENATE February 26, 2003 The administration’s failure to com- six years that President Clinton was in they would have vastly different health ply with our legitimate request, a re- office. The DC Circuit is a very good care options under the Medicare sys- quest which is strongly supported by place to start. There are two more va- tem. The twin in Louisiana or Florida precedent in the Judiciary Commit- cancies on that circuit. If President would get much more. tee’s handling of past nominations, Bush were to resubmit Mr. Snyder and For example, in most parts of Lou- frankly leads to the question of wheth- Ms. Kagan’s names, the court would re- isiana and Florida, the first twin would er there is something to hide in those main balanced, and the President could have more options under Medicare. The memos. We will never know until we really change the tone of the judicial high Medicare payments in those areas have a chance to read them. But what nominations issue. For now, we are allow Medicare beneficiaries to choose we do know is that until they are faced with an effort to fill a slot held between an HMO and a traditional fee- turned over this logjam will continue. open for years of a Democratic presi- for-service plan, and, because area Now some have made the argument dency with a nominee whose views are health care providers are reimbursed at on this floor and in the press that our a mystery. That is not acceptable and such a high rate, those providers can action in delaying a vote on Mr. we must continue to resist it. afford to offer seniors a broad range of Estrada is unprecedented. That is I yield the floor. I suggest the ab- health care services. plainly not the case, and again illus- sence of a quorum. The twin in Eau Claire does not have trates the amount of distortion that is The PRESIDING OFFICER. The the same access to care—there are no occurring in this debate. According to clerk will call the roll. options to choose from in terms of CRS, there have been cloture motions The bill clerk proceeded to call the Medicare HMOs, and sometimes fewer filed on 14 judicial nominees since 1980. roll. health care agencies that can afford to Just three years ago, cloture votes Mr. FEINGOLD. Mr. President, I ask provide care under the traditional fee- were required before two of President unanimous consent that the order for for-service plan. Clinton’s nominees to the Ninth Cir- the quorum call be rescinded. How can two people with identical cuit, Marsha Berzon and Richard Paez, The PRESIDING OFFICER. Without backgrounds, who paid the same could be confirmed. When these nomi- objection, it is so ordered. amount in payroll taxes, have such dif- nations were finally reported from MEDICARE EQUITY ferent options under Medicare? committee after years and years of Mr. FEINGOLD. Mr. President, I They can because the distribution of delay, motions to proceed to their con- would also like to address one of the Medicare dollars among the 50 states is sideration on the floor were defeated most important issues facing my state grossly unfair to Wisconsin, and much by the Republican majority. Over 5 of Wisconsin, as well as many others of the country. Wisconsinites pay pay- months later, the nominations were fi- across the country, the need to restore roll taxes just like every American tax- nally brought to the floor. The two fairness to the Medicare program. payer, but the Medicare funds we get in nominations were considered and de- During any debate of Medicare re- return are lower than those received in bated together, and a cloture motion form, one of Congress’ top priorities many other states. Legislation that I was required to end the debate on each should be to reduce regional inequal- and others have proposed will take us a nominee. ities in Medicare spending and support step in the right direction by reducing It is true that both the majority providers of high-quality, low-cost the inequities in Medicare payments to leader at the time, Senator LOTT, and Medicare services. Wisconsin’s hospitals, physicians, and Senator HATCH, supported cloture on The high cost of health care in Wis- skilled nursing facilities. the nominations. But still, there cer- consin is skyrocketing: A recent sur- Last year, with the introduction my tainly was a filibuster on those nomi- vey found that the cost of health bene- Medicare fairness legislation and the nees. That is what cloture votes do; fits for employees in Wisconsin rose efforts of many other Senators, includ- they end filibusters. Senator Bob 14.8 percent last year, to an average of ing both the chair and ranking member Smith was leading the opposition to $6,940 per employee. That is 20 percent of the Finance Committee, we put the nominees. He put out a press re- higher than the national average of Medicare fairness issues front and cen- lease indicating that he was filibus- $5,758 for workers in businesses with 500 ter in Congress. We saw many suc- tering to stop them. Late last week, we or more employees. These costs are hit- cesses. The Senate Budget Committee heard from one Senator that this is the ting our state hard—they are bur- approved my amendment to promote first ‘‘true filibuster’’ of a Circuit court dening businesses and employees, hurt- Medicare fairness in any Medicare re- nominee. I am still waiting to hear an ing health care providers, and pre- form package. A wide range of Sen- explanation of what a true filibuster is venting seniors from getting full access ators from both parties endorsed my compared to what happened with to the care that they deserve. proposal to create a Medicare fairness Judges Berzon and Paez. Is a ‘‘true fili- One of the major contributing factors coalition. The House passed a number buster’’ only one that seems to have to the high cost of care in our state is of Medicare fairness provisions that the votes to succeed? That is an inter- the inherent unfairness of the Medicare were a result of these successes, and esting definition. Program. With the guidance and sup- both House and Senate leadership en- Let us not forget that in so many port of people across our state who are dorsed Medicare fairness issues. other cases during President Clinton’s fighting for Medicare fairness, I have Now that we have finally brought term in office, there was no filibuster proposed legislation to address Medi- these issues the attention that they de- because his nominees were never given care’s discrimination against Wiscon- serve, we need to build on that momen- a hearing or a vote in the Judiciary sin’s seniors, employers and health tum to pass Medicare fairness provi- Committee. That is what happened to care providers. The Medicare program sions into law. Some of this increased two nominees to the Circuit to which should encourage the kind of high- awareness can be seen in the recently Mr. Estrada has been nominated. Alan quality, cost-effective Medicare serv- passed omnibus spending bill. While I Snyder, nominated by President Clin- ices that we have in Wisconsin. But as opposed this legislation, I was espe- ton in June of 1999, finally had a hear- many in Wisconsin know, that is not cially pleased that it contained provi- ing in May of 2000, but never received a the case. sions that take us a step toward fair- vote in Committee. Elena Kagan, nom- To give an idea of how inequitable ness in the distribution of Medicare inated in September 1999, never even the distribution of Medicare dollars is, dollars in Wisconsin and other states had a hearing in the Committee. So imagine identical twins over the age of across the country. By increasing the how exactly is that fairer treatment 65. Both twins worked at the same Medicare payments to small urban and than a filibuster? The claims that this company all their lives, at the same rural providers, we are closer to reduc- nominee is subject to unprecedented salary, and paid the same amount to ing the inequities that plague the unfairness because an up or down vote the federal government in payroll Medicare system. is not being permitted at this time ring taxes, the tax that goes into the Medi- I hope that these provisions are only hollow. care Trust Fund. But if one twin re- the first steps that Congress takes to It is time for the Administration to tired to Louisiana or Florida and the restore Medicare fairness for Wisconsin face up to what happened over the last other retired in Eau Claire, Wisconsin, and other affected States. Medicare

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.088 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2775 shouldn’t penalize high-quality pro- make programs such as the Fire Act a months. The same is true for the Pre- viders of Medicare services, and most high priority. The Fire Act provides siding Officer. And we ran at a time of all, Medicare should stop penalizing grants directly to fire departments when I believe the message from the seniors who depend on the program for across our Nation for training and people—and not just of Minnesota but I their health care. They have worked equipment needs. Last year, I visited believe the people in America—was one hard and they have paid into the pro- one excellent example of this program that it is important the Senate should gram all their lives, and in return they in West Allis, WI, where the depart- get things done. The 170th Congress deserve full access to the wide range of ment received a grant in 2001 to imple- had not passed appropriations bills, benefits that Medicare has to offer. ment a wellness and fitness program had not passed disaster assistance, had So I look forward to working with for their firefighters. I am told that it not passed a prescription drug benefit my colleagues to move legislation for- is one of the first departments in the for seniors, and had not passed a budg- ward. I believe that we can rebalance State to meet the goals of this pro- et. A lot of serious work needed to be the budget, while at the same time en- gram, and I commend the department done. That was the message. couraging efficient, quality-enhancing for its efforts. We are here now—in a little less than Medicare services. Our legislation would also direct the 2 months—and we are caught up in a Mr. President, I have one other topic. agencies within the Department of filibuster. I read about filibusters when SUPPORTING FIRST RESPONDERS Homeland Security to coordinate and I was a kid. This basically means the Mr. President, I would also like to prioritize their activities that support Senate is spending a lot of time debat- take this opportunity to talk about the first responders, and at the same time, ing the nomination of Miguel Estrada need for Congress to help first respond- ensure effective use of taxpayer dol- to be a judge in the Court of Appeals ers do what they do so well: protect our lars. As part of this coordination, the for the District of Columbia Circuit, communities in an emergency. First Responders Support Act would and the distinguished members of the The Department of Homeland Secu- establish a new advisory committee of minority party are not going to allow rity is creating a massive shift in the those in the first responder community that nomination to get to a vote unless Federal Government. Nobody will feel to identify and streamline effective there are 60 Senators who vote for clo- the impact of this shift more than the programs. ture to put an end to the filibuster. brave men and women who work in law Last year, both the original Senate During the course of the discussion enforcement, as firefighters, as rescue and House homeland security bills about Miguel Estrada, there have been workers, as emergency medical service lacked the provisions needed to ensure some wonderful presentations on both providers, and as first responders. We that the new Department of Homeland sides of the aisle about the importance must make sure that these first re- Security communicates and coordi- of the Constitution, the very sacred ob- sponders have the resources that they nates effectively with first responders. ligation of the Senate to advise and need. During the Senate Governmental Af- consent on nominations made by the While I commend the administration fairs Committee markup of the home- President of the United States on judi- for raising the funding dedicated to land security bill last year, I was cial appointments. first responders in the President’s pleased to see the committee added our In those wonderful discussions talk- budget, I am concerned that these new First Responders Support Act to the ing about this sacred obligation, my layers of bureaucracy and reorganiza- legislation. It did so knowing that we fear is that the public may not under- tion could reduce these funding levels would have to reconcile the overlap be- stand that obligation is not to have 60 or, just as harmfully, put up barriers to tween our legislation and the language Senators vote to confirm a nomination, first responders actually receiving in the chairman’s mark creating an of- that to require 60 votes is what is these funds. fice for State and local government co- known as a supermajority. The Con- The Federal agencies in the proposed ordination. Our amendment, which was stitution reserves supermajorities to Department of Homeland Security approved by the full Senate, did ex- very specific instances—the approval of must listen to the priorities of our actly that. Unfortunately, our proposal treaties—but not for the confirmation communities. After all, the needs of was dropped from the final bill during of Presidential nominees to the Fed- first responders actually vary among conference. eral courts. That should take a simple regions, as well as between rural com- I hope congress can make enactment majority. munities and urban communities. In of this legislation one of its priorities So what we are faced with today is Wisconsin, I have heard needs ranging this year. We must be aggressive in the very serious issue of an effort to from training, to equipment, to more seeking the advice of our first respond- change the constitutional standard for emergency personnel in the field, just ers, and helping them to get the re- the selection of judges. And for all of to name a few. sources that they need to provide effec- us who love this Constitution, who un- So I have proposed legislation, along tive services. They are on the front derstand its greatness—and I think with my friend from Maine, the chair lines, and they deserve our support. through Divine guidance given to those of the Governmental Affairs Com- In almost any disaster, the local first who stood before us in chambers and in mittee, that would promote effective responders and health care providers the Old Senate Chamber—to change coordination among Federal agencies play an indispensable role. If the De- the standard for Miguel Estrada is sim- under the Department of Homeland Se- partment of Homeland Security is to ply wrong. curity and ensure that our first re- be effective, we need to ensure that the It is not the right thing to do. What sponders—our firefighters, law enforce- resources are delivered to the front line our distinguished colleagues in the mi- ment, rescue, and EMS providers—can personnel in an effective and coordi- nority party should do is the right help Federal agencies and the new De- nated manner. I urge my colleagues to thing and simply give the Senate a partment of Homeland Security im- join me in passing this proposal and chance to vote on the nomination of prove existing programs and future ini- others to support our first responders. Miguel Estrada—vote and say you need tiatives. Mr. President, I yield the floor and 51 votes to confirm this nomination. This is what it would do: It would suggest the absence of a quorum. That is the constitutional standard. first establish a Federal Liaison on The PRESIDING OFFICER. The The Web site of one of the most egre- Homeland Security in each State and clerk will call the roll. gious liberal Washington interest coordinate between the Department of The bill clerk proceeded to call the groups has a number of troubling state- Homeland Security and State and local roll. ments regarding the nomination and first responders. This office would Mr. COLEMAN. Mr. President, I ask confirmation process for members of serve not only as an avenue to ex- unanimous consent that the order for the judiciary. One memorandum dis- change ideas, but also as a resource to the quorum call be rescinded. cusses ‘‘the approaching armageddon ensure that the funding and programs The PRESIDING OFFICER. Without on judicial nominations.’’ This extreme are effective. objection, it is so ordered. and inflammatory headline suggests an For example, my hope is that the Mr. COLEMAN. Mr. President, I have all-out, no-holds-barred, anything-goes Homeland Security Department will been a Senator for a little less than 2 campaign against judicial nominees by

VerDate Dec 13 2002 00:43 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\CR\FM\A26FE6.045 S26PT2 S2776 CONGRESSIONAL RECORD — SENATE February 26, 2003 those opposing the President’s choices. prevent a vote on the nominee, unless lyn. Both Democratic and Republican Another headline on the same Web site cloture is obtained. Of course, cloture Senators asked scores of questions, demands its members and visitors to requires 60 votes. As I said before, which Mr. Estrada answered. If any ‘‘tell Senators: Filibuster the Estrada those calling for a filibuster on this Senator was unsatisfied with Mr. nomination.’’ nominee are demanding a super- Estrada’s answers, every member of I do not believe there has been, in the majority vote. That is not what the the committee had an opportunity to history of this esteemed body, a fili- Constitution says. That is not what the ask Mr. Estrada followup questions. I buster of a circuit judge. I do not be- Constitution dictates. That is not the believe only two of my Democratic col- lieve there has been a partisan fili- precedent and pattern we should be fol- leagues did that. buster of the type we are experiencing lowing. This is against the traditions A number of questions that Mr. right now in the Senate. and practices of this body. In fact, in Estrada was asked directly or indi- On Wednesday, February 5, 2003, the only one instance did the Senate reject rectly tried to pry from him a commit- Washington Post published an editorial cloture and defeat a judicial nominee. ment on how he would rule on a par- referencing this Web site and con- That was in 1968, on the nomination of ticular case. Previous judicial nomi- demning such tactics and urged a vote Justice Abe Fortas to be Chief Justice nees who were confirmed by the Senate on the nomination of Miguel Estrada. of the Supreme Court. have rightly declined to answer ques- The editorial in the Washington Post As I noted before, that was a bipar- tions on that basis, as Mr. Estrada did. correctly points out that a filibuster tisan filibuster—not the party-line fili- Let me give you some examples. would be ‘‘a dramatic escalation of the buster we are seeing waged here today In 1967, during his confirmation hear- judicial nomination wars.’’ It states against Mr. Estrada. ing for the Supreme Court, Justice that Democrats who disagree with the I agree with the previous chairman of Thurgood Marshall responded to a nominee may vote against him, but the Judiciary Committee, a Democrat, question about the fifth amendment by they should not deny him a vote. The who said in a speech on the Senate stating: editorial concludes that Mr. Estrada’s floor—I believe it was the Senator from I do not think you want me to be in a posi- nomination should not be stalled any Vermont: tion of giving you a statement on the Fifth longer, stating: Amendment and then, if I am confirmed and I have stated over and over again on this sit on the Court, when a Fifth Amendment It certainly doesn’t warrant further esca- floor . . . that I would object and fight case comes up, I will have to disqualify my- lating a war that long ago got out of hand. against any filibuster on a judge, whether it self. As I listen to the debate, it seems is somebody I opposed or supported, that I felt the Senate should do its duty. If I may digress, one of the other that there are a lot of feelings that charges against Mr. Estrada is that he somebody did something in the past Let the Senate do its duty. Let those did not have judicial experience. Dur- and now we are going to pay back who oppose the nomination of Miguel ing the course of this debate, it has today. There was an earlier time of Estrada have their right to cast their been highlighted again and again that feuds between the Hatfields and the vote, have a right to have their say, for many distinguished judges—Supreme McCoys, and the Earps and the whatever reasons. It is within their dis- Court Judges and circuit court judges— Youngers. That is not the way to act in cretion to choose their reason to say did not have judicial experience before the 21st century, when we face the no. On the other hand, let us follow the they were appointed to the court. Mr. challenges of a potential war with Iraq dictates of our Constitution and not Estrada, in fact, clerked for both a and with a struggling economy and change the constitutional standard. Federal court judge and U.S. Supreme with moms and dads worried about Let us give Miguel Estrada the oppor- Court Justice Anthony Kennedy. When feeding and clothing their kids and tunity simply for an up-or-down vote, Thurgood Marshall was appointed, I be- sending their kids to good schools. We and let a majority of Senators in the lieve, to the District Court of Appeals, should not be caught up in this kind of Senate—and I believe that a majority, he did not have prior judicial experi- partisan feuding, saying you did some- which would be a bipartisan majority, ence. I think it was Justice Holmes thing in the past to our nominees, so not just folks of one party, but distin- who did not have it. I could go on and now we are going to do the same to guished members of the minority party on. So that charge, too, is pure bunk. yours today. Put it aside. who support the nomination, would not During Sandra Day O’Connor’s con- I am a product of the sixties philos- change the constitutional standard. firmation hearing, the Senator from ophy. Let today be the first day of your During the course of this debate, Massachusetts, the former chairman of life. We are never going to be younger there have been many serious mis- the Judiciary Committee, defended her than we are today, Mr. President. I representations of the record on Mr. refusal to discuss her views on abor- think we have to put the past behind Estrada. I want to address in some de- tion. He said: us. I don’t know who was at fault in tail one of the most serious distortions, It is offensive to suggest that a potential the past. I don’t know about other which concerns the answers that Mr. justice of the Supreme Court must pass a nominees and the time it took them to Estrada gave to questions that mem- presumed test of judicial philosophy. It is get to the floor of the Senate, why they bers of the Judiciary Committee asked even more offensive to suggest that a poten- were delayed, for whatever reasons. All him. tial justice must pass the litmus test of any I know is that, today, Americans are The charge being leveled against Mr. single-issue interest group. crying out for the Senate to simply get Estrada is that he did not answer ques- It is interesting, if you look at Mr. the work of the people done. We can tions put to him in general, and he did Estrada’s response on the question of get the work done if we give Miguel not answer questions about his judicial Roe v. Wade, he said very clearly in re- Estrada a chance to simply have an up- philosophy in particular. I have to say, sponse to a question of the Senator or-down vote. That is all it is. that charge is pure bunk. from California that he has his views, We should not change the constitu- I sat here and listened as some of my but his view of the judicial function tional standard. We should not be re- colleagues on the other side of the aisle ‘‘does not allow me to answer that quiring 60 votes to confirm a judicial said he didn’t answer questions. I have question.’’ But he said he has a per- nominee. That is not what the great- the transcript in front of me. He was sonal view on the subject. Again, he ness of this institution is about. That there for a full day. He answered ques- goes back to his view of judicial func- is not what the Constitution, which has tion after question. He answered fol- tion. Then he goes on to say: preserved this country and set the lowup questions, written questions. He And the reason I have not done any of standard for democracy, intended. answered the questions. those things is that I view a system of law in Let us have a clear understanding of Again, it is important to remember which me as an advocate and possibly if I am what a modern day filibuster means. the circumstances under which this confirmed as a judge, have the job of build- Those advocating this obstructionist hearing took place. That hearing was ing on the wall that is already there, not to call it into question. I have no particular tactic aren’t demanding the oppor- held September 26, 2001, chaired by my reason to go back and look at whether that tunity for extended debate; that is al- Democratic friend, the senior Senator decision was right or wrong as a matter of ready available to all Senators. The from New York, with whom I went to law, as I would if I were a judge that was practical matter of a filibuster is to grade school and high school in Brook- hearing the case for the first time.

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.092 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2777 Then he goes on to say: vada, however, Justice Scalia in his could get it—related case law, legislative It is there. It is the law and it has subse- majority opinion did not take issue history, custom and practice, and views of quently been refined by the Casey case, and with that description, as Mr. Gonzales academics on analysis of law. I will follow it. pointed out in his letter. Justice Scalia That is the kind of judge we want. The Senator from California asked: said: That is the kind of judge I think the Do you believe it is settled law? Nor do we assert that candidates for judi- Constitution intended us to have when The answer is: cial office should be compelled to announce it gave us this solemn responsibility of their views on disputed legal issues. advising and consenting on judicial I believe so. Like these previous nominees, all of nominations. Again, not by changing So again, he has done what other whom the Senate confirmed, Mr. the constitutional standard, but advis- nominees have done and he will not Estrada refused to violate the code of ing and consenting, allowing a major- discuss his personal feelings. He will ethics for judicial nominees by declin- ity of Senators in the Senate to advise not discuss his personal philosophy on ing to give answers that would appear and then consent on a nominee pre- that issue, but he says it is settled to commit him on issues that he would sented by the President but not requir- law—settled law. be called upon to decide as a judge. ing a supermajority. Likewise, Justice John Paul Stevens Again and again, he provided answers These exchanges I have laid out testified during his confirmation hear- in direct response to questions that clearly illustrate Miguel Estrada’s re- ing: make his judicial philosophy an open spect for law and his willingness and I really don’t think I should discuss this book. ability to faithfully follow the law. subject generally, Senator. I don’t mean to Let me share some specific examples. He further testified, in response to be unresponsive, but in all candor, I must Responding to a question to identify other questions: say there have been many times in my experience in the past 5 years when I found that the most important attribute of a I will follow binding case law in every case. my first reaction to a problem was not the judge, Mr. Estrada answered that it Even in accordance with the case law that is same as the reaction I had when I had the re- was to have an appropriate process for not binding, but seems instructive on the sponsibility of decisions, and I think if I decisionmaking. That, he said, entails area, without any influence whatsoever from were to make comments not carefully having an open mind, listening to the any personal view I may have about the sub- thought through, they might be given sig- parties, reading their briefs, doing all ject matter. nificance they really did not merit. the legwork on the law and facts, en- This is what we expect judges to do. Justice Sandra Day O’Connor was gaging in deliberation with colleagues, I can see no good reason why anyone confirmed. Justice John Paul Stevens and being committed to judging, as a would be opposed to a nominee who was confirmed. process that is intended to give the promised to follow the law, a nominee Justice Ruth Bader Ginsburg also de- right answer. who is highly qualified, a nominee who clined to answer certain questions, These are not extreme views. I do not the American Bar Association in rating stating: think we could ask any more from any judges gave a unanimous—every person Because I am and hope to continue to be a judge. on the committee, and I presume they judge, it would be wrong for me to say or to When asked about the appropriate were not all conservative Republicans, preview in this legislative chamber how I temperament of a judge, he responded every person on that review committee would cast my vote on questions before the that a judge should be impartial, open- unanimously gave him the highest rat- Supreme Court. Were I to rehearse here what minded, and unbiased, courteous, yet ing, the highest recommendation, I would say or how I would reason on such firm, and one who will give ear to peo- which many of my distinguished col- questions, I would act injudiciously. ple who come into his courtroom. leagues on the other side of the aisle In addition, as my colleague from Ne- These are the qualities of Miguel have called the gold standard. That is vada yesterday noted, Justice Ginsburg Estrada. He testified that he is and the way in which we should measure just last year said in dissent in the would continue to be the type of person judges. case of Republican Party of Minnesota who listens with both ears and would Now we have a judge in front of them v. White: be fair to all litigants. Again, that who has passed the gold standard In the context of the Federal system, how phrase he used, he would be a fair con- unanimously, who is highly educated, a prospective nominee for the bench would structionist. who at 17 years of age came to this resolve certain particular contentious issues Mr. Estrada was asked a number of country from Honduras and did not would certainly be ‘‘of interest’’ to the Presi- dent and the Senate. . . .But in accord with questions about his views and philos- speak English well, graduated magna a longstanding norm, every Member of this ophy on following legal precedent. Let cum laude from Columbia, graduated Court declined to furnish such information me highlight a bit of that exchange. magna cum laude from Harvard Law to the Senate and presumably to the Presi- Question: School, was editor of the Law Review, dent as well. Are you committed to following the prece- clerked for Federal and Supreme Court I believe I recall in reviewing the dents of higher courts faithfully and giving judges, worked, and came back to pub- transcripts of the hearing of Mr. them full force and effect even if you dis- lic service. Talk about the American agree with such precedents? Estrada—I am not a member of that dream. committee, but I have taken the time Answer: Miguel Estrada, being given such to review some of the transcripts—he Absolutely, Senator. great opportunity of education, is com- was asked by one of my distinguished Question: ing back and saying: I am going to give colleagues on the other side of the aisle What would you do if you believe the Su- back to the community; I want to work whether he was a strict construc- preme Court or the Court of Appeals had sein public service. tionist. I believe his response was he riously erred in rendering decision? Would I had the chance to serve as solicitor you apply that decision or use your own general of the State of Minnesota. It is was a fair constructionist. judgment of the merits, or the best judgment A further discourse by my distin- of the merits? a solemn, high honor to represent your guished colleague from the other side Answer: State or to represent your country, to of the aisle, I think from North Caro- work for your State or your country, My duty as a judge and my inclination as lina: Did the President talk about a person and as a lawyer of integrity would to uphold its constitution. strict constructionist? I am para- be to follow the orders of the higher court. It is important to note that every phrasing. Mr. Estrada came back and Question: living former Solicitor General of the said: I did not talk about that with the And if there were no controlling precedent United States, four of whom are Demo- President, but he talks about being a dispositively concluding an issue with which crats, stand with Miguel Estrada on fair constructionist. you were presented in your circuit, to what one of the other issues that my distin- That is the kind of judge the people sources would you turn to for persuasive au- guished colleagues from the other side of the United States want to sit on the thority? have raised. They said they want some Circuit Court of Appeals. Answer: of his opinion papers. Yet Democrat I also note, in contrast to the charac- In such a circumstance, my cardinal rule Solicitors General—every one of terization of my colleague from Ne- would be to seize aid from any place where I them—say, no, that is not appropriate;

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.094 S26PT2 S2778 CONGRESSIONAL RECORD — SENATE February 26, 2003 those should not be given up. That is I yield the floor. Before he leaves, I say to my friend, not Miguel Estrada saying that. Those The PRESIDING OFFICER. The Sen- in answer to his question and before I are the Solicitors General of the ator from California. yield further, this was a clear fili- United States. Again, that is another Mrs. BOXER. Madam President, I buster. I am going to give a quote. argument that is a bogus argument, if take this opportunity to address the I must confess to being somewhat baffled I may be blunt. Estrada nomination and a couple of that after a filibuster is cut off by cloture When asked about the role of polit- other issues that the people in my the Senate could still delay a final vote on ical ideology in the legal process, Mr. State care a lot about. the nomination. Estrada replied with a response that, in Before he leaves, I wanted to say to I say to my friend, who called what my view, was entirely appropriate and my friend from Minnesota that I know happened to Richard Paez a filibuster? within the mainstream of what all he was not in the Senate during the None other than the Senator’s chair- Americans expect from their judiciary. last filibuster on the court nominee— man, ORRIN HATCH. It is in the CON- He said: actually, there were two including the GRESSIONAL RECORD. [A]lthough we all have views on a number Abe Fortas nomination in the 1960s— I am glad to yield to my friend for a of subjects from A to Z, the first duty of a and they occurred in the year 2000. further question. judge is to self-consciously put that aside They were launched by Members of the Mr. COLEMAN. Madam President, I and look at each case with an open mind and Republican side of the aisle, and they ask the distinguished colleague from listen to the parties. And, to the best of his were directed at a woman named California again, in both instances is it human capacity, to give judgment based Marcia Berzon and a man named Rich- not true that cloture was filed—we are solely on the arguments of law. I think my ard Paez. basic idea of judging is to do it on the basis talking about filibuster, not 4 years In addition to the filibuster—— but filibuster debate on this floor—and of law and to put aside whatever view I Mr. COLEMAN. Madam President, both nominees were confirmed after might have on the subject to the maximum will the Senator from California yield? cloture was invoked? extent possible. Mrs. BOXER [continuing]. There was Mrs. BOXER. I say to my friend, the When asked about his views on inter- actually a vote to indefinitely postpone day this nomination was brought to preting the Constitution, Mr. Estrada one of those nominees, the Hispanic the floor, the Republican side could was forthright and complete in his re- nominee, Richard Paez. sponses. For example, in exchange re- Mr. COLEMAN. Madam President, have filed cloture, just as we did, but garding the literal interpretation of will the distinguished Senator from they are choosing not to do it. There the words of the Constitution, Mr. California yield for a question? can be a vote on cloture today. It could Estrada responded: Mrs. BOXER. I would be delighted to. be tomorrow. I recognize that the Supreme Court has The PRESIDING OFFICER (Ms. COL- Not only that, when this man an- said on numerous occasions in the area of LINS). The Senator from Minnesota. swers questions, the vote is going to be privacy and elsewhere that there are Mr. COLEMAN. I ask the distin- won. The Senator is going to have his unenumerated rights in the Constitution. guished Senator from California, is it vote. And I have no view of any sort, whether legal not true that in those instances when I have been around a long time in or personal, that would hinder me from ap- she talks about ‘‘filibusters’’—and I public life, 10 years in the House, and plying those rulings by the Court. But I was not here, but I understand that 10 years in the Senate. I have never think the Court has been quite clear that seen such a systematic plan not to an- there are enumerated rights in the Constitu- those ‘‘filibusters’’ did not last more tion. In the main, the Court has recognized than a day or two—that in fact both of swer basic questions. Can anyone imag- them as being inherent in the right of sub- those nominees had a chance to be ine a man who cannot answer a ques- stantive due process and the liberty clause of voted on by this body. Is that true? tion if there was ever a Supreme Court the fourteenth amendment. Mrs. BOXER. My friend is incorrect. case that he disagreed with? I daresay Mr. Estrada was asked questions Here is what happened. It took 4 years, I do not know anyone in the country, about the appropriate balance between I say to my colleague, to get the Re- lawyer or not, who agrees with the Congress and the courts. His answers publicans to bring the nomination of Dred Scott decision. I do not know any made clear his view that judges must Richard Paez to the floor of this Sen- person who is willing to say now that review challenges to the statutes with ate. How do I know? Because I had rec- he believes separate but equal, Plessey a strong presumption of the statute’s ommended Judge Paez first for the dis- v. Ferguson, was rightly decided. constitutionality. For example, in re- trict court, where he got immediate ap- This man cannot even say which Jus- sponding to a question about environ- proval. tice, dead or alive, he would emulate mental protection statutes, he stated: I would like to answer my friend be- most. It is unbelievable. Except when Congress has passed a number of statutes fore I yield, and I will be glad to yield it is put in the context of who was ad- that try to safeguard the environment. I to my friend all night long, believe me, vising this man, and we have seen it think all judges would have to greet those if he wants to stay and engage. So time and again on the floor. They basi- statutes when they come to the court with a relax and we will get to his questions. cally said: Do not answer any ques- strong presumption of constitutionality. My friend was not here. It took 4 long tions. This is a lifetime appointment. At the same time, he recognized that years to get the Republicans to relent. Do not blow it. as a circuit court judge he would be This is Republicans, the Senator’s Mr. COLEMAN. Madam President, bound to follow the precedent estab- party, who voted to seat him on the will the distinguished Senator from lished by Lopez and other Supreme district court unanimously. When he California yield for two more ques- Court cases. So it is clear from the was nominated for the circuit court, it tions? record that Mr. Estrada did answer the took 4 years. There was extensive ques- Mrs. BOXER. Absolutely. questions put to him at his hearing. tioning back and forth, written ques- Mr. COLEMAN. Is it not true the Re- His judicial philosophy is an open tions, oral questions. Then there was a publicans filed cloture for both of the book. But if my Democratic colleagues filibuster. My friend says it only lasted distinguished judges my colleague from are still inclined to vote against him, 2 days. It was 4 years and 2 days. California has mentioned, both Judge misguided as I believe that choice to I say to my friend, the only reason in Paez and Judge Berzon? Secondly, if be, then they should have that right. the world that filibuster was ended is that is true, I ask my distinguished Let them vote against him. Vote for because we had the votes to stop it. colleague from California if she would him, vote against him. Do what their The Senator does not have the votes to vote for cloture and support putting an conscience dictates. Just vote. Do not stop this filibuster. If he did, it could end to this filibuster on the nomina- change that magnificent, most wonder- be done in a minute. The reason there tion of Miguel Estrada. ful constitutional standard that has are not the votes is because this man Mrs. BOXER. The bottom line is who guided us and kept this country to- will not answer questions, despite the can file cloture? The Democrats can gether for over 200 years. Allow the fact that my friend read some answers. file cloture on this nomination. The Senate to exercise its duty. Allow each I have a lot of other things to put in question is, Was there a filibuster? My Member to vote their conscience. Just the RECORD tonight that will challenge friend stood up and said there has been vote and end this filibuster. that. no filibuster since Abe Fortas in the

VerDate Dec 13 2002 00:43 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.097 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2779 1960s, when his own chairman, ORRIN which they disagreed, this is going that we don’t have the right to fili- HATCH said: above and beyond stonewalling; or can- buster judges on the floor of the Sen- I must confess to be somewhat baffled that not say what Justice, dead or alive, he ate. Of course we do. That is our con- after a filibuster is cut off by cloture the would emulate most, this is beyond stitutional role.’’ Senate can still delay a final vote on the stonewalling. This is a Republican, leading the fili- nomination. In my State we are very fortunate. buster, against Clinton nominees for By the way, there was a filibuster on We have reached agreement with Re- the circuit court. He says: ‘‘don’t criti- Marsha Berzon. My friend ought to publicans in our State. We have a won- cize our right to do these things and know, in addition to the filibuster, derful selection process for judicial don’t say things didn’t happen that did after we had won the cloture vote on nominees for the district court. Those happen.’’ the Paez nomination, there was an in- individuals come before us and are And he goes on, more Bob Smith, Re- credible motion filed to indefinitely screened by a joint committee. It is a publican from New Hampshire, one of postpone the vote on the nomination. great process. They answer questions. the leaders of the filibuster, along with Imagine, there is this fight; it lasted 4 There are votes taken. Then Senator Senator ALLARD, Senator BROWNBACK, years and several days on a filibuster. FEINSTEIN and I make a recommenda- Senator BUNNING, Senator CRAIG, Sen- We win this, we get the votes, and then tion. It is a bipartisan process. ators DEWINE, ENZI, FRIST, GRAHAM, there is a motion from a Republican to This is the point: It is working. And HELMS, HUTCHINSON, INHOFE, MUR- indefinitely delay the vote, and even it is a participatory process from both KOWSKI, and SHELBY. And Bob Smith Senator HATCH was stunned. He said he parties and both branches of govern- said: was baffled that could even happen. ment. I believe questions ought to be Don’t come here on the floor and tell me So for the Senator to say there has asked and answered and Senators have that if I want to block Judge Paez or Judge not been a filibuster since the 1960s on a right to ask questions and Senators Berzon, somehow I’m going down some new a judge is false. His own chairman ad- have a right to have those questions path. I am not going down any new path. I mitted there was a filibuster. answered. It is pretty simple. am following the tradition and precedent of this Senate. Not only did his side launch a fili- I started to talk about Judge Paez buster—my friend was not here; I don’t who made history as a Hispanic be- That was Republican Bob Smith, one mean to take it out on you—but as cause I wanted to make the point for of the leaders of the filibuster, against someone who knew how fine these two the Senate that he was treated in a two judges, one Hispanic, nominated by nominees were, they faced that fili- way that was totally outrageous, hav- President Bill Clinton for the Ninth buster. They answered the questions ing to wait 4 years to get a vote. He Circuit Court. over and over again and finally got a hung on because of his true grit—hear- Senator Bob Smith continues: vote. ing after hearing; 7 months his nomina- We have a responsibility to make darn sure That is the system here. It is mis- these judges are going to represent the views leading to the American public to hear tion languished in 1998. The Republican of the majority of the American people in this day in and day out. ‘‘This is un- majority refused to bring him up for a terms of the law. I intend to do that as long precedented to have a filibuster.’’ What vote. All we were asking for was a vote. as I can stand here to do it. is unprecedented is that we have the And we were refused. And the Republican Bob Smith con- votes to keep it going. You did not In 1999, Judge Paez was nominated tinues, one of the leaders of the fili- have the votes on your side to keep it for the third time, and 6 months later buster, against Hispanic judge Richard going. the Judiciary Committee approved his Paez. It took him 4 years to get a vote. If my friend has no further questions, nomination, but again we could not get Bob Smith, Republican: I will return to my original statement. the nomination up for a vote. Finally, When a nominee has some controversy Mr. COLEMAN. Madam President, I when the nomination was brought up about him or her, if it gets to the floor, there have no further questions for my dis- after more than 1,500 days, it was fili- are normally quite a few discussions; i.e., a tinguished colleague from California. bustered. filibuster. Mrs. BOXER. I thank my friend. My colleagues say again and again it Now this goes on. I am shocked that The point I make tonight, among was not. Senator HATCH, the chairman my friends on the other side of the several, is that we have been charged— of the Judiciary Committee, said it and aisle didn’t read recent history—in the those who want more answers from it is in the CONGRESSIONAL RECORD. year 2000. Here it goes on. What were Miguel Estrada—with doing something This was a filibuster. We had to get the reasons for the filibuster? Accord- that has never been done before when, cloture. When you have to get cloture, ing to Senator Smith, it was because— in fact, in the year 2000, two nominees there is a filibuster. That is as simple what? He didn’t get answers to ques- to the Ninth Circuit Court were filibus- as it is. We had to get 60 votes. tions. tered and one of the two was not only If my Republican friends want to end Let me quote former Senator Smith filibustered, but after he won cloture this, tell the nominee to answer the again, leading a filibuster against a there was a motion to indefinitely questions. And believe me, he will get Hispanic judge and Marsha Berzon, two postpone the actual vote on his nomi- an up-or-down vote and the chips will qualified appointees. They got the top nation. I had never seen that. I hope I fall where they fall. rating. They were put up by Bill Clin- never see it again. The fact is, there It is very clear to me when I look at ton. have been two filibusters led by Repub- the way Judge Paez was treated, Mar- I think those questions ought to be an- lican Members and those were de- sha Berzon, Margaret Morrow, and a swered. I think we should know the answers feated. whole slew of others who were nomi- to those questions about what happened be- The second fact is that one of those nated and eventually confirmed, they fore we put this person on the circuit court. particular individuals was the first had to answer question after question Let me say that again. A Republican Mexican American to serve on the Cen- after question. I will get to that in a colleague of yours, that side of the tral District Court of California and minute, the type of questions that aisle, leading the charge against these the Republicans held him up for 4 years Margaret Morrow had to answer just to Clinton nominees, leading a filibuster: before we were able to break the fili- become a district court judge. I think those questions ought to be an- buster. Let’s go to the floor of the Senate swered. I think we should know the answers It was quite a situation. My friend and take you back to the year 2000 to to those questions about what happened be- from Minnesota said—I don’t want to this filibuster against Marsha Berzon fore we put this person on the circuit court. misquote him—something like ‘‘the ju- and against Judge Paez. Let me quote More quotes from Bob Smith, in the dicial philosophy of this nominee is an Senator Smith, that is Bob Smith, of CONGRESSIONAL RECORD: open book,’’ I think is what he said. It New Hampshire, then Senator: ‘‘it is no Filibuster in the Senate has a purpose. It may be an open book, but it looks like secret that I have been the person who is not simply to delay for the sake of delay. this. This is the book. There is nothing has filibustered these two nominations, It is to get information. on it. Judge Berzon and Judge Paez.’’ It is to get information. And do you When a candidate cannot say if there And he goes on to say: ‘‘So don’t tell know what? I disagreed with the fili- was ever a Supreme Court case with me we haven’t filibustered judges and buster that was led then. It went on

VerDate Dec 13 2002 00:43 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.100 S26PT2 S2780 CONGRESSIONAL RECORD — SENATE February 26, 2003 and on until they didn’t have the votes enough to say: Do you know what? I Estrada put into the record. I will give anymore and we had the votes. You could just argue legalese with you, but you questions and answers here. These could say: What goes around comes you have a very important job of ad- are questions asked by Senator SCHU- around. vice and consent, and we are willing to MER: Senators on the other side of the give you these memoranda. So there is Question: aisle launched a filibuster against two precedent for that. Other than cases in which you were an ad- of President Clinton’s nominees for the I am stunned. We went through the vocate, please tell us of three cases from the Ninth Circuit Court, with the highest RECORD and my staff pointed out the last 40 years of Supreme Court jurisprudence qualifications, and there were those on comments that were made on this floor you are most critical of. the other side of the aisle who believed by Senators over and over again, refer- Answer: they didn’t answer questions. They ring to the fact that they were filibus- I’m not even sure that I could think of launched a filibuster on that ground, tering Judge Paez, they were filibus- three that I would be—that I would have a and we had to get the votes. And you tering Marsha Berzon. And then to sort of adverse reaction to, if that’s what you are getting at. have to get the votes. That is the way hear there hasn’t been a filibuster here it is here. since the 1960’s—I don’t know what to Question: We were able to get the votes be- say. It is stunning to me. So, with all of your legal background and cause—guess what—our nominees an- The fact that we beat it back, that your immersion in the legal world, you can’t means it is not a filibuster? You get think of three, or even one single case that swered the questions. They answered the Supreme Court has decided that you dis- the questions, every question. I had the votes, you beat it back; is it then agree with? not going to be a filibuster? I have worked to help get Margaret Morrow to Answer: a district court judgeship. I want to taken to the floor tonight because I am I don’t know that I’m in a position to say tell you, Margaret Morrow waited 2 to incredulous on the point. After seeing that I disagree with any case that the Su- 3 years to get a vote for district court. these words in the RECORD myself, with preme Court has ever ruled on or that I Do you know what she was asked? She my own eyes, after hearing Senator think the court got it right. was asked a question that was so ab- HATCH, who is leading the charge and Question: horrent, I could not believe it. She was telling us this is unprecedented, what I’m not asking how you approach cases. asked by one of the Senators on the we are doing, this is unfair to someone, That’s a legitimate question and some have Republican side of the aisle how she he himself referring to what happened asked it. I want to know how you feel about voted for the last 10 years on referenda to Richard Paez as a filibuster. cases. And you have said more broadly than that were on the ballot in California. Bob Smith not only referred to it as any other witness I have come across—you Madam President, I know you are not a filibuster that he was actually lead- have given us virtually no opinion on any- an expert on California. I can tell you, ing, but that he was leading in order to thing because it might come up in the fu- there were hundreds and hundreds of get information. You could say we took ture. Answer: these referenda, and they were on some a page out of the book of the Repub- tough issues for everything you can licans. We didn’t. Because we are will- But the problem is the same, Senator Schumer, because taking case A and looking imagine. ing to say we will vote for cloture when at whether the court got it right or whether No. 1, I always thought this was a se- he turns over the information. I never I think they got it right I have only the ben- cret ballot. When you go in the voting heard, frankly, any of them at that efit of the opinions. I haven’t seen the liti- booth it is between you and yourself; time say they were willing to allow a gants. you are going to decide these issues. vote if there were more questions an- The litigants have been dead for a That is No. 1. swered because, frankly, every ques- long time in Dred Scott. But, for God’s No. 2, this was an impossible request. tion was answered that you could come sake, we ought to know. You can’t say How could you even remember all these up with. There wasn’t anything else that slavery is wrong; that you dis- issues, how you voted on them? you could know about those nomi- agree with that decision? You can’t say So we went to this particular Sen- nees—what they thought, or what they separate but equal was wrong because ator and said: Senator, this is not fair. dreamed about, or what they wanted to you didn’t know the litigants? This is a secret ballot—please. But he do, or what they believed, or whom Where are we? I am stunned. wouldn’t relent. But he relented to this they admired, or what meetings they He said the case is ruled on but he degree. He said: OK, we won’t go back went to. It was extraordinary. didn’t get to see what made it into the 10 years, just give us the 10 most con- I think it was Marsha Berzon who opinion. troversial votes. was asked the question—she was on the This is outrageous. He didn’t see She did. She did. She respected the board of an organization. They said to what made it into the opinion; the process enough, she even went so far as her: We want to know everything that court ruled that slavery was constitu- to answer those questions which, in my happened at every meeting of that or- tional and he didn’t disagree with it? opinion—I don’t know what I person- ganization, whether you went to the He has to meet the litigants? I am ally would have done. I truly don’t meeting or not. stunned. know. But I know I told her, if she felt It took her hours. Why? She re- The Senate has a very sacred job. It she could do it, do it, because a Sen- spected the role of the Senate to advise is in the Constitution. It doesn’t say ator was asking. and consent. It is in the Constitution, roll over and play dead when a Presi- That is an amazing comparison, com- and she understood that, and Miguel dent picks a nominee to a court. In pared to: Can you name any Supreme Estrada should understand that. I don’t fact, the Founders disagreed over who Court Justice who would emulate or care who trained him not to say any- should have the responsibility to any Supreme Court case that you dis- thing. We have those quotes all over choose justices. And they came out agree with? Those are conventional the place. I have seen one saying: Don’t with this very balanced decision of questions asked over and over again. answer any of these questions; this is a equal power. Presidents do not like As far as memoranda from the Solic- lifetime opportunity; don’t let them that. I can tell you. I don’t know one itor General’s Office are concerned, see who you are. He was trained not to President who likes the fact we have there is precedent for that. There is answer questions. this advise and consent role. It is very precedent for that. I will give you the He ought to respect the Senate. I annoying to the executive branch that people who turned over these pre- know the members of the Judiciary we are here. I don’t care whether they viously confidential internal docu- Committee on our side of the aisle, and are Democrats and Republicans. ments. I give the names for the record: I know the members on the other side. I say that when our constituents sent Robert Bork, William Bradford Rey- I know they work hard. They have a lot us here they want us to do the job we nolds, Benjamin Civiletti, Stephen of pressure on them on both sides. swear to do. We hold up our hand here Trott, Judge William Rehnquist. These When my colleagues tell me they were on the Bible and swear to uphold the people turned over previously confiden- stunned at the stonewalling they re- Constitution. The Constitution says tial internal documents. Do you know ceived, I believe them because, by the advise and consent on judicial nomi- why? I think they respected the Senate way, I read some of the answers Miguel nees.

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.103 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2781 It doesn’t say roll over and play dead. Let me make a statement. I believe about going to war. My constituents It doesn’t say, oh, give them a break. It it is a precedent that never should be are saying: Senator, is there any way doesn’t say that. We have a lot of other occurring here again because the whole in your mind that the President will things to do. It doesn’t say that. It purpose of a filibuster is to determine not take this country into war? And says the Senate shall advise and con- whether you are going to move ahead my answer—because I am searching for sent. on a vote. Once there is no filibuster, it; the President says he has not made At home in California, the way peo- you have to have a vote. Then we had a decision—but to be as honest as I ple pick district court nominees, it is this intervening motion about indefi- can, I say: Here is what I think on that true—we advise and consent. I have to nitely postponing the vote. It just un- matter. If the true goal is to disarm say there are a lot of people who do not dercuts what cloture is supposed to be Saddam Hussein and Iraq, then there is like it. Some conservative groups in about. I thought that was unbelievable. a chance that this could be resolved California are saying they do not like Basically a Senator wanted to kill short of war. But if the true desire is to the way we are doing it. But it is fair. the nomination even after we had won replace Saddam Hussein, have a regime We are appointing moderate Repub- cloture. That was so unprecedented change, unless Saddam Hussein agrees lican judges to the district bench. That that Senator HATCH himself said he had to go—which would be a wonderful is the way the President said he want- never seen it. He had never heard of it, prospect—I do not see how you get ed to do it. We are able to do it because and he was perplexed. He was baffled by there. in our State we have an agreement it. The people in my State are very con- where Democrats and Republicans sit Let me quote Senator SESSIONS who cerned. side by side and choose. We have two moved to stop the final vote on this Then they say: Well, Senator, do in- Democratic Senators. That is why this Hispanic Judge, Richard Paez, after we spections really work? And I tell them happens. won cloture. He said: that the facts are out there, that in fact there were more weapons of mass But if the President is going to send I move in a postcloture environment to us judicial nominees who won’t answer postpone indefinitely the nomination of destruction dismantled after the gulf questions, he is not going to get very Richard Paez— war than there were by our bombs. I asked for the list of weapons of far. It isn’t going to work. Frankly, Listen to this— mass destruction that were in fact de- from my perspective, if people are off in order for this body to get the answers I be- the charts on the right wing, I am not stroyed after the Gulf war. I am going lieve every Senator deserves with regard to to read the list of weapons that were going to vote for them. I will not fili- the concerns I have raised about Judge Paez buster them. Once they give us the in- over the last several days. destroyed during the inspections. In the missile area: 48 operational formation, I am ready to vote. I will re- On Judge Paez, because this Senator long-range missiles, 14 conventional tain my right for a Supreme Court Jus- thought he didn’t have the information missile warheads, 6 operational mobile tice, however, on that point on the fili- after 4 years, after pages of questions, launchers, 28 operational fixed buster. But, in general, if people an- after cloture was invoked then he did launchpads, 32 fixed launchpads under swer questions, I will vote no. But I something unprecedented and moved to construction, 30 missile chemical war- want the answers. I don’t want a judi- indefinitely postpone the final vote. heads, other missile support equipment cial selection process that excludes the At that time, Senator HATCH was per- and materiel, supervision of the de- Senate. It is the worst thing that can plexed. I was certainly perplexed. Col- struction of a variety of assembled and happen in this country. leagues were amazed. And here is in nonassembled supergun components. If you look around, it is the courts full what Senator HATCH said at that In the chemical area: 38,537 filled and that have stood up for the rights of our time. empty chemical munitions were de- people—free speech, freedom of reli- I have served a number of years in the Sen- stroyed by the inspectors, 690 tons of gion, freedom of the press, civil rights, ate, and I have never seen a ‘‘motion to post- chemical weapons agent, more than human rights, environmental rights, so pone indefinitely’’ that was brought to delay 3,000 tons of precursor chemicals, 426 many rights that we hold dear, and the the consideration of a judicial nomination pieces of chemical weapons production right to choose. post-cloture. Indeed, I must confess to being somewhat baffled that, after the filibuster is equipment, 91 pieces of related analyt- Madam President, you and I have ical instruments. worked hard on that. If we didn’t have cut off by cloture, the Senate could still delay a final vote on a nomination. In the biological area: an entire bio- a court that found in the early stages logical weapons production facility Senator HATCH was right on the of a pregnancy a woman has the right called Al-Hakam, a variety of biologi- point. He called the filibuster a fili- to choose, I don’t even know where we cal weapons production equipment and buster at that time. He was baffled by would be for women. The courts have materiel. held the line. We know it is very shaky the kind of a postfilibuster-filibuster in So the fact is, the inspectors discov- right now. the guise of postponing the final vote. ered and dismantled more weapons of The courts play a very important Clearly, we had to get the votes for mass destruction than were in fact de- role. It is part of the check and balance Judge Paez, and we did. And he is serv- stroyed by our bombs. in our society. It seems to me, if we ing and doing us all proud, I might say, Sadly, there was a period where there think that we don’t have enough infor- on the Ninth Circuit right now. were no inspectors in Iraq. And I do not mation and just sit back and say it IRAQ trust, for a minute, that Iraq did not would be a lot easier to let it go, I will Mrs. BOXER. Madam President, I start to rebuild these stocks. The fact vote no to let it go. I don’t think that have a couple of things to say about is, Saddam Hussein must be disarmed. is right for those who come here. another subject in a brief period. It has That is why I supported the Levin reso- Bob Smith, a Republican from New to do with the issue of Iraq. lution that said he must be disarmed— Hampshire, said he didn’t have enough I spent a week during the last break but not for us to go it alone, without information. I disagreed with him. We in California and doing several events— the world with us, as the world was beat him on the filibuster. But there many events, doing the normal things with us in the first gulf war. was a filibuster. I think recent history you do when you go home; going shop- My constituents are coming up to me is showing us that there is precedent ping, taking a walk in the park and and saying: What happened here? Ev- for asking the important questions. around the neighborhood. I don’t think erything feels out of control. Why? The I wish to say one more thing about I have ever seen my people in Cali- world isn’t even with us anymore. We the Paez nomination. After we won on fornia as distressed and on edge and are having fights and sniping with our the filibuster of both Marsha Berzon anxious as they are at this particular allies. What happened? and Richard Paez, there was a motion point in our history. I started to think about that. And I made by a Republican Senator to in- I want to tell you that this cuts will never forget—none of us will ever definitely postpone the final vote on across party lines. forget where we were on 9/11, when we one of the two, the Hispanic, Richard As a matter of fact, there was a poll were attacked by al-Qaida. Osama bin Paez. It was stunning. It was unprece- in the paper today about the views of Laden, remember his name? He at- dented. Californians very much concerned tacked us. He hurt us on our own

VerDate Dec 13 2002 00:43 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00013 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.105 S26PT2 S2782 CONGRESSIONAL RECORD — SENATE February 26, 2003 shores. I will never forget that. And I line, that DMZ. By the way, what a the Israelis reportedly do. The tech- will never forget, on 9/12, that the failure to humankind that situation nology is there. Yes, it is going to cost whole world was with us. is—one people divided. It is just the a million dollars per plane, but we are There is a song called ‘‘He Has the saddest situation, one of the saddest busy giving money out around the Whole World in His Hands.’’ It is a failures of humanity. world. We are busy giving money out. beautiful song. President Bush had the So we had the situation on 9/12/01, We don’t hear the name Osama bin whole world in his hands on 9/12. Coun- where the whole world was with us— Laden. One of my colleagues, Senator tries around the world—every one of the whole world. And after that, that DORGAN, calls him Osama ‘‘been forgot- them; even some that we really do not whole situation has been squandered. ten’’ because you don’t hear anything have such a close relationship with— I heard Senator LEAHY make similar about him. expressed that they were with us. We remarks today about this. I think we Mr. REID. Will the Senator yield for had the world in our hands. Yes, we have to understand where we are a question? were the leader of the free world before today. And we need to understand Mrs. BOXER. Yes. 9/11, but on 9/12 the world was so with there are problems all over this globe, Mr. REID. As a foundation for my us and against terror. And somehow, and that for us to go it alone—or al- question, I want to say I appreciate her some way, this has been squandered. most alone—in a war with Iraq will statement on the floor. Senator BYRD This has been squandered. There has make matters worse, I am afraid. As a was here earlier. I told him the same been this intensity on Iraq and what I leader, you have to win over your thing I say to the Senator from Cali- call a designed neglect of the rest of friends, and others, through your rea- fornia. This is a good debate to have. It the world. soning, through your evidence, through doesn’t matter how you feel about the Even in our own hemisphere, we see your power of persuasion, not just buy- war. It is important to have a debate. what is happening in Colombia, in Ven- ing people off or giving them money. As I said earlier today on the floor, ezuela. I met with the Mexican Foreign There has been a lot of talk about and I say to the Senator from Cali- Minister, I say to my friend from Ne- what we are going to give Turkey for fornia, are you aware that the British vada, who has a good-sized Hispanic their cooperation. Look, I understand Parliament had a long, extended debate population in his State. And the Mexi- an ally is an ally, a friend is a friend, today on the Iraq conflict? can Foreign Minister told me: We had and so on; but this thing is still not re- Mrs. BOXER. My staff mentioned such high hopes when this administra- solved, and the costs go up. I don’t that they had watched it. I did not see tion took office, and we see nothing. think the American people understand it myself. We are getting no attention for our that this is their tax dollars we are (Mr. ALEXANDER assumed the issues. We must work with your coun- talking about—$5 billion in grants, Chair.) try. And, actually, he quit his post be- when we are about to kick off the rolls Mr. REID. The senior Senator from cause there was no communication. almost 600,000 children from after- Illinois said he watched it for an hour We then see what is happening in school programs, according to the before work today. He said it was a North Korea, amazing developments in President’s budget, and not fully fund- great debate. They discussed the issues North Korea. And we cannot seem to ing our disabled kids in school, and the relating to the conflict that will prob- get the administration to focus on it at cleanup of only 40 Superfund sites in- ably occur in Iraq. I say to my friend all. stead of the 87 President Clinton did from California, it is good that you are Let me tell you, those of us on the during his tenure. speaking to alert the American people west coast, yes, that is why my con- These things just don’t come about to some of the problems that may stituents are coming up to me in the in a vacuum. I thought Senator BYRD occur with this conflict. It is too bad supermarket and pulling at my sleeve, was so well spoken when he made the that the Republicans, the majority, are because the North Koreans have a mis- point that we don’t even know the cost. holding up other legislation and other sile that can reach America. They al- Remember Larry Lindsey, I say to my debate because of one fully employed ready have the nuclear weapon. They friend from Nevada, the President’s man, Miguel Estrada, who has a job, as already have kicked out the inspectors. economic advisor? He put out—I think we all know, making hundreds of thou- And what is the answer? When the last summer—a statement saying it is sands of dollars a year. It has been laid President put them in the ‘‘axis of going to cost us between $100 billion out on this floor today that the Bush evil,’’ I asked, from my seat on the and $200 billion for a war in Iraq. administration lost 2.8 million jobs. Foreign Relations Committee, the Mr. REID. If the Senator will yield. Millions are unemployed. But we are State Department: Before the Presi- Isn’t that the man who was fired re- hung up on this debate because Repub- dent put North Korea in the ‘‘axis of cently? licans won’t move off of it. evil,’’ was there a conversation about Mrs. BOXER. Fired, let go. My question to the Senator is, would the ramifications of that? And the an- It is going to cost between $100 bil- it not be good if we had a full day’s de- swer came back to me, I say to my lion and $200 billion. Now they are say- bate set aside so Senators can offer friend: Well, we did go in and we did see ing it is $95 billion. They started off their views about what is going on in the President—this is the highest lev- saying it was going to be $30 billion, $40 Iraq? els of the State Department—and we billion, $50 billion, or $60 billion, but Mrs. BOXER. I say to my friend, if we said we agreed that North Korea de- that doesn’t count what they want to are to be relevant—this is the word the served to be on the ‘‘axis of evil.’’ pay to Turkey. When you add in the President talks about when referring I said: That was not my question. loan guarantees and the rest, some peo- to the U.N.—that is what we ought to There are a lot of people who could be ple are saying that is $26 billion. And be doing because, when I went home, termed evil in this world. My question we are not reimbursing our States for people wanted to talk about this be- was, did you discuss the ramifications? the work our local police, our firemen, cause they are nervous about it. The answer was: No, we did not. and our emergency workers are doing. Frankly, they don’t want us to go it I asked: Well, did you call up our We are neglecting port security. alone. At least the vast majority of friends, our allies, with whom we share I read today—and this is close to my people in my State feel that way. They classified information every day— heart—a little article, which I will send are asking me what it is going to cost. South Korea, Japan—to talk to them to my colleagues. It is very important. I say I have my own guess, but we real- about the ramifications of putting It says that many terrorist groups now ly have no idea. A man got fired be- North Korea in the ‘‘axis of evil’’? Oh, have stinger missiles, shoulder-fired cause he said it would cost between no, came the answer, we do not share missiles. We have seen five, six, seven $100 billion and $200 billion. Now they State of the Union speeches with other examples of terrorist groups over the are saying $95 billion. And now they countries. years aiming at commercial aircraft. are offering Turkey $26 billion. One Well, that was not the point about Admiral Loy’s Deputy has said this is general said they will need to stay the State of the Union speech. It is worrisome. It is going to cost money to there with 200,000 troops for years. An- South Korea that looks across the line prepare our commercial fleet, to have other general said that was wrong. We at North Korea. I have been on that an antimissile system put on, just as cannot get an answer to that.

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00014 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.108 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2783 We don’t know if Saddam Hussein the gulf area 210,000 troops, plus Great community, just as my friend pointed will use these weapons of mass destruc- Britain—I do not know how many they out happened in 1990. tion, or what he will do with the oil have there, but, in fact, if they need I thank the Presiding Officer. fields if we go in there. My own view on 240,000 troops, is what I am told, the I will be glad to yield to the Senator this is that the American people are United States is doing it all with the from Nevada for another question. very concerned. I agree with my friend. help of Great Britain. There are other Mr. REID. I appreciate that. We are spending a whole lot of time on countries saying they support us. Mr. President, I mentioned earlier the nomination of one judicial nominee Those countries, I repeat to the Sen- and I ask the Senator if she is aware of who, frankly, in my view, cannot really ator, and I think she will agree, want a new poll that came out today con- want the job that much because he some economic benefit to even say ducted by a nonpartisan public interest won’t answer the questions. He will not they support us, even though they are group called the Pew Research Center. answer the questions. If he answers the not sending any troops. The Senator has heard of that promi- questions, we would say immediately, Mrs. BOXER. It is an unprecedented nent group, is that right? vote cloture, then give him a vote, and handout type of situation, which is of- Mrs. BOXER. I heard of the group. I that is the end of it. fensive to me in many ways. This is a do not know of the poll. Mr. REID. Will the Senator yield for go-it-alone situation where it stands Mr. REID. This poll was conducted another question? today. between February 12 and February 18. Mrs. BOXER. Of course. I will finish where I started this con- As the Senator knows, 1,254 partici- Mr. REID. The Senator served in versation about Iraq. We had everyone pants is a big poll. Will the Senator Congress, as I did, when the previous with us after 9/11—the whole world. We agree with that statement? war occurred in Iraq, which was more lost that. People around the world are Mrs. BOXER. Correct. than a decade ago. Does the Senator re- looking at us, and many are saying Mr. REID. Is the Senator aware that call—and these numbers may not be ex- this was something the President had when these people were asked in this actly accurate, but they are close— decided and he just went to the United nationwide poll how George W. Bush is that the first President Bush reached Nations because he was kind of pushed handling the economy, only 43 percent out and, prior to the conflict begin- there—and as one of the people who of the people say they like the way he ning, there were commitments from pushed him there, I am glad he went is handling the economy, but 48 per- various countries to give billions and there. Believe me, I give credit where cent disapprove of the way he is han- billions of dollars to help fight the war credit is due. I give credit to Colin dling the economy? in Iraq—billions of dollars? And is the Powell. But going there and winking Mrs. BOXER. I say to my friend, this Senator also aware that in addition to and nodding and saying, I am going to does not surprise me. We are seeing the giving billions of dollars to help with go to the U.N.—but really I know what worst economic record of any adminis- the conflict, other countries were sup- I want to do—I will give a particular tration in 50 years in terms of jobs lost, plying tens of thousands of troops and case in point. in terms of mortgages defaulted, in airplanes? Whenever there is a little progress in terms of loss of stock market value. We Now, I have pretty reliable sources finding some of these weapons, the are talking $8 trillion of loss, in terms that say the only country really sup- President says things such as: Oh, that of fear about retirement, fear about plying troops is Great Britain. All of is the tip of the iceberg, and he may be losing health care, fear about the cost the other countries are saying they right. But wouldn’t it be better to say of health care, fear about cost of pre- support the war, but most of those are something such as: This is the tip of scription drugs, fear about being able in the category of Turkey. They are the iceberg, Saddam Hussein, and I am to afford to send your kids to get an supporting the war if, in fact, they get asking you to give us the rest of the education. My friend has given me a certain economic benefits. So, in short, iceberg, to do it now to avoid war, to number that makes eminent sense, and is the Senator aware that in the pre- avoid bloodshed. The world is watch- I say it is going to continue to plum- vious conflict there were large sums of ing. met because every plan this President money that would be given to help the We do not seem to hear those words. comes up with is giving tax breaks to U.S. fight that war, and large numbers What we really hear is: Inspections the wealthiest among us in the hopes of troops that were being sent to the mean nothing. Maybe it means noth- they will trickle down to the working front lines to help the United States ing, and if it means nothing, then the people. It never worked before, and it is troops fight that war? Is the Senator U.N. eventually is going to call this not going to work. aware that, in fact, basically other guy on it. They are going to call him I am very worried, and that is why than Great Britain, this is our war and on it, just like they did before. By the people also are very anxious in my nobody is helping? way, these weapons are a threat to the State about the war and about the Mrs. BOXER. My friend, the Demo- world, and a lot of the world is a lot economy. It is a two-front challenge we cratic whip, is absolutely correct. Our closer to him than we are, and a lot of face. records show that the first gulf war the world could potentially be reached Mr. REID. If the Senator will extend cost $61 billion. Remember that we by his missiles. her usual courteousness and allow me stopped well short of Baghdad, when The question for me, as one Senator, to ask another question. you are thinking what this war will has never been should Saddam be dis- Mrs. BOXER. Absolutely. cost. That is a long time ago and there armed—absolutely he should. Back in Mr. REID. The Senator outlined why has been inflation. It was $61 billion August when the President was saying people likely feel the way they do, but then, and $54 billion was paid for by we are going to go to war, I said: Wait does the Senator also acknowledge the our friends around the world. That is a minute, the issue is weapons of mass fact that we have in the last 2 years more than 80 percent, when you figure destruction; let’s see if we can get in- seen a $7 trillion surplus evaporate? it all out. trusive inspections back in there and Could that be a concern? I further say to my friend that we pick up where we left off with the in- Mrs. BOXER. I left that out in the had many countries sending troops, spections which destroyed—and I read list of items that have gone wrong. A over 20. In this case, the administra- the list into the RECORD already—more $7 trillion surplus disappeared, and we tion is telling us we need 250,000 troops weapons of mass destruction than we have deficits as far as the eye can see. for this war, and Britain is sending in did with our bombs. If this is really The last deficit I remember under 26,000 troops. That is about right, 26,000 about that, then we know the proven George Bush 1 was headed to $300 bil- troops and 250,000. That is pretty much way to do it. And if Saddam ever so lion. As I remember, it was up to $290 in terms of combat troops. That’s it. much as kicks the inspectors out, does billion. We all pulled together and said Mr. REID. Will the Senator yield for not cooperate with them, thwarts this is an outrage. We worked hard a question? them, we will know it, and we will be under Bill Clinton for 8 years and got Mrs. BOXER. Yes. on the moral high ground. We will have that down to a surplus which was Mr. REID. The reports I received the whole world back in our hands, and healthy for our economy, and we had today is the United States alone has in we can move forward with the world the biggest economic boom in years. It

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.110 S26PT2 S2784 CONGRESSIONAL RECORD — SENATE February 26, 2003 has all been squandered. World opinion coming into the 911 center, and they do have sent previously confidential opin- has been squandered. The surplus has not know where it is coming from. ions that they have written. All the been squandered. Does the Senator realize that can all other side has to do is say to Mr. Mr. REID. If the Senator will yield, be cured with money? The technology Estrada, answer the questions, and is the Senator aware that this same is here to correct that, but we do not then there can be a vote. poll, when asked how George Bush is have money to give the State and local When my friend raises the environ- handling tax policy, shows that 42 per- governments to correct that one thing ment, I will take a minute to say that cent of the people approve of the way to make homeland security and secu- we finally got a report that has been he is handling tax policy? And is the rity generally more satisfactory. Is the languishing in the administration since Senator aware that for the first time in Senator aware of that? June. Surprise, surprise, it was leaked this Presidency, 44 percent of the peo- Mrs. BOXER. My friend is right. As a to the Wall Street Journal, and after it ple feel he is handling it very badly; is matter of fact, the Commerce Com- was leaked, then the administration re- the Senator aware of that? mittee is holding a hearing to address leased it. It has some horrific statistics Mrs. BOXER. My friend is telling me this problem of people dialing 911 from about what is happening to young peo- something I was not aware of. I did not a cell phone. We have had people who ple and women of childbearing age in see the poll, but again, I think it be- are in the midst of being a victim of a terms of ingestion of mercury through comes very clear to the people that crime dialing 911 and the law enforce- mercury-tainted fish, and the fact that every policy that comes down, whether ment did not know where it was from. mercury is now emerging as a leading it is taxation of dividends, tax breaks It is a crucial matter that has to be re- cause of neurological damage and I pre- for the people at the top of the eco- solved. dict will become an issue in this Senate nomic ladder, that we are, in essence, What is amazing is this administra- just the way lead was an issue in other seeing a plan to get this economy re- tion has money to give tax breaks to Senates. We finally got this report. We vived which is going to do nothing but people at the top. The people who earn begged for it and then got it. put money in the pockets of people over a million dollars a year are going My friend is right: What could be whose pockets are stuffed with money. to get back, oh, gosh, an average of more important than getting this econ- We do not need to do that. about $80,000 a year just from the divi- omy going than protecting the health I was in California with people who dend tax break alone, not to mention of our children by bringing that report were telling me: Senator, we do not an income tax break. They have the up for debate and open for discussion? need a tax break. We are doing fine. money for that, but they do not have Senator JEFFORDS has a great plan, the Worry about homeland security. Worry the money to help our homeland de- Clean Power Act, that will take that about nuclear powerplants getting pro- fense. mercury out of the air, that will save tected. Worry about the chemical They have money to give to Turkey— these children from getting neuro- plants being protected. Worry about they are talking turkey with Turkey— logical damage. Let’s debate it. Let’s the homeland security first responders. that is for sure. Reports of an aid pack- debate Senator DASCHLE’s plan, his I say to my friend, if, God forbid, we age for Turkey started off as a few bil- economic stimulus plan, that gives the are attacked anywhere in our country, lion, then it was $6, then $10, then $16. stimulus to the working people, versus people are going to dial 9–1–1, they are Now I hear it is $26 billion. I think it the Bush plan that gives it to the peo- not going to dial the President, they was Senator DORGAN or Senator DUR- ple who do not even have to work be- are not going to dial Senator REID, BIN who said maybe our States should cause they live off their dividends. I Senator BOXER, or Senator HATCH. change their name to Turkey and they would like to see that debate. They are going to dial 9–1–1. Those will do better than they are doing now. If Miguel Estrada really wants this very people are telling us they have My friend is right. I have to use a job, he will do what Margaret Morrow not received a penny, and it is a very sense of humor because you get upset did, he will do what Judge Paez did, he sad situation. about these things and you cannot will do what Marsha Berzon did, and Mr. REID. Will the Senator yield for keep being outraged. answer the questions. There were 4 another question? Mr. REID. Will the Senator yield? years of questions to Judge Paez. He Mrs. BOXER. Yes. Mrs. BOXER. I am happy to yield be- answered them all. We had to break Mr. REID. Today I told the senior fore I close. their filibuster, I say to my friend, and Senator from Illinois about the visit I Mr. REID. What the Senator said in we did. had yesterday with people from Ne- her statement—and she seems to agree Senator Smith at the time was proud vada. The woman I remember so clear- with me, and I ask if she does—the rea- to launch the filibuster. Senator Bob ly works for the Las Vegas Metropoli- son we are not debating on the Senate Smith said—and I read it into the ECORD tan Police Department. She has floor Senator DASCHLE’s plan to im- R —this is a filibuster launched worked there for 27 years. For the last prove the economy, the reason we are because we need to get questions an- 20 years, she has been the person in not debating homeland security issues, swered, and it is the right thing to do. Mr. REID. Would the Senator yield charge of the 9–1–1 center. Is the Sen- the reason we are not debating envi- for a question? ator aware that she, like many people ronmental issues, which I know the Mrs. BOXER. Yes. who work in these entities around the Senator from California is so pas- Mr. REID. I want the Senator to country—and, of course, in a State of sionate about—no one in the Senate be- know that in addition to answering 35 million people, I am sure California lieves more in doing things to improve questions—because Judges Paez and has a number of them—she told me the environment than the Senator Berzon had a judicial record that could that in Las Vegas, this big sprawling from California—and there are so many be reviewed. urban center we now have, that when things we could be talking about deal- Mrs. BOXER. Correct. someone calls 9–1–1 from a telephone, ing with the environment, and the mul- Mr. REID. He has none. In addition such as we see on the desk in the cor- titude of other issues the Senator has to answering the questions, we asked ner or such as we have in the cloak- talked about today. Is the Senator that he submit the memos he wrote room or the Senator has in her home, aware the reason we are not doing this when he was at the Solicitor’s Office. they know where that phone call comes is that Republicans do not want us to The Senator will agree with that? from. do it, because they have no plan, that Mrs. BOXER. I did. I said it. I said They know the address, they know this is just an excuse for them to do there was precedent, and I read off the the location, but now when people use nothing, being hung up on this Estrada five cases where previously confiden- computers for doing their telephoning thing? Is the Senator aware of that? tial memos were released. I named the in a way that is hard for me to under- Mrs. BOXER. I am absolutely aware gentlemen—they happened to be all stand, but I am beginning to under- of this. I say to my friend, I went men—who were willing to release it in stand it better, and cell phones, they through the litany at the beginning of order to get a vote on their confirma- have no idea where their emergency my talk about how other nominees tion. calls come from. People have died have answered a multitude of ques- So there is adequate precedent for around the country as a result of a call tions, and as a matter of fact some that. There is adequate precedent for

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.112 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2785 answering the questions, and if the IRAQ citizens before that decision is made, Senate has any respect for our work On Iraq, I make a rhetorical plea to unlike all of us who face our electorate and for the Constitution of the United the administration: You had the whole every 6 years, or the House Members States, which we have been sworn to world in your hand on 9/12; you don’t every 2 years, and the President him- uphold, then we will not roll over when have it in your hand now. Let’s get self every 4 years. This man will be ap- any President, this one or any future back to being a true leader. Lay out a pointed to the bench for life. I believe President, sends a nominee down who path for peace. That is an American I am within my rights as one of the 100 cannot even tell if there is one Su- value, to lay out a path for peace. Lay who will make that decision to have preme Court case, in all the hundreds out a path for peace, not just the path sufficient information that I can make of years, that he disagrees with, cannot for war. an informed judgment. even name what jurist he would most Get this man disarmed, Saddam Hus- It is not for me to say to the admin- emulate. It is beyond the pale, the sein, in a way that does not lead to the istration the criteria they should use questions Mr. Estrada refused to an- loss of life and blood of our people and in making this kind of appointment. swer, because clearly he has been told innocent people. And if we do that, we But I would be surprised, frankly, that and trained not to answer any ques- will be back to where we were on 9/12. out of all the vast numbers of highly tions. If we pay attention to other problems qualified people in the country there I was proud to come to this Chamber, in the world, we will be back to where would be someone chosen for the sec- after my diligent staff went back we were on 9/12. ond highest court in the country with- through the RECORD and got the quotes I yield the floor. out any previous judicial experience. If of Bob Smith who helped lead the fili- The PRESIDING OFFICER. The Sen- that is the case, I believe we have a buster, who got the quotes of Senator ator from Minnesota. special need to have information pro- SESSIONS who then said we should Mr. DAYTON. We were elected to vided, to give each of us the informa- have, after we broke the filibuster, yet take an oath of office to uphold the tion we seek and need to make that de- another vote to indefinitely delay a Constitution, defend the Constitution termination. That is not forthcoming, vote. from enemies, foreign and domestic. either. It is extraordinary what has hap- That is the oath each member takes We are told we can have certain in- pened. In the RECORD tonight, for all very seriously. It is an oath that puts formation and we cannot have other in- who will read, we have the quotes of on each of our shoulders the responsi- formation. I received a note from the Senator HATCH, who called what hap- bility to decide what that means. White House counselor saying Mr. pened to Paez a filibuster, who called Our distinguished Senator from West Estrada would meet with me, and I ap- what Senator SESSIONS tried to do un- Virginia, ROBERT BYRD, presented me preciate the gesture. I don’t want to go precedented. We have the quotes of with a Constitution when I arrived back into my office off the record and Senator Smith who said: All I am doing here. I have learned a great deal about have a conversation. I want to know on is asking questions to get answers, and this document, about what it says and the record. This man does not have a now let the people decide. means. I have learned about the inten- They are going to run some kind of judicial record. We have to find other tions of the Founders of the country. means of obtaining that information. I ads in my State saying: BARBARA This document is the gospel which each am wondering why it is that somebody BOXER, shame; she does not like His- member is required to follow. It says with no judicial record, no series of de- panic nominees. the President, by and with the advice Do you want to know something? To cisions that we can look to, writings and consent of the Senate—it does not say that is like saying I do not support we can look to for guidance as to his say that the Senate shall approve or women’s rights and there is going to be views, why he would not feel, and why a backlash on that. I am the person how the Senate shall consider. It says the nominator would not feel a special who recommended the first Mexican- the Senate will be an equal partner obligation to provide that information. American to sit on a district court in with the President. The President will If I went before the voters of Min- Los Angeles, the person who stood on make a nomination, and it is for the nesota and refused to answer some of her feet day after day trying to get Senate to decide, 100 Senators to de- the questions Mr. Estrada refused to Richard Paez his seat. cide, according to their own values and answer before the Judiciary Com- They can do all they want because I according to their own background ex- mittee, I would be laughed out of the think the American people understand perience and according to whatever election. Certainly no one should vote we are standing on a principle. If I were they want to bring to bear on that for me if I would not give voters any the only one on my feet, I would stay matter how they will decide. information to allow them to under- on my feet because I think it is wrong I have listened to a lot of these de- stand my philosophy, what I value or to stonewall the Senate and members bates in the last couple of weeks on not, what decisions I agreed with or of the Judiciary Committee who in this matter. I am not a lawyer. I am disagreed with in the past, just basic good will have approved, by the way, not on the Judiciary Committee. I take information which we do not have an enormous number of judges—and very seriously my responsibility to about this man because he has no judi- who were just simply saying: Answer weigh someone’s career, weigh some- cial record because he has never been a the questions; give us the memos; we one’s character, to try to assess wheth- judge. do not know who you are; we want to er this is the kind of person I want to We have elected people in Minnesota have a record; we want to make an in- support to put on a court where he will who have not had prior experience, and formed decision. This is the right thing be presiding, if he chooses, for the rest it is fashionable to say they are not a to do. of his life; where he will be making de- career politician. In fact, we have a I dare say to my constituents—and I cisions that will affect millions of peo- Governor who just departed who had did when I was home; I said: You may ple, whether someone has the right to that view, that was the right kind of be hearing about this, but I want you housing or whether someone has the qualification. to know that you sent me here not to right to be protected from discrimina- If I got on an airplane and the pilot be part of the wallpaper behind me— tion, whether some schoolchildren can said this is going to be a different kind that is pretty easy—not to go along to go to school under better conditions. I of flight; I have never flown a commer- get along, but to stand up and do my don’t know what kind of decisions this cial airline before, I would not feel job as a Senator, and that is not to man will face, but I know they will be more confident. I would be pretty wor- vote on a judicial nominee who has re- important. I know they will last for a ried. If somebody says they are taking fused to hand over documents, who has long time and last beyond his own life- their child in for surgery, and someone refused to answer questions, who has time. said that doctor had never performed absolutely no record on which to judge In effect, we are making a decision that kind of surgery before, I would be what he is going to do. Once we have about someone who will be impacting very concerned. I would want to know that information, I am happy to have a the lives of Americans for two or three some information about that indi- vote and let the chips fall where they generations. That is the only time this vidual. I would want to know that per- may. person will be evaluated by his fellow son’s qualifications. I would want to

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.114 S26PT2 S2786 CONGRESSIONAL RECORD — SENATE February 26, 2003 know if that person had the training with which to do so. But I am not going to the Hennepin counties of Min- and skills to approach that matter be- to make that decision, I am not going nesota—and America. fore I trusted my life or the life of one to agree to this matter coming before Lo and behold, he doesn’t know. The of my children with that person. And this body, if I can help it, until I have FBI district office in Minneapolis, MN, we are entrusting the lives of un- that information. That is just the way doesn’t know. So he is watching CNN. known, not-yet-identified, very real it is. That is the position I have taken. He was not very confident about how people, very real Americans who will Again, that is my right to do so and well this administration has done its have to go before that court, where that is the right of any one of my col- job to get this country prepared for that court will review decisions that leagues in this situation. what may lie ahead. are made that are their last course. If We are spending an awful lot of time The citizens of Minnesota, as I said, justice is not served, justice will be for- here, way too much time, on this mat- are certainly alarmed. I believe they ever denied them and that will be a ter, given what is going on in the coun- have an absolute right to expect that tragic injustice they will suffer for the try today. We ought to be setting this this body, this institution of the Sen- rest of their lives. nomination aside, giving the nominee ate would be turning its attention to We cannot foresee all of that. We the opportunity to present in writing these matters of concern. cannot prevent all of it. We have a re- the information we have requested. Ei- So I say again, respectfully, to the sponsibility to the Constitution of the ther do so or not. We can assess it ac- majority leader, the time has come to United States which we swore to up- cordingly. We ought to turn the atten- set this nomination aside to give Mr. hold and defend, which our Founders tion of this body to matters that, when Estrada the opportunity to respond in thought so important that they did not I was in Minnesota last week, certainly writing to the questions which I and even talk about the country; they concerned every one of the citizens I others have said clearly, again and talked about the Constitution. That talked and listened to. It was not the again, we must have answered to make was our responsibility. Senator BYRD nomination of Miguel Estrada, impor- an informed judgment, which is my says that our responsibility is to up- tant as that is. It is about the war in constitutional obligation to the coun- hold the Constitution. That is our re- Iraq that is looming. It is people’s fears try and to the Minnesota people who sponsibility. That is the responsibility of whether we were going in; what is elected me. I don’t think that is much of each of us. the right thing to do. The fact that the to ask at all. Anyway, it is what I am I might want something different in week before they were told to go out going to ask and require before I am terms of information or background and buy plastic and duct tape, go out going to proceed. than other of my colleagues. For some and buy bottled water and food. They Then I ask the majority leader, as I of my colleagues, the fact that the are not very reassured in Minnesota wrote 2 weeks ago in a letter, that I President made this nomination, he is about the ability of their Government and the rest of us turn our attention on of their political party, that is all the to protect them. They are not really this Senate floor to these matters of information they need, well, that is the sure. war and peace, whether the United absolute right of all of my colleagues I must say, based on information I States of America is going to commit who decide that way. have received, what I have heard ex- itself to an invasion of another coun- I don’t question someone else’s right pressed from local law enforcement of- try, a preemptive strike, something to make their decision however they ficials in Minnesota, that what we that is going to have profound con- determine based on that, the same way passed in Congress has not gotten out sequences for our country—for our I don’t want anyone to question my to these first responders—resources, world for years to come. right to have the information that I training, information. Our silence here, as again the distin- probably need, just basic information I had the sheriff of the largest county guished senior Senator from West Vir- so I can know the background, quali- in Minnesota, Hennepin County, in my ginia, Mr. BYRD, said the other day, is fications, judicial philosophy, and office today. He cannot get information just profoundly deafening, the silence views of this person. I don’t believe any about what happened with the raising here in the Senate, the absence of de- electorate in any State in this country of the national security alert. He said bate, the absence of 100 different views would elect somebody who wanted to he found out about it on CNN. He is a on what we are doing, what we propose serve in a high office—Governor, Sen- sheriff. He is part of the network of to do, what might we do. ate, member of the House—who had no emergency responders for the city of Of course the real tragedy, in my prior political record, no prior involve- Minneapolis, the largest city, largest view, and the real embarrassment to ment in public life, and went before the county. He does not have any source of this institution, great as it is, and to electorate and said: I want to be elect- information from the Federal Govern- the House of Representatives, is that ed and I am not going to tell you where ment to tell him even that such a code this document, the Constitution of the I stand or what I believe or what I do has been established, much less what United States, states very clearly and or what I agreed with in the past or the reasons are, much less what some definitively that Congress and only who I like or do not like. I don’t think of the circumstances might be. Congress shall declare war. Not the anywhere in America there would be He said he tried to find out from the President. No one else. Just Congress. positive reaction to that. FBI, with which he has a very good This was very clearly the intention I don’t believe there would be a board working relationship, what the cir- of those who drafted the Constitution, of directors in corporate America that cumstances were. They didn’t know ei- whose wisdom and foresight is some- would hire somebody for an important ther. They hadn’t gotten any prior thing I find unbelievable, that a group position—chief executive officer, chief word. That certainly astonished me. of people back over 200 years ago could operating officer, the No. 2 position— On the Governmental Affairs Com- have, on their first attempt—not that that would even consider someone who mittee and I sat through the hearings they didn’t have drafts, but that they would not provide the basic informa- where this was being discussed. It was could put together a document that tion that we are asking for here. my clear understanding that the new would be as brilliantly foresighted as To me this gets into the realm of just Department of Homeland Security was this turned out to be, and anticipatory being ludicrous, that we are in a posi- going to be in constant communication of just these kinds of matters: Where tion of being questioned for taking the with the FBI and CIA, that informa- the temptation is to let it go some- particular position that says we want tion was going to be shared, and they where else; where the pressures are information. would all have that information. I also from some person or groups of people I agree with my colleague from Cali- understood, because we certainly pro- to forget something or overlook some- fornia. If we get the information, then vided the funding and we certainly thing or circumvent something. They there will be a vote. If we get informa- made it clear in the hearings on the made the President of the United tion so those of us who have these res- floor that we intended for that Depart- States the Commander in Chief of all ervations—and really, in my case, I ment to be communicating, providing the Armed Forces—back then of the have not come to a final decision be- resources, providing training, pro- militia. For that very reason they cause I do not have the information viding expertise and getting that out didn’t want him, they didn’t want any

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.117 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2787 one person—it is not just this Presi- decades to follow that it is wrong for posedly provide that kind of coordina- dent; it is any President—they didn’t us to turn the other way, for us to tion, services, and resources. God for- want that one person making the deci- refuse to fulfill our constitutional re- bid that something would happen to sion to commit this Nation to war or sponsibility. What we should do is Hennepin County and they wouldn’t keep us in peace. Boy, were they ever bring these matters to the Senate floor have the benefit of that information; right. Did they ever understand why and say, Mr. President, that was the they would not know what to expect, that should be a decision made by an 107th Congress, this is the 108th Con- what it might be, where it would be elected group such as the Congress. gress, we are a different body, we want coming from. We didn’t declare war back in Octo- to recertify that constitutional respon- These are critical life-and-death re- ber. The President was not at that sibility that Congress and only Con- sponsibilities that I know the Federal point himself—and I gather not even gress shall declare war. Government and Secretary Ridge take today is it appropriate—ready to make No President is authorized by the very seriously. I have nothing but the that final, fateful decision. That was 4 Constitution to commit any forces in highest respect and regard for him and months ago, before we even got to this such a way until that decision has been the monumental task he is under- point. We didn’t declare war. What we made and voted on by the Congress. taking. I hold nothing but the highest said is we will give the President the That is what we ought to be doing here. respect for the sheriff of Hennepin authority to do whatever he deter- The American people have a right. County. The two of them ought to be mines needs to be done, including the They elected us, and they sent us here, working and coordinating. The sheriff use of force. That is one of those euphe- and they expect no less of us and will ought to have the resources we pro- misms we use to hide our true intent, hold us in the highest reproach if we vided last August in this body. It was which means if he wants to have a war, fail to fulfill that responsibility, if we vetoed by the President. There is more he starts one. We will preapprove it fail to even bring the matter up, or if forthcoming from the 2003 appropria- and he can proceed. That is not any- we fail to direct our attention and de- tions. We want to make sure that those where near what the Constitution says, clare ourselves one after another on resources are getting out to local gov- nor what was intended it say, nor how the record for or against. We owe that ernment first responders all over the it was intended to be followed. to the people who founded this coun- United States of America so that they Before this Nation is committed to a try, who sustained this document— have that ability to train, to prepare, war, before American men and women many at the cost of their own lives. We and to be equipped to respond as much are sent across our border to fight and owe that to the courageous Ameri- as possible. some of them to die, before possibly cans—men and women—who are Again, we hope and pray it will never people in this country might suffer amassed on the borders halfway around happen. But if it should happen, they those grotesque experiences, they have the world who will have to carry out will have to be brought into action. the right that their elected officials that decision, if it is made, to proceed Every second is going to count. Every will give this matter their most serious to fight. Some will be wounded and person is going to have to make the consideration for a length of time that maimed. Some will lose their lives be- right decision. Life depends on how is appropriate. It will not take as long cause of that decision. well we help them be prepared. as has the squabble over Mr. Estrada, We owe them nothing less than to I commend the majority leader’s re- but it ought to take a while, because fulfill our responsibility here in the quest that this nomination of Mr. this decision is profound. Senate at this time or as soon as the Estrada be set aside and that he be The fact that we are here on the Sen- President determines that matter given the time and the opportunity to respond in writing to the questions of ate floor now, the third day we are should be brought to our attention. back from our recess—the fact we had Two weeks ago, think of what we those of us who do not have the infor- a recess at all last week rather than went through. Our citizens were told to mation that we believe we need to being here debating these issues of war go out and buy duct tape and plastic make the decision—that he provide and peace—the fact that we are doing sheets and not even told really what to that information to us; that we take a something now that, as I said earlier, do with them. In Minnesota, we are period of time then to focus on what is has its own significance, has its own well aware of that. We are a cold- a life-and-death and most urgent con- place, but pales in comparison with weather State. We have quite a bit of cern of every citizen in Minnesota whom I met with and heard from last war and peace and the enormity of experience putting up plastic sheeting week. Even if there was another topic those decisions about the preparation and filling up drafts around doors and of conversation, they wanted to know of the country and the Department of windows. It is not something you can about Iraq. They wanted to express Homeland Security, the preparedness do lightly. You can increase the con- their own views and own concerns. of this Government to protect all of its centration of radon in the rooms by They see us on C-SPAN doing nothing citizens—those are the matters that closing them up too tightly. The infor- but talking about the nomination, and concern the people of Minnesota al- mation wasn’t even in necessarily the the same the next night and the next most to the exclusion of anything else; best interests and the best health of night. even to the exclusion of the problems people who would be doing it. They are I shudder to think what they must with the economy with all those dif- entitled to a lot more from their Gov- think about our sensibilities and our ficulties. Those are the matters which ernment than that. They are entitled priorities. It is wrong. We owe it to we should be reviewing on the Senate to know a lot more than to go out and those citizens to do our best in every- floor. get bottled water or canned food and thing we stand for to bring this body If the President believes we should duct tape and plastic sheets, and, good back to focusing on the most critical commit our forces to invade another luck and God help us. They deserve a time of our Nation—the pending war, country, to launch a preemptive at- lot more than that. That is why on the the decision there, the responsibility of tack, to start a war against another floor of the Senate we should be bring- the Congress to declare war. And only country—which is almost unprece- ing up homeland security and dis- Congress can declare war. Those of us dented in our Nation’s history, and is cussing what more needs to be done who voted for resolution last fall abdi- certainly unprecedented in the context and the resources that are needed. cated to the President. It doesn’t ab- of leaping forward to cut off a threat I want to bring forth the voice of the solve our responsibility and what we which is not imminent, not immediate, sheriff of Hennepin County, MN, and must do now to stand up and take that but rather one which we believe would his concerns. I want to know why he responsibility back and make that de- materialize, and probably would if cer- wasn’t told the country was going cision and be held accountable by the tain lines were crossed, to remove the through the second highest security people of America. Government, the leader of another level and why he had to find out about I yield the floor. country—these are decisions which are it from television rather than from the The PRESIDING OFFICER (Mr. TAL- so enormous in their scope imme- Department of Homeland Security ENT). The Senator from Tennessee. diately and which are going to have which was established by this body to Mr. ALEXANDER. Mr. President, I such consequence for this world for provide that kind of information—sup- am a new Senator. I am aware of the

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.120 S26PT2 S2788 CONGRESSIONAL RECORD — SENATE February 26, 2003 traditions of the Senate, one of which been assumed that it is unnecessary— to a law school around the United is that a new Senator is not expected and, in fact, it is unethical by the States of America this year—and I to say much—at least throughout the standards of most of the judicial can- know a great many of them—think year is not expected to say much—to ons in this country—for the nominee to about it. This young man, in a few begin with until they have something try to say how he or she would decide years, was admitted to Harvard Law of importance to say. So I have not a case that might come before him or School. And not only that, he became said much. her. an editor of the Harvard Law Review I had been planning to make my first Then, after all that examination is and graduated magna cum laude. remarks on this floor next Tuesday on done in the Senate, there is a vote. And This a dream resume, but it is not the issues I care most about, which are under our constitutional traditions, even over. the education of our children and put- the majority decides. Then he went to the Second Circuit ting the teaching of American history I have been listening very carefully, as a law clerk. Then he became a clerk and civics back in its rightful place in and that is not what is happening. The for a Supreme Court Justice. By now our schools so that our children can other side has simply decided that it he was in the top 1 percent of 1 percent grow up knowing what it means to be will not allow the Senate to vote on of all law school students in the coun- an American. I planned on doing that the nomination of Miguel Estrada. In try, with the kind of resume for a law- next Tuesday. But I have decided to doing so, it is doing something that has yer every law firm in the country make some remarks today—earlier never been done for a circuit court of would want to hire. He has a record than expected because I am dis- appeals judge in our Nation’s history. that almost everyone would admire. appointed in what I have heard in the In those hours that I have presided Then he went to the Southern Dis- debate about Miguel Estrada. over this body in the last few days, I trict of New York, one of the most Like my friend from Missouri, I have have been listening very carefully to competitive places, to be hired for had the opportunity to preside in the see what reasons our friends on the training there. last few days. That is one of the honors other side could give for coming to Then he was in the Solicitor Gen- that are accorded new Members of the such an extraordinary conclusion eral’s Office. To those who are not law- Senate. I have been listening very care- about whom I have come to learn is an yers or who do not keep up with this fully. My disappointment has increased extraordinary individual, Miguel sort of thing, just being in the Solic- with each of these 10 days as the debate Estrada. itor General’s Office might not sound has continued. I have been listening carefully for the like such a big deal, but those are the I am disappointed first because I be- answers, especially to these three ques- plum positions. The way I understand lieve our friends on the other side of tions: No. 1, what is wrong with Miguel that office, there are a couple of polit- the aisle are being unfair to Miguel Estrada? What is wrong with him? No. ical appointees there—the Solicitor Estrada. I am most disappointed in 2, why can’t we vote on Miguel General and his Deputy—and there are them because I believe if the direction Estrada, after 10 days of debate? And, about 20 career lawyers. Miguel of this debate continues as it is going— No. 3—most importantly—why should Estrada was one of those lawyers. They and I heard the comments of my friend we change the constitutional tradition are there because they are not just from Missouri yesterday on this same that a majority of the Senate will de- good, they are the best in America. matter—if we continue in the same di- cide whether to confirm Miguel They have the best resumes. They have rection, we run the risk of permanently Estrada? Because what they are say- been the clerks to the Supreme Court damaging the process by which we se- ing, really, is that he will need to get Justices. They are going to be the lect Federal judges and by which we 60 votes—60 votes—instead of 51. greatest lawyers. It is the most com- dispense justice in the United States. I I have had the privilege of listening petitive position in which you can be. am disappointed because this is not to each of their arguments. As my And there he is, Miguel Estrada, what I expected when I came to the friend from Missouri knows, they first coming here at age 17, barely speaking Senate. try one argument, and it does not go so English, making his way into there. He I may be new to the Senate, but I well. Then they move to another argu- worked there for the Clinton adminis- know something about judges. I am a ment, and it does not stand the light of tration and the Bush administration. lawyer. I once clerked for a U.S. Attor- day. And then they move to another Then he went to one of the major law ney General. His name was Robert Ken- one. firms of America. And he has argued 15 nedy. I once clerked for a great Federal But let me tell you what I have heard cases before the Supreme Court of the appellate judge. His name was John as I have listened to the debate. United States. Minor Wisdom of New Orleans. I once First, they said—it would be hard to That is an incredibly talented record. worked in this body 36 years ago for imagine that anyone could say this There is almost no one who has been Senator Howard Baker, a great lawyer. with a straight face, but we had many nominated for any judgeship in our I watched this body as it considered straight faces on the other side of the country’s history who has a superior and confirmed men and women to the aisle saying this—that he was not record. For anyone to have even sug- Federal courts of this land. As Gov- qualified to be a Federal appellate gested for 15 minutes that Miguel ernor of Tennessee for 8 years, I had judge. Estrada is not superbly qualified to be the responsibility of appointing—and You do not hear that argument very a member of the United States Court of did appoint—nearly 50 men and women much anymore because that is almost Appeals—for anyone to even suggest to judgeships all the way from chan- a laughable comment if it were not that—it is difficult to see how one cellorships to the supreme court. such a serious matter. could do that with a straight face. I know pretty well the process we But let’s go over this. This man isn’t Little has been made about what he have followed in the Senate and in this just qualified; if this were sports, he did in the Solicitor General’s Office. I country for the last couple of cen- would be on the Olympic team, and he think it is worth talking about that. turies. would be getting an award for ‘‘Amer- These talented young men and women It is fairly simple. It can be expressed ican Dream Story of the Year.’’ have the job of helping the Solicitor in plain English. The Executive nomi- Here is a man who came to this coun- General make decisions about what to nates, the Senate considers, and then try at age 17 from Honduras. He had a do in cases in which the United States confirms or rejects the nomination; speech impediment. He spoke very lit- is a party. That means they review all and in doing so, what the Senators tle English. And within a short period the decisions that come against us, the have always looked for, mainly, has of time, he was attending Columbia United States of America. They are the been good character, good intelligence, University, one of the most prestigious lawyers for us, the United States of good temperament, a good under- universities in America. America. standing of the law and the duties of a Then he went to Harvard Law They write memoranda and they judge, and whether a nominee seems to School. Now, it is really hard to get write opinion and they must argue have courtesy for those who may come into Harvard Law School. It has great back and forth. And they must argue before him or her. And it has always competition. Everyone who is applying about every side of every issue. And

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.123 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2789 our friends on the other side have come When I graduated from New York and the distinguished Senator from up with straight-face argument No. 2, University Law School, the dean came Minnesota spend a long time talking which is that somehow Mr. Estrada, to see me and said I had a chance to be about that, saying he hasn’t answered who does not even have all those a messenger down in New Orleans for a questions. Well, Mr. President, I am memoranda, should be penalized be- man that my dean, Bob McKay, said not a member of the Judiciary Com- cause the U.S. Government does not was one of the three or four best Fed- mittee, but I know they had hearings want to hand those memoranda, that eral judges in the country. His name and I know Members on the other side were exchanged back and forth between was John Minor Wisdom, a great man were in charge of the Senate when they the various Solicitor General’s assist- and a great lawyer. He had never been had the hearings. I know the hearings ants, over to the Senate. a judge before President Eisenhower could have gone on as long as they We have never done that. There are appointed him. Neither had Albert wanted them to because they were in seven living former Solicitors General Tuttle from Atlanta or John Brown charge. If I am not mistaken, the dis- of the United States, and seven—all of from Texas. The three of them became tinguished Senator from Utah was them—have written a letter to this three of the greatest judges in the here. I believe they went on all day body saying that has never been done, South. They presided, having been ap- long. The hearings were unusually and it never should be done, for obvious pointed by a Republican President, long. Miguel Estrada was there and he reasons. If it were done, you would over the desegregation of the southern answered their questions. Every Sen- never have any straightforward memo- U.S. They were among the greatest ator on the committee had the oppor- randa left in that office. It protects us, judges we have ever had, and they had tunity to ask followup questions in the United States. And that never never been judges. writing, and two did. The Senator from should even be considered to be held Of 108 Supreme Court Justices who Massachusetts and the Senator from Il- against Mr. Estrada. have been appointed, 43 of those have linois did that. Mr. Estrada gave those So is he qualified? It is hard to imag- never been a judge. I have a list some- answers in writing. He has now said to ine someone who is better qualified. I where here of judge after judge after Members of the Senate that he is avail- consider it a great privilege to come to judge. Earl Warren; Byron White; Jus- able for further questions. He will be the Senate and find a President who tice Powell; Justice Rehnquist; Justice glad to visit with them. discovered such an extraordinary per- Breyer; Judge Wisdom’s favorite friend What does he have to do to answer son to nominate for the Court of Ap- on the second circuit, Henry Friendly the questions? Why is there a new peals for the District of Columbia Cir- of New York. He had never been a judge standard for Miguel Estrada? Why do cuit. Such a story should give inspira- before. Charles Clark; Jerome Frank; we say to him, for the first time, tell tion to men and women all over Amer- John Paul Stevens; Warren Burger; us your views in a particular case be- ica, that this is the country to which Harold Leventhal; Spottswood Robin- fore we will confirm you? We have tra- you can come, regardless of race or son; Ruth Bader Ginsberg, who had dition rooted in history that it is even background or whatever your condi- never been a judge before she was a unethical to do that. I appointed 50 tion, and dream of being admitted to Justice. Does that mean she wasn’t judges, as I said, when I was Governor. the best universities, finding the best qualified to sit on this Court? When I sat down with these judges, I jobs in a short period of time, and Why would the other side be taking didn’t ask: How would you rule on TVA being nominated by the President of up the time of the Senate at a time and the rate case, or how would you the United States for such a court. when we are concerned with war with rule on partial-birth abortion, in the What a wonderful story. And what an Iraq and the economy is hurting, by abortion case; or what would you do embarrassing event it is to have our about applying the first amendment to friends on the other side to even take making that kind of argument? They the issue of whether to take the Ten the time of this Senate trying to sug- would be asked to sit down in any re- gest such a person is not qualified. So spectable law school in America if they Commandments down from the court- let’s just throw that argument away gave that answer. Yet they are here in house in Murfreesboro, TN, or how do and put it in the drawer. the Senate trying to persuade us that you feel about prayer in the schools, or Since that argument did not fly, they it makes a point. if somebody says a prayer before a then moved to argument No. 2, which In 1980, I appointed George Brown of football game? is equally difficult to offer with a Memphis as the first African American I didn’t do that because I didn’t straight face, if I may respectfully say justice in the history of the State of think it was right to ask a judge to de- so. They said he has no judicial experi- Tennessee. If George Brown had to be a cide a case before the case came before ence. judge before he had become a justice, I him, which has been the tradition in Now, this argument is still being could never have appointed an African this country. We are not appointing made. I heard the distinguished Sen- American justice, because there were legislators to the bench, or precinct ator from New York, last night, in an no African American judges at that chairmen, or think-tank chairmen, or impassioned address, right over on the time. Even today, given the paucity of Senators; we are appointing judges. other side, say he has never been a Hispanics and African Americans and They are supposed to look at the facts judge, and we don’t know what his women who are judges, if we were to and consider the law and come to a opinions are. Never been a judge— say that in order for someone to be a conclusion. But they say he didn’t an- Miguel Estrada cannot be a judge be- judge, before he or she becomes a swer the questions. cause he has never been a judge. judge, we would have a terrible, invid- Mr. President, the only way I know Well, I am awfully glad that was not ious discrimination against men and to deal with that—because this side the standard that was applied to Jus- women who should not be discrimi- says one thing and that side says the tice Felix Frankfurter when President nated against, and I am sure my other, and since I am not on the Judici- Roosevelt nominated him. He would friends on the other side don’t want to ary Committee—is to read the ques- never have been a judge before he was see that happen. tions and the answers. I wanted to see a Justice of the Supreme Court. So even though we have spent days whether he was asked some questions I am glad it was not the standard arguing that Miguel Estrada should and whether he gave some answers. that was applied to Louis Brandeis be- not be considered because he has never These are the questions and answers, fore he was nominated to the Supreme been a judge, that argument has no Mr. President. This is the record of the Court. I am glad it was not the stand- merit to it whatsoever. We hear it less hearing of Miguel Estrada, plus a long ard that was applied to Thurgood Mar- and less now that it is on the tenth memorandum of questions from the shall, the first African American who day. Senator from Massachusetts and the was ever appointed to the Supreme Well, those two arguments didn’t fly Senator from Illinois that he also an- Court of the United States. He had because here is a superbly qualified swered. I will not take the Senate’s never been a judge. And so should person. So they said he didn’t answer time to read all of the questions and Thurgood Marshall have never been a the questions. answers, but since they keep saying he Justice because he had never been a I just had the privilege of hearing the didn’t answer the questions, let me judge? distinguished Senator from California give some examples.

VerDate Dec 13 2002 00:43 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.125 S26PT2 S2790 CONGRESSIONAL RECORD — SENATE February 26, 2003 The chairman of the committee says: My duty as a judge, and inclination as a which is how I got involved in the issue, deal Mr. Estrada, we have heard you have held person and as a lawyer of integrity would be with the subject of street gangs that engage many strongly-held beliefs. You are a zeal- to follow the orders of the highest court. in or may engage in some criminal activity. ous advocate. That is great. You know, law- The Senator from Ohio: I got involved in the issue as a result of being asked by the city of Chicago—— yers who win cases are not the ones who say And if there were no controlling precedent ‘‘on the one hand, this, on the other hand, dispositively concluding an issue with which The last time I checked, the mayor of that.’’ They are zealous. But you also have you were presented in your circuit, to which the city of Chicago was a Democrat, a to make sure, if you are going to enforce the sources would you turn for persuasive au- good mayor, but just so I would not laws, that your personal views don’t take thority? want anyone to think this was a par- over the law. Senator Thurmond has asked Mr. Estrada: tisan comment—— every single nominee I have ever heard him speak to—Republican or Democrat—to speak When facing a problem for which there is which had passed by similar ordinance deal- to that effect. What would you say is the not a decisive answer from a higher court, ing with street gangs. And I was called by most important attribute of a judge, and do my cardinal rule would be to seize aid from somebody who worked for Mayor Daley when you possess that? any place I could get it. Depending on the they needed help in the Supreme Court in a nature of the problem, that would include re- case that was pending on the loitering issue. A very good question. lated case law and other areas higher courts I mention that because after doing my work Answer: had dealt with that had some insights to in that case, I got called by the attorney for The most important quality for a judge, in teach with respect to the problem at hand. It the city of Annapolis, which is the case to my view, Senator LEAHY, is to have an ap- could include history of the enactment, in which you are making reference. They had a propriate process for decisionmaking. That the case of a statute, legislative history. It somewhat similar law to the one that had entails having an open mind, it entails lis- could include the custom and practice under been at issue in the Supreme Court. Not the tening to the parties, reading their briefs, any predecessor statute or document. It same law. They were already in litigation, as going back behind the briefs and doing the could include the view of academics to the you mentioned, with the NAACP. By the legal work needed to ascertain who is right extent they purport to analyze what the law time he called me— in his or her claims. In courts of appeals is instead of prescribing what it ought to be, This is the lawyer for the city— court where judges sit in panels of three, it and, in sum, as Chief Justice Marshall once is important to engage in deliberations and said, to attempt not to overlook anything he had filed a motion for summary judgment give ears to the views of colleagues who may from which aid might be derived. making the argument that you outlined. And he had been met with the entrance into the have come to different conclusions. In sum, I give him an A plus for that. That to be committed to judging as a process that case by a prominent DC law firm on the was a good question, and he gave a su- other side. He went to the State and local is intended to give us the right answer and perb answer, just the kind of answer I not a result. I can give you my level best sol- legal center and asked: Who can I turn to to emn assurance that I firmly think I have think an American citizen who wants help? And they sent him to me because of those qualities, or else I would not have ac- to appear before an impartial court in the work I had done in the Chicago case. Fol- cepted the nomination. this country would hope to hear. I do lowing that, I did the brief, and the point on the standing issue that you mentioned is ‘‘Does that include the temperament not think we want to hear: Welcome to the court, Mr./Ms. Litigant. We have that in both Chicago and in the Annapolis of the judge?’’, asked the chairman. ordinance, you were dealing with types of Mr. Estrada said: here your Democratic court; we have laws that had been passed with significant Yes, that includes the temperament of a here your Republican court. If your substantial support from the minority com- judge. To borrow somewhat from the Amer- views are all right, you might get the munities. I have always thought that it was ican Bar Association, the temperament of a right hearing. You would want a judge part of my duty as a lawyer to make sure judge includes whether he or she is impartial who said what Mr. Estrada said. that when people go to their elected rep- and openminded, unbiased, courteous, yet The Senator from Massachusetts, resentatives and ask for those type of laws firm, and whether he will give ear to people who has been extremely critical of Mr. to be passed to make the appropriate argu- who have come into his courtroom and who Estrada, asked a more detailed ques- ments that a court might accept to uphold don’t come in with a claim about which the tion. Mr. President, you may be won- the judgment of the democratic people. In the context of the NAACP, that was relevant judge may at first be skeptical. dering why I am going into such detail The chairman said: to a legal issue because one of the require- when this is available to the whole ments we argued for representational stand- Thank you. world, including the Senators on the ing— I submit that is a good answer. I ap- other side. The problem is perhaps Those who might be listening may pointed 50 judges and I would have lis- someone has not bothered to offer this think this is awfully detailed, awfully tened to that question. I would give book to our friends on the other side specific, awfully long. Mr. President, him an A-plus on that. because they keep coming down here that is my point. Senator KENNEDY Here is the Senator from Iowa: while you and I are presiding day in asked an appropriate and very detailed Before I make some comment, I want to and day out for 10 straight days and question about an issue involving ask three basic questions. saying Mr. Estrada has not answered street gangs in Chicago where Mayor This is in the hearing with Mr. the questions. My suggestion is he has Daley asked Mr. Estrada to help, and Estrada. This is the man who the other answered question after question, and Mr. Estrada gave Senator KENNEDY a side says doesn’t answer questions. he has done a beautiful job of answer- very detailed, courteous, respectful, The Senator from Iowa: ing the questions. specific answer that has taken me 3 or In general, Supreme Court precedents are Let me take a few more minutes and 4 minutes to read, and I am not binding on all lower Federal courts, and cir- give examples of answering questions. through yet. cuit court precedents are binding on district The Senator from Massachusetts: The point is, the other side keeps courts within a particular circuit. Are you Now, Mr. Estrada, you made the case be- saying he has not answered questions committed to following the precedents of the fore the court that the NAACP should not be when he has answered the questions. higher courts faithfully, giving them full granted standing to represent the members. force and effect even if you disagree with As I look through the case, I have difficulty Not only has he answered them, he has such precedents? in understanding why you would believe the answered them in a way a superbly Mr. Estrada: NAACP would not have standing in this kind qualified lawyer with his background of case when it has been so extraordinary in might be expected to answer. Absolutely, Senator. terms of fighting for those—this is the The Senator from Alabama: How could you make a better answer NAACP—and in this case was making the Mr. Estrada, if you are confirmed in this than that? You could either say yes or case of intervention because of their concern position, and I hope you will be, how do you no. He said yes. about the youth in terms of employment, see the rule of law, and will you tell us, re- The Senator from Iowa: battling drugs, and also voting. gardless of whether you agree with it or not, What would you do if you believed the Su- In other words, Mr. KENNEDY was you will follow binding precedent? preme Court or court of appeals had seri- saying: Mr. Estrada, how can you do Mr. Estrada: ously erred in rendering a decision? Would this when the NAACP is on the other I will follow binding case law in every case. you, nevertheless, apply that decision, or side? I don’t even know that I can say whether I would you use your own judgment on the Mr. Estrada’s answer: concur in the case or not without actually merits, or the best judgment of the merits? The laws that were at issue in that case, having gone through all the work of doing it Mr. Estrada: Senator Kennedy, and in an earlier case, from scratch. I may have a personal, moral,

VerDate Dec 13 2002 00:43 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.128 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2791 philosophical view on the subject matter, sition that I would vote against him. asked me many followup questions and but I undertake to you that I would put all He argued a case before the court that I worked hard answering the questions that aside and decide cases in accordance made the very best argument he could 10 or 12 years ago when I was in the with the binding case law and even in ac- make, arguing two lines of opinions. first President Bush’s Cabinet. These cordance with the case law that is not binding but seems instructive in the area, with- What our friends on the other side are are serious questions and serious an- out any influence whatsoever from any per- saying is, when he writes a brief or ar- swers. sonal view that I may have about the subject gues a case on behalf of the United Here I think is a revealing question, matter. States, that somehow that reflects the and one which may give us some idea What Mr. Estrada was saying to the point of view with which they disagree. of why we are in the 10th day of debate Senator from Alabama was: Mr. Sen- I disagree with his brief. I would not on one of the most superbly qualified ator, with respect, I may not decide consider voting against him or any- candidates ever nominated for the this case the way you would like for it body else based on that kind of reason, court of appeals, a man who exempli- to be decided because I will look at the a very complete answer. fies the American dream. The Senator case law and I will follow the case law, Then if I may, I will state two more. from Massachusetts, Mr. KENNEDY, and I might even decide this case the Again, I would not normally think it asked this question: way my personal view would decide it was necessary for me to read the ques- Mr. Estrada, do you consider yourself a if the case law is different than my per- tions and read the answers, except that ‘‘conservative’’ lawyer? Why or why not? sonal view. In other words, I think Mr. virtually every Senator from the other Why do you believe that you are being pro- Estrada is giving the answer that most side who has come in has said he has moted by your supporters as a conservative judicial nominee? Do you believe that your Americans want of their judges, re- not answered the questions, so I want the American people and my colleagues judicial philosophy is akin to that of Jus- gardless of what party they are in. tices Scalia and Thomas? Why or why not? I will give a couple more examples, to know that if they want to know What Senator KENNEDY is looking for and I do this because this has gone on whether he has answered the questions is to find out is this a conservative now 10 days. All I hear from the other all they need to do is go to the hearing lawyer. Is the suggestion that we may side is he will not answer the ques- record and read the question and read want conservative decisions or liberal tions, he is not answering the ques- the answer. decisions? I thought we wanted fair de- tions, when, in fact, there is a book full Here is a tough one from the Senator cisions, based on precedent, based on of questions and answers to which I be- from California: fact. I thought we wanted judges who it lieve law professors in the law school I Do you believe that Roe v. Wade was cor- would be impossible for us to tell where attended would give a very high grade. rectly decided? Here is the Senator from Wisconsin: There is no more a difficult question they were coming from before they were coming. With that in mind, Mr. Estrada, I would for a judge who comes before the Sen- like to know your thoughts on some of the ate, because that is a terribly difficult The response from Mr. Estrada is following issues. Mr. Estrada, what do you issue about which we all have deeply very interesting. He said to the Sen- think of the Supreme Court’s effort to cur- held moral beliefs, and for all of us al- ator from Massachusetts: tail Congress’ power which began with the most there is only one right way to an- My role as an attorney is to advocate my Lopez case back in 1995, the Gun-Free School swer the question, unless one believes client’s position within ethical bounds rath- Zone Act. That was a very controversial that what judges are supposed to do is er than promote any particular point of case. I remember my own view on that. I view, conservative or otherwise. to interpret the law and apply the law would have voted against it, even though, A-plus for that, I would say. obviously, I am for gun-free school zones, but to the facts. almost every Senator voted for it because Mr. Estrada’s answer: Mr. Estrada says: they did not want to sound like they were My view on that judicial function, Senator I have worked as an attorney for a variety against gun-free school zones, I guess, or Feinstein, does not allow me to answer that of clients, including the United States Gov- whatever the reason might have been, but it question. ernment, State and local governments, individuals charged with criminal activity. was a controversial issue and a hard issue to Then he goes on to explain what he vote against. meant. Are we going to say criminal lawyers Mr. Estrada: I have a personal view on the subject of cannot be confirmed because they rep- Yes, I know the case, Senator. As you may abortion, as I think you know. But I have resented people who murdered people know, I was in the Government at the time, not done what I think the judicial function and that makes them murderers? and I argued a companion case to Lopez that would require me to do in order to ascertain Large corporations, indigent prisoners was pending at the same time and in which whether the Court got it right as an original seeking Federal habeas corpus, in those I took the view that the United States was matter. I have not listened to the parties. I cases I have advocated a variety of positions urging in the Lopez case and in my case for have not come to an actual case or a con- that might be characterized as either liberal a very expansive view of the power of Con- troversy with an open mind. I have not gone or conservative. gress to pass statutes under the commerce back and run down everything that they Remember, this is from a career em- clause and have them to be upheld by the have cited. And the reason I have not done court. Although my case, which was the any of those things is that I view our system ployee in the U.S. Solicitor’s Office in companion case to Lopez, was a win for the of law as one in which both me as an advo- the Clinton and Bush administrations. Government on a very narrow theory, the cate and possibly, if I am confirmed, as judge This is Miguel Estrada: court did reject the broad theory I was urg- have the job of building on the wall that is While I am grateful for the wide ranging ing on the court on behalf of the Govern- already there and not to call it into ques- and bipartisan support that my nomination ment. tion. I have had no particular reason to go has received, I have no knowledge of the spe- In other words, Mr. Estrada was back and look at whether it was right or cific reasons that might cause a particular sticking up for the very people who are wrong as a matter of law, as I would if I were supporter of my nomination to promote my saying he will not answer their ques- a judge that was hearing the case for the candidacy for judicial office. As a judge I tions. He was there. That was his view, first time. It is there. It is the law, as has would view my job as trying to reach the been subsequently refined by the Casey case, and he talks about it, and he answered correct answer to the question before me and I will follow it. without being guided by any preconceptions the question: That is a complete answer to the or speculations as to how any other judge or Even though I worked very hard in that most difficult question that could be justice might approach the same issue. case to come up with every conceivable argument for why the power of Congress would be asked of a nominee for a Federal judge- If all of the Senators would take the as vast as the mind could see, and told the ship. time to read Miguel Estrada’s answers, court so at oral argument, I understand I Senator Feinstein: So you believe it is set- some of them might end up in a text- lost on that issue in that case as an advo- tled law? book of appropriate answers, if they be- cate, and I will be constrained to follow the Mr. Estrada: I believe so. lieve a judge’s job is to apply precedent Lopez case. As I mentioned, if I understand the and consider the facts and come to a Here we are, Mr. President. Mr. committee’s rules, every Senator on fair decision. Estrada took a position that I would the committee has the ability to ask Miguel Estrada is qualified, and he is have voted against. I think he is followup questions. I know when I was not just qualified, he is one of the most wrong, but he really did not take a po- confirmed by the committee they qualified persons ever nominated for

VerDate Dec 13 2002 00:43 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.131 S26PT2 S2792 CONGRESSIONAL RECORD — SENATE February 26, 2003 the Federal court of appeals. If he, by pointed 50 judges when I was Governor. whether he has or has not answered his very candidacy, represents the I look for good character. I look for questions. Obviously, I believe he has American dream that anything is pos- good intelligence. I look for good tem- not. The President of the United States sible, coming here from Honduras at perament. I look for good under- again today asked the Senate to do age 17 and making his way through standing of the law and of the duties of something that no President of either such a distinguished series of appoint- judges. I will look to see if this nomi- party should ask for. He asked the Sen- ments, if he has answered the questions nee has the aspect of courtesy to those ate to vote without having straight- in what I would argue is a superior who come before the court. I will re- forward answers for a nominee for a way, the way most nominees would be serve the right to vote against some lifetime position as a Federal judge on capable of answering the questions, and extremists, but I will assume that it is one of the most significant courts of I have read just a few of them—I can unnecessary and unethical for the this country. come back and take another 2 or 3 nominee to try to say to me how he or That is not something that would hours and read more because there are she would decide a case that might help the Federal judiciary, but instead hours of questions and answers—and if come before him or her. When it comes would set a dangerous precedent that a majority of Members of the Senate time to vote, when we finish that would lessen the independence of the have signed a letter saying they would whole examination, I will vote to let Federal judiciary. When a nominee vote to confirm him, then why can we the majority decide. does not answer basic questions, the not vote on Miguel Estrada? In plain English, I will not vote to Senate clearly has a constitutional re- The only reason can be that our deny a vote to a Democratic Presi- sponsibility to ask for the answers. Democratic friends want to change the dent’s judicial nominee just because Mr. Estrada will not answer basic way judges are selected. They want to the nominee may have views more lib- questions about his judicial philos- say it takes 60 votes instead of 51, and eral than mine. That is the way judges ophy, yet he has asked the Senate to they want to say the criteria for win- have always been selected. That is the confirm him to a lifetime job to the ning those votes is to answer the ques- way they should be selected. second highest court in the land where tions the way they want. I conclude in equally plain English, that judicial philosophy will deter- That will give us a Federal judiciary and with respect, I hope my friends on mine, in many instances, which way filled with partisans, or an empty Fed- the other side of the aisle would not that court will rule. That court affects eral judiciary because we will be debat- deny a vote to Miguel Estrada just be- every single American in countless ing night after night because we can- cause they suspect his views on some ways through its decisions on every- not agree on whom to nominate and issues may be more conservative than thing from clean air and water to the confirm. Such a process, if carried on theirs. rights of working men and women, in subsequent Congresses, will diminish These are the most serious times for from voting rights to all other civil the executive. It will diminish the judi- our country. Our values are being rights law that protect minorities. Becoming a Federal judge for a life- ciary. It will reduce the likelihood that closely examined in every part of the time is a privilege, not a right. No facts will be considered and that bind- world. Our men and women are about nominee should be rewarded for ing precedent will apply. In other to be asked, it appears, to fight a war stonewalling the Senate and the Amer- words, it will reduce the chance that in another part of the world. How we ican people. The Constitution directs justice will be done. It will reduce re- administer our system of justice is one Senators to use their judgment in vot- spect for the courts because it will be of the most important values they are ing on judicial nominees, not to assumed that if partisan views on the defending. We need to constrain our rubberstamp them. case are what it takes to get confirmed partisan instincts to get them under The Democratic-controlled Senate by the Senate, then partisan views are control. We need to avoid a result that confirmed a record 100 of President what it takes to win a case before the changes the way we select judges. In Bush’s judicial nominees, acting faster court. my view, we permanently damage our and more fairly than the Republicans It reminds me of the story we tell at process for selecting Federal judges. did with President Clinton’s nominees. home about the old Tennessee judge. The PRESIDING OFFICER. Before We began the process of the first hear- He was in a rural county up in the the Senator from Vermont is recog- ing within 10 minutes of the time I be- mountains and the lawyers showed up nized, the Chair congratulates the Sen- came chairman of the Senate Judiciary for a case one morning. He said: Gen- ator from Tennessee for his initial Committee. tlemen, we can save a lot of time. I re- speech in this body. But President Bush has also proposed ceived a telephone call last night. I The Senator from Vermont. several controversial nominees, such as pretty well know the facts. All you Mr. LEAHY. Mr. President, I was Miguel Estrada, who divide the Amer- need to do is give me a little memo- about to congratulate the junior Sen- ican people and the Senate. The Presi- randum on the law. ator from Tennessee on the same thing. dent can end this impasse. I hope he We do not want a judiciary where I am sorry that my good friend from will act to give Senators the answers those who come before it believe the Tennessee—whom I admire greatly; we they need to make informed judgments judges got their political instructions worked together when he was in the about this nomination. The President when they were confirmed and that President’s Cabinet; we worked on can also help by choosing mainstream there is really no need to argue the many different things—I am sorry it judicial nominees who can unite in- case. happens to be a speech where he and I stead of divide the American people. So Miguel Estrada is superbly quali- are on different sides. It was done with The White House knows very well how fied. Miguel Estrada has answered his usual care and cogency. He spoke to easily and quickly they can bring this question after question, and he has his experience, both as a former Gov- matter forward for a vote. They would done it very well. A majority of the ernor with a distinguished record, a rather make a political statement than Senate has signed a letter saying they former Cabinet member with a distin- to have a vote on a nomination. are ready to vote today to confirm guished record, one who served in busi- Especially at a time when we have so Miguel Estrada, and never in our his- ness with a distinguished record. I ap- many other issues before us—it has tory have we denied such a vote by fili- preciate having him here. been said a record number of Ameri- buster to a circuit court judge. It is Sometimes debate can get rancorous cans are out of work—when a record time to vote. and personal. To hear someone who number of jobs are being lost in this Before I finish my remarks, I make takes a position, albeit different from country, when more jobs are being lost this pledge. I may be here long enough, mine, who does it with care, reflecting under the President than any Presi- and I hope it is a while, before I have his past experience—I compliment the dent, certainly in my lifetime, we are an opportunity to cast a vote for a Senator from Tennessee. going to spend week after week in the nominee for a Federal judgeship that is The PRESIDING OFFICER (Mr. Senate regarding an extremely highly sent over by a Democratic President, COLEMAN). The Senator from Vermont. paid lifetime job for one person. but I can pledge now how I will cast my Mr. LEAHY. Mr. President, we have It would seem a little bit more fair to vote. It will be the same way I ap- heard a lot about Mr. Estrada and those who do not have lifetime jobs, to

VerDate Dec 13 2002 00:43 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.134 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2793 those who are not paid this amount, to tions to be considered through a review ingness to lead our great country. But the millions of Americans who have process before they could be prescribed the Senate stays here long after any lost jobs during the last 2 years, to to State-funded programs. individual President. We either fulfill talk about ways of putting them back The Preserving Prescription Drug our obligations of advice and consent to work. I hope the President will pay Discounts Act that my friend, Senator or we become a rubberstamp. Prior to attention to that. FEINGOLD, will introduce tomorrow, my becoming chairman, for 6 months I said more people have lost jobs dur- goes one step further than the Vermont the Republican majority of that time ing his Presidency than during the House’s recommendation. did not hold a single hearing on any of Presidency of certainly every Presi- Under this bill, companies that dis- President Bush’s judicial nominees. In criminate against Canadian phar- dent I have served with, and I believe 17 months I held hearings on 103, we macies that pass along discounts to any President in my lifetime. confirmed 100, and voted down 2. That American consumers would not be al- We should be talking about pre- is on top of hundreds upon hundreds of lowed to deduct expenses related to reserving prescription drugs. Senator other nominees for everything from FEINGOLD will introduce the Preserving search and development from their U.S. Marshals to the Director of the Prescription Drug Discount Act tomor- taxes. INS to the head of the Drug Enforce- row. I am pleased to be an original co- Glaxco’s policy would punish Amer- ment Agency to the U.S. attorneys. It sponsor of this important legislation. ican consumers. There is no other way was pretty productive. It will address an issue of great con- to describe it. It is not a policy that cern to me and to so many of the mod- American taxpayers should support When I listen to some of the state- erates. American drug companies with Government benefits such as tax ments being made by my friends on the threaten to stop doing business with credits when they openly act to punish other side, you would think we did Canadian pharmacies. How does this af- American consumers. We American nothing. Maybe they are thinking of fect us? Every one of us who is in a consumers are also American tax- the months upon months upon months State that comes along the Canadian payers and should not have to give when they would not move any judges border is affected. This legislation is a them even further benefits. for President Clinton and do not want I hope the quick passage of this response to the announcement by phar- to look at the fact that we were mov- measure will prompt Glaxco to recon- maceutical giant GlaxoSmithKline to ing them almost every week. We had sider its policy. It is a wrong policy. It stop supplying Canadian pharmacies to, during 17 months. During those 17 is a mean policy. It is an irresponsible that provide American consumers the policy. I hope other companies will months we had recesses, adjournments, same prices the Canadians receive. think twice before copying such a anthrax attacks, the Senate being It is a sad commentary that the rich- closed down after September 11. We est, most powerful nation on Earth has mean and irresponsible policy. We have a responsibility to take the kept turning out these judges. so many of our citizens who are forced steps necessary to ensure that our citi- to choose between buying necessities Many were controversial. Most were zens have access to health care, includ- such as food and heat and the prescrip- conservative. We kept turning them ing prescription drugs they need and tion drugs they need to live healthy, out. Maybe to obscure the fact that we deserve. were moving President Bush’s judges productive lives. Many Vermonters in I have worked over the years to ease these difficult circumstances cross the much faster than the Republicans access to generic drugs, to ensure pri- moved President Clinton’s, when we ac- border into Canada to purchase pre- vacy for individuals’ medical records, scription drugs at dramatically lower tually dared vote against one, the at- and to continue to work to ensure that tacks that came. We were misquoted prices, sometimes saving up to 80 per- our seniors and individuals with dis- cent. There is a need for lower cost pre- for our reasons. We had a judge who abilities would soon have a voluntary was defeated basically on questions of scription drugs. It is unconscionable prescription drug benefit as part of competence and willingness to follow that at a time when pharmaceutical in- Medicare. dustry profits are soaring, a company The health care challenges facing our the law. The Democrats who voted such as Glaxo targets the most vulner- Nation are complex. The solutions are against him had all kinds of motives able consumers in order to protect not easy. It may take some time to ascribed to them. We were told we what is for them a very large bottom find the necessary solutions to these called him a racist, even though I line. challenges. In the meantime, we must heard Democratic Senator after Demo- When we have 45 million Americans, embrace the issues we can promptly cratic Senator say they did not con- most of them working Americans, who address. That is what the Preserving sider him that. We had the religion of do not have medical insurance in this Description Drug Discounts Act will the majority of Members, Democratic country, we have millions out of jobs do. I hope other Senators will join in Members in the Senate, attacked—in- and who have lost their jobs in the last supporting Senator FEINGOLD. cluding high officials of the Republican 2 years, we ought to at least stand up Mr. President, as I said, I think it is Party attacked the religious back- and tell this pharmaceutical giant: Do unfortunate. This matter could easily grounds of at least 8 members of the 10 not cut off this lifeline. be resolved. The White House is unin- members, Democrats in the Senate Ju- Vermont is so often at the forefront terested in doing that. diciary Committee. But nobody, no- of developing innovative strategy to The President’s Counsel almost deri- body wanted to discuss the fact that combat high health care costs, includ- sively dismissed a suggestion made by this particular judge was voted down ing announcing a partnership with one of the respected senior Republicans because he was not qualified to be a Michigan and Wisconsin to buy pre- in this body for resolving this issue. It circuit court of appeals judge. scription drugs in bulk. This will save makes me think they do not want to These are the kinds of things. It is al- the residents of these three States mil- bring this to a vote. They would rather most like no good deed will go lions of dollars, and it is a step in the talk about bringing this to a vote. unpunished. The Democrats moved right direction toward making pre- That does very little for either the through judges much faster for Presi- scription drugs more affordable for our independence of the Federal judiciary, dent Bush than Republicans did for citizens. and certainly the question of the inde- Unfortunately, for the same con- President Clinton, and we are the ones pendence of the Senate. being called obstructionists. sumers, Glaxo’s new proposal rep- At times I get the impression the resents a giant step backward. Both White House considers the Senate some Mr. Estrada’s short legal career has chambers of the Vermont State Legis- kind of a constitutional nuisance to be been successful. By all accounts he is a lature responded swiftly and passed a ignored. It is almost as though they good appellate lawyer and legal advo- resolution regarding Glaxo’s troubling issue marching orders, and the Senate cate who has had a series of prestigious plan, urging the company to reverse its should fall in line, from how we should positions and is professionally and fi- policies. The Vermont lawmakers even organize on through. nancially successful. As the grandson went so far as to suggest it may con- Presidents come and go. I respect all of immigrants, as a son, a father and sider requiring all of Glaxo’s prescrip- the Presidents and admire their will- grandfather, I know that no matter the

VerDate Dec 13 2002 00:43 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.137 S26PT2 S2794 CONGRESSIONAL RECORD — SENATE February 26, 2003 country of origin or economic back- Solicitor General for the first Presi- When similar requests were made of ground, a family takes pride in the suc- dent Bush in 1992. It was in that gov- material written by William cess of its children. Mr. Estrada’s fam- ernment post which Mr. Estrada con- Rehnquist, it was forthcoming. When ily has much to be proud of in his ac- tinued during the first term of the similar requests were made for mate- complishments, regardless of the out- Clinton administration in which he had rial written by Robert Bork, it was come of this nomination. 14 opportunities to argue before the Su- forthcoming. When similar material Mr. Estrada, who is now 41 years old, preme Court. Of course, one of the prin- was requested written by Benjamin has a successful legal career at a cipal functions of the Solicitor Gen- Civiletti, who became Attorney Gen- prominent corporate law firm, which eral’s Office is to argue for the Govern- eral, it was forthcoming. When similar was the firm of President Reagan’s ment in behalf of the Supreme Court, material was requested for the nomina- first Attorney General William French and in fact argues more than anybody tion of William Bradford Reynolds, it Smith and that of President Bush’s else. So it is no surprise when attor- was forthcoming. When similar mate- current Solicitor General Ted Olson. I neys do so. rial was requested for the nomination am told that Mr. Olson, along with But there comes the rub. Mr. of Steven Trott, it was forthcoming. Kenneth Starr have been among Mr. Estrada’s supporters make much of his But then when it is requested of Mr. Estrada’s conservative mentors. At his four and a half years in the Solicitor Estrada—and this is the only time I relatively young age, Mr. Estrada has General’s Office and say this qualifies can remember such a request being become a partner in the law firm of him to an appointment to the DC Cir- turned down—it is turned down. Gibson, Dunn & Crutcher having pre- cuit. The work that he did, according Again, you have to ask why. What is viously worked with the Wall Street to the supporters in the Solicitor Gen- in there that they don’t want us to see? law firm of Wachtell, Lipton, Rosen & eral’s Office, ipso facto qualifies him Take the public comments of a Katz. While in private practice his cli- for appointment to the District of Co- former Deputy Solicitor General, Mr. ents included major investment backs lumbia Circuit. But when we ask, Can Estrada’s direct supervisor at the Of- and health care providers. Mr. we see the work he did? Oh, no, no. fice of Solicitor General, as well as the Estrada’s financial statement, which Take our word for it. lack of a written record of Mr. Senator HATCH inserted into the CON- Interestingly enough, when I asked Estrada’s views and judicial philosophy GRESSIONAL RECORD, says that he Mr. Estrada during the first meeting and Mr. Estrada’s failure during hear- earned more than $500,000 a year two we had whether he had any objection ings to satisfy Senators by responding years ago and makes him look like a to turning over the material and the to their questions, then there is ample millionaire. At his hearing, Mr. work he did, he said no. He would be bases on which to request products of Estrada testified: ‘‘I have never known glad to. He is proud of it. It reflected Government workpapers during the what it is to be poor, and I am very his views. He would be glad to turn it time in which Mr. Estrada was in the thankful to my parents for that. And I over. When he was asked during the Solicitor General’s Office—papers put have never known what it is to be in- hearings whether he would be willing together and being paid for by the tax- credibly rich either, or even very rich, to turn it over, he personally would be payers in a job which the administra- or rich.’’ I will let his financial state- willing to do so. He was under oath and tion now says shows why he is entitled ment speak for itself on that point. he said certainly. But the administra- to be in this lifetime position. There is Mr. Estrada appears to be a highly tion says no. ample precedent for such papers being successful and well-compensated law- The Administration is seeking to shared with the Senate in the past. yer in a first-rate law firm. As I say, have it both ways: Credit Mr. Estrada I cannot think of a time when the pa- his family and friends surely take pride with the experience while forbidding pers were requested when the adminis- in this success, and rightly so. the Senate from reviewing for itself tration turned them down. In the almost six years he has been what he did in that government job. Professor Bender, Mr. Estrada’s su- with Gibson, Dunn & Crutcher, with its Given the public comments of a former pervisor at the Office of the Solicitor thriving appellate court practice and Deputy Solicitor General and Mr. General, indicated that when he was the successful Supreme Court practice Estrada’s direct supervisor at the Of- supervising Mr. Estrada he did not developed by his senior partner Ted fice of Solicitor General, as well as the view Mr. Estrada as reading the law Olson, who was confirmed to be Solic- lack of a written record of Mr. fairly. He viewed Mr. Estrada as one itor General in June 2001, Mr. Estrada Estrada’s views and judicial philosophy whose personal views and desires col- has apparently had only one argument and Mr. Estrada’s failure at his hearing ored his readings and presentations of before the Supreme Court, however. to satisfy Senators by responding to the law, and as someone who might That was in connection with a habeas their questions, there is ample basis on well be an ideologue to be appointed to petition on which he worked pro bono which to request the production of gov- the bench. when he first came to the firm. This is ernment work papers from the time I would think if Senators are going also one of the only pro bono cases he during which Mr. Estrada was in the to be fair about this nomination, has taken in his entire legal career. Solicitor General’s Office. There is also whether they are Republicans or Demo- I would also note his role developing ample precedent for such papers being crats, they would want to know the an- legal arguments and writing briefs on shared with the Senate in the past. swer to that before they put somebody behalf of Governor Bush following the It makes you wonder why they won’t in a lifetime position. 2000 election that resulted in a 5 to 4 show us Mr. Estrada’s paperwork. The Mr. SANTORUM. Mr. President, will majority of the United States Supreme same paperwork that was made avail- the Senator yield for a question? Court’s intervention to halt the count- able during the Carter administration. Mr. LEAHY. I would prefer not to ing of ballots in Florida and resulting It was made available during the until I finish these comments. in the selection of President George W. Reagan administration. It has been The PRESIDING OFFICER. The Sen- Bush. This information failed to make made available actually every time the ator from Vermont has the floor. it into Mr. Estrada’s Judiciary Com- Senate Judiciary Committee has asked Mr. LEAHY. Thank you. mittee questionnaire and list of top 10 for it. But the reason we say this, if this legal matters. We know about his in- The Democratic leader pointed out work is what qualifies him, then we volvement in that case because the the way to resolve the stalemate in his ought to know what he did in this Puerto Rican Legal Defense and Edu- February 11, 2003, letter. It is curious. work. cation asked him about it and included We asked for materials of cases long Now, Professor Bender, Mr. Estrada’s reference to it in their extensive report since decided. We are not asking for supervisor, is reported to have stated on this nomination. material on a pending case. Certainly, that Mr. Estrada was so ‘‘ideologically Much has been said of Mr. Estrada’s if there is material on a pending case, driven that he couldn’t be trusted to time working in the Office of the Solic- I would be willing to listen to an argu- state the law in a fair, neutral way.’’ itor General at the Department of Jus- ment to hold that back. But how can He stated that he ‘‘could not rely on tice. I understand he was hired for that we argue to hold back on material on a [Mr. Estrada’s] written work to be a role by Kenneth Starr when he was the case long decided? neutral statement of the law.’’ He also

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00026 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.141 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2795 indicated that he viewed Mr. Estrada One of the significant questions make their own independent judgments as ‘‘smart and charming, but he is a raised by this nomination is whether about Mr. Estrada’s writings and his right-wing ideologue’’ and one who Mr. Estrada will be a fair judge with- ability to apply the law without regard ‘‘lacks judgment.’’ out a political agenda. To ascertain to strongly held personal beliefs. Now, this is somebody who has actu- that, let’s review his work when he was Objectivity and openmindedness are ally seen his work. Unlike those of us serving in a position of trust for the crucial to appellate deliberations and who are not allowed to see it, he has United States, paid for by the Amer- decisionmaking. This is an area where seen it. ican taxpayers. we could answer that question. We can Veteran Supreme Court lawyer I believe it is fair to explore whether answer the question. In the Office of Carter G. Phillips has also noted that Mr. Estrada stated the law in a fair and the Solicitor General there is a re- Mr. Estrada, while ‘‘extremely self- neutral way while asked to do so in the quirement to be objective, not ideolog- confident’’ is a ‘‘more strident person- Solicitor General’s Office. Remember, ical, a requirement to be straight- ality’’ than the other current nominee the Solicitor General is not just an ad- forward and not political. But we are for this court, John Roberts. vocate before the U.S. Supreme Court. not allowed to see whether he fulfilled In fact, when Professor Bender ven- The Solicitor General is that unique that requirement. Don’t you think we tured these honest opinions, he suf- person, in arguing before the U.S. Su- should at least ask if it was there? fered partisan attacks by Republicans. preme Court, who is expected—by the If he had been a district judge before, Similar to what happened to those of Court and by the American people—to and had written opinions, which would us on the Democratic side on the Judi- state the law objectively. show whether he was objective and ciary Committee, who had our religion I have heard the Solicitor General be- evenhanded, wouldn’t we say, let’s read attacked by Republican officeholders fore the U.S. Supreme Court—in years them? I cannot imagine any Repub- because we dared to vote against one of past, and even from my days in law lican or Democrat saying we would not President Bush’s nominees, Professor school—saying things to the effect: read them before we made up our mind. Well, he was not a district judge. But Bender was attacked because he dared Here is the law that would uphold the he was in a position where he was re- to question one of President Bush’s position of the Government, but the quired to be nonideological, where he nominees. Court should be aware that there is an- was required to be honest, where he He was maligned for serving as the other body of law on the other side. was required to be straightforward, general counsel to a commission ap- They are supposed to state it fairly and where he was required to be non- pointed by President Nixon. He was impartially so the Court can rely on political, and we are not allowed to see maligned for legal positions taken by them. that record. the Clinton administration. Repub- Having said that, we have somebody Let’s see the record. Let us ask ques- licans have chosen character assassina- in the Solicitor General’s Office pre- tions about it, especially in this case, tion and demonization of Professor paring this material so that the Su- where one of the people who has looked Bender. Their approach is to deny ac- preme Court can be given an objective, at the record—one of his supervisors— cess to Government records and to seek fair, and evenhanded view of the law. questions whether he was objective. to destroy anyone who would raise a Isn’t it fair game to ask whether that Isn’t that something we should deter- concern about Mr. Estrada’s ideology person fulfilled their duty in the Solic- mine? In a job where he was required affecting his legal work. itor General’s Office? Isn’t it fair to by law, by practice, and by custom to To his credit, Professor Bender was ask, when they prepared such material, be objective and nonideological, and in- not intimidated by these personal at- whether they did it in a fair, even- tellectually honest, if you have some- tacks. He wrote to Chairman Hatch re- handed fashion? Or did they do it in an body who says he was not, so shouldn’t affirming his views just days ago. He ideological manner? Did they do it to we know that? Because if that is the also did this because he found that he carry out an agenda? case—when he is there just for a term— was being misquoted time and time I think it is a particularly significant how much worse will it be if it is a life- again on the floor of the Senate, and he question. We are faced with a nominee time position? wanted us to know exactly what his for a lifetime appointment to a Federal Let’s have those papers. Let’s ask the views are. court, and to a Federal court as impor- questions. Then let Senators make up Contrast this to what the Senate tant as the D.C. Circuit. Usually when their minds. I am never going to vote Democrats are trying to do. We would somebody is being nominated to such for a judge if I cannot have the an- like to get to the merits of the matter. an important court, they have been a swers. I remember when President The administration has responded by judge, they have been a district court Clinton had nominees held up here for stonewalling our request. They have judge, they have had a position where 2, 3, 4 years. My friends on the Repub- attacked us for our attempts to reach a you have been able to see how they in- lican side asked question after ques- fair resolution of this matter. terpret the law and how they use it, tion. Some were legitimate, some were I would like to have the papers. I and whether they did so fairly. not. I remember one being asked how would like to have a hearing where we That is not the case here. Here we she voted on a secret ballot in a State could ask questions from the papers, have one place—one place—where by election. I think we can all agree that where we actually know what is in law, custom, and practice he is re- is a question nobody should be asked— these things that they say substantiate quired to state the law in an even- how they vote in an election in a State. the reason for Mr. Estrada’s nomina- handed fashion, not ideologically driv- But we waited year after year, and tion. en but impartially driven. And the one they said they must have these an- The administration wants to have it place where we can ask whether he did swers. Shouldn’t we? both ways. They say, if you saw these that or not, the administration says: I heard that Mr. Estrada was editor brilliant writings, then you would want Trust us. He did, but we will not show of the Harvard Law Review. Some have him to be a judge. So we say: Fine, you. gone so far as to make it seem as if he let’s see the writings. They say: Oh, no, I remember that wonderful saying was editor in chief or president of the you can’t see them. Take our word. that President Reagan made up, to the review. That would be pretty impres- You can’t really have it both ways. If great surprise of the Russians, because sive. Actually, he was one of 70 student this is what shows he is qualified to be he said it was a Russian saying it; but, editors working at the Harvard Law a judge, then let us see what is in it still, it is a wonderful saying, where he Review in 1986. That should be impres- and then let us make up our own said: Trust but verify. Well, I am tied sive enough. I think most law students minds. Then Senators can vote for or at the hip with former President would say that is pretty darn impres- against, but at least they will know Reagan on this one. I will trust, but I sive. But you don’t have to embellish what it is based on. would like to verify. I would like to it, as some of his supporters have, and One major person in his department verify. make it far more than what it was. I says he is not qualified. We are not re- I think Senators should have the op- am impressed that he was 1 of 70. You lying on that. We would like to see the portunity to review for themselves the don’t have to embellish it to say he papers and make up our own mind. documents Mr. Estrada wrote and was the No. 1 editor in chief.

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00027 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.144 S26PT2 S2796 CONGRESSIONAL RECORD — SENATE February 26, 2003 We have a lot of people who fall into conservative lawyer who helped found One judicial nominee at his hearing that category. Claire Sylvia, who the country’s first private university was honest and said he hadn’t really worked for a time at our Senate legal and was also a bank vice president. heard of the Federalist Society. But he counsel’s office, was one of those edi- I recall that the Honduran Ambas- was told if he wanted to be a judge tors. I never remember her claiming to sador took time out from his busy with this administration, he better go be the editor in chief. schedule last fall to attend a Judiciary join it. He did and he is a judge. It Mr. REID. Will the Senator yield for Committee hearing, which made me worked for him. In this case, it has a question? think about the rumors that had cir- served him well, as it has a number of Mr. LEAHY. Yes. culated that Mr. Estrada’s family in- other executive branch nominees. Mr. REID. Did I hear the Senator cluded relatives who had been on the This organization is sometimes right that all these statements I have country’s diplomatic corps. I under- mischaracterized as a mere debating heard on the Senate floor that he was stand his mother was a successful ac- society, and, as I said, one nominee was the editor—in fact, he was one of 70 countant in her own right. She should very honest while under oath and said: editors? be proud of that. She is the daughter of Yes, he was told to join it. Mr. LEAHY. Yes, 70. a teacher-diplomat. Mr. Estrada com- They say about themselves: Mr. REID. That is a distinction, but pleted 12 years of primary and sec- The Federalist Society for Law and Public it is not the editor in chief. Policy Studies is a group of conservatives Mr. LEAHY. That is what I am say- ondary education at a private academy and at a university where he studied and libertarians interested in the current ing. We have had a lot of people who state of the legal order. worked for the Senate and for our com- English. These are all commendable They state one of their goals is the mittees and worked for various Sen- things—but a lot different than the ‘‘reordering of priorities within the ator’s offices who have been one of image we are given. legal system’’ and its objective ‘‘re- those 70. It is a proud achievement. I Again I ask, why not just tell the quires restoring the recognition of the keep worrying when we are seeing story as it is? Why not tell the story importance of lawyers, judges, and law somebody gilding the lily on this per- straightforward and show us the papers professors.’’ son, when we see his background and straightforward? Why do you have to I am not sure how Mr. Estrada plans his history change constantly to make constantly embellish things? That is to reorder priorities and values if he is it better and better. Well, he has things why when I am told by the administra- confirmed as a judge, but we know he to be proud of, but you wonder why his tion: Just trust us, we have looked at has strongly held views he will not supporters have to constantly change the papers and he was objective and share with us. Again, we go back to the it and embellish it. honest and nonideological, take our Jeff Toobin, who has become a jour- word for it—I haven’t been able to take one area where he is required to be ob- nalist, author, and legal commentator, their word for much in this case so far. jective, not ideological, and non- was a student editor there that year. Why should I take it for something political, and that it in the Office of Actually, the supervising editor, who that they don’t want me to see? the Solicitor General. But those had a far more significant position, was We do know some things about him. writings we are not allowed to see. none other than Elena Kagan. I men- According to news accounts, after one Those writings would show if he is able tion this because my friends on the of his mentors, Kenneth Starr, left the to be nonideological, nonpolitical, and other side said that Mr. Estrada’s being Office of the Solicitor General, he said straightforward because he is required one of the 70 editors is reason to be on Estrada was ‘‘left working for a Justice to in the Solicitor General’s Office, but the court. Elena Kagan was a super- Department whose views he didn’t al- they will not show us what he wrote. vising editor. Now, that is really sig- ways agree with.’’ What worries me is that a man who nificant. Professor Kagan is a Harvard While at the Solicitor General’s Of- has had so many embellishments made law professor. Professor Kagan served fice, Estrada did argue 14 cases before on his record by his supporters, when as Mr. Estrada’s supervising editor, got the Supreme Court, primarily criminal his supporters question everything the highest qualification by the ABA; matters, but sometimes in the area of from the religion to the biases of those and based on those qualifications, banking law. It is worth noting that who dare question him, it makes one President Clinton nominated her to the Seth Waxman was not listed as Solic- wonder why do they hide this. DC Circuit. itor General on the briefs of any of In his hearing testimony, Mr. I mention this because so much has those cases and, apparently, did not di- Estrada did admit ‘‘having made some been made by those on the other side, rectly supervise his work. pretty ruthless assessments and the who say even if you are one of the 70 When he joined Gibson, Dunn & legal views of some [government] agen- editors, and got a high qualification Crutcher and worked with Ted Olsen, cies which I’m glad to say were some- from the ABA, that should be enough. Mr. Estrada gave interviews in which times vindicated in the courts later. Elena Kagan was a law professor and he defended Ken Starr’s investigation ... was a supervising editor. She was nom- of President Clinton. He has a right to He did not tell us what those assess- inated by President Clinton, but guess do that. Some of us would question the ments were. He did not say which cases what happened. The Republicans never $75 million to $100 million that was vindicated his views. We are left to allowed her to even have a hearing, to wasted on the investigations, but Mr. wonder whether given the awesome say nothing of a vote. She was humili- Estrada felt they were well worthwhile. power of a lifetime appointment as a ated, not even allowed to have a hear- He helped on then-Governor George Federal judge that he would act on his ing, to say nothing about a vote. Bush’s litigation over the election re- own ‘‘ruthless assessments’’ or on the I worry when I hear Mr. Estrada’s sults in Florida. He went on to the Jus- facts, the litigants, and the law before supporters talk about his family his- tice Department transition team. him. tory. I was impressed when talking to I outline this personal history be- His friends and supporters acknowl- him about his family. But I remember cause some partisans have taken lib- edge that Mr. Estrada has strong con- the first stories, and you have heard erties with Mr. Estrada’s personal and servative views. In fact, they acknowl- them repeated here. You almost professional background in order to try edge far more than Mr. Estrada him- thought he was a barefoot immigrant to make his case more compelling. self. His classmate Arturo Corrales, a coming to America, unable to speak There is no doubt that Mr. Estrada is a former Presidential candidate in Hon- English, and so on and so forth. Actu- rising star in conservative legal cir- duras, said Mr. Estrada’s socially con- ally, he grew up in a relatively wealthy cles. He is a Federalist Society member servative views were already evidenced and privileged household. His parents and has been mentored by Kenneth when he was a teenager, including his sent him to private school in Honduras, Starr and Ted Olson. opposition to abortion. Other col- where the annual cost was almost the Certainly, he has a right to be in- leagues acknowledge his strong views same as the annual per capita income volved with the Federalist Society. as well. His former law school class- for most Hondurans during that period. There is nothing wrong with that. In mate, Ron Klain, supports him even According to news accounts, his late fact, he should probably use the mem- though Mr. Estrada is ‘‘politically con- father was a prominent and politically bership. servative’’ and ‘‘has passionate views

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00028 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.146 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2797 about legal policy.’’ His former col- not sufficiently qualified for a lifetime flected in our Federal courts. I only league Robert Litt supports Mr. seat on the Nation’s second highest wish some of these same conservative Estrada’s confirmation, even though he court, and then the PRLDEF said organizations suddenly available today disagrees with his ‘‘legal philosophy.’’ ‘‘that his reportedly extreme views were interested in diversity when They do so, however, with the luxury should be disqualifying; that he has not President Clinton’s minority women of knowing what Mr. Estrada’s views of had a demonstrated interest in or in- nominees were being delayed and de- the Constitution are. That is a luxury volvement with the organized Hispanic railed by Senate Republicans between that 100 Members of this body do not community or Hispanic activities of 1996 and 2001. They were nowhere to be have. Mr. Estrada refused to share any; and that he lacks the maturity found or worse yet, arguing for delay, those views with those entrusted by and judicial temperament necessary to obstruction and defeat of those quali- the Constitution with determining be a circuit judge.’’ fied Hispanic, African-American and fe- whether he should be accorded the Similarly, the Mexican American male nominees. power of a lifetime Federal judicial ap- Legal Defense and Education Fund, Race or ethnicity and gender are, of pointment. The Senate wants to know MALDEF, and California La Raza Law- course, no substitutes for the wisdom, before making that decision whether yers, CLRL, have expressed ‘‘serious experience, fairness, and impartiality he can be trusted to apply the law fair- concerns about whether Mr. Estrada that qualify someone to be a federal ly and impartially without regard to would fairly review issues that came judge entrusted with a lifetime ap- his deeply held ideas and views, what- before him. MALDEF and CLRL said: pointment. White men should get no ever they may be. It is hard to imagine [I]t is unclear whether he would be fair to presumption of competence or entitle- that he would freely cast his views Latino plaintiffs as well as others who would ment. Hispanic and African American aside and be objective in a court when appear before him with claims under the men and women should not be pre- he will not even tell us what they are. first amendment, the fourth amendment, the sumed to be incompetent. All nominees Members of the Congressional His- fifth amendment, and due process clauses in should be treated fairly. panic Caucus who met with him noted the U.S. Constitution. Further, we found evi- When one gets down to the bottom dence that suggests he may not serve as a that Mr. Estrada ‘‘did not demonstrate fair and impartial jurist on allegations line, the burden of proof of suitability a sense of inherent ‘unfairness’ or ‘jus- brought before him in the areas of racial for lifetime appointment rests on the tice’ in cases that have had a great im- profiling, immigration, and abusive or im- nominee and the Administration. We pact on the Hispanic community.’’ proper police practices where those practices must carefully examine the records of They noted that, in their view, the are adopted under a ‘‘broken window theory’’ all nominees to high offices, but we ‘‘appointment of a Latino to reflect di- of law enforcement. We have concerns about know the benefits of diversity and how versity is rendered meaningless unless whether he would fairly review standing it contributes to achieving and improv- the nominee can demonstrate an un- issues for organizations representing minor- ing justice in America. As Antonia ity interests, affirmative action programs, or derstanding of the historical role claims by low-income consumers. We are Hernandez wrote in the Wall Street courts have played in the lives of mi- also unsure, after a careful review of his Journal: ‘‘The fact that a nominee is norities in extending equal protections record, whether he would fairly protect labor Latino should not be a shield from full and rights.’’ rights of immigrant workers or the rights of inquiry, particularly when a nominee’s Similar concerns have been raised by minority voters under the Voting Rights record is sparse, as in Mr. Estrada’s the Latino Vermonters and many oth- Act. case. It is vital to know more about a ers. For example, the Puerto Rican These are leading Latino organiza- nominee’s philosophies for interpreting Legal Defense and Education Fund— tions that say that about him. and applying the Constitution and the this is a national civil rights organiza- We have heard from numerous cham- laws.’’ Members of the Congressional tion concerned with advancing the civil ber of commerce-related organizations Hispanic Caucus has said much the and human rights of the Latino com- and Republican organizations express- same thing. munity, also submitted a strong state- ing support, the same Republican orga- Our freedoms are the fruit of too ment of opposition, and they reviewed nizations able to send five people to much sacrifice to fail to assure our- all his available writings. Vermont to talk about him. They were selves that the judges we vote to con- They conducted dozens of interviews really silent when other Latinos were firm have a commitment to upholding with individuals who have studied and nominated to the court by President the Constitution, following precedent, worked with Miguel Estrada, and well Clinton. There are Latino judges out and listening to claims without fear or as those who lived in the same commu- there; 80 percent of the Latinos on the favor. When a President is nominating nities with him. They also surveyed courts of appeals now were appointed individuals to tip the balance, stack news reports and public materials con- by President Clinton. There actually the deck, or to pack the courts with cerning Mr. Estrada. would have been several more, but they ideologues, the Senate would be abdi- They also interviewed Mr. Estrada. were blocked by the Republicans. They cating its responsibilities to ignore the They noted that ‘‘a number of his col- were not allowed to have hearings, very criteria that led to selection of leagues have said unequivocally that they were not allowed to have votes, such a nominee. Mr. Estrada has expressed extreme and none of these Republican organiza- So, when some organizations come views that they believe to be outside tions that are suddenly concerned forward and say they are supporting a the mainstream of legal and political about the plight of Latinos came for- nominee because of their ideology, thought.’’ ward when one after another was they cannot at the same time say we They go further to say that he has blocked by the Republicans during the should not ask about that ideology. ‘‘made strong statements that have Clinton administration. When the supporters come forward and been interpreted as hostile to defend- The spokesperson for the newly mint- say his brilliant writings in the Solic- ants’ rights, affirmative action, and ed Coalition for a Fair Judiciary—I itor General’s Office qualify him to be women’s rights.’’ love these terms—explains that organi- a judge, they cannot then in the next They also expressed concern about zation is made up of 70 or more con- breath say, but you cannot see what his temperament. They interviewed servative organizations, arose from a those brilliant writings were, you have people who described him as ‘‘arrogant similar group called Americans for to take our word for it. and elitist’’ and that he ‘‘harangues his Ashcroft and is supportive of President Under our Founders’ design, the po- colleagues’’ and ‘‘doesn’t listen to Bush’s judicial nominees because of litical branches share the power of ap- other people.’’ In their interview, Mr. their ideology. pointment: the President has the power Estrada was not even tempered and We are not allowed to question ide- to nominate or propose judges, but the was ‘‘contentious, confrontational, ag- ology, but the supporters say because Senate has a corresponding power to gressive and even offensive in his of their ideology they should be con- confirm or reject those nominations. verbal exchanges’’ with them. firmed. That is one of the ingenious checks and After a thorough review, the Puerto Diversity is one of the great balances of our federal system. If a Rican Legal Defense and Education strengths of our Nation, and that diver- nominee’s record, or lack of a record, Fund concluded that Mr. Estrada was sity and background should be re- raises doubts, these are matters for

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00029 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.148 S26PT2 S2798 CONGRESSIONAL RECORD — SENATE February 26, 2003 thorough scrutiny by the Senate, ist, or you have a religious bias, or that follow, we urge you to vote against Mr. which is entrusted to review all of the whatever might be the reason of the Estrada’s confirmation. information and materials relevant to day. We have heard so many The HBA recognizes that Mr. Estrada’s nomination was pending for some time prior a nominee’s record relating to fairness, misstatements from the other side to his hearing before the Senate Judiciary impartiality, bias, experience, or other about Mr. Estrada, let’s go to the one Committee on September 26, 2002. Neverthe- matters. thing that can be looked at objectively: less, it was the Hispanic National Bar Asso- Unlike elected officials, these are His writings. ciation’s public endorsement of this can- lifetime jobs, so the Senate Judiciary It can be done. A distinguished mem- didate that prompted our organization to Committee must undertake an inquiry ber of the other party has suggested initiate its own evaluation of Mr. Estrada. To that end, the HBA created a Special to be assured that a nominee should be that it be done. The White House ought Committee on Judicial Nominations to de- confirmed to high office. When there is to listen to him and they should stop velop a process for reviewing and potentially no judicial experience to look to, it is saying opposition to the nomination of endorsing not only Mr. Estrada, but also all all the more critical that the Com- Miguel Estrada is anti-Hispanic. We future candidates for the Judiciary. As part mittee inquire fully into a nominee’s have risen in this Chamber day after of the process, we contacted Mr. Estrada, experience, record, views and under- day to demonstrate why this is false, asked to interview him, and invited him as a standing of our fundamental rights. referring to, among other things, the guest of the HBA to meet the members of Now, Chairman Hatch is saying pre- our organization. Mr. Estrada, for stated numbers of well-known and well-re- good cause, declined our invitations. Not- cisely the same thing I am saying. The spected Latino organizations who also withstanding Mr. Estrada’s non-participa- difference is, he said this speaking to oppose this nomination. tion, the Committee completed its work and the Federalist Society. He said this We have introduced into the record reported its findings to the HBA membership when President Clinton was nomi- letters from organizations such as the on November 14, 2002. Following the Commit- nating the judges, not when President Mexican American Legal Defense tee’s recommendation, the membership Bush was nominating them. Fund, opposed to Mr. Estrada; the voted not to support Mr. Estrada’s nomina- In 1997, he told the Utah Chapter of tion. Southwest Voter Registration and Edu- The HBA recognizes and applauds Mr. the Federalist Society that ‘‘the Sen- cation Project, opposed to Mr. Estrada; Estrada for his outstanding professional and ate can and should do what it can to the Puerto Rican Legal Defense and personal achievements. Indeed, the HBA ascertain the jurisprudential views a Education Fund, opposed to Mr. adopts the American Bar Association’s rat- nominee will bring to the bench in Estrada; a letter from 52 Latino labor ing of ‘‘well-qualified’’ with regard to Mr. order to prevent the confirmation of leaders, opposed to Mr. Estrada; the Estrada’s professional competence and integ- those who are likely to be judicial ac- Puerto Rican Bar Association of Illi- rity. However, employing the ABA’s seven tivists. Determining who will become established criteria for evaluating judicial nois, opposed to Mr. Estrada. Each one temperament, the HBA finds Mr. Estrada to activists is not easy since many of of these explain their thoughtful and be lacking. Our organization could find no President Clinton’s nominees tend to principled opposition to Mr. Estrada’s evidence that Mr. Estrada has demonstrated have limited paper trails . . . . Deter- nomination. the judicial temperament required by a mining which of President Clinton’s Today we received another letter nominee for such an important and sensitive nominees will become activists is com- from another Latino organization ex- judicial position. In addition, the HBA seeks plicated and it will require the Senate pressing its opposition to the Estrada to endorse individuals who have ‘‘dem- to be more diligent and extensive in its onstrated awareness and sensitivity to mi- nomination. The Hispanic Bar Associa- nority, particularly Hispanic concerns.’’ questioning of nominees’ jurispru- tion of Pennsylvania has written that Sadly, we also could find no evidence of this dential views.’’ In the case of Mr. it, too, opposes Mr. Estrada’s confirma- quality in Mr. Estrada. Estrada, however, the nominee has re- tion to the U.S. Court of Appeals for The HBA shares the concern of the Presi- fused to provide us many answers at all the DC Circuit. The Hispanic Bar Asso- dent of the Judiciary Committee that only about the types of jurisprudential ciation of Pennsylvania did not come the best-qualified and most suitable individ- views referenced by Chairman HATCH. to this decision lightly. uals be appointed to the federal bench. Fur- Sauce for the goose, Mr. Chairman, thermore, the HBA appreciates the efforts, As the letter says, they created a as evidenced by Mr. Estrada’s nomination, to sauce for the gander. You were right special committee on judicial nomina- consider and promote members of the rapidly then. I take the same position today. I tions. They developed a process to re- growing Latino population to positions of am right. view candidates for the Federal judici- high visibility and importance. However, we The difference is, President Clinton’s ary. They examined Mr. Estrada’s believe that there are a myriad of other well- nominees turned over those papers. record. They considered a variety of qualified Latinos whose integrity, profes- Most Americans want nominees who factors in their evaluation. They even sional competence, and judicial temperament would be beyond reproach and who will be fair and impartial judges. An asked Mr. Estrada to come meet with independent judiciary is the people’s would therefore be better suited for this po- them. In the end, they conclude they sition. bulwark against a loss of their free- must oppose him. I respect what must The Hispanic Bar Association of Pennsyl- doms and rights. I think the rights at have been a difficult decision, but I vania regrets that it cannot support the stake are simply too important to take think letters from the Hispanic Bar As- nomination of Mr. Estrada to the United a chance on a lifetime appointment to sociation of Pennsylvania and all these States Court of Appeals for the District of this high court, to make a decision we other Latino organizations in opposi- Columbia Circuit. We respectfully request that you oppose the confirmation of his nom- cannot reverse, if Mr. Estrada were to tion to him show that the opposition is turn out to be the activist and ination. not just because he is Hispanic. Respectfully submitted, ideologues that many of those who I ask unanimous consent that the ARLENE RIVERA FINKELSTEIN, have heard him speak candidly. What letter be made a part of the RECORD. President. little record we have calls into ques- There being no objection, the mate- Mr. LEAHY. I see my good friend, the tion whether he would be neutral ref- rial was ordered to be printed in the distinguished chairman, on the floor. I eree or an advocate and activist from RECORD, as follows: hope he has had a chance to go out and the bench. HISPANIC BAR get a bite to eat, as we have been In closing, he had a job in which he ASSOCIATION OF PENNSYLVANIA, doing. He certainly deserves it. was required by law, by custom, by Philadelphia, PA, January 28, 2003. (The remarks of Mr. LEAHY per- practice, to be impartial and nonideo- Re nomination of Miguel A. Estrada. taining to the introduction of S. 459 are logical. He wrote extensively in that Hon. PATRICK J. LEAHY, located in today’s RECORD under taxpayer-funded job where he was re- U.S. Senate Committee on the Judiciary, Dirk- ‘‘Statements on Introduced Bills and sen Senate Office Building, Washington, quired to be nonideological, impartial, Joint Resolutions.’’) straightforward, but he will not show DC. DEAR HONORABLE SIR: I am writing on be- Mr. LEAHY. I thank the Chair. I what he wrote. half of the Hispanic Bar Association of Penn- yield the floor. We are told by the administration, sylvania (HBA) to inform you that we oppose The PRESIDING OFFICER. The Sen- trust us. We have looked at it. He is the appointment of Miguel Angel Estrada to ator from Utah. impartial. We say, then let us see it. the United States Court of Appeals for the Mr. HATCH. I ask unanimous consent Ah, you say, well, then you are a rac- District of Columbia Circuit. For the reasons that the distinguished Senator from

VerDate Dec 13 2002 00:43 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00030 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.150 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2799 Ohio speak next for 15 minutes, the dis- the most highly regarded appellate lawyers In addition, and I think this is very tinguished Senator from Oklahoma in the city. Yet on Thursday, Democrats in- important, every living Solicitor Gen- speak after that for 5 minutes, and voked a procedural rule to block a com- eral, both Democrat and Republican, mittee vote anyway—just for good measure. then I be yielded the floor. It’s long past time to stop these games and signed a joint letter to former Judici- The PRESIDING OFFICER. Without vote. ary Committee chairman, Senator objection, it is so ordered. We all know of Mr. Estrada’s illus- LEAHY, stating that fulfilling this re- The Senator from Ohio. trious background. I will not rehash quest would have a debilitating effect Mr. VOINOVICH. Mr. President, I his stellar credentials. We have already on the ability of the Department of rise today to speak on behalf of the heard many of our colleagues come to Justice to represent the United States nomination of Miguel Estrada to the the floor and tell what I refer to as the before the Supreme Court. DC Circuit Court of Appeals. I had in- ‘‘only in America’’ story about Mr. VOINOVICH. This is a very bad tended to finish my remarks this Estrada’s unprecedented rise from his time to delay the appointment of judi- evening by reading an editorial from home in Honduras to his current posi- cial nominees. Our Federal courts are the Washington Post. I have listened tion as a partner with one of Washing- in crisis. The U.S. courts of appeals are patiently to the distinguished Senator ton’s distinguished law firms. currently 15 percent vacant, even as from Vermont, and I would like very My colleagues on the other side of case filings in those courts reached an much to quote from the Post editorial the aisle have leveled many complaints all-time high in 2002. Chief Justice because it is looked upon as one of the against Mr. Estrada, including that he Rehnquist has warned that this high most objective papers in the United has not had enough judicial experience. vacancy level, coupled with the rising States of America. Some of my col- I note the following: 26 circuit judges caseload, threatens the proper func- leagues think it has a liberal tilt to its had no judicial experience when they tioning of the Federal courts. editorial policies. This is a February were nominated by President Clinton; Currently, there are 14 courts of ap- 18th editorial from the Washington they were all confirmed. Of the 108 in- peals pending nominees, 12 of whom Post: dividuals who have served on the Su- were nominated in 2001 and have been The Senate has recessed without voting on preme Court, 43 had no judicial experi- waiting for over a year for a vote in the the nomination of Miguel Estrada to the ence at all. In fact, in the entire his- Senate. The most egregious example is U.S. Court of Appeals for the D.C. Circuit. tory of the Supreme Court of the the Sixth Circuit, which includes Ohio, Because of a Democratic Filibuster, it spent United States, 8 of the 16 chief justices where 6 of the 16 seats are open and much of the week debating Mr. Estrada, and, in America’s history had no prior judi- classified as judicial emergencies. Of at least for now, enough Democrats are hold- cial experience. Of those justices ap- these six vacancies, two, Jeff Sutton ing together to prevent the full Senate from and Deborah Cook, have been pending acting. The arguments against Mr. Estrada’s pointed in the last 50 years, Justices confirmation range from the unpersuasive to William Rehnquist, Lewis Powell, Jr., since May 2001, nearly 2 years, and the offensive. He lacks judicial experience, Abe Fortas, Arthur Goldberg, and three others have been pending since his critics say—though only three current Byron White had no prior judicial expe- November 2001, over 2 years. The fact members of the court had been judges before rience when appointed to the Supreme is, we do have a crisis in the judiciary their nominations. He is to young—though Court. in the United States of America. he is about the same age as Judge Harry T. On the circuit court to which Mr. Now, let’s look at the record. When Edwards was when he was appointed and sev- Estrada has been nominated, five of the Senator HATCH was chairman during eral years older than Kenneth W. Starr was eight judges had no previous judicial the Clinton administration, he consid- when he was nominated. Mr. Estrada ered more than one circuit nominee at stonewalled the Judiciary Committee by re- experience before taking the bench, in- fusing to answer questions—though his an- cluding two Clinton nominees and one 11 different hearings. But not once dur- swers were similar in nature to those of pre- Carter nominee. ing the 107th Congress did the Demo- vious nominees, including many nominated On the other hand, Miguel Estrada crats hold a hearing on more than one by Democratic presidents. The administra- has a combined level of appellate and circuit court nominee at a time. The tion refused to turn over his Justice Depart- trial experience that far exceeds that result is we fell behind in the confirma- ment memos—though no reasonable Con- of the average court of appeals nomi- tion of circuit nominees. gress ought to be seeking such material, as a nee. Mr. Estrada’s experience even ex- Presidents Clinton, Reagan and the letter from all living former solicitors gen- ceeds that of many Supreme Court former President Bush all received con- eral attests. He is not a real Hispanic and, by the way, he was nominated only because he nominees. He has argued 15 cases be- firmations for their first 11 circuit is Hispanic—two arguments as repugnant as fore the U.S. Supreme Court, both nominees well within 1 year of the they are incoherent. Underlying it all is the criminal and civil. He has tried 10 cases nominations. This is in stark contrast fact that Democrats don’t want to put a con- as a prosecutor, argued 7 cases before with the treatment afforded to Presi- servative on the court. the U.S. court of appeals for the second dent George W. Bush. Only 3 of his first Laurence H. Silberman, a senior judge on district, as assistant U.S. attorney for 11 circuit nominees were confirmed the court to which Mr. Estrada aspires to the southern district of New York. within 1 year of their nomination. And serve, recently observed that under the cur- I emphasize to my colleagues the only 5—fewer than half—were con- rent standards being applied by the Senate, American Bar Association has rated not one of his colleagues could predictably firmed during the entire 107th Con- secure confirmation. He’s right. To be sure, Estrada well qualified, a rating that gress. That’s terrible. Republicans missed few opportunities to play my colleagues on the other side of the My friend Senator HATCH is an ex- politics with President Clinton’s nominees. aisle have called the gold standard. I traordinary man. After so much repeti- But the Estrada filibuster is a step beyond heard before: Your nominees, Mr. tion of the same arguments, I’m even those deplorable games. For Democrats President, are going to have to reach amazed that he can even stand up. demand, as a condition of a vote, answers to the gold standard of the American Bar As Senator HATCH has highlighted in questions that no nominee should be forced Association. Judge Estrada has met the past, during Democrat control of to address—and that nominees have not pre- the gold standard of the American Bar the Senate in 2001–2002, only 17 Bush viously been forced to address. If Mr. Estrada cannot get a vote, there will be no reason for Association. circuit court nominees reached the republicans to allow the next David S. My colleagues have also launched floor for votes. In three of the cases in Tatel—a distinguished liberal member of the criticism at Mr. Estrada for not turn- which they did go to the floor—the court—to get one when a Democrat someday ing over documents—I heard that this nominations of Julia Smith Gibbons, again picks judges. Yet the D.C. Circuit—and evening several times—that he worked Richard B. Clifton, and Lavenski R. all courts, for that matter—would be all the on while he was employed by the Office Smith—cloture motions were filed and poorer were it composed entirely of people of the Solicitor General. What they do the motions easily carried. whose views challenged nobody. not mention is that these documents However, and this is very important, Nor is the problem just Mr. Estrada. John are confidential. These confidential none of those cloture votes was in re- G. Roberts Jr., Mr. Bush’s other nominee to the D.C. Circuit, has been waiting nearly two memos were not requested of the seven sponse to a genuine effort to filibuster years for a Judiciary Committee vote. No- previous nominees to the court of ap- a nominee. Rather, cloture petitions body has raised a substantial argument peals who had worked in the Solicitor were filed as a Senate time-manage- against him. Indeed, Mr. Roberts is among General’s Office. ment device.

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00031 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.153 S26PT2 S2800 CONGRESSIONAL RECORD — SENATE February 26, 2003 If the Estrada nomination is perma- Due to the numerous delays in the Feliciano as the first Hispanic police nently blocked by a filibuster, the po- Estrada vote, the crisis in the Federal commissioner because he was the best litical baseline shifts forever. courts continues and the Senate can’t candidate, but the Hispanic community To understand just how extraor- attend to our pressing legislative busi- was very proud and excited. The His- dinary the current situation is, one ness. Our country has serious problems panic community was so proud that only needs to examine the Senate’s today and they require serious and one of their boys made it. Can you record of judicial confirmations. The thoughtful consideration in the Senate. think of what an impact it had on the first filibuster of a judicial nominee The stalling games that are being young people that a Hispanic made it that resulted in a cloture vote was in played here are really hurting the judi- to be the police commissioner. 1968. Since then, the Senate has con- cial process and to a larger and greater I remember when I appointed Ken firmed approximately 1,600 judicial extent the Nation itself. Blackwell to be the treasurer of the nominations—the vast majority of While we wait for the minority to State of Ohio, the first African Amer- these, nearly 1,500, occurred without make up its mind, we cannot accom- ican to serve as the treasurer of the even a roll call vote, as most are con- plish any meaningful debate on the State of Ohio, a constitutional office, firmed by unanimous consent. country’s pressing problems. These are and how much it meant to African Indeed, of those 1,600 judicial nomi- hard times for Americans and my con- Americans in our State that someone nations confirmed by the Senate since stituents ask me: Do you guys in Wash- could hold a constitutional office. They 1968, only 14 were subject to a cloture ington get it? Do you get it? Do you had an inspiration. I came up during vote. And with the exception of the bi- understand what is going on? the years of Carl Stokes, the first Afri- partisan 1968 filibuster of Abe Fortas’ We are involved in a war on ter- can American mayor of the city of nomination to be Chief Justice of the rorism abroad and at home. The econ- Cleveland, and I remember the impact United States, the Senate has never omy is sputtering. The President of the it had on young people in Cleveland blocked by filibuster a judicial nomi- United States has more on his plate and all over America that an African nee to any court—Never. than perhaps any President in my American could be a mayor of a major The rejection of Abe Fortas to serve memory. Some say he has more on his city. I remember Frank Lousche, who as Chief Justice of the United States plate than FDR, some say Abraham was the mayor and Governor of the marked the first and only time the Lincoln. Our constituents believe we State of Ohio, and Senator, who was a Senate has rejected a President’s judi- are behaving like Nero, fiddling around Slovenian—when I was 12 years old, cial nominee by way of a filibuster. Yet while Rome was burning. They con- how much it meant to me to see Frank Miguel Estrada presents none of the tinue to ask, don’t you get it? Is the Lousche, Slovenian, get to be mayor, concerns that caused a bipartisan coa- Emperor wearing any clothes? and then Governor. By that time he lition of Senators to block Justice All of us in this body have priority wasn’t even a Senator. But it inspired Fortas’ elevation to chief justice. concerns, yet during this stalemate, no me and other people of my nationality Given the Senate’s historical unwill- one’s legislation is moving ahead. Con- to say if he can do it, I can do it. ingness to filibuster nominees—even sideration of urgent matters that I There is more to it here. In this case Supreme Court nominees—it is not sur- would like to be addressed, such as pre- I think my colleagues should under- prising that the Senate has never scription drugs/Medicare reform, med- stand, particularly my colleagues on blocked by filibuster a nominee to any ical lawsuit abuse reform, asbestos liti- the other side of the aisle, this is a lower court. Furthermore, the Senate gation reform, human capital, the en- good man. He has the qualifications. has never blocked—by a partisan fili- ergy bill at a time when the cost of There is not any reason why we should buster—any judicial nominee. As I natural gas is skyrocketing, or the ac- not allow a vote on this particularly wonderful human being who will make noted, the only rejection-by-filibuster celerating deficit. was the case of Justice Fortas, which I know I am not the only Senator a difference if he has a chance to serve was bipartisan. There is no precedent who is concerned about these issues on the bench here in the DC District. In addition to that, it will mean so in the Senate of a filibuster conducted and I know some of my colleagues have much to Hispanics all over the United solely by one Party to deny the Presi- other priority concerns. At present, no States that one of our boys made it. dent his judicial nominee. one is winning anything by this stale- The PRESIDING OFFICER. Under The stakes here are much greater mate and the important concerns of the previous order, the Senator from than the fate of a single judicial nomi- the American people are being held Oklahoma has 5 minutes. nee. At issue is whether the Senate hostage. Mr. INHOFE. Mr. President, I can re- should reinterpret its constitutional This is bigger than a delayed vote on late to the remarks of the Senator advise and consent obligation to re- Miguel Estrada. As U.S. Senators we from Ohio. He and I had the honor of quire 60 rather than 51 votes to confirm need to act like adults. We need to sharing the same position of mayor of a judicial nominee. This is a position come together and create a unanimous a major city. It happens I started— the Senate has never taken in the con- consent agreement on how we will han- maybe you did—the first Hispanic com- text of lower court nominees, and one dle the approval of judges from now on. missioner in the city of Tulsa. We had which Republicans have avoided. We have to find a way to reach agree- a sister city in Mexico, Ciudad de San To adopt a new standard would fun- ment. Luis Potosi. They would come up there damentally alter the balance of power If my colleagues on the other side of once a year for this big exchange pro- between the administration and the the aisle persist in opposing Mr. gram. I can remember standing there Senate in the judicial confirmation Estrada, they will have a hard time ex- in front of all of our citizens, our His- process. It also would seriously erode plaining to their constituents why they panic citizens of Tulsa, saying: Como the comity that has existed between voted against him since he has met, Acalde de la ciudad de Tulsa, yo quiero the two branches in the past. and I dare say surpassed, the ‘‘gold decir Bien venidos, bien venidos a la In effect, we’re playing games with standard’’ they asked for by the Amer- ciudad. Creemos la Ciudad de San Luis the administration of justice, acting ican Bar Association. They also would Potosi es la ciudad mas hermosa de without regard for the problems of the be hard-pressed to explain why his todas las ciudades del mundo. Judiciary. If Senators filibuster Mr. nomination has been held up for so Their faces shined and they realized Estrada’s nomination to the DC Cir- long without a vote. we were participating in their culture cuit, and if that filibuster results in I’ve been receiving letters from my and they in ours. They asked me the the rejection of the nomination, Demo- constituents who think the U.S. Senate question last week, and I asked the dis- crats will have forced a permanent is holding up this vote because Mr. tinguished Senator from Utah, What do change to the political and constitu- Estrada is Hispanic. My Hispanic con- we say to them when we go back and tional landscape. This in essence, stituents think he is being used as the talk to them? Why won’t they give us would create a completely new process whipping boy and they are furious. I a chance, give one Hispanic a chance at and would, in effect, allow Senators to don’t think some of my colleagues re- a high office? deny any judicial nominee their right alize what this means to a minority They asked me that question and I to a vote. community. In Ohio, I appointed Jose did not have a very good answer for

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00032 Fmt 0624 Sfmt 0634 E:\CR\FM\A26FE6.050 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2801 them. But they said, You know, there versity after coming from Honduras. is being applied to this nominee with are a lot of us out here who really do He was 4 years old when his parents di- requests being made that have never care. They said, Why don’t you kind of vorced in Honduras. He was 17 when he been applied to any other nominee? visit with us a little bit. came to this country, speaking very Does the Senator have any explanation Muchos Hispanos estan eschuchando little English. He taught himself for this? ahora. . . Y Yo Quiero Decir. English. He graduated magna cum Mr. HATCH. I agree with the distin- Por desgr´acia, hay personas en el laude from Columbia University, and guished majority leader that there is a sen´ ado que no quieren escuchar a ni then he graduated magna cum laude double standard being applied to una palabra de la verdad. from Harvard where he was an editor of Miguel Estrada. I don’t want to par- Yo invito a la comunid´ ad hispana the Law Review—one of the highest po- ticularly conjecture at this point as to para llamar a sus senadores para sitions you could have in the law the motive. But a double standard is insistir en los derechos de Miguel school. Of course not. There is no way generally being applied, and it is not Estrada y en la confirmacio´ n de Miguel they can say he doesn’t have the aca- fair. Estrada como juez. demic credentials to do this job. Mr. FRIST. Will the Senator yield for Llame los senadores, todos los Mr. FRIST. Will the Senator yield for a question? senadores, especialmente los senadores, a question? Mr. HATCH. Without losing my right de los estados de CA, FL, NY, LA, AR Mr. HATCH. Yes, without losing my to the floor. y NM. Llame ahora y pregu´ ntalos, right to the floor. Mr. FRIST. The chairman of the Ju- <> Es Mr. FRIST. Mr. President, the Sen- diciary Committee is a constitutional su misio´ n. Llame ahora! Los Estados ator from Utah has been reviewing the law scholar and knows the rules and Unidos necesitan un hispano . . . y eso records of judicial nominees for 27 the practices of the Senate. My ques- hispano es Miguel Estrada. years. Does the Senator know of many tion is, Has he ever seen a filibuster Vaya, vaya a llamar imediamente. lawyers who have argued 15 cases be- used against an appellate court nomi- Los hispanos quien estan escuchando fore the Supreme Court, as has Mr. nee? ahora pueden hacer la diferencia. Estrada? Mr. HATCH. Not a true filibuster. Gracias Mis Amigos. Mr. HATCH. Of course not. Few law- There have been cloture votes as a Sen- I yield the floor. yers have. Few nominees for judgeships ate management device but not a true The PRESIDING OFFICER (Mr. WAR- have in the history of this country. filibuster. There has never been a true NER). Under the previous order, the That is what makes me so livid—to see filibuster used against a circuit court Senator from Utah has the floor. lesser legal minds writing partisan let- of appeals nominee, no, and certainly Mr. HATCH. Mr. President, I have ters suggesting he is not a qualified not against a circuit court of appeals been here 27 years. I have been on the nominee. It drives me nuts, to be hon- nominee to the Circuit Court of Ap- Judiciary Committee 27 years. I have est with you. Few lawyers in America peals for the District of Columbia. literally seen 1,500, 1,600 judges con- have argued 1 case before the Supreme Mr. FRIST. Will the Senator yield for firmed—most all of them without even Court, let alone 15. a question? a debate, just by unanimous consent. I By the way, Miguel Estrada has a Mr. HATCH. Yes, without losing my have seen very few judges given a handicap. He has a disability. He has a right to the floor. rough time and hardly anybody given speech impediment. Yet he has risen to Mr. FRIST. Does the Senator from the rough time that Miguel Estrada is the top of the legal profession in appel- Utah share my concern that what they being given here on the floor. I have late advocacy and oral advocacy with a are doing in filibustering Miguel never seen anybody in the history of speech impediment. Nobody can match Estrada is harmful to the institution of the Senate—in all of my studies of the that. the Senate and its advise and consent history the Senate—filibuster a circuit Mr. FRIST. Mr. President, will the responsibilities? court of appeals nominee—never, not chairman of the Judiciary Committee Mr. HATCH. I have never been more once. I have never seen even where yield for a question? concerned. We are in danger of actually there have been cloture votes for man- Mr. HATCH. Yes, without losing my breaking the system. We are in danger agement purposes or whatever else— right to the floor. of doing lasting harm to the Senate, its certainly not a filibuster purpose—I Mr. FRIST. We know in fact that the procedures, and to the President of the have never seen a circuit court of ap- American Bar Association has given United States, and to the judiciary; to peals nominee pulled down because of a Mr. Estrada its highest rating—in fact, the executive branch because, if this filibuster—never. unanimously well qualified. Does the filibuster goes through, that means Why this double standard? Why is Senator know if the Senate has ever that on controversial nominees—and Miguel Estrada, with all his creden- obstructed a vote on any nominee rec- my colleagues on the other side treated tials—and on the other side of the aisle ommended to the Senate by the Judici- all of the Bush circuit court nominees they admit he has exceptional creden- ary Committee who has received an as controversial—that means you have tials, including their gold standard, the ABA rating of unanimously well quali- to have 60 votes. That would apply to American Bar Association’s most well fied? both sides of the floor should they get Mr. HATCH. I do not recall anyone qualified standard, the highest rating the Presidency. It is a very dangerous who has had this difficulty—in fact, anybody can possibly have—why is it thing and something we just definitely anyone with that type of a rating who that this double standard is being used should not allow to come to fruition. has not gone through the Senate once against this Hispanic nominee to one of Mr. FRIST. Will the Senator yield for reported by the Judiciary Committee, the most important courts in the coun- one last question? and the fact that the Democrats are try, this Hispanic nominee who is by Mr. HATCH. Without losing my right doing this now is outrageous. to the floor. all intents and purposes and by all Mr. FRIST. Will the Senator yield for Mr. FRIST. Mr. President, the Wash- measure the embodiment of the Amer- a question? ington Post has repeatedly and em- ican dream? Mr. HATCH. Yes, without losing my phatically called on the Democratic Mr. FRIST. Mr. President, will the right to the floor. Senator yield for a question? Mr. FRIST. Will the Senator agree leadership to stop these demands for Mr. HATCH. I would be delighted to that the opposition mounted against confidential memoranda. I was won- without losing my right to the floor. Mr. Estrada is not about his qualifica- dering if the Senator had seen the Mr. FRIST. Is the Senator from Utah tions? Washington Post editorial from last aware of any argument against the Mr. HATCH. No. How could it be? September that said, ‘‘Seeking Mr. confirmation of Mr. Estrada that he Mr. FRIST. If the Senator will yield Estrada’s work product as a govern- does not have the academic credentials for a question—— ment lawyer is beyond any reasonable to suggest that he will be a fine judge? Mr. HATCH. Without losing my right inquiry into what sort of judge he Mr. HATCH. Of course not. They to the floor. would be. Nor is it fair to reject some- could not. Mr. Estrada graduated Mr. FRIST. Is the Senator aware that one as a judge because that person’s de- magna cum laude from Columbia Uni- it has been suggested a double standard cision to practice law rather than write

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00033 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.157 S26PT2 S2802 CONGRESSIONAL RECORD — SENATE February 26, 2003 articles or engage in politics makes his ough. They were answers that would Again, I ask, why the double stand- views more opaque.’’ make anybody proud. They were an- ard in this case? Why don’t we recog- Does the Senator agree that these de- swers that any judicial nominee would nize how great this young man is and mands go beyond any reasonable in- be proud to do. And, frankly, he an- allow him the same privileges that we quiry and are instead a gimmick and swered them better than almost any have given to countless Democrats dur- an attempt to prevent this nominee judicial nominees I have seen in the ing the Clinton years when we con- from ever getting a vote? last 27 years. firmed 377 Clinton nominees to the Mr. HATCH. Absolutely. The tactic is Mr. DEWINE. Mr. President, will the Federal court—the second all-time to demand documents that they know Senator from Utah yield for an addi- highest confirmation rate in history, the administration cannot give because tional question? only 5 below the highest, and that was the precedent would be so earthshaking Mr. HATCH. Yes, without losing my Ronald Reagan, who had 382? because these are privileged docu- right to the floor. Mr. DEWINE. Mr. President, will my ments, and then filibustering and Mr. DEWINE. So would the Senator distinguished colleague from Utah claiming they are filibustering because from Utah agree, if a Senator thought yield for an additional question? they can’t get the documents. And that he or she did not have enough in- Mr. HATCH. Without losing my right when they don’t get them—it is just formation at the hearing about Mr. to the floor. typical of what they have been doing— Estrada, or had additional questions Mr. DEWINE. It is my understanding they flaunt what really is proper proce- that he or she wanted to have an- that the ABA conducted its own very dure. swered, they could have submitted ad- thorough investigation of Mr. Estrada Then they have not only asked for ditional questions? before they decided to give him their documents but his record, Miguel Mr. HATCH. No question about it. highest possible rating, well qualified. Estrada’s recommendations while at They were given the right to submit Could the Senator from Utah tell me the Solicitor General’s Office for ap- additional written questions, and only whether or not that is correct? Mr. HATCH. That is correct. peals, certiorari matters, and amicus two Senators did. By the way, the administration has Mr. DEWINE. Mr. President, I wonder curiae matters. even gone further than that. They said: if my colleague will yield for an addi- Never in the history of this country Look, we will present Miguel Estrada tional question. has anyone given those documents out to any Democrat Senator who wants to Mr. HATCH. Without losing my right of the executive branch to the Senate ask him questions in their personal of- to the floor. or to anybody else. And they should fice on a personal basis. They have Mr. DEWINE. Now, the ABA has ex- not, because it would deter and affect gone to great lengths for this wonder- pressly stated it does not evaluate a and, in many respects, destroy the ful nominee. nominee’s ideology because it ‘‘re- work of the Solicitor General, the at- Why is it—I ask my distinguished stricts its evaluation to issues bearing torney for the people of this country. friend and all others who are listen- on professional qualifications.’’ But the Mr. DEWINE. Mr. President, will the ing—that this Hispanic nominee is ABA does investigate a nominee’s Senator from Utah yield for a ques- being given the business like he is? openmindedness and freedom from tion? Why is it that we have this double bias. Mr. HATCH. Yes, without losing my standard? It is one of the most difficult Could the Senator from Utah tell me right to the floor. things for me to see. It is one of the whether it seems unreasonable to be- Mr. DEWINE. It is my understanding most difficult things to understand. lieve that the ABA would have unani- there is substantial opportunity, fol- Mr. DEWINE. Mr. President, I say to mously given Mr. Estrada its highest lowing hearings, to submit followup my distinguished colleague from Utah, rating if it thought he would use his ju- questions in writing. I wonder if the I wonder if you would yield for an addi- dicial role to advance his personal ide- Senator from Utah would tell me tional question. ology? whether that is correct or not. Mr. HATCH. Without losing my right Mr. HATCH. There is no way they Mr. HATCH. Absolutely. Not only did to the floor. would have, no way in this world. In they hold one of the longest hearings Mr. DEWINE. I want to make sure I fact, there are plenty of Democrats, in history for a circuit court appeals understand. I ask my colleague wheth- and I might add, partisan Democrats, nominee—conducted by them, which er or not Mr. Estrada did, in fact, an- who do not act in a partisan way—and they said was fair, where they had the swer the questions? neither do the Republicans—on that privilege of asking every question they Mr. HATCH. He answered the ques- standing committee. In fact, if I recall wanted or even extending the hearings tions. Now, he may not have answered it correctly, there are more Democrats if they did not believe they got answers them the way some of my colleagues on the committee than Republicans. to those questions—but afterwards wanted him to. It was apparent they And they all unanimously gave Miguel they had a right to submit written were trying to get him ensnarled. It re- Estrada the highest rating that the questions. minds me of the Biblical days when the American Bar Association can possibly And, by the way, only two people did, pharisees would try to ensnarl Jesus give. the distinguished Senator from Illinois Christ. They would ask these ques- Keep in mind, my colleagues on the and the distinguished Senator from tions, trying to ensnarl Him and make other side of the floor said that the Massachusetts, Mr. DURBIN and Mr. Him look ridiculous in front of the peo- American Bar Association rating is the KENNEDY. ple. gold standard, it is the thing that By the way, I do not believe Senator It was almost that bad in committee. makes the difference as to why they DURBIN was even there during the hear- He answered every question. Unfortu- will vote for people. And ‘‘qualified’’ is ings to ask questions. And yet I have nately, for them, he answered them normally enough to vote for anybody. seen, time after time, the distinguished precisely the way most Democrat Here is a man who has been rated Senator from Illinois take the floor nominees did; and that is, instead of unanimously ‘‘well qualified’’ by both and talk about the nonanswers that going into how he would rule on mat- Democrats and Republicans on the were supposedly given. ters that would come before him later standing committee, who I think are I refer all of my colleagues to the in the court, he basically said: I will doing a good job on that committee. speech made earlier by the distin- obey the law. I will sustain the law. I I have been critical of the committee guished Senator from Tennessee Sen- will follow the law regardless of my in the past, but I think during the last ator ALEXANDER. He blew that conten- own personal views. few years of the Clinton administration that Miguel Estrada did not an- That is what the Democrat nominees tion, and up to today, that they have swer these questions into oblivion. I have said. And that is a correct answer. been doing a good job. recommend everybody in this country And it is a very good answer. His an- Mr. DEWINE. Mr. President, I wonder read that speech because he actually swers were more literate, more schol- if my distinguished colleague will yield showed the A-plus answers that Miguel arly, more persuasive, in many of the for an additional question. Estrada gave to Democrat and Repub- questions that were asked than I have Mr. HATCH. Without losing my right lican questions. And they were thor- seen in most nominees. to the floor.

VerDate Dec 13 2002 00:48 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00034 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.160 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2803 Mr. DEWINE. Can the Senator from only issue they seem to have. I hate to lot of things, but one thing they are Utah tell me whether I am correct in say it, but some of our friends in the now agreeing on is that a filibuster is understanding that, despite the assur- media ignore the fact that the seven a bad idea. The Tribune said, regarding ances of those who have worked with living former Solicitors General wrote this confidential memo request that Mr. Estrada, and the unanimous affir- a letter to Chairman LEAHY that says you have just referred to: mation of the ABA, some of our col- this: Anyone who wants a glimpse into leagues continue to be unconvinced We write to express our concerns about Estrada’s thinking can scrutinize the briefs that Mr. Estrada would be an unbiased your present request that the Department of he wrote and the oral arguments he made. Justice turn over appeal recommendations, interpreter of the law? The Sun-Times wrote: Mr. HATCH. I do not see how any col- certiorari recommendations, and amicus rec- league could remain unconvinced of ommendations that Miguel Estrada worked Our legal system cannot and must not be that. He will be. He will follow the law. on while in the Office of the Solicitor Gen- held hostage to political nitpicking. eral. He has said he will follow the law. He As former heads of the Office of— It agrees with President Bush that said he would uphold precedent. He By the way, of these seven former So- this would be a shameful event. said he would do what is right regard- licitors General—the only living ones— Now, I know the Senator from Illi- less of his own personal beliefs. four of them, or better than 50 percent, nois is not in the Chamber now, but as That is all you can ask of any of are Democrats. Three he worked for. you referenced him a moment ago, he these nominees. And he has answered They said: has been in the Chamber quite often those questions absolutely accurately, As former heads of the Office of the Solic- demanding these briefs be turned over. the way the Clinton nominees an- itor General under Presidents of both par- You are the chairman of the com- swered those questions. ties, we can attest to the vital importance of mittee. At the time you were the rank- Why—again, might I ask—is there a candor and confidentiality of the Solicitor’s ing member and were there—I was not, double standard with regard to this decisionmaking process. as I am a new member of the Judiciary Hispanic nominee? Why is there? I can- I will read a couple other thoughts Committee. I was not there during the not see any reason for it. here: core investigation and questioning of Mr. DEWINE. Mr. President, I wonder It goes without saying that when we made Miguel Estrada. Can you tell me if the if my colleague will yield for one addi- these and other critical decisions, we relied Senator from Illinois was there and if tional question. on frank, honest, and thorough advice from he asked any questions at the time? He Mr. HATCH. Without losing my right our staff attorneys, like Mr. Estrada. Our de- seems not to know about this man. to the floor. cisionmaking process required the unbridled, Mr. HATCH. My recollection is that Mr. DEWINE. I have really tried to open exchange of ideas, an exchange that understand where some of our col- simply cannot take place if attorneys have he was not at the hearing and he didn’t leagues are coming from with their ad- reason to fear that their private rec- ask any questions. He and every Demo- amant opposition to this extraor- ommendations are not private at all, but crat had a right to do it, and it went all vulnerable to public disclosure. Attorneys day long. Yet the Senator seems to be dinarily well-qualified nominee. The inevitably will hesitate before giving their most common criticism has been that trying to give the impression that he honest, independent analysis if their opin- knows everything that went on at the there is some concern about whether ions are not safeguarded from future disclo- they know what his personal views are. sure. hearings. True, he could have read the I wonder if the Senator from Utah High-level decisionmaking requires candor, transcript, but he had every chance to could address that and perhaps remind and candor, in turn, requires confidentiality. ask questions. Why wasn’t he there? us again of what Mr. Estrada’s super- Remember, four of these seven are Why didn’t he ask the questions? Why visors at the U.S. Solicitor General’s Democrats. The other three are Repub- is he in the Chamber criticizing Miguel Office have said about Mr. Estrada’s licans. All of them are together in this, Estrada and criticizing the process and ability to separate his personal views though. using this phony excuse with regard to from his analysis of the law. Any attempt to intrude into the office’s the confidential, privileged memoranda Mr. HATCH. Well, he worked for both highly privileged deliberations would come of the Justice Department along with the Clinton administration and a Re- at the cost of the Solicitor General’s ability his colleagues? publican administration. And he got to defend vigorously the United States liti- I don’t blame any one person. They the highest raves and performance gation interest, a cost that also would be are all to blame for using these kinds borne by Congress itself. Although we proud- of phony arguments. I think the media evaluations by both administrations, ly respect the Senate’s duty to evaluate Mr. meaning that he worked in a bipartisan Estrada’s fitness for the Federal judiciary, is to blame—some of them. I have 57 way with both administrations. Unfor- we do not think that the confidentiality and different editorials, 50 of which are for tunately, in order to create a red her- integrity of internal deliberations should be Mr. Estrada. ring issue that they can hide behind, sacrificed in the process. Mr. DURBIN. Will the Senator yield our colleagues on the other side have This is signed by Seth B. Waxman, on for a question? demanded his recommendations while behalf of himself, Walter Dellinger, Mr. HATCH. Not just yet. You men- at the Solicitor General’s Office—the Drew Days—three Democrats—Kenneth tioned the Chicago Sun-Times. My attorney for the U.S.A., for us citizens, Starr, Charles Fried, and Robert H. staff just gave me that. You know, it is the private, privileged memoranda, his Bork, all Republicans, and Archibald interesting—I will quote a couple lines. recommendations on appeals on mat- Cox, of course, a Democrat—four Who can look at the spectacle of the 108th ters involving certiorari and on mat- Democrats and three Republicans. Congress and not believe that justice and the ters involving amicus curiae. There has That speaks for itself. I hope it puts to basic operation of the Nation is being sac- never been such a move. To my knowl- bed this phony red herring argument rificed on the altar of ugly obstructionist, edge, the Justice Department, the So- that has been lodged by the other side. partisan politics? licitor General’s Office has never—nor It is phony, wrong, and should not be That is the Chicago Sun-Times, will it ever—give up those documents given the time of day. I call on the which is not known as a conservative because they are privileged executive media to start being responsible with newspaper, to my knowledge. branch documents. regard to these matters. I cannot help but believe our col- Mr. CRAIG. Mr. President, will the Let me give one other. I am quoting leagues on the other side know as chairman of the Judiciary Committee a couple sentences. I will put the whole much about that as I do. They know yield for a question? editorial into the RECORD, if I can. I that is absolutely accurate, and I am Mr. HATCH. I will, without losing ask unanimous consent that this be just suggesting this is a red herring my right to the floor. printed in the RECORD. issue so that they can hold up this Mr. CRAIG. Mr. President, the Chi- The PRESIDING OFFICER. Without nominee with a filibuster, of all cago Tribune has strongly condemned objection, it is so ordered. things—the first in history. the filibuster the chairman is speaking There being no objection, the mate- Let me just go further on that be- to tonight. So has the Chicago Sun- rial was ordered to be printed in the cause it is a very important issue, the Times. Those papers don’t agree on a RECORD, as follows:

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00035 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.163 S26PT2 S2804 CONGRESSIONAL RECORD — SENATE February 26, 2003 [From the Chicago Sun-Times, Feb. 14, 2003] condemned the filibuster, and they basis of some asinine political litmus test, WHEELS OF JUSTICE CAUGHT IN WASHINGTON have condemned the strategy being but to win the presidency. If this continues, GRIDLOCK, AGAIN used here to try to pry well beyond the we can expect Republicans to use the same tactic and the result will strangle our justice ‘‘The time has come for the U.S. Senate to oral arguments and briefs of Mr. system. stop playing politics with the American judi- Estrada. The Senate has a Constitutional duty to cial system. So bad has the situation become I want to also ask, was the Senator vote on the president’s judicial nominees. By that some Americans wonder whether justice also aware that the Freeport Journal- all accounts, Estrada is a brilliant scholar, is being hindered. . . ’’ So began an editorial Standard, the oldest news source in distinguished public servant and outstanding on this page five years ago, during the now- lawyer, rated by the American Bar Associa- distant days of the Clinton administration, northwest Illinois, has editorialized tion as ‘‘highly qualified.’’ when Senate Republicans were stonewalling that this demand for Solicitor General Democrats are free to vote against him if judicial nominees from a Democratic presi- memos would do serious damage to the they want, but vote they must. To do other- dent. ability of any member of the Justice wise is an outrageous abuse of power. We mention it because the party in power Department to participate in its delib- tends to scream about efficient government, erative process, and that the same Mr. CRAIG. Mr. President, I thank while the party out of power complains paper concluded Democrats are free to the chairman for yielding for ques- about failure to follow procedure. To quote vote against him if they want, but vote tions. Shakespeare, ‘‘A plague on both their Mr. DURBIN. Will the Senator yield houses.’’ The only update we’d make in the they must; to do otherwise is an outrageous abuse of power. for a question? opening quote is to change ‘‘some Ameri- Mr. HATCH. I will be happy to yield cans’’ into ‘‘many Americans’’ or even ‘‘most The question then: Was the Senator Americans.’’ For who can look at the spec- aware that this story had reached our for a question without losing my right tacle of the 108th Congress and not believe heartland and that now newspapers all to the floor. that both justice and the basic operation of over America are reacting? And was he The PRESIDING OFFICER. The Sen- the nation is being sacrificed on the altar of aware that they are speaking to this ator from Illinois is recognized. ugly, obstructionist, partisan politics? kind of injustice? Mr. DURBIN. I would like to ask the After dragging their feet on shifting com- Senator—I was off the floor in the mittee chairmanships and the routine oper- Mr. HATCH. I am. Many editorials are complaining and pointing out that cloakroom—it is my understanding my ations of the nation’s business, Senate name was raised during the course of Democrats, though in a minority, are threat- this is terrible politics. It is a terrible ening to filibuster over the confirmation of thing to do. It is a double standard. the debate. Miguel Estrada, a Washington lawyer who You quoted the Freeport Journal- Mr. HATCH. It was raised in a ques- seems eminently qualified for the federal ap- Standard. Let me quote one paragraph: tion to me. peals bench in every way except for his alac- If there is one example today of the worst Mr. DURBIN. I thank the Senator. I rity to answer questions about his opinions in American politics, it is the decision by ask the Senator, is he aware of the fact on legal matters that have not yet been pre- Senate Democrats to filibuster the nomina- that I was present for the questioning sented to him, such as the issue of abortion. tion of Miguel Estrada to the U.S. Court of of Miguel Estrada? I came to the hear- The entire idea behind disabling the busi- Appeals for the District of Columbia. Presi- ing room on several occasions and, un- ness of the nation is so that the blame for dent Bush’s description of the move as whatever bad situation we find ourselves in fortunately, because of the timing of ‘‘shameful politics’’ is generous. It is a down- come election 2004 can be laid at the feet of the schedule, I was never called for right repugnant abuse of the Constitution. the Republicans, since they are in power. questions and forced to go to other But the Democrats forget that, if they man- The rest of the editorial is good as committee hearings and submitted ager to torpedo the Republican agenda, then well. I ask unanimous consent that it written questions to Miguel Estrada? the republicans are not really fully in power, be printed in the RECORD. Mr. HATCH. I will take the Senator’s and whatever problems are certain to come There being no objection, the mate- word on that. There is no question the are the fault of both parties. And obstruc- rial was ordered to be printed in the distinguished Senator did submit writ- tionism hurt Democrats in last November’s RECORD, as follows: voting. ten questions which were answered, but President Bush called the Democratic ap- [From the Freeport Journal Standard, Feb. I also answer the Senator that this proach ‘‘shameful politics.’’ We are not re- 20, 2003] hearing went on all day. It was an ex- vealing a bias when we agree—the nation SENATE DEMS SHOWING WORST SIDE OF traordinarily long hearing, and if the needs good judges, from both parties, of both POLITICS Senator had any questions that he conservative and liberal outlooks. Our legal The issue: Judicial nominations. wanted to ask, I think it was his duty system cannot and must not be held hostage Our view: For Senate Democrats to fili- and his obligation to get there and ask to political nitpicking. Estrada deserves to buster the nomination of Miguel Estrada is them, by the way, because we can all be the first Hispanic on the U.S. Court of Ap- an outrageous abuse of power. peals for the District of Columbia,and if his If there is one example today of the worst find time during the complete day’s nomination in some way helps to break the in American politics, it is the decision by hearing to come to the committee. political deadlock keeping critical judge- Senate Democrats to filibuster the nomina- I am not trying to find fault. What I ships from being filled, that will be just an- tion of Miguel Estrada to the U.S. Court of am saying is that it is one thing to be other accomplishment to add to his record. Appeals for the District of Columbia. Presi- able to speak from personal experience Mr. HATCH. ‘‘Our legal system could dent Bush’s description of the move as of having been there and asked ques- not and cannot be held hostage to the ‘‘shameful politics’’ is generous. It is a down- tions; it is another thing to contin- right repugnant abuse of the Constitution. political nitpicking’’—which is exactly The chief reasons Democrats give is ually come to the floor and berate Mr. what is going on here. I admit that my Estrada, an American success story who Estrada for not answering questions distinguished colleague from Illinois went from Honduran immigrant to grad- when, if you refer to the remarks of the did take the time to submit questions. uating Harvard magna cum laude to Su- distinguished junior Senator from Ten- None of the others did, except Senator preme Court clerk and beyond, is a ‘‘stealth nessee earlier this evening, that just is KENNEDY. All of them are complaining conservative,’’ whatever that means. They not true. The fact is, he answered the that he didn’t answer the questions. I say his responses to questions at committee questions. will say that my friend and colleague hearings on his nomination did not suffi- Mr. DURBIN. Will the Senator yield ciently reveal his political opinions and de- from Illinois did take the time to sub- mand that confidential memoranda written for another question? mit written questions. He deserves by Estrada when he was an assistant solic- Mr. HATCH. I will say this—and I credit for that. But as far as I know, I itor general be turned over. This is unprece- compliment my dear colleague from Il- don’t believe he asked any questions at dented, and if allowed, would do serious dam- linois—my colleague from Illinois did the hearing. age to the ability of any member of the Jus- submit written questions, but there Mr. CRAIG. Mr. President, will the tice Department to participate in its delib- were answers to those written ques- Senator yield further for a question? erative processes. tions as well. I have to say, my col- Mr. HATCH. Yes, without losing my Clearly, Democrats are fearful of conserv- league from Illinois was 1 of 2 out of 9 ative jurists. But for eight years, Bill Clin- right to the floor. ton nominated liberal jurists to the bench, Democrats—actually 10 at the time— Mr. CRAIG. I know the Senator is including three Supreme Court justices. This who submitted questions. All of a sud- now in the Chamber. I have referenced is called democracy. The proper recourse is den to come here with crocodile these two articles. Those papers have not to bottle up every nomination on the tears——

VerDate Dec 13 2002 03:37 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00036 Fmt 0624 Sfmt 0634 E:\CR\FM\A26FE6.053 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2805 Mr. DURBIN. Will the Senator yield ator from Illinois and others have been admire Judge Amalya Kearse and Justice for another question? saying that Mr. Estrada did not answer Anthony Kennedy, for whom I was a law Mr. HATCH. Let me finish my re- the questions. Let me recall, in case it clerk. During my time as a law clerk for Jus- marks and, of course, I will. But to tice Kennedy, I also got to work with retired might have slipped the mind of the dis- Justice Lewis F. Powell, Jr., for whom I de- come here with crocodile tears and tell tinguished Senator, ‘‘Follow-up Ques- veloped a great deal of affection and admira- us that he just did not do enough and tions for Miguel Estrada, Senator Rich- tion. he did not answer the questions when ard J. Durbin, Senate Judiciary Com- Amalya Kearse was a Carter ap- he did, in fact, do so, and to misrepre- mittee.’’ Let me read a few of these. pointee to the Second Circuit Court of sent, as some have done—I am not say- One: Appeals. In other words, this man has ing the distinguished Senator from Illi- During your nominations hearing, Senator admired a Democratic judge. Anthony nois because I have not heard all of his Edwards asked whether you consider your- Kennedy is, of course, considered a remarks; people will have to judge that self a ‘‘strict constructionist’’ when it comes moderate conservative on the Supreme for themselves. But to come here and to interpreting the Constitution. You described yourself instead as a ‘‘fair construc- Court. He served him as a clerk, and make those kinds of accusations when admires him. Then he admires Lewis F. this man had one of the longest hear- tionist.’’ How do you distinguish these two concepts? In what ways are they similar? In Powell, Jr., who is considered one of ings, answered many more questions what ways are they different? the leading moderate judges during his than almost any Clinton circuit court That is an intelligent question. I lifetime on the Court. of appeals nominee had to answer when commend my colleague. I could read all of these questions I was chairman, and to act like he does Mr. DURBIN. I thank the Senator. and answers, and I think any fair per- not deserve to have an up-or-down vote Mr. HATCH. The response: son would say he gave some very good on the Senate floor, which we gave to answers that would pass almost any every Clinton nominee, I think is a lit- I do not believe that a legal text, such as the Constitution, should be construed professorial, jurisprudential, legal, or tle bit beyond the pale, and I think ‘‘strictly’’ (i.e., grudgingly) or ‘‘loosely’’ other analysts’ reviews. that is what has been happening (i.e., without careful regard to the text’s lan- I ask unanimous consent that the fol- around here. guage so as to achieve a meaning beyond lowup questions for Miguel Estrada by Personally, I resent it, on behalf of that which the text will fairly bear). In my Senator RICHARD J. DURBIN and his an- the United States of America and on view, the Constitution, like other legal swers be printed in the RECORD. behalf of this Hispanic nominee who texts, should be construed reasonably and There being no objection, the mate- has all of these qualifications which I fairly, to give effect to all that its text con- rial was ordered to be printed in the believe even the Senator from Illinois tains. Although the phrase ‘‘strict construc- RECORD, as follows: tion’’ is often used to reflect a legal philos- FOLLOW-UP QUESTIONS FOR MIGUEL ESTRADA has acknowledged. ophy that simply gives appropriate consider- FROM SENATOR RICHARD J. DURBIN, SENATE Mr. DURBIN. Will the Senator yield ation to the text of the Constitution, the JUDICIARY COMMITTEE for a question? phrase is also sometimes used in a pejorative Mr. HATCH. Without losing my right fashion to describe an approach to interpre- (1) During your nominations hearing, Sen- to the floor. tation that does not fairly reflect the mean- ator Edwards asked whether you consider Mr. DURBIN. During the course of ing that the words, history, and background yourself a ‘‘strict constructionist’’ when it of the text will fairly bear. For that reason, comes to interpreting the Constitution. You the hearing on Miguel Estrada, we usu- described yourself instead as a ‘‘fair con- ally have rounds where Senators ask I avoided using that phrase in response to Senator Edwards’ question. structionist.’’ questions. Does the Senator from Utah (a) How do you distinguish these two con- recall the length of the rounds of the The distinguished Senator from Illi- cepts? In what ways are they similar? In questions that each Senator could ask nois asked if the current members of what ways are they different? of Miguel Estrada? the Supreme Court—this is written be- Response: I do not believe that a legal text, Mr. HATCH. I recall that they were cause he did not ask oral questions such as the Constitution, should be con- during the hearing: strued ‘‘strictly’’ (i.e., grudgingly) or ‘‘loose- lengthy, and I recall that Senator ly’’ (i.e., without careful regard to the text’s SCHUMER from New York chaired the Of the current members of the Supreme language so as to achieve a meaning beyond hearing. I did not chair the hearing. He Court, who would you characterize as a that which the text will fairly bear). In my could have set up any kind of rounds he strict constructionist? Who would you char- view, the Constitution, like other legal wanted to, and, as I understand it, ev- acterize as a fair constructionist? How would texts, should be construed reasonably and you characterize the remaining Justices? erybody had a full opportunity to ask fairly, to give effect to all that its text con- the questions they wanted, both Demo- Response: tains. Although the phrase ‘‘strict construc- crats and Republicans. Although the current members of the tion’’ is often used to reflect a legal philosophy that simply gives appropriate consider- Mr. DURBIN. If the Senator will United States Supreme Court sometimes emphasize different interpretive tools—giving, ation to the text of the Constitution, the allow me to ask a question—— phrase is also sometimes used in a pejorative Mr. HATCH. If I can just continue, for example, greater or less prominence to text, history or precedent in a particular fashion to describe an approach to interpre- the Senator himself said Mr. Estrada case—I believe each of them attempts in tation that does not fairly reflect the mean- has not answered any questions, and good faith to give a fair reading to the con- ing that the words, history and background the Senator from Illinois at least im- stitutional provisions that come before the of the text will fairly bear. For that reason, plied that from time to time. Court. For that reason, I would characterize I avoided using that phrase in response to Mr. DURBIN. Since my name has each member of the current Court as a ‘‘fair Senator Edwards’ question. constructionist.’’ (b) Of the current members of the Supreme been brought up in debate—it becomes Court, who would you characterize as a a debate over the Senator from Illinois The question again from the distin- strict constructionist? Who would you char- rather than Estrada—I hope the Sen- guished Senator from Illinois: acterize as a fair constructionist? How would ator from Utah will give me a chance In terms of judicial philosophy, please you characterize the remaining justices? to respond. name several judges, living or dead, whom Response: Although the current members Mr. HATCH. Mr. President—— you admire and would like to emulate on the of the United States Supreme Court some- The PRESIDING OFFICER. The Sen- bench. times emphasize different interpretive ator from Utah has the floor and the tools—giving, from example, greater or less This is what Mr. Estrada responded: prominence to text, history or precedent in a Chair requests that the Senator from There is no judge, living or dead, whom I particular case—I believe each of them at- Illinois address his questions to the would seek to emulate on the bench, whether tempts in good faith to give a fair reading to Chair. in terms of judicial philosophy or otherwise. the Constitutional provisions that come be- Mr. HATCH. I am not accusing my If I am fortunate enough to be confirmed, I fore the Court. For that reason, I would colleague from Illinois of anything hope to seek aid from whatever legal mate- characterize each member of the current other than based upon whatever he said rials may shed light on the problem before Court as a ‘‘fair constructionist.’’ on the floor. me, and thus to reach the correct answer to (c) In terms of judicial philosophy, please that problem to the best of my abilities, name several judges, living or dead, whom Mr. DURBIN. Will the Senator allow without any preconception about how some you admire and would like to emulate on the me to ask a question? other judge might approach the question. bench. Mr. HATCH. What I do want to make I have been fortunate to know several Response: There is no judge, living or dead, clear is I believe the distinguished Sen- great judges and justices in my lifetime. I whom I would seek to emulate on the bench,

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00037 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.167 S26PT2 S2806 CONGRESSIONAL RECORD — SENATE February 26, 2003 whether in terms of judicial philosophy or Roe v. Wade. You indicated that you consid- member majority of the Supreme Court, in a otherwise. If I am fortunate enough to be ered the answer to that question to be pri- decision authored by Chief Justice confirmed, I hope to seek aid from whatever vate matter. But your answer suggested that Rehnquist. The only dissenters in the case legal materials may shed light on the prob- you do have an opinion. Do you have an opin- were Justices Antonin Scalia and Clarence lem before me, and thus to reach the correct ion on the merits of Roe v. Wade? If so, have Thomas. answer to that problem to the best of my you read the briefs and a transcript of the (a) As a Director of CCI, did you partici- abilities, without any preconception about oral argument? pate in deliberations or play any other role how some other judge might approach the Response: I stated during our meeting in the group’s decision to file an amicus brief question. that, like many Americans, I have personal in Dickerson? I have been fortunate to know several views on the subject of abortion, which views Response: Yes. I was one of the Board great judges and justices in my lifetime. I I consider a private matter that I was unpre- members who voted on the question whether admire Judge Amalya Kearse and Justice pared to share or discuss with you. I also CCI should file a brief in the case. Anthony Kennedy, for whom I was a law stated that I do not harbor any personal (b) Do you support the group’s position in clerk. During my time as a law clerk for Jus- views of any kind that, if I were a judge, that case? Why or why not? tice Kennedy, I also got to work with retired would preclude me from applying controlling Response: I voted in favor of filing an ami- Justice Lewis F. Powell, Jr., for whom I de- Supreme Court case law in the area of abor- cus brief in the case. As I saw it, the case pri- veloped a great deal of affection and admira- tion. I did not state that I have private views marily involved an important unsettled legal tion. on whether the case of Roe v. Wade was cor- issue that hinged on the constitutionality of (2) In an attempt to learn more about your rectly decided. As I stated during my hear- an Act of Congress, 18 U.S.C. § 3501, rather than the issue whether Miranda should be judicial philosophy, several of my colleagues ing, it would not be appropriate for me to ex- superseded because of any disagreement that asked for your opinion about constitutional press such a view without doing the inten- the current Supreme Court might have with questions that are now settled law and that sive work that a judge hearing that case are unlikely to come before you as an appel- that decision. would have to under take—not only reading As is widely known, the Supreme Court in late court judge. For example, Chairman briefs, and hearing the arguments of counsel, Leahy asked for your views on Romer v. Miranda required that certain warnings be but also independently investigating the rel- given to suspects during custodial interroga- Evans, a Supreme Court opinion striking evant constitutional text, case law, and his- down a state constitutional provision that tions. It is less widely known that, in an- tory. nouncing that ruling, the Supreme Court prohibited municipalities from passing gay (3) You serve on the National Board of Di- also stated (384 U.S. at 467): ‘‘It is impossible rights ordinances. You responded: ‘‘the ques- rectors for a non-profit foundation called the tion as framed is inherently unknowable for for us to foresee the potential alternatives Center for the Community Interest, or CCI. for protecting the privilege which might be somebody in my position who has not sat According to CCI’s website, the group’s goal devised by Congress or the States in the ex- through the case, listened to the arguments, is ‘‘to make communities and neighborhoods ercise of their creative rule-making capac- conferred with the colleagues, and done all of safe places to live and raised children and to ities. Therefore we cannot say that the Con- the legwork of investigating every last clue make the public spaces of our cities secure stitution necessarily requires adherence to that the briefs and the arguments offer up.’’ and inviting places for all by helping to iden- any particular solution for the inherent com- Likewise, in response to questioning from tify common sense, balanced solution to Senator Schumer, you stated: ‘‘The only pulsions of the interrogation process as it is crime and quality-of-life problems and to de- presently conducted. Our decision in no way time that I will feel comfortable in opining fend those policies against unreasonable creates a constitutional straitjacket which whether the Court got it right would be if I legal attacks.’’ will handicap sound efforts at reform, nor is had done everything that the Court had to do (a) How did you become associated with it intended to have this effect. We encourage in order to actually issue their ruling.’’ CCI? For how long have you served on the Congress and the States to continue their (a) In your role as an Assistant to the So- Board of Directors? licitor General, I am sure you read many of laudable search for increasingly effective Response: In the Fall of 1998, Eliot Spitzer ways of protecting the rights of the indi- the Supreme Court’s decisions. Have you was elected Attorney General of New York. vidual while promoting efficient enforce- ever expressed any opinion on the merits of Mr. Spitzer was a Board member of CCI (and, a Supreme Court decision, to your colleagues ment of our criminal laws.’’ through his family foundation, was and is an In 1968, in the wake of that decision and in or friends, when you had not read the briefs important financial supporter of CCI). As a reliance on the Court’s suggestion, Congress and watched the oral argument in the case? result of his election, Mr. Spitzer had to re- enacted 18 U.S.C. § 3501. That statute re- For example, have you ever told anyone that sign his Board position. I was invited to join quired federal courts to admit into evidence you thought the Romer v. Evans was rightly the board, and fill the ensuing vacancy, by all voluntary confessions, after assessing the or wrongly decided? another Board member, Scott Muller has issue of voluntariness in light of all the facts Response. During my tenure at the Solic- long been involved in CCI, and I knew him as and circumstances surrounding the confes- itor General’s office, it was not uncommon a highly respected attorney who practices in sion—including whether the suspect received for lawyers in the office to discuss issues Washington, D.C.and New York City; he was the warnings required by the Miranda case. then pending, or recently decided, by the Su- recently confirmed by the Senate as General Although some lower courts had assumed preme Court. Such discussions were gen- Counsel of the CIA. I have served on the that Section 3501 was not constitutional, as erally informal (often at the lunch table, Board since my election in late 1998/early a CCI Board member I supported the filing of since it was the practice of the attorneys in 1999. an amicus brief that supported the constitu- the office to lunch together in the Depart- (b) As a director, what role do you plan in tionality of the statute. I believed that a law ment’s cafeteria) and did not purport to re- the management of the organization? How duly passed by both Houses of Congress and flect a considered judgment that a particular frequently does the Board meet? signed by the President should not be ig- decision was objectively ‘‘right’’ or ‘‘wrong’’ Response: CCI has a full-time staff that nored by the lower courts without an author- based on an appraisal of all briefing, argu- deals with day-to-day matters. The Board itative resolution of the constitutional ques- ment, and primary materials—the type of deals with major policy issues and the gen- tion by the Supreme Court of the United judgment that a sitting judge would have to eral direction and management of the orga- States. make in deciding the case. It was probably nization. (c) Do you think that the defendant’s chal- the case that neither my Justice Department It has been a goal of the current Board to lenge of the Fourth Circuit’s decision in colleagues nor I had read every brief filed in increase the number of times we meet. When Dickerson was an unreasonable legal attack? a particular case or attended argument. Gen- I first joined the Board, we met only twice a Response: No. erally, my colleagues and I would speak of a year. We now try to meet three or four times (d) Chief Justice Rehnquist’s decision in particular decision in terms of whether it a year. Meetings of the Board may be con- Dickerson invoked the doctrine of stare deci- served the Government’s programmatic in- ducted if a quorum of a majority of the di- sis. Do you agree with the application of terests and/or whether the majority opinion rectors is present. Although I try to attend that doctrine in this case? When is it appro- set forth better reasons for the outcome than every meeting personally or by telephone, I priate for the Supreme Court to overturn its did the dissenting opinion (i.e., whether one have not participated in every meeting of own precedents? of the opinions was a better piece of legal the Board that has been held since I joined Response: Dickerson reflects a reasonable reasoning and writing). I do not have any the Board. application of the doctrine of stare decisis. recollection that I or any of my colleagues (4) Although the organization purports to In my view, it is rarely appropriate for the ever described any particular decision (in- defend ‘‘common sense’’ government policies Supreme Court to overturn one of its own cluding Romer) as ‘‘wrong,’’ but it is possible ‘‘against unreasonable legal attacks,’’ CCI precedents. The circumstances that bear on that remarks such as that were made in in- has adopted some very controversial posi- the appropriateness of such a course were formal conversations—as shorthand for tions over the last few years. For example, in summarized by the Court in Agostini v. whether a decision accorded with the Gov- Dickerson v. United States, CCI filed an ami- Felton, 521 U.S. 203, 235–37 (1997), and by the ernment’s interest in an area or whether the cus brief urging the Supreme Court to over- plurality opinion in Planned Parenthood of outcome urged by a dissenting opinion was turn the landmark Miranda decision, which Southeastern Pa. v. Casey, 505 U.S. 833, 854– advocated better than the result reached by ensures that criminal suspects have ade- 55 (1992). the Court’s majority. quate notice of their legal rights. (5) Dickerson was an alarming case to (b) You and I met privately before your As you know, the position favored by CCI many of us because the Fourth Circuit Court hearing, and I asked you for your views on in Dickerson was rejected by a decisive seven of Appeals, on its own initiative, determined

VerDate Dec 13 2002 04:18 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00038 Fmt 0624 Sfmt 0634 E:\CR\FM\A26FE6.056 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2807 that Miranda was no longer binding law. Response. I have not made a sufficient, noring those. It is about time the They reached this conclusion even though independent study of the issues and briefing American people hear the truth. We the Supreme Court continued to apply Mi- in each case to know whether I agree with have heard enough rubbish. Now we randa to criminal cases in both the federal the positions espoused by CCI in these cases. should hear the truth. In all honesty, and state systems; and despite the fact that I would note, however, that each case re- neither the government nor the criminal de- sulted in a unanimous opinion by the Su- that is what we are going to do this fendant was willing to argue that Miranda preme Court that appears to vindicate the evening. did not apply. The Fourth Circuit’s ruling in position urged by CCI. I have heard a lot of ridiculous re- Dickerson strikes me as a prime example of (7) It is difficult to find a news account marks over there that do not really de- the conservative judicial activism we some- about your nomination that fails to mention serve listening to. So we are going to times see today. your status as a potential nominee of Presi- hear some remarks tonight that de- (a) What assurances can you give the Com- dent Bush to the Supreme Court. Frankly, I mittee that you will follow Supreme Court serve being listened to, and we are think this speculation is very premature. going to get the facts. This unmiti- precedent unless and until the Court explic- You do not have any judicial record yet, so itly overrules itself? it is hard to know what kind of judge you gated bullcorn that he has not an- Response: I can absolutely assure the Com- will be on the Court of Appeals. swered questions is exactly that. mittee that I will follow binding Supreme (a) Have you given any thought to whether I think the distinguished Junior Sen- Court precedent until and unless such prece- you might like to serve on the Supreme ator from Tennessee tore the hide off dent has been displaced by subsequent deci- Court someday? What are your aspirations the Democrats tonight. I was so dog- sions of the Supreme Court itself. at this point in your career? (b) If confirmed to the D.C. Circuit, can gone impressed, I want to compliment Response. During the pendency of my nom- my colleague. But he was not the only you assure us that you will faithfully apply ination, my wife and I occasionally have re- the Supreme Court’s ruling in Miranda? ceived from friends, acquaintances and well- one. I have had colleague after col- What about the Supreme Court’s decision in wishers copies of the types of newspaper arti- league stand up over here and tell the Bakke, which upheld the constitutionality of cles to which your question refers. I have truth, and I have had colleague after affirmative action programs in certain cir- seen some of those articles in our local news- colleague over there hide behind these cumstances? papers as well. Of course, any lawyer would Response. I can assure the Committee that phony issues they have raised. They be honored to be viewed as someone who I would faithfully apply the Miranda deci- are phony, and it is a double standard. some day might be considered for a position sion as I would any other Supreme Court I am ashamed of some of the argu- case that has not been superseded by the on the Supreme Court. However, beyond dis- ments that have been made over there, cussing with friends and acquaintances the Court. With respect to Bakke specifically, in absolutely ashamed, and every His- which there was no majority opinion by the contents of such press articles, I have not carefully considered the issue. As your ques- panic in America ought to be ashamed Court, there is arguably a division among that they would stoop to this level the courts of appeals on the question wheth- tion points out, it would be premature for er the various opinions issued by the indi- me to do so. My aspirations at this point are against a qualified nominee. But not vidual Justices who participated in the case to be confirmed as a United States Circuit just every Hispanic, every American set forth a rule of law that lower courts are Judge, and to discharge the duties of that who wants a great judiciary ought to required to follow. Compare Hopwood v. position to the best of my abilities. be outraged by what is happening. Texas, 78 F.3d 932, 944 (5th Cir. 1996), and (b) Has anyone from the White House or I have never seen this type of treat- the Justice Department ever discussed with Johnson v. Board of Regents of Univ. Geor- ment of anybody who has been nomi- gia, 263 F.3d 1234, 1247–50, 1261 (11th Cir. 2001), you the prospect of serving on the Supreme Court someday? If so, what did he or she tell nated to a circuit court of appeals. I with Smith v. University of Washington Law have seen some pretty shabby treat- Sch., 233 F.3d 1188, 1199–1200 (9th Cir. 2000), you? and Grutter v. Bollinger, 288 F.3d 732, 738–42 Response. No one from the White House or ment in my day for some of the people (6th Cir. 2002). As I stated during my appear- the Justice Department has discussed with who have been appointed by Repub- ance before the Committee, because that me the prospect of serving on the Supreme lican Presidents, but nobody has had to issue might come before me as judge, I do Court of the United States. endure the calumny and the downright not believe I should express any views on it. Mr. HATCH. Mr. President, I do not despicable comments that this His- (6) Let me ask you about two other con- want to read them all, but I will if I panic nominee, with all these qualifica- troversial positions that CCI has adopted in have to, and I think the distinguished the last few years. In United States v. tions in the world, has had to endure. Knights, CCI argued as an amicus party that Senator from Illinois ought to be fair. It is disgusting. warrantless, suspicionless searches of proba- These answers are very competent, I know there are people on the other tioners and parolees are constitutional. good answers by a very competent, side who have clear thinking who Likewise, in Department of Housing and well-qualified, terrific nominee for the ought to be disturbed by this, and I Urban Development v. Rucker, CCI defended Circuit Court of Appeals for the Dis- hope they will rise up in that caucus HUD’s so-called ‘‘One-Strike’’ policy, which trict of Columbia, the first Hispanic and say, we have had enough of this. permitted automatic eviction of an entire nominee in the history of this country. We should not be treating any Amer- household from public housing if any resi- I suggest you read your own answers to dent or guest was involved in a drug-related ican this way, let alone somebody like crime. your own questions, and I think you this Hispanic. (a) As a Director of CCI, did you partici- will be pretty impressed with him. Mr. REID. Mr. President, parliamen- pate in deliberations or play any other role (Mr. ENSIGN assumed the Chair.) tary inquiry. in the group’s decision to file an amicus brief Mr. DURBIN. Will the Senator yield The PRESIDING OFFICER. Does the in Knights or Rucker? for a question? Senator from Utah yield for a par- Response. I do not have any recollection of Mr. HATCH. Without losing my right liamentary inquiry? participating in any Board deliberations con- to the floor. cerning these two cases. I have made inquiry Mr. HATCH. Not at this point. I of the CCI staff, and I have been advised that Mr. DURBIN. Would the Senator con- would like to finish what I am saying. neither case came before the Board during cede it is virtually impossible to con- The PRESIDING OFFICER. The Sen- my tenure as a Board member. In the case of duct a debate in this format where ator from Utah has the floor. Rucker, it appears that CCI became involved every question I ask is questioned? Will Mr. REID. Parliamentary inquiry, in the litigation while the case was pending the Senator be willing to enter into a Mr. President. in the lower federal courts, and thus the unanimous consent agreement for the Mr. HATCH. Without losing my right issue whether to participate in the litigation next half hour, equally divide the time to the floor, I am happy to yield for a came before the Board before I became a Board member. In the case of Knights, I have between us, and then return the floor parliamentary inquiry. been advised that CCI’s position echoed the to the Senator from Utah so we can Mr. REID. Mr. President, I would ask view taken by CCI in a 1997 case that pre- have a real debate rather than a con- the Chair to determine if the word sented a similar issue. I am advised that be- trived attempt to ask questions and to ‘‘despicable’’ relating to the remarks cause the issue already had been addressed make rebuttals to statements made on that we have been making for 10 by the Board in connection with that 1997 the floor? days—— case, the Executive Committee of the Board Mr. HATCH. Of course I will not. Mr. HATCH. I withdraw the word. I (of which I was not a member) authorized the First, I have the floor and I am retain- filing of the brief without further input from ask unanimous consent that that word other Board members. ing the floor because I have questions be withdrawn. (b) Do you support the group’s position in from both sides. I am willing to take The PRESIDING OFFICER. Without either of these cases? Why or why not? questions from your side. I am not ig- objection, it is so ordered.

VerDate Dec 13 2002 04:18 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00039 Fmt 0624 Sfmt 0634 E:\CR\FM\A26FE6.060 S26PT2 S2808 CONGRESSIONAL RECORD — SENATE February 26, 2003 Mr. HATCH. Even though I think it President would allow that to happen Our senatorial committee Web site was probably the right word to use. because that is a direct intrusion into has had over 20,000 petitions in support The PRESIDING OFFICER. The Sen- the deliberative process of the Solic- of President Bush’s nomination of this ator from Utah has the floor. itor General’s Office, the attorney for outstanding hero. Is the Senator aware Mr. HATCH. I am happy to yield to the people. Nobody else has ever done that Miguel Estrada is the American the Senator from Virginia without los- that before. dream, the American dream being born ing my right to the floor. So we have to ask, why is it being these days—not in the days of Horatio Mr. ALLEN. I ask the Senator from done? And why would seven former So- Alger, but individually came to this Utah to yield for a question. licitors General, four of whom are country with his own hard work, stu- Mr. HATCH. Without losing my right Democrats, come out and say this can- diousness, and efforts, rose to lead the to the floor. not be done? Because they are right Law Review at Harvard, and other po- Mr. ALLEN. Mr. President, Senator and my colleagues on the other side are sitions in government. Is he aware that WARNER, who was presiding earlier, wrong. They know they are wrong. I support is building by the hour for knows the Senator from Utah is not think that was geared to try to create Miguel Estrada and also in opposition alone in the feelings he is expressing. a red herring issue so they could say, to these obstructionist tactics denying We see it in Virginia. In fact, we see it oh, my goodness, we do not know this man a fair up-or-down vote? all the way across the Nation, from the enough about him. Mr. HATCH. I have talked to a wide San Diego Tribune to all the papers in It took them 505 days to hold a hear- variety of people today and every day. Virginia that have taken a stand on ing. I presume in that 505 days, know- I have been on radio shows talking this issue. They state the Democrats ing how the Judiciary Committee about this. I have been on Hispanic are creating a new double standard works—and I really know how it radio shows, Latino radio shows. They that applies only to the nomination of works—every Democrat staffer as- are getting very angry. And they Miguel Estrada. Editorials are unani- signed to that was going through every should. mous in Virginia, whether it is the document this man has ever had any- I am calling upon all Democrats, Fredericksburg Free Lance-Star, the thing to do with. They scrutinized him Independents, and Republicans, as well, Richmond Times-Dispatch, even the like they scrutinize any criminal, and to come out of the woodwork and let Winchester Star out in the Shenandoah certainly he is not that. But they scru- our friends on the other side of the Valley. They all say, stop filibustering, tinized him. That is not a bad thing. I floor know this will not last. They re- take a stand and confirm this highly am not criticizing them for that. They sent this. There is a price to be paid for qualified nominee. The Winchester know everything about Miguel Estrada this type of obstruction, which is what Star in particular—and, by the way, that is knowable, and there is a lot. it is. This is unfair obstruction that we that is a newspaper that is owned by a The transcript of the hearing is that did not do to their nominees. former colleague of some of our Mem- big. Gee whiz, they act like there were I cannot understand for the life of me bers, Senator Harry Byrd, and they not any questions or answers. Are you why they are doing it to this Hispanic wrote in particular that the request for kidding? I think they think sometimes nominee with all these credentials, the Solicitor General memoranda is they can say these things and the with the gold standard highest rating outrageous and that to accede to it American people are just going to buy of the American Bar Association—their would compromise that body’s ability it. Well, we are going to make sure gold standard by their own definition. I to properly defend the Government’s they do not buy it because it is not do not understand it personally. I can- interests. true. That is what is killing me, is that not see one reason to do it. People are Is the Senator from Utah aware that my colleagues are saying things that getting very upset. I am getting thou- even editorial writers in this fine com- just simply are not true if one looks at sands of calls saying: Hang in there; do munity in the Shenandoah Valley of the RECORD. not let them get away with this or the Virginia found this Democratic request Never before have those three areas whole judiciary will be hurt; the whole so improper? of recommendations been asked for. judiciary will be hurt if this continues. Mr. HATCH. I was not aware of that. They cite Robert Bork. They cite Jus- If we have a filibuster that continues But I have to say, I served with Sen- tice Rehnquist. Those materials that like this, our colleagues on the other ator Harry Byrd. He is a marvelous were given were very limited. They side are risking the complete break- human being. He was an Independent were not anywhere near as sensitive as down of this process, the complete who voted mainly with the Democrats, these. They were not necessarily privi- breakdown of the judicial nominating but a very fair, honorable, decent man, leged, although I believe some of them process, something that we have never one of the finest people who ever were given just because they were very done on our side. served. I agree with the editorial 100 limited requests. These are broad re- Even when there have been cloture percent. quests of documents that literally votes where they were not true filibus- Mr. ALLEN. Will the Senator yield should never be given to any other ters but still cloture votes, their nomi- for another question? branch of government, if we want a nees got votes up and down. Mr. HATCH. Without losing my right functioning Solicitor General’s Office. If that is what they are about, I will to the floor. This is a game being played. It is a shut up and not say much more. That Mr. ALLEN. Could the Senator share double standard and very unfair to this is all we are saying. Just vote. All this with us what the historical practices nominee. I think my colleagues are complaining. Yesterday, I saw the mi- are as far as the deliberative memo- pointing that out in no uncertain nority leader come on the floor and say randa are concerned? Have they ever terms. we should be getting about all the im- been asked for in confirmation hear- Mr. ALLEN. Mr. President, will the portant business of the country. There ings? We are talking about this double Senator from Utah yield for a final is nothing more important in this standard. They are asking for some- question? country than having a fair judiciary. It thing, but what is the record? Has this Mr. HATCH. Without losing my right is the judiciary that has saved the Con- ever been asked for before? to the floor. stitution through all these years. This Mr. HATCH. No one before this nomi- Mr. ALLEN. I ask the Senator from is a very important nominee and a very nee, to my knowledge—and I believe I Utah if he saw the responses that all of important court. If we do not do what am accurate, and we have checked it— us were seeing, as this filibuster drags is right, everything else that is impor- no one has ever asked for appeal recon, this unfair consideration of Miguel tant might not be as important in the ommendations, certiorari rec- Estrada, whom Senator WARNER and I future because we will not have a Con- ommendations, and amicus curiae rec- introduced to the committee nearly a stitution to abide by and live by that ommendations. The reason they never year and a half after the President has kept this country free. This is very have is that it is—I will use the term— nominated him back in September—is important. despicable to ask for them because he aware as more and more people read To come from that side, when last they know they cannot be given; that about this and hear about it that he is year for the first time since the Budget no self-respecting Attorney General or getting more support? Act was enacted, they did not pass a

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00040 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.171 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2809 budget because they had to face what right to nominate judges and the Presi- judges, and that presidents usually choose we always did—it is tough to do it. dents usually choose nominees they be- nominees who they believe share their polit- They were not willing to put up with it lieve share their political views. If ical views. If Democrats have a substantive reason for opposing Estrada’s nomination, and do the tough things, nor did they Democrats have a substantive reason it’s past time to produce it. If not, they pass the majority of the appropriation for opposing Estrada’s nomination, it should let the Senate vote. bills. We had to wait until we became is past time to produce it. If not, they Mr. BUNNING. Will the Senator the majority, and we did it in an omni- should let the Senate vote. yield? bus after the first of the year, but only I ask unanimous consent the Win- Mr. HATCH. I yield without losing after delays caused by the other side. ston-Salem Journal article be printed my right to the floor. It was something I could hardly be- in the RECORD. Mr. BUNNING. Mr. President, I say lieve. I said if you want to get to the There being no objection, the mate- to the Senator from Utah, I have read other important things which we do, rial was ordered to be printed in the an editorial from the Riverside Press too, have a vote up and down like we RECORD, as follows: Enterprise in California which said in did for all of your nominees. Why treat [From the Winston-Salem Journal, Feb. 20, response to this fishing expedition on this man differently? Why obstruct 2003] the confidential memoranda that the this nominee? Why play the politics of CHOOSING JUDGES Democrats claim they want to review obstruction? Why be so unfair and why Democratic and Republican senators have Mr. Estrada’s legal views: One suspects have this double standard? taken turns for years behaving badly when it that is not the role the Democrats have The PRESIDING OFFICER. The Sen- comes to federal judicial nominees. Now in mind for their memoranda. They ator from Utah. Democrats have taken the unproductive bat- probably hope to expose Mr. Estrada’s Mr. HATCH. I am happy to yield to tles to a new low in their refusal to allow a conservative views, which no one the distinguished Senator from North vote on the nomination of Miguel Estrada to doubts he holds, in hopes of defeating Carolina, and then I will yield to— the U.S. Court of Appeals for the District of the nomination or at least scoring Mr. REID. I object. This is not proper Columbia. some political points. It’s true that Senate Republicans are Does the Senator agree that is the procedure. guilty of considerable hypocrisy. They bot- The PRESIDING OFFICER. The Sen- tled up many of President Clinton’s nomi- reason they are doing what they are ator from Utah has the floor and may nees in the Judiciary Committee and kept doing, trying to score political points? yield. even moderate nominees from having hear- Mr. HATCH. I don’t see how they Mr. HATCH. I yield to the distin- ings on the Senate floor. Then when Presi- score political points by filibustering guished Senator from North Carolina dent Bush began sending along nominees, the first Hispanic nominee ever nomi- for a question, without losing my right Republicans urged Democrats to abandon nated to the court of appeals for the to the floor. partisanship and vote for judicial nominees District of Columbia. That is a heck of on their merits, not their views. a way to score political points, unless Mrs. DOLE. Mr. President, in North But Democrats haven’t helped matters any Carolina the Kinston Free Press and it is with their really far left people by their determination to get revenge. The who seem to be in domination of that the Winston-Salem Journal have called result is more delays in filling court vacan- on Democrats to stop this filibuster. cies and more harm to the federal judicial party right now. They are pleased. People for the American Way, you Even a student writer for the Univer- system. have to really be on the left to be with sity of North Carolina school paper President Bush stoked the fire by nomi- them. In fact, their biggest support took the time to write about it and nating some controversial figures, most no- comes from Hollywood. Not that we criticize the filibuster. This obstruc- tably U.S. District Judge Charles Pickering of Mississippi for the 5th Circuit Court of Ap- should decry our Hollywood stars as tionism is being noticed and people are peals, while Democrats held their slim ma- experts on everything. I don’t think we angry. jority in the Senate. Pickering was a con- should always find them not to be. I On this question of the Solicitor Gen- troversial choice largely because of his am sure they are experts on some eral’s memos, the Winston-Salem Jour- record on race. Democrats voted down his things, but they seem to not fully un- nal wrote: ‘‘Congress should not be nomination in the Judiciary Committee. derstand what is going on here. asking for such material.’’ Their opposition to him was probably justi- The Press Enterprise, Riverside, CA, Does the Senator from Utah agree fied, but they should have allowed a vote. The entire Senate, not just the members of editorial says: The Democrats tactic with the journal that ‘‘if Democrats employed last week of filibustering the have a substantive reason for opposing the Judiciary Committee, are supposed to have the right to confirm a president’s judi- nomination of Miguel A. Estrada to be Estrada’s nomination, it is past time cial choices. the U.S. Court of Appeals for the Dis- to produce it. If not, they should let Now Republicans are back in control of the trict of Columbia Circuit is an any- the Senate vote.’’ Senate. Democrats’ refusal to allow a vote thing-goes strategy that ought to be Does the Senator agree? on Estrada’s nomination is worse than their abandoned. Mr. HATCH. I sure do agree with opposition to Pickering, because Estrada And then later: A first step would be that. There has not been one sub- does not have any blots on his record com- to not filibuster nominations like this stantive argument against this man parable to Pickering’s. His is an inspiring one. other than the phony arguments like success story of a Honduran immigrant who They say: ‘‘Parties need to deesca- became editor of the Harvard Law Review getting these privileged documents and a clerk for U.S. Supreme Court Justice late.’’ I agree with that. that everyone knows the administra- Anthony Kennedy. He was an assistant solic- A first step would be to not filibuster tion cannot get. There are two reasons itor general under Clinton. He’s been rated nominations like this one of a well- for that: They want to embarrass the ‘‘highly qualified’’ by the American Bar As- qualified nominees. He’s distinctly an administration by trying to make the sociation. American success story, having immi- administration look like they are try- Democrats have come up with a variety of grated from Honduras, gone to Colum- ing to withhold documents that they objections to Estrada, none of them con- bia and Harvard, and served as a clerk should give, when they should not give vincing. They question his youth and lack of to a Supreme Court Justice. judicial experience, but other appeals court them; and they are trying to defeat I ask unanimous consent the Press judges have been confirmed with similar Enterprise editorial be printed in the Miguel Estrada on what is really a red qualifications. They have demanded that he herring issue. RECORD. turn over confidential papers from his years There being no objection, the mate- That particular editorial of the Win- as solicitor general. Congress should not be ston-Salem Journal said: The truth is, asking for such material, as all living solici- rial was ordered to be printed in the the Democrats oppose Estrada because tors general have said in a letter. RECORD, as follows: they believe he is too conservative; an Democrats have said that Bush nominated [From the Press-Enterprise (Riverside, CA) unsavory implication is that they be- Estrada just because he is Hispanic. Feb. 18, 2003] The truth is that Democrats oppose lieve Hispanics should be liberal. The process of filling a vacancy in the fed- Estrada because they believe that he is too eral judiciary is a political one. The Found- I think the editorial got it right on conservative. An unsavory implication is ing Fathers placed it into a political area. the money. that they believe Hispanics should be liberal. The president nominates and the Senate con- Another truth is, as the Senator said: Another truth is that the Constitution firms—or doesn’t—but that doesn’t mean The Constitution gives Presidents the gives presidents the right to nominate anything goes.

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00041 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.174 S26PT2 S2810 CONGRESSIONAL RECORD — SENATE February 26, 2003 The Democrats’ tactic employed last week phoniest thing of all, because that State to Nevada: It is true, is it not, of filibustering the nomination of Miguel A. means virtually every Hispanic lawyer whether you agree or not, we have Estrada to the U.S. Court of Appeals for the doesn’t have a chance to be on the Fed- asked that the Justice Department, the District of Columbia Circuit is an anything- eral bench because they have no judi- administration, release the memos goes strategy that ought to be abandoned. However, with 49 Democratic senators, they cial experience, in spite of the fact that written by Miguel Estrada when he are likely to be able to muster the 41 votes five of the eight judges on the DC Cir- worked for the Solicitor’s Office? You needed to maintain a filibuster. cuit Court of Appeals had no judicial would agree with that? What makes the filibuster inappropriate is experience before they went on the Mr. HATCH. I agree Senator LEAHY that it is rarely used to block a judicial court. sent a letter to the Department of Jus- nominee, and Mr. Estrada hardly qualifies as Why the double standard? Why is it tice asking for these privileged matters a target for such a big gun. Yes, he was not we are requiring this of Miguel Estrada that have never been given up before, completely open with members of the Judici- but not of them? Why is it when Repub- and will not be given up, and should ary Committee when he appeared, and Demo- cratic senators are frustrated by the White licans ran the committee we didn’t not be given up; knowing, I think, deep House’s refusal to release to them memo- have that difficulty? We never raised down, that they would not be given up. randa he wrote as solicitor general. that phony issue. Why is it raised now? Mr. REID. The Senator, of course, is But in the best of times, such a request Mr. REID. Will the Senator yield for aware—— would be out of line, and these are closer to a question? Mr. HATCH. I think it is a political the worst than to the best for the nomina- Mr. SESSIONS. Mr. President, will game, if you want to know. tion process. If the memoranda were to be the Senator yield for a question? Mr. REID. The Senator has stated in used as an honest beginning to a discussion Mr. HATCH. Without losing my right answer to the question of the distin- of Mr. Estrada’s legal views, there might be some justification for releasing the docu- to the floor. guished Senator from Alabama that ments that would normally be considered Mr. SESSIONS. Chairman HATCH, I Miguel Estrada has no ability to have privileged. know you chaired the committee and these released, is that true? One suspects that’s not the role the Demo- you conducted many hearings, both in Mr. HATCH. That is correct. He crats have in mind for the memoranda. They your recent chairmanship and prior to doesn’t control the Justice Depart- probably hope to expose Mr. Estrada’s con- that when you were chairman of the ment. He is no longer an employee of servative views, which no one doubts he committee. But isn’t it a fact that the the Justice Department. Nor should he holds, in hopes of defeating the nomination hearing of Miguel Estrada was con- ask the Justice Department for these or at least scoring some political points. The two parties have been allowing their ducted when the Democrats were in records. political battles over judicial nominees to control of the Judiciary Committee, Mr. REID. I further ask the Senator, escalate since Robert H. Bork’s nomination Senator LEAHY was the chairman, and it is true, however, that the adminis- to the U.S. Supreme Court in 1987. One sus- they held the committee hearing as tration, whether through the counsel’s pects that Republicans, if they were in the long as they chose and could have held office of the President, the President minority, would have done the same with the even longer hearings had they had any himself, or the Attorney General, could Estrada nomination. The parties need to de- further questions to ask? release those materials? escalate. A first step would be to not filibuster Mr. HATCH. It is a fact that they Mr. HATCH. No, it isn’t true. I don’t nominations like this one of a well-qualified were in control. They chaired the hear- believe the Attorney General could. I nominee. He’s distinctly an American suc- ings. Senator SCHUMER chaired the don’t think any responsible Attorney cess story, having immigrated from Hon- hearing at the direction of Chairman General could release those. If you are duras, gone to Columbia and Harvard and LEAHY, the chairman. It was one of the saying is it theoretically possible for served as a clerk to a Supreme Court justice. longest hearings for a Circuit Court of somebody to disobey the law, the rules, Democrats, or Republicans when they are Appeals nominee I can recall. They to not live up to the privileged and in the minority, may fairly make things confidential information, to ignore tough on a nominee in committee or on the asked every question they wanted to. Senate floor, in order to fashion nominations He answered them, and he answered every aspect of the executive branch of more to their liking. But the process has to them fairly and well, as I have been Government—I suppose somebody stop at some point. It’s one of advice and showing here tonight, and as the dis- could say yes. But I can’t. I don’t think consent, not advise and confront. tinguished Junior Senator from Ten- he would have—I don’t think the At- Mr. SESSIONS. Will the Senator nessee, I think, showed in detail earlier torney General has that privilege; no, I yield? in the evening. I commend him and ask don’t. Mr. HATCH. Without losing my right everybody to read that. Mr. REID. Let me ask the Senator to the floor. In all honesty, they controlled the this question. Are you saying on the Mr. SESSIONS. The Senator, as whole doggone process. They even said five occasions we know of, there could chairman of the Judiciary Committee, on the floor, even during this debate, be more, when the Attorney General disclosed the Department of Justice that the hearing was fair—because released memoranda from the Solici- has declined to produce these internal they conducted it. If it was fair, that tor’s Office relating to Rehnquist, memoranda. I ask the Senator this: Is means they covered all the questions Bork, Civiletti, and others, that they it a fact those memoranda belong to they wanted answered. were violating the law when they re- the U.S. Department of Justice and Then we have these phony arguments leased those documents? under the attorney-client rule they are that he didn’t answer the question. Mr. HATCH. They were completely not Miguel Estrada’s and he has no Read the remarks of the distinguished different documents. They had nothing ability whatsoever to produce these Senator from Tennessee, Senator AL- to do with recommendations for ap- documents? EXANDER, this evening and read the peals, certiorari petitions, or amicus Mr. HATCH. I certainly agree. I have transcript. Read the answers to these curiae matters. No. They have never, heard the distinguished Senator from written questions. I only read a few of ever been asked for before, to my Illinois say that he should have pro- them because it more than blew away knowledge, and they have never, ever duced these documents. He has no right those phony arguments. Why the dou- been given, nor would they. to produce them. He personally said I ble standard? Why the obstruction? By the way, there have been some am proud of my work. If they can give Why are we going through this? limited documents given by the Justice it up, I would be proud to have it given I said I would yield to my friend and Department in some nomination mat- up. But he knows they cannot. I believe colleague from Nevada, without losing ters, none of them related to what were the distinguished Senator from Illinois my right to the floor. requested by the Senate Democrats in knows they cannot give up these docu- Mr. REID. I would say to my friend, this matter. And there are only a cou- ments. Everybody knows that. That is I would respectfully submit, you don’t ple of cases where the Attorney Gen- why it is such a phony red herring need to say ‘‘without losing your right eral did allow that. issue, but it is the only one they really to the floor.’’ You have the floor. You The other cases, they appeared to have. don’t have to say that. have been leaked by friends of Demo- They started off with he has not had Anyway, I ask my distinguished crats at the Justice Department. So any judicial experience. That is the friend from Utah, the neighboring they were not given up by the Justice

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00042 Fmt 0624 Sfmt 0634 E:\CR\FM\A26FE6.055 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2811 Department. We have more than made ing expedition, even if we could give the most important work done in that that case throughout this debate. them. I don’t think there is a good ex- office. There is no question about it. And it is planation as to why they want these Let me read from the letter from the just another phony argument. I do not documents. I think that is why every- Department of Justice about what it blame my colleague from Nevada for one who looks at this in fairness views has to say about this in response to not knowing that. But I think it is it as nothing but a fishing expedition, this type of allegation by the Demo- time to learn it. which is exactly what it is. crats. Mr. REID. Could I ask the Senator We couldn’t get Miguel Estrada any Of the seven cited nominees— another question? other way, so why don’t we go fish Remember. We hear all about all of Mr. HATCH. Sure. through all these documents and find these people who got Department of Mr. REID. I don’t mind the Senator just something to pin our antagonism Justice materials. Let us look at the commenting on my intelligence. towards him on, so we do not look so facts. I hope my colleague will listen to Mr. HATCH. I think the Senator is doggone bad? Frankly, I think the ar- some. I hope my other colleagues will very intelligent. guments on the other side look ter- listen because we have had these false Mr. REID. Let me just complete my rible. arguments made day in and day out. So question. The Senator has knowledge Mr. GREGG. Point of order. I am going to put them to bed right that on occasions there have been Mr. REID. Will the Senator yield for now. memos released from the Solicitor a final question? General’s Office relating to matters be- Mr. HATCH. Let me yield for one Of the seven cited nominees, the hearings of only two, Judge Bork and Judge fore the Senate. I ask the question of final question by the distinguished mi- Easterbrook, involved documents from their the Senator from Utah, does that mean nority whip, and then I will yield to service in the Office of the Solicitor General. on those occasions when they were re- someone on this side. Senator SCHUMER placed into Mr. Estrada’s leased, a law was violated? The PRESIDING OFFICER. The Sen- hearing record a single, two-page amicus rec- Mr. HATCH. I am sorry, I missed ator from Nevada has the floor. ommendation memorandum that Judge that. Mr. REID. Mr. President, I say to the Easterbrook authorized as an Assistant to Mr. REID. We have established in the distinguished Senator from Utah—— the Solicitor General. The official record of dialog between the Senator from Utah Mr. HATCH. I want to do this in fair- Judge Easterbrook’s confirmation hearing and the Senator from Nevada that ness. contains no references to this document and based on a comprehensive review of the de- there have been occasions where the Mr. REID. Bork, Civiletti, Rehnquist, partment’s files we do not believe that the Solicitor’s memos have been given to and two others, none of whom are His- department authorized its release in connec- the Senate. The Senator says they panics—and I think a person’s eth- tion with Judge Easterbrook’s nomination. have been on rare occasions, two occa- nicity has nothing to do with the point Senator SCHUMER’s possession of this memo- sions, I think the Senator from Utah we have made. The point we have made randum does not suggest that the depart- said. We say five. But on those occa- is on other occasions, memos from the ment waived applicable privileges and au- sions, does the Senator believe that the Solicitor General’s Office have been thorized its disclosure in connection with law was violated, and those people who made public in this body. Judge Easterbrook’s or any other nomination. released those memos should have been Mr. HATCH. Can I correct the Sen- prosecuted in some way? ator? They were not Solicitor General In other words, someone leaked that Mr. HATCH. They were not the same memoranda. They had nothing from document illegally. And my colleagues papers, they were not privileged, con- the Solicitor’s Office. have an illegal document leaked. At fidential documents of the order of Mr. REID. I would respectfully sub- least that seems to be the glaring thing magnitude that these are. mit we have in the RECORD, admitted that happened here. Let me add, the Clinton nominee— yesterday, letters exchanged with Sen- The Justice Department goes on to this is a Caucasian, by the way, not a ator BIDEN and the Solicitor General at say: Hispanic. The Clinton nominee, Wil- that time, Bolton, who was Solicitor The hearing record of Judge Bork’s nomi- liam Bryce, who was confirmed to the General, that laid out in some detail nation to the Supreme Court demonstrates Federal circuit in 1994, was an assist- the materials that were obtained, and that the committee received access to a lim- ant Solicitor General, just like Miguel in addition to that we have other mate- ited number of documents related to three specific subjects of heightened interest to Estrada. But nobody asked for his rials obtained from the Solicitor Gen- the committee, two of which were related to memoranda from his time in the Solic- eral’s Office that were memoranda. Judge Bork’s involvement in Watergate-re- itor General’s Office. He is one of eight They are either legal or they are not. lated issues and triggered specific concerns former Solicitor General Office attor- I have to ask the Senator this ques- by the committee. neys who have been confirmed at cir- tion: If these memos were relevant—I We have not had specific concerns cuit courts without disclosure of their repeat that they were. It is in the here. All we have is a fishing expedi- memoranda. RECORD. We have dates on the letters tion. These are with specific concerns. Why the double standard? Why do we of when they were exchanged between Let us go further with what the Jus- do this to the only Hispanic who has the Solicitors General and Senator tice Department says: ever been nominated for the Circuit BIDEN, who was chairman of the com- The vast majority of memoranda authored Court of Appeals? And why are the mittee at that time. I respectfully sub- or received by Judge Bork when he served as Democrats doing this to this Hispanic mit to my friend they are not legal. Solicitor General were neither sought nor man? Why are they being so unfair? We The decision made by the administra- produced. And the limited category of docu- never did it. We wouldn’t dare do it. tion is that they are not going to re- ments that were produced for the committee The fact of the matter is, I don’t think lease these documents. did not reveal the internal deliberative rec- anybody who understands the nature of Mr. HATCH. Does the Senator have a ommendations or analysis of assistants to the Solicitor General’s Office, and ap- question for me? the Solicitor General regarding appeal, cer- Mr. REID. Was not a decision made tiorari, or amicus recommendations in pend- parently some on your side don’t seem ing cases. The remaining five nominations to understand that—— by this administration that they are cited at the hearings similarly do not justify Mr. REID. If my friend will yield for not going to release these documents the disclosure of deliberative material au- one final question? even though they have in the past? thored by Mr. Estrada. None of the limited Mr. HATCH. Let me just finish my Mr. HATCH. Let me answer in this documents disclosed in the hearings for remarks and I will go to your final way. Nobody has previously asked for these five nominations involved deliberative question. appeal recommendations in the Solic- memoranda from the Office of Solicitor Gen- Why the double standard? Is there a itor General’s Office—some of the most eral. The committee, with respect to these specific allegation that my colleagues important work that is done; certiorari five nominations, requested specific documents primarily related to allegations of are concerned about for which they recommendations in the Solicitor Gen- miscondcut or malfeasance identified by the want to review these highly confiden- eral’s Office; some of the most impor- committee. Moreover, as noted before with tial documents? If there is, I would like tant work done by that office; or ami- respect to the nomination of Judge Trott, to know what it is. I don’t want a fish- cus curiae recommendations, some of the committee requested documents wholly

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00043 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.178 S26PT2 S2812 CONGRESSIONAL RECORD — SENATE February 26, 2003 unrelated to Judge Trott’s service at the de- Democratic leadership doesn’t like conservative. That, and the fact that the partment. what they have so far they can still D.C. appeals court is widely viewed as a step- Again, a vast majority of deliberative vote against Mr. Estrada? ping stone to the Supreme Court, makes Mr. memoranda authored or received by Mr. HATCH. I have been an attorney Estrada public enemy No. 1 to Senate Demo- crats. these nominees were never sought nor for a long, long time. I know a fishing That a majority of Democrats would op- received by the committee. expedition when I see one. I have been pose putting Mr. Estrada on the bench is not In sum, the existence of a few isolated ex- a Senator for 27 years. I have seen fish- surprising. That they would resort to un- amples where the executive branch on occa- ing expeditions before but never one as precedented tactics to block a Senate vote to sion called for very specific information does blatantly as this one, or exploiting a confirm him, however, is appalling overkill not in any way alter the fundamental and red herring issue like they are trying and partisan politics at its worst. long-standing principle that memoranda to do on this one. Democrats have threatened to mount a filibuster to prevent a floor vote they know from the Office of the Solicitor General and I compliment the Senator. Let me deliberative Department of Justice materials they would lose—all 51 Republicans are be- more broadly must remain protected in the read from the editorial in the Savan- lieved to support Mr. Estrada’s nomination, confirmation context so as to maintain the nah Morning News just a couple of as do a handful of Democrats (including integrity of the executive branch’s decision- paragraphs. Georgia’s Zell Miller). But the number of making process. The Democrats are upset because they supporters apparently falls just short of the In conclusion, we emphasis that the De- haven’t found a ‘‘gotcha’’ moment in Mr. 60 needed to end debate and force a vote, so partment of Justice appreciates and pro- Estrada’s testimony or scholarship that Minority Leader Tom Daschle is prepared to foundly respects the Judiciary Committee’s would embarrass or contradict him, and thus talk the nomination to death. legitimate need to evaluate Mr. Estrada’s provide them ammunition to defeat his nom- A filibuster has never been deployed qualification for the Federal bench. We again ination. against a lower-court nominee in the history suggest, however, that the information cur- Then they went on to quote saying of the Senate. It’s akin to waging nuclear rently available is more than adequate to war over Bosnia. So why is one needed now allow the committee to determine whether what the Senator from Georgia quoted. to save the republic from Miguel Estrada? Mr. Estrada is qualified to be a Federal They want to continue trolling further. Democrats argue that he is a ‘‘stealth’’ judge. This is trolling like you have never candidate of whom they know too little I might just add again that this is seen before. about his legal views. For example, they Then the next paragraph says: complain that during Judiciary Committee more than adequate. This is more than hearings on his nomination that he failed to has been asked of any nominee in his- The problem is, they’ve already had ample answer questions about which Supreme tory. Why the obstruction? Why the opportunities. If they weren’t happy with his Court cases he disagreed with. unfairness? Why are we so unfair to answers at his hearing last September, But it would be improper for a potential this Hispanic man who has all these Democrats could have demanded another judge on an appeals court to bias himself hearing. They did not. Nor did they take full qualifications that normally would against cases he might hear. The lower court advantage of normal procedure and submit is obligated to apply the legal precedents set blow people’s minds—and do blow peo- written follow-up questions to Mr. Estrada ple’s minds he is so qualified. Yet here by the Supreme Court, whether the jurists after the hearing—only two of the 10 com- agree or disagree with them. An appeals he is being filibustered by my col- mittee Democrats did so. judge who issues a ruling that reflects his leagues. Because they lack the votes to defeat the stated bias could be accused of conflict of in- I call on my colleagues of goodwill to nomination on the Senate floor they have re- terest. Judges must follow the law, not their quit playing games and start doing sorted to manipulating the process by any hearts. what is right. means necessary—not, mind you, because Democrats also are demanding that the Mr. CHAMBLISS. Mr. President, will they have evidence to oppose him, but be- Bush administration provide confidential pa- cause they don’t. the Senator yield? pers Mr. Estrada wrote when he worked in Mr. HATCH. I yield to the distin- Boy, I agree with that editorial. the U.S. Solicitor General’s Office. The Jus- tice Department has refused on the grounds guished Senator from Georgia. Then they conclude by saying: Mr. Estrada’s nomination deserves an up- that those documents are ‘‘highly privi- Mr. CHAMBLISS. Mr. President, leged.’’ there have been several editorials writ- or-down vote in the Senate and not be held hostage by bipartisan parliamentary games. Like the filibuster, that, too, is a Demo- ten by newspapers in my State that are cratic tactic that is virtually unprecedented. very critical of the Democrats for the I tell you, that sentence: Because Indeed, the Bush administration’s position is obstructionist attitude and filibus- they lack the votes to defeat the nomi- supported in a letter signed by all seven liv- tering of this particular nomination of nation on the Senate floor, they have ing former solicitors general, who served in Miguel Estrada. One of those editorials resorted to manipulating the process both Republican and Democratic administrations. was written by the Atlanta Constitu- by any means necessary, not, mind you, because they have evidence to op- The Democrats are upset because they tion, which is extremely critical of the haven’t found a ‘‘gotcha’’ moment in Mr. process the Democrats are going pose him, but because they don’t. Estrada’s testimony or scholarship that through tonight as they have for the This editorial writer and these writ- would embarrass or contradict him, and thus last 3 weeks. The Atlanta Constitution ers get it accurately. They have not provide them ammunition to defeat his nom- is one of the most liberal papers in the laid a glove on Miguel Estrada. Here we ination. They want to continue trolling fur- United States of America. are in the third week of a filibuster ther and further from shore in a desperate Mr. HATCH. That has been my expe- against the only Hispanic nominee in attempt to find something, anything they the history of the country nominated can hang an accusation on. Perhaps they rience. could subpoena the list of videotapes Mr. Mr. CHAMBLISS. With respect to to the Circuit Court of Appeals for the District of Columbia. Estrada rented, as they did with Supreme this issue of the memoranda that they Court nominee Robert Bork. have requested be produced by Mr. I ask unanimous consent that the Sa- The problem is, they’ve already had ample Estrada or by the Justice Department, vannah Now editorial be printed in the opportunities. If they weren’t happy with his I note that the Savannah Morning RECORD. answers at his hearing last September, News in Savannah, GA, has written There being no objection, the mate- Democrats could have demanded another that the ‘‘request is unprecedented’’— rial was ordered to be printed in the hearing. They did not. Nor did they take full RECORD, as follows: advantage of normal procedure and submit that ‘‘the Democratic leadership wants written follow-up questions to Mr. Estrada [From the Savannah Morning News, Feb. 13, to continue trolling further and further after the hearing (only two of the 10 com- 2003] from shore in a desperate attempt to mittee Democrats did so). find something—anything—they can DEMOCRATS HOLD HOSTAGE Because they lack the votes to defeat the hang an accusation on.’’ Miguel Estrada is President Bush’s nomi- nomination on the Senate floor they have re- They even write that perhaps they nee to serve on the federal appeals court for sorted to manipulating the process by any could subpoena a list of videotapes that the District of Columbia, regarded as the means necessary—not, mind you, because Mr. Estrada rented as they did for Su- second-highest court in the land behind the they have evidence to oppose him, but be- U.S. Supreme Court. cause they don’t. preme Court nominee Robert Bork. He’s young (41), a Hispanic immigrant suc- Is that really how Democrats want to go Does the Senator from Utah agree cess story (he was born and raised in Hon- on record opposing the first Hispanic Amer- that this is a true fishing expedition as duras before moving to the United States at ican nominated to the influential D.C. court he has previously alluded, and if the age 17 and learning English) and generally of appeals?

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00044 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.182 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2813 Mr. Estrada’s nomination deserves an up- United States.... The implication being to the Office of the Solicitor Gen- or-down vote in the Senate, and not be held that it does not take two-thirds to appoint a eral—— hostage by partisan parliamentary games. judge but, rather, a majority. Mr. HATCH. The fishing expedition Mr. DURBIN. Will the Senator yield? Is that your interpretation of the you are asking for? Mr. ALLARD. Will the Senator yield Constitution? And what is the implica- Mr. DURBIN. Pardon me? for a question? tion of moving to a 60-vote majority in Mr. HATCH. You mean, the fishing Mr. HATCH. Without losing my right order to appoint a judge? expedition you want to have? to the floor, I yield to the Senator from Mr. HATCH. The Senator is abso- Mr. DURBIN. The Senator may char- Colorado. lutely right. In the very same part of acterize it as he chooses. Mr. ALLARD. Mr. President, is the the Constitution, it mentions that Mr. HATCH. I do characterize it as Senator aware that the two largest there is a supermajority vote required such. Mr. DURBIN. Have you said the newspapers in Colorado—the Rocky for treaties. By implication, the Sen- memoranda we are seeking in order to Mountain News and the Denver Post— ator is correct, advice and consent understand the jurisprudential philos- have both called for the Democrat means a vote up and down on the Sen- ophy of this nominee has not been pro- leadership not to filibuster this judi- ate floor. It certainly does not mean we duced except in those instances where cial nominee? should have to have a supermajority it has been leaked or other instances Mr. HATCH. I am aware. vote of 60, which is what the Demo- where we have questions related to eth- Mr. ALLARD. Is the Senator aware crats are insisting upon in this body, in ical considerations? order to confirm a circuit court of ap- that the Denver Post, which endorsed And is the Senator not aware of the peals nominee. Al Gore in the 2000 Presidential elec- fact that I am holding in my hand a And why is the reason for that? Be- tion, wrote: ‘‘To use a filibuster is to memorandum from Frank Easterbrook cause the Constitution also talks in impose a new requirement that judges to the Solicitor General relative to the terms of the coequal branches of Gov- be confirmed by a supermajority’’? Bork nomination, produced for the ernment: the executive, the legislative, And is the Senator aware that the Senate Judiciary Committee, relating and the judiciary. All are supposed to Rocky Mountain News wrote in an edi- not to an ethical case but rather to a be coequal, have coequal powers. If we torial: ‘‘Keeping others from voting civil rights case, and that it is in a cat- require—because the Democrats will their conscience on this particular egory that the Senator from Utah has not end the filibuster against Miguel matter is simply out of line’’? said, categorically, this evening, has Estrada—60 votes before we can con- Mr. HATCH. I am aware of those edi- never been produced; namely, a rec- firm any judge to a position in the ju- torials. And I am also aware, and I ommendation for an amicus brief par- diciary, that diminishes the coequal want my colleagues to know, that ticipation? there are more than 50 editorials power and status of the President. It Is the Senator from Utah aware that throughout the country expressing the also diminishes the coequal power and the very brief and memorandum which same matters. status of the judiciary, while increas- he said has never been produced was, in I hold in my hand this binder of edi- ing and augmenting the power of the fact, produced to the Senate Judiciary torials in favor of Miguel Estrada—just legislative branch. Committee during the Bork nomina- That is unconstitutional. And my editorial after editorial after editorial, tion? And I hold a copy in my hand. saying how unfair this process really colleagues are acting in a highly un- Mr. HATCH. I do not think the Sen- is, how unfair my colleagues on the constitutional manner. And they are ator knows that came from the Bork other side have been, how they have ig- creating a constitutional crisis by re- matter. I don’t think you can make nored principles of just plain common fusing to end the filibuster and the ob- that claim. decency, how they are obstructing—obstructive tactics in this very important Mr. DURBIN. That is exactly where structing, in an unfair way—of course, area of Constitutional law. And I have it came from. obstruction, I guess, is always unfair— to tell you, there is a way around this, Mr. HATCH. Let me answer the ques- but how they have been obstructing but I prefer that they end these ob- tion, and let me address some of the this nominee. Why? Because, as the structive tactics and that we, once and specific examples my Democratic col- editorial writers say, they do not have for all, decide that nobody is going to leagues have represented as precedent anything on him. filibuster judicial nominees because for their demand. Mr. ALLARD. I thank the Senator the President does deserve, through his One, of course, is Frank Easterbrook, from Utah for yielding. nominating power, a vote up and who is a judge on the Seventh Circuit Mr. GREGG. I ask if the Senator down—a vote up and down—on these Court of Appeals, which the Senator is from Utah will yield for a question. judicial nominees. raising. The Democrats’ mere posses- Mr. HATCH. Without losing my right That is as far as I am going to go this sion of a single memorandum—a 2-page to the floor. evening. But I have to say that my col- amicus recommendation that Mr. Mr. GREGG. I think the point that leagues are asking for the world to see Easterbrook wrote as an assistant to has been made by the Senator from that the system is broken. If they the Solicitor General—does not suggest Colorado is an appropriate one, citing break the system, then no holds that the Justice Department waived the editorial from the Denver Post, I barred, if they break the system, we any privileges or authorized it to be guess it was. And it raised a constitu- have to uphold the Constitution on our disclosed. It did not. tional issue which is an issue that has side, and we are going to do it. The official record of the not been discussed here very much. Now, all I can say is this. We have a Easterbrook confirmation hearing con- Knowing that the Senator is one of clear majority of Senators who want to tains no references to this document. the leading authorities in the Senate, see Miguel Estrada confirmed. And a There is nothing in the hearing that and really in the Nation, on the issue minority is obstructing—obstructing— shows a reference to it, at least as far of constitutional law, I would be inter- O-B-S-T-R-U-C-T-I-N-G—did I spell it as I know. And I am quite sure about ested in his interpretation of article II, right?—obstructing him from being a that. section 2, of the Constitution, which judge, and obstructing us from exer- After comprehensively reviewing its says—and I will simply read it— cising our advice and consent powers files, the Justice Department con- He— the Constitution provides. cluded that it never authorized the Mr. DURBIN. Will the Senator yield document’s release. Referring to the President— for a question? Now, last fall, I sent a letter to Sen- shall have Power, by and with the Advice Mr. HATCH. I am delighted to yield ator SCHUMER, and then to Senator and Consent of the Senate, to make Treaties, to my colleague from Illinois. LEAHY, specifically asking for informa- provided two-thirds of the Senators present Mr. DURBIN. I would like to ask the tion about how the Democrats obtained concur; and he shall nominate, and by and with the Advice and Consent of the Senate, Senator the following question: Has he this memorandum that the Senator has shall appoint Ambassadors, other public not stated during the course of the day been waving here, with impunity, by Ministers and Consuls, Judges of the Su- that the memoranda which we are the way. To this day, I have not re- preme Court, and all other Officers of the seeking, namely, memoranda prepared ceived a response to my question.

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00045 Fmt 0624 Sfmt 0634 E:\CR\FM\A26FE6.064 S26PT2 S2814 CONGRESSIONAL RECORD — SENATE February 26, 2003 There is probably a very good reason Reynolds previously had served as an going through everything they possibly for it because he should not have that assistant to the Solicitor General, the can—Supreme Court briefs, all of his memorandum. I do not know how they Senate never suggested—never—that arguments, briefs in other cases, all got it. his appeal, certiorari, or amicus rec- kinds of other matters. They have had Mr. DURBIN. Will the Senator yield ommendations should be divulged. a full solid day of testimony and they for a question? Never. asked written questions. Now they are Mr. HATCH. Not yet. Let’s just be honest here. With re- complaining they don’t know enough. That single document provides no gard to specific allegations, if the Sen- The conservative party of New York, precedent for the Democrats’ sweeping ators have them, bring them out, in- as I understand it, wrote a letter to request for every document Mr. stead of asking for a fishing expedition Senator SCHUMER and said: We don’t Estrada ever prepared on appeal rec- into what could be thousands of docu- know enough about you. How about ommendations, certiorari rec- ments that are privileged down at the giving us your internal documents with ommendations, and amicus rec- Department of Justice in the Solicitor regard to these matters? Maybe he will ommendations. General’s Office. No self-respecting At- do that. I don’t know. In all honesty, Now, let me take a clear look at this. torney General or President of the no self-respecting attorney who under- The Justice Department has no record; United States is going to give you stands this—and this includes the So- the hearing has no record. How is it those documents. How you got some of licitor General and the Attorney Gen- that the Democrats have that? I can these documents, I cannot say. I am eral—would give up his work product guarantee you they don’t have it le- not suggesting that my colleagues have that he or she has been doing for cli- gally—at least I think I can guarantee done wrong in getting these docu- ents. It would be unethical to do so. In that. That is the reason why I have not ments, but somebody gave them to this particular case, according to seven received a reasonable response. I them who didn’t have the authoriza- former Solicitors General—the only haven’t received any response. I would tion to do it. The Justice Department living ones to my knowledge—it would think if they had it legally, they would did not authorize the giving of what- be a travesty to do it. It would under- give me a response on it. ever documents you have. I don’t care mine the very work of the Solicitor Mr. DURBIN. Will the Senator yield? that you have them. It doesn’t mean General’s Office. Four of those were Mr. HATCH. I asked for it and, as anything to me, except that it is phony Democrats, three of whom I think he ranking member of the committee, I in my eyes to use them and try to say served. was entitled to it. They ignored my re- we ought to have this sweeping demand So these arguments are really red quest. for maybe thousands of documents that herring, phony arguments. I don’t The Senator made a couple other re- we don’t know what is in there, but we know how they have the brazenness to marks I find particularly offensive. I want to be able to fish through them keep bringing them up. will get into those other remarks later. and see if we can find something Mr. CORNYN. If the Senator will The Senator had another question. against Mr. Estrada. yield for a further question, in my Mr. DURBIN. Will the Senator yield I hope one of these days my Demo- State of Texas, as in other States that for a further question? cratic colleagues will wake up and re- we have heard from here tonight, there Mr. HATCH. Yes, without losing my alize how ridiculous they look on these is overwhelming editorial support for right to the floor. arguments. These are terrible argu- Mr. Estrada’s nomination. Six separate Mr. DURBIN. The Senator is taking ments, phony arguments, if you will. newspapers have called on the Demo- exception to this memorandum that Mr. CORNYN. Will the Senator yield cratic leadership to stop this filibuster, the Solicitor General produced during for a question? including papers from Waco, El Paso, the Bork nomination relating to an Mr. HATCH. Yes, without losing my Dallas, Austin, Fort Worth, Victoria, amicus. I hold in my hand a copy of the right to the floor. and I believe there is another one I saw transcript of the hearings of the Com- Mr. CORNYN. The Senator from Utah from Tyler in east Texas. mittee on the Judiciary relating to the is well versed in the law of attorney- Yet we hear that Democrats come to nomination of William Bradford Rey- client privilege. I believe that earlier I the floor and say, in effect, that no- nolds to be Associate Attorney General asked—and I am asking for clarifica- body cares about this issue. And in the of the United States. And written with- tion now—whether even if Mr. Estrada case of the senior Senator from New in the committee hearings, you will wanted to produce the memos that the York, who earlier today indicated that find on page 983 a copy of a memo- Democratic minority wishes to receive, Democrats really should not pay much randum to the Solicitor General, sent whether he has custody of those, or attention to this, or worry about pay- by Mr. Reynolds relating to the rec- whether it is the client’s privilege to ing a political price because no one is ommendation on an amicus brief. I ask waive or not to waive, and the client— paying attention—well, I would like to the Senator from Utah, would he like in this case, the Department of Jus- tell you that is not true in Texas. to at least modify his earlier statement tice—decided not to waive any claim to Let me ask the Senator from Utah, that the Department of Justice has the privilege they may have on these would he agree with me that whether never produced a memorandum to the documents. or not people are paying attention, is Solicitor General relating to amicus Mr. HATCH. Mr. Estrada said he is that the standard we have come to ex- briefs in light of the fact that it is part proud of the work he did. He would per- pect from this institution and Members of the official transcript of his com- sonally have no real problem. He also of the Senate when it comes to doing mittee? recognizes there is a good reason not to the right thing and discharging our Mr. HATCH. Let me answer that give those documents based upon law constitutional responsibilities, when it question. The Senate sought and re- and confidentiality and upon client-at- comes to advice and consent for judi- ceived materials in the course of pur- torney work product. cial nominees? suing specific allegations that Mr. Rey- This is the attorney for the American Mr. HATCH. That is an excellent nolds, while Assistant Attorney Gen- people. If we start giving his internal question. There is no question that eral for Civil Rights failed to enforce documents out, he cannot function—he people are paying attention to this. I the Voting Rights Act and Civil Rights or she, whoever it is. So, yes, I am have been overwhelmed by Hispanic Act—as with Mr. Civiletti, by the way. aware of that. concerns, just today, all over the coun- The Department’s disclosure was lim- I was interested that over the last try. They are starting to awaken to ited to specific cases of alleged mis- weekend, the Senator from New York, this. One of the Hispanic nominees— conduct—limited. who has been very vocal in his opposi- most all of them will say he should not The sweeping request by the Demo- tion to Mr. Estrada—the conservative be on the court just because he is His- crats in this matter is completely dif- party of New York said they didn’t panic. We would not support him just ferent. There have been no allegations know enough about him—the same ar- for that, but he is qualified. He made that Mr. Estrada engaged in any im- guments the Democrats are using—by the grade. He ought to be treated like proper behavior or failed to discharge the way, this is almost 2 years they everybody else. He will make a great his duties. Significantly, although Mr. have been examining Mr. Estrada, judge. These are Democrats speaking,

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00046 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.187 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2815 and Independents, and Republicans servative, unconventional and unapologetic. why Estrada, who worked in the Clinton ad- speaking. But editorial writers all over That when he had the chance to hand them ministration, is now deemed unworthy to sit the country are speaking as well. the rope with which to hang him during his on the bench. So instead of clear reasons, we The Senator raised the Dallas News. hearing before the Senate Judiciary Com- are treated to a sideshow involving the mittee, he refused to hold up his end. nominee’s ethnicity. Estrada was born in In an editorial entitled ‘‘Rush to Judg- Democrats haven’t liked Mr. Estrada from Honduras, immigrated to the United States ment: Estrada nomination has been the beginning. Part of that is due to his ideas a teenager and graduated from Harvard blocked too long’’—we are in the third ology—which is decidedly not Democratic. Law School in 1986. week of this—let me read a paragraph But part of it also has to do with the fellow Democrats and their supporters hint that or two: who nominated him. Democrats don’t relish Estrada may not be ‘‘Hispanic enough’’— giving President Bush one more thing to whatever that means—while his Republican Democrats by now are in full filibuster. brag about when he goes into Hispanic neigh- supporters note that the nominee’s oppo- Senate proceedings, as carried on C–SPAN, borhoods during his re-election campaign nents are ‘‘anti-Latino.’’ Though vaguely resemble the film Groundhog Day, where the next year. They are even less interested in amusing, the arguments have nothing to do main character has to relive the same day putting a conservative Republican in line to with whether Estrada has the intellectual over and over again. Every day, it’s the same become the first Hispanic justice on the Su- ability and temperament to become a judge thing. Democrats get up, march over to the preme Court. on the second most influential court in the podium, and shuffle papers and recite their And so they have talked and talked, in nation. main complaint with Mr. Estrada—that he is hopes that Republicans will back down. They Competence, ability and commitment to conservative, unconventional, and won’t. Nor should they. the law are what should matter, but don’t, in unapologetic. That when he had the chance Republicans certainly stalled their share of winner-take-all ideology fights. In any to hand them the rope with which to hang appointments during the Clinton administra- event, Democrats appear to be the same kind him during his hearing before the Senate Ju- tion. But Democrats are being shortsighted of ideology-driven obstructionists they ac- diciary Committee, he refused to hold up his in seeking retaliation. It is precisely these cused Republicans of being when President end. sorts of narrowly motivated temper tan- Clinton’s nominees hit confirmation road- I think that is pretty good. Then trums—from both sides of the political blocks. they say: aisle—that turn off voters and make cynics Though partisans may not quite see it, of the American people. When that happens, what is really imperiled by this judicial hos- And so they have talked and talked, in tage-taking is confidence in the American hopes that Republicans will back down. They it doesn’t matter which nominees get confirmed or rejected. Everybody loses. court system. What we’re seeing here is an won’t. Nor should they. ugly legal brawl in which the participants I might add, in the El Paso Times, [From the El Paso Times, Feb. 8, 2003] use big words instead of bottles to hit the op- which the Senator noted—let me read STOP THE PARTISAN DELAY; JUDICIAL NOMINA- ponents on the head. Enough is enough. We don’t expect the par- one line in that: TION SHOULD BE BASED ON QUALIFICATIONS tisan brawl over judicial appointments to Set politics aside, confirm a well-qualified Senate Democrats, led by Minority Leader ever end, but Estrada has clocked enough nominee, and work for the good of the coun- Tom Daschle from South Dakota, aren’t time as a punching bag for Democrats. Call try rather than the party. likely to be cited for obstruction of justice. the vote. In the Austin American Statesman, But that’s in effect what they’re doing by blocking Senate confirmation of Miguel Mr. HATCH. Mr. President, let me to mention three Texas newspapers: Estrada for the District of Columbia-based say more to my distinguished colleague If Democrats have something substantive federal appeals court. There were even hints who I think has raised some pretty im- to block the confirmation of Miguel of a filibuster. portant issues here. It is absolutely as- Estrada’s confirmation to the U.S. Circuit Playing politics to keep a well-qualified tounding to me, because I have heard Court of Appeals for the District of Colum- nominee from being confirmed is as common the same comments: We Democrats are bia, it’s past time they share it. Estrada’s as it is often destructive. And it’s not pecu- not worried about this; nobody is pay- nomination was announced in May— liar to Democrats; Republicans do the same thing. ing attention to it; we are not going to They should have said 2001, almost 2 pay a political price; we do not care solid years ago— But this time it happens to be Democrats threatening to block the confirmation of an what we do to this Hispanic man, even and has been held hostage since by Senate eminently qualified judicial nominee, keep- though he is highly qualified—and I Democrats who have yet to clearly articu- ing an important position from being filled heard a number of Democrats admit he late their objections to it. in a court system that is in dire need of is highly qualified—we are just going I ask unanimous consent that these qualified judges. to do this. three editorials be printed in the Thankfully, threats of a filibuster don’t I call them my colleagues. Look, I seem to have universal support even among RECORD. Senate Democrats. Sen. John Breaux, D–La., have used some pretty tough language There being no objection, the mate- said that Estrada is ‘‘uniquely qualified.’’ here tonight. I do not want to apolo- rial was ordered to be printed in the Democrats oppose Estrada because they gize for it because I feel deeply, but I RECORD, as follows believe he is too conservative. Political phi- will apologize. I feel deeply about this [From the Dallas Morning News, Feb. 21, losophy can certainly be germane when talk- issue. I am fighting for this man, as all 2003] ing about politicians and political parties, of us Republicans are. Every one of us but it shouldn’t really have any bearing on is concerned. Every one of us wants RUSH TO JUDGMENT: ESTRADA NOMINATION the fair administration of justice. HAS BEEN BLOCKED TOO LONG As Sen. Orrin Hatch, R–Utah and chairman this man to be confirmed. Every one of There is a time for talking and a time for of the Senate Judiciary Committee, said, ‘‘I us wants to see justice here. Every one voting. The time is past for the U.S. Senate believe (Estrada) to be moderate to conserv- of us wants to stop the obstructive tac- to talk about Miguel Estrada’s nomination ative, but I don’t know. The important thing tics. Every one of us wants to do what to the federal Court of Appeals for the Dis- is he’s qualified, and he ought to be ap- is right here. So if I have been too en- trict of Columbia circuit. It’s time to vote. proved.’’ thusiastic this evening, I apologize. I Having emigrated from Honduras as a That’s what needs to happen now. Set poli- feel so passionate about this, so deeply teenager unable to speak much English, Mr. tics aside, confirm a well-qualified nominee, about this that I can hardly stand it. Estrada went on to graduate magna cum and work for the good of the country rather I have never seen, other than in Su- than the party. laude from Columbia University and Harvard preme Court nominations, this type of Law School, to clerk for a Supreme Court justice, to serve two administrations in the [From the Austin American-Statesman, Feb. shabby treatment. I have never seen it U.S. solicitor general’s office, to win more 21, 2003] before. I think I have a reputation for than a dozen cases in the Supreme Court. In APPROVE ESTRADA NOMINATION OR DON’T— fairness around here. I think I have a short, the 42-year-old lawyer is talented. JUST GET ON WITH IT reputation for knowing what is going Who knew that talent would extend to tying If Democrats have something substantive on in the Judiciary Committee. I think the Senate in knots for days on end. to block Miguel Estrada’s confirmation to I have a reputation for putting through Democrats by now are in full filibuster. the U.S. Court of Appeals for the District of the Clinton judges. I see this shabby Senate proceedings, as carried on C-SPAN, Columbia, it’s past time they share it. treatment, and I cannot help but get resemble the film Groundhog Day, where the Estrada’s nomination was announced in May emotionally disturbed by it. I do not main character; has to relive the same day and has been held hostage since by Senate over and over again. Every day, it’s the same Democrats who have yet to clearly articu- know how any honest, decent person thing. Democrats get up, march over to the late their objections to it. would not feel the same way. podium, shuffle papers and recite their main Those unschooled in Washington-think— I tell you, I feel like I am Hispanic. I complaint with Mr. Estrada—that he’s con- that would be most of us—are bewildered am the chairman of the Hispanic task

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00047 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.190 S26PT2 S2816 CONGRESSIONAL RECORD — SENATE February 26, 2003 force on our side. For 13 years I have Mr. REID. The Senator from Utah Senator from Tennessee, Senator AL- done that, long before some believe the made a statement on this floor this EXANDER, blew away tonight. Hispanic people in this country were a evening that it is illegal to release doc- I think that has been blown away by political force. I have fought for His- uments relating to memos in the Solic- other Senators as well. My gosh, what panics every day I have been in the itor General’s Office, and the record is is fair is fair. Senate. I particularly resent this treat- very clear it has been done before on Mr. REID. Could I respond to the ment. I particularly resent the fishing more than one occasion. question the Senator asked me without expeditions where they cannot come up Mr. HATCH. Mr. President, if he has losing his right to the floor? with one reason for even wanting these a question, I will be happy to take it. Mr. HATCH. I will recognize the Sen- privileged papers. They have not listed Gratuitous comments are not fair. ator from North Carolina right now— a specific reason. They just say: Let us Mr. REID. You asked me a question, excuse me, South Carolina. cast our line out there and let us see and I was answering. Mr. REID. The Senator asked me a what we can find because we do not Mr. HATCH. I will go with that. The question. have anything on this man and we do fact is I have not said that. At least I Mr. HATCH. I did not ask the Sen- not want him on the court because he do not believe I said that. I said that ator a question. Well, I suppose I did, is appointed by a Republican President these documents are not given. I said theoretically. and he is a Republican himself, and he we have never given appeal rec- I would like the Senator to think is a conservative, a Hispanic. We do not ommendations and certiorari rec- about the answer. want those kinds on the Federal bench. ommendations that were fairly re- The PRESIDENT pro tempore. Who Mr. REID. Will the Senator yield for quested except in cases where there is seeking recognition? a question? were specific allegations, and then in a Mr. GRAHAM of South Carolina. Will Mr. HATCH. That, in essence, is what very limited way. the Senator from Utah yield for a ques- this argument is all about. These letters are responding to Sen- tion? Mr. REID. Will the Senator yield for ator BIDEN’s August 6 request for cer- Mr. HATCH. Without losing my right a question? tain additional materials referred to in to the floor. Mr. HATCH. Without losing my right the documents from the Office of Legal Mr. GRAHAM of South Carolina. Mr. to the floor. Counsel, and I have not said that the President, it is fair to say, like many Mr. REID. Is the Senator aware that Attorney General will act illegally if other States, this nomination has not on August 24, 1987, John Bolton, the the Attorney General gives up docu- gone unnoticed by the media in my Republican Assistant Attorney Gen- ments. I suppose the Attorney General State of South Carolina—I have been eral, wrote a letter to Chairman BIDEN, can theoretically do anything he wants called worse things than being from among other things saying: to do, but he will not be acting respon- North Carolina. Both the Spartanburg Accordingly, we have decided to take this Herald Journal and Post & Courier of step of providing the committee access to re- sibly if he gives up privileged docu- sponsive materials we currently possess ex- ments that should not be given up by Charleston have called for an end to cept those privileged documents specifically the executive branch. this filibuster, and there is one aspect described. Of course, our decision to produce I suspect and said earlier theoreti- of the Spartanburg Herald Journal edi- these documents does not constitute a waiv- cally I suppose the Attorney General torial I would like to ask the senior er of any future claims of privilege con- can do that if he wants to. He would Senator from Utah about, and it goes cerning other documents the committee re- not be responsible to do it under these as follows: quests or waiver of any claim over these doc- circumstances. No reasonable Congress ought to be seek- uments with respect to the entities or per- ing such material— sons other than the Judiciary Committee. Mr. REID. That is what Senator DUR- BIN and I have been trying to show all Mr. HATCH. Of course, Senator And talking about legal memo- night. It has been done in the past. randum written by a lawyer to a cli- LEAHY put that in the RECORD I believe Mr. HATCH. Let me just make an- on February 25. Let me answer. This is ent— other comment. Is it your desire here a letter to Senator Thurmond. as a letter from all living former Solicitors to trip me up in a multihour debate, or Mr. REID. Senator BIDEN. General attests. . . . They don’t want those Mr. HATCH. The one I have is a let- is it your desire to really find out lawyers to be worrying about how their ter to Senator Thurmond. I also have something about Miguel Estrada you memos will impact future attempts to win judicial seats. attached to that two letters to Senator specifically know exists? If that is it, BIDEN. I have a number of letters here. maybe I can accommodate you, I don’t Does the Senator from Utah agree I understand all of these letters the know. But the fact is, this is just a job that if we start taking memos prepared distinguished ranking member of the of who got whom. I gotcha, Miguel by lawyers to their clients and bring committee has put in the RECORD. Estrada, because I got a complaint that those memos out in a fashion as to I point out to the distinguished Sen- there may be in thousand of documents whether or not a person is qualified to ator from Nevada that all of these let- something that might destroy his nom- serve one day in the future in the judi- ters are from the Office of Legal Coun- ination. ciary that it may change work product sel, not the Solicitor General’s Office. Am I on trial here? Is that what the and it will be very bad for the Justice They refer to— Senator is doing? I will be happy to say Department lawyers to have to be Mr. REID. But the Senator would to the Senator, I do make mistakes thinking about those things? Does the agree the Attorney General released sometimes. But let me tell you some- Senator agree this is a road none of us memos from the Solicitor General’s Of- thing. Give me a reason that really is should want to go down? fice in this letter. That is what it does. specific why the Justice Department Mr. HATCH. Seven former Solicitors That is what the letter is about. Is the should give you access to these thou- General agree, four of whom are Demo- Senator aware of that point? sands of pages of privileged documents crats and three of whom he served Mr. HATCH. These were responses to that they have never given before ex- with, three of whom understand what- specific allegations—let me ask the cept in specific requests and then in ever he did, why don’t my colleagues Senator on my time, without losing my this case, the Office of Legal Counsel ask them? I am sure they have in their right to the floor, is the Senator aware matters, not the Solicitor General. quest to find some fish around here, of any specific allegations justifying Come on, let’s be fair here. Is there a and apparently they do not have any the request for these records from the substantive reason for all of this blath- specific reasons for asking for this Solicitor General? Just answer my er on the Senate floor? Is there a sub- huge fishing expedition. But even if question. Are you aware of any specific stantive reason? Do we have a sub- they did, what responsible attorney allegations that need to be inves- stantive reason to obstruct this man? would give up his work product? tigated from the Solicitor General’s Of- Do we have a substantive reason? I Now, let’s suggest there is a Demo- fice? If you are, I would like to know have not seen an argument against him crat President and one of our body is about it rather than have a fishing ex- since the debate began other than the invited to be a member of the Circuit pedition trying to find something to phony argument that he did not answer Court of Appeals for the District of Co- murder this guy with. the questions, which the distinguished lumbia, he decides he is sick and tired

VerDate Dec 13 2002 00:17 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00048 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.192 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2817 of the Senate, mainly because of ob- ability, a speech impediment, has risen of them. So that the record of Mr. Estrada’s structive tactics like this, I am sure, to the top of the legal world, who is a hearing is as complete as possible, please ad- and we, as Republicans, then say we partner in one of the major law firms vice whether you have any information that the Committee requested these documents are not going to let him serve until we in this country, who has the highest from the Department of Justice and whether get all of his internal memoranda rating of the American Bar Associa- the Department consented to their disclo- while he was a Senator. Do my col- tion, unanimous, well-qualified rating. sure to the Committee. If the documents leagues think he is going to give that This man’s integrity has never been were neither requested of nor produced by up? He would be nuts, because we called into question, to my knowledge, the Department of Justice, please indicate would then be able to find all kinds of and I would be very ashamed of any- the manner in which the Committee came to rotten fish in there to use against him body who tried to call his integrity possess them. Thank you for your prompt attention to or her. Do my colleagues see the point? into question. this matter. I look forward to your response. I hope our side would not stoop to I have been very passionate this Sincerely, that level, and I would fight to make evening, and I apologize to my col- ORRIN G. HATCH, sure we did not stoop to that level. So leagues if I have offended anybody, but Ranking Republican Member. I ask, where are the specific allega- I have to say this is really important tions? They must have talked to at stuff. We cannot allow this type of U.S. SENATE, least their four Democrat former So- treatment to go on. We are talking COMMITTEE ON THE JUDICIARY, licitors General and said, is there not about a breakdown in the Senate, if a Washington, DC, October 10, 2002. Hon. PATRICK J. LEAHY, something there? By the way, those filibuster for the first time in history Chairman, Committee on the Judiciary, Solicitors General are for Miguel is maintained to defeat a nominee, any U.S. Senate, Washington, DC. Estrada, at least have said that he han- nominee, let alone the first Hispanic DEAR CHAIRMAN LEAHY: On October 1, I dled himself very well and is ethically ever nominated to the Circuit Court of sent a letter to Senator Schumer seeking responsible, and his performance rec- Appeals for the District of Columbia. I clarification of questions about certain docu- ommendations that they signed are the have not wanted to antagonize or of- ments that he submitted for the record at highest form of recommendations. fend any of my colleagues, and I apolo- Miguel Estrada’s confirmation hearing. These documents consisted of memoranda They have all said he has done that in gize if I have, but what I have said to- that Senator Schumer stated were provided the highest sense of the Solicitor Gen- night is true. to the Committee by the Department of Jus- eral’s Office. I have to say, I am really disturbed tice during the nomination of Judge Frank So, yes, the Senator is absolutely by the obstructive tactics that are Easterbrook to the Seventh Circuit. Senator right. Seven former Solicitors General, being used. I would be equally upset if Schumer cited these documents as precedent four of whom are Democrats, three of they were used on our side, but they for your request that the Department release whom he worked with in the Clinton have not ever been used in this fashion to the Committee appeal, certiorari and amicus recommendations that Mr. Estrada au- administration and the Bush adminis- on our side. thored when he served as an Assistant to the tration. I see the majority leader is in the Solicitor General. I would like to share with my col- Chamber, but first I forgot to put these When Republican staff requested copies of leagues an editorial cartoon which letters in earlier, my letter to Senators these documents, however, only one of the really sums it up well. It shows one of LEAHY and SCHUMER, with regard to the three documents provided appeared to per- two Democrat caricatures stating: Easterbrook document. I ask unani- tain to Judge Easterbrook. That document consists of a two-page memorandum ref- The makeup of the judicial system should mous consent that they be printed in erencing another memorandum prepared by look like America, including blacks, Asians the RECORD. someone else. The written record of Judge and Latinos. There being no objection, the mate- Easterbrook’s hearing contains none of the Then the other asks: What about rial was ordered to be printed in the three documents, or even a reference to Estrada? These are two donkeys. RECORD, as follows: them. The other tellingly replies: That is U.S. SENATE, Enclosed is a copy of my letter to Senator different. He is not a liberal. COMMITTEE ON THE JUDICIARY, Schumer, which seeks clarification of wheth- That is what this is all about. He is Washington, DC, October 1, 2002. er the Committee requested these documents not a liberal. How could we have the Hon. CHARLES E. SCHUMER, from the Department of Justice in connec- U.S. Senate, Committee on the Judiciary, tion with Judge Easterbrook’s confirmation temerity to choose a Hispanic nominee and whether the Department consented to for the Circuit Court of Appeals for the Washington, DC. DEAR SENATOR SCHUMER: Thank you for their disclosure to the Committee. It also District of Columbia? How could this chairing last Thursday’s hearing on the nom- asks for an explanation of the manner in President do this since he is not a lib- ination of Miguel Estrada to the United which the Committee came to possess the eral? That is what is involved. States Court of Appeals for the District of documents in the event that they were nei- Mr. SESSIONS. Will the Senator Columbia Circuit. I write to seek your clari- ther requested of nor produced by the De- yield for a question? fication on a matter which you raised at the partment of Justice. Mr. HATCH. Without losing my right hearing. Yesterday, Senator Schumer’s office ad- You reiterated your belief that the Depart- vised my staff that the full Committee pro- to the floor. vided him with the documents at issue and, Mr. SESSIONS. Mr. President, I will ment of Justice should turn over certain appeal, certiorari and amicus recommenda- for this reason, he is deferring to you for a ask the Senator from Utah—I first tions that Mr. Estrada authored when he response to my letter. I look forward to would say how effective I think he has served as an Assistant to the Solicitor Gen- hearing from you, particularly in light of the been tonight in indicating there are no eral. As precedent for this request, you noted October 8 letter of Assistant Attorney Gen- reasons to oppose this nomination. I that during the nomination of Judge Frank eral Dan Bryant, which stated the Depart- would note that the Mobile Register in Easterbrook to the Seventh Circuit Court of ment’s conclusion that it did not authorize my State has a fine editorial page, and Appeals, similar memos were turned over to the release of the Easterbrook memorandum. Sincerely, they wrote: the Committee. You produced those documents and placed them into the hearing ORRIN G. HATCH, All precedent indicates that a filibuster record. When Republican staff requested cop- Ranking Republican Member. against judicial nominations for any reason ies of the documents, only one of the three Mr. REID. Mr. President, I have a but one concerning the nominee’s very integ- documents we received appeared to pertain rity is essentially dirty pool. unanimous consent request. to Judge Easterbrook. That document con- Mr. FRIST addressed the Chair. My question is: Has this nominee’s sists of a two-page memorandum referencing Mr. REID. I have a unanimous con- integrity ever been questioned and does another memorandum prepared by someone sent to make and ask if the majority the Senator agree that this filibuster is else. leader would yield for that unanimous dirty pool? At the hearing, you did not explain whether the Committee had ever formally re- consent request. Mr. HATCH. This nominee’s integrity Mr. FRIST addressed the Chair. has never been in question. I think my quested this document, or the other two documents, from the Department of Justice, or The PRESIDENT pro tempore. The colleagues on the other side have ac- whether the Department of Justice con- majority leader has the floor. knowledged that. His integrity is to- sented to their disclosure. The written Mr. REID. Of course he does. tally intact. He is an honest, decent, record of Judge Easterbrook’s hearing con- Mr. FRIST. Mr. President, as we have honorable man who, in spite of a dis- tains no such documents, or even a mention for the past 3 weeks, my Republican

VerDate Dec 13 2002 03:37 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00049 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.194 S26PT2 S2818 CONGRESSIONAL RECORD — SENATE February 26, 2003 colleagues, as we can see from the Mr. DASCHLE. Then I object, as Mr. FRIST. I move that the Sergeant Chamber now, and I have stood ready well. at Arms be instructed to request the to debate the Estrada nomination. Few The PRESIDENT pro tempore. The attendance of absent Senators, and I of our Democrat colleagues have been objection is heard. ask for the yeas and nays. present tonight, although we clearly Mr. FRIST. As I said, tonight my col- The PRESIDENT pro tempore. Is stand ready to vote on this nomina- leagues have addressed all the many there a sufficient second? tion. It appears that most of our col- obstacles that have been put forward There is a sufficient second. by the minority one by one by one by leagues in the minority are prepared The yeas and nays were ordered. neither to debate nor to vote on Miguel one through a series of questions han- Estrada. Tonight my colleagues have dled so ably by our chairman of the Ju- The PRESIDENT pro tempore. The shed light on the immense reaction diciary Committee, a nomination that question is on agreeing to the motion from newspapers all over the country the President of the United States sent of the Senator from Tennessee. The to the obstruction of this nomination. to this Senate 2 years ago. Thus, I yeas and nays were ordered, and the Tonight my colleagues have shed light modify my request so that each Mem- clerk will call the roll. on the fact that the peculiar and truly ber on the other side of the aisle would The assistant legislative clerk called unprecedented obstruction the minor- be permitted to speak for up to 1 hour the roll. ity is pursuing is founded upon a dou- on the nomination prior to a vote. Mr. FRIST. I announce that the Sen- ble standard which is being applied to The PRESIDENT pro tempore. Is ator from Rhode Island (Mr. CHAFEE), this particular nominee. Tonight we there objection? the Senator from Nebraska (Mr. have made clear once again that ob- Mr. DASCHLE. Mr. President, I again HAGER), and the Senator from Ken- struction is being played out in the ask unanimous consent that the re- tucky (Mr. MCCONNELL) are necessarily Senate by a minority that appears far quest made by the majority leader be absent. from the mainstream of opinion modified to allow for the documents re- Mr. REID. I announce that the Sen- throughout this country. quested by the Judiciary Committee ator from Delaware (Mr. BIDEN), the I ask unanimous consent that the members be provided as a part of the Senator from New Mexico (Mr. BINGA- vote occur on the confirmation of the hearing record and that additional MAN), the Senator from West Viginia nomination of Miguel Estrada at mid- questions proposed by Judiciary Com- (Mr. BYRD), the Senator from Delaware night tonight, provided further that mittee members be included in the (Mr. CARPER), the Senator from North the time between now and then be RECORD at that time. Dakota (Mr. CONRAD), the Senator from equally divided between the chairman Mr. FRIST. Mr. President, in re- North Carolina (Mr. EDWARDS), the and ranking member or their des- sponse to the motion, let me cite an- Senator from California (Mr. FEIN- ignees, and that at midnight the Sen- other sample editorial. Again, it has STEIN), the Senator from Florida (Mr. ate proceed to a vote on the confirma- been fascinating to watch the edi- GRAHAM), the Senator from Iowa (Mr. tion of the nomination with no inter- torials over the last 2 weeks. HARKIN), the Senator from South Caro- vening action or debate. The PRESIDENT pro tempore. Is lina (Mr. HOLLINGS), the Senator from Mr. DASCHLE. Mr. President, I ask there an objection? Hawaii (Mr. INOUYE), the Senator from unanimous consent that the request Mr. DASCHLE. Mr. President, I will Vermont (Mr. JEFFORDS), the Senator made by the majority leader be modi- ask for regular order. We can debate from South Dakota (Mr. JOHNSON), the fied to include that the Justice Depart- this if the majority leader wishes, but Senator from Massachusetts (Mr. KEN- ment provide the requested documents this is a unanimous consent request. NEDY), the Senator from Massachusetts relative to Mr. Estrada’s Government The PRESIDENT pro tempore. Is (Mr. KERRY), the Senator from Lou- service, first requested in May of 2001; there an objection? isiana (Mr. LANDRIEU), the Senator that the nominee then appear before Mr. FRIST. Mr. President, I object to from New Jersey (Mr. LAUTENBERG), the Judiciary Committee to answer the the request for the modification. the Senator from Connecticut (Mr. questions which he failed to answer in Mr. President, I have tried, as you LIEBERMAN), the Senator from Mary- his confirmation hearing, and any addi- can see, on numerous occasions to land (Ms. MIKULSKI), the Senator from tional questions that may arise from reach an agreement for something very Rhode Island (Mr. REED), the Senator such documents. simple, and that is an up-or-down vote from West Virginia (Mr. ROCKEFELLER), Mr. FRIST. Reserving the right to on this qualified nominee. Once again, the Senator from Maryland (Mr. SAR- object to that request for modification, there has been an objection from the BANES), and the Senator from Oregon let me cite a sample of editorials and other side of the aisle. It is time to (Mr. WYDEN) are necessarily absent what they say about my distinguished allow the Senate to work its will on The PRESIDENT pro tempore. Are friend’s request with regard to these this nomination, the will of the Senate. there any other Senators in the Cham- memoranda. Just a couple. We are here, as you can see, ready to ber desiring to vote? From the Redding Record Search- vote. The result was announced—yeas 73, light in California from February 15: Mr. DASCHLE. I was under the im- nays 1, as follows: The administration won’t hand over pression I made the objection, but of memos he wrote when he was in the course if I did not, I do it again. [Rollcall Vote No. 36 Ex.] Solicitor General’s Office, say the Sen- The PRESIDENT pro tempore. The YEAS—73 ate Democrats. It apparently does not objection is heard. Akaka Daschle Lincoln matter to them that publicizing them Mr. FRIST. I suggest the absence of a Alexander Dayton Lott could rob future memos of their candor quorum. Allard DeWine Lugar and that every former Solicitor Gen- The PRESIDENT pro tempore. The Allen Dodd McCain Baucus Dole Miller eral of either party has said the Demo- clerk will call the roll. Bayh Domenici Murkowski crats seek too much. The assistant legislative clerk pro- Bennett Dorgan Murray Just one other from the Detroit ceeded to call the roll, and the fol- Bond Durbin Nelson (FL) Boxer Ensign Nelson (NE) News, February 11, 2003: Democrats lowing Senators entered the Chamber Brownback Enzi Nickles also demanded that he produce his and answered to their names: Bunning Feingold Pryor Burns Fitzgerald memos and recommendations while he [Quorum No. 2 Ex.] Reid was in the Solicitor General’s Office, Campbell Frist Allard Durbin Lugar Cantwell Graham (SC) Roberts which had never been done for any Bayh Frist Pryor Chambliss Grassley Santorum other candidate who had been an as- Daschle Hutchison Reid Clinton Gregg Schumer sistant in that office. The demand was Dorgan Leahy Cochran Hatch Sessions Coleman Hutchison Shelby rejected not only by Estrada but by The PRESIDENT pro tempore. A Collins Inhofe Smith every former Solicitor General still liv- quorum is not present. The clerk will Cornyn Kohl Snowe ing, including those who served Demo- call the names of absent Senators. Corzine Kyl Specter cratic Presidents. The assistant legislative clerk re- Craig Leahy Stabenow Crapo Levin I reject the request for modification. sumed the call of the roll.

VerDate Dec 13 2002 03:37 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00050 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.196 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2819 Stevens Talent Voinovich The legislative clerk called the roll. on the vote for the confirmation of the Sununu Thomas Warner Mr. FRIST. I announce that the Sen- nomination of Miguel Estrada. I want NAYS—1 ator from Rhode Island (Mr. CHAFEE), to thank all of the Members who have Breaux the Senator from Nebraska (Mr. participated tonight in what is an im- NOT VOTING—26 HAGEL), the Senator from Mississippi portant debate. We have had construc- (Mr. LOTT), and the Senator from Ken- tive debate through the evening and Biden Hagel Lautenberg Bingaman Harkin Lieberman tucky (Mr. MCCONNELL) are necessarily Members have made themselves avail- Byrd Hollings McConnell absent. able to vote on the Estrada nomina- Carper Inouye Mikulski Mr. REID. I announce that the Sen- tion. Unfortunately, given the objec- Chafee Jeffords Reed ator from Delaware (Mr. BIDEN), the Conrad Johnson tions from the other side of the aisle, Rockefeller Senator from New Mexico (Mr. BINGA- Edwards Kennedy Sarbanes we will not be allowed to vote on this MAN Feinstein Kerry Wyden ), the Senator from West Virginia nomination at this time. Therefore, Graham (FL) Landrieu (Mr. BYRD), the Senator from Delaware there will be no further rollcall votes The motion was agreed to. (Mr. CARPER), the Senator from North tonight. The PRESIDENT pro tempore. The Dakota (Mr. CONRAD), the Senator from I know a number of my colleagues majority leader. North Carolina (Mr. EDWARDS), the have statements they wish to make, Mr. FRIST. Mr. President, once Senator from Florida (Mr. GRAHAM), and I encourage them to remain in the again, I state that we are ready to vote the Senator from Iowa (Mr. HARKIN), Chamber and continue to debate this on this nomination tonight. As you can the Senator from Hawaii (Mr. INOUYE), evening, even though the hour is late. see, the nomination has been pending the Senator from Vermont (Mr. JEF- I do want to notify our colleagues that in the Senate since February 5. We FORDS), the Senator from South Da- we will convene at noon tomorrow and have had speech after speech after kota (Mr. JOHNSON), the Senator from will continue to debate the Estrada speech on this qualified nomination. Massachusetts (Mr. KENNEDY), the Sen- nomination at that time. There has been ample time for both ator from Massachusetts (Mr. KERRY), The PRESIDING OFFICER. The Sen- sides to make their case. As has been the Senator from Louisiana (Ms. ator from Colorado. said on the floor by the minority whip, LANDRIEU), the Senator from New Jer- Mr. ALLARD. Mr. President, any- everything has been said. sey (Mr. LAUTENBERG), the Senator body who might have been watching Mr. President, I now ask unanimous from Connecticut (Mr. LIEBERMAN), the the debate this evening has to come to consent that the vote occur on the con- Senator from Maryland (Ms. MIKUL- the realization that we are in a fili- firmation of the nomination of Miguel SKI), the Senator from Rhode Island buster. Personally, I am very con- Estrada at 6 p.m. on Monday. (Mr. REED), the Senator from West Vir- cerned about the kind of precedent it is The PRESIDENT pro tempore. Is ginia (Mr. ROCKEFELLER), the Senator going to set for this body as we move there objection? from Maryland (Mr. SARBANES) and the forward in future years. I think that Mr. DASCHLE. Mr. President, reserv- Senator from Oregon (Mr. WYDEN) are forcing 60 votes in order to get to a ing the right to object, I ask unani- necessarily absent. vote up or down on a judicial nominee mous consent documents requested by The PRESIDING OFFICER. Are there is a very difficult position to put this members of the Judiciary Committee, any other Senators in the Chamber de- body in. I am disappointed that we as well as answers requested by Mem- siring to vote? were not able to get a straight up-or- bers to Mr. Estrada, be made part of The result was announced—yeas 74, down vote this evening on Miguel the request as well. nays 1, as follows: Estrada to the Court of Appeals for the The PRESIDENT pro tempore. Is [Rollcall Vote No. 37 Ex.] District of Columbia. there objection? YEAS—74 I realize that watching the Senate on Mr. FRIST. Mr. President, I object to Akaka DeWine McCain television is probably not the most the requested modification. Alexander Dodd Miller popular pastime for many Americans, Allard Dole Murkowski but it should come as no surprise to Mr. DASCHLE. Mr. President, then I Allen Domenici Murray object as well. Baucus Dorgan Nelson (FL) any of my colleagues or students of The PRESIDENT pro tempore. Objec- Bayh Durbin Nelson (NE) Congress that the current debate and tion is heard. Bennett Ensign Nickles unprecedented filibuster over the con- Bond Enzi Pryor firmation of Miguel Estrada, President Mr. FRIST. Mr. President, I suggest Boxer Feingold Reid the absence of a quorum. Brownback Feinstein Roberts George W. Bush’s nominee to the DC The PRESIDENT pro tempore. The Bunning Fitzgerald Santorum Circuit Court, has citizens from across Burns Frist Schumer the country tuning in and paying close clerk will call the roll. Campbell Graham (SC) Sessions The assistant legislative clerk pro- Cantwell Grassley Shelby attention. From California to Colorado ceeded to call the roll and the fol- Chambliss Gregg Smith to New York and beyond, Americans lowing Senators entered the Chamber Clinton Hatch Snowe have closely watched the DC Circuit Cochran Hollings Specter Court confirmation, because they real- and answered to their names. Coleman Hutchison Stabenow [Quorum No. 3 Ex.] Collins Inhofe Stevens ize that justice is not issued by an indi- Cornyn Kohl Sununu vidual court or judge, but rather col- Baucus Corzine Frist Corzine Kyl Talent lectively, the integrity of the law de- Bayh Daschle Leahy Craig Leahy Thomas Boxer Durbin Nelson (FL) Crapo Levin Voinovich pending on the ability of each court to Breaux Feingold Pryor Daschle Lincoln Warner function within the whole. Clinton Feinstein Dayton Lugar In the midst of the Democrat-led fili- The PRESIDING OFFICER (Mr. NAYS—1 buster, the Senate finds its business SMITH). A quorum is not present. Breaux completely disrupted, unable to pro- Mr. FRIST. Mr. President, I move ceed to other important issues such as NOT VOTING—25 that the Sergeant at Arms be in- prescription drugs and economic relief. structed to request the attendance of Biden Harkin Lott The Constitution commands that Fed- Bingaman Inouye McConnell absent Senators, and I ask for the yeas Byrd Jeffords Mikulski eral judges are to be appointed with and nays on the motion. Carper Johnson Reed the advice and consent of this body. The PRESIDING OFFICER. Is there a Chafee Kennedy Rockefeller Yet today, thanks to the obstructionist sufficient second? There is a sufficient Conrad Kerry Sarbanes tactics of the Democratic leadership, Edwards Landrieu Wyden second. Graham (FL) Lautenberg we face a very real possibility of shift- The yeas and nays were ordered. Hagel Lieberman ing this authority in a manner the The PRESIDING OFFICER. The The motion was agreed to. Framers never intended, fundamen- question is on agreeing to the motion The PRESIDING OFFICER. The ma- tally altering the amount of votes re- of the majority leader. The yeas and jority leader. quired to confirm judicial nominations. nays are ordered and the clerk will call Mr. FRIST. Mr. President, once again It is clear that the obstructionists the roll. we were unable to reach an agreement are not interested in an up-or-down

VerDate Dec 13 2002 03:37 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00051 Fmt 0624 Sfmt 0634 E:\CR\FM\A26FE6.069 S26PT2 S2820 CONGRESSIONAL RECORD — SENATE February 26, 2003 vote on this nomination. Instead, they might decide cases that could come before is to impose a new requirement that judges prefer to hold the majority and the him. Instead, Estrada merely said he would be confirmed by a supermajority. The Con- American people hostage to an unac- be an impartial judge loyal to the law. stitution has no such requirement. It simply The Democrats have no excuse (although says that judges are appointed with the ad- ceptable game of entrenchment and it’s clear they fear Estrada would be in line vice and consent of the Senate. That implies politics. Their reasons to prolong de- for a Supreme Court nomination if he gets an up-or-down vote. A filibuster should play bate may be enough to justify a vote this other judgeship first). If liberals in the no part in the process. against Miguel Estrada, but I am still Senate think conservative will spell the end Mr. ALLARD. Another article that waiting for a reason that is sufficient of civilization if they become judges, they appeared in the Denver Post was writ- to deny a vote entirely. can vote against Estrada. But keeping others ten by Al Knight, which states that if Television programs, talk show from voting their consciences on this par- the obstructionists succeed, there will ticular matter is simply out of line. radio, and newspaper editorials across only be two kinds of nominees in a Re- the United States are demanding that Mr. ALLARD. The News is not the publican administration: Those who the Democrats allow a vote on Miguel only newspaper to decry the treatment can be opposed because they have said Estrada, that they proceed to a simple of the President’s nominee. The Denver something suspect about a touchy up-or-down vote. Post, which, by the way, endorsed Al topic, and known conservatives who The media is simply echoing the Gore over George W. Bush for Presi- have not said anything inappropriate. statement of an outraged public. They dent, in an article captioned, ‘‘Give The second category can be opposed, have rejected this tyranny of the mi- Estrada His Day in Court,’’ states however, precisely because they have nority, and their demand for a vote those Senators who think Estrada is not furnished their opponents with a must be acknowledged. The call for a too conservative should vote no. Those basis for opposing their nomination. vote has reached the editorial pages of who think he was unresponsive should The article concludes that the Estrada both major newspapers in Colorado. vote no. The key point is there should filibuster is a lamentable departure The Rocky Mountain News, in an edi- be a vote. To do otherwise, to use a fili- from the past. torial entitled ‘‘Democrats Turn Ugly buster, is to impose a new requirement I ask unanimous consent that the Al on Estrada,’’ states the filibuster is ir- that judges be confirmed by a super- Knight article be printed in the responsible. Their editorial also under- majority. RECORD. mines many of the various arguments The paper agrees the Constitution There being no objection, the mate- that are being used to prolong the con- never intended such a requirement and rial was ordered to be printed in the firmation, saying the arguments that that an up-or-down vote is in order. RECORD, as follows: we do not know enough about Miguel I ask unanimous consent that the [From the Denver Post, Feb. 16, 2003] Estrada is implausible because he has a Denver Post editorial be printed in the CONFUSING POLITICS WITH PRINCIPLE well-known and rather amazing life RECORD. (By Al Knight) story. Estrada immigrated to this There being no objection, the mate- Senate Minority Leader Tom Daschle country from Honduras, graduated rial was ordered to be printed in the claims he and his Democratic colleagues are RECORD, as follows: compelled by principle to torpedo the nomi- with honors at Columbia College, and nation of Miguel Estrada to the D.C. Circuit [From the Denver Post, Feb. 13, 2003] was editor of the Law Review at Har- Court of Appeals. vard Law School. Then he was a clerk GIVE ESTRADA HIS DAY IN COURT No one who has closely followed recent to a Supreme Court Justice and argued Something quite unprecedented is taking events could possible believe him. What has before the Supreme Court 15 times. He place on the floor of the U.S. Senate. The been happening in the U.S. Senate is not received the highest possible rec- Democratic minority is staging a filibuster about principle; it is about one-issue politics, specifically the politics of abortion. ommendation of the American Bar As- against the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals. For the first time in history, a filibuster is sociation. It is the first time in the history of the being used to stop the nomination of a cir- The editorial concludes: Senate that a filibuster has been used cuit court judge. The Democrats have no excuse . . . keep- against a circuit court nominee. The use of a filibuster for this purpose is ing others from voting their consciences on Under Senate rules, at least 70 senators especially pernicious because it effectively this particular matter is simply out of line. must agree to shut off debate, and the Demo- imposes a supermajority requirement on the Estrada nomination whereas the U.S. Con- I ask unanimous consent that the ar- cratic leadership says it has sufficient votes to keep the Estrada nomination from being stitution requires only a simple majority. Daschle and others of like mind have done ticle by the Rocky Mountain News be voted upon. everything to avoid discussing this simple printed in the RECORD. Judicial nominations have always been fact. Not one of the Democrats opposing the There being no objection, the mate- controversial, and Senate Democrats have Estrada nomination has bothered to address rial was ordered to be printed in the said they harbor resentments over the way the question of why his defeat is worth Republican-controlled Senates of the past RECORD, as follows: greatly politicizing every future court nomi- treated nominees of Democratic presidents. [From the Rocky Mountain News, Feb. 14, nation. They instead have taken to the Sen- The debate on the Senate floor this time 2003] ate floor to talk about every topic under the clearly indicates this is more than a case of sun except that one. DEMOCRATS TURN UGLY ON ESTRADA tit for tat. The acrimony in the debate over Miguel Estrada is—oh—a conservative, and To the degree that a central theme has de- Estrada suggests the Democrats think they veloped, it is this: Miguel Estrada has failed if that makes your heart pound with fear you have a winning issue in opposing him on to provide his opponents with a sound basis may very well be a U.S. Senate Democrat. grounds that he is too much of an unknown on which to oppose his nomination. Think Then you may also be among those trying to quantity, that he failed to properly answer about that! Under this method of judicial thwart the Senate’s majoritarian decision- their questions and that he may just be ‘‘too confirmation, there will be only two kinds of making with a filibuster. conservative’’ for the D.C. Circuit. They are nominees in a Republican administration: It’s irresponsible, this hysteria being acted willing to risk the criticism that they are those who can be opposed because they have out to keep Estrada from serving on the U.S. opposing a highly qualified Hispanic attor- said something suspect about abortion or Court of Appeals for the District of Colum- ney who is a picturebook example of an im- some other touchy topic and known conserv- bia. But Democratic senators do have their migrant pursuing the American Dream. atives who have not said anything inappro- excuses, each more petty than the next. There is no question that Estrada is an at- priate. This second category can be opposed, One excuse is that they don’t know enough tractive nominee. His academic and legal however, precisely because they haven’t fur- about Estrada—implausible because there’s a credentials are outstanding, and although he nished their opponents with a basis for op- well-known and rather amazing life history lacks judicial experience, so too did a major- posing their nomination. here: Estrada immigrated to this country ity of those now sitting on the D.C. circuit. Recent viewers of C–SPAN know just how from Honduras, graduated with honors at Co- The key issue is whether a filibuster ugly this fight has become and how it may lumbia College, was editor of the Law Re- should ever be employed to defeat a judicial yet poison the ability of the two major par- view and Harvard Law School, a clerk to a nominee. We think not. Those senators who ties to cooperate on other matters. Supreme Court justice, argued before the Su- think Estrada is too conservative should The truth is that Estrada’s great crime is preme Court 15 times, and received the high- vote no. Those who think he was unrespon- he has refused to worship at the altar of the est possible recommendation of the Amer- sive should vote no. Those who have a beef Roe vs. Wade decision and has simply said ican Bar Association. with the Bush administration for whatever that he recognizes it as law. Opponents of Estrada are piqued because reason should vote no. That, it is now apparent, is not good he stayed true to a widely endorsed tradition The key point is that there should be a enough for the Democrats. Daschle has es- of refusing to indicate how as a judge he vote. To do otherwise, to use the filibuster, sentially said the party cannot permit a

VerDate Dec 13 2002 02:22 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00052 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.202 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2821 nomination to go forward for someone who Senator HATCH repeatedly challenged were 54 nominees unconfirmed by the refuses to cooperate in his own mugging. our colleagues on the other side of the Democratic Congress. So compared to Democrats continue to insist that there is aisle. He urged them and pleaded with those two Congresses, there is no doubt something extraordinary about the Justice Department’s refusal to make available a them to state a legitimate basis to re- that the Republican Congress under wide variety of internal memos written by ject this fine nominee, Miguel Estrada. Senator HATCH as chairman did a much Estrada during his five years in the solicitor They have failed to do so. They came more favorable job to President Clin- general’s office. The fact that all seven liv- up with the weakest, most pitiful, ton’s nominees than the Democratic ing solicitors general oppose the release of sorry explanation; that is, they want Senate did to President Bush’s nomi- such confidential documents seems not to memorandums, every memorandum he nees. That cannot be disputed. matter. The Democrats have seized upon this ever wrote in the Justice Department. It is amazing we are carrying on and issue as though it were the only lifeline That is so weak, so baseless, so suggest otherwise. Sure, the Senate is available, but it is a very slim reed, indeed. Republicans—and at least one Democrat, wrong. That is something he cannot not a rubberstamp. Sure, it has a right John Breaux of Louisiana—have said over give. It is not within his power to give. to ask questions and demand informa- and over again that if a Democratic senator And he should not do it if he had the tion that is legitimate. But they are doesn’t like Estrada and thinks he would be power to do so. The memorandums he not required and should not ask for in- a poor addition to the federal bench, the produced for the Department of Justice formation that is not legitimate. proper thing to do is to vote ‘‘no.’’ The Con- belong to the Solicitor General, to the How did we get into this cir- stitution, it has been pointed out, antici- Department of Justice, to the people of cumstance? How did we get to this pates a Senate vote on all nominations. point where the ground rules have The GOP, which is nowhere near as good as the United States. The United States the Democratic Party in a streetfight, is ob- of America was his client. He has no changed, that we are into an obstruc- viously hoping that it will become apparent ability whatsoever to produce those tionist tactic, an unfair procedure? to the public over time that it has the best documents. What happened? After the last election of this argument and that the use of a fili- He said they can have them as far as when President Bush was elected, the buster to defeat a judicial nominee would be he is concerned. But as a good lawyer, New York Times reported that the a terrible precedent. he knows the Department of Justice Democrat majority, the Democratic That hope can only be realized, however, if Senators at that time early in Presi- the American public takes proper notice of should not and must not produce those this fight and recognizes what is at stake. documents. And they have never done dent Bush’s administration had a re- But some of the coverage it has attracted is that absent a specific showing of a spe- treat at some location unknown to me, simply inaccurate. The New York Times, for cialized need. and they heard at that time from three example, said the filibuster resembles those It is sad to me to see us get to this liberal law professors, Lawrence Tribe, of the past. point, to see this kind of obstruc- Cass Sunstein, and Marcia Green- That characterization, which makes mat- tionism. This is what we have seen. It burger. These liberal professors at this ters sound more romantic than they are, is is not fair to this nominee. It is not private retreat told the Democrats at exactly backwards. The Estrada filibuster, in fact, is a lamentable departure from the fair to the judicial system. that time, they should change the past. That is why this is a fight the GOP had I call on my colleagues across the ground rules for nominations. They better win. aisle, and I urge them not to make this should ratchet up the pressure and Mr. ALLARD. Mr. President, chal- historic step, not to head down this they should alter the historic rules of lenging times are at hand. While I be- road of filibuster. It is something we courtesy, the historic presumptions in lieve a full and fair debate of Presi- have not done before, we should not do the Senate, and they should change dential nominees is of paramount im- now, and by all means we should not do how nominees are treated. They said: portance, obstructing an up-or-down this to a nominee who has not the You have the power to do it. Do it, vote fails the public trust and is a dis- slightest bit of a challenge to his integ- Democrats. Stand up and block these service to our system of justice. The rity, not the slightest challenge to his nominees. Do not accept the nominees Senate must resist temptations to legal ability, not any objection by the from President Bush, like this Repub- alter the basic tenets of the Constitu- American Bar Association. In fact, lican Senate accepted President Clin- tion. Instead, the Senate must move they rated him the highest possible ton’s nominees. Fight every step of the forward with the business of the Nation rating they can give and unanimously way. That is apparently what has hap- and can start by voting on the nomina- gave him that rating. It is really a sad pened. tion of Miguel Estrada. day. Shortly after that, when the major- Again, we ought to look at the chart If Senator HATCH was frustrated, so ity in the Senate changed, I served on and remind ourselves of the key point are a lot of us. What has been going on the Administrative Oversight and the in the editorials. The Denver Post said: here is not right. It is not right. We Courts subcommittee. Senator SCHU- The key point is that there should be a need to stop it. The Constitution of the MER chaired that subcommittee. He vote. . . . A filibuster should play no United States provides that confirma- held hearings. He held hearings to part in the process. tions are advice and consent of the argue the point that the burden of The Rocky Mountain News says: The Senate, article II, section 2, by a ma- proof for a confirmation of a judge Democrats have no excuse for keeping jority vote. That is what it has always should change and it ought to be on the others from voting their consciences on been. Now we are trying to convert judge to prove he is qualified. That has this particular matter. It is simply out that to a supermajority of 60 votes. It never been done before in the history of of line. is something we have not done before. this country. We had Lloyd Cutler, I yield the floor. They say: You held up President former Counsel to the White House of The PRESIDING OFFICER (Mr. Clinton’s nominee. Let me state plain- Democrat Presidents. We had others CRAIG). The Senator From Alabama. ly, we did not unfairly hold up any testify. They testified that it would be Mr. SESSIONS. Mr. President, I nominees. We confirmed, under Presi- wrong to shift the burden to the nomi- watched with great interest the debate dent Clinton’s tenure as President, 377 nee, it was not the right thing to do. tonight. Senator HATCH answered every of his nominees. One of those nominees Then he had hearings to say we ought question relating to this nominee. It was voted down on this floor; 377 con- to just consider your politics, your ide- reminds me of the times when I was a firmed. Not once was there a filibuster ology, as he said, and we can consider Federal prosecutor years ago. You held. In fact, when people talked about somebody’s politics, and we can reject would go through a contentious trial that a few times, Senator HATCH said them if we do not agree politically. and the defendant attacked the pros- no, that is not the right thing to do. If you happen to be pro-life, you are ecutor, would attack the police, and at- We ought not to filibuster. That did out. Pro-life, no. No such judge gets tack the witnesses. But at the end of not occur. We went on anyway and con- confirmed here, I suppose that means. the trial, the evidence would be clear firmed those judges. There were only 41 So we went through those hearings. and you would have a real fine moment nominees left when President Clinton Lloyd Cutler and Boyden Gray headed to stand up and challenge the defend- left office of those he nominated who up a national commission that studied ant to produce any credible evidence were not confirmed; whereas when this and the commission rejected this that would justify his position. former President Bush left office there contention. They both said this would

VerDate Dec 13 2002 03:37 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00053 Fmt 0624 Sfmt 0634 E:\CR\FM\A26FE6.078 S26PT2 S2822 CONGRESSIONAL RECORD — SENATE February 26, 2003 not be the right thing to do; they said with, and have great ability. So he did ate this nominee, to see how well the no, this would politicize the judiciary. that. lawyers and bar members and all, Most of the people who serve here Remember, he is being nominated for evaluate his performance. They talk to who are lawyers may not regularly a Federal court of appeals judge. He lawyers who have practiced with him. have practiced law. I had the oppor- will do the very same work on the They talk to the lawyers who have op- tunity and the honor for almost 12 Court of Appeals for the DC Circuit as posed him in his biggest cases. They years to represent the United States of he would did at the Second Circuit talk to judges before whom he has America as U.S. attorney, practicing in Court of Appeals in New York, as he practiced. They talk to lawyers for Federal court before Federal judges. I did there. So he has had great experi- whom he has worked. And they ask practiced before Democratic judges. I ence sitting at the right hand of a Fed- people confidentially, also, to express practiced before Republican judges. It eral circuit judge, helping him write their opinion if they know of anything did not matter to me which one it was. the opinions dealing with the Federal that affects his integrity, legal ability, You presented the law and the facts issues that come before him. I think temperament, and those kinds of mat- consistently and you would expect that is important. ters. They take it very seriously. They them to rule justly. That is what we After that, he became an assistant particularly take a court of appeals try to do. U.S. attorney in the Southern District nomination very seriously. We knew when we researched the law of New York, a very prestigious U.S. So they did all that for Miguel that we were going to win—we thought. attorney’s office, the one in which Estrada. They checked his background. If we had the right law, we would ex- Rudy Guiliani was U.S. Attorney and They probably talked to his law profes- pect to win. Politics does not enter ran that office. By the way, Rudy sors and the judges he worked for and into it. That is the ideal of American Guiliani has written a very vigorous lawyers he litigated against as well as justice, that there is equal justice editorial supporting Miguel Estrada. with. They evaluated him, and 15 or so under law. It is on the Supreme Court He performed superbly there and was of them came together and voted, and wall here, on the facade of the Supreme taken to the Department of Justice. He they unanimously gave him their high- Court across the street, ‘‘Equal Justice was asked to serve as a deputy in the est possible rating. This doesn’t happen Under Law.’’ Solicitor General’s Office of the United to most nominees. Far fewer than 50 So I am really frustrated that we States Department of Justice. The So- percent of the nominees for this court would suggest we ought to get into a licitor General is often referred to as get a ‘‘well qualified’’ rating. And even person’s politics. the people’s lawyer. The Solicitor Gen- fewer get a unanimous vote of ‘‘well Of course, with regard to Estrada, to eral has been called the greatest law- qualified’’ by the lawyers who evaluate my knowledge, he never campaigned yer’s job in the world. The Solicitor them. for a candidate. To my knowledge, he General of the United States of Amer- So then he came before the Senate. has never run for office. It appears he ica represents the United States of President Bush nominated him in May, is a Republican and he has conserv- America in court before the Supreme 2 years ago. Quickly—by that time, the ative political views, but as he has ex- Court of the United States of America. Democrats have taken back control of Most lawyers can think of no greater plained, they do not affect his abilities the Senate when Senator JEFFORDS and his decision-making process once honor, nor can I, than to be able to rep- switched parties. So they chaired the he puts on that robe and gets in the resent the United States of America Judiciary Committee. They refused to courtroom. That is not the way he does before America’s greatest Court. give him a hearing. They had all his He served there. He came in the tail business, and that is not the way a records and all his files. I am sure they end of 1992, in the Bush administration, judge should do business. were looking at him very closely be- and stayed for 5 years in the Clinton I think we are doing something here cause they heard he was a conservative administration. During that time the that is quite historic and is very Republican Hispanic, and somebody Clinton administration evaluated his wrong. even said, You know, he might be a performance. In every possible evalua- I will say one more thing before I good Supreme Court nominee. He could tion, they gave him the highest pos- refer to some of the comments that be a real good nominee. Maybe we bet- sible rating. It was not President were made earlier about Solicitor Gen- Bush’s administration, not some other ter beat this guy up a little bit. eral memoranda. Remember, Miguel As a matter of fact, the more I stud- Republican administration; the Clinton Estrada is a highly qualified nominee. ied his record, I saw his testimony, I administration Department of Justice He graduated magna cum laude from think he would be a great Supreme gave him the highest possible perform- Columbia University after having come Court nominee. He has the background, ance evaluation. to this country at age 17 from Hon- Then he left there and went to a the academics, the integrity, the judg- duras. He went on to Harvard Law great law firm, one of America’s great- ment, the record of accomplishment School. He finished at the top of his est law firms. He has argued 15 cases that would make a great Supreme class there, magna cum laude, and was before the United States Supreme Court Justice. There is no doubt about chosen an editor of the Harvard Law Court. Let me tell you, I asked a law- it in my mind. Review. yer earlier tonight, we were sitting at Whatever the reason is, they decided Those of us who are lawyers and a round table, and I said, How many to block him, so they would not give those of us who know much about the lawyers in America do you think have him a hearing. Finally, after almost 2 legal business know that being an edi- argued 15 cases before the Supreme years, a year and a half or so, they tor of a law review at a good law school Court? have a hearing. Remember now, they is one of the highest honors a grad- He said, You know, I bet they could conduct the hearing. Senator LEAHY is uating senior can have. To be an editor all sit at this table. I suggest to you, the chairman of the committee. Sen- of the prestigious Harvard Law Review you could count on your fingers the ator SCHUMER presided over the hear- is one of the great honors any student names of the practicing lawyers today, ing. It went almost all day long. They can have. in practice today, who actually have could have had 3 days worth of hear- After graduating from college, he argued that many cases. Arguing a ings if they chose. They got to ask any clerked for a Federal appellate judge in case before the Supreme Court is a questions they wanted to. He answered the Second Circuit Court of Appeals, great honor. Very few people get se- question after question after question. one of the great courts of appeals in lected. It is big time law business. Only I thought he answered the questions America. He did that, served his tenure the best are asked to do that. And he brilliantly. I thought it was interesting there. Let me say, those are very com- has done that 15 times. tonight that LAMAR ALEXANDER, Sen- petitive positions. You are not chosen That shows that in private practice ator ALEXANDER, went back and read to be a law clerk for a court of appeals he has the ability and the respect to his answers. Far from agreeing with judge or even a Federal district judge carry on weighty matters before the those on the other side who said he did unless you have extraordinary ability Nation’s highest Court. not answer the questions, he thought and are perceived to be a person people So the American Bar Association he answered them brilliantly. He can get along with, pleasant to work comes along. They are asked to evalu- thought he answered them exactly the

VerDate Dec 13 2002 02:22 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00054 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.206 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2823 way a judge should answer them. And former Solicitors General—three of I am telling you that there is no he did. them Democratic Solicitors General— basis to object to this nominee. I saw him do that, and he was a great have said they must not be turned Drew Days, another former Solicitor witness. He does have a speech impedi- over; it is the wrong thing to do; we do General under a Democratic adminis- ment, but he handled it with such not need to encroach on the executive tration and an African American, he grace. He testified with such smooth- branch’s deliberating procedures. We wrote in support of Mr. Estrada: ness and so much judgment and wis- don’t need to chill free debate in the I think he is a superb lawyer. dom. I remember distinctly him being Solicitor General’s Office. They must When he worked for Drew Days, Mr. asked. You know President Bush said not be turned over. The Attorney Gen- Days’ signature was on his perform- he wanted a strict constructionist on eral is not going to turn them over. So, ance reviews giving Mr. Estrada the the bench. therefore, they say: ‘‘We gotcha.’’ OK. highest possible rating each year—the That is a layman’s term for a judge Now we have an excuse not to vote for outstanding rating in every category who follows the law and doesn’t make Estrada. on the evaluation sheet. What is the excuse? He won’t turn up law—not an activist the way people In the Department of Justice where I over the memoranda? They are not his talk around the country. served, you have an evaluation form. They asked Estrada: Are you a strict to turn over. They are the Department Every supervisor has to fill it out and constructionist? He said: Well, I of Justice memos. It is an unfair you can give them the rating. The wouldn’t say that. He said: I would call charge. He is being treated unfairly. highest rating is outstanding. In every myself a fair constructionist. I think The burden of proof is being put on category of rating Mr. Estrada got you should give a fair meaning to the him. They are accusing him of some ‘‘outstanding’’ in the Clinton Depart- language of the statute and Constitu- ideological bent, but they never ex- ment of Justice. tion that we deal with. That is what I plain what it is they are unhappy with. Not one political, not one philo- How can this man be an extreme per- will try to do. son, some stealth candidate out of the They later asked him written ques- sophical, not one theological position right wing of America who can’t be tions how he would evaluate Justices have I heard them criticize him for. It trusted on the bench? That is bogus on the Supreme Court—all of them. is absolutely baseless—just absolutely and false and wrong. It is just unfair. Some of them are liberal and some are wrong to say he must turn over those Robert Litt in the Department of conservative. He said in his view they memoranda. They are not his to turn Justice, former Deputy Assistant At- all try to be fair constructionists and over. He can’t turn them over, and the torney General, was considered by he respects all of them but may differ Attorney General would violate high most people to be one of the more par- on a few things but fundamentally they standards of ethics if he did. Oh, well, tisan members of the Department of are in agreement. they said, you know, they turned them Justice, a capable attorney, however, So we had the hearing. He testified over for other people. You heard that and certainly a Democrat. Mr. Litt well. There were no complaints against argument. said this: him. There were suggestions that he Let me mention this first. Let us had acted in a politically hostile or stop and slow down a minute and talk I have never felt that the arguments he partisan way. There was no suggestion about some of the people who served as made were in any way outside the scope of legitimate legal analysis. that he had any lack of integrity. In Solicitor General under Democratic ad- fact, his integrity has never been chal- ministrations. The Solicitor General is Randolph Moss, former Assistant At- lenged. They never challenged his legal a great lawyer position, as I stated be- torney General, another Democrat: ability or scholarship. fore. But also the Solicitor General He has a near encyclopedic knowledge of They said he didn’t have enough ex- must be compatible with the Presi- the law. perience. That is just fundamentally dent’s philosophy and must advocate Isn’t that wonderful? Think of it. false. I don’t see how anybody on this the views, insofar as he is able, that He has a near encyclopedic knowledge of floor can stand up and say he is not the President supports. The Solicitors the law, a powerful intellect and an ability qualified by background and training General are attuned to their President. to bring coherence to even the most com- and experience to be a court of appeals Let me read what some Democratic plicated legal document. judge. That is ludicrous. He has one of Solicitors General said about Miguel I am telling you that is what a judge the finest backgrounds any person I Estrada. does. A judge must be able to bring co- have seen for a court of appeals judge. Seth Waxman, former Solicitor Gen- herence to complex legal matters to He clerked for a court of appeals judge. eral, Democrat, well respected get to the heart of the matter, to get it He clerked for Anthony Kennedy on throughout the country said: to the simplest bases and make a just the Supreme Court, which I failed to During the time Mr. Estrada and I worked decision. I think that is an extremely mention, and he served in the Solicitor together— high compliment. General’s Office and the appellate divi- They worked together when he was I don’t know what the Democratic sion of the Attorney General’s Office of Solicitor General— Senators would look for in this nomi- the Southern District of New York— he was a model of professionalism and com- nee. It is beyond my comprehension unbelievably good experience for this petence. how this man who is so qualified and kind of a position. And he added: with such a compelling life story would So now, tonight, when we moved to In no way did I ever discern that the rec- be blocked here. It really is stunning to go forward and end the obstruction and ommendations Mr. Estrada made or the me. just vote, what kind of objection do we analyses he propounded were colored in any I have a lot of other things that I hear? Well, the objection was he didn’t way by his political views. could say at this time. I will not go turn over his memoranda when he was What a compliment from a Demo- into all of them. I want to make the an attorney in the Solicitor General’s cratic Solicitor General for whom he point about the certain memoranda Office. He wrote internal memoranda, worked. that have been produced or have leaked and we want to see what he said. He By the way, they want these memo- out of the Department of Justice with might have said something that we can randa. To whom are they written? regard to previous nominees. get him on. So, Mr. Estrada, you won’t They were written to Seth Waxman, Now, first, even if a prior Attorney turn over your memos, we will not con- Democratic Solicitor General under General, at some moment of weakness, firm you. President Clinton. unwisely just produced all the memo- What does Mr. Waxman say, Mr. Clin- Let us be truthful about this thing. randa and the work product of some ton’s Attorney General? They are not his memos. He has no au- nominee, that would not mean, to me, thority whatsoever to turn over the In no way did I ever discern that the rec- that we ought now to continue to vio- ommendations Mr. Estrada made or the Department of Justice memoranda— analyses he propounded were colored in any late an absolutely clear principle. absolutely none. The Department of way by his personal views. During the time But, as I have seen the facts—and we Justice says these are work products of Mr. Estrada and I worked together he was a have looked at them—not one Attorney the Department of Justice. Seven model of professionalism and competence. General in history has responded to the

VerDate Dec 13 2002 03:37 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00055 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.208 S26PT2 S2824 CONGRESSIONAL RECORD — SENATE February 26, 2003 fishing expedition set forth here. This Special Prosecution Force, and so on, I hope we will avoid this filibuster, is clearly a fishing expedition. They the designation of Leon Jaworski as move forward in this Senate back in don’t say there is one thing they want Watergate Special Prosecutor, the en- accordance with our traditions of com- for a specific reason. What do they say? forcement of the subpoena at issue in ity and respect and courtesy, in which They say: We want everything you ever Nixon v. Sirica, and those kinds of nominees are presumed to be confirm- wrote. And it is not going to happen. It matters. able unless something is shown to be is not going to happen—nada. So that is a specific request. At least wrong, and that the President is able What about Easterbrook? They said it had some colorable basis because to move nominees forward, because we they found a two-page memo he wrote people were concerned about Water- need them on the bench today. when he was in the Department of Jus- gate. And Mr. Bork had been in the I thank the Chair and yield the floor. tice. Well, the official record of the center of a very controversial decision The PRESIDING OFFICER. The Sen- Easterbrook hearing contains no ref- that history records as one of the most ator from South Carolina. erence to this document at all. The De- controversial matters ever to come be- Mr. GRAHAM of South Carolina. Mr. partment of Justice cannot find any fore the Department of Justice. So President, this will be a tough act to records they ever authorized releasing maybe they had a basis for that. And follow. The Senator from Alabama has this document. I am not sure how the they got that. But they did not ask for done a wonderful job going through the people on the other side got it. The everything he wrote. And the Depart- nuances of where we find ourselves and Justice Department said they did not ment of Justice did not give it. explained the career of Miguel Estrada release it. So something is fishy about Well, I will just say this to my col- better than I could possibly do and has that fishing expedition. leagues. I do not believe this has been talked about the factors that bring us As for the documents on Robert lost on my colleagues. I think they here at 1:10 in the morning. Bork, I was here, and one of my col- know that this request is unprece- All I can add to it is that I am new leagues across the aisle said: Oh, the dented. How could they not know that? to the body. I was hoping my first en- documents have been given before. And How could they not know? gagement with the Senate would be he went on and on. He did not mention They come and say: Well, here is a about Social Security and talking Judge Bork’s name, and he waved memorandum that was produced. And about saving that system. But I find around this document, that he was they don’t show it may have been, and myself in the middle of something very going to introduce it into the RECORD. was, in fact, in every instance, a ref- historic; that is the filibustering of a I have been in courtrooms a little bit. erence to a specific allegation of mis- circuit court of appeals judge—appar- He said he was going to introduce it, conduct or wrongdoing. So that is an ently, the only time in the history of but he never did. So I said: Are you argument without basis. It has been our Nation such tactics have been em- going to introduce it into the RECORD? demonstrated by Senator HATCH. It has ployed. And you ask yourself, Why? He said: Yes, yes, he would. So he in- been demonstrated by the facts. What has gotten us here? Why have troduced it into the RECORD. And I Anybody who is fair and objective, they chosen to do this? went and got it. I like to read these and will listen, will know there is no One thing about being a Presiding Of- things. basis whatsoever for demanding that ficer of the Senate is you get to learn Well, some can still remember—I Miguel Estrada produce these docu- a lot and hear a lot. One thing I have don’t know if the Presiding Officer was ments. And that is what the distin- learned is that in the past the abuses of here when the Bork matter was before guished Democratic leader objected on. the judicial nomination process have this body, but I think he was here. He His basis for objection was solely that sometimes been striking, and appar- remembers some of the intensity of the Miguel Estrada would not produce the ently both sides have engaged in some debate over the Bork matter. memoranda he wrote while he was in practices that just really do not seem He was the then-Solicitor General. the Department of Justice. right. You had the Attorney General and the This is a big time principle. It is a There are all kinds of cases where deputy, and they would not fire Archi- major issue. It is not an itty-bitty judges were never given a chance to be bald Cox, the special prosecutor. The thing. The Department of Justice is voted on and left in committee for Attorney General quit, and the Deputy not going to give them, and Miguel years. And people did not like one Attorney General quit, and it fell to Estrada has no power whatsoever to judge, and they decided to make sure Robert Bork; he fired Archibald Cox on give them because they are not his. they never got a vote. And they were in behalf of President Nixon. There were They are the work product he made for the majority. It goes on and on and on. all kinds of allegations that there were his client. His client was the United I guess that is politics. I do not suggest secret agreements and that Bork had States of America. The United States that the Republican party, in the past, done all kinds of corrupt things. And it of America is entitled to the best ef- has not done some things that were was at the height of Watergate, so they forts of its assistants and Assistant So- probably unfair to people, too. demanded all kinds of documents, but licitors General, and they ought to be But what we are about to engage in they were specific. able to express their opinions to their will become the mother of all abuses. It Look, this is the document request. supervisors, as they wish. will take the country in a direction They wanted documents generated dur- So, Mr. President, I think we have that it need not go in terms of judicial ing the period from 1972 through 1974— had enough time on this nomination. nominations. And the country, I hope, not every year he was there—and con- He has waited almost 2 years. The will wake up and listen a little closer stituting, describing, referring or relat- hearing was conducted by the Demo- to what we are doing over time. Edi- ing in whole or in part to the so-called crats, and it was a long hearing. They torial writers are beginning to write, Watergate affair. followed up with further questions. He and they are beginning to understand Well, people were concerned about has agreed to meet with any single what is at stake. And from a Repub- Watergate. They were alleging every- Senator to answer any questions they lican point of view, it is very unusual body in the Government was a crook. have. to have all these papers siding with us So Bork was in there, and he fired Ar- He is a man of extraordinary talent, and criticizing our friends on the other chibald Cox. They had some specific incredible achievement, a man who side. That is normally not the case. reasons, and they got some of these came here, and he has lived the Amer- What we are doing does affect the fu- documents. I don’t think they got ican dream. I am exceedingly proud of ture of the country in a very dramatic them all. They wanted any commu- Miguel Estrada. I think he is indeed way. nications between Robert Bork and any qualified to be on the Supreme Court. A courtroom—unlike the business of person or entity relating in whole or in He ought to be confirmed for this Court politics that we all chose to engage part to the Office of Watergate Special of Appeals position without any fur- in—is a place for quiet reflection. All Prosecution Force. ther debate whatsoever. And he ought of us here as Senators have something They wanted any documents related to be, I hope, one day considered for in common. Our goal is to get 50 plus to the dismissal of Archibald Cox, the the Supreme Court. He is certainly one vote, or 50 percent of the vote plus abolition of the Office of Watergate that qualified. one. We engage in a business that is

VerDate Dec 13 2002 02:22 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00056 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.220 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2825 loud, expensive, nasty, and sometimes the Constitution envisions that a main December. Our friends on the other unpleasant but very important and jority vote will determine the fate of side of the aisle were able to hold a very rewarding. Our objective, when it that nominee. seat. I argue that the momentum of comes to election years, is to convince The Senate rules, over time, have al- the 2002 election was a moment in people to vote for us, call attention to lowed the minority to be able to stop time, and that those in the Democratic what we have done, to how we are dif- any particular matter, unless the ma- Party who believe they must stand up ferent from our opponent, and that we jority can gather 60 votes. That is not to George W. Bush at every turn and are better for your family and your part of the Constitution; that is part of take him on personally with every business than the other person run- the way the Senate works. For some agenda he has control of must under- ning. We have a big deal made about it, reason, our friends on the Democratic stand there is a limit to that strategy. and we spend a lot of money, and we side have chosen to filibuster a circuit The limit to that strategy has to be beat each other up, and the public court of appeals nominee for the first the common good. I argue that we have votes and they get to express them- time in the history of our country. gone into an area where the common selves. The majority wins. They have chosen Miguel Estrada for good is not being served. That the fili- Well, the courtroom is a different some reason. Well, I am not privy to bustering of Miguel Estrada’s nomina- place. Our Founding Fathers under- their caucus conversations, but I have tion to the DC Circuit Court of Appeals stood that. There has to be someplace a feeling this goes back to last year’s is not only unprecedented, I believe it in a democracy where somebody who election. The Republican party picked is part of an overall strategy. I be- feels they have been wronged by a large up seats in last year’s senatorial elec- lieve—and I hope I am wrong—that we group has a place to go other than the tion that even we could not have envi- will see this happen time and again ballot box, because the ballot box sioned as a party 2 years ago. Some- this year; that this is part of a strategy sometimes is not the best place to en- thing happened in the 2002 election by our friends on the other side to fur- sure that justice is done in an indi- that allowed us to get 51 seats. ther obstruct the ability of the Presi- vidual case. So in our system the weak For every Member of the body, there dent to move judicial nominees can sue the strong. They can go to a is probably a different opinion as to through the system. court, be judged by a jury of their what did happen in 2002. I argue to my By employing this tactic, they have peers, and the case will be presided friends on the other side that 100 years set a course that will be hard to turn. over by somebody with a lifetime ap- from now people will not write much Politics being what it is, people have pointment, who doesn’t have any polls about the 2002 election; they really long memories, and there will come a to worry about, or any particular con- won’t care to know why Lindsey day when a Democrat will occupy the stituency to please. The only person to Graham got elected with nine other White House and the Republican Party be pleased is Lady Justice. Republican freshman Senators. Unless will be in the minority in the Senate, The appeals process sends the case I can do the Senator Thurmond thing, and it will be talked about: Remember forward, and the courtroom itself, in I will be long gone myself. But they what they did to Miguel Estrada. terms of a trial, can be a pretty loud will care and they will write about There is a certain part of politics place, because you have witnesses, and what happened to our country if we fil- that appeals to our basic instincts, not a lot of testimony, and a lot of cross- ibuster controversial judicial nominees the common good, and I hope, and I lit- examination. It can be a very flamboy- as a matter of political practice. That erally pray, that our friends on the ant place. But whether or not that case will have taken us down a road that no other side of the aisle will find a dif- will withstand scrutiny is determined one, so far, has gone down. ferent tactic to take to make their by a panel of judges at the appeals I am afraid that road would be a very points of view known about President level. And there is no quieter place in unpleasant journey for our Nation. I Bush’s agenda, including judges, rather our legal system than the courts of ap- think our friends on the other side of than engaging in a tactic that will ba- peals and the Supreme Court itself. the aisle lost seats in 2002 because we sically supplant the constitutional role People who are there for life listen to had a popular Republican President, of confirming judges by requiring Sen- very well-constructed arguments by serving right after one of the most hor- ates of the future to have to gather 60 lawyers, who look at the precedents in- rific events of our time—the tragedy of votes to confirm a controversial judi- volved in the case, look at the Con- 9/11—a President Americans liked and cial nominee. stitution, and try to render a fair ver- trusted to make hard decisions. He was This tactic will hurt us all. This tac- dict. able to make the case to enough Amer- tic will belittle and demean the judi- Our Founding Fathers understood ican voters in the 2002 election that the cial nomination process. This tactic that the judiciary needs to be an inde- Senate in the hands of our Democratic will change the constitutional process pendent, separate branch of Govern- colleagues was not producing in an ap- we have lived with for well over 200 ment, immune, as much as it can be, propriate fashion. years in confirming judges. This tactic from popular opinion, so that the un- Now, I know people will disagree will allow a bitter minority of the popular may have a just verdict, or with that analysis, but that is what I greatest body in democratic history to they may not get one otherwise. believe. In my campaign, we talked act in a way that will make it very Unfortunately, in this particular in- about a homeland security bill that hard for good men and women to serve. stance, the political trends to be set, if was held up because of special interest And that bitter minority one day may this filibuster is successful, will do labor union politics. We talked about be a Republican minority. great damage to the process of trying an antiterrorism insurance bill that I hope that reason will prevail; that to pick qualified men and women to would allow people to build buildings we can reach a compromise of some serve in this capacity in the future. without having to absorb the risk of a sort that will allow everybody to walk The Constitution recognizes that the terrorist attack by themselves because away from this in good faith and say independent judiciary also needs a of legal provisions that trial lawyers they fought the good fight and that check and balance. Our judges at the wanted. Miguel Estrada will have a vote up or Federal level are nominated by the Also, we talked about judges who down, and that this tactic of filibus- President, the executive branch, and could not get a vote on the Senate tering, requiring a supermajority vote the Constitution has conferred upon floor. I am convinced that resonated, for judicial nominees, will give way for this body the advise and consent role, a that after 9/11 people wanted us to the sake of the common good. check and balance to the executive work together and, rightly or wrongly, It has been amazing to me to see the branch. enough people in the country believed transformation of the arguments The Constitution envisioned super- the Democratic-controlled Senate was against Miguel Estrada and how they majority votes of the Senate in a very not working as an efficient body and have changed over time. Being a mem- few cases, and confirming a judge is helping a President the public liked ber of the Judiciary Committee, I can not one of them. The Constitution en- and wanted to be successful. recall being shocked by hearing the visions that nominees of any particular Right after the election in November, phrase from someone—and I cannot re- President will come to this body, and we had a special election in Louisiana member who—‘‘he’s not Hispanic

VerDate Dec 13 2002 02:22 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00057 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.223 S26PT2 S2826 CONGRESSIONAL RECORD — SENATE February 26, 2003 enough.’’ Obviously, I am not Hispanic, one of some extreme view of the law their biggest fan, time and time again and I do not know what being ‘‘His- that only a radical conservative could used privilege after privilege, mostly panic enough’’ means. It was a phrase have; that he is ideologically not made up, to protect everything they that just really did not sound nice, was equipped to serve in such an important touched. I thought they abused the not befitting of the experience we are job. privilege doctrines, but here is some- all in, and was used to explain the fact That has to be analyzed in terms of thing we should all be able to agree that Miguel Estrada, by going to a pri- the man’s life. It is easy to say some- upon: That when a lawyer writes a vate school, somehow did not share the thing, but it should be a requirement memo to a client, that should stay be- Hispanic experience. That sounded of- that it be true. I will just offer one fact tween the client and the lawyer. And if fensive, and it was offensive. Nobody for people to consider. If he is so ideo- the client does not want the memo re- says it anymore, and that is the good logically driven that he cannot fairly leased, for the good of us all, for the news. render justice, how in the world could sake of the attorney-client privilege, When the Hispanic groups that came he have worked for the Bill Clinton ad- for the sake of good government, that out against Mr. Estrada’s nomination ministration? I would argue that any request should be denied. We do not first rallied around this cause, they ideologically driven conservative know enough about him because we were pretty hard on him as a person. would have had a hard time working really have not had a chance to talk to Once one understands who he is and for Bill Clinton. Not only did Miguel him. what he has gone through, it really is Estrada work in the Clinton adminis- I was in the Judiciary Committee. unfair to be hard on him as a person tration’s Justice Department, he per- The man was there all day. There is a because he is a good person and he has formed in an outstanding manner. volume that was produced from the overcome obstacles that everybody One of the gentlemen who accused hearings. He has been around for a year should be proud of, that I could only him of being ideologically driven hap- and a half. He has answered questions. imagine. pened to be the person who rated his I think he has given good answers. This He truly has lived the American performance, and during the reporting is not about not knowing enough about dream. He made something of himself periods involved, he said he was an out- him, not being able to answer the ques- in the most difficult of circumstances. standing lawyer who always applied tions that were not properly asked, be- We do not hear much about that any- the law and the facts based on reason cause the people who want this infor- more. As a matter of fact, we hear from and not personal agendas. mation are going to vote no anyway. our friends on the other side of the The idea that Miguel Estrada is some This is about conservative versus lib- aisle that this has nothing to do with right-wing ideologue makes absolutely eral. This is about politics. This is his ethnic background. Good. Because no sense, and he is being supported by about trying to rectify the losses in it should not. It should be about who is the people who know him the best—by 2002. I am convinced that our friends on qualified. We should enjoy and relish Democrats and Republicans who under- the other side of the aisle have decided the fact that diversity is part of the stand that he is a man of great creden- that the only way they can get back American dream, and that for the first tials. I will assure my colleagues of one into the game is to oppose President time, we will have a Hispanic member thing, if you do not believe anything Bush. Instead of learning from the 2002 on the Circuit Court of Appeals for the else I have said, that the American Bar elections that obstruction was not the District of Columbia, the second high- Association is never going to unani- way to a majority, I think they have est court in the land. That would be a mously support somebody who is an blinders on now in that they have en- good thing for America, and we should ideologue on the conservative side, and gaged in a political dynamic that not rejoice in it if it does happen. he received a most highly coveted rat- only will not allow them to regain the Then the attacks moved to a dif- ing, well qualified, by the American majority of this body but could do ir- ferent level: He has never been a judge. Bar Association. That argument that reparable damage to our country in the When I first heard that, it made me he is an ideologue that cannot see rea- future. wonder. To be on the circuit court of son is stupid. I know that each and every one of appeals, maybe it is a good thing to be The next one is: We do not know them believes that there is a high pur- a judge before you get promoted. Then enough about him and the only way we pose for what they are doing; they love I learned that Justice Rehnquist and are only going to know about him is their country as much as I do and untold numbers of men and women for us, our friends on the other side, to would disagree with my assessment. serving in the Federal judiciary were have access to all the memoranda he But this I am sure of: if this filibuster promoted to very important positions has ever written as a lawyer when he is successful, 100 years from now we without ever having any previous judi- worked for the Department of Justice. will have changed the way business is cial experience, which makes sense be- There is a reason that all the Solici- done in the Senate in regard to con- cause being a judge is a cocktail of sev- tors General have come out unani- firming controversial judicial nomi- eral items: Temperament, intellect, mously against the idea of producing nees. And 100 years from now, people, if the ability to understand human be- legal memorandum in that Department they could, would come back to each havior, the ability to reason and to to the Congress. Nobody would want and every one of us and say: Why did have a kind and compassionate disposi- the lawyers who worked for them, who you do that? I wish you would have not tion. That is what I am looking for, advise them with written or oral opin- done that. We are paying a price for and people can bring those qualities to ions, to have that work product dis- your desire to get a political advantage the table without ever having worn a closed to the public in a fashion that that you could not even envision. robe. would change people’s opinions and I am hopeful that over time there That argument, that he has never change the way they would advise. If it will be Members on the other side of been a judge, fell by the wayside when ever becomes the law of the land, if the aisle sufficient enough in number the untold numbers of judges who this case results in internal memos who will say: I will not engage in this never had any experience before came written by lawyers to clients, if that practice to the point that I am legiti- forward. So he is like so many others. becomes part of how a judge is chosen, mizing a filibuster of a circuit court It makes no sense to say no because of then I would argue that Government nominee that will set in motion forces that. lawyers who have any aspirations of of the future that will change the way The next argument is he is ideologi- being a judge are going to find them- the Constitution works. cally driven; that there is something selves in a very difficult circumstance. I am hopeful we will eventually get about this man that would not allow There is a reason that every Solicitor enough votes not to confirm Miguel him to look at my case or your case or General living today has said that the Estrada but to allow a vote to be had anyone else’s case fairly because he is memos requested by our friends on the to confirm Miguel Estrada. If that vote so driven by his ideology that he can- other side should not be released. What is had, he will win, I am convinced. For not see justice, that he cannot see I find most astonishing is that the last the sake of the future of this country, facts, and he cannot see prior deci- administration, and some who know I hope that some time in the near fu- sions. I am assuming this ideology is me understand that I was probably not ture this tempting practice of making

VerDate Dec 13 2002 02:22 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00058 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.225 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2827 it hard for President Bush to get for- were lucky enough to even get a hear- at the Solicitor General’s office, we ward any judicial nominee our friends ing and a committee vote. It seems could evaluate for ourselves whether on the other side do not like will be that the same forces complaining Mr. Bender’s opinion is unduly harsh or abandoned because I am convinced about the ‘‘unfairness’’ of extended de- not. But we do not have such access. If they will look back in their political bate on the Estrada nomination were Mr. Estrada was willing to candidly career with great regret that they ever enthusiastic in blocking President discuss his views and judicial philos- did this. Clinton’s nominees without any debate ophy with us, our concerns about Several of them are on record of hav- just a few short years ago. whether he was outside the main- ing said in the past, just give him a I also am distressed at the false and stream might be assuaged. But this he vote. I will never engage in a filibuster misleading charges and accusations is also not willing to do so. We have no of a judge because I think it is wrong, that Mr. Estrada’s supporters have lev- choice but to rely on his record, and I think it is bad for the country. When eled during this debate. The most out- this record convinces us that he does Senator LEAHY said it, he was right. rageous is the cynical charge that our not warrant confirmation to the D.C. When Senator KENNEDY said it, he was opposition to Mr. Estrada is somehow Circuit. right. When Senator FEINSTEIN said it, motivated by the fact that he is His- Anyone who reviews my record on ju- she was right. At the time they saw panic. Nothing could be further from dicial nominations knows that I have very clearly the consequences of what the truth. Our opposition to him is not reached my decision to support ex- could happen. solely based on his consistent obstruc- tended debate here—indeed my deci- We are too close to the 2002 election tion of our review of his nomination sion to oppose Mr. Estrada’s confirma- for some of our friends on the other and his unwillingness to provide us tion—lightly. In my entire 14 years in side of the aisle to see clearly. All they with the information needed to evalu- the Senate, I have voted to oppose the see is a majority lost and a real desire ate his fitness. confirmation of judicial nominations to get it back. Please reflect, please do No observer can doubt that we sup- only seven times. But this nominee’s not be blinded by the political moment. port and indeed make diversity a pri- evasions and gross disrespect for our ority in our courts, including appoint- Please do not take our country down a nomination process, when combined ing Hispanic Americans to fill these road that we will all regret. with the disturbing evidence from his Mr. KOHL. Mr. President, I rise positions. And let’s remember that the public record of his extreme ideology, today to explain again my reasons for confirmation of at least three highly leave me no choice. supporting a filibuster on the nomina- qualified appellate court nominees of One of the most important tasks we tion of Miguel Estrada. At the outset, Hispanic origin nominated by Presi- perform is our constitutional duty to dent Clinton—two for the Fifth Circuit let me state that my opposition to ‘‘advise and consent’’ on judicial nomi- and one for the Ninth Circuit—were bring his nomination to a vote is not a nations. Once their nominations are blocked by the same people who com- decision I have reached causally or confirmed by the Senate, these men plain today about our opposition to Mr. without serious reflection. Our power and women serve lifetime appoint- Estrada. One thing is perfectly clear: to extend debate on a nomination ments, unanswerable to Congress, the This nomination has nothing to do should only be undertaken in extraor- President, or the people. They will be- with ethnicity and everything to do dinary circumstances, when we have no come the guardians of our liberties, of with duplicity. our Constitution, and of our civil other choice. We have reached that un- When Mr. Estrada refuses to candidly fortunate state of affairs today. rights. Our duty to ‘‘advise and con- share his views with us, we are left sent’’ is the only check we will ever In the case of Mr. Estrada, we are with his record. And this record leaves presented with a nominee for a lifetime have on the qualifications and fitness us with grave concerns about con- of those chosen to serve as Federal appointment to our Nation’s second firming him to this crucial judgeship. most powerful court. This nominee has judges. A few examples from Mr. Estrada’s ca- When a nominee subverts and im- refused to answer our questions regard- reer highlight these concerns. Mr. ing his views and judicial philosophy, pedes this vital process by declining to Estrada devoted substantial time and answer our questions so that we cannot and indeed has obstructed our efforts energy to defending, on behalf of pro to evaluate his fitness to serve on the evaluate his fitness to serve, he has bono clients, anti-loitering statutes, disqualified himself for consideration D.C. Circuit. His repeated evasions sub- laws which often result in the arrests vert our solemn constitutional duty to by this body. We simply cannot vote up of a disproportionate number of Afri- or down on a nominee who both has no advise and consent to judicial nomina- can-Americans and Latinos. These laws tions. We should not permit a vote on judicial record and refused to provide have been repeatedly struck down for us with the information necessary for a judicial nominee who has so fun- violating free speech rights. On the damentally attempted to obstruct our us to gain even the most basic under- other hand, Mr. Estrada has argued on standing of his opinions, his outlook, confirmation process in this way. behalf of the First Amendment rights I am aware of the criticism that our or judicial philosophy. For these rea- of a large pharmaceutical company sons, I oppose his confirmation. action is unprecedented. This is simply charged with engaging in a deceptive not true. While such a step is not—and I suggest the absence of a quorum. advertising campaign. These two cases The PRESIDING OFFICER. The should not—be done routinely, filibus- make it appear that Mr. Estrada is clerk will call the roll. ters of judicial nominations have been more comfortable with asserting the The legislative clerk proceeded to undertaken under the leadership of First Amendments rights of giant cor- call the roll. both parties several times in recent porations than average citizens. He has Mr. FRIST. Mr. President, I ask years. According to the Congressional also argued in Federal court against unanimous consent that the order for Research Service, the Senate has at- the standing of civil rights organiza- the quorum call be rescinded. tempted to invoke cloture in response tions to vindicate the constitutional The PRESIDING OFFICER (Mr. to extended debate on judicial nomi- rights of their members. GRAHAM of South Carolina). Without nees 13 times since 1968. Indeed, cloture When one reviews Mr. Estrada’s pro- objection, it is so ordered. was sought after extended debate in re- fessional record, then, there appears to Mr. FRIST. Mr. President, as major- sponse to Republican-led opposition to be little to rebut the opinion offered by ity leader, I have not taken the oppor- no fewer than four of President Clin- Paul Bender, his supervisor for three tunity today to discuss the nomination ton’s judicial nominees. years at the Solicitor General’s office, of Miguel Estrada, although I did have These statistics do not take into ac- that Mr. Estrada is a ‘‘right-wing ideo- the opportunity to participate in the count the silent filibuster known as a logue’’ who ‘‘lacks [the] judgment . . . debate and the discussion that we had ‘‘hold’’—often anonymous—which per- to be an appeals court judge.’’ This earlier this evening. mits one objector to block consider- view, from the one person at the Solic- Of course it always on my mind, be- ation of a judicial nominee. President itor General’s office who knew his cause the filibuster that is being main- Clinton’s nominees were routinely de- work best, is damning. tained is very troubling. feated by anonymous holds. And those Of course, if we had access to Mr. Well, I wanted to find some time and holds only defeated the nominees who Estrada’s memorandums and opinions it is now 1:45 in the morning here in

VerDate Dec 13 2002 02:22 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00059 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.228 S26PT2 S2828 CONGRESSIONAL RECORD — SENATE February 26, 2003 Washington, and this time works for note that no one in the Executive Branch has What is more, like Mr. Estrada, both Judge me. reviewed these memoranda since President Rogers and Judge Garland declined to give As we have heard tonight, the lead- Bush took office in January 2001.) their personal views on disputed legal and ing obstacle to Miguel Estrada’s con- Second, you suggested that ‘‘no judicial policy questions at the hearing. Judge Rog- firmation are unprecedented requests nominee that I’m aware of, for such a high ers refused to give her views when asked court, has ever had so little of a record.’’ I about the notion of an evolving Constitu- by the minority of documents written respectfully disagree. Miguel Estrada has tion. And Mr. Garland did not answer ques- by Mr. Estrada when he worked for the been a very accomplished lawyer, trying tions about his personal views on the death Clinton Reno Justice Department. cases before federal juries, briefing and argu- penalty, stating that he would follow prece- Well, since we have time, I would ing numerous appeals before federal and dent. In short, we believe that your criticism like to read at length from a letter just state appeals courts, and arguing 15 cases be- of Mr. Estrada’s answers at his hearing re- released, this will be the first time fore the Supreme Court, among his other sig- veals that another unfair double standard is anyone has heard this letter to my col- nificant work. His record and breadth of ex- being applied to Mr. Estrada. perience exceeds that of many judicial nomi- league the Senator from New York Fourth, you stated that the Founding Fa- from Alberto Gonzales, President nees, which is no doubt why the American Bar Association—which you have labeled the thers ‘‘came to the conclusion that the Sen- Bush’s White House Counsel, and like ‘‘gold standard’’—unanimously rated him ate ought to ask a whole lot of questions’’ of Miguel Estrada, a fine legal mind. ‘‘well-qualified.’’ In noting yesterday that judicial nominees. We respect the Senate’s The letter is dated February 24, 2003, Mr. Estrada’s career had been devoted to constitutional role in the confirmation proc- and it begins: ‘‘arguing for a client,’’ you appeared to ess, and we agree that the Senate should make an informed judgment consistent with Dear Senator SCHUMER: Based on your pub- imply that only those with prior judicial its traditional role and practices. But your lic comments yesterday, I am concerned that service (or perhaps ‘‘a lot of [law review] ar- characterization of the Senate’s role with re- you may have inaccurate and incomplete in- ticles’’) may serve on the federal appeals spect to judicial nominations is not con- formation about Miguel Estrada’s qualifica- courts. But five of the eight judges currently sistent with our reading of historical or tra- tions and about the historical practice with serving on the D.C. Circuit had no prior judi- ditional practice. respect to judicial confirmations. Therefore, cial service at the time of their appoint- I write to respectfully reiterate and explain ments. Indeed, Supreme Court Justices Alexander Hamilton explained that the our conclusion that you and certain other Rehnquist, White, and Powell—to name purpose of Senate confirmation is to prevent Senators are applying an unfair double three of the most recent—had not served as appointment of ‘‘unfit characters from State standard—indeed, a series of unfair double judges before being confirmed to the Su- prejudice, from family connection, from per- standards—to Miguel Estrada. preme Court. And like Mr. Estrada, two ap- sonal attachment, or from a view to popu- First, your request for confidential attor- pointees of President Clinton to the D.C. Cir- larity.’’ The Federalist 76. The Framers an- cuit (Judge David Tatel and Judge Merrick ney-client memoranda Mr. Estrada wrote in ticipated that the Senate’s approval would Garland) had similarly spent their careers the Office of Solicitor General seeks infor- not often be refused unless there were ‘‘spe- ‘‘arguing for a client,’’ but were nonetheless mation that, based on our review, has not cial and strong reasons for the refusal.’’ Id. confirmed. been demanded from past nominees to the Moreover, the Senate did not hold hearings Now the letter goes on to quote from the federal courts of appeals. We are informed on judicial nominees for much of American Chief Justice: that the Senate has not requested memo- history, and the hearings for lower-court As the Chief Justice noted in his 2001 Year- randa such as these for any of the 67 appeals nominees in modern times traditionally have End Report, moreover, ‘‘[t]he federal Judici- court nominees since 1977 who had pre- not included the examination of personal ary has traditionally drawn from a wide di- viously worked in the Justice Department— views that you have advocated. (My letter of versity of professional backgrounds.’’ The including the seven nominees who had pre- February 12, 2003, to Senators Daschle and Chief Justice cited Justice Louis Brandeis, viously worked in the Solicitor General’s of- Leahy contains more detail on this point.) Justice John Harlan, Justice Byron White, fice. Indeed, just a few years ago, Senator BIDEN Judge Thurgood Marshall (as nominee to the Nor have such memoranda been demanded made clear, consistent with the traditional from nominees in similar attorney-client sit- Second Circuit), Judge Learned Hand, and Judge John Minor Wisdom as just a few ex- practice, that he would vote to confirm an uations: The Senate has not demanded con- appeals court judge if he were convinced that fidential memoranda written by judicial amples of great judges who had spent virtually their entire careers ‘‘arguing for a cli- the nominee would follow precedent and oth- nominees who had served as Senate lawyers, erwise was of high ability and integrity. such as memoranda written by Stephen ent’’ before becoming Supreme Court Jus- Breyer as a Senate counsel before Justice tices or federal appeals court judges. In short, it appears that you are seeking to Breyer was confirmed to the First Circuit in As these examples show, had the ‘‘arguing change the Senate’s traditional standard for 1980. Nor has the Senate demanded confiden- for a client’’ standard been applied in the assessing judicial nominees. We respect your tial memoranda written by judicial nomi- past, it would have deprived the American right to advocate a change, but we do not be- nees who had served as law clerks to Su- people of many of our most notable appellate lieve that the standard you seek to apply is preme Court Justices or other federal or judges. Based on our understanding, this consistent with the Framers’ vision, the tra- state judges. Nor has the Senate demanded standard has not been applied in the past. ditional Senate practice, or the Senate’s confidential memoranda written by judicial This further explains why we have concluded treatment of President Clinton’s nominees. nominees who had worked for private cli- that an unfair double standard is being ap- Rather, we believe a new standard is being ents. plied to Miguel Estrada. devised and applied to Miguel Estrada. The very few isolated examples you have Third, you stated that ‘‘when you went to Fifth, you stated yesterday that a ‘‘fili- cited were not nominees for federal appeals those hearings, Mr. Estrada answered no buster’’ is not an appropriate term to de- courts. Moreover, those situations involved questions.’’ The record demonstrates other- scribe what has been occurring in the Sen- Executive Branch accommodations of tar- wise. Mr. Estrada answered more than 100 ate. We respectfully disagree. Democrat Sen- geted requests for particular documents questions at his hearing, and another 25 in ators have objected to unanimous consent about specific issues that were primarily re- follow-up written answers. He explained in motions to schedule a vote, and they have lated to allegations of malfeasance or mis- some detail his approach to judging on many indicated that they will continue to do so. conduct in a federal office. We respectfully issues, and did so appropriately without pro- That tactic is historically and commonly do not believe these examples support your viding his personal views on specific legal or known as a filibuster, and is a dramatic esca- request. Our conclusion about the general policy questions that could come before lation of the tactics used to oppose judicial lack of support and precedent for your posi- him—which is how previous judicial nomi- nominees. Indeed, in 1998, Senator LEAHY tion is buttressed by the fact that every liv- nees of Presidents of both parties have ap- stated: ing former Solicitor General (four Demo- propriately answered questions. Indeed, at crats and three Republicans) has strongly his hearing, Mr. Estrada was asked and an- I have stated over and over again on this opposed your request and stated that it swered more questions, and did so more floor that I would refuse to put an anony- would sacrifice and compromise the ability fully, than did President Clinton’s ap- mous hold on any judge; that I would object of the Justice Department to effectively rep- pointees to this same court. Judge David and fight against any filibuster on a judge, resent the United States in court. In short, Tatel was asked a total of three questions at whether it is somebody I opposed or sup- the traditional practice of the Senate and his hearing. Judges Judith Rogers and ported; that I felt the Senate should do its the Executive Branch with respect to federal Merrick Garland were each asked fewer than duty. If we don’t like somebody the Presi- appeals court nominations stands in contrast 20 questions. The three appointees of Presi- dent nominates, vote him or her down. But to your request here and supports our con- dent Clinton combined thus answered fewer don’t hold them in this anonymous uncon- clusion that an unfair double standard is than half the number of questions at their scionable limbo, because in doing that, the being applied to Miguel Estrada. (Also, con- hearings that Mr. Estrada answered at his minority of Senators really shame all Sen- trary to your suggestion yesterday, please hearing. ators.’’ 144 Cong. Rec. S6522 (June 18, 1998). In

VerDate Dec 13 2002 03:37 Feb 28, 2003 Jkt 019060 PO 00000 Frm 00060 Fmt 0624 Sfmt 0634 E:\CR\FM\G26FE6.230 S26PT2 February 26, 2003 CONGRESSIONAL RECORD — SENATE S2829 our judgment, the tactics now being em- [Democrats] have demanded not only sup- Nor is it fair to reject someone as a judge be- ployed again show that Miguel Estrada is re- plementary detailed responses to political cause that person’s decision to practice law, ceiving differential treatment. inquiries, but also Mr. Estrada’s confidential rather than write articles or engage in poli- Now Judge Gonzales Concludes this way, memoranda written while he was an assist- tics, makes his views more opaque. And it is addressing himself to Senator Schumer: ant solicitor general. Every living solicitor terribly wrong to demand that Mr. Estrada As I have said before, I appreciate and re- general, Democratic and Republican, has answer charges to which nobody is willing to spect the Senate’s constitutional role in the gone on record to oppose this unwarranted attach his or her name. confirmation process. You have expressed intrusion into the deliberative process in the concern that you do not know enough about The Press-Enterprise, Riverside, CA, Justice Department. And the Bush adminis- entitled ‘‘Advice and Filibuster,’’ 2/18/ Mr. Estrada’s views, but you have not sub- tration has been correct to resist Democratic mitted any follow-up questions to him. We demands. 03: respectfully submit that the Senate has Chicago Tribune, 2/10/03: Democratic senators are frustrated by the ample information and has had more than White House’s refusal to release to them enough time to consider questions about the The Justice Department has refused to re- memoranda he wrote as solicitor general. qualifications and suitability of a nominee lease Estrada’s memos, noting that such doc- But in the best of times, such a request submitted more than 21 months ago. Most uments have always been regarded as con- would be out of line, and these are closer to important, we believe that a majority of fidential. Every living former solicitor gen- the worst than to the best for the nomina- Senators have now concluded that they pos- eral, Democratic and Republican, has pub- tion process. If the memoranda were to be sess sufficient information on Mr. Estrada licly endorsed that position. They say mak- used as an honest beginning to a discussion and would vote to confirm him. We believe it ing the documents public would discourage of Mr. Estrada’s legal views, there might be is past time for the Senate to vote on this government lawyers from offering candid ad- some justification for releasing the docu- nominee, and we urge your support. vice. Anyone who wants a glimpse into ments that would normally be considered Sincerely, Estrada’s thinking can scrutinize the briefs privileged. One suspects that’s not the role ALBERTO R. GONZALES he wrote and oral arguments he made. the Democrats have in mind for the memo- Counsel to the President Detroit News, 2/11/03: randa. They probably hope to expose Mr. Now as we heard earlier an enormous Democrats also demanded that he produce Estrada’s conservative views, which no one number of editorials, over 60 editorials his memos and recommendations while he doubts he holds, in hopes of defeating the all over the country have opposed the was in the solicitor general’s office—which nomination or at least scoring some political Democrat filibuster and support Miguel had never been done for any other candidate points. Estrada. Only eight have taken the who had been an assistant in that office. The Winston-Salem Journal, 2/20/03: demand was rejected not only by Estrada, Democrat view of things—only eight. [Democrats] have demanded that [Mr. but by every former solicitor general still It is clear to anyone that what the Estrada] turn over confidential papers from living, including those who served Demo- minority is doing in filibustering his years as solicitor general. Congress cratic presidents. Miguel Estrada’s nomination is far should not be asking for such material, as all from the mainstream of what thought- Tampa Tribune, 2/10/03: living solicitors general have said in a letter. ful people are thinking across this Yet the Democrats claim they don’t know Mr. President, as I said, over 60 edi- country. enough about Estrada. They have demanded torials share this view. Only 8 have ex- Mr. President, I will read from just a to see copies of his work in the Justice De- partment, intentionally seeking papers they pressed an opposite view. few of these: knew to be confidential. Because Estrada did Mr. President, the hour is late, or First, on the question of the Solicitor not turn them over, they have attempted to early, depending on how you see it. I General memos: crucify him, this despite letters from former hope that my friends on the other side Boston Herald, 2/14/03: solicitors general complaining that their de- of the aisle will see differently tomor- The latest [bad argument] has to do with mand amounted to legislative overreach and row in the light of day. the White House’s refusal to release memos that acceding to it would set a dangerous and documents written by Estrada during his precedent. f tenure in the solicitor general’s office. Now St. Louis Post-Dispatch, 2/7/03: all of the living former solicitors general— LEGISLATIVE SESSION four Democrats and three Republicans—hap- Mr. Estrada is an immigrant from Hon- pen to agree with the White House position. duras who went to Harvard Law School, There is such a thing as attorney-client clerked on the Supreme Court and worked in privilege, even for the solicitor general. the Solicitor General’s office. Democrats, MORNING BUSINESS frustrated by the absence of a paper trail, South Carolina’s Spartenburg Herald and Mr. Estrada’s sometimes-evasive an- Mr. FRIST. Mr. President, I ask Journal, 2/14/03: swers on issues such as abortion, tried to get unanimous consent that the Senate re- The administration refused to turn over legal memos that Mr. Estrada wrote while in turn to Legislative Session and proceed his Justice Department memos—though no the Solicitor General’s office. But both to a period of morning business. reasonable Congress ought to be seeking Democratic and Republican solicitors gen- The PRESIDING OFFICER. Without such material, as a letter from all living eral have urged that the memos be kept pri- objection, it is so ordered. former solicitors general attests. They have vate so that future solicitors general receive asked the White House to release internal candid views from their staff. In short, the f legal memos he wrote while working for the Democratic position doesn’t justify a fili- Solicitor General’s Office. These are docu- buster. RACE-SENSITIVE ADMISSIONS: ments that are usually kept within the Washington Post, 2/5/03: BACK TO BASICS White House. In fact, every living former solicitor general, four Democrats and three Re- Mr. Estrada’s nomination in no way justi- Mr. FRIST. Mr. President, I ask publicans, are against releasing the memos. fies a filibuster. The case against him is that unanimous consent that the following Presidents rely on the Solicitor General’s Of- he is a conservative who was publicly criti- paper, ‘‘Race-sensitive Admissions: fice to give them legal advice. They cized by a former supervisor in the Office of Back to Basics,’’ by William G. Bowen, don’t want those lawyers to be wor- the Solicitor General, where he once worked. He was not forthcoming with the committee president emeritus of Princeton Uni- rying about how their memos will im- in its efforts to discern his personal views on versity, and Neil L. Rudenstine, presi- pact future attempts to win judicial controversial issues—as many nominees are dent emeritus of Harvard University, seats. The White House has refused to not—and the administration has (rightly) de- be printed in the RECORD. release the documents. clined to provide copies of his confidential There being no objection, the mate- California’s Redding Record Search- memos from his service in government. rial was ordered to be printed in the light, 2/15/03: Also from the Washington Post, Sep- RECORD, as follows: Well, but the administration won’t hand tember 29 of last year: The controversy (and confusion) sur- over memos he wrote when he was in the so- Democrats are still pushing to see con- rounding the White House’s recent state- licitor general’s office, say the Senate Demo- fidential memos Mr. Estrada wrote in the so- ments on the use of race in college and uni- crats. It apparently does not matter to them licitor general’s office and trumpeting criti- versity admissions indicate the need for that publicizing them could rob future cism of him by a single supervisor in that of- careful examination of the underlying issues. memos of their candor and that every former fice—criticism that has been discredited by The Justice Department has filed a brief solicitor general of either party has said the that same colleague’s written evaluations. with the U.S. Supreme Court urging it to de- Democrats seek too much. Seeking Mr. Estrada’s work product as a clare two race-sensitive policies at the Uni- Rhode Island’s Providence Journal- government lawyer is beyond any reasonable versity of Michigan unconstitutional; how- Bulletin, 2/14/03: inquiry into what sort of judge he would be. ever, the brief does not rule out ever taking

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