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, TUESDAY, FEBRUARY 25, 2003 No. 30 Senate The Senate met at 9:30 a.m. and was SCHEDULE not important enough to be on the called to order by the President pro Mr. BENNETT. Mr. President, the floor at this stage. tempore (Mr. STEVENS). Senate will spend the day in executive So I would hope that everyone would The PRESIDENT pro tempore. To- session deliberating, once again, and understand that we are anxious to day’s prayer will be offered by our for the ninth day, the nomination of move on to other judicial nominations. guest Chaplain, Dr. George D. McKin- Miguel Estrada to be a circuit court We are anxious to move on to other ney, of Saint Stephens’s Church of God judge for the DC Circuit. The Senate legislative matters. But as long as in Christ in San Diego, CA. will recess from 12:15 to 2:30 for the Miguel Estrada refuses to answer the weekly party lunches. Between now questions or to submit the memos that PRAYER and the next recess we have a number we have requested, this is going to be The guest Chaplain offered the fol- of important issues that the majority the procedural posture of the Senate. lowing prayer: leader would like to see addressed. The PRESIDING OFFICER (Mr. COR- May we pray together. Therefore, he hopes we can get passed NYN). The Senator from Utah. Eternal God, Creator of the universe, this delay and let the Senate work its Mr. HATCH. Mr. President, I have the Source of life, order, and truth, we will on this nomination. Senators listened to the distinguished Senator bow in reverence in Your presence. We should be advised, therefore, that roll- from Nevada, and I have a few things thank You for divine favor and all the call votes are possible during the day. to say. values and principles that continue to The PRESIDENT pro tempore. The Mr. President, I rise today to ad- shape our national character and chal- deputy minority leader. dress, once again, the nomination of lenge us to greatness. Mr. REID. Mr. President, I say to my Miguel Estrada for the United States We pray for our Nation, our Presi- friend—in fact, the two Senators from Court of Appeals for the District of Co- dent, his family, Cabinet, and advisors. Utah—that, as I indicated to the ma- lumbia Circuit. Grant wisdom and courage to the Sen- jority leader last night, there are three Are we ready to go? ators as they fulfill their responsibility ways we can move off Estrada. The The PRESIDING OFFICER. Will the to our great Nation. Empower all who nomination can be pulled. The decision Senator suspend for the Senate to lay shoulder the responsibility of leader- can be made by this administration down the pending orders, please. ship and servanthood. May our duties that he will supply the memos from the f become delightful because of Your gifts Solicitor’s Office while he worked RESERVATION OF LEADER TIME of joy, faith, and hope. there that he wrote and allow more Lord, we are grateful for the privi- questioning of Estrada. Thirdly, the The PRESIDING OFFICER. Under lege of working together with You for majority leader can file a motion to in- the previous order, the leadership time peace and justice for all people. We af- voke cloture to see if there are the 60 is reserved. firm with our Founding Fathers and votes to move ahead. f Mothers that we are one Nation under If that does not happen, we can stay God, with a common goal of liberty and on Estrada for a long time. If there are EXECUTIVE SESSION justice for all. Amen. other things to do—and I mentioned yesterday I doubt that there are—if f there are other things to do, then let’s NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE PLEDGE OF ALLEGIANCE move to those. If not, then we can stay in this procedural quagmire, which is UNITED STATES CIRCUIT JUDGE The PRESIDENT pro tempore led the something that has been done in the FOR THE DISTRICT OF COLUM- Pledge of Allegiance, as follows: past. BIA CIRCUIT I pledge allegiance to the Flag of the As I indicated yesterday, there have The PRESIDING OFFICER. Under United States of America, and to the Repub- been, of course, filibusters of Presi- the previous order, the Senate will now lic for which it stands, one nation under God, dential nominations in the past and go into executive session and resume indivisible, with liberty and justice for all. Presidential nominations of judges. consideration of Executive Calendar f They usually are not as open and noto- No. 21, which the clerk will report. rious as this, the reason being they The legislative clerk read the nomi- RECOGNITION OF THE ACTING come at a later time in the session nation of Miguel A. Estrada, of Vir- MAJORITY LEADER where time is of the essence. Now time ginia, to be United States Circuit The PRESIDENT pro tempore. The is not of the essence. There are other Judge for the District of Columbia Cir- acting majority leader. things that the leader has decided are cuit.

∑ 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 Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00001 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2622 CONGRESSIONAL RECORD — SENATE February 25, 2003 The PRESIDING OFFICER. The Sen- you do, as I think a majority does in letter from all living former solicitors gen- ator from Utah. this body, we would vote aye. Do as eral attests. He is not a real Hispanic and, by Mr. HATCH. Mr. President, I rise in your conscience dictates you must, but the way, he was nominated only because he favor of the nomination of Miguel is Hispanic—two arguments as repugnant as do not prolong the obstruction of the they are incoherent. Underlying it all is the Estrada for the United States Court of Senate by denying a vote on this nomi- fact that Democrats don’t want to put a con- Appeals for the District of Columbia nation. Do not continue to treat the servative on the court. Circuit. third branch of our Federal Govern- Laurence H. Silberman, a senior judge on We started the debate on this nomi- ment—the one branch intended to be the court to which Mr. Estrada aspires to nation during the week of February 3. insulated from political pressures— serve, recently observed that under the cur- We debated the entire week of Feb- rent standards being applied by the Senate, with such disregard that we filibuster not one of his colleagues could predictably ruary 10. And now here we are again in its nominees. Do not perpetuate this secure confirmation. He’s right. To be sure, our third week of debate, all because campaign of unfairness. Vote for him Republicans missed few opportunities to play some of my Democratic colleagues or vote against him but just vote. politics with President Clinton’s nominees. refuse to allow an up-or-down vote on Now, an editorial that appeared in But the Estrada filibuster is a step beyond this nomination. the Washington Post last week even those deplorable games. For Democrats The renowned former Senator from summed it up well. This editorial, demand, as a condition of a vote, answers to Massachusetts, Henry Cabot Lodge, questions that no nominee should be forced aptly entitled, ‘‘Just Vote’’ observed— to address—and that nominees have not pre- once said that ‘‘[t]o vote without de- let me read the one part I want to em- viously been forced to address. If Mr. Estrada bating is perilous, but to debate and phasize, though I would not mind read- cannot get a vote, there will be no reason for never vote is imbecile.’’ Yet that is ing the whole thing— Republicans to allow the next David S. precisely what is happening on Mr. The arguments against Mr. Estrada’s con- Tatel—a distinguished liberal member of the Estrada’s nomination. We are debating firmation range from the unpersuasive to the court—to get one when a Democrat someday and debating and debating the same offensive. He lacks judicial experience, his again picks judges. Yet the D.C. Circuit—and points again and again but never actu- critics say—though only three current mem- all courts, for that matter—would be all the bers of the court had been judges before their poorer were it composed entirely of people ally voting on the nomination. Enough whose views challenged nobody. is enough. It is time to vote. nominations. He is too young—though he is about the same age as Judge Harry T. Nor is the problem just Mr. Estrada. John My Republican colleagues and I have G. Roberts Jr., Mr. Bush’s other nominee to Edwards was when he was appointed [by the D.C. Circuit, has been waiting nearly two tried to get an agreement to vote on President Carter] and several years older years for a Judiciary Committee vote. No- Mr. Estrada’s nomination no fewer than Kenneth W. Starr was when he was body has raised a substantial argument than three separate times. Each time, nominated. Mr. Estrada stonewalled the Ju- against him. Indeed, Mr. Roberts is among our Democratic colleagues blocked our diciary Committee, they claim, by refusing the most highly regarded appellate lawyers efforts. I even suggested that we agree to answer questions—though his answers in the city. Yet on Thursday, Democrats in- to debate on this nomination for 10 were similar in nature to those of previous voked a procedural rule to block a com- hours, then 20 hours, then up to 50 nominees, including many nominated by mittee vote anyway—just for good measure. hours before voting. Fifty hours. That Democratic presidents. The administration It’s long past time to stop these games and refused to turn over his Justice Department vote. is 10 hours of solid debate every day for memos—though no reasonable Congress the entire week, and 2 1⁄2 times the ought to be seeking such material, as a let- I think the Washington Post has it amount of time that we give for a rec- ter from all living former solicitors general just right. The fact is there hasn’t been onciliation bill around here. But each attests. He is not a real Hispanic and, by the one good argument used against Mr. time, our Democratic friends rejected way, he was nominated only because he is Estrada. They can’t point to one rea- our entreaties, without hesitation or Hispanic—two arguments as repugnant as son he should not be confirmed to this even good explanation. they are incoherent. Underlying it all is the circuit court of appeals. They can’t We have to ask ourselves why our fact that Democrats don’t want to put a give one logical, good, substantive rea- thinking conservative [Hispanic] on the son to reject him. But I still grant colleagues across the aisle are so in- court. tent on preventing a vote on Mr. them the right to vote against him if That is what it comes down to. Estrada’s nomination. I have heard all that is the way they feel. If they in Continuing from the Post: of their arguments. They allege he did their hearts feel that this man will not It’s long past time to stop these games and operate on the court the way he not answer their questions, that he vote. lacks judicial experience, and that he should, then, by gosh, they have a right I will read the editorial from begin- cannot be confirmed before they see to do that. Naturally, I do take opposi- ning to end because it is the Wash- confidential and privileged memos he tion or issues with the Post’s charac- ington Post. A lot of my friends on the authored at the Solicitor General’s Of- terization of how we treated the Clin- other side love the Washington Post. I ton nominees, but other than that, I fice, just to name a few. And those have to say that I love it, too, but not think it is dead on. memos were his recommendations to for the same reasons. This is what it Let me tell you why I take opposi- the Solicitor General with regard to says: tion. If you look at the facts, as I have appeal decisions, with regard to certio- said before, President Reagan was the rari decisions, with regard to amicus The Senate has recessed without voting on the nomination of Miguel Estrada to the all-time confirmation champion. He curiae decisions—very specific infor- U.S. Court of Appeals for the D.C. Circuit. amazingly got 382 judges confirmed. mation that, if compromised and Because of a Democratic filibuster, it spent But he had 6 years of a Republican forced to be given to the Congress of much of the week debating Mr. Estrada, and, Senate, with control of the Judiciary the United States, could chill any fu- at least for now, enough Democrats are hold- Committee by Republicans, to help ture honest recommendations. ing together too prevent the full Senate from him to do that. I have heard so much But all of these arguments they have acting. The arguments against Mr. Estrada’s whining from the other side about how raised are reasons they believe Mr. confirmation range from the unpersuasive to badly President Clinton’s nominees Estrada should not be confirmed. As the offensive. He lacks judicial experience, his critics say—though only three current were treated. It is repeated in this edi- misguided and wrong as they are, these members of the court had been judges before torial to a limited degree. But the fact are reasons my Democratic friends be- their nominations. He is too young—though is, President Clinton got virtually the lieve they should vote against Mr. he is about the same age as Judge Harry T. same number as President Reagan. Estrada. None of those arguments jus- Edwards was when he was appointed and sev- Three hundred seventy-seven Federal tifies the continuation of this filibuster eral years older than Kenneth W. Starr was judges were confirmed during Presi- to prevent an up-or-down vote on Mr. when he was nominated. Mr. Estrada dent Clinton’s 8 years, and for 6 of Estrada’s nomination. stonewalled the Judiciary Committee by re- those years the Republicans controlled So I say now to my Democratic fusing to answer questions—though his an- the Senate and the Senate Judiciary friends: Vote for him or vote against swers were similar in nature to those of pre- vious nominees, including many nominated Committee. He was treated very fairly. him. That is what we should do. If you by Democratic presidents. The administra- If you go back in time, when Presi- don’t like Mr. Estrada, if you don’t be- tion refused to turn over his Justice Depart- dent Bush was President, Bush 1, when lieve he has the capacity to be a circuit ment memos—though no reasonable Con- he left his Presidency and the Demo- court of appeals judge, vote no. But if gress ought to be seeking such material, as a crats controlled the committee at that

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00002 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 25, 2003 CONGRESSIONAL RECORD — SENATE S2623 time, there were 97 vacancies and 54 I think it is important to note again we are entering into a sad new chapter left holding. In other words, 54 nomi- what some of my colleagues had to say in the confirmation of judicial nomi- nees did not get heard. By the way, one about filibustering judicial nominees nees. It is a chapter where the will of a of them was John Roberts, who has when there was a Democrat in the minority of the Members of this body been sitting here for 11 years, nomi- White House. The ranking member of can obstruct the confirmation of a nated three times by two different the Judiciary Committee, the Senator lower court nominee. Simply put, it is Presidents for this circuit court of ap- from Vermont, said in 1999: tyranny of the minority, and it is un- peals job. It isn’t just 2 years, as the I . . . do not want to see the Senate go fair. Post said; it is 11 years, going on 12. down a path where a minority of the Senate I have to admit there were some on That is disgraceful. He is considered is determining a judge’s fate on votes of 41. our side during the Clinton years who one of the two greatest appellate law- The distinguished Senator from Cali- wanted to filibuster some of his judges. yers in the country, arguing 39 cases fornia, who also serves on the Judici- In all honesty, I fought against that before the Supreme Court. Yet he was ary Committee, likewise said in 1999: and helped to prevent it. We never had blocked last week in committee as A nominee is entitled to a vote. Vote them a true filibuster against a circuit court well. up; vote them down. of appeals nominee. I thought it was The fact is, when President Clinton She continued: unfair then, and I think it is unfair left office and I was still chairman of today. the committee, there were 41 left hold- It is our job to confirm these judges. If we don’t like them, we can vote against them. It is significant that, in addition to ing. There were 67 vacancies, 30 fewer That is the honest thing to do. If there are the Washington Post, many other fine than when the Democrats last held the things in their background, in their abilities newspapers across the country, from committee with a Republican Presi- that don’t pass muster, vote no. California to Maine, have taken note of dent leaving office. And there were 41 My colleague from Massachusetts, a what is going on in the Senate and left holding versus the 54 left by the former Judiciary Committee chairman, have spoken out against a filibuster. Democrats. We didn’t cry about that— said in 1998: These are newspapers that generally do at least I didn’t. That is part of the Nominees deserve a vote. If our Republican not, as a matter of regular practice, process. There are always some left colleagues don’t like them, vote against comment on the Senate’s confirmation holding because it is a difficult process them. But don’t just sit on them—that is ob- of Federal judges. The fact that these to get through. Could we have done struction of justice. newspapers have chosen to speak out better? I think we could have done bet- I wonder why it was obstruction of against a filibuster of Mr. Estrada—a ter; I will acknowledge that. The fact justice then but it is not today. It does nominee with no connection to their is, we didn’t cry when they left 54 appear to be a double standard, as own State—says quite a lot about the hanging, and they shouldn’t be crying White House counsel said this week on blatant unfairness of what is going on because 41 of theirs were left hanging. television. There is a double standard here. By the way, of the 41, at least 9 were being applied to this Hispanic nominee, Take, for example, the Riverside, CA, put up so late no committee chairman without any legitimate, logical, good Press-Enterprise. In a February 18 edi- could have gotten them through, so it reason for holding him up. torial, it said: was really only 32. And if you go back I think I have made my point. When The Democrats’ tactic employed last week through these, for many there was no the shoe was on the other foot—when a of filibustering the nomination of [Mr. consultation with the Republican Sen- Democratic President was the one Estrada] . . . is an anything-goes strategy ators, an absolute must in order to nominating Federal judges—my Demo- that ought to be abandoned. confirm people. cratic colleagues stood firm against This is a newspaper that happens to I happen to know this administration the idea that a judicial nominee should agree with the Democrats’ conten- is consulting with Democrat Senators. be denied a vote. But now that it is a tion—which I think is absolutely base- To the degree that Senators say they Republican President nominating Fed- less—that Mr. Estrada was not com- are not, that is because they interpret eral judges, things are obviously dif- pletely open during his testimony be- the consultation to mean doing what ferent to them. They apparently no fore the Judiciary Committee. It is they want rather than what the Presi- longer believe it is a problem to go also a newspaper that was pretty harsh dent wants. That is not the definition down a path where a minority of the on us Republicans in the same edi- of consulting. torial—unjustly, in my view, but that There is a point here that bears re- Senate is determining a judge’s fate on votes of 41, or requiring a super- is a different story. The point is that peating because I believe that in the its anti-filibuster position is even more debate over Mr. Estrada’s nomination majority vote of 60 in order to have a nominee approved and confirmed—even credible. The Press-Enterprise is say- this point has been lost. My Demo- ing that even if you did not like the cratic colleagues have articulated though our obligation is to advise and way Mr. Estrada answered questions every reason under the Sun they be- consent. That means a vote up or down. before the committee, that is no reason lieve they should vote against Mr. They no longer believe that voting on a nominee—whether for or against—is to filibuster his nomination. Estrada, yet they will not allow his As they concluded: nomination to proceed to a vote. Why the honest thing to do, and they no [T]he process has to stop at some point. is this? I will tell you what I think, longer believe that denying nominees a vote is obstruction of justice—which is It’s one of advice and consent, not advise and plainly put, with no window dressing: I confront. think it is because they are afraid Mr. what they called it when they had the Presidency. And liberals were being Let’s look at what some of the other Estrada will be confirmed if there is a newspapers across the country have vote on his nomination. I predict he nominated and confirmed by us then. There is no question that we are in been saying since this filibuster started will be. They believe a majority of the 3 weeks ago. Like the Riverside Press- Members of this body will vote to con- the middle of a full-blown filibuster of Mr. Estrada’s nomination. The Senator Enterprise, many of these newspapers firm him. are quite harsh on us Republicans, too, The only way they can prevent this from New York, Mr. SCHUMER, has said but they are united on one point: The from happening is to filibuster his they are not filibustering. What the filibuster of Mr. Estrada’s nomination nomination. As I said last week, when heck is it then? Preventing a vote up is unfair and it should end. a minority of Senators prevent a ma- or down on the nominee is called a fili- Another California newspaper, the jority from voting on a judicial nomi- buster. They can prevent a vote, as Redding Record Searchlight, had this nation, it is nothing but tyranny of the long as they can require us to get 60 to say: minority. It is unfair, and it has no votes and as long as they have at least place in the process we use to confirm 41 votes against cloture. Never before This filibuster comes at a time when there are all sorts of pressing issues before the na- judges. has an appellate court nominee—or any tion. The tactic has no excuse. . . . If liberals Last week, I noted that some of my lower court nominee, for that matter— in the Senate think conservatives will spell Democratic colleagues were not always been defeated through a filibuster. the end of civilization if they become judges, so eager to use a filibuster to prevent a If this filibuster is successful, if Mr. they can vote against Estrada. Keeping oth- vote on judicial nominations. Estrada’s nomination is denied a vote, ers from voting their consciences on this

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00003 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2624 CONGRESSIONAL RECORD — SENATE February 25, 2003 particular matter is more than slightly rep- But in the best of times, such a request tion. The tactic has no excuse (although rehensible. would be out of line, and these are closer to there are explanations, such as a Democratic The Bangor Daily News in Maine the worst than to the best for the nomina- fear that Estrada would be in line for a Su- wrote that the Democrats: tion process. If the memoranda were to be preme Court nomination if he gets this other used as an honest beginning to a discussion judgeship first). If liberals in the Senate are mistreating a fellow citizen through of Ms. Estrada’s legal views, there might be think conservatives will spell the end of civ- the same means they fear an unqualified some justification for releasing the docu- ilization if they become judges, they can judge would employ: using their authority to ments that would normally be considered vote against Estrada. Keeping others from harshly punish someone on ideological privileged. voting their consciences on this particular grounds. It is unfair no matter which party One suspects that’s not the role the Demo- matter is more than slightly reprehensible. does it and it is harmful to the working of crats have in mind for the memoranda. They the Senate. probably hope to expose Mr. Estrada’s con- [From the Bangor Daily News, Feb. 19, 2003] Well, amen to that. servative views, which no one doubts he VOTING ON ESTRADA holds, in hopes of defeating the nomination The Providence Journal-Bulletin in George Washington took office April 30, Rhode Island said: or at least scoring some political points. The two parties have been allowing their 1789, but the Senate waited until Aug. 5 of The point about Miguel Estrada is not that political battles over judicial nominees to that year to reject one of his nominees— he may or may not harbor conservative judi- escalate since Robert H. Bork’s nomination Banjamin Fishbourn of Georgia, one of 102 cial opinions. The point is that he is an in- to the U.S. Supreme Court in 1987. One sus- appointments submitted by President Wash- spiring American success story, a brilliant pects that Republicans, if they were in the ington to become collectors, naval officers scholar, a distinguished public servant, and minority, would have done the same with the and surveyors of seaports. The Senate thus an outstanding lawyer. For Senate Demo- Estrada nomination. The parties need to de- established the use of its authority for ad- crats to talk down his nomination is not just escalate. vise and consent and simultaneously dem- embarrassing, but outrageous. A first step would be to not filibuster onstrated that no appointment is too minor The Grand Forks Herald in North Da- nominations like this one of a well-qualified to fret over. kota wrote in an editorial entitled nominee. He’s distinctly an American suc- Just before they left for vacation last ‘‘Stop the Filibuster’’ that Senate cess story, having immigrated from Hon- week, Senate Democrats had begun what they say will be an extended filibuster of the Democrats ‘‘should back off and let the duras, gone to Columbia and Harvard and served as a clerk to a Supreme Court justice. nomination of Miguel Estrada, nominated in Senate vote.’’ May 2001 by President Bush to become U.S. The Chicago Sun-Times asked: Democrats, or Republicans when they are in the minority, may fairly make things circuit judge for the District of Columbia [W]ho can look at the spectacle of the tough on a nominee in committee or on the Circuit. The Democrats say they do not have 108th Congress and not believe that both jus- Senate floor, in order to fashion nominations enough information about the nominee and tice and the basic operation of the Nation is more to their liking. But the process has to cannot persuade him to talk sufficiently being sacrificed on the altar of ugly, obstruc- stop at some point. It’s one of advice and about his judicial philosophy so cannot allow tionist, partisan politics? consent, not advise and confront. a vote. They continued: This lack of information, however, has not Our legal system cannot and must not be [From the Redding Record Searchlight, Feb. stopped conservative groups from strongly held hostage to political nitpicking. 15, 2003] supporting the nomination and liberal groups from strongly opposing it. They know The Rochester, NY, Democrat and SENATE LIBERALS SHOULD NOT FEAR VOTE FOR JUDGE enough to choose a position, as do the Demo- Chronicle opined: Miguel Estrada is—oh no, oh no, can it crats, who actually mean by insufficient in- Yet another fight over a judicial nominee be?—a conservative, and if that makes your formation that they would like to reject a should not descend to filibuster. heart pound with fear, you may very well be Bush nominee but were hoping to find a larg- The Detroit News wrote: a Democrat serving in the Senate. You would er reason for doing so than the fact that Mr. Estrada apparently supports strong anti-loi- Estrada should have his nomination put up then be among those trying to thwart tering laws, to the detriment of migrant for an ordinary vote, as have all of his prede- majoritarian decision-making with a fili- workers. cessors. If he loses, fair enough. But a fili- buster, there being no chance that an honest Democratic Sen. Harry Reid of Nevada a buster would signal an unreasonable posture vote will go your way. couple of weeks ago quoted comments his by Democratic Senators that could have It’s irresponsible and an outrage, this Republican colleagues offered during the long-term—and damaging—consequences for hysteria being acted out by the Democrats Clinton administration on the requirement how business is conducted in the U.S. Sen- to keep Estrada from serving on the U.S. that the Senate ‘‘do what it can to ascertain ate. Court of Appeals for the District of Colum- the jurisprudential views a nominee will Mr. President, I ask unanimous con- bia. But the Democrats do have their ex- cuses, each more petty and pathetic than the bring to the bench,’’ to use an example from sent that these and other editorials next. Republican Sen. Orrin Hatch of Utah. (Sen. from newspapers across the Nation One excuse is that they just don’t know Reid also offered numerous precedents in condemning the filibuster of Mr. enough about this fellow, but there is a life which memoranda of the sort Mr. Estrada Estrada’s nomination be printed in the history here, and a rather amazing one: wrote while advising the solicitor general have been made public, as they have not RECORD. Estrada immigrated to this country from There being no objection, the mate- Honduras, graduated with honors at Colum- with this nomination.) Sen. Reid’s point, of course, is that if this behavior was accept- rial was ordered to be printed in the bia College, was editor of the Law Review at Harvard Law School, was a clerk to a Su- able for Republicans it ought to be accept- RECORD, as follows: preme Court justice, has argued before the able for Democrats. But for the public, it is [From the Press-Enterprise, Feb. 18, 2003] Supreme Court 15 times, has done pro bono not acceptable in either case. The process of filling a vacancy in the fed- work for a down-and-outer and has received The Senate has a long history of rejecting eral judiciary is a political one. The Found- the highest possible recommendation of the presidential nominations, from Cabinet ap- ing Fathers placed it into a political area. American Bar Association. pointments right down to surveyors of sea- The president nominates and the Senate con- Well, but the administration won’t hand ports. Democrats, having drawn out this firms—or doesn’t—but that doesn’t mean over memos he wrote when he was in the so- nomination for maximum political effect, anything goes. licitor general’s office, say the Senate Demo- now face the questions of backlash for ap- The Democrats’ tactic employed last week crats. It apparently does not matter to them pearing to beat up a nominee. More impor- of filibustering the nomination of Miguel A. that publicizing them could rob future tantly, they are mistreating a fellow citizen Estrada to the U.S. Court of Appeals for the memos of their candor and that every former through the same means they fear an un- District of Columbia Circuit is an anything- solicitor general of either party has said the qualified judge would employ: using their au- goes strategy that ought to be abandoned. Democrats seek too much. thority to harshly punish someone based on However, with 49 Democratic senators, they But listen, the Democrats continue, ideological grounds. It is unfair no matter are likely to be able to muster the 41 votes Estrada refused to blab his heart out when which party does it and it is harmful to the needed to maintain a filibuster. he appeared before a Senate committee, as if working of the Senate. What makes the filibuster inappropriate is they did not know that its violates widely The Democrats should consider that the that it is rarely used to block a judicial endorsed principles to indicate beforehand information they have in hand is all they nominee, and Mr. Estrada hardly qualifies as how you as a judge might decide cases that will get and allow, even encourage, a vote. If a target for such a big gun. Yes, he was not could come before you. Estrada did say he the information is insufficient, they should completely open with members of the Judici- would be an impartial judge loyal to the law. vote no and see if they can round up enough ary Committee when he appeared, and Demo- On other topics—his broad political views— votes to block the nomination. If it is suffi- cratic senators are frustrated by the White he was relatively quiet, which is fine. cient and they have no substantial questions House’s refusal to release to them memo- This filibuster comes at a time when there about Mr. Estrada’s abilities, they should randa he wrote as solicitor general. are all sorts of pressing issues before the na- vote yes even if they do not agree with all of

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00004 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 25, 2003 CONGRESSIONAL RECORD — SENATE S2625 his politics. But the filibuster should end for the minority party to have its way. That President Bush called the Democratic ap- this week with the congressional recess. method is the filibuster. Senate Democrats proach ‘‘shameful politics.’’ We are not re- are staging one now against Miguel Estrada, vealing a bias when we agree—the nation [From the Providence Journal-Bulletin, Feb. an appeals court nominee. needs good judges, from both parties, of both 14, 2003] They should back off and let the Senate conservative and liberal outlooks. Our legal THE ESTRADA CASE vote. system cannot and must not be held hostage The decision of Senate Democrats to fili- A filibuster is a delay that can’t be broken to political nitpicking. Estrada deserves to buster the nomination of Miguel Estrada to without a supermajority’s consent. Now, at be the first Hispanic on the U.S. Court of Ap- the U.S. Court of Appeals for the District of times in a democracy, a ‘‘tyranny of the ma- peals for the District of Columbia, and if his Columbia is unfortunate, to say the least. jority’’ may arise that principled senators nomination in some way helps to break the Democrats are now in the position not only feel they must resist. This isn’t one of those political deadlock keeping critical judge- of turning away a nominee rated ‘‘highly times. Estrada is neither a criminal, nor a ships from being filled, that will be just an- qualified’’ by the American Bar Association, spy, nor a hack whose nomination sprang other accomplishment to add to his record. but of rejecting a onetime Supreme Court from backroom deals where money changed clerk and Honduran immigrant who grad- hands. [From the Rochester Democrat and uated magna cum laude from Harvard Law Just the opposite: He is, by every account, Chronicle, Feb. 7, 2003] School, for political reasons. a living, breathing embodiment of the Amer- THE ESTRADA NOMINATION ican dream. An immigrant from Honduras, The Democratic complaint is that Mr. Yet another fight over a judicial nominee Estrada is a ‘‘stealth conservative,’’ and that Estrada spoke little English when he came to the United States at age 17. Yet, he grad- should not descend to filibuster. his responses in committee hearings were in- The oft-heard scuttlebutt around Wash- uated with honors from Harvard Law School, sufficient to reveal his political opinions. To ington is that Congress is a far less conge- clerked for a Supreme Court justice and that end, Minority Leader Tom Daschle (D.– nial place now than 20 years ago. Partisan- built an honorable and exemplary career. S.D.) and his colleagues have demanded not ship, once a coin of the realm, is today the only supplementary detailed responses to po- He’s also a judicial conservative. And if there’s one thing that drives some Demo- only currency that matters. litical inquiries, but also Mr. Estrada’s con- The truth of that troubling assessment fidential memoranda written while he was an crats berserk, it’s a person from an ethnic minority background who strays from the shows most tellingly in the drag-out fights assistant solicitor general. Every living so- over judicial nominees. It used to be that the licitor general, Democratic and Republican, party line. That’s why the Democrats are filibus- opposing party, once in power, would get its has gone on record to oppose this unwar- appointments. No longer. ranted intrusion into the deliberative proc- tering. That’s why they’re holding up mat- ters of real-life war and peace. That’s why Led by Sen. Chuck Schumer, Senate Demo- ess in the Justice Department. And the Bush crats, who narrowly lost a Judiciary Com- administration has been correct to resist they’re thwarting the majority’s will and as- serting an anti-democratic veto power on a mittee vote on U.S. Court of Appeals nomi- Democratic demands. nee Miguel Estrada, are threatening a fili- Make no mistake: Senate Democrats are matter of congressional routine. And that’s why they ought to back off. buster to prevent a floor vote on the nomina- worried that President Bush might nominate tion. Estrada’s sin? He was unresponsive to conservative lawyers and jurists to the fed- Because frankly, those reasons are politics, nor principle. And politics isn’t enough. the committee’s questions regarding past eral bench. But that is no reason to reject a causes and other issues. highly qualified nominee. Just as Bill Clin- [From the Chicago Sun-Times, Feb. 14, 2003] It’s a smokescreen. The Democrats know ton appointed judicial liberals to the federal Estrada’s legal record, and it’s a good one. bench—including three Supreme Court jus- WHEELS OF JUSTICE CAUGHT IN WASHINGTON To suggest tha the needed to answer the tices—it stands to reason that Mr. Bush will GRIDLOCK, AGAIN questions to establish his credentials is dis- nominate conservatives. ‘‘The time has come for the U.S. Senate to ingenuous. There’s more than enough known The process is called democracy. Demo- stop playing politics with the American judi- about Estrada for an up-or-down floor vote. crats may not like the results of the 2000 cial system. So bad has the situation become A filibuster could make partisanship his- presidential election, but their recourse is to that some Americans wonder whether justice tory—never before has the Senate prevented win back the White House in 2004, not to sub- is being hindered . . .’’ So began an editorial a lower-court confirmation via filibuster. ject distinguished nominees like Miguel on this page five years ago, during the now- The Democrats have a duty to ask tough Estrada to political torture. distant days of the Clinton administration, questions and to base their votes on the an- And after all, judicial nominations are for when Senate Republicans were stonewalling swers, or lack of them. But they also have a life, and no president can be clairvoyant. judicial nominees from a Democratic presi- duty to live by the final tally—not delay its When Franklin Roosevelt nominated Felix dent. taking with divisive filibuster. Frankfurter for the Supreme Court in 1939, We mention it because the party in power he had no idea that Justice Frankfurter tends to scream about efficient government, [From the Detroit News, Feb. 10, 2003] would evolve into one of the court’s leading while the party out of power complains U.S. SENATE SHOULD FORGET JUDICIAL conservatives. And when the first George about failure to follow procedure. To quote CANDIDATE FILIBUSTER Bush nominated David Souter for the court Shakespeare, ‘‘A plague on both their in 1989, he might have changed his mind if he houses.’’ The only update we’d make in the IT’S TIME TO END VENDETTAS AND REVENGE IN had known that Justice Souter would be- opening quote is to change ‘‘some Ameri- JUDICIAL NOMINATIONS come one of the court’s reliable liberals. cans’’ into ‘‘many Americans’’ or even ‘‘most U.S. Senate Democrats’ threat to filibuster The point about Miguel Estrada is not that Americans.’’ For who can look at the spec- President George W. Bush’s nomination of he may or may not harbor conservative judi- tacle of the 108th Congress and not believe Miguel Estrada to the U.S. Court of Appeals cial opinions. The point is that he is an in- that both justice and the basic operation of in Washington, D.C. would further poison an spiring American success story, a brilliant the nation is being sacrificed on the altar of already badly damaged judicial nomination scholar, a distinguished public servant and ugly, obstructionist, partisan politics? process. an outstanding lawyer. For Senate Demo- After dragging their feet on shifting com- Both parties share the blame for the crats to talk down his nomination is not just mittee chairmanships and the routine oper- wrecked process. But Senate Democrats are embarrassing, but outrageous. ations of the nation’s business, Senate now engaging in revenge for bad GOP behav- Democrats, though in a minority, are threat- ior in the second term of former President [From the Grand Forks Herald, Feb. 15, 2003] ening to filibuster over the confirmation of Clinton, when Republicans stalled votes on a EDITORIAL: STOP THE FILIBUSTER Miguel Estrada, a Washington lawyer who number of his nominees, ultimately derail- Our View: Senate Democrats should let seems eminently qualified for the federal ap- ing them when Bush gained the presidency. Miguel Estrada’s name come up for a floor peals bench in every way except for his alac- Until the GOP regained the Senate last No- vote. rity to answer questions about his opinions vember, they tied up a number of Bush nomi- There are two responsible ways for Senate on legal matters that have not yet been pre- nations in committee. Democrats to keep conservative lawyers off sented to him, such as the issue of abortion. Now, the Democrats have a chance to rise of the federal bench. The entire idea behind disabling the busi- above partisan political hackery and end this The first is for Democrats to regain a ma- ness of the nation is so that the blame for stupid game. Instead, they are seriously con- jority in the Senate. The second is to con- whatever bad situation we find ourselves in sidering making the situation worse. vince a few Republicans to vote against come election 2004 can be laid at the feet of Miguel Estrada is a well-regarded native of those nominees on the floor. Both of those the Republicans, since they are in power. Honduras who served in the office of U.S. so- methods use politics’ most-respected and But the Democrats forget that, if they man- licitor general under both former Presidents time-honored technique: persuasion—per- age to torpedo the Republican agenda, then Clinton and George H.W. Bush. The solicitor suading voters in the first case, colleagues in the Republicans are not really fully in general represents the U.S. government be- the second, of the strength and power of your power, and whatever problems are certain to fore the Supreme Court. argument. come are the fault of both parties. And ob- Estrada has personally argued 15 cases be- In the U.S. Senate, however, there’s also a structionism hurt Democrats in last Novem- fore the nation’s highest court. He has been coercive and borderline-irresponsible method ber’s voting. unanimously rated ‘‘well-qualified’’ by the

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00005 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2626 CONGRESSIONAL RECORD — SENATE February 25, 2003 American Bar Association—which Senate Mr. President, I have additional re- scendants of the Scotch-Irish who were Democrats declared would be the ‘‘gold marks, but I notice the distinguished driven out of Northern Ireland by the standard’’ by which they would assess judi- Senator from Georgia is here. I note Stuart Kings. They landed in Maryland cial nominees when they controlled the Sen- ate. that he wants to give some remarks and Virginia and migrated westward as Estrada’s nomination was one of those bot- and I am happy to interrupt my re- far as the hostile Indians and French tled up in committee. With the GOP in con- marks for that purpose. I know he has would allow, and then moved south- trol, his nomination has now been voted out an important message he would like to ward into the heart of a region of rug- to the Senate floor. The nomination is draw- give. I am happy to interrupt my re- ged mountains and beautiful valleys we ing more than the usual interest because marks for him. now know as Appalachia. Estrada, 42, is considered a strong possibility The PRESIDING OFFICER. The Sen- for eventual nomination to the U.S. Supreme They were accompanied and followed Court by President Bush. ator from Georgia. by the Huguenots, Pennsylvania Quak- Senate Democrats are deciding just how Mr. MILLER. Mr. President, I ask ers, Palatine Germans, and various dis- much they want to obstruct the president’s unanimous consent to proceed in morn- satisfied Protestant sects. nominees. A filibuster can only be broken by ing business as in legislative session 60 votes—9 votes more than is usually re- for 15 minutes. These mountain people were the very quired for a nominee to be approved. Report- The PRESIDING OFFICER. Without first Americans to fall back on their edly, a filibuster has never before been used objection, it is so ordered. own resources as they settled in isola- to block an appointment to the U.S. Court of tion from the remainder of the Nation HILLBILLIES Appeals. and the world. Democrats complained that Estrada, dur- Mr. MILLER. Mr. President, I rise ing his committee hearings, declined to tell this morning—and I appreciate the Their language, customs, character, them his positions on particular issues. It is generosity of the Senator from Utah possessions, knowledge, and tools were a violation of the canons of judicial ethics and the Senator from Vermont in giv- isolated with them and suspended in for potential judges to do that. ing me this opportunity—to get some- time, an unchanging microcosm of Democrats also demanded that he produce early American thought, culture, and his memos and recommendations while he thing off my chest. was in the solicitor general’s office—which CBS Television is currently planning mores. had never been done for any other candidate what that great company calls ‘‘a hill- These mountaineers possessed the who had been an assistant in that office. The billy reality show.’’ I would like to say qualities that formed the fundamental demand was rejected not only by Estrada, a few words about that as a Senator elements of pioneer American char- but by every former solicitor general still who happens to be a hillbilly. acter: love of liberty, personal courage, living, including those who served Demo- I can call myself that, Mr. President, cratic presidents. a capacity to withstand and overcome The level of obstruction his nomination but please don’t you call me that, for hardship, unstinted hospitality, in- has faced has been truly extraordinary. ‘‘hillbilly’’ is a term of derision that tense family loyalty, innate humor, Michigan Sens. Carl Levin and Debbie Stabe- was first coined in April of 1900 when and trust in God. now—who are running their own vendetta in the New York Journal had an article It could be said that if they had one blocking four Bush nominees to the Court of on ‘‘Hill Billies’’ with this description: Appeals in Cincinnati—shouldn’t be a part of overriding characteristic, it would A free and untrammeled white citizen who have to be independence. They devel- it. That would be an insult to their Hispanic lives in the hills, has no means to speak of, constituents. talks as he pleases, drinks whiskey when he oped as extreme, rugged individualists Estrada should have his nomination put up gets it and fires off his revolver as his fancy who never closed their doors, had in- for an ordinary vote, as have all his prede- strikes him. herent self-respect, were honest and cessors. If he loses, fair enough. But as fili- shrewd, knew no grades of society, and buster would signal an unreasonable posture The description has not improved by Democratic senators that could have very much over the past 100 years. had unconscious and unspoiled dignity. long-term—and damaging—consequences for White minstrel shows depicting these They were utterly without pretension how business is conducted in the U.S. Sen- ignorant creatures played to laughing or hypocrisy. ate. audiences in New York and Chicago in When the Civil War came along, it Mr. HATCH. I agree with these news- the 1920s and 1930s. was this area of the Mountain South papers that the perpetuation of this fil- After a man named Al Capp saw one, that opposed secession, for there were ibuster against Mr. Estrada’s nomina- he dreamed up the comic strip ‘‘Li’l no vast plantations in the mountains tion is extremely unfair. It is unfair to Abner’’ who lived in a place called of the South and very few slave owners the majority of the Members of the Dogpatch with a mama who smoked a among those poor people. Some even Senate who stand prepared to vote on pipe and a girlfriend named Daisy Mae fought on the side of the Union, with Mr. Estrada’s nomination. It is cer- who ran around barefooted and half families sometimes divided over that tainly unfair to Mr. Estrada, whose life naked. It was a riot, and it made Al terrible conflict. is in limbo while the Senate engages in Capp a fortune. Later, when the wars of the 20th cen- its endless debate. It is unfair to the A short time later, Snuffy Smith, a tury came along, it was the families in American people, who have a justified wife abuser with his ever-present jug of the mountains of the South who sent a expectation that the Senate will vote moonshine, also appeared in comic disproportionate share of their young on Mr. Estrada’s nomination and move strips around the Nation. Then came men who volunteered to fight in dis- on to debate and consider other impor- Ma and Pa Kettle in the movies and tant lands, far away from their peace- tant business. the Beverly Hillbillies on television. ful valleys. The solution is not to protract de- Even the contemporary poet and au- bate, upon which some of my Demo- thor James Dickey has contributed to When this country was threatened to cratic colleagues insist. The solution is this false image of mountain people by be torn apart over Watergate, it was not to go on a fishing expedition for portraying them as depraved cretins in two great Members of this Senate from privileged, confidential memoranda his popular book and movie ‘‘Deliver- opposite parties but the same part of Mr. Estrada once authored on appeal ance.’’ the country who helped keep this Na- recommendations, certiorari rec- My neighbors and I have lived with tion on an even keel: Democrat Sam ommendations, and amicus curiae rec- this ridicule and overdrawn stereotype Ervin from the mountains of North ommendations. The solution is not to all of our lives, as did our parents and Carolina and Republican Howard Baker demand answers to questions that Mr. their parents before them. My roots from the mountains of Tennessee. Estrada already addressed when the run very deep in the Appalachian I am very pleased and proud that Senate was under Democratic control. Mountains of North Georgia where I these are my people, and I find that The solution is for Senators to vote on was born and raised and always have one of the great ironies of history is Mr. Estrada’s nomination. Vote for made my home. It is where my chil- that while the cowboy, another type of him or vote against him. Do what your dren, grandchildren, and great grand- frontiersman, has been glorified, the conscience dictates. Just vote—exactly children live today. mountaineer—the first frontiersman— what the Washington Post has called My ancestors were among the very has been ridiculed and caricatured in upon us to do. first mountain settlers. They were de- the image of a Snuffy Smith.

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00006 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 25, 2003 CONGRESSIONAL RECORD — SENATE S2627 Why am I going into all of this? Be- That was Washington’s dream for this everybody knows, especially those of cause now in the 21st century—the en- country. us like the distinguished Presiding Of- lightened 21st century—there are plans What CBS and CEO Moonves pro- ficer, who have practiced law, becom- underway for a new hillbilly minstrel posed to do with this Cracker Comedy ing a Federal judge for a lifetime is a show using the same old stereotype, is ‘‘bigotry’’ pure and simple. Bigotry privilege. It is not a right. denigrating, laughing at, and ridiculing for big bucks. They will deny it. They No nominee should be rewarded for this group of people. will say it is just harmless humor. But stonewalling the Senate and the Amer- CBS calls it a reality show—CBS, the they know better and they feel safe. ican people. The Constitution directs once proud and honorable broadcasting They know the only minority left in Senators to use its judgment in voting company that brought us Edward R. this country that you can make fun of, on judicial nominees. It does not direct Murrow and that unforgettable pro- demean, humiliate, put down and hard- them to rubberstamp. It says ‘‘advise gram of his, ‘‘The Harvest of Shame.’’ ly anyone will speak up in their de- and consent,’’ not advise and In the sixties, brave and courageous fense are hillbillies in particular and rubberstamp. CBS reporters risked their lives to poor rural people in general. You can During the 17 months that the Demo- cover the civil rights struggles in the ridicule them with impunity. crats were in control of the Senate, we South, and for decades, CBS’s ‘‘60 Min- Can you imagine this kind of pro- confirmed a record 100 of President utes’’ has set the standard for all of gram being suggested that would dis- Bush’s judicial nominees. Interestingly television. But today in this money- respect an African American family or enough, no judicial nominees of Presi- grubbing world, CBS, it seems, has be- denigrate a Latino family? Years ago, dent Bush’s had been confirmed up to come just another money-grubber. the program Amos and Andy was re- mid-July when I took over as chairman It is now part of the giant Viacom. moved from television—as it should of the committee. Within 10 minutes of CBS has a CEO named Mr. Les have been—because it was in poor taste taking over as chairman of the com- Moonves, the man who is pushing this and made fun of a minority. mittee, I called the first confirmation program-to-be; a man who obviously In this wonderful and diverse country hearing, and in 17 months we set a believes that network television is an today, one of every six Americans record of moving nominations. We cer- ethics-free zone and that it is accept- speaks some other language other than tainly acted faster, and I believe more able for big profits to always come English in their homes. In my home fairly, than the Republicans did for ahead of good taste. State of Georgia, their number has President Clinton. I do not know Mr. Moonves, but from more than doubled in the past decade. President Bush also has proposed sev- his actions, it seems he is a person who I believe that may be the largest in- eral controversial nominees like cares little about human dignity and crease in the Nation. Miguel Estrada. They divide the Amer- believes television has no social re- From the red clay hills of Georgia to ican people and the Senate. The Presi- sponsibility. I suppose we should not be the redwood forests of California, all of dent, of course, could easily end this surprised, for his ilk have been around us are struggling to answer the simple impasse. I hope he will act to give Sen- long before the creators of Li’l Abner question: Can’t we all get along? ators the answers they need to make and Snuffy Smith. Since the beginning And that daunting challenge, can’t informed judgments about this nomi- of civilization, there have always been we live our lives as if we are all created nation. That was suggested by one of some Homo sapiens who, it seems, had equal? All of us: we eat, we sleep, we the most distinguished and senior Re- to have someone to look down upon, have strengths and weaknesses; we publican Members of this Senate. So some group to feel superior to. For this have dreams and anxieties. A tear far it has been rejected by the White kind of person, it is as basic to their knows no race, no religion, no color. A House. I hope they will reconsider. The human nature as the drive to reproduce tear has no accent. We all cry in the President can also help by choosing or the urge for food and water. They same language. mainstream judicial nominees who can were there in the time of the Greeks. Many years ago, the rabbis were unite instead of divide the American They were there in the time of the Ro- asked why was it that in the beginning people. mans. They can be found all through God created just one man, Adam, and Unfortunately, the White House the Bible. That is what the parable of one woman, Sa-ba, or Eve. Surely, God seems to have this attitude that they the Good Samaritan is all about. could have created multitudes. should divide and not unite, and I Jesus was very concerned about how The rabbis answered that only one think that is a mistake. One of the un- the rejects of society were looked down man and one woman were created to fortunate aspects of the President’s de- upon and warned us about ‘‘a haughty help us all remember that we all came termination to pack the Federal courts spirit’’ and an ‘‘unkind heart.’’ from the same mother and father. So with extreme conservatives is a divi- Shakespeare wrote about them as did no one should ever say, ‘‘I’m better sion that the nomination of Miguel Dickens and Steinbeck and Faulkner. than you, ‘‘and no one should ever feel, Estrada has caused among Hispanics. And songwriter Merle Haggard, who ‘‘I’m less than you.’’ Rather than nominate someone whom knew personally how it felt, wrote that CBS, Viacom, Mr. Moonves: I plead all Hispanic Americans would support, memorable line ‘‘another class of peo- with you to call off your hillbilly hunt. the President has chosen to divide ple put us somewhere just below, one Make your big bucks some other way. rather than unite. The White House’s more reason for my mama’s ‘‘Hungry Appeal to the best in America not the ideological litmus test has motivated Eyes.’’ worst. Give bigotry no sanction. the President to select another highly This country was not meant to be For no one—not even a rich and pow- controversial nominee rather than a this way. We are supposed to be better erful network like CBS—should ever consensus nominee. than that. More than two centuries use the airwaves of this Nation to say Over the last several days, the divi- ago, Moses Sexius was the warden of to one group of people in God’s image, sion within the Hispanic community the Hebrew Congregation of Newport, ‘‘We’re better than you.’’ has been the subject of a number of RI. And no one, Mr. Moonves, no one news reports. On February 14, the He wrote hopefully to the President should ever be made to feel, ‘‘they’re Washington Times ran a front page of this new Nation of his delight at the less than you.’’ story quoting a statement for the Na- birth of a government ‘‘which to big- I yield the floor. tional Council of La Raza noting that otry gives no sanction, to persecution The PRESIDING OFFICER. The Sen- since the Latino community is clearly no assistance, but generously affords to ator from Vermont. divided on the Estrada nomination, we all liberty of conscience.’’ Mr. LEAHY. Mr. President, I thank find the accusation that one side or an- That new President, George Wash- the Senator from Georgia for his com- other is anti-Latino to be particularly ington, wrote back. ments. divisive and inappropriate. Here is a copy if the letter affirming The Senator from Utah has spoken The division was likewise noted in that the Government of the United and will be coming back, and so I am the Boston Globe on February 15, in a States ‘‘would give to bigotry no sanc- going to speak about the Estrada nomi- story by Wayne Washington. And on tion, to persecution no assistance.’’ nation, the matter at hand. I say what February 20, the Washington Post

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00007 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2628 CONGRESSIONAL RECORD — SENATE February 25, 2003 noted the division in a story by Darryl an assistant to the solicitor general during [From the Washington Post, Feb. 20, 2003] Fears. the Clinton administration. Currently, he is FOR HISPANIC GROUPS, A DIVIDE ON ESTRADA I ask unanimous consent that some a partner in the Washington office of Gibson, POLITICAL, GEOGRAPHIC FAULT LINES EXPOSED Dunn & Crutcher. of the articles on this issue be printed His ethnicity and academic and legal (By Darryl Fears) in the RECORD. record have been enough to win the support When he spoke in support of federal judi- There being no objection, the mate- of some Latinos, while critics maintain that cial nominee Miguel Estrada at a recent rial was ordered to be printed in the Estrada, a member of the conservative Fed- news conference, Jacob Monty masked his RECORD, as follows: eralist Society, has not clearly spelled out harsh criticism of opponents in Spanish. He said Latinos who are fighting against the [From the Boston Globe, Feb. 15, 2003] his judicial philosophy. He clerked for Jus- tice Anthony M. Kennedy, a member of the Bush administration’s choice for a judgeship LATINOS BITTERLY DEBATE ESTRADA conservative majority on the Supreme on the U.S. Court of Appeals for the District NOMINATION Court. of Columbia Circuit ‘‘no tienen vergu¨ enza’’— (By Wayne Washington) ‘‘That Miguel Estrada is of the Hispanic have no shame. WASHINGTON.—President Bush’s nomina- culture counts far more than the fact that he That comment by Monty, a former chair- tion of Miguel Estrada for a federal judge- is a Republican or a Democrat,’’ said Tina man of the Texas-based Association for the ship has exposed sharp divisions among Romero-Goodson, a social service official in Advancement of Mexican Americans, was Latinos, who are weighing the possibility of New Mexico. ‘‘What weighs heavily with me just one shot in a bitter war of words that having one of their own on a fast track to is that he is Hispanic and will have far more has divided Latino politicians and civil the US Supreme Court against a fear that in common with me and mine than a Demo- rights organizations in ways rarely seen. the minority group’s interests could be cratic Anglo or African-American can- It followed one fired by Rep. Robert harmed if the Senate confirms that the con- didate.’’ Menendez (N.J.), a member of the Demo- servative lawyer of Honduran descent. Representative Robert Menendez, Demo- cratic Congressional Hispanic Caucus, which In the divisive intra-ethnic battle, some crat of New Jersey, said Estrada ‘‘shares a opposes the nominee. ‘‘Being Hispanic for Latinos have challenged Estrada’s allegiance surname’’ with Latinos but has done little to us,’’ Menendez said, ‘‘means much more than to the Hispanic community, an accusation help them. having a surname’’—a statement his critics that others have sharply criticized. Each ‘‘Mr. Estrada said he is unfamiliar with understood to imply that Estrada is not side has at times accused the other of being cases that are important to our commu- ‘‘Hispanic enough.’’ The name-calling has reminded some ob- anti-Latino. The debate has gotten so nasty nity,’’ Menendez said. ‘‘He has said that his servers of the bitterness among African on Spanish-language television and over the being Hispanic would be irrelevant to his Americans during the Senate confirmation Internet that this week the National Council role as a judge. I don’t want it to be irrele- hearing for Supreme Court Justice Clarence of La Raza, a Latino group that says it is vant, and neither does the community.’’ Thomas—a hearing that Thomas, a conserv- neutral on Estrada’s nomination, called for That stark call to ethnic solidarity out- ative black man, likened to a lynching after both sides to tone down their language. rages other Latinos. liberal activists persuaded Anita Hill, a ‘‘We urge those who are engaging in name- ‘‘I think it’s just shameful,’’ said Robert G. former assistant, to come forward with sex- calling and accusatory language to instead de Posada, president of Latino Coalition, a ual harassment allegations against him. focus on the substantive issues and merits of nonprofit Washington-based policy group. Latino activists have differing perceptions this nomination,’’ the group said in its state- ‘‘There is no other way to describe it.’’ De Posada said Menendez and other con- of who Estrada is and what kind of judge he ment. ‘‘Since the Latino community is clear- gressional Democrats are trying to portray would be. ly divided on the Estrada nomination, we Estrada as a well-off lawyer ‘‘who never had Estrada’s supporters say is a Latino suc- find the accusation that one side or another a problem in his life.’’ cess story, immigrating as he did from Hon- is ‘anti-Latino’ to be particularly divisive Of Menendez, de Posada added: ‘‘He’s a duras at age 17 and going on to graduate and inappropriate.’’ Cuban-American who looks completely from Columbia College at Columbia Univer- Estrada’s nomination to the Court of Ap- white. I wonder: Has he faced the racism and sity and Harvard Law School, and clerking peals for the District of Columbia has been isolation that other Hispanics have faced? for Supreme Court Justice Anthony M. Ken- endorsed by the Hispanic Bar Association, Can you challenge his Hispanic-ness? I would nedy. He is now a partner with the District US Hispanic Chamber of Commerce, the never do that. He’s a success story. But so is law firm of Gibson, Dunn & Crutcher and a Latino Coalition, and the League of United Miguel Estrada.’’ nominee for a judgeship on what is consid- Latin American Citizens, which is com- Pierre M. LaRamee, acting president of the ered the nation’s second most powerful court parable to the NAACP. Opposed are the Puerto Rican Legal Defense and Education because it has jurisdiction over all appeals Mexican American Legal Defense and Edu- Fund, said Republicans have attempted to regarding federal regulatory agencies. cation Fund, the Puerto Rican Legal Defense portray Estrada as ‘‘a Latino Horatio Opponents question whether Estrada ap- and Education Fund, and the Congressional Alger.’’ That portrayal, LaRamee argues, preciates the interests of poor people—his Hispanic Caucus, whose members are Demo- makes it proper to question just how rep- family came from the Honduran elite—and crats. resentative he is of Latino communities. say his conservative politics would color his Bush nominated Estrada in May 2001, but ‘‘He didn’t come from a poor, disadvan- decisions on the bench. They say Estrada has Senate Democrats blocked his approval. This taged background,’’ La Ramee said. ‘‘He a low regard for hard-won civil rights protec- week, they stalled the nomination by threat- came from a background of relative privi- tions that benefit Latinos. ening a filibuster. Estrada, 42, would be the lege. Of course, that’s nothing negative Ideological wars over federal judicial nomi- first Latino on the D.C. Appeals Court, where about Miguel Estrada. He’s been successful. nations are nothing new, but the fight six of the nine justices currently on the Su- . . . We’d rather have a non-Latino judge among Latinos offers a small window on how preme Court once served. Only 12 of the 154 who we believe would be a better judge.’’ what will soon be the nation’s largest ethnic judges on federal appeals courts are Latinos; Supporters point out that Estrada did pro minority is divided by ideology and geog- one has never served on the nation’s highest bono legal work on antiloitering laws that raphy. court. some Latino community group leaders be- Of the Latino community’s three most in- Some observers have compared the volatile lieve led to the harassment of black and fluential groups, each has taken a different debate to dissension among African-Ameri- Latino men. position on Estrada’s nomination. The cans when President George H.W. Bush nom- Latinos who are not of Mexican-American League of United Latin American Citizens, inated Clarence Thomas—then a member of descent have said Estrada would get more based in Texas, supports it; the Mexican the D.C. Court of Appeals—to the Supreme support from Latinos if he were part of it. American Defense and Educational Fund, in Court. Mexican-Americans are the largest subgroup California, opposes it, and the National ‘‘There are similar fault lines,’’ said Lisa of Latinos in the United States. Council of La Raza, in Washington, has re- Navarrete, spokeswoman for the National ‘‘There’s a dirty little secret in the His- mained neutral. Council of La Raza, a nonprofit Hispanic panic community,’’ said Jennifer Braceras, a The fuse for the current debate was lit in group that fights poverty and discrimina- member of the U.S. Commission on Civil June, when members of the Congressional tion. ‘‘Some people said Clarence Thomas is Rights. ‘‘There’s a real intra-Hispanic com- Hispanic Caucus met with Estrada in the African-American and would be the only one munity rivalry. There’s a real feeling in the basement of the Capitol. Rep. Charlie Gon- on the court. He deserves our support. Others Mexican-American community that the first zalez (D–Tex.) said the nominee at first felt that his views would be harmful to the Latino Supreme Court nominee should be looked uncomfortable as he stared at the community. That’s exactly what’s happening Mexican-American.’’ faces of 16 Democrats across the long board- here.’’ Not true, said Marisa Demeo, regional room table. Born in Honduras, Estrada immigrated to counsel for the Mexican American Legal De- ‘‘We wanted to make sure the nominee . . . the United States with his family as a teen- fense and Education Fund. ‘‘It has nothing to appreciates what the court system means for ager, graduated magna cum laude from Co- do with his ethnicity,’’ she said. ‘‘It has to do Latinos,’’ Gonzalez said recently. Estrada lumbia College, and earned a law degree with how he would be as a judge.’’ was not available for comment. from Harvard, where he was an editor of the Democrats are expected to resume their ‘‘We wanted him to give us some idea of Harvard Law Review. He went on to work as filibuster of Estrada’s confirmation when the how the role of a judge impacts minority an assistant US attorney in New York and Senate returns from a recess on Feb. 24. communities, and it just wasn’t there.’’

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00008 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 25, 2003 CONGRESSIONAL RECORD — SENATE S2629 Two weeks later, the caucus returned a pervisor Gloria Molina have all spoken Three Democratic members of the Congres- recommendation opposing Estrada’s nomina- publicly about their opposition to this sional Hispanic Caucus and representatives tion to the Senate Judiciary Committee, nomination. from two advocacy groups said lawyer then controlled by Democrats. Latino civil I ask unanimous consent a recent Miguel Estrada, 41, has refused to answer rights groups read the recommendation, then key questions about his position on cases, met among themselves. news account of their statements be his background and other key issues. In October, the League of United Latin printed in the RECORD. ‘‘Ethnic origin is no automatic pass to be- American Citizens (LULAC) voted to support There being no objection, the mate- coming a judge on the federal judiciary, you Estrada. rial was ordered to be printed in the have to be qualified,’’ said Rep. Xavier ‘‘It was just very difficult for us not to sup- RECORD, as follows: Becerra, D–Los Angeles. port the guy, given his impeccable creden- LATINO POLITICIANS SPLIT ON ESTRADA Estrada’s nomination by President Bush tials,’’ said Hector Flores, president of the has been held up in the U.S. Senate Judici- POLITICS: GROUPS APPLAUD, PAN BUSH’S Texas-based group. ‘‘It’s the American ary Committee, with Democrats launching a NOMINATION TO SECOND-HIGHEST COURT IN U.S. dream, rising up from Honduras the way he filibuster to stall a full Senate vote until has. The battle isn’t whether he’s conserv- (By Mike Sprague) Estrada answers more questions and provides ative; it’s that he represents Latinos, wheth- LOS ANGELES.—President Bush’s nomina- documents from his work with the Depart- er we like him or not.’’ tion of Miguel Estrada to the Washington, ment of Justice. Flores said the vote to support Estrada was D.C., Court of Appeals is splitting this area’s Estrada was nominated in May 2001 by overwhelming, but in recent days the Cali- Latino politicians. Bush for a seat on the U.S. Court of Appeals fornia state delegation of LULAC broke On Friday, Los Angeles County Supervisor for the District of Columbia, which has been away from the national group in opposing Gloria Molina and U.S. Rep. Grace Napoli- a steppingstone for three current justices on the nominee. In a Feb. 12 statement, a tano, D–Santa Fe Springs, joined a news con- the U.S. Supreme Court. former president of LULAC, Mario Obledo, ference held by the Congressional Hispanic Estrada, a partner in the law firm that opposed the nominee because of his ‘‘sparse Caucus to denounce Estrada and oppose his worked with Bush during the Florida elec- record’’ on civil and constitutional rights Senate confirmation to the second-highest tion recount, came to the United States at issues, and because he declined to answer court in the United States. age 17 from Honduras. He graduated from questions about his record in Senate hear- ‘‘When this gentlemen came before us, we Harvard Law School in 1986 and has argued ings. asked specific questions and he had very lit- 15 cases before the Supreme Court. LULAC’s overall support was backed by tle offer,’’ said Napolitano, vice chairwoman Republicans have accused Democrats of Monty, the former chairman of AAMA. His of the 20-member caucus. ‘‘He really was a treating Estrada unfairly because he is a assertion that Estrada’s opponents were blank page. This could be our Latino Clar- conservative Hispanic. shameless was broadcast on C–SPAN and re- ence Thomas.’’ Rep. Lucille Roybal-Allard, D–Los Angeles, membered by Flores, who was present. But Assemblyman Robert Pacheco, a Re- said the decision to oppose Estrada’s ap- Monty did not return several calls seeking publican from the City of Industry, who was pointment was not easy. comment. reached by telephone later in the day Friday, ‘‘This was a particularly difficult and dis- President Bush tried to keep up the pres- accused the caucus of taking a partisan appointing decision that had to be made sure yesterday by giving an interview by the stand. given the fact that the Hispanic caucus ac- Spanish-language Telemundo network, and ‘‘They don’t represent the entire Latino tively works long and hard to promote the vigorously urged senators to confirm community,’’ he said. ‘‘I’m very upset with appointment of more Latino judges,’’ she Estrada. the way they’re approaching it, because of said. Sen. Orrin G. Hatch (R–Utah) recently said the partisan nature. The Hispanic caucus decided to oppose that Estrada’s Democratic opponents were ‘‘What an opportunity for the Latino com- Estrada after interviewing him, Roybal- ‘‘anti-Latino,’’ and brought howls from his munity to have someone in that position Allard said. liberal colleagues and from leaders of Latino who has earned his stripes, having risen from ‘‘Unfortunately, he did not satisfactorily organizations across the land. poverty.’’ answer any of our questions with regard to Marisa Demeo, regional counsel for the Los The news conference was held at the Mexi- his experience or sensitivity or commitment Angeles-based Mexican American Legal De- can-American Legal Defense and Edu- to ensuring equal justice and opportunity for fense and Educational Fund, said Hatch cational Fund’s office in Los Angeles. The Latinos,’’ she said. failed to mention three Latinos nominated organization also is opposing confirmation. Rep. Grace Napolitano, D–Norwalk, said for judgeships by the Clinton administration The Senate Judiciary Committee recently Estrada told the caucus that he has not done whom Republican senators opposed. Those approved the nomination, but some Senate any work on behalf of minority organiza- nominations—of Jorge Rangel, Enrique Democrats since then have launched a fili- tions. She said such work was important Moreno and Christine Arguello—were re- buster to prevent a vote. since Estrada ‘‘could be our Latino Clarence turned to President Bill Clinton without a Estrada has served as assistant U.S. solic- Thomas.’’ hearing or vote. itor and an assistant U.S. attorney. The Congressional Hispanic Caucus, which Demeo said LULAC and AAMA back Napolitano said that caucus members had Estrada for cosmetic reasons. ‘‘Because he’s is made up exclusively of Democrats, along interviewed Estrada, and he hadn’t re- with the Mexican American Legal Defense Latino, they would support him,’’ she said. sponded favorably to their questions on ‘‘They’ve been very strong in thinking there and Educational Fund have previously stated whether he had worked with any minority their opposition to Estrada’s appointment. should be a Latino sitting on the D.C. Cir- organizations or on behalf of minorities and cuit, and we say it is important, but not as The California branch of the League of if he had been involved as a volunteer. United Latin American Citizens also said such a cost.’’ Estrada said no to the questions, she said. The cost, she said, would be the weakening Friday it was opposed to his nomination, al- Rep. Lucille Roybal-Allard, D–Los Angeles, of civil rights laws. ‘‘The groups opposing though its national leadership has supported said that Estrada shouldn’t be confirmed to have taken the analysis a step further,’’ Estrada. His nomination also has been sup- the court just because of his ethnic origin. Demeo said. ‘‘We look at the record to deter- ported by the U.S. Hispanic Chamber of Com- ‘‘We have worked very hard to ensure that mine what kind of judge Mr. Estrada would merce. Latinos are nominated to high positions in be.’’ Democrats have sought documents written the country,’’ Roybal-Allard said. ‘‘Just be- MALDEF is supported by the Puerto Rican by Estrada when he worked in the Justice cause someone has a Hispanic surname Legal Defense and Educational Fund, the Department’s Solicitor General’s Office. But doesn’t automatically qualify him for any Southwest Voter Registration Project and White House counsel Alberto Gonzales told position.’’ the Hispanic caucus, among other groups. senators in a letter Wednesday that the ad- ‘‘I don’t know why the administration put Boyal-Allard also denied the caucus was ministration would not release the docu- up Estrada,’’ said Antonio Gonzalez, presi- acting for partisan reasons. ments, which are normally not made avail- dent of the Southwest Voter Registration ‘‘Out of all the nominees, President Bush able. Project. ‘‘He was marked as a right-wing has appointed, this is the first time we have All of the living former solicitors general— ideologue some time ago. Clearly, that is a been opposed,’’ she said. ‘‘We’re opposed to four Democrats and three Republicans—have tactic by the Bush administration . . . not to Miguel Estrada based on his lack of quali- agreed with the White House position, really embrace issues that are important to fications.’’ Gonzales said. Latinos, but to try symbolic measures.’’ Mr. LEAHY. The Congressional His- HISPANIC LAWMAKERS FROM CALIFORNIA Mr. LEAHY. Hispanic lawmakers and OPPOSE BUSH’S COURT NOMINEE panic Caucus, the Mexican American leaders, including Representative XA- (By Paul Chavez) Legal Defense and Education Fund, the VIER BECERRA, Representative LUCILLE Puerto Rican Legal Defense and Edu- LOS ANGELES.—Hispanic lawmakers from ROYBAL-ALLARD, Representative GRACE California stepped up their campaign Friday cation Fund, the California Chapter of NAPOLITANO, Representative ROBERT against the first Hispanic to be nominated the League of United Latin American MENENDEZ, Representative CHARLIE for a spot on an important federal appellate Citizens, Los Angeles County super- GONZALEZ, and Los Angeles County su- court. visor Gloria Molina, and Mario Obledo

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00009 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2630 CONGRESSIONAL RECORD — SENATE February 25, 2003 oppose this controversial nomination. I aged only 39 confirmations per year especially proud of a man whose political am sure they do so out of principle. I during their six and one-half years of friends—the ones fighting hardest to put him know they do not relish opposing this control of the Senate. But I set the on the court—are also fighting to abolish af- nomination. These are organizations, same test. Sometimes to satisfy myself firmative action and to make it harder if not impossible for federal courts to protect the individuals who have devoted their of the test I had to go to a hearing that rights and safety of workers and women and lives to improving the lives of Hispanic lasted sometimes a day long to be sure. anyone with little power and only the hope members. They worked for decades to You have a conservative, I want to be of the courts to protect their legal rights. increase representation of Latinos on sure they will be fair and not too much Just as we resist the injustice of racial the courts of our country. of an ideologue; the same way I did profiling and the assumption that we are It is because of the history and dedi- when I believed someone was too lib- lesser individuals because of where we were cated efforts and deep-seated commit- eral and could be too much of an ideo- born or the color of our skin, so too must we ment to the cause of equality for His- resist the urge to endorse a man on the basis logue. I had to satisfy myself they of his ethnic background. Members of the panics I take their views seriously. I would be fair. Congressional Hispanic Caucus met with understand the Congressional Hispanic Now, the HNBA has done the same. Miguel Estrada and came away convinced Caucus and the Puerto Rican Legal De- They want to make sure the Federal that he would harm our community as a fed- fense and Education Fund came to courts are independent and fair. They eral judge. The Mexican American Legal De- their conclusion after a thorough re- have supported Republican nominees as fense and Educational Fund and the Puerto view of the nomination but also after well as Democratic nominees. These 15 Rican Defense and Education Fund reviewed interviewing and meeting with the individuals, all of whom are past presi- his record and came to the same conclusion. nominee. dents of the Hispanic National Bar As- Are these groups fighting Miguel Estrada because they are somehow anti-Hispanic? Yesterday, we received a letter from sociation, people who have devoted a Are they saying that only people with cer- 15 former presidents in the Hispanic great deal of time in their legal careers tain political views are ‘‘true’’ Latinos? Of National Bar Association, 15 well-re- to advancing the interests of Hispanics course not. They are saying that as a judge spected national leaders of this impor- in the legal community, have felt com- this man would do damage to the rights we tant bar association, leaders who date pelled to publicly oppose the Estrada have fought so hard to obtain, and that we back to the founding of the organiza- nomination. cannot ignore that fact just because he is tion in 1972 have written to the Senate I regret very much that the White Latino. I think Cesar Chavez would be turn- leadership to oppose this nomination. House, instead of seeking someone who ing over in his grave if he knew that a can- didate like this would be celebrated for sup- Their weighty opposition is based on would unite the community, has posedly representing the Hispanic commu- the criteria to evaluate judicial nomi- brought in somebody who would divide nity. He would also be dismayed that any nees this association has formally used the community. civil rights organization would stay silent or since 1991. It has been their standard Yesterday, Delores Huerta, who co- back such a candidate. practice for the past 30 years. founded the United Farm Workers with To my friends who think this is all about In addition to the candidates’ profes- Caesar Chavez, wrote a column in the politicians fighting among themselves, I ask sional experience and temperament, Oregonian opposing Mr. Estrada’s con- you to think what would have happened over the criteria for endorsement also in- firmation. I ask unanimous consent the last 40 years if the federal courts were fighting against workers’ rights and women’s cludes, ‘‘one, the extent to which a this article be printed in the RECORD. rights and civil rights. And then think about candidate has been involved and sup- There being no objection, the mate- how quickly that could become the world we ported and responsive to the issues, rial was ordered to be printed in the are living in. needs, and concerns of Hispanic Ameri- RECORD as follows: As MALDEF wrote in a detailed analysis, cans; and, two, the candidates’ dem- [From the Oregonian, Feb. 24, 2003] Estrada’s record suggests that ‘‘he would not onstration of the concept of equal op- DOLORES C. HUERTA: ESTRADA WOULD recognize the due process rights of Latinos,’’ portunity and equal justice under law.’’ DESTROY HARD-FOUGHT VICTORIES that he ‘‘would not fairly review Latino alle- gations of racial profiling by law enforce- In the view of the overwhelming ma- (By Dolores C. Huerta) jority of the living past presidents of ment,’’ that he ‘‘would most likely always As a co-founder of the United Farm Work- find that government affirmative action pro- the HNBA, Mr. Estrada’s record does ers with Cesar Chavez, I know what progress grams fail to meet’’ legal standards, and that not provide evidence he meets those looks like. Injustice and the fight against it he ‘‘could very well compromise the rights of criteria. His candidacy falls short in take many forms—from boycotts and Latino voters under the Voting Rights Act.’’ those respects, they say. marches to contract negotiations and legis- Miguel Estrada is only one of the people Now the Hispanic National Bar Asso- lation. Over the years, we had to fight nominated by President Bush who could de- against brutal opponents, but the courts ciation has been at the forefront of ef- stroy much of what we have built if they be- were often there to back us up. Where we come judges. The far right is fighting for forts to increase diversity on the Fed- moved forward, America’s courts helped to eral bench. They have been at the fore- them just as it is fighting for Estrada. We establish important legal protections for all must fight back against Estrada and against front of the effort to improve public farm workers, all women, all Americans, all of them. If the only way to stop this is a confidence among Hispanics and others Now, though, a dangerous shift in the courts filibuster in the Senate, I say, Que viva la in the fairness of the Federal courts. could destroy the worker’s rights, women’s filibuster! The most important thing in the Fed- rights, and civil rights that our collective Dolores C. Herta is the co-founder of the eral courts is the fairness, their integ- actions secured. United Farm Workers of America. It is especially bitter for me that one of rity, their independence. the most visible agents of the strategy to Mr. LEAHY. Here is what this His- Time and time again I have asked, erase our legal victories is being called a panic leader wrote: both when we have had nominees of great role model for Latinos. It is true that It is true that for Latinos to realize Amer- Democratic Presidents and Republican for Latinos to realize America’s promise of ica’s promise of equality and justice for all, Presidents, is this nominee somebody I equality and justice for all, we need to be we need to be represented in every sector of believe I could walk into the court and represented in every sector of business and business and every branch of government. be treated fairly? As a Democrat or Re- every branch of government. But it is also But it is also true that judges who would publican, whether as plaintiff or de- true that judges who would wipe out our wipe out our hard-fought legal victories—no hard-fought legal victories—no matter where matter where they were born or what color fendant, whether rich or poor, white or they were born or what color their skin—are their skin—are not role models for our chil- person of color, no matter what my re- not role models for our children. And they dren. And they are not the kind of judges we ligion, no matter what my background, are not the kind of judges we want on the want on the federal courts. would I be treated fairly? federal Courts. Miguel Estrada is a successful lawyer, and During Democratic leadership of the Miguel Estrada is a successful lawyer, and he has powerful friends who are trying to get Senate, we confirmed 100 of President he has powerful friends who are trying to get him a lifetime job as a federal judge. Many Bush’s nominees, and I voted for the him a lifetime job as a federal judge. Many of them talk about him being a future Su- overwhelming majority of them. When of them talk about him being a future Su- preme Court justice. Shouldn’t we be proud preme Court justice. Shouldn’t we be proud of him? I was chairman, I moved his nominees of him? I for one am not too proud of a man who is through far faster than Republicans I for one am not too proud of a man who is unconcerned about the discrimination that ever did for President Clinton when unconcerned about the discrimination that many Latinos live with every day. I am not they were in charge, when they aver- many Latinos live with every day. I am not especially proud of a man whose political

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00010 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 25, 2003 CONGRESSIONAL RECORD — SENATE S2631 friends—the ones fighting hardest to put him Senate debate that suggest those op- er, having previously worked with the on the court—are also fighting to abolish af- posed to this nomination are anti-His- Wall Street law firm of Wachtell, firmative action and to make it harder if not panic. Lipton, Rosen & Katz. impossible for federal courts to protect the I think perhaps we should go back to While in private practice, his clients rights and safety of workers and women and a different time, a time when I first anyone with little power and only the hope included major investment banks and of the courts to protect their legal rights. came to the Senate, when Republicans health care providers. Mr. Estrada’s fi- Just as we resist the injustice of racial and Democrats assumed the best mo- nancial statement, which Senator profiling and the assumption that we are tives of patriotism and honesty on the HATCH had printed in the CONGRES- lesser individuals because of where we were part of each other; when you did not SIONAL RECORD, says he earned more born or the color of our skin, so too must we hear attacks made on people saying than $1⁄2 million a year 2 years ago. resist the urge to endorse a man on the basis they are anti this race or that race or At his hearing, Mr. Estrada testified: of his ethnic background. anti this religion or that religion. I am I have never known what it is to be poor, Are these groups fighting Miguel Estrada concerned. and I am very thankful to my parents for because they are somehow anti-Hispanic? I will speak only for myself, not for that. And I have never known what it is to Are they saying that only people with cer- be incredibly rich either, or even very rich, tain political views are ‘‘true’’ Latinos? Of other Senators, but I look back at 29 or rich. course not. They are saying that as a judge years in the Senate, a record of one this man would do damage to the rights we who I think has always stood for anti- I will let his financial statement have fought so hard to obtain, and that we discrimination, one who has a record speak for itself on that point. Half a cannot ignore that fact just because he is where I have never questioned the race, million dollars a year in my State does Latino. I think Cesar Chavez would be turn- ethnicity, or religion of anybody else. put you in the upper brackets. ing over in his grave if he knew that a can- When I hear charges that opposition to So he is a well-compensated lawyer didate like this would be celebrated for sup- a candidate, in this case opposition to in a first-rate law firm. His family and posedly representing the Hispanic commu- nity. He would also be dismayed that any a candidate that has divided the Amer- friends take pride in his success, and civil rights organization would stay silent or ican people, is done on the basis of that rightfully so. back such a candidate. person’s race, I find that more than In his almost 6 years with Gibson, I deeply resent the charges leveled by distasteful, I find it wrong. In the same Dunn & Crutcher, with its thriving ap- Republicans that those opposing this way, I found wrong the attacks on my pellate court practice, developed by its nomination are anti-Latino or anti- religion by some in the Republican senior partner, Ted Olson, who was Hispanic. As we began this debate Party because of opposition to 1 of this confirmed to be Solicitor General in about 2 weeks ago, I urged Republicans President’s more than 100 nominees, es- June 2001, Mr. Estrada has had one ar- who said such things to apologize for pecially since I made it very clear in gument before the Supreme Court— these baseless and divisive charges. my statements on this floor that I just one. That was in connection with a They have yet to do so. Because they never once considered religion or the habeas petition on which he worked have not apologized for these baseless background of any nominee for any- pro bono when he first came to the charges, it prompted the League of thing—nominees from either Repub- firm. It is one of the only pro bono Latin American Citizens, an organiza- lican or Democratic administrations. cases he has taken in his entire legal tion that has supported this nomina- Not in any of the thousands upon thou- career, according to his testimony. tion, to write to the Senate to protest sands of nominees of both Republican I am about to yield the floor. I note the charges leveled without basis by and Democratic Presidents that I voted one thing, some of the speeches on the Republicans. I emphasize the League of for have I ever once considered their other side of the aisle make you think United Latin American Citizens, which religious background. So I find it dis- everyone opposes the efforts of Demo- supports Mr. Estrada’s nomination, has tasteful when my religion is attacked crats to get answers to fair questions written to the Senate to protest the by members of the Republican caucus, and review documents provided in past charges of bias leveled without basis by and I find it distasteful when members nominations. Especially in the case some Republicans. of that caucus attack Democrats on where a supervisor has called into Hector Flares, the LULAC National the claim that their principled opposi- question a nominee’s ability to be fair, President wrote on February 12: tion to this nomination is anti-His- that is all the more reason we should panic. I think the largest Hispanic or- see what he did. There is also ample [W]e are alarmed by suggestions from some precedent for the Senate Judiciary of the backers of Mr. Estrada that the Sen- ganization supporting Mr. Estrada ate Democrats and the members of the Con- made it very clear they resent it, too. Committee examining memos written gressional Hispanic Caucus are opposing his I join with them on that. by Department of Justice attorneys, nomination because of his race, ethnicity or We know Mr. Estrada’s short legal including Assistant Solicitor Gen- an anti-Hispanic bias. We do not subscribe to career has been successful. By all ac- erals—like Mr. Estrada was—in connec- this view at all and we do not wish to be as- counts he is a good appellate lawyer tion with nominations to either life- sociated with such accusations. and legal advocate. He has had a series time or short-term appointments, such LULAC has had a long and productive of prestigious positions and is profes- as in the nominations of Robert Bork, working relationship with many Senate Democrats and all of the members of the sionally and financially successful. In William Rehnquist, Brad Reynolds, Congressional Hispanic Caucus and our expe- my case, as the grandson of immi- Stephen Trott, and Benjamin Civiletti. rience is that they would never oppose any grants, as a son, a father and grand- There have been a number of papers nominee because of his or her race or eth- father, I know no matter the country and published editorials and op-eds nicity. On the contrary, it is most often the of origin or economic background that supporting our efforts to know more Democratic members of the Senate who sup- a family takes pride in the success of about Mr. Estrada before we give him a port LULAC’s priority issues.... its children. Mr. Estrada’s family has lifetime seat, before we could never I thank LULAC for disassociating much to be proud of in his accomplish- question him again, before we put him, itself with the base political efforts of ments, no matter what happens to this for a lifetime, on one of the most pow- Republicans to accuse those who op- nomination. erful courts of the country. pose this nomination as doing so based He is now 41 years old. He has a suc- On February 4, Senator HATCH said, on race or ethnicity. On the contrary, cessful legal career in a prominent cor- and I will paraphrase: Mr. Estrada is it is most often the Democratic Mem- porate law firm, which was the firm of not nominated to the Supreme Court— bers of the Senate who support His- President Reagan’s first Attorney Gen- of course he is right—but his nomina- panic priority issues. eral, William French Smith, and that tion may be even more important be- I thank LULAC for disassociating of President Bush’s current Solicitor cause the Supreme Court hears only itself with the base political efforts of General, Ted Olson. I am told that Mr. about 90 cases per year while the DC some Republicans who accuse those Olson, along with Kenneth Starr, have Circuit issues nearly 1,500 decisions per who oppose this nomination of doing so been among Mr. Estrada’s conservative year. These decisions affect the rights based on race or ethnicity. I renew my mentors. At his relatively young age, of working people and the environ- request for an apology for all the state- Mr. Estrada has become a partner in mental rights of all people. The Senate ments made in connection with the the law firm of Gibson, Dunn & Crutch- must not be a rubberstamp.

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00011 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2632 CONGRESSIONAL RECORD — SENATE February 25, 2003 I ask unanimous consent to have tions about his legal views or to provide doc- U.S. Court of Appeals to the dismay of not printed in the RECORD some of the edi- uments showing his legal work. This prompt- only Republicans but many editorial writers. torials in favor of the position the ed the Senate minority leader, Thomas How dare they employ politics! In these mat- Democrats have taken here. Just to Daschle, to conclude that Estrada either ters there should be a simple test: sym- ‘‘knows nothing or he feels he needs to hide metry. Or, as former Clinton Solicitor Gen- name a few, we have editorials from something.’’ eral Walter Dellinger declares, ‘‘Whatever the New York Times, the Boston Globe, Nonetheless, Estrada’s nomination won factor a President may properly consider, and the Rutland Daily Herald, among partisan committee approval last month. All senators should also consider.’’ Since ide- others, as well as op-ed from the Wash- 10 Republicans voted for him; all nine Demo- ology clearly is the guiding force behind the ington Post and Wall Street Journal, crats voted against. On Tuesday Senate slate of Bush circuit court nominees, it’s and letters to the editor of the Wash- Democrats began to filibuster Estrada’s perfectly appropriate for Senate Democrats ington Post, disagreeing with their ear- nomination, a dramatic move to block a full to sue the same standard. That’s certainly the criterion Republicans lier editorial—touted by Republicans Senate vote that could trigger waves of po- litical vendettas. used in the Clinton years. Orrin Hatch is out- this morning—urging an immediate It’s crucial to evaluate candidates based on raged at Democrats’ insistence that nominee vote in spite of the precedent for re- their merits and the needs of the country. Miguel Estrada, who refuses to express an questing documents and getting an- Given that the electorate was divided in opinion on any Supreme Court decision, be swers to questions before giving some- 2000, it’s clear that the country is a politi- more forthcoming. Yet it was only a few one such an important job. cally centrist place that should have main- years ago that the same Utah Republican There being no objection, the mate- stream judges, especially since many of was insisting on the need ‘‘to review . . . rial was ordered to be printed in the these nominees could affect the next several nominees with great specificity.’’ decades of legal life in the United States. In 1996 Sen. Hatch decried two Clinton, ju- RECORD, as follows: Further, this is a nation that believes in dicial nominees as ‘‘activists who would leg- [From the New York Times, Feb. 13, 2003] protecting workers’ rights, especially in the islate from the bench.’’ Later, the then Sen- KEEP TALKING ABOUT MIGUEL ESTRADA aftermath of Enron. It’s an America that ate Republican leader, Trent Lott, left no The Bush administration is missing the struggles with the moral arguments over doubt that it was ideology that prompted his point in the Senate battle over Miguel abortion but largely accepts a woman’s right objections to the ‘‘judicial philosophies and Estrada, its controversial nominee to the to make a private choice. It’s an America likely activism’’ of prospective judges. powerful D.C. Circuit Court of Appeals. that believes in civil rights and its power to Judicial activism used to be a term re- Democrats who have vowed to filibuster the put a Colin Powell on the international served for liberals. Now much activism on nomination are not engaging in ‘‘shameful stage. the bench comes from the right, often, in the politics,’’ as the president has put it, nor are Does Estrada meet these criteria? He isn’t words candidate Bush used to attack lib- they anti-Latino, as Republicans have cyni- providing enough information to be sure. erals, in the form of judges who ‘‘subvert’’ cally charged. They are insisting that the And the records of some other nominees fail the legislature. In recent years, congres- White House respect the Senate’s role in con- to meet these standards. sional measures such as the Americans with firming judicial nominees. Debating the merits of these nominees is Disabilities Act, legislation to oppose vio- The Bush administration has shown no in- also crucial because some, like Estrada, lence against women and to increase gun terest in working with Senate Democrats to could become nominees for the Supreme control have been gutted by conservative select nominees who could be approved by Court. judges. consensus, and has dug in its heels on its The choir—Democrats, civil rights groups, As Indiana law professor and former Clin- most controversial choices. At their con- labor groups, and women’s groups—is al- ton Justice Department official Dawn John- firmation hearings, judicial nominees have ready singing about how modern-day Amer- son chronicled in a Washington Monthly refused to answer questions about their ica should have modern-day judges. It’s time piece last year, the right-wing Federalist So- views on legal issues. And Senate Repub- for moderate Republicans and voters to join ciety-agenda envisions an activist judiciary licans have rushed through the procedures in so that the president can’t ignore democ- that would roll back many of the guarantees on controversial nominees. racy’s 21st-century judicial needs. enacted by Congress under the Commerce Mr. Estrada embodies the White House’s Clause and the 14th Amendment. scorn for the Senate’s role. Dubbed the [From the Wall Street Journal, Feb. 20, 2003] A contemporary example is Jeffrey Sutton, a brainy legal scholar nominated for the ‘‘stealth candidate,’’ he arrived with an ex- SYMMETRY IN JUDICIAL NOMINATIONS Fourth Circuit Court of Appeals. Mr. Sutton tremely conservative reputation but almost The White House has a message for Demo- no paper trail. He refused to answer ques- clearly is qualified but just as clearly would cratic senators tying up its judicial nomina- turn back the clock on protecting people tions, and although he had written many tions: we won the election, you’re thwarting memorandums as a lawyer in the Justice De- with disabilities. Should senators who care the people’s will. about disability rights simply ignore his ide- partment, the White House refused to release Not quite. Never mind it was an evenly di- them. ology? vided electorate. The selection of judges was The right claims that central to the Demo- The Senate Democratic leader, Tom a non-issue. George W. Bush didn’t even crats’ opposition to these nominees is abor- Daschle, insists that the Senate be given the mention the topic in his speech at the GOP’s tion. And it’s true that, more than any other information it needs to evaluate Mr. Philadelphia convention or in his acceptance issue, abortion remains a litmus test for Estrada. He says there cannot be a vote until remarks when he finally emerged vic- both sides. Almost all the Bush circuit-court senators are given access to Mr. Estrada’s torious—thanks to judges—after Florida. nominees have been pro-life and a high per- memorandums and until they get answers to In two of the three debates, judicial selec- centage of the Clinton appointments were their questions. The White House can call tions weren’t mentioned. In the other, can- pro-choice. But, as Mr. Sutton’s selection this politics or obstruction. But in fact it is didate Bush, while ducking the question of shows, the issues are much broader than the senators doing their jobs. whether all his judicial appointments would disproportionate influence placed on abor- be anti-abortion, insisted he wouldn’t have tion. [From the Boston Globe, Feb. 15, 2003] any litmus tests. But he declared that, un- In the Estrada fight, some Republicans RUSH TO JUDGES like Vice President Gore, he would not ap- also allege an anti-Hispanic motive. Opposi- The Senate Judiciary Committee ought to point judicial activists; judges, he declared, tion to his nominees sends ‘‘the wrong mes- come with a warning sign: Watch out for ‘‘ought not take the place’’ of Congress. As sage to Hispanic communities,’’ charges fast-moving judicial nominees. Controlled by the president accuses Democrats of playing Georgia Sen. Saxby Chambliss. For the Republicans, the committee is approving politics, however, he nominates almost noth- record, Mr. Bush has nominated one Hispanic President Bush’s federal court nominees at ing but pro-life judges and passionate activ- judge to the circuit courts; President Clinton speeds that defy common sense. ists of a conservative stripe. nominated 11. Three of the Clinton nomina- One example is Miguel Estrada, nominated For all the emotions judicial appointments tions were killed by Senate Republicans. to the US Court of Appeals for the District of arouse on both sides, the political implica- Were they racially motivated? That makes Columbia. Nominated in May 2001, Estrada tions for senators are wildly exaggerated. as much sense as the Estrada charges. had been on a slow track, his conservative Over the past several decades the only one To be sure, the Democrats play the same views attracting concern and criticism. who lost an election because of a judicial games, though the Clinton nominees, as a Some Republicans called Democrats anti- vote was Illinois Democrat Alan Dixon, de- whole, were nowhere near as ideological as Hispanic for challenging Estrada. He came to feated in a primary after he voted to confirm the Bush picks. But there is some overreach; the United States from Honduras at the age Clarence Thomas for the Supreme Court. the Democrats’ efforts to get Mr. Estrada’s of 17, improved his English, earned a college What these battles are about is energizing private notes when he worked in the solic- degree from Columbia, a law degree from the base; that’s why during presidential cam- itor general’s office would set a bad prece- Harvard, and served as a Supreme Court paigns they are retail, not wholesale, issues. dent. clerk for Justice Anthony Kennedy. Currently, Senate Democrats are staging a Thoughtful people on both sides of the What has raised red flags is Estrada’s re- mini-filibuster over the nomination of move- aisle worry about these perpetual battles. fusal to answer committee members’ ques- ment conservative Miguel Estrada for the Mr. Dellinger, for one, notes that if the focus

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00012 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 25, 2003 CONGRESSIONAL RECORD — SENATE S2633 is only on ‘‘noncontroversial,’’ selections, to surrender its constitutional role as a These inane people who have entered the result chiefly would be courts full of check on the excesses of the executive. into partisan politics have disparaged a ‘‘relatively undistinguished lawyers lacking The Republicans are accusing the Demo- man who is 10 times better than they crats of partisan politics. Of course, the Re- any substantial record of creative scholar- are. It is unbelievable the lengths and ship or advocacy.’’ Instead, he proposes a publicans are expert at the game, refusing more constructive solution. Opposition lead- even to consider numerous nominees sent to the depths to which they will stoop to ers in the Senate would develop a short list the Senate by President Clinton. betray one of their own fellow Hispanic of distinguished scholars and practitioners The impasse over Estrada is partisan poli- people. for the president to submit for the courts of tics of an important kind. The Republicans I hope the rest of the members of the appeal. There is a precedent: President Bush must not be allowed to shame the Democrats Hispanic Bar Association will rise up last year renominated Clinton nominee, into acquiescence. For the Democrats to give and let them know how for off the Roger Gregory, the first African American in would be for them to surrender to the fierce partisanship of the Republicans. mark they are. on the Fourth Circuit, in to win acceptance Listen to this: for his other nominees. The wars over judicial nominees are likely Currently, Mr. Dellinger says if Senate to continue as long as Bush, with the help of We believe that for many reasons includ- Democrats proposed a ‘‘distinguished’’ nomi- Attorney General John Ashcroft, believes it ing: his virtually nonexistent written record, nee like former Solicitor General Seth Wax- is important to fill the judiciary with ex- his . . . judicial and academic teaching expe- treme right-wing judges. man for the U.S. Circuit Court, a deal could rience— The Democrats, of course, would like noth- be crafted whereby he and Bush nominees This is the written stuff that they ing better than to approve the nomination of Mr. Estrada and John Roberts are promptly a Hispanic judge. But unless the nominee is can’t match—very few of them—or confirmed. Republicans still would hold the qualified, doing so would be a form of racial even come close to matching. I don’t upper hand, but the rightward rush would be pandering. That is the game in which the Re- think any of them can. The reason I modified. publicans are engaged, and the Democrats don’t think so is because not many It makes a lot of sense and would result in must not allow it to succeed. a better judiciary. But the activists on both people in this world have that type of Mr. LEAHY. Mr. President, I yield a record—a written, open record that sides have little interest; it wouldn’t ener- the floor. gize their bases. anybody can read and find. There are The PRESIDING OFFICER. The Sen- not many attorneys living today who [From the Rutland Daily Herald, Feb. 24, ator from Utah. have argued 15 cases before the U.S. 2003] Mr. HATCH. Mr. President, I have Supreme Court and have the record of been listening to my distinguished col- PARTISAN WARFARE winning 10 of them. league. I noted that he mentioned the Senate Democrats are expected to continue They say he doesn’t have any aca- their filibuster this week against the ap- Hispanic National Bar Association’s demic teaching experience. You mean pointment of Miguel Estrada, a 41-year-old past presidents’ statement. I have sel- you can’t be a judge? lawyer whom President Bush has named to dom read a statement that is so abso- Let us put it this way. Since there the federal appeals court in Washington, D.C. lutely bankrupt as this statement. I have been many academics who have Sen. Patrick Leahy, ranking Democrat on have seldom read anything that has gone on the Federal bench in circuit the Judiciary Committee, is in the middle of disgusted me as much as these past courts of appeals, the Supreme Court, the fight over the Estrada appointment. He presidents of this Hispanic Bar Asso- and his fellow Democrats should hold firm and district courts, do you mean the ciation in this letter. I have never seen Hispanics can’t go on the bench unless against the Estrada nomination. less backing for a letter than what Much is at stake in the Estrada case, most they have academic and teaching these people have signed off on. importantly the question of whether the records? First, let me note for the record that Democrats have the resolve to resist the ef- That is what this seems to say by 15 the Hispanic National Bar Association forts of the Bush administration to pack the former presidents of the Hispanic Bar supports Mr. Estrada’s nomination. So judiciary with extreme conservative judges. Association which has endorsed him. The problem with the Estrada nomination these people have gone way off the res- They have gone against their own orga- is that Estrada has no record as a judge, and ervation. They may have been past nization. It is hard to believe. senators on the Judiciary Committee do not presidents, but they should never be al- Then they said: believe he has been sufficiently forthcoming lowed to be a president of this bar asso- about his views. It is their duty to advise and ciation again. They ought to throw We believe that for many reasons includ- consent on judicial nominees, and Estrada ing: his virtually nonexistent written record. has given them no basis for deciding whether them out of the bar association be- cause they entered into politicization Look at that record. He has verbally to consent. expressed an unrebutted extreme view? President Bush has called the Democrats’ of this nominee, in contradiction to I haven’t heard an extreme view opposition to Estrada disgraceful, and his what their own bar association has fellow Republicans have made the ludicrous done in endorsing him. The bar associa- throughout this whole process, and we charge that, in opposing Estrada, the Demo- tion speaks for its many members, not have a transcript that thick of ques- crats are anti-Hispanic. For a party on these 15 former presidents. We know tions by our friends on the other side, record against affirmative action, the Re- why they have done this, because they and ourselves really. Extreme views? I publicans are guilty of cynical racial politics haven’t heard any extreme views. I for nominating Estrada in the first place. He are 15 partisans. It is disgraceful. Let me read part of this letter— don’t think anybody has made a case has little to qualify him for the position ex- that he has extreme views. cept that he is Hispanic. ‘‘Based upon our review and under- Unless the Democrats are willing to stand standing. . . .’’ Then the letter says, ‘‘his lack of ju- firm against Bush’s most extreme nomina- What kind of review? They talked to dicial or academic teaching experi- tions, Bush will have the opportunity to their friends on the Democratic side? Is ence— push the judiciary far to the right of the that where they got this stuff? Most of OK. What they are saying—these His- American people. Leahy, for one, has often which is absolutely false and distorted: panic Bar Association presidents—is urged Bush to send to the Senate moderate Based upon our review and understanding that hardly any Hispanics will ever nominees around whom Democrats and Re- of the totality of Mr. Estrada’s record and qualify for the circuit court of appeals publicans could form a consensus. In a na- life’s experiences, we believe that there are or even the district court because they tion and a Congress that is evenly divided more than enough reasons to conclude that haven’t had any judicial experience or politically, moderation makes sense. Mr. Estrada’s candidacy falls short in these But Bush’s Justice Department is driven teaching experience. They are con- respects. by conservative idealogues who see no reason demning their own people. What a ri- for compromise. That being the case, the Listen to this: diculous, dumb statement. I don’t Senate Democrats have no choice but to hold We believe for many reasons including his swear. But I’ll be darned. I am having the line against the most extreme nominees. virtually nonexistent written record. . . . a tough time not swearing here. Leahy has drawn much heat for opposing Could I make a little point here that Then it says in parentheses: Bush’s nominees. But he has opposed only I think needs to be made? These are (against which his fairness, reasoning skills three. In his tenure as chairman of the com- the appellate briefs in the 15 Supreme and judicial philosophy could be properly mittee, he sped through to confirmation far tested) more nominees than his Republican prede- Court cases. There has not been a cessor had done. But for the Senate merely nominee before this Senate in recent What about the five of the eight on to rubber stamp the nominees sent their way years who has been able to have that the current court who haven’t any ju- by the White House would be for the Senate type of illustration of what they do. dicial experience? And I don’t know

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I expect fair- aren’t true. But I am starting to think . . . his less than candid responses to other ness to be given to our nominee and to they are true. straightforward questions of Senate judici- their President’s nominees. It says: ary members. Finally, I didn’t agree with President . . . his poor judicial temperament. Where did they get that? I bet none Clinton’s nominees’ ideology in prob- of them have read this transcript. I ably none of the cases—none of the Since he has never been a judge, how doubt that many of them saw the hear- do they know what his judicial tem- nominees. But that wasn’t the issue. ings. Where would they get that? It The issue was whether they were quali- perament is? The fact is that none of certainly wasn’t from this side, I guar- them—I don’t believe any of them— fied. And there has very seldom been a antee you, because we saw him answer person as qualified as Miguel Estrada. even know Miguel Estrada. And if they the questions. He just didn’t answer do, they know he has a decent tempera- All you have to do is point to the them the way our colleagues on the ABA’s unanimous well-qualified rating, ment. other side of the aisle wanted him to Do you know where they get that? the highest rating they could possibly answer them. They couldn’t lay a glove give. They are tough. They get that from some of our friends on him. That is why this is a phony re- on the other side who believe that Paul Now, having said that, I am really quest for confidential and privileged disappointed in my colleagues on the Bender, who we have discredited, I be- materials from the Solicitor General’s lieve, fairly and honestly, who gave other side because they have tried to Office—the attorney for our country say the standing committee of the him the highest possible ratings when and for the people in this country. Miguel was his junior, when he was American Bar Association was preju- Let me tell you that when I practiced diced and stacked in coming up with Miguel’s supervisor in the Solicitor law, my files were confidential, too. General’s Office, and then off the cuff this rating. They do not have a good There is no way I would have given argument to make, so they make a says he doesn’t have a judicial tem- them to anybody. There is no court in perament, in essence. phony argument. the land that would force me to give I want to respond to statements by Who are you going to believe? The them to anyone. They are privileged; one of my Democratic colleagues yes- things that he put in writing at the that is, since I am an attorney. Can terday, suggesting that Mr. Estrada’s time when they were really important you imagine the privilege the Solicitor ABA rating was somehow rigged. I hate and when they really made a difference General’s Office can assert—and they to say it, but this is stooping low, too, or the off-the-cuff remarks that a par- have. to make that kind of a statement. tisan Democrat liberal—about as lib- Like I said, seven former Solicitors Before I address these statements eral as you can get—would say to try General—four of whom were Demo- head on, I think it is first appropriate to scuttle a nomination? These guys crats—have said this is ridiculous. Yet to lay the predicate, to lay the signifi- buy it—lock, stock, and barrel. What it keeps coming up. It is a red herring. cance of Mr. Estrada’s ABA rating. kind of lawyers are they? Then they It is a double standard. It is a standard Let me just look at this chart. This say: applied to Miguel Estrada that has chart is entitled ‘‘Senate Democrats never in history been applied to any- . . . his total lack of any connection whatso- Praise the ABA.’’ ever to, or lack of demonstrated interest in body else. the Hispanic community. The letter request was to give up his [The] ABA evaluation has been the gold recommendations on appeals, certio- standard by which judicial candidates have How do they know that? They are been judged. prejudging this man without knowing rari matters and amicus curiae mat- ters. That was Senator PATRICK LEAHY in all the people he has met with and March 2001. worked with and for whom he has been Then it says: What ABA is simply telling us, and has an example. Every Hispanic young per- . . . and because of the administration’s re- fusal to provide the Judiciary Committee historically, is whether or not a prospective son can look up to Miguel Estrada be- the additional information and cooperation judge is competent. cause he is the embodiment of the it needs to address these concerns. That was Senator TOM DASCHLE on American dream. Give me a break. He has made him- March 22, 2001. My gosh. This is the most biased, un- self available. Any Democrat who informed, stupid, dumb letter I have [I] fear . . . that the Judiciary Committee wants to talk to him he will talk to. A will be less able than the ABA to discern a ever read, and it is done for purely par- number of them refused to even talk to nominee’s legal qualifications. tisan purposes against a fellow His- him. Why is that? That was Senator DIANNE FEINSTEIN panic. I can’t believe it. I couldn’t be- So they are trying to do justice here? on March 31, 2001, the distinguished lieve it when I saw this. Why is that so? Why is this Hispanic Senator from California. She is right. Then it says: independent thinker being treated this The ABA, with its extensive contacts in . . . his refusals to answer even the most way? I suggest that it is because he is the legal community all across the country, basic questions about civil rights and con- Hispanic and he is an independent is the best organization to evaluate the in- stitutional law. thinker. He doesn’t just toe the line. tegrity, professional competence and judicial Give me a break. He spent as much if I am disgusted. Some of these people temperament of potential nominees. not more time than almost any nomi- I know. They should have done better That was Senator RUSSELL FEINGOLD nee we have had over the last 27 years by their fellow Hispanics. They should in July 2001. to the circuit court of appeals. We sim- have thought twice before putting [T]he ABA . . . has always been impartial. ply did not treat people as this man is their names on this piece of garbage . . . [The ABA is] hardly partisan or ideolog- being treated by some on the other called a letter by past presidents. It is ical. . . . The ABA is the national organiza- side—not everybody. What do they a disgrace to the Hispanic community. tion of all lawyers: Democrats, Republicans, know about his knowledge of civil It is a disgrace to the Hispanic Na- liberals, conservatives. rights and constitutional law? I happen tional Bar Association and the rest of That was Senator CHARLES SCHUMER to believe Miguel Estrada will be one of the membership that is behind Miguel on May 9, 2001. the champions for civil rights, and he Estrada. And it is a disgrace to them We have had our problems with the is certainly one of the tough lawyers personally to do this type of disgrace- ABA when there were, it seemed to me, with regard to constitutional law— ful thing in a miserably partisan way. prejudicial decisions from time to time something I doubt very many of these I don’t want to spend any more time made. And I have had some real prob- past presidents had much experience on it. It doesn’t deserve it. I didn’t lems with them. But I have to say,

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This indi- act, and I said this before the end of Appeals; Raymond Fisher, the Ninth vidual agreed that Miguel Estrada the Clinton administration, even Circuit Court of Appeals; Stanley should be given the highest rating: though I have not been happy with any Marcus, the Eleventh Circuit Court of ‘‘well qualified,’’ unanimously, the one single organization having a vet- Appeals; Frank Hull, the Eleventh Cir- highest rating. ting responsibility, which is what some cuit Court of Appeals—all of those I am not going to say that person was of my colleagues always wanted the rated by Mr. Fielding as unanimously biased because that person gave to Sen- ABA to have. well qualified. ator Torricelli. It is apparent he was Now, let’s consider Miguel Estrada. You can hardly say this man was as not biased. The ABA rated him ‘‘well qualified’’ was described yesterday; in fact, not at How about the ABA’s Fourth Circuit unanimously—that is the highest pos- all. Anybody who knows Fred Fielding representative? He made political con- sible score—at around the time my knows he is an honest man. It is offen- tributions to Senator CHARLES SCHU- Democratic colleagues heaped praise sive to have that type of characteriza- MER, Senator TOM DASCHLE, Senator on the ABA. But now, 2 years later, tion made, even in the height of a very JEAN CARNAHAN, former Vice President some of my friends across the aisle ap- political battle, which this appears to Al Gore, Representative JERROLD NAD- parently want to adopt a new rule: be—well, to be. I could have said 2 LER, Representative MARTIN FROST, ABA ratings are the gold standard—un- weeks ago: to be coming. Representative ANTHONY WEINER, Rep- less we don’t like the nominee. Now, as that list illustrates, Mr. resentative ELLEN TAUSCHER, and Rep- It is against this backdrop that one Fielding voted to give numerous Clin- resentative CHARLES RANGEL. This in- of my Democratic colleagues, the dis- ton circuit nominees the highest rating dividual agreed that Miguel Estrada is tinguished minority whip, now asserts possible. If he had been promoting a ‘‘well qualified.’’ I do not think these that respected Washington lawyer Fred partisan agenda, he would not have people would be influenced by some Re- Fielding somehow tricked the ABA voted to find a single Clinton nominee publican saying: Well, we ought to pull into rating Miguel Estrada unani- well qualified, or he certainly would a fast one here and get this fellow well mously well qualified. have found a number of those, perhaps, qualified when he was not worthy of Now, I have great respect and loving not well qualified—even though they being well qualified. friendship for my friend from Nevada. deserved the qualification they got—if There is no question that Fred Field- Everybody knows that. I care for him he was partisan. ing is a Republican. There is no ques- deeply. But I could hardly believe my There is simply no reason to believe tion that he supports Republicans po- ears when I heard that one. I think it his vote to find Miguel Estrada well litically. But there is also no question is important to set the record straight, qualified reflected anything other than he is a person of impeccable honor and and so here are the facts. I have to pre- his unbiased, nonpartisan assessment integrity who has served as White sume my colleague just did not know of Mr. Estrada’s fitness for the Federal House Counsel and that he would do the facts and, therefore, went off on bench. what is right on this committee, just this tangent, and I hope he will with- Moreover, there is simply no way Mr. like these Democrats did what was draw that statement once he hears Fielding alone could have been respon- right in rating Miguel Estrada as well what the facts are. sible for the ABA’s unanimous decision qualified. Mr. Fielding was a member of the to rate Miguel Estrada ‘‘well quali- How about this: The ABA’s Sixth Cir- ABA standing committee that rates ju- fied.’’ The ABA’s rules make clear that cuit representative—this is on the dicial nominees when Miguel Estrada every member of the ratings com- standing committee—contributed to was unanimously rated well qualified. mittee must evaluate each nominee the Democratic National Committee, Mr. Fielding left the ABA committee independently: Senator FRANK LAUTENBERG, Senator in November 2001. He did not become After careful consideration of the formal CHARLES SCHUMER, former Senator affiliated with Boyden Gray’s Com- report and its enclosures, each member sub- BILL BRADLEY, Senator EDWARD KEN- mittee for Justice until August 2002. In mits his or her rating vote to the Chair. NEDY, Representative RICHARD GEP- fact, the Committee for Justice was Now, that is an insult to the other HARDT, and the Arizona State Demo- not even founded until August 2002. members of the standing committee for cratic Central Executive Committee. There is no way the Committee for somebody to imply they would all pay Now, this individual agreed that Justice could have influenced Mr. attention to a ‘‘corrupt’’ Mr. Fielding, Miguel Estrada is ‘‘well qualified,’’ the Fielding’s duties at the ABA because if that were even possible, which, of highest rating the standing committee the Committee for Justice did not even course, it is not. could give. He could not be a more par- exist at the time. Mr. Fielding’s background as a Re- tisan Democrat, but I believe he is From 1996 to 2002, when he was on the publican was more than offset by the doing the job fairly on the committee. ABA committee, Fred Fielding consist- committed Democrats who served on The fact that he supports Democrats, ently evaluated nominees fairly and the ABA committee at the time and I wish he didn’t as much as a Repub- with an open mind. He voted to rate who joined in the unanimous decision lican, but the fact that he supports many of President Clinton’s circuit to give Miguel Estrada a well-qualified Democrats I find no problem with. court nominees ‘‘well qualified,’’ in- rating. How about this one: The ABA’s Sev- cluding the following: For example, according to public enth Circuit representative contributed Allan Snyder, the DC Circuit Court records, the chairman of the ABA com- to Emily’s List, the feminist political of Appeals; Robert Katzmann, the Sec- mittee at the time Mr. Estrada was organization; Voters for Choice, one of ond Circuit Court of Appeals; Marjorie rated well qualified contributed to the the pro-abortion organizations; Sen- Rendell, the Third Circuit Court of Ap- election campaign of Senator SCHUMER. ator PATTY MURRAY; former Represent- peals; Maryanne Barry, the Third Cir- This individual agreed that Miguel ative Geraldine Ferraro, former Sen- cuit Court of Appeals; Robert Cindrich, Estrada is ‘‘well qualified,’’ the highest ator Carol Moseley-Braun; Senator the Third Circuit Court of Appeals; rating possible. MARY LANDRIEU; Senator Jean Carna- Stephen Orlofsky, the Third Circuit Now, I am not going to accuse the han; Senator BARBARA MIKULSKI, and Court of Appeals; Andrew Davis, the chairman of the ABA committee at the Senator DICK DURBIN. Yet he voted Fourth Circuit Court of Appeals; Al- time, because he donated to Senator ‘‘well qualified.’’ So Fielding is out of ston Johnson, the Fifth Circuit Court SCHUMER’s campaign—which he had line? Come on. That is phony. of Appeals; Ronald Gilman, the Sixth every right to do—I am not going to How about the ABA’s Eighth Circuit Circuit Court of Appeals; Kathleen accuse him of being improper, as I be- representative. He contributed to Sen- McCree Lewis, the Sixth Circuit Court lieve the implication was for Mr. Field- ator JOSEPH BIDEN, Senator HILLARY of Appeals; Ann Claire Williams, the ing. CLINTON, Senator Paul Wellstone, Sen- Seventh Circuit Court of Appeals; Get this point. The ABA’s Second ator Jean Carnahan, and former Vice Susan Graber, the Ninth Circuit Court Circuit representative contributed to President Al Gore. This individual of Appeals; James Duffy, the Ninth Cir- Senator Robert Torricelli’s reelection agreed that Miguel Estrada is ‘‘well cuit Court of Appeals; Richard campaign and to the New Jersey Demo- qualified.’’ I don’t think he had any

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00015 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2636 CONGRESSIONAL RECORD — SENATE February 25, 2003 bias in that. I don’t think Fred Field- It is time to get rid of these phony Hispanic man who is an independent ing had all that influence with all arguments. In the case of Miguel thinker and who has an amazing record these big-time Democrats. I really Estrada, the process worked just as the for a person of his age, who has the don’t. I don’t think anybody in their ABA intended. It took a lot of very qualifications to be on the Circuit right mind does. partisan Democrats acting in a non- Court of Appeals for the District of Co- How about the ABA’s Eleventh Cir- partisan way fulfilling their duties on lumbia, why are we doing this to him? cuit representative. He contributed to the ABA standing committee to find Why the double standard? Nobody else Senator Max Cleland. This individual him well qualified, not just when Mr. has been treated this shabbily, espe- agreed that Miguel Estrada is ‘‘well Fielding was on the committee but also cially by these past presidents of the qualified.’’ Did he have a bias? Do you the second time in this Congress. Hispanic Bar Association. Keep in mind think he was influenced by Fred Field- That is pretty important stuff. I have that Hispanic National Bar Association ing? to respond to Senator LEAHY’s remarks supports Miguel Estrada. Yet these How about the ABA’s Federal circuit that Miguel Estrada handled only one people gratuitously signed this ridicu- representative who contributed to pro bono case. That is not accurate. I lous letter. I hope they feel ashamed of Emily’s List, the pro-feminist list; am sure my colleague must have over- themselves. They ought to be. Senator Chuck Robb; the Democratic looked the case of Campaneria v. Reid. The Hispanic community ought to National Committee. This individual Miguel Estrada represented pro bono, tell them to be ashamed of themselves. agreed that Miguel Estrada is ‘‘well without fee, a criminal defendant seek- I believe they will. I think that is qualified.’’ That is just the beginning ing to vacate his conviction on grounds going on right now. The Hispanic peo- of the story. that the admission of his confession at ple are starting to catch on on this and At the start of the 108th Congress, trial violated the Miranda rule. The what is going on. It just plain isn’t the ABA then reaffirmed Mr. Estrada’s two judges on the Second Circuit panel fair. It just plain isn’t right. It just unanimous well-qualified rating. It ap- hearing the case agreed with Miguel plain is not a good thing to do to fili- pears that the Democrats on this year’s Estrada that his client’s right to re- buster a Federal judicial nominee. It ABA committee are equally enthusi- main silent had been violated but ulti- just isn’t. We have always had some astic about Miguel Estrada’s nomina- mately ruled that the error was harm- who wanted to do it, but we on this tion. less. One judge dissented, arguing that side have always been able to stop The ABA’s DC Circuit representa- the admission of Mr. Campaneria’s con- them. This is the first true filibuster tive—Fred Fielding’s successor—con- fession was not harmless. Miguel that we have had on a Federal judicial tributed to the Democratic National Estrada spent countless pro bono hours nominee. Committee and Emily’s List. This indi- on that case which further illustrates I yield the floor. vidual agreed that Miguel Estrada is his commitment to equal access to jus- The PRESIDING OFFICER (Mr. NZI). The Senator from Nevada. ‘‘well qualified.’’ tice for all. E Mr. REID. Mr. President, I know The ABA’s Federal circuit represent- Since Senator LEAHY brought up Mr. there are others who wish to speak, but ative contributed to Senator HILLARY Estrada’s pro bono work, let me remind I wanted to take a minute to talk CLINTON, the Irish American Demo- him of Mr. Estrada’s work in Strickler about my friend’s comments about Mr. crats, Representative NANCY PELOSI, v. Green. This is an important case as Fielding. the Democratic National Committee, well. It is important to bring it up in I think that while my name was men- Senator JOHN BREAUX, former Vice light of what has been said. Miguel tioned—and I have the greatest respect President Al Gore, and the Democratic Estrada represented, free of charge, for my friend from Utah. We are close Congressional Campaign Committee. Tommy David Strickler, who was con- personal friends. Our families are This individual agreed that Miguel victed of abducting a college student friends. We have been in each other’s Estrada is ‘‘well qualified.’’ from a shopping center and murdering homes. There is nothing personal about I wonder why all these Democrats on her. Miguel Estrada devoted hundreds this. This is a partisan matter we are the ABA’s standing committee find of hours to Mr. Strickler’s appeal with- bringing before the Senate. him well qualified while our friends on out being paid. Ultimately, the Su- Mr. President, the political contribu- the floor are filibustering this well- preme Court held that although a tions that people make is certainly qualified individual? I don’t understand Brady violation had occurred when the very different from being an inside po- it. It seems to me to be a double stand- prosecution withheld exculpatory evi- litical operative, as Mr. Fielding was. ard. dence from the defense, the error was In fact, for lack of a better way to de- The ABA’s Fourth Circuit represent- harmless. Mr. Strickler was accord- scribe him, he was an inside guy for the ative contributed to Senator JOHN ingly executed, but it does not negate Republicans and had been for many EDWARDS in the North Carolina Demo- the fact that Miguel Estrada gave that years. I will list in a minute the many cratic Victory Fund and Bill Bradley. kind of service free. things he had done. This individual agreed that Miguel It was a legitimate question, too. The Mr. President, the more I hear about Estrada is ‘‘well qualified.’’ court did not rule for Miguel Estrada the ABA, the more convinced I am the The ABA’s Eighth Circuit representa- in the case, but he did do what he has Republicans were right when they said tive contributed to the Missouri Demo- been accused of not doing, and that is let us not have the ABA involved in cratic State Committee and Senator giving pro bono service for a person in this. I think those people who said that Jean Carnahan. This individual agreed need. were absolutely right. I didn’t know as that Miguel Estrada is ‘‘well quali- I would like to read a portion of a much about the ABA as I do now. I fied.’’ There are a lot of Democrat lead- letter the committee received from Mr. practiced law for a long time before I ers who contributed to a lot of Demo- Estrada’s cocounsel in the case, Bar- came here. I was a trial attorney. I crats running for office who all found bara Hartung: didn’t belong to the ABA. I thought it Miguel Estrada well qualified, unani- [Miguel Estrada] values highly the just and was a bad organization then, and the mously well qualified. proper application of the law. . . . Miguel’s more I hear about it today, the worse I What is clear from this recitation of respect for the Constitution and the law may think it is. I think what they have political contributions is that in Mr. explain why he took on Mr. Strickler’s case, done on these judicial nominations— Estrada’s case, the attorneys on the which at the bottom concerned the funda- mental fairness of a capital trial and death Democratic and Republican—reeks, ABA committee put aside their polit- sentence. I should note that Miguel and I smells. There are thousands of lawyers ical views and provided the Senate have widely divergent political views and in the country, thousands of members with a neutral and dispassionate anal- disagree strongly on important issues. How- of the ABA. Couldn’t they get people ysis of his qualifications. ever, I am confident that Miguel Estrada will who are selecting nominees who could Fred Fielding, of course, did not hi- be a distinguished, fair and honest member pass the smell test? In this one, this jack the ABA process, nor was Mr. of the federal appellate bench. ABA qualification should be thrown Fielding’s participation in that process Why do we have these arguments right in the trash. ‘‘unethical,’’ as my Democratic col- that are not right? Why are we doing Mr. President, it is not the Senator leagues suggested. that to this man? Why is it that this from Nevada who feels Mr. Fielding

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00016 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 25, 2003 CONGRESSIONAL RECORD — SENATE S2637 was wrong in what he did. Here is an The article by Mr. Brune goes on to ties raise questions of appearances, article out of a newspaper dated yester- say: which would cause more damage to the day, by Tom Brune. The headline is Fielding evaluated Estrada in the month ABA. Ironically, Bush removed the ‘‘Estrada Endorser Had Partisan Role.’’ after President George W. Bush nominated ABA from his long-held role It goes on to say—this is a news arti- him on May 9, 2001, ABA officials said. That prescreening judicial nominees because cle, not an editorial: was just weeks after Fielding vetted execu- of the evaluators’ perceived liberal The lawyer who recommended the Amer- tive appointments for Bush’s transition team bias. and a year before he helped start the par- ican Bar Association’s highest rating for ″In light of the controversy concerning the controversial appellate judge candidate tisan Committee for Justice, records show. Contrary to what was said a few minutes proper role of the ABA Standing Com- Miguel Estrada took part in partisan Repub- mittee,’’ Burbank said, ‘‘it seems to me to be lican activities during his term as a non- ago, Fielding did cofound this group while a member of the ABA evaluation committee. a shame to structure the process in such a partisan judicial evaluator for the Bar, ac- way that reasonable people might be con- cording to records and interviews. The article continues: cerned.’’ The man who wrote this column said The overlap has thrust Fielding—and his what I quoted. He says: evaluation . . .—into the heated political Mr. President, let me simply say that the evaluation by Fred Fielding is a While serving on the ABA’s nonpartisan battle over Estrada’s nomination. . . . Standing Committee on the Federal Judici- . . . On February 12, Senator Harry Reid scam, it is unfair, it is not right. There ary, veteran Washington lawyer Fred F. charged that Fielding had a conflict. certainly is an appearance of unfair- Fielding also worked for Bush-Cheney Tran- I said at that time, and there is a ness and partisanship. If you want to sition Team, accepted an appointment from quote in the newspaper: debate Miguel Estrada based on this the Bush administration and helped found a Doesn’t Mr. Fielding’s dual role—purport- ABA qualification, I will do that all group to promote and run ads supporting edly ‘‘independent’’ evaluator and partisan day long. There are many positive Bush judicial nominees, including Estrada. foot soldier—violate ABA rules? things Estrada has. This is not one of An editorial comment here, Mr. As the investigative reporter notes: them. This was an evaluation done by President. That is only part of his po- a very partisan person, who has only litical involvement. Let me read part Those rules say no Standing Committee member should participate in an evaluation recommended well qualified ratings for of it. There are other things. if it would give rise to the appearance of im- Bush nominees in D.C. Fielding cofounded the Committee for Jus- propriety or would otherwise be incompat- I repeat what I said a few minutes tice, with Bush confidante and former White ible with the committee’s purpose of a fair ago. The more I learn about the ABA, House counsel C. Boyden Gray. They founded and nonpartisan process. this organization to help the White House the less I feel inclined to support the with the public relations end of its effort to It goes on to say, ‘‘Former ABA ABA for anything they want. In this pack the bench and to run ads against Demo- President Robert Hirshon said he was situation, if I ever have anything to do crats. . . . concerned when in late July 2002 he with it in the future, the ABA should In addition, Fielding has a long ca- read reports that Fielding had joined be eliminated. It would be one less reer as a Republican insider. He served Republican C. Boyden Gray to start the process we would have to go through to as Deputy Counsel to President Rich- Committee for Justice.’’ get people on this floor. The ABA’s ard Nixon. He then served on the ‘‘That raised some concerns in my mind,’’ ‘‘gold standard’’, as far as I am con- Reagan-Bush campaign in 1980, the said Hirshon, ‘‘given the fact that our com- cerned, is tarnished, and rightfully so. Thursday Night Group. He served on mittee has been tarred by both conservatives The PRESIDING OFFICER. The Sen- the Lawyers for Reagan advisory and liberals as poster boys for the other side. ator from Utah is recognized. group, the Bush-Reagan transition, . . .’’ He called Roscoe Trimmier, Jr., then the Mr. HATCH. Mr. President, I am dis- 1980–1981. He served—this is a dandy— Standing Committee chair, and asked him to appointed. I just read over all of the he was conflict of interest counsel. talk with Fielding. ‘‘I don’t see how you can Democrats on the Standing Committee That is a laugher. He worked with the do both,’’ Hirshon said. If Fielding became who have contributed to Democratic Office of Government Ethics, which is involved in Gray’s group, he couldn’t serve Party politics. I have never accused also a joke. He served on the White as an ABA evaluator again, he said. any of these people. Along with these House transition team. He served in . . . Fielding is still listed as a board mem- are these judges on this chart. What the Office of Counsel to the President, ber of the Committee for Justice. ‘‘I don’t see the conflict,’’ Gray said— does that mean? That he wasn’t right as deputy counsel to President Reagan. when he found unanimously well quali- I bet he didn’t. He helped form the He served on the Bush-Quayle cam- fied all of the Clinton judges, or nomi- Committee for Justice. paign in 1988; as Republican National nees?—that is not right—when he voted He added that Convention legal advisor; as campaign for Miguel, along with all of these counsel to Senator Quayle; and as dep- Fielding didn’t vet Estrada while on the Democrats I have listed who have con- uty director of the Bush-Quayle transi- transition team and left the ABA post soon after the group formed. tributed? tion team. He served on the Bush- All I can say is I think we have an- Quayle campaign, 1992, as the senior But Nan Aron, executive director of the liberal Alliance for Justice, which opposes swered the points. I agree no outside legal advisor conflict of interest coun- Estrada, charges that Fielding is too par- body should be a voting instruction. I sel and the Republican National Com- tisan to do a fair evaluation. have always felt that. But I have to say mittee advisor. He served as the legal The article notes: the ABA has been part of the process, advisor to the Dole-Kemp campaign, Fielding was President Ronald Reagan’s whether we like it or not, for a long 1996. White House counsel— time. There were plenty of Democrats Mr. President, in short, the Bush And some of the things I have al- who voted for Miguel Estrada as well White House could not have hand- qualified. picked somebody with better partisan ready put into the RECORD. The PRESIDING OFFICER. The credentials than Fielding to evaluate Listen to this fact uncovered by the Democratic leader. his DC Circuit Court nominees. reporter: The ABA should be ashamed of them- In May, Bush appointed Fielding to an DEALING WITH ECONOMIC PROBLEMS selves. Lawyers are trying to have a international center that settles trade dis- Mr. DASCHLE. Mr. President, I was reputation that is good and does not putes. home in South Dakota over the last have conflicts of interest, that is eth- He gets $2,000 a day plus expenses for week, and I had the opportunity to ical. This thing reeks. this. talk with farmers and ranchers, Estrada graduated with honors from The article also notes that: businesspeople, educators, and govern- Harvard. You cannot take that away last fall, President Bush thanked Fielding ment leaders. What I bring back from from him. He is a fine lawyer, but this publicly during a rally for his judicial nomi- those many discussions is the strong ABA thing, take it away because it nees. belief that if there is anything we do in means nothing. How can one have con- I bet he did. the Senate over the course of the next fidence that Mr. Fielding did not paint The article also notes that Burbank, several weeks, it ought to be address- a very rosy picture for partisan rea- a Professor of ethics at the University ing the economic problems that our sons. of Pennsylvania says Fielding’s activi- country is facing.

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00017 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2638 CONGRESSIONAL RECORD — SENATE February 25, 2003 I wish I had an accurate count of the in crisis management all tell me they that the plan could hurt the economy over number of times in various ways busi- haven’t a clue as to what they would be the long run. ness men and women and farmers and required to do should some emergency The average tax cut (the total amount of revenue lost divided by the total number of ranchers asked the question: So why come about. There is no coordination. tax returns) is over $1,000 because a few rich are you spending all of this time on a There is absolutely no training. taxpayers would get such large reductions. judge when our country is in such eco- When I asked them last week, What For households with incomes over $200,000, nomic disarray? would you suggest I go back and tell the average cut would be $12,496, and the av- This is an important issue, the the President and my colleagues, they erage for those with incomes over $1 million Estrada nomination, but we have said said: Understand that unless we have would be $90,222. from the beginning, and I think we will training, unless we have communica- But the cut for those with incomes of $40,000 to $50,000, according to calculations be able to continue to say with author- tions equipment, unless we have more by the Brookings Institution and the Urban ity, that there will not be any resolu- of a coordinated effort to bring us into Institute, would typically be $380. For those tion until the Solicitor General docu- the infrastructure required for re- with incomes of $50,000 to $75,000, it would be ments are released and until Mr. sponse, we will not be able to live up to $553. Estrada is more forthcoming with re- the expectations of the people right The president’s jobs figure was based on a gard to his positions. here. Help us. preliminary analysis by Macroeconomic Ad- We can take up time on the Senate We have attempted to help those first visers, of St. Louis. The firm, to whose serv- ices the White House subscribes, issued pro- floor week after week, or we can put it responders over and over: last Decem- jections in January concluding that by rais- aside, make some decision with regard ber, with $2.5 billion that the President ing disposable income, bolstering stock val- to whether or not there will be some said we could not afford; last month ues and reducing the cost of capital, the reconciliation on that issue and answer with $5 billion that the President, once president’s program would lead to 1.365 mil- the question posed by so many South again, said we could not afford. You lion new jobs by the end of next year. Dakotans to me last week: When will tell those first responders that we can- But the White House has never mentioned we address the economy? When will we not afford providing them the re- the caution in the second paragraph of the firm’s report. The forecasters predicted that recognize that there is a lot more pro- sources to do their job when we look at if the tax cuts were not offset within a few ductive use of the Senate’s time than what has happened in just the last 48 years by reductions in government spending, an unending debate about Miguel hours in our basing arrangements with interest rates would rise, private investment Estrada? Turkey. According to press reports, we would be crowed out, and the economy would They do not understand why we are can afford up to $6 billion in grants and actually be worse than if there had been no stymied and why we are unresponsive $20 billion in loan guarantees for Tur- tax changes. to the growing concern they have The president has not proposed spending key, but for some reason we cannot af- reductions that would offset the tax cuts. To about the direction the economy is ford providing homeland and hometown the contrary, the administration has argued taking. assistance—direct, coordinated help— that the budget deficits resulting from the There is a growing credibility gap be- to provide the training and commu- cuts would be too small to harm the econ- tween what the President and the ad- nication and coordination required. omy. ministration says and what they do, That is a credibility gap that I think Another argument that administration of- between their rhetoric and their re- this President needs to address. ficials make regularly is that under the president’s plan, the wealthy would bear a ality. The President has taken occa- I hope we can set aside this issue of sion to go around the country to talk larger share of the nation’s tax burden than Mr. Estrada and deal with the issue they do now. A table released last month by about his concern for the economy. On about which our people, regardless of the Treasury’s office of tax analysis showed several occasions over the last couple geography, are concerned. The Presi- that people with incomes over $100,000 would of weeks, he has made his speeches dent has a plan, Democrats have pro- see their share of all income taxes rise to 73.3 about his concern for the economy and posed a plan, and there is a significant percent from the current 72.4 percent. his approach through his tax cuts. I difference between the two. There, too, At the same time, the table showed, tax- have to say, if he cared, if he was con- payers with incomes of $30,000 to $40,000 we find a credibility gap. would get a 20.1 percent reduction in income cerned, he would ask the Senate to An article was written in the New taxes, and those earning $40,000 to $50,000 take up this matter immediately. It York Times that appeared this morn- would get a 14.1 percent cut. will not be a day too soon. ing by David Rosenbaum entitled ‘‘The The problem with figures like those is that A report was released this morning President’s Tax Cut and Its Unspoken a large percentage of a small amount of that said consumer confidence is now Numbers.’’ I ask unanimous consent money may be less important to a low- mid- at a 10-year low. Consumer confidence, that this article be printed in the dle-income family’s lifestyle than a small as registered and reported through its percentage of a large amount of money RECORD. would be to a rich family. For example, a $50 index, has plummeted to 64 from a re- There being no objection, the mate- tax cut would be a 50 percent reduction for a vised 78 just last month. That is the rial was ordered to be printed in the household that owed only $100 in taxes to lowest rating since 1993, 10 years. Un- RECORD, as follows: start with, but that small amount of money employment is rising. We have seen an [From the New York Times, Feb. 25, 2003] would not significantly improve the family’s well-being. increase in the number of unemployed THE PRESIDENT’S TAX CUT AND ITS UNSPOKEN A better measure may be the increase in by 40 percent. We now have 8.3 million NUMBERS Americans out of work and 2.5 million after-tax income, or take-home pay, that (By David E. Rosenbaum) would result from tax cuts. According to private sector jobs have been lost just WASHINGTON, Feb. 24.—The statistics that data from the Joint Congressional Com- in the last 2 years. The unemployment President Bush and his allies use to promote mittee on Taxation, the tax reduction of $380 spells are lengthening, wage growth is his tax-cut plan are accurate, but many of for a family with an income of $45,000 would now stagnant, and the shortage of jobs them present only part of the picture. amount to less than 1 percent of the house- has slowed wage growth so that only For instance, in a speech in Georgia last hold’s after-tax income. But the $12,496 tax those at the very top are still experi- week, the president asserted that under his cut received by a family with an income of encing wage increases that outpace in- proposal, 92 million Americans would receive $525,000 would mean a 3 percent increase in an average tax reduction of $1,083 and that money left after taxes. flation. We now have the worst job cre- the economy would improve so much that 1.4 The president and his advisers also offer a ation record in 58 years, while State million new jobs would be created by the end variety of incomplete statistics to bolster budgets continue to be plagued with of 2004. their proposal to eliminate the taxes on deficits of close to $70 billion. Some No one disputes the size of the average tax most stock dividends. have reported even more than that. reduction, and the jobs figure is based on the Among the points they make are that We have an economic crisis that is estimate of a prominent private economic more than half of all taxable dividends are not being addressed, and while that forecasting firm. paid to people 65 and older, that their aver- economic crisis grows, there is another But this is what the president did not say: age saving from eliminating the tax on divi- Half of all income-tax payers would have dends would be $936, that 60 percent of people concern expressed to me last week by their taxes cut by less than $100; 78 percent receiving dividends have incomes of $75,000 scores of South Dakotans who are our would get reductions of less than $1,000. And or less and that up to 60 percent of corporate first responders. Our fire departments, the firm that the White House relied on to profits are lost to income taxes paid by ei- our police departments, those involved predict the initial job growth also forecast ther the companies or the stockholders.

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00018 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 25, 2003 CONGRESSIONAL RECORD — SENATE S2639 All that is true, but here is a more com- There is a lot to discuss. There is a Mr. DASCHLE. I appreciate very plete picture: great need in this country to do what much the comments of the distin- Only slightly more than one-quarter of the American people are hoping we will guished Senator from New Jersey be- Americans 65 and older receive dividends. Two-thirds of the dividends the elderly re- do, and that is take up issues they are cause I think among us all no one ceive are paid to the 9 percent of all elderly concerned about, to address the issues knows these economic issues better who have incomes over $100,000. they will rise and fall on over the than he does. Tht Tax Policy Center at the Brookings In- course of the next several months. Again, I would say to the distin- stitution and the Urban Institute calculated I cannot tell my colleagues the emo- guished Senator, this is part of that that the average tax cut from the dividend tion I feel in the room oftentimes as I credibility gap I was referring to. The exclusion would be $29 for those with in- talk to businessmen whose lips would President professes to be concerned, comes of $30,000 to $40,000 and $51 for tax- quiver, whose eyes would moisten, who the President talks about his proposals payers with incomes of $40,000 to $50,000. On the other hand, the two-tenths of 1 per- would tell me: TOM, I do not know if I to address the economy, and yet we are cent of tax filers with incomes over $1 mil- can be in business a year or two from not planning to take up any economic lion (who have 13 percent of all income) re- now if things do not change. I have not stimulus for months, I am told. It may ceive 21 percent of all dividends, and the Tax sold a piece of farm equipment in 2 be May before it comes to the Senate. Policy Center figured that their average tax years. I have seen my sales plummet How can anybody with any truthful- reduction from the dividend exclusion would more than 20 percent in the last 3 ness express concern about the econ- be $27,701. For taxpayers with incomes of months. I have no confidence about omy and say, no, but we will just do it $200,000 to $500,000, the typical tax cut from later? We will not do it this week, we the exclusion was calculated at $1,766. how we are going to turn this around, In instances where both the corporation they tell me, unless you in Washington will not even do it this month, we will and the shareholder are paying taxes at the understand that things have to be done do it sometime down the road but, yes, maximum rate, it is possible, as the adminis- to make this economy better. I am concerned. tration maintains, for 60 percent of the prof- What do we do? We come back to When they look at consumer con- its to be taxed away. But calculations based Washington and we are back in the fidence, when they look at the numbers on I.R.S. data and performed by Robert S. same old trap, talking about the same of jobs lost, when they see those plants McIntyre of the nonpartisan Citizens for Tax old thing. That will not change until close, when they see the consumer con- Justice show that on average, only 19 per- Mr. Estrada is more forthcoming. So fidence drop as precipitously as it has, cent of corporate profits are paid in taxes by how in the world can anybody in the companies and shareholders combined. we can spend time on the economy or we can spend time talking about issues world confess to be supportive of eco- Mr. DASCHLE. Mr. President, the nomic recovery and economic stimulus President talks about his plan pro- that have no relevance to the daily lives of the people of South Dakota and with numbers like that and the inac- viding 92 million Americans with an tion we see from the White House? average tax reduction of $1,083, and yet the people all across this country. Mr. CORZINE. Will the minority Mr. CORZINE. If the minority leader with closer scrutiny and attention, leader yield for a question? will yield for one other observation and with a more careful review of the facts, Mr. DASCHLE. I am happy to yield question, has the Senator noticed the we find that is not the case at all. That to the Senator from New Jersey. fact that we have lost almost another is like Bill Gates and TOM DASCHLE Mr. CORZINE. I truly appreciate the trillion dollars in market value? And averaging their income. If he and I focus on issues that matter directly to by the way, that translates into 401(k)s averaged our income, mine would be the people who live in our States and and IRAs for individuals. Those are somewhere around $39 billion. I only who live across the country. some very serious numbers, actually wish I had $39 billion to average with The Senator spoke about the indi- since this program with regard to divi- Bill Gates, but I do not. But that is the vidual business person who had not dend disclosure has been announced. method this President is using to pro- sold any farm equipment. We are clos- There is a credibility gap between the vide these average numbers with re- ing the last two autoplants in New Jer- reality of what is being suggested as an gard to the beneficiaries of his tax cut. sey over the next 2 or 3 years. They economic growth program and what is Here are the facts: 78 percent of have already cut down to one shift. actually occurring out in the real Americans are going to get less than Bell Labs, one of the great research in- world. Certainly my constituents and $1,000, and over half of all taxpayers stitutions of America, has literally the people I hear from around the will get less than $100 under the Presi- been a part of the reduction of 130,000 country and in the business commu- dent’s plan. That is right, less than jobs at Lucent, a lot of them in New nity are saying much of the same $100. That is all more than half of all Jersey. A lot of the Bell Labs people thing. I presume that is what the Sen- taxpayers will receive under the Presi- are doing basic core research, and the ator is hearing as well from the folks dent’s plan. That is fact. That is a people are very upset. in South Dakota. credibility gap. That is saying one That is what that consumer con- Mr. DASCHLE. I say to the Senator thing and doing another. That is say- fidence number is. It is incredible in from New Jersey, that is exactly what ing the average American gets $1,000 the history of real measurements of I am hearing from the people of our but actually, in fact, the average what is going on in the minds of Amer- State. As I have traveled around the American is going to get under $100. ican consumers. By the way, it is going country, I hear it in other parts of the There is a credibility gap across the on in business, too. country as well. This is a very serious board. He said his plan will create 1.4 I ask the minority leader whether he issue that will not go away, and I think million jobs by the end of 2004. saw yesterday’s survey from Man- the more we face the uncertainty of According to the same report Presi- power, Inc. They said only 20 percent of war, the more we face the uncertainty dent Bush cites by macroeconomic ad- businesses in America think they will of international circumstances, the visers of St. Louis, his tax cuts actu- add any jobs in the next 6 months, an more this domestic economic question ally have the potential to harm the indication of the kind of depth of con- is going to be exacerbated. economy in the long run, but the Presi- cern that actually exists in the busi- People want more certainty. They dent did not mention any references to ness community in conjunction with want more confidence. They want to at those parts of the report stated later consumer confidence. least believe we understand how seri- on. I applaud the minority leader for ous it is out there and we are going to The President has said eliminating making sure we are being focused to do something to address it. And what the double taxation of dividends is have a debate about something that do we do? We come back after a week’s good for enhancing the lifestyle of mil- matters to people’s lives, and I hope we break and not one word about the econ- lions of Americans all across the coun- can bring forth a real debate about a omy from the other side, not one word try. The reality is that only 22 percent stimulus program to get our economy about the recognition of how serious of those with incomes under $100,000 re- going, put people back to work because this problem is. We are still talking ported any dividend income in the year that is where real concerns seem to be. about the Estrada nomination. 2000. The average tax cut from the divi- I presume that is the kind of question UNANIMOUS CONSENT REQUEST—S. 414 dend exclusion would be $29 for those the Senator is receiving in South Da- I ask unanimous consent that the with incomes below $40,000. kota. Senate proceed to legislative session

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00019 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2640 CONGRESSIONAL RECORD — SENATE February 25, 2003 and begin the consideration of Cal- going to do about it? What will the ma- name, address, and maybe my employ- endar No. 21, S. 414, a bill to provide an jority do about it? What message are ment history, but that is it, you have economic stimulus package. we going to send to those people to to make a guess as to the rest of my The PRESIDING OFFICER. Is there whom we must show some empathy if, qualifications because I am not telling objection? indeed, these conversations with our you, I would say to that prospective Mr. HATCH. Mr. President, I object. constituents mean anything at all? employee, come back when you can fill The PRESIDING OFFICER. The ob- That is why it is imperative we are out the full application. That is what I jection is heard. cognizant of the message we send would say. That is what every em- Several Senators addressed the today, tomorrow, the next day, and the ployer in this country would say. Chair. next day. Mr. DASCHLE. Mr. President, I be- Remarkably, when I went home last As this economy worsens, we spend week and explained the issue to my lieve I still have the floor privilege. our Senate time totally consumed with The PRESIDING OFFICER. The constituents, they said: That sounds one nomination having to do with a Democrat leader still has the floor. fair. That sounds reasonable. If an ap- Mr. DURBIN. Will the Senator from circuit court nominee for the District plicant for a lifetime position on the South Dakota yield? of Columbia. This is the third week we second highest court of the land is not Mr. DASCHLE. I yield to the Senator have been on it. We can resolve this willing to fill out his job application, from Illinois. matter if Mr. Estrada will come forth how in the world should we consider Mr. DURBIN. I thank the minority with the information. But if he will that nominee as a bona fide applicant leader for coming to the floor, and I not, let’s move to something else until for the position in the first place? hope those who are following the de- he does. That, again, is a diversion from what I bate understand what just happened. Mr. DURBIN. Will the Senator yield? think most people are concerned about. The minority leader of the Senate has Mr. DASCHLE. I yield to the Sen- They are concerned about this, and asked this Senate to move to the issue ator. they want fairness, but they are a of the state of America’s economy, Mr. DURBIN. I have followed this de- whole lot more concerned about wheth- that we take up immediately the ques- bate on a daily basis. If I am not mis- er they will be giving job applications tion of what we can do to save busi- taken, the Senator from Utah, Mr. to anyone in their State in their cir- nesses, create jobs, and I think foster BENNETT, came to the floor with a posi- cumstances because they are doing the some hope in America. tive and constructive suggestion. He opposite. said that this nominee, Miguel There was an objection immediately We do not have lifetime applications Estrada, should produce the written from the Republican side of the aisle. for jobs in South Dakota because the documents from his experience work- They do not want to discuss this issue. economy is very soft. If anything, we ing for the Department of Justice, I ask the minority leader the fol- are losing jobs in South Dakota. So working for the Supreme Court. In lowing: Since he has been home—and I while we talk about 1 job for the cir- fact, he even suggested at one point have been in communication with the cuit court, we have lost 2.5 million jobs they be produced so they can be re- people of my State of Illinois—is it not in the last 2 years in this economy. viewed carefully by both the Repub- a fact now that we have reached a That does not make sense. That is lican and Democratic leaders of the point where our economy is dissem- what the American people want us to Senate Judiciary Committee and then bling, our foreign policy is in disarray, address. and this Congress is totally disingen- a determination be made as to whether there should be followup hearings or Mr. DURBIN. If the Senator will uous, it ignores the reality of the chal- yield for a last question, many people lenges facing America today? I also ask questions and ultimately a vote so there would be disclosure. This sugges- on the other side suggested we are the minority leader if he would tell me picking on Miguel Estrada, we have fo- what he believes we should be debating tion did not come from a Democratic Senator; it came from a Republican cused on this man, a Hispanic nominee, at this point in time to do something and this is somewhat personal in terms about turning this economy around Senator, Mr. BENNETT of Utah. I thought it was a fair suggestion to of what we are trying to achieve. and bringing hope back to America. I ask the Senator minority leader, is Mr. DASCHLE. I thank the Senator break the logjam, to resolve this nomi- it not our constitutional responsibility from Illinois for his observation and nation up or down, and to move on to to establish a standard and process to his question. If we go home—and I the people’s business. apply to all judicial nominees so that know the Senator from Illinois was Can the Senator from South Dakota, there is full disclosure from them as to just home as well—there are two issues our minority leader, tell me whether who they are, what they believe, their on the minds of virtually every Amer- that suggestion of producing those doc- values, so if they are given a lifetime ican right now. I was asked questions uments really is consistent with what appointment on the court, we at least everywhere I went pertaining to the we are trying to achieve so we can once know, going in, who these people might Senator’s first question, and that, of and for all give Mr. Estrada his fair be. Is it not also the fact, as the Sen- course, is what is going to happen in hearing and final determination? Is ator from South Dakota has told us, Iraq? We generally have an idea of that what this is about? that Miguel Estrada has consistently what may evolve over the course of the Mr. DASCHLE. That is exactly what refused to do just that, consistently re- next few weeks, and there is not much this is about. I thank the Senator for fused to answer the questions, consist- that South Dakotans can do about asking the question. It is no more com- ently refused to disclose the docu- that. plicated than that. The second question is, What is going On a bipartisan basis, Republican and ments, consistently refused to tell us to happen to my economic cir- Democrat Senators have said we need who he is as he seeks one of the highest cumstance? the best information that can be pro- Federal judicial appointments in the I talked to one businessman who had vided by any nominee before we are land? to lay off a couple of his employees, called upon to fulfill our constitutional I ask the Senator from South Da- and it hurt him dearly. They had obligation. That is what we are sug- kota, is this an issue which goes be- worked for him for a long period of gesting. We need that information to yond Miguel Estrada and calls into time. He said: Tom, I have no choice. make the best judgment. That informa- question the constitutional responsi- I talked to people who had their tion is being withheld. bility of the Senate when it comes to health insurance dropped, in part be- If I had an applicant for a job in my judicial nominees? We have approved cause business was so bad their em- office and I said, I want you to fill out 103 Federal judges for this Republican ployer could no longer sustain the cost this application and I will be happy to President, and I have voted for the incurred of paying their health insur- consider your qualifications for em- overwhelming majority of them. Are ance. They said: We understand, but at ployment in my office, and he or she we not in this discussion trying to least we got to keep our job. said, I don’t think I will fill out the raise the fundamental issue of equity But what are you going to do about second and third page, I will give you and process as to the responsibility of it? That is the question. What are we the front page, I will give you the the Senate under the Constitution?

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00020 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 25, 2003 CONGRESSIONAL RECORD — SENATE S2641 Mr. DASCHLE. The Senator from Il- from going forward to other issues, they need so badly. They do not have linois has said it very well. That is ex- whereas the Republicans are eager to that either. That, too, would be eco- actly what this is about. At one level, go to other issues. nomic in many respects, if we can pro- this is about fulfilling constitutional The real truth on this floor is, first of vide that assistance. But it is not being obligations. This is about following all, that we have asked just now to go provided because it is not being given precedent. This is about making sure to economic issues, that last week the attention. Therein lies the credi- there is fairness as we consider these when the Republican leadership—they bility gap. Something is said and noth- nominees for all courts, but especially run the show—decided to bring up this ing is done. There is a big difference for courts at that level. omnibus budget, the Estrada nomina- between rhetoric and reality when it This is also about something also, tion did not stand in the way. We did comes to this administration and many about the management of the Senate. it. We voted in one fell swoop for the of our colleagues on the other side. While the Senate has been concerned entire Federal budget, and, in fact, last Mr. SCHUMER. If my colleague will about one job for the last 3 weeks, a lot week this floor, because the Republican yield for just one final question, might of us are saying we ought to be con- leadership chose to do so, actually it not be fair to say that it is not the cerned about the 8.3 million jobs we do voted on three other judges who I be- Democrats filibustering to prevent not have in this country today as a re- lieve passed unanimously, if not close Estrada from coming forward for a vote sult of disastrous economic policies on to unanimously. And the filibuster, in but, rather, the Republicans are fili- the part of this administration, 2.5 mil- a sense—in a very real sense—is not bustering until they get the vote on lion of which have been lost in the last being conducted by the Democrats but Estrada, which they have so far refused 2 years. We spend our time talking rather, led by my capable and good to call for? Is that an unfair character- about one job; there is no talk on the friend from Utah, by the Republicans, ization? other side about all of those millions of and we would be happy to move on to Mr. DASCHLE. That is exactly what jobs lost in this country because there other issues that are pressing, that are happened this morning. If we were fili- is no economic policy. on people’s minds, and maybe come bustering we would not have suggested What we are suggesting this morning back to this issue at some point when that we get off the issue. A filibuster is is that there ought to be some consid- we get the requested material. to prolong the debate. We want to end eration for those jobs, too; that to be Just to rephrase my question, who is the debate. We want to move on to consumed by one job and not con- really preventing us from moving for- something far more pressing to the sumed, or at least willing to address ward? Who is filibustering? Why are we people of this country than the one job. those millions of other jobs, is some- staying on this issue? Is that the Sen- We want to talk about those 2.5 million thing I cannot explain to the people of ator’s choice as the leader of the Demo- jobs that we have lost. Therein lies the my State or to the people of our coun- crats or is that the choice of our good issue. try. I hope our Republicans will do friend from Tennessee as leader of the I hope the Republicans will bring this something along those lines in the not Republicans? debate to a close so long as it doesn’t too distant future. Mr. DASCHLE. I think the Senator appear that Mr. Estrada is willing to Mr. SCHUMER. Will the Senator from New York put his finger on ex- cooperate. At such time as he is pre- yield? actly the question. We just attempted pared to do so, we can take this matter Mr. DASCHLE. I am happy to yield. to move on to something else. We were up again. But in the meantime, we Mr. SCHUMER. Two questions. I prevented from doing so. It is not just ought to be concerned about those mil- want to follow up again on what the something else but perhaps the single lions of jobs that continue to be lost Senator from South Dakota said in the most important domestic issue facing because of congressional inaction and dialog with my colleague from Illinois. our country today. Yesterday, the re- because of a failed economic policy on First, I know the Estrada judge issue quest was made and agreed to that we the part of the administration. has gotten a lot of attention in the take up the Hatch-Leahy PROTECT Mr. SCHUMER. I thank the leader. newspapers. When I go back to my Act, as we should have agreed. I am Mr. CORZINE. Mr. President, will the State of New York, virtually no one glad that we were able to take it up distinguished minority leader yield for asks me about it—very few people. I and pass it. one more question? get lots of people asking about the war The Senate has demonstrated the Mr. DASCHLE. I am happy to yield. and also about the economy and jobs. ability to move off this legislation Mr. CORZINE. Mr. President, I asked Is that particular to New York because when it sees fit. We did it just yester- questions earlier about the private sec- we had September 11 or is the same day. As the Senator from New York tor. I think we have all 50 Governors thing happening in South Dakota? suggests, we did it again a few weeks from across this Nation now in the Na- Mr. DASCHLE. I say to the Senator ago with passage of the omnibus legis- tion’s Capital. I know many of them from New York, before he came to the lation. We are capable of moving off come to visit their Senate representa- floor, I began my comments by report- the bill and dealing with the other tives and their congressional represent- ing conversations I had with people issues. I can’t explain why we have atives. I wonder if the minority leader back home last week. I was moved by chosen—why our Republican colleagues has had one single Governor approach the comments, by the reports, by the have chosen—to stay on this legisla- him with respect to the Estrada nomi- emotion I felt as I talked to people tion even though we know there are so nation or whether he has had one sin- whose businesses, whose jobs, are per- many more pressing issues that ought gle or multiple Governors come and haps more precarious than they have to be taken up. I can’t explain their in- talk about the state of their fiscal af- been for years. All the statistics bear transigence. I can’t explain why they fairs in their State governments and that out. Consumer confidence is the want to prolong this debate. I can’t ex- their unbelievable difficulty in trying lowest in 10 years, the number of those plain why they are unwilling to con- to maintain employment and support unemployed going up by millions in the sider the 2.5 million jobs rather than in Medicaid and all the other issues. I last 2 years; every economic indicator the one job that we continue to debate was just wondering if the minority is pointing to the growing crisis we on the Senate floor. That is inex- leader has had any discussions with face in the economy. plicable to me. them about Judge Estrada versus the Yet what do we do? We find ourselves I just hope the American people un- sake of the economy—or homeland se- once again most likely scheduled for derstand. We have come back after lis- curity for that matter. the entire week, debating 1 job rather tening to our people. They made it Mr. DASCHLE. I think the Senator than the 2.5 million jobs lost just in clear to us what they want us to take from New Jersey asked the question the last 2 years alone. up. They want us to deal with the econ- that makes the point. The answer is Mr. SCHUMER. If my colleague will omy. They want us to deal with the absolutely no. Our Governors, of yield for another question, we have real problems we have with homeland course, are hearing from the same peo- seen in the newspapers the talk that security and the lack of training, the ple we are hearing from. They are con- the Democrats are filibustering, that lack of communication and the lack of cerned about the status quo. Someone Democrats are preventing the Senate good technology and equipment which once told me the status quo was Latin

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00021 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2642 CONGRESSIONAL RECORD — SENATE February 25, 2003 for the ‘‘mess word.’’ Their concern for want to do it—is allow a vote up or nominee then appear before the Judici- the ‘‘mess word’’ and this mess con- down. They don’t like Miguel Estrada ary Committee to answer the questions tinues to be compounded by a budget for one reason or another. Some of which he failed to answer in his con- deficit that grows by the month. We them are perhaps sincere reasons. I firmation hearing and any additional are told now that we could exceed $70 think other reasons are that they questions that may arise from review- billion. Some have suggested that the think he is just an independent His- ing such documents. figure could be as high as $100 billion in panic. Frankly, they do not like him. Mr. HATCH. Parliamentary inquiry. debt. They are struggling with their Vote him down, if you want. They have The PRESIDING OFFICER. The Sen- own budgets in part because of the that right. If they feel sincerely that ator from Utah has the floor. mess we created for them in Medicaid, they are right in voting him down, vote Mr. HATCH. Can you amend a unani- in education, in homeland defense, un- him down. But let us have a vote. I mous consent request? It is my under- funded mandates, and the sagging have heard the distinguished Senator standing that you can’t. economy, and no real economic plan in from Illinois ask, Why doesn’t Mr. Mr. REID. Of course you can. Abso- place. Their message in coming to Estrada produce those papers? He is lutely. We do it all the time. Washington is: Fix it; help us address not in the Solicitor General’s Office. Mr. HATCH. Not if we object. The PRESIDING OFFICER. The Sen- this issue and be a full partner recog- He is not the Attorney General of the ator from Nevada can ask the Senator nizing that you, too, have a full respon- United States. He is not the Chief from Utah to modify his request. sibility to engage with us in solving Counsel of the White House. He hasn’t Mr. HATCH. Well, I refuse to modify this issue. controlled those papers. As far as he is it. I think we ought to vote up or down. I think if you took a poll of all 50 concerned, he is proud of his work and Look, if you folks are sincere on this Governors, should we stay on the they could be disclosed. The problem is other side—and, my goodness, I have to Estrada nomination or should we ad- seven former Solicitors General—four believe you must be, although I think dress the economy and these budgetary of them are Democrats—said you can’t if you are not, it is the most brazen questions, it would be unanimous—Re- give those kinds of papers up because it thing I have seen in a long time to publican and Democrat—they would would ruin the work of the Solicitor come here and act like the whole world say no; fix the economy and help us General’s Office. is being held up because we want to fill solve our own financial and fiscal prob- Look, if they are sincere and they one of the most important judge seats lems. Do not be as consumed as you are really want to get on to the budget in this country. And we want to do it about one job until you solve the prob- work they never did last year, the ap- with a person who has had this much of lem for those 2.5 million jobs that propriations work they never did last a transcript of record, who has this haven’t been addressed. year—we had to do it—then just vote. much of a paper trail that they have Mr. CORZINE. I join with my col- It is tough work. By gosh, it is tough been able to examine, who has had 2 leagues on this side of the aisle in com- to come up with a budget. I know the years sitting here waiting for a stink- plimenting the leader and for rating distinguished Senator from New Mex- ing solitary vote. this issue one job versus 2.5 million ico has had to go through a lot of tor- Mr. REID. Parliamentary inquiry. jobs. We have a major issue in this ment and criticism year after year to Mr. HATCH. Why not give him a country with regard to our economy, come up with a budget. But he always vote? and that is at the top of our agenda. did, and we always did. We were ma- The PRESIDING OFFICER. Is there Mr. DASCHLE. I yield the floor. ligned by the other side because we objection to the request of the Senator Mr. HATCH. Mr. President, I have were never good enough, because we from Utah? heard these crocodile tears on the had to live within the budget con- Mr. REID. I object. other side. It is amazing to me because straints. When they found that they Mr. HATCH. Oh, my goodness. they know what a phony issue is—the had to live within the budget con- Several Senators addressed the request for confidential and privileged straints, they skipped a beat and Chair. memorandum from the Solicitor Gen- missed doing the budget. The PRESIDING OFFICER. The Sen- eral’s Office—and they are building Here they are coming in here with ator from Utah has the floor. their whole case on that. All they have crocodile tears saying a circuit court of Objection is heard. to do to go on to anything else in the appeals judge is not important enough. Mr. HATCH. Mr. President, the dis- Senate is to exercise the advice and Well, if he is not, vote him down, let’s tinguished minority leader said that consent that the Constitution talks have a vote, and let’s vote him down. half of the American people are only about; that is, to vote up and down. If Now—— getting $100 out of this tax cut. I hap- they feel as deeply as they do about Mr. SCHUMER. Will my good friend pen to know, the people who are at the these, I think, spurious arguments that yield for a question? $40,000 level are getting about a $1,000 have been made just in the last few Mr. HATCH. If I could finish. I am tax cut. Just understand, the top 50 minutes—by the way, made by people wound up right now. I would like to un- percent in our society pay 96-plus per- who had all of last year to come up wind a little bit before I yield to my cent of the total income taxes in this with a budget, and for the first time in dear friend. country. So that is another phony ar- this country couldn’t even do that. The And to say that we are filibustering gument. reason they didn’t is because they because we are trying to get a vote on I have to say, there are 52 million knew it was pretty tough. They criti- this? Why don’t we just do that? Why people in the stock market who have cized us all these years for coming up don’t I just—I ask unanimous consent wanted dividends in spite of the rep- with these tough budgets because we that we proceed to a vote on the resentations that were made here. And had to make the decisions. Senator Miguel Estrada nomination, so we can in this downturn in the economy, per- DOMENICI from New Mexico has had to get to all these important budget mat- haps they have not been able to get make tough decisions as Budget Com- ters. It would be a quick way of doing dividends because the companies have mittee chairman. We always came up it. And those who do not like Miguel not done well. But this downturn start- with a budget, as tough as it was. We Estrada: vote him down. Those who do: ed in the year 1999 or 2000. This Presi- are criticized all the time for not hav- vote him up. I ask unanimous consent dent was not the President at the time. ing enough money for the poor and this that we proceed to a vote on Miguel He has inherited these problems. and that and everything else, every Estrada. I just have to say that for people who phony argument in the books. Yet The PRESIDING OFFICER (Mr. SES- never passed a budget last year, and when they had the opportunity and saw SIONS). Is there objection? did not pass hardly any of the appro- how tough it is to come up with a budg- Mr. REID. I ask to amend the unani- priations bills, to come in here and use et, my gosh, they did not do it, nor did mous consent request, that after the these crocodile tears, that this is some- they do all those appropriations bills Justice Department provides the re- how holding up our economic where- that we had to do once we took over. quested documents relevant to Mr. withal in this country, when they All they have to do to go on to these Estrada’s Government service, which refuse to allow a vote, as we just saw— wonderful economic issues—and we all were first requested in May 2001, the I think there is something wrong here.

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00022 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 25, 2003 CONGRESSIONAL RECORD — SENATE S2643 Just remember, even the Washington Mr. HATCH. There is a lot more than chance to do it. You didn’t do it. Now, Post said, ‘‘Just Vote.’’ Just vote, fel- a transcript here. after the fact, 2 years later, this man lows and ladies. All you have to do is Mr. SCHUMER. I know. I ask my col- has been sitting there, waiting for fair- vote. If you don’t like Miguel Estrada, league, does Miguel Estrada talk about ness, being treated totally unfair, and vote him down. how he feels about the 1st amendment, he can’t get—my gosh, he can’t get a The reason they don’t want a vote, or the 2nd amendment, or the 11th vote up or down, which is what the and the reason this is a filibuster, is amendment, or the commerce clause, Washington Post says we should do. that they know Miguel Estrada has the or the right to privacy, or all the major Mr. SCHUMER. Will my colleague votes here on the floor to be confirmed. issues that he will rule on for the rest yield for a question? And for those who think that the of his life if he becomes a judge? And if Mr. HATCH. I know Senator DOMEN- economy is everything, let me just he does not, other than to say, ‘‘I will ICI has been waiting a long time. make a point. The judiciary is one- follow the law’’—and we all know Mr. SCHUMER. Sir, I was waiting third of these separated powers. If we judges follow the law in different longer than Senator DOMENICI. If my don’t have a strong judiciary in this ways—then why isn’t what is good for colleague will yield? country, we will never have a strong the goose good for the gander? Mr. HATCH. No. Senator DOMENICI economy because the Constitution In other words, when it was a Demo- has been waiting for well over an hour. And, well, I am not yielding the floor. would not be maintained. I would have cratic nominee—and this is not tit for Several Senators addressed the to say this body has not maintained it tat. My colleague, who cares about the Chair. through the years, as I have seen un- judiciary, said he needed extensive The PRESIDING OFFICER. The Sen- constitutional legislation after uncon- questions. We didn’t get that oppor- ator from Utah has the floor. stitutional legislation move through tunity because, as my colleague well Mr. DOMENICI. Mr. President, might here. It isn’t this body that has pre- knows, Mr. Estrada just said, on every I ask the distinguished Senator from served the Constitution, nor has it issue asked, ‘‘I will follow the law.’’ Utah how much longer he intends to been the executive branch. We have Mr. HATCH. Ask a question. speak on this round? seen a lot of unconstitutional things Mr. SCHUMER. My question to my Mr. HATCH. Well, I yield the floor. over there over the years, although I colleague is—— Several Senators addressed the believe people have tried to sincerely The PRESIDING OFFICER. The Sen- Chair. do what is right. But it has been the ator from New York will place a ques- The PRESIDING OFFICER. The Sen- courts that have saved this country tion. ator from New Mexico. and the Constitution. Mr. SCHUMER. Why shouldn’t we be THE ECONOMY Mr. SCHUMER. Will my colleague accorded the same right, as he es- Mr. DOMENICI. Mr. President, I yield for a question? poused in his speech in 1997, to get all would like to discuss for a few minutes Mr. HATCH. I will. Let me make one the details to this appointment to the with the Senate, and those who are in- more statement. second highest court of the land, which terested in what we are doing here, It has been the courts. This is an im- is going to have a lifetime—Mr. first, the issue of the American econ- portant position, and if we are going to Estrada has a job now; but this is a dif- omy and what we ought to be doing have to go through this on every cir- ferent job—a lifetime appointment about it because the other side of the cuit court of appeals nominee because that will affect everybody? Why is the aisle—the Democratic leadership in the the other side just doesn’t like them— one different than the other? Senate—has decided that they are not they don’t have a good, valid reason for Mr. HATCH. Regular order, Mr. going to permit us to vote on a most voting against Miguel Estrada, other President. eminently qualified nominee, whose than this phony red herring issue about The PRESIDING OFFICER. The Sen- qualifications I will discuss shortly. the Solicitor General’s Office, which I ator from Utah has the floor. They come to the floor and discuss don’t think anybody in their right Mr. HATCH. Look, I don’t withdraw an issue—to wit, the American econ- mind would buy. that statement. That statement is an omy and the plight of the American ‘‘Just Vote,’’ the Washington Post important statement. The distin- worker—as if they can do something said. guished Senator from New York and about that problem, as if they have a I will be happy to yield to my col- his colleagues had almost 2 years. The solution to the economic woes in this league. distinguished Senator from New York country, as if they could do something Mr. SCHUMER. I thank my colleague. And conducted this hearing. The distin- in the Senate that would help the I know he feels passionately about this. guished Senator from New York said it working people. Many of us feel passionately about this. was a fairly conducted hearing. The They have no plan. The plans they Mr. HATCH. More than passionately. distinguished Senator from New York have submitted are, according to most Mr. SCHUMER. I would like to ask had a right to ask any questions he economists, far inferior to the only the Senator two questions. wanted. He did. The distinguished Sen- plan we have, and that is the plan of The first question is this. My col- ator from New York had a right to ask the President of the United States. league said, in a very well done written questions. He did not. Nobody should be fooled by this dis- speech—I read it—before the Univer- He could have asked: What do you cussion. We can take to the floor for sity of Utah Federalist Society, in 1997: think about the 11th amendment? Lis- the next 5 weeks and have speeches by Determining which of President Clinton’s ten, that is a question that is almost the other side of the aisle claiming nominees will become activists is com- improper because you are saying—— that they are concerned about the plicated and it will require the Senate to be Mr. SCHUMER. Could I ask my col- working people, that we have problems more diligent and extensive in its ques- league to yield? in the economy, but none of that will tioning of nominees’ ‘‘jurisprudential Mr. HATCH. Let me finish answering do anything to help the American peo- views.’’ your question. He could have asked: ple. If we know how to help them, we Now, in fairness to my friend—— What do you feel about the first have to do something. And to do some- Mr. HATCH. Does the Senator have a amendment? Are you kidding? That is thing, we have to act in the Senate and question? not a question that should be asked a the House or the President has to act. Mr. SCHUMER. I have a question. I judicial nominee. And any judicial As a matter of fact, the Budget Com- am coming to it. In fairness, the Sen- nominee would answer: What I feel is mittee, which is currently chaired by ator just said how important the judi- irrelevant—which is the way he an- the distinguished Senator from Okla- ciary is. swered it. It is what the law says. homa, Mr. NICKLES, which I used to Mr. HATCH. That is right. Frankly, he answered that time after chair, and which 3 years ago was Mr. SCHUMER. Now, in those papers, time after time on question after ques- chaired by a Democrat because they the books that my colleague has held tion after question. were in control, has to produce a budg- up—I have read them. I read the whole Where were the written questions of et before we can do anything. transcript. I was there for much of it. I the distinguished Senator from New So in response to all the rhetoric, we chaired that hearing. York? They were not there. You had a can take no action until we have a

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00023 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2644 CONGRESSIONAL RECORD — SENATE February 25, 2003 budget that lays forth what we will do, about the economy because we don’t I am hopeful that before we are fin- when we will do it, and how we will do want the Senate to vote on the issue ished, good leaders on that side of the it. that is justifiably before us—to wit, aisle, including the distinguished mi- I submit that the chairman of the whether or not Miguel Estrada is enti- nority leader, will exercise some com- Budget Committee this year will tled to have a vote. mon sense about the future of the Sen- produce a budget on time. It will come I thought it might be interesting to ate and the appointment of Federal to the floor on time. I predict it will be look at a few comparisons. I took some judges. The future of this institution as passed on time, as compared with last of these judges who sit on the DC Cir- an institution that is supposed to look year when the other side of the aisle cuit. Let’s see how they compare with at the Presidential nominees and work was in charge of the budget. They pro- the nominee and what happened to with Presidents and then indicate duced no budget. They came to the them as they came before the Senate. whether we want to approve them or floor and said: We can’t produce it be- We have Karen Henderson, appointed not is in real jeopardy because they are cause it is too hard and we don’t have by George Bush; we have Justice Rog- about to say that from this day for- the votes. So we did nothing. Isn’t that ers and David Tatel; then we have ward, because of their stubbornness spectacular, that the leadership on Miguel Estrada. Let’s look at a com- about this nominee, they are going to that side of the aisle, the last time parison. These judges are there on the change the rules so that judges will they were charged with doing some- bench, they were appointed and con- need 60 votes, not the majority rule thing for the American people with a firmed. Here is one from Duke Univer- that we thought existed. budget, punted? They punted. They had sity, Judge Henderson, who attended I will not yield to my good friend. I no plan. They produced none. the University of North Carolina Law see him standing out of the corner of Today, when we have a bona fide School. It is interesting, as far as other my eye, and I will save his words. issue that we can do something about— things are concerned that those can- Please understand, I will yield soon. that is, appoint a circuit court judge didates did to prepare them to sit on So what they would like to do is to who is qualified—they have the effron- the bench, such as Circuit Court clerk- change from 51 votes being necessary tery to come to the floor and engage in ships, Supreme Court clerkships, and to approve judges of the United States a discussion as if a discussion about Federal Government service. Look, under our Constitution—because of the plight of the American worker these others had none. Yet, they were what I perceive as nothing more than would solve the problems of the Amer- deemed to have had adequate experi- an unfounded fear—and you know, ican worker. What will their discus- ence to go on the bench. And Miguel their fear is not the one that has been sions do for the American worker? Do Estrada is not. expressed. Their fear is that this young they have some grand plan they want Look at what he has done compared man will be a great judge and, besides to come down here and talk about? to them. Just look at the list. Obvi- that, he is Hispanic, whether you want They have been doing it in spite of ously, he graduated from a comparably to argue, as some would, that a Hon- whatever the debate is. They have been good law school. His is Harvard. One of duran who is Hispanic is not Hispanic, talking about whatever plan they had. theirs was Chicago. One of theirs was which is a most incredible argument. If I have not seen it foment any great en- Harvard. One was North Carolina. And we were to start that across America thusiasm on the part of those who are then look at all the other things he has when we are talking about Hispanics, worried about the American economy, done. Yet they say he is unqualified. we are going to have to decide which unless it is themselves talking to But these two—these three get ap- one is Hispanic, and if a Honduran with themselves. I have heard no great pointed. They are serving, and they are his family name is not one, as some group of American economists saying: apparently qualified. would say on that side of the aisle, that Boy, they have a great plan to help the Look at the really important issue. is pure, absolute lunacy. American workers. Quite to the con- Look at how long it took this judge trary. from the time her name was submitted So they are going to say we don’t There is only one plan around that to take her seat on the bench—51 days. want him there, but it is not because has significant support. And if they No aspersions on this judge. She must they fear him as a circuit court judge. want to change it, they will have their be great. She got there in 51 days. But They fear him because he is then, if he opportunity. But it will not get she had none of the experience Miguel sits on the circuit court, a legitimate, changed with speeches. It will get Estrada had. She graduated from a potential U.S. Supreme Court member. changed when the bills come to the good law school, certainly. And she We have not had one who is Hispanic. floor. They will be here in due course. went to an undergraduate school, got a They are frightened to death. While all As a matter of fact, they will be here degree at Duke, a great university. of their fear is illegitimate, some of it faster than they ever got here when the But how about experience, the expe- is selfish fear because they think their Democrats were in control. rience of being part of the Attorney party should be the one that nominates We have a commitment from the General’s Office of the United States, a Hispanic who would be on the U.S. chairman of the Budget Committee which this candidate did under a Demo- Supreme Court. They think that be- that it will be here on time and that it crat and a Republican, a circuit court cause Hispanics are predominantly will be a plan that will be voted on by clerkship, Supreme Court clerkship? members of the Democratic Party, that committee and presented to us so They had none of that, and look at how they should be the party that puts into we can vote on it on behalf of the quickly they got appointed: 51 days, 113 position a Hispanic who might go to American people. That side will have days, 108 days. Look at Miguel Estrada: the highest bench in the country. their chance to amend it, if they can. 650 days and counting since he was rec- I believe that is a terrific burden to That is what we are going to do. We are ommended until today while they con- place on this young man, who at this going to start that and then move it tinue to say: No vote. early age has accomplished more, by right along. We will move it more expe- Again, we have a lot of time in the way of experience, legal accomplish- ditiously than it has ever been moved Senate. So the Democrats can come ments, and academic accomplishments, before because we have the will, we down here this afternoon, and nobody than any of the members sitting on the have the leadership in the White is going to keep them from debating circuit court today. House, and we understand that we have the economy. If they want to equate a I finished talking about those judges to produce a budget resolution with the debate in the Chamber of the Senate who were far less experienced and how requisite mandates to the committees about the economy and call it 2 million long it took them to become judges. of the Senate to reduce taxes in what- to 1, or whatever words they were Now I will take these judges who have ever way we collectively want, be it using, let them have it. It doesn’t do comparable experience to Miguel the President’s wishes or some other anything to help the American people Estrada. I find that by looking in the plan. But we have to do it—not speech- and the working man. What it does is records and seeing what they did. In es, not coming down here and creating detract from the fact that they want to addition to the law schools and under- something sort of a let’s have another change the precedent of this institu- graduate, it looks like circuit court showdown here on the floor, let’s talk tion. clerkships, looks like Supreme Court

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00024 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY February 25, 2003 CONGRESSIONAL RECORD — SENATE S2645 clerkship, looks like Federal Govern- their way of honoring Presidents’ Day. The ceed to quote the distinguished Demo- ment service are pretty much equiva- annual recess suspended their filibuster cratic Senators who have in the past lent to what Miguel Estrada has. Look against a federal judgeship vote. The Dems stated that we should not filibuster here, it took only 15 days from the are making an unwarranted stand, and an Federal judge appointments. They cite unseemly fuss, over the nomination of time of nomination to confirmation. Miguel Estrada to the U.S. Court of Appeals TED KENNEDY, our distinguished Senate Raymond Randolph, appointed by for the D.C. Circuit. colleague, and PATRICK LEAHY, our dis- George Bush, attended Drexel Univer- The filibuster—protracted talking under tinguished colleague, and they quote sity; graduated from Pennsylvania Law senatorial privilege—had consumed a week from them as to why we should not use School, summa cum laude, much like of debate about Estrada before the senators a filibuster when it comes to the ap- Miguel Estrada; who was a circuit left town. Now they’re gravitating back to pointment of judges. court clerk for a Second Circuit Judge; the Potomac, and the Dems can hide no Of course, the editorial asks, Why longer. Resumption of their verbose balking Assistant Solicitor General and Deputy now? The editorial proceeds to talk will make them look ridiculous—at a time about this young judge and his great Solicitor General. That is much like when the nation needs statesmen to stand up Miguel Estrada. It took 66 days from against the White House warmonger and his qualifications. It indicates that we nomination to vote. A comparably partisans commanding Capitol Hill. should not make this mistake in equipped nominee, it took 66 days. The Democrats have chosen a particularly changing what we have been doing for Another one is Merrick Garland, ap- poor target: Estrada, who came from Hon- so many years and create a 60-vote re- pointed by President Clinton, graduate duras as a boy and went on to lead his law quirement for a judgeship. of Harvard, summa cum laude; Harvard class at Harvard, is better qualified than Then the third article is from the many a Democratic appointee now holding Law School, circuit court clerk, special largest newspaper in the State—the Al- life tenure on one federal bench or another. buquerque Journal. They have a very assistant—very much the same as But after confirming so many less-quali- Miguel. That took only 71 days. Isn’t fied judges while they held power, Estrada’s lengthy editorial piece. The headline is that amazing? Very comparable cre- senatorial tormentors now offer ‘‘reasons’’ ‘‘End Filibuster, Put Court Nominee to dentials. This man has been waiting 650 why he shouldn’t be confirmed; too young; Vote.’’ That is the daily Albuquerque days—Miguel Estrada—and it is con- too bashful about answering leading ques- newspaper. They merely conclude that tinuing day by day. tions; appointed only because he’s Hispanic— the time has come. That is from my I don’t get a chance to come down or, to some senators’ way of thinking, not home State. I suggest when you put the Hispanic enough. three together, they have gotten the here as frequently as some, although What really rankles with the Democrats, Senator NICKLES and I agreed many though, is Estrada’s politics. He’s a conserv- message very well. They have heard months ago that we would be special ative. Surprise, surprise; we’ve got a con- both sides. They quote arguments friends to Miguel Estrada and help him servative president, and it’s the president made on the other side and find them as he moved through here. He has so who makes the appointments to the federal without merit, and they proceed to in- many helpers in a job that is very sim- judiciary. dicate that, without question, the time As the party on the outs, the Dems had ple. Senator NICKLES spoke yesterday has come to have a vote. better get used to like-minded appointments and he referred to that special kinship. I ask unanimous consent that those from the president. If their game-playing two articles be printed in the RECORD. I haven’t been here as often as some goes on, a disgusted American public might but I have heard some very good There being no objection, the mate- keep George W. Bush in office for the next rial was ordered to be printed in the speeches. I heard some very good ef- six years. The country certainly didn’t see forts on the part of the other side of any reason to balance Bush against a Demo- RECORD, as follows: the aisle to justify the delays that are cratic Congress when it had a chance just a [From the Albuquerque Journal, Feb. 24, taking place. Some have wondered few months ago. With their spiteful behavior 2003] whether it does any good for Repub- toward Bush appointees, the Dems aren’t ex- END FILIBUSTER, PUT COURT NOMINEE TO actly gaining goodwill. VOTE licans to insist that this man be given If they find the Republican so repugnant, What the Colt revolver was on the dusty an up-or-down vote, and that whatever let ’em vote against him; at least they’ll be streets of the Old West, the filibuster is on is occurring on the other side of the putting their ideals—or their party colors— the floor of the U.S. Senate: The great equal- aisle—I have given you four or five rea- on display. But this is no Mr. Smith against izer gives 41 senators the ability to bring the sons it may be occurring—but I suggest some diabolical establishment; it’s a bunch chamber’s business to a halt. our effort is doing some good. of sore losers making themselves even more The tactic should be unholstered only on I will tell you that in my State three so. issues of high principle or grave importance. newspapers over the weekend an- To break a filibuster by cloture takes 60 Considering the issues currently confronting senators. The Senate’s 51 Republicans need Washington, the judicial nomination of nounced in open and bold editorials nine of the 48 Democrats, or eight of them Miguel Estrada does not rise above partisan that the Democrats should stop the fil- and ex-Republican Jim Jeffords of Vermont. wrangling. To block a vote on his appoint- ibuster, retreat from it, and get on New Mexico’s Jeff Bingaman should lead ment to the U.S. Court of Appeals for the with the vote. One of them is a news- the Democratic blockade-runners. By all District of Columbia Circuit is an abuse of paper known as the Santa Fe New measures, Bingaman is a class act; a lawyer the filibuster. Mexican. Obviously, those who know who knows that senators have no business Democrats say the filibuster is justified our State know that this paper—a very obstructing appointments on purely political because too little is known about Estrada old newspaper—is certainly not a con- grounds. He also knows that Republicans and he has not been forthcoming about his aren’t going to hold the White House forever; judicial philosophy. servative newspaper. They say in their that sooner or later a Democratic president New Mexico Sen. Jeff Bingaman said Fri- editorial—the lead words are—Binga- will be choosing judges. And he realizes that day he has not made up his mind about back- man—meaning our Senator—‘‘Binga- Republicans, like their mascot, have long ing continuation of the delay tactic, and man should lead the Dems’ filibuster memories. echoed the Democratic indictment of the retreat.’’ They have a very lengthy dis- The last thing our justice system needs is Honduran immigrant as a stealth conserv- cussion of why my colleague, the jun- an ongoing feud over appointments to dis- ative. ‘‘Obviously, you become suspicious of a ior Senator from New Mexico, should trict and appellate judgeships. Let Judge Estrada’s confirmation be a landmark of par- person’s point of view if he won’t answer lead the Democrat retreat from the fil- tisan politics’ retreat from the courtroom. questions,’’ Bingaman said. ibuster that is working its way on the Let’s get on past mere suspicions of Demo- Democrat side. I ask that the editorial Mr. DOMENICI. Mr. President, we crats and declare guilt by association. have a rather active University of New be printed in the RECORD. Estrada is the choice of President Bush. His Mexico newspaper. It is named the views doubtlessly come closer to mirroring [From the Santa Fe New Mexican, Feb. 24, Daily Lobo, after the athletic team. 2003] Bush’s than those of left-leaning Democrats They have a columnist there, Scott or those of Clinton’s judicial nominees. BINGAMAN SHOULD LEAD DEMS’ FILIBUSTER Darnell, who wrote: Feminist Majority president Eleanor RETREAT Smeal, for one, doesn’t need any more infor- Miguel Estrada isn’t probably someone As legendary prizefighter Joe Louis said of mation about Estrada to know that in block- with an immense amount of name recogni- an upcoming opponent reputed to be fast on ing him, ‘‘the Democrat leadership is giving tion—yet. his feet: ‘‘He can run, but he can’t hide.’’ voice to its massive base of labor, civil Senate Democrats, along with the Repub- That is this University of New Mex- rights, women’s rights, disability rights, en- lican majority, fled Washington last week as ico editorial comment. Then they pro- vironmental, gay and lesbian rights groups.’’

VerDate Mar 15 2010 21:55 Jan 14, 2014 Jkt 081600 PO 00000 Frm 00025 Fmt 0624 Sfmt 0634 E:\2003SENATE\S25FE3.REC S25FE3 mmaher on DSKCGSP4G1 with SOCIALSECURITY S2646 CONGRESSIONAL RECORD — SENATE February 25, 2003 Oh, then this is about constituent politics. the Senate deny [the nominee] his vote by and not one single thing will happen to There’s another constituent-oriented facet: the entire Senate.’’ benefit the American workers, not one Miguel Estrada is a successful immigrant, Finally, Sen. Barbara Boxer, from Cali- thing. current front-runner to become the first His- fornia said, from Congressional Record in We need to do something, and what panic Supreme Court justice and an obvious 1995, that, ‘‘The nominee deserves his day, role model—in short, a poster boy for Repub- and filibustering this nomination is keeping we must do is decide whether we want lican recruitment of minorities away from him form his day.’’ the President’s plan or some modifica- the one, true political faith. It seems people can change quite a bit in tion of it. The only way we can do that This isn’t about suspicions; Estrada is only a matter of years. is to move with dispatch on the issues Democrats’ worst nightmare from a partisan But why are Senate Democrats and many before us, those issues, in the way pre- perspective. leftist organizations so dead set against scribed under our rules. There is no one From a personal perspective, Democrats Estrada’s nomination? The obvious answer suggesting we should throw away our lies in the fact that the court he is being who have worked with him in the Clinton ad- rules and pass a plan tomorrow morn- ministration have high praise. Seth Wax- nominated to is considered the second-high- man, Clinton’s solicitor general, called est court in the nation and often times ing. Nobody is suggesting we do that. Estrada a ‘‘model of professionalism.’’ though of as a stepping stone to the Supreme In due course, in the matter of only Former Vice President Al Gore’s top legal Court. a few weeks, we will be voting on adviser, Ron Klain, said Estrada is ‘‘genu- Secondly, Senate Democrats and organiza- whose plan should be adopted to help inely compassionate. Miguel is a person of tions such as the NAACP or the AFL–CIO the American economy move forward. outstanding character (and) tremendous in- recognize Estrada’s ethnicity—they recog- I submit that the facts are over- tellect.’’ nize his heritage and the future he is making whelming that the arguments against During Judiciary Committee hearings in for himself—but let’s face it, he’s just the Miguel Estrada are not justified. Those September, Estrada said: ‘‘although we all wrong type of minority. He’s Hispanic and these politicians and organizations are all arguments do not justify these delays. have views on a number of subjects from A I yield the floor. to Z, the first duty of a judge is to a put all for the pro-active advancement of Hispanics, that aside.’’ just not his type of Hispanic. The National f That’s good advice for a judge, and it’s Association for the Advancement of Colored RECESS good advice for senators sitting in judgment People is now going to read ‘‘The National of a nominee. Put aside pure partisan consid- Association for the Advancement of Colored The PRESIDING OFFICER. Under erations; weight Estrada’s qualifications, People Who Believe in ONLY Leftist Prin- the previous order, the hour of 12:30 character and intellect; end the filibuster ciples and Ideology.’’ p.m. having arrived, the Senate stands and put this nomination to a vote. Miguel Estrada will not, while in whatever in recess until 2:30 p.m. courtroom he may preside over, pander to Thereupon, the Senate, at 12:30 p.m., [From the Daily Lobo, Feb. 24, 2003] the interests of those who wish to establish recessed until 2:30 p.m. and reassem- ESTRADA NAYSAYERS HYPOCRITICAL and ingrain a persistent racial inequality in America, those who do not now carry out the bled when called to order by the Pre- (By Scott Darnell) legacies of past civil rights leaders, but in- siding Officer (Mr. VOINOVICH). Miguel Estrada isn’t probably someone stead bastardize those past efforts by forcing f with an immense amount of name recogni- racial tension upon Americans to keep soci- EXECUTIVE SESSION tion—yet. ety at their beck and call while gaining per- President Bush appointed him to an open sonal notoriety, prestige and wealth. seat on the U.S. Court of Appeals, District of If the Senate Democrats try to filibuster Columbia Circuit on May 9, 2001; he immi- Estrada’s nomination, they will be holding NOMINATION OF MIGUEL A. grated to the United States from Honduras back debate and action on the immediate na- ESTRADA, OF VIRGINIA, TO BE when he was 15 years old, graduated from tional and foreign issues affecting this coun- UNITED STATES CIRCUIT JUDGE Harvard Law School magna cum laude in try, such as creating and passing the appro- FOR THE DISTRICT OF COLUM- 1986, has been a clerk for a Supreme Court priate economic stimulus package, among BIA—Continued justice, an assistant U.S. attorney and the other important topics. The PRESIDING OFFICER. The ma- assistant solicitor general, among other If the Senate feels that Estrada has com- stints in private practice. He is supported by mitted a criminal or moral transgression at jority leader. many national organizations, including the some point in his life that would injure the Mr. FRIST. Mr. President, nearly 2 Hispanic Business Council, the Heritage integrity and standing of his service as jus- years ago, President George Bush nom- Foundation, the Washington Legal Founda- tice of one of our nation’s highest courts, inated Miguel Estrada to serve on the tion and the Hispanic Business Roundtable. they should provide sufficient evidence to U.S. Court of Appeals for the District Unfortunately, Estrada’s confirmation has that end and take whatever measures nec- of Columbia. When confirmed, he will been delayed and prevented by many Demo- essary to disallow a moral or actual criminal crats within the Senate, an action fueled by be the first Hispanic member of this from taking the bench. But, in this case, no court. But the other side of the aisle many leftist groups, organizations and lob- such criminal or moral transgression can be byists in America. Currently, Senate Demo- seen, and the argument against his nomina- has stalled. In fact, as I look back, we crats are planning to, or may actually be tion is purely idealogical; a filibuster would have been on this particular nomina- carrying out, an intense filibuster against represent a blatant obstruction of our polit- tion since February 5. The other side Estrada’s nomination; filibustering, or tak- ical system and a disservice to the American has continued to stall this nomination, ing an issue to death, is definitely a method people. So, as Democratic Sen. Barbara preventing something that is very sim- for lawmakers to prevent a policy or other Boxer put it so succinctly a few years ago, ple, that I think the American people initiative from ever coming to fruition—end- ‘‘Let the nominee have his day.’’ ing a filibuster is difficult, especially in our now understand, and that is a very sim- closely divided Senate, taking a whopping 60 Mr. DOMENICI. Mr. President, I re- ple up-or-down vote. votes. peat, it is one thing to delay; it is an- Every Senator in this body can de- The most unfortunate part of the Senate other thing to talk a lot; and it is yet cide either they support this nomina- Democrats’ obstruction on Capitol Hill lies another thing to attempt to get the tion or they do not. Earlier today, at- in the fact that many high-ranking Senate issue that is before us and find a way tempts were made from the other side Democrats have at one time condemned around it and cloud the issue. That is of the aisle to bring up other legisla- nomination filibusters quite harshly, leaving all that is happening this morning with tion with the call that it is time to their intense efforts to carry out a filibuster the discussion by the Democratic lead- today very hypocritical. For example, Pat- move on, and I agree; it is time to rick Leahy, the senior Democrat on the Ju- ership, joined by certain Democratic move on. We have had hours and days diciary Committee, said, from Congressional Senators, when they argue that Repub- and nights to debate and discuss the Record in 1998, that ‘‘I have stated over and licans, by insisting that we vote on opportunity given to both sides of the over again . . . that I would object and fight this nominee, are in some way failing aisle, and now it is time for us to vote any filibuster on a judge, whether it is some- to do justice to the economic problems on this nominee. body I opposed or supported.’’ that exist in our country. For nearly 2 years, the nomination of Sen. Ted Kennedy said, from Congressional I hope it doesn’t take a lot more dis- this man—now, remember, the Amer- Record in 1995, that, ‘‘Senators who feel cussion for people to understand that is ican Bar Association has deemed him strongly about the issue of fairness should vote for cloture, even if they intend to vote absolutely an untruth. It is an abso- well qualified—has languished as some against the nomination itself. It is wrong to lutely irrelevant argument. They can in this body have played politics with filibuster this nomination, and Senators who talk all they like about the economy his future. They have consistently re- believe in fairness will not let a minority of and quit talking about Miguel Estrada fused to give Miguel Estrada this very

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