[Pages S3058-S3074]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES
CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA--Continued

The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, I rise to speak on a few matters of
importance to us related to the nomination of Miguel Estrada, which is
what we are now focused on, as well as some of the issues we should be
focused on which we are not doing because the majority leader has
determined we will continue to debate Estrada.
Last week, something happened in the Judiciary Committee that more of
our colleagues should know about because a lot of us find this very
confounding.
First, I have tremendous respect for and, indeed, consider the senior
Senator from Utah my friend. I know he cares deeply about the issues
and about the Senate. What we are seeing in the Judiciary Committee is
going to do some significant harm--I hope not irreparable harm--not
only to the Judiciary Committee but to the whole body. Up until last
week, when we were moving closer and closer and closer to the edge of
violating the rules the Judiciary Committee has worked upon, there were
a lot of traditions on our committee. It is an important committee, a
committee steeped in great legal tradition. If you look at the pictures
on the wall of the various chairs of the committee, it goes long and
deep.

[[Page S3059]]

But we have seen changes, first, in my judgment, when three court of
appeals nominees were brought to a hearing at the same time. A court of
appeals is an extremely important court. Every judge appointed to that
court has a lifetime appointment. So the last chance there is to vet
who they are, what their views are, how they think, comes in the advise
and consent process on the floor of the Senate and, in the first
instance, in the Judiciary Committee.

Many of us protested to the chairman of the committee that to have
three courts of appeals witnesses, none of whom was without
controversy, come before us on a single day did not make much sense. He
said, well, that is how he wanted to do it. Although in fairness to
Chairman Hatch, he was apologetic and said he would not do it again.
But when we asked that we change it prospectively because these are
important positions and important nominees, he said, no, he wanted to
go forward.
We went until 9 that night. I was there. Chairman Hatch was gracious.
I had a previous engagement at 7:30 that I had to go to and came back.
By 9:30, with the members of the committee who had stayed that long
quite exhausted, we had only really finished asking questions of one
nominee, Jeffrey Sutton, to the Sixth Circuit.
I asked Senator Hatch if we could bring the two other witnesses back.
He said he didn't want to inconvenience them. With all due respect, I
expressed my disagreement. To inconvenience a nominee for the court of
appeals, whether it be the Sixth Circuit or the DC Circuit, Mr. Roberts
and Judge Cook, to ask them to spend an extra day here in return for
what is a lifetime appointment didn't seem to me to be too much.
If normal workers, people who apply for jobs, are asked to come back
by their prospective employer for a second interview or because
something happened and that employer couldn't see them that day, they
would hardly say it would inconvenience them, if they wanted the job.
But we seem to be running on a different schedule. So two of the
nominees never got questioned. I asked them some written questions. I
much prefer to ask oral questions. Answers given before the committee
in the give and take are much better.
For instance, some people asked why didn't I ask written questions of
Miguel Estrada, because I questioned him for 90 minutes. His answers
were so obtuse and unenlightening, simply saying he will follow the
law, he can't answer that because he hasn't seen the briefs, asking any
written questions would have made no sense, to get those same answers
back.
In any case, we did that. And then, of course, there was the hearing
for Miguel Estrada, and we have rehearsed and rehearsed that over and
over and over again, where questions were simply not answered. To say
he was before the committee for a lengthy number of hours, and he
answered some 100, or 500, or however many questions, doesn't tell the
story. We all know that, because the answers he gave were to the
effect: I cannot answer that; without the briefs, I cannot answer that;
because it might be in a pending case before me, I cannot answer that.

Those are not real answers. With all due respect, in this Senator's
judgment, I have never seen such stonewalling when a nominee was faced
with so many different questions. And we continue to debate the Estrada
nomination on the floor, not because the minority wants to debate it--
we are happy to move on--but because the majority has chosen to debate
it by filibuster, which is not ours but, rather, theirs. I hear we are
going to move to the Moscow Treaty this week--that being the choice of
Majority Leader Frist--which is proof that we don't have to stay and
debate the issue of Miguel Estrada. The schedule is in the hands of
Senator Frist.
What happened in the Judiciary Committee last Thursday was even more
disappointing. We have had a rule that has existed in the Judiciary
Committee for quite a long period of time. I am not sure of the number
of years, but it is certainly over a decade. That rule is not something
that is whimsy or simply tradition, such as the issue that we should
never have three judges before us--I have just been informed that rule
has been on the books since 1979. That is a written rule of the
Judiciary Committee. It has been abided by by chairpeople, Democrats
and Republicans, repeatedly throughout that period of time. I will
repeat that this is not a tradition, it is not something that is sort
of fuzzy. This is not even like blue slips. That is another place where
the committee just changed. I didn't mention that, but I will take a
minute to mention that.
We have always had a tradition of blue slips where, if a Senator from
a home State objected certainly to a district court judge, that judge
would not go forward. Many colleagues on the other side of the aisle
have used the blue slip with success, from their point of view,
repeatedly in the nineties, particularly when President Clinton was
President, and when they controlled the Senate, or when they didn't
control it. That is a tradition simply cast aside by the majority.
So we have the way we conduct hearings, blue slips, and everything
dealing with judicial nominees.
As I said, we were getting closer and closer to the edge of no longer
having comity on the committee, abiding by traditions. It almost seems
as if it is, like ``Alice in Wonderland,'' first the verdict, then the
trial; the majority determined the result they wanted and changed the
rules to fit the result: We want a lot of nominees put on the bench
quickly. OK, we will stack them up in hearings and not give every
Senator a chance to ask all the questions he or she wants. We have a
nominee whose views, in all likelihood, were questioned and gone over
thoroughly at the White House, but we don't want the public or the
Senate to know, so we will instruct him not to answer questions in any
dispositive or enlightening way. We have nominees we could never get
through, in terms of comity--bipartisan comity--so we will get rid of
the blue slip rule, or weaken it significantly.
As I said, all of those were traditions of the committee. I have been
told over and over again that this body is very mindful of traditions,
but they seem to be falling one by one--we have had more traditions
falling in this month and a half that we have been under new leadership
than in all the time I can remember being here. That is only 4 years.

But last Thursday, we had an unprecedented action. That action was
that a rule of the committee--not a tradition, not something subject to
anybody's interpretation--was just steamrolled over--ignored,
forgotten, et cetera. That is one of the reasons we may need courts.
That rule, which was written and ratified by the members of the
Judiciary Committee when we organized this year, is a simple one. Rule
4 says:

The chairman shall entertain a nondebatable motion to bring
a matter before the committee to a vote.

The rule goes on to say:

If there is objection to bring the matter to a vote without
further debate, a rollcall of the committee shall be taken,
and debate shall be terminated if the motion to bring the
matter to a vote without further debate passes with 10 votes
in the affirmative, one of which must be cast by the
minority.

I will repeat that:

. . . debate shall be terminated if the motion to bring the
matter to a vote without further debate passes with 10 votes
in the affirmative, one of which must be cast by the
minority.

That is crystal clear. What it says is that if you want to cut off
debate in the Judiciary Committee, you need one member of the minority
party to vote to cut off that debate. It is obvious why it was put in
the rules: so there would be some form of comity, so that the majority
party--even if they had 15 members of the Judiciary Committee and the
minority party only had 5--could not shut off debate. It doesn't relate
to the actual vote itself. It relates to how long one is entitled to
debate.
Well, last Thursday, when the committee was expected to vote on the
three nominees I mentioned earlier, two of whom were not questioned
because they were all stacked up to be debated at one point--I believe
it was Senator Leahy and Senator Kennedy who were there; I was not
because I was in the Banking Committee hearing Chairman Greenspan. But
Senator Leahy and Senator Kennedy invoked rule 4 and said, ``We want to
continue debate.'' At that point in time, Chairman Hatch called for a
vote.

[[Page S3060]]

Mr. DURBIN. Will the Senator yield for a question?
Mr. SCHUMER. I am happy to yield.
Mr. DURBIN. I ask the Senator this basic question because there are
some trying to follow this debate. Being lawyers and having been on
Capitol Hill for a while working in this environment, we have a
tendency to speak in terms that perhaps the average person may not
understand. I want the Senator from New York to help me come to the
basic question about why any average person following debate on the
floor of the Senate in America should even care about the compliance
with rules because I think the Senator has made this point.
The Senator said that now, with the new Republican majority in the
Senate, with the Miguel Estrada nomination, they are violating the
traditions of the Senate in terms of questions to be asked for those
seeking lifetime appointments to the Federal judiciary. The chairman,
Orrin Hatch of Utah, of the Judiciary Committee has now said he is
going to change the way Senators from a given State can approve of the
nominees before they come up for consideration before the committee.
Senator Hatch, in one of his first acts as chairman, scheduled three
controversial nominees for one day, in an unprecedented scheduling,
which, frankly, called into question whether there would be enough time
to ask important questions. And now, as late as last week, Senator
Hatch has said he is going to virtually ignore the established rules of
the Senate Judiciary Committee that have been in place through
Democrats and Republicans, to cut off debate in the committee.
My basic question to the Senator is: Why is this important to the
average citizen following this debate? Why should they care if Members
of the Senate are twisted in knots over procedure and tradition? What
is the bottom line here? Why is this significant? Is this the clash of
titanic Senate egos, or is there something more at stake in this issue?
Mr. SCHUMER. I thank my colleague for asking the question which, as
usual, from his lawyer-like mind, is able to pierce through the
legalisms and reach the core of the debate that people can understand;
it is an excellent question.
This is not simply a clash of egos, or even two lawyers arguing a
point for the sake of it. The bottom line here is that this is what our
country is all about in terms of protecting the rights of average
people. The bottom line is that the Founding Fathers, and then
Congresses from the very beginning--from 1789--understood the power a
Federal judge has over an individual. The power of the judge is much
closer to the power of a king--who also has a lifetime appointment--by
definition, than is the power of a President or a Senator or a
Congressman, because that judge is appointed for life and can just make
up his or her mind and decide that should be done.

What we have had through the years of tradition is a very careful
vetting of who should become a judge. The rules are simply a device to
determine who those people are in terms of back-and-forth questioning,
of hearings, of votes, et cetera.
The Founding Fathers certainly shied away from the idea of the
President simply appointing judges. They knew the awesome power judges
had, and they wanted to make sure there would be a thorough airing of
who this person was before that person ascended to this lifetime
appointment to a powerful position.
Every one of the rules the Senator mentioned goes to whether a person
can organize in a union; whether a person can be discriminated against
because of the color of his or her skin or their religion or their sex;
whether a corporation can violate the Clean Water and Clean Air Acts
and affect our lungs and affect our children's health; whether, for
instance, an issue I know my friend from Illinois has been very much
involved in, whether a meat packing company can decide how clean their
plant ought to be, given there are Federal laws that govern them. The
judges have all this kind of power.
The very reason we debate these issues and have these rules is we
want to make sure the people who become judges will, indeed, follow the
law and not simply get up there and say: I promise you I will follow
the law. We have been there.
Mr. DURBIN. Will the Senator yield for another question?
Mr. SCHUMER. I will be happy to yield.
Mr. DURBIN. If this is not an ego trip between titanic Senate egos as
to who is going to prevail, I ask the Senator from New York, what is
the agenda here? Why would the Republicans in the new majority of the
Senate Judiciary Committee change the rules, change the traditions,
change the approach, take away power of individual Members of the
Senate to ask questions of nominees, to have the time to try to come to
understand the values they are going to bring to the judiciary, to have
time to at least debate the nominations? What is the larger question
here? What is it that is driving this kind of radical transformation of
the Senate Judiciary Committee?
At this moment in our history, having just come off the last
Presidential election so closely decided, followed by a congressional
biennial election which, again, was closely decided, what is it that is
driving this effort, does the Senator believe, on the Senate Judiciary
Committee to make such radical changes in the way we choose Federal
judges?
Mr. SCHUMER. I thank my colleague for the question. It is a very good
question. Of course, it would involve us going into the heads of our
colleagues, both on the other side of the aisle and the White House, in
figuring this out. But I will tell my colleague what I think.
For some reason, the other side fears an open debate. For some
reason, the White House and the other side do not want their nominees
fully questioned. They have gone through every device and, as of last
Thursday, even breaking the Senate rules. If the average citizen broke
the rules, whether it be the driving rules, the parking rules, the
rules of how you have to maintain your house or your sidewalk, there
would be some recourse. I do not know what the recourse is here, but to
abjectly break the rules and just say, I am breaking it, tough rocks,
Jack, is so against the traditions we have had. For some reason, they
do not want these nominees to be questioned. Why is that? We can only
speculate, but I will tell my colleague what I think. I think some of
these nominees' views are probably, and in some cases certainly, so far
out of the mainstream that they do not want those views to become
public because then it would either be, at minimum, an embarrassment
for them, because this is not how President Bush was elected or most of
the Senators were elected. We have mainstream conservatives and
mainstream liberals, but very few Americans say: Have such a change in
the way the courts and the Government functions that we should go back
to the days of the 1930s or the 1890s.

There is a movement called the Federalist movement which basically
has been devoted to cutting back dramatically on Federal power, giving
that power to the States, giving that power to corporations, giving
that power to others. I did not hear any mandate in the elections of
2000 or 2002 to go back to the 1930s, to go back to the 1890s, the way,
say, I believe Justice Scalia, who has gone through the process,
thinks. In fact, not only was there no mandate, there was no
discussion. So when one asks oneself the very good question my friend
from Illinois has asked me, which is, Why are they so afraid of
questions of nominees, of debate, it is not certainly because they are
afraid we are going to slow it down. We asked for 1 extra day of debate
for Judge Cook and for Mr. Roberts. We did not get it. All we want from
Miguel Estrada is some answers to questions and some papers, which they
could have sent months ago. So this is, clearly, not just an issue of
delay. If it were simply an issue of delay, we could work out an
agreement, put in a time limit, and vote.
In my judgment, it is clear they do not want these questions
answered. They do not even want them asked. That is why we are cutting
off debate. Why? My guess--and it can only be a guess--is because the
nominees to the judiciary, at least some of them, are so far over that
if their real views were ascertained, the American people would be
aghast.
Mr. DURBIN. If the Senator will yield for another question, yesterday
in Chicago a reporter came up to me on the Miguel Estrada nomination.
He

[[Page S3061]]

said: Senator, isn't it a fact the reason you are blocking the Miguel
Estrada nomination is because he is pro-life and you are pro-choice?
You disagree on the abortion issue.
I ask the Senator from New York who sat through the Judiciary
Committee with me over the last few years, is it not a fact that with
over 100 nominees from the White House that President Bush has
successfully guided through this Senate, is it not a fact the
overwhelming majority of those disagree with our position on choice, on
abortion, and yet they have gone through this committee, almost all of
them, without controversy, many of them with routine rollcall votes? I
ask the Senator from New York, does this difference of opinion come
down to whether or not we are going to receive conservative nominees
from the Bush White House and now we have the Democrats in the Senate
Judiciary Committees stopping conservative nominees; is that what is at
issue here?
Mr. SCHUMER. I do not believe so at all. I do believe--and this is
another excellent question--a President should be given some degree of
flexibility and latitude because the Constitution says the President
should nominate judges. We advise and consent.
If choice were the issue, then I probably would have voted against--I
think of the 106 nominees who have come before us, more or less, I have
voted for 100. My guess is of those 100, given they were nominated by
President Bush who made commitments to the pro-life groups, that they
would agree with them and try to get judges to ``think like Scalia and
Thomas,'' that the overwhelming majority were pro-life. In fact, I know
some of them were because I have read their decisions. I have read what
they said in lower courts. I voted for them. I do not believe in a
litmus test. I believe very few Members of this Chamber on either side
of the aisle believe in a litmus test.

My guess--and I cannot speak for others--when on issue after issue a
judge would have such extreme views that he would take the courts and
the rulings so far out of the mainstream that Americans would be
aghast, that ideological-type judges, whether on the far left or the
far right, instead of doing what the Constitution says, interpret the
law, rather make law because they feel so strongly that they have to
pull the country in a direction way beyond, those are the few judges
we--at least I--have objected to. Again, I have to use my judgment.
Obviously, this is not an objective meter here, but that is what we
have done.
I say to my colleague, the irony is this: Our good friend from Utah
and many of the others on the other side of the aisle played the same
watchdog role when President Clinton was President, and we have quote
after quote from Senator Hatch, from Senator Sessions, from Senator
Ashcroft, from the leaders of the Judiciary Committee back in the
nineties, that they had to be on guard against what they called
``activist judges.''
To them, activist meant too far left. To me, activist means either
too far left or too far right. An activist judge--I sort of sympathize
with that comment. An activist judge means that because they feel
strongly, instead of just interpreting the law and trying to figure out
what Congress meant, they will impose their own views.
Mr. DURBIN. May I ask the Senator from New York--I think it is
important in this debate that we take this general and theoretical
analysis of judges and their impact on America and try to make it
something closer to home so the average person following this debate
understands what is at stake.
I can recall--and I am sure we were both Members of Congress at the
time--when we passed the Americans with Disabilities Act.
Mr. SCHUMER. Right.
Mr. DURBIN. This was amazing legislation because it was so strongly
bipartisan. Tom Harkin, Democrat of Iowa, then Senator Bob Dole of
Kansas, they came through and said, on a bipartisan basis, let us
extend freedoms and opportunities to people in America who have been
denied those opportunities; let us pass a Federal law--Congress passes
it, and the President signs it--and establish opportunities for
disabled Americans.
I think this is a good illustration of what happens with the Court
when it goes too far in one direction. I ask the Senator from New York
if he could give us an illustration of what happened with the Americans
with Disabilities Act when it came to the highest court in the land
when they had a chance to take a look at it and say whether we will
protect disabled Americans and whether Congress had gone too far or not
far enough, so that people can put in context what we are debating. Can
the Senator give us an illustration of what happened with this law?
Mr. SCHUMER. Yes. The bottom line is the Court, despite the fact that
Congress, on a bipartisan basis--by the way, supported by George H.W.
Bush, the 41st President of the United States, who signed it into law--
somehow comes up with an interpretation that parts of the law are
beyond the Constitution and millions of disabled people are deprived of
rights. That did not just happen for disabled people. In that case,
which was the Garrett case, I believe my colleague is referring to,
they said the States did not have to abide by this. Even though it was
clear that the intent of Congress was that everyone had to abide by it,
they said the States could discriminate against disabled people.
I know my colleague from Illinois was involved in a law that says
someone cannot bring a gun into school. Again, somehow the Supreme
Court comes to the determination that a person can, or that the law
that we passed, which seemed to be a general mainstream consensus law--
because some of these folks tend to be ideologues, they came up with
some God-forsaken reason that that could not happen.
Another one on which I worked long and hard, along with our colleague
from Delaware, Senator Biden, and our colleague from California,
Senator Boxer--I know the Senator from Illinois was very supportive--
was something called the Violence Against Women Act, which for the
first time said that the Federal Government could be involved in
helping women who were abused by their spouses. Before that, it was a
sort of dirty little secret hidden under the rug. The law had amazing
effect.
I know this one better than I know the Garrett case, but it is the
same type of thing. It affects average people. For the first time,
women were able to get hotlines, find out whom they could call when
they were abused. Shelters sprung up. When a woman was beaten in the
past, all too often there would be nowhere to go and she would have to
go home to the same husband who beat her before.

On issue after issue, we helped women who were abused come out of
hiding and seek help and become productive citizens again, having a
huge effect not only on them but on their children. Studies show that
if a child is abused, which this act would have affected, or the
child's mom was abused by the husband, they are much more likely to be
criminals. So it affected all of us. All of a sudden, the Supreme Court
says that Congress's finding that this law affected commerce in the
United States was undone and throws out part of the Violence Against
Women Act.
So this is not an abstract argument, this is not a bunch of lawyers
just arguing how many angels can fit on the head of a pin, this is not
partisanship--to me, at least. I have devoted my life to government. I
was elected when I was 23. I want to make the Government help people. I
want people to believe Government is on their side. When nonelected
judges come in and take years of work that Congress does--whether it
affects disabled people, kids in school, the cleanliness of the water
we drink, how a meatpacker has to obey certain laws, or the Violence
Against Women Act--and throws it out on reasoning that 10 years before
would have been regarded as crazy, the very least we owe our
constituents, in my judgment, is the obligation--it is not simply a
right, it is an obligation--to question nominees for the bench.
Mr. DURBIN. If I may ask the Senator another question?
Mr. SCHUMER. Please.
Mr. DURBIN. I will yield the floor to him after this. At the same
hearing, Chairman Hatch basically rejected a rule that I think has been
in place almost 20 years in the Senate Judiciary Committee----
Mr. SCHUMER. If I might interrupt the Senator. Since 1979.

[[Page S3062]]

Mr. DURBIN. So for 14 years this had been the rule under Democrats
and Republicans.
Mr. SCHUMER. Twenty-four.
Mr. DURBIN. Twenty-four--I am sorry. This has been the rule.
Mr. SCHUMER. He is not on the math committee. He is on the Judiciary
Committee.
Mr. DURBIN. Right. Math was a minor. Law was a major.
But in this situation, where a decision was made that we can no
longer debate these nominees, we also had before us a nominee from
Ohio, a justice on the Ohio Supreme Court, Deborah Cook, whom I had a
chance to ask a few questions of in that marathon hearing where three
controversial nominees were scheduled for the same day. I do not know
if the Senator from New York was present. But I sent a written question
to this justice and asked her point blank: Tell me a little about your
thinking, about your judicial philosophy, particularly the concept of
strict construction of the Constitution--that is a cliche almost, but
it is a catch phrase that is used to try to judge whether someone is
far to the right, far to the left, or whatever it happens to be.
Justice Cook, in her reply to me, said that she did not characterize
herself as a strict constructionist, but she went on to say that those
who were strict constructionists--and I wish I had the direct quote in
front of me--were less likely to decide in favor of such things as
Brown v. The Board of Education, Miranda v. Arizona, and Roe v. Wade.

My staff has been kind enough to give me this question.
I asked her the following:

Do you think the Supreme Court's most important decisions--
Brown, Miranda and Roe--are consistent with strict
constructionism?

This is her answer, a judicial nominee:

If strict constructionism means that rights do not exist
unless explicitly mentioned in the Constitution, then the
cases you mention likely would not be consistent with that
label.

I said in the committee and I say here, that is a painful answer for
me to hear, to think that those who believe that a strict construction
of the Constitution would not lead them to integrate America's schools,
to protect a woman's privacy, or to give to criminal defendants the
most basic rights, knowledge of their constitutional rights--painful
for me to read this, but painfully honest.
The point I make to the Senator from New York, and then I will let
him finish: Is that not what we are looking for? Are we not looking for
candor and honesty from the nominees to reach a conclusion on an up-or-
down vote?
In a situation where candidates, nominees, such as Miguel Estrada,
refuse to answer the traditional questions asked by Republicans of
Democratic nominees, where Senators from a home State do not have a
voice in whether a judicial nominee comes before the committee, when
three controversial nominees are put in a hearing in one day on the
Judiciary Committee, where the chairman of the Judiciary Committee
eliminates the protection of the right to debate nominees, do we not
have a closing down of this kind of candor, openness, and honesty that
we are seeking, moving instead towards secrecy and stealth? Does this
not get to the heart of the issue as to whether or not the judges we
select for lifetime appointments to the highest courts of the land are
people whom we know, who answer questions honestly before they are
given that terrific opportunity to serve our Nation?
Mr. SCHUMER. If I might answer, I think my colleague has hit the nail
on the head. This is so important. What we have come to is the fact
that nominees are often told not to answer questions.
There is an article in the Legal Times where one of the leading
conservative judges of the court of appeals instructed nominees not to
answer questions. Why would someone say, do not answer questions; fudge
on the questions? I think I know why, as we talked about before.
Because if they gave their honest answers, they would become so
controversial that many of them would not pass. But imagine the
alternative: Not asking the question, or not getting the question
answered, and then this nominee who has views way beyond the mainstream
gets on the court and starts doing things. Do you know what would
happen? Our constituents would come to us and say: Do something.
We would try, but it would be very difficult. We would probably have
people on the other side saying: Well, I didn't know he thought like
that. Yet when we have the opportunity to ask that nominee questions,
to try and get some idea of how he thinks, we are denied the answers--
either because we did not have time, as in the case of the three
nominees, or in the case of not allowing discussion to go on in the
Judiciary Committee, or because we had the time--with Miguel Estrada we
had plenty of time, but the nominee refused to answer the questions,
simply saying: I will follow the law.
We have been through that. It is legendary that when Clarence Thomas
was up for the Supreme Court, people wanted to know his view on Roe v.
Wade. For me, it is an important issue, but it is not a litmus test. Of
the 100 people I voted for judge, most are against Roe v. Wade, but I
don't have a litmus case.
But for a nominee to the Supreme Court to say he had never discussed
it before while in law school--lawyers always discuss these cases--
struck many as disingenuous. I was not in the Senate then, but people
vowed they were not going to let that happen again; that was a mockery
of the process. This is too solemn a process.
Before I yield to my friend from Utah, and I appreciate him yielding
to me and yielding to all Members, and I will yield to him, speaking
for myself, this transcends any one nominee. We are beginning to see a
complete vitiation of the process whereby nominees will be nominated by
the White House and rubberstamped by the Senate. In my judgment,
nothing that we do here could do more damage to the fundamental
underpinnings of our Republic than that.
I remind my colleagues, that is not what the Founding Fathers
intended. The very first nomination to the Supreme Court was, I
believe, Rutledge--I always forget if it was Randolph or Rutledge; my
daughter was in the play ``1776'' and she played Rutledge, and I was
constantly calling her Randolph, much to her chagrin. But in any case,
Rutledge was defeated because the Senate had the temerity, I guess, in
the opinion of my good friend from Utah, to ask Rutledge's judgment on
something very controversial at the time, the Jay Treaty. The Jay
Treaty was not what judges rule on, but the Founding Fathers--by the
way, we just heard at our lunch that a large percentage of the first
Senators were members of the Constitutional Conference, so they
certainly knew what they wanted to do.
If they were questioning Rutledge on the Jay Treaty, then certainly
asking Miguel Estrada how he feels about the commerce clause and the
right to privacy and the 11th amendment and the first amendment and all
of these things could hardly be out of bounds.
In fact, I would argue if the Founding Fathers were watching this
debate, they would say: Yes, that is what we intended.
With that, I yield to my friend from Utah for a question only.
Mr. HATCH. I ask the Senator, is it possible the Senator could put
together the questions he believes Miguel Estrada has not answered
appropriately, and I will do my best to get him to answer them? If not
appropriately, as defined by the Senator, but at least in more detail
than the Senator seems to be indicating here.
I know he answered a lot of questions appropriately, and I believe
all of them appropriately, but I would be glad to assist the Senator if
he will give me a list of questions the Senator would like to have
Miguel Estrada answer. I will do my best to see he answers them for the
Senator, and hopefully that will have the Senator feel a little bit
better and cause him to vote for him.

Mr. SCHUMER. I thank the Senator for his question, and I think it is
a good-faith statement to break this deadlock which I hope we will do
because we have made the arguments over and over again.
Let me make an alternative suggestion and see what the Senator thinks
and then I yield to him. Why don't we bring Miguel Estrada back for a
second

[[Page S3063]]

day of questioning? I find written questions never to bring out the
same analysis, the same understanding of how a person thinks. That is
why we do not conduct trials by written question. Miguel Estrada may
say something, and I will want to immediately ask him, well, what about
this, and to take another week and ask another question and another
question and another question, I am sure within a short amount of time
my colleagues on the other side of the aisle will be saying we are
being dilatory.
If we could have another hearing of Miguel Estrada and if he could
let us see the documents he authored as attorney general, I think it
was my good friend's junior colleague from Utah who suggested we do
that, and then we would set--I cannot speak for my whole caucus, but I
will state what I would be for. I would be for setting a time certain
when we vote for him, another day of hearings, ask Miguel Estrada to
come back for a day.
It cannot be too much to ask when one is 42 years old and, may God
grant him a long and healthy life.
Mr. HATCH. Will the Senator yield?
Mr. SCHUMER. And to ask him for a day of questions and to give up
these documents which are very important, then we can settle this whole
issue.
I yield.
Mr. HATCH. As the Senator knows----
Mr. SCHUMER. For a question only.
Mr. HATCH. As the Senator knows, he cannot give up those documents.
He has no control over them. And the administration will not and
neither would any other administration.
Would the Senator be willing to get the Democrats to agree to an up-
and-down vote if we had one more day of hearings where the Senators
could ask additional questions? I am not saying we are going to do
that, I am just saying would we have an up-and-down vote.
We cannot produce those documents because they are privileged. I
think the Senator knows that. But if you had one more day of hearings
where you could ask the questions, could we get the Democrats to agree
to an up-and-down vote if you did that? I cannot say I can do that, but
I certainly would look at it.
Mr. SCHUMER. Let me try to answer my colleague.
Mr. HATCH. I know the Senator cannot speak for all the Democrats, but
if all the Democrats would agree, or if you can get the majority leader
to agree and the Democrats to agree to stop the filibuster, I might
consider that--not because I don't think he answered the questions the
first time; he did, in a very thick transcript--as a gesture.
I would have to look at this. I would have to talk to the
administration, the people on our side, and Miguel Estrada himself, but
if I was assured we would have an up-and-down vote where people could
vote whatever way they wanted to, I would give some consideration to
that, subject to my talking to our leadership on this side and talking
to the White House. But there is no question they cannot give up these
documents. He has no authority over those documents and the
administration will not give up those documents no matter what we do.
But I guess you would at least have an opportunity to ask additional
questions, in spite of the fact that the distinguished Senator who
conducted the hearing said it was conducted fairly, that he asked every
question he wanted to ask, that he had the right to ask any other
questions he wanted to, that he could have filed written questions, in
addition.

But the Senator has said if he could have one more day of hearings,
because written questions do not cut it as well as oral testimony, if
he could have one more day of hearings, I would consider this, and I
would talk to my side and I would talk to Mr. Estrada and the White
House if I knew there would be an up-and-down vote, the filibuster
would end, this threat to the process would end. I would certainly give
every consideration to it and try to do that.
The PRESIDING OFFICER (Mr. Crapo). The Senator from New York.
Mr. SCHUMER. Let me try to answer my colleague. Again, I have the
same caveat he does, even more so. I cannot speak for my Democrat
colleagues. I am not even chairman of anything.
I would say this to my colleague and make a couple of points. The
best evidence of how Miguel Estrada feels--given that he has not
written articles, he has not been a judge where we can see his record--
are these documents. We have debated this over and over again. There is
no privilege. There is no anything else.
Senator Leahy and Senator Daschle, in a letter to my colleague--and I
will be delighted to yield when I have finished my answer--have laid
out the conditions by which we believe we would at least get some bit
of evidence to see who Miguel Estrada really is. That is not in terms
of his history, which has been repeated over and over again on the
floor, and a wonderful history it is, but in terms of how he thinks and
how he would think and how he would rule as a judge.

So the best evidence is not hearsay evidence; it is the written
evidence. But let me just say in regard to the hearing--and here is my
problem with the offer and why the written evidence is so important--
let us say Miguel Estrada again refuses. He sits for 10 hours and
refuses to answer--or answers, let's characterize it, in the same way.
I ask him--Dianne Feinstein asks him his feelings on Roe v. Wade, and
he says I can't tell you that.
And Senator Durbin, for instance, asks him how he feels, widely or
narrowly, the commerce clause should be interpreted, and he says:
Because I might rule on a case about the commerce clause, I can't
answer that.
By the way, I have checked with a whole bunch of legal ethicists, and
the canons--you know, what the lawyers say you are allowed to do when
you are nominated to be a judge--have nothing to do with broad
questions like that. They deal with specific cases.
So let us say we get, as we would characterize it, or as I would,
stone- walled, no answers on anything.
As my colleague well knows, when I asked Miguel Estrada about
previous cases he liked or didn't like, he said: Well, I would have to
read the briefs.
I have asked subsequent witnesses how they feel on cases and they
have given answers to me. I had an interview with someone the President
is thinking of nominating in my State. I asked her what is a case you
like, what is a case you don't like? She was very forthcoming--you
know, that had already been ruled on. So we would be in a complete----
Mr. HATCH. Will the Senator yield?
Mr. SCHUMER. I would be happy to yield in a minute. We would be
giving away the store without accomplishing our goal if we agreed,
before we heard the answers, that we would agree to a date certain on
the vote.
Perhaps we should have the hearing, see how he answers those
questions, and then see where we are. If he is much more forthcoming,
whatever his answers are, we might be able to make some progress. But
if he gives the same exact answers as he gave 3 weeks ago, I for one
could not agree to just having a vote on him unless we get the best
evidence, the written evidence, which the administration will not give
up. You are right. It is not Miguel Estrada, but it is the
administration which has nominated him. So they are not sort of players
from far away; they are part of this whole process. Other
administrations, Democrat and Republican, have given up the same types
of documents.
I don't want to get into a debate about that now, but that is our
confirmed view.
So an alternative which I cannot even--I would have to talk to my
colleagues about--would be: Let us have another day of hearings and
then let us see what happens there and see where we go. But I think it
would not make any sense, any sense whatsoever, to say today, or
tomorrow, we will have a vote as long as he comes back. Because what if
he does the same exact thing he did last time, which I know you find
was fulsome and reliable--not reliable, but fulsome and elucidating
testimony, but I found to be completely evasive.
I am happy to yield to my colleague for the purposes of another
question only.
Mr. HATCH. Sure. Let us be honest about it. If you are going to ask
him how he feels about a case or how he feels about the commerce
clause, I have to admit I don't think those are legitimate questions.
What he feels is not important. What he is going to do as a judge is
important.
I am hardly going to bring him back for another day, after we had one
of the

[[Page S3064]]

longer hearings for a Circuit Court of Appeals nominee, after it was
conducted by the distinguished Senator from New York and the Democrats,
when my colleagues on the other side have said it was a fair hearing,
questions were asked--I am hardly going to bring him back for another
day unless we have some sort of agreement we are going to have a vote.
Mr. SCHUMER. I'm sorry, I couldn't hear the Senator.
Mr. HATCH. I say I am hardly going to bring him back just on the
speculation he is going to answer questions the way you think he ought
to answer them when in fact he answered questions the way all of his
predecessors have answered them. Basically, they were answered this
way:
With regard to Roe v. Wade, he basically said regardless of my
personal feelings, I am going to uphold the law. That is the law. That
is what everybody has said who appeared before my committee when I was
chairman during the 6 years of the Clinton administration. They didn't
come out and say yes, I am for Roe v. Wade. If they had, I would not
have held that against them because I presumed they were, anyway. But
the fact of the matter is virtually every one of them basically said:
Regardless of my personal views, I am going to uphold the law, which is
what he said.
I guess what I am asking is--if you will give me a list of your
questions that you asked, that you feel there was not a forthright
answer--I don't know of any where there wasn't a forthright answer; it
may not have been what you wanted--I will be happy to take those back
to him again and get you answers that would be more detailed, if that
is what you want.
Or, as an alternative, would it be possible for us to have 1 day of
hearings where we encourage him to answer questions in more detail,
because that is what you appear to want--even though I thought his
answers were more than adequate--and I would attempt to do that. Of
course, with the approval of my side; if I can. I would work in good
faith to do that.
But I would certainly want to have the filibuster ended, because this
is a damaging thing to this institution, and it would be my way--if I
could do it and pull it off--of saying, look, we'll try to accommodate
our friends on this side, but let's be fair and let us have a vote up
or down.
It may be that vote will go the way you want it to go. You may vote
for him in the end. I don't know. But the point is, I would try to do
that in order to get this off of this filibuster, which I find
extremely dangerous, and even beyond consideration of Miguel Estrada.
It is something I had to stop, as chairman during my 6 years, because
we had a few on our side who felt we should filibuster people like
Marsha Berzon and Judge Paez and even Margaret Morrow.
As you know, as much as I have been maligned by at least one Senator
on your side, they would not have been sitting on the Ninth Circuit
Court of Appeals if it hadn't been for me, and I think some of the
accusations that have been made have been very unfair about the time I
was chairman.
Mr. SCHUMER. Let me reclaim my time because I am running out.
Mr. HATCH. But let me make that offer. I will either get him to offer
more detailed answers in writing or I will get him--I will do my very
best to have him answer more detailed answers in a 1-day hearing.

Mr. SCHUMER. Reclaiming my time, Mr. President.
Mr. HATCH. But I would want to have a vote.
Mr. SCHUMER. I make a counterproposal to my colleague. Either we have
him come back for 1 day, and the administration, his nominator,
releases the papers as Senator Daschle and Senator Leahy have asked,
and we agree to a vote ahead of time; the papers and a day of
hearings--again, I can only speak for myself that that would satisfy
me--or, in an effort to break the deadlock, we have the day of hearings
without any commitment. Because, in all candor--you know, the Senator
from Utah is a very fine lawyer and probably a lot better than I am.
But I am not going to give away the store for a pig in a poke.
If we were to agree to a vote right now and Miguel Estrada were to
come before us and just verbatim give the exact same answers he gave
before, we would not have accomplished anything.
So I say to my colleague, in an effort to break the deadlock which we
all want to break, believe me, let us have Mr. Estrada come back for a
day of hearings, no preconditions. There will be lots more people
paying attention to those hearings now. And let the American people
make a judgment as to whether he is being forthcoming or not. Maybe his
answers will change and they will say he is. Then we will decide where
we go from there.
Because I will say this: This is one place I disagree with what my
colleague said. To say, poor Mr. Estrada, he sat through 9 hours of
hearings and to ask him to do it again is not fair seems to me to be--
we are lawyers. Probably right now Mr. Estrada, who is earning a great
salary because he is an excellent lawyer, sits through far more than 9
hours to try to win a single case. This, appointment to the second most
important court in the land, is a lot more serious than any one single
case Mr. Estrada is arguing.
Mr. HATCH. Will the Senator yield?
Mr. SCHUMER. So I say to my colleague, to achieve a lifetime
appointment on this very serious court, Mr. Estrada ought to be willing
to sit--I am not saying we should do this--for a week or a week and a
half. He is 42 years old. He is likely to be on the bench for 30 years,
God willing he has good health. So that should not be the
consideration.
Mr. HATCH. Will the Senator yield?
Mr. DURBIN. Will the Senator yield?
Mr. SCHUMER. I yield to my colleague from Illinois.
Mr. DURBIN. Mr. President, I want to make this as brief as I can. I
commend the Senator from Utah coming to the floor. I would like to ask
this question of the Senator from New York.
I think you have taken a reasonable position. Having practiced law
for a number of years, as the Senator from Utah did, and I believe the
Senator from New York, you know, in the discovery process, when the
other side refuses to turn over a document, goes into this long fight,
you begin to suspect, on your side of the case, there is something very
important in that document.
These documents of Miguel Estrada have become the crux, the center
point, of the debate about what this man has said and done and thought
as assistant to the Solicitor General in the Department of Justice. So
I think the Senator from New York is right in insisting that be part of
any compromise ending this deadlock.
I also hope we will insist, on the Democratic side, that if we are
going to end this deadlock, we return to the regular order of the
Judiciary Committee, that we do not put three controversial nominees on
the calendar in the same day, that we do not ignore the blue slips
required of each Senator from the State, that we do not violate the
rules of the Senate that have been in place for 24 years in relation to
debate in the committee.
I think all of those would be a good-faith effort to go back to the
regular order and establish some comity and understanding between us,
which I hope will guarantee that we will not face this kind of
situation in the future.
Mr. SCHUMER. Answering my colleague's question, he is exactly right.
I am not someone who has practiced law, like my colleague from Illinois
and my colleague from Utah--I was elected to the assembly right after
law school--but every good lawyer knows, even every good law student
knows, that hearsay evidence is not as good as written evidence.
So when we hear all these people say--I have heard my good colleague
from Utah say: This one and this one and this one say he is great, and
this one and this one say he will follow the law. If my colleague truly
believes that, then he has nothing to hide in terms of giving up these
documents because they will show that Miguel Estrada will follow the
law.
The problem is, we have just as many people who worked with him in
the Solicitor General's Office who said: Oh, no, this guy is so far
over that he writes his own laws, and he would write his own laws.
Mr. HATCH. Name one. Name one person. Give me a name.
Mr. SCHUMER. I don't know which is true and which isn't.
His superior.

[[Page S3065]]

Mr. HATCH. Who? Bender?
Mr. SCHUMER. Bender, who was his immediate superior.
Mr. HATCH. That is the only name you can come up with?
Mr. SCHUMER. I am going to reclaim my time.
Mr. HATCH. Give me a break.
Mr. SCHUMER. He was his immediate superior. But the bottom line is
this: My colleague from Utah immediately discounts Mr. Bender because
he does not agree with his view on certain issues. OK. If, if, if, if
Mr. Bender is wrong, the documents will show it. If Mr. Bender is
right, the documents will show it.
Mr. HATCH. Will the Senator yield?
Mr. SCHUMER. Not yet. I will in a minute.
But the bottom line is, as my colleague from Illinois stated, when
somebody will not release documents, that you know can be released,
then you say to yourself, What is in there?
Again, we are not just dealing with one case. We are not dealing with
just one situation. We are dealing with a lifetime appointment to the
second most important court in the land.
Why won't Mr. Estrada or the administration--which is his sponsor,
his mentor in this particular situation--why won't he give up these
documents?
I will tell you what most people think when they hear about it. And I
have talked to my constituents, the few who ask me about this. They say
he is hiding something. Do I know he is hiding something? Absolutely
not. I have not seen the documents. But I tell you one thing: The great
lengths that the administration and my colleagues on the other side
have gone to not give up these documents makes one suspect there is
something there they do not want people to see.
So the documents are crucial. And I, for one, believe we cannot agree
to a date certain to vote until those documents are given up or unless
Mr. Estrada somehow answers the questions in a truly dispositive way.
By the way, I say to my colleague, he said everyone else answered
questions the same way. Absolutely not. And we have shown, in case
after case, in nominee after nominee--the very nominee after Mr.
Estrada, when I asked him the same exact question, was far more
forthcoming than saying, ``I can't,'' or ``I will follow the law.''
So the bottom line is, I would repeat my tentative offer--because I
would have to check with my colleagues--let's have a day of hearings of
Mr. Estrada and see where that leaves us, see if he gives the same
answers. And let everyone see him answer the questions the way we saw
him. And let's see if they think he is being forthcoming. And let's see
if they think--when he is asked crucial questions that will affect
people's live--he gives answers that satisfy people that he be
appointed to the second most powerful court in the land. That is a way
to resolve this.
Shakespeare once said: Me thinks the lady doth protest too much.
There has been so much protestation about figuring out Miguel Estrada's
record--not his legal qualities, not his story of being the son of an
immigrant coming to America when he was 17, not speaking English. That
is all great. He deserves a pat on the back for that. But that alone,
in my judgment, does not entitle him to appointment to the second
highest court in the land with a lifetime appointment.
I will be happy to yield to my colleague in 1 minute. But, again, it
is certainly worth, with all due respect, the chairman's time, and all
of our time, to hear him again. And maybe he will be somewhat more
forthcoming. And then maybe we can come up with a compromise.
Several Senators addressed the Chair.
Mr. SCHUMER. I yield to my colleague from Massachusetts for a
question.
Mr. KENNEDY. I thank the Senator for really----
The PRESIDING OFFICER. The Senator from New York has the floor.
Mr. SCHUMER. Yes.
The PRESIDING OFFICER. Does the Senator yield for a question?
Mr. SCHUMER. I yield to my colleague from Massachusetts for a
question only.
Mr. KENNEDY. Without losing his right to the floor.
Mr. SCHUMER. Without losing my right to the floor.
Mr. KENNEDY. Mr. President, first of all, I thank the Senator from
New York for his presentation today. I want to ask him a question or
two.
In looking at his position in the broader context--which I think is
fair to do, which is important for the American people to understand--
the debate on what institution should have the power for nominating
judges was an issue that was before the Constitutional Convention.
I heard earlier in the debate that the Senator from New York pointed
out this was an issue that was considered by the Constitutional
Convention--to just have the sole power with the President--and that
was overwhelmingly defeated--overwhelmingly defeated.
I ask the Senator whether he would not agree with me that at least it
appears there are some Members of this body who still believe it is the
President who has the sole power and kind of exercise of responsibility
that the Senator from New York and others have attempted to provide in
exercising an informed and balanced judgment in fulfilling their
constitutional role of advice and consent.
Does the Senator not agree with me that any fair reading of the
debates of the Constitutional Convention put a prime responsibility on
the Senate of the United States to exercise good judgment? And,
further, would he not agree with me that if there is not going to be a
response to Senators' inquiries, so they cannot have the information to
carry forward and make a judgment, then this is a failure of the
nominee in meeting their responsibility under the Constitution, being
nominated by the President of the United States?
Would the Senator not agree with me that this is a constitutional
issue? We hear a great deal about what is constitutional and that the
Senator from New York and others are basically undermining the
Constitution by refusing to let the Senate make its will. On the other
hand, I think the Senator, as I understand it, is doing exactly what
the constitutional Founders intended the Senate to do; and that is, to
have a shared responsibility and give a balanced and informed judgment
in meeting the requirements of the advice and consent provisions of the
Constitution.
I am just asking the Senator if he does not agree with me that we
ought to have some understanding among at least ourselves as to what
the role is because often we hear those voices saying, what are you
objecting to? The President has nominated him. Why aren't you just
going along? I would be interested in the Senator's answer.
Mr. SCHUMER. The Senator is right on the money. The bottom line is,
the Founding Fathers wanted the Senate to be actively involved in the
process. It is my understanding, as I read the Federalist papers and
the deliberations of the Founding Fathers, for a good period of time
they were so afraid of the President, so much like a king, having too
much power and knowing that judges would have lifetime appointments and
have absolute power, at least on the cases they rendered, that for a
long period of time they wanted the Senate to appoint the judges.
Mr. KENNEDY. Without the President involved?
Mr. SCHUMER. Without the President involved, exactly. I can't
remember if it was Madison or somebody else, but they argued it would
be too diffuse, that the buck will have to stop somewhere, so they were
going to have the President nominate. But to keep the President's power
in check, the very thing they intended--my good friend from
Massachusetts is exactly on the money--was that the Senate play an
active role.
Let me repeat, many of the very first Senators who debated whether
the first nominee, Mr. Rutledge, should become a judge on the Supreme
Court were members of the Constitutional Convention. We heard today
that of the first eight who showed up, six were members of the
Constitutional Convention. I don't know how many out of the original 22
because I think there were just 11 States that had ratified the
Constitution then. And guess what debate they had in rejecting Mr.
Rutledge? They debated his views on the Jay treaty, which was a treaty
involving France and England and all sorts of foreign entanglements, as
they used to refer to it in those days.
Let me say that if the Jay Treaty was legitimate grounds to determine

[[Page S3066]]

whether the Senate should consent, then certainly someone's views on
the commerce clause and the first amendment and the second amendment
and the fourth amendment and the 11th amendment and the right to
privacy and the right to free speech should be.
Let's just get some corroboration for my colleague's excellent
question. Here is what our good friend from Utah said when the shoe was
on the other foot, when President Clinton was nominating people, and
many of our colleagues on the other side were worried they would be too
activist, which meant too many people who would let their own liberal
views trump accurate interpretation of the law. I have great respect
for the Senator from Utah. He knows this stuff inside out.
He said:

Determining which of President Clinton's nominees will
become activists is complicated and it will require the
Senate to be more diligent and extensive in its questioning
of nominees' jurisprudential views.

Well, one day of hearings and no other record, is that extensive when
one is considering a lifetime appointment? I would argue not. It is not
even close to extensive enough.
Let me read another quote from Senator Hatch:

The careful scrutiny of a judicial nominee is one important
step in the process, a step reserved to the Senate alone . .
. I have no problem with those who want to review these
nominees with great specificity.
Well, I hope the Senator who had no problem then when Senator
Sessions and Senator Ashcroft and other Senators on the Judiciary
Committee wanted to ask a whole lot of questions--and believe me they
did, of the people they were worried about, the Paezes and the Bersons,
not to mention them, but all the nominees who never got hearings. Great
specificity? Nine hours of hearings for the second most important job
on the judicial side of the Government? Nine hours, when the answers,
when talking about his history, Miguel Estrada was specific. It is not
a character trait. It is only when he was asked his views on matters of
great judicial importance, this is with great specificity, to simply
say, on question after question: I will follow the law, is that
answering questions with great specificity?
Mr. KENNEDY. Would the Senator yield on that point?
Mr. SCHUMER. I am happy to yield.
Mr. KENNEDY. Was the Senator trying to elicit from the nominee the
outcomes of particular cases or was he inquiring of the nominee to have
the nominee's general understanding of the particular provisions,
constitutional provisions which are the basis for protecting individual
rights and liberties? If you listen to the debate, some would say the
members of the Judiciary Committee who were asking questions were
trying to basically unethically demand answers of the nominee as to the
outcome of particular cases. Nothing could be further from the truth.
As I understand, what the Senator is talking about now is to try and
gain an understanding about whether the nominee had an understanding of
the core provisions of the Constitution and the protections of those
core provisions and understood the context with which they were at
least passed or considered and interpreted over time.
Mr. SCHUMER. I thank the Senator for his question. He is exactly
right once again in terms of his question. No one said: How will you
rule on this case that is now in the lower courts in DC. No one said,
there is a case in Texas about a meat packing company that refuses to
go along with what the FDA wants them to or the Department of
Agriculture wants them to. No one asked even close to that degree of
specificity.
When one asks, what is your view on the commerce clause and how
expansively or narrowly it should be interpreted, what is your view on
the first amendment--I asked him, for instance, how it would affect his
view on campaign finance spending. These are not questions of specific
cases. In fact, the Senator was off the floor when I mentioned that I
have made inquiries of some of the legal ethicists in our country who
make a living by interpreting the canons of the ABA, what a lawyer can
and cannot do. Not one of them thought any of the questions even came
close in terms of the level of specificity.
One might think that was just a ruse, that that was a way to avoid
giving one's opinions. And when one sees the article that was in the
Legal Times in 1986, where it was reported that at a Federalist society
meeting, Judge Silberman, already a member of the DC Court of Appeals,
suggested to prospective nominees that Ronald Reagan might nominate,
don't answer the questions, that was the beginning. That was the seed
we are now seeing bear its evil fruit, which is to stonewall. And
basically the Senator was exactly right in his previous question, at
least in my opinion, going back to the view that the President should
appoint.
Do you know what these hearings would be? They would be hearings for
show.
Mr. KENNEDY. Will the Senator yield for another point?
Mr. SCHUMER. I am happy to yield.
Mr. KENNEDY. I can remember the time when the nominees for the
Supreme Court, nominated by Democrat or Republican Senators, when
Senators actually gave the questions to the nominees. I used to do that
for years and years so that the nominee would have an opportunity to
think about these issues and be able to talk about the fundamental
protections of the Constitution and constitutional rights. This was
never viewed to be a game in the Judiciary Committee. It was to try to
elicit from the nominee their understanding and the nature of their
kind of commitment to core values. That was always the case.
Now we find, as the Senator has historically interpreted, we can
never get the responses, the answers. I mentioned the other day about
understanding what the roles are of these two institutions. There is an
extremely important and vital responsibility on every Member of this
body in exercising their judgment. It is a shared responsibility. I can
understand the chairman of the Judiciary Committee would rather have it
so it is just the President's responsibility. But that defies history
and what our Founding Fathers wanted. This is a shared responsibility.

I again ask the Senator, how are we going to ever fulfill our
responsibilities under the Constitution when the nominees are basically
going blank, refusing to respond to members of the committee? I further
ask the Senator, is he not concerned this is beginning to be a trend,
in terms of nominees we are having now before the committee, where they
believe they just don't have to respond?
Mr. SCHUMER. Yes.
Mr. KENNEDY. Would the Senator agree this isn't just a matter for the
Senators from New York and Massachusetts, this is a matter for the
American people? That is what our Founding Fathers, who were the
architects of the greatest Constitution in the history of the world,
intended: If we fail to exercise our rights on this, we fail our
responsibilities under the Constitution? I feel that way very strongly.
I just inquire of the Senator.
Mr. SCHUMER. I thank my colleague. Again, I completely agree with him
on every one of the questions he has asked. I would like to cite for my
colleagues this article I mentioned. It was in the Legal Times of April
22, 2002. Here is a quote from the article:

President George Bush's judicial nominees received some
very specific confirmation advice last week: ``Keep your
mouth shut.''

That statement in that article makes a mockery, as my good friend
from Massachusetts has stated in his question, of the U.S.
Constitution. ``Keep your mouth shut.'' One has to ask: Why should you
keep your mouth shut? It is not because there is anything unethical you
did. I don't think Miguel Estrada has done anything unethical. It is
not because you are ashamed of your history or of something that
happened in your past. Why are these nominees being told to keep their
mouth shut, if this article is true?
We all know why. Because the people who are advising them are afraid
if they gave their whole views, they would be rejected not only by the
Senate but by the American people. And then there would have to be
something different. The Senator is exactly right. We are on the road
to mutilating our Constitution. I believe in this document. The older I
get, the more in awe I am of the Constitution. The Founding Fathers
called this country ``God's noble experiment.'' I believe that.
America took my family as refugees from Europe a hundred years ago--a

[[Page S3067]]

little more than that. They were discriminated against; they could not
have any kind of job; but they were given a chance. My father never
graduated from college and his son is a Senator. This is an amazing
place. It is not just in the way my teenage children would say it, but
in the biblical sense, an awesome place, where the angels tremble
before God in awe.
Part of that awe that we so cherish is the fact that we try to
fulfill what the Founding Fathers wanted and wished. For an immediate
political purpose, to put before the courts people who might be out of
the mainstream, to make a mockery of the process by having three
controversial court of appeals nominees appear on the same day so that
two could not be questioned, to change by fiat the blue slip rule,
which had been in existence for quite a while, and not debate and vote
on what should happen on the blue slip rule--but to just change it--to
then take a rule that had been in the Judiciary Committee since the
Senator was on the Judiciary Committee before in 1979----

Mr. KENNEDY. It was before.
Mr. SCHUMER. The rule was even before he was chairman. It said you
could debate an issue and not shut off debate, unless one member of the
minority side--by the way, it wasn't written for a 10-to-9 minority; it
could have been written for a 19-to-1 minority. On the Judiciary
Committee some comity would have to reign. To take all these, and then
this hearing, this nomination, where Miguel Estrada, being the good
student he is, basically kept his mouth shut, I don't care how many
thick books they put on the table. Read the answers, I say to my
friends in America. Compare them to the answers of other judges, and
then look at the fact that the only records we have of Miguel Estrada,
his work as an Assistant Solicitor General, where we could determine
how he thinks, other than by what he said at the hearing, where he
didn't answer dispositively on anything in terms of his views--and the
administration all of a sudden says we are not giving up such
documents--it makes you scratch your head and wonder.
So I say to my colleague--and I will relinquish the floor in a
minute--to me, this is not a fight over Miguel Estrada or Mr. Jeffrey
Sutton or Judge Cook or John Roberts or Mr. Bybee or Mr. Tymkovich or
any of the others; this is a fight for the sacredness of our
Constitution. This is not the first time people who are a lot smarter
than I am have tried to figure out ways around the Constitution and
just say they are invoking the Constitution. That has happened
repeatedly throughout our history.
But I believe, based on the patriotism that burns within me, based on
my belief that this America still is ``God's noble experiment,'' it is
our job to try to keep the flame of that Constitution burning brightly.
Part of that flame is to have a full vetting of nominees for the one
nonelected part of the Government, the article III part of the
Government; and to rush nominees through and say they don't have any
more time for a 40-year lifetime appointment, to say that they can
answer every question by basically obfuscating, I believe in my heart
of hearts is not what Madison or Hamilton or Jay or Washington or any
of the Founders intended.
I yield for a final question to my colleague from Massachusetts.
Mr. KENNEDY. I thank the Senator. This will be my last intervention
at this time. I wanted to ask whether this understanding and this
presentation is your understanding, again, about the Constitutional
Convention. I will take a moment. I ask him whether this is his
understanding as well.
On May 29, 1787, the convention began its work on the Constitution
with the Virginia Plan, introduced by Governor Randolph, which provided
``that a National Judiciary be established, to be chosen by the
National Legislature.'' Under this plan, the President had no role at
all in the selection of judges.
When this provision came before the convention on June 5, several
members were concerned that having the whole legislature select judges
was too unwieldy. James Wilson suggested an alternative proposal that
the President be given sole power to appoint judges.
That idea had no support. Rutledge of South Carolina said that he
``was by no means disposed to grant so great a power to any single
person.''
A week later, Madison offered a formal motion to give the Senate the
sole power to appoint judges, and this motion was adopted without a
single objection. On June 19, the convention formally adopted a working
draft of the Constitution, and it gave the Senate the exclusive power
to appoint judges.
July of 1787 was spent reviewing the draft Constitution. All the
decisions having been made, this issue was revisited three different
times. On July 18, the convention reaffirmed its decision to grant the
Senate the sole, exclusive power. James Wilson again proposed ``that
the judges be appointed by the Executive,'' and again his motion was
defeated.
The issue was considered on July 21 and the Convention again agreed
to the exclusive Senate appointment of judges.
In a debate concerning the provision, George Mason called the idea of
executive appointment of Federal judges a ``dangerous precedent.''
Not until the final days of the Convention was the President given
power to nominate. On September 4, 2 weeks before the Convention's work
was completed, the committee proposed the President should have a role
in selecting judges. It stated:

The President shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint . . . judges of the
supreme Court. . . .''

The debates made clear, however, that while the President had the
power to nominate the judges, the Senate still had a central role.
Governor Morris of Pennsylvania described the provision as giving----
Mr. SCHUMER. Will the Senator yield?
Mr. KENNEDY. Let me read this. Governor Morris of Pennsylvania
described the provision as giving the Senate the power ``to appoint
Judges nominated to them by the President.'' The Constitutional
Convention adopted this reworded provision giving the President the
power, with the advice and consent of the Senate, to nominate and
appoint judges.
It could not be clearer what our role is. It could not be clearer as
to what the constitutional Founders wanted us to do.
I commend the Senator from New York for fulfilling that
responsibility with regard to nominees. There are others who believe we
ought to be a rubberstamp. The Senator from New York is speaking now to
his responsibilities as outlined by our Founding Fathers. I welcome the
opportunity to join with him. I commend him for his contribution to
this debate.
Mr. SCHUMER. I thank my colleague. Again--and I am going to yield the
floor; we have had it a long time--that sums it up: The central role is
the Senate. Can the Senate engage in a central role, not the
President--and we hear all the people who are criticizing what we are
doing, saying the President should be able to choose. Those very same
people want to be strict constructionists.
My colleague from Massachusetts, in outlining what happened at the
Constitutional Convention, shows who are the real strict
constructionists in this Senate today. It is those of us who are trying
to make sure the Senate has some real say in who the judges are--not a
hearing at nine at night, not failure to answer questions, not somebody
who will not give up their whole record. This is a job for which we
would have lines from here to Baltimore if we offered it to every
lawyer in America. How many of them would say: I won't give up my
records, or I won't come and answer your questions. This is a standard
that perverts the views of the Founding Fathers.
Again, I say to the American people, why is it Miguel Estrada and
those supporting him are so afraid that we learn of his views? If they
are mainstream, if they are moderate, if they are not way off the deep
end, would not release of documents, would not his answering questions
without evasion vindicate him? But instead, we have had a 3-,
4-, 5-week battle to get simple answers out of a man who seeks to be
appointed to the second most powerful court in the land that will
affect every one of the 280 million Americans who are living today,
their lives and the lives of their children and the lives of their
grandchildren. My colleague is exactly right.

[[Page S3068]]

Mr. KENNEDY. Will the Senator agree, if I can ask him one other
question, particularly seeing our leaders on the floor, would the
Senator not agree with me that actually this is the wrong priority for
the Senate to be debating for weeks and weeks when we have serious
economic challenges facing this country, and I see our Democratic
leader trying to get his proposal before the Senate, and the
Republicans saying no; or to try and get a prescription drug program
before the Senate. I do not know whether the Senator has had an
opportunity to see the President's proposal which effectively says to
the senior citizens they will no longer have the choice of their own
doctor if they want to get the prescription drug they need. A
prescription drug program should be part of the Medicare system and
should not be a gift to the HMOs and the private insurance companies.
Would not the Senator finally agree with me that we have had this
debate, and we ought to be debating the country's business in terms of
our economic recovery, the issues of prescription drugs, or even the
issue of going to war with Iraq?
Mr. SCHUMER. I thank my colleague for that question. First, I say to
him, certainly, and let the American people who are watching today and
everybody else understand the reason we have been on the issue of
Miguel Estrada is not the choice of the Senator from Massachusetts, the
Senator from New York, or our Democratic leader. It is the choice of
the Republican side. It is the choice of the Senator from Tennessee.
Any moment--we do not control the floor; we are in the minority--any
moment our friend from Tennessee, the majority leader, should say,
Let's start debating how we are going to start getting jobs for the
American people, more than 2 million of whom have lost jobs, any time
the majority leader from Tennessee should say, let's debate
prescription drugs, we would be off this issue of Miguel Estrada and
debating those issues. I say to my colleague, as long as our colleagues
insist on debating Miguel Estrada, I for one, and I speak, I think, for
many of us, will not let the Constitution be rolled over, will not
allow the very discussion that the good Senator from Massachusetts
outlined, where it is clear the Senate should have more power than the
President in appointing judges, be made a laughingstock. This document,
the Constitution, is far too sacred.
It is my preference, to be honest, that the majority leader, the
Republican leader from Tennessee say: Let's start debating other
issues. It is his choice. But as long as he does not, I will be here at
10 of 4 in the afternoon or 10 of 4 in the middle of the night to
defend this Constitution and prevent it from becoming a laughingstock
because of some temporary whim of a small number of people in this
country.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, the majority leader is here to propound a
request. Let me make a couple of remarks, and I ask unanimous consent
that I be able to retain the floor after he finishes with his request.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, all I can say is the Pharisees of the
meridian of time would have loved these arguments. In fact, they are
very worthy of that type of reasoning that existed during the meridian
of time of our society. To stand here and talk like they are supporting
and sustaining the Constitution when they are saying Republicans think
the President should have the sole power, nobody is arguing that. That
is what you call another red herring along with their requests for
documents that they know no self-respecting administration will give,
as evidenced by the seven former Solicitors General, four of whom are
Democrats, who said those documents should not be given because they
would interfere with the work of the Solicitor General, the people's
representative.
The fact of the matter is that the Founding Fathers--and I have
enjoyed this wonderful discussion by the Pharisees of modern times,
because to say we are arguing that only the President has some role
here is not only ridiculous, it is ridiculously sublime. It is almost
unbelievable for me to hear this as constitutional argument. Why, they
would be thrown out of the Supreme Court and asked never to come back
again by the liberals on the Supreme Court.
Madison himself offered a resolution to have a supermajority vote by
the Senate, and it was rejected 6 to 3--rejected 6 to 3. The
appropriate language is right here in article II of the Constitution.
If we are going to talk about the Constitution, let's talk about the
Constitution, not a bunch of gibberish. It says, talking about the
President:

He shall have Power, by and with the Advice and Consent of
the Senate, to make Treaties, provided two-thirds of the
Senators present concur;--

That is a supermajority vote written in the Constitution, where
supermajority votes should show up.

and he shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme Court,
and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which
shall be established by law; but the Congress may by Law vest
the Appointment. . . .

But it says, ``by and with the advice and consent of the Senate.''
Here are my colleagues acting holier than thou, acting as
constitutional experts, who are arguing that they should be able to
sustain a filibuster that would require a supermajority vote out of
that clause, which says advice and consent, which very clearly made it
clear they are talking about an up-or-down vote. When Madison tried to
get a supermajority vote, he was voted down. Madison, the Founder of
the Constitution, was voted down 6 to 3.
These specious arguments, in my opinion, are not worthy of the
Senate. There is a lot more I have to say, and I will complete my
remarks after the majority leader takes the floor to make a unanimous
consent request. I have never heard such arguments before as have been
made throughout this afternoon, and I intend to answer some of them. It
is not worthy of our time to answer all of them, but I am certainly
going to answer some of them.
I respect my colleagues. It can be truthfully said I love my
colleagues. People know that. And especially these two who have been
arguing back and forth. But, again, they would have made wonderful
Pharisees in the meridian of time because they would beat an issue to
death even though the issue does not exist.
In this particular case, some of these arguments never existed in
constitutional law or principle.
The PRESIDING OFFICER. The majority leader.

Unanimous Consent Agreement--S. Res. 71

Mr. FRIST. Mr. President, as in legislative session, I ask unanimous
consent that at 4:20 p.m. today, the Senate proceed to the
consideration of S. Res. 71 regarding the recent decision relating to
the Pledge of Allegiance; provided further that no amendments be in
order to the resolution or preamble, and that there then be 10 minutes
for debate equally divided between the two leaders or their designees;
that upon the use or yielding back of that time, the Senate proceed to
a vote on adoption of the resolution without any intervening action or
debate. I further ask unanimous consent that if the resolution is
adopted, the preamble be agreed to and the motion to reconsider be laid
upon the table.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. DASCHLE. Mr. President, I ask the majority leader if it is his
intention to schedule any additional votes today after we have had the
vote on this particular resolution.
Mr. FRIST. Mr. President, that would be the final vote of the day,
and that would be at 4:30.
Mr. DASCHLE. I thank the majority leader.

Electing William H. Pickle, of Colorado, as Sergeant at Arms and
Doorkeeper of the Senate

Mr. FRIST. Mr. President, as in legislative session, I send to the
desk a resolution and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report the resolution by title.
The senior assistant bill clerk read as follows:

A resolution (S. Res. 72) electing William H. Pickle of
Colorado as the Sergeant at Arms and Doorkeeper of the
Senate.

There being no objection, the Senate proceeded to consider the
resolution.

[[Page S3069]]

Mr. FRIST. I ask unanimous consent that the resolution be agreed to
and that the motion to reconsider be laid upon the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
The resolution (S. Res. 72) was agreed to, as follows:
Resolved, That William H. Pickle of Colorado be, and he is
hereby, elected Sergeant at Arms and Doorkeeper of the Senate
effective March 17, 2003.

Mr. FRIST. Mr. President, I welcome and introduce to my colleagues,
which the Democratic leader and I have had the opportunity to do to our
respective caucuses today, Bill Pickle, to be our new Sergeant at Arms,
effective March 17. Currently, Bill is the Federal director at the
Denver International Airport. He was the first director appointed when
the Transportation Security Administration was created last year. Prior
to that point, he served briefly as the Deputy Inspector General at the
Department of Labor.
His real experience and career is with the Secret Service, which he
served for a period of 26 years. He served in a number of senior
manager positions, the most recent ones being Deputy Director for
Training and Human Resources, Special Agent in charge of the Vice
Presidential Division, and head of the Secret Service Congressional
Affairs Office.
Bill is a highly decorated Vietnam veteran. He served with the first
Air Cavalry Division from 1968 to 1969 as an infantry sergeant and
medevac helicopter doorgunner. Mr. Pickle attended American University,
as well as Metro State College in Denver, and holds a degree in
political science. He is married and has two children.
Again, I welcome him to this body.
The PRESIDING OFFICER. The minority leader.
Mr. DASCHLE. Mr. President, first let me commend the distinguished
majority leader for his choice in this proper position. In this time of
uncertainty and with the experiences that the Senate has endured over
the course of the last couple of years in particular, we are all the
more sensitive about the role and the responsibilities of the Sergeant
at Arms.
The Senate owes a big debt of gratitude to Al Lenhardt, the man who
has filled this position so admirably for the last couple of years. He
has endured, he has led, he has inspired. So we say farewell to Mr.
Lenhardt, and we acknowledge once again the extraordinary contribution
he has made not only to the Senate but to his country. I am proud of
his work. I am proud to call him a friend.
I am pleased that Bill Pickle has agreed to take on this enormous
responsibility. He comes extraordinarily well qualified. His
experiences will serve him well as he begins to undertake the
responsibilities and the expectations of the Senate as we look to the
many challenges the Senate faces in dealing with security and the many
other issues that will be on his desk as he holds this position. I
congratulate him. I wish him well. I know I can say without
equivocation that unanimously our caucus expresses our willingness to
work closely with him as he begins his work in the Senate.
I thank the distinguished majority leader, and I yield the floor.
Mr. FRIST. Mr. President, I also want to add my appreciation to Al
Lenhardt, our current Sergeant at Arms. I have had the opportunity to
work with Al closely in that he came right before the time when anthrax
first struck Washington, DC. I have had the chance to work with him on
an intimate basis through that challenge and also over the last year
and a half as he brought a current state-of-the-art discipline to that
position to give the protection we depend on each and every day.
I had the opportunity to share my gratitude directly with the
Democratic leader yesterday in his office as we met with Al and Bill
Pickle.

Unanimous Consent Agreement--The Moscow Treaty, Document No. 107-8

Mr. FRIST. Mr. President, I ask unanimous consent that at 12 tomorrow
the Senate proceed to Executive Session to consider Calendar No. 1, the
Moscow Treaty; provided further it be considered under the following
limitation: The treaty be considered advanced through its various
parliamentary stages, up to and including the presentation of the
resolution of ratification; all recommended committee conditions and
declarations be considered agreed to and provided further that all
amendments to the resolution of ratification be relevant; further, that
following the disposition of the relevant amendments and the conclusion
of the debate on the resolution, the Senate then immediately proceed to
a vote on the adoption of the resolution of ratification, as amended,
with no further intervening action or debate, and that following the
vote the President then be notified of the Senate's action.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FRIST. Mr. President, I want to turn to a final matter of
business for me, and it concerns the subject of the Estrada nomination.
I want to take a couple of minutes to comment on where we are today.
This nomination, as my colleagues know, has been pending on the floor
since February 5. It has been just about a month ago that the
distinguished chairman of the Judiciary Committee brought forth this
nomination. Over that period of time, we have had ample opportunity to
have a very good debate. We have had a thorough discussion, and we have
had thoughtful discussion, and we have had reasonable discussion. Both
sides of the aisle, indeed, have been patient, recognizing the
importance of this nomination.

We have listened very carefully to the arguments of the other side of
the aisle to see if there is any way possible we could get an up-or-
down vote, a vote to confirm or not to confirm, but to have the vote.
The response to that has been a filibuster, which has been ongoing now,
for an exceptional nominee.
Again, after a lot of time, a lot of focus, a lot of patience, a lot
of thorough discussions, I feel it is time to give more definition to
where we are in this nomination. Over this last month we have had 12
session days dedicated to the nomination. We have had active debate and
discussion for over 85 hours. We have put forth 17 separate unanimous
consent requests which have been denied. We have seen mounds of
editorial support accumulate from across the country. The latest count,
from 29 States and the District of Columbia, 72 editorials calling for
the end of the filibuster and/or support of Miguel Estrada; only ten
supporting the other side. We have had the McConnell-Miller letter
which was signed by 52 Senators, indicating strong support for Miguel
Estrada. We have had offers by the White House to make Miguel Estrada
available to Senators who might want to visit with him one on one.
I outline that to demonstrate we are doing everything possible to
achieve a very simple goal. That goal, consistent with the
Constitution, consistent with the advice and consent, is to have an up-
or-down vote on this nominee, allowing each Senator to express their
will, either yes or no.
As I said, the time has come, after being patient, to give increased
definition to the debate for people to actually stand up and be
counted. I have been denied the only other means I have to reach a
vote, and that is through unanimous consent. Thus I have to rely on my
only alternative now. That is to generate a vote so that people in this
body and indeed the American people can know where each Member stands.
That vote will be filing cloture. I do want to point out that filing of
cloture is intended to identify where individuals stand and in no way
means any walking away from this nomination. In fact, it is just the
opposite. If cloture fails, it is the real beginning, I believe, of
this important debate that has been underway now for almost 30 days,
but which we permitted to continue in order to have that up-or-down
vote. If cloture is successful, which I hope, we will be able to go
immediately to the vote and we will be able to have this nominee
confirmed. If Democrats go on record through this vote as supporting an
active filibuster, we and their constituents will be able to address
each one of them and ask for an explanation.
Filing of cloture represents, in my mind, an active campaign to
ensure this fine nominee ultimately is voted upon and thus will win
because we know we have the majority votes for him to be confirmed.
Thus, this is our first step.
By filing this cloture motion we will be, if unsuccessful, racheting
up the attention level for this well-qualified

[[Page S3070]]

nominee. Members will have that opportunity to decide whether this man
deserves that up-or-down vote I referred to. Members will get a chance
to say whether the President of the United States deserves to have his
nominee, the President's nominee, acted upon, voted upon, in this
Senate--again, an opportunity for the President's nominee to have an
up-or-down vote.

Cloture Motion

With that said, I now send a cloture motion with 51 signatures to the
desk.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The legislative clerk read as follows:

Cloture Motion

We, the undersigned Senators, in accordance with the
provisions of Rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on Executive
Calendar No. 21, the nomination of Miguel A. Estrada to be
United States circuit judge for the District of Columbia
circuit.
Bill Frist, Orrin Hatch, Trent Lott, Bob Bennett, Peter
Fitzgerald, Kay Bailey Hutchison, Lisa Murkowski,
Conrad Burns, John Warner, John E. Sununu, Lindsay
Graham, Jeff Sessions, Gordon Smith, Elizabeth Dole,
James Talent, Saxby Chambliss, Christopher Bond, Susan
Collins, Wayne Allard, Lamar Alexander, Norm Coleman,
Pat Roberts, Craig Thomas, Larry E. Craig, Olympia
Snowe, John McCain, James Inhofe, Jon Kyl, Lincoln
Chafee, Rick Santorum, Judd Gregg, Don Nickles, George
Allen, Richard G. Lugar, Charles Grassley, George V.
Voinovich, Mike Crapo, Michael B. Enzi, Thad Cochran,
Mike DeWine, Arlen Specter, Sam Brownback, Ben
Nighthorse Campbell, Richard Shelby, Ted Stevens, Chuck
Hagel, John Cornyn, Pete Domenici, John Ensign, Mitch
McConnell, Jim Bunning.
Mr. FRIST. For the information of all Senators, this vote will occur
Thursday morning. We will alert Members to the precise timing of this
vote.
At this time, I ask unanimous consent the live quorum under rule XXII
be waived.
The PRESIDING OFFICER (Mr. Chafee). Without objection, it is so
ordered.
The Democratic leader.
Mr. DASCHLE. I listened carefully to the words of the distinguished
majority leader and certainly understand his decision to file cloture.
Many of us had anticipated a cloture motion would be filed. We are more
than ready to have one or more votes when and if they are scheduled.
Those votes, of course, would not be necessary were the information we
requested from the beginning provided. We have simply asked that Mr.
Estrada fill out his application for this lifetime employment, as every
other one of his predecessors has, providing information about his
record, providing information about his position, providing information
in ways that will allow Senators a far better appreciation of the vote
they are taking on this important matter prior to the time he begins
serving on the second highest court in the land.
We welcome the vote. As I said, we will welcome subsequent votes if
they are filed. We believe the constitutional obligation we have as
Senators requires we demand the same degree of compliance to the rules,
the same degree of willingness to cooperate that all those who have
served in the past and have provided that information have been willing
to provide in their cases, as well.
We will certainly anticipate that vote, the recognition that this
debate goes on unnecessarily. It would not have to take 30 days. It
would not have had to take 12 legislative days. It would not have had
to take 85 hours for Mr. Estrada to be more forthcoming, more willing
to provide the information his predecessors have provided.
I understand the actions just announced by the majority leader. But I
will say it really does not change anything. The only thing that will
change the circumstances we currently face is if Mr. Estrada becomes
more cooperative and he fulfills his obligations under the
Constitution, as his predecessors have so ably done for so many years.
I yield the floor.
Mr. HATCH. Mr. President, one thing it does establish is that there
really is a filibuster by our colleagues on the other side. They have
been denying this right up to now, so that is why we have to have a
cloture vote to show that there is a filibuster; for the first time in
history, a true filibuster against a circuit court of appeals nominee.
That is a constitutional issue and it is an important constitutional
issue. I was really blown away by my colleague's assertion that we are
trying to just make an imperial President. That is not at all the case.
We know the Senate has an obligation to look at these judges. As a
matter of fact, whenever we say we treated their judges better than
they are treating Miguel Estrada, they are using a double standard on
Miguel Estrada, and they say their judges were not controversial.
Give me a break. I will be willing to ask Miguel Estrada to give
detailed answers to every question that was asked of Marsha Berzon,
every question that was asked of Judge Paez, every question that was
asked of Margaret Morrow. Those hearings lasted minutes. This lasted a
solid day, more than most nominees in the history of the country for
the Circuit Court of Appeals.
By the way, for those on the other side who keep trying to imply--I
was interested in my words that were put up. What was wrong with those
words? They were absolutely true. We should not have activist judges on
the bench.
I disagree with their characterization that activist means anything
but activist. I agree with Senator Schumer's discussion on activism. I
don't like activism from the left and I don't like it from the right. I
don't think it is right in either case. Activism is ignoring the law;
using your judicial position to make laws from the bench that you were
never nominated and confirmed to make.
Judges are not elected to make laws. The purpose of judges is to
interpret the laws made by those of us who have to stand for
reelection. We are the ones who make the laws. The President and the
executive branch also can make laws.
But where in the Constitution, or in anything said by the Founding
Fathers, does it say that a minority of the Senate has a right to
prevent a vote up or down on a President's nominee? Nowhere.
In that provision I read, where does it say you can have a
supermajority vote? In fact, the only supermajority vote mentioned in
article II is the clause I read from, that is a two-thirds vote for the
ratification of treaties. But in that same paragraph it said the Senate
has a right to advise and consent on nominees.
Those words they put up of mine regarding activist judges, I don't
see anything wrong with those words. They apply today, and I have
always gone by them. But to imply that their judges were not treated
properly when we put through 377 Clinton judges, the second all-time
record in the history of the Senate, in the history of the nomination
process, 5 less than the all-time champion Ronald Reagan, while 6 years
the Judiciary Committee was in the control of the Republicans, the
opposition party, where President Reagan had 6 years of his own party
to assist him--and to act like that was not a remarkable job of
fairness to President Clinton, again makes my point that these are
modern-day Pharisees who would distort anything in order to make their
arguments.
I would like to get to a couple of things that have really been a
little irritating to me. I have heard a lot of whining about last
week's Judiciary Committee markup where I had to rule we are not going
to filibuster in committee and we were going to have votes up and down
on the circuit court nominees.
I have also heard arguments that to have three nominees in one
hearing is just awful. It has never been done before. I am going to
talk about those two things just for a minute or two, because I think
it is important to understand.
First of all, on that rule, I checked with our parliamentarians, two
of them, in this body. They upheld me and told me I was right in the
interpretation of the rules that I made. But the rule they are hiding
behind is rule 4. They are saying that rule 4 prevented me from being
able to call for a vote unless I got at least one member of the other
side to agree.
By the way, each one of those judges had at least two members of the
other side in agreement, so there is nothing to complain about, even
then. But the text of rule 4 says this:

The chairman shall entertain a nondebatable motion to bring
a matter before the committee to a vote.

[[Page S3071]]

A nondebatable motion. There was no motion made. There was a point of
order raised which I overruled. There was an objection raised, which I
overruled. Listen to this again:

The chairman shall entertain a nondebatable motion to bring
a matter before the committee to a vote.

There has to be a motion. That didn't happen.

If there is objection to bringing the matter to a vote,
without further debate a rollcall vote of the committee shall
be taken and debate shall be terminated if the motion to
bring the matter to a vote without further debate passes with
10 votes cast in the affirmative, one of which is cast by the
minority.

That is the rule that allows any Senator to make a motion to bring
any matter to a vote, so long as that Senator has all of his own party
and one, at least one from the other. It is not a rule that can be used
to stop the chairman from having a vote and from ending debate, which
had clearly ended, and to stop a filibuster in the committee.
So all this whining and crying about that is a total
misinterpretation of the very expressly worded rule. You would think
they were mistreated. Not at all. They were treated very fairly. They
just want to be able to slow down this process so President Bush's
judges do not get hearings, they don't get markups in committee, and
when they come to the floor they are going to filibuster some of them--
maybe all of them, for all I know.
By the way, their argument there is specious. It is wrong. It is
irrelevant. It is a misinterpretation of the very rule they are citing.
And it is unworthy because I happen to know that they checked with the
parliamentarians who said I was right in what I did. And I was right in
what I did.
With regard to their other argument attacking me for putting three
circuit court of appeal nominees on one hearing, I put those three up
in the spring of 2001. I was told by the Democrats they didn't want to
go forward, that they would like me to give them a little more time. I
agreed.
In the intervening time, Senator Jeffords decided to go independent
and vote with the Democrats, and the committee chairmanship changed. So
I was unable to bring them up at that time. They will have been sitting
here for almost 2 years. These are some of the top appointees in the
history of the judiciary. I might add that John Roberts has been
sitting there for 12 years, three nominations by two different
Presidents. It just plain is not right.
I might also add that, having been attacked for holding what a number
of Members on the other side of the aisle called an unprecedented
hearing because the agenda included three circuit court nominees, you
might be interested to hear I have subsequently found out that January
29 hearing was the 13th time since President Carter's administration
that this committee has considered more than two circuit nominees in a
single hearing. The 13th time--not unprecedented, I would say. Hardly
at all.
But that is not all I learned. One of those 13 hearings was chaired
by Senator Kennedy, who was then the committee chairman, on June 25,
1979. I was there. That included seven circuit judges.
What they throw out is: Well, they weren't controversial. I assure
you that every Carter circuit judge was controversial. But there was a
comity in the Senate then and there was also a 62-vote majority of the
Democrats in the Senate versus 38 Republicans. But there was a comity,
that people just didn't raise the kind of ridiculous arguments that are
being raised today in the Judiciary Committee. I assure you, those were
controversial nominees, but nobody complained about that because of the
comity and also because of the overwhelming control of the Democrats.
They knew they could get away with it, and they did. And nobody really
raised a fuss about it.

They were all nominated by President Carter and all for the same
circuit court of appeals. Talk about balance, which is what we are
hearing right now from the other side.
Three weeks later, on July 18, 1979, Chairman Kennedy held another
hearing with four more Carter circuit nominees--all controversial--
maybe not all but controversial ones again.
Then, on September 21 of that year, he held yet another multiple
circuit hearing that included three circuit nominees. All three
hearings occurred within a 4-month period. So it is all right for them
to hold multiple circuit court nominee hearings, but it is an
unprecedented thing for us. I agree, it probably is, because I do not
know that we have ever been in charge long enough to do that before we
held three.
But I know this, I held, I think, 11 or 13 two-nominee hearings when
I was chairman, and Mr. Clinton, their President, was President. I
certainly do not mean to single out my friend Senator Kennedy, so I
should also point out that when Senator Biden was chairman of this
committee, he held two hearings that included three circuit nominees
each; one on July 21, 1987, another on October 5, 1990. Senator
Thurmond held five such hearings when he was chairman. And Senator
Eastland, back in November 1977, who was chairman at that time, held a
hearing for three circuit judges in one hearing. So much for the
precedented.
Senator Kennedy's advice and consent argument, while interesting, is
wrong on the law and wrong on the facts. His argument ignores the basic
underpinnings of the Senate's role in the advise and consent process.
In fact, I would submit that the other side's effort to demand Mr.
Estrada's personal views on certain legal issues is itself an
unconstitutional threat to the separation of powers inherent in our
system of government and to the Framer's desire to maintain an
independent judiciary.
It has never been the case that the Senate is constitutionally
entitled to an answer to any question it chooses to ask a nominee while
exercising its advise and consent responsibility. The reason for this
is clear: the Framers sought to ensure that the judicial branch would
remain independent of the legislative branch.
According to Federalist Papers 78, judicial independence ``is an
excellent barrier to the despotism of the prince'' and ``in a republic
it is a no less excellent barrier to the encroachments and oppressions
of the representative body.''
For this reason, the Constitution prohibits Congress from reducing
Federal judges' salaries, guarantees that judges will remain on the
bench ``during good Behavior,'' and allows Congress to remove them only
by impeachment. These protections were born of the Framers' fear that
the federal legislature, like King George III before it, would pressure
judges into reaching outcomes of which it approved, or that otherwise
were consistent with its interests.
The Framers' intent to insulate Federal judges from the political
influence of the legislative branch also informed their decision to
restrict the role of the Senate in the confirmation process.
The Senate's limited function is apparent from the Constitution's
very text. To state the obvious, the President holds the power to
nominate candidates to the Federal bench, while the Senate's role is
restricted to providing ``advice and consent.''
The Constitution assigns the Senate a limited role in the selection
of judicial nominees; it simply allows that body to ratify the
President's choices, or decline to do so. Put simply, the President
selects, then the Senate reviews and reacts.
As Alexander Hamilton explained in the Federalist No. 66:

There will, of course, be no exertion of choice on the part
of the senate. They may defeat one choice of the Executive,
and oblige him to make another; but they cannot themselves
choose--they can only ratify or reject the choice he may have
made.

This is not to say that the Senate must act as a ``rubber stamp'' to
a President's choices for the judiciary. As has been the case
throughout history, the Senate is entitled to detailed information
about a nominee's background, career and qualifications for the bench.
And Mr. Estrada has provided ample information to allow the Senate to
determine his qualifications.
First, it bears repeating that the American Bar Association
unanimously rates Mr. Estrada ``Well qualified'' for this position. The
Democrats' ``gold standard.''
Second, Mr. Estrada testified for a full day in the Senate Judiciary
Committee on a range of subjects, and then answered within followup
questions for committee members. It should be mentioned that only two
members of the

[[Page S3072]]

committee decided to pose such questions.
Third, Mr. Estrada has received broad bipartisan support from lawyers
who know him best, including former Clinton Solicitor General Seth
Waxman,
Vice President Gore's former Chief of Staff Ron Klain, former Clinton
Justice Department officials Randolph Moss and Bob Litt, as well as 14
former colleagues of his in the Solicitor General's Office. All have
written glowing recommendations of Mr. Estrada.
Fourth, the Senate is free to review the briefs and other publicly
available written work Mr. Estrada performed on behalf of clients in
the more than 15 Supreme Court cases he has handled during his career.
The record is voluminous.
All of this information is more than adequate to address Mr.
Estrada's qualifications. however, this body must, in order to maintain
the proper constitutional balance, refrain from seeking just the sort
of information Mr. Estrada's opponents now demand: his personal views
on legal issues.
Many distinguished Democrats have themselves noted that seeking
personal views simply is inappropriate:
Justice Thurgood Marshall made this point in 1967, when he refused to
answer questions at his confirmation hearing about the Fifth Amendment:

I do not think you want me to be in the position of giving
you a statement on the fifth amendment, and then, if I am
confirmed and sit on the Court, when a fifth amendment case
comes up, I will have to disqualify myself.

Lloyd Cutler, President Clinton's former White House Counsel who also
was at the other end of Pennsylvania Avenue at the same time as the
Senator from New York, disagrees with efforts to discern a nominee's
ideology during the confirmation process. According to Mr. Cutler:

It would be a tragic development if ideology became an
increasingly important consideration in the future. To make
ideology an issue in the confirmation process is to suggest
that the legal process is and should be a political one. That
is not only wrong as a matter of political science; it also
serves to weaken public confidence in the courts. Just as
candidates should put aside their partisan political views
when appointed to the bench, so too should they put aside
ideology. To retain either is to betray dedication to the
process of impartial judging.

Former Senator Albert Gore, Sr. also believed that efforts to discern
a nominee's personal views was inappropriate. Former Senator Gore noted
the following in connection with the 1968 nomination of Abe Fortas:

[A] judge is under the greatest and most compelling
necessity to avoid construing or explaining opinion of the
Court lest he may appear to be adding to or subtracting from
what has been decided, or may perchance be prejudging future
cases.

The Senate Judiciary Committee agreed with Senator Gore, noting the
following in a Committee Report on the Fortas nomination that year:

Although recognizing the constitutional dilemma which
appears to exist when the Senate is asked to advise and
consent on a judicial nominee without examining him on legal
questions, the committee is of the view that Justice Fortas
wisely and correctly declined to answer questions in this
area. To require a Justice to state his views on legal
questions or to discuss his past decisions before the
committee would threaten the independence of the judiciary
and the integrity of the judicial system itself. It would
also impinge on the constitutional doctrine of separation of
powers among the three branches of Government as required by
the Constitution.

Finally, the ABA's Model Code of Judicial conduct also prohibits a
nominee from discussing his personal views. Canon 5A(3)(D) of the ABA's
Model Code of Judicial Conduct states that prospective judges ``shall
not . . . make pledges or promises of conduct in office other than the
faithful and impartial performance of the duties of office . . . [or]
make statements that commit or appear to commit the candidate with
respect to cases, controversies or issues that are likely to come
before the court.''
Mr. Estrada's opponents in essence are asking him to violate this
ethical cannon.
Mr. Estrada possesses an excellent record--one which merits
confirmation. Efforts by the other side to deny him confirmation in the
face of this excellent record are unfair and degrading to the
confirmation process.
The arguments made by the other side are not constitutional, they are
political. The other side knows that the Constitution prohibits this
body from intruding on the independence of the judiciary, and from
forcing candidates to provide us with their personal views on legal
issues. I hope the Senate will reject these unconstitutional efforts
and that we will vote soon to confirm Miguel Estrada.
During the course of this debate, there have been many serious
misrepresentations of the record on Mr. Estrada. I want to address in
some detail one of the more serious distortions, which concerns the
answers that Mr. Estrada gave to questions that members of the
Judiciary Committee asked him.
The charge being leveled against Mr. Estrada is that he did not
answer questions put to him in general, and did not answer questions
about his judicial philosophy in particular. This charge is pure bunk.
It is important to remember the circumstances under which this
hearing took place. The hearing was held on September 26, 2001. It was
chaired by my Democratic friend, the senior Senator from New York. It
lasted all day. Both Democratic and Republican Senators asked scores of
questions, which Mr. Estrada answered. And if any Senator was
dissatisfied with Mr. Estrada's answers, every member of the committee
had the opportunity to ask Mr. Estrada followup questions--although
only two of my Democratic colleagues did.
Now, a number of the questions Mr. Estrada was asked sought, directly
or indirectly, to pry from him a commitment on how he would rule in a
particular case. Previous judicial nominees confirmed by the Senate
have rightly declined to answer questions on that basis, just as Mr.
Estrada did.
Let me give you some examples.
In 1967, during his confirmation hearing for the Supreme Court,
Justice Thurgood Marshall responded to a question about the Fifth
Amendment by stating:

I do not think you want me to be in a position of giving
you a statement on the Fifth Amendment and then, if I am
confirmed and sit on the Court, when a fifth amendment case
comes up, I will have to disqualify myself.

During Justice Sandra Day O'Connor's confirmation hearing, the
Senator from Massachusetts, the former chairman of the Judiciary
Committee, defended her refusal to discuss her views on abortion. He
said:

It is offensive to suggest that a potential Justice of the
Supreme Court must pass some presumed test of judicial
philosophy. It is even more offensive to suggest that a
potential justice must pass the litmus test of any single-
issue interest group.

Likewise, Justice John Paul Stevens testified during his confirmation
hearing:

I really don't think I should discuss this subject
generally, Senator. I don't mean to be unresponsive but in
all candor I must say that there have been many times in my
experience in the last five years where I found that my first
reaction to a problem was not the same as the reaction I had
when I had the responsibility of decisions and I think that
if I were to make comments that were not carefully thought
through they might be given significance that they really did
not merit.

Justice Ruth Baker Ginsburg also declined to answer certain
questions, stating:

Because I am and hope to continue to be a judge, it would
be wrong for me to say or to preview in this legislative
Chamber how I would cast my vote on questions the Supreme
Court may be called upon to decide. Were I to rehearse here
what I would say and how I would reason on such questions, I
would act injudiciously.

Like these previous nominees, all of whom the Senate confirmed, Mr.
Estrada refused to violate the code of ethics for judicial nominees by
declining to give answers that would appear to commit him on issues
that he will be called upon to decide as a judge. But again and again,
he provided answers, in direct response to questions, that make his
judicial philosophy an open book.
Let me share some specific examples.
Responding to a question to identify the most important attribute of
a judge, Mr. Estrada answered that it was to have an appropriate
process for decision making. That, he said, entails having an open
mind, listening to the parties, reading their briefs, doing all of the
legwork on the law and facts, engaging in deliberation with colleagues
and being committed to judging as a

[[Page S3073]]

process that is intended to give the right answer. These are not
extreme views. I don't think we could ask more from any judge.
When asked about the appropriate temperament of a judge, he responded
that a judge should be impartial, open minded and unbiased, courteous
yet firm, and one who will give ear to people that come into his
courtroom. These are the qualities of Miguel Estrada. He testified that
he is and would continue to be the type of person who listens with both
ears and be fair to all litigants.
Mr. Estrada was asked a number of questions about his views and
philosophy on following legal precedent. Let me highlight a bit of that
exchange:
Question:

Are you committed to following the precedents of higher
courts faithfully and giving them full force and effect even
if you disagree with such precedents?

Answer:

Absolutely, Senator.

Question:

What would you do if you believe the Supreme Court or the
Court of Appeals had seriously erred in rendering a decision?
Would you apply that decision or would you use your own
judgment of the merits, or the best judgment of the merits?

Answer:

My duty as a judge and my inclination as a person and as a
lawyer of integrity would be to follow the orders of the
higher court.

Question:

And if there were no controlling precedent dispositively
concluding an issue with which you were presented in your
circuit, to what sources would you turn for persuasive
authority?

Answer:

In such a circumstance my cardinal rule would be to seize
aid from any place where I could get it--related case law,
legislative history, custom and practice, and views of
academics on analysis of the law.

This exchange illustrates clearly Miguel Estrada's respect for the
law and his willingness and ability to faithfully follow the law. He
further testified, in response to other questions:

I will follow binding case law in every case. Even in
accordance with the case law that is not binding, but seems
instructive on the area, without any influence whatsoever
from any personal view I may have about the subject matter.

This is what we expect judges to do. I can see no good reason why
anyone would be opposed to a nominee who promised to follow the law.
When asked about the role of political ideology in the legal process,
Mr. Estrada replied with a response that, in my view, was entirely
appropriate and within the mainstream of what all Americans expect from
their judiciary. He said:

[A]lthough we all have views on a number of subjects from A
to Z, the first duty of a judge is to self-consciously put
that aside and look at each case with an open mind and listen
to the parties. And, to the best of his human capacity, to
give judgment based solely on the arguments on the law. I
think my basic idea of judging is to do it on the basis of
law and to put aside whatever view I might have on the
subject to the maximum extent possible.

When asked about his views on interpreting the Constitution, Mr.
Estrada was forthright and complete in his responses. For example, in
an exchange regarding the literal interpretation of the words of the
Constitution, Mr. Estrada responded:

I recognize that the Supreme Court has said on numerous
occasions in the area of privacy and elsewhere that there are
unenumerated rights in the Constitution. And I have no view
of any sort, whether legal or personal, that would hinder me
from applying those rulings by the Court. But I think the
Court has been quite clear that there are unenumerated rights
in the Constitution. In the main, the Court has recognized
them as being inherent in the right of substantive due
process and the Liberty Clause of the 14th Amendment.

Mr. Estrada was asked questions about the appropriate balance between
Congress and the courts. His answers make clear his view that judges
must review challenges to statutes with a strong presumption of the
statutes' constitutionality. For example, in responding to a question
about environmental protection statutes, he stated:

Congress has passed a number of statutes that try to
safeguard the environment. I think all judges would have to
greet those statutes when they come to court with a strong
presumption of constitutionality.

At the same time, he recognized that, as a circuit court judge, he
would be bound to follow the precedent established by Lopez and other
Supreme Court cases.
So, it is clear from the record that Mr. Estrada did answer the
questions put to him at his hearing. His judicial philosophy is an open
book. But if my Democratic colleagues are still inclined to vote
against him--as misguided as I believe that choice to be--they should
do so. Vote for him or vote against him; do what your conscience
dictates. Just votes. And stop the unfairness of this filibuster.
And let me make one more point. Even if my colleagues still believe,
despite the facts and precedent, that Mr. Estrada should answer more
questions, well they have their chance. In a February 27 letter, White
House Counsel Al Gonzales made the following offer.
Mr. President, I ask unanimous consent that a copy of this letter be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

The White House,

Washington, February 27, 2003.
Dear Senator Frist, Senator Daschle, Senator Hatch, and
Senator Leahy: I write in connection with the nomination of
Miguel Estrada. Some Democrat Senators have indicated that
they would like to know more about Mr. Estrada's record
before a vote occurs. As I stated in my letter of February 12
to Senator Daschle and Senator Leahy, we believe that the
Senate has had sufficient time and possesses sufficient
information to vote on Miguel Estrada. More important, a
majority of Senators have indicated that they possess
sufficient information and would vote to confirm him.
But if some Senators believe they must have more
information before they will end the filibuster of this
nomination, we respectfully suggest that there are three
different and important sources of information that have been
and remain available and that would appropriately accommodate
the request for additional information. We ask that you
encourage interested Senators to avail themselves of these
sources as soon as possible.
First, as I have written to you previously, individual
Senators who wish to meet with Miguel Estrada may and should
do so immediately. We continue to believe that such meetings
could be very useful to Senators who wish to learn more about
Mr. Estrada's record and character.
Second, Senators who have additional questions for Mr.
Estrada should immediately pose such questions in writing to
him. We propose that additional questions (in a reasonable
number) be submitted in writing to Mr. Estrada by Friday,
February 28. Mr. Estrada would endeavor to answer such
questions in writing by Tuesday, March 4. He would answer the
questions forthrightly, appropriately, and in a manner
consistent with the traditional practice and obligations of
judicial nominees, as he has before.
Third, Senators who wish to know more about Mr. Estrada's
performance and approach when working in the United States
Government--and, in particular, how that relates to his
possible future performance as a Circuit Judge--should
immediately ask in writing for the views of the Solicitors
General, United States Attorney, and Judges for whom Mr.
Estrada worked and ask them to respond by Tuesday, March 4.
In particular, interested Senators could immediately send a
joint letter to each of the following individuals for whom
Mr. Estrada has worked in the United States Government: Judge
Amalya Kearse, Justice Anthony Kennedy, former United States
Attorney Otto Obermaier, former Solicitor General Ken Starr,
former Solicitor General Drew Days, former Solicitor General
Walter Dellinger, and former Solicitor General Seth Waxman.
In our judgment, these men and women could provide their
views on Mr. Estrada's background and suitability to be a
Circuit Judge by March 4 without sacrificing the integrity of
the decisionmaking processes of the Judiciary, United States
Attorney's office, and Solicitor General's office. And their
views could assist Senators who seek more information about
Mr. Estrada.
We believe that these sources of information, which have
been available for some time, would readily accommodate the
desire for additional information expressed by some Senators
who have thus far supported the filibuster of a vote on this
nominee. We ask that you encourage Senators who have objected
to the scheduling of a vote to avail themselves of these
sources of information. And we respectfully ask that the
Senate vote up or down as soon as possible on Mr. Estrada's
nomination, which has been pending for nearly two years.
Please do not hesitate to contact me with any questions.
Sincerely,
Alberto R. Gonzales,
Counsel to the President.

Mr. HATCH. To my knowledge, no Senators have taken advantage of this
offer, which makes me question how serious they are about the merits of
Mr. Estrada's nomination, which brings me to another point. Mr.
Estrada's hearing was held under Democratic control of the committee on
September 26, 2002. If

[[Page S3074]]

there was any question about the quality of Mr. Estrada's testimony,
they could have held another hearing, since they controlled the
committee for another 3 months.
My colleague from New York has stated that, according to an article
that appeared in the Legal Times in April 2002, D.C. Circuit Judge
Laurence Silberman has advised President Bush's judicial nominees to
``keep their mouths shut.''
In fact, as the rest of the article explains, Judge Silberman simply
explained that the rules of judicial ethics prohibit nominees from
indicating how they would rule in a given case or on a given issue--or
even appearing to indicate how they would rule.
As the same article reported, Judge Silberman stated:

It is unethical to answer such questions. It can't help but
have some effect on your decisionmaking process once you
become a judge.

Mr. President, I ask unanimous consent that a copy of this article be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Judge Nominees Told To Speak Very Softly

On a panel last week, Silberman offered same advice he gave Antonin
Scalia

(By Jonathan Groner)

President George W. Bush's judicial nominees received some
very specific confirmation advice last week: Keep your mouths
shut.
The warning came from someone who has been a part of the
process: Laurence Silberman, a senior judge on the U.S. Court
of Appeals for the D.C. Circuit, told an audience of 150 at a
Federalist Society luncheon that he served as an informal
adviser to his then-D.C. Circuit colleague Antonin Scalia
when Scalia was nominated to the Supreme Court in 1986.
``I was his counsel, and I counseled him to say nothing [at
his confirmation hearings] concerning any matter that could
be thought to bear on any cases coming before the Court,''
Silberman said.
Silberman said his advice led to Scalia's speedy
confirmation by keeping the nominee out of trouble on Capitol
Hill. He also explained that the advice was intended to be
rather far-reaching.
Scalia called Silberman at one point, the latter recalled,
and told him he was about to be questioned about his views
about Marbury v. Madison, the nearly 200-year-old case that
established the principle of judicial review.
``I told him that as a matter of principle, he shouldn't
answer that question either,'' Silberman said. He explained
that once a prospective judge discusses any case at all, the
floodgates open and he would be forced to discuss other
cases.
``It is unethical to answer such questions,'' Silberman
said. ``It can't help but have some effect on your decision-
making process once you become a judge.''
In contrast, Silberman said, ``my friend Bob Bork''
ventured into the legal thickets and suffered for it. Bork
``thought he could turn the confirmation process into a Yale
Law School classroom,'' Silberman explained.
The Supreme Court nomination of Robert Bork, also a D.C.
Circuit judge, was defeated in 1987, party because Bork
expressed controversial views in this writings and on the
stand.
Silberman went on to say that for many nominees, landing a
judgeship might not be the best result. Referring to a recent
Supreme Court decision not to review a case brought by judges
seeking pay raises, Silberman said that anyone who is not
already wealthy ``faces an immediate decline in his or her
real income'' if seated on the federal bench.
``The first prize is not to get a hearing,'' he noted.
``The second prize is to get a hearing and not to be
confirmed. The third prize is to get confirmed.''
Other panelists at the Federalist Society's discussion on
judicial independence were Sen. Joy Kyl (R-Ariz.), former
presidential counsel Fred Fielding of Wiley Rein & Fielding,
and moderator Stuart Taylor Jr. of National Journal.

Mr. HATCH. This advice is consistent with Canon 5A(3)(d) of the ABA's
Model Code of Judicial Conduct, which states that prospective judges:

shall not . . . make pledges or promises of conduct in office
other than the faithful and impartial performance of the
duties of office . . . [or] make statements that commit or
appear to commit the candidate with respect to cases,
controversies or issues that are likely to come before the
court.

Justice Thurgood Marshall made the same point in 1967, when he
refused to answer questions about the Fifth Amendment during his
confirmation hearing for the Supreme Court. He said:

I do not think you want me to be in the position of giving
you a statement on the fifth amendment, and then, if I am
confirmed and sit on the Court, when a fifth amendment case
come up, I will have to disqualify myself.
Mr. President, my remarks make it very clear that they were
controversial nominees and these arguments are not worth the time they
have taken to make them. I think it is time to quit making the very
same type arguments and start talking about the truth.
The truth is, we have a filibuster on our hands. One of the
Democratic Senators even said on network TV 2 weeks ago they are not
filibustering. Well, now we know they are. So let's let everybody in
the country know that a double standard is being applied to Miguel
Estrada.

____________________