(Senate - March 09, 2005)

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[Pages S2297-S2304]
From the Congressional Record Online through the Government Publishing Office []


  Mr. ALEXANDER. Mr. President, during the last session of Congress, 
Senators on the other side of the aisle blocked an up-or-down vote 20 
times on 10 of President Bush's nominees for the Federal appellate 
courts. Filibusters were threatened against five more judicial 
nominees. With one possible exception, this has never happened before. 
The Senate has a 200-year tradition of majority rule when it comes to 
confirming judges. In fact, until the last session of Congress, the 
idea of not voting on a President's judicial nominee once it reached 
the floor was unthinkable.
  It would be difficult to imagine a case in which passions ran higher 
than during the confirmation proceedings for Justice Clarence Thomas in 
1991. Yet President Bush nominated Clarence Thomas in July of 1991, and 

[[Page S2298]]

months later the Senate voted to confirm him, 52 to 48. There was never 
any discussion of blocking his nomination by blocking an up-or-down 
  So in the spirit of compromise, I would like to, once again, offer my 
solution for avoiding what some in the minority call the ``nuclear 
option'' that would change Senate rules to prevent filibusters of 
President Bush's judicial nominees.
  In an address on this floor 2 years ago, on March 17, 2003, I said I 
would reserve the right to vote against any judicial nominee of any 
President but that I would not filibuster the qualified court nominee 
of any President. That was before I knew whether the President would be 
named Bush or Kerry.
  This is what I said then:

       Before I finish my remarks, I make this pledge. I may be 
     here long enough, and I hope it is a while, before I have an 
     opportunity to cast a vote for a nominee for a Federal 
     judgeship that is sent over by a Democratic President, but I 
     can pledge now how I will cast my vote. It will be the same 
     way I appointed 50 judges when I was Governor. I look for 
     good character. I look for good intelligence. I look for good 
     temperament. I look for good understanding of the law and of 
     the duties of judges. I will look to see if this nominee had 
     the aspect of courtesy to those who come before the court. I 
     will reserve the right to vote against some extremists, but I 
     will assume that it is unnecessary and unethical for the 
     nominee to try to say to me how he or she would decide a case 
     that might come before him or her. When it comes time to 
     vote, when we finish that whole examination, I will vote to 
     let the majority decide.

  That is what I said 2 years ago. I also said:

       In plain English, I will not vote to deny a vote to a 
     Democratic President's judicial nominee just because the 
     nominee may have views more liberal than mine. That is the 
     way judges have always been selected. That is the way they 
     should be selected.

  Mr. President, that was my pledge 2 years ago. That is my pledge 
today. And if a few other Senators of both parties would individually 
make this same pledge to eventually allow up-or-down votes on all 
judicial nominees, then there would be an end to this discussion of the 
so-called nuclear option.
  I have no doubt that changing the Senate's cloture rule by a majority 
vote is clearly constitutional. Some have argued that the Senate's 
cloture rule, which allows just 41 of us to block up-or-down votes, 
carries over from one Congress to the next by rule V. But no less an 
authority than the distinguished Senator from West Virginia, when he 
was majority leader, argued very persuasively and with great common 
sense that this is not true. He said:

       This Congress is not obliged to be bound by the dead hand 
     of the past. The first Senate, which met in 1789, approved 19 
     rules by a majority vote. Those rules have changed from time 
     to time. . . . So the Members of the Senate who met in 1789 
     and approved that first body of rules did not for one moment 
     think, or believe, or pretend, that all succeeding Senates 
     would be bound by that Senate. . . . It would be just as 
     reasonable to say that one Congress can pass a law 
     providing that all future laws have to be passed by two-
     thirds vote. Any Member of this body knows that the next 
     Congress would not heed that law and would proceed to 
     change it and would repeal it by majority vote.

  That was the Senator from West Virginia talking. So, very simply, the 
Constitution provides that 51 Senators can change Senate rules to allow 
a majority to cut off debate on a President's nominee of an appellate 
court judge.
  Now, that does not mean that we ought to rush to make a change in 
that way. To extend the analogy, nuclear weapons have been effective in 
world history because of the threat of their use, not because of their 
actual use. And that has been true here on this Senate floor.
  In the debates on the adoption of Rule XXII on the Senate floor in 
1917, and later modifications in 1953 to 1959, and then 1960 to 1975, 
the debate and eventual compromises were driven by the threat of the 
constitutional option, which we are discussing today.
  The chairman of our Judiciary Committee, Senator Arlen Specter, has 
said he ``intends to exercise every last ounce of [his] energy to solve 
this problem without the nuclear option.'' I hope he will continue that 
  The Senate protects the minority party's rights for a reason. In 
writings about early America, Alexis De Tocqueville warned that one of 
the potential failings of democracy would be the ``tyranny of the 
majority.'' South Africa succeeded in creating a constitutional 
government because the new Black majority was willing to protect the 
minority rights of White citizens. As we watch the people of Iraq 
struggle to create a constitutional government, we know that a major 
sign of their success will be whether they are able to include and 
protect the rights of Sunnis who are only 20 percent of the country but 
who formerly dominated the country.
  I can remember back when I came here as a legislative assistant to 
Howard Baker in the Senate in 1967, Republicans were the ones worrying 
about protecting minority rights then. There were 64 Democrats and 36 
Republicans. And then, 10 years later, when I came back to the Senate 
as an aide to Senator Baker for a few months, when he was elected 
Republican leader, there were 38 Republicans. In 1979, when the 
distinguished Senator from West Virginia made his persuasive argument 
that a majority of the Senate could change Senate rules, there were 58 
Democrats and 41 Republicans.
  So just as our Republican majority should be cautious about making 
changes that would lessen minority rights, I would respectfully suggest 
that the Democratic minority should be equally cautious about provoking 
such a change.
  One way, of course, to avoid provoking rules changes would be for the 
Democratic Senators who opposed the President's nominees in the last 
session to look them over again and reconsider their basis for 
  For example, I believe if some of the Senators on the other side 
would really study the record of Judge Charles Pickering of 
Mississippi, they would be impressed with his commitment to civil 
rights. At a time when it was hard to do, he testified against a grand 
wizard of the Ku Klux Klan in 1967, and did it in open court. At the 
same time, he put his children in public schools when many White 
Mississippians were putting their children in what were called 
``segregation academies.''
  Any Senator who carefully looks at the record of former Attorney 
General Bill Pryor of Alabama, I believe, would admire his record on 
civil rights. He was a law clerk for Judge John Minor Wisdom, probably 
the leading civil rights Federal judge of the last century. Bill Pryor 
showed, as attorney general, he could take a position on abortion, on 
prayer before football games, on reapportionment, and on displaying the 
Ten Commandments that were at odds with his personal views because he 
believed the decisions of the Supreme Court and the U.S. Constitution 
required it.
  Both Judge Pickering and Judge Pryor have served in recess 
appointments and have even more of a record now to consider favorably.
  But the other way to avoid a lengthy and damaging procedural battle 
is simply for individual Senators now to declare their willingness to 
support allowing an up-or-down vote of any qualified nominee for the 
bench by any President. This would apply to this Republican President's 
nominees or to some future Democratic President's nominees.
  I do not know what terrible grievances in the past have caused such 
strong feelings on the other side causing them to take these 
unprecedented steps to block an up-or-down vote on nominees once the 
nominee gets to the floor. As I say, there is a 200-year tradition--a 
200-year tradition--in this body of then moving to an up-or-down vote.
  It never happened before like this. And if it continues, even though 
I hope it does not, it will almost certainly force a Senate rules 
change. I hope we don't come to that. I have suggested two ways to 
avoid it. I have taken a step myself to forgo some of my rights as an 
individual Senator as one way to help solve the problem. I hope others 
will do the same.
  I ask unanimous consent that my remarks from March 17, 2003, be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Mr. President, I am a new Senator. I am aware of the 
     traditions of the Senate, one of which is that a new Senator 
     is not expected to say much--at least throughout the year is 
     not expected to say much--to begin with until they have 
     something of importance to

[[Page S2299]]

     say. So I have not said much. I had been planning to make my 
     first remarks on this floor next Tuesday on the issues I care 
     most about, which are the education of our children and 
     putting the teaching of American history and civics back in 
     its rightful place in our schools so that our children can 
     grow up knowing what it means to be an American. I planned on 
     doing that next Tuesday. But I have decided to make some 
     remarks today--earlier than expected because I am 
     disappointed in what I have heard in the debate about Miguel 
       Like my friend from Missouri, I have had the opportunity to 
     preside in the last few days. That is one of the honors that 
     are accorded new Members of the Senate. I have been listening 
     very carefully. My disappointment has increased with each of 
     these 10 days as the debate has continued.
       I am disappointed first because I believe our friends on 
     the other side of the aisle are being unfair to Miguel 
     Estrada. I am most disappointed in them because I believe if 
     the direction of this debate continues as it is going--and I 
     heard the comments of my friend from Missouri yesterday on 
     this same matter--if we continue in the same direction, we 
     run the risk of permanently damaging the process by which we 
     select Federal judges and by which we dispense justice in the 
     United States. I am disappointed because this is not what I 
     expected when I came to the Senate.
       I may be new to the Senate, but I know something about 
     judges. I am a lawyer. I once clerked for a U.S. Attorney 
     General. His name was Robert Kennedy. I once clerked for a 
     great Federal appellate judge. His name was John Minor Wisdom 
     of New Orleans. I once worked in this body 36 years ago for 
     Senator Howard Baker, a great lawyer. I watched this body as 
     it considered and confirmed men and women to the Federal 
     courts of this land. As Governor of Tennessee for 8 years, I 
     had the responsibility of appointing--and did appoint--nearly 
     50 men and women to judgeships all the way from 
     chancellorships to the supreme court.
       I know pretty well the process we have followed in the 
     Senate and in this country for the last couple of centuries.
       It is fairly simple. It can be expressed in plain English. 
     The Executive nominates, the Senate considers, and then 
     confirms or rejects the nomination; and in doing so, what the 
     Senators have always looked for, mainly, has been good 
     character, good intelligence, good temperament, a good 
     understanding of the law and the duties of a judge, and 
     whether a nominee seems to have courtesy for those who may 
     come before him or her. And it has always been assumed that 
     it is unnecessary--and, in fact, it is unethical by the 
     standards of most of the judicial canons in this country--for 
     the nominee to try to say how he or she would decide a case 
     that might come before him or her.
       Then, after all that examination is done in the Senate, 
     there is a vote. And under our constitutional traditions, the 
     majority decides.
       I have been listening very carefully, and that is not what 
     is happening. The other side has simply decided that it will 
     not allow the Senate to vote on the nomination of Miguel 
     Estrada. In doing so, it is doing something that has never 
     been done for a circuit court of appeals judge in our 
     Nation's history.
       In those hours that I have presided over this body in the 
     last few days, I have been listening very carefully to see 
     what reasons our friends on the other side could give for 
     coming to such an extraordinary conclusion about whom I have 
     come to learn is an extraordinary individual, Miguel Estrada.
       I have been listening carefully for the answers, especially 
     to these three questions: No. 1, what is wrong with Miguel 
     Estrada? What is wrong with him? No. 2, why can't we vote on 
     Miguel Estrada, after 10 days of debate? And, No. 3--most 
     importantly--why should we change the constitutional 
     tradition that a majority of the Senate will decide whether 
     to confirm Miguel Estrada? Because what they are saying, 
     really, is that he will need to get 60 votes--60 votes--
     instead of 51.
       I have had the privilege of listening to each of their 
     arguments. As my friend from Missouri knows, they first try 
     one argument, and it does not go so well. Then they move to 
     another argument, and it does not stand the light of day. And 
     then they move to another one.
       But let me tell you what I have heard as I have listened to 
     the debate.
       First, they said--it would be hard to imagine that anyone 
     could say this with a straight face, but we had many straight 
     faces on the other side of the aisle saying this--that he was 
     not qualified to be a Federal appellate judge.
       You do not hear that argument very much anymore because 
     that is almost a laughable comment if it were not such a 
     serious matter.
       But let's go over this. This man isn't just qualified; if 
     this were sports, he would be on the Olympic team, and he 
     would be getting an award for ``American Dream Story of the 
       Here is a man who came to this country at age 17 from 
     Honduras. He had a speech impediment. He spoke very little 
     English. And within a short period of time, he was attending 
     Columbia University, one of the most prestigious universities 
     in America.
       Then he went to Harvard Law School. Now, it is really hard 
     to get into Harvard Law School. It has great competition. 
     Everyone who is applying to a law school around the United 
     States of America this year--and I know a great many of 
     them--think about it. This young man, in a few years, was 
     admitted to Harvard Law School. And not only that, he became 
     an editor of the Harvard Law Review and graduated magna cum 
       This is a dream resume, but it is not even over.
       Then he went to the Second Circuit as a law clerk. Then he 
     became a clerk for a Supreme Court Justice. By now he was in 
     the top 1 percent of 1 percent of all law school students in 
     the country, with the kind of resume for a lawyer every law 
     firm in the country would want to hire. He has a record that 
     almost everyone would admire.
       Then he went to the Southern District of New York, one of 
     the most competitive places, to be hired for training there.
       Then he was in the Solicitor General's Office. To those who 
     are not lawyers or who do not keep up with this sort of 
     thing, just being in the Solicitor General's Office might not 
     sound like such a big deal, but those are the plum positions. 
     The way I understand that office, there are a couple of 
     political appointees there--the Solicitor General and his 
     Deputy--and there are about 20 career lawyers. Miguel Estrada 
     was one of those lawyers. They are there because they are not 
     just good, they are the best in America. They have the best 
     resumes. They have been the clerks to the Supreme Court 
     Justices. They are going to be the greatest lawyers. It is 
     the most competitive position in which you can be.
       And there he is, Miguel Estrada, coming here at age 17, 
     barely speaking English, making his way into there. He worked 
     there for the Clinton administration and the Bush 
     administration. Then he went to one of the major law firms of 
     America. And he has argued 15 cases before the Supreme 
     Court of the United States.
       That is an incredibly talented record. There is almost no 
     one who has been nominated for any judgeship in our country's 
     history who has a superior record. For anyone to have even 
     suggested for 15 minutes that Miguel Estrada is not superbly 
     qualified to be a member of the United States Court of 
     Appeals--for anyone to even suggest that--it is difficult to 
     see how one could do that with a straight face.
       Little has been made about what he did in the Solicitor 
     General's Office. I think it is worth talking about that. 
     These talented young men and women have the job of helping 
     the Solicitor General make decisions about what to do in 
     cases in which the United States is a party. That means they 
     review all the decisions that come against us, the United 
     States of America. They are the lawyers for us, the United 
     States of America.
       They write memoranda and they write opinion and they must 
     argue back and forth. And they must argue about every side of 
     every issue. And our friends on the other side have come up 
     with straight-face argument No. 2, which is that somehow Mr. 
     Estrada, who does not even have all those memoranda, should 
     be penalized because the U.S. Government does not want to 
     hand those memoranda, that were exchanged back and forth 
     between the various Solicitor General's assistants, over to 
     the Senate.
       We have never done that. There are seven living former 
     Solicitors General of the United States, and seven--all of 
     them--have written a letter to this body saying that has 
     never been done, and it never should be done, for obvious 
     reasons. If it were done, you would never have any 
     straightforward memoranda left in that office. It protects 
     us, the United States. And that never should even be 
     considered to be held against Mr. Estrada.
       So is he qualified? It is hard to imagine someone who is 
     better qualified. I consider it a great privilege to come to 
     the Senate and find a President who discovered such an 
     extraordinary person to nominate for the Court of Appeals for 
     the District of Columbia Circuit. Such a story should give 
     inspiration to men and women all over America, that this is 
     the country to which you can come, regardless of race or 
     background or whatever your condition, and dream of being 
     admitted to the best universities, finding the best jobs in a 
     short period of time, and being nominated by the President of 
     the United States for such a court.
       What a wonderful story. And what an embarrassing event it 
     is to have our friends on the other side to even take the 
     time of this Senate trying to suggest such a person is not 
     qualified. So let's just throw that argument away and put it 
     in the drawer.
       Since that argument did not fly, they then moved to 
     argument No. 2, which is equally difficult to offer with a 
     straight face, if I may respectfully say so. They said he has 
     no judicial experience.
       Now, this argument is still being made. I heard the 
     distinguished Senator from New York, last night, in an 
     impassioned address, right over on the other side, say he has 
     never been a judge, and we don't know what his opinions are. 
     Never been a judge--Miguel Estrada cannot be a judge because 
     he has never been a judge.
       Well, I am awfully glad that was not the standard that was 
     applied to Justice Felix Frankfurter when President Roosevelt 
     nominated him. He would never have been a judge before he was 
     a Justice of the Supreme Court.
       I am glad it was not the standard that was applied to Louis 
     Brandeis before he was nominated to the Supreme Court. I am 
     glad it was not the standard that was applied to

[[Page S2300]]

     Thurgood Marshall, the first African American who was ever 
     appointed to the Supreme Court of the United States. He had 
     never been a judge. And so should Thurgood Marshall have 
     never been a Justice because he had never been a judge?
       When I graduated from New York University Law School, the 
     dean came to see me and said I had a chance to be a messenger 
     down in New Orleans for a man that my dean, Bob McKay, said 
     was one of the three or four best Federal judges in the 
     country. His name was John Minor Wisdom, a great man and a 
     great lawyer. He had never been a judge before President 
     Eisenhower appointed him.
       Neither had Elbert Tuttle from Atlanta or John Brown from 
     Texas. The three of them became three of the greatest judges 
     in the South. They presided, having been appointed by a 
     Republican President, over the desegregation of the southern 
     U.S. They were among the greatest judges we have ever had, 
     and they had never been judges.
       Of 108 Supreme Court Justices who have been appointed, 43 
     of those have never been a judge. I have a list somewhere 
     here of judge after judge after judge. Earl Warren; Byron 
     White; Justice Powell; Justice Rehnquist; Justice Breyer; 
     Judge Wisdom's favorite friend on the second circuit, Henry 
     Friendly of New York. He had never been a judge before. 
     Charles Clark; Jerome Frank; John Paul Stevens; Warren 
     Burger; Harold Leventhal; Spottswood Robinson; Ruth Bader 
     Ginsberg, who had never been a judge before she was a 
     Justice. Does that mean she wasn't qualified to sit on this 
       Why would the other side be taking up the time of the 
     Senate at a time when we are concerned with war with Iraq and 
     the economy is hurting, by making that kind of argument? They 
     would be asked to sit down in any respectable law school in 
     America if they gave that answer. Yet they are here in the 
     Senate trying to persuade us that it makes a point.
       In 1980, I appointed George Brown of Memphis as the first 
     African American justice in the history of the State of 
     Tennessee. If George Brown had to be a judge before he had 
     become a justice, I could never have appointed an African 
     American justice, because there were no African American 
     judges at that time. Even today, given the paucity of 
     Hispanics and African Americans and women who are judges, if 
     we were to say that in order for someone to be a judge, 
     before he or she becomes a judge, we would have a terrible, 
     invidious discrimination against men and women who should not 
     be discriminated against, and I am sure my friends on the 
     other side don't want to see that happen.
       So even though we have spent days arguing that Miguel 
     Estrada should not be considered because he has never been a 
     judge, that argument has no merit to it whatsoever. We hear 
     it less and less now that it is on the tenth day.
       Well, those two arguments didn't fly because here is a 
     superbly qualified person. So they said he didn't answer the 
       I just had the privilege of hearing the distinguished 
     Senator from California and the distinguished Senator from 
     Minnesota spend a long time talking about that, saying he 
     hasn't answered questions. Well, Mr. President, I am not a 
     member of the Judiciary Committee, but I know they had 
     hearings and I know Members on the other side were in charge 
     of the Senate when they had the hearings. I know the hearings 
     could have gone on as long as they wanted them to because 
     they were in charge. If I am not mistaken, the distinguished 
     Senator from Utah was here. I believe they went on all day 
     long. The hearings were unusually long. Miguel Estrada was 
     there and he answered their questions. Every Senator on the 
     committee had the opportunity to ask followup questions in 
     writing, and two did. The Senator from Massachusetts and the 
     Senator from Illinois did that. Mr. Estrada gave those 
     answers in writing. He has now said to Members of the Senate 
     that he is available for further questions. He will be glad 
     to visit with them.
       What does he have to do to answer the questions? Why is 
     there a new standard for Miguel Estrada? Why do we say to 
     him, for the first time, tell us your views in a particular 
     case before we will confirm you? We have tradition rooted in 
     history that it is even unethical to do that. I appointed 
     50 judges, as I said, when I was Governor. When I sat down 
     with these judges, I didn't ask: How would you rule on TV 
     A and the rate case, or how would you rule on partial-
     birth abortion, in the abortion case; or what would you do 
     about applying the first amendment to the issue of whether 
     to take the Ten Commandments down from the courthouse in 
     Murfreesboro, TN, or how do you feel about prayer in the 
     schools, or if somebody says a prayer before a football 
       I didn't do that because I didn't think it was right to ask 
     a judge to decide a case before the case came before him, 
     which has been the tradition in this country. We are not 
     appointing legislators to the bench, or precinct chairmen, or 
     think-tank chairmen, or Senators; we are appointing judges. 
     They are supposed to look at the facts and consider the law 
     and come to a conclusion. But they say he didn't answer the 
       Mr. President, the only way I know to deal with that--
     because this side says one thing and that side says the 
     other, and since I am not on the Judiciary Committee--is to 
     read the questions and the answers. I wanted to see whether 
     he was asked some questions and whether he gave some answers.
       These are the questions and answers, Mr. President. This is 
     the record of the hearing of Miguel Estrada, plus a long 
     memorandum of questions from the Senator from Massachusetts 
     and the Senator from Illinois that he also answered. I will 
     not take the Senate's time to read all of the questions and 
     answers, but since they keep saying he didn't answer the 
     questions, let me give some examples.
       The chairman of the committee says: Mr. Estrada, we have 
     heard you have held many strongly-held beliefs. You are a 
     zealous advocate. That is great. You know, lawyers who win 
     cases are not the ones who say ``on the one hand, this, on 
     the other hand, that.'' They are zealous. But you also have 
     to make sure, if you are going to enforce the laws, that your 
     personal views don't take over the law. Senator Thurmond has 
     asked every single nominee I have ever heard him speak to--
     Republican or Democrat--to speak to that effect. What would 
     you say is the most important attribute of a judge, and do 
     you possess that?
       A very good question.
       Answer: The most important quality for a judge, in my view, 
     Senator Leahy, is to have an appropriate process for 
     decisionmaking. That entails having an open mind, it entails 
     listening to the parties, reading their briefs, going back 
     behind the briefs and doing the legal work needed to 
     ascertain who is right in his or her claims. In courts of 
     appeals court where judges sit in panels of three, it is 
     important to engage in deliberations and give ears to the 
     views of colleagues who may have come to different 
     conclusions. In sum, to be committed to judging as a process 
     that is intended to give us the right answer and not a 
     result. I can give you my level best solemn assurance that I 
     firmly think I have those qualities, or else I would not have 
     accepted the nomination.
       ``Does that include the temperament of the judge?'', asked 
     the chairman.
       Mr. Estrada said: Yes, that includes the temperament of a 
     judge. To borrow somewhat from the American Bar Association, 
     the temperament of a judge includes whether he or she is 
     impartial and openminded, unbiased, courteous, yet firm, and 
     whether he will give ear to people who have come into his 
     courtroom and who don't come in with a claim about which the 
     judge may at first be skeptical.
       The chairman said: Thank you.
       I submit that is a good answer. I appointed 50 judges and I 
     would have listened to that question. I would give him an A-
     plus on that.
       Here is the Senator from Iowa: Before I make some comment, 
     I want to ask three basic questions.
       This is in the hearing with Mr. Estrada. This is the man 
     who the other side says doesn't answer questions.
       The Senator from Iowa: In general, Supreme Court precedents 
     are binding on all lower Federal courts, and circuit court 
     precedents are binding on district courts within a particular 
     circuit. Are you committed to following the precedents of the 
     higher courts faithfully, giving them full force and effect 
     even if you disagree with such precedents?
       Mr. Estrada: Absolutely, Senator.
       How could you make a better answer than that? You could 
     either say yes or no. He said yes.
       The Senator from Iowa: What would you do if you believed 
     the Supreme Court or court of appeals had seriously erred in 
     rendering a decision? Would you, nevertheless, apply that 
     decision, or would you use your own judgment on the merits, 
     or the best judgment of the merits?
       Mr. Estrada: My duty as a judge, and inclination as a 
     person and as a lawyer of integrity would be to follow the 
     orders of the highest court.
       The Senator from Ohio: And if there were no controlling 
     precedent dispositively concluding an issue with which you 
     were presented in your circuit, to which sources would you 
     turn for persuasive authority?
       Mr. Estrada: When facing a problem for which there is not a 
     decisive answer from a higher court, my cardinal rule would 
     be to seize aid from any place I could get it. Depending on 
     the nature of the problem, that would include related case 
     law and other areas higher courts had dealt with that had 
     some insights to teach with respect to the problem at hand. 
     It could include history of the enactment, in the case of a 
     statute, legislative history. It could include the custom and 
     practice under any predecessor statute or document. It could 
     include the view of academics to the extent they purport to 
     analyze what the law is instead of prescribing what it ought 
     to be, and, in sum, as Chief Justice Marshall once said, to 
     attempt not to overlook anything from which aid might be 
       I give him an A-plus for that. That was a good question, 
     and he gave a superb answer, just the kind of answer I think 
     an American citizen who wants to appear before an 
     impartial court in this country would hope to hear. I do 
     not think we want to hear: Welcome to the court, Mr./Ms. 
     Litigant. We have here your Democratic court; we have here 
     your Republican court. If your views are all right, you 
     might get the right hearing. You would want a judge who 
     said what Mr. Estrada said.
       The Senator from Massachusetts, who has been extremely 
     critical of Mr. Estrada, asked a more detailed question. Mr. 
     President, you may be wondering why I am going into such 
     detail when this is available to the whole world, including 
     the Senators on the

[[Page S2301]]

     other side. The problem is perhaps someone has not bothered 
     to offer this book to our friends on the other side because 
     they keep coming down here while you and I are presiding day 
     in and day out for 10 straight days and saying Mr. Estrada 
     has not answered the questions. My suggestion is he has 
     answered question after question, and he has done a beautiful 
     job of answering the questions.
       Let me take a few more minutes and give examples of 
     answering questions.
       The Senator from Massachusetts: Now, Mr. Estrada, you made 
     the case before the court that the NAACP should not be 
     granted standing to represent the members. As I look through 
     the case, I have difficulty in understanding why you would 
     believe the NAACP would not have standing in this kind of 
     case when it has been so extraordinary in terms of fighting 
     for those--this is the NAACP--and in this case was making the 
     case of intervention because of their concern about the youth 
     in terms of employment, battling drugs, and also voting.
       In other words, Mr. Kennedy was saying: Mr. Estrada, how 
     can you do this when the NAACP is on the other side?
       Mr. Estrada's answer: The laws that were at issue in that 
     case, Senator Kennedy, and in an earlier case, which is how I 
     got involved in the issue, deal with the subject of street 
     gangs that engage in or may engage in some criminal activity. 
     I got involved in the issue as a result of being asked by the 
     city of Chicago--the last time I checked, the mayor of the 
     city of Chicago was a Democrat, a good mayor, but just so I 
     would not want anyone to think this was a partisan comment--
     which had passed by similar ordinance dealing with street 
     gangs. And I was called by somebody who worked for Mayor 
     Daley when they needed help in the Supreme Court in a case 
     that was pending on the loitering issue. I mention that 
     because after doing my work in that case, I got called by the 
     attorney for the city of Annapolis, which is the case to 
     which you are making reference. They had a somewhat similar 
     law to the one that had been at issue in the Supreme Court. 
     Not the same law. They were already in litigation, as you 
     mentioned, with the NAACP. By the time he called me--this is 
     the lawyer for the city--he had filed a motion for summary 
     judgment making the argument that you outlined. And he had 
     been met with the entrance into the case by a prominent DC 
     law firm on the other side. He went to the State and local 
     legal center and asked: Who can I turn to to help? And they 
     sent him to me because of the work I had done in the Chicago 
     case. Following that, I did the brief, and the point on the 
     standing issue that you mentioned is that in both Chicago and 
     in the Annapolis ordinance, you were dealing with types of 
     laws that had been passed with significant substantial 
     support from the minority communities. I have always thought 
     that it was part of my duty as a lawyer to make sure that 
     when people go to their elected representatives and ask for 
     those type of laws to be passed to make the appropriate 
     arguments that a court might accept to uphold the judgment of 
     the democratic people. In the context of the NAACP, that was 
     relevant to a legal issue because one of the requirements we 
     argued for representational standing--those who might be 
     listening may think this is awfully detailed, awfully 
     specific, awfully long. Mr. President, that is my point. 
     Senator Kennedy asked an appropriate and very detailed 
     question about an issue involving street gangs in Chicago 
     where Mayor Daley asked Mr. Estrada to help, and Mr. Estrada 
     gave Senator Kennedy a very detailed, courteous, respectful, 
     specific answer that has taken me 3 or 4 minutes to read, and 
     I am not through yet.
       The point is, the other side keeps saying he has not 
     answered questions when he has answered the questions. Not 
     only has he answered them, he has answered them in a way a 
     superbly qualified lawyer with his background might be 
     expected to answer.
       The Senator from Alabama: Mr. Estrada, if you are confirmed 
     in this position, and I hope you will be, how do you see the 
     rule of law, and will you tell us, regardless of whether you 
     agree with it or not, you will follow binding precedent?
       Mr. Estrada: I will follow binding case law in every case. 
     I don't even know that I can say whether I concur in the case 
     or not without actually having gone through all the work of 
     doing it from scratch. I may have a personal, moral, 
     philosophical view on the subject matter, but I undertake to 
     you that I would put all that aside and decide cases in 
     accordance with the binding case law and even in accordance 
     with the case law that is not binding but seems instructive 
     in the area, without any influence whatsoever from any 
     personal view that I may have about the subject matter.
       What Mr. Estrada was saying to the Senator from Alabama 
     was: Mr. Senator, with respect, I may not decide this case 
     the way you would like for it to be decided because I will 
     look at the case law and I will follow the case law, and I 
     might even decide this case the way my personal view would 
     decide it if the case law is different than my personal view. 
     In other words, I think Mr. Estrada is giving the answer that 
     most Americans want of their judges, regardless of what party 
     they are in.
       I will give a couple more examples, and I do this because 
     this has gone on now 10 days. All I hear from the other side 
     is he will not answer the questions, he is not answering the 
     questions, when, in fact, there is a book full of questions 
     and answers to which I believe law professors in the law 
     school I attended would give a very high grade.
       Here is the Senator from Wisconsin: With that in mind, Mr. 
     Estrada, I would like to know your thoughts on some of the 
     following issues. Mr. Estrada, what do you think of the 
     Supreme Court's effort to curtail Congress' power which began 
     with the Lopez case back in 1995, the Gun-Free School Zone 
     Act. That was a very controversial case. I remember my own 
     view on that. I would have voted against it, even though, 
     obviously, I am for gun-free school zones, but almost every 
     Senator voted for it because they did not want to sound like 
     they were against gun-free school zones, I guess, or whatever 
     the reason might have been, but it was a controversial issue 
     and a hard issue to vote against.
       Mr. Estrada: Yes, I know the case, Senator. As you may 
     know, I was in the Government at the time, and I argued a 
     companion case to Lopez that was pending at the same time and 
     in which I took the view that the United States was urging in 
     the Lopez case and in my case for a very expansive view of 
     the power of Congress to pass statutes under the commerce 
     clause and have them to be upheld by the court. Although my 
     case, which was the companion case to Lopez, was a win for 
     the Government on a very narrow theory, the court did reject 
     the broad theory I was urging on the court on behalf of the 
       In other words, Mr. Estrada was sticking up for the very 
     people who are saying he will not answer their questions. He 
     was there. That was his view, and he talks about it, and he 
     answered the question: Even though I worked very hard in that 
     case to come up with every conceivable argument for why 
     the power of Congress would be as vast as the mind could 
     see, and told the court so at oral argument, I understand 
     I lost on that issue in that case as an advocate, and I 
     will be constrained to follow the Lopez case.
       Here we are, Mr. President. Mr. Estrada took a position 
     that I would have voted against. I think he is wrong, but he 
     really did not take a position that I would vote against him. 
     He argued a case before the court that made the very best 
     argument he could make, arguing two lines of opinions. What 
     our friends on the other side are saying is, when he writes a 
     brief or argues a case on behalf of the United States, that 
     somehow that reflects the point of view with which they 
     disagree. I disagree with his brief. I would not consider 
     voting against him or anybody else based on that kind of 
     reason, a very complete answer.
       Then if I may, I will state two more. Again, I would not 
     normally think it was necessary for me to read the questions 
     and read the answers, except that virtually every Senator 
     from the other side who has come in has said he has not 
     answered the questions, so I want the American people and my 
     colleagues to know that if they want to know whether he has 
     answered the questions all they need to do is go to the 
     hearing record and read the question and read the answer.
       Here is a tough one from the Senator from California: Do 
     you believe that Roe v. Wade was correctly decided?
       There is no more a difficult question for a judge who comes 
     before the Senate, because that is a terribly difficult issue 
     about which we all have deeply held moral beliefs, and for 
     all of us almost there is only one right way to answer the 
     question, unless one believes that what judges are supposed 
     to do is to interpret the law and apply the law to the facts.
       Mr. Estrada's answer: My view on that judicial function, 
     Senator Feinstein, does not allow me to answer that question.
       Then he goes on to explain what he meant.
       I have a personal view on the subject of abortion, as I 
     think you know. But I have not done what I think the judicial 
     function would require me to do in order to ascertain whether 
     the Court got it right as an original matter. I have not 
     listened to the parties. I have not come to an actual case or 
     a controversy with an open mind. I have not gone back and run 
     down everything that they have cited. And the reason I have 
     not done any of those things is that I view our system of law 
     as one in which both me as an advocate and possibly, if I am 
     confirmed, as judge have the job of building on the wall that 
     is already there and not to call it into question. I have had 
     no particular reason to go back and look at whether it was 
     right or wrong as a matter of law, as I would if I were a 
     judge that was hearing the case for the first time. It is 
     there. It is the law, as has been subsequently refined by the 
     Casey case, and I will follow it.
       That is a complete answer to the most difficult question 
     that could be asked of a nominee for a Federal judgeship.
       Senator Feinstein: So you believe it is settled law?
       Mr. Estrada: I believe so.
       As I mentioned, if I understand the committee's rules, 
     every Senator on the committee has the ability to ask 
     followup questions. I know when I was confirmed by the 
     committee they asked me many followup questions and I worked 
     hard answering the questions 10 or 12 years ago when I was in 
     the first President Bush's Cabinet. These are serious 
     questions and serious answers.
       Here I think is a revealing question, and one which may 
     give us some idea of why we are in the 10th day of debate on 
     one of the most superbly qualified candidates ever nominated 
     for the court of appeals, a man who exemplifies the American 
     dream. The Senator from Massachusetts, Mr. Kennedy, asked 
     this question:
       Mr. Estrada, do you consider yourself a ``conservative'' 
     lawyer? Why or why not?

[[Page S2302]]

     Why do you believe that you are being promoted by your 
     supporters as a conservative judicial nominee? Do you believe 
     that your judicial philosophy is akin to that of Justices 
     Scalia and Thomas? Why or why not?
       What Senator Kennedy is looking for is to find out is this 
     a conservative lawyer. Is the suggestion that we may want 
     conservative decisions or liberal decisions? I thought we 
     wanted fair decisions, based on precedent, based on fact. I 
     thought we wanted judges who it would be impossible for us to 
     tell where they were coming from before they were coming.
       The response from Mr. Estrada is very interesting. He said 
     to the Senator from Massachusetts: My role as an attorney is 
     to advocate my client's position within ethical bounds rather 
     than promote any particular point of view, conservative or 
       A-plus for that, I would say.
       Mr. Estrada says: I have worked as an attorney for a 
     variety of clients, including the United States Government, 
     State and local governments, individuals charged with 
     criminal activity.
       Are we going to say criminal lawyers cannot be confirmed 
     because they represented people who murdered people and that 
     makes them murderers?
       Large corporations, indigent prisoners seeking Federal 
     habeas corpus, in those cases I have advocated a variety of 
     positions that might be characterized as either liberal or 
       Remember, this is from a career employee in the U.S. 
     Solicitor's Office in the Clinton and Bush administrations. 
     This is Miguel Estrada: While I am grateful for the wide 
     ranging and bipartisan support that my nomination has 
     received, I have no knowledge of the specific reasons that 
     might cause a particular supporter of my nomination to 
     promote my candidacy for judicial office. As a judge I would 
     view my job as trying to reach the correct answer to the 
     question before me without being guided by any preconceptions 
     or speculations as to how any other judge or justice might 
     approach the same issue.
       If all of the Senators would take the time to read Miguel 
     Estrada's answers, some of them might end up in a textbook of 
     appropriate answers, if they believe a judge's job is to 
     apply precedent and consider the facts and come to a fair 
       Miguel Estrada is qualified, and he is not just qualified, 
     he is one of the most qualified persons ever nominated for 
     the Federal court of appeals. If he, by his very candidacy, 
     represents the American dream that anything is possible, 
     coming here from Honduras at age 17 and making his way 
     through such a distinguished series of appointments, if he 
     has answered the questions in what I would argue is a 
     superior way, the way most nominees would be capable of 
     answering the questions, and I have read just a few of them--
     I can come back and take another 2 or 3 hours and read more 
     because there are hours of questions and answers--and if a 
     majority of Members of the Senate have signed a letter saying 
     they would vote to confirm him, then why can we not vote on 
     Miguel Estrada?
       The only reason can be that our Democratic friends want to 
     change the way judges are selected. They want to say it takes 
     60 votes instead of 51, and they want to say the criteria for 
     winning those votes is to answer the questions the way they 
       That will give us a Federal judiciary filled with 
     partisans, or an empty Federal judiciary because we will be 
     debating night after night because we cannot agree on whom to 
     nominate and confirm. Such a process, if carried on in 
     subsequent Congresses, will diminish the executive. It will 
     diminish the judiciary. It will reduce the likelihood that 
     facts will be considered and that binding precedent will 
     apply. In other words, it will reduce the chance that justice 
     will be done. It will reduce respect for the courts because 
     it will be assumed that if partisan views on the case are 
     what it takes to get confirmed by the Senate, then partisan 
     views are what it takes to win a case before the court.
       It reminds me of the story we tell at home about the old 
     Tennessee judge. He was in a rural county up in the mountains 
     and the lawyers showed up for a case one morning. He said: 
     Gentlemen, we can save a lot of time. I received a telephone 
     call last night. I pretty well know the facts. All you need 
     to do is give me a little memorandum on the law.
       We do not want a judiciary where those who come before it 
     believe the judges got their political instructions when they 
     were confirmed and that there is really no need to argue the 
       So Miguel Estrada is superbly qualified. Miguel Estrada has 
     answered question after question, and he has done it very 
     well. A majority of the Senate has signed a letter saying 
     they are ready to vote today to confirm Miguel Estrada, and 
     never in our history have we denied such a vote by filibuster 
     to a circuit court judge. It is time to vote.
       Before I finish my remarks, I make this pledge. I may be 
     here long enough, and I hope it is a while, before I have an 
     opportunity to cast a vote for a nominee for a Federal 
     judgeship that is sent over by a Democratic President, but I 
     can pledge now how I will cast my vote. It will be the same 
     way I appointed 50 judges when I was Governor. I look for 
     good character. I look for good intelligence. I look for good 
     temperament. I look for good understanding of the law and of 
     the duties of judges. I will look to see if this nominee has 
     the aspect of courtesy to those who come before the court. I 
     will reserve the right to vote against some extremists, but I 
     will assume that it is unnecessary and unethical for the 
     nominee to try to say to me how he or she would decide a case 
     that might come before him or her. When it comes time to 
     vote, when we finish that whole examination, I will vote to 
     let the majority decide.
       In plain English, I will not vote to deny a vote to a 
     Democratic President's judicial nominee just because the 
     nominee may have views more liberal than mine. That is the 
     way judges have always been selected. That is the way they 
     should be selected.
       I conclude in equally plain English, and with respect, I 
     hope my friends on the other side of the aisle would not deny 
     a vote to Miguel Estrada just because they suspect his views 
     on some issues may be more conservative than theirs.
       These are the most serious times for our country. Our 
     values are being closely examined in every part of the world. 
     Our men and women are about to be asked, it appears, to fight 
     a war in another part of the world. How we administer our 
     system of justice is one of the most important values they 
     are defending. We need to constrain our partisan instincts to 
     get them under control. We need to avoid a result that 
     changes the way we select judges. In my view, we permanently 
     damage our process for selecting Federal judges.

  The PRESIDING OFFICER (Mr. Vitter). The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, before Senator Alexander leaves the 
Chamber, I am pleased that I was late so he had to speak first and I 
could listen to him. His remarks were thoughtful, thought provoking, 
and conclusive. If Senators on the other side of the aisle will listen 
to what he said and think it through, they will understand that this 
situation is going to be resolved. If they continue to insist it be 
resolved their way, I believe the Senate will decide that they will 
change procedural rules.
  Having said that, I remind those who are listening and those who have 
lived through very recent history that there have been some contentious 
nominees that we have considered in recent times and that the American 
people can vividly remember. Let me remind those listening: We had the 
nomination of Judge Carswell years past. That was a highly debated 
nomination. All kinds of things were said about his qualifications, his 
capacity. There was enough enthusiasm against him--rancor--that if the 
filibuster had been used and brought to fruition, he probably never 
would have gotten enough votes to break the filibuster. He would have 
been defeated that way. But that did not happen. There was an up-or-
down vote, and he was defeated.
  Remember recently when we thoroughly debated Clarence Thomas, how 
many weeks that went on; how many days the debate went on. That 
controversial nomination was not filibustered. There was an up-or-down 
vote, just as we Senators on this side of the aisle are almost begging 
the Democrats to let happen for current nominees. It happened in the 
case of Clarence Thomas and he won by two votes. It is obvious, that if 
those who opposed him--and they opposed him with a great deal of 
certainty that he should not go on the bench--would have chosen the 
course of today, they would have used a filibuster. Why didn't they? 
They didn't because historically in the Senate, traditionally in the 
Senate, where there is majority support for a nominee, a filibuster is 
not used.
  Having said that, it is obvious to this Senator that somehow or 
another in the last 4 years there has been a new idea promulgated that 
the advice and consent function, which the Constitution says is our 
prerogative to give to Presidential nominees, allows the other side, 
when it has an objection to a nominee, to filibuster that nominee. 
There have been more filibusters in the last 4 years against judges 
than in all of this body's previous history. It appears that every time 
there is a contentious nominee, that tactic will be used. That idea was 
not in this body before 2000. That tactic was not used before to the 
same degree it is used now. It is an invitation, I say to my friends on 
the other side of the aisle, for the majority to decide that enough is 
  The idea that we want to protect the minority goes both ways. Senator 
Alexander is right. Many of us have been in the Senate on this side of 
the aisle when we were in the minority. I came here when we only had 38 
Republicans. We were the ones crying out for protection. But we didn't 
filibuster Federal judgeships. We didn't filibuster district

[[Page S2303]]

or circuit or Supreme Court nominees. That was for a number of years, 
not just one or two. For a number of years we were in the minority.
  But the problems with requiring a super-majority is a concept that 
has been discussed by our Founding Fathers. Alexander Hamilton wrote:

       To give the minority a negative upon the majority (which is 
     always the case where more than a majority is requisite to a 
     decision) is, in its tendency, to subject the sense of the 
     greater number to that of the lesser.

  Obviously, that is the case. Obviously, when we look at judges and 
history, the Constitution talks about advice and consent and clearly 
requires that a majority of the Senate consent. Our rules are not the 
only things that talk about advice and consent. The Constitution does. 
Our Founding Fathers, fully aware of this Hamiltonian quote, provided 
in the Constitution the events when more than a majority is required.

  The Constitution said to override Presidential vetoes required more 
than a majority; to remove Federal officers under impeachment required 
more than a majority; to ratify treaties required more than a majority; 
to expel a House or Senate member required more than a majority; and to 
propose constitutional amendments required more than a majority. It did 
not say such was required when we are exercising our advice and consent 
power. Had that been a situation in our governance that required a 
supermajority, it would have been easy for the Founding Fathers to 
write that in. But they did not.
  From this Senator's standpoint, the other side of the aisle, which 
talks so much about closing down Government if they don't get their way 
on this, ought to think it through carefully. Closing down the 
Government is something that ought to be used rarely. Even the words 
ought to be used carefully. ``Closing down the Government'' could mean 
we are going to stop funding education. It could mean we are going to 
close down all the national parks. It could mean we are not going to 
have enough money appropriated for our military. Closing down the 
Government, a threat from the other side of the aisle which they think 
would make us change our minds about this issue, is at least a two-
edged sword and probably only a one-edged sword. That sword will be: 
Woe to those who close down Government over issues such as this.
  Recall within the last 15 years, closing down Government was a 
threat, I regret to say, made by and carried out by some leadership in 
the House. The issue was thought by them to be paramount. But the 
public prevailed. The public said: The paramount issue is to keep your 
Government open, even if your cause is one you believe whole-heartedly 
in. From my standpoint, the threat is sufficient for me to seriously 
consider using this constitutional option so that advice and consent 
will be majoritarian instead of requiring 60 votes in the Senate.
  The reason is easy for me. The Senate as an institution--its rules, 
its process--is marvelous. I have been here a long time. I support it. 
It is set apart by free debate, by opportunity to amend. But there also 
is precedent in our rules. There are requirements that the Senate think 
carefully about what they are doing regarding as important an issue as 
advice and consent. Some think, that Senator from New Mexico has been 
here too long; he has frequently said he admires and respects the rules 
of the Senate and has become accustomed to them. I have frequently 
said, for those who don't like the rules, wait until you are here 3 or 
4 years--you will think they are great. Freshmen think we ought to get 
things done right now; forget the rules and the procedures. But let 
them stay here a term, and they understand what the Senate rules mean.
  Understanding all that and feeling as I do about these issues, it 
seems to me we cannot continue to deny a man like Miguel Estrada a seat 
in the judiciary when there is more than a majority of the Senate who, 
after hours of debate, is willing to have a vote. The other side knows 
that such a vote has a majority of support so they prevent a vote from 
occurring. You can't keep doing that and expect the majority to sit by 
and say: It is just the current rules, you can't change them; don't 
worry about it. In fact, that is a dangerous proposition.
  The bell will toll. If this is continued, there will be Members such 
as this Senator who will end up saying: We have had enough. We are 
willing to abide by the same rules when we are in the minority. It will 
apply to both Democrats and Republicans. We know some say we will be in 
the minority one day. Some of us are willing to say: Let it be the case 
for both, and let us rule by majority vote with reference to judicial 
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, I rise to offer an historical 
perspective on the very important issue of the Senate exercising its 
advice and consent responsibilities on judicial nominations. It has 
been the subject of considerable discussion, and I wanted to offer some 
thoughts on the subject myself. I have been around here long enough, in 
both the majority and the minority, to understand that a Senator may 
from time to time use a vote on a judicial nomination to protest the 
nomination or a particular course of action. But what we saw in the 
108th Congress was a wholesale departure from the norms and the 
traditions of the Senate, whereby the use of the judicial filibuster 
became a commonplace device to stop the President's circuit court 
  For the first time in history, a minority of Senators, on a repeated, 
partisan, and systematic basis, has prevented the Senate as a whole 
from discharging its constitutional obligation to provide advice and 
consent on judicial nominations.
  This level of obstructionism is truly unprecedented. As 
justification, those who support this approach have pointed to several 
nominees of President Clinton on whom it was necessary to file cloture. 
I was here during that period. I remember exactly what happened.
  The fact is it was the Republican leadership in the majority who 
filed cloture on these very controversial Clinton nominees. This does 
not show that the Republican Conference was trying to prevent their 
consideration. Rather, Republicans, who were Members of the opposition 
party of the President, filed cloture to advance their consideration--
to advance their consideration.
  If there is any doubt, one need only look at the cloture votes on two 
of the most controversial Clinton nominees, Marsha Berzon and Richard 
Paez, and then compare those cloture votes with the votes on the 
nominations themselves. Doing so reveals two important points.
  First, the cloture vote on these nominees was overwhelmingly in favor 
of ending debate--of ending debate--and proceeding to their 
confirmation. The cloture vote on the Berzon nomination was 86 to 13. 
So obviously there were 13 Senators trying to prevent Ms. Berzon from 
becoming a Federal judge. The cloture vote on the Paez nomination was 
85 to 14. Indeed, the vast majority of the Republican Conference--in 
fact, a supermajority of about 70 percent of our conference--voted for 
cloture. These plain facts dispute the notion that the Republican 
Conference was filibustering the Berzon and Paez nominations.
  In short, if I could be a bit poetic, a cloture vote does not a 
filibuster make. A cloture vote does not a filibuster make.
  A second point is even more telling. Many of the very same members of 
our conference who voted for cloture on these nominations then turned 
around and voted against confirmation because we had serious concerns 
about the Paez and Berzon nominations. Senator Lott, who was 
majority leader at the time, did that, and so did I, voted for cloture, 
believing that judges should not be filibustered for the purpose of 
ending their nomination--and then voted against the judge on the up-or-
down vote to which all judges are entitled. The confirmation vote on 
the Berzon nomination was 64 to 34. The

[[Page S2304]]

confirmation vote on the Paez nomination was 59 to 39. Obviously, the 
opponents of Paez could have killed that nominee by a filibuster if 
they had chosen to do so. Both times we approached the filibuster level 
of 41 votes. I know how to count votes, and if we had wanted to 
filibuster the Paez and Berzon nominations, I suspect we could have and 
probably stopped them both. But the Republican leadership did not whip 
our caucus to filibuster these two nominations. In fact, it did the 
opposite. To his great credit, Senator Lott urged our colleagues not to 
filibuster these two nominations despite the strong opposition to them 
within our conference.

  That is why Judge Paez and Judge Berzon have been sitting on the 
ninth circuit for the last 5 years. In fact, today is the fifth 
anniversary of their confirmation. They were confirmed on March 9, 
2000. And for those who point to the Paez and Berzon nominations to try 
to justify their filibusters, I emphasize again we are talking about 
Judge Paez and Judge Berzon. So given that many of my Republican 
colleagues and I opposed both the Berzon and Paez nominations as shown 
by our votes against the nominations themselves, why did we vote for 
cloture? We did so because we were mindful of a longstanding Senate 
norm and precedent that the Senate does not filibuster judicial 
nominations. That is an unwritten Senate rule. Even if one strongly 
disagrees with the nomination, the proper course of action under Senate 
norms and traditions, as they have consistently been understood and 
applied, is not to filibuster the nominee but to vote against him or 
her. That is precisely what a supermajority of my conference and I did 
on the Paez and Berzon nominations, who were two of the most 
controversial--these were extraordinarily controversial judges that 
President Clinton had named to the ninth circuit. My Republican 
colleagues and I honored Senate tradition. We followed the 
constitutional directive set forth in article II, section 12, that the 
Senate as an institution as reflected by the will of the majority of 
its Members, render its advice and consent on the President's nominees. 
We put propriety over partisanship.
  But that precedent has now been changed. Those norms and traditions 
have been upset.
  Therefore, I ask my colleagues to consider the ramifications of 
continuing down this path of institutionalizing this use of the 
judicial filibuster as a tool of obstruction. For more than 200 years 
we have recognized the careful balance our Founding Fathers struck 
among our three branches of Government. Judicial filibusters pose a 
danger to this constitutionally required separation of powers.
  I believe it is not too late to turn back. It is in the best 
interests of both great parties and the Senate itself that we restore 
the norms, traditions, and precedents of the past 200 years that have 
served this country so well. It is extraordinarily shortsighted. Our 
friends on the other side of the aisle will have the White House again 
one day, and the shoe will be on the other foot. They will rue the day, 
if this precedent is allowed to prevail, that they set this precedent. 
I think it is time we stood back, took a breath and thought about this 
institution and respected its norms and traditions.
  Mr. President, I yield the floor.