Gunsmith Excise Tax Simplification Act of 2003

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

On the appropriations bill.

I will be happy to yield at any time to them.

Mr. President, before I came to the floor, I understand the distinguished Senator from Iowa criticized me for having a double standard. If I recall correctly, he said, I believe, I should look in the mirror when I talk about double standards.

Also, during last night's debate, several of my Democratic colleagues attacked my record on moving Clinton nominees. I heard some of these attacks repeated this morning by the Senators from California. This surprised me and it very much disappointed me since I worked hard to get not only Judge Paez but also Marsha Berzon, now Judge Berzon, confirmed, despite the opposition to their nominations, and there was serious opposition. That is one reason it took so long for Judge Paez, and there were some very serious allegations. But I was able to fight through those, and I can guarantee this body that neither of those judges would have gone through had it not been for my work.

I might add, neither would have a whole bunch of the 377 Clinton judges who did get through--the second highest total of confirmed judges in the history of the country--had it not been for what I was trying to do to help my colleagues on the other side.

I understand my dear friend from Iowa is very bitter about what happened to one of his judicial nominees. I do not blame him for that. He has always been a friend. I am disappointed that he would attack me on the floor and accuse me of a double standard because he knows better, and if he does not know better, he ought to know better.

I was unable to get his nominee through for a variety of reasons. I do not want to go into them here. I feel badly because of that. I personally liked his nominee, but there were things I was able to do as chairman and there were things I was unable to do. The one point nobody can rebut is that President Clinton was treated very fairly in getting the second highest total of Federal judges through in the history of the country of any President. President Reagan got 382 judges through, 5 more than President Clinton. With regard to those 382 judges, President Reagan had 6 years of a Republican--his own party--Senate to help him.

President Clinton had 6 years of the Republican Party in charge of the Judiciary Committee, and I was chairman during those 6 years.

I think he would be the first to say that I helped him, or he would be a baldfaced liar. I know he is not that. So I would presume that he would be willing to admit, as a decent honorable person, that Senator Hatch worked closely with him in trying to get those 377 judges through.

Unfortunately, I was not able to get some through some nominees about which some of my colleagues on the other side of the aisle feel very bitter. I apologize to them. I feel badly about that because there are things I could do and things I just could not do. There were a lot of things people did not think I could do that I did do. I am not perfect any more than anybody else, but I can say this: I do not think any other Senator could have gotten done what I got done with regard to fairness for the Clinton nominees.

In contrast, I do not think what is happening to President Bush's nominees is fair at all. In fact, here we are in a filibuster for the first time in history against a Hispanic judge who has risen to the top of his profession, even though he has a disability. That bothers me a lot, to be honest with you.

I did work hard to get Judge Paez and Judge Berzon through and confirmed, despite the opposition to their nominations, which opposition was not without merit. There were some legitimate concerns on the part of some of the Senators on this side of the floor.

The fact remains that I lobbied for cloture on those two nominees, and

they were afforded an up-or-down vote, something Miguel Estrada is not being afforded. They were afforded an up-or-down vote as a result of my efforts. They were both confirmed and both sit today on the Ninth Circuit Court of Appeals, a very prestigious circuit court.

Let me say this. I will stay here all day and all night, if I have to, to defend my record on Clinton judges because it is very unfair for anybody who looks at the record to say I personally did not treat him well.

With regard to my friend from Iowa, I am disappointed he would attack me on the floor of the Senate, but I will say to him, I understand his feelings, his very deep feelings, and he felt very bitter that his nominee did not get through, a personal friend and somebody whom I personally liked.

With my Democratic friends complaining so vociferously about the Republican treatment of Clinton nominees, which is totally unjustified, in my opinion, it leads me to believe that this shabby treatment of Miguel Estrada is driven in large part by a Democratic goal of retribution. That is all we heard last night in the questions from the Democratic side: Why didn't you do this? Why didn't you do that?

If that is the way we play the game, my gosh, I can give 100 cases where this side ought to have some retribution against them. I, frankly, do not believe in that. Call it tit for tat if you want to, call it payback, call it what you will, but I, for one, am becoming more and more convinced with each Democrat who takes the floor to complain about the Republican treatment of Clinton nominees that their opposition to Miguel Estrada is more about revenge than it is about Mr. Estrada. That bothers me a lot, to be frank.

Mr. President, I also understand the distinguished Senator from Iowa said that people who know Mr. Estrada have called him a right-wing kook. I do not know anybody who has called him a right-wing kook, not anybody on the face of the Earth. The only persons who would do that are those who act irresponsibly, and I have not even heard any irresponsible people do that. So there is little or no reason for anybody on the floor of this Senate to demean Miguel Estrada, and that is what this debate has devolved to, and it bothers me.

I caution my colleague from Iowa to respect other people. We all make mistakes, and we all say things that perhaps we should not say, and I will treat it that way this one time. But I do not want ever again to hear anybody on this floor call Miguel Estrada a right-wing kook or any other nomination by President Bush, any more than we should have called some of the far-left judges who were nominated by President Clinton left-wing kooks.

We never did that, or at least I do not ever recall doing that. I certainly did not, and I do not recall anybody else doing it on our side.

I just wonder who those mystery people are who called Mr. Estrada a right-wing kook. The only person I know of who has gone on record saying anything negative about Mr. Estrada, out of all the persons who have worked with him, is Mr. Bender, who has been more than, I think, rebutted, both in committee and on this floor, by his own performance reviews of Miguel Estrada that could not have been more glowing. And then when he has a chance to say something nasty because Miguel Estrada is now nominated to the circuit court of appeals, he chooses to do so. It is beneath the dignity of a law professor to do that, especially after giving those glowing performance reviews, even though he says everybody got those. Everybody knows that is not true.

If it is true, then it is a sad commentary for our Government. But then again, even though he admits everybody got those glowing performance reviews, he claims the reason for that is because these are the best lawyers in the country. Reading between the lines of his letter, that is what he basically said. That is as much as saying Miguel Estrada is one of the best lawyers in the country.

How can he be so inconsistent? He is the only one I know, and even he, as low as his comments are, did not call Miguel Estrada a ``right- wing kook.''

He has no credibility. I am just sorry in some ways for the law students who have to take his classes. I would prefer law professors--I do not care if they are liberal or conservative. Most of them are liberal, but I would prefer them to be honest people. I prefer them to have some dignity about their comments. I prefer them to be decent people teaching our young adults.

It is a pathetic thing that almost every law school in this country has a whole raft of left-wing professors who, if they had to, probably could not make a living at the practice of law. Maybe they could make a living, but they could not stand the rigors and the difficulties of practicing law. It is a lot easier to teach two classes a week and pontificate from their high perches as liberal law professors to the detriment of some of these law students. It is a pathetic thing. Anybody who has gone to law school knows how far left an awful lot of those professors are.

Are they bad people because they are far left? No. Some of them are terrific teachers and terrific people. Most of them are honest, which is something I cannot say for Mr. Bender with the way he has approached this thing.

I remind my friend from Iowa that we have a standard in the Senate against relying on anonymous allegations, even though I have seen people on that side bring up anonymous allegations where Mr. Estrada could not even confront those making the allegations. That is just hitting below the belt. Senator Biden made it clear that should never happen, and yet it has happened in this Chamber and it has happened in committee. I, for one, am fed up with that kind of inappropriate behavior by Senators. It is beneath the dignity of these Senators to do something like that. Senator Biden's policy was: if they are not willing to face the person they are accusing, then they are not worthy of being listened to. I agree with him, and I intend to stick to that very same policy.

I am going to forget these derogatory comments by the distinguished Senator from Iowa. I have never held a grudge. It is one of my weaknesses as a Senator. I just plain cannot hold a grudge against my colleagues. I have had some of my colleagues come up to me and say, boy, you ought to have a grudge against that guy. I just cannot do it.

Personally, I love everybody in this body. And I think everybody knows that. It is against everything I believe to hold a grudge. So I am not going to do that and I am going to forget what was said today, but I do not want it ever said again. Nor do I want to have some stupid staffer putting words in the mouth of another Senator. That happens every once in a while. We should not allow staffers, no matter how bright they are or how stupid they are, to cause us to do things that are inappropriate on the floor of the Senate and to make accusations that are not justified against somebody who worked his guts out to try and help President Clinton get his judges through, because I believe the President of the United States has a right to have his judges voted on up or down.

I have made that clear throughout my tenure as chairman, and everybody knows it. I have had countless Democrat Senators say they know I am not responsible for some of the problems that happened. Then again how many are responsible over on my side, because 377 Clinton judges went through?

We were the opposition party putting them through. And they are complaining? We are in the second month of a brand new session of Congress and we cannot even get the first circuit court of appeals nominee, the first Hispanic nominated to the Circuit Court of Appeals for the District of Columbia, we cannot even get him a vote up or down because for the first time in history a true filibuster is being conducted against this Hispanic nominee. Now, that is a real double standard, not the one the distinguished Senator from Iowa is talking about.

People get emotional sometimes. I may be a little bit myself right now. I think I am somewhat justified under the circumstances, and I make allowances for that. I hope my colleagues will make allowances for me right now.

I keep hearing that Miguel Estrada has no record. That is a slander. And for those who have written it, it is a libel. The Judiciary Committee has confirmed numerous Clinton court nominees who, like Miguel Estrada, had no prior judicial experience. What a ridiculous argument, that a person

should not be on the bench because he has no prior judicial experience. Where would all those Clinton judges be? They would not be on the bench today if we had that as a rule, and neither would many of the top Supreme Court Justices in history, including Thurgood Marshall, whom nobody in this body would be against today--bless his departed soul. He, of course, had no prior judicial experience when he was nominated to the federal appellate bench.

A number of Clinton nominees worked in the Justice Department or other branches of the Federal Government, like Miguel Estrada, but Senate Democrats made no demands for their internal memoranda or privileged work product and, I might add, neither did we Republicans. We did not make those demands. We knew that would be a red herring to slow down the nominee.

We know this is a fishing expedition, and nobody in their right mind who understands government, who understands the separation of powers, who understands privilege, and who understands the right of the Solicitor General's Office to keep its own memoranda of recommendations on appeals, on certiorari, and on amicus briefs confidential would make this demand. It is one of the most ridiculous assertions I have seen, and yet that is the basis on which they are hanging this filibuster. There is nobody in any administration who would allow the Senate to muddle around and make public and politicize legal memoranda and recommendations, in those three areas at least--in other areas as well, but especially those three areas--appeal, certiorari, and amicus curiae recommendations.

Democrats are saying Miguel Estrada has no judicial experience, and therefore he should not be on the bench. What about Merrick Garland? I personally pushed Merrick Garland through. There were those who did not want to push him through, but before the end they all realized he was an exceptional man, a very good person, no more than Miguel Estrada is, but pretty darn exceptional, and he still is. He is a good judge. He was confirmed as a judge for the DC Circuit in 1997. He had never been a judge before. He had held several positions in the Department of Justice. Like Mr. Estrada, he was a partner in a prestigious DC law firm. But did anyone seek confidential memoranda from his time at the Justice Department? Absolutely not. We would not have stooped that low. To use it as a red herring so they could justify a filibuster, that is even stooping lower.

William Bryson is another one who was confirmed as a judge on the Federal Circuit in 1994. He had never been a judge. He held several positions at the Department of Justice and was an associate at a prestigious firm in town. Senate Democrats never asked for the confidential memoranda he wrote during his time at Justice. The list goes on.

Blane Michael was confirmed as a judge on the Fourth Circuit in 1993, his first judgeship, never having been a judge before. Why is it that he can be a judge and we should work to get him on the bench but Miguel Estrada should not be a judge because he had no prior judicial experience? Well, neither did Blane Michael, but he is sitting on the Fourth Circuit Court of Appeals, his first judgeship. He had been a Federal district court clerk and served as a Federal prosecutor in New York and West Virginia before becoming a partner in a law firm. He had virtually no published writings, just like Miguel Estrada. Again, however, no one tried to gain his confidential privileged memoranda from his time as a Federal prosecutor before confirming him, and we would not.

Arthur Gajarsa was confirmed to the Federal Circuit in 1997. He was a clerk to a Federal district judge, then worked as an in-house counsel at an insurance company and later as a special counsel at the Department of Interior before joining a law firm. Did Democrats demand his internal memoranda? After all, he, like everyone else mentioned, had never been a judge. But, no, he was confirmed like the rest without anyone reviewing his confidential work product.

Then there is Eric Clay, confirmed to the Sixth Circuit in 1997. He never had been a judge before. He was a law clerk to a Federal district court judge, and worked in a law firm. What did we know about him that we do not know about Mr. Estrada? Absolutely nothing. We did not seek his confidential memoranda. We confirmed him anyway. We did what was right.

Another was John Kelly, whom we confirmed for the Eighth Circuit in 1998, yet another Clinton nominee to the circuit court who had never been a judge. He had worked in the Office of General Counsel for the Secretary of the Air Force before going into private practice. But Republicans never sought his internal memoranda, and he had very few published writings.

What about Sid Thomas? He was confirmed to the Ninth Circuit Court of Appeals in 1996 and had never been a judge. In fact, he had not even had a clerkship. He also had very few published writings. Democrats, however, did not cry out about his lack of a record. The entire transcript of his hearings takes up less than 2 pages in the Record. Why is it that he was treated differently than Miguel Estrada? I suspect it is because we gave President Clinton's nominees the benefit of the doubt in almost all cases. But this crew on the other side is not giving this President the same fair treatment that we gave to President Clinton.

I could go on and on but I think I made the case. Democrats opposing Miguel Estrada consistently failed to seek internal memoranda for Clinton nominees who had no prior judicial experience and little in the way of publications. The Democrats' claim that they have to do so now for Miguel Estrada simply does not hold water.

Now, naturally, I guess they wouldn't want to get internal memoranda to use against their own president's nominees. They wouldn't want to go on a fishing expedition that might hurt their own nominees, but neither did we. Now why are we using this red herring to justify a filibuster against one of the finest nominees I have seen in 27 years on the Senate Judiciary Committee--Miguel Estrada?

Let me address, once again, the Democrat demand to hold Mr. Estrada's nomination hostage for confidential internal memoranda. The Department of Justice historically has not disclosed confidential, deliberative documents from career lawyers in the Solicitor General's Office in connection with a judicial nomination. The Senate historically has not even asked the Department to do so.

My Democratic colleagues are creating a new double standard that applies only to the nomination of Miguel Estrada. A double standard, why is that? I ask the people out there who are watching C-SPAN, why is it that all of a sudden they are asking for all these things from the only Hispanic nominee in the history of the Circuit Court of Appeals for the District of Columbia? I think everyone out there must know by now. I don't think I even have to spell it out, but maybe I should spell it out a little bit.

Every living former Solicitor General has denounced the Democrats' demands. Every one of them, four of whom are eminent Democrat former Solicitors General. I have said this before but I think it is worth repeating. That letter was signed by Democrats Seth Waxman, Clinton's Solicitor General; Walter Dellinger, one of Clinton's top people in the White House; Drew Days, and Archibald Cox; and by Republicans Ken Starr, Charles Fried, and Robert Bork.

All seven have said, in essence, that this is ridiculous, that the Justice Department should not turn over confidential recommendations on appeals, certiorari petitions, and amicus curiae petitions.

The Solicitors General explained that the frank exchange of ideas on which their office depends ``simply cannot take place if attorneys have reason to fear their private recommendations are not private at all but vulnerable to public disclosure.''

The letter concludes that:

[A]ny attempt to intrude into the Office's highly

privileged deliberations would come at a cost of the

Solicitor General's ability to defend vigorously the United

States' litigation interests--a cost that also would be borne

by Congress itself.

Now, longstanding historical practice confirms that deliberative memoranda are off limits during confirmation hearings. Since the Carter administration, the Senate has confirmed former Justice Department employees--even those with no prior judicial experience, as I have already explained--without demanding to see their confidential

memoranda. It should not adopt a new double standard for Mr. Estrada's nomination.

Since 1997, the Senate has approved 67 appellate nominees who previously worked at the Justice Department, including 38 with no prior judicial experience. The Department did not disclose deliberative memoranda for any of those nominations. In fact, the Senate did not even request such documents. Seven of the 67 were in the same position as Mr. Estrada. They had worked for the Solicitor General and had not been judges previously. These seven nominees were nominated by Presidents of both parties and were confirmed by Senates controlled by both parties. Again, the Justice Department did not disclose deliberative memoranda in any of these nominations. The Senate did not even request such a disclosure for good reason, because we knew it was improper.

None of the so-called disclosures cited by the Democrats are precedent for the sweeping demands they are making regarding Mr. Estrada. In fact, only two of their purported ``precedents'' have even involved lawyers who worked in the Solicitor General's Office. And the Democrats' examples did not involve turning over what the then-chairman of the committee, Senator Leahy of Vermont, demanded--amicus, certiorari, and appeal recommendations.

Let me address some of the specific examples my Democratic colleagues have represented as pressing for their demand. One is Frank Easterbrook, who is a judge on the Seventh Circuit. The Democrats' mere possession of a single memoranda, a 2-page amicus recommendation that Mr. Easterbrook wrote as an Assistant to the Solicitor General, does not suggest that the Justice Department waived any privileges or authorized it to be disclosed. The official record of the Easterbrook confirmation hearing contains no references to this document.

After comprehensively reviewing its files, the Justice Department concluded that it never authorized the release of the documents. It was probably leaked by some Democrat in the Justice Department. That makes it wrong. Yet it is being used as an example on the floor.

Last fall I sent a letter to Senator Schumer, then to Senator Leahy, specifically asking for information about how the Democrats obtained this memorandum. To this day I have received absolutely no response to my question. I think there is good reason for that--because the document should never have been leaked to begin with.

This single document provides no precedent for the Democrats' sweeping request for every document Mr. Estrada ever prepared, which is what they have asked.

Mr. President, I ask unanimous consent that the letters I wrote to Senator Schumer of New York and Senator Leahy of Vermont, inquiring about the source of the Easterbrook memos, be printed in the Record.

Let's take a closer look at another one of the Democrats' alleged examples. William Rehnquist, the current Chief Justice, during his hearings to be Associate Justice, refused to reveal the private advice he had given to other Justice Department officials while he was Assistant Attorney General for Legal Counsel.

He stated:

[I]nsofar as I may have been asked for advice in the

process of making administration policy decisions upon which

the administration has not taken a public position, there, I

think, the lawyer-client privilege very definitely obtains.

By the way, he was confirmed as a Justice on the Supreme Court.

Furthermore, on November 5, 1971, the Attorney General specifically refused to waive the attorney-client privilege after a Senator asked him to do so, stating:

I can well appreciate your personal, intense interest in

probing into all aspects of Mr. Rehnquist's work while at the

Department of Justice. I am sure you appreciate, however,

that it is essential to the fulfillment of my duties and

obligations that I have the candid advice and opinions of all

members of the Department. Further, I am sure you realize

that if I should consent to your request or other requests to

inquire into the basis and background of advice and opinions

that I receive from the members of my staff, it would be

difficult to obtain the necessary free exchange of ideas and

thoughts so essential to the proper and judicious discharge

of my duties.

The Rehnquist example is irrelevant for the additional reason that none of the information sought related to amicus, certiorari, and appeal recommendations. Indeed, Chief Justice Rehnquist never served in the Solicitor General's Office.

Let's look at a third example that my Democratic friends claim justifies the release of confidential Solicitor General Office memos-- Benjamin Civiletti. During his 1979 confirmation hearings to be Attorney General--and I

was there in the Senate Judiciary Committee at the time--the Senate did not request materials that he had prepared previously as a Department of Justice official. Rather, it simply sought assurances that Civiletti would cooperate with the Senate's oversight of the Justice Department in the future. Mr. Civiletti never specified which documents he would be willing to turn over or which documents would be privileged.

During his 1978 hearings to be Deputy Attorney General, the Senate obtained documents related to allegations that Mr. Civiletti had interfered with an investigation of an alleged kickback scheme involving Members of Congress. The documents related to specific charges of misconduct. Unlike during Mr. Civiletti's confirmation, there have been no allegations that Mr. Estrada engaged in any improper behavior or otherwise failed to discharge his duties.

As I recall it, Mr. Civiletti was not found to be wanting in that area either. None of the Civiletti materials were amicus, certiorari, or appeal recommendations. Indeed, Mr. Civiletti never served in the Solicitor General's Office.

Now let's turn to Brad Reynolds. The Senate sought and received materials in the course of pursuing specific allegations that Mr. Reynolds, while Assistant Attorney General for Civil Rights, failed to enforce the Voting Rights Act and the Civil Rights Act. As with Mr. Civiletti, the Department's disclosure was limited to specific cases of alleged misconduct. There have been no allegations that Mr. Estrada engaged in any improper behavior or failed to discharge his duties while working at the Solicitor General's Office. Significantly, although Mr. Reynolds had previously served as assistant to the Solicitor General, and it was a very-hard fought confirmation, the Senate never suggested that his appeal, certiorari, or amicus recommendations should be divulged--never. Nobody would have stooped to that level at the time.

Another alleged example that our friends have brought up is Jeffrey Holmstead. In 2001, the Senate requested 41 files that Mr. Holmstead created during his service as Associate Counsel to the first President Bush. The White House declined. After Mr. Holmstead's hearing, the Senate, based on its particularized concerns about one specific subject, requested documents related only to that matter. Because of the specificity of the Senate's concerns, the White House accommodated the committee by permitting review of documents related to that one subject matter while expressly preserving all privileges. Mr. Holmstead is no precedent for the current set of sweeping requests for every appeal, certiorari, or amicus recommendation that Estrada prepared during his years in the Solicitor General's Office.

The criticism that Miguel Estrada is refusing to provide the Senate with insight into his personal views does create a double standard. My Democratic colleagues did not require nominees of President Clinton to answer questions of this sort. In fact, many Clinton circuit court nominees refused to answer such questions. President Clinton's appeals court nominees routinely testified as to their judicial approach without discussing specific issues or cases that could come before them as a judge. A few examples illustrate the point.

Each of the nominees I am talking about was confirmed to one of the circuit courts of appeals.

First we have Merrick Garland. In the nomination of Merrick Garland to the DC Circuit, Senator Specter asked him:

Do you favor, as a personal matter, capital punishment?

Judge Garland replied only that he would follow Supreme Court precedent:

This is really a matter of settled law now. The Court has

held that capital punishment is constitutional and lower

courts are to follow that rule.

Senator Specter also asked him about his views of the independent counsel statute's constitutionality, and Judge Garland responded:

Well, that, too, the Supreme Court in Morrison v. Olsen

upheld as constitutional, and, of course, I would follow that

ruling.

Another example is Judith Rogers. In the hearings on Judge Rogers' nomination to the DC Circuit, she was asked by Senator Cohen about the debate over the evolving Constitution. Judge Rogers responded:

My obligation as an appellate judge is to apply precedent.

Some of the debates which I have heard and to which I think

you may be alluding are interesting, but as an appellate

judge, my obligation is to apply precedent. And so the

interpretations of the Constitution by the U.S. Supreme Court

would be binding on me.

My gosh, where is that any different from Miguel Estrada's answers? They are the same. Why the double standard? Why are we now demanding of Miguel Estrada something we didn't demand of the Clinton nominees?

She then was asked how she would rule in the absence of precedent and responded this way:

When I was getting my master's in judicial process at the

University of Virginia Law School, one of the points

emphasized was the growth of our common law system based on

the English common law judge system. And my opinions, I think

if you look at them, reflect that where I am presented with a

question of first impression, that I look to the language of

whatever provision we are addressing, that I look to the

interpretations of other State courts, and it may be

necessary, as well, to look to the interpretations suggested

by commentators. And within that framework, which I consider

to be a discipline, that I would reach a view in a case of

first impression.

Where is that different from Miguel Estrada's answers? Miguel Estrada answered basically the same way.

Judge Rogers also was asked her view of mandatory minimums and stated:

I am aware, Senator, of some of the debate on the pros and

cons, and certainly before I was a judge I was engaged in

comment on them. But as a judge, I have been dealing with

them strictly from the point of view of legal challenges to

them. I have sat on a case where a mandatory minimum sentence

was challenged, and we upheld it.

Finally, she was asked her view of the three-strikes law and stated:

As an appellate judge, my obligation is to enforce the laws

that Congress passes or, where I am now, that the District of

Columbia Council passes.

Why is there a different standard for Miguel Estrada? Those are the same answers, basically, that Miguel Estrada gave to these similar types of questions.

Let's take another example: Kim Wardlaw. In the hearing on Judge Wardlaw's nomination to the Ninth Circuit, she was asked about the constitutionality of affirmative action. She stated, in an answer similar to Miguel Estrada's answer to the same question:

The Supreme Court has held that racial classifications are

unconstitutional unless they are narrowly tailored to meet a

compelling governmental interest.

Why is there a double standard with regard to this Hispanic nominee when it was not utilized against these other nominees? These answers were perfectly all right and acceptable for these other nominees.

Now let's turn to Marsha Berzon and Robert Katzmann. In a hearing on their nominations to the Ninth and Second Circuits, Senator Smith asked each whether legislation to prohibit partial-birth abortion was unconstitutional. Judge Katzmann responded as follows:

I would say that that is an issue that--Senator--that is a

very important issue, and that as a judge, I would really

have to evaluate that issue in the context of a law that is

actually passed, and then in terms of a case or controversy.

In terms of adjudication, there are restrictions on judges

rendering advisory opinions on particular pieces of

legislation in the advance of passage. And then even after

passage, I think what a judge has to do is to evaluate the

case in the context of a real case or controversy.

Judge Berzon responded with the following:

And I essentially agree with that answer. . . . .It would

obviously be inappropriate to say anything further on that

precisely because the issue might come before a court on

which Mr. Katzmann or I could be sitting.

Why the double standard? Why aren't the answers Mr. Miguel Estrada gave given the same credibility as the answers of these two Clinton judges? Why is there a double standard? Why is he being treated differently?

I have heard countless colleagues get up over here and complain and moan and groan and try to come up with excuses for their vote against Miguel Estrada and for their filibustering for the first time in history a Hispanic judge, the first ever nominated to the Circuit Court of Appeals for the District of Columbia.

I have heard a lot of complaining. But there has not been one statement

of substance. Why is he being treated differently? Why should a Hispanic judicial nominee be treated differently than all these other non-Hispanic judges? It seems to me that he ought to be treated similarly, afforded respect. This is a man who has fulfilled the American dream as an example to countless Hispanic young people that you can make it in this society. But can a Hispanic who is deemed to be not only a Republican but a conservative--can that type of Hispanic make it? Well, I sure hope so.

Now, back to this Berzon and Katzmann matter, I interrupted Senator Smith's questioning on partial-birth abortion and noted to Senator Smith:

Well, Senator, if I could interrupt, you have asked some

very appropriate and good questions. . . Both of them have

said, in my opinion that they are not sure how they would

decide the case, and that they wouldn't want to give the

opinion that they have now without hearing all the facts and

evidence. . . . But they both say that that could likely come

before them and that they are going to have to decide it at

that time.

Now, those two Clinton judicial nominees, Judge Berzon and Judge Katzmann. Some might say that they provided nonanswers to important questions they were asked. But I think they provided legitimate answers for the important reason that those questions might come before them someday in the event of their confirmation.

Why should Miguel Estrada be treated any differently by my colleagues on their side when I personally counseled one senator on my side that the answers of these Clinton judges were sufficient?

They were appropriate answers that they gave because they shouldn't have been talking about cases that could possibly come before them.

Let me go to Judge Maryanne Trump Barry.

I am now talking about circuit judges who made it through the system without any of this rig marole that has surrounded trying to defeat Miguel Estrada.

In the hearing on Judge Barry's nomination to the Third Circuit, Senator Smith asked whether ``an unborn child at any stage of pregnancy is a human being.''

Senator Smith is not an attorney. But anybody on the committee can ask any question they want to ask. He asked whether ``an unborn child at any stage of pregnancy is a human being.''

That was a loaded question--no question about it.

Judge Barry responded:

Casey is the law that I would look at. If I had a personal

opinion--and I am not suggesting that I do--it is irrelevant

because I must look to the law which binds me.

My goodness. Why is Miguel Estrada being treated differently than Judge Barry, or any of these other circuit court of appeals judges who were not Hispanic? Why is he being treated differently? Why isn't he accorded the same respect? Why is he expected to do more? Why is it that it is tough for him? Why is it that my friends on the other side of the aisle who claim to be for civil rights and who claim to be for equal rights and who claim to be helpers to minorities are treating this man this way?

I hope everybody in America is asking that question--because I don't think they can answer it. I have to say that a lot of political things are done for political reasons. We are fighting for a Hispanic nominee to the circuit court of appeals. And you saw virtually every Republican in the Chamber last night fighting for Miguel Estrada.

Where were the Democrats? Backbiting, raising false issues, raising lousy issues, raising I think sometimes immature issues, raising irrelevant issues, raising red-herring issues, treating him totally different from the way they wanted their caucasian nominees to be treated.

Why is this different? Is it because Mr. Estrada is Hispanic? I don't believe that. I don't believe my colleagues are prejudiced against Hispanics. But I believe they don't want a Republican Hispanic to serve on the Circuit Court of Appeals for the District of Columbia no matter who is President, but especially when there is a Republican President. I don't think you can conclude anything else.

After watching these proceedings and after listening to these statements, where is one point of substance against that nominee? In all of this debate, where is it? It isn't there.

Why do they think his answers are insufficient when they are virtually identical to their non-Hispanic nominees' answers? Is it because they are trying to do a better job for the judiciary than the Republicans were trying to do? I don't think so--no better than this Republican was trying to do, I will tell you that. I was in a position to do a lot.

How about Raymond Fisher? In the hearing on Judge Raymond Fisher's nomination to the Ninth Circuit, Senator Sessions asked about Judge Fisher's own personal views on whether the death penalty was constitutional.

He had a right to do that. But Judge Fisher also had a right to respond. He responded:

My view, Senator, is that, as you indicated, the Supreme

Court has ruled that the death penalty is constitutional. As

a lower appellate court judge, that is the law that I am

governed by. I don't want in my judicial career, should I be

fortunate enough to have one, to inject my personal opinions

into whether or not to follow the law. I believe that the

precedent of the Supreme Court is binding and that is what my

function is.

That is exactly, in essence, the language that Miguel Estrada used. Yet he is being criticized. Why? Is it because, as some of the Hispanic Caucus in the House said, he is just not Hispanic enough; or that he hasn't done enough for the Hispanic community? What more can a young man do than to rise to the top of his profession as a Hispanic and as an example to every young Hispanic in this country--man and woman?

They are telling us what a Hispanic has to do to be accepted by the Democratic Hispanic Caucus in the House which is so partisan that they are undermining the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia. I think they should be ashamed.

As for Congressman Menendez asking me for an apology--is he kidding? I think the apology is owed to the whole Hispanic community by the Democrat Hispanic Caucus over in the House which is undermining every Hispanic judicial nominee in the future, if they are saying--if they did, if I recall it correctly--because he has no judicial experience he should not have the privilege of sitting on the Circuit Court of Appeals for the District of Columbia.

I have previously gone through more than two dozen Clinton nominees who had no prior judicial experience and who are now sitting on the circuit court of appeals.

In the joint hearing on Judge Fisher and Judge Barry, Senator Smith asked whether the nominees would have believed that there was a constitutional right to abortion without the Roe v. Wade precedent.

This is very similar to questions that Senator Schumer of New York asked certain nominees.

But I interrupted Senator Smith to say--to my own colleague on my own side, one of my close friends in the Senate--as chairman, I said: ``That is not a fair question to these two nominees because regardless of what happened pre-1973, they have to abide by what has happened post-1973 and the current precedents that the Supreme Court has.''

Think about that. I basically told my own colleague that he was out of line in asking that question, even though he had a right to do it.

Everybody knows I am pro-life. Nobody doubts that. I have stood up for that, and I will always stand up for it because it is the right thing to do. It is the moral, upright thing to do as well. To have 39 million abortions in this society and millions more around the world primarily because of Roe v. Wade is something that every American ought to be analyzing and asking, What is going on here?

When we find that so many on the other side of the aisle support even partial-birth abortion where a full-of-life baby capable of being born outside of the mother's womb and living is basically killed by a doctor by ramming scissors into the back of its skull before that baby is pulled out so they can suck the brains out--and then say that is not a human being?

I don't see how anybody can stand up with that kind of barbaric practice, but it has been done.

Every time I think of one of these judges and how well we treated them

and how fairly we treated them, and then I see the contrast of how they are treating Miguel Estrada, I want the American people to know this. This is pure bunk on their side. Where is the substance? Why would they be filibustering for the first time in history and establishing this dangerous precedent where both sides can require 60 votes for anybody to become a judge in this country? And the Presidents will no longer control this process. Presidents will have to succumb to the almighty Senate if that becomes the rule.

That is what they are playing with over there. It is unbelievable. Presidents will no longer control the nomination process in any respect. They will have to do whatever the Senate says.

I cannot think of a worse thing that could happen to this country, because the judiciary is one-third of the separated federal powers in this country.

My gosh, let me go to Richard Tallman, since we are going through to show how they treated their nominees a lot differently than they are treating this Hispanic nominee.

I hope every Hispanic in this country is listening because it affects every Hispanic in the country, Democrat, Independent, and Republican.

Richard Tallman. In followup questions to his hearing on his nomination to the Ninth Circuit, Senator Smith asked Judge Tallman whether ``there are any questions that you feel are off limits for a Senator to ask?''

Judge Tallman's response:

A Senator may ask any question he or she wishes. Judicial

nominees are limited by judicial ethical considerations from

answering any question in a manner that would call for an

``advisory opinion'' as the courts have defined that or that

in effect would ask a nominee to suggest how he or she would

rule on an issue that could foreseeably require his or her

attention in a future case or controversy after confirmation.

Senator Smith also asked Judge Tallman several questions regarding how he would have decided certain Supreme Court cases, including Brown v. Board of Education and Roe v. Wade. Judge Tallman's answer to the Roe question was as follows. His answer to the other question was the same:

It is entirely conjectural as to what I would have done

without having the opportunity to thoroughly review the

record presented on appeal, the briefs and arguments of

counsel, and the supporting legal authorities that were

applicable at that time. I would note that the Supreme Court

has since modified Roe v. Wade, in Planned Parenthood v.

Casey.

Look, that is an answer no different than the answers for which they are criticizing Miguel Estrada. Why is that? Why is it they are not being fair to this Hispanic nominee? Why is it they do not care about fairness? Why is it they are not being fair to the nominees of the President of the United States? Why is it they are not observing the Senate practice of not filibustering nominees to the Federal courts of this country? Why is it Miguel Estrada's answers, which were basically the same as these answers, are considered nonanswers when these were considered substantive answers? Why is there a double standard? I do not understand this. Why is there a double standard?

I got off on this because of the comments of the distinguished Senator from Iowa that I have set a double standard. I defy him to show where I have, because I have been fair. Again, I will repeat, the all- time confirmation champion was Ronald Reagan, with 382 confirmed Federal judges. That was amazing. Everybody thought that was amazing. Democrats have been mad ever since, that we could have confirmed 382 Reagan nominees to the Federal bench, almost all of whom have served with distinction in the best interest of this country, working with Democrat judges as well.

Reagan had 6 years of a Republican Senate to help him get those 382 through. President Clinton got virtually the same number, and he had 6 years of an opposition party in control of the Senate. He did not have 6 years of his own party helping him. He actually had 6 years of an opposition party. I was chairman, and he got virtually the same number--astounding. He was treated fairly.

And for anybody to walk on this floor and criticize me because we were unable to get through some of the judges at the end of the session is disingenuous. There were much fewer left over at the end of President Clinton's tenure than there were at the end of Bush 1. We did not complain that there were 54 judges left over at the end of Bush 1 and, in essence, only 42 left over at the end of Clinton.

But I do bitterly resent anybody coming in here and saying I had a double standard, when I worked so hard, and had to overrule a number of my colleagues--not a big number, but a small number of colleagues--who wanted, yes, some of them wanted to filibuster, and I helped to overrule that. And they all realize today why they should have never even contemplated that. And this has helped to bring it into even greater focus.

I am calling on my colleagues on the other side to bring it into focus and realize this is dangerous stuff they are playing with here. It is dangerous. It could cost this country and all future Presidents control of the nominations process.

Now, they do not control it completely. We have an obligation, too. Our obligation is to advise and consent. Now, advise and consent does not mean advise and filibuster. It does not mean advise and obstruct. It does not mean advise and help some people but treat others with a different standard, like Miguel Estrada is being treated here. It does not mean that. And advise and consent does not mean advise and filibuster, to go back to that point.

If they succeed in this, they will have established, I believe, an unconstitutional precedent I am not sure we can get rid of afterwards. And I believe you are talking about upwards of 60 votes needed for every future judge of any quality and, I have to say, taking away a great deal of the President's power to nominate these judges, to select these judges, because no President would be able to have the right to select judges, not without the absolute blessing of the Senators. It is almost that bad now anyway.

Well, Mr. President, I think I have more than made a case that there is a double standard here. I think I have more than made the case that a lot of these Democrat judges have been treated differently from the way Miguel Estrada is being treated, and that is even not considering the filibuster.

When you consider the filibuster, that is like throwing nuclear waste all over the judiciary process, because that really is going to cause problems around here like we have never even dreamed of before.

It is inadvisable, it is wrong, it is constitutionally unsound. And it is a travesty. And it is--to use a very important word--unfair, unfair to Miguel Estrada, unfair to the President, who has nominated him, unfair to this process, unfair to Republicans on this side who treated Clinton judges fairly and well. It is unfair to our procedures around here.

With that, I yield the floor.

Mr. President, I continue to oppose the Estrada nomination. What is at stake in this nomination is a lifetime appointment to the second highest court in the land. The D.C. Circuit Court of Appeals makes decisions that affect millions of Americans every day--whether they will drink clean water and breathe clean air-- whether workers will be safe in the workplace, and can join unions without fear of reprisal by their employer--whether minorities and women will be able to stop workplace harassment.

Yet our Republican colleagues want us to rubber stamp the nomination of Miguel Estrada to this important court. They say to us, you do not need to look at his record. You do not need to ask him what kind of judge he would be. You do not have to ask him to explain the serious discrepancies in the answers he gave during his hearing in the Judiciary Committee. They even make the preposterous and shameless claim that Mr. Estrada is being opposed because he is Latino.

Our Republican colleagues obviously do not appreciate the importance of the position that Mr. Estrada seeks. If they did, they would not be in such a rush to confirm a divisive nominee about whom we know so little.

Our duty under the Constitution is not to rubber stamp. It is to provide informed advice and consent in the nomination process. Our duty is to ensure that the Federal judiciary is fair and independent, a place where everyone, even the most vulnerable among us, can obtain protection of their rights. If we become a Senate that simply rubber stamps judicial nominees, the nomination process becomes a charade. Whoever happens to have the favor of the White House can become a Federal judge simply by refusing to give the Senate the information necessary to provide real advice and consent. The Federal courts would become a political lackey of the executive and legislative branches, and would lose their essential independence.

We all know the importance of this judicial independence and the critical role that the Federal courts have in the lives of millions of our fellow citizens, especially those who are minorities.

The Latino experience is typical of minority groups that seek justice. When the executive branch has failed them, when the legislative branch has failed them, it is the Federal courts, independent of political forces, that have protected their rights. Federal courts have protected Latinos' right to fair redistricting rules in Lopez v. Monterey County. Federal courts have also protected Latinos' right to bilingual education. They have protected Latinos' right to sit on a jury free from challenge on the basis of their race. They protect Latinos' right to be free from racial profiling.

When the Senate considers a judicial nominee, it must take this history into account. We must consider whether the nominee accepts the historic role of the courts in the protection of basic rights. One of the most serious concerns raised by the Congressional Hispanic Caucus, which met with Mr. Estrada, was that he does not understand and appreciate this history. The Hispanic Caucus does not lightly oppose the nomination of a Latino to a Federal court. In fact, they have never done it before. It would have been far easier for them to decide that a Latino judge on the DC Court of Appeals could be called a victory for them. But they realized it would be a victory in name only. They saw that Mr. Estrada would not uphold the basic rights of the Latino community, and they decided--unanimously--to oppose his nomination.

When the Hispanic Caucus reviews a judicial nominee, they look for a person who will have a sense of fairness, who will be sensitive to claims of racial bias and discrimination, and who are aware of the fundamental role of the Federal courts in ending these injustices. Mr. Estrada failed to satisfy them on each of these important points.

The Hispanic Caucus asked Mr. Estrada about his legal work on two cases in which he defended anti-loitering ordinances. Statutes such as these have too often been used for racial profiling and to harass minorities performing lawful activities. The members of the Hispanic Caucus left that meeting convinced that Mr. Estrada did not understand the effect of these anti-loitering statutes on minorities, or that he did not care about them.

Mr. Estrada has also demonstrated his lack of sensitivity on issues affecting Latinos in his numerous statements about race and affirmative action. He has been dismissive of the under-representation of Latinos among

law clerks in the Supreme Court. You do not have to be Latino to understand that there are long-standing barriers to full participation by Latinos. But Mr. Estrada does not see it that way. Perhaps this is why Mr. Estrada has never tried to improve opportunities for Latino lawyers or law students.

But if you cannot see the problem, you cannot be part of the solution. I am deeply concerned, given these statements by Mr. Estrada, that he would oppose basic programs, that have done so much to open the doors of opportunity for minorities throughout our Nation.

In light of all of these facts, the Hispanic Caucus has decided to oppose this nomination. As I said, they did not make this decision lightly. They have supported the nomination of conservative judges in the past, including judges nominated by the current administration. Jose Martinez, for one, was nominated by this administration. The Caucus met with him. Not all of the members of the Caucus agreed with Mr. Martinez's politics, but they saw that Mr. Martinez was sensitive to the needs and experience of the Latino community. He understood the historic and important role of the Federal courts in the lives of Latinos. So the caucus supported his nomination and Judge Martinez is now a United States District Judge for the Southern District of Florida.

When Democrats oppose Mr. Estrada, we are standing with these groups. We are standing up for the rights of Latinos and other minorities. In fact, it has been Senate Republicans who have unfairly blocked the confirmation of Latino nominees. The last Republican-controlled Senate unfairly refused to confirm eight--eight--qualified Latino nominees. Two who were nominated to the Fifth Circuit Court of Appeals from Texas were not even given hearings by the Republicans.

The Fifth Circuit is one of the areas where the highest percentage of minorities in this country live. Where were our Republican colleagues when these qualified judges were waiting for confirmation? Where were our Republican colleagues when Richard Paez waited for confirmation longer than any other nominee in U.S. history? Where were they? They were in control of the Senate.

When Republicans call on us to rubberstamp a judicial nominee, telling us that we have no right to look into his record to see what kind of judge he may be, they are ignoring their own history, and they are ignoring the proper role of the Senate. President Bush, more than perhaps any other President, has made it his goal to pack the courts with judges who will roll back basic Federal rights, including civil rights, workers' rights, and environmental protections. Ideology clearly guides the President's decision to nominate judges. It clearly guided the decision to nominate Mr. Estrada. It would be wrong to ask Senators now to ignore his ideology. Judges should be committed to basic principles and ideals. They should respect our judicial system and the co-equal relationship between the executive, legislative, and judicial branches. It makes no sense for the Senate, in fulfilling its constitutional role, to adopt a head-in-the-sand approach and abandon all ideological considerations in deciding whether to confirm Mr. Estrada.

Now we have, instead, a Republican stampede to confirm a nominee we know very little about. Despite the critical importance of the Federal courts, and despite the immense power of the appellate court to which he has been appointed, Miguel Estrada has not answered the questions put to him. He has not been forthcoming about the views that he would bring to the bench. He has failed to resolve the serious discrepancies in his answers to the questions put to him during his hearing. The Bush administration refuses to turn over important documents to the Senate as we consider this nominee, despite clear precedent for doing so.

At the same time, what we do know about him clearly indicates that he fails to appreciate the role of the Federal courts and Federal rights in the protection of the most vulnerable members of our society. On this inadequate and unsatisfactory record, the Senate should not confirm a nominee to such an important position.

iraq

Mr. President, tomorrow, the United Nations inspectors will report to the Security Council about Iraq's weapons of mass destruction. In all likelihood we will continue to hear from Mr. Hans Blix that the inspections are proceeding, but that Iraqi authorities need to be much more cooperative. We know that the administration is lobbying Mr. Blix to submit the strongest possible case that Iraq is not cooperating.

We all agree that Saddam Hussein is a dangerous and deceptive dictator. We live in a dangerous world and Saddam must be disarmed. The question is how to do it in a way that minimizes the risks to the American people at home, to our armed forces, and to our allies.

I am still hopeful that we can avoid war. War should always be a last resort.

Earlier today, President Bush quoted President Kennedy and referred to the Cuban missile crisis. President Bush praised my brother for understanding that the dangers to freedom had to be confronted early and decisively.

President Kennedy did understand this. But he also genuinely believed that war must always be the last resort. When Soviet missiles were discovered in Cuba--missiles far more threatening to us than anything Saddam has today--some leaders in the highest councils of our government urged an immediate and unilateral strike. Instead, the United States took its case to the United Nations, won the endorsement of the Organization of American States, and persuaded even our most skeptical allies. We imposed a blockade, demanded inspection, and insisted on the removal of the missiles--all without resorting to full- scale war.

As he said then:

Action is required . . . and these actions [now] may only

be the beginning. We will not prematurely or unnecessarily

risk the costs of . . . war--but neither will we shrink

from that risk at any time it must be faced.

I continue to be concerned that the Bush administration is persisting in its rush to war with Iraq, even as we face grave threats from al- Qaida terrorism and North Korea's nuclear ambitions. The administration has done far too little to tell Congress and the American people about what our country and our troops will face in going to war with Iraq, especially if we have little genuine support from our allies.

We are nearing decision time. I urge President Bush to come clean with the American people about this war. Before endangering the Nation's sons and daughters in the Iraqi desert, our citizens deserve full answers to four questions.

First, the President must explain what he considers victory in Iraq. The American people deserve at least this much. Is it disarmament? Is it the overthrow of Saddam? Is it the establishment of a stable, democratic government? If we get rid of Saddam, but leave his bureaucracy in power, will that be a victory? Or, as General Zinni has said, will we be doing what we did in Afghanistan--drive the old Soviet Union out and let something arguably worse emerge?

This should be a basic consideration in committing American lives to this war. Our country should know what we are fighting for. But the administration has failed to define even this most basic question for the American people.

Second, the President must explain whether we are doing all we can to see that America will be secure at home. A war in Iraq may well strengthen al-Qaida terrorists, not weaken them, especially if the Muslim world opposes us. We have not broken Osama bin Ladin's will to kill Americans. Our Nation has just gone on new and higher alert because of the increased overall threat from al-Qaida. What if al-Qaida decides to time its next attack for the day we go to war? The war against al-Qaida must remain our top priority.

In fact, our Nation's intelligence experts have maintained consistently since 9/11 that al-Qaida terrorism is the greatest threat to our security here at home. They also fear that an American attack on Iraq will only make matters worse by inflaming anti-American sentiments across the Arab world.

Third, the President must fully explain how long, even after the war ends, we will have to commit our forces and economic resources to deal with the consequences of the war. This war will be different than the Gulf war. We will not stop short of Baghdad. If we want to change the regime, we may well have to fight in Baghdad and engage in hand-to-hand combat and

urban guerilla warfare. When the war is over, our troops will become an occupying force, possibly for many years. The tribal, ethnic, and religious fault lines that Saddam has held together through repression may fall apart--much as they did in the brutal civil wars in the former Yugoslavia, in Rwanda, and other countries.

Will the United States have to manage Iraq for years to come on our own? Are we prepared to commit billions of American dollars to Iraq for years to come? Will our troops be part of a United Nations force? Will they become sitting targets for terrorists?

Finally, the President must explain whether our Nation is prepared to use this war as the new foreign and defense policy for the future. Are we prepared to invade any nation that poses a threat?

Iran, Libya--forget Libya. Pan Am 103; 67 American servicemen who were killed; 13 families in the State of Massachusetts; scores of families in New Jersey and other States--a country that has used chemical warfare against its neighbors and against Chad in the south.

Libya, Iran, with all of the harboring of terrorists and Hamas--the terrorists that are so active in Syria, and these other countries. What are we going to do about these nations as they continue to move forward in developing weapons of mass destruction? What are our policies going to be about them? Which country will be next? Will we attack them, too?

Are we really prepared, as the administration is considering, to radically change our nuclear weapons policy and use nuclear weapons in Iraq and other conflicts? Even contemplating the first use of nuclear weapons in Iraq under current circumstances and against a non-nuclear nation dangerously undermines the crucial and historical distinction between conventional and nuclear arms. It undermines our international commitment to the Nuclear Non-Proliferation Treaty that we will not consider a first strike against a country that is a nonnuclear country. If we use the Nation's nuclear arsenal in this unprecedented way in Iraq, it will be the most fateful decision since the nuclear attack on Hiroshima. All of us are hopeful we will not use the tactical nukes. We have abundant testimony that our conventional weapons are quite capable and able to handle any of the challenges we are going to face in terms of deep bunkers and other activities. But we have to listen to those in the administration who are talking in a different way about the development of a tactical nuke, and also about perhaps changing what they consider to be the STRAPP amendment that limits the research to 5 kilotons and the administration's consideration of that.

Obviously, implications of any use of any nuclear war in Iraq would inflame the people not only of that nation but certainly of Arabs all over the world--and not only the Arabs and the move towards developing smaller, more easily usable nuclear weapons and all of the challenges we would have of being more attractive to use under certain circumstances with the dangers of proliferation and the fact these weapons could be proliferated and stolen and used and captured by terrorists.

On each of these questions, the President must reassure the American people. They deserve to know that we are not stepping into quicksand and that this military operation is well thought out. He must convince the Nation that we are putting as much effort into thinking about how we get out of Iraq as we are about getting into Iraq.

We must take both the short-term and the long-term view of this enormous problem. Whether war with Iraq will be a sprint or a marathon we must always remember the finish line.

There is no more important decision by Congress or the President under the Constitution than the decision to send our men and women in uniform to war. The administration must make a compelling case that war with Iraq is now the only alternative and explain it to the American people

The administration says we can fight a war in Iraq without undermining our most pressing national security priority--the ongoing war against the international al-Qaida terrorist network.

al-Qaida--not Iraq--is the most imminent threat to our national security. Our citizens are asked to protect themselves from Osama bin Ladin at home with a roll of duct tape, while the administration sends the most deadly and sophisticated army in the world to go to war with Saddam Hussein. Those are the wrong priorities.

On Monday, Tom Ridge, the Secretary of Homeland Security said that the heightened security warning that has millions of Americans stocking up on food, water, duct tape, and plastic sheeting is connected to al- Qaida and not ``the possibility of military involvement with Iraq.''

On Tuesday, FBI Director Mueller told the Senate Intelligence Committee that ``the Al Qaeda network will remain for the foreseeable future the most immediate and serious threat facing this country.''

On Wednesday, CIA Director Tenet told the Senate Armed Services Committee that the heightened alert issued this week is because of the threat from al-Qaida--not Iraq.

For any Member of this body who thinks we have done what we need to do in homeland security, call any mayor in your State, call any mayor in a major city or a small city in your State, and ask them whether they have received the support for the training of first responders. Ask them if they have the various vaccines, how that program is going-- and it isn't going, because we have failed to develop a compensation fund for that and to match our determination for vaccines with the other kinds of supportive efforts in terms of health care.

Ask any mayor in any sized city what degree of support they are getting and whether they believe they are receiving the kind of assistance they need--whether it is in the radios, in the communications, whether it is in the training, whether it is in the wide area of support for public health interests--and you will get the answer that all of us heard--that I heard--within the last 10 days when the mayors across this country came together and met here. And the answer is clearly: No, no, no, it is not there.

In addition to threatening American lives, Saudi Arabia has indicated it will ask American troops to leave its soil. NATO's division over war has threatened the alliance. The Chairman of the Federal Reserve, Alan Greenspan, has said uncertainty over Iraq is slowing our Nation's economy.

There you have three activities: Osama bin Laden, wherever he is, American troops out of Saudi Arabia, division in the alliance, stagnation here at home in the economy. And we are all blaming Osama bin Laden. We are about to send our troops on into Iraq, not giving inspections a chance to finish. The wrong priorities, Mr. President.

As I mentioned in terms of what we are doing here at home, I am concerned about the state of our preparedness. Clearly, there is much more we need to do at the Federal, State, and local levels to strengthen our defenses against a terrorist attack.

First responders are not adequately prepared for a chemical or biological attack. The radios are not interoperable, and they lack the training and gear to protect them in the event of an emergency. Ask any of your mayors, as I mentioned, across the country. You will get your answer.

This isn't just a Democrat pointing this out. Last week, our former colleague, Senator Rudman, of the State of New Hampshire, said:

There was no rational answer for the White House failure to

seek more funds for the domestic security in the 2004 budget.

I'm very concerned. We have to put more money into the Coast

Guard, into communications gear, into preparedness for the

use of weapons of mass destruction, into police and

firefighters. We have to spend a huge additional amount of

money on port security. Money isn't the only answer, but it

is a pretty clear indication of a nation's priorities in this

area, and it has not been there in terms of the support on

homeland security.

Even before the war has begun, we hear of possible threats from a wave of suicide bombers. War with Iraq could swell the ranks of terrorists and trigger an escalation in terrorist acts. As Gen Wesley Clark told the Armed Services Committee last September, war with Iraq could ``super-charge recruiting for Al Qaeda.''

These are real dangers--dangers that the administration has minimized in its determination to attack Iraq.

The administration maintains there are convincing links between al- Qaida

and Iraq that justify war. But al-Qaida activists are present in more than 60 countries, including Iran, Pakistan, Afghanistan, and also in the United States. Even in the administration, there are skeptics about the links with Iraq. Intelligence analysts are concerned that intelligence is being politicized to justify war, as the New York Times pointed out in a recent article which I will ask to be printed in the Record.

Mr. President, I ask unanimous consent that article be printed in the Record.

Although the U.N. inspectors have found no evidence so far of a revived nuclear weapons program in Iraq, there is ample evidence in North Korea. North Korea possesses 8,000 spent nuclear fuel rods capable of being reprocessed, by May, into enough plutonium to make up to 6 nuclear bombs. With inspectors gone and North Korea gone from the Non-Proliferation Treaty, we face an urgent crisis, with nothing to prevent that nation from quickly producing a significant amount of nuclear materials and nuclear weapons for its own use, or for terrorists hostile to America and our allies.

North Korea has already provided missiles to deliver chemical, biological, and nuclear weapons to terrorist

states, including Iran, Syria, and Libya. We understand that. North Korea has already provided the missiles to deliver chemical, biological, and nuclear weapons to terrorist states. Desperate and strapped for cash, North Korea can easily provide nuclear weapons or weapons grade plutonium to terrorist groups, which could be used against us in the very near future. And we are talking about the production of weapons grade plutonium in the next few weeks. There is no division of opinion on that, absolutely none. There is no division of opinion on that. As some have described it, it would be a cash cow for North Korea that is absolutely strapped for cash.

Despite these alarm bells, the administration refuses to call the situation on the Korean peninsula what it is: a genuine crisis. If this is not a crisis, I don't know what is.

The administration refuses to directly engage the North Koreans in talks to persuade North Korea to end its nuclear program. By ignoring the North Korean crisis in order to keep focus on Iraq, the administration has kept its eye on the wrong place.

The administration says we can handle the war in Iraq, we can handle the war against al-Qaida, and we can deal with the problems of the nuclear crisis in North Korea. Any administration should seek to avoid three simultaneous foreign policy crises. In this case, we can, and we should, by not rushing to war with Iraq.

It is far from clear that we will be safer by attacking Iraq. In an October 7, 2000, letter to the Senate Committee on Intelligence, CIA Director George Tenet said the probability of Saddam Hussein initiating an attack on the United States was low. But his letter said: ``should Saddam Hussein conclude that a U.S.-led attack could no longer be deterred, he probably would become much less constrained in adopting terrorist actions.''

Yesterday, Admiral Jacoby, the Director of the Defense Intelligence Agency, told the Senate Armed Services Committee that Saddam Hussein would use weapons of mass destruction ``when he makes the decision that [his] regime is in jeopardy.'' CIA Director Tenet agreed with this assessment.

This assessment begs the question: If Saddam will not use weapons of mass destruction against the United States until his regime is about to fall, why is it in our national security interest to provoke him into using them?

The administration must be more forthcoming about the potential human costs of war with Iraq, especially if it pushes Saddam into unleashing whatever weapons of mass destruction he possesses. The administration has released no casualty estimates, and they could be extremely high. Many military experts have predicted urban guerilla warfare--a scenario which Retired General Joseph Hoar, who had responsibility for Iraq before the gulf war, says could look ``like the last 15 minutes of `Saving Private Ryan.' ''

Nor has the administration fully explained the ramifications of large-scale mobilization of the National Guard and Reserve--especially its effect on police, firefighters, and others, who will be on duty for Iraq but who are needed on the front lines here at home if there is a terrorist attack on the homeland. In Massachusetts, 2,000 citizens have been called to active duty in the Armed Forces. Many of them are police, firefighters, first responders, and other health workers.

Nor has the administration been candid about the humanitarian crisis that could result from war.

Refugee organizations are desperately trying to prepare for a flood of as many as 900,000 refugees. Billions of dollars and years of commitment may well be needed to achieve a peaceful post-war Iraq, but the American people still do not know how that process will unfold and who will pay for it.

No war can be successfully waged if it lacks the strong support of the American people. Before pulling the trigger on war, the Administration must tell the American people the full story about Iraq. So far, it has not.

I yield the floor.

Mr. President, one of the great privileges of being a Member of the Senate is to recommend to the President names of people who should be members of the Federal judiciary--that is either the Federal district court, circuit court of appeals, but certainly not the U.S. Supreme Court because that is out of the purview of recommendations by a single Senator.

Since I have been in the Senate, I have been able to recommend to a Democratic President at least two. We are not a large State so we have the opportunity to only recommend two people to the Federal bench.

The first one I was able to recommend was a circuit court of appeals judge and the second was a district court judge. This decision was so important to me that I went out of my way to make sure whoever I recommended to President Clinton at the time would be someone the President would want to nominate to be confirmed as a member of the circuit court of appeals. In this case it was the Ninth Circuit Court of Appeals. Montana is included in the Ninth Circuit.

What did I do? First, I went out of my way to put together a group of Montanans--6, 7, 8, 10 Montanans--and I selected the best folks I could find in my home State to represent a cross-section, a broad array of interests and points of view. Some were lawyers; some were not lawyers.

I said to each one of them: I want you to suggest to me the very best three people in the State of Montana who should serve on the Ninth Circuit Court of Appeals. I do not care whether they are Republicans. I do not care whether they are Democrats, liberals, conservatives; I just want the best, the most solid people, the people who have deep common sense, have a tremendous sense of history in our country, the highest integrity. I just want the best.

The committee I appointed came back to me several weeks, maybe a month later with three names. I sat down with each of the three for an interview, and I spent about 3 hours with each of the three to try to determine for myself who was the best person that President Clinton could nominate from Montana to sit on the Ninth Circuit Court of Appeals.

It was a very difficult process. It was very difficult because the three the group suggested to me were all very good. I made a selection finally. It was Mr. Sid Thomas, who President Clinton appointed and who now sits on the Ninth Circuit Court of Appeals.

He has been a tremendous credit to not just the State of Montana and the Ninth Circuit, but the Nation. In fact, many members of the judiciary, including the U.S. Supreme Court, talked to me specifically about Judge Thomas and indicated to me they are very proud of him. He is a ``solid person,'' a very solid man, a solid judge.

The second instance was virtually the same. I put together another group. There was an opening in the Federal district court in Montana. I put together seven, eight, to nine people I thought would do a terrific job in coming up with the very best person to sit on the Federal district court in Montana.

I interviewed each of the three persons the group gave me. I had the same criteria for the committee: I want the best. I do not care if they have brown eyes or blue eyes. I do not care if there is any acid test. That is not relevant to me. I want the very best, most solid, thoughtful people with the highest integrity and a deep sense of the law and history of our State and our Nation.

I do not care whether they are Republicans, Democrats, liberals, conservatives--that does not mean anything to me. I just want the best.

They came up with three names. I interviewed the three people. I, again, had the excruciating choice to make because they were all very good. I made a selection finally, and I recommended to President Clinton a person who I think has done great credit to the U.S. Federal district court in Montana, Judge Don Malloy.

I can tell you, the bar in Montana thinks he is terrific. The plaintiffs bar, the defense bar--they all have the highest regard for him. Why? Because he is smart, he is hard working, and he does not play favorites. He is what a Federal district court judge should be.

Why do I say all that? I say that because we are now faced with whether or not the Senate should confirm to the DC Court of Appeals Miguel Estrada. Should we or should we not? Let me roll back history a bit.

Several years ago, I was on the Judiciary Committee. In fact, it was quite a few years ago. At that time, Justice Sandra Day O'Connor, not then a Justice, was nominated by the President to sit on the U.S. Supreme Court. With all deference to Justice O'Connor, that was the first time, at least in my memory, when a nominee essentially did not answer very many questions.

I asked her questions, other members of the committee asked her questions, and she essentially began this tradition of not answering the questions. Again, I have the highest regard for Justice O'Connor. I think she has been a great Justice of the U.S. Supreme Court. It bothered me as a member of the Judiciary Committee that a nominee was not answering questions. It just did not seem right.

We at that time decided, OK, she seems like a very good person. She was in the State senate in her home State of New Mexico, so let's vote to confirm her.

We are now faced with the situation where Mr. Estrada is not answering any questions whatsoever, and he is not providing other information to the committee. I am not now on the Judiciary Committee but I take this responsibility of whether or not the Senate should confirm a nominee to the circuit court of appeals, Federal district court, or the U.S. Supreme Court very seriously. I know all of us in this body do.

There are not very many decisions we can make that will be more important. There are not very many. Why is that? That is because these are lifetime appointments.

Mr. President, you run for reelection, I do, everybody in this body, every few years, every 6 years. Everybody in the other body runs for reelection every 2 years. Every Governor runs every 4 years, sometimes 2 years. Every President runs every 4 years, except those who cannot run because of the constitutional requirement. We face voters. We are held accountable. Voters have a chance to either reelect us or not. But boy, once someone is put in the U.S. Federal judiciary, an article III position, that is for life.

I believe that is the way it should be. Why? Because these are the people we want to be totally impartial to do what is right and not be swayed by temporary whims and vogues of the moment. We try not to as elected officers. It is our job to represent people in our State. If they want something, we should give that to people, given what we think makes sense and is right for our home States and right for the country.

Federal judges are held to a different standard. State judges are not lifetime appointments. I do not know any who are. Federal judges are appointed for life. That is a huge responsibility they have.

We have to make sure we get the right people. It is our responsibility. When voters elect us, they basically say: Senator, we do not know all the ins and outs of what goes on in Washington, DC, but we want you to do the right thing. Just do not do something nutty or crazy, but, basically, do the right thing.

Most people give us a lot of latitude. So long as it sounds right, fits right, and smells right, it really is all right.

It does not sound right, it does not fit right, it does not smell right, it does not seem right, for this body to confirm somebody who will not answer any questions, who will not give us relevant information, and who has no prior history so it is hard for us to know.

I will bet this: At that Justice Department and perhaps at the White House, they sat down with Mr. Estrada and asked him a lot of questions. I bet he gave them a lot of answers. I bet there is somebody in this operation who is supporting his nomination in the executive branch who knows a lot about Mr. Estrada, who had long conversations with him. If they did, which is entirely proper--in fact, it is imperative and an obligation they have to ask him questions, particularly before the President suggests a nominee for the DC Court of Appeals. If they do, so should we have the information in the Senate. We have an equal responsibility to know how he feels about certain issues.

I am not saying he should address how he feels about certain cases decided by the Supreme Court or cases decided by even the court of appeals. I am not asking for that because judges have to be impartial. I am saying we have a responsibility to know who this fellow is: What makes him tick? What does he really think about? What are his values? What does he stand for? Will he be impartial? What does he think about our Constitution? What does he think about the court as the third branch of Government? There are tons of questions one could come up with, and we have that responsibility.

Why do I say we have that responsibility? I have already said it is a lifetime appointment, but in addition the Constitution tells us we have that responsibility. The advice and consent provision is in the U.S. Constitution.

When our Founding Fathers wrote the Constitution, they debated the advice and consent clause. They did not know what it should provide. There are various interpretations, but they knew it was very serious. One interpretation, that is one view, that was advanced very seriously when our Founding Fathers wrote the Constitution, was this: That the Senate should send a selection of three, four, or five names to the President and then the President makes the decision. The Senate would give the names to the President and then the President would decide. It is kind of like what I did a little bit when I was interviewing people in Montana. I got a bunch of names of the best people, and I made a decision who I thought was the best person.

Why did our Founding Fathers really wrestle over this question over what the proper mechanism would be for the Senate to jointly decide with the President who should or should not be on the Federal judiciary? It is pretty simple. It is our third branch of Government. It is the third of the three branches of Government, and it is not right that one branch of Government should dictate who does or who does not sit on the U.S. Supreme Court. That is not right. Rather, it is a joint decision. It is a decision which, just as the President took very seriously, we have an obligation to take equally seriously.

It reminds me a little bit of a number of years ago when an earlier President, President Franklin Roosevelt, decided he did not agree with the Supreme Court decisions. What did he do? He came up with an idea to add more Justices to the U.S. Supreme Court. It is colloquially referred to as court packing by President Roosevelt.

The Senate stood up. It said: No, that is the wrong thing to do. I am very proud to say that the Senator who stood up was from Montana. It was Senator Burton Kendall Wheeler. He said: No, it is not the right thing to do.

Just as he stood up, I think we have an obligation in the Senate to stand up when it is the wrong thing to do; that is, to pass judgment on--to agree with the President's nominee where we have no information, where he will not answer questions, he will not tell us what he thinks. What is this person really all about? What is the sense of the man? Where is he? Where is his soul? Who is he? That is what we have to determine in deciding whether he should be placed on the DC Court of Appeals. And I say that very respectfully.

I might add that the DC Court of Appeals is no ordinary, garden variety appellate court. It is a special appellate court, and that is because so many decisions made by Federal agencies go to the DC Court of Appeals as opposed to the Ninth Circuit or the Fourth Circuit. There are so many of them. There are environmental laws, for example, and labor laws that go primarily to the DC Court of Appeals, for which Mr. Estrada has been nominated, much more than to other courts. These decisions affect all of us around the country. They do not just affect the DC Circuit or people who reside in the DC Circuit. They affect all Americans. The DC Court of Appeals jurisdiction extends to the National Labor Relations Board, the Occupational Safety and Health Administration, the Federal Communications Commission, the Federal Elections Commission, the Environmental Protection Agency.

Obviously, decisions made by those agencies have a great effect on all Americans. When they are reviewed by the DC Court of Appeals, the decisions the DC Court of Appeals makes certainly have the same effect upon all Americans. Those rulings affect our workers, our businesses, our national environment, our families, and our homes. They affect political elections. They affect directly the present occupant of the chair, just as they affect me directly.

About 50 percent of the DC Court's caseload consists of appeals from regulations or decisions made by Federal agencies. Fifty percent of the DC Court of Appeals caseload is appeals of Federal agencies. In many cases, the DC Court of Appeals is the last word, too, on Federal decisions. We all know this.

The U.S. Supreme Court is taking fewer cases on appeal. The caseload of the U.S. Supreme Court has fallen off dramatically in the last couple or 3 years, which means that the courts of appeals' rulings are that much more important. They are almost like a supreme court in many respects because the U.S. Supreme Court is taking fewer cases.

I will give an example of the power of the DC Court of Appeals in my State of Montana. This is Montana. Don't forget we are in the Ninth Circuit--not

the DC Circuit--as is the State of the Presiding Officer. The DC Court of Appeals has exclusive jurisdiction over cases brought against the Environmental Protection Agency, particularly regarding the Superfund.

I know in the Presiding Officer's State there are huge Superfund issues. They are dramatic. Superfund is tremendously important to my home State of Montana as well. In the town of Libby, MT, for example, they have suffered from decades of asbestos contamination at the hands of W.R. Grace. It is just tragic. It happened to the people of Libby, MT. As a result, Superfund cleanup efforts are now taking place in an attempt to make the town and its residents whole again. It is a gigantic undertaking.

Libby is not the only Superfund site. As the Presiding Officer knows, we have Superfund sites around the country. In Montana, for example, we have the largest Superfund site in the Nation. It is called the Clark Fork Basin. It starts up in Butte and ends up eventually down in the State of the Presiding Officer. It is huge. These sites threaten the health and well-being of so many people not only in my State but in other States as well.

When Congress created the Superfund, our goal was to ensure that the public health and environment were protected and made whole, particularly the cleanup. So decisions made by the DC Court of Appeals overseeing the Environmental Protection Agency obviously greatly influence whether the intent of the law is actually fulfilled on the ground; that is, in Montana or any other State in the Nation, because EPA is all over America. It is not only the Ninth Circuit where the Presiding Officer and I live. There is no question that in the State of Montana we have a terrific interest, a big interest, in who sits on the DC Circuit Court, given that court's influence over our Nation's health, safety, and welfare laws.

Different Members may disagree with different decisions made by the DC Court of Appeals, but we do agree we want a very thoughtful, fully considered, and impartial decision. That is what we want. That is what we expect. That is why, in my judgment, this body has to go to extraordinary lengths to determine whether nominees to the courts of appeals, district courts, and the Supreme Court, are the right people. It is our duty.

We cannot just pass it off and say, oh, the President appointed him. We cannot stop there. It would be irresponsible. When we are elected, we are elected by people in our States to hold up the Constitution of the United States. Certainly the President can appoint, but just as certainly the Senate has the right and, indeed, the obligation to advise and consent and, given the tradition of the advice and consent clause and balance of powers, give it the same weight as the President.

That is why I think at the bare minimum the Senate has the right to ask for more information. Who is this man? Find out more about him. Look at his writings. What is he hiding? What is there to hide? We all know the more information in the public arena, the more likely it is we will make the right decision. We know that. It is only proper the White House ask Mr. Estrada to answer some questions and give some information. This is not rocket science. This is pretty easy. This is simple stuff.

I do not feel it is proper for the Senate to confirm Mr. Estrada. This is very important. I cannot think of many decisions we make that are ultimately more important, particularly regarding the DC Court of Appeals. We may have different conclusions when he gives us information, but at least he should talk to us.

(The remarks of Mr. Baucus pertaining to the submission of S. 396 are located in today's Record under ``Submission of Concurrent and Senate Resolutions.'')

Mr. President, I ask unanimous consent to speak in support of the nomination of Miguel Estrada.

Mr. President, I recognize that we are now in our ninth day of debate leading up to an ultimate vote on whether or not Miguel Estrada should be confirmed as the nominee of President George W. Bush to the Circuit Court of Appeals for the District of Columbia. As part of the debate on both sides of the aisle, there has been a continual question asked on this side of our friends by the other side who are in opposition to the appointment and confirmation of Mr. Estrada. That question has been: Give us a reason we should not have a vote on whether or not Mr. Estrada should be confirmed.

I have great respect for the Senator from Massachusetts. He has certainly been a part of this institution for a long time. I listened very closely to his comments which I respect. And I respect his opinion and his right to hold his opinion in opposition to Mr. Estrada. But I think what we have just heard for the last 20 minutes is very indicative of what we have heard for the last 9 days. And that is, there is no reason Mr. Estrada should not be confirmed.

There have been reasons put forth from the other side, and every time one of those reasons has been put forth, the chairman of our committee, Senator Hatch, or someone else, has risen to refute that argument. What the other side has now done is, instead of concentrating on the argument in opposition to Mr. Estrada, they have gotten off extensively on to other issues.

I go back to the same question we have asked: Why do we not vote on Mr. Estrada? What is the reason you have that Mr. Estrada should not be confirmed as President Bush's nominee to the Circuit Court for the District of Columbia?

There has been a lot of debate about what was said and the opinion that came out of the conversation between Mr. Estrada and the Hispanic Caucus over on the House side. Let me tell you about some of the folks in the Hispanic community who have come out in support of the nomination of Mr. Estrada: The League of United Latin American Citizens, which is the Nation's oldest and largest Hispanic civil rights organization, has come out in support of the nomination and confirmation of Mr. Estrada; the U.S. Hispanic Chamber of Commerce; the Hispanic National Bar Association; the Hispanic Business Roundtable; the Latino Coalition; the National Association of Small Disadvantaged Businesses; the Mexican American Grocers Association; the Phoenix Construction Services; the Hispanic Chamber of Commerce of Greater Kansas City; the Hispanic Engineers Business Corporation; the Hispano Chamber of Commerce de Las Cruces; Casa Del Sinaloense; the Republican National Hispanic Assembly; Hispanic Contractors of America, Inc., and Charo Community Development Corporation--a long and distinguished list of Hispanic entities that have come out in strong support of the nomination and confirmation of Miguel Estrada.

Let me go further and quote from statements from some individuals who are involved in some of these organizations. The League of United Latin American Citizens, the oldest and largest Hispanic civil rights organization--the president of that organization is a gentleman named Dovalina. Here is what he says about Miguel Estrada:

On behalf of the League of United Latin American Citizens,

the nation's oldest and largest Hispanic civil rights

organization, I write to express our strong support for the

confirmation of Miguel Estrada. . . .Few Hispanic attorneys

have as strong educational credentials as Mr. Estrada, who

graduated magna cum laude and Phi Beta Kappa from Columbia

and magna cum laude from Harvard Law School, where he was

editor of the Harvard Law Review. He also served as a law

clerk to the Honorable Anthony M. Kennedy in the United

States Supreme Court, making him one of a handful of

Hispanic attorneys to have had this opportunity. He is

truly one of the rising stars in the Hispanic community

and a role model for our youth.

The Latino Coalition, of which the president is, Mr. Robert Deposada--here is what he said about Mr. Estrada:

To deny Latino's, the nation's largest minority, the

opportunity to have one of our own serve on this court in our

nation's capital is unforgivable.

The president of the United States Hispanic Chamber of Commerce, Ms. Elizabeth Lisboa-Farrow, stated:

We unanimously endorse this nominee and strongly urge you

to move on the confirmation of Miguel Estrada. As a judge, he

will be a credit to the federal judiciary, the President,

Hispanics, and all Americans.

That emphasizes something I said on the floor a few days ago. There has been a lot of debate about Mr. Estrada being a Latino. Mr. Estrada is a Latino. I am sure he is very proud of that. But the thing I like about Mr. Estrada is that he is qualified to be appointed to the Circuit Court for the DC Circuit. He is qualified because he is an intellectual. He is bright. His record proves that. He is a world class lawyer who happens to be a Latino. This man needs to be appointed and confirmed to the DC Circuit Court of Appeals because he is a good lawyer. Even more than that, he is an outstanding lawyer.

The president of the Hispanic National Bar Association, Mr. Rafael Santiago, stated as follows:

The Hispanic National Bar Association, national voice of

over 25,000 Hispanic lawyers in the United States, issues its

endorsement. . . .Mr. Estrada's confirmation will break new

ground for Hispanics in the judiciary. The time has come to

move on Mr. Estrada's nomination. I urge the Senate Committee

on the Judiciary to schedule a hearing on Mr. Estrada's

nomination and the U.S. Senate to bring this highly qualified

nominee to a vote.

Mr. Henry T. Wilfong, Jr., president of the National Association of Small Disadvantaged Businesses, stated as follows, in a letter to Senator Leahy on July 12, 2001:

The [National Association of Small Disadvantaged

Businesses] would like to add our support . . . for Miguel

Estrada's nomination as United States Court of Appeals Judge

for the District of Columbia Circuit.

Mr. Estrada is a brilliantly talented and accomplished

attorney who will make an outstanding addition to the

prestigious DC Circuit. . . .While we do not dwell on

symbolism, we feel that Mr. Estrada's appointment as the

first Hispanic member of the DC Circuit will be of benefit to

us in further illustrating the wide range of talent in the

minority communities, just wanting to be effectively and

fully used.

Well, I could go on quoting comments from other members of the Hispanic organizations around the country. All of the major Hispanic organizations have said this man needs to be confirmed to the DC Circuit Court of Appeals. He needs to be confirmed, yes, because we are proud of him as a Latino, but he needs to be confirmed because he is one of America's outstanding lawyers.

Now, some of the criticism that has been directed at Mr. Estrada has been for totally unfounded reasons. I wish to talk about a couple of those. I wasn't here back in September of 2002, when the hearing of Mr. Estrada was held before the Senate Judiciary Committee. But at that point in time, the Judiciary Committee was controlled by the Democrats. The chairman of that committee was Senator Leahy, who I have come to know. He is a very fair man. He is a very strong advocate for his beliefs. But I have seen him operate within the Judiciary Committee, and I know him to be a person who is very deliberate in the way he presents himself on that committee. So I have no doubt that at the time of Mr. Estrada's hearing in September of last year, Mr. Estrada was treated very fairly and was given due accord.

One of the criticisms that has been repeated today is the fact Mr. Estrada, during the course of that hearing, in September of last year, was that he was nonresponsive to questions that were presented. Under the leadership of Senator Leahy, the hearing began at around 10 o'clock in the morning. I am told it lasted until 5:30 in the evening; and although there were few district court nominees who were also testifying at that hearing, the great bulk of the time was given to Mr. Estrada. That is the case, as I have seen it, over the last several weeks since I was elected and sworn in as a Member of this body and appointed to the Judiciary Committee.

After the hearing, every member of the Judiciary Committee was given an opportunity not just to ask every question they wanted to ask, but if they weren't satisfied with the answers they received, whether it was what they wanted to hear or not, they had the opportunity to ask that Mr. Estrada come back for another series of questions. But they did not do so. He was not asked to come back and appear before the Judiciary Committee again.

In addition to that, at every hearing we have on judicial nominees-- and I know this to have been the case last year under the direction of Senator Leahy--every member of the Judiciary Committee has the opportunity to submit written questions to every nominee who has their confirmation hearing before the Judiciary Committee. So if there was any member of that committee who was not satisfied with the answers they received, or wanted a written answer in addition to the verbal answer that was given that day, or if they didn't feel as if the nominee was being totally forthcoming, they could ask the question again and get an answer in writing.

After the hearing of Mr. Estrada before the Judiciary Committee, only two Democratic Senators submitted written questions. Some of those folks who are on the other side of the aisle, over the last 9 days who have been complaining the loudest about not knowing enough about Mr. Estrada, did not submit any written questions at all. Is that fair? Is that reasonable? Is that the way this body ought to function with respect to the confirmation of our judicial nominees? I don't think so. I don't think that is the way our Founding Fathers intended this body to operate.

Let me look at another couple of objections that have been raised by the other side with respect to Mr. Estrada. There has been an issue regarding the fact that he has no judicial experience and, therefore, he should not be confirmed.

Well, let me say that if that were the case, if experience in an area in our line of work, politics, was a requirement to be elected, I never would have been elected to the House of Representatives where I gained experience before I was elected to the Senate. I had never run for political office before. You know what? I brought a lot of assets to the House of Representatives because I was not involved in politics before. I had about 72 other Republican classmates in my class in 1994. Some of them had been involved in politics. The one common thread we all had was that we came from a business background. Most of us have had to meet a payroll, and we knew and understood about business and about balancing budgets. And one of the focuses of the class of 1994 in the House of Representatives was to move forward to balance the budget of this country, which had not been balanced for decades prior to that election. We achieved that. We achieved it because we knew and understood that is what was required of families in America who sit around their kitchen table every single month, and it was only right to ask Congress to do that. That is the kind of lack of political experience that my class had when we were elected in 1994.

For the contention to be made that Mr. Estrada has no judicial experience and that is why he ought not to be confirmed, I think is just ludicrous. I think because he lacks judicial experience, that may be an asset. There have been some pretty significant judges appointed to the bench who did not have judicial experience. Byron White, nominated by President Kennedy, and William Rehnquist, currently Chief Justice of the U.S. Supreme Court, had no judicial experience when they were appointed to the court. Of the eight judges who are today serving as members of the same court to which we seek to have Mr. Estrada nominated, five had no previous judicial experience at the time they were nominated and confirmed by this body. I don't know whether the same objection was raised then or not, but if it was, it has obviously been proven that it was not a valid objection.

There has been an allegation that the administration has refused to produce memoranda that Mr. Estrada wrote as an Assistant to the Solicitor General. Mr. Estrada was Assistant to the Solicitor General both in the Clinton administration as well as in the Bush administration. There is just a wealth of knowledge that he gained by virtue of the fact that he worked for the Government in addition to serving in the private sector as a lawyer.

But while he was in the Solicitor General's Office, sure, he did what his boss told him to do. If it required research and giving his boss a memorandum on a particular issue, he did what he was told to do and, obviously, did it in a very efficient manner, because every single living Solicitor General has come forward, including those

for whom Mr. Estrada worked, and has said that it would be improper for the Justice Department to produce the memoranda that Mr. Estrada worked on and provided to his boss. And also, the Solicitor General for whom he worked, both in the Clinton administration as well as in the Bush administration, have both talked about how highly qualified and how competent this individual is.

For an objection to be made that he failed to produce memoranda that the Justice Department says would not be proper to present, and that Republican and Democratic Solicitor Generals say would not be proper for the Justice Department to present, I think totally negates any argument about the fact that those memoranda have not been produced.

I could go on and on about the issues relative to Mr. Estrada's nomination that had been presented by the other side. I repeat, every time one of those issues has been raised, Chairman Hatch or some other member on this side has totally refuted that argument.

I go back to the point of why are we here? Why are we, 100 Members of this body, here? We are here to do the people's work. We are here to do what is in the best interest, not just of our constituents, but in the case of judges, we are required--and I agree with the Senator from Massachusetts, we ought not be a rubberstamp. But we have a process we go through to nominate and confirm judges. We ought to have full, open, and free debate on each and every one of those nominees, and we have done that.

We are here to do the work of the people of the United States of America. The people of the United States of America elected us to have full, free, and open debate on judges, as well as the many other issues with which we have to deal. We have done that. We have had 9 days of debate on the nomination of Miguel Estrada. It is time now that we do what the people elected us to do, and that is to vote. If a Member thinks he ought not be confirmed, vote against him.

I think he ought to be confirmed because he is well qualified and his time to go to the Federal bench has come. I am going to vote to confirm him. Because we are here as elected officials and because we have a duty to represent not just the people who sent us but the people of America when it comes to the confirmation of judges, we owe those people who sent us here and the people all across America a response to that obligation. We should move this nomination forward to a vote.

I yield the floor, Mr. President.

Mr. President, today I introduce the Federal Death Penalty Abolition Act of 2003. This bill would abolish the death penalty at the Federal level. It would put an immediate

halt to executions and forbid the imposition of the death penalty as a sentence for violations of Federal law.

Since 1976, when the death penalty was reinstated by the Supreme Court, there have been 830 executions across the country, including two at the Federal level. At the same time, 103 people on death row were later found innocent and released from death row. Exonerated inmates are not only removed from death row, but they are usually released from prison altogether. Apparently, these people never should have been convicted in the first place. While death penalty proponents claim that the death penalty is fair, efficient, and a deterrent, the fact remains that our criminal justice system has failed and has resulted in at least 103 very grave mistakes.

Eight hundred and thirty executions, and 103 exonerations. Those are not good odds. It is an embarrassing statistic, one that should have us all questioning the use of capital punishment in this country.

Since January 25, 2001, when I last introduced this bill, the Federal Government resumed executions for the first time in almost 40 years, and 138 people have been executed nationwide. In this new year, we have begun our use of capital punishment at an alarming pace. We are only in the second week of February, and there have already been 10 executions this year. And yet this one-to-eight error rate looms. Is it possible that those 10 people are representative of the one-to-eight error rate that has plagued the death penalty since it was reinstated in 1976? Is it possible that in the last six weeks, as we have debated a war in Iraq, funding levels for Federal programs, and judicial nominations, our nation has killed an innocent person?

It is a difficult question to ask, but an even more difficult one to ignore.

While executions continue and the death row population grows, the national debate on the death penalty continues and has become even more vigorous. The number of voices joining in to express doubt about the use of capital punishment in America is growing. As evidence of the flaws in our system mounts, it has created an awareness that has not escaped the attention of the American people. Layer after layer of confidence in the death penalty system has been gradually peeling away, and the voices of those questioning its fairness are growing louder and louder. Now they can be heard from college campuses and court rooms and podiums across the Nation, to the Senate Judiciary Committee hearing room, to the Supreme Court. We must not ignore them.

That our society relies on killing as punishment is disturbing enough. Even more disturbing, however, is that the States' and Federal Government's use of the death penalty is often not consistent with principles of due process, fairness, and justice. These principles are the foundation of our criminal justice system. It is more clear than ever before that we have put innocent people on death row. In addition, statistics show that those States that have the death penalty are more likely to put people to death for killing white victims than for killing black victims.

After the death penalty was reinstated in 1976, the Federal Government first resumed death penalty prosecutions after enactment of a 1988 Federal law that provided for the death penalty for murder in the course of a drug-kingpin conspiracy. The Federal death penalty was then expanded significantly in 1994, when the omnibus crime bill allowed its use to apply to a total of some 60 Federal offenses. Since 1994, Federal prosecutions seeking the death penalty have now accelerated.

A survey on the Federal death penalty system from 1988 to early 2000 was released by the U.S. Department of Justice in September 2000. That report showed troubling racial and geographic disparities in the federal government's administration of the death penalty. In other words, who lives and who dies in the Federal system appears to relate to the color of the defendant's skin or the region of the country where the defendant is prosecuted. Attorney General Janet Reno was so disturbed by the results of that report that she ordered a further, in- depth study of the results. Attorney General John Ashcroft pledged to continue that study, but we still await the results of that further study. The Federal Government should do all that it can to ensure that no person is ever subject to harsher penalties, most importantly that of capital punishment, because of the color of the defendant's skin.

I am certain that not one of my colleagues here in the Senate, not a single one, would defend racial discrimination in this ultimate punishment. The most fundamental guarantee of our Constitution is equal justice under law, and equal protection of the laws.

While the Federal death penalty system is clearly plagued by flaws, there are 38 States across our Nation that also authorize the use of capital punishment. And like the Federal system, those systems are not free from error.

Over three years ago, Governor George Ryan took the historic step of placing a moratorium on executions in Illinois and creating an independent, blue ribbon commission to review the State's death penalty system. The Commission conducted an extensive study of the death penalty in Illinois and released a report with 85 recommendations for reform of the death penalty system. The Commission concluded that the death penalty system is not fair, and that the risk of executing the innocent is alarming real. Governor Ryan recently pardoned four death row inmates and commuted the sentences of all remaining Illinois death row inmates, after the State legislature failed to enact even one of the Commission's recommendations.

Illinois is not alone. Two years ago, then Governor Parris Glendening learned of suspected racial disparities in the administration of the death penalty in Maryland. Governor Glendening did not look the other way. He commissioned the University of Maryland to conduct the most exhaustive study of Maryland's application of the death penalty in history. Then last year, faced with the rapid approach of a scheduled execution, Governor Glendening acknowledged that it was unacceptable to allow executions to take place while the study he had ordered was not yet complete. So, in May 2002, he placed a moratorium on executions.

That study was released in January and the findings should startle us all. The study found that blacks accused of killing whites are simply more likely to receive a death sentence than blacks who kill blacks, or than white killers. According to the report, black offenders who kill whites are four times as likely to be sentenced to death as blacks who kill blacks, and twice as likely to get a death sentence as whites who kill whites.

Maryland and Illinois are not exceptions to a rule, nor anomalies in an otherwise perfect system. In fact, since reinstatement of the modern death penalty, 81 percent of capital cases across the country have involved white victims, even though only 50 percent of murder victims are white. Nationwide, more than half of the death row inmates are African Americans or Hispanic Americans.

There is evidence of racial disparities, inadequate counsel, prosecutorial misconduct, and false scientific evidence in death penalty systems across the country. While the research done in Maryland and Illinois has yielded shocking results, there are 36 other States that authorize the use of the death penalty, most of them far more frequently. Twenty-one of the 38 States that authorize capital punishment have executed more inmates than Maryland, and 13 of those States have carried out more executions than Illinois. So while we are closer to uncovering the unthinkable truth about the flaws in the Maryland and Illinois death penalty systems, there are 36 other states with systems that are most likely plagued with the same flaws. And yet, the killing continues.

At the beginning of 2003, at the beginning of a new century and millennium with hopes for great progress, I cannot help but believe that our progress has been tarnished by our Nation's not only continuing, but increasing use of the death penalty. We are a Nation that prides itself on the fundamental principles of justice, liberty, equality and due process. We are a Nation that scrutinizes the human rights records of other nations. We are one of the first nations to speak out against torture and killings by foreign governments. We should hold our own system of justice to the highest standard.

Over the last two years, some prominent voices in our country have done

just that. And they are not just voices of liberals, or of the faith community. They are the voices of Justice Sandra Day O'Connor, Reverend Pat Robertson, George Will, former FBI Director William Sessions, Republican Governor George Ryan, and Democratic Governor Parris Glending. The voices of those questioning our application of the death penalty are growing in number, and they are growing louder.

And while we examine the flaws in our death penalty system, we cannot help but note that our use of the death penalty stands in stark contrast to the majority of nations, which have abolished the death penalty in law or practice. There are now 111 countries that have abolished the death penalty in law or in practice. The European Union denies membership in the alliance to those nations that use the death penalty. In fact, it passed a resolution calling for the immediate and unconditional global abolition of the death penalty, and it specifically called on all states within the United States to abolish the death penalty. This is significant because it reflects the unanimous view of a group of nations with which the United States enjoys the closest of relationships.

On February 5, 2003, the International Court of Justice, ICJ, ruled unanimously that the United States must temporarily stay the execution of three Mexican citizens on death row in Texas and Oklahoma. There are currently 112 foreign nationals on death row in this country. Under Article 36 of the 1963 Vienna Convention on Consular Relations, local authorities are required to notify all detained foreigners ``without delay'' of their right to have their consulate informed of their detention. In most cases, this international law is not being followed. In fact, only seven cases of 152 reported death sentences have been identified as meeting complete compliance with Article 36 requirements. The purpose of this law is to ensure that foreign nationals are allowed time to secure adequate counsel during the critical stages of their cases. The February ruling of the ICJ was based on the need for an investigation into whether the foreign nationals on death row were ever given their right to legal assistance from their home governments.

What is even more troubling in the international context is that the United States is now one of only seven countries that imposes the death penalty for crimes committed by juveniles. So, while a May 2002 Gallup poll found that 69 percent of Americans oppose the death penalty for those under the age of 18, we are one of only seven nations on this earth that puts to death people who were under 18 years of age when they committed their crimes. The other are Iran, the Democratic Republican of the Congo, Pakistan, Nigeria, Saudi Arabia and Yemen. In the last decade, the United States has executed more juvenile offenders than all other nations combined, and in the last three years, only four nations have executed juvenile offenders: Iran, the Congo, Pakistan, and the United States.

Iran, the Congo, and Pakistan are countries that are often criticized for human rights abuses. We should remove any grounds for charges that human rights violations are taking place on our own soil by halting the execution of people who were not even adults when they committed the crimes for which they were sentenced to die. No one can reasonably argue that executing child offenders is a normal or acceptable practice in the world community. And I do not think that we should be proud that the United States is the world leader in the execution of child offenders.

As we begin a new year and another Congress, our society is still far from fully just. The continued use of the death penalty shames us. The penalty is at odds with our best traditions. It is wrong and it is immoral. The adage ``two wrongs do not make a right,'' applies here. Our nation has long ago done away with other barbaric punishments like whipping and cutting off the ears of suspected criminals. Just as our nation did away with these punishments as contrary to our humanity and ideals, it is time to abolish the death penalty as we seek justice in this new century. And it's not just a matter of morality. The continued viability of our justice system as a truly just system requires that we do so. And our Nation's striving to remain the leader and defender of freedom, liberty and equality demands that we do so.

Abolishing the death penalty will not be an easy task. It will take patience, persistence, and courage. As we work to move forward in a rapidly changing world, let us leave this archaic practice behind.

I ask my colleagues to join me in taking the first step in abolishing the death penalty in our great Nation. I also call on each State that authorizes the use of the death penalty to cease this practice. Let us step away from the culture of violence and restore fairness and integrity to our criminal justice system.

I ask unanimous consent that the text of the bill be printed in the Record.