Hometown Heroes Survivors Benefits Act of 2003

Madam President, it is a fair statement. In fact, I think in mid-July we finally got an agreement to organize the committee. Ten minutes after we got that agreement, I noticed the first hearing and set the first hearing on President Bush's judges.

The Republicans had been in charge up to that time--up until July-- and there were a number of nominees of President Bush, but they had not held any hearings whatsoever. I began the process of holding them within 10 minutes of the time I became chairman. Then, during the next 17 months, we held hearings on 103, we voted through 100, voted down 2, and had 1 remaining.

There is no 17-month period under Republican control with President Clinton when that was done.

The Senator is absolutely correct. Obviously, we all remember how much disruption there was. The letter to the distinguished Senator from South Dakota ended up closing the Hart Building and temporarily the Dirksen Building. The letter that was sent to me was so toxic that two people who touched it died. Died. We had not canceled a single hearing. In fact, on one day when the Senate was being evacuated because we had scheduled a time to vote out some of President Bush's nominees, I literally grabbed Senators and held them here long enough to vote out some of President Bush's nominees.

I say this knowing that when the Republicans were in charge and President Clinton was in office, we sometimes went 8 or 9 months without even having a vote on nominees. We were doing it several times a month.

I appreciate the Senator asking those questions.

The distinguished Senator is absolutely correct. I might say that I commend especially the staff who in some instances were working out of their cars, working out of my hideaway or in the hallways, just because even our committee rooms were closed. I had people working out of the family room in my house. We did all of this so we could continue what turned out to be a recordbreaking number of hearings and votes on President Bush's nominees.

Mr. President, I was about to congratulate the junior Senator from Tennessee on the same thing.

I am sorry that my good friend from Tennessee--whom I admire greatly; we worked together when he was in the President's Cabinet; we worked on many different things--I am sorry it happens to be a speech where he and I are on different sides. It was done with his usual care and cogency. He spoke to his experience, both as a former Governor with a distinguished record, a former Cabinet member with a distinguished record, one who served in business with a distinguished record. I appreciate having him here.

Sometimes debate can get rancorous and personal. To hear someone who takes a position, albeit different from mine, who does it with care, reflecting his past experience--I compliment the Senator from Tennessee.

Mr. President, we have heard a lot about Mr. Estrada and whether he has or has not answered questions. Obviously, I believe he has not. The President of the United States again today asked the Senate to do something that no President of either party should ask for. He asked the Senate to vote without having straightforward answers for a nominee for a lifetime position as a Federal judge on one of the most significant courts of this country.

That is not something that would help the Federal judiciary, but instead would set a dangerous precedent that would lessen the independence of the Federal judiciary. When a nominee does not answer basic questions, the Senate clearly has a constitutional responsibility to ask for the answers.

Mr. Estrada will not answer basic questions about his judicial philosophy, yet he has asked the Senate to confirm him to a lifetime job to the second highest court in the land where that judicial philosophy will determine, in many instances, which way that court will rule. That court affects every single American in countless ways through its decisions on everything from clean air and water to the rights of working men and women, from voting rights to all other civil rights law that protect minorities.

Becoming a Federal judge for a lifetime is a privilege, not a right. No nominee should be rewarded for stonewalling the Senate and the American people. The Constitution directs Senators to use their judgment in voting on judicial nominees, not to rubberstamp them.

The Democratic-controlled Senate confirmed a record 100 of President Bush's judicial nominees, acting faster and more fairly than the Republicans did with President Clinton's nominees. We began the process of the first hearing within 10 minutes of the time I became chairman of the Senate Judiciary Committee.

But President Bush has also proposed several controversial nominees, such as Miguel Estrada, who divide the American people and the Senate. The President can end this impasse. I hope he will act to give Senators the answers they need to make informed judgments about this nomination. The President can also help by choosing mainstream judicial nominees who can unite instead of divide the American people. The White House knows very well how easily and quickly they can bring this matter forward for a vote. They would rather make a political statement than to have a vote on a nomination.

Especially at a time when we have so many other issues before us--it has been said a record number of Americans are out of work--when a record number of jobs are being lost in this country, when more jobs are being lost under the President than any President, certainly in my lifetime, we are going to spend week after week in the Senate regarding an extremely highly paid lifetime job for one person.

It would seem a little bit more fair to those who do not have lifetime jobs, to

those who are not paid this amount, to the millions of Americans who have lost jobs during the last 2 years, to talk about ways of putting them back to work. I hope the President will pay attention to that.

I said more people have lost jobs during his Presidency than during the Presidency of certainly every President I have served with, and I believe any President in my lifetime.

We should be talking about preserving prescription drugs. Senator Feingold will introduce the Preserving Prescription Drug Discount Act tomorrow. I am pleased to be an original cosponsor of this important legislation. It will address an issue of great concern to me and to so many of the moderates. American drug companies threaten to stop doing business with Canadian pharmacies. How does this affect us? Every one of us who is in a State that comes along the Canadian border is affected. This legislation is a response to the announcement by pharmaceutical giant GlaxoSmithKline to stop supplying Canadian pharmacies that provide American consumers the same prices the Canadians receive.

It is a sad commentary that the richest, most powerful nation on Earth has so many of our citizens who are forced to choose between buying necessities such as food and heat and the prescription drugs they need to live healthy, productive lives. Many Vermonters in these difficult circumstances cross the border into Canada to purchase prescription drugs at dramatically lower prices, sometimes saving up to 80 percent. There is a need for lower cost prescription drugs. It is unconscionable that at a time when pharmaceutical industry profits are soaring, a company such as Glaxo targets the most vulnerable consumers in order to protect what is for them a very large bottom line.

When we have 45 million Americans, most of them working Americans, who do not have medical insurance in this country, we have millions out of jobs and who have lost their jobs in the last 2 years, we ought to at least stand up and tell this pharmaceutical giant: Do not cut off this lifeline.

Vermont is so often at the forefront of developing innovative strategy to combat high health care costs, including announcing a partnership with Michigan and Wisconsin to buy prescription drugs in bulk. This will save the residents of these three States millions of dollars, and it is a step in the right direction toward making prescription drugs more affordable for our citizens.

Unfortunately, for the same consumers, Glaxo's new proposal represents a giant step backward. Both chambers of the Vermont State Legislature responded swiftly and passed a resolution regarding Glaxo's troubling plan, urging the company to reverse its policies. The Vermont lawmakers even went so far as to suggest it may consider requiring all of Glaxo's prescriptions to be considered through a review process before they could be prescribed to State-funded programs.

The Preserving Prescription Drug Discounts Act that my friend, Senator Feingold, will introduce tomorrow, goes one step further than the Vermont House's recommendation.

Under this bill, companies that discriminate against Canadian pharmacies that pass along discounts to American consumers would not be allowed to deduct expenses related to research and development from their taxes.

Glaxco's policy would punish American consumers. There is no other way to describe it. It is not a policy that American taxpayers should support with Government benefits such as tax credits when they openly act to punish American consumers. We American consumers are also American taxpayers and should not have to give them even further benefits.

I hope the quick passage of this measure will prompt Glaxco to reconsider its policy. It is a wrong policy. It is a mean policy. It is an irresponsible policy. I hope other companies will think twice before copying such a mean and irresponsible policy.

We have a responsibility to take the steps necessary to ensure that our citizens have access to health care, including prescription drugs they need and deserve.

I have worked over the years to ease access to generic drugs, to ensure privacy for individuals' medical records, and to continue to work to ensure that our seniors and individuals with disabilities would soon have a voluntary prescription drug benefit as part of Medicare.

The health care challenges facing our Nation are complex. The solutions are not easy. It may take some time to find the necessary solutions to these challenges. In the meantime, we must embrace the issues we can promptly address. That is what the Preserving Description Drug Discounts Act will do. I hope other Senators will join in supporting Senator Feingold.

Mr. President, as I said, I think it is unfortunate. This matter could easily be resolved. The White House is uninterested in doing that.

The President's Counsel almost derisively dismissed a suggestion made by one of the respected senior Republicans in this body for resolving this issue. It makes me think they do not want to bring this to a vote. They would rather talk about bringing this to a vote. That does very little for either the independence of the Federal judiciary, and certainly the question of the independence of the Senate.

At times I get the impression the White House considers the Senate some kind of a constitutional nuisance to be ignored. It is almost as though they issue marching orders, and the Senate should fall in line, from how we should organize on through.

Presidents come and go. I respect all the Presidents and admire their willingness to lead our great country. But the Senate stays here long after any individual President. We either fulfill our obligations of advice and consent or we become a rubberstamp. Prior to my becoming chairman, for 6 months the Republican majority of that time did not hold a single hearing on any of President Bush's judicial nominees. In 17 months I held hearings on 103, we confirmed 100, and voted down 2. That is on top of hundreds upon hundreds of other nominees for everything from U.S. Marshals to the Director of the INS to the head of the Drug Enforcement Agency to the U.S. attorneys. It was pretty productive.

When I listen to some of the statements being made by my friends on the other side, you would think we did nothing. Maybe they are thinking of the months upon months upon months when they would not move any judges for President Clinton and do not want to look at the fact that we were moving them almost every week. We had to, during 17 months. During those 17 months we had recesses, adjournments, anthrax attacks, the Senate being closed down after September 11. We kept turning out these judges.

Many were controversial. Most were conservative. We kept turning them out. Maybe to obscure the fact that we were moving President Bush's judges much faster than the Republicans moved President Clinton's, when we actually dared vote against one, the attacks that came. We were misquoted for our reasons. We had a judge who was defeated basically on questions of competence and willingness to follow the law. The Democrats who voted against him had all kinds of motives ascribed to them. We were told we called him a racist, even though I heard Democratic Senator after Democratic Senator say they did not consider him that. We had the religion of the majority of Members, Democratic Members in the Senate, attacked--including high officials of the Republican Party attacked the religious backgrounds of at least 8 members of the 10 members, Democrats in the Senate Judiciary Committee. But nobody, nobody wanted to discuss the fact that this particular judge was voted down because he was not qualified to be a circuit court of appeals judge.

These are the kinds of things. It is almost like no good deed will go unpunished. The Democrats moved through judges much faster for President Bush than Republicans did for President Clinton, and we are the ones being called obstructionists.

Mr. Estrada's short legal career has been successful. By all accounts he is a good appellate lawyer and legal advocate who has had a series of prestigious positions and is professionally and financially successful. As the grandson of immigrants, as a son, a father and grandfather, I know that no matter the

country of origin or economic background, a family takes pride in the success of its children. Mr. Estrada's family has much to be proud of in his accomplishments, regardless of the outcome of this nomination.

Mr. Estrada, who is now 41 years old, has a successful legal career at a prominent corporate law firm, which was the firm of President Reagan's first Attorney General William French Smith and that of President Bush's current Solicitor General Ted Olson. I am told that Mr. Olson, along with Kenneth Starr have been among Mr. Estrada's conservative mentors. At his relatively young age, Mr. Estrada has become a partner in the law firm of Gibson, Dunn & Crutcher having previously worked with the Wall Street law firm of Wachtell, Lipton, Rosen & Katz. While in private practice his clients included major investment backs and health care providers. Mr. Estrada's financial statement, which Senator Hatch inserted into the Congressional Record, says that he earned more than $500,000 a year two years ago and makes him look like a millionaire. At his hearing, Mr. Estrada testified: ``I have never known what it is to be poor, and I am very thankful to my parents for that. And I have never known what it is to be incredibly rich either, or even very rich, or rich.'' I will let his financial statement speak for itself on that point.

Mr. Estrada appears to be a highly successful and well-compensated lawyer in a first-rate law firm. As I say, his family and friends surely take pride in this success, and rightly so.

In the almost six years he has been with Gibson, Dunn & Crutcher, with its thriving appellate court practice and the successful Supreme Court practice developed by his senior partner Ted Olson, who was confirmed to be Solicitor General in June 2001, Mr. Estrada has apparently had only one argument before the Supreme Court, however. That was in connection with a habeas petition on which he worked pro bono when he first came to the firm. This is also one of the only pro bono cases he has taken in his entire legal career.

I would also note his role developing legal arguments and writing briefs on behalf of Governor Bush following the 2000 election that resulted in a 5 to 4 majority of the United States Supreme Court's intervention to halt the counting of ballots in Florida and resulting in the selection of President George W. Bush. This information failed to make it into Mr. Estrada's Judiciary Committee questionnaire and list of top 10 legal matters. We know about his involvement in that case because the Puerto Rican Legal Defense and Education asked him about it and included reference to it in their extensive report on this nomination.

Much has been said of Mr. Estrada's time working in the Office of the Solicitor General at the Department of Justice. I understand he was hired for that role by Kenneth Starr when he was the Solicitor General for the first President Bush in 1992. It was in that government post which Mr. Estrada continued during the first term of the Clinton administration in which he had 14 opportunities to argue before the Supreme Court. Of course, one of the principal functions of the Solicitor General's Office is to argue for the Government in behalf of the Supreme Court, and in fact argues more than anybody else. So it is no surprise when attorneys do so.

But there comes the rub. Mr. Estrada's supporters make much of his four and a half years in the Solicitor General's Office and say this qualifies him to an appointment to the DC Circuit. The work that he did, according to the supporters in the Solicitor General's Office, ipso facto qualifies him for appointment to the District of Columbia Circuit. But when we ask, Can we see the work he did? Oh, no, no. Take our word for it.

Interestingly enough, when I asked Mr. Estrada during the first meeting we had whether he had any objection to turning over the material and the work he did, he said no. He would be glad to. He is proud of it. It reflected his views. He would be glad to turn it over. When he was asked during the hearings whether he would be willing to turn it over, he personally would be willing to do so. He was under oath and he said certainly. But the administration says no.

The Administration is seeking to have it both ways: Credit Mr. Estrada with the experience while forbidding the Senate from reviewing for itself what he did in that government job. Given the public comments of a former Deputy Solicitor General and Mr. Estrada's direct supervisor at the Office of Solicitor General, as well as the lack of a written record of Mr. Estrada's views and judicial philosophy and Mr. Estrada's failure at his hearing to satisfy Senators by responding to their questions, there is ample basis on which to request the production of government work papers from the time during which Mr. Estrada was in the Solicitor General's Office. There is also ample precedent for such papers being shared with the Senate in the past.

It makes you wonder why they won't show us Mr. Estrada's paperwork. The same paperwork that was made available during the Carter administration. It was made available during the Reagan administration. It has been made available actually every time the Senate Judiciary Committee has asked for it.

The Democratic leader pointed out the way to resolve the stalemate in his February 11, 2003, letter. It is curious. We asked for materials of cases long since decided. We are not asking for material on a pending case. Certainly, if there is material on a pending case, I would be willing to listen to an argument to hold that back. But how can we argue to hold back on material on a case long decided?

When similar requests were made of material written by William Rehnquist, it was forthcoming. When similar requests were made for material written by Robert Bork, it was forthcoming. When similar material was requested written by Benjamin Civiletti, who became Attorney General, it was forthcoming. When similar material was requested for the nomination of William Bradford Reynolds, it was forthcoming. When similar material was requested for the nomination of Steven Trott, it was forthcoming. But then when it is requested of Mr. Estrada--and this is the only time I can remember such a request being turned down--it is turned down.

Again, you have to ask why. What is in there that they don't want us to see?

Take the public comments of a former Deputy Solicitor General, Mr. Estrada's direct supervisor at the Office of Solicitor General, as well as the lack of a written record of Mr. Estrada's views and judicial philosophy and Mr. Estrada's failure during hearings to satisfy Senators by responding to their questions, then there is ample bases on which to request products of Government workpapers during the time in which Mr. Estrada was in the Solicitor General's Office--papers put together and being paid for by the taxpayers in a job which the administration now says shows why he is entitled to be in this lifetime position. There is ample precedent for such papers being shared with the Senate in the past.

I cannot think of a time when the papers were requested when the administration turned them down.

Professor Bender, Mr. Estrada's supervisor at the Office of the Solicitor General, indicated that when he was supervising Mr. Estrada he did not view Mr. Estrada as reading the law fairly. He viewed Mr. Estrada as one whose personal views and desires colored his readings and presentations of the law, and as someone who might well be an ideologue to be appointed to the bench.

I would think if Senators are going to be fair about this nomination, whether they are Republicans or Democrats, they would want to know the answer to that before they put somebody in a lifetime position.

I would prefer not to until I finish these comments.

Thank you.

But the reason we say this, if this work is what qualifies him, then we ought to know what he did in this work.

Now, Professor Bender, Mr. Estrada's supervisor, is reported to have stated that Mr. Estrada was so ``ideologically driven that he couldn't be trusted to state the law in a fair, neutral way.'' He stated that he ``could not rely on [Mr. Estrada's] written work to be a neutral statement of the law.'' He also

indicated that he viewed Mr. Estrada as ``smart and charming, but he is a right-wing ideologue'' and one who ``lacks judgment.''

Now, this is somebody who has actually seen his work. Unlike those of us who are not allowed to see it, he has seen it.

Veteran Supreme Court lawyer Carter G. Phillips has also noted that Mr. Estrada, while ``extremely self-confident'' is a ``more strident personality'' than the other current nominee for this court, John Roberts.

In fact, when Professor Bender ventured these honest opinions, he suffered partisan attacks by Republicans. Similar to what happened to those of us on the Democratic side on the Judiciary Committee, who had our religion attacked by Republican officeholders because we dared to vote against one of President Bush's nominees, Professor Bender was attacked because he dared to question one of President Bush's nominees.

He was maligned for serving as the general counsel to a commission appointed by President Nixon. He was maligned for legal positions taken by the Clinton administration. Republicans have chosen character assassination and demonization of Professor Bender. Their approach is to deny access to Government records and to seek to destroy anyone who would raise a concern about Mr. Estrada's ideology affecting his legal work.

To his credit, Professor Bender was not intimidated by these personal attacks. He wrote to Chairman Hatch reaffirming his views just days ago. He also did this because he found that he was being misquoted time and time again on the floor of the Senate, and he wanted us to know exactly what his views are.

Contrast this to what the Senate Democrats are trying to do. We would like to get to the merits of the matter. The administration has responded by stonewalling our request. They have attacked us for our attempts to reach a fair resolution of this matter.

I would like to have the papers. I would like to have a hearing where we could ask questions from the papers, where we actually know what is in these things that they say substantiate the reason for Mr. Estrada's nomination.

The administration wants to have it both ways. They say, if you saw these brilliant writings, then you would want him to be a judge. So we say: Fine, let's see the writings. They say: Oh, no, you can't see them. Take our word.

You can't really have it both ways. If this is what shows he is qualified to be a judge, then let us see what is in it and then let us make up our own minds. Then Senators can vote for or against, but at least they will know what it is based on.

One major person in his department says he is not qualified. We are not relying on that. We would like to see the papers and make up our own mind.

One of the significant questions raised by this nomination is whether Mr. Estrada will be a fair judge without a political agenda. To ascertain that, let's review his work when he was serving in a position of trust for the United States, paid for by the American taxpayers.

I believe it is fair to explore whether Mr. Estrada stated the law in a fair and neutral way while asked to do so in the Solicitor General's Office. Remember, the Solicitor General is not just an advocate before the U.S. Supreme Court. The Solicitor General is that unique person, in arguing before the U.S. Supreme Court, who is expected--by the Court and by the American people--to state the law objectively.

I have heard the Solicitor General before the U.S. Supreme Court--in years past, and even from my days in law school--saying things to the effect: Here is the law that would uphold the position of the Government, but the Court should be aware that there is another body of law on the other side. They are supposed to state it fairly and impartially so the Court can rely on them.

Having said that, we have somebody in the Solicitor General's Office preparing this material so that the Supreme Court can be given an objective, fair, and evenhanded view of the law. Isn't it fair game to ask whether that person fulfilled their duty in the Solicitor General's Office? Isn't it fair to ask, when they prepared such material, whether they did it in a fair, evenhanded fashion? Or did they do it in an ideological manner? Did they do it to carry out an agenda?

I think it is a particularly significant question. We are faced with a nominee for a lifetime appointment to a Federal court, and to a Federal court as important as the D.C. Circuit. Usually when somebody is being nominated to such an important court, they have been a judge, they have been a district court judge, they have had a position where you have been able to see how they interpret the law and how they use it, and whether they did so fairly.

That is not the case here. Here we have one place--one place--where by law, custom, and practice he is required to state the law in an evenhanded fashion, not ideologically driven but impartially driven. And the one place where we can ask whether he did that or not, the administration says: Trust us. He did, but we will not show you.

I remember that wonderful saying that President Reagan made up, to the great surprise of the Russians, because he said it was a Russian saying it; but, still, it is a wonderful saying, where he said: Trust but verify. Well, I am tied at the hip with former President Reagan on this one. I will trust, but I would like to verify. I would like to verify.

I think Senators should have the opportunity to review for themselves the documents Mr. Estrada wrote and make their own independent judgments about Mr. Estrada's writings and his ability to apply the law without regard to strongly held personal beliefs.

Objectivity and openmindedness are crucial to appellate deliberations and decisionmaking. This is an area where we could answer that question. We can answer the question. In the Office of the Solicitor General there is a requirement to be objective, not ideological, a requirement to be straightforward and not political. But we are not allowed to see whether he fulfilled that requirement. Don't you think we should at least ask if it was there?

If he had been a district judge before, and had written opinions, which would show whether he was objective and evenhanded, wouldn't we say, let's read them? I cannot imagine any Republican or Democrat saying we would not read them before we made up our mind.

Well, he was not a district judge. But he was in a position where he was required to be nonideological, where he was required to be honest, where he was required to be straightforward, where he was required to be nonpolitical, and we are not allowed to see that record.

Let's see the record. Let us ask questions about it, especially in this case, where one of the people who has looked at the record--one of his supervisors--questions whether he was objective. Isn't that something we should determine? In a job where he was required by law, by practice, and by custom to be objective and nonideological, and intellectually honest, if you have somebody who says he was not, so shouldn't we know that? Because if that is the case--when he is there just for a term--how much worse will it be if it is a lifetime position?

Let's have those papers. Let's ask the questions. Then let Senators make up their minds. I am never going to vote for a judge if I cannot have the answers. I remember when President Clinton had nominees held up here for 2, 3, 4 years. My friends on the Republican side asked question after question. Some were legitimate, some were not. I remember one being asked how she voted on a secret ballot in a State election. I think we can all agree that is a question nobody should be asked--how they vote in an election in a State. But we waited year after year, and they said they must have these answers. Shouldn't we?

I heard that Mr. Estrada was editor of the Harvard Law Review. Some have gone so far as to make it seem as if he was editor in chief or president of the review. That would be pretty impressive. Actually, he was one of 70 student editors working at the Harvard Law Review in 1986. That should be impressive enough. I think most law students would say that is pretty darn impressive. But you don't have to embellish it, as some of his supporters have, and make it far more than what it was. I am impressed that he was 1 of 70. You don't have to embellish it to say he was the No. 1 editor in chief.

We have a lot of people who fall into that category. Claire Sylvia, who worked for a time at our Senate legal counsel's office, was one of those editors. I never remember her claiming to be the editor in chief.

Yes.

Yes, 70.

That is what I am saying. We have had a lot of people who worked for the Senate and for our committees and worked for various Senator's offices who have been one of those 70. It is a proud achievement. I keep worrying when we are seeing somebody gilding the lily on this person, when we see his background and his history change constantly to make it better and better. Well, he has things to be proud of, but you wonder why his supporters have to constantly change it and embellish it.

Jeff Toobin, who has become a journalist, author, and legal commentator, was a student editor there that year. Actually, the supervising editor, who had a far more significant position, was none other than Elena Kagan. I mention this because my friends on the other side said that Mr. Estrada's being one of the 70 editors is reason to be on the court. Elena Kagan was a supervising editor. Now, that is really significant. Professor Kagan is a Harvard law professor. Professor Kagan served as Mr. Estrada's supervising editor, got the highest qualification by the ABA; and based on those qualifications, President Clinton nominated her to the DC Circuit.

I mention this because so much has been made by those on the other side, who say even if you are one of the 70 editors, and got a high qualification from the ABA, that should be enough. Elena Kagan was a law professor and was a supervising editor. She was nominated by President Clinton, but guess what happened. The Republicans never allowed her to even have a hearing, to say nothing of a vote. She was humiliated, not even allowed to have a hearing, to say nothing about a vote.

I worry when I hear Mr. Estrada's supporters talk about his family history. I was impressed when talking to him about his family. But I remember the first stories, and you have heard them repeated here. You almost thought he was a barefoot immigrant coming to America, unable to speak English, and so on and so forth. Actually, he grew up in a relatively wealthy and privileged household. His parents sent him to private school in Honduras, where the annual cost was almost the same as the annual per capita income for most Hondurans during that period.

According to news accounts, his late father was a prominent and politically conservative lawyer who helped found the country's first private university and was also a bank vice president.

I recall that the Honduran Ambassador took time out from his busy schedule last fall to attend a Judiciary Committee hearing, which made me think about the rumors that had circulated that Mr. Estrada's family included relatives who had been on the country's diplomatic corps. I understand his mother was a successful accountant in her own right. She should be proud of that. She is the daughter of a teacher-diplomat. Mr. Estrada completed 12 years of primary and secondary education at a private academy and at a university where he studied English. These are all commendable things--but a lot different than the image we are given.

Again I ask, why not just tell the story as it is? Why not tell the story straightforward and show us the papers straightforward? Why do you have to constantly embellish things? That is why when I am told by the administration: Just trust us, we have looked at the papers and he was objective and honest and nonideological, take our word for it--I haven't been able to take their word for much in this case so far. Why should I take it for something that they don't want me to see?

We do know some things about him. According to news accounts, after one of his mentors, Kenneth Starr, left the Office of the Solicitor General, he said Estrada was ``left working for a Justice Department whose views he didn't always agree with.''

While at the Solicitor General's Office, Estrada did argue 14 cases before the Supreme Court, primarily criminal matters, but sometimes in the area of banking law. It is worth noting that Seth Waxman was not listed as Solicitor General on the briefs of any of those cases and, apparently, did not directly supervise his work.

When he joined Gibson, Dunn & Crutcher and worked with Ted Olsen, Mr. Estrada gave interviews in which he defended Ken Starr's investigation of President Clinton. He has a right to do that. Some of us would question the $75 million to $100 million that was wasted on the investigations, but Mr. Estrada felt they were well worthwhile. He helped on then-Governor George Bush's litigation over the election results in Florida. He went on to the Justice Department transition team.

I outline this personal history because some partisans have taken liberties with Mr. Estrada's personal and professional background in order to try to make his case more compelling. There is no doubt that Mr. Estrada is a rising star in conservative legal circles. He is a Federalist Society member and has been mentored by Kenneth Starr and Ted Olson.

Certainly, he has a right to be involved with the Federalist Society. There is nothing wrong with that. In fact, he should probably use the membership.

One judicial nominee at his hearing was honest and said he hadn't really heard of the Federalist Society. But he was told if he wanted to be a judge with this administration, he better go join it. He did and he is a judge. It worked for him. In this case, it has served him well, as it has a number of other executive branch nominees.

This organization is sometimes mischaracterized as a mere debating society, and, as I said, one nominee was very honest while under oath and said: Yes, he was told to join it.

They say about themselves:

The Federalist Society for Law and Public Policy Studies is

a group of conservatives and libertarians interested in the

current state of the legal order.

They state one of their goals is the ``reordering of priorities within the legal system'' and its objective ``requires restoring the recognition of the importance of lawyers, judges, and law professors.''

I am not sure how Mr. Estrada plans to reorder priorities and values if he is confirmed as a judge, but we know he has strongly held views he will not share with us. Again, we go back to the one area where he is required to be objective, not ideological, and nonpolitical, and that it in the Office of the Solicitor General. But those writings we are not allowed to see. Those writings would show if he is able to be nonideological, nonpolitical, and straightforward because he is required to in the Solicitor General's Office, but they will not show us what he wrote.

What worries me is that a man who has had so many embellishments made on his record by his supporters, when his supporters question everything from the religion to the biases of those who dare question him, it makes one wonder why do they hide this.

In his hearing testimony, Mr. Estrada did admit ``having made some pretty ruthless assessments and the legal views of some [government] agencies which I'm glad to say were sometimes vindicated in the courts later. . . .

He did not tell us what those assessments were. He did not say which cases vindicated his views. We are left to wonder whether given the awesome power of a lifetime appointment as a Federal judge that he would act on his own ``ruthless assessments'' or on the facts, the litigants, and the law before him.

His friends and supporters acknowledge that Mr. Estrada has strong conservative views. In fact, they acknowledge far more than Mr. Estrada himself. His classmate Arturo Corrales, a former Presidential candidate in Honduras, said Mr. Estrada's socially conservative views were already evidenced when he was a teenager, including his opposition to abortion. Other colleagues acknowledge his strong views as well. His former law school classmate, Ron Klain, supports him even though Mr. Estrada is ``politically conservative'' and ``has passionate views

about legal policy.'' His former colleague Robert Litt supports Mr. Estrada's confirmation, even though he disagrees with his ``legal philosophy.''

They do so, however, with the luxury of knowing what Mr. Estrada's views of the Constitution are. That is a luxury that 100 Members of this body do not have. Mr. Estrada refused to share those views with those entrusted by the Constitution with determining whether he should be accorded the power of a lifetime Federal judicial appointment. The Senate wants to know before making that decision whether he can be trusted to apply the law fairly and impartially without regard to his deeply held ideas and views, whatever they may be. It is hard to imagine that he would freely cast his views aside and be objective in a court when he will not even tell us what they are.

Members of the Congressional Hispanic Caucus who met with him noted that Mr. Estrada ``did not demonstrate a sense of inherent `unfairness' or `justice' in cases that have had a great impact on the Hispanic community.''

They noted that, in their view, the ``appointment of a Latino to reflect diversity is rendered meaningless unless the nominee can demonstrate an understanding of the historical role courts have played in the lives of minorities in extending equal protections and rights.''

Similar concerns have been raised by the Latino Vermonters and many others. For example, the Puerto Rican Legal Defense and Education Fund--this is a national civil rights organization concerned with advancing the civil and human rights of the Latino community, also submitted a strong statement of opposition, and they reviewed all his available writings.

They conducted dozens of interviews with individuals who have studied and worked with Miguel Estrada, and well as those who lived in the same communities with him. They also surveyed news reports and public materials concerning Mr. Estrada.

They also interviewed Mr. Estrada. They noted that ``a number of his colleagues have said unequivocally that Mr. Estrada has expressed extreme views that they believe to be outside the mainstream of legal and political thought.''

They go further to say that he has ``made strong statements that have been interpreted as hostile to defendants' rights, affirmative action, and women's rights.''

They also expressed concern about his temperament. They interviewed people who described him as ``arrogant and elitist'' and that he ``harangues his colleagues'' and ``doesn't listen to other people.'' In their interview, Mr. Estrada was not even tempered and was ``contentious, confrontational, aggressive and even offensive in his verbal exchanges'' with them.

After a thorough review, the Puerto Rican Legal Defense and Education Fund concluded that Mr. Estrada was not sufficiently qualified for a lifetime seat on the Nation's second highest court, and then the PRLDEF said ``that his reportedly extreme views should be disqualifying; that he has not had a demonstrated interest in or involvement with the organized Hispanic community or Hispanic activities of any; and that he lacks the maturity and judicial temperament necessary to be a circuit judge.''

Similarly, the Mexican American Legal Defense and Education Fund, MALDEF, and California La Raza Lawyers, CLRL, have expressed ``serious concerns about whether Mr. Estrada would fairly review issues that came before him. MALDEF and CLRL said:

[I]t is unclear whether he would be fair to Latino

plaintiffs as well as others who would appear before him with

claims under the first amendment, the fourth amendment, the

fifth amendment, and due process clauses in the U.S.

Constitution. Further, we found evidence that suggests he may

not serve as a fair and impartial jurist on allegations

brought before him in the areas of racial profiling,

immigration, and abusive or improper police practices where

those practices are adopted under a ``broken window theory''

of law enforcement. We have concerns about whether he would

fairly review standing issues for organizations representing

minority interests, affirmative action programs, or claims by

low-income consumers. We are also unsure, after a careful

review of his record, whether he would fairly protect labor

rights of immigrant workers or the rights of minority voters

under the Voting Rights Act.

These are leading Latino organizations that say that about him.

We have heard from numerous chamber of commerce-related organizations and Republican organizations expressing support, the same Republican organizations able to send five people to Vermont to talk about him. They were really silent when other Latinos were nominated to the court by President Clinton. There are Latino judges out there; 80 percent of the Latinos on the courts of appeals now were appointed by President Clinton. There actually would have been several more, but they were blocked by the Republicans. They were not allowed to have hearings, they were not allowed to have votes, and none of these Republican organizations that are suddenly concerned about the plight of Latinos came forward when one after another was blocked by the Republicans during the Clinton administration.

The spokesperson for the newly minted Coalition for a Fair Judiciary--I love these terms--explains that organization is made up of 70 or more conservative organizations, arose from a similar group called Americans for Ashcroft and is supportive of President Bush's judicial nominees because of their ideology.

We are not allowed to question ideology, but the supporters say because of their ideology they should be confirmed.

Diversity is one of the great strengths of our Nation, and that diversity and background should be reflected in our Federal courts. I only wish some of these same conservative organizations suddenly available today were interested in diversity when President Clinton's minority women nominees were being delayed and derailed by Senate Republicans between 1996 and 2001. They were nowhere to be found or worse yet, arguing for delay, obstruction and defeat of those qualified Hispanic, African-American and female nominees.

Race or ethnicity and gender are, of course, no substitutes for the wisdom, experience, fairness, and impartiality that qualify someone to be a federal judge entrusted with a lifetime appointment. White men should get no presumption of competence or entitlement. Hispanic and African American men and women should not be presumed to be incompetent. All nominees should be treated fairly.

When one gets down to the bottom line, the burden of proof of suitability for lifetime appointment rests on the nominee and the Administration. We must carefully examine the records of all nominees to high offices, but we know the benefits of diversity and how it contributes to achieving and improving justice in America. As Antonia Hernandez wrote in the Wall Street Journal: ``The fact that a nominee is Latino should not be a shield from full inquiry, particularly when a nominee's record is sparse, as in Mr. Estrada's case. It is vital to know more about a nominee's philosophies for interpreting and applying the Constitution and the laws.'' Members of the Congressional Hispanic Caucus has said much the same thing.

Our freedoms are the fruit of too much sacrifice to fail to assure ourselves that the judges we vote to confirm have a commitment to upholding the Constitution, following precedent, and listening to claims without fear or favor. When a President is nominating individuals to tip the balance, stack the deck, or to pack the courts with ideologues, the Senate would be abdicating its responsibilities to ignore the very criteria that led to selection of such a nominee.

So, when some organizations come forward and say they are supporting a nominee because of their ideology, they cannot at the same time say we should not ask about that ideology. When the supporters come forward and say his brilliant writings in the Solicitor General's Office qualify him to be a judge, they cannot then in the next breath say, but you cannot see what those brilliant writings were, you have to take our word for it.

Under our Founders' design, the political branches share the power of appointment: the President has the power to nominate or propose judges, but the Senate has a corresponding power to confirm or reject those nominations. That is one of the ingenious checks and balances of our federal system. If a nominee's record, or lack of a record, raises doubts, these are matters for

thorough scrutiny by the Senate, which is entrusted to review all of the information and materials relevant to a nominee's record relating to fairness, impartiality, bias, experience, or other matters.

Unlike elected officials, these are lifetime jobs, so the Senate Judiciary Committee must undertake an inquiry to be assured that a nominee should be confirmed to high office. When there is no judicial experience to look to, it is all the more critical that the Committee inquire fully into a nominee's experience, record, views and understanding of our fundamental rights.

Now, Chairman Hatch is saying precisely the same thing I am saying. The difference is, he said this speaking to the Federalist Society. He said this when President Clinton was nominating the judges, not when President Bush was nominating them.

In 1997, he told the Utah Chapter of the Federalist Society that ``the Senate can and should do what it can to ascertain the jurisprudential views a nominee will bring to the bench in order to prevent the confirmation of those who are likely to be judicial activists. Determining who will become activists is not easy since many of President Clinton's nominees tend to have limited paper trails . . . . Determining which of President Clinton's nominees will become activists is complicated and it will require the Senate to be more diligent and extensive in its questioning of nominees' jurisprudential views.'' In the case of Mr. Estrada, however, the nominee has refused to provide us many answers at all about the types of jurisprudential views referenced by Chairman Hatch.

Sauce for the goose, Mr. Chairman, sauce for the gander. You were right then. I take the same position today. I am right.

The difference is, President Clinton's nominees turned over those papers.

Most Americans want nominees who will be fair and impartial judges. An independent judiciary is the people's bulwark against a loss of their freedoms and rights. I think the rights at stake are simply too important to take a chance on a lifetime appointment to this high court, to make a decision we cannot reverse, if Mr. Estrada were to turn out to be the activist and ideologues that many of those who have heard him speak candidly. What little record we have calls into question whether he would be neutral referee or an advocate and activist from the bench.

In closing, he had a job in which he was required by law, by custom, by practice, to be impartial and nonideological. He wrote extensively in that taxpayer-funded job where he was required to be nonideological, impartial, straightforward, but he will not show what he wrote.

We are told by the administration, trust us. We have looked at it. He is impartial. We say, then let us see it. Ah, you say, well, then you are a racist, or you have a religious bias, or whatever might be the reason of the day. We have heard so many misstatements from the other side about Mr. Estrada, let's go to the one thing that can be looked at objectively: His writings.

It can be done. A distinguished member of the other party has suggested that it be done. The White House ought to listen to him and they should stop saying opposition to the nomination of Miguel Estrada is anti-Hispanic. We have risen in this Chamber day after day to demonstrate why this is false, referring to, among other things, the numbers of well-known and well-respected Latino organizations who also oppose this nomination.

We have introduced into the record letters from organizations such as the Mexican American Legal Defense Fund, opposed to Mr. Estrada; the Southwest Voter Registration and Education Project, opposed to Mr. Estrada; the Puerto Rican Legal Defense and Education Fund, opposed to Mr. Estrada; a letter from 52 Latino labor leaders, opposed to Mr. Estrada; the Puerto Rican Bar Association of Illinois, opposed to Mr. Estrada. Each one of these explain their thoughtful and principled opposition to Mr. Estrada's nomination.

Today we received another letter from another Latino organization expressing its opposition to the Estrada nomination. The Hispanic Bar Association of Pennsylvania has written that it, too, opposes Mr. Estrada's confirmation to the U.S. Court of Appeals for the DC Circuit. The Hispanic Bar Association of Pennsylvania did not come to this decision lightly.

As the letter says, they created a special committee on judicial nominations. They developed a process to review candidates for the Federal judiciary. They examined Mr. Estrada's record. They considered a variety of factors in their evaluation. They even asked Mr. Estrada to come meet with them. In the end, they conclude they must oppose him. I respect what must have been a difficult decision, but I think letters from the Hispanic Bar Association of Pennsylvania and all these other Latino organizations in opposition to him show that the opposition is not just because he is Hispanic.

I ask unanimous consent that the letter be made a part of the Record.

I see my good friend, the distinguished chairman, on the floor. I hope he has had a chance to go out and get a bite to eat, as we have been doing. He certainly deserves it.

(The remarks of Mr. Leahy pertaining to the introduction of S. 459 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

I thank the Chair. I yield the floor.

Madam President, will my friend yield briefly for a followup to Senator Sarbanes' questions?

I thank my friend. I wish to add my voice to that of Senator Sarbanes and thank the Senator from West Virginia for his great leadership. I want him to know that in California, my constituents have talked to me about the Senator's statements many times. I spent the week in California, and they have received through e-mail a copy of the most recent statement Senator Byrd made on the Senate floor. It gives them hope to know that he is out here with all his years, his sage years here, and it really helps. It is a great help to me as well as a newer Senator, although one who has been here for 10 years and 10 years on the other side.

I wish to pick up on the questions of, as we look at the costs of this war, to set aside the human costs, about which I have spoken at length and about which the Senator from West Virginia has continually been so eloquent, there is also the cost, for example, of payments to our friend and ally, Turkey, which, as I understand it, also is not in the budget request; am I correct?

We are hearing everything from $6 billion in cash to an additional $10 billion to $20 billion in loan guarantees, and yet not a word in the budget. I wish to ask a final question of my friend, and that is, I was amazed to read that our friend, Carl Levin, on

the Armed Services Committee, was asking questions of the Pentagon about how many troops would be needed in the aftermath of war, immediately following perhaps for 2 years, perhaps longer, the number of troops that need to be put out there. The answer was 200,000 troops, and it took the breath of many of our colleagues. Again, I ask my friend a question: Is there any mention of that fact in the 2004 budget and the impact of that on our budget?

Does my friend know what they are talking about in terms of the number of troops? I suppose a lot would depend upon whether we have a lot of our allies with us, would it not?

In closing, I again thank my friend very much. The fact that a general, a very highly placed general, would come out with a number that is not correct, is in itself astounding. It means he certainly is not informed either. Not only are we uninformed, but he is uninformed, and this should give even more pause about this whole situation. I thank my friend for the energy he is putting into this issue. Again, my people in California are very grateful for what the Senator from West Virginia is doing.

Madam President, I take this opportunity to address the Estrada nomination and a couple of other issues that the people in my State care a lot about.

Before he leaves, I wanted to say to my friend from Minnesota that I know he was not in the Senate during the last filibuster on the court nominee--actually, there were two including the Abe Fortas nomination in the 1960s--and they occurred in the year 2000. They were launched by Members of the Republican side of the aisle, and they were directed at a woman named Marcia Berzon and a man named Richard Paez.

In addition to the filibuster----

I would be delighted to.

My friend is incorrect. Here is what happened. It took 4 years, I say to my colleague, to get the Republicans to bring the nomination of Richard Paez to the floor of this Senate. How do I know? Because I had recommended Judge Paez first for the district court, where he got immediate approval.

I would like to answer my friend before I yield, and I will be glad to yield to my friend all night long, believe me, if he wants to stay and engage. So relax and we will get to his questions.

My friend was not here. It took 4 long years to get the Republicans to relent. This is Republicans, the Senator's party, who voted to seat him on the district court unanimously. When he was nominated for the circuit court, it took 4 years. There was extensive questioning back and forth, written questions, oral questions. Then there was a filibuster. My friend says it only lasted 2 days. It was 4 years and 2 days.

I say to my friend, the only reason in the world that filibuster was ended is because we had the votes to stop it. The Senator does not have the votes to stop this filibuster. If he did, it could be done in a minute. The reason there are not the votes is because this man will not answer questions, despite the fact that my friend read some answers. I have a lot of other things to put in the Record tonight that will challenge that.

Before he leaves, I say to my friend, in answer to his question and before I yield further, this was a clear filibuster. I am going to give a quote.

I must confess to being somewhat baffled that after a

filibuster is cut off by cloture the Senate could still delay

a final vote on the nomination.

I say to my friend, who called what happened to Richard Paez a filibuster? None other than the Senator's chairman, Orrin Hatch. It is in the Congressional Record.

I am glad to yield to my friend for a further question.

I say to my friend, the day this nomination was brought to the floor, the Republican side could have filed cloture, just as we did, but they are choosing not to do it. There can be a vote on cloture today. It could be tomorrow.

Not only that, when this man answers questions, the vote is going to be won. The Senator is going to have his vote.

I have been around a long time in public life, 10 years in the House, and 10 years in the Senate. I have never seen such a systematic plan not to answer basic questions. Can anyone imagine a man who cannot answer a question if there was ever a Supreme Court case that he disagreed with? I daresay I do not know anyone in the country, lawyer or not, who agrees with the Dred Scott decision. I do not know any person who is willing to say now that he believes separate but equal, Plessey v. Ferguson, was rightly decided.

This man cannot even say which Justice, dead or alive, he would emulate most. It is unbelievable. Except when it is put in the context of who was advising this man, and we have seen it time and again on the floor. They basically said: Do not answer any questions. This is a lifetime appointment. Do not blow it.

Absolutely.

The bottom line is who can file cloture? The Democrats can file cloture on this nomination. The question is, Was there a filibuster? My friend stood up and said there has been no filibuster since Abe Fortas in the

1960s, when his own chairman, Orrin Hatch said:

I must confess to be somewhat baffled that after a

filibuster is cut off by cloture the Senate can still delay a

final vote on the nomination.

By the way, there was a filibuster on Marsha Berzon. My friend ought to know, in addition to the filibuster, after we had won the cloture vote on the Paez nomination, there was an incredible motion filed to indefinitely postpone the vote on the nomination. Imagine, there is this fight; it lasted 4 years and several days on a filibuster. We win this, we get the votes, and then there is a motion from a Republican to indefinitely delay the vote, and even Senator Hatch was stunned. He said he was baffled that could even happen.

So for the Senator to say there has not been a filibuster since the 1960s on a judge is false. His own chairman admitted there was a filibuster.

Not only did his side launch a filibuster--my friend was not here; I don't mean to take it out on you--but as someone who knew how fine these two nominees were, they faced that filibuster. They answered the questions over and over again and finally got a vote.

That is the system here. It is misleading to the American public to hear this day in and day out. ``This is unprecedented to have a filibuster.'' What is unprecedented is that we have the votes to keep it going. You did not have the votes on your side to keep it going.

If my friend has no further questions, I will return to my original statement.

I thank my friend.

The point I make tonight, among several, is that we have been charged--those who want more answers from Miguel Estrada--with doing something that has never been done before when, in fact, in the year 2000, two nominees to the Ninth Circuit Court were filibustered and one of the two was not only filibustered, but after he won cloture there was a motion to indefinitely postpone the actual vote on his nomination. I had never seen that. I hope I never see it again. The fact is, there have been two filibusters led by Republican Members and those were defeated.

The second fact is that one of those particular individuals was the first Mexican American to serve on the Central District Court of California and the Republicans held him up for 4 years before we were able to break the filibuster.

It was quite a situation. My friend from Minnesota said--I don't want to misquote him--something like ``the judicial philosophy of this nominee is an open book,'' I think is what he said. It may be an open book, but it looks like this. This is the book. There is nothing on it.

When a candidate cannot say if there was ever a Supreme Court case with which they disagreed, this is going above and beyond stonewalling; or cannot say what Justice, dead or alive, he would emulate most, this is beyond stonewalling.

In my State we are very fortunate. We have reached agreement with Republicans in our State. We have a wonderful selection process for judicial nominees for the district court. Those individuals come before us and are screened by a joint committee. It is a great process. They answer questions. There are votes taken. Then Senator Feinstein and I make a recommendation. It is a bipartisan process.

This is the point: It is working. And it is a participatory process from both parties and both branches of government. I believe questions ought to be asked and answered and Senators have a right to ask questions and Senators have a right to have those questions answered. It is pretty simple.

I started to talk about Judge Paez who made history as a Hispanic because I wanted to make the point for the Senate that he was treated in a way that was totally outrageous, having to wait 4 years to get a vote. He hung on because of his true grit--hearing after hearing; 7 months his nomination languished in 1998. The Republican majority refused to bring him up for a vote. All we were asking for was a vote. And we were refused.

In 1999, Judge Paez was nominated for the third time, and 6 months later the Judiciary Committee approved his nomination, but again we could not get the nomination up for a vote. Finally, when the nomination was brought up after more than 1,500 days, it was filibustered.

My colleagues say again and again it was not. Senator Hatch, the chairman of the Judiciary Committee, said it and it is in the Congressional Record. This was a filibuster. We had to get cloture. When you have to get cloture, there is a filibuster. That is as simple as it is. We had to get 60 votes.

If my Republican friends want to end this, tell the nominee to answer the questions. And believe me, he will get an up-or-down vote and the chips will fall where they fall.

It is very clear to me when I look at the way Judge Paez was treated, Marsha Berzon, Margaret Morrow, and a whole slew of others who were nominated and eventually confirmed, they had to answer question after question after question. I will get to that in a minute, the type of questions that Margaret Morrow had to answer just to become a district court judge.

Let's go to the floor of the Senate and take you back to the year 2000 to this filibuster against Marsha Berzon and against Judge Paez. Let me quote Senator Smith, that is Bob Smith, of New Hampshire, then Senator: ``it is no secret that I have been the person who has filibustered these two nominations, Judge Berzon and Judge Paez.''

And he goes on to say: ``So don't tell me we haven't filibustered judges and that we don't have the right to filibuster judges on the floor of the Senate. Of course we do. That is our constitutional role.''

This is a Republican, leading the filibuster, against Clinton nominees for the circuit court. He says: ``don't criticize our right to do these things and don't say things didn't happen that did happen.''

And he goes on, more Bob Smith, Republican from New Hampshire, one of the leaders of the filibuster, along with Senator Allard, Senator Brownback, Senator Bunning, Senator Craig, Senators DeWine, Enzi, Frist, Graham, Helms, Hutchinson, Inhofe, Murkowski, and Shelby. And Bob Smith said:

Don't come here on the floor and tell me that if I want to

block Judge Paez or Judge Berzon, somehow I'm going down some

new path. I am not going down any new path. I am following

the tradition and precedent of this Senate.

That was Republican Bob Smith, one of the leaders of the filibuster, against two judges, one Hispanic, nominated by President Bill Clinton for the Ninth Circuit Court.

Senator Bob Smith continues:

We have a responsibility to make darn sure these judges are

going to represent the views of the majority of the American

people in terms of the law. I intend to do that as long as I

can stand here to do it.

And the Republican Bob Smith continues, one of the leaders of the filibuster, against Hispanic judge Richard Paez. It took him 4 years to get a vote. Bob Smith, Republican:

When a nominee has some controversy about him or her, if it

gets to the floor, there are normally quite a few

discussions; i.e., a filibuster.

Now this goes on. I am shocked that my friends on the other side of the aisle didn't read recent history--in the year 2000. Here it goes on. What were the reasons for the filibuster? According to Senator Smith, it was because--what? He didn't get answers to questions.

Let me quote former Senator Smith again, leading a filibuster against a Hispanic judge and Marsha Berzon, two qualified appointees. They got the top rating. They were put up by Bill Clinton.

I think those questions ought to be answered. I think we

should know the answers to those questions about what

happened before we put this person on the circuit court.

Let me say that again. A Republican colleague of yours, that side of the aisle, leading the charge against these Clinton nominees, leading a filibuster:

I think those questions ought to be answered. I think we

should know the answers to those questions about what

happened before we put this person on the circuit court.

More quotes from Bob Smith, in the Congressional Record:

Filibuster in the Senate has a purpose. It is not simply to

delay for the sake of delay. It is to get information.

It is to get information. And do you know what? I disagreed with the filibuster that was led then. It went on

and on until they didn't have the votes anymore and we had the votes. You could say: What goes around comes around.

Senators on the other side of the aisle launched a filibuster against two of President Clinton's nominees for the Ninth Circuit Court, with the highest qualifications, and there were those on the other side of the aisle who believed they didn't answer questions. They launched a filibuster on that ground, and we had to get the votes. And you have to get the votes. That is the way it is here.

We were able to get the votes because--guess what--our nominees answered the questions. They answered the questions, every question. I had worked to help get Margaret Morrow to a district court judgeship. I want to tell you, Margaret Morrow waited 2 to 3 years to get a vote for district court. Do you know what she was asked? She was asked a question that was so abhorrent, I could not believe it. She was asked by one of the Senators on the Republican side of the aisle how she voted for the last 10 years on referenda that were on the ballot in California.

Madam President, I know you are not an expert on California. I can tell you, there were hundreds and hundreds of these referenda, and they were on some tough issues for everything you can imagine.

No. 1, I always thought this was a secret ballot. When you go in the voting booth it is between you and yourself; you are going to decide these issues. That is No. 1.

No. 2, this was an impossible request. How could you even remember all these issues, how you voted on them?

So we went to this particular Senator and said: Senator, this is not fair. This is a secret ballot--please. But he wouldn't relent. But he relented to this degree. He said: OK, we won't go back 10 years, just give us the 10 most controversial votes.

She did. She did. She respected the process enough, she even went so far as to answer those questions which, in my opinion--I don't know what I personally would have done. I truly don't know. But I know I told her, if she felt she could do it, do it, because a Senator was asking.

That is an amazing comparison, compared to: Can you name any Supreme Court Justice who would emulate or any Supreme Court case that you disagree with? Those are conventional questions asked over and over again.

As far as memoranda from the Solicitor General's Office are concerned, there is precedent for that. There is precedent for that. I will give you the people who turned over these previously confidential internal documents. I give the names for the record: Robert Bork, William Bradford Reynolds, Benjamin Civiletti, Stephen Trott, Judge William Rehnquist. These people turned over previously confidential internal documents. Do you know why? I think they respected the Senate enough to say: Do you know what? I could just argue legalese with you, but you have a very important job of advice and consent, and we are willing to give you these memoranda. So there is precedent for that.

I am stunned. We went through the Record and my staff pointed out the comments that were made on this floor by Senators over and over again, referring to the fact that they were filibustering Judge Paez, they were filibustering Marsha Berzon. And then to hear there hasn't been a filibuster here since the 1960's--I don't know what to say. It is stunning to me.

The fact that we beat it back, that means it is not a filibuster? You get the votes, you beat it back; is it then not going to be a filibuster? I have taken to the floor tonight because I am incredulous on the point. After seeing these words in the Record myself, with my own eyes, after hearing Senator Hatch, who is leading the charge and telling us this is unprecedented, what we are doing, this is unfair to someone, he himself referring to what happened to Richard Paez as a filibuster.

Bob Smith not only referred to it as a filibuster that he was actually leading, but that he was leading in order to get information. You could say we took a page out of the book of the Republicans. We didn't. Because we are willing to say we will vote for cloture when he turns over the information. I never heard, frankly, any of them at that time say they were willing to allow a vote if there were more questions answered because, frankly, every question was answered that you could come up with. There wasn't anything else you could know about those nominees--what they thought, or what they dreamed about, or what they wanted to do, or what they believed, or whom they admired, or what meetings they went to. It was extraordinary.

I think it was Marsha Berzon who was asked the question--she was on the board of an organization. They said to her: We want to know everything that happened at every meeting of that organization, whether you went to the meeting or not.

It took her hours. Why? She respected the role of the Senate to advise and consent. It is in the Constitution, and she understood that, and Miguel Estrada should understand that. I don't care who trained him not to say anything. We have those quotes all over the place. I have seen one saying: Don't answer any of these questions; this is a lifetime opportunity; don't let them see who you are. He was trained not to answer questions.

He ought to respect the Senate. I know the members of the Judiciary Committee on our side of the aisle, and I know the members on the other side. I know they work hard. They have a lot of pressure on them on both sides. When my colleagues tell me they were stunned at the stonewalling they received, I believe them because, by the way, I read some of the answers Miguel Estrada put into the record. I will give you questions and answers here. These are questions asked by Senator Schumer:

Question:

Other than cases in which you were an advocate, please tell

us of three cases from the last 40 years of Supreme Court

jurisprudence you are most critical of.

Answer:

I'm not even sure that I could think of three that I would

be--that I would have a sort of adverse reaction to, if

that's what you are getting at.

Question:

So, with all of your legal background and your immersion in

the legal world, you can't think of three, or even one single

case that the Supreme Court has decided that you disagree

with?

Answer:

I don't know that I'm in a position to say that I disagree

with any case that the Supreme Court has ever ruled on or

that I think the court got it right.

Question:

I'm not asking how you approach cases. That's a legitimate

question and some have asked it. I want to know how you feel

about cases. And you have said more broadly than any other

witness I have come across--you have given us virtually no

opinion on anything because it might come up in the future.

Answer:

But the problem is the same, Senator Schumer, because

taking case A and looking at whether the court got it right

or whether I think they got it right I have only the benefit

of the opinions. I haven't seen the litigants.

The litigants have been dead for a long time in Dred Scott. But, for God's sake, we ought to know. You can't say that slavery is wrong; that you disagree with that decision? You can't say separate but equal was wrong because you didn't know the litigants?

Where are we? I am stunned.

He said the case is ruled on but he didn't get to see what made it into the opinion.

This is outrageous. He didn't see what made it into the opinion; the court ruled that slavery was constitutional and he didn't disagree with it? He has to meet the litigants? I am stunned.

The Senate has a very sacred job. It is in the Constitution. It doesn't say roll over and play dead when a President picks a nominee to a court. In fact, the Founders disagreed over who should have the responsibility to choose justices. And they came out with this very balanced decision of equal power. Presidents do not like that. I can tell you. I don't know one President who likes the fact we have this advise and consent role. It is very annoying to the executive branch that we are here. I don't care whether they are Democrats and Republicans.

I say that when our constituents sent us here they want us to do the job we swear to do. We hold up our hand here on the Bible and swear to uphold the Constitution. The Constitution says advise and consent on judicial nominees.

It doesn't say roll over and play dead. It doesn't say, oh, give them a break. It doesn't say that. We have a lot of other things to do. It doesn't say that. It says the Senate shall advise and consent.

At home in California, the way people pick district court nominees, it is true--we advise and consent. I have to say there are a lot of people who do not like it. Some conservative groups in California are saying they do not like the way we are doing it. But it is fair. We are appointing moderate Republican judges to the district bench. That is the way the President said he wanted to do it. We are able to do it because in our State we have an agreement where Democrats and Republicans sit side by side and choose. We have two Democratic Senators. That is why this happens.

But if the President is going to send us judicial nominees who won't answer questions, he is not going to get very far. It isn't going to work. Frankly, from my perspective, if people are off the charts on the right wing, I am not going to vote for them. I will not filibuster them. Once they give us the information, I am ready to vote. I will retain my right for a Supreme Court Justice, however, on that point on the filibuster. But, in general, if people answer questions, I will vote no. But I want the answers. I don't want a judicial selection process that excludes the Senate. It is the worst thing that can happen in this country.

If you look around, it is the courts that have stood up for the rights of our people--free speech, freedom of religion, freedom of the press, civil rights, human rights, environmental rights, so many rights that we hold dear, and the right to choose.

Madam President, you and I have worked hard on that. If we didn't have a court that found in the early stages of a pregnancy a woman has the right to choose, I don't even know where we would be for women. The courts have held the line. We know it is very shaky right now.

The courts play a very important role. It is part of the check and balance in our society. It seems to me, if we think that we don't have enough information and just sit back and say it would be a lot easier to let it go, I will vote no to let it go. I don't think that is right for those who come here.

Bob Smith, a Republican from New Hampshire, said he didn't have enough information. I disagreed with him. We beat him on the filibuster. But there was a filibuster. I think recent history is showing us that there is precedent for asking the important questions.

I wish to say one more thing about the Paez nomination. After we won on the filibuster of both Marsha Berzon and Richard Paez, there was a motion made by a Republican Senator to indefinitely postpone the final vote on one of the two, the Hispanic, Richard Paez. It was stunning. It was unprecedented.

Let me make a statement. I believe it is a precedent that never should be occurring here again because the whole purpose of a filibuster is to determine whether you are going to move ahead on a vote. Once there is no filibuster, you have to have a vote. Then we had this intervening motion about indefinitely postponing the vote. It just undercuts what cloture is supposed to be about. I thought that was unbelievable.

Basically a Senator wanted to kill the nomination even after we had won cloture. That was so unprecedented that Senator Hatch himself said he had never seen it. He had never heard of it, and he was perplexed. He was baffled by it.

Let me quote Senator Sessions who moved to stop the final vote on this Hispanic Judge, Richard Paez, after we won cloture. He said:

I move in a postcloture environment to postpone

indefinitely the nomination of Richard Paez--

Listen to this--

in order for this body to get the answers I believe every

Senator deserves with regard to the concerns I have raised

about Judge Paez over the last several days.

On Judge Paez, because this Senator thought he didn't have the information after 4 years, after pages of questions, after cloture was invoked then he did something unprecedented and moved to indefinitely postpone the final vote.

At that time, Senator Hatch was perplexed. I was certainly perplexed. Colleagues were amazed. And here is in full what Senator Hatch said at that time.

I have served a number of years in the Senate, and I have

never seen a ``motion to postpone indefinitely'' that was

brought to delay the consideration of a judicial nomination

post-cloture. Indeed, I must confess to being somewhat

baffled that, after the filibuster is cut off by cloture, the

Senate could still delay a final vote on a nomination.

Senator Hatch was right on the point. He called the filibuster a filibuster at that time. He was baffled by the kind of a postfilibuster-filibuster in the guise of postponing the final vote. Clearly, we had to get the votes for Judge Paez, and we did. And he is serving and doing us all proud, I might say, on the Ninth Circuit right now.

Iraq

Madam President, I have a couple of things to say about another subject in a brief period. It has to do with the issue of Iraq.

I spent a week during the last break in California and doing several events--many events, doing the normal things you do when you go home; going shopping, taking a walk in the park and around the neighborhood. I don't think I have ever seen my people in California as distressed and on edge and anxious as they are at this particular point in our history.

I want to tell you that this cuts across party lines.

As a matter of fact, there was a poll in the paper today about the views of Californians very much concerned about going to war. My constituents are saying: Senator, is there any way in your mind that the President will not take this country into war? And my answer-- because I am searching for it; the President says he has not made a decision--but to be as honest as I can, I say: Here is what I think on that matter. If the true goal is to disarm Saddam Hussein and Iraq, then there is a chance that this could be resolved short of war. But if the true desire is to replace Saddam Hussein, have a regime change, unless Saddam Hussein agrees to go--which would be a wonderful prospect--I do not see how you get there.

The people in my State are very concerned.

Then they say: Well, Senator, do inspections really work? And I tell them that the facts are out there, that in fact there were more weapons of mass destruction dismantled after the gulf war than there were by our bombs.

I asked for the list of weapons of mass destruction that were in fact destroyed after the Gulf war. I am going to read the list of weapons that were destroyed during the inspections.

In the missile area: 48 operational long-range missiles, 14 conventional missile warheads, 6 operational mobile launchers, 28 operational fixed launchpads, 32 fixed launchpads under construction, 30 missile chemical warheads, other missile support equipment and materiel, supervision of the destruction of a variety of assembled and nonassembled supergun components.

In the chemical area: 38,537 filled and empty chemical munitions were destroyed by the inspectors, 690 tons of chemical weapons agent, more than 3,000 tons of precursor chemicals, 426 pieces of chemical weapons production equipment, 91 pieces of related analytical instruments.

In the biological area: an entire biological weapons production facility called Al-Hakam, a variety of biological weapons production equipment and materiel.

So the fact is, the inspectors discovered and dismantled more weapons of mass destruction than were in fact destroyed by our bombs.

Sadly, there was a period where there were no inspectors in Iraq. And I do not trust, for a minute, that Iraq did not start to rebuild these stocks. The fact is, Saddam Hussein must be disarmed. That is why I supported the Levin resolution that said he must be disarmed--but not for us to go it alone, without the world with us, as the world was with us in the first gulf war.

My constituents are coming up to me and saying: What happened here? Everything feels out of control. Why? The world isn't even with us anymore. We are having fights and sniping with our allies. What happened?

I started to think about that. And I will never forget--none of us will ever forget where we were on 9/11, when we were attacked by al- Qaida. Osama bin Laden, remember his name? He attacked us. He hurt us on our own

shores. I will never forget that. And I will never forget, on 9/12, that the whole world was with us.

There is a song called ``He Has the Whole World in His Hands.'' It is a beautiful song. President Bush had the whole world in his hands on 9/ 12. Countries around the world--every one of them; even some that we really do not have such a close relationship with--expressed that they were with us. We had the world in our hands. Yes, we were the leader of the free world before 9/11, but on 9/12 the world was so with us and against terror. And somehow, some way, this has been squandered. This has been squandered. There has been this intensity on Iraq and what I call a designed neglect of the rest of the world.

Even in our own hemisphere, we see what is happening in Colombia, in Venezuela. I met with the Mexican Foreign Minister, I say to my friend from Nevada, who has a good-sized Hispanic population in his State. And the Mexican Foreign Minister told me: We had such high hopes when this administration took office, and we see nothing. We are getting no attention for our issues. We must work with your country. And, actually, he quit his post because there was no communication.

We then see what is happening in North Korea, amazing developments in North Korea. And we cannot seem to get the administration to focus on it at all.

Let me tell you, those of us on the west coast, yes, that is why my constituents are coming up to me in the supermarket and pulling at my sleeve, because the North Koreans have a missile that can reach America. They already have the nuclear weapon. They already have kicked out the inspectors. And what is the answer? When the President put them in the ``axis of evil,'' I asked, from my seat on the Foreign Relations Committee, the State Department: Before the President put North Korea in the ``axis of evil,'' was there a conversation about the ramifications of that? And the answer came back to me, I say to my friend: Well, we did go in and we did see the President--this is the highest levels of the State Department--and we said we agreed that North Korea deserved to be on the ``axis of evil.''

I said: That was not my question. There are a lot of people who could be termed evil in this world. My question was, did you discuss the ramifications? The answer was: No, we did not.

I asked: Well, did you call up our friends, our allies, with whom we share classified information every day--South Korea, Japan--to talk to them about the ramifications of putting North Korea in the ``axis of evil''? Oh, no, came the answer, we do not share State of the Union speeches with other countries.

Well, that was not the point about the State of the Union speech. It is South Korea that looks across the line at North Korea. I have been on that line, that DMZ. By the way, what a failure to humankind that situation is--one people divided. It is just the saddest situation, one of the saddest failures of humanity.

So we had the situation on 9/12/01, where the whole world was with us--the whole world. And after that, that whole situation has been squandered.

I heard Senator Leahy make similar remarks today about this. I think we have to understand where we are today. And we need to understand there are problems all over this globe, and that for us to go it alone--or almost alone--in a war with Iraq will make matters worse, I am afraid. As a leader, you have to win over your friends, and others, through your reasoning, through your evidence, through your power of persuasion, not just buying people off or giving them money.

There has been a lot of talk about what we are going to give Turkey for their cooperation. Look, I understand an ally is an ally, a friend is a friend, and so on; but this thing is still not resolved, and the costs go up. I don't think the American people understand that this is their tax dollars we are talking about--$5 billion in grants, when we are about to kick off the rolls almost 600,000 children from afterschool programs, according to the President's budget, and not fully funding our disabled kids in school, and the cleanup of only 40 Superfund sites instead of the 87 President Clinton did during his tenure.

These things just don't come about in a vacuum. I thought Senator Byrd was so well spoken when he made the point that we don't even know the cost. Remember Larry Lindsey, I say to my friend from Nevada, the President's economic advisor? He put out--I think last summer--a statement saying it is going to cost us between $100 billion and $200 billion for a war in Iraq.

Fired, let go.

It is going to cost between $100 billion and $200 billion. Now they are saying it is $95 billion. They started off saying it was going to be $30 billion, $40 billion, $50 billion, or $60 billion, but that doesn't count what they want to pay to Turkey. When you add in the loan guarantees and the rest, some people are saying that is $26 billion. And we are not reimbursing our States for the work our local police, our firemen, and our emergency workers are doing. We are neglecting port security.

I read today--and this is close to my heart--a little article, which I will send to my colleagues. It is very important. It says that many terrorist groups now have stinger missiles, shoulder-fired missiles. We have seen five, six, seven examples of terrorist groups over the years aiming at commercial aircraft. Admiral Loy's Deputy has said this is worrisome. It is going to cost money to prepare our commercial fleet, to have an antimissile system put on, just as the Israelis reportedly do. The technology is there. Yes, it is going to cost a million dollars per plane, but we are busy giving money out around the world. We are busy giving money out. We don't hear the name Osama bin Laden. One of my colleagues, Senator Dorgan, calls him Osama ``been forgotten'' because you don't hear anything about him.

Yes.

My staff mentioned that they had watched it. I did not see it myself.

(Mr. ALEXANDER assumed the Chair.)

I say to my friend, if we are to be relevant--this is the word the President talks about when referring to the U.N.--that is what we ought to be doing because, when I went home, people wanted to talk about this because they are nervous about it. Frankly, they don't want us to go it alone. At least the vast majority of people in my State feel that way. They are asking me what it is going to cost. I say I have my own guess, but we really have no idea. A man got fired because he said it would cost between $100 billion and $200 billion. Now they are saying $95 billion. And now they are offering Turkey $26 billion. One general said they will need to stay there with 200,000 troops for years. Another general said that was wrong. We cannot get an answer to that.

We don't know if Saddam Hussein will use these weapons of mass destruction, or what he will do with the oil fields if we go in there. My own view on this is that the American people are very concerned. I agree with my friend. We are spending a whole lot of time on the nomination of one judicial nominee who, frankly, in my view, cannot really want the job that much because he won't answer the questions. He will not answer the questions. If he answers the questions, we would say immediately, vote cloture, then give him a vote, and that is the end of it.

Of course.

My friend, the Democratic whip, is absolutely correct. Our records show that the first gulf war cost $61 billion. Remember that we stopped well short of Baghdad, when you are thinking what this war will cost. That is a long time ago and there has been inflation. It was $61 billion then, and $54 billion was paid for by our friends around the world. That is more than 80 percent, when you figure it all out.

I further say to my friend that we had many countries sending troops, over 20. In this case, the administration is telling us we need 250,000 troops for this war, and Britain is sending in 26,000 troops. That is about right, 26,000 troops and 250,000. That is pretty much in terms of combat troops. That's it.

It is an unprecedented handout type of situation, which is offensive to me in many ways. This is a go-it-alone situation where it stands today.

I will finish where I started this conversation about Iraq. We had everyone with us after 9/11--the whole world. We lost that. People around the world are looking at us, and many are saying this was something the President had decided and he just went to the United Nations because he was kind of pushed there--and as one of the people who pushed him there, I am glad he went there. Believe me, I give credit where credit is due. I give credit to Colin Powell. But going there and winking and nodding and saying, I am going to go to the U.N.--but really I know what I want to do--I will give a particular case in point.

Whenever there is a little progress in finding some of these weapons, the President says things such as: Oh, that is the tip of the iceberg, and he may be right. But wouldn't it be better to say something such as: This is the tip of the iceberg, Saddam Hussein, and I am asking you to give us the rest of the iceberg, to do it now to avoid war, to avoid bloodshed. The world is watching.

We do not seem to hear those words. What we really hear is: Inspections mean nothing. Maybe it means nothing, and if it means nothing, then the U.N. eventually is going to call this guy on it. They are going to call him on it, just like they did before. By the way, these weapons are a threat to the world, and a lot of the world is a lot closer to him than we are, and a lot of the world could potentially be reached by his missiles.

The question for me, as one Senator, has never been should Saddam be disarmed--absolutely he should. Back in August when the President was saying we are going to go to war, I said: Wait a minute, the issue is weapons of mass destruction; let's see if we can get intrusive inspections back in there and pick up where we left off with the inspections which destroyed--and I read the list into the Record already--more weapons of mass destruction than we did with our bombs. If this is really about that, then we know the proven way to do it. And if Saddam ever so much as kicks the inspectors out, does not cooperate with them, thwarts them, we will know it, and we will be on the moral high ground. We will have the whole world back in our hands, and we can move forward with the world community, just as my friend pointed out happened in 1990.

I thank the Presiding Officer.

I will be glad to yield to the Senator from Nevada for another question.

I heard of the group. I do not know of the poll.

Correct.

I say to my friend, this does not surprise me. We are seeing the worst economic record of any administration in 50 years in terms of jobs lost, in terms of mortgages defaulted, in terms of loss of stock market value. We are talking $8 trillion of loss, in terms of fear about retirement, fear about losing health care, fear about the cost of health care, fear about cost of prescription drugs, fear about being able to afford to send your kids to get an education. My friend has given me a number that makes eminent sense, and I say it is going to continue to plummet because every plan this President comes up with is giving tax breaks to the wealthiest among us in the hopes they will trickle down to the working people. It never worked before, and it is not going to work.

I am very worried, and that is why people also are very anxious in my State about the war and about the economy. It is a two-front challenge we face.

I left that out in the list of items that have gone wrong. A $7 trillion surplus disappeared, and we have deficits as far as the eye can see. The last deficit I remember under George Bush 1 was headed to $300 billion. As I remember, it was up to $290 billion. We all pulled together and said this is an outrage. We worked hard under Bill Clinton for 8 years and got that down to a surplus which was healthy for our economy, and we had the biggest economic boom in years. It

has all been squandered. World opinion has been squandered. The surplus has been squandered.

My friend is telling me something I was not aware of. I did not see the poll, but again, I think it becomes very clear to the people that every policy that comes down, whether it is taxation of dividends, tax breaks for the people at the top of the economic ladder, that we are, in essence, seeing a plan to get this economy revived which is going to do nothing but put money in the pockets of people whose pockets are stuffed with money. We do not need to do that.

I was in California with people who were telling me: Senator, we do not need a tax break. We are doing fine. Worry about homeland security. Worry about nuclear powerplants getting protected. Worry about the chemical plants being protected. Worry about the homeland security first responders.

I say to my friend, if, God forbid, we are attacked anywhere in our country, people are going to dial 9-1-1, they are not going to dial the President, they are not going to dial Senator Reid, Senator Boxer, or Senator Hatch. They are going to dial 9-1-1. Those very people are telling us they have not received a penny, and it is a very sad situation.

My friend is right. As a matter of fact, the Commerce Committee is holding a hearing to address this problem of people dialing 911 from a cell phone. We have had people who are in the midst of being a victim of a crime dialing 911 and the law enforcement did not know where it was from. It is a crucial matter that has to be resolved.

What is amazing is this administration has money to give tax breaks to people at the top. The people who earn over a million dollars a year are going to get back, oh, gosh, an average of about $80,000 a year just from the dividend tax break alone, not to mention an income tax break. They have the money for that, but they do not have the money to help our homeland defense.

They have money to give to Turkey--they are talking turkey with Turkey--that is for sure. Reports of an aid package for Turkey started off as a few billion, then it was $6, then $10, then $16. Now I hear it is $26 billion. I think it was Senator Dorgan or Senator Durbin who said maybe our States should change their name to Turkey and they will do better than they are doing now.

My friend is right. I have to use a sense of humor because you get upset about these things and you cannot keep being outraged.

I am happy to yield before I close.

I am absolutely aware of this. I say to my friend, I went through the litany at the beginning of my talk about how other nominees have answered a multitude of questions, and as a matter of fact some have sent previously confidential opinions that they have written. All the other side has to do is say to Mr. Estrada, answer the questions, and then there can be a vote.

When my friend raises the environment, I will take a minute to say that we finally got a report that has been languishing in the administration since June. Surprise, surprise, it was leaked to the Wall Street Journal, and after it was leaked, then the administration released it. It has some horrific statistics about what is happening to young people and women of childbearing age in terms of ingestion of mercury through mercury-tainted fish, and the fact that mercury is now emerging as a leading cause of neurological damage and I predict will become an issue in this Senate just the way lead was an issue in other Senates. We finally got this report. We begged for it and then got it.

My friend is right: What could be more important than getting this economy going than protecting the health of our children by bringing that report up for debate and open for discussion? Senator Jeffords has a great plan, the Clean Power Act, that will take that mercury out of the air, that will save these children from getting neurological damage. Let's debate it. Let's debate Senator Daschle's plan, his economic stimulus plan, that gives the stimulus to the working people, versus the Bush plan that gives it to the people who do not even have to work because they live off their dividends. I would like to see that debate.

If Miguel Estrada really wants this job, he will do what Margaret Morrow did, he will do what Judge Paez did, he will do what Marsha Berzon did, and answer the questions. There were 4 years of questions to Judge Paez. He answered them all. We had to break their filibuster, I say to my friend, and we did.

Senator Smith at the time was proud to launch the filibuster. Senator Bob Smith said--and I read it into the Record--this is a filibuster launched because we need to get questions answered, and it is the right thing to do.

I did. I said it. I said there was precedent, and I read off the five cases where previously confidential memos were released. I named the gentlemen--they happened to be all men--who were willing to release it in order to get a vote on their confirmation.

So there is adequate precedent for that. There is adequate precedent for

answering the questions, and if the Senate has any respect for our work and for the Constitution of the United States, which we have been sworn to uphold, then we will not roll over when any President, this one or any future President, sends a nominee down who cannot even tell if there is one Supreme Court case, in all the hundreds of years, that he disagrees with, cannot even name what jurist he would most emulate. It is beyond the pale, the questions Mr. Estrada refused to answer, because clearly he has been told and trained not to answer any questions.

I was proud to come to this Chamber, after my diligent staff went back through the Record and got the quotes of Bob Smith who helped lead the filibuster, who got the quotes of Senator Sessions who then said we should have, after we broke the filibuster, yet another vote to indefinitely delay a vote.

It is extraordinary what has happened. In the Record tonight, for all who will read, we have the quotes of Senator Hatch, who called what happened to Paez a filibuster, who called what Senator Sessions tried to do unprecedented. We have the quotes of Senator Smith who said: All I am doing is asking questions to get answers, and now let the people decide.

They are going to run some kind of ads in my State saying: Barbara Boxer, shame; she does not like Hispanic nominees.

Do you want to know something? To say that is like saying I do not support women's rights and there is going to be a backlash on that. I am the person who recommended the first Mexican-American to sit on a district court in Los Angeles, the person who stood on her feet day after day trying to get Richard Paez his seat.

They can do all they want because I think the American people understand we are standing on a principle. If I were the only one on my feet, I would stay on my feet because I think it is wrong to stonewall the Senate and members of the Judiciary Committee who in good will have approved, by the way, an enormous number of judges--and who were just simply saying: Answer the questions; give us the memos; we do not know who you are; we want to have a record; we want to make an informed decision. This is the right thing to do.

I dare say to my constituents--and I did when I was home; I said: You may be hearing about this, but I want you to know that you sent me here not to be part of the wallpaper behind me--that is pretty easy--not to go along to get along, but to stand up and do my job as a Senator, and that is not to vote on a judicial nominee who has refused to hand over documents, who has refused to answer questions, who has absolutely no record on which to judge what he is going to do. Once we have that information, I am happy to have a vote and let the chips fall where they may.

Iraq

On Iraq, I make a rhetorical plea to the administration: You had the whole world in your hand on 9/12; you don't have it in your hand now. Let's get back to being a true leader. Lay out a path for peace. That is an American value, to lay out a path for peace. Lay out a path for peace, not just the path for war.

Get this man disarmed, Saddam Hussein, in a way that does not lead to the loss of life and blood of our people and innocent people. And if we do that, we will be back to where we were on 9/12. If we pay attention to other problems in the world, we will be back to where we were on 9/ 12.

I yield the floor.

Mr. President, I am a new Senator. I am aware of the

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

I had been planning to make my first remarks on this floor next Tuesday on the issues I care most about, which are the education of our children and putting the teaching of American history and civics back in its rightful place in our schools so that our children can grow up knowing what it means to be an American. I planned on doing that next Tuesday. But I have decided to make some remarks today--earlier than expected because I am disappointed in what I have heard in the debate about Miguel Estrada.

Like my friend from Missouri, I have had the opportunity to preside in the last few days. That is one of the honors that are accorded new Members of the Senate. I have been listening very carefully. My disappointment has increased with each of these 10 days as the debate has continued.

I am disappointed first because I believe our friends on the other side of the aisle are being unfair to Miguel Estrada. I am most disappointed in them because I believe if the direction of this debate continues as it is going--and I heard the comments of my friend from Missouri yesterday on this same matter--if we continue in the same direction, we run the risk of permanently damaging the process by which we select Federal judges and by which we dispense justice in the United States. I am disappointed because this is not what I expected when I came to the Senate.

I may be new to the Senate, but I know something about judges. I am a lawyer. I once clerked for a U.S. Attorney General. His name was Robert Kennedy. I once clerked for a great Federal appellate judge. His name was John Minor Wisdom of New Orleans. I once worked in this body 36 years ago for Senator Howard Baker, a great lawyer. I watched this body as it considered and confirmed men and women to the Federal courts of this land. As Governor of Tennessee for 8 years, I had the responsibility of appointing--and did appoint--nearly 50 men and women to judgeships all the way from chancellorships to the supreme court.

I know pretty well the process we have followed in the Senate and in this country for the last couple of centuries.

It is fairly simple. It can be expressed in plain English. The Executive nominates, the Senate considers, and then confirms or rejects the nomination; and in doing so, what the Senators have always looked for, mainly, has been good character, good intelligence, good temperament, a good understanding of the law and the duties of a judge, and whether a nominee seems to have courtesy for those who may come before him or her. And it has always been assumed that it is unnecessary--and, in fact, it is unethical by the standards of most of the judicial canons in this country--for the nominee to try to say how he or she would decide a case that might come before him or her.

Then, after all that examination is done in the Senate, there is a vote. And under our constitutional traditions, the majority decides.

I have been listening very carefully, and that is not what is happening. The other side has simply decided that it will not allow the Senate to vote on the nomination of Miguel Estrada. In doing so, it is doing something that has never been done for a circuit court of appeals judge in our Nation's history.

In those hours that I have presided over this body in the last few days, I have been listening very carefully to see what reasons our friends on the other side could give for coming to such an extraordinary conclusion about whom I have come to learn is an extraordinary individual, Miguel Estrada.

I have been listening carefully for the answers, especially to these three questions: No. 1, what is wrong with Miguel Estrada? What is wrong with him? No. 2, why can't we vote on Miguel Estrada, after 10 days of debate? And, No. 3--most importantly--why should we change the constitutional tradition that a majority of the Senate will decide whether to confirm Miguel Estrada? Because what they are saying, really, is that he will need to get 60 votes--60 votes--instead of 51.

I have had the privilege of listening to each of their arguments. As my friend from Missouri knows, they first try one argument, and it does not go so well. Then they move to another argument, and it does not stand the light of day. And then they move to another one.

But let me tell you what I have heard as I have listened to the debate.

First, they said--it would be hard to imagine that anyone could say this with a straight face, but we had many straight faces on the other side of the aisle saying this--that he was not qualified to be a Federal appellate judge.

You do not hear that argument very much anymore because that is almost a laughable comment if it were not such a serious matter.

But let's go over this. This man isn't just qualified; if this were sports, he would be on the Olympic team, and he would be getting an award for ``American Dream Story of the Year.''

Here is a man who came to this country at age 17 from Honduras. He had a speech impediment. He spoke very little English. And within a short period of time, he was attending Columbia University, one of the most prestigious universities in America.

Then he went to Harvard Law School. Now, it is really hard to get into Harvard Law School. It has great competition. Everyone who is applying to a law school around the United States of America this year--and I know a great many of them--think about it. This young man, in a few years, was admitted to Harvard Law School. And not only that, he became an editor of the Harvard Law Review and graduated magna cum laude.

This a dream resume, but it is not even over.

Then he went to the Second Circuit as a law clerk. Then he became a clerk for a Supreme Court Justice. By now he was in the top 1 percent of 1 percent of all law school students in the country, with the kind of resume for a lawyer every law firm in the country would want to hire. He has a record that almost everyone would admire.

Then he went to the Southern District of New York, one of the most competitive places, to be hired for training there.

Then he was in the Solicitor General's Office. To those who are not lawyers or who do not keep up with this sort of thing, just being in the Solicitor General's Office might not sound like such a big deal, but those are the plum positions. The way I understand that office, there are a couple of political appointees there--the Solicitor General and his Deputy--and there are about 20 career lawyers. Miguel Estrada was one of those lawyers. They are there because they are not just good, they are the best in America. They have the best resumes. They have been the clerks to the Supreme Court Justices. They are going to be the greatest lawyers. It is the most competitive position in which you can be.

And there he is, Miguel Estrada, coming here at age 17, barely speaking English, making his way into there. He worked there for the Clinton administration and the Bush administration.

Then he went to one of the major law firms of America. And he has argued 15 cases before the Supreme Court of the United States.

That is an incredibly talented record. There is almost no one who has been nominated for any judgeship in our country's history who has a superior record. For anyone to have even suggested for 15 minutes that Miguel Estrada is not superbly qualified to be a member of the United States Court of Appeals--for anyone to even suggest that--it is difficult to see how one could do that with a straight face.

Little has been made about what he did in the Solicitor General's Office. I think it is worth talking about that. These talented young men and women have the job of helping the Solicitor General make decisions about what to do in cases in which the United States is a party. That means they review all the decisions that come against us, the United States of America. They are the lawyers for us, the United States of America.

They write memoranda and they write opinion and they must argue back and forth. And they must argue about every side of every issue. And

our friends on the other side have come up with straight-face argument No. 2, which is that somehow Mr. Estrada, who does not even have all those memoranda, should be penalized because the U.S. Government does not want to hand those memoranda, that were exchanged back and forth between the various Solicitor General's assistants, over to the Senate.

We have never done that. There are seven living former Solicitors General of the United States, and seven--all of them--have written a letter to this body saying that has never been done, and it never should be done, for obvious reasons. If it were done, you would never have any straightforward memoranda left in that office. It protects us, the United States. And that never should even be considered to be held against Mr. Estrada.

So is he qualified? It is hard to imagine someone who is better qualified. I consider it a great privilege to come to the Senate and find a President who discovered such an extraordinary person to nominate for the Court of Appeals for the District of Columbia Circuit. Such a story should give inspiration to men and women all over America, that this is the country to which you can come, regardless of race or background or whatever your condition, and dream of being admitted to the best universities, finding the best jobs in a short period of time, and being nominated by the President of the United States for such a court.

What a wonderful story. And what an embarrassing event it is to have our friends on the other side to even take the time of this Senate trying to suggest such a person is not qualified. So let's just throw that argument away and put it in the drawer.

Since that argument did not fly, they then moved to argument No. 2, which is equally difficult to offer with a straight face, if I may respectfully say so. They said he has no judicial experience.

Now, this argument is still being made. I heard the distinguished Senator from New York, last night, in an impassioned address, right over on the other side, say he has never been a judge, and we don't know what his opinions are. Never been a judge--Miguel Estrada cannot be a judge because he has never been a judge.

Well, I am awfully glad that was not the standard that was applied to Justice Felix Frankfurter when President Roosevelt nominated him. He would never have been a judge before he was a Justice of the Supreme Court.

I am glad it was not the standard that was applied to Louis Brandeis before he was nominated to the Supreme Court. I am glad it was not the standard that was applied to Thurgood Marshall, the first African American who was ever appointed to the Supreme Court of the United States. He had never been a judge. And so should Thurgood Marshall have never been a Justice because he had never been a judge?

When I graduated from New York University Law School, the dean came to see me and said I had a chance to be a messenger down in New Orleans for a man that my dean, Bob McKay, said was one of the three or four best Federal judges in the country. His name was John Minor Wisdom, a great man and a great lawyer. He had never been a judge before President Eisenhower appointed him. Neither had Albert Tuttle from Atlanta or John Brown from Texas. The three of them became three of the greatest judges in the South. They presided, having been appointed by a Republican President, over the desegregation of the southern U.S. They were among the greatest judges we have ever had, and they had never been judges.

Of 108 Supreme Court Justices who have been appointed, 43 of those have never been a judge. I have a list somewhere here of judge after judge after judge. Earl Warren; Byron White; Justice Powell; Justice Rehnquist; Justice Breyer; Judge Wisdom's favorite friend on the second circuit, Henry Friendly of New York. He had never been a judge before. Charles Clark; Jerome Frank; John Paul Stevens; Warren Burger; Harold Leventhal; Spottswood Robinson; Ruth Bader Ginsberg, who had never been a judge before she was a Justice. Does that mean she wasn't qualified to sit on this Court?

Why would the other side be taking up the time of the Senate at a time when we are concerned with war with Iraq and the economy is hurting, by making that kind of argument? They would be asked to sit down in any respectable law school in America if they gave that answer. Yet they are here in the Senate trying to persuade us that it makes a point.

In 1980, I appointed George Brown of Memphis as the first African American justice in the history of the State of Tennessee. If George Brown had to be a judge before he had become a justice, I could never have appointed an African American justice, because there were no African American judges at that time. Even today, given the paucity of Hispanics and African Americans and women who are judges, if we were to say that in order for someone to be a judge, before he or she becomes a judge, we would have a terrible, invidious discrimination against men and women who should not be discriminated against, and I am sure my friends on the other side don't want to see that happen.

So even though we have spent days arguing that Miguel Estrada should not be considered because he has never been a judge, that argument has no merit to it whatsoever. We hear it less and less now that it is on the tenth day.

Well, those two arguments didn't fly because here is a superbly qualified person. So they said he didn't answer the questions.

I just had the privilege of hearing the distinguished Senator from California and the distinguished Senator from Minnesota spend a long time talking about that, saying he hasn't answered questions. Well, Mr. President, I am not a member of the Judiciary Committee, but I know they had hearings and I know Members on the other side were in charge of the Senate when they had the hearings. I know the hearings could have gone on as long as they wanted them to because they were in charge. If I am not mistaken, the distinguished Senator from Utah was here. I believe they went on all day long. The hearings were unusually long. Miguel Estrada was there and he answered their questions. Every Senator on the committee had the opportunity to ask followup questions in writing, and two did. The Senator from Massachusetts and the Senator from Illinois did that. Mr. Estrada gave those answers in writing. He has now said to Members of the Senate that he is available for further questions. He will be glad to visit with them.

What does he have to do to answer the questions? Why is there a new standard for Miguel Estrada? Why do we say to him, for the first time, tell us your views in a particular case before we will confirm you? We have tradition rooted in history that it is even unethical to do that. I appointed 50 judges, as I said, when I was Governor. When I sat down with these judges, I didn't ask: How would you rule on TVA and the rate case, or how would you rule on partial-birth abortion, in the abortion case; or what would you do about applying the first amendment to the issue of whether to take the Ten Commandments down from the courthouse in Murfreesboro, TN, or how do you feel about prayer in the schools, or if somebody says a prayer before a football game?

I didn't do that because I didn't think it was right to ask a judge to decide a case before the case came before him, which has been the tradition in this country. We are not appointing legislators to the bench, or precinct chairmen, or think-tank chairmen, or Senators; we are appointing judges. They are supposed to look at the facts and consider the law and come to a conclusion. But they say he didn't answer the questions.

Mr. President, the only way I know to deal with that--because this side says one thing and that side says the other, and since I am not on the Judiciary Committee--is to read the questions and the answers. I wanted to see whether he was asked some questions and whether he gave some answers.

These are the questions and answers, Mr. President. This is the record of the hearing of Miguel Estrada, plus a long memorandum of questions from the Senator from Massachusetts and the Senator from Illinois that he also answered. I will not take the Senate's time to read all of the questions and answers, but since they keep saying he didn't answer the questions, let me give some examples.

The chairman of the committee says:

Mr. Estrada, we have heard you have held many strongly-held

beliefs. You are a zealous advocate. That is great. You know,

lawyers who win cases are not the ones who say ``on the one

hand, this, on the other hand, that.'' They are zealous. But

you also have to make sure, if you are going to enforce the

laws, that your personal views don't take over the law.

Senator Thurmond has asked every single nominee I have ever

heard him speak to--Republican or Democrat--to speak to that

effect. What would you say is the most important attribute of

a judge, and do you possess that?

A very good question.

Answer:

The most important quality for a judge, in my view, Senator

Leahy, is to have an appropriate process for decisionmaking.

That entails having an open mind, it entails listening to the

parties, reading their briefs, going back behind the briefs

and doing the legal work needed to ascertain who is right in

his or her claims. In courts of appeals court where judges

sit in panels of three, it is important to engage in

deliberations and give ears to the views of colleagues who

may have come to different conclusions. In sum, to be

committed to judging as a process that is intended to give us

the right answer and not a result. I can give you my level

best solemn assurance that I firmly think I have those

qualities, or else I would not have accepted the nomination.

``Does that include the temperament of the judge?'', asked the chairman.

Mr. Estrada said:

Yes, that includes the temperament of a judge. To borrow

somewhat from the American Bar Association, the temperament

of a judge includes whether he or she is impartial and

openminded, unbiased, courteous, yet firm, and whether he

will give ear to people who have come into his courtroom and

who don't come in with a claim about which the judge may at

first be skeptical.

The chairman said:

Thank you.

I submit that is a good answer. I appointed 50 judges and I would have listened to that question. I would give him an A-plus on that.

Here is the Senator from Iowa:

Before I make some comment, I want to ask three basic

questions.

This is in the hearing with Mr. Estrada. This is the man who the other side says doesn't answer questions.

The Senator from Iowa:

In general, Supreme Court precedents are binding on all

lower Federal courts, and circuit court precedents are

binding on district courts within a particular circuit. Are

you committed to following the precedents of the higher

courts faithfully, giving them full force and effect even if

you disagree with such precedents?

Mr. Estrada:

Absolutely, Senator.

How could you make a better answer than that? You could either say yes or no. He said yes.

The Senator from Iowa:

What would you do if you believed the Supreme Court or

court of appeals had seriously erred in rendering a decision?

Would you, nevertheless, apply that decision, or would you

use your own judgment on the merits, or the best judgment of

the merits?

Mr. Estrada:

My duty as a judge, and inclination as a person and as a

lawyer of integrity would be to follow the orders of the

highest court.

The Senator from Ohio:

And if there were no controlling precedent dispositively

concluding an issue with which you were presented in your

circuit, to which sources would you turn for persuasive

authority?

Mr. Estrada:

When facing a problem for which there is not a decisive

answer from a higher court, my cardinal rule would be to

seize aid from any place I could get it. Depending on the

nature of the problem, that would include related case law

and other areas higher courts had dealt with that had some

insights to teach with respect to the problem at hand. It

could include history of the enactment, in the case of a

statute, legislative history. It could include the custom and

practice under any predecessor statute or document. It could

include the view of academics to the extent they purport to

analyze what the law is instead of prescribing what it ought

to be, and, in sum, as Chief Justice Marshall once said, to

attempt not to overlook anything from which aid might be

derived.

I give him an A plus for that. That was a good question, and he gave a superb answer, just the kind of answer I think an American citizen who wants to appear before an impartial court in this country would hope to hear. I do not think we want to hear: Welcome to the court, Mr./Ms. Litigant. We have here your Democratic court; we have here your Republican court. If your views are all right, you might get the right hearing. You would want a judge who said what Mr. Estrada said.

The Senator from Massachusetts, who has been extremely critical of Mr. Estrada, asked a more detailed question. Mr. President, you may be wondering why I am going into such detail when this is available to the whole world, including the Senators on the other side. The problem is perhaps someone has not bothered to offer this book to our friends on the other side because they keep coming down here while you and I are presiding day in and day out for 10 straight days and saying Mr. Estrada has not answered the questions. My suggestion is he has answered question after question, and he has done a beautiful job of answering the questions.

Let me take a few more minutes and give examples of answering questions.

The Senator from Massachusetts:

Now, Mr. Estrada, you made the case before the court that

the NAACP should not be granted standing to represent the

members. As I look through the case, I have difficulty in

understanding why you would believe the NAACP would not have

standing in this kind of case when it has been so

extraordinary in terms of fighting for those--this is the

NAACP--and in this case was making the case of intervention

because of their concern about the youth in terms of

employment, battling drugs, and also voting.

In other words, Mr. Kennedy was saying: Mr. Estrada, how can you do this when the NAACP is on the other side?

Mr. Estrada's answer:

The laws that were at issue in that case, Senator Kennedy,

and in an earlier case, which is how I got involved in the

issue, deal with the subject of street gangs that engage in

or may engage in some criminal activity. I got involved in

the issue as a result of being asked by the city of Chicago--

--

The last time I checked, the mayor of the city of Chicago was a Democrat, a good mayor, but just so I would not want anyone to think this was a partisan comment----

which had passed by similar ordinance dealing with street

gangs. And I was called by somebody who worked for Mayor

Daley when they needed help in the Supreme Court in a case

that was pending on the loitering issue. I mention that

because after doing my work in that case, I got called by

the attorney for the city of Annapolis, which is the case

to which you are making reference. They had a somewhat

similar law to the one that had been at issue in the

Supreme Court. Not the same law. They were already in

litigation, as you mentioned, with the NAACP. By the time

he called me--

This is the lawyer for the city--

he had filed a motion for summary judgment making the

argument that you outlined. And he had been met with the

entrance into the case by a prominent DC law firm on the

other side. He went to the State and local legal center and

asked: Who can I turn to to help? And they sent him to me

because of the work I had done in the Chicago case. Following

that, I did the brief, and the point on the standing issue

that you mentioned is that in both Chicago and in the

Annapolis ordinance, you were dealing with types of laws that

had been passed with significant substantial support from the

minority communities. I have always thought that it was part

of my duty as a lawyer to make sure that when people go to

their elected representatives and ask for those type of laws

to be passed to make the appropriate arguments that a court

might accept to uphold the judgment of the democratic people.

In the context of the NAACP, that was relevant to a legal

issue because one of the requirements we argued for

representational standing--

Those who might be listening may think this is awfully detailed, awfully specific, awfully long. Mr. President, that is my point. Senator Kennedy asked an appropriate and very detailed question about an issue involving street gangs in Chicago where Mayor Daley asked Mr. Estrada to help, and Mr. Estrada gave Senator Kennedy a very detailed, courteous, respectful, specific answer that has taken me 3 or 4 minutes to read, and I am not through yet.

The point is, the other side keeps saying he has not answered questions when he has answered the questions. Not only has he answered them, he has answered them in a way a superbly qualified lawyer with his background might be expected to answer.

The Senator from Alabama:

Mr. Estrada, if you are confirmed in this position, and I

hope you will be, how do you see the rule of law, and will

you tell us, regardless of whether you agree with it or not,

you will follow binding precedent?

Mr. Estrada:

I will follow binding case law in every case. I don't even

know that I can say whether I concur in the case or not

without actually having gone through all the work of doing it

from scratch. I may have a personal, moral,

philosophical view on the subject matter, but I undertake to

you that I would put all that aside and decide cases in

accordance with the binding case law and even in accordance

with the case law that is not binding but seems instructive

in the area, without any influence whatsoever from any

personal view that I may have about the subject matter.

What Mr. Estrada was saying to the Senator from Alabama was: Mr. Senator, with respect, I may not decide this case the way you would like for it to be decided because I will look at the case law and I will follow the case law, and I might even decide this case the way my personal view would decide it if the case law is different than my personal view. In other words, I think Mr. Estrada is giving the answer that most Americans want of their judges, regardless of what party they are in.

I will give a couple more examples, and I do this because this has gone on now 10 days. All I hear from the other side is he will not answer the questions, he is not answering the questions, when, in fact, there is a book full of questions and answers to which I believe law professors in the law school I attended would give a very high grade.

Here is the Senator from Wisconsin:

With that in mind, Mr. Estrada, I would like to know your

thoughts on some of the following issues. Mr. Estrada, what

do you think of the Supreme Court's effort to curtail

Congress' power which began with the Lopez case back in 1995,

the Gun-Free School Zone Act. That was a very controversial

case. I remember my own view on that. I would have voted

against it, even though, obviously, I am for gun-free school

zones, but almost every Senator voted for it because they did

not want to sound like they were against gun-free school

zones, I guess, or whatever the reason might have been, but

it was a controversial issue and a hard issue to vote

against.

Mr. Estrada:

Yes, I know the case, Senator. As you may know, I was in

the Government at the time, and I argued a companion case to

Lopez that was pending at the same time and in which I took

the view that the United States was urging in the Lopez case

and in my case for a very expansive view of the power of

Congress to pass statutes under the commerce clause and have

them to be upheld by the court. Although my case, which was

the companion case to Lopez, was a win for the Government on

a very narrow theory, the court did reject the broad theory I

was urging on the court on behalf of the Government.

In other words, Mr. Estrada was sticking up for the very people who are saying he will not answer their questions. He was there. That was his view, and he talks about it, and he answered the question:

Even though I worked very hard in that case to come up with

every conceivable argument for why the power of Congress

would be as vast as the mind could see, and told the court so

at oral argument, I understand I lost on that issue in that

case as an advocate, and I will be constrained to follow the

Lopez case.

Here we are, Mr. President. Mr. Estrada took a position that I would have voted against. I think he is wrong, but he really did not take a position that I would vote against him. He argued a case before the court that made the very best argument he could make, arguing two lines of opinions. What our friends on the other side are saying is, when he writes a brief or argues a case on behalf of the United States, that somehow that reflects the point of view with which they disagree. I disagree with his brief. I would not consider voting against him or anybody else based on that kind of reason, a very complete answer.

Then if I may, I will state two more. Again, I would not normally think it was necessary for me to read the questions and read the answers, except that virtually every Senator from the other side who has come in has said he has not answered the questions, so I want the American people and my colleagues to know that if they want to know whether he has answered the questions all they need to do is go to the hearing record and read the question and read the answer.

Here is a tough one from the Senator from California:

Do you believe that Roe v. Wade was correctly decided?

There is no more a difficult question for a judge who comes before the Senate, because that is a terribly difficult issue about which we all have deeply held moral beliefs, and for all of us almost there is only one right way to answer the question, unless one believes that what judges are supposed to do is to interpret the law and apply the law to the facts.

Mr. Estrada's answer:

My view on that judicial function, Senator Feinstein, does

not allow me to answer that question.

Then he goes on to explain what he meant.

I have a personal view on the subject of abortion, as I

think you know. But I have not done what I think the judicial

function would require me to do in order to ascertain whether

the Court got it right as an original matter. I have not

listened to the parties. I have not come to an actual case or

a controversy with an open mind. I have not gone back and run

down everything that they have cited. And the reason I have

not done any of those things is that I view our system of law

as one in which both me as an advocate and possibly, if I am

confirmed, as judge have the job of building on the wall that

is already there and not to call it into question. I have had

no particular reason to go back and look at whether it was

right or wrong as a matter of law, as I would if I were a

judge that was hearing the case for the first time. It is

there. It is the law, as has been subsequently refined by the

Casey case, and I will follow it.

That is a complete answer to the most difficult question that could be asked of a nominee for a Federal judgeship.

Senator Feinstein: So you believe it is settled law?

Mr. Estrada: I believe so.

As I mentioned, if I understand the committee's rules, every Senator on the committee has the ability to ask followup questions. I know when I was confirmed by the committee they asked me many followup questions and I worked hard answering the questions 10 or 12 years ago when I was in the first President Bush's Cabinet. These are serious questions and serious answers.

Here I think is a revealing question, and one which may give us some idea of why we are in the 10th day of debate on one of the most superbly qualified candidates ever nominated for the court of appeals, a man who exemplifies the American dream. The Senator from Massachusetts, Mr. Kennedy, asked this question:

Mr. Estrada, do you consider yourself a ``conservative''

lawyer? Why or why not? Why do you believe that you are being

promoted by your supporters as a conservative judicial

nominee? Do you believe that your judicial philosophy is akin

to that of Justices Scalia and Thomas? Why or why not?

What Senator Kennedy is looking for is to find out is this a conservative lawyer. Is the suggestion that we may want conservative decisions or liberal decisions? I thought we wanted fair decisions, based on precedent, based on fact. I thought we wanted judges who it would be impossible for us to tell where they were coming from before they were coming.

The response from Mr. Estrada is very interesting. He said to the Senator from Massachusetts:

My role as an attorney is to advocate my client's position

within ethical bounds rather than promote any particular

point of view, conservative or otherwise.

A-plus for that, I would say.

Mr. Estrada says:

I have worked as an attorney for a variety of clients,

including the United States Government, State and local

governments, individuals charged with criminal activity.

Are we going to say criminal lawyers cannot be confirmed because they represented people who murdered people and that makes them murderers?

Large corporations, indigent prisoners seeking Federal

habeas corpus, in those cases I have advocated a variety of

positions that might be characterized as either liberal or

conservative.

Remember, this is from a career employee in the U.S. Solicitor's Office in the Clinton and Bush administrations. This is Miguel Estrada:

While I am grateful for the wide ranging and bipartisan

support that my nomination has received, I have no knowledge

of the specific reasons that might cause a particular

supporter of my nomination to promote my candidacy for

judicial office. As a judge I would view my job as trying to

reach the correct answer to the question before me without

being guided by any preconceptions or speculations as to how

any other judge or justice might approach the same issue.

If all of the Senators would take the time to read Miguel Estrada's answers, some of them might end up in a textbook of appropriate answers, if they believe a judge's job is to apply precedent and consider the facts and come to a fair decision.

Miguel Estrada is qualified, and he is not just qualified, he is one of the most qualified persons ever nominated for

the Federal court of appeals. If he, by his very candidacy, represents the American dream that anything is possible, coming here from Honduras at age 17 and making his way through such a distinguished series of appointments, if he has answered the questions in what I would argue is a superior way, the way most nominees would be capable of answering the questions, and I have read just a few of them--I can come back and take another 2 or 3 hours and read more because there are hours of questions and answers--and if a majority of Members of the Senate have signed a letter saying they would vote to confirm him, then why can we not vote on Miguel Estrada?

The only reason can be that our Democratic friends want to change the way judges are selected. They want to say it takes 60 votes instead of 51, and they want to say the criteria for winning those votes is to answer the questions the way they want.

That will give us a Federal judiciary filled with partisans, or an empty Federal judiciary because we will be debating night after night because we cannot agree on whom to nominate and confirm. Such a process, if carried on in subsequent Congresses, will diminish the executive. It will diminish the judiciary. It will reduce the likelihood that facts will be considered and that binding precedent will apply. In other words, it will reduce the chance that justice will be done. It will reduce respect for the courts because it will be assumed that if partisan views on the case are what it takes to get confirmed by the Senate, then partisan views are what it takes to win a case before the court.

It reminds me of the story we tell at home about the old Tennessee judge. He was in a rural county up in the mountains and the lawyers showed up for a case one morning. He said: Gentlemen, we can save a lot of time. I received a telephone call last night. I pretty well know the facts. All you need to do is give me a little memorandum on the law.

We do not want a judiciary where those who come before it believe the judges got their political instructions when they were confirmed and that there is really no need to argue the case.

So Miguel Estrada is superbly qualified. Miguel Estrada has answered question after question, and he has done it very well. A majority of the Senate has signed a letter saying they are ready to vote today to confirm Miguel Estrada, and never in our history have we denied such a vote by filibuster to a circuit court judge. It is time to vote.

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

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

I conclude in equally plain English, and with respect, I hope my friends on the other side of the aisle would not deny a vote to Miguel Estrada just because they suspect his views on some issues may be more conservative than theirs.

These are the most serious times for our country. Our values are being closely examined in every part of the world. Our men and women are about to be asked, it appears, to fight a war in another part of the world. How we administer our system of justice is one of the most important values they are defending. We need to constrain our partisan instincts to get them under control. We need to avoid a result that changes the way we select judges. In my view, we permanently damage our process for selecting Federal judges.

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

Mr. President, I have been a Senator for a little less than 2 months. The same is true for the Presiding Officer. And we ran at a time when I believe the message from the people--and not just of Minnesota but I believe the people in America--was one that it is important the Senate should get things done. The 170th Congress had not passed appropriations bills, had not passed disaster assistance, had not passed a prescription drug benefit for seniors, and had not passed a budget. A lot of serious work needed to be done. That was the message.

We are here now--in a little less than 2 months--and we are caught up in a filibuster. I read about filibusters when I was a kid. This basically means the Senate is spending a lot of time debating the nomination of Miguel Estrada to be a judge in the Court of Appeals for the District of Columbia Circuit, and the distinguished members of the minority party are not going to allow that nomination to get to a vote unless there are 60 Senators who vote for cloture to put an end to the filibuster.

During the course of the discussion about Miguel Estrada, there have been some wonderful presentations on both sides of the aisle about the importance of the Constitution, the very sacred obligation of the Senate to advise and consent on nominations made by the President of the United States on judicial appointments.

In those wonderful discussions talking about this sacred obligation, my fear is that the public may not understand that obligation is not to have 60 Senators vote to confirm a nomination, that to require 60 votes is what is known as a supermajority. The Constitution reserves supermajorities to very specific instances--the approval of treaties-- but not for the confirmation of Presidential nominees to the Federal courts. That should take a simple majority.

So what we are faced with today is the very serious issue of an effort to change the constitutional standard for the selection of judges. And for all of us who love this Constitution, who understand its greatness--and I think through Divine guidance given to those who stood before us in chambers and in the Old Senate Chamber--to change the standard for Miguel Estrada is simply wrong.

It is not the right thing to do. What our distinguished colleagues in the minority party should do is the right thing and simply give the Senate a chance to vote on the nomination of Miguel Estrada--vote and say you need 51 votes to confirm this nomination. That is the constitutional standard.

The Web site of one of the most egregious liberal Washington interest groups has a number of troubling statements regarding the nomination and confirmation process for members of the judiciary. One memorandum discusses ``the approaching armageddon on judicial nominations.'' This extreme and inflammatory headline suggests an all-out, no-holds-barred, anything-goes campaign against judicial nominees by

those opposing the President's choices. Another headline on the same Web site demands its members and visitors to ``tell Senators: Filibuster the Estrada nomination.''

I do not believe there has been, in the history of this esteemed body, a filibuster of a circuit judge. I do not believe there has been a partisan filibuster of the type we are experiencing right now in the Senate.

On Wednesday, February 5, 2003, the Washington Post published an editorial referencing this Web site and condemning such tactics and urged a vote on the nomination of Miguel Estrada.

The editorial in the Washington Post correctly points out that a filibuster would be ``a dramatic escalation of the judicial nomination wars.'' It states that Democrats who disagree with the nominee may vote against him, but they should not deny him a vote. The editorial concludes that Mr. Estrada's nomination should not be stalled any longer, stating:

It certainly doesn't warrant further escalating a war that

long ago got out of hand.

As I listen to the debate, it seems that there are a lot of feelings that somebody did something in the past and now we are going to pay back today. There was an earlier time of feuds between the Hatfields and the McCoys, and the Earps and the Youngers. That is not the way to act in the 21st century, when we face the challenges of a potential war with Iraq and with a struggling economy and with moms and dads worried about feeding and clothing their kids and sending their kids to good schools. We should not be caught up in this kind of partisan feuding, saying you did something in the past to our nominees, so now we are going to do the same to yours today. Put it aside.

I am a product of the sixties philosophy. Let today be the first day of your life. We are never going to be younger than we are today, Mr. President. I think we have to put the past behind us. I don't know who was at fault in the past. I don't know about other nominees and the time it took them to get to the floor of the Senate, why they were delayed, for whatever reasons. All I know is that, today, Americans are crying out for the Senate to simply get the work of the people done. We can get the work done if we give Miguel Estrada a chance to simply have an up-or-down vote. That is all it is.

We should not change the constitutional standard. We should not be requiring 60 votes to confirm a judicial nominee. That is not what the greatness of this institution is about. That is not what the Constitution, which has preserved this country and set the standard for democracy, intended.

Let us have a clear understanding of what a modern day filibuster means. Those advocating this obstructionist tactic aren't demanding the opportunity for extended debate; that is already available to all Senators. The practical matter of a filibuster is to prevent a vote on the nominee, unless cloture is obtained. Of course, cloture requires 60 votes. As I said before, those calling for a filibuster on this nominee are demanding a supermajority vote. That is not what the Constitution says. That is not what the Constitution dictates. That is not the precedent and pattern we should be following. This is against the traditions and practices of this body. In fact, in only one instance did the Senate reject cloture and defeat a judicial nominee. That was in 1968, on the nomination of Justice Abe Fortas to be Chief Justice of the Supreme Court.

As I noted before, that was a bipartisan filibuster--not the party- line filibuster we are seeing waged here today against Mr. Estrada.

I agree with the previous chairman of the Judiciary Committee, a Democrat, who said in a speech on the Senate floor--I believe it was the Senator from Vermont:

I have stated over and over again on this floor . . . that

I would object and fight against any filibuster on a judge,

whether it is somebody I opposed or supported, that I felt

the Senate should do its duty.

Let the Senate do its duty. Let those who oppose the nomination of Miguel Estrada have their right to cast their vote, have a right to have their say, for whatever reasons. It is within their discretion to choose their reason to say no. On the other hand, let us follow the dictates of our Constitution and not change the constitutional standard. Let us give Miguel Estrada the opportunity simply for an up- or-down vote, and let a majority of Senators in the Senate--and I believe that a majority, which would be a bipartisan majority, not just folks of one party, but distinguished members of the minority party who support the nomination, would not change the constitutional standard.

During the course of this debate, there have been many serious misrepresentations of the record on Mr. Estrada. I want to address in some detail one of the most serious distortions, which concerns the answers that Mr. Estrada gave to questions that members of the Judiciary Committee asked him.

The charge being leveled against Mr. Estrada is that he did not answer questions put to him in general, and he did not answer questions about his judicial philosophy in particular. I have to say, that charge is pure bunk.

I sat here and listened as some of my colleagues on the other side of the aisle said he didn't answer questions. I have the transcript in front of me. He was there for a full day. He answered question after question. He answered followup questions, written questions. He answered the questions.

Again, it is important to remember the circumstances under which this hearing took place. That hearing was held September 26, 2001, chaired by my Democratic friend, the senior Senator from New York, with whom I went to grade school and high school in Brooklyn. Both Democratic and Republican Senators asked scores of questions, which Mr. Estrada answered. If any Senator was unsatisfied with Mr. Estrada's answers, every member of the committee had an opportunity to ask Mr. Estrada followup questions. I believe only two of my Democratic colleagues did that.

A number of questions that Mr. Estrada was asked directly or indirectly tried to pry from him a commitment on how he would rule on a particular case. Previous judicial nominees who were confirmed by the Senate have rightly declined to answer questions on that basis, as Mr. Estrada did. Let me give you some examples.

In 1967, during his confirmation hearing for the Supreme Court, Justice Thurgood Marshall responded to a question about the fifth amendment by stating:

I do not think you want me to be in a position of giving

you a statement on the Fifth Amendment and then, if I am

confirmed and sit on the Court, when a Fifth Amendment case

comes up, I will have to disqualify myself.

If I may digress, one of the other charges against Mr. Estrada is that he did not have judicial experience. During the course of this debate, it has been highlighted again and again that many distinguished judges--Supreme Court Judges and circuit court judges--did not have judicial experience before they were appointed to the court. Mr. Estrada, in fact, clerked for both a Federal court judge and U.S. Supreme Court Justice Anthony Kennedy. When Thurgood Marshall was appointed, I believe, to the District Court of Appeals, he did not have prior judicial experience. I think it was Justice Holmes who did not have it. I could go on and on. So that charge, too, is pure bunk.

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

It is offensive to suggest that a potential justice of the

Supreme Court must pass a presumed test of judicial

philosophy. It is even more offensive to suggest that a

potential justice must pass the litmus test of any single-

issue interest group.

It is interesting, if you look at Mr. Estrada's response on the question of Roe v. Wade, he said very clearly in response to a question of the Senator from California that he has his views, but his view of the judicial function ``does not allow me to answer that question.'' But he said he has a personal view on the subject. Again, he goes back to his view of judicial function. Then he goes on to say:

And the reason I have not done any of those things is that

I view a system of law in which me as an advocate and

possibly if I am confirmed as a judge, have the job of

building on the wall that is already there, not to call it

into question. I have no particular reason to go back and

look at whether that decision was right or wrong as a matter

of law, as I would if I were a judge that was hearing the

case for the first time.

Then he goes on to say:

It is there. It is the law and it has subsequently been

refined by the Casey case, and I will follow it.

The Senator from California asked:

Do you believe it is settled law?

The answer is:

I believe so.

So again, he has done what other nominees have done and he will not discuss his personal feelings. He will not discuss his personal philosophy on that issue, but he says it is settled law--settled law.

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

I really don't think I should discuss this subject

generally, Senator. I don't mean to be unresponsive, but in

all candor, I must say there have been many times in my

experience in the past 5 years when I found that my first

reaction to a problem was not the same as the reaction I had

when I had the responsibility of decisions, and I think if I

were to make comments not carefully thought through, they

might be given significance they really did not merit.

Justice Sandra Day O'Connor was confirmed. Justice John Paul Stevens was confirmed.

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

Because I am and hope to continue to be a judge, it would

be wrong for me to say or to preview in this legislative

chamber how I would cast my vote on questions before the

Supreme Court. Were I to rehearse here what I would say or

how I would reason on such questions, I would act

injudiciously.

In addition, as my colleague from Nevada yesterday noted, Justice Ginsburg just last year said in dissent in the case of Republican Party of Minnesota v. White:

In the context of the Federal system, how a prospective

nominee for the bench would resolve certain particular

contentious issues would certainly be ``of interest'' to the

President and the Senate. . . .But in accord with a

longstanding norm, every Member of this Court declined to

furnish such information to the Senate and presumably to the

President as well.

I believe I recall in reviewing the transcripts of the hearing of Mr. Estrada--I am not a member of that committee, but I have taken the time to review some of the transcripts--he was asked by one of my distinguished colleagues on the other side of the aisle whether he was a strict constructionist. I believe his response was he was a fair constructionist.

A further discourse by my distinguished colleague from the other side of the aisle, I think from North Carolina: Did the President talk about strict constructionist? I am paraphrasing. Mr. Estrada came back and said: I did not talk about that with the President, but he talks about being a fair constructionist.

That is the kind of judge the people of the United States want to sit on the Circuit Court of Appeals.

I also note, in contrast to the characterization of my colleague from Nevada, however, Justice Scalia in his majority opinion did not take issue with that description, as Mr. Gonzales pointed out in his letter. Justice Scalia said:

Nor do we assert that candidates for judicial office should

be compelled to announce their views on disputed legal

issues.

Like these previous nominees, all of whom the Senate confirmed, Mr. Estrada refused to violate the code of ethics for judicial nominees by declining to give answers that would appear to commit him on issues that he would be called upon to decide as a judge. Again and again, he provided answers in direct response to questions that make his judicial philosophy an open book.

Let me share some specific examples. Responding to a question to identify the most important attribute of a judge, Mr. Estrada answered that it was to have an appropriate process for decisionmaking. That, he said, entails having an open mind, listening to the parties, reading their briefs, doing all the legwork on the law and facts, engaging in deliberation with colleagues, and being committed to judging, as a process that is intended to give the right answer.

These are not extreme views. I do not think we could ask any more from any judge.

When asked about the appropriate temperament of a judge, he responded that a judge should be impartial, openminded, and unbiased, courteous, yet firm, and one who will give ear to people who come into his courtroom. These are the qualities of Miguel Estrada. He testified that he is and would continue to be the type of person who listens with both ears and would be fair to all litigants. Again, that phrase he used, he would be a fair constructionist.

Mr. Estrada was asked a number of questions about his views and philosophy on following legal precedent. Let me highlight a bit of that exchange.

Question:

Are you committed to following the precedents of higher

courts faithfully and giving them full force and effect even

if you disagree with such precedents?

Answer:

Absolutely, Senator.

Question:

What would you do if you believe the Supreme Court or the

Court of Appeals had seriously erred in rendering decision?

Would you apply that decision or use your own judgment of the

merits, or the best judgment of the merits?

Answer:

My duty as a judge and my inclination as a person and as a

lawyer of integrity would be to follow the orders of the

higher court.

Question:

And if there were no controlling precedent dispositively

concluding an issue with which you were presented in your

circuit, to what sources would you turn to for persuasive

authority?

Answer:

In such a circumstance, my cardinal rule would be to seize

aid from any place where I could get it--related case law,

legislative history, custom and practice, and views of

academics on analysis of law.

That is the kind of judge we want. That is the kind of judge I think the Constitution intended us to have when it gave us this solemn responsibility of advising and consenting on judicial nominations. Again, not by changing the constitutional standard, but advising and consenting, allowing a majority of Senators in the Senate to advise and then consent on a nominee presented by the President but not requiring a supermajority.

These exchanges I have laid out clearly illustrate Miguel Estrada's respect for law and his willingness and ability to faithfully follow the law.

He further testified, in response to other questions:

I will follow binding case law in every case. Even in

accordance with the case law that is not binding, but seems

instructive on the area, without any influence whatsoever

from any personal view I may have about the subject matter.

This is what we expect judges to do. I can see no good reason why anyone would be opposed to a nominee who promised to follow the law, a nominee who is highly qualified, a nominee who the American Bar Association in rating judges gave a unanimous--every person on the committee, and I presume they were not all conservative Republicans, every person on that review committee unanimously gave him the highest rating, the highest recommendation, which many of my distinguished colleagues on the other side of the aisle have called the gold standard. That is the way in which we should measure judges.

Now we have a judge in front of them who has passed the gold standard unanimously, who is highly educated, who at 17 years of age came to this country from Honduras and did not speak English well, graduated magna cum laude from Columbia, graduated magna cum laude from Harvard Law School, was editor of the Law Review, clerked for Federal and Supreme Court judges, worked, and came back to public service. Talk about the American dream.

Miguel Estrada, being given such great opportunity of education, is coming back and saying: I am going to give back to the community; I want to work in public service.

I had the chance to serve as solicitor general of the State of Minnesota. It is a solemn, high honor to represent your State or to represent your country, to work for your State or your country, to uphold its constitution.

It is important to note that every living former Solicitor General of the United States, four of whom are Democrats, stand with Miguel Estrada on one of the other issues that my distinguished colleagues from the other side have raised. They said they want some of his opinion papers. Yet Democrat Solicitors General--every one of them-- say, no, that is not appropriate;

those should not be given up. That is not Miguel Estrada saying that. Those are the Solicitors General of the United States. Again, that is another argument that is a bogus argument, if I may be blunt.

When asked about the role of political ideology in the legal process, Mr. Estrada replied with a response that, in my view, was entirely appropriate and within the mainstream of what all Americans expect from their judiciary. He said:

[A]lthough we all have views on a number of subjects from A

to Z, the first duty of a judge is to self-consciously put

that aside and look at each case with an open mind and listen

to the parties. And, to the best of his human capacity, to

give judgment based solely on the arguments of law. I think

my basic idea of judging is to do it on the basis of law and

to put aside whatever view I might have on the subject to the

maximum extent possible.

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

I recognize that the Supreme Court has said on numerous

occasions in the area of privacy and elsewhere that there are

unenumerated rights in the Constitution. And I have no view

of any sort, whether legal or personal, that would hinder me

from applying those rulings by the Court. But I think the

Court has been quite clear that there are enumerated rights

in the Constitution. In the main, the Court has recognized

them as being inherent in the right of substantive due

process and the liberty clause of the fourteenth amendment.

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

Congress has passed a number of statutes that try to

safeguard the environment. I think all judges would have to

greet those statutes when they come to the court with a

strong presumption of constitutionality.

At the same time, he recognized that as a circuit court judge he would be bound to follow the precedent established by Lopez and other Supreme Court cases. So it is clear from the record that Mr. Estrada did answer the questions put to him at his hearing.

His judicial philosophy is an open book. But if my Democratic colleagues are still inclined to vote against him, misguided as I believe that choice to be, then they should have that right. Let them vote against him. Vote for him, vote against him. Do what their conscience dictates. Just vote. Do not change that magnificent, most wonderful constitutional standard that has guided us and kept this country together for over 200 years. Allow the Senate to exercise its duty. Allow each Member to vote their conscience. Just vote and end this filibuster.

I yield the floor.

Madam President, will the Senator from California yield?

Mrs. BOXER [continuing]. There was actually a vote to indefinitely postpone one of those nominees, the Hispanic nominee, Richard Paez.

Madam President, will the distinguished Senator from California yield for a question?

I ask the distinguished Senator from California, is it not true that in those instances when she talks about ``filibusters''-- and I was not here, but I understand that those ``filibusters'' did not last more than a day or two--that in fact both of those nominees had a chance to be voted on by this body. Is that true?

Madam President, I ask the distinguished colleague from California again, in both instances is it not true that cloture was filed--we are talking about filibuster, not 4 years but filibuster debate on this floor--and both nominees were confirmed after cloture was invoked?

Madam President, will the distinguished Senator from California yield for two more questions?

Is it not true the Republicans filed cloture for both of the distinguished judges my colleague from California has mentioned, both Judge Paez and Judge Berzon? Secondly, if that is true, I ask my distinguished colleague from California if she would vote for cloture and support putting an end to this filibuster on the nomination of Miguel Estrada.

Madam President, I have no further questions for my distinguished colleague from California.

We were elected to take an oath of office to uphold the Constitution, defend the Constitution from enemies, foreign and domestic. That is the oath each member takes very seriously. It is an oath that puts on each of our shoulders the responsibility to decide what that means.

Our distinguished Senator from West Virginia, Robert Byrd, presented me with a Constitution when I arrived here. I have learned a great deal about this document, about what it says and means. I have learned about the intentions of the Founders of the country. This document is the gospel which each member is required to follow. It says the President, by and with the advice and consent of the Senate--it does not say that the Senate shall approve or how the Senate shall consider. It says the Senate will be an equal partner with the President. The President will make a nomination, and it is for the Senate to decide, 100 Senators to decide, according to their own values and according to their own background experience and according to whatever they want to bring to bear on that matter how they will decide.

I have listened to a lot of these debates in the last couple of weeks on this matter. I am not a lawyer. I am not on the Judiciary Committee. I take very seriously my responsibility to weigh someone's career, weigh someone's character, to try to assess whether this is the kind of person I want to support to put on a court where he will be presiding, if he chooses, for the rest of his life; where he will be making decisions that will affect millions of people, whether someone has the right to housing or whether someone has the right to be protected from discrimination, whether some schoolchildren can go to school under better conditions. I don't know what kind of decisions this man will face, but I know they will be important. I know they will last for a long time and last beyond his own lifetime.

In effect, we are making a decision about someone who will be impacting the lives of Americans for two or three generations. That is the only time this person will be evaluated by his fellow citizens before that decision is made, unlike all of us who face our electorate every 6 years, or the House Members every 2 years, and the President himself every 4 years. This man will be appointed to the bench for life. I believe I am within my rights as one of the 100 who will make that decision to have sufficient information that I can make an informed judgment.

It is not for me to say to the administration the criteria they should use in making this kind of appointment. But I would be surprised, frankly, that out of all the vast numbers of highly qualified people in the country there would be someone chosen for the second highest court in the country without any previous judicial experience. If that is the case, I believe we have a special need to have information provided, to give each of us the information we seek and need to make that determination. That is not forthcoming, either.

We are told we can have certain information and we cannot have other information. I received a note from the White House counselor saying Mr. Estrada would meet with me, and I appreciate the gesture. I don't want to go back into my office off the record and have a conversation. I want to know on the record. This man does not have a judicial record. We have to find other means of obtaining that information. I am wondering why it is that somebody with no judicial record, no series of decisions that we can look to, writings we can look to for guidance as to his views, why he would not feel, and why the nominator would not feel a special obligation to provide that information.

If I went before the voters of Minnesota and refused to answer some of the questions Mr. Estrada refused to answer before the Judiciary Committee, I would be laughed out of the election. Certainly no one should vote for me if I would not give voters any information to allow them to understand my philosophy, what I value or not, what decisions I agreed with or disagreed with in the past, just basic information which we do not have about this man because he has no judicial record because he has never been a judge.

We have elected people in Minnesota who have not had prior experience, and it is fashionable to say they are not a career politician. In fact, we have a Governor who just departed who had that view, that was the right kind of qualification.

If I got on an airplane and the pilot said this is going to be a different kind of flight; I have never flown a commercial airline before, I would not feel more confident. I would be pretty worried. If somebody says they are taking their child in for surgery, and someone said that doctor had never performed that kind of surgery before, I would be very concerned. I would want to know some information about that individual. I would want to know that person's qualifications. I would want to

know if that person had the training and skills to approach that matter before I trusted my life or the life of one of my children with that person. And we are entrusting the lives of unknown, not-yet-identified, very real people, very real Americans who will have to go before that court, where that court will review decisions that are made that are their last course. If justice is not served, justice will be forever denied them and that will be a tragic injustice they will suffer for the rest of their lives.

We cannot foresee all of that. We cannot prevent all of it. We have a responsibility to the Constitution of the United States which we swore to uphold and defend, which our Founders thought so important that they did not even talk about the country; they talked about the Constitution. That was our responsibility. Senator Byrd says that our responsibility is to uphold the Constitution. That is our responsibility. That is the responsibility of each of us.

I might want something different in terms of information or background than other of my colleagues. For some of my colleagues, the fact that the President made this nomination, he is of their political party, that is all the information they need, well, that is the absolute right of all of my colleagues who decide that way.

I don't question someone else's right to make their decision however they determine based on that, the same way I don't want anyone to question my right to have the information that I probably need, just basic information so I can know the background, qualifications, judicial philosophy, and views of this person. I don't believe any electorate in any State in this country would elect somebody who wanted to serve in a high office--Governor, Senate, member of the House--who had no prior political record, no prior involvement in public life, and went before the electorate and said: I want to be elected and I am not going to tell you where I stand or what I believe or what I do or what I agreed with in the past or who I like or do not like. I don't think anywhere in America there would be positive reaction to that.

I don't believe there would be a board of directors in corporate America that would hire somebody for an important position--chief executive officer, chief operating officer, the No. 2 position--that would even consider someone who would not provide the basic information that we are asking for here.

To me this gets into the realm of just being ludicrous, that we are in a position of being questioned for taking the particular position that says we want information.

I agree with my colleague from California. If we get the information, then there will be a vote. If we get information so those of us who have these reservations--and really, in my case, I have not come to a final decision because I do not have the information with which to do so. But I am not going to make that decision, I am not going to agree to this matter coming before this body, if I can help it, until I have that information. That is just the way it is. That is the position I have taken. Again, that is my right to do so and that is the right of any one of my colleagues in this situation.

We are spending an awful lot of time here, way too much time, on this matter, given what is going on in the country today. We ought to be setting this nomination aside, giving the nominee the opportunity to present in writing the information we have requested. Either do so or not. We can assess it accordingly. We ought to turn the attention of this body to matters that, when I was in Minnesota last week, certainly concerned every one of the citizens I talked and listened to. It was not the nomination of Miguel Estrada, important as that is. It is about the war in Iraq that is looming. It is people's fears of whether we were going in; what is the right thing to do. The fact that the week before they were told to go out and buy plastic and duct tape, go out and buy bottled water and food. They are not very reassured in Minnesota about the ability of their Government to protect them. They are not really sure.

I must say, based on information I have received, what I have heard expressed from local law enforcement officials in Minnesota, that what we passed in Congress has not gotten out to these first responders-- resources, training, information.

I had the sheriff of the largest county in Minnesota, Hennepin County, in my office today. He cannot get information about what happened with the raising of the national security alert. He said he found out about it on CNN. He is a sheriff. He is part of the network of emergency responders for the city of Minneapolis, the largest city, largest county. He does not have any source of information from the Federal Government to tell him even that such a code has been established, much less what the reasons are, much less what some of the circumstances might be.

He said he tried to find out from the FBI, with which he has a very good working relationship, what the circumstances were. They didn't know either. They hadn't gotten any prior word. That certainly astonished me.

On the Governmental Affairs Committee and I sat through the hearings where this was being discussed. It was my clear understanding that the new Department of Homeland Security was going to be in constant communication with the FBI and CIA, that information was going to be shared, and they would all have that information. I also understood, because we certainly provided the funding and we certainly made it clear in the hearings on the floor that we intended for that Department to be communicating, providing resources, providing training, providing expertise and getting that out to the Hennepin counties of Minnesota-- and America.

Lo and behold, he doesn't know. The FBI district office in Minneapolis, MN, doesn't know. So he is watching CNN. He was not very confident about how well this administration has done its job to get this country prepared for what may lie ahead.

The citizens of Minnesota, as I said, are certainly alarmed. I believe they have an absolute right to expect that this body, this institution of the Senate would be turning its attention to these matters of concern.

So I say again, respectfully, to the majority leader, the time has come to set this nomination aside to give Mr. Estrada the opportunity to respond in writing to the questions which I and others have said clearly, again and again, we must have answered to make an informed judgment, which is my constitutional obligation to the country and to the Minnesota people who elected me. I don't think that is much to ask at all. Anyway, it is what I am going to ask and require before I am going to proceed.

Then I ask the majority leader, as I wrote 2 weeks ago in a letter, that I and the rest of us turn our attention on this Senate floor to these matters of war and peace, whether the United States of America is going to commit itself to an invasion of another country, a preemptive strike, something that is going to have profound consequences for our country--for our world for years to come.

Our silence here, as again the distinguished senior Senator from West Virginia, Mr. Byrd, said the other day, is just profoundly deafening, the silence here in the Senate, the absence of debate, the absence of 100 different views on what we are doing, what we propose to do, what might we do.

Of course the real tragedy, in my view, and the real embarrassment to this institution, great as it is, and to the House of Representatives, is that this document, the Constitution of the United States, states very clearly and definitively that Congress and only Congress shall declare war. Not the President. No one else. Just Congress.

This was very clearly the intention of those who drafted the Constitution, whose wisdom and foresight is something I find unbelievable, that a group of people back over 200 years ago could have, on their first attempt--not that they didn't have drafts, but that they could put together a document that would be as brilliantly foresighted as this turned out to be, and anticipatory of just these kinds of matters: Where the temptation is to let it go somewhere else; where the pressures are from some person or groups of people to forget something or overlook something or circumvent something. They made the President of the United States the Commander in Chief of all the Armed Forces--back then of the militia. For that very reason they didn't want him, they didn't want any

one person--it is not just this President; it is any President--they didn't want that one person making the decision to commit this Nation to war or keep us in peace. Boy, were they ever right. Did they ever understand why that should be a decision made by an elected group such as the Congress.

We didn't declare war back in October. The President was not at that point himself--and I gather not even today is it appropriate--ready to make that final, fateful decision. That was 4 months ago, before we even got to this point. We didn't declare war. What we said is we will give the President the authority to do whatever he determines needs to be done, including the use of force. That is one of those euphemisms we use to hide our true intent, which means if he wants to have a war, he starts one. We will preapprove it and he can proceed. That is not anywhere near what the Constitution says, nor what was intended it say, nor how it was intended to be followed.

Before this Nation is committed to a war, before American men and women are sent across our border to fight and some of them to die, before possibly people in this country might suffer those grotesque experiences, they have the right that their elected officials will give this matter their most serious consideration for a length of time that is appropriate. It will not take as long as has the squabble over Mr. Estrada, but it ought to take a while, because this decision is profound.

The fact that we are here on the Senate floor now, the third day we are back from our recess--the fact we had a recess at all last week rather than being here debating these issues of war and peace--the fact that we are doing something now that, as I said earlier, has its own significance, has its own place, but pales in comparison with war and peace and the enormity of those decisions about the preparation of the country and the Department of Homeland Security, the preparedness of this Government to protect all of its citizens--those are the matters that concern the people of Minnesota almost to the exclusion of anything else; even to the exclusion of the problems with the economy with all those difficulties. Those are the matters which we should be reviewing on the Senate floor.

If the President believes we should commit our forces to invade another country, to launch a preemptive attack, to start a war against another country--which is almost unprecedented in our Nation's history, and is certainly unprecedented in the context of leaping forward to cut off a threat which is not imminent, not immediate, but rather one which we believe would materialize, and probably would if certain lines were crossed, to remove the Government, the leader of another country--these are decisions which are so enormous in their scope immediately and which are going to have such consequence for this world for decades to follow that it is wrong for us to turn the other way, for us to refuse to fulfill our constitutional responsibility. What we should do is bring these matters to the Senate floor and say, Mr. President, that was the 107th Congress, this is the 108th Congress, we are a different body, we want to recertify that constitutional responsibility that Congress and only Congress shall declare war.

No President is authorized by the Constitution to commit any forces in such a way until that decision has been made and voted on by the Congress. That is what we ought to be doing here. The American people have a right. They elected us, and they sent us here, and they expect no less of us and will hold us in the highest reproach if we fail to fulfill that responsibility, if we fail to even bring the matter up, or if we fail to direct our attention and declare ourselves one after another on the record for or against. We owe that to the people who founded this country, who sustained this document--many at the cost of their own lives. We owe that to the courageous Americans--men and women--who are amassed on the borders halfway around the world who will have to carry out that decision, if it is made, to proceed to fight. Some will be wounded and maimed. Some will lose their lives because of that decision.

We owe them nothing less than to fulfill our responsibility here in the Senate at this time or as soon as the President determines that matter should be brought to our attention.

Two weeks ago, think of what we went through. Our citizens were told to go out and buy duct tape and plastic sheets and not even told really what to do with them. In Minnesota, we are well aware of that. We are a cold-weather State. We have quite a bit of experience putting up plastic sheeting and filling up drafts around doors and windows. It is not something you can do lightly. You can increase the concentration of radon in the rooms by closing them up too tightly. The information wasn't even in necessarily the best interests and the best health of people who would be doing it. They are entitled to a lot more from their Government than that. They are entitled to know a lot more than to go out and get bottled water or canned food and duct tape and plastic sheets, and, good luck and God help us. They deserve a lot more than that. That is why on the floor of the Senate we should be bringing up homeland security and discussing what more needs to be done and the resources that are needed.

I want to bring forth the voice of the sheriff of Hennepin County, MN, and his concerns. I want to know why he wasn't told the country was going through the second highest security level and why he had to find out about it from television rather than from the Department of Homeland Security which was established by this body to provide that kind of information--supposedly provide that kind of coordination, services, and resources. God forbid that something would happen to Hennepin County and they wouldn't have the benefit of that information; they would not know what to expect, what it might be, where it would be coming from.

These are critical life-and-death responsibilities that I know the Federal Government and Secretary Ridge take very seriously. I have nothing but the highest respect and regard for him and the monumental task he is undertaking. I hold nothing but the highest respect for the sheriff of Hennepin County. The two of them ought to be working and coordinating. The sheriff ought to have the resources we provided last August in this body. It was vetoed by the President. There is more forthcoming from the 2003 appropriations. We want to make sure that those resources are getting out to local government first responders all over the United States of America so that they have that ability to train, to prepare, and to be equipped to respond as much as possible.

Again, we hope and pray it will never happen. But if it should happen, they will have to be brought into action. Every second is going to count. Every person is going to have to make the right decision. Life depends on how well we help them be prepared.

I commend the majority leader's request that this nomination of Mr. Estrada be set aside and that he be given the time and the opportunity to respond in writing to the questions of those of us who do not have the information that we believe we need to make the decision--that he provide that information to us; that we take a period of time then to focus on what is a life-and-death and most urgent concern of every citizen in Minnesota whom I met with and heard from last week. Even if there was another topic of conversation, they wanted to know about Iraq. They wanted to express their own views and own concerns. They see us on C-SPAN doing nothing but talking about the nomination, and the same the next night and the next night.

I shudder to think what they must think about our sensibilities and our priorities. It is wrong. We owe it to those citizens to do our best in everything we stand for to bring this body back to focusing on the most critical time of our Nation--the pending war, the decision there, the responsibility of the Congress to declare war. And only Congress can declare war. Those of us who voted for resolution last fall abdicated to the President. It doesn't absolve our responsibility and what we must do now to stand up and take that responsibility back and make that decision and be held accountable by the people of America.

I yield the floor.