Floor Statements

Mr. President, I ask unanimous consent--this has been cleared with the majority--that the Democrats be entitled to 45 minutes in morning business, and the Republicans 45 minutes, because of the prayer.

Mr. President, I appreciate the courtesy of the Senator from Utah. We are going to move to the Estrada nomination in executive session. However, prior to doing that, Senator Roberts and I are here. We have long served on the Ethics Committee, and we have a statement we wish to give. Senator Hatch has agreed that we can do so prior to going to executive session.

I ask unanimous consent that Senator Roberts and I be allowed to speak. As far as the time after that is concerned, we do not believe it needs to be equally divided. If Senator Hatch wants to take all the time, he can do that. I don't think we have anybody who wishes to speak.

Mr. President, when I was first elected to the Senate, I spent a lot of time trying to figure out the committee structure. It is different than it is in the House. But I learned quickly that here, as in the House, the work gets done in committees.

I was fortunate early to be asked to serve on the Appropriations Committee and the Public Works Committee. I have served on these committees since I have been in the Senate. In these committees, I saw that the two ingredients necessary for successful operation of a committee were to make sure that there was not extreme partisanship and that we and a good, competent staff.

I have served in the majority and the minority while a Member of the Senate. I have been ranking member of a subcommittee, a chairman of a subcommittee. I have been chairman of a full committee on two separate occasions.

But regardless of which capacity I have served in, these ingredients remain constant.

Though I enjoyed the benefits of both good staff and bipartisanship during my years on these excellent committees, I was uncertain what to expect when I was asked to serve on the Committee on Ethics. I soon discovered that that committee was no different from any of the others, that you need a good staff and nonpartisanship.

It has been a tremendous pleasure for me to work with Senator Pat Roberts of Kansas. We have worked through some very difficult issues while we have served as chairman and ranking member of the committee. As we all know, Senator Roberts has a great sense of humor. But that sense of humor is never, ever in the way of doing the right thing for this institution. He is a person who served for many decades in the Congress, and his service here in the Senate has been a rewarding one for Members of the Senate because he has brought his experience from the House and made this place a better institution. I can speak with authority in that regard as a result of how he handled himself on the Ethics Committee during the time he and I served as chairman and ranking member or vice versa.

It is a disappointment to me that he is no longer chairman of that committee, but the rules are such that he could not serve in that capacity while serving in the same capacity on another committee. I look forward to working with Senator Voinovich, who has replaced him. I only hope that he is half as good in that capacity as Senator Roberts. If that is the case, the Senate will be well served.

The Senate Ethics Committee is truly a unique committee. Unlike other committees, it is comprised of an even number of Democrats and Republicans. It is led by a chair and vice chair. The staff is entirely nonpartisan. Most significantly, the committee's obligation is to ensure that Members of this body adhere to the high ethical standards expected of them as Members of the Senate. This is an obligation that transcends partisan political differences.

I have had the honor of serving on the Ethics Committee for a long time. I have had the privilege of being both the chair and the vice chair of the committee. Throughout all my time, however, the individual responsible for the day-to-day management of this committee has been Victor Baird. In fact, Victor has served on the Ethics Committee since 1987 as the staff director and chief counsel.

He has guided the committee through some of its most controversial cases. Regardless of the case or the controversy, however, Victor Baird could be relied on to steer the committee with a degree of impartiality, calmness, and firmness that will be a model for his successors.

It is significant to note that Victor Baird is leaving the Ethics Committee to enjoy a rich and deserved retirement. His career path is a tribute to those who look at public service as a possibility.

Prior to coming to the Senate, Victor served on the Consumers' Utility Council of Georgia, was an administrative law judge in Georgia, and served as an assistant attorney general of Georgia.

He also is another son of Georgia who found his calling in public service and is finishing his career serving the greatest deliberative body in the world. Like other Georgians in the Senate, Victor enjoyed a distinguished career in the U.S. military. He was honorably discharged in 1970 from the U.S. Air Force and was a recipient of the Bronze Star. During his 3 years in the Air Force, he served as a meteorologist and was responsible for predicting tropical storms. I am sure the storms that came after he took this job at the Ethics Committee were certainly more than any of the storms he saw in the nonpolitical environment. I am sure that Victor's ability to forecast stormy weather served him well in the Senate.

Victor Baird's professional career is marked by serving the public. That alone deserves our commendation. It is unfortunate today that public service is viewed as a short-time venture for some, but I believe it is a noble calling. The financial rewards are few and the hours can be very long. Those who commit their lives to public service retire knowing their work, no matter how great or how small, has contributed to the betterment of society. That alone is a reward that cannot be quantified in dollars.

Mr. President, on behalf of the Senate, I wish to thank Victor Baird for his 15 years of service on the Select Committee on Ethics. Victor's contributions to the betterment of this institution are significant. The Senate

has long recognized that public service is a public trust. Today there is greater trust in our Government and in this institution as a result of Victor Baird's service on the Senate Select Committee on Ethics.

I will miss calling Victor at home at night, trying to find out where he is because there is a question that has to be answered immediately. I am sure in some ways he will miss me. But I certainly wish Victor the very best in his retirement. He has been a public servant I will always admire.

If my friend will yield--and I have already cleared this with the distinguished chairman of the Judiciary Committee--when the Senator from Utah finishes his statement and we go into executive session, I ask unanimous consent that the Senator from Vermont be recognized following the statement of the Senator from Utah for up to 12 minutes.

Will my friend yield?

Mr. President, I am embarrassed that I have not come prior to tonight and said something about GEN Al Lenhardt. I have served in the Senate a long time, and we have had some very fine Sergeants at Arms. But for the time and place, he was what we needed.

He is a man who had been literally under fire when he was in the military. He had been head of all the MPs in the Army. And for him to step in here, it was a perfect time, when we were going through all the trouble we had.

I have gotten to know him extremely well. He has been a personal asset to me and to all the Senators. As the distinguished Senator from Utah mentioned, staff and a number of Senators do not know how much he has done. Someday maybe something will be written about everything he personally went through to make sure this place is very safe.

I very much appreciate the Senator from Utah mentioning this fine man. This is not a partisan issue. Those of us who worked with him know what a wonderful job he has done. This is a spoils system we have here, and there are things that happen when there are new administrations, and I accept that.

I personally am going to miss him. He is a fine American. He has rendered great service to the Senate and to our country.

General Lenhardt.

While the acting majority leader is in the Chamber, I say through him to the majority leader that I certainly am appreciative of--and I think I speak for the entire Senate--his setting aside time for Senators to give their maiden speeches. Some may think this is a waste of time. From personal experience, when I gave my first speech on the Senate floor, presiding was David Pryor, and listening in his office was Chuck Grassley. My speech was on the Taxpayers' Bill of Rights, which I worked on my entire time in the House of Representatives. The subcommittee chairman did not like the legislation and would not do anything on it. To make a long story short, Senator Pryor sent me a note and said he liked my speech and liked the legislation I was talking about. Senator Grassley also contacted me that day. They were both senior members of the Finance Committee, and as a result of their support I was able to get that legislation passed, which was landmark legislation, putting the taxpayer on a more equal footing with the tax collector.

I say to Senator Alexander and others who will give their maiden speeches: People listen. These speeches really are meaningful.

I look forward to Senator Alexander's speech. In fact, I will be joining with him in the legislation he is going to introduce.

Mr. President, while the majority leader is in the Chamber, I ask unanimous consent that the majority be given a full hour--we have taken some time today--and the Democrats, if necessary, extended 10 minutes also. I ask unanimous consent.

Mr. President, my friend, the junior Senator from Tennessee, has this morning introduced legislation that I think is extremely important. I was happy to join with him as the lead cosponsor in that legislation. Certainly the Senator from Tennessee has the qualifications to offer legislation relating to education. He has been Governor of a State. He has been the secretary of education for our country. So when I saw this legislation come across my desk, I thought it was something in which I was interested. After reviewing it more closely, I am happy to be the lead cosponsor on this legislation, the American History and Civics Education Act.

First of all, I agree with the Senator from Tennessee that civics or the duties of citizenship need to be stressed more. The best place it can be stressed is through educating our children, K through 12. It is the same with history. Mr. President, I love the study of history. I read fiction only occasionally. I read nonfiction all the time. I am presently engaged in a tremendously interesting book, written by Evans and Novak, the conservative reporters. Evans has passed away. Novak is still writing, as he has for many years. He is an excellent writer. I didn't realize, until I had occasion to visit with Bob Novak a few weeks ago, that he and Evans had written a history book in 1967 dealing with the life of Lyndon Johnson. I am in the process of reading that book. I am probably about halfway through the book. It is tremendously interesting. For those of us who read the Caro work, I recommend the book by Novak. It is very readable. They were there at the time. The things that went on, for example, in the Civil Rights Act of the late fifties--our colleague Strom Thurmond debated that matter. He stood up himself in a filibuster. Senator Hatch, my friend from Utah, talks about real filibusters. That was a real filibuster. Senator Thurmond alone spoke for more than 24 hours.

It really threw the southern coalition off because they, in effect, made a deal with Lyndon Johnson and Strom Thurmond. It threw a monkey wrench into the so-called deal. Anyway, it is very interesting.

History is living what took place in the past. For us, it is the ability to learn from what has happened in the past to try to do a better job in the future.

My friend from Tennessee, wrote this legislation, and I am happy to work with him on it; it is great. The legislation sets up academies. It sets up programs on the Internet for best teaching practices. The education of America's children must be one of our top priorities.

Our schools have several important goals, including providing students with a foundation for higher education, helping them develop individual potential, and preparing them for successful careers.

America has been a nation of immigrants for hundreds of years, and our schools have helped instill in our diverse population a sense of what it means to be an American and prepare our youth for the responsibilities of citizenship. We need to reaffirm the importance of learning American history and acquiring civic understanding. That is what this legislation is all about.

As I work to make sure Nevada schoolchildren are connected to the Internet and the future, I also want them to be connected with America's past and know the common values in history, binding together all who live in our great Nation.

I commend and applaud the junior Senator from Tennessee, Lamar Alexander, for offering this legislation. It is important legislation. He said in his statement that Senator Gregg, who chairs the committee of jurisdiction on this legislation, will move the bill to the Senate floor quickly. I hope that happens. I do hope my Republican colleagues will join with me in adequately funding this program so we can establish in grades K through 12 these academies where teachers can go to summer workshops and learn history and how better to teach history. It will only improve our country and our educational system in particular.

Under the previous order, the second 30 minutes shall be under the control of the Senator from Alaska, Ms. Murkowski, or her designee.

The Senator from Alaska.

It is my understanding that morning business is going to end in a couple minutes; is that right?

Mr. President, I direct a question to my friend from Virginia. The Senator from Virginia is here and wishes to speak; is that right?

Mr. President, before my friend starts, we have other people who wish to speak who can come this afternoon. I am curious as to roughly how long the Senator wishes to speak.

I thank the Senator.

Mr. President, the procedure in the Senate, one of long standing, is that we as Senators have the right to keep what we believe is our ability to have our voices heard. In this instance we have said now for some time, if the majority wants to go forward on Miguel Estrada, we should have him come back before the Judiciary Committee, answer questions, and with him bring the memos from the Solicitor's office. They have been supplied on other occasions. It has been mentioned in the Record specifically how it was done.

I am not here, though, to debate the qualifications of Miguel Estrada. I am here to talk about my becoming a vocal critic of the American Bar Association rating process for judicial nominees. I have to say, frankly, I have never been a big fan of the American Bar Association. I know they do some good things. I have lost significant respect for the operation of rating judges. I do this not in any way to denigrate Miguel Estrada. My statement I make today is in no way to denigrate Miguel Estrada.

I have said before, Miguel Estrada graduated from Harvard. He could have graduated at the bottom of his class at Harvard and he still would be one of the more credible, more qualified people to go to law school. It is hard to get into Harvard. But he did not graduate at the bottom. He was one of 71 editors they had at the Law Review, and he was one of their better students. This is in no way to denigrate the academic qualifications of Miguel Estrada. It is to talk about and to criticize the American Bar Association.

What the Estrada case has done is lifted the veil on how the ratings of the American Bar Association are made, revealing partisanship that has no place in a process that should be as impartial as the judges it helps to select. My criticism goes beyond the specific Estrada case. It demonstrates that we cannot rely on the American Bar Association to give us impartial ratings.

This may surprise some, but I will say I support the Republicans' stand on what should be done with the American Bar Association as it relates to judges. I think we can and should take them out of the process. I don't think we need them. I am a convert to that.

Some asked why didn't I say I felt that way when Republicans did it initially. I didn't have enough knowledge to do that. I recognize I was wrong.

So we have this funnel for all Presidential nominees, and when we were a country of a few million people, that funnel was able to put everybody through very quickly. But the bigger the country becomes and the more judges we authorize, the more Cabinet officers, the more subcabinet people we authorize, this funnel becomes clogged.

The ABA is only one additional way of clogging that as it relates to judges. I feel we should get rid of them.

The Estrada case most starkly reveals that the ABA process is fatally flawed, that its gold seal is, indeed, tarnished. The gold seal of impartiality has been replaced by a stealth seal of partiality. In my view, the ABA rating should not be relied on until the process is fixed.

Unfortunately, as I will discuss in a moment, the ABA is defending this flawed process and its inherently flawed recommendation for Mr. Estrada. It defends both in the face of a case that very clearly violates its own conflict of interest rules.

As many of my colleagues know, the ABA delegates that review of potential nominees to one individual ABA member of the ABA committee for each circuit. In effect, one person is given responsibility to recommend to the committee this person's qualifications. That individual interviews colleagues who know the nominee, evaluates each nominee, and reports to the ABA with a recommended rating for the nominee.

The ABA has three ratings: Not qualified, qualified, and well qualified. Mr. Estrada received a well-qualified rating. The ABA Committee member who recommended Mr. Estrada for that rating was Mr. Fred Fielding. Given the sensitive nature of these recommendations, ABA rules specifically prohibit ABA committee members like Mr. Fielding from engaging in partisan activities while working for the ABA. The rules note that:

[T]he integrity and credibility of its process and the

perception of these processes are of vital importance.

The ABA rules go on to implement this important principle by providing:

No member of the Committee shall participate in the work of

the Committee if such participation would give rise to the

appearance of impropriety or would otherwise be incompatible

with the purposes served and functions performed by the

Committee.

The rules then get even more specific:

As a condition of appointment, each member agrees while on

the Committee and for at least one year thereafter not to

seek or accept [a] federal judicial appointment and agrees

while on the Committee not to participate in or contribute to

any federal election campaign or engage in partisan political

activity. Partisan political activity means that a member,

while on the Committee, agrees not to host any fund-raiser or

publicly endorse a candidate for federal office. . . .

The rule concludes:

In view of the confidence reposed in the Committee and the

vital importance of the integrity and credibility of its

processes, these constraints are strictly enforced.

These rules were not enforced in the case of Mr. Estrada. Mr. Fielding violated them. While on the ABA Committee, Mr. Fielding played a high-level role in President Bush's transition team. He helped the President and the White House counsel clear the President's highest level executive branch appointments in 2000 and 2001. Certainly these are far more partisan roles than hosting a fund-raiser or endorsing candidates for Federal office.

While on the ABA Committee, Mr. Fielding accepted an appointment from President Bush to an international center that settles trade dispute, a job that pays $2,000 a day plus expenses; $2,000 a day, $14,000 a week, that's a lot of money.

While on the ABA Committee, Mr. Fielding helped co-found the partisan Committee for Justice to run ads against Senators who oppose Mr. Estrada. Mr. Fielding's partisan activities, in fact, span back decades. He served as deputy counsel to President Nixon. He served on the Reagan-Bush campaign in 1980, the Thursday night group. He served on the Lawyers for Reagan advisory group, the Bush-Reagan transition in 1980-1981. He served as the conflict of interest counsel, ironically enough.

He served in the Office of Counsel to the President, as deputy counsel to President Reagan. He served on the Bush-Quayle campaign in 1988; as campaign counsel to Senator Quayle; as Republican National Conventional legal advisor; as campaign counsel to Senator Quayle; and as deputy director of the Bush-Quayle transition team. He served on the Bush-Quayle campaign in 1992; as senior legal advisor and conflict of interest counsel to the Republican National Committee. He served as the legal advisor to the Dole-Kemp campaign in 1996. Just from these statements it would appear he should understand something about conflict of interest.

The ABA couldn't have picked a Republican with better partisan credentials than Mr. Fielding. And Mr. Fielding didn't just give Mr. Estrada a well-qualified rating, every rating Mr. Fielding has handled for President Bush to the D.C. Circuit has resulted in a ``well- qualified.'' All of those ratings, in my view, should be held suspect.

By contrast, Mr. Fielding did not give any of President Clinton's nominees to the D.C. Circuit--nominees who had similar qualifications as Mr. Estrada--a well-qualified rating.

What has the ABA had to say about all of this? On Thursday, February 26, 2003, the head of the ABA, Alfred P. Carlton, Jr. sent a letter to Senators Frist and Daschle. I was deeply disappointed by its content.

In that letter, the ABA declares that our criticism of Mr. Estrada's case is ``unfair'' The ABA goes on to say that we seek to:

Impugn the integrity of members of the Committee and of its

process during the current Senate debate. . . .

I was also a little disappointed that Mr. Carlton failed to tell me about this letter when he met privately with me a day after the letter had been sent. I didn't ask for that meeting. He asked for it.

In that meeting, I strongly encouraged the ABA to strengthen its rules and disavow the process that led to Mr. Estrada's recommendation and possibly scores more of tainted recommendations. Mr. Carlton told me he would consider such a step.

I also encouraged Mr. Carlton to write to Senators Frist and Daschle and tell them that the ABA would clean up its act. Mr. Carlton also told me he would consider sending such a letter.

He not only failed to mention that just the day before he had sent the leaders a letter, but also that the letter was a strongly worded defense of an indefensible process.

If the head of the ABA cannot be straight with me, what hope do we have for this process? The letter he sent the leaders reveals that we shouldn't have much hope.

The ABA says in the letter that we have been critical of Mr. Fielding's role based solely on the fact that he co-founded the Committee for Justice. The ABA letter implies that this fact is not problematic because the Committee for Justice was formed after Mr. Fielding made his glowing recommendation of Mr. Estrada. The letter fails to mention several things: First, that even this post-Estrada activity violates ABA's clear rules. Second, that Mr. Fielding was engaged in the Bush transition partisan activities at the time he was making his Estrada recommendation. The letter concludes that our attacks on this process are ``baseless'' . . .

If this is so, then the ABA's own rules are baseless. The ABA cannot claim that our criticism of the way Mr. Estrada's recommendations was handled is baseless when that recommendation violates the ABA's own rules. Is the ABA disavowing its own rules? Does it find them baseless?

Conflict of interest rules such as the ones that ABA has adopted are not just designed to prevent the actual exercise of a bias in a way that influences an outcome. These rules are also adopted to prevent the appearance of a conflict. Preventing the appearance of impropriety is important to assure the Senate and the American people that the process of evaluating our judges is as impartial as people expect judges to be.

Before we rely upon the judgment of the ABA in evaluating nominees for lifetime judicial appointments, the ABA should not just pledge to enforce existing rules but should strengthen those rules. They should revise them to provide that individuals so heavily steeped in partisan activities not be permitted to serve in these crucial roles at all. That is, the rules should be expanded to prevent partisans from passing judgment on judicial nominees. This shouldn't be limited merely to the time period during which the individual is serving on the ABA Committee.

It strains credulity to believe that someone who occupied partisan roles in the last several Republican administrations could be viewed as impartial in this case. If Mr. Fielding had started the committee for Justice after he left the committee would the specter of bias really be any less? Mr. Fielding moved seamlessly from passing judgment on Mr. Estrada to becoming a leading advocate for his nomination.

The fact that the advocacy followed the judgment doesn't render the judgment any less suspect. Much has also been made of the fact that the full ABA Committee endorsed Mr. Fielding's view of Mr. Estrada's qualifications. This doesn't cleanse the Fielding recommendation of its taint. Mr. Fielding is an important person, a powerful man.

Mr. President, the hour of 12:30 is nearly here. I guess he left--I saw my friend from Kansas here. I just have a couple of more minutes and it will run past 12:30. I ask unanimous consent I be allowed to finish my statement.

It is impossible for us to know one way or another whether members of the committee felt pressure to endorse Mr. Fielding's view. It is certainly possible. And that possiblity--like Mr. Fielding's clear conflict of interest--is the problem in this case.

There are thousands of lawyers in the United States, thousands who are not steeped in partisan politics--Democrat of Republican. That is every obvious because the poorest contributors to campaigns of any group in America are lawyers. So most of them are not involved at all in politics.

We rightly cast a skeptical eye on judicial nominees who are heavily involved in partisan activities. We do that because we want those who would define the breadth and depth of our constitutional protections to be impartial and without bias.

Regardless of what side of the aisle you are on--Democrats or Republican--we should be able to agree that those who occupy the most partisan roles of either party should not be part of the ABA process.

This does not, in the words of the ABA, impugn those partisans. It is to say that the fact of those partisan activities creates a clear appearance of improperity. It is that appearance that is impossible to avoid. It is that appearance--and the doubt that it creates in the underlying process--that is the heart of all conflict of interest rules.

This issue goes well beyond the nomination of Miguel Estrada. His nomination has simply brought to light a fatally flawed process that should not be relied upon in the case of any of our nominees.

As I have said before, I now agree with the majority that the ABA should be out of the process. I hope that the ABA will rethink the staunch defense it made of its flawed process and flawed recommendations. I hope that the head of the ABA will not continue to be disingenuous when he meets with Members privately. Perhaps then the ABA would merit the trusted role that it has long held by that, in my view, it no longer deserves.

Mr. President, I have no objection to the Senator, the chairman of the Judiciary Committee, using his 5 minutes any way he wants. I will reserve the 5 minutes for Senator Leahy and the majority leader.

Mr. President, this resolution, which resolves that the Senate strongly----

Mr. President, I support what I am confident the Senate's position will be, to strongly disapprove the decision of the panel of the Ninth Circuit in the Newdow case and the decision of the full court not to consider this case en banc.

The reason I wanted the floor for a few minutes this afternoon is there have been statements made today by the majority that the whole problem with the Pledge of Allegiance case has been caused by Democratic appointees. There could not be anything further from the truth.

The original Ninth Circuit panel opinion holding that the Pledge of Allegiance violated the first amendment was authored by a person who was appointed by a Republican President. Several Ninth Circuit judges, nominated by Republican Presidents, such as Judges Trott, Rymer, and Nelson, did not join in the dissent that criticized the original petition. Before the Ninth Circuit, they were holding a hearing to determine if they would rehear this. That would have been something that would support the position we are taking here on the Senate floor today.

Now, Mr. President, listen to this. The majority of the judges who we know voted to rehear the case en banc--and the only reason we are able to determine this is because of dissenting opinions filed, because the hearing was, in effect, off the record--were, in fact, Clinton appointees. Six out of nine dissenting judges were Clinton nominees.

So, Mr. President, simple arithmetic says there were 24 active sitting judges who were allowed to vote on this rehearing. If we had seven of the Republican nominees, there would have been a majority, and there would have been a rehearing. I repeat, if we had seven judges, who were appointed by Republicans, together with the six judges who were appointed by President Clinton, there would have been a rehearing.

So let's decide this matter, not on what we do not know but what the facts are. Six of the nine dissenting judges were Clinton nominees. These six judges, appointed by Clinton, either authored or joined dissenting opinions that advocated for a rehearing of the Newdow case by an en banc panel.

So, Mr. President, I disagree with what the Ninth Circuit did, but let's not blame it on judges appointed by Democratic Presidents. In fact, the reverse is true.

I announce that the Senator from North Carolina (Mr. Edwards), the Senator from Florida (Mr. Graham), the Senator from Massachusetts (Mr. Kerry), the Senator from

Louisiana (Ms. Landrieu) are necessarily absent.

I further announce that, if present and voting, the Senator from North Carolina (Mr. Edwards), the Senator from Massachusetts (Mr. Kerry) would each vote ``Aye''.

I suggest the absence of a quorum.

Madam President, I would like to be added as a cosponsor of the resolution.

Madam President, I wonder if it would be helpful--unless I am reading this wrong--it would be helpful if either the majority or minority have the first 45 minutes of the morning business time; otherwise we have people waiting around trying to find out when to speak. We have no problem as to when we do it, either first or last, but if we can do that, that would be helpful.

I announce that the Senator from New Jersey (Mr. Corzine), the Senator from Connecticut (Mr. Dodd), the Senator from Illinois (Mr. Durbin), the Senator from Florida (Mr. Graham), the Senator from Louisiana (Ms. Landrieu), the Senator from Connecticut (Mr. Lieberman), and the Senator from Georgia (Mr. Miller) are necessarily absent.

I further announce that, if present and voting, the Senator from Connecticut (Mr. Dodd) and the Senator from Illinois (Mr. Durbin) would each vote ``aye.''