Floor Statements

Just so the two leaders know, does the Senator from Illinois know for how long he wishes to speak?

What we are working toward is having final passage on the bill this evening, if all things work out right.

Why doesn't the Senator proceed.

The Senator from Georgia also wishes to speak for 3 minutes?

Why don't we have the Senator from Georgia speak first for 3 minutes, and then the Senator from Illinois speak. If the managers want to speak then, they can do so. I so ask unanimous consent.

He's going to stop whenever you want him to.

Reserving the right to object.

Mr. President, I was talking to someone here. The Senator wants 3 minutes.

Mr. President, reserving the right to object.

Mr. President, will the Senator from Alaska yield for a question?

Would the Senator allow the Senator from California to proceed with her part of the evening's debate?

She is going to speak as I have indicated to the Senator.

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent to reiterate the request of the Senator from Alaska, absent the last paragraph, and Senator Boxer be recognized for up to 15 minutes.

Yes.

Madam President, I want to recognize the hard work of my Senate colleagues, especially Senator Stevens, for putting together a conference report for our consideration tonight.

Last year the Senate Appropriations Committee under the leadership of my distinguished colleague from West Virginia, Senator Byrd, reported all 13 appropriations bills. Those bills formed the basis of the omnibus bill we are considering tonight. Unfortunately, this bill makes unwise reductions in many of the most important areas of our Federal Government, including education and homeland security. This bill also includes a provision that would make reckless changes to our Nation's forest management policy. This rider--which would provide the long-term authorization to contract the management and unfettered harvesting of national forests to timber companies--was so controversial when it was proposed in the farm bill that Democrats removed the entire forestry title rather than take it.

Rather than write individual timber contracts, the Forest Service has engaged in pilots of this stewardship idea for the last few years. It is a process by which the normal limits on contracting are avoided and timber companies are given broad leeway to harvest;

Some 84 stewardship contract pilots have so far been approved; none are complete; none have been evaluated to see if they meet the claim that the timber industry ``stewards'' are managing the pilots well;

Despite the fact that pilots haven't been evaluated, this rider contains a broad authorization for stewardship contracting;

It allows the Forest Service to pay contractors with trees rather than appropriated money, hence increasing incentive for harvest of large trees and making the Forest Service more directly dependent on timber sales.

Currently the Forest Service supervises sales, marking trees for cut; under this proposal, oversight is gone. It would be up to the timber company to decide what to cut. The rider enables the Forest Service to allow timber companies to take over large swaths of public forests by affording giving them long term management authority as part of these contracts. This is an important issue that deserves the full debate and consideration of the Senate. I am disappointed that it was included in this must-pass spending measure.

I also want to discuss in detail some of the funding priorities in this bill. This funding bill provides $4.5 billion less in funding for homeland security and emergency responders than the appropriations bills passed by the Senate last year. Just last year, we passed a bill to create a new Department of Homeland Security. Republicans and Democrats came together to approve the largest reorganization of the Federal Government in decades. Without sufficient funding that new agency won't translate into improved safety on the ground, in our neighborhoods, cities and rural areas. This is an issue that is particularly important for my State of Nevada. We have one of the most important facilities and some of the most talented personnel for training emergency responders.

Just today, one of the managers of this program spoke to me about how many trainers they would be able to train this year with the $35,000,000 approved by the Senate. He told me that he could train 8,000 emergency responders this year. This facility at the Nevada Test Site is one of five counter-terrorism training facilities that formed a consortium several years ago. Together these five facilities could train nearly 35,000 first responders with the amount of money the Senate provided. Every $4,000 less we spend is one less first responder we train. These are the police and firefighters in communities throughout the country. These are the emergency responders who are already overworked by the increased threat level we are experiencing. These are the first responders who still are not sure how to change their patrols and activities in response to the elevated orange threat level. They need to know. They need to be trained.

Instead of the $35 million approved by the Senate, the final conference report agreed to provide $20 million for the training. While this is a large amount of funding, it will only meet a small portion of the need for training. I hope as the year continues that the administration will request additional funds to ensure that at least one member of every police, fire and emergency response unit in the country receives homeland security training.

I also want to comment on the funding this bill provides for education. Every person who wants to get an education in Nevada, and throughout the country, deserves to have the opportunity to get one. Whether we are talking about the 230,000 students in the Clark County Public Schools or the 11,000 students who attend Truckee Meadows Community College, every person who wants an education in Nevada, and throughout the country, deserves one.

During the last Congress, we worked together in a bipartisan fashion to pass a sweeping education reform bill. This bill showed the best of what the Congress can do when Republicans and Democrats work together. This omnibus bill does not live up to the promise of that crucial bill. Instead of ensuring that we leave no child behind, this bill leaves much to fund.

In summary, I again want to thank my colleagues for their tireless effort to complete this conference report for our consideration this evening. This bill does not do enough to ensure every American can live up to his or her potential. We have an obligation to provide our states with a clean, safe environment, a secure homeland, and the ability to educate every person. This bill could do more to accomplish these goals, and next year, I hope we will do that.

Madam President, will the majority leader yield for a question?

Can Members be assured that there will be no vote prior to 5:30 on the Monday we come back?

Madam President, I ask that the time of the ranking member be yielded back.

I announce that the Senator from Florida (Mr. Graham), the Senator from Massachusetts (Mr. Kerry), and the Senator from Vermont (Mr. Leahy) are necessarily absent.

I further announce that, if present and voting, the Senator from Massachusetts (Mr. Kerry) would vote ``no''.

Madam President, over the last several years, I have tried to correct a long-standing injustice impacting our Nation's veterans. Under a law that is now over 110 years old, most veterans who retire with 20 years of honorable service, and who also have a service-related disability, cannot collect both their retirement and their disability pay.

In 2001, I was joined by 82 cosponsors in introducing S. 170, the ``Retired Pay Restoration Act of 2001.'' Our bill sought to lift the restrictions to allow veterans the ``concurrent receipt'' of both retirement compensation and disability benefits. Although we were successful in getting the language approved in the National Defense Authorization Act of 2002, now codified at 10 U.S.C. 1414, the authorization was made contingent upon the passage of further appropriations. No funds were ever appropriated and concurrent receipt remained another unfulfilled promise to our veterans.

In 2002, I introduced S. 2051, the ``Retired Pay Restoration Act of 2002'' to repeal the contingency language and make concurrent receipt a reality. The Senate again overwhelmingly passed this measure. Unfortunately, the White House threatened a veto of the National Defense Authorization Act of 2003, and therefore, the Conference Committee conceded to a compromise proposal, see Section 636 of Conference Report 107-772. This compromise was a much scaled-back version of concurrent receipt. Senator Warner correctly referred to it as a ``beachhead'', but we all acknowledged there was much work remaining.

Under last year's compromise, only a small number of veterans-- estimated to be between 15 to 30 thousand--would stand to benefit. The compromise left the contingency language for full concurrent receipt in place, but created a new category of special compensation, now codified at 10 U.S.C. 1413(a). In this new category, retirees that had at least a 60 percent disability rating that was a direct result of armed conflict, hazardous service, performance of duty under conditions simulating war, or through an instrumentality of war, would be eligible to collect both retirement compensation and disability benefits. Thus, the current law excludes approximately 500,000 disabled veterans who have served their country honorably. To exclude these veterans assumes that they are less deserving of fair compensation because they did not incur their injury in combat. The law also creates an unnecessary bureaucracy for the VA and the Department of Defense, which currently do not make distinctions based on the specific cause of a service- connected disability.

Therefore, I rise today with Mr. McCain, to introduce the ``Retired Pay Restoration Act of 2003'', along with our colleagues Mr. Akaka, Mr. Allard, Mr. Allen, Mr. Baucus, Mr. Biden, Mr. Bingaman, Ms. Boxer, Mr. Breaux, Mr. Brownback, Mr. Campbell, Ms. Cantwell, Mrs. Clinton, Mr. Corzine, Mr. Daschle, Mr. Dayton, Mr. Dorgan, Mr. Durbin, Ms. Feinstein, Mr. Grassley, Mr. Hagel, Mr. Inouye, Mr. Johnson, Ms. Landrieu, Mr. Leahy, Mr. Levin, Mr. Lieberman, Ms. Lincoln, Mr. Miller, Mr. Nelson of Nebraska, Mr. Nelson of Florida, Mr. Roberts, Mr. Rockefeller, Mr. Sarbanes, Mr. Smith, and Ms. Snowe, to correct this inequity for veterans who have retired from our Armed Forces with a service-connected disability.

Our bill removes the contingency language for full concurrent receipt currently found at 10 U.S.C 1414(a) and (f), and repeals the Special Compensation programs codified at 10 U.S.C. 1413 and 1413(a). The effect would be to finally implement full concurrent receipt, thereby ending the 110 year inequity.

Passage and implementation of this bill is long overdue. I am sure many of my colleagues would be interested to learn that Congress imposed these restrictions on concurrent receipt just after the Civil War, when the standing army of the United States was extremely limited. At that time, only a small portion of our armed forces consisted of career soldiers.

Today, nearly one and a half million Americans dedicate their lives to the

defense of our Nation. The United States' military force is unmatched in terms of power, training and ability. Our Nation's status as the world's only superpower is largely due to the sacrifices our veterans made during the last century. Rather than honoring their commitment and bravery by fulfilling our obligations, the federal government has chosen instead to perpetuate a longstanding injustice. Quite simply, this is disgraceful, and we must correct it.

Once again our Nation is calling upon the members of the Armed Forces to defend democracy and freedom in Afghanistan, in the Persian Gulf and throughout the world. We must send a signal to the men and women currently in uniform that our government takes care of those that make sacrifices for our Nation. We must demonstrate to veterans that we are thankful for their dedicated service.

Military retirement pay and disability compensation are earned and awarded for entirely different purposes. Current law ignores the distinction between these two entitlements. Military retired pay is earned compensation for the extraordinary demands and sacrifices inherent in a military career. It is a reward promised for serving two decades or more under conditions that most Americans find intolerable. Veterans' disability compensation, on the other hand, is paid to recompense pain, suffering, and lost future earning power caused by a service-connected illness or injury. Few retirees can afford to live on their retired pay alone, and a severe disability only makes the problem worse by limiting or denying any post-service working life.

Career military retired veterans are the only group of Federal retirees who are required to waive their retirement pay in order to receive VA disability benefits. All other Federal employees receive both their civil service retirement and VA disability with no offset. Simply put, the law discriminates against career military men and women. It assumes, in effect, that disabled military retirees neither need nor deserve the full compensation they earned for their 20 or more years served in uniform.

This inequity is absurd. How do we explain it to the men and women who sacrificed their own safety to protect this great nation? How do we explain this inequity to those members currently risking their lives to defeat terror?

We are currently losing over one thousand World War II veterans each day. Every day we delay acting on this legislation means continuing to deny fundamental fairness to thousands of men and women. They will never have the ability to enjoy their two well-deserved entitlements.

This bill represents an honest attempt to correct an injustice that has existed for far too long. Allowing disabled veterans to receive military retired pay and veterans disability compensation concurrently will restore fairness to Federal retirement policy.

This legislation is supported by numerous veterans' service organizations, including the Military Coalition, the National Military/ Veterans Alliance, the American Legion, the Disabled American Veterans, the Veterans of Foreign Wars, the Fleet Reservists Association, the Military Officer's Association, the Paralyzed Veterans of America and the Uniformed Services Disabled Retirees.

Passing this bill will finally eliminate a grossly inequitable 19th century law and ensure fairness within the Federal retirement policy. Our veterans have heard enough excuses. Now it is time for them to hear our gratitude. I urge my colleagues to join me in supporting this legislation to finally end this disservice to our retired military men and women.

Our veterans have earned this and now is our chance to honor their service to our Nation.

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

Madam President, over the last several years, I have tried to correct a long-standing injustice impacting our Nation's veterans. Under a law that is now over 110 years old, most veterans who retire with 20 years of honorable service, and who also have a service-related disability, cannot collect both their retirement and their disability pay.

In 2001, I was joined by 82 cosponsors in introducing S. 170, the ``Retired Pay Restoration Act of 2001.'' Our bill sought to lift the restrictions to allow veterans the ``concurrent receipt'' of both retirement compensation and disability benefits. Although we were successful in getting the language approved in the National Defense Authorization Act of 2002, now codified at 10 U.S.C. 1414, the authorization was made contingent upon the passage of further appropriations. No funds were ever appropriated and concurrent receipt remained another unfulfilled promise to our veterans.

In 2002, I introduced S. 2051, the ``Retired Pay Restoration Act of 2002'' to repeal the contingency language and make concurrent receipt a reality. The Senate again overwhelmingly passed this measure. Unfortunately, the White House threatened a veto of the National Defense Authorization Act of 2003, and therefore, the Conference Committee conceded to a compromise proposal, see Section 636 of Conference Report 107-772. This compromise was a much scaled-back version of concurrent receipt. Senator Warner correctly referred to it as a ``beachhead'', but we all acknowledged there was much work remaining.

Under last year's compromise, only a small number of veterans-- estimated to be between 15 to 30 thousand--would stand to benefit. The compromise left the contingency language for full concurrent receipt in place, but created a new category of special compensation, now codified at 10 U.S.C. 1413(a). In this new category, retirees that had at least a 60 percent disability rating that was a direct result of armed conflict, hazardous service, performance of duty under conditions simulating war, or through an instrumentality of war, would be eligible to collect both retirement compensation and disability benefits. Thus, the current law excludes approximately 500,000 disabled veterans who have served their country honorably. To exclude these veterans assumes that they are less deserving of fair compensation because they did not incur their injury in combat. The law also creates an unnecessary bureaucracy for the VA and the Department of Defense, which currently do not make distinctions based on the specific cause of a service- connected disability.

Therefore, I rise today with Mr. McCain, to introduce the ``Retired Pay Restoration Act of 2003'', along with our colleagues Mr. Akaka, Mr. Allard, Mr. Allen, Mr. Baucus, Mr. Biden, Mr. Bingaman, Ms. Boxer, Mr. Breaux, Mr. Brownback, Mr. Campbell, Ms. Cantwell, Mrs. Clinton, Mr. Corzine, Mr. Daschle, Mr. Dayton, Mr. Dorgan, Mr. Durbin, Ms. Feinstein, Mr. Grassley, Mr. Hagel, Mr. Inouye, Mr. Johnson, Ms. Landrieu, Mr. Leahy, Mr. Levin, Mr. Lieberman, Ms. Lincoln, Mr. Miller, Mr. Nelson of Nebraska, Mr. Nelson of Florida, Mr. Roberts, Mr. Rockefeller, Mr. Sarbanes, Mr. Smith, and Ms. Snowe, to correct this inequity for veterans who have retired from our Armed Forces with a service-connected disability.

Our bill removes the contingency language for full concurrent receipt currently found at 10 U.S.C 1414(a) and (f), and repeals the Special Compensation programs codified at 10 U.S.C. 1413 and 1413(a). The effect would be to finally implement full concurrent receipt, thereby ending the 110 year inequity.

Passage and implementation of this bill is long overdue. I am sure many of my colleagues would be interested to learn that Congress imposed these restrictions on concurrent receipt just after the Civil War, when the standing army of the United States was extremely limited. At that time, only a small portion of our armed forces consisted of career soldiers.

Today, nearly one and a half million Americans dedicate their lives to the

defense of our Nation. The United States' military force is unmatched in terms of power, training and ability. Our Nation's status as the world's only superpower is largely due to the sacrifices our veterans made during the last century. Rather than honoring their commitment and bravery by fulfilling our obligations, the federal government has chosen instead to perpetuate a longstanding injustice. Quite simply, this is disgraceful, and we must correct it.

Once again our Nation is calling upon the members of the Armed Forces to defend democracy and freedom in Afghanistan, in the Persian Gulf and throughout the world. We must send a signal to the men and women currently in uniform that our government takes care of those that make sacrifices for our Nation. We must demonstrate to veterans that we are thankful for their dedicated service.

Military retirement pay and disability compensation are earned and awarded for entirely different purposes. Current law ignores the distinction between these two entitlements. Military retired pay is earned compensation for the extraordinary demands and sacrifices inherent in a military career. It is a reward promised for serving two decades or more under conditions that most Americans find intolerable. Veterans' disability compensation, on the other hand, is paid to recompense pain, suffering, and lost future earning power caused by a service-connected illness or injury. Few retirees can afford to live on their retired pay alone, and a severe disability only makes the problem worse by limiting or denying any post-service working life.

Career military retired veterans are the only group of Federal retirees who are required to waive their retirement pay in order to receive VA disability benefits. All other Federal employees receive both their civil service retirement and VA disability with no offset. Simply put, the law discriminates against career military men and women. It assumes, in effect, that disabled military retirees neither need nor deserve the full compensation they earned for their 20 or more years served in uniform.

This inequity is absurd. How do we explain it to the men and women who sacrificed their own safety to protect this great nation? How do we explain this inequity to those members currently risking their lives to defeat terror?

We are currently losing over one thousand World War II veterans each day. Every day we delay acting on this legislation means continuing to deny fundamental fairness to thousands of men and women. They will never have the ability to enjoy their two well-deserved entitlements.

This bill represents an honest attempt to correct an injustice that has existed for far too long. Allowing disabled veterans to receive military retired pay and veterans disability compensation concurrently will restore fairness to Federal retirement policy.

This legislation is supported by numerous veterans' service organizations, including the Military Coalition, the National Military/ Veterans Alliance, the American Legion, the Disabled American Veterans, the Veterans of Foreign Wars, the Fleet Reservists Association, the Military Officer's Association, the Paralyzed Veterans of America and the Uniformed Services Disabled Retirees.

Passing this bill will finally eliminate a grossly inequitable 19th century law and ensure fairness within the Federal retirement policy. Our veterans have heard enough excuses. Now it is time for them to hear our gratitude. I urge my colleagues to join me in supporting this legislation to finally end this disservice to our retired military men and women.

Our veterans have earned this and now is our chance to honor their service to our Nation.

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

While the majority leader is on the floor, Mr. President, we on this side are prepared to stay as long, of course, as the leader asks us to do so. But because we will have to have people here to make sure there are people on the floor to discuss whatever they feel they want to discuss during this nomination process, do you have an idea how late you might want us to stay tonight?

As I said last night, as Senator Hatch and I were closing the Senate, everything has been said, but not quite everyone has said it, on the nomination of Miguel Estrada. Both sides have talked about what they like and dislike about this nomination. Yesterday, of course, there were a lot of repetitive statements.

We will be here. I think it is quite clear that we won't be speaking much about Miguel Estrada as the day proceeds. We will want to talk about

Chairman Greenspan's statements and other issues we think are just as important to talk about. But during these nominations, when there is extended debate, we are allowed to do that. Whatever the leader wants us to do, we are here. Whether it is tonight, tomorrow night, Friday, Saturday, whatever it is, we will be at your disposal.

Mr. President, I compliment the leader. In the short time he has been leader, he has allowed full and adequate debate. He could have tried to stop debate on the omnibus bill, and the leader chose not to do that, and I think it worked to everyone's advantage. On this side of the aisle, we appreciate that very much.

I do say, though, speaking as one Senator, but having spent a little time on this floor, just about everything has been said about Miguel Estrada. There will be other people who wish to make statements. As I said, everything has been said but not everyone has said it. We will do everything we can to make sure everyone has said it. The majority leader is going to find there will be other issues spoken about here. We are not going to--there is no reason to mince around. We are not going to allow an up-or-down vote on Miguel Estrada. That is clear.

Our leader gave a speech yesterday to that effect. So the majority leader has to make a decision whether this nomination is going to be pulled, whether the memos will be supplied to us so we can review them, whether there is going to be more opportunity to ask questions, or whether there is going to be a vote on cloture. Those are the three choices the leader has.

Mr. President, I suggest the absence of a quorum.

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

Mr. President, a number on the other side, in the majority, have lamented the fact that to get this man, Miguel Estrada, approved to be a circuit judge, it is going to take 60 votes. They ask, why can't we just have an up-or-down vote? Both Senators from Utah have talked about that today. Senator Bennett indicated it would be a tremendous change if we required 60 votes for Mr. Estrada. There are cartoons around the country today in support of our position--cartoons that have indicated nominees are coming through here and no one is asking any questions that are answered, and that there should be some answers forthcoming. But the issue is that in fact Mr. Estrada hasn't answered many important questions. That is one of the big problems.

I found my colleagues' remarks very curious, lamenting the idea that it would take 60 votes to approve Mr. Estrada's nomination. They have lamented this, but I find this interesting because when President Clinton sat in the White House, his nominations were subject to anonymous holds by one or more Senators. Many were not provided hearings. Many were provided no votes. That is, rather than needing at least 41 votes to delay or block consideration of a nominee, Republicans allowed one Senator or a handful to block many of President Clinton's judicial nominees from getting hearings or votes.

Mr. President, I have a list of nominees, and I ask unanimous consent that it be printed in the Record.

They had mysterious holds and were not provided with votes of any kind and were simply not allowed to have their matters brought before the Senate. We would have liked the opportunity to even see if we could have stopped a filibuster, if that was what they wanted, but they simply would not bring them forward.

I will name a few circuit court nominees. Out of 31 submitted who were not confirmed in the first Congress they were nominated, 22 were blocked by the Republicans from ever being confirmed. Allen Snyder, DC Circuit, never given a vote by Republicans, certainly not confirmed; Elena Kagen, DC Circuit, never given a vote by the Republicans; Robert Cindrich, Third Circuit, never given a vote; Steven Orlofsky, Third Circuit, never given a vote; Robert Raymar, Third Circuit, never given a vote; James Beatty, Fourth Circuit, never given a vote by the Republicans; Andre Davis, Fourth Circuit, never given a vote; Elizabeth Gibson, Fourth Circuit, never given a vote by the Republicans; Roger Gregory, Fourth Circuit, never given a vote by the Republicans, but finally, Mr. President, because President Clinton, in a recess appointment, appointed him, as a sitting judge, he was eventually confirmed; J. Richard Leonard, Fourth Circuit, never given a vote by the Republicans; James Wynn, Fourth Circuit, never given a vote by the Republicans; H. Alston Johnson, Fifth Circuit, never given a vote by the Republicans; Enrique Moreno--a Latino nominee--never given a vote by the Republicans; Jorge Rangel, Fifth Circuit, never given a vote--he is also Hispanic--Eric Clay, Sixth Circuit, and nothing happened with him; Kent Markus, Sixth Circuit, never given a vote by the Republicans; Kathleen McCree Lewis, Sixth Circuit never given a vote; Helene White, Sixth Circuit, never given a vote; Bonnie Campbell, Eighth Circuit, never given a vote; James Duffy, never given a vote; Barry Goode, Ninth Circuit, never given a vote; and Christine Arguello and James Lyons, Tenth Circuit, never given a vote.

I just note that Helene White waited more than 1,500 days, never to be allowed a hearing or a vote. Richard Paez waited more than 1,500 days, but there is good news there: He was finally confirmed. I spoke to that good man on a number of occasions during his time in ``legal limbo,'' or wherever he was, never being given a vote. But, finally, he had a hearing and he was confirmed after more than 1,500 days, more than 4 years.

Mr. President, we submitted 48 district court nominees who were blocked in the first Congress they were nominated, and 37 were blocked from ever getting a vote or being confirmed. So for my friends to lament the fact that we are in the light of day, where we have told everybody here we are not going to allow Miguel Estrada to be confirmed unless he submits to proper questioning--I should not say proper questioning, how about proper answers--and unless we are allowed to review the Solicitor's memoranda that have been given to us on other occasions and unless he is forthcoming in answers to questions.

These are not anonymous holds. We are telling the world that we will not allow Miguel Estrada to become a DC Circuit Court judge unless he does that. If he doesn't do that, the majority leader has three options: Pull the nomination, go forward to invoke cloture, or have this on the floor forever, which is something--boy, they are really giving it to us tonight. They are going to make us work late.

That is what the leader said. We are going to work late. I said everything has been said about Miguel Estrada, just not everyone has said it. So we are going to have other people come and say the same things that have been said by approximately 20 Senators, and they will try to say it a little differently, but everything has been said.

If the majority leader wants to take the time of the Senate and go forward on this nomination, not trying to invoke cloture, then that is his prerogative. He runs the floor. But there is other business we need to do. I know the omnibus bill should be here tomorrow. There are other judges we could approve perhaps. We approved three on Monday including Judge James Otero of California. So there is other business that could be done, but if he wants to have us stay late and keep talking about this person--we on this side believe there is a problem, and we feel it is our constitutional prerogative and duty to ask questions and have them answered.

When we have someone who has a track record like this, where there is not much in the way of legal information other than some cases he handled, we should be able to review his legal memoranda he wrote when he was a member of the Solicitor General's Office.

There were 48 district court nominees who did not get through the Senate in the Congress first nominated; 37 were blocked from getting a vote or being confirmed:

Steven Achelpohl, district court, never given a vote by Republicans; Joseph Bataillon, district court, never given a vote by Republicans; Steven Bell, district court, never given a vote by Republicans; John Bingler, district court, never given a vote by Republicans; David Cercone, district court--once in a while there is some good news. David was not given a vote but eventually was confirmed.

Patricia Coan, district court, never given a vote by Republicans; Jeffrey Colman, district court, never given a vote by Republicans; Valerie Couch, district court, never given a vote by Republicans; Legrome Davis, district court, never given a vote by Republicans finally allowed a vote once Democrats became the majority; Rhonda Fields, district court, never given a vote by Republicans; S. David Fineman, district court, never given a vote by Republicans; Robert Freedberg, district court, never given a vote by Republicans; Dolly Gee, district court, never given a vote by Republicans; Melvin Hall, district court, never given a vote by Republicans; Marian Johnston, district court, never given a vote by Republicans; Richard Lazzara, district court, never given a vote by Republicans; J. Rich Leonard, district court, never given a vote by Republicans; Stephen Lieberman, district court, never given a vote by Republicans; James Klein, district court, never given a vote by Republicans; John Lim, district court, never given a vote by Republicans; Harry Litman, district court, never given a vote by Republicans; Frank McCarthy, district court, never given a vote by Republicans; Sue Myerscough, district court, never given a vote by Republicans; Lynette Norton, district court, never given a vote by Republicans; Virginia

Phillips, district court, never given a vote by Republicans; Linda Riegle, district court, never given a vote by Republicans. This is very familiar to me because she is a bankruptcy judge from Nevada, still serving on the bankruptcy court. I nominated her. It simply did not move forward. I had a couple judges who did move forward and was very happy about that. Senator Hatch allowed me to move those nominations.

Anabelle Rodriguez, district court, never given a vote by Republicans; Michael Schattman, district court, never given a vote by Republicans; Gary Sebelius, district court, never given a vote by Republicans; Kenneth Simon, district court, never given a vote by Republicans; Clarence Sundram, district court, never given a vote by Republicans; Cheryl Wattley, district court, never given a vote by Republicans; Wenona Whitfield, district court, never given a vote by Republicans; Ronnie White, this is a fine man. He was defeated in a surprise strict party-line vote, but his nomination at least was done in the light of day, and I appreciate that. That is better than all these anonymous holds and nothing never happens.

Frederick Woocher, district court, never given a vote by Republicans.

My friend, and he is my friend, Senator Bennett from Utah, a neighboring State--I have great admiration for him. He comes from a wonderful family. His father served in the Senate. He was very honorable. His wife is a friend. She is quite a musician. So I have only good thoughts about my friend, Senator Bennett, but I do say to the distinguished Senator from Utah that he should not come here and talk about what a terrible thing it is for us to require that Mr. Estrada answer these questions and submit the memos. This is something we are doing openly. We are not trying to hide what is happening in any way.

I want to say one thing, I wanted to say it to him before he left the floor this morning, that I have been very honored to serve in the Senate. It is something I never dreamed could happen. I am every day aware of what an honor it is to serve in the Senate, and to serve with other Senators is an honor for me. This is unique.

The two Senators from Vermont are in the Chamber. One just walked in. The senior Senator from Vermont has been in the Senate approximately 30 years, and I have watched a magician--I say that in the most positive sense--perform his duties. I have the honor of serving with a senior member on the Appropriations Committee and the ranking member of the Judiciary Committee. I have so much admiration and respect for the work he does. He has been so fair. When people were saying, Don't do this, the senior Senator from Vermont stepped above the political fray and did what was right on many judges.

I have come to the Chamber many times telling the Senator what a good job he has done, but I have not done it recently. I want the Senator to know the people of Vermont are so well served by his public service. The Senator from Vermont could go anyplace in America and make a fortune, literally, because of his legal skills and his experience in the Senate, but he has taken the more difficult path, and that is serving the Senate because of his love of public service.

The people of Vermont are well served, but so are the people of Nevada. The people of Nevada benefit every day from the service of the Senator from Vermont.

I am very grateful he is here helping us--not helping us, this is his committee. He is leading us on this most important matter to bring about some direction and responsiveness to the process which we are now going forward with.

I see the other Senator from Vermont who is such a fine man. I want him to know how much I respect his service to the country, especially the work he does on the Environment and Public Works Committee. The environment is better because of the junior Senator from Vermont.

Objection.

Madam President, if this were a matter of retribution, it would have started a long time ago.

Senator Daschle came to the floor after we took the majority in the Senate and said that as it related to judicial nominations this was not payback time; we were not going to treat the then-minority, the Republicans, as we were treated when we were in the minority. To show that we were true to our word, we approved 100 nominees during the short time we had the majority of the Senate.

I read into the Record earlier today the scores of judicial nominees who did not receive hearings, who waited and never got a vote on their nominations. They are out practicing law someplace. This is not retribution.

Madam President, once in a while I try to come up with something that has not been said on the Senate floor during the last several days. My friend from Arizona said: Everything has been said, but not everyone has said it. I have come up with something that has not been said, in response to what my friend from Utah and others have said about this ABA rating that Estrada has. The Republicans thought so much of the ABA rating that when they had the majority, they decided to do away with it. But now they have decided it is a good thing.

It is true, Estrada received a well-qualified rating from the American Bar Association. I think everyone acknowledges that the ABA should not completely supplant the Senate's role. Those on the other side have indicated the ABA rating of Mr. Estrada should be afforded great weight. I think it should be afforded some weight. Some have implied it should take the ABA's word for it when it comes to Estrada and simply limit our role in reviewing his record because he got a well-qualified rating from the ABA.

The American Bar Association rating is a useful tool for the Senate. But that is all it is, a tool. It is not a replacement for the Senate exercising its own independent judgment regarding a nominee's suitability for the second highest court in the land. There are good reasons for that. The best reason is the Constitution, Mr. President.

I am sorry, I referred to the Presiding Officer as a ``Mister.'' I have the greatest respect for the Senator from North Carolina, having one of the most distinguished records of any Senator who has come to the Senate, having served in so many different Cabinet positions that they are difficult to name; and, in addition, the highly visible role the Senator from North Carolina has held in different administrations. She has been head of one of the greatest organizations in the history of the world, the American Red Cross. I know who is presiding, and I was just reading from my notes and apologize for referring to the Senator as ``Mr. President.''

The best reason we do not agree with the majority is the Constitution. The Constitution assigns the role of evaluating a nominee to the Senate--not to the American Bar Association. In addition, if you look at the ABA process, it is far from perfect. The ABA delegates the review of potential nominees to one individual member of the ABA committee for each circuit. In effect, these nominations that the President gives us, no matter what party, go to one lawyer in the ABA, and that lawyer makes a recommendation. The ABA delegates that review to one individual who nominates each nominee and appoints to the ABA a recommended rating of that nominee's qualifications.

In this instance, a man by the name of Fred Fielding was in charge of evaluating potential nominees for the DC Circuit at the time Miguel Estrada was under consideration by the White House. In this role, Mr. Fielding was in charge of evaluating Mr. Estrada's qualification and was in charge of recommending a rating to the ABA. He recommended well- qualified. The ABA places heavy reliance upon the recommendation of people such as Mr. Fielding and approved Fielding's recommendation unanimously.

There have been some concerns about how this ABA process works and how it will work in this case. In this case, Mr. Fielding, at the same time he was evaluating DC Circuit Court nominees such as Miguel Estrada, continued to be heavily involved in partisan politics. He was counsel to the Republican National Committee for the Republican National Convention of 2000 and served on the Bush-Cheney transition team in 2000. At the same time he was serving on the ABA committee that evaluated DC nominees, Mr. Fielding cofounded, with C. Boyden Gray, something called the Committee for Justice.

We all know C. Boyden Gray has been a long-time, very partisan Republican. There is nothing wrong with that. But that is a fact of life. This organization was founded to help the White House with the public relations effort to pack the Federal bench with extreme judges. They also founded it to run ads to intimidate Democrats from exercising their constitutional duty to scrutinize the President's judicial nominees. Ads are now run to that effect, saying Senate Democrats are really bad. The ads are paid for by the Committee for Justice, which is this front that has been established by Fred Fielding and Boyden Gray. Their ads label Members of this Chamber as ``liberal extremists'' and ``anti-Hispanic'' even though the Hispanic Caucus has said Miguel Estrada should not be placed in the DC Circuit.

These ads run by this organization that is led by Fielding and Gray are unfortunate. It is a right that Fielding and Gray have to engage in these activities to mislead the American people. They have that right. But it does call into question whether someone so heavily steeped in partisan activities can objectively and impartially evaluate nominees' qualifications to the second highest court in the land.

This man, Fred Fielding, was the person who gave Estrada the recommendation while he was doing this. He was forming a committee he calls Committee for Justice, with Boyden Gray, another partisan Republican, and the purpose was to pack the bench with right-wing conservative judges. They also raised money so that if someone disagreed with them, they would run ads and intimidate them into agreeing with them. It does call into question whether someone so heavily steeped in partisan activities can objectively and impartially evaluate the qualifications of the nominees of the second highest court in the land.

The Senate is not privy to Mr. Estrada's ABA report, and we have no way to evaluate how Mr. Fielding arrived at his recommendation, but I think at the very least his partisan activities at the time he was charged with independently evaluating Mr. Estrada create the appearance of a conflict of interest and should embarrass the American Bar Association.

People expect the ABA reviews to be conducted by independent, nonpartisan individuals, not by partisans who are the President's foot soldiers in the effort to pack the Federal courts. The circumstances of Estrada's ABA evaluation are very serious--very serious. These circumstances underscore the need for the Senate to independently evaluate Mr. Estrada's record.

It would be somewhat shallow for people to say that this man, Fielding, who evaluated this judge to be, was fair and independent. I said the ABA should be embarrassed. What we are talking about here is Estrada. This has made an independent review impossible. I am not willing to delegate my constitutional duty to Mr. Fielding, the cofounder of a group designed to attack Members of this body who do not agree with him.

Earlier today, I had a chart here that outlined Mr. Estrada's assistance to this body so we could come up with answers to Judiciary Committee questions. Some people called in and said the chart was small and they could not read it. I want to make sure they can read this chart. It is titled ``Miguel Estrada's answers to the Judiciary Committee's questions.'' Here are his answers.

There weren't any. Those from the other side can come here and talk and show us visual aids about all the answers given to this committee that fill volumes when, in fact, as Senator Durbin so well described, his answers were evasive.

Mr. Estrada, give us the name of a Supreme Court Justice

that you would like to be.

I don't have an opinion.

Give us a case you disagree with.

I don't have an opinion.

These were his answers to the Judiciary Committee's questions.

I had some other charts here, and they said the writing was too small.

Here is one about Miguel Estrada's legal memoranda. Here is the information we have regarding Miguel Estrada's legal memoranda. The writing this morning was too small. But here is what it says:

Miguel Estrada's legal memoranda.

Here is what we have: Nothing.

My friend from Arizona said this would be chilling; why would we want to set a precedent like this?

It has been set in the past. We have had Chief Justice Rehnquist, for beginners. When he came before this body and we wanted to look at a memo, we got it. I don't have all the names here, but we know Civiletti and Roberts and others--it has happened on other occasions. This is no dangerous, misleading, scary precedent.

We have, by virtue of the Constitution of the United States, an obligation to make sure that we advise and consent to the nomination of the President. Article II, section 2, says that is our obligation, and that is what we are doing. We have an obligation that is in the depths of the Constitution to do just that.

If they, the majority, believe this man is as good as they say he is, let us share in the information, let us look at his legal memoranda, and let us also have him answer questions.

You would think we would want to know, as part of our constitutional duties, what a person's legal philosophy is. As the Senator from Illinois, Mr. Durbin, and I this morning indicated in an exchange, Mr. Durbin, the distinguished Senator from Illinois, the senior Senator from Illinois, he said to Miguel Estrada: Give us the name of a case in the Supreme Court that you disagreed with.

As Senator Durbin and I said: You know, we have been to law school. I will bet it is not too hard of a press to come up with a case about which you think the U.S. Supreme Court was wrong. How about Dred Scott? Maybe Dred Scott was wrong.

Not him. He wouldn't tell us. No.

I have no opinion on that.

Miguel Estrada's legal philosophy--that is it. And because that is it, this blank, we are going to make a decision? No.

The majority leader is the one here who has to make a decision. He can go on like we are today, tonight, tomorrow. In fact, I read in a publication here that one of the Republican leaders says:

If [Democrats] want to stay through the weekend, we'll stay

through the weekend.

Boy, is that a threat that just chills me. We may have to work here over the weekend? That would be terrible. Is that supposed to take away our constitutional duties, because they are going to make us work? I work whether I work here or go home.

The leader has to make a choice: Are they going to pull this nomination or do they think enough of this man to give us his legal memoranda and have him answer questions? Or he could do something that is done a lot around here: File cloture. See if he can stop the debate.

As I have said before, we are in harmony over here. We believe what we are doing is principled and right. No matter how many times the other side says there is no problem, all they have to do is see what is going on here. There is a problem. If they want to resolve that problem, all the cards are in their hands and they can decide how they want to handle it. Otherwise, if they want us to stay here, we will stay in quorum calls or we will talk.

I have suggested to some of the Senators here if we get past the morning hour when we have to be fairly germane to what is being talked about, I think it would be an excellent time, as the Senator from West Virginia did yesterday, I think we should have a little discussion about what is going on in the world. We are very close to going to war. That is what I am told. I think it would be very important to the people of Nevada to have a discussion about that. I think we are going to win the war, but are we going to win the peace in Iraq? That should be a subject. If they want to keep us here all weekend, we could talk about that at some length.

I am happy to yield for a question without losing the floor.

That is a decision they have to make. I am just reading from one of the publications. One of the Republican leaders said they are really going to get us on this. They are not filing cloture, but what they are going to do is talk all night tonight and all night tomorrow night, to get a vote on the Estrada nomination by the weekend.

Let me just say to everyone within the sound of my voice, that will not get them a vote on Estrada. We have told them what we believe is appropriate.

People may disagree with us. This is the Senate. We have certain rules. We are not dealing from under the deck. We are not holding any cards up our sleeves. We have said openly what we are doing. We are not going to allow a vote on this until we get the information we want. So it is up to them. If they want to threaten us, we could also--we could talk about the war, as the distinguished Senator from West Virginia did yesterday.

I think it is also important to think about this economic plan that has been suggested, the one the President has put forward that the Chairman of the Federal Reserve says is not a good plan. The chairman of the Ways and Means Committee in the House says it is not a good plan. We could talk and elaborate on how some of the Republicans feel about their own plan. That would take a little bit of time.

We could talk about the President's Medicare fix, which the Speaker of the House of Representatives said is a really bad idea.

We can talk about a lot of things. This is the Senate rules. We do not have to talk about Miguel Estrada. I said to everyone yesterday and I have said it today, everything has been said about Miguel Estrada, for and against him. But not everyone has said it. So we can be here, we can continue rehashing Miguel Estrada.

But the President said--I think I am quoting almost verbatim when he was told there is a filibuster--the game is over.

I don't know what that means. That is a term he used a lot. He said the game is over in Iraq. The game is over on Estrada. This is not a game; this is something we are doing based upon principle.

I think, for the good of the country, unless they are going to give us the information we want, this nomination should be pulled. Then we can get on to other things that I think are very pressing that we should get on to.

I want to make sure I was right. I want to make sure I said this right.

Senate Judiciary Committee Chairman Orrin Hatch . . .

scoffed the Democrats' demand for more information about

Estrada.

I said the President said: The game is over.

Senator Hatch said that. He is quoting what the President said on other things.

That game is over.

The game is over--this is not a game. This is not something that was arrived at in a short period of time. In fact, the Democratic leader waited a number of days before the decision was made, after he conferred literally with every Democratic Senator about how he felt about this. This is not an arbitrary decision made by the Democratic leader. This is a decision made by Senator Daschle after having conferred with every Democratic Senator, on more than one occasion in most instances. That is what the body over here desired to do, and that is what we are doing. We hope everyone understands this is not a game. We are very serious about what we are doing. We believe what we are doing is principled.

I suggest the absence of a quorum.

When this was prepared, it wasn't morning. I think the report is going to be filed in the next hour or two.

Mr. President, I object. I object to the statement. I object. I object.

Mr. President, I object. This is not a time for making statements.

Mr. President, I have the utmost respect for my friend from Virginia. He is making a statement, not asking questions.

Mr. President, I object to the form of the statement by my friend from Virginia. He has the right to ask a question. He has no right to make a statement.

Mr. President, I object.

Reserving the right to object, for the reasons outlined since last Wednesday by the minority, an objection is raised.

Objection.

Reserving the right to object.

Mr. President, as has been outlined in detail on many occasions here, if the nominee is willing to submit his----

Objection.

Mr. President, we have approved 103 judges----

Up to this point. I object.

Will my friend from Utah yield for a question?

Is the Senator from Utah aware that earlier this evening we voluntarily gave up the floor, as we knew that you and the majority leader wanted to come and make a statement?

I guess the question I am asking is: Who is filibustering this?

I was just wondering. This is taking quite a while.

Another question, if I could, Mr. President?

On what?

It is debatable after that. So what difference does it make?

Is the Senator aware that both Democrats and Republicans have sought cloture in response to debate or objections to judicial nominees since the cloture rule was extended in 1949? Is the Senator aware of that?

The question is, Are you aware that cloture votes on judicial nominees are well precedented in recent history?

Is the Senator----

Is the Senator aware that based on cloture votes, there have been----

Yes, I ask the Senator if he would yield for a further question?

Based on cloture votes, are you aware that there have been 17 filibusters on judicial nominees? Are you aware of that?

Will the Senator yield for a question?

The Senator is aware and has acknowledged that there have been a number of occasions where cloture had to be invoked on numerous judges, not the least of which were Richard Paez and Marsha Berzon in recent years?

Will the Senator yield?

Will the Senator yield for one final question?

I wish the Senator would explain to me what a filibuster is. What is a true filibuster?

But the Senator would acknowledge it took cloture to have that occur?

Will the Senator from Utah yield for a question?

Without the Senator losing his right to the floor, I attempted 20 minutes or so ago to add a little levity to this debate, indicating the distinguished Senator from Utah is aware I attempted to add a little levity by suggesting you had joined in the filibuster. That didn't go over. It wasn't very funny, as I learned very quickly.

It should be a little more humorous, obviously, than I was able to provide.

I ask the distinguished Senator from Utah, we are here. It is now 10:30 at night.

We have an agenda with people who are going to be covering the floor for us. But I ask the Senator, because we have other people on the floor: How much longer does he think he is going to want to take tonight on this matter, just so my colleagues over here know. Obviously the Senator knows. He knows a little more than I know because it seems to be thinning out a little bit here. Can the Senator inform the Senate--especially this Senator--as to how much longer we are going to go tonight?

Will the Senator yield for one final question?

I understand the importance of this nomination. I know the Senator believes I understand its importance. I am not in any way denigrating or trying to stop anyone from speaking tonight. I only would ask if the Senator would give us some general idea as to whether we are going to be here all night or another hour or two hours. Can the Senator give us any indication?

Mr. President, does the Senator from Oklahoma have the floor?

Mr. President, I know the audience has dwindled since this phase of this debate started at 9 o'clock. I apologize to the Presiding Officer and to the staff that has been here for 2 workdays already today. But it would certainly be unfair to the people who we represent on this side of the aisle for me not to say a few words to counteract and rebut the statements they have made for 3 hours.

First, I like President Bush. I certainly disagree with what my friend from Utah has said--that people over here dislike the President. I don't know if that is the case. President Bush is one of the most likable people I have ever met. I don't agree with a significant number of policies that he has enunciated, but that has nothing to do with disliking President Bush. This debate has everything to do with our constitutional prerogative under article II, section 2, of the Constitution that requires Senators to review the judicial nominations sent to us by the President of the United States. We have a right, we have an obligation to do that.

I will talk about a number of issues, but the first thing I want to talk about is the fact that cloture or filibusters on judicial nominations are well-established precedents; they have been long- established in this body and are appropriate in the context of Senate's Constitutional responsibility to advise and consent. There is no question that the use of filibusters has increased in recent years.

The Congressional Research Service reports that filibuster and cloture are used much more regularly today than at any time in the Senate's past. Approximately two-thirds of all identifiable Senate filibusters have occurred since 1970. Cloture was sought most frequently on nominations in the 103rd Congress; that is, in 1993-1994 when the House and the Senate were controlled by the Democrats, and the Republicans used the filibuster and cloture as the tool of the minority. In that Congress, cloture was sought on 12 nominations-- judicial and otherwise, and invoked in only 4.

Cloture votes on judicial nominees are well precedented in recent history. Both Democrats and Republicans have sought cloture in response to debate on judicial nominations since the cloture rule extended to nominations in 1949. Cloture was not sought on the nominations until 1968 because prior to that concerns over nominations were resolved, or the nominee was defeated behind closed doors.

Since that time, all Senators who have served in this body have recognized that things have changed a great deal since 1968. There were very few votes, period, in the Senate in those early days. Now we have hundreds of votes in every session. From 1968 to 2000, there were 17 cloture attempts on judicial nominees. Of the 17 cloture attempts on judicial nominations, in 6 of them the Democrats were in the majority and in 7 of them the Republicans were in the majority. Of the 17 cloture attempts, 2 involved nominees to the U.S. district courts, 8 involved nominees to the U.S. court of appeals, and 3 involved nominations to U.S. Supreme Court.

Opposition to judicial nominations have been based on objections to judicial philosophy of the nominee, concerns that the nominee would treat all parties fairly on procedural grounds, and, in this instance, I might add, for lack of having information on the nomination given us by the President.

There is ample precedent for filibustering judicial nominations. Based on cloture votes, there have been, as I have stated, 17 filibusters on judicial nominations. Often there is extended debate on the nomination.

For example, the nomination of Clement Haynesworth to the U.S. Supreme Court was defeated after lengthy debate--7 days of debate. The nomination of G. Harrold Carswell to the U.S. Supreme Court was defeated after 12 days of debate in 1970. The nomination of Robert Bork to the U.S. Supreme Court in 1987 was defeated after 8 days of debate.

So when the majority says that filibuster on judicial nominations is without precedent, ask them about the filibuster led by Senator Thurmond--recently retired--in 1968 on the nomination of Justice Abe Fortas to be Chief Justice of the United States. Ask the majority about the filibuster in 1994 on the nominations, as we have heard tonight, on Barkett and Sarokin. Ask them about the nomination of Berzon, and Paez to the Ninth Circuit, and the scores of other judicial nominations that were held up by using extreme delaying tactics when the Republicans were in charge.

I stated earlier that of the 79 Clinton judicial nominations not confirmed in the first Congress, there were 31 circuit and 48 district court nominees. Fifty-nine of these were never allowed a vote by the Republican-controlled Senate--59 out of the 31 circuit and 48 district court judges. Out of the 79 judges, 59 of them weren't even allowed a vote. The Republicans didn't have to worry about a filibuster. They simply didn't bring up President Clinton's nominees.

As I have indicated, being more specific, 31 circuit court nominees and 22 were blocked from getting the vote and being confirmed. And I read into the Record all the names of the district court judges who simply were blocked from getting a vote and were not confirmed. I also read into the Record circuit court nominees who were not given an opportunity to be voted on, and certainly were not confirmed.

Now, it was the Framers' intent that we do exactly what we are doing now. And there have been a number of writings on that. It is very important we understand that what is being done here does not happen very often, but it does happen, Mr. President.

I personally--other than this right here--have been involved in only one other filibuster involved in nuclear waste. I am told that I hold the record as a first-year Senator for the longest filibuster in the history of the country. So I know what a filibuster is. Most Senators have never been involved in a filibuster. We have one here.

Why? Because we are in an area where we really do believe that the person who is being asked--Miguel Estrada--to be confirmed as a member of the DC Circuit is a person from whom we are entitled to get some information.

As I said to the majority leader, personally, and I have said publicly, there are only a few things that can be done in the procedural posture of which the Senate is now engaged. These are not in order of priority: No. 1, pull the nomination. No. 2, the leader or anyone can get a petition signed for cloture and try to invoke cloture. Or it would seem to me the other thing that we could do is have this man, who said he does not care, prevail upon the President to say: Give them those memos I wrote while I worked at the Solicitor

General's Office. It has been done before, he should say. It has been done with Chief Justice Rehnquist. Senator Leahy has the stack of those memos provided in Rehnquist's case. He wanted to become Chief Justice, Judge Rehnquist did. We said: We want to see those records, those solicitor general memoranda. We got them. We reviewed those. It has been done in other cases. So there is certainly precedent for that. Similarly we should be privy to Mr. Estrada's memoranda; Mr. Estrada should answer our questions.

I know my friend, the distinguished Senator from Utah, has stated: I have a book here with all the answers to these questions.

Well, earlier today, I compared Miguel Estrada's answers to the questions to a series of answers my grandson gave to questions my son asked him. He just turned 3 years old. And I will repeat it.

We have a home in Nevada. It is new. It is in Searchlight, NV. We have some new furniture in our new home. And we had my grandchildren and some of my boys there. And my little grandson, Wyatt, wrote on one of the couches with a pen. So his dad was upset, and he began to interrogate his son, my grandson.

He said: Did you do this? And little Wyatt said: No. So my son, becoming more concentrated in his interrogation of this 3-year-old boy, said: Well, who did it, then? And my 3-year-old grandson said: I don't remember his name.

Well, that is like the answers we have gotten from Miguel Estrada. They are answers that I compare to my grandson's answers. Sure, he said something. My grandson gave an answer. And if you printed that out in a book, it would fill up a sentence or so. And Miguel Estrada has filled up a book answering questions by not answering.

When we were in the majority, we could have stopped a lot of judges. We have heard people over here asking their questions to the distinguished chairman of the committee: Is this retribution? Is this vengeance? Well, we said, when we took over control of the Senate, that, in fact, if we wanted to really be mean spirited and treat the Republicans like they treated us, we could have stonewalled the appointment of judges. We said we would not do that. And our record stands: 100 judges in a period of 17 months. And just this past Monday we voted unanimously for three additional judges.

And we will vote for a lot more.

We believe this man, Mr. Estrada, has some serious problems. We believe we have a few questions we want Miguel Estrada to answer. As I have stated, Miguel Estrada's answers to the Judiciary Committee's questions are just like on this chart: a big blank. We do not know any more, other than the tone of his voice in what he said, what he knows. With the answers he gave, we do not know anything more than when we started the Judiciary Committee hearing.

And if we want to talk a little bit about his legal philosophy, I think it is important because my friend, the distinguished chairman of the committee, said he wanted to know about--I cannot remember all the names, Marsha Berzon, Richard Paez, all the names he mentioned--he wanted to know if they were judicial activists, wanted to know their judicial philosophy. And he said, with a couple of them, they were judicial activists. He said he knew that, but he felt--for example, for Paez, Senator Hatch is absolutely right, he interceded with Richard Paez and was able to help get that nomination through. No question. Senator Hatch made a very valid, honest statement. But even then, he knew in his mind what the judicial philosophy of Richard Paez was.

We do not know what Miguel Estrada's legal philosophy is. We do not know. For example, a question by Senator Durbin, a Senator from Illinois, asked: Give us an idea of some Supreme Court opinions with which you disagree. He had no opinion.

And as we talked about earlier today, I wonder if some people who have not been to law school, maybe have taken a course in constitutional law in undergraduate school--and if you are a lawyer like he is--couldn't you dig up maybe the Dred Scott decision that said slavery was legal and constitutional? I don't think he agrees with that. Couldn't he have let us know?

Here is Miguel Estrada's legal philosophy: a big blank. To say he has represented clients as a private lawyer is no answer, provides little insight into his philosophy.

As I said earlier today, I have been to trial lots of times. I have tried cases before courts over 100 times, presented the client's case to a jury. And a jury had to arrive at a decision based on how I conducted that case. But after having reviewed every case that I tried, there would be no way of determining what my judicial philosophy is because every time I went to court, I was representing somebody charged with murder, or someone who was charged with robbery, or I was representing someone who was trying to get money as a result of a wrongful eviction from an apartment house, on and on with all the different cases that I tried. From that, no one would know what my judicial philosophy would be because I was representing individuals in cases.

So to say, Estrada has argued cases, why don't you look at the cases he argued? That has nothing to do with his judicial philosophy. We want answers to questions, as we got answers to questions from the 100 judges Democrats moved through this body when we were in the majority, and the three who were just approved, confirmed with us in the minority.

So we are entitled to know what Miguel Estrada's legal opinions are. You see, the reason we are making such a big deal about trying to get these memoranda from his work at the Solicitor General's Office is that it may give us some idea how he stands on legal issues.

He won't tell us, so maybe we can find out from reviewing some of the papers he has written while he was employed. That is why we are concerned. We are concerned because we honestly believe we have a constitutional obligation to review this man's records.

Let me just say there has been a lot of talk tonight. There are TV ads running as we speak. By the way, these TV ads are being paid for by an organization, the ``Committee for Justice'', that was founded by the man who gave Miguel Estrada the rating from the American Bar Association, Fred Fielding. Mr. Fielding is the one who started this group, and he is running ads against us. That is an interesting proposition. At the ABA, the person who reviewed and interviewed Miguel Estrada, gave his recommendation to the ABA--and they accepted what he told them--is a person who formed this committee that is running ads against us. They are running all over the country.

It seems to me the ABA has a slight problem. According to their manual:

No member of the Committee shall participate in the work of

the Committee if such participation will rise to the

appearance of impropriety or would otherwise be incompatible

with the purposes served and functions performed by the

Committee.

The ABA better review this procedure they have, make sure their reviewers comply with it.

What these ads Mr. Fielding is running are saying, among other things, is that we are anti-Hispanic. That's the rhetoric of my friends on the other side of the aisle.

We have been accused by one Senator of sending the message ``if you are a minority and a conservative, we hate you.'' The distinguished chairman of the committee said: ``Hispanics face a new obstacle from Democrats who would smear anyone who would be a positive role model for Hispanics.''

I am disturbed by the hyperbole, the rhetoric being used to propel the nomination of Miguel Estrada to one of the most powerful courts in the United States, the DC Circuit. I am at a loss to understand it as anything other than an attempt to silence Senators who today seek to exercise their constitutional duty to decide whether this judicial nominee merits support.

Let no one within the sound of this Senator's voice be mistaken: We are not going to be intimidated from fulfilling this constitutional role.

We know these statements about Democrats are false. The Hispanic community, the American people, and my colleagues know the truth: The Democratic party has put the vast majority of Hispanic appellate court judges on the bench. This is the first Hispanic circuit court nomination we have ever received from the President. This is the first one, Miguel Estrada.

As important as our record on Hispanic judges, the Democratic party is

the champion of issues of importance to the Hispanic community, from fair labor practices to immigration to protection of civil rights.

To recount our record: Of the 10 Latino appellate court judges who are now serving, 80 percent were appointed by Democrats. Several of these nominees were denied Senate consideration for years, while the Republicans controlled the Senate. Judge Paez, we have heard about that. Thirty-nine Republicans voted against his nomination. Judge Sonia Sotomayor, nominated to the Second Circuit, was similarly stalled. Her confirmation took 433 days. Twenty-nine Republicans voted against her confirmation.

And then there were the Hispanic nominees who were denied hearings or even votes by Senate Republicans during the Clinton administration: Jorge Rangel, Enrique Moreno, Christine Arguello, Ricardo Morado, Annabelle Rodriguez. These facts and these names bear witness to the false claims made by my colleagues on the other side of the aisle.

Despite these facts, Democrats don't believe that turnabout is fair play. Where President Bush has sent the Senate open and direct nominees, those nominees have won swift confirmation in the Democratic- controlled Senate. President Bush has nominated eight Hispanic Americans to the Federal district courts, four have been swiftly confirmed: Judge Christina Armijo, Judge Philip Martinez, Randy Crane, Jose Martinez.

This anti-Hispanic rhetoric is a red herring.

Mr. Estrada's background has nothing to do with my concerns. The red herring nature of this debate is belied by the fact that leading Latino groups don't support Estrada. They include the Congressional Hispanic Caucus; the Puerto Rican Defense and Education Fund; the Mexican American Legal Defense and Education Fund; the National Association of Latino Elected & Appointed Officials; the National Council of La Raza; National Puerto Rican Coalition; Puerto Rican Defense and Education Fund, California La Raza Lawyers.

These groups are joined by scores of others in opposition to Estrada, including the Leadership Conference on Civil Rights, the Alliance for Justice, the National Organization for Women, the National Association for the Advancement of Colored People, People for the American Way.

These groups are all dedicated to assuring equal opportunity in America, protection of minority rights, and advancement of the public interest. They, like many of my colleagues, are deeply concerned by Mr. Estrada's limited record and his unwillingness to engage with the Senate in an open and searching discussion of judicial philosophy and his record.

While we are talking about this, let me say there has been some talk that the Congressional Hispanic Caucus is split. There is some dissension among the ranks, some claim. The 20 members of the Hispanic Caucus are unanimously opposed to the nomination of Miguel Estrada.

A release was issued yesterday where Ciro D. Rodriguez, a Member of Congress from Texas, chairman of that caucus, said:

It is disheartening to see that Members of the Republican

Senate continue to make misleading and unfounded statements

regarding the Congressional Hispanic Caucus's opposition to

the Bush nominee Miguel Estrada. The [Congressional Hispanic

Caucus] will continue to stand by its unanimous opposition to

this unqualified nominee and will not waiver.

Senate Republicans continue to hit below the belt,

insulting Hispanic Members of this Congress who have been

elected to serve as a voice for the people in their

community. Today Senate Judiciary Chairman Orrin Hatch

continues to make misleading, partisan swipes. He incorrectly

claims that the [Congressional Hispanic Caucus] is split in

its opposition, and he mischaracterizes our arguments.

Yesterday, the [Congressional Hispanic Caucus] released a

letter to Senator Hatch demanding an apology for comments he

made during Senatorial debate, likening Members of the

[Congressional Hispanic Caucus] ``to the lioness eating her

cubs.''

They go on to say:

We have yet to receive an apology or even an

acknowledgement from the Senator that his comments were out

of line and insulting.

The [caucus] has supported numerous highly qualified

Hispanic appointees by the Bush administration. We oppose Mr.

Estrada based on our review of his inadequate qualifications

for what is viewed as the second most powerful court in the

Nation.

There has been a lot of talk about LULAC being so widely in favor of Miguel Estrada. Mario G. Obledo, who is a recipient of the Presidential Medal of Freedom Award, past national President of LULAC, cofounder of the Southwest Voter Registration and Education Project, first general counsel and past president of MALDEF, cofounder of the Hispanic National Bar Association, founder of the National Coalition of Hispanic Organizations, opposes the confirmation of Miguel Estrada.

He says, among other things:

I write to join other Latino civil rights organizations in

opposing the confirmation of Miguel Estrada to the D.C.

Circuit Court of Appeals. My history in the Latino civil

rights community is lengthy. I am a past National President

of LULAC, a co-founder of the Southwest Voter Registration

and Education Project, the first General Counsel and later

President of MALDEF, as well as a co-founder of the Hispanic

National Bar Association. I am a recipient of the President

Medal of Freedom Award, this nation's highest civilian honor

in recognition of my involvement with civil rights. I have

been an attorney for 43 years, and a former member of the

faculty of Harvard Law School. I was formerly the Secretary

of Health and Welfare for the State of California. I am the

founder and President of the National Coalition of Hispanic

Organizations. I mention some of my past and current work in

the Latino community so that there is an understanding of how

intertwined my life has been and still is with the betterment

of my community.

My opposition to Miguel Estrada's confirmation is based

upon the following. First, I believe that Mr. Estrada showed

himself unwilling to allow the Senate to fully evaluate his

record. He was less than candid in his responses. Yet, Mr.

Estrada, as every other nominee who is a candidate for a

lifelong appointment, must be prepared to fully answer basic

questions, particularly where, as here, there is no prior

judicial record and no legal scholarly work since law school

to scrutinize. He declined to give full answer to many of the

questions posed to him by the Senate Judiciary Committee.

When he did give answers, those answers raised troubling

doubts concerning his ability to be fair.

There are serious questions raised by his sparse record on

basic civil rights and constitutional matters. It is unclear

that Mr. Estrada would recognize that the First Amendment

protects the rights of Latino youth to congregate and

associate on public streets. It is also likely that Mr.

Estrada would not place proper limits on law enforcement as

required by the Fourth Amendment. Given his views of

enumerated rights, there are serious questions whether he

would recognize a suspect's right not to make incriminating

statements. His record leads me to conclude that he would not

take seriously and fairly Latino allegations of racial

profiling by law enforcement. Based on his actions in pro

bono litigation, there is a question whether he believes that

organizations which have long represented the interests of

communities would have the right to represent those interests

in court. In addition, his views concerning the continued

viability of affirmative action programs are also suspect.

Given these concerns, I oppose the confirmation of Mr.

Miguel Estrada.

Finally, I am dismayed and disturbed with the tone that has

been adopted by some of Mr. Estrada's most vocal supporters.

Instead of focusing on the merits, they have resorted to

name-calling and insults. If they cannot obtain sufficient

support for Mr. Estrada on the merits alone and can only gain

it by falsely accusing Senators of being anti-Hispanic or

accusing Latino organizations who oppose him of ``selling

out'' their people, then it does make one wonder whether Mr.

Estrada deserves the life-term appointment after all. There

are some brilliant lawyers who cannot serve as fair and

impartial jurists. I now conclude that Mr. Estrada may be a

very talented lawyer but he cannot serve as a fair and

impartial jurist. His nomination should be defeated.

Mr. President, we also have a letter dated today, from the League of the United Latin American Citizens, LULAC, addressed to Senators Daschle and Hatch. Among other things, this letter goes on to say that the LULAC organization supports Miguel Estrada. But the second paragraph says:

We are extremely disappointed that his nomination became

mired in controversy. That said, we are alarmed by

suggestions by some of the backers of Mr. Estrada that the

Senate Democrats and members of the Congressional Hispanic

Caucus are opposed to the nomination because of race,

ethnicity, and Hispanic bias. We do not subscribe to this

view at all, and we do not wish to be associated with such

accusations.

I ask unanimous consent that this letter be printed in the Record.

This letter goes on to say they have had a longstanding relationship with us, the Democrats; and basically it goes on to say that they support Latino nominees for courts. They want more.

Mr. President, we have heard statements here that we don't need these memoranda Mr. Estrada wrote when he was in the Solicitor General's office; other people have not had to give them, so why should he? Other people have turned these memos over is the short answer. Another answer is that Mr. Estrada--going to why it's so important here--is that he has virtually no other record for us to examine. The other side of the aisle, my colleagues, have called the request for these memos unprecedented. Senator Leahy produced a number of actual Solicitor General memos turned over in the past.

We have heard a lot about Mr. Paez and about Marsha Berzon. Let me take them as an example. This woman was asked to produce the minutes of meetings she attended when she was a member of the ACLU, American Civil Liberties Union. My colleagues went further and even required Ms. Berzon to supply the minutes of the meetings of the ACLU while she was a member even if she didn't attend the meetings.

We don't want to go nearly that far. We want to find out what is in the memoranda. It is not unprecedented. My friends have said these documents are privileged. Everybody in this body knows that the attorney-client privilege doesn't apply to the Senate. In the 15-page letter that the President's lawyer, Mr. Gonzalez, wrote back to the Senate today--actually to Senators Leahy and Daschle in response to our request to produce these memoranda--even Mr. Gonzalez recognizes that these are not privileged. Both the House and the Senate have explicitly rejected calls to incorporate that privilege into our rules. A judgment has already been made that to do so would impede our ability to do our work, and would impede it certainly with this nomination.

My friends on the other side of the aisle have implied that our requests are dangerous. I don't believe that. They have implied it would cripple the Solicitor General's office if these memoranda were released. The office functioned just fine after we got the information from Bork and Rehnquist. The Solicitor General's office survived just fine. We knew when we asked for that information before that it was on a very limited basis and it would only apply to them and not to everybody.

The administration claims that these documents--it reminds me of some other documents that this administration has tried to hide. I remember the Vice President and his National Energy Policy Development Group. We wanted to know if the Vice President met frequently with the oil companies in formulating the nation's energy policy. They went to court to stop that.

I would simply say here that what we are asking for is certainly fair and we should get it. It would be the right thing to do.

If the President and those on the other side of the aisle think so much of this man, it seems that is a very light step to take: to answer the questions and give reasonable, detailed answers, and not refuse to provide the memos that he wrote in the Solicitor General's office.

They say this is the first true filibuster. That certainly is not the case. There have been a number of filibusters--at least 17 on judges. Republicans have filibustered Democratic nominees. Republicans can call it what they want. Their attempts to invoke cloture walked, talked, and looked like filibusters--they were filibusters. They didn't have the votes to sustain any number of those instances.

There has been talk in the evening that the reason the judge from Texas, Judge Moreno, didn't get a vote is because there was no consultation; it had nothing to do with blue slips, simply with the fact that there was no consultation.

I ask unanimous consent that this letter be printed in the Record, dated April 28, 1997, from Charles Ruff, the attorney for President Clinton--like Gonzales is the attorney for President Bush now.

Mr. President, he says, among other things:

We are committed to achieving the fullest possible measure

of bipartisan consultation before the President makes his

selection of a nominee. . . .We met recently with Senators

Gramm and Hutchison to discuss their interest in having

commissions review the qualifications of candidates, and my

staff will be working with theirs to determine how best to

implement such a process.

So there was consultation.

This President does not abide by the advice and consent clause of the Constitution. Article II, section 2: We have a constitutional obligation to do just what we are doing. Republicans held up scores of Clinton nominations. These nominees were subjected to secret holds, given no hearings or even votes. On two separate occasions today, I have read into the Record the names of these people who simply were dumped without even a hearing.

My friends on the other side of the aisle did not make their objections known to the American people. We have in the light of day. They did not raise their objections in the light of day. They never engaged in debate like this because they hid behind secret holds.

Their assertion that holding up Miguel Estrada is anti-American, anti-Hispanic. I hope we have answered that assertion. This charge is simply without foundation. Democratic administrations have placed nearly all the judges who now serve at the appellate court level. The Democrat-controlled Senate expeditiously approved all of President Bush's Hispanic nominees to the Federal district courts.

We have done the very best we could to move forward on judicial nominations, and we have determined it was time to draw the line because we are entitled to more than a blank page.

Miguel Estrada's ABA rating means we should approve him. That is what we are being told. Of course, all should be reminded that the Republicans, when they were in the majority, got rid of the ABA rating. They did not want them to be part of the process. But now because Miguel Estrada got this ABA rating given by Fred Fielding, my colleagues have deemed the ABA the gold seal of approval.

Mr. Estrada did receive a well-qualified rating from the ABA, and he may deserve it, but it just does not look right. I am not here to in any way impugn the legal qualifications of a Harvard law graduate. I didn't graduate from Harvard. It is a fine law school. But let's not brag about this ABA rating, in the manner it was obtained.

While serving on the ABA review committee, Mr. Fielding founded the partisan ``Committee for Justice'' with C. Boyden Gray, another partisan Republican. There is nothing wrong being Republican partisan. It is part of our system. Some of my best friends are Republican partisans. But they should not be involved in giving people ratings at the ABA and then setting up committees and paying for ads--running partisan ads if somebody does not approve their nominee.

The committee is running untrue partisan ads against Democratic Senators in an attempt to keep us from performing our constitutional duty. When Fielding recommended Estrada's well-qualified rating, he was serving on President Bush's transition team and serving as a lawyer for the Republican National Committee. This does not seem quite right to me.

You have to ask yourself, when Americans hear that the ABA rates a nominee well qualified, do they think the President's foot soldiers in the effort to pack the bench play a major role in making that rating? I doubt it.

You have to ask yourself, doesn't Mr. Fielding's dual role-- purportedly ``independent'' evaluator and partisan foot soldier-- violate the ABA's rules?

``Governing Principles of the Standing Committee on Federal Judiciary, Appendix,'' adopted by the ABA Board of Governors February 1988. I ask unanimous consent that this appendix be printed in the Record. It states, among other things:

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.

Mr. President, Mr. Fielding's work in this so-called well- qualified rating does not meet the smell test. It certainly does not meet the test the ABA adopted.

We have also heard tonight, last night I should say at this point, that there is a vacancy crisis on the Federal bench. Yet when my colleague, Senator Hatch, served as chairman of the Judiciary Committee during the Clinton years, he declared that a vacancy rate of 67 judgeships on the Federal bench was ``full employment'' basically.

My colleagues have also asserted there is a crisis in the DC Circuit, noting there are four vacancies in the DC Circuit. I say to my colleagues, if they were concerned about such a crisis in the DC Circuit, why didn't they fill the vacancies? Do you know why? They said the court had too many judges; they did not need more judges. Even though we had well-qualified people, such as Elena Kagan and Allen Snyder, they said the court had enough judges to do the work they do.

They held them up so they could fill the court--hoping they would take the majority and the White House. They wanted their judges on this important court that rules on civil rights, workers' rights, environmental protections, women's rights, and a number of other issues.

Now suddenly the court that was jammed to the gills, which really did not need more judges, now needs them all.

We are going to help them fill vacancies because we believe the circuit needed the help when we were in the majority, when we had President Clinton as President. But one of those people we are not going to allow to go to the DC Circuit is Miguel Estrada unless we get the information we have requested.

Let me briefly state again that there has been some statement that the Solicitor General's memoranda are privileged. They are not. Senate rules do not incorporate the attorney-client privilege. Both the House and Senate have declined to adopt that privilege as part of their rules because we found it would impede our ability to do our work.

The wisdom of that is revealed in the debate of this nominee. He has written very little besides these memoranda, if anything. I understand he wrote one law review note in law school. My colleagues have opined providing these memoranda would decimate the Solicitor General's Office. As I established,

it did not with the nomination of Bork when we got the information, it did not with Rehnquist when we got the information, it did not with Easterbrook when we got the information, and Civiletti and others.

Mr. President, this is, as Senator Hatch would call it, a true filibuster. They do not happen very often. There have to be strong principles involved, and there are. As I said last night, my friend from Utah can state as many times and in as many different ways he wants that there is not a problem with this nominee, and all I can say is, there is a problem with this nominee.

We, on this side of the aisle, try to be very fair, as does the other side of the aisle. We have a wide-ranging political philosophy on our side of the aisle, and it is not really often--because Democrats are noted for their independence--that we unite in this manner.

We do so here because important principles are at stake, because our constitutional duty is at issue. We do so because a nominee to a life- time seat on the second highest court in the land should engage with us in a forthright manner as he asks for the honor to one day pass judgment on important freedoms enjoyed by the American people.

It is not very often we join together in a cause, but we have joined together in this cause because it is wrong for Miguel Estrada to go rushing on to the DC Court of Appeals with a blank slate, our not knowing what his judicial philosophy is, not knowing what his record is. We want to know what he wrote when he had the opportunity to write memos when he was Assistant Solicitor General, and we want him to answer questions. We are entitled to know that. These are not outlandish requests.

The legal memoranda are a blank sheet of paper. His legal philosophy is a blank sheet of paper. His answers to the Judiciary Committee's questions are a blank piece of paper. We deserve more than that. The Constitution demands more than that.

Let me again apologize to the Chair for taking a few minutes this morning, but I believed it would be a bit of laziness on my part to walk out tonight, after having heard 3 hours of debate by my friend from Utah giving one side of the story, because this has two sides. This debate has two sides. Of course, we believe strongly that on a matter of principle we are right. The Republicans believe they are right. That is what the Senate is all about.

We are doing nothing that is unusual or untoward. That is what the Senate is all about. That is why the Founding Fathers gave the Presiding Officer and me the opportunity to serve, to represent a State. There are two Senators from each State. The small State of New Hampshire, with two Senators, has as much opportunity, right, and power in this body as the two Senators from California with 35 million people in it. That is what the Senate is all about.

In the long term, this debate is going to be extremely important and helpful to the Senate because what it means is Presidents in the future, when they send nominees to go on courts, are going to have to answer a few questions. They cannot send blank slates to become judges.

I apologize to the Chair and to the very tired staff. They have worked long and hard. The Presiding Officer and I will be home asleep, and these folks will still be working to prepare the Record and take care of things.

So I apologize to everyone for keeping them late. I know how hard they work and how important each of them really is to the Senate and the institution. I hope we can wrap things up pretty quickly.

I yield the floor and suggest the absence of a quorum.

Madam President, while the majority leader is on the floor and also the President pro tempore is seated in the Chamber, the chairman of the Appropriations Committee--the same person--while one may disagree with some of the policy stands the chairman of the Appropriations Committee has taken, one has to admire the work he did last night. It was really remarkable that he had every chair and ranking member of the subcommittees there, including the chairs of the full committees and ranking members, and was able to work through that myriad of information. It is now down to where it is really close to something we can vote on this week.

While the chairman of the committee is here, I wanted to acknowledge in front of his leader the remarkable job he did last night. We look forward to some productive work this week. These are two most important matters. I am sure the Senator and our leader will have a conversation in the immediate future about the Estrada nomination.

Will the Senator yield for a question?

I ask the Senator from Illinois, who had a long and impressive record in the House of Representatives, is he aware of the stand that the Hispanic caucus has taken on Miguel Estrada?

Mr. President, will the Senator from New York yield for a question?

The Senator was on the floor this morning when there was a colloquy between this Senator and the senior Senator from Illinois. There was a question that arose as to the number of people in the Hispanic Caucus in the House. I have since checked that and determined there are 20 in the Hispanic Caucus in the House. The only Hispanic Members of the House of Representatives, I am told, who are not members of that Hispanic Caucus, are three in number. So it is 20 who are members of the Hispanic Caucus and 3 who are not.

Mr. President, will the Senator from New York yield for a question?

I want the Senator to know that I met with the chairman of the Hispanic Caucus and other members of the caucus, plus a number of people on a conference call a few days ago--in the last week or 10 days. Is the Senator aware that on that telephone call I was told that every member of the Hispanic Caucus--all 20 of them, every one of them--opposed the nomination of Miguel Estrada to be a member of the District of Columbia Court of Appeals?

Will the Senator yield for a question?

The Senator recalls, I am confident, that one of the nominees, one of the 20 who made it through, a man named Paez from California, waited 4 years before he was able to get confirmed by the Senate?

In fact, the Senator will recall he was a judge and had been for many years and had voluminous judicial opinions people could look at.

Will the Senator yield for one more question?

I am not sure the Senator is aware from Congressional News, this publication that quotes what we say in the press every day--the distinguished chairman of the Judiciary Committee appeared on MSNBC Hardball last evening. Among other things, are you aware he said, talking about the Democrats in the Senate:

What they are really worried about is Estrada is so

qualified and so good and he's Hispanic, that he's on the

fast track to the Supreme Court. They think they don't want a

Hispanic Republican, let alone a conservative, on the Supreme

Court of the United States of America, and that's what this

is all about.

What is the Senator's comment in that regard?

Mr. President, it is my understanding the Senator from Mississippi wishes to speak now. He told me earlier that he wishes to speak for 10 or 15 minutes. That would take us past 12:30. I ask unanimous consent that the distinguished Senator from Mississippi be recognized for up to 15 minutes, and following that the Senate recess for its normal Tuesday recess.

Mr. President, first, I have enjoyed the presentation of the Senator from Texas. But I would suggest that my experience here over for now more than two decades indicates that the problem isn't a matter of whether it is a Democrat or a Republican President. The process is broken down there. It is not up here. The advice and consent role which we have under the Constitution is something that should work and should continue to work.

I suggest here on the floor myself that we need to do something to speed up the process down there. When these people apply for judgeships, the work is unending. For people who want to have Cabinet or sub-Cabinet jobs, the process is unending, and we have to do something to get that speeded up. The problem is not up here.

The Senator from North Carolina wishes to speak for up to 10 minutes. Following that--I always want to refer to Senator Byrd as the leader, and he is a leader but he is now the President pro tempore emeritus--I ask unanimous consent that Senator Byrd, the distinguished Senator from West Virginia, be recognized following the remarks of Senator Edwards.

Mr. President, the Senator from Minnesota is here. I am holding the floor now because the Democratic leader has been waiting since 2:15 to come and speak. I am wondering how long the Senator from Minnesota wishes to speak?

Why don't you go ahead and speak for, what did you say, up to 10 minutes?

I ask unanimous consent that following the statement of the Senator from Minnesota, the Democratic leader be recognized.

Mr. President, earlier today there was a colloquy between the junior Senator from New York and this Senator, following remarks of the distinguished Chair of the Judiciary Committee, who said the Congressional Hispanic Caucus was divided on their feelings about the nominee now before this body.

I mentioned to the Senator from New York I had been privy to a conversation just a few days ago with the chairman of the Hispanic Caucus and other members of that caucus who said they unanimously oppose Miguel Estrada to be district judge for the District of Columbia.

I will now read into the record a statement of the Chair of the Hispanic Caucus, Congressman Ciro D. Rodriguez, dated today, which reads:

``It is disheartening to see that Members of the Republican

Senate continue to make misleading and unfound statements

regarding the Congressional Hispanic Caucus's opposition to

Bush judicial nominee Miguel Estrada,'' said Congressman Ciro

D. Rodriguez, chair of the Congressional Hispanic Caucus.

``The CHC will continue to stand by its unanimous opposition

to this unqualified nominee and will not waiver.''

``Senate Republicans continue to hit below the belt,

insulting Hispanic Members of this Congress who have been

elected to serve as a voice for the people in their

community,'' continued Congressman Rodriguez. ``Today, Senate

Judiciary Chairman Orrin Hatch continues to make misleading,

partisan swipes. He incorrectly claims that the CHC is split

in its opposition, and he mischaracterizes our arguments.

Yesterday, the CHC released a letter to Senator Hatch

demanding an apology for comments he made during Senatorial

debate, likening Members of the CHC `to the lioness eating

her cubs . . .' We have yet to receive an apology or even an

acknowledgment from the Senator that his comments were out of

line and insulting.''

``The CHC has supported numerous highly qualified Hispanic

appointees by the Bush Administration,'' noted Congressman

Rodriguez. ``We oppose Mr. Estrada, however, based on our

review of his inadequate qualifications for what is viewed as

the second most powerful court in the nation.''

I suggest the absence of a quorum.

I have no objection, but just so we have some idea, and I really don't care how long the Senator from Alabama speaks, but do you how long you might speak tonight?

Has the Senator yielded the floor?

Mr. HATCH. I will be happy to yield the floor to my

colleague.

Mr. President, my father-in-law, may he rest in peace, was a chiropractor, but he knew a lot about people's illnesses and how people handled sickness. One thing he always said--he died as a young man--one thing he always said was, when somebody says they are sick, you believe they are sick. We have all said ``they are not really sick.'' When someone says they are sick, they are sick.

This debate here reminds me of my father-in-law's statement. My friend, no matter how many times the distinguished chairman of the committee says there is not a problem with Estrada, there is a problem with Estrada. You can say there is not. You can have pictures of him. You can do all kinds of things, say all kinds of things that there is not a problem. There is a problem. In this country, the Constitution of the United States, article II, section 2, says that we as a Senate have a right to advise and consent on nominations the President gives us for a wide variety of offices, not the least of which is the judiciary.

That is something that has been done in this country for a long time and it will continue a long time after the Estrada matter has ended. For my friend, who has served with such distinction as the chairman of the Judiciary Committee and ranking member for many years, to say he thinks it is unconstitutional to do what we are doing leaves me without any logic. I don't understand how he could say that.

I repeat, there is a problem with Estrada. You may not agree with what we believe is a serious problem, a flawed nominee, but we believe there is a problem. This isn't something we have jumped into in a matter of 10 minutes, 20 minutes, 10 hours. This has taken a matter of days, to take a look at this nominee and to make a decision about what we were going to do.

The majority has various things they can do at their disposal. We believe there are questions he did not answer. All nine members of the Judiciary Committee who are Democrats agree this man is not, for many different reasons, a person who should go on the District Court of Appeals.

We have heard it before, and I am reminded of my friend, Mo Udall, a longtime Member of Congress from Arizona, who said:

Everything has been said, but not everyone has said it.

That is what has happened here. We have talked for days and days, and we will tomorrow, and if someone can come up with something that hasn't been said by either side--I doubt it. They will continue to say what has been said in the last few days. We have opposition of the Congressional Hispanic Caucus. We believe, as has been done with a number of other people who have been sent to the Senate by Presidents, we are entitled to the memos he wrote when he was a member of the Solicitor's Office.

I recognize that some say that is not a good idea. It has been done in the past. If the majority believes this man is as good as they say he is, why don't they give us those memos? Are they afraid he said something there that may weigh against his being a judge? I do not know. But I think they protest too much.

There is a problem with this nomination. We don't need a numbers game here. But this is a filibuster. There are ways you can get rid of a filibuster: Take down the nomination, and vote to invoke cloture. That is about what you can do. Or you can do what has been suggested by the ranking member of the Judiciary Committee and the Democratic leader in a letter sent to the President, which basically says let

us have another hearing, let us ask some questions of this man, and have him submit those memos. It wouldn't take very long. I assume he didn't write too many memos, but we could tell. I am sure they could be reviewed in a day. I am sure the hearing could take place in a day.

To say that this opposition is because he is Hispanic and he is a conservative simply is not based on the facts.

But I accept what my friend from Utah has said. That is what he believes. I know he believes that. I submit that it is not right. He has a right to believe that. As I have said before, people have made statements over here about why they oppose Miguel Estrada. That doesn't mean that my friend from Utah has to agree. But that is how people over here feel.

We have a problem with this nomination. We are now in the throes of a filibuster. The majority leader has said he thinks the debate tomorrow should go for a long time. If that is what he wants, that is fine. I spend all of my legislative life here in the Chamber. I can spend a night or two here. It doesn't really matter that much. We have a lot to do. I know we have other things the leader wants to do. I know we have a very important appropriations bill that should be coming forward in the form of a conference report very soon. We have to do that.

The other reason we may be going through this process is that the leader doesn't want to bring any of that stuff forward. Maybe this is an excuse for doing nothing. But whatever the majority leader wants to do, I understand the procedures here in the Senate, and we are here because he determines what we do on this floor. But one of the things we have a right to do is take a look, because of the Constitution of the United States, at nominations that are given us. That is what we are doing.

As I started my brief little talk here tonight, you may not think there is a problem. But take the word of my father-in-law. May he rest in peace. There is a problem. I would suggest there are well over 40 Democrats who believe there is a problem. It seems to me that is the case; there is a problem.

There are only a few ways to deal with it. You can stay here and talk day after day after day and run TV ads, as they are doing right now, saying that we are anti-Hispanic. It is not going to change the belief of people over here that Miguel Estrada should answer questions and that he should provide his memos.

If they do not want to do that, they can continue running their ads and having to stay here late at night--stay here all night, and have us stay here during our vacation. When I say ``vacation,'' as everyone knows, they are not vacations; we go back to the States and work. But we are here. We have signed onto this. We as a matter of principle oppose this nomination. People may disagree with our principle. But that is in fact why we are here. We think there is a problem with this man being given this appointment. According to us, he has not answered questions, and he has not submitted his memos. And he is opposed by a lot of groups who should be supporting him and don't because they believe he is not a person who should go on the District Court of Appeals.

Mr. President, the Senator from West Virginia has had a cold the last week or so, so we have missed him in the Chamber. It is good to hear you have your voice back and are gaining your strength. It is good to sit and listen to you.

I have had a lot of good education. As I said once in a debate in the Senate Chamber--we were talking about the distinguished Senator from Maryland, who is a Rhodes scholar. It was a colloquy between the Senator from West Virginia and the Senator from Maryland. I interrupted, with the consent of the Chair, and said: I am not a Rhodes scholar; I am a Byrd scholar. And I really am. I appreciate the Senator's remarks. He always pushes to better things. Better parts of us come out when you lead us. I appreciate very much the Senator's statement.

I thank Senator Byrd very much.

If I could, while the majority leader is in the Chamber, first, on the vote on the judges, the ranking member of the committee, Senator Leahy, has said he is aware of the three judges and he would like a rollcall vote on each of the three and that you and Senator Daschle can work on the time of when at least the first will occur this evening.

Fine.

I also say to the distinguished Senator from Tennessee, the majority leader, last week there were a number of problems, as the leader is aware. There were memorial services--it was difficult to have people speak. Also, it was difficult to get some Democrats to speak because the distinguished chairman took a lot of time speaking. It was hard to work in other people.

With that in mind, and with the distinguished chairman of the committee in the Chamber, what I would like to do is arrange some times for people to speak today so we do not have people waiting around and so the chairman of the committee and ranking member know who is planning on coming. If it is appropriate, I will give those times to both the leader and to the chairman. The ranking member, Senator Leahy, is here and he is available all of the day, of course, if necessary.

But from 1 to 2, Senator Feinstein would like to be able to speak; from 2 to 2:45, Senator Kennedy would like to speak; from 3 to 4 o'clock, Senator Schumer would like to speak; and Senator Levin would like to speak after that until the vote. And then Senator Feingold would like to speak at 5:30. They may not use all this time.

That sounds like a good idea.

I also say to the distinguished majority leader and the distinguished Chair of the committee that one of the things we are concerned about--and we know there has been very little time used on the debate so far, as the Senator knows, and as Senator Daschle stated publicly, the Democrats have not decided whether there is going to be a filibuster. That is something the majority leader and Senator Daschle can speak about later today. But I ask for the cooperation of the majority; that, in effect--and I don't mean this to be a derogatory term--no games be played. If somebody steps off the floor in the next few hours, I hope the question would not be called on this nomination until we get into a more--I want to use the right word. Until we get into a more competitive phase of this debate, I hope there would not be anything like that done.

Could I have the assurance of the chairman of the committee that in fact would be the case?

One last thing I would like to say is we are having, as the majority leader knows, a conference committee meeting of the Appropriations Committee at 6:30 this evening. There are still a number of open issues. We will hear from Senator Stevens and others. But this thing has moved along significantly over the weekend.

Senator Dole.