Floor Statements

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

Mr. President, in order to understand the constitutional problem we face with the filibuster of Miguel Estrada, it is important for the Senate and the public to focus on what is really going on here.

This filibuster is not a dispute about Mr. Estrada's answers to questions. If it were about unanswered questions then more than two Democrats would have taken up the White House's offer to pose new written questions to Mr. Estrada or to meet with him privately and ask them in person. But they did not, and it is now clear that the repeated refusal even to ask questions has exposed the emptiness of that argument. I hope we hear no more of it.

This filibuster also is not a dispute about confidential documents from the Solicitor General's office. Our filibustering colleagues must know that for the administration to comply with this demand is to undermine the effectiveness of the Department of Justice and its ability to defend the American people's interests in court. They must know that the President will not jeopardize the people's interests and that these confidential documents cannot be disclosed. So this document request is an unserious demand made precisely because the administration will not comply--just as four former Democrat Solicitors General have advised. No, this dispute is not about confidential memos.

The fact is that there is plenty of information available--more than enough information for a thoughtful Senator to make a decision whether to vote up or down. But don't take my word for it. Take Minority Leader Daschle's word for it. Last week the distinguished minority leader said that Mr. Estrada is too conservative and that he opposes his confirmation. How could the minority leader possibly have reached that conclusion if the record is so bare? How could he have reached any conclusion? The answer is obvious: Mr. Estrada's record is more than ample for Senators to explore. Just as over 51 Senators have reviewed the record to their satisfaction and concluded that Mr. Estrada is qualified and should be confirmed, so must Senator Daschle have reviewed the record and concluded that he should not be confirmed. He did not need more information.

So, why are we still here? Why is does this debate continue? Let us put aside these arguments about supposedly unanswered questions and disclosure of confidential memoranda, and let's focus on what this is really about: power. An unprecedented power-play by a partisan minority to re-define our constitutional ``advice and consent'' obligation at least for circuit court judicial nominees. This filibuster is about changing the rules of the game forever.

For 214 years, the Senate has interpreted ``advice and consent'' to require majority approval for any judicial nominee who reaches the Senate floor. But if filibustering Democrats prevail here, that rule will forever be changed. No longer will the ``advice and consent'' clause mean majority rule. Instead, it will mean 60 votes.

Now, my filibustering colleagues may say, ``well, no--we're not trying to change the standard; we just want more information.'' The time for dodging the essence of this constitutional moment has passed. There can no longer be any question that the true goal of this filibuster is to defeat Mr. Estrada's nomination by preventing a vote, to change the standard from a simple majority to a 60-vote requirement.

A month ago the Senior Senator from Pennsylvania called this power- play a ``constitutional revolution,'' and it saddens me to say that I must agree. A key part of our Constitution is its ordering of power between the different branches and parts of Government. Our Constitution is written, but we rely upon more than just the written word to understand its meaning. We rely upon the considered opinions of those who are charged with its interpretation. In most cases, that is the Supreme Court and the inferior courts that Congress establishes. But the Supreme Court is not the only body charged with interpreting the Constitution, because some areas of the Constitution are not subject to conventional judicial review. One of those areas is the ``advice and consent'' obligation of Congress. To understand that clause, the Senate must do the interpreting. The Senate has long had the constitutional obligation to decide what those words mean.

Throughout our history the Senate has had one consistent answer to the question of what ``advice and consent'' meant for lower court judicial nominees. That settled, bipartisan constitutional understanding of ``advice and consent'' was that only a majority vote is required. Now, a determined minority is determined to change the meaning of those words. And that is indeed a ``constitutional revolution,'' just as Senator Specter has said.

Let's turn to the Constitution. I know some of my Republican colleagues have argued that the Constitution mandates ``advice and consent'' by a simple majority vote. They may be right. As has been said, the Constitution contains seven provisions calling for a supermajority from the legislature: overriding a veto, convicting on impeachment, expelling members of the House or Senate, ratifying treaties, proposing constitutional amendments, establishing Presidential incapacity, and during the Civil War era, removing the disabilities of rebellious officeholders. But the Constitution is silent as to ``advice and consent.'' The U.S. Supreme Court has observed that a simple majority is the background rule in legislatures. It is therefore understandable that many have concluded that ``advice and consent'' mandates a simple majority for confirmation. Certainly as a democratically-elected body we should always have a strong presumption in favor of rule by simple majority. Only when an alternative supermajority rule is clear should we depart from that democratic tradition.

I also appreciate the argument that a filibuster in this context is different than a filibuster on legislation because the appointment and confirmation of judges is a shared responsibility we have with the President. Respect and comity demand that we give proper deference to presidential prerogatives. I certainly agree that filibustering a presidential judicial nominee endangers the traditional respect between the branches of Government, and that as Senators we have a responsibility to protect the relationship between the branches both for present and future Senators and Presidents.

So it might be the case that the constitutional text and structure mandate a simple majority, but I must say that I am not 100 percent convinced. It is possible that the Constitution's silence on this question was exactly that: silence. And it is possible that by remaining silent, the Founding Fathers intended to leave the question open for its own interpretation. I think we should allow for that possibility. But my skepticism does not change my conclusion, which is that we should apply a simple-majority requirement for confirmations.

Why do I reach this conclusion? Because the weight and precedent of the

Senate's longstanding constitutional interpretation of its own ``advice and consent'' obligation compels it. Thus, even if the question was open in 1789, we have 214 years of experience and tradition to tell us what the right interpretation was. And the right interpretation is that the same interpretation that bipartisan majorities of the Senate have forever believed--that only a simple majority is required to confirm a lower court nominee.

The most obvious evidence of this tradition is the history itself. No lower court nominee has ever been rejected due to a heightened, 60-vote requirement. To be sure, some Senators have contemplated this change before. Over 30 Democrats tried to filibuster J. Harvie Wilkinson in 1984, Sidney Fitzwater in 1986, and Edward Carnes in 1992. A much smaller group of my fellow Republicans tried to filibuster Marsha Berzon and Richard Paez in 2000. So the issue has been raised before, although never in such a dramatic and pointed fashion as it is today.

Let me address for a moment the unique case of Abe Fortas. In 1968, Justice Abe Fortas was nominated for the Chief Justice position. Opposition was roughly divided between the political parties, based significantly upon alleged improper financial dealings and other ethical issues that eventually drove him to resign under threat of impeachment. Unlike the case at hand, there is no record in that case of a Senate majority willing to confirm Mr. Fortas. The single cloture vote failed 45-43. So it cannot be said that the will of the majority was thwarted, because no majority appears to have existed to confirm that nomination. The President withdrew the nomination before we ever found out the answer to that question. So unlike in the present case, the majority was not thwarted by filibuster.

But returning to the more recent history, it is important to point out that in every one of those cases, however, cooler heads prevailed. The Senate stepped back from that precipice and said ``No, this we will not do. We will not filibuster judicial nominees.'' Senators such as the ranking member of the Judiciary Committee, Senator Leahy, were so opposed in principle to such a constitutional change that he declared that he would ``object and fight against any filibuster on a judge, whether it is somebody I opposed or supported.'' The Washington Post reports that in 1991 during the Clarence Thomas nomination battle, Senator Leahy declared himself ``totally opposed'' to a filibuster, even as abortion activists urged such a step. And in 2000 a clear majority of Republicans joined with Democrats and invoked cloture on the Berzon and Paez nominations.

This is our tradition. We do not block judicial nominees by filibuster. This isn't a Republican constitutional interpretation. It isn't a Democrat constitutional interpretation. It is the Senate's interpretation. And in the Senate, where so much is based upon tradition, sometimes tradition is all we have to enforce constitutional norms. We rely upon our colleagues to say, as Senator Leahy said, that they will fight on principle against the abuse of process regardless of whose particular ox is being gored. That is why I voted for cloture on the Paez nomination, and against confirmation. I refused to upset 214 years of settled constitutional interpretation and change our constitutional norms forever. I was unwilling to risk the damage to the Senate and to the nominations process that would result.

Let there be no mistake about it: If a minority of Senators are able to force a change to our 214-year-old constitutional tradition, we do great damage to this body and to the process by which judges are nominated and confirmed. And those changes will be permanent.

Now, I am a conservative, and I naturally resist unnecessary tinkering with our constitutional system. But I also understand that constitutional changes do happen, and that they are not always bad. I am an original sponsor of a constitutional amendment, S. 1, in this very Congress. But we have an amendment process for changes to the Constitution. We require 2/3 of each House of Congress, and then \3/4\ of the States. We have a process, and our constitutional stability depends on respecting that process.

This constitutional issue is unique, because the issue is probably not justiciable. I do know that a few professors have concluded that a judicial nominee in Mr. Estrada's shoes may have standing to challenge a filibuster, but the last thing we want is for a court to get involved. This is a Senate matter. And as a Senate matter, all we have is our wisdom and respect for a 214-year tradition to guide us. Can traditions change? Of course they can. We should be very wary of upsetting settled traditions because for the most part, traditions exist for a reason, but we should always be open to improvement.

However, if we are going to upset 214 years of constitutional interpretation and institutional tradition, shouldn't we require something more than the intransigence of 44 Senators who won't even admit that they are trying to change the constitutional rule? The Founding Fathers recognized that when we change constitutional rules, we should do so based on supermajority votes, not minorities' refusals to votes. As I said a moment ago, when we amend the Constitution, it takes two-thirds of both Houses of Congress. Then if it passes, it cannot be enacted until three-quarters of the States support it. That is not minority rule, but supermajority rule. I might add that even when the Supreme Court changes its constitutional interpretations through its decisions, they have to act by majority vote or new law is not created. Without a majority, there is no change to the constitutional rule.

What is happening here is dramatically different. Here, a minority-- not a simple majority, and certainly not a supermajority--seeks to change a settled constitutional rule and overturn 214 years of the Senate's constitutional interpretation. I submit that this fundamental change to our constitutional understanding of the ``advice and consent'' power must not be allowed to take effect. And it certainly should not be undertaken by a minority of Senators for short-term gain. To do so jeopardizes not only the Senate's relationship with the President, who has the constitutional obligation to make judicial nominations, and the Judiciary, which is understaffed and in desperate need for a fair process consistent with our longstanding constitutional norms. It jeopardizes the respect that future Senates will give to our traditional constitutional norms. And it calls into question whether the Senate can be trusted with its stewardship over those norms in the future. Will the Supreme Court ultimately become involved in Senate affairs? I certainly hope not, but I have less confidence today than I did a month ago that no court would involve itself in these matters. And that is a day I do not want to see.

So, as I said, this is not about needing more information. The distinguished minority leader made that clear last week. Senator Daschle has enough information. He opposes the nominee. This is about power--the power of the minority to change 214 years of constitutional norms and interpretation. I urge my filibustering colleagues on the other side of the aisle to step back, look at the history, and ask themselves whether they truly believe that it should take 60 votes to confirm a judge. And, equally important, whether they believe that a minority of Senators should be able to wash away the Senate's longstanding traditional understanding of its advice and consent obligations. I submit that our obligation to the Constitution and to the institution of the Senate demands more than what we are seeing today.

I would like to take 20 seconds.

I wanted to compliment the Senator from Kansas for his leadership on this issue, as well as the Senator from Pennsylvania for his leadership. While they have done the bulk of the discussion on this issue, they represent a lot of us who feel just as strongly about the issue. I want them to know how much those of us who haven't spoken appreciate their leadership in proposing this legislation.

Mr. President, I am proud to be a cosponsor of this much- needed and long-overdue measure. There is no place in a decent Nation for the barbaric practice known as partial-birth abortion. Senator Santorum's measure is the only one the Senate is considering that will put an end to it once and for all.

Every abortion ends the life of a tiny boy or girl, but only partial- birth abortion involves the destruction of life at the moment when a child is being brought out of the womb--and he or she is just inches from under the full protection of our laws. Partial-birth abortion blurs the line and does so in such a way as to further erode the sanctity of life.

The legislation Senator Santorum has proposed should avoid the constitutional problems that five Supreme Court Justices found in Nebraska's statute in the Stenberg v. Carhart case. Specifically, it addresses the concern that the partial-birth abortion procedure might be necessary to protect the health of the mother by incorporating as findings the view of the American Medical Association and the overwhelming majority of physicians that there is no circumstance where the health of the mother demands this procedure. It also contains a more specific definition of the partial-birth abortion procedure, in response to the Stenberg decision.

This revised definition ensures that, once we pass this bill, it will no longer be permissible in America to--and here I quote the language of the bill itself--``deliberately and intentionally vaginally deliver a living fetus until, the entire fetal head is outside the body of the mother and then kill the baby as happens in a typical partial-birth abortion.''

There is no doubt, in contrast, that the substitute measures that the Senate is considering will permit the continued use of this unconscionable procedure. To secure the approval of the radical, pro- abortion lobby, the authors of such measures inevitably draft their so- called ``bans'' in such a way as to permit ``health of the mother'' exceptions that effectively negate the restrictions. Again, the testimony of the mainstream medical community makes it clear that ``health of the mother'' is a red herring in the partial-birth abortion context, and I trust that any measure containing such an ``exception'' will be soundly defeated.

It is simply not possible to seek cover politically while substantively protecting the most unscrupulous abortionists. The American people overwhelmingly favor enactment of a real partial-birth abortion ban. Despite the predictable efforts to obscure what is really a very clear issue--how we wish to treat the most vulnerable members of our human family--they will soon have it.

Mr. President, I rise in strong support of this resolution of ratification for the Treaty Between the United States of America and the Russian Federation on Strategic Offensive Reductions, otherwise known as the Moscow Treaty.

This treaty is a masterstroke. It represents, and, I am sure, will be sent as ushering in a wholly new approach to arms control for a wholly new era. The simplicity of this treaty is a marvel. It is extremely brief, indeed just three pages long. It is shorn of the tortured benchmarks, sublimits, arcane definitions and monitoring provisions that weighed down past arms control treaties.

This is for a very good reason. The simplicity and brevity of this treaty reflect the simple fact that the US and Russia have moved beyond the enmity of the cold war era. The treaty recognizes this fact. It assumes a degree of trust between nations that are no longer on the precipice of war. Indeed, this treaty is the ultimate confirmation of the fact that arms control does not lead to real peace; rather, real peace--in this case made possible by a democratic transformation in russia--leads to arms control.

The old cold war approach to arms control treaties is clearly outmoded. Can anyone truly believe that a 700-page behemoth like the START I treaty is relevant to today's situation? Clearly, such an approach would not reflect today's radically changed political and strategic environment. As such, it would not serve America's real security needs.

This treaty does. The most important thing to remember about this treaty is that it was negotiated after the United States independently determined the number of strategic warheads that were needed for our security. The outcome of the negotiations with Russia simply ratified our own prior determination. This is in stark contrast to the old approach to arms control, whereby arms control agreements preceded and ultimately drove our military and strategic decisions.

The long lead time for achieving reductions and the lack of sublimits and interim benchmarks in the treaty also serve our interests by preserving much needed flexibility. Looking at the fluid, almost chaotic, situation in the world today, with new threats having arisen in just the past year or so--attacks on our homeland, nuclear weapons developments in North Korea and Iran--one can foresee that circumstances could easily change over the next decade. If circumstances and threats change, so too might our strategic nuclear requirements. Thus, it is only prudent that we not box ourselves in. The drafters of this treaty in the Bush administration were wisely cognizant of that fact.

Mr. President, this treaty--and the forward-looking, post-cold war mindset that serves as its basis--deserves our strongest support. I urge my colleagues to approve this resolution of ratification.

Mr. President, also, for the information of my colleagues, ``Open to All,'' the report of the Secretary of Education's Commission on Opportunity in Athletics can be found at http://ed.gov/pubs/ titleixat30/index.html.

Mr. President, on behalf of Senator McCain and myself I am introducing legislation today that would codify the largest water claims settlement in the history of Arizona. This bill represents the tremendous efforts of literally hundreds of people in Arizona and here in Washington over a period of five years. Looking ahead, this bill could ultimately be nearly as important to Arizona's future as was the authorization of the Central Arizona Project, CAP, itself.

Since Arizona began receiving CAP water from the Colorado River, litigation has divided water users over how the CAP water should be allocated and exactly how much Arizona was required to repay the federal government. This bill will, among other things, codify the settlement reached between the United States and the Central Arizona Water Conservation District over the state's repayment obligation for costs incurred by the United States in constructing the Central Arizona Project. It will also resolve, once and for all, the allocation of all remaining CAP water. This final allocation will provide the stability necessary for State water authorities to plan for Arizona's future water needs. In addition, approximately 200,000 acre-feet of CAP water will be made available to settle various Indian water claims in the State. The bill would also authorize the use of the Lower Colorado River Basin Development Fund, which is funded solely from revenues paid by Arizona entities, to construct irrigation works necessary for tribes with congressionally approved water settlements to use CAP water.

Title II of this bill settles the water rights claims of the Gila River Indian Community. It allocates nearly 100,000 acre-feet of CAP water to the Community, and provides funds to subsidize the costs of delivering CAP water and to construct the facilities necessary to allow the Community to fully utilize the water allocated to it in this settlement. Title III provides for long-needed amendments to the 1982 Southern Arizona Water Settlement Act for the Tohono O'odham Nation, which has never been fully implemented.

This bill will allow Arizona cities to plan for the future, knowing how much water they can count on. The Indian tribes will finally get ``wet'' water, as opposed to the paper rights to water they have now, and projects to use the water. In addition, mining companies, farmers, and irrigation delivery districts can continue to receive water without the fear that they will be stopped by Indian litigation.

While some minor issues remain, we have every confidence that these issues will be resolved as the legislation progresses. In addition, we hope that negotiations with the San Carlos Apache Tribe, the only party not yet included in the settlement, will move forward so that all claims can be resolved by this bill.

In summary, this bill is vital to the citizens of Arizona and will provide the certainty needed to move forward with water use decisions. Furthermore, the United States can avoid litigating water rights and damage claims and satisfy its trust responsibilities to the Tribes. The parties have worked many years to reach consensus rather than litigate, and I believe this bill represents the best opportunity to achieve a fair result for all the people of Arizona.

Mr. President, on behalf of Senator McCain and myself I am introducing legislation today that would codify the largest water claims settlement in the history of Arizona. This bill represents the tremendous efforts of literally hundreds of people in Arizona and here in Washington over a period of five years. Looking ahead, this bill could ultimately be nearly as important to Arizona's future as was the authorization of the Central Arizona Project, CAP, itself.

Since Arizona began receiving CAP water from the Colorado River, litigation has divided water users over how the CAP water should be allocated and exactly how much Arizona was required to repay the federal government. This bill will, among other things, codify the settlement reached between the United States and the Central Arizona Water Conservation District over the state's repayment obligation for costs incurred by the United States in constructing the Central Arizona Project. It will also resolve, once and for all, the allocation of all remaining CAP water. This final allocation will provide the stability necessary for State water authorities to plan for Arizona's future water needs. In addition, approximately 200,000 acre-feet of CAP water will be made available to settle various Indian water claims in the State. The bill would also authorize the use of the Lower Colorado River Basin Development Fund, which is funded solely from revenues paid by Arizona entities, to construct irrigation works necessary for tribes with congressionally approved water settlements to use CAP water.

Title II of this bill settles the water rights claims of the Gila River Indian Community. It allocates nearly 100,000 acre-feet of CAP water to the Community, and provides funds to subsidize the costs of delivering CAP water and to construct the facilities necessary to allow the Community to fully utilize the water allocated to it in this settlement. Title III provides for long-needed amendments to the 1982 Southern Arizona Water Settlement Act for the Tohono O'odham Nation, which has never been fully implemented.

This bill will allow Arizona cities to plan for the future, knowing how much water they can count on. The Indian tribes will finally get ``wet'' water, as opposed to the paper rights to water they have now, and projects to use the water. In addition, mining companies, farmers, and irrigation delivery districts can continue to receive water without the fear that they will be stopped by Indian litigation.

While some minor issues remain, we have every confidence that these issues will be resolved as the legislation progresses. In addition, we hope that negotiations with the San Carlos Apache Tribe, the only party not yet included in the settlement, will move forward so that all claims can be resolved by this bill.

In summary, this bill is vital to the citizens of Arizona and will provide the certainty needed to move forward with water use decisions. Furthermore, the United States can avoid litigating water rights and damage claims and satisfy its trust responsibilities to the Tribes. The parties have worked many years to reach consensus rather than litigate, and I believe this bill represents the best opportunity to achieve a fair result for all the people of Arizona.

Mr. President, I will speak about the nomination of Miguel Estrada to be a judge for the District of Columbia Circuit Court of Appeals.

That is, of course, the pending business before the Senate, and it is the business which we will complete before we can move on to other matters, such as the adoption of a budget, and the consideration of the President's economic growth and jobs creation package. But I do not think the President is going to back down on his nomination. Yet I heard a member of the other side of the aisle yesterday, on television, say as far as he was concerned, that nomination would never come up for a vote; that is to say, at least until he ``answered'' the questions of the Members of the other side.

I would like to set the record straight. Through an entire day of hearings, and some 30 questions that were asked of him, Miguel Estrada answered the questions posed. There has been an opportunity to follow up with written questions. If Members have not availed themselves of that opportunity, then that is their problem, not his.

Miguel Estrada has answered all of the questions put before him. He is one of the most competent, qualified, brilliant lawyers the President could have nominated for this position. And really nobody disputes that. So the business about not answering questions is really a smokescreen. It is a smokescreen for opposition to his candidacy based upon the fact that President Bush nominated him and President Bush is a conservative President.

President Bush, I suspect, is more representative of the mainstream of the thinking in this country than certain people on the fringe of either the Democratic party or the Republican party. So I do not think one can simply say because President Bush has nominated somebody that they are extremist or rightwing or that they are ideologves. In fact, the people who have opposed Judge Estrada's nomination have confirmed as much by saying they simply do not know enough about him. So I am a little tired of those who say, on the one hand, we do not know enough about him but, on the other hand, he is some kind of an ideologve. The fact is, he isn't. They do not have anything to suggest he is. It seems to me in the great American idiom, it is time to put up or shut up.

Now, we are not going to shut the Democratic side up. If they want to keep talking about Miguel Estrada, they can talk, as far as we are concerned, as long as they want to. But they should be addressing his nomination instead of speaking about other things or simply not being here on the Senate floor debating his confirmation. His confirmation is the pending business. If Members have a concern about him, they ought to bring it forth. If they have some evidence that he has done something in his background that isn't right, then they ought to bring it forth. If they have an objection to one of his opinions, then they should bring that forth. None of this has happened or will happen because, in fact, there is nothing there. That is why they are regulated to saying: Well, we just don't know enough about him.

It is time for those who oppose Miguel Estrada to be honest about their opposition, to come forth and talk to the American people about it, and find out what the American people think about their opposition to Miguel Estrada.

I put together just a few quotations of people around the country who have commented on his nomination. I would like to just read a few of them.

We are all aware of the fact the American Bar Association--whose opinion used to be the ``Gold Standard'' for Democrat Members in the Senate on judicial nominations--rated Miguel Estrada well qualified unanimously. That is their highest rating. And they take into consideration everything, from judicial temperament, to educational background, to experience. Obviously, if someone were way outside the mainstream or too political, the

American Bar Association would not have unanimously indicated their approval of the candidate.

This is from Ruben Navarette, who wrote in the Dallas Morning News-- by the way, a very competent journalist who used to write for the Arizona Republic, one of my hometown newspapers:

Miguel Estrada deserves a hearing, and Mr. Bush deserves to

have his nominees considered in a timely manner. The only

thing preventing that in the case of Mr. Estrada is Democrat

fear of the political damage they could sustain from such a

nomination.

So spoken by Ruben Navarette.

Ron Klain is a former counsel to Vice President Gore. He said this just about a year ago:

I have no doubt that on the bench, Miguel will faithfully

apply the precedents of his court, and the Supreme Court,

without regard to his personal views or his political

perspectives. His belief in the rule of law, in a limited

judiciary, and in the separation of powers is too strong for

him to act otherwise.

That goes directly to this business that somehow or other Miguel Estrada--though he has not written anything or said anything that would lead to this conclusion--could not be trusted to apply the rule of law as he understands it from the U.S. Supreme Court.

Here is a former counsel to Vice President Gore saying he knows Miguel Estrada is beyond that, that Miguel Estrada is a person who understands his role as a judge, his belief in the rule of law, and a limited judiciary, and the separation of powers and, therefore, that he would act in accordance with what we understand to be the correct role of a judge in these circumstances.

There was a statement I thought particularly interesting from former Solicitors General. Remember that Miguel Estrada was an Assistant Solicitor General. This is the office in the Department of Justice that actually represents the Government before the U.S. Supreme Court.

Miguel Estrada has argued 15 cases before the U.S. Supreme Court. In a letter signed by colleagues from the Office of the Solicitor General under Presidents Clinton and George H. W. Bush, dated September 19, 2002, I quote:

Miguel is a brilliant lawyer, with an extraordinary

capacity for articulate and incisive legal analysis and a

commanding knowledge of an appreciation for the law.

Moreover, he is a person whose conduct is characterized by

the utmost integrity and scrupulous fairness, as befits a

nominee to the federal bench. In addition, Miguel has a deep

and abiding love for his adopted country and the principles

for which it stands, and in particular for the rule of law.

Again, Democrats and Republicans alike affirm the fact that Miguel Estrada is above partisan politics and appreciates his role as a judge, applying the law of the precedents of the courts and of the Supreme Court.

Seth Waxman was former Solicitor General during the Clinton administration, a well-respected lawyer. This is what he wrote:

During the time Mr. Estrada and I worked together, he was a

model of professionalism and competence. In no way did I ever

discern that the recommendations Mr. Estrada made or the

analyses he propounded were colored in any way by his

personal views--or indeed that they reflected any

consideration other than the long-term interests of the

United States.

It is astounding to me that our friends on the other side of the aisle, despite the recommendations of high level Clinton administration lawyers affirming the professionalism and honesty and credentials of Miguel Estrada, would still contend that they don't have enough information about him. I suggest to my colleagues that they consult some of their friends in the former Clinton administration, former Solicitors General, and ask them about Miguel Estrada. If they are saying they don't know enough about him, there are some very highly qualified people to whom they could speak. I doubt there is anybody they could speak to who knows Miguel Estrada well that wouldn't confirm his qualifications to be on the court.

Instead they are relegated to dark, suspicious comments such as, ``Well, maybe he believes things that we don't know about because he just hasn't answered our questions thoroughly enough.'' I suggest they talk to those who have worked with him on a day-in and day-out basis. They will find that he is not only highly qualified but very fair.

Just perhaps one or two other comments. Then I will yield to my friends.

Rick Davolina, LULAC national president, said:

We are confident that Mr. Estrada will fulfill the duties

of the United States Circuit Judge for the District of

Columbia Circuit with fairness, intelligence, and commitment

to the ideals of the United States.

I had a call from one of the local LULAC officials over the weekend who confirmed LULAC's position and support of his nomination.

Elizabeth Lisboa-Farrow, chair of the U.S. Hispanic Chamber of Commerce, said:

From his humble beginnings as an immigrant from Honduras

who achieved a stellar academic career . . . to his varied

and impressive achievements in the Justice Department and

private firms, Mr. Estrada has shown himself to be one of

superior talents and accomplishments.

From the Hispanic community, from newspapers around the country, from former Clinton administration officials and others who know Miguel Estrada well, there is no doubt in their mind that he is not only qualified to serve but that he would do so applying the precedents of his court and the U.S. Supreme Court.

Therefore, I again ask my colleagues again on the other side of the aisle, if you have concerns about Miguel Estrada, bring them to the floor. Let's talk about them. Let's debate them. But at the end of the day, it is only fair to give Miguel Estrada a vote so that he can be confirmed as a judge on the DC Circuit Court of Appeals.

Mr. President, I was extremely disappointed to learn of yesterday's ruling by the Supreme Court of Belgium that Prime Minister Sharon of Israel could be tried in the Belgian courts for alleged war crimes once he leaves government service. The ruling also immediately makes retired IDF General Yaron and other eligible to be brought to trial at the convenience of the Belgian lower court.

This action appears to supercede the authority of other national court systems, the International Court of Justice in The Hague, as well as the International Criminal Court which, for better or worse, was established last year with authority to try war crimes. The ruling sets an unwelcome precedent: empowering non-Belgian nationals to bring claims against other non-Belgian nationals in a Belgian court for alleged crimes having no connection to Belgium. The Belgian Supreme Court has now ruled that its lower courts have the right to sit in judgment of people who come from another nation and have allegedly committed a crime in a foreign land against another set of people from yet another foreign land. This is bad law and bad policy.

With this ruling, Belgium has set itself and its legal system above all other nations. Belgium's status should be no different from that of any other sovereign state, entitling it to enact laws and judge its own citizens or anyone who commits crimes against them. But the Belgian legislature and its court has raised its country's justice system above those of every other nation, and is trying to impose its rule on the citizens of countries with no connection to Belgium. Even the Belgian prosecution noted its opposition to pursuing the complainants' petition.

I hope that the Secretaries of State and Defense take note of this action by one of our NATO allies, especially as we prepare to potentially send our young men and women into battle in a land far away. There is no reason why they too, and their commanders, could not be similarly charged and prosecuted. What the Belgian court did was wrong. Our government should call upon them to consult with our Ambassadors to Belgium and NATO and express to the Belgian government an appropriate level of concern.

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

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

I thank the Chair.

Madam President, I wish to expand on what the Senator from Utah was just talking about. To put this in context, I remind my colleagues we are talking about the nomination of a very distinguished lawyer, Miguel Estrada, by President Bush to serve on the DC Circuit Court of Appeals.

There have been two primary objections recently raised by Members of the other side of the aisle to this nomination. The first includes a recitation of a long list of nominees of previous Presidents--I presume primarily President Clinton--who allegedly were not considered by the Republicans. I do not have the information. It has not been given to me, so I cannot vouch for its authenticity. But if that is the basis for denying a vote to Mr. Estrada, then it is nothing more than retribution or spite.

I cannot believe that is the motivation of any of my colleagues on the other side. I refuse to believe that. So of what relevance is it that in previous Congresses some other President's nominee was or was not given a vote? What is the relevance to this individual, Miguel Estrada, who, by everyone's admission, is an extraordinarily well qualified lawyer? It has no relevance at all.

The other line of thought is that he has not answered questions, and that is what Senator Hatch was just talking about. He answered every question that was asked of him. He was in a hearing from 10:06 a.m. until 5:25 p.m. There were other candidates on the panel with him, but hardly any questions were asked of them. Almost all of the questions were asked of Miguel Estrada. He answered them all, until there were not any more to be asked.

Then there was the questionnaire. Senator Hatch noted the questions that have been asked by Senators in writing, in addition to the others. There was the questionnaire from the Judiciary Committee with 25 pages of answers. They are all right here. I will not suggest they be printed in the Record because I presume they already have. Every question was answered fully and satisfactorily, as far as I am concerned.

I think one of them is especially interesting. It used to be there was not a litmus test for judges. When President Reagan was nominating judges, some people on the other side thought President Reagan was asking these nominees their opinions on how they might rule on a case. They said that was a litmus test and that would be wrong. They were wrong. He never had such a litmus test. But the committee has had a question in its file ever since--and I think even before then--that has been asked of every single nominee, and this is one of the questions to which Miguel Estrada responded.

Let me read the question and his answer. The question is: Has anyone involved in the process of selecting you as a judicial nominee discussed with you any specific case, legal issue, or question in a manner that could reasonably be interpreted as asking you how you would rule on such case, issue, or question? If so, please explain fully.

Answer: No.

Mr. President, that is just about all he got in the hearing by the members of the other side of the aisle in the Judiciary Committee on how he would rule and what he felt about certain specific cases, legal issues, or questions. Specific cases were mentioned by name. Specific hypothetical questions were asked of him. Apparently, it is not OK for the President to find out how a candidate might feel about an issue, but Senators, by golly, we have the right and, in fact, it is so important to us, or to some of the body, that we are going to deny a nominee a vote even; we are going to deny the other Senators to have the opportunity to vote yes or no if we did not like the way he answered one of those questions.

Senator Hatch is right; it is not that he did not answer the questions. It is that some people did not like his answers to the questions. If so, vote no, but do not deny everyone else the opportunity to vote, and that is what is going on here. It is called a filibuster.

Our friends on the Democratic side have acknowledged that is exactly what they are engaged in: a filibuster of a judge. That is fundamentally wrong. It destroys the comity between the three branches of Government. It seeks to modify the majority vote confirmation process to an extra-majority requirement. It is going to poison the consideration of nominees of every President from here on, Democrat or Republican. This is one of those issues which, when once let out, you can never bring back; the horse will have been out of the barn.

Never in the history of the Senate has a partisan filibuster succeeded in preventing the confirmation of a judge. That is what is at stake here. Of course, also at stake is the confirmation of a very decent, very fine, very forthright, and highly qualified candidate for judge.

There was one other criticism I noticed early on, but I have not heard it recently, and that is he had no prior judicial experience. Senator Hatch pointed out the literally scores of Federal judges who became a judge when they were a lawyer. Not everybody can be born a judge, you see. First, you have to be a lawyer, and then somebody has to appoint you judge. So not everybody has experience as a judge when they are asked to be a judge.

Current members of the U.S. Supreme Court, in fact, five out of the nine members of the DC Circuit Court of Appeals, the court to which Mr. Estrada is being nominated, were not judges before they were nominated.

Mr. Estrada is a Hispanic lawyer. Are we going to create a new bar for minority lawyers? You have to be a judge before you can be elevated to the next level of the court? Not very many minority lawyers have been appointed or nominated as judges. President Bush is nominating a lot of them, that is true, but they are not judges now; they are lawyers. Are we going to create a bar that says if you are not already a judge, you cannot become a judge in the next level of the court?

I do not want to see us setting a glass ceiling for minorities just because not as many of them have gotten to be judges. I think that is a very pernicious argument made with respect to Miguel Estrada. Five of the nine members of the court were not judges before they were nominated to serve. Why does it matter with respect to Miguel Estrada? I did not hear arguments made from the other side with respect to those nominees, so why with regard to Miguel Estrada? It is not right.

I quoted yesterday, when the Senator from Vermont was on the floor, his own words, so I feel it appropriate to mention them again. He himself, the former chairman, now ranking member, of the Judiciary Committee said what many of the other leaders on the other side of the aisle have said: That filibustering a judge is wrong. And the Senator from Vermont said he would oppose--strongly oppose, I believe were his words--any filibuster of a judge regardless of whether he supported the nominee. You can always vote yes or no, but you should at least vote to invoke cloture.

Madam President, I will give you an example. Twice I voted to invoke cloture so we could come to a vote on two of President Clinton's nominees. I supported one; I opposed the other. That is our right. I have good reasons for opposing the judge I opposed, but I believed my colleagues needed or had the right to vote on both of the candidates, and so I voted for cloture in both cases. That is the same point the Senator from Vermont made earlier: That we should vote for cloture and have an up-or-down vote.

I will later bring to the floor the literally scores of statements by my colleagues on the other side of the aisle

over the years who have made the point over and over that filibustering a judge is wrong, that they would oppose it regardless of how they felt about the nominee, and that they would vote to invoke cloture.

What has changed with Miguel Estrada? Why is he different? Why all of a sudden has their strongly held opinion, which was expressed before, changed? It is not that my colleagues are not consistent. Obviously, they want to be consistent. So it must be something else. It must be that in this nominee they see something very bad. They must see a reason why we should not even be allowed to vote on the nominee. It is so bad with Miguel Estrada that they are not willing to put it to a vote. They have to prevent the vote from occurring.

What is it about Miguel Estrada that is so dangerous or so bad? If my colleagues say it is not about Miguel Estrada, it is the process, he would not answer the questions, Senator Hatch and I have already responded to that. He answered every question he was asked. Any more questions?

As Senator Hatch said, the problem is they do not necessarily like all the answers. That is their right. We do not all agree with each other. That is why we have votes and the majority wins.

I get back to the question, Why is it different with Miguel Estrada? There were 30 questions asked in the hearing that was held, and he answered them all. Maybe they did not like the answers. So vote no. But why would the other side deny the right of the Senators to cast a vote on the nominee?

At the end of the day, the American people are going to look at this and wonder what is going on, what is this all about. Why will a minority of the Senate not agree to let the others vote? Is it because the candidate is not well qualified? No. This candidate had the highest rating that the American Bar Association can give a candidate.

Is it that he does not have any experience? No. He is one of the most experienced lawyers in the country. In fact, he has argued at least 15 cases to the U.S. Supreme Court. I practiced law for 20 years and only went to the Supreme Court three times, which is pretty good. Most lawyers never get there. Fifteen times he has argued cases.

He answered every question that was asked of him. He has been strongly recommended by members of the bench and bar all over the country, Democrats and Republicans, including members of the former Democratic administration.

There has been a question raised about when he was an Assistant Solicitor General and was providing advice to his seniors, should his confidential memos be released to the public? For the first time, our colleagues on the other side say, oh, yes, we want to see all of that.

Now, I would kind of like to see the staff memos going to the Senators on the other side. Would that be fair? Would that be right? No, it really would not. Much as I would like to see what kind of advice they are getting, that would not be right.

What about someday when very highly qualified staff of some of our colleagues on the other side of the aisle are going to be nominated for the court? That happens actually fairly frequently. Staff of the Judiciary Committee have been nominated to various courts. In fact, one of them serves no less than on the U.S. Supreme Court. How about asking for the memos that he sent to his boss advising his boss on various issues prior to his confirmation? What would we get there? I think we would get pushed back by Members saying, wait a minute, I was asking for his personal advice. I was asking for his judgment. I was not asking him for what he necessarily believed personally, and what he told me cannot be taken as something he personally believed but rather what he thought was the best advice for me on this particular issue. That is why our employees are protected from having to disclose all of the information they give us as their best judgment on different issues, because we are not asking them necessarily what they believe in their head or their heart. We are asking them for what the law is on this, what their recommendation is as to what I should do on this, knowing my views, not theirs.

So to ask a young lawyer in the Solicitor General's Office to disclose all of the advice that he gave his bosses is nothing more than an unprecedented fishing expedition.

I ask my colleagues on the other side of the aisle, is this the precedent that they want to create? When they seek to have one of their staff members nominated to a high court, do they expect to see a request for all of the memos that this staff person gave to them because they just might be useful in opposing the nomination? Maybe he said something that we could pick apart somehow or another.

That is what is going on, and that is why four Democratic Solicitors General and three Republican Solicitors General, those who are living today, all wrote a letter unanimously saying this should not be done and all of them would have recommended against it.

I happened to work for one of the Solicitors General who is no longer alive. One of the things he told me over and over again was that this is an office considered by some to be the tenth Justice on the Court. The Solicitor General is literally almost a member of the Court in a sense because of the objectivity and forthrightness with which he or she represents the views of the Government before the Court.

The Court often solicits a brief from the Solicitor General saying, we have heard from both sides in this case but we would like to hear from the lawyer for the Government, the Solicitor General, who is supposed to be a very honest, forthright, and objective person. That is the office in which Miguel Estrada was working.

If we ever get to the point where the decisions made by the Solicitor General, based upon the advice from the lawyers that work for him, do not represent the best objective advice, do not represent the best truth and the proper reading of the law as they can bring forth but, rather, now must take into consideration political considerations that arise from the fact that these memos and this advice would be disclosed publicly, the Solicitor General is no longer going to be deemed the ``tenth Justice.''

The Government is no longer going to be solicited for its advice to the Court on these important matters because the consideration would be, well, what did they have to consider politically since the whole world is going to read these memos and is going to know what the advice was that was given. It does not work that way. It cannot. That is why it would be wrong.

Many of my colleagues on the other side know that it would be wrong. They know they are never going to get the memos. They know they should not get the memoranda. But because they can ask for it knowing that it is not going to come, they have an excuse to be able to say, gee, we do not have all the information we need.

I do not think that is the motivation of any of my colleagues on the other side of the aisle because I think they realize this is not something that historically has been requested and should be requested.

So when you parse out all of the different objections to Miguel Estrada, it all boils down to abstract process and, from some of the outside groups anyway, retribution. It has nothing to do with his qualifications. It seems to me that common decency and fairness would cause each one of the 100 of us to look deep within ourselves and say maybe we vote yes, maybe we vote no on his nomination, but we should not deny him a vote. That is partisanship and negativity and obstructionism that is not worthy of the Senate. So we should not do that.

We should agree to let this nominee be voted on, cast the vote we believe is appropriate, and then move on with the Nation's business. At a time when we may well be on the brink of engaging in military conflict, and the President has a great many issues on his agenda to deal with in that regard, I think it is unseemly for the Senate to be holding up, filibustering, one of his highly qualified nominees to the DC Circuit Court of Appeals.

As the Senator from Nevada said earlier today, everything has been said, it is just that everybody has not said it. Fine. Come on down and say it so we can get on with the vote, confirm Judge Miguel Estrada, and move on with the Nation's business.

Will the Senator yield for a question?

To the Senator from Utah, I have three questions regarding the Paez nomination which he just referred to. The first is if the Senator from Utah could tell us which party was in control of this body and by whom the cloture petition was filed.

The Senator, of course, makes the point. The cloture motion in the case of Judge Paez was filed by the party in control of this body, by the distinguished majority leader of the Republican Party at that time, Trent Lott.

I would also ask this question: Is it not true that the debate for Richard Paez lasted 1 day; that there was no filibuster of his nomination?

Mr. President, will the Senator from Utah yield for one final question?

With respect to the Paez nomination, is it not also true that a majority of the Republicans supported the cloture motion vote so that Judge Paez could get a vote but that many of those very same Senators then voted against him? Having given everyone in this body an opportunity to vote, they exercised their right to vote against him but did not deny the right of all the other Senators to vote for him, and that he was confirmed?

Mr. President, I would like to address a question to the Senator from Utah if he would yield.

Mr. President, I ask the Senator from Utah, first of all, if the Senator is aware there are many nominees who, for one reason or another, never got out of the Judiciary Committee? In other words, isn't it correct there are many nominees who, for a variety of reasons, do not make it to the floor of the Senate? Is that correct?

Further on this line of inquiry, if I could ask the Senator from Utah to yield, other than the case of Justice Abe Fortas, does the Senator from Utah know of any situation in which a nominee for the Supreme Court or the circuit court of appeals, for example, got to the floor of the Senate and then was stopped by a filibuster?

Mr. President, I ask the Senator from Utah to yield for two other questions.

This goes back, I would advise the Senator from Utah, to the question of whether or not there has been a full opportunity to discover what this nominee believes, what his background is, whether he is well qualified, whether there has been an opportunity, in other words, to question him and whether he has provided full and complete information. Would the Senator from Utah advise all of us how many hours, if it was hours, this nominee was before the Judiciary Committee and whether he answered all of the questions that were put to him at that hearing?

Mr. President, my final question to the Senator from Utah, if he would yield please.

I think I counted 30 questions that were orally asked during the course of a hearing that, as I understand it, went from 10:06 a.m. to 5:25 p.m. In addition to that, the committee routinely sends a questionnaire to these candidates. That questionnaire was provided to Miguel Estrada, and it was returned. It is some 25 pages in length and is a complete answer, and he does not refuse to answer any of the questions that were posed by the committee. These are the same questions that are asked of every nominee who comes before the committee.

May I also ask the Senator from Utah if the answers to this questionnaire have been printed in the Record, and if they have not, if the Senator from Utah would place them in the Record?

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Wednesday, February 12, 2003, at 9:30 a.m., in open and closed session to receive testimony on current and future worldwide threats to the National Security of the United States.

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and transportation and the House Subcommittee on Science and Space be authorized to meet on Wednesday, February 12, 2003, at 9:30 a.m. on the Challenger Space Shuttle in Russell SR-325.

Mr. President, I ask unanimous consent that the Committee on Environment and Public Works be authorized to meet on Wednesday, February 12, 2003 at 9:30 a.m. to conduct a business meeting regarding S. 195, Underground Storage Tank Compliance Act of 2003; Several Committee Resolutions on GSA Prospectuses; and Committee Funding Resolution.

The meeting will be held in SD 406.

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session on Wednesday, February 12, 2003, at 9:30 a.m., to hear testimony on Examination of Proposals for Economic Growth and Job Creation: Incentives for Investment.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Wednesday, February 12, 2003 at 9:30 a.m. to hold a Hearing on The Reconstruction of Afghanistan: An Update.

Agenda

Witnesses: Panel 1: The Hon. David T. Johnson, Coordinator

for Afghanistan Assistance, Department of State, Washington,

Mr. President, I ask unanimous consent that the Committee on Health, Education, Labor, and Pensions be authorized to meet in Executive Session during the session of the Senate on Wednesday, February 12, 2003.

The following agenda will be considered:

Agenda

Adopting sub-committee memberships

Adopting committee rules

S.____, Keeping Children and Families Safe Act of 2003

(CAPTA reauthorization)

S.____, NIH Foundation

S. 239, Trauma Care

S.____, Birth Defects

S.____, Animal Drug User Fee Act

Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Wednesday, February 12, 2003, at 10:30 a.m. in Room 485 of the Russell Senate Office Building to conduct a CONFIRMATION HEARING on the President's nomination of Mr. Ross O. Swimmer to be Special Trustee for American Indians at the U.S. Department of the Interior.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet to conduct a Judicial Nominations hearing on Wednesday, February 12, 2003 in Dirksen Room 226 at 9:30 a.m.

Tentative Agenda

Panel I

The Honorable Richard C. Shelby United States Senator (R-

AL); The Honorable Jeff Sessions United States Senator (R-

AL); The

Honorable Ben Nighthorse Campbell United States Senator (R-

CO); The Honorable Wayne Allard United States Senator (R-CO);

The Honorable George F. Allen United States Senator (R-VA);

The Honorable Lamar Alexander United States Senator (R-TN);

and The Honorable Chris Cannon United States Representative

(R-UT).

Panel II

Timothy M. Tymkovich to be United Circuit Judge for the

Tenth Circuit

Panel III

J. Daniel Breen to be U.S. District Judge for the Western

District of Tennessee; William H. Steele to be U.S. District

Judge for the Southern District of Alabama; Thomas A. Varlan

to be U.S. District Judge for the Eastern District of

Tennessee; Timothy C. Stanceu to be a Judge of the U.S. Court

of International Trade; and Marian Blank Horn to be a Judge

of the U.S. Court of Federal Claims.