Senate
Mr. President, I am a new Senator. I am aware of the traditions of the Senate, one of which is that a new Senator is not expected to say much--at least throughout the year is not expected to say much--to begin with until they have…
Mr. President, I am a new Senator. I am aware of the
traditions of the Senate, one of which is that a new Senator is not expected to say much--at least throughout the year is not expected to say much--to begin with until they have something of importance to say. So I have not said much.
I had been planning to make my first remarks on this floor next Tuesday on the issues I care most about, which are the education of our children and putting the teaching of American history and civics back in its rightful place in our schools so that our children can grow up knowing what it means to be an American. I planned on doing that next Tuesday. But I have decided to make some remarks today--earlier than expected because I am disappointed in what I have heard in the debate about Miguel Estrada.
Like my friend from Missouri, I have had the opportunity to preside in the last few days. That is one of the honors that are accorded new Members of the Senate. I have been listening very carefully. My disappointment has increased with each of these 10 days as the debate has continued.
I am disappointed first because I believe our friends on the other side of the aisle are being unfair to Miguel Estrada. I am most disappointed in them because I believe if the direction of this debate continues as it is going--and I heard the comments of my friend from Missouri yesterday on this same matter--if we continue in the same direction, we run the risk of permanently damaging the process by which we select Federal judges and by which we dispense justice in the United States. I am disappointed because this is not what I expected when I came to the Senate.
I may be new to the Senate, but I know something about judges. I am a lawyer. I once clerked for a U.S. Attorney General. His name was Robert Kennedy. I once clerked for a great Federal appellate judge. His name was John Minor Wisdom of New Orleans. I once worked in this body 36 years ago for Senator Howard Baker, a great lawyer. I watched this body as it considered and confirmed men and women to the Federal courts of this land. As Governor of Tennessee for 8 years, I had the responsibility of appointing--and did appoint--nearly 50 men and women to judgeships all the way from chancellorships to the supreme court.
I know pretty well the process we have followed in the Senate and in this country for the last couple of centuries.
It is fairly simple. It can be expressed in plain English. The Executive nominates, the Senate considers, and then confirms or rejects the nomination; and in doing so, what the Senators have always looked for, mainly, has been good character, good intelligence, good temperament, a good understanding of the law and the duties of a judge, and whether a nominee seems to have courtesy for those who may come before him or her. And it has always been assumed that it is unnecessary--and, in fact, it is unethical by the standards of most of the judicial canons in this country--for the nominee to try to say how he or she would decide a case that might come before him or her.
Then, after all that examination is done in the Senate, there is a vote. And under our constitutional traditions, the majority decides.
I have been listening very carefully, and that is not what is happening. The other side has simply decided that it will not allow the Senate to vote on the nomination of Miguel Estrada. In doing so, it is doing something that has never been done for a circuit court of appeals judge in our Nation's history.
In those hours that I have presided over this body in the last few days, I have been listening very carefully to see what reasons our friends on the other side could give for coming to such an extraordinary conclusion about whom I have come to learn is an extraordinary individual, Miguel Estrada.
I have been listening carefully for the answers, especially to these three questions: No. 1, what is wrong with Miguel Estrada? What is wrong with him? No. 2, why can't we vote on Miguel Estrada, after 10 days of debate? And, No. 3--most importantly--why should we change the constitutional tradition that a majority of the Senate will decide whether to confirm Miguel Estrada? Because what they are saying, really, is that he will need to get 60 votes--60 votes--instead of 51.
I have had the privilege of listening to each of their arguments. As my friend from Missouri knows, they first try one argument, and it does not go so well. Then they move to another argument, and it does not stand the light of day. And then they move to another one.
But let me tell you what I have heard as I have listened to the debate.
First, they said--it would be hard to imagine that anyone could say this with a straight face, but we had many straight faces on the other side of the aisle saying this--that he was not qualified to be a Federal appellate judge.
You do not hear that argument very much anymore because that is almost a laughable comment if it were not such a serious matter.
But let's go over this. This man isn't just qualified; if this were sports, he would be on the Olympic team, and he would be getting an award for ``American Dream Story of the Year.''
Here is a man who came to this country at age 17 from Honduras. He had a speech impediment. He spoke very little English. And within a short period of time, he was attending Columbia University, one of the most prestigious universities in America.
Then he went to Harvard Law School. Now, it is really hard to get into Harvard Law School. It has great competition. Everyone who is applying to a law school around the United States of America this year--and I know a great many of them--think about it. This young man, in a few years, was admitted to Harvard Law School. And not only that, he became an editor of the Harvard Law Review and graduated magna cum laude.
This a dream resume, but it is not even over.
Then he went to the Second Circuit as a law clerk. Then he became a clerk for a Supreme Court Justice. By now he was in the top 1 percent of 1 percent of all law school students in the country, with the kind of resume for a lawyer every law firm in the country would want to hire. He has a record that almost everyone would admire.
Then he went to the Southern District of New York, one of the most competitive places, to be hired for training there.
Then he was in the Solicitor General's Office. To those who are not lawyers or who do not keep up with this sort of thing, just being in the Solicitor General's Office might not sound like such a big deal, but those are the plum positions. The way I understand that office, there are a couple of political appointees there--the Solicitor General and his Deputy--and there are about 20 career lawyers. Miguel Estrada was one of those lawyers. They are there because they are not just good, they are the best in America. They have the best resumes. They have been the clerks to the Supreme Court Justices. They are going to be the greatest lawyers. It is the most competitive position in which you can be.
And there he is, Miguel Estrada, coming here at age 17, barely speaking English, making his way into there. He worked there for the Clinton administration and the Bush administration.
Then he went to one of the major law firms of America. And he has argued 15 cases before the Supreme Court of the United States.
That is an incredibly talented record. There is almost no one who has been nominated for any judgeship in our country's history who has a superior record. For anyone to have even suggested for 15 minutes that Miguel Estrada is not superbly qualified to be a member of the United States Court of Appeals--for anyone to even suggest that--it is difficult to see how one could do that with a straight face.
Little has been made about what he did in the Solicitor General's Office. I think it is worth talking about that. These talented young men and women have the job of helping the Solicitor General make decisions about what to do in cases in which the United States is a party. That means they review all the decisions that come against us, the United States of America. They are the lawyers for us, the United States of America.
They write memoranda and they write opinion and they must argue back and forth. And they must argue about every side of every issue. And
our friends on the other side have come up with straight-face argument No. 2, which is that somehow Mr. Estrada, who does not even have all those memoranda, should be penalized because the U.S. Government does not want to hand those memoranda, that were exchanged back and forth between the various Solicitor General's assistants, over to the Senate.
We have never done that. There are seven living former Solicitors General of the United States, and seven--all of them--have written a letter to this body saying that has never been done, and it never should be done, for obvious reasons. If it were done, you would never have any straightforward memoranda left in that office. It protects us, the United States. And that never should even be considered to be held against Mr. Estrada.
So is he qualified? It is hard to imagine someone who is better qualified. I consider it a great privilege to come to the Senate and find a President who discovered such an extraordinary person to nominate for the Court of Appeals for the District of Columbia Circuit. Such a story should give inspiration to men and women all over America, that this is the country to which you can come, regardless of race or background or whatever your condition, and dream of being admitted to the best universities, finding the best jobs in a short period of time, and being nominated by the President of the United States for such a court.
What a wonderful story. And what an embarrassing event it is to have our friends on the other side to even take the time of this Senate trying to suggest such a person is not qualified. So let's just throw that argument away and put it in the drawer.
Since that argument did not fly, they then moved to argument No. 2, which is equally difficult to offer with a straight face, if I may respectfully say so. They said he has no judicial experience.
Now, this argument is still being made. I heard the distinguished Senator from New York, last night, in an impassioned address, right over on the other side, say he has never been a judge, and we don't know what his opinions are. Never been a judge--Miguel Estrada cannot be a judge because he has never been a judge.
Well, I am awfully glad that was not the standard that was applied to Justice Felix Frankfurter when President Roosevelt nominated him. He would never have been a judge before he was a Justice of the Supreme Court.
I am glad it was not the standard that was applied to Louis Brandeis before he was nominated to the Supreme Court. I am glad it was not the standard that was applied to Thurgood Marshall, the first African American who was ever appointed to the Supreme Court of the United States. He had never been a judge. And so should Thurgood Marshall have never been a Justice because he had never been a judge?
When I graduated from New York University Law School, the dean came to see me and said I had a chance to be a messenger down in New Orleans for a man that my dean, Bob McKay, said was one of the three or four best Federal judges in the country. His name was John Minor Wisdom, a great man and a great lawyer. He had never been a judge before President Eisenhower appointed him. Neither had Albert Tuttle from Atlanta or John Brown from Texas. The three of them became three of the greatest judges in the South. They presided, having been appointed by a Republican President, over the desegregation of the southern U.S. They were among the greatest judges we have ever had, and they had never been judges.
Of 108 Supreme Court Justices who have been appointed, 43 of those have never been a judge. I have a list somewhere here of judge after judge after judge. Earl Warren; Byron White; Justice Powell; Justice Rehnquist; Justice Breyer; Judge Wisdom's favorite friend on the second circuit, Henry Friendly of New York. He had never been a judge before. Charles Clark; Jerome Frank; John Paul Stevens; Warren Burger; Harold Leventhal; Spottswood Robinson; Ruth Bader Ginsberg, who had never been a judge before she was a Justice. Does that mean she wasn't qualified to sit on this Court?
Why would the other side be taking up the time of the Senate at a time when we are concerned with war with Iraq and the economy is hurting, by making that kind of argument? They would be asked to sit down in any respectable law school in America if they gave that answer. Yet they are here in the Senate trying to persuade us that it makes a point.
In 1980, I appointed George Brown of Memphis as the first African American justice in the history of the State of Tennessee. If George Brown had to be a judge before he had become a justice, I could never have appointed an African American justice, because there were no African American judges at that time. Even today, given the paucity of Hispanics and African Americans and women who are judges, if we were to say that in order for someone to be a judge, before he or she becomes a judge, we would have a terrible, invidious discrimination against men and women who should not be discriminated against, and I am sure my friends on the other side don't want to see that happen.
So even though we have spent days arguing that Miguel Estrada should not be considered because he has never been a judge, that argument has no merit to it whatsoever. We hear it less and less now that it is on the tenth day.
Well, those two arguments didn't fly because here is a superbly qualified person. So they said he didn't answer the questions.
I just had the privilege of hearing the distinguished Senator from California and the distinguished Senator from Minnesota spend a long time talking about that, saying he hasn't answered questions. Well, Mr. President, I am not a member of the Judiciary Committee, but I know they had hearings and I know Members on the other side were in charge of the Senate when they had the hearings. I know the hearings could have gone on as long as they wanted them to because they were in charge. If I am not mistaken, the distinguished Senator from Utah was here. I believe they went on all day long. The hearings were unusually long. Miguel Estrada was there and he answered their questions. Every Senator on the committee had the opportunity to ask followup questions in writing, and two did. The Senator from Massachusetts and the Senator from Illinois did that. Mr. Estrada gave those answers in writing. He has now said to Members of the Senate that he is available for further questions. He will be glad to visit with them.
What does he have to do to answer the questions? Why is there a new standard for Miguel Estrada? Why do we say to him, for the first time, tell us your views in a particular case before we will confirm you? We have tradition rooted in history that it is even unethical to do that. I appointed 50 judges, as I said, when I was Governor. When I sat down with these judges, I didn't ask: How would you rule on TVA and the rate case, or how would you rule on partial-birth abortion, in the abortion case; or what would you do about applying the first amendment to the issue of whether to take the Ten Commandments down from the courthouse in Murfreesboro, TN, or how do you feel about prayer in the schools, or if somebody says a prayer before a football game?
I didn't do that because I didn't think it was right to ask a judge to decide a case before the case came before him, which has been the tradition in this country. We are not appointing legislators to the bench, or precinct chairmen, or think-tank chairmen, or Senators; we are appointing judges. They are supposed to look at the facts and consider the law and come to a conclusion. But they say he didn't answer the questions.
Mr. President, the only way I know to deal with that--because this side says one thing and that side says the other, and since I am not on the Judiciary Committee--is to read the questions and the answers. I wanted to see whether he was asked some questions and whether he gave some answers.
These are the questions and answers, Mr. President. This is the record of the hearing of Miguel Estrada, plus a long memorandum of questions from the Senator from Massachusetts and the Senator from Illinois that he also answered. I will not take the Senate's time to read all of the questions and answers, but since they keep saying he didn't answer the questions, let me give some examples.
The chairman of the committee says:
Mr. Estrada, we have heard you have held many strongly-held
beliefs. You are a zealous advocate. That is great. You know,
lawyers who win cases are not the ones who say ``on the one
hand, this, on the other hand, that.'' They are zealous. But
you also have to make sure, if you are going to enforce the
laws, that your personal views don't take over the law.
Senator Thurmond has asked every single nominee I have ever
heard him speak to--Republican or Democrat--to speak to that
effect. What would you say is the most important attribute of
a judge, and do you possess that?
A very good question.
Answer:
The most important quality for a judge, in my view, Senator
Leahy, is to have an appropriate process for decisionmaking.
That entails having an open mind, it entails listening to the
parties, reading their briefs, going back behind the briefs
and doing the legal work needed to ascertain who is right in
his or her claims. In courts of appeals court where judges
sit in panels of three, it is important to engage in
deliberations and give ears to the views of colleagues who
may have come to different conclusions. In sum, to be
committed to judging as a process that is intended to give us
the right answer and not a result. I can give you my level
best solemn assurance that I firmly think I have those
qualities, or else I would not have accepted the nomination.
``Does that include the temperament of the judge?'', asked the chairman.
Mr. Estrada said:
Yes, that includes the temperament of a judge. To borrow
somewhat from the American Bar Association, the temperament
of a judge includes whether he or she is impartial and
openminded, unbiased, courteous, yet firm, and whether he
will give ear to people who have come into his courtroom and
who don't come in with a claim about which the judge may at
first be skeptical.
The chairman said:
Thank you.
I submit that is a good answer. I appointed 50 judges and I would have listened to that question. I would give him an A-plus on that.
Here is the Senator from Iowa:
Before I make some comment, I want to ask three basic
questions.
This is in the hearing with Mr. Estrada. This is the man who the other side says doesn't answer questions.
The Senator from Iowa:
In general, Supreme Court precedents are binding on all
lower Federal courts, and circuit court precedents are
binding on district courts within a particular circuit. Are
you committed to following the precedents of the higher
courts faithfully, giving them full force and effect even if
you disagree with such precedents?
Mr. Estrada:
Absolutely, Senator.
How could you make a better answer than that? You could either say yes or no. He said yes.
The Senator from Iowa:
What would you do if you believed the Supreme Court or
court of appeals had seriously erred in rendering a decision?
Would you, nevertheless, apply that decision, or would you
use your own judgment on the merits, or the best judgment of
the merits?
Mr. Estrada:
My duty as a judge, and inclination as a person and as a
lawyer of integrity would be to follow the orders of the
highest court.
The Senator from Ohio:
And if there were no controlling precedent dispositively
concluding an issue with which you were presented in your
circuit, to which sources would you turn for persuasive
authority?
Mr. Estrada:
When facing a problem for which there is not a decisive
answer from a higher court, my cardinal rule would be to
seize aid from any place I could get it. Depending on the
nature of the problem, that would include related case law
and other areas higher courts had dealt with that had some
insights to teach with respect to the problem at hand. It
could include history of the enactment, in the case of a
statute, legislative history. It could include the custom and
practice under any predecessor statute or document. It could
include the view of academics to the extent they purport to
analyze what the law is instead of prescribing what it ought
to be, and, in sum, as Chief Justice Marshall once said, to
attempt not to overlook anything from which aid might be
derived.
I give him an A plus for that. That was a good question, and he gave a superb answer, just the kind of answer I think an American citizen who wants to appear before an impartial court in this country would hope to hear. I do not think we want to hear: Welcome to the court, Mr./Ms. Litigant. We have here your Democratic court; we have here your Republican court. If your views are all right, you might get the right hearing. You would want a judge who said what Mr. Estrada said.
The Senator from Massachusetts, who has been extremely critical of Mr. Estrada, asked a more detailed question. Mr. President, you may be wondering why I am going into such detail when this is available to the whole world, including the Senators on the other side. The problem is perhaps someone has not bothered to offer this book to our friends on the other side because they keep coming down here while you and I are presiding day in and day out for 10 straight days and saying Mr. Estrada has not answered the questions. My suggestion is he has answered question after question, and he has done a beautiful job of answering the questions.
Let me take a few more minutes and give examples of answering questions.
The Senator from Massachusetts:
Now, Mr. Estrada, you made the case before the court that
the NAACP should not be granted standing to represent the
members. As I look through the case, I have difficulty in
understanding why you would believe the NAACP would not have
standing in this kind of case when it has been so
extraordinary in terms of fighting for those--this is the
NAACP--and in this case was making the case of intervention
because of their concern about the youth in terms of
employment, battling drugs, and also voting.
In other words, Mr. Kennedy was saying: Mr. Estrada, how can you do this when the NAACP is on the other side?
Mr. Estrada's answer:
The laws that were at issue in that case, Senator Kennedy,
and in an earlier case, which is how I got involved in the
issue, deal with the subject of street gangs that engage in
or may engage in some criminal activity. I got involved in
the issue as a result of being asked by the city of Chicago--
--
The last time I checked, the mayor of the city of Chicago was a Democrat, a good mayor, but just so I would not want anyone to think this was a partisan comment----
which had passed by similar ordinance dealing with street
gangs. And I was called by somebody who worked for Mayor
Daley when they needed help in the Supreme Court in a case
that was pending on the loitering issue. I mention that
because after doing my work in that case, I got called by
the attorney for the city of Annapolis, which is the case
to which you are making reference. They had a somewhat
similar law to the one that had been at issue in the
Supreme Court. Not the same law. They were already in
litigation, as you mentioned, with the NAACP. By the time
he called me--
This is the lawyer for the city--
he had filed a motion for summary judgment making the
argument that you outlined. And he had been met with the
entrance into the case by a prominent DC law firm on the
other side. He went to the State and local legal center and
asked: Who can I turn to to help? And they sent him to me
because of the work I had done in the Chicago case. Following
that, I did the brief, and the point on the standing issue
that you mentioned is that in both Chicago and in the
Annapolis ordinance, you were dealing with types of laws that
had been passed with significant substantial support from the
minority communities. I have always thought that it was part
of my duty as a lawyer to make sure that when people go to
their elected representatives and ask for those type of laws
to be passed to make the appropriate arguments that a court
might accept to uphold the judgment of the democratic people.
In the context of the NAACP, that was relevant to a legal
issue because one of the requirements we argued for
representational standing--
Those who might be listening may think this is awfully detailed, awfully specific, awfully long. Mr. President, that is my point. Senator Kennedy asked an appropriate and very detailed question about an issue involving street gangs in Chicago where Mayor Daley asked Mr. Estrada to help, and Mr. Estrada gave Senator Kennedy a very detailed, courteous, respectful, specific answer that has taken me 3 or 4 minutes to read, and I am not through yet.
The point is, the other side keeps saying he has not answered questions when he has answered the questions. Not only has he answered them, he has answered them in a way a superbly qualified lawyer with his background might be expected to answer.
The Senator from Alabama:
Mr. Estrada, if you are confirmed in this position, and I
hope you will be, how do you see the rule of law, and will
you tell us, regardless of whether you agree with it or not,
you will follow binding precedent?
Mr. Estrada:
I will follow binding case law in every case. I don't even
know that I can say whether I concur in the case or not
without actually having gone through all the work of doing it
from scratch. I may have a personal, moral,
philosophical view on the subject matter, but I undertake to
you that I would put all that aside and decide cases in
accordance with the binding case law and even in accordance
with the case law that is not binding but seems instructive
in the area, without any influence whatsoever from any
personal view that I may have about the subject matter.
What Mr. Estrada was saying to the Senator from Alabama was: Mr. Senator, with respect, I may not decide this case the way you would like for it to be decided because I will look at the case law and I will follow the case law, and I might even decide this case the way my personal view would decide it if the case law is different than my personal view. In other words, I think Mr. Estrada is giving the answer that most Americans want of their judges, regardless of what party they are in.
I will give a couple more examples, and I do this because this has gone on now 10 days. All I hear from the other side is he will not answer the questions, he is not answering the questions, when, in fact, there is a book full of questions and answers to which I believe law professors in the law school I attended would give a very high grade.
Here is the Senator from Wisconsin:
With that in mind, Mr. Estrada, I would like to know your
thoughts on some of the following issues. Mr. Estrada, what
do you think of the Supreme Court's effort to curtail
Congress' power which began with the Lopez case back in 1995,
the Gun-Free School Zone Act. That was a very controversial
case. I remember my own view on that. I would have voted
against it, even though, obviously, I am for gun-free school
zones, but almost every Senator voted for it because they did
not want to sound like they were against gun-free school
zones, I guess, or whatever the reason might have been, but
it was a controversial issue and a hard issue to vote
against.
Mr. Estrada:
Yes, I know the case, Senator. As you may know, I was in
the Government at the time, and I argued a companion case to
Lopez that was pending at the same time and in which I took
the view that the United States was urging in the Lopez case
and in my case for a very expansive view of the power of
Congress to pass statutes under the commerce clause and have
them to be upheld by the court. Although my case, which was
the companion case to Lopez, was a win for the Government on
a very narrow theory, the court did reject the broad theory I
was urging on the court on behalf of the Government.
In other words, Mr. Estrada was sticking up for the very people who are saying he will not answer their questions. He was there. That was his view, and he talks about it, and he answered the question:
Even though I worked very hard in that case to come up with
every conceivable argument for why the power of Congress
would be as vast as the mind could see, and told the court so
at oral argument, I understand I lost on that issue in that
case as an advocate, and I will be constrained to follow the
Lopez case.
Here we are, Mr. President. Mr. Estrada took a position that I would have voted against. I think he is wrong, but he really did not take a position that I would vote against him. He argued a case before the court that made the very best argument he could make, arguing two lines of opinions. What our friends on the other side are saying is, when he writes a brief or argues a case on behalf of the United States, that somehow that reflects the point of view with which they disagree. I disagree with his brief. I would not consider voting against him or anybody else based on that kind of reason, a very complete answer.
Then if I may, I will state two more. Again, I would not normally think it was necessary for me to read the questions and read the answers, except that virtually every Senator from the other side who has come in has said he has not answered the questions, so I want the American people and my colleagues to know that if they want to know whether he has answered the questions all they need to do is go to the hearing record and read the question and read the answer.
Here is a tough one from the Senator from California:
Do you believe that Roe v. Wade was correctly decided?
There is no more a difficult question for a judge who comes before the Senate, because that is a terribly difficult issue about which we all have deeply held moral beliefs, and for all of us almost there is only one right way to answer the question, unless one believes that what judges are supposed to do is to interpret the law and apply the law to the facts.
Mr. Estrada's answer:
My view on that judicial function, Senator Feinstein, does
not allow me to answer that question.
Then he goes on to explain what he meant.
I have a personal view on the subject of abortion, as I
think you know. But I have not done what I think the judicial
function would require me to do in order to ascertain whether
the Court got it right as an original matter. I have not
listened to the parties. I have not come to an actual case or
a controversy with an open mind. I have not gone back and run
down everything that they have cited. And the reason I have
not done any of those things is that I view our system of law
as one in which both me as an advocate and possibly, if I am
confirmed, as judge have the job of building on the wall that
is already there and not to call it into question. I have had
no particular reason to go back and look at whether it was
right or wrong as a matter of law, as I would if I were a
judge that was hearing the case for the first time. It is
there. It is the law, as has been subsequently refined by the
Casey case, and I will follow it.
That is a complete answer to the most difficult question that could be asked of a nominee for a Federal judgeship.
Senator Feinstein: So you believe it is settled law?
Mr. Estrada: I believe so.
As I mentioned, if I understand the committee's rules, every Senator on the committee has the ability to ask followup questions. I know when I was confirmed by the committee they asked me many followup questions and I worked hard answering the questions 10 or 12 years ago when I was in the first President Bush's Cabinet. These are serious questions and serious answers.
Here I think is a revealing question, and one which may give us some idea of why we are in the 10th day of debate on one of the most superbly qualified candidates ever nominated for the court of appeals, a man who exemplifies the American dream. The Senator from Massachusetts, Mr. Kennedy, asked this question:
Mr. Estrada, do you consider yourself a ``conservative''
lawyer? Why or why not? Why do you believe that you are being
promoted by your supporters as a conservative judicial
nominee? Do you believe that your judicial philosophy is akin
to that of Justices Scalia and Thomas? Why or why not?
What Senator Kennedy is looking for is to find out is this a conservative lawyer. Is the suggestion that we may want conservative decisions or liberal decisions? I thought we wanted fair decisions, based on precedent, based on fact. I thought we wanted judges who it would be impossible for us to tell where they were coming from before they were coming.
The response from Mr. Estrada is very interesting. He said to the Senator from Massachusetts:
My role as an attorney is to advocate my client's position
within ethical bounds rather than promote any particular
point of view, conservative or otherwise.
A-plus for that, I would say.
Mr. Estrada says:
I have worked as an attorney for a variety of clients,
including the United States Government, State and local
governments, individuals charged with criminal activity.
Are we going to say criminal lawyers cannot be confirmed because they represented people who murdered people and that makes them murderers?
Large corporations, indigent prisoners seeking Federal
habeas corpus, in those cases I have advocated a variety of
positions that might be characterized as either liberal or
conservative.
Remember, this is from a career employee in the U.S. Solicitor's Office in the Clinton and Bush administrations. This is Miguel Estrada:
While I am grateful for the wide ranging and bipartisan
support that my nomination has received, I have no knowledge
of the specific reasons that might cause a particular
supporter of my nomination to promote my candidacy for
judicial office. As a judge I would view my job as trying to
reach the correct answer to the question before me without
being guided by any preconceptions or speculations as to how
any other judge or justice might approach the same issue.
If all of the Senators would take the time to read Miguel Estrada's answers, some of them might end up in a textbook of appropriate answers, if they believe a judge's job is to apply precedent and consider the facts and come to a fair decision.
Miguel Estrada is qualified, and he is not just qualified, he is one of the most qualified persons ever nominated for
the Federal court of appeals. If he, by his very candidacy, represents the American dream that anything is possible, coming here from Honduras at age 17 and making his way through such a distinguished series of appointments, if he has answered the questions in what I would argue is a superior way, the way most nominees would be capable of answering the questions, and I have read just a few of them--I can come back and take another 2 or 3 hours and read more because there are hours of questions and answers--and if a majority of Members of the Senate have signed a letter saying they would vote to confirm him, then why can we not vote on Miguel Estrada?
The only reason can be that our Democratic friends want to change the way judges are selected. They want to say it takes 60 votes instead of 51, and they want to say the criteria for winning those votes is to answer the questions the way they want.
That will give us a Federal judiciary filled with partisans, or an empty Federal judiciary because we will be debating night after night because we cannot agree on whom to nominate and confirm. Such a process, if carried on in subsequent Congresses, will diminish the executive. It will diminish the judiciary. It will reduce the likelihood that facts will be considered and that binding precedent will apply. In other words, it will reduce the chance that justice will be done. It will reduce respect for the courts because it will be assumed that if partisan views on the case are what it takes to get confirmed by the Senate, then partisan views are what it takes to win a case before the court.
It reminds me of the story we tell at home about the old Tennessee judge. He was in a rural county up in the mountains and the lawyers showed up for a case one morning. He said: Gentlemen, we can save a lot of time. I received a telephone call last night. I pretty well know the facts. All you need to do is give me a little memorandum on the law.
We do not want a judiciary where those who come before it believe the judges got their political instructions when they were confirmed and that there is really no need to argue the case.
So Miguel Estrada is superbly qualified. Miguel Estrada has answered question after question, and he has done it very well. A majority of the Senate has signed a letter saying they are ready to vote today to confirm Miguel Estrada, and never in our history have we denied such a vote by filibuster to a circuit court judge. It is time to vote.
Before I finish my remarks, I make this pledge. I may be here long enough, and I hope it is a while, before I have an opportunity to cast a vote for a nominee for a Federal judgeship that is sent over by a Democratic President, but I can pledge now how I will cast my vote. It will be the same way I appointed 50 judges when I was Governor. I look for good character. I look for good intelligence. I look for good temperament. I look for good understanding of the law and of the duties of judges. I will look to see if this nominee has the aspect of courtesy to those who come before the court. I will reserve the right to vote against some extremists, but I will assume that it is unnecessary and unethical for the nominee to try to say to me how he or she would decide a case that might come before him or her. When it comes time to vote, when we finish that whole examination, I will vote to let the majority decide.
In plain English, I will not vote to deny a vote to a Democratic President's judicial nominee just because the nominee may have views more liberal than mine. That is the way judges have always been selected. That is the way they should be selected.
I conclude in equally plain English, and with respect, I hope my friends on the other side of the aisle would not deny a vote to Miguel Estrada just because they suspect his views on some issues may be more conservative than theirs.
These are the most serious times for our country. Our values are being closely examined in every part of the world. Our men and women are about to be asked, it appears, to fight a war in another part of the world. How we administer our system of justice is one of the most important values they are defending. We need to constrain our partisan instincts to get them under control. We need to avoid a result that changes the way we select judges. In my view, we permanently damage our process for selecting Federal judges.