Floor Statements

Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m., Tuesday, March 4. I further ask that following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and the Senate then begin a period for morning business for up to 2 hours, with the first 30 minutes under the control of Senator Alexander, the second 30 minutes under the control of Senator Murkowski or her designee, and the final 60 minutes under the control of the Democratic leader or his designee.

I further ask unanimous consent that upon the conclusion of morning business, the Senate return to executive session and resume the consideration of the nomination of Miguel Estrada to be a circuit judge for the DC Circuit. I ask unanimous consent that the Senate recess from the hour of 12:30 p.m. to 2:15 p.m. for the weekly party caucuses.

I am happy to yield.

Mr. President, for the information of all Senators, following morning business, the Senate will return to the Estrada nomination. Since taking up this nomination almost a month ago, the Senate has thoroughly and vigorously debated Mr. Estrada's qualifications to serve on the DC Circuit Court. Although a solid majority of Senators supports this nomination, several of my colleagues on the other side of the aisle refuse to let this well-qualified man receive an up-or-down vote on confirmation. Those who oppose Mr. Estrada certainly have a right to have their opinions heard, but I think it is more than fair to say that every Senator has had ample opportunity to speak on the nomination. I encourage any Member who still wishes to speak on the nomination to do so during tomorrow's session.

If there is no further business to come before the Senate, I ask unanimous consent that the Senate stand in adjournment under the previous order.

Mr. President, I have been interested in the approach by the other side. Yesterday, they came on the floor and said, oh, my goodness, we should get rid of this because we have so many important issues to take care of. There is one way to get it rid of it, and that is to let the people's representatives in the Senate vote. That is what the Washington Post said: Just vote. Vote up or down.

The real reason they are not allowing a vote--because, as we can see from the letter, we have at least 52 votes and there have been at least 3 other Senators on the minority side who have said they are going to vote for Mr. Estrada. So there are at least 55 votes for Mr. Estrada, and I believe there will be others votes as well.

It is one thing to support your party and to stand in an intractable way against the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia. It is another thing to come on the floor and say we are not going about the people's business because we are dealing with this incidental judicial nomination. Well, it is not incidental. It is one of the most important nominations in the country.

This is a man who really deserves to be on the Circuit Court of Appeals for the District of Columbia. This is a man who has every credential and has not had a glove laid on him. That is why the fishing expedition request into privileged matters. They want to get his recommendations, or I suppose in the future anybody's recommendations, especially Republicans who might have worked in the Solicitor General's Office, on appeals, on certiorari petitions, and on amicus curiae matters. Those have never been given to anybody. Those are the crucial documents upon which the Solicitor General, the people's attorney, makes decisions as to where to go and what to do. There is only one reason they would like to get these privileged documents, and that is they are on a fishing expedition because they have not been able to find anything to hang on Miguel Estrada yet, other than these phony accusations that he has not answered the questions.

My gosh, the hearing transcript is that thick; the briefs he has filed and the answers in the testimony before the Supreme Court, two volumes, that thick. They have more materials on Mr. Estrada to know what he is and what he is about than almost any judicial nominee, other than the Supreme Court, who has been nominated in the whole 27 years I have been in the Senate. I think my colleagues can take it

from me because I have been involved in every one of these nominations. As chairman, now twice, I can say there has very seldom been anybody as scrutinized as Mr. Estrada. And since there is still nothing they can point to that is a good reason for keeping him out of this position, what one has to conclude is the reason they are doing this--well, I will leave that up to the American people, and I will leave it up to the people in the Hispanic community. My personal conclusion is that they do not like having a Republican, Hispanic, conservative who thinks for himself as an independent thinker.

Not yet. I will make a statement first before I yield for a question. I will do that later, however. I have been very good about yielding, so I hope my colleague does not feel badly about my decision to make my statement first.

I cannot believe the arguments that have been used in this matter, and I cannot believe my colleagues on the other side, with their feet in concrete, cannot understand why this is such an important nomination.

The fact is this fellow is immensely qualified. I have had countless people tell me that, in addition to my own studies, and I have had a lot of Democrats say he is really qualified--but.

``But'' what? These phony accusations that he has not answered questions? Come on. The Democrats conducted the hearings. They controlled the process. They could have kept the hearings going for days. It would have been very unusual for them to do that, but they could have. The hearings were conducted by Senator Schumer. Every Democrat had a chance to come and ask questions. After the hearings were over, they had an opportunity to present written questions to him. Guess how many of those nine Democrats offered written questions. Only two of them.

I will say, the distinguished Senator from Illinois has tried to get to the bottom of what he is concerned about in Federal judgeships. I commend him for it. He wrote questions, and he got answers. Senator Kennedy, who takes a very active role on the committee, wrote questions, and he got answers. Where were the rest of them? Why all the complaining now, 2 years later? Are we going to make every circuit court of appeals judge wait 2 years?

Actually, we are finding a slowdown in the Federal judiciary like I have never seen before, except for district court nominees about whom they do not seem to worry too much. If they are qualified, district court nominees are the trial court nominees. Circuit court nominees should be qualified, too, and this one--I would not say overly qualified, but not many people can match his qualifications in this whole society today--here, in the 10th or 11th day of debate, he is being treated very shabbily.

We are in the middle of a filibuster, no matter what anyone says. That is exactly what it is. I noted my friend from New York, Senator Schumer, said on Sunday this is not a filibuster. If it is not, I don't know what it is. And, frankly, I know a lot about filibusters, having led one of the most important filibusters in history on labor law reform in 1978 that lasted at least a month. It was very tough, mean, miserable, and in some ways tremendously difficult.

My colleague, the distinguished ranking member on the committee, on June 18, 1998, said: ``I have stated over and over again on this floor that I would . . . object and fight against any filibuster on a judge, whether it is somebody I opposed or supported.''

So I suppose the distinguished Senator from Vermont will be another vote for Mr. Estrada, if he really meant what he said. Knowing him, I am sure he did mean what he said. So that would get us up to 56 votes right there. He also said: ``I do not want to get to having to invoke cloture on judicial nominations. I think it is a bad precedent.''

Boy, I sure agree with that. I spent 6 years during the Clinton years when a lot of liberal judges were put up, who were qualified, arguing with some on our side, a relative few, but some who believed we should filibuster those judges. I said: No way. We can't get into filibustering of judges. It diminishes the power of the administration, the executive office, the executive branch of Government, which is supposed to be coequal with the legislative branch. But in addition to diminishing the power of the executive branch, it diminishes the power of the judiciary with regard to its coequality with the executive branch, so both would be diminished while the executive branch was augmented and made superior over both of those branches.

Why? Because a filibuster means that from here on in, with every nominee who may be ``controversial,'' you are going to have to have a supermajority of 60 votes. Or will you? If the Democrats have their way, that is how it will be. And it will be both ways. There will not be any more well-known liberals or well-known conservatives, as great as many in the past have been, on the courts of this country; there will be people who do not have a paper trail, do not have any opinions, on whom you do not know what is going on in their minds. They will be the only ones who can get through for the circuit court of appeals positions or the Supreme Court. That would be indeed a tragedy for this country.

What we get when we elect a President is a person who picks the judges in this country. The Senate's obligation is to vote on those judges. If you do not like what you see, you vote no. If you like what you see, you vote aye. But they get a vote on the Senate floor. That is not what is happening here.

If press reports are to be believed, some Senators are contemplating a dramatic change to the Senate's treatment of the President's judicial nominees. A new requirement: The nominees to the Nation's courts must receive at least 60 votes in order to be confirmed. Since our friends on the other side are filibustering Mr. Estrada's nomination to the Circuit Court of Appeals for the District of Columbia, and if the filibuster results in the nomination being rejected, Democrats will have forced a permanent change in the political and constitutional landscape, a very dangerous and bad change.

I am happy to.

That is a good question. I have to say, no administration worth their salt, no executive branch of government worth any constitutional knowledge, would give up those papers, even to people they trust, such as Senator Leahy and myself. The reason is they have to maintain the dignity of that Solicitor General's Office. They have to maintain the discipline of that office. They have to maintain the privileged nature of those documents. If those documents are disclosed, that means they will have to be disclosed henceforth forever in every case where a person has worked in the Solicitor General's office. It would demean the office and diminish the ability to get forthright and accurate information, and it would impinge upon the work of the Solicitor General.

The only reason those letters were written requesting those documents is that they knew this would constitute a red herring. The only thing they have to argue against Miguel Estrada is a red herring, so they can say: We cannot vote for him because we cannot get these documents. Which is right, they cannot get them. No self-respecting administration would give them.

The Senator is again mistaken. He is absolutely wrong, totally inaccurate.

The fact is the request was for his recommendation on his appeal recommendations, his certiorari recommendations, his amicus curiae recommendations. Those have never ever been given to anybody up here on Capitol Hill. And they shouldn't be given to anybody. Those are the most crucial recommendations the Solicitor General gets and relies upon.

There are some cases where documents for appeal, certiorari, amicus curiae documents, were leaked to Democrat Senators in the past, and there were one or two cases where there were allegations of criminal behavior, or potential criminal behavior, where very selected documents were produced. But there has never, ever been a production of internal, privileged recommendations for appeals, certiorari, and amicus curiae. Again, the Senator is mistaken. I hesitate to point that out, but it is something that has to be pointed out.

I believe with all my heart that my friends on the other side know that. So this is a phony issue they have raised. Here is a man who has the highest rating of the American Bar Association, given by a majority of Democrats who have supported financially other Democrats, and yet they found him worthy of the highest rating of the American Bar Association. I know my colleagues do not like that, even though many of them said he deserves it, he is that good, but we are going to vote against cloture anyway--because we are Democrats, I guess.

Is that really the reason? What is the reason there is a double standard with regard to Miguel Estrada? Is it because we are Democrats? I hope not. Is it because we are liberals? You got that one right. Is it because he is an independent thinker? You have that one right. Is it because he just does not toe the line of the Democratic Party? You got that right. Is it because he is a Republican Hispanic? You got that right. Is it because he is a Republican Hispanic who may be conservative? You bet. Is it because he is a Republican Hispanic who may be conservative who might even be pro-life? I don't know what he is that way, but that is surely part of it.

In other words, it is a double standard, even though we did not take that standard on our side. There were some who wanted to, I admit that. But I didn't take that standard in approving 377 Clinton judges, the second all-time record of judicial confirmations in the history of the Presidency, second only to Ronald Reagan, who had 6 years of a Republican Senate to help him, where President Clinton had only 2 years of a Democrat Senate to help him.

Think about it. What do you conclude is the reason they are fighting this? Because they found something wrong with Miguel Estrada? Show me what it is. Because of this red herring issue--and they know it is a red herring issue--that they know is improper to even ask for?

But counting on their friends in the media to ignore the seven former Solicitors General, four of whom are Democrat, leading liberal Democrat Solicitors General who say those papers should never be given to the legislative branch--it would upset and ruin the work of the Solicitor General of the United States; he is the people's attorney. That is the only thing they have. Yet they are filibustering this man, this Hispanic, this first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia, and one of the few ever nominated to the circuit courts of appeals in this country. It is amazing to me.

What really louses this up for them, as far as I am concerned, is their claim that he does not have any judicial experience; therefore, he should not have this position. That is condemning every Hispanic lawyer to never be a Federal court judge, by and large, because hardly any of them have judicial experience. The only way they get it is by rising in the profession, like Miguel Estrada, reaching the top of the profession, and getting nominated by a President of the United States.

It is a tough road for Hispanics. Here is one who has made it, and my colleagues on the other side are standing in his way, blocking his path, taking away his future. He is the embodiment of the American dream, and they are taking away his future as a judge. I suppose part of it also is to discourage conservative Hispanics, conservatives of other minorities, from wanting to be judges if they are Republicans because it is not worth going through this kind of a battle.

I chatted with Miguel Estrada yesterday. Miguel Estrada said it is worth going through this battle. He will do a great job on that court. He will do it in the best interests of the American people, regardless of ideology. That is basically what he said in answers to these questions that were raised by Democrats. He basically said he would follow the law as he always has as a top-flight attorney.

Now, are we going to have to have 60 votes to confirm ``controversial'' nominees? If his nomination is rejected by a filibuster, then Democrats will have forced a permanent change in the political and constitutional landscape.

Never again could any future President--or even this President-- fairly expect a judicial nominee, whose nomination reaches the Senate floor, to receive an up-or-down vote. And never again would the Senate minority party fear that blocking of a judicial nominee by partisan filibuster, or 41 votes, was unprecedented.

If the Estrada nomination is permanently blocked by filibuster, the political baseline shifts forever. What is sauce for the goose is going to be sauce for the gander. And I think it is terrible. I am doing everything in my power to fight against that. It is even bigger than this nomination, as important as this nomination is, because it could taint the Federal judiciary henceforth and forever because of partisan politics on the Democrat side.

To understand just how stunningly extraordinary this state of affairs is, one needs to examine the Senate's record of confirming judicial nominations.

The first filibuster of a judicial nominee that resulted in a cloture vote was in 1968. In other words, in all the history of this country, that was the first filibuster, in 1968. Since then, the Senate has confirmed approximately 1,600 judicial nominations--since 1968. That filibuster was on the Fortas nomination. Since then, they have confirmed approximately 1,600 judicial nominations, and the vast majority--nearly 1,500--of them without even a rollcall vote, as most are confirmed by unanimous consent.

Indeed, of those some 1,600 judicial nominations confirmed by the Senate since 1968, only 14 even underwent a cloture vote. And with the exception of the bipartisan 1968 filibuster of Abe Fortas's nomination to be Chief Justice of the United States, the Senate has never--let me repeat that--has never blocked by filibuster a judicial nominee to any court in this land--never; never--until this, I think, ill-fated, hopefully, attempt on the part of some of our colleagues on the other side.

I am just wondering why some of my strong colleagues are being led like lambs to the slaughter in this matter without standing up and saying: Hey, enough is enough. We have made our point. We have roughed this guy up. We made it clear to him that, ``you had better behave yourself on the court or you will never be on the Supreme Court.'' That is part of this, I know. That may be a legitimate part as far as I am concerned. They have a right to rough anybody up, I suppose, although I question the propriety of it from time to time.

What follows is an account of all past debates over judicial nominees which

required cloture votes. The history establishes a consistent, bipartisan resistance to taking the step that some Democrats are really doing right now.

Let me talk about the bipartisan Fortas filibuster because, indeed, that was a bipartisan filibuster. It was not just one side, as it is here. But I decry that. That filibuster should not have occurred either.

Judicial nominations have been especially contentious since the days of the Warren Court. That was from 1954 to 1969. Nowhere has that controversy been more pronounced than for nominees to the Nation's highest court. In particular, Supreme Court nominees such as Abe Fortas, William Rehnquist, and Clarence Thomas all faced considerable opposition in the Senate during their confirmations. Yet despite this controversy, only one nomination, Justice Fortas's nomination to be Chief Justice in the tumultuous summer of 1668, caused the Senate to filibuster and block confirmation.

President Lyndon Johnson nominated Associate Justice Abe Fortas to be Chief Justice in June of 1968. A bipartisan coalition of Senators soon formed to oppose Justice Fortas's elevation. The reasons were varied. Some opposed the nomination because Justice Fortas often joined the ``progressive'' Earl Warren wing of the activist Supreme Court. Other Senators opposed Fortas because of his admissions before the Judiciary Committee that he remained involved in White House political affairs even while serving on the Supreme Court, including advising the President during the Vietnam war and the then-recent race riots in Detroit. When it was discovered that Justice Fortas accepted $15,000-- more than $75,000 in 2001 dollars--from controversial sources to teach a 9-week academic course, his support further deteriorated. Yet as the heated 1968 election season continued, some Democrats were wary of defeating Fortas if that meant leaving the nomination to soon-to-be- President-elect Richard Nixon.

Nevertheless, bipartisan opposition to Fortas's elevation was substantial and the filibuster did ensue. The filibuster itself was controversial, as some Republicans, such as Nixon himself, believed that Fortas should receive an up-or-down vote as a matter of principle. That would have been my position at the time. And it is my position now. Senators persisted, and on October 1, a cloture vote failed by a margin of 45 to 43. Twenty-four Republicans and nineteen Democrats voted against the cloture motion, with 10 Republicans and 35 Democrats in favor of cutting off debate. President Johnson then withdrew the nomination.

Now let me chat a little bit about the effect of the Fortas filibuster on future Supreme Court battles.

After the Fortas filibuster, the Senate rejected outright two of President Nixon's nominees to the Supreme Court, Clement Haynsworth-- that was on a vote of 45 to 55--and G. Harold Carswell--on a vote of 48 to 51. But neither nominee faced a filibuster attempt despite the close votes. The Fortas affair is, therefore, especially important for what it did not lead to: a pattern of blocking by filibuster controversial judicial nominees.

That refusal to block nominees by filibuster is most dramatic and important in the context of the Supreme Court. The Supreme Court nominations that most divided the Senate since the Haynsworth and Carswell defeats were those of William Rehnquist--in 1972 to the Court, and in 1986 to be Chief Justice--and Clarence Thomas in 1991.

Rehnquist's nomination to be Associate Justice provoked considerable controversy and division within the Senate, but he nonetheless received a full Senate vote after but a few days' debate. The same was true in 1986, when he was nominated to become Chief Justice.

During Clarence Thomas's hard-fought nomination battle of 1991, outside activist groups urged Justice Thomas's Senate opponents to filibuster his nomination, but Senate Democrats, such as then-Judiciary Chairman Joseph Biden, and leading Thomas opponent Senator Howard Metzenbaum, balked. Former Judiciary Committee Chairman Patrick Leahy publicly declared himself ``totally opposed to a filibuster,'' adding, ``We should vote for or against [Thomas].'' I commend my colleague for that. He was right then, and he would be right today to do the same. No filibuster was attempted, and Justice Thomas was confirmed 52 to 48.

As is well known, President Clinton's nominations of both Ruth Bader Ginsburg and Stephen Breyer sailed through the Senate with minimal debate and no filibusters. Justice Ginsburg was confirmed 96 to 3, and Justice Breyer was confirmed 87 to 9.

Now I want to make the point that lower court nominees have never been blocked by filibusters.

Given the Senate's general unwillingness to filibuster nominees--even Supreme Court nominees--it is surprising that the Senate has never blocked by filibuster a nominee to any lower court. Furthermore, the Senate has never blocked--by a partisan filibuster--any judicial nominee, including Justice Fortas. The only successful rejection by filibuster was the aforementioned case of Justice Fortas, which was clearly bipartisan. Thus, there is no historical example of a filibuster conducted solely by one party that denied the President his judicial nominee--until now. This is the first time in the history of this country. It is amazing to me that my colleagues on the other side are so blatant about it.

Now, there have been recent, what some people have called, quasi- filibusters of President Bush's judicial nominees.

During the Democratic control of the Senate during 2001 to 2002, only 17 Bush circuit court nominees reached the floor for votes. In three of the cases where they did--the nominations of Julia Smith Gibbons, Richard B. Clifton, and Lavenski R. Smith--cloture motions were filed, and the motions easily carried. However, none of those cloture votes was responding to a genuine effort to filibuster a nominee. Rather, cloture motions were filed as a Senate time-management device-- certainly in the Clifton and Gibbons matters--or in response to a small number of Senators who wished to force the cloture vote to draw attention to another issue unrelated to the nominee--such as in the case of nominee Smith.

Now, despite a Republican majority during 6 years of President Clinton's term, no judicial nominee was ever deprived of a vote on the Senate floor because of a floor filibuster of the nomination.

Many Senators may recall the controversy over President Clinton's nominations of Marsha Berzon and Richard Paez to the U.S. Court of Appeals for the Ninth Circuit. Although most Republican Senators opposed their confirmations, the majority of Republican Senators also opposed any effort to prevent the full Senate from voting on their nominations. Debate on each nomination lasted only 1 day. These were very liberal, some thought activist, nominees, and yet the debate lasted 1 day. We are now on our 11th, I think--10th or 11th--day on this debate.

So debate on each nomination lasted only 1 day, and a majority of Republicans joined all Democrats in supporting cloture motions for debate on each nomination, including over 20 Republicans who would eventually vote against confirmation and a majority of the Republican members of the Judiciary Committee.

In neither case did Republicans mount a party-line filibuster effort to prevent voting on any nominee. Indeed, Majority Leader Lott filed the cloture motions for the above debates.

The situation was similar in 1994, when some Republicans voiced objections to President Clinton's nomination of H. Lee Sarokin to the U.S. Court of Appeals for the Third Circuit. A majority of Republicans supported a cloture motion after a relatively brief period of debate, and cloture was invoked by a vote of 85 to 12. It was clear it was a time-management device. It was not a filibuster. Judge Sarokin was then confirmed by a vote of only 63 to 35.

The only judge nominated by President Clinton who faced a partisan filibuster was Brian Theadore Stewart, a nominee to the Federal District Court in Utah. However, it was the Senate Democrats--not Republicans--who filibustered this Clinton nominee in protest over purported delays in bringing other judicial nominees to the floor. A cloture motion was voted upon on September 21, 1999, and it failed--by falling short of 60 votes--by a vote of 55 to 44,

with all Democrats except Senator Moynihan opposing cloture. But once again, the Democrats' objection was not to Judge Stewart himself, who has since proven to be an excellent judge on the bench, and on October 5, 1999, the Senate confirmed him by a vote of 93 to 5. So it clearly was not a serious filibuster, even though the Democrats used that for various reasons, none of which related to Judge Stewart.

For all the hand wringing about the ``treatment'' of President Clinton's nominees, one thing is clear: Every nomination taken up for debate on the floor received an up-or-down vote.

Even when Democrats attempted to filibuster Republican Presidents' judicial nominees, those efforts were still unsuccessful, as a substantial majority of Senators resisted using the partisan filibuster as a means to block judicial nominations.

When President Bush nominated Edward Carnes to be a judge on the U.S. Court of Appeals for the Eleventh Circuit, in 1992, many Democrats opposed the nomination on the merits, in particular because of his past prosecution of death penalty cases.

Aware of this opposition, the Senate agreed by unanimous consent to 2 days of debate, with a cloture vote to follow. The debate proceeded, and the cloture motion carried by a vote of 66 to 30, with 24 Democrats joining 42 Republicans to close the debate. The Senate proceeded immediately to confirm Judge Carnes by a vote of 62 to 36.

I hope my friends on the other side will realize that they have raised a big fuss here. They certainly got their points across-- whatever those points are--whether valid or invalid. It is time to vote on the nomination.

A similarly close cloture vote occurred in March 1986 when the Senate considered President Reagan's nomination of Sidney Fitzwater to be a Federal district court judge in Texas. Many Democrats opposed Judge Fitzwater on the merits and after a few days' debate, Majority Leader Dole filed a cloture motion which, by unanimous consent, was to be voted on the next day the Senate was in session. That cloture motion prevailed, 64-33, with the support of 12 Democrats. The Senate proceeded immediately to confirm Judge Fitzwater by a vote of 52-42.

The only other judicial nominee of President Reagan's to face a cloture vote was J. Harvie Wilkinson to the U.S. Court of Appeals for the Fourth Circuit. Many Democrats opposed the nominee and filibustered the nomination. An initial cloture motion failed on July 31, 1984, 57- 39, because some Senators argued that additional information had arisen since Judge Wilkinson's original Judiciary Committee hearings and that further investigation was necessary. Judge Wilkinson returned to the Judiciary Committee on August 7, his nomination was returned to the floor of the Senate, and a second cloture motion prevailed on August 9 by a vote of 65-32. The Senate then proceeded immediately to confirm Judge Wilkinson by a vote of 58-39.

It is apparent that Democrats historically have been more willing than Republicans to vote against cloture motions and to attempt to prevent votes on Republican judicial nominees. In other words, they have been more than willing on occasion to filibuster Republican nominees. Apparently not in true filibusters, however. However, it is important to note that even in the cases above, many Democrats found the filibuster process inappropriate in the judicial nominee context and insisted upon full Senate votes.

Senators, Led by Republican Gordon Humphrey and Democrat Robert Morgan of North Carolina, Filibustered the nomination of Justice Stephen Breyer to be a judge on the U.S. Court of Appeals for the First Circuit in late 1980. Their objection was not to Mr. Breyer's qualifications--indeed, this is the same Stephen Breyer currently serving as a Supreme Court Justice--but to the process by which he was nominated and reported to the full Senate. The Senators argued that the Judiciary Committee had improperly reported out Mr. Breyer's nomination without proper committee approval and without regard to many other earlier-nominated persons waiting for hearings. After forcing the Judiciary Committee to reconvene and approve the nominee through proper procedures, the Senate invoked cloture, 68-28, and confirmed Mr. Breyer, 80-10.

So it clearly was not a filibuster, a real filibuster.

This history demonstrates that while some nominees have been filibustered and cloture petitions filed in those and other situations, the only nominee ever to have been defeated or withdrawn after a filibuster was Abe Fortas in 1968. Even key Democrats who opposed Republican nominees voted for cloture. So, if a partisan filibuster of Miguel Estrada resulted in his nomination being defeated, it would be unprecedented.

A partisan attempt to block Mr. Estrada's nomination by filibuster would contradict the repeated and emphatic statements of Democrats who have served for a long time in positions of special responsibility in these matters. I am calling on those Democrats to continue to be responsible, not irresponsible. To vote against cloture in this case I think would be irresponsible because they know how serious this is. Consider the past comments by Senators regarding judicial and executive nominees:

Senator Leahy, past Judiciary Chairman and current Ranking Member said:

If we want to vote against somebody, vote against them. I

respect that. State your reasons. I respect that. But don't

hold up a qualified judicial nominee. . . . I have stated

over and over again on this floor that I would . . . object

and fight against any filibuster on a judge, whether it is

somebody I opposed or supported; that I felt the Senate

should do its duty.

That was on June 18, 1998, right in the Congressional Record.

The distinguished Senator from Vermont again:

I have said on the floor, although we are different

parties, I have agreed with Gov. George Bush, who has said

that in the Senate a nominee ought to get a [floor] vote, up

or down, within 60 days.

That was on October 11, 2000.

The distinguished minority leader, Senator Daschle, had this to say:

As Chief Justice Rehnquist has recognized: ``The Senate is

surely under no obligation to confirm any particular nominee,

but after the necessary time for inquiry it should vote him

up or vote him down.'' An up-or-down vote, that is all we ask

for [Clinton judicial nominees] Berzon and Paez.

That was on October 5, 1999.

The distinguished Senator from Delaware, a past Judiciary Committee Chairman said:

But I also respectfully suggest that everyone who is

nominated ought to have a shot, to have a hearing and to have

a shot, to have a hearing and to have a shot to be heard on

the floor and have a vote on the floor. . . . It is totally

appropriate for Republicans to reject every single nominee if

they want to. That is within their right. But it is not, I

will respectfully request, Madam president, appropriate not

to have hearings on them, not to bring them to the floor and

not to allow a vote. . . .

That was on March 19, 1997.

The distinguished Senator from Massachusetts, also a past Judiciary Committee Chairman:

The Chief Justice of the United States Supreme Court said:

``The Senate is surely under no obligation to confirm any

particular nominee, but after the necessary time for inquiry

it should vote him up or vote him down.'' Which is exactly

what I would like.

That was on March 7, 2000.

Again, Senator Kennedy, the distinguished Senator from Massachusetts said on February 3, 1998:

We owe it to Americans across the country to give these

nominees a vote. If our Republican colleagues don't like

them, vote against them. But give them a vote.

That is exactly what I would like.

The Senator from California, Ms. Feinstein, a distinguished member of our Judiciary Committee on September 16, 1999, said:

A nominee is entitled to a vote. Vote them up; vote them

down.

There are others but I will leave it at that. Absent from any of the current debate over Miguel Estrada is any explanation as to why he should be denied the floor vote that every one of President Clinton's judicial nominees who reached the floor received.

The rejection of Abe Fortas to serve as chief Justice of the United States marked the first and only time the Senate has rejected a President's judicial nominee by way of a filibuster. Yet, Miguel Estrada presents none of the concerns that caused a bipartisan coalition of Senators to block Justice Fortas's elevation to Chief Justice. Mr. Estrada is an outstanding nominee, fully qualified for this judgeship, who

has committed to enforce the Constitution as interpreted by the Supreme Court, not to interpose his personal political views into his jurisprudence. The American Bar Association unanimously gave him its highest rating of ``well-qualified''; and Democrats such as President Clinton's Solicitor General, Seth Waxman, and Vice President Gore's attorney, Ron Klain, have praised his intellect, judgment, and integrity.

But the stakes here are much greater than the fate of a single judicial nominee. At issue is whether the Senate should reinterpret its constitutional advise and consent obligation to require 60 rather than 51 votes to confirm a judicial nominee. This is a position that the Senate has never taken in the context of lower court nominees, and Republicans especially have eschewed. To adopt this new standard would fundamentally alter the balance of power between the Executive and the Senate in the judicial confirmation process and would seriously erode the comity that generally has existed between the two branches in the past.

For the life of me, I don't understand why my colleagues on the other side are delaying this explosive issue like they are. They are just asking for it. I think our side is far more capable of conducting filibusters than they are. I think the past proves it. And we have won on them. I think they are totally capable of conducting this filibuster if they ignore all the precedents, if they ignore all the history, if they ignore the Constitution, and the unconstitutionality of what they are doing, they ignore the future and what is going to happen when Democrat nominees become President. I think they are making a tremendous mistake to even go this far. I call upon my colleagues, at least I call upon the reasonable people on the other side, I call upon the people who have good faith in the Senate, who believe in the process, who really want to have a fair deal in judicial nominations, who really don't want to have this whole system break down, although it has been called broken by no less than a former Solicitor General, Walter Dellinger, one of the four who basically have said Miguel Estrada is a good man, and who basically has said these documents should never be given to the legislative branch because they are privileged executive documents--Democrats said that. I think it is very important my colleagues, the ones who are clear thinkers on the other side, the ones who really believe in this institution, the ones who really believe in the judicial nominations process, the ones who really can see the future and not just the instant, that they stop this filibuster and give an up-or-down vote, voting whichever way they want, on Miguel Estrada.

Mr. President, I ask unanimous consent that the distinguished Senator from North Dakota, Mr. Dorgan, be permitted to speak, and then immediately following Senator Dorgan, Senator Specter from Pennsylvania be recognized to speak.

I ask unanimous consent that the distinguished Senator from

Ohio speak next for 15 minutes, the distinguished Senator from Oklahoma speak after that for 5 minutes, and then I be yielded the floor.

Mr. President, I have been here 27 years. I have been on the Judiciary Committee 27 years. I have literally seen 1,500, 1,600 judges confirmed--most all of them without even a debate, just by unanimous consent. I have seen very few judges given a rough time and hardly anybody given the rough time that Miguel Estrada is being given here on the floor. I have never seen anybody in the history of the Senate--in all of my studies of the history the Senate--filibuster a circuit court of appeals nominee--never, not once. I have never seen even where there have been cloture votes for management purposes or whatever else--certainly not a filibuster purpose--I have never seen a circuit court of appeals nominee pulled down because of a filibuster-- never.

Why this double standard? Why is Miguel Estrada, with all his credentials--and on the other side of the aisle they admit he has exceptional credentials, including their gold standard, the American Bar Association's most well qualified standard, the highest rating anybody can possibly have--why is it that this double standard is being used against this Hispanic nominee to one of the most important courts in the country, this Hispanic nominee who is by all intents and purposes and by all measure the embodiment of the American dream?

I would be delighted to without losing my right to the floor.

Of course not. They could not. Mr. Estrada graduated magna cum laude from Columbia University after coming from Honduras. He was 4 years old when his parents divorced in Honduras. He was 17 when he came to this country, speaking very little English. He taught himself English. He graduated magna cum laude from Columbia University, and then he graduated magna cum laude from Harvard where he was an editor of the Law Review--one of the highest positions you could have in the law school. Of course not. There is no way they can say he doesn't have the academic credentials to do this job.

Yes, without losing my right to the floor.

Of course not. Few lawyers have. Few nominees for judgeships have in the history of this country. That is what makes me so livid--to see lesser legal minds writing partisan letters suggesting he is not a qualified nominee. It drives me nuts, to be honest with you. Few lawyers in America have argued 1 case before the Supreme Court, let alone 15.

By the way, Miguel Estrada has a handicap. He has a disability. He has a speech impediment. Yet he has risen to the top of the legal profession in appellate advocacy and oral advocacy with a speech impediment. Nobody can match that.

Yes, without losing my right to the floor.

I do not recall anyone who has had this difficulty--in fact, anyone with that type of a rating who has not gone through the Senate once reported by the Judiciary Committee, and the fact that the Democrats are doing this now is outrageous.

Yes, without losing my right to the floor.

No. How could it be?

Without losing my right to the floor.

I agree with the distinguished majority leader that there is a double standard being applied to Miguel Estrada. I don't want to particularly conjecture at this point as to the motive. But a double standard is generally being applied, and it is not fair.

Without losing my right to the floor.

Not a true filibuster. There have been cloture votes as a Senate management device but not a true filibuster. There has never been a true filibuster used against a circuit court of appeals nominee, no, and certainly not against a circuit court of appeals nominee to the Circuit Court of Appeals for the District of Columbia.

Yes, without losing my right to the floor.

I have never been more concerned. We are in danger of actually breaking the system. We are in danger of doing lasting harm to the Senate, its procedures, and to the President of the United States, and to the judiciary; to the executive branch because, if this filibuster goes through, that means that on controversial nominees--and my colleagues on the other side treated all of the Bush circuit court nominees as controversial--that means you have to have 60 votes. That would apply to both sides of the floor should they get the Presidency. It is a very dangerous thing and something we just definitely should not allow to come to fruition.

Without losing my right to the floor.

Absolutely. The tactic is to demand documents that they know the administration cannot give because the precedent would be so earthshaking because these are privileged documents, and then filibustering and claiming they are filibustering because they can't get the documents. And when they don't get them--it is just typical of what they have been doing--they flaunt what really is proper procedure.

Then they have not only asked for documents but his record, Miguel Estrada's recommendations while at the Solicitor General's Office for appeals, certiorari matters, and amicus curiae matters.

Never in the history of this country has anyone given those documents out of the executive branch to the Senate or to anybody else. And they should not, because it would deter and affect and, in many respects, destroy the work of the Solicitor General, the attorney for the people of this country.

Yes, without losing my right to the floor.

Absolutely. Not only did they hold one of the longest hearings in history for a circuit court appeals nominee--conducted by them, which they said was fair, where they had the privilege of asking every question they wanted or even extending the hearings if they did not believe they got answers to those questions--but afterwards they had a right to submit written questions.

And, by the way, only two people did, the distinguished Senator from Illinois and the distinguished Senator from Massachusetts, Mr. Durbin and Mr. Kennedy.

By the way, I do not believe Senator Durbin was even there during the hearings to ask questions. And yet I have seen, time after time, the distinguished Senator from Illinois take the floor and talk about the nonanswers that were supposedly given.

I refer all of my colleagues to the speech made earlier by the distinguished Senator from Tennessee Senator Alexander. He blew that contention that Miguel Estrada did not answer these questions into oblivion. I recommend everybody in this country read that speech because he actually showed the A-plus answers that Miguel Estrada gave to Democrat and Republican questions. And they were thorough. They were answers that would make anybody proud. They were answers that any judicial nominee would be proud to do. And, frankly, he answered them better than almost any judicial nominees I have seen in the last 27 years.

Yes, without losing my right to the floor.

No question about it. They were given the right to submit additional written questions, and only two Senators did.

By the way, the administration has even gone further than that. They said: Look, we will present Miguel Estrada to any Democrat Senator who wants to ask him questions in their personal office on a personal basis. They have gone to great lengths for this wonderful nominee.

Why is it--I ask my distinguished friend and all others who are listening--that this Hispanic nominee is being given the business like he is? Why is it that we have this double standard? It is one of the most difficult things for me to see. It is one of the most difficult things to understand.

Without losing my right to the floor.

He answered the questions. Now, he may not have answered them the way some of my colleagues wanted him to. It was apparent they were trying to get him ensnarled. It reminds me of the Biblical days when the pharisees would try to ensnarl Jesus Christ. They would ask these questions, trying to ensnarl Him and make Him look ridiculous in front of the people.

It was almost that bad in committee. He answered every question. Unfortunately, for them, he answered them precisely the way most Democrat nominees did; and that is, instead of going into how he would rule on matters that would come before him later in the court, he basically said: I will obey the law. I will sustain the law. I will follow the law regardless of my own personal views.

That is what the Democrat nominees have said. And that is a correct answer. And it is a very good answer. His answers were more literate, more scholarly, more persuasive, in many of the questions that were asked than I have seen in most nominees.

Again, I ask, why the double standard in this case? Why don't we recognize how great this young man is and allow him the same privileges that we have given to countless Democrats during the Clinton years when we confirmed 377 Clinton nominees to the Federal court--the second all- time highest confirmation rate in history, only 5 below the highest, and that was Ronald Reagan, who had 382?

Without losing my right to the floor.

That is correct.

Without losing my right to the floor.

There is no way they would have, no way in this world. In fact, there are plenty of Democrats, and I might add, partisan Democrats, who do not act in a partisan way--and neither do the Republicans--on that standing committee. In fact, if I recall it correctly, there are more Democrats on the committee than Republicans. And they all unanimously gave Miguel Estrada the highest rating that the American Bar Association can possibly give.

Keep in mind, my colleagues on the other side of the floor said that the American Bar Association rating is the gold standard, it is the thing that makes the difference as to why they will vote for people. And ``qualified'' is normally enough to vote for anybody. Here is a man who has been rated unanimously ``well qualified'' by both Democrats and Republicans on the standing committee, who I think are doing a good job on that committee.

I have been critical of the committee in the past, but I think during the last few years of the Clinton administration, and up to today, that they have been doing a good job.

Without losing my right to the floor.

I do not see how any colleague could remain unconvinced of that. He will be. He will follow the law. He has said he will follow the law. He said he would uphold precedent. He said he would do what is right regardless of his own personal beliefs.

That is all you can ask of any of these nominees. And he has answered those questions absolutely accurately, the way the Clinton nominees answered those questions.

Why--again, might I ask--is there a double standard with regard to this Hispanic nominee? Why is there? I cannot see any reason for it.

Without losing my right to the floor.

Well, he worked for both the Clinton administration and a Republican administration. And he got the highest raves and performance evaluations by both administrations, meaning that he worked in a bipartisan way with both administrations. Unfortunately, in order to create a red herring issue that they can hide behind, our colleagues on the other side have demanded his recommendations while at the Solicitor General's Office--the attorney for the U.S.A., for us citizens, the private, privileged memoranda, his recommendations on appeals on matters involving certiorari and on matters involving amicus curiae. There has never been such a move. To my knowledge, the Justice Department, the Solicitor General's Office has never--nor will it ever--give up those documents because they are privileged executive branch documents.

I cannot help but believe our colleagues on the other side know as much about that as I do. They know that is absolutely accurate, and I am just suggesting this is a red herring issue so that they can hold up this nominee with a filibuster, of all things--the first in history.

Let me just go further on that because it is a very important issue, the only issue they seem to have. I hate to say it, but some of our friends in the media ignore the fact that the seven living former Solicitors General wrote a letter to Chairman Leahy that says this:

We write to express our concerns about your present request

that the Department of Justice turn over appeal

recommendations, certiorari recommendations, and amicus

recommendations that Miguel Estrada worked on while in the

Office of the Solicitor General.

As former heads of the Office of--

By the way, of these seven former Solicitors General--the only living ones--four of them, or better than 50 percent, are Democrats. Three he worked for. They said:

As former heads of the Office of the Solicitor General

under Presidents of both parties, we can attest to the vital

importance of candor and confidentiality of the Solicitor's

decisionmaking process.

I will read a couple other thoughts here:

It goes without saying that when we made these and other

critical decisions, we relied on frank, honest, and thorough

advice from our staff attorneys, like Mr. Estrada. Our

decisionmaking process required the unbridled, open exchange

of ideas, an exchange that simply cannot take place if

attorneys have reason to fear that their private

recommendations are not private at all, but vulnerable to

public disclosure. Attorneys inevitably will hesitate before

giving their honest, independent analysis if their opinions

are not safeguarded from future disclosure.

High-level decisionmaking requires candor, and candor, in

turn, requires confidentiality.

Remember, four of these seven are Democrats. The other three are Republicans. All of them are together in this, though.

Any attempt to intrude into the office's highly privileged

deliberations would come at the cost of the Solicitor

General's ability to defend vigorously the United States

litigation interest, a cost that also would be borne by

Congress itself. Although we proudly respect the Senate's

duty to evaluate Mr. Estrada's fitness for the Federal

judiciary, we do not think that the confidentiality and

integrity of internal deliberations should be sacrificed in

the process.

This is signed by Seth B. Waxman, on behalf of himself, Walter Dellinger, Drew Days--three Democrats--Kenneth Starr, Charles Fried, and Robert H. Bork, all Republicans, and Archibald Cox, of course, a Democrat--four Democrats and three Republicans. That speaks for itself. I hope it puts to bed this phony red herring argument that has been lodged by the other side. It is phony, wrong, and should not be given the time of day. I call on the media to start being responsible with regard to these matters.

I will, without losing my right to the floor.

My recollection is that he was not at the hearing and he didn't ask any questions. He and every Democrat had a right to do it, and it went all day long. Yet the Senator seems to be trying to give the impression that he knows everything that went on at the hearings. True, he could have read the transcript, but he had every chance to ask questions. Why wasn't he there? Why didn't he ask the questions? Why is he in the Chamber criticizing Miguel Estrada and criticizing the process and using this phony excuse with regard to the confidential, privileged memoranda of the Justice Department along with his colleagues?

I don't blame any one person. They are all to blame for using these kinds of phony arguments. I think the media is to blame--some of them. I have 57 different editorials, 50 of which are for Mr. Estrada.

Not just yet. You mentioned the Chicago Sun-Times. My staff just gave me that. You know, it is interesting--I will quote a couple lines.

Who can look at the spectacle of the 108th Congress and not

believe that justice and the basic operation of the Nation is

being sacrificed on the altar of ugly obstructionist,

partisan politics?

That is the Chicago Sun-Times, which is not known as a conservative newspaper, to my knowledge.

Let me give one other. I am quoting a couple sentences. I will put the whole editorial into the Record, if I can. I ask unanimous consent that this be printed in the Record.

``Our legal system could not and cannot be held hostage to the political nitpicking''--which is exactly what is going on here. I admit that my distinguished colleague from Illinois did take the time to submit questions. None of the others did, except Senator Kennedy. All of them are complaining that he didn't answer the questions. I will say that my friend and colleague from Illinois did take the time to submit written questions. He deserves credit for that. But as far as I know, I don't believe he asked any questions at the hearing.

Yes, without losing my right to the floor.

I am. Many editorials are complaining and pointing out that this is terrible politics. It is a terrible thing to do. It is a double standard. You quoted the Freeport Journal-Standard. Let me quote one paragraph:

If there is one example today of the worst in American

politics, it is the decision by Senate Democrats to

filibuster the nomination of Miguel Estrada to the U.S. Court

of Appeals for the District of Columbia. President Bush's

description of the move as ``shameful politics'' is generous.

It is a downright repugnant abuse of the Constitution.

The rest of the editorial is good as well. I ask unanimous consent that it be printed in the Record.

I will be happy to yield for a question without losing my right to the floor.

It was raised in a question to me.

I will take the Senator's word on that. There is no question the distinguished Senator did submit written questions which were answered, but I also answer the Senator that this hearing went on all day. It was an extraordinarily long hearing, and if the Senator had any questions that he wanted to ask, I think it was his duty and his obligation to get there and ask them, by the way, because we can all find time during the complete day's hearing to come to the committee.

I am not trying to find fault. What I am saying is that it is one thing to be able to speak from personal experience of having been there and asked questions; it is another thing to continually come to the floor and berate Mr. Estrada for not answering questions when, if you refer to the remarks of the distinguished junior Senator from Tennessee earlier this evening, that just is not true. The fact is, he answered the questions.

I will say this--and I compliment my dear colleague from Illinois--my colleague from Illinois did submit written questions, but there were answers to those written questions as well. I have to say, my colleague from Illinois was 1 of 2 out of 9 Democrats--actually 10 at the time--who submitted questions. All of a sudden to come here with crocodile tears----

Let me finish my remarks and, of course, I will. But to come here with crocodile tears and tell us that he just did not do enough and he did not answer the questions when he did, in fact, do so, and to misrepresent, as some have done--I am not saying the distinguished Senator from Illinois because I have not heard all of his remarks; people will have to judge that for themselves. But to come here and make those kinds of accusations when this man had one of the longest hearings, answered many more questions than almost any Clinton circuit court of appeals nominee had to answer when I was chairman, and to act like he does not deserve to have an up-or-down vote on the Senate floor, which we gave to every Clinton nominee, I think is a little bit beyond the pale, and I think that is what has been happening around here.

Personally, I resent it, on behalf of the United States of America and on behalf of this Hispanic nominee who has all of these qualifications which I believe even the Senator from Illinois has acknowledged.

Without losing my right to the floor.

I recall that they were lengthy, and I recall that Senator Schumer from New York chaired the hearing. I did not chair the hearing. He could have set up any kind of rounds he wanted to, and, as I understand it, everybody had a full opportunity to ask the questions they wanted, both Democrats and Republicans.

If I can just continue, the Senator himself said Mr. Estrada has not answered any questions, and the Senator from Illinois at least implied that from time to time.

Mr. President----

I am not accusing my colleague from Illinois of anything other than based upon whatever he said on the floor.

What I do want to make clear is I believe the distinguished Senator from Illinois and others have been saying that Mr. Estrada did not answer the questions. Let me recall, in case it might have slipped the mind of the distinguished Senator, ``Follow-up Questions for Miguel Estrada, Senator Richard J. Durbin, Senate Judiciary Committee.'' Let me read a few of these.

One:

During your nominations hearing, Senator Edwards asked

whether you consider yourself a ``strict constructionist''

when it comes to interpreting the Constitution. You described

yourself instead as a ``fair constructionist.'' How do you

distinguish these two concepts? In what ways are they

similar? In what ways are they different?

That is an intelligent question. I commend my colleague.

The response:

I do not believe that a legal text, such as the

Constitution, should be construed ``strictly'' (i.e.,

grudgingly) or ``loosely'' (i.e., without careful regard to

the text's language so as to achieve a meaning beyond that

which the text will fairly bear). In my view, the

Constitution, like other legal texts, should be construed

reasonably and fairly, to give effect to all that its text

contains. Although the phrase ``strict construction'' is

often used to reflect a legal philosophy that simply gives

appropriate consideration to the text of the Constitution,

the phrase is also sometimes used in a pejorative fashion to

describe an approach to interpretation that does not fairly

reflect the meaning that the words, history, and background

of the text will fairly bear. For that reason, I avoided

using that phrase in response to Senator Edwards' question.

The distinguished Senator from Illinois asked if the current members of the Supreme Court--this is written because he did not ask oral questions during the hearing:

Of the current members of the Supreme Court, who would you

characterize as a strict constructionist? Who would you

characterize as a fair constructionist? How would you

characterize the remaining Justices?

Response:

Although the current members of the United States Supreme

Court sometimes emphasize different interpretive tools--

giving, for example, greater or less prominence to text,

history or precedent in a particular case--I believe each of

them attempts in good faith to give a fair reading to the

constitutional provisions that come before the Court. For

that reason, I would characterize each member of the current

Court as a ``fair constructionist.''

The question again from the distinguished Senator from Illinois:

In terms of judicial philosophy, please name several

judges, living or dead, whom you admire and would like to

emulate on the bench.

This is what Mr. Estrada responded:

There is no judge, living or dead, whom I would seek to

emulate on the bench, whether in terms of judicial philosophy

or otherwise. If I am fortunate enough to be confirmed, I

hope to seek aid from whatever legal materials may shed light

on the problem before me, and thus to reach the correct

answer to that problem to the best of my abilities, without

any preconception about how some other judge might approach

the question.

I have been fortunate to know several great judges and

justices in my lifetime. I admire Judge Amalya Kearse and

Justice Anthony Kennedy, for whom I was a law clerk. During

my time as a law clerk for Justice Kennedy, I also got to

work with retired Justice Lewis F. Powell, Jr., for whom I

developed a great deal of affection and admiration.

Amalya Kearse was a Carter appointee to the Second Circuit Court of Appeals. In other words, this man has admired a Democratic judge. Anthony Kennedy is, of course, considered a moderate conservative on the Supreme Court. He served him as a clerk, and admires him. Then he admires Lewis F. Powell, Jr., who is considered one of the leading moderate judges during his lifetime on the Court.

I could read all of these questions and answers, and I think any fair person would say he gave some very good answers that would pass almost any professorial, jurisprudential, legal, or other analysts' reviews.

I ask unanimous consent that the followup questions for Miguel Estrada by Senator Richard J. Durbin and his answers be printed in the Record.

Mr. President, I do not want to read them all, but I will if I have to, and I think the distinguished Senator from Illinois ought to be fair.

These answers are very competent, good answers by a very competent, well-qualified, terrific nominee for the Circuit Court of Appeals for the District of Columbia, the first Hispanic nominee in the history of this country. I suggest you read your own answers to your own questions, and I think you will be pretty impressed with him.

(Mr. ENSIGN assumed the Chair.)

Without losing my right to the floor.

Of course I will not. First, I have the floor and I am retaining the floor because I have questions from both sides. I am willing to take questions from your side. I am not ignoring those. It is about time the American people hear the truth. We have heard enough rubbish. Now we should hear the truth. In all honesty, that is what we are going to do this evening.

I have heard a lot of ridiculous remarks over there that do not really deserve listening to. So we are going to hear some remarks tonight that deserve being listened to, and we are going to get the facts. This unmitigated bullcorn that he has not answered questions is exactly that.

I think the distinguished Junior Senator from Tennessee tore the hide off the Democrats tonight. I was so doggone impressed, I want to compliment my colleague. But he was not the only one. I have had colleague after colleague stand up over here and tell the truth, and I have had colleague after colleague over there hide behind these phony issues they have raised. They are phony, and it is a double standard. I am ashamed of some of the arguments that have been made over there, absolutely ashamed, and every Hispanic in America ought to be ashamed that they would stoop to this level against a qualified nominee. But not just every Hispanic, every American who wants a great judiciary ought to be outraged by what is happening.

I have never seen this type of treatment of anybody who has been nominated to a circuit court of appeals. I have seen some pretty shabby treatment in my day for some of the people who have been appointed by Republican Presidents, but nobody has had to endure the calumny and the downright despicable comments that this Hispanic nominee, with all these qualifications in the world, has had to endure. It is disgusting.

I know there are people on the other side who have clear thinking who ought to be disturbed by this, and I hope they will rise up in that caucus and say, we have had enough of this. We should not be treating any American this way, let alone somebody like this Hispanic.

Not at this point. I would like to finish what I am saying.

Without losing my right to the floor, I am happy to yield for a parliamentary inquiry.

I withdraw the word. I ask unanimous consent that that word be withdrawn.

Even though I think it was probably the right word to use.

I am happy to yield to the Senator from Virginia without losing my right to the floor.

Without losing my right to the floor.

I was not aware of that. But I have to say, I served with Senator Harry Byrd. He is a marvelous human being. He was an Independent who voted mainly with the Democrats, but a very fair, honorable, decent man, one of the finest people who ever served. I agree with the editorial 100 percent.

Without losing my right to the floor.

No one before this nominee, to my knowledge--and I believe I am accurate, and we have checked it--no one has ever asked for appeal recommendations, certiorari recommendations, and amicus curiae recommendations. The reason they never have is that it is--I will use the term--despicable to ask for them because they know they cannot be given; that no self-respecting Attorney General or President would allow that to happen because that is a direct intrusion into the deliberative process of the Solicitor General's Office, the attorney for the people. Nobody else has ever done that before.

So we have to ask, why is it being done? And why would seven former Solicitors General, four of whom are Democrats, come out and say this cannot be done? Because they are right and my colleagues on the other side are wrong. They know they are wrong. I think that was geared to try to create a red herring issue so they could say, oh, my goodness, we do not know enough about him.

It took them 505 days to hold a hearing. I presume in that 505 days, knowing how the Judiciary Committee works--and I really know how it works--every Democrat staffer assigned to that was going through every document this man has ever had anything to do with. They scrutinized him like they scrutinize any criminal, and certainly he is not that. But they scrutinized him. That is not a bad thing. I am not criticizing them for that. They know everything about Miguel Estrada that is knowable, and there is a lot. The transcript of the hearing is that big. Gee whiz, they act like there were not any questions or answers. Are you kidding? I think they think sometimes they can say these things and the American people are just going to buy it. Well, we are going to make sure they do not buy it because it is not true. That is what is killing me, is that my colleagues are saying things that just simply are not true if one looks at the Record.

Never before have those three areas of recommendations been asked for. They cite Robert Bork. They cite Justice Rehnquist. Those materials that were given were very limited. They were not anywhere near as sensitive as these. They were not necessarily privileged, although I believe some of them were given just because they were very limited requests. These are broad requests of documents that literally should never be given to any other branch of government, if we want a functioning Solicitor General's Office.

This is a game being played. It is a double standard and very unfair to this nominee. I think my colleagues are pointing that out in no uncertain terms.

Without losing my right to the floor.

I have talked to a wide variety of people today and every day. I have been on radio shows talking about this. I have been on Hispanic radio shows, Latino radio shows. They are getting very angry. And they should.

I am calling upon all Democrats, Independents, and Republicans, as well, to come out of the woodwork and let our friends on the other side of the floor know this will not last. They resent this. There is a price to be paid for this type of obstruction, which is what it is. This is unfair obstruction that we did not do to their nominees.

I cannot understand for the life of me why they are doing it to this Hispanic nominee with all these credentials, with the gold standard highest rating of the American Bar Association--their gold standard by their own definition. I do not understand it personally. I cannot see one reason to do it. People are getting very upset. I am getting thousands of calls saying: Hang in there; do not let them get away with this or the whole judiciary will be hurt; the whole judiciary will be hurt if this continues.

If we have a filibuster that continues like this, our colleagues on the other side are risking the complete breakdown of this process, the complete breakdown of the judicial nominating process, something that we have never done on our side.

Even when there have been cloture votes where they were not true filibusters but still cloture votes, their nominees got votes up and down.

If that is what they are about, I will shut up and not say much more. That is all we are saying. Just vote. All this complaining. Yesterday, I saw the minority leader come on the floor and say we should be getting about all the important business of the country. There is nothing more important in this country than having a fair judiciary. It is the judiciary that has saved the Constitution through all these years. This is a very important nominee and a very important court. If we do not do what is right, everything else that is important might not be as important in the future because we will not have a Constitution to abide by and live by that has kept this country free. This is very important.

To come from that side, when last year for the first time since the Budget Act was enacted, they did not pass a

budget because they had to face what we always did--it is tough to do it. They were not willing to put up with it and do the tough things, nor did they pass the majority of the appropriation bills. We had to wait until we became the majority, and we did it in an omnibus after the first of the year, but only after delays caused by the other side.

It was something I could hardly believe. I said if you want to get to the other important things which we do, too, have a vote up and down like we did for all of your nominees. Why treat this man differently? Why obstruct this nominee? Why play the politics of obstruction? Why be so unfair and why have this double standard?

I am happy to yield to the distinguished Senator from North Carolina, and then I will yield to--

I yield to the distinguished Senator from North Carolina for a question, without losing my right to the floor.

I sure do agree with that. There has not been one substantive argument against this man other than the phony arguments like getting these privileged documents that everyone knows the administration cannot get. There are two reasons for that: They want to embarrass the administration by trying to make the administration look like they are trying to withhold documents that they should give, when they should not give them; and they are trying to defeat Miguel Estrada on what is really a red herring issue.

That particular editorial of the Winston-Salem Journal said: The truth is, the Democrats oppose Estrada because they believe he is too conservative; an unsavory implication is that they believe Hispanics should be liberal.

I think the editorial got it right on the money.

Another truth is, as the Senator said: The Constitution gives Presidents the right to nominate judges and the Presidents usually choose nominees they believe share their political views. If Democrats have a substantive reason for opposing Estrada's nomination, it is past time to produce it. If not, they should let the Senate vote.

I ask unanimous consent the Winston-Salem Journal article be printed in the Record.

I yield without losing my right to the floor.

I don't see how they score political points by filibustering the first Hispanic nominee ever nominated to the court of appeals for the District of Columbia. That is a heck of a way to score political points, unless it is with their really far left people who seem to be in domination of that party right now. They are pleased.

People for the American Way, you have to really be on the left to be with them. In fact, their biggest support comes from Hollywood. Not that we should decry our Hollywood stars as experts on everything. I don't think we should always find them not to be. I am sure they are experts on some things, but they seem to not fully understand what is going on here.

The Press Enterprise, Riverside, CA, editorial says: The Democrats tactic employed last week of filibustering the nomination of Miguel A. Estrada to be the U.S. Court of Appeals for the District of Columbia Circuit is an anything-goes strategy that ought to be abandoned.

And then later: A first step would be to not filibuster nominations like this one.

They say: ``Parties need to deescalate.'' I agree with that.

A first step would be to not filibuster nominations like this one of a well-qualified nominees. He's distinctly an American success story, having immigrated from Honduras, gone to Columbia and Harvard, and served as a clerk to a Supreme Court Justice.

I ask unanimous consent the Press Enterprise editorial be printed in the Record.

Without losing my right to the floor.

I certainly agree. I have heard the distinguished Senator from Illinois say that he should have produced these documents. He has no right to produce them. He personally said I am proud of my work. If they can give it up, I would be proud to have it given up. But he knows they cannot. I believe the distinguished Senator from Illinois knows they cannot give up these documents. Everybody knows that. That is why it is such a phony red herring issue, but it is the only one they really have.

They started off with he has not had any judicial experience. That is the phoniest thing of all, because that means virtually every Hispanic lawyer doesn't have a chance to be on the Federal bench because they have no judicial experience, in spite of the fact that five of the eight judges on the DC Circuit Court of Appeals had no judicial experience before they went on the court.

Why the double standard? Why is it we are requiring this of Miguel Estrada but not of them? Why is it when Republicans ran the committee we didn't have that difficulty? We never raised that phony issue. Why is it raised now?

Without losing my right to the floor.

It is a fact that they were in control. They chaired the hearings. Senator Schumer chaired the hearing at the direction of Chairman Leahy, the chairman. It was one of the longest hearings for a Circuit Court of Appeals nominee I can recall. They asked every question they wanted to. He answered them, and he answered them fairly and well, as I have been showing here tonight, and as the distinguished Junior Senator from Tennessee, I think, showed in detail earlier in the evening. I commend him and ask everybody to read that.

In all honesty, they controlled the whole doggone process. They even said on the floor, even during this debate, that the hearing was fair-- because they conducted it. If it was fair, that means they covered all the questions they wanted answered.

Then we have these phony arguments that he didn't answer the question. Read the remarks of the distinguished Senator from Tennessee, Senator Alexander, this evening and read the transcript. Read the answers to these written questions. I only read a few of them because it more than blew away those phony arguments. Why the double standard? Why the obstruction? Why are we going through this?

I said I would yield to my friend and colleague from Nevada, without losing my right to the floor.

I agree Senator Leahy sent a letter to the Department of Justice asking for these privileged matters that have never been given up before, and will not be given up, and should not be given up; knowing, I think, deep down, that they would not be given up.

I think it is a political game, if you want to know.

That is correct. He doesn't control the Justice Department. He is no longer an employee of the Justice Department. Nor should he ask the Justice Department for these records.

No, it isn't true. I don't believe the Attorney General could. I don't think any responsible Attorney General could release those. If you are saying is it theoretically possible for somebody to disobey the law, the rules, to not live up to the privileged and confidential information, to ignore every aspect of the executive branch of Government--I suppose somebody could say yes. But I can't. I don't think he would have--I don't think the Attorney General has that privilege; no, I don't.

They were completely different documents. They had nothing to do with recommendations for appeals, certiorari petitions, or amicus curiae matters. No. They have never, ever been asked for before, to my knowledge, and they have never, ever been given, nor would they.

By the way, there have been some limited documents given by the Justice Department in some nomination matters, none of them related to what were requested by the Senate Democrats in this matter. And there are only a couple of cases where the Attorney General did allow that.

The other cases, they appeared to have been leaked by friends of Democrats at the Justice Department. So they were not given up by the Justice

Department. We have more than made that case throughout this debate. There is no question about it. And it is just another phony argument. I do not blame my colleague from Nevada for not knowing that. But I think it is time to learn it.

Sure.

I think the Senator is very intelligent.

I am sorry, I missed that.

They were not the same papers, they were not privileged, confidential documents of the order of magnitude that these are.

Let me add, the Clinton nominee--this is a Caucasian, by the way, not a Hispanic. The Clinton nominee, William Bryce, who was confirmed to the Federal circuit in 1994, was an assistant Solicitor General, just like Miguel Estrada. But nobody asked for his memoranda from his time in the Solicitor General's Office. He is one of eight former Solicitor General Office attorneys who have been confirmed at circuit courts without disclosure of their memoranda.

Why the double standard? Why do we do this to the only Hispanic who has ever been nominated for the Circuit Court of Appeals? And why are the Democrats doing this to this Hispanic man? Why are they being so unfair? We never did it. We wouldn't dare do it. The fact of the matter is, I don't think anybody who understands the nature of the Solicitor General's Office, and apparently some on your side don't seem to understand that----

Let me just finish my remarks and I will go to your final question.

Why the double standard? Is there a specific allegation that my colleagues are concerned about for which they want to review these highly confidential documents? If there is, I would like to know what it is. I don't want a fishing expedition, even if we could give them. I don't think there is a good explanation as to why they want these documents. I think that is why everyone who looks at this in fairness views it as nothing but a fishing expedition, which is exactly what it is.

We couldn't get Miguel Estrada any other way, so why don't we go fish through all these documents and find just something to pin our antagonism towards him on, so we do not look so doggone bad? Frankly, I think the arguments on the other side look terrible.

Let me yield for one final question by the distinguished minority whip, and then I will yield to someone on this side.

I want to do this in fairness.

Can I correct the Senator? They were not Solicitor General memoranda. They had nothing from the Solicitor's Office.

Does the Senator have a question for me?

Let me answer in this way. Nobody has previously asked for appeal recommendations in the Solicitor General's Office--some of the most important work that is done; certiorari recommendations in the Solicitor General's Office; some of the most important work done by that office; or amicus curiae recommendations, some of the most important work done in that office.

Let me read from the letter from the Department of Justice about what it has to say about this in response to this type of allegation by the Democrats.

Of the seven cited nominees--

Remember. We hear all about all of these people who got Department of Justice materials. Let us look at the facts. I hope my colleague will listen to some. I hope my other colleagues will listen because we have had these false arguments made day in and day out. So I am going to put them to bed right now.

Of the seven cited nominees, the hearings of only two,

Judge Bork and Judge Easterbrook, involved documents from

their service in the Office of the Solicitor General. Senator

Schumer placed into Mr. Estrada's hearing record a single,

two-page amicus recommendation memorandum that Judge

Easterbrook authorized as an Assistant to the Solicitor

General. The official record of Judge Easterbrook's

confirmation hearing contains no references to this document

and based on a comprehensive review of the department's files

we do not believe that the department authorized its release

in connection with Judge Easterbrook's nomination. Senator

Schumer's possession of this memorandum does not suggest that

the department waived applicable privileges and authorized

its disclosure in connection with Judge Easterbrook's or any

other nomination.

In other words, someone leaked that document illegally. And my colleagues have an illegal document leaked. At least that seems to be the glaring thing that happened here.

The Justice Department goes on to say:

The hearing record of Judge Bork's nomination to the

Supreme Court demonstrates that the committee received access

to a limited number of documents related to three specific

subjects of heightened interest to the committee, two of

which were related to Judge Bork's involvement in Watergate-

related issues and triggered specific concerns by the

committee.

We have not had specific concerns here. All we have is a fishing expedition. These are with specific concerns.

Let us go further with what the Justice Department says:

The vast majority of memoranda authored or received by

Judge Bork when he served as Solicitor General were neither

sought nor produced. And the limited category of documents

that were produced for the committee did not reveal the

internal deliberative recommendations or analysis of

assistants to the Solicitor General regarding appeal,

certiorari, or amicus recommendations in pending cases. The

remaining five nominations cited at the hearings similarly do

not justify the disclosure of deliberative material authored

by Mr. Estrada. None of the limited documents disclosed in

the hearings for these five nominations involved deliberative

memoranda from the Office of Solicitor General. The

committee, with respect to these five nominations, requested

specific documents primarily related to allegations of

miscondcut or malfeasance identified by the committee.

Moreover, as noted before with respect to the nomination of

Judge Trott, the committee requested documents wholly

unrelated to Judge Trott's service at the department.

Again, a vast majority of deliberative memoranda authored or received by these nominees were never sought nor received by the committee.

In sum, the existence of a few isolated examples where the

executive branch on occasion called for very specific

information does not in any way alter the fundamental and

long-standing principle that memoranda from the Office of the

Solicitor General and deliberative Department of Justice

materials more broadly must remain protected in the

confirmation context so as to maintain the integrity of the

executive branch's decision-making process.

In conclusion, we emphasis that the Department of Justice

appreciates and profoundly respects the Judiciary Committee's

legitimate need to evaluate Mr. Estrada's qualification for

the Federal bench. We again suggest, however, that the

information currently available is more than adequate to

allow the committee to determine whether Mr. Estrada is

qualified to be a Federal judge.

I might just add again that this is more than adequate. This is more than has been asked of any nominee in history. Why the obstruction? Why the unfairness? Why are we so unfair to this Hispanic man who has all these qualifications that normally would blow people's minds--and do blow people's minds he is so qualified. Yet here he is being filibustered by my colleagues.

I call on my colleagues of goodwill to quit playing games and start doing what is right.

I yield to the distinguished Senator from Georgia.

That has been my experience.

I have been an attorney for a long, long time. I know a fishing expedition when I see one. I have been a Senator for 27 years. I have seen fishing expeditions before but never one as blatantly as this one, or exploiting a red herring issue like they are trying to do on this one.

I compliment the Senator. Let me read from the editorial in the Savannah Morning News just a couple of paragraphs.

The Democrats are upset because they haven't found a

``gotcha'' moment in Mr. Estrada's testimony or scholarship

that would embarrass or contradict him, and thus provide them

ammunition to defeat his nomination.

Then they went on to quote saying what the Senator from Georgia quoted.

They want to continue trolling further.

This is trolling like you have never seen before.

Then the next paragraph says:

The problem is, they've already had ample opportunities. If

they weren't happy with his answers at his hearing last

September, Democrats could have demanded another hearing.

They did not. Nor did they take full advantage of normal

procedure and submit written follow-up questions to Mr.

Estrada after the hearing--only two of the 10 committee

Democrats did so.

Because they lack the votes to defeat the nomination on the

Senate floor they have resorted to manipulating the process

by any means necessary--not, mind you, because they have

evidence to oppose him, but because they don't.

Boy, I agree with that editorial.

Then they conclude by saying:

Mr. Estrada's nomination deserves an up-or-down vote in the

Senate and not be held hostage by bipartisan parliamentary

games.

I tell you, that sentence: Because they lack the votes to defeat the nomination on the Senate floor, they have resorted to manipulating the process by any means necessary, not, mind you, because they have evidence to oppose him, but because they don't.

This editorial writer and these writers get it accurately. They have not laid a glove on Miguel Estrada. Here we are in the third week of a filibuster against the only Hispanic nominee in the history of the country nominated to the Circuit Court of Appeals for the District of Columbia.

I ask unanimous consent that the Savannah Now editorial be printed in the Record.

Without losing my right to the floor, I yield to the Senator from Colorado.

I am aware.

I am aware of those editorials. And I am also aware, and I want my colleagues to know, that there are more than 50 editorials throughout the country expressing the same matters.

I hold in my hand this binder of editorials in favor of Miguel Estrada--just editorial after editorial after editorial, saying how unfair this process really is, how unfair my colleagues on the other side have been, how they have ignored principles of just plain common decency, how they are obstructing--obstructing, in an unfair way--of course, obstruction, I guess, is always unfair--but how they have been obstructing this nominee. Why? Because, as the editorial writers say, they do not have anything on him.

Without losing my right to the floor.

The Senator is absolutely right. In the very same part of the Constitution, it mentions that there is a supermajority vote required for treaties. By implication, the Senator is correct, advice and consent means a vote up and down on the Senate floor. It certainly does not mean we should have to have a supermajority vote of 60, which is what the Democrats are insisting upon in this body, in order to confirm a circuit court of appeals nominee.

And why is the reason for that? Because the Constitution also talks in terms of the coequal branches of Government: the executive, the legislative, and the judiciary. All are supposed to be coequal, have coequal powers. If we require--because the Democrats will not end the filibuster against Miguel Estrada--60 votes before we can confirm any judge to a position in the judiciary, that diminishes the coequal power and status of the President. It also diminishes the coequal power and status of the judiciary, while increasing and augmenting the power of the legislative branch.

That is unconstitutional. And my colleagues are acting in a highly unconstitutional manner. And they are creating a constitutional crisis by refusing to end the filibuster and the obstructive tactics in this very important area of Constitutional law. And I have to tell you, there is a way around this, but I prefer that they end these obstructive tactics and that we, once and for all, decide that nobody is going to filibuster judicial nominees because the President does deserve, through his nominating power, a vote up and down--a vote up and down--on these judicial nominees.

That is as far as I am going to go this evening. But I have to say that my colleagues are asking for the world to see that the system is broken. If they break the system, then no holds barred, if they break the system, we have to uphold the Constitution on our side, and we are going to do it.

Now, all I can say is this. We have a clear majority of Senators who want to see Miguel Estrada confirmed. And a minority is obstructing-- obstructing--O-B-S-T-R-U-C-T-I-N-G--did I spell it right?--obstructing him from being a judge, and obstructing us from exercising our advice and consent powers the Constitution provides.

I am delighted to yield to my colleague from Illinois.

The fishing expedition you are asking for?

You mean, the fishing expedition you want to have?

I do characterize it as such.

I do not think the Senator knows that came from the Bork matter. I don't think you can make that claim.

Let me answer the question, and let me address some of the specific examples my Democratic colleagues have represented as precedent for their demand.

One, of course, is Frank Easterbrook, who is a judge on the Seventh Circuit Court of Appeals, which the Senator is raising. The Democrats' mere possession of a single memorandum--a 2-page amicus recommendation that Mr. Easterbrook wrote as an assistant to the Solicitor General-- does not suggest that the Justice Department waived any privileges or authorized it to be disclosed. It did not.

The official record of the Easterbrook confirmation hearing contains no references to this document. There is nothing in the hearing that shows a reference to it, at least as far as I know. And I am quite sure about that.

After comprehensively reviewing its files, the Justice Department concluded that it never authorized the document's release.

Now, last fall, I sent a letter to Senator Schumer, and then to Senator Leahy, specifically asking for information about how the Democrats obtained this memorandum that the Senator has been waving here, with impunity, by the way. To this day, I have not received a response to my question.

There is probably a very good reason for it because he should not have that memorandum. I do not know how they got it.

Not yet.

That single document provides no precedent for the Democrats' sweeping request for every document Mr. Estrada ever prepared on appeal recommendations, certiorari recommendations, and amicus recommendations.

Now, let me take a clear look at this. The Justice Department has no record; the hearing has no record. How is it that the Democrats have that? I can guarantee you they don't have it legally--at least I think I can guarantee that. That is the reason why I have not received a reasonable response. I haven't received any response. I would think if they had it legally, they would give me a response on it.

I asked for it and, as ranking member of the committee, I was entitled to it. They ignored my request.

The Senator made a couple other remarks I find particularly offensive. I will get into those other remarks later. The Senator had another question.

Yes, without losing my right to the floor.

Let me answer that question. The Senate sought and received materials in the course of pursuing specific allegations that Mr. Reynolds, while Assistant Attorney General for Civil Rights failed to enforce the Voting Rights Act and Civil Rights Act--as with Mr. Civiletti, by the way. The Department's disclosure was limited to specific cases of alleged misconduct--limited.

The sweeping request by the Democrats in this matter is completely different. There have been no allegations that Mr. Estrada engaged in any improper behavior or failed to discharge his duties. Significantly, although Mr. Reynolds previously had served as an assistant to the Solicitor General, the Senate never suggested--never--that his appeal, certiorari, or amicus recommendations should be divulged. Never.

Let's just be honest here. With regard to specific allegations, if the Senators have them, bring them out, instead of asking for a fishing expedition into what could be thousands of documents that are privileged down at the Department of Justice in the Solicitor General's Office. No self-respecting Attorney General or President of the United States is going to give you those documents. How you got some of these documents, I cannot say. I am not suggesting that my colleagues have done wrong in getting these documents, but somebody gave them to them who didn't have the authorization to do it. The Justice Department did not authorize the giving of whatever documents you have. I don't care that you have them. It doesn't mean anything to me, except that it is phony in my eyes to use them and try to say we ought to have this sweeping demand for maybe thousands of documents that we don't know what is in there, but we want to be able to fish through them and see if we can find something against Mr. Estrada.

I hope one of these days my Democratic colleagues will wake up and realize how ridiculous they look on these arguments. These are terrible arguments, phony arguments, if you will.

Yes, without losing my right to the floor.

Mr. Estrada said he is proud of the work he did. He would personally have no real problem. He also recognizes there is a good reason not to give those documents based upon law and confidentiality and upon client-attorney work product.

This is the attorney for the American people. If we start giving his internal documents out, he cannot function--he or she, whoever it is. So, yes, I am aware of that.

I was interested that over the last weekend, the Senator from New York, who has been very vocal in his opposition to Mr. Estrada--the conservative party of New York said they didn't know enough about him-- the same arguments the Democrats are using--by the way, this is almost 2 years they have been examining Mr. Estrada, going through everything they possibly can--Supreme Court briefs, all of his arguments, briefs in other cases, all kinds of other matters. They have had a full solid day of testimony and they asked written questions. Now they are complaining they don't know enough.

The conservative party of New York, as I understand it, wrote a letter to Senator Schumer and said: We don't know enough about you. How about giving us your internal documents with regard to these matters? Maybe he will do that. I don't know. In all honesty, no self-respecting attorney who understands this--and this includes the Solicitor General and the Attorney General--would give up his work product that he or she has been doing for clients. It would be unethical to do so. In this particular case, according to seven former Solicitors General--the only living ones to my knowledge--it would be a travesty to do it. It would undermine the very work of the Solicitor General's Office. Four of those were Democrats, three of whom I think he served.

So these arguments are really red herring, phony arguments. I don't know how they have the brazenness to keep bringing them up.

That is an excellent question. There is no question that people are paying attention to this. I have been overwhelmed by Hispanic concerns, just today, all over the country. They are starting to awaken to this. One of the Hispanic nominees--most all of them will say he should not be on the court just because he is Hispanic. We would not support him just for that, but he is qualified. He made the grade. He ought to be treated like everybody else. He will make a great judge. These are Democrats speaking,

and Independents, and Republicans speaking. But editorial writers all over the country are speaking as well.

The Senator raised the Dallas News. In an editorial entitled ``Rush to Judgment: Estrada nomination has been blocked too long''--we are in the third week of this--let me read a paragraph or two:

Democrats by now are in full filibuster. Senate

proceedings, as carried on C-SPAN, resemble the film

Groundhog Day, where the main character has to relive the

same day over and over again. Every day, it's the same thing.

Democrats get up, march over to the podium, and shuffle

papers and recite their main complaint with Mr. Estrada--that

he is conservative, unconventional, and unapologetic. That

when he had the chance to hand them the rope with which to

hang him during his hearing before the Senate Judiciary

Committee, he refused to hold up his end.

I think that is pretty good. Then they say:

And so they have talked and talked, in hopes that

Republicans will back down. They won't. Nor should they.

I might add, in the El Paso Times, which the Senator noted--let me read one line in that:

Set politics aside, confirm a well-qualified nominee, and

work for the good of the country rather than the party.

In the Austin American Statesman, to mention three Texas newspapers:

If Democrats have something substantive to block the

confirmation of Miguel Estrada's confirmation to the U.S.

Circuit Court of Appeals for the District of Columbia, it's

past time they share it. Estrada's nomination was announced

in May--

They should have said 2001, almost 2 solid years ago--

and has been held hostage since by Senate Democrats who have

yet to clearly articulate their objections to it.

I ask unanimous consent that these three editorials be printed in the Record.

Mr. President, let me say more to my distinguished colleague who I think has raised some pretty important issues here. It is absolutely astounding to me, because I have heard the same comments: We Democrats are not worried about this; nobody is paying attention to it; we are not going to pay a political price; we do not care what we do to this Hispanic man, even though he is highly qualified--and I heard a number of Democrats admit he is highly qualified--we are just going to do this.

I call them my colleagues. Look, I have used some pretty tough language here tonight. I do not want to apologize for it because I feel deeply, but I will apologize. I feel deeply about this issue. I am fighting for this man, as all of us Republicans are. Every one of us is concerned. Every one of us wants this man to be confirmed. Every one of us wants to see justice here. Every one of us wants to stop the obstructive tactics. Every one of us wants to do what is right here. So if I have been too enthusiastic this evening, I apologize. I feel so passionate about this, so deeply about this that I can hardly stand it.

I have never seen, other than in Supreme Court nominations, this type of shabby treatment. I have never seen it before. I think I have a reputation for fairness around here. I think I have a reputation for knowing what is going on in the Judiciary Committee. I think I have a reputation for putting through the Clinton judges. I see this shabby treatment, and I cannot help but get emotionally disturbed by it. I do not know how any honest, decent person would not feel the same way.

I tell you, I feel like I am Hispanic. I am the chairman of the Hispanic task

force on our side. For 13 years I have done that, long before some believe the Hispanic people in this country were a political force. I have fought for Hispanics every day I have been in the Senate. I particularly resent this treatment. I particularly resent the fishing expeditions where they cannot come up with one reason for even wanting these privileged papers. They have not listed a specific reason. They just say: Let us cast our line out there and let us see what we can find because we do not have anything on this man and we do not want him on the court because he is appointed by a Republican President and he is a Republican himself, and he is a conservative, a Hispanic. We do not want those kinds on the Federal bench.

That, in essence, is what this argument is all about.

Without losing my right to the floor.

Of course, Senator Leahy put that in the Record I believe on February 25. Let me answer. This is a letter to Senator Thurmond.

The one I have is a letter to Senator Thurmond. I also have attached to that two letters to Senator Biden. I have a number of letters here. I understand all of these letters the distinguished ranking member of the committee has put in the Record.

I point out to the distinguished Senator from Nevada that all of these letters are from the Office of Legal Counsel, not the Solicitor General's Office. They refer to--

These were responses to specific allegations--let me ask the Senator on my time, without losing my right to the floor, is the Senator aware of any specific allegations justifying the request for these records from the Solicitor General? Just answer my question. Are you aware of any specific allegations that need to be investigated from the Solicitor General's Office? If you are, I would like to know about it rather than have a fishing expedition trying to find something to murder this guy with.

Mr. President, if he has a question, I will be happy to take it. Gratuitous comments are not fair.

I will go with that. The fact is I have not said that. At least I do not believe I said that. I said that these documents are not given. I said we have never given appeal recommendations and certiorari recommendations that were fairly requested except in cases where there were specific allegations, and then in a very limited way.

These letters are responding to Senator Biden's August 6 request for certain additional materials referred to in the documents from the Office of Legal Counsel, and I have not said that the Attorney General will act illegally if the Attorney General gives up documents. I suppose the Attorney General can theoretically do anything he wants to do, but he will not be acting responsibly if he gives up privileged documents that should not be given up by the executive branch.

I suspect and said earlier theoretically I suppose the Attorney General can do that if he wants to. He would not be responsible to do it under these circumstances.

Let me just make another comment. Is it your desire here to trip me up in a multihour debate, or is it your desire to really find out something about Miguel Estrada you specifically know exists? If that is it, maybe I can accommodate you, I don't know. But the fact is, this is just a job of who got whom. I gotcha, Miguel Estrada, because I got a complaint that there may be in thousand of documents something that might destroy his nomination.

Am I on trial here? Is that what the Senator is doing? I will be happy to say to the Senator, I do make mistakes sometimes. But let me tell you something. Give me a reason that really is specific why the Justice Department should give you access to these thousands of pages of privileged documents that they have never given before except in specific requests and then in this case, the Office of Legal Counsel matters, not the Solicitor General.

Come on, let's be fair here. Is there a substantive reason for all of this blather on the Senate floor? Is there a substantive reason? Do we have a substantive reason to obstruct this man? Do we have a substantive reason? I have not seen an argument against him since the debate began other than the phony argument that he did not answer the questions, which the distinguished Senator from Tennessee, Senator Alexander, blew away tonight.

I think that has been blown away by other Senators as well. My gosh, what is fair is fair.

I will recognize the Senator from North Carolina right now--excuse me, South Carolina.

I did not ask the Senator a question. Well, I suppose I did, theoretically.

I would like the Senator to think about the answer.

Without losing my right to the floor.

Seven former Solicitors General agree, four of whom are Democrats and three of whom he served with, three of whom understand whatever he did, why don't my colleagues ask them? I am sure they have in their quest to find some fish around here, and apparently they do not have any specific reasons for asking for this huge fishing expedition. But even if they did, what responsible attorney would give up his work product?

Now, let's suggest there is a Democrat President and one of our body is invited to be a member of the Circuit Court of Appeals for the District of Columbia, he decides he is sick and tired

of the Senate, mainly because of obstructive tactics like this, I am sure, and we, as Republicans, then say we are not going to let him serve until we get all of his internal memoranda while he was a Senator. Do my colleagues think he is going to give that up? He would be nuts, because we would then be able to find all kinds of rotten fish in there to use against him or her. Do my colleagues see the point?

I hope our side would not stoop to that level, and I would fight to make sure we did not stoop to that level. So I ask, where are the specific allegations? They must have talked to at least their four Democrat former Solicitors General and said, is there not something there? By the way, those Solicitors General are for Miguel Estrada, at least have said that he handled himself very well and is ethically responsible, and his performance recommendations that they signed are the highest form of recommendations. They have all said he has done that in the highest sense of the Solicitor General's Office.

So, yes, the Senator is absolutely right. Seven former Solicitors General, four of whom are Democrats, three of whom he worked with in the Clinton administration and the Bush administration.

I would like to share with my colleagues an editorial cartoon which really sums it up well. It shows one of two Democrat caricatures stating:

The makeup of the judicial system should look like America,

including blacks, Asians and Latinos.

Then the other asks: What about Estrada? These are two donkeys.

The other tellingly replies: That is different. He is not a liberal.

That is what this is all about. He is not a liberal. How could we have the temerity to choose a Hispanic nominee for the Circuit Court of Appeals for the District of Columbia? How could this President do this since he is not a liberal? That is what is involved.

Without losing my right to the floor.

This nominee's integrity has never been in question. I think my colleagues on the other side have acknowledged that. His integrity is totally intact. He is an honest, decent, honorable man who, in spite of a disability, a speech impediment, has risen to the top of the legal world, who is a partner in one of the major law firms in this country, who has the highest rating of the American Bar Association, unanimous, well-qualified rating. This man's integrity has never been called into question, to my knowledge, and I would be very ashamed of anybody who tried to call his integrity into question.

I have been very passionate this evening, and I apologize to my colleagues if I have offended anybody, but I have to say this is really important stuff. We cannot allow this type of treatment to go on. We are talking about a breakdown in the Senate, if a filibuster for the first time in history is maintained to defeat a nominee, any nominee, let alone the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia. I have not wanted to antagonize or offend any of my colleagues, and I apologize if I have, but what I have said tonight is true.

I have to say, I am really disturbed by the obstructive tactics that are being used. I would be equally upset if they were used on our side, but they have not ever been used in this fashion on our side.

I see the majority leader is in the Chamber, but first I forgot to put these letters in earlier, my letter to Senators Leahy and Schumer, with regard to the Easterbrook document. I ask unanimous consent that they be printed in the Record.

Mr. President, I have listened to the distinguished Senator from Nevada, and I have a few things to say.

Mr. President, I rise today to address, once again, the nomination of Miguel Estrada for the United States Court of Appeals for the District of Columbia Circuit.

Are we ready to go?

Mr. President, I object.

Mr. President, I have heard these crocodile tears on the other side. It is amazing to me because they know what a phony issue is--the request for confidential and privileged memorandum from the Solicitor General's Office--and they are building their whole case on that. All they have to do to go on to anything else in the Senate is to exercise the advice and consent that the Constitution talks about; that is, to vote up and down. If they feel as deeply as they do about these, I think, spurious arguments that have been made just in the last few minutes--by the way, made by people who had all of last year to come up with a budget, and for the first time in this country couldn't even do that. The reason they didn't is because they knew it was pretty tough. They criticized us all these years for coming up with these tough budgets because we had to make the decisions. Senator Domenici from New Mexico has had to make tough decisions as Budget Committee chairman. We always came up with a budget, as tough as it was. We are criticized all the time for not having enough money for the poor and this and that and everything else, every phony argument in the books. Yet when they had the opportunity and saw how tough it is to come up with a budget, my gosh, they did not do it, nor did they do all those appropriations bills that we had to do once we took over.

All they have to do to go on to these wonderful economic issues--and we all want to do it--is allow a vote up or down. They don't like Miguel Estrada for one reason or another. Some of them are perhaps sincere reasons. I think other reasons are that they think he is just an independent Hispanic. Frankly, they do not like him. Vote him down, if you want. They have that right. If they feel sincerely that they are right in voting him down, vote him down. But let us have a vote. I have heard the distinguished Senator from Illinois ask, Why doesn't Mr. Estrada produce those papers? He is not in the Solicitor General's Office. He is not the Attorney General of the United States. He is not the Chief Counsel of the White House. He hasn't controlled those papers. As far as he is concerned, he is proud of his work and they could be disclosed. The problem is seven former Solicitors General-- four of them are Democrats--said you can't give those kinds of papers up because it would ruin the work of the Solicitor General's Office.

Look, if they are sincere and they really want to get on to the budget work they never did last year, the appropriations work they never did last year--we had to do it--then just vote. It is tough work. By gosh, it is tough to come up with a budget. I know the distinguished Senator from New Mexico has had to go through a lot of torment and criticism year after year to come up with a budget. But he always did, and we always did. We were maligned by the other side because we were never good enough, because we had to live within the budget constraints. When they found that they had to live within the budget constraints, they skipped a beat and missed doing the budget.

Here they are coming in here with crocodile tears saying a circuit court of appeals judge is not important enough. Well, if he is not, vote him down, let's have a vote, and let's vote him down. Now----

If I could finish. I am wound up right now. I would like to unwind a little bit before I yield to my dear friend.

And to say that we are filibustering because we are trying to get a vote on this? Why don't we just do that? Why don't I just--I ask unanimous consent that we proceed to a vote on the Miguel Estrada nomination, so we can get to all these important budget matters. It would be a quick way of doing it. And those who do not like Miguel Estrada: vote him down. Those who do: vote him up. I ask unanimous consent that we proceed to a vote on Miguel Estrada.

Parliamentary inquiry.

Can you amend a unanimous consent request? It is my understanding that you can't.

Not if we object.

Well, I refuse to modify it. I think we ought to vote up or down.

Look, if you folks are sincere on this other side--and, my goodness, I have to believe you must be, although I think if you are not, it is the most brazen thing I have seen in a long time to come here and act like the whole world is being held up because we want to fill one of the most important judge seats in this country. And we want to do it with a person who has had this much of a transcript of record, who has this much of a paper trail that they have been able to examine, who has had 2 years sitting here waiting for a stinking solitary vote.

Why not give him a vote?

Oh, my goodness.

Several Senators addressed the Chair.

Mr. President, the distinguished minority leader said that half of the American people are only getting $100 out of this tax cut. I happen to know, the people who are at the $40,000 level are getting about a $1,000 tax cut. Just understand, the top 50 percent in our society pay 96-plus percent of the total income taxes in this country. So that is another phony argument.

I have to say, there are 52 million people in the stock market who have wanted dividends in spite of the representations that were made here. And in this downturn in the economy, perhaps they have not been able to get dividends because the companies have not done well. But this downturn started in the year 1999 or 2000. This President was not the President at the time. He has inherited these problems.

I just have to say that for people who never passed a budget last year, and did not pass hardly any of the appropriations bills, to come in here and use these crocodile tears, that this is somehow holding up our economic wherewithal in this country, when they refuse to allow a vote, as we just saw--I think there is something wrong here.

Just remember, even the Washington Post said, ``Just Vote.'' Just vote, fellows and ladies. All you have to do is vote. If you don't like Miguel Estrada, vote him down.

The reason they don't want a vote, and the reason this is a filibuster, is that they know Miguel Estrada has the votes here on the floor to be confirmed.

And for those who think that the economy is everything, let me just make a point. The judiciary is one-third of these separated powers. If we don't have a strong judiciary in this country, we will never have a strong economy because the Constitution would not be maintained. I would have to say this body has not maintained it through the years, as I have seen unconstitutional legislation after unconstitutional legislation move through here. It isn't this body that has preserved the Constitution, nor has it been the executive branch. We have seen a lot of unconstitutional things over there over the years, although I believe people have tried to sincerely do what is right. But it has been the courts that have saved this country and the Constitution.

I will. Let me make one more statement.

It has been the courts. This is an important position, and if we are going to have to go through this on every circuit court of appeals nominee because the other side just doesn't like them--they don't have a good, valid reason for voting against Miguel Estrada, other than this phony red herring issue about the Solicitor General's Office, which I don't think anybody in their right mind would buy.

``Just Vote,'' the Washington Post said.

I will be happy to yield to my colleague.

Mr. SCHUMER. I thank my colleague. And I know he feels

passionately about this. Many of us feel passionately about

this.

More than passionately.

Does the Senator have a question?

That is right.

There is a lot more than a transcript here.

Ask a question.

Regular order, Mr. President.

Look, I don't withdraw that statement. That statement is an important statement. The distinguished Senator from New York and his colleagues had almost 2 years. The distinguished Senator from New York conducted this hearing. The distinguished Senator from New York said it was a fairly conducted hearing. The distinguished Senator from New York had a right to ask any questions he wanted. He did. The distinguished Senator from New York had a right to ask written questions. He did not.

He could have asked: What do you think about the 11th amendment? Listen, that is a question that is almost improper because you are saying----

Let me finish answering your question. He could have asked: What do you feel about the first amendment? Are you kidding? That is not a question that should be asked a judicial nominee. And any judicial nominee would answer: What I feel is irrelevant--which is the way he answered it. It is what the law says. Frankly, he answered that time after time after time on question after question after question.

Where were the written questions of the distinguished Senator from New York? They were not there. You had a chance to do it. You didn't do it. Now, after the fact, 2 years later, this man has been sitting there, waiting for fairness, being treated totally unfair, and he can't get--my gosh, he can't get a vote up or down, which is what the Washington Post says we should do.

I know Senator Domenici has been waiting a long time.

No. Senator Domenici has been waiting for well over an hour. And, well, I am not yielding the floor.

Several Senators addressed the Chair.

Well, I yield the floor.

Several Senators addressed the Chair.

Mr. President, I ask unanimous consent that the Committee on Armed Services be authorized to meet during the session of the Senate on Tuesday, February 25, 2003, at 9:30 a.m., in open and closed session, to receive testimony on the defense authorization request for fiscal year 2004 and the future years defense program.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Tuesday, February 25 at 10:00 a.m. to consider the President's proposed FY 2004 budget for the Department of Energy.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be authorized to meet during the session of the Senate on Tuesday, February 25 at 2:00 p.m. to receive testimony regarding natural gas supply and prices.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, February 25, 2003, at 9:30 a.m., to hold a hearing on The State of the World Report on Hunger.

Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session of the Senate on Tuesday, February 25, 2003, for a joint hearing with the House of Representatives' Committee on Veterans' Affairs, to hear the legislative presentation of the Disabled American Veterans.

The hearing will take place in room 216 of the Hart Senate Office Building at 2 p.m.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on Tuesday, February 25, 2003 at 2:30 p.m. to hold a closed hearing.

Mr. President, I ask unanimous consent that the Subcommittee on Aviation be authorized to meet on Tuesday, February 25, 2003, at 9:30 a.m. on FAA reauthorization-airport financing.

I thank my colleague.

Mr. President, I ask unanimous consent that the committee amendments be adopted en bloc and that the motion to reconsider be laid on the table.

Mr. President, I am delighted that we are considering S. 151, the PROTECT Act of 2003. Senator Leahy and I introduced this bill last May following the Supreme Court's decision in Ashcroft v. Free Speech Coalition, a ruling that made child pornography prosecutions immeasurably

more difficult. This problem is intolerable and demands our immediate attention. Because we could not get this bill to the President's desk last year, it has been my top priority this year.

I want to begin by thanking Senator Leahy and his staff for working so diligently with me in writing the PROTECT Act during the past ten months. While we have not seen eye to eye on every provision, we have agreed about most of them. We still have some honestly held disagreements, but that is hardly unusual when people talk about the First Amendment. Senator Leahy's valuable input and insights helped to make this a better bill. I very much hope that he is as proud of the final result as I am.

Mr. President, Congress has long recognized that child pornography produces three distinct and lasting harms to our children. First, child pornography whets the appetites of pedophiles and prompts them to act out their perverse sexual fantasies on real children. Second, child pornography is a tool used by pedophiles to break down the inhibitions of children. Third, child pornography creates an immeasurable and indelible harm on the children who are abused to manufacture it.

It goes without saying that we have a compelling interest in protecting our children from harm. The PROTECT Act strikes a necessary balance between this goal and the First Amendment.

First--and most significantly--the bill plugs a gaping loophole that exists in current law. Following the Supreme Court's decision last April, child pornographers can evade even legitimate prosecutions by falsely claiming that their sexually explicit materials did not depict real children. This frivolous argument is made possible by the growth of technology. Computer imaging technology has become so sophisticated that even experts often cannot say with absolute certainty that an image is real or a ``virtual'' computer creation. The PROTECT Act therefore permits a prosecution to proceed when the child pornography involves life-like computer images of real kids. The bill balances this provision by creating a new and powerful affirmative defense. In virtually every prosecution for child pornography, the PROTECT Act affords the accused a complete defense to liability upon a showing that the child pornography did not involve an actual minor. In creating this new balance, the bill responds directly to the concerns expressed by the Supreme Court in the Free Speech Coalition decision.

Second, the PROTECT Act creates three brand new offenses that are designed to target some particular problems that stem from child pornography. One provision prohibits the use of child pornography to entice a minor to participate in sexual activity or some other crime. Another prohibits offers to buy, sell or trade either obscene or actual child pornography. The third creates a new offense for obscene child pornography that will be punished more severely than ordinary obscenity.

Third, the PROTECT Act expands the record keeping requirements in existing law that apply to those who decide to produce sexually explicit materials. Section 7 of the bill expands the scope of materials covered to reflect the computerized manner in which they are increasingly being distributed and sold. Producers of such sexually explicit materials must make and maintain records confirming that no actual minors were involved in the making of the sexually explicit materials. In light of the difficulty experts face in determining an actor's true age and identity just by viewing the material itself, maintaining these records is vital to ensuring that only adults appear in such productions.

Fourth, in recognition of the enormous breadth and scope of the problem, the PROTECT Act broadens enforcement efforts in order to create a more level playing field. Section 9 of the bill provides extra-territorial jurisdiction over those foreign producers of child pornography who transport, or intend to transport, such materials to the United States. Because this is one area of the law where we can truly benefit from more vigorous enforcement, section 14 of the bill directs the Department of Justice to appoint 25 additional attorneys dedicated to enforcing child pornography laws, and section 11 creates a new civil action for those aggrieved by such violations. The PROTECT Act also toughens existing penalties for offenders. Not only does it broaden the category of repeat offenders subject to more stringent criminal sentences, but it also calls on the U.S. Sentencing Commission to review the appalling low sentences that currently apply to offenders who travel across state lines in order to have sex with children.

Finally, the PROTECT Act contains new provisions to refine and enhance the government's existing authority to tackle child sex crimes. Section 15 adds a number of child crimes into the section of Title 18 that authorizes the government to apply for wiretaps. Without this new provision, the government could not seek a wiretap to investigate cases where, for example, children are being forced to engaging in sex for money. Section 16 updates the type of information the government can obtain from telephone companies with an administrative subpoena in, among other things, an investigation involving the sexual exploitation of children. Other sections of the bill, moreover, enhance the ability of internet service providers to report instances when they spot child pornography, and authorize the release of that information to state and local officials for prosecution.

The PROTECT Act has been carefully drafted to avoid constitutional concern. I wish it could be stronger. But because of the Supreme Court decisions, we have had to draft it the way we have. From the beginning, I have worked very hard to digest the relevant legal issues and to make the PROTECT Act square with the law as articulated by the Supreme Court. This bill has gone through more than a dozen rounds of edits since we began drafting it in April 2002. The issues are complex, and we have meticulously gone over every word and phase numerous times in order to write a carefully tailored law that will withstand judicial review. I am confident that we have done just that. The end result of all of our hard work is a bill that we can all be proud of: One that is tough on pedophiles and child pornographers in a measured and constitutional way.

Congress has consistently acted in a bipartisan manner to address the harms of child pornography. I am pleased to report that we are doing so again with the PROTECT Act. This has been a bipartisan effort from the beginning, and it remains a bipartisan effort today.

I respect my colleagues on the other side for being willing to work with us to fashion this bill in a constitutionally sound form. We expect the overwhelming support of Members on both sides of the aisle, and, quite frankly, our Nation's children deserve no less.

Mr. President, I ask unanimous consent that the Congressional Budget Office cost estimate for the PROTECT Act, S. 151, be printed in the Record.

I suggest the absence of a quorum.

Mr. President, would I be correct, if I yielded back my time, then all time would be yielded back? Is that correct?

Mr. President, I also ask unanimous consent to extend the privilege of the floor for the remainder of the first session of the 108th Congress to Michael Volkov, Wan Kim, and Reed O'Connor, three detailees from the Department of Justice to the majority staff of the Judiciary Committee.

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

On the appropriations bill.

I will be happy to yield at any time to them.

Mr. President, before I came to the floor, I understand the distinguished Senator from Iowa criticized me for having a double standard. If I recall correctly, he said, I believe, I should look in the mirror when I talk about double standards.

Also, during last night's debate, several of my Democratic colleagues attacked my record on moving Clinton nominees. I heard some of these attacks repeated this morning by the Senators from California. This surprised me and it very much disappointed me since I worked hard to get not only Judge Paez but also Marsha Berzon, now Judge Berzon, confirmed, despite the opposition to their nominations, and there was serious opposition. That is one reason it took so long for Judge Paez, and there were some very serious allegations. But I was able to fight through those, and I can guarantee this body that neither of those judges would have gone through had it not been for my work.

I might add, neither would have a whole bunch of the 377 Clinton judges who did get through--the second highest total of confirmed judges in the history of the country--had it not been for what I was trying to do to help my colleagues on the other side.

I understand my dear friend from Iowa is very bitter about what happened to one of his judicial nominees. I do not blame him for that. He has always been a friend. I am disappointed that he would attack me on the floor and accuse me of a double standard because he knows better, and if he does not know better, he ought to know better.

I was unable to get his nominee through for a variety of reasons. I do not want to go into them here. I feel badly because of that. I personally liked his nominee, but there were things I was able to do as chairman and there were things I was unable to do. The one point nobody can rebut is that President Clinton was treated very fairly in getting the second highest total of Federal judges through in the history of the country of any President. President Reagan got 382 judges through, 5 more than President Clinton. With regard to those 382 judges, President Reagan had 6 years of a Republican--his own party--Senate to help him.

President Clinton had 6 years of the Republican Party in charge of the Judiciary Committee, and I was chairman during those 6 years.

I think he would be the first to say that I helped him, or he would be a baldfaced liar. I know he is not that. So I would presume that he would be willing to admit, as a decent honorable person, that Senator Hatch worked closely with him in trying to get those 377 judges through.

Unfortunately, I was not able to get some through some nominees about which some of my colleagues on the other side of the aisle feel very bitter. I apologize to them. I feel badly about that because there are things I could do and things I just could not do. There were a lot of things people did not think I could do that I did do. I am not perfect any more than anybody else, but I can say this: I do not think any other Senator could have gotten done what I got done with regard to fairness for the Clinton nominees.

In contrast, I do not think what is happening to President Bush's nominees is fair at all. In fact, here we are in a filibuster for the first time in history against a Hispanic judge who has risen to the top of his profession, even though he has a disability. That bothers me a lot, to be honest with you.

I did work hard to get Judge Paez and Judge Berzon through and confirmed, despite the opposition to their nominations, which opposition was not without merit. There were some legitimate concerns on the part of some of the Senators on this side of the floor.

The fact remains that I lobbied for cloture on those two nominees, and

they were afforded an up-or-down vote, something Miguel Estrada is not being afforded. They were afforded an up-or-down vote as a result of my efforts. They were both confirmed and both sit today on the Ninth Circuit Court of Appeals, a very prestigious circuit court.

Let me say this. I will stay here all day and all night, if I have to, to defend my record on Clinton judges because it is very unfair for anybody who looks at the record to say I personally did not treat him well.

With regard to my friend from Iowa, I am disappointed he would attack me on the floor of the Senate, but I will say to him, I understand his feelings, his very deep feelings, and he felt very bitter that his nominee did not get through, a personal friend and somebody whom I personally liked.

With my Democratic friends complaining so vociferously about the Republican treatment of Clinton nominees, which is totally unjustified, in my opinion, it leads me to believe that this shabby treatment of Miguel Estrada is driven in large part by a Democratic goal of retribution. That is all we heard last night in the questions from the Democratic side: Why didn't you do this? Why didn't you do that?

If that is the way we play the game, my gosh, I can give 100 cases where this side ought to have some retribution against them. I, frankly, do not believe in that. Call it tit for tat if you want to, call it payback, call it what you will, but I, for one, am becoming more and more convinced with each Democrat who takes the floor to complain about the Republican treatment of Clinton nominees that their opposition to Miguel Estrada is more about revenge than it is about Mr. Estrada. That bothers me a lot, to be frank.

Mr. President, I also understand the distinguished Senator from Iowa said that people who know Mr. Estrada have called him a right-wing kook. I do not know anybody who has called him a right-wing kook, not anybody on the face of the Earth. The only persons who would do that are those who act irresponsibly, and I have not even heard any irresponsible people do that. So there is little or no reason for anybody on the floor of this Senate to demean Miguel Estrada, and that is what this debate has devolved to, and it bothers me.

I caution my colleague from Iowa to respect other people. We all make mistakes, and we all say things that perhaps we should not say, and I will treat it that way this one time. But I do not want ever again to hear anybody on this floor call Miguel Estrada a right-wing kook or any other nomination by President Bush, any more than we should have called some of the far-left judges who were nominated by President Clinton left-wing kooks.

We never did that, or at least I do not ever recall doing that. I certainly did not, and I do not recall anybody else doing it on our side.

I just wonder who those mystery people are who called Mr. Estrada a right-wing kook. The only person I know of who has gone on record saying anything negative about Mr. Estrada, out of all the persons who have worked with him, is Mr. Bender, who has been more than, I think, rebutted, both in committee and on this floor, by his own performance reviews of Miguel Estrada that could not have been more glowing. And then when he has a chance to say something nasty because Miguel Estrada is now nominated to the circuit court of appeals, he chooses to do so. It is beneath the dignity of a law professor to do that, especially after giving those glowing performance reviews, even though he says everybody got those. Everybody knows that is not true.

If it is true, then it is a sad commentary for our Government. But then again, even though he admits everybody got those glowing performance reviews, he claims the reason for that is because these are the best lawyers in the country. Reading between the lines of his letter, that is what he basically said. That is as much as saying Miguel Estrada is one of the best lawyers in the country.

How can he be so inconsistent? He is the only one I know, and even he, as low as his comments are, did not call Miguel Estrada a ``right- wing kook.''

He has no credibility. I am just sorry in some ways for the law students who have to take his classes. I would prefer law professors--I do not care if they are liberal or conservative. Most of them are liberal, but I would prefer them to be honest people. I prefer them to have some dignity about their comments. I prefer them to be decent people teaching our young adults.

It is a pathetic thing that almost every law school in this country has a whole raft of left-wing professors who, if they had to, probably could not make a living at the practice of law. Maybe they could make a living, but they could not stand the rigors and the difficulties of practicing law. It is a lot easier to teach two classes a week and pontificate from their high perches as liberal law professors to the detriment of some of these law students. It is a pathetic thing. Anybody who has gone to law school knows how far left an awful lot of those professors are.

Are they bad people because they are far left? No. Some of them are terrific teachers and terrific people. Most of them are honest, which is something I cannot say for Mr. Bender with the way he has approached this thing.

I remind my friend from Iowa that we have a standard in the Senate against relying on anonymous allegations, even though I have seen people on that side bring up anonymous allegations where Mr. Estrada could not even confront those making the allegations. That is just hitting below the belt. Senator Biden made it clear that should never happen, and yet it has happened in this Chamber and it has happened in committee. I, for one, am fed up with that kind of inappropriate behavior by Senators. It is beneath the dignity of these Senators to do something like that. Senator Biden's policy was: if they are not willing to face the person they are accusing, then they are not worthy of being listened to. I agree with him, and I intend to stick to that very same policy.

I am going to forget these derogatory comments by the distinguished Senator from Iowa. I have never held a grudge. It is one of my weaknesses as a Senator. I just plain cannot hold a grudge against my colleagues. I have had some of my colleagues come up to me and say, boy, you ought to have a grudge against that guy. I just cannot do it.

Personally, I love everybody in this body. And I think everybody knows that. It is against everything I believe to hold a grudge. So I am not going to do that and I am going to forget what was said today, but I do not want it ever said again. Nor do I want to have some stupid staffer putting words in the mouth of another Senator. That happens every once in a while. We should not allow staffers, no matter how bright they are or how stupid they are, to cause us to do things that are inappropriate on the floor of the Senate and to make accusations that are not justified against somebody who worked his guts out to try and help President Clinton get his judges through, because I believe the President of the United States has a right to have his judges voted on up or down.

I have made that clear throughout my tenure as chairman, and everybody knows it. I have had countless Democrat Senators say they know I am not responsible for some of the problems that happened. Then again how many are responsible over on my side, because 377 Clinton judges went through?

We were the opposition party putting them through. And they are complaining? We are in the second month of a brand new session of Congress and we cannot even get the first circuit court of appeals nominee, the first Hispanic nominated to the Circuit Court of Appeals for the District of Columbia, we cannot even get him a vote up or down because for the first time in history a true filibuster is being conducted against this Hispanic nominee. Now, that is a real double standard, not the one the distinguished Senator from Iowa is talking about.

People get emotional sometimes. I may be a little bit myself right now. I think I am somewhat justified under the circumstances, and I make allowances for that. I hope my colleagues will make allowances for me right now.

I keep hearing that Miguel Estrada has no record. That is a slander. And for those who have written it, it is a libel. The Judiciary Committee has confirmed numerous Clinton court nominees who, like Miguel Estrada, had no prior judicial experience. What a ridiculous argument, that a person

should not be on the bench because he has no prior judicial experience. Where would all those Clinton judges be? They would not be on the bench today if we had that as a rule, and neither would many of the top Supreme Court Justices in history, including Thurgood Marshall, whom nobody in this body would be against today--bless his departed soul. He, of course, had no prior judicial experience when he was nominated to the federal appellate bench.

A number of Clinton nominees worked in the Justice Department or other branches of the Federal Government, like Miguel Estrada, but Senate Democrats made no demands for their internal memoranda or privileged work product and, I might add, neither did we Republicans. We did not make those demands. We knew that would be a red herring to slow down the nominee.

We know this is a fishing expedition, and nobody in their right mind who understands government, who understands the separation of powers, who understands privilege, and who understands the right of the Solicitor General's Office to keep its own memoranda of recommendations on appeals, on certiorari, and on amicus briefs confidential would make this demand. It is one of the most ridiculous assertions I have seen, and yet that is the basis on which they are hanging this filibuster. There is nobody in any administration who would allow the Senate to muddle around and make public and politicize legal memoranda and recommendations, in those three areas at least--in other areas as well, but especially those three areas--appeal, certiorari, and amicus curiae recommendations.

Democrats are saying Miguel Estrada has no judicial experience, and therefore he should not be on the bench. What about Merrick Garland? I personally pushed Merrick Garland through. There were those who did not want to push him through, but before the end they all realized he was an exceptional man, a very good person, no more than Miguel Estrada is, but pretty darn exceptional, and he still is. He is a good judge. He was confirmed as a judge for the DC Circuit in 1997. He had never been a judge before. He had held several positions in the Department of Justice. Like Mr. Estrada, he was a partner in a prestigious DC law firm. But did anyone seek confidential memoranda from his time at the Justice Department? Absolutely not. We would not have stooped that low. To use it as a red herring so they could justify a filibuster, that is even stooping lower.

William Bryson is another one who was confirmed as a judge on the Federal Circuit in 1994. He had never been a judge. He held several positions at the Department of Justice and was an associate at a prestigious firm in town. Senate Democrats never asked for the confidential memoranda he wrote during his time at Justice. The list goes on.

Blane Michael was confirmed as a judge on the Fourth Circuit in 1993, his first judgeship, never having been a judge before. Why is it that he can be a judge and we should work to get him on the bench but Miguel Estrada should not be a judge because he had no prior judicial experience? Well, neither did Blane Michael, but he is sitting on the Fourth Circuit Court of Appeals, his first judgeship. He had been a Federal district court clerk and served as a Federal prosecutor in New York and West Virginia before becoming a partner in a law firm. He had virtually no published writings, just like Miguel Estrada. Again, however, no one tried to gain his confidential privileged memoranda from his time as a Federal prosecutor before confirming him, and we would not.

Arthur Gajarsa was confirmed to the Federal Circuit in 1997. He was a clerk to a Federal district judge, then worked as an in-house counsel at an insurance company and later as a special counsel at the Department of Interior before joining a law firm. Did Democrats demand his internal memoranda? After all, he, like everyone else mentioned, had never been a judge. But, no, he was confirmed like the rest without anyone reviewing his confidential work product.

Then there is Eric Clay, confirmed to the Sixth Circuit in 1997. He never had been a judge before. He was a law clerk to a Federal district court judge, and worked in a law firm. What did we know about him that we do not know about Mr. Estrada? Absolutely nothing. We did not seek his confidential memoranda. We confirmed him anyway. We did what was right.

Another was John Kelly, whom we confirmed for the Eighth Circuit in 1998, yet another Clinton nominee to the circuit court who had never been a judge. He had worked in the Office of General Counsel for the Secretary of the Air Force before going into private practice. But Republicans never sought his internal memoranda, and he had very few published writings.

What about Sid Thomas? He was confirmed to the Ninth Circuit Court of Appeals in 1996 and had never been a judge. In fact, he had not even had a clerkship. He also had very few published writings. Democrats, however, did not cry out about his lack of a record. The entire transcript of his hearings takes up less than 2 pages in the Record. Why is it that he was treated differently than Miguel Estrada? I suspect it is because we gave President Clinton's nominees the benefit of the doubt in almost all cases. But this crew on the other side is not giving this President the same fair treatment that we gave to President Clinton.

I could go on and on but I think I made the case. Democrats opposing Miguel Estrada consistently failed to seek internal memoranda for Clinton nominees who had no prior judicial experience and little in the way of publications. The Democrats' claim that they have to do so now for Miguel Estrada simply does not hold water.

Now, naturally, I guess they wouldn't want to get internal memoranda to use against their own president's nominees. They wouldn't want to go on a fishing expedition that might hurt their own nominees, but neither did we. Now why are we using this red herring to justify a filibuster against one of the finest nominees I have seen in 27 years on the Senate Judiciary Committee--Miguel Estrada?

Let me address, once again, the Democrat demand to hold Mr. Estrada's nomination hostage for confidential internal memoranda. The Department of Justice historically has not disclosed confidential, deliberative documents from career lawyers in the Solicitor General's Office in connection with a judicial nomination. The Senate historically has not even asked the Department to do so.

My Democratic colleagues are creating a new double standard that applies only to the nomination of Miguel Estrada. A double standard, why is that? I ask the people out there who are watching C-SPAN, why is it that all of a sudden they are asking for all these things from the only Hispanic nominee in the history of the Circuit Court of Appeals for the District of Columbia? I think everyone out there must know by now. I don't think I even have to spell it out, but maybe I should spell it out a little bit.

Every living former Solicitor General has denounced the Democrats' demands. Every one of them, four of whom are eminent Democrat former Solicitors General. I have said this before but I think it is worth repeating. That letter was signed by Democrats Seth Waxman, Clinton's Solicitor General; Walter Dellinger, one of Clinton's top people in the White House; Drew Days, and Archibald Cox; and by Republicans Ken Starr, Charles Fried, and Robert Bork.

All seven have said, in essence, that this is ridiculous, that the Justice Department should not turn over confidential recommendations on appeals, certiorari petitions, and amicus curiae petitions.

The Solicitors General explained that the frank exchange of ideas on which their office depends ``simply cannot take place if attorneys have reason to fear their private recommendations are not private at all but vulnerable to public disclosure.''

The letter concludes that:

[A]ny attempt to intrude into the Office's highly

privileged deliberations would come at a cost of the

Solicitor General's ability to defend vigorously the United

States' litigation interests--a cost that also would be borne

by Congress itself.

Now, longstanding historical practice confirms that deliberative memoranda are off limits during confirmation hearings. Since the Carter administration, the Senate has confirmed former Justice Department employees--even those with no prior judicial experience, as I have already explained--without demanding to see their confidential

memoranda. It should not adopt a new double standard for Mr. Estrada's nomination.

Since 1997, the Senate has approved 67 appellate nominees who previously worked at the Justice Department, including 38 with no prior judicial experience. The Department did not disclose deliberative memoranda for any of those nominations. In fact, the Senate did not even request such documents. Seven of the 67 were in the same position as Mr. Estrada. They had worked for the Solicitor General and had not been judges previously. These seven nominees were nominated by Presidents of both parties and were confirmed by Senates controlled by both parties. Again, the Justice Department did not disclose deliberative memoranda in any of these nominations. The Senate did not even request such a disclosure for good reason, because we knew it was improper.

None of the so-called disclosures cited by the Democrats are precedent for the sweeping demands they are making regarding Mr. Estrada. In fact, only two of their purported ``precedents'' have even involved lawyers who worked in the Solicitor General's Office. And the Democrats' examples did not involve turning over what the then-chairman of the committee, Senator Leahy of Vermont, demanded--amicus, certiorari, and appeal recommendations.

Let me address some of the specific examples my Democratic colleagues have represented as pressing for their demand. One is Frank Easterbrook, who is a judge on the Seventh Circuit. The Democrats' mere possession of a single memoranda, a 2-page amicus recommendation that Mr. Easterbrook wrote as an Assistant to the Solicitor General, does not suggest that the Justice Department waived any privileges or authorized it to be disclosed. The official record of the Easterbrook confirmation hearing contains no references to this document.

After comprehensively reviewing its files, the Justice Department concluded that it never authorized the release of the documents. It was probably leaked by some Democrat in the Justice Department. That makes it wrong. Yet it is being used as an example on the floor.

Last fall I sent a letter to Senator Schumer, then to Senator Leahy, specifically asking for information about how the Democrats obtained this memorandum. To this day I have received absolutely no response to my question. I think there is good reason for that--because the document should never have been leaked to begin with.

This single document provides no precedent for the Democrats' sweeping request for every document Mr. Estrada ever prepared, which is what they have asked.

Mr. President, I ask unanimous consent that the letters I wrote to Senator Schumer of New York and Senator Leahy of Vermont, inquiring about the source of the Easterbrook memos, be printed in the Record.

Let's take a closer look at another one of the Democrats' alleged examples. William Rehnquist, the current Chief Justice, during his hearings to be Associate Justice, refused to reveal the private advice he had given to other Justice Department officials while he was Assistant Attorney General for Legal Counsel.

He stated:

[I]nsofar as I may have been asked for advice in the

process of making administration policy decisions upon which

the administration has not taken a public position, there, I

think, the lawyer-client privilege very definitely obtains.

By the way, he was confirmed as a Justice on the Supreme Court.

Furthermore, on November 5, 1971, the Attorney General specifically refused to waive the attorney-client privilege after a Senator asked him to do so, stating:

I can well appreciate your personal, intense interest in

probing into all aspects of Mr. Rehnquist's work while at the

Department of Justice. I am sure you appreciate, however,

that it is essential to the fulfillment of my duties and

obligations that I have the candid advice and opinions of all

members of the Department. Further, I am sure you realize

that if I should consent to your request or other requests to

inquire into the basis and background of advice and opinions

that I receive from the members of my staff, it would be

difficult to obtain the necessary free exchange of ideas and

thoughts so essential to the proper and judicious discharge

of my duties.

The Rehnquist example is irrelevant for the additional reason that none of the information sought related to amicus, certiorari, and appeal recommendations. Indeed, Chief Justice Rehnquist never served in the Solicitor General's Office.

Let's look at a third example that my Democratic friends claim justifies the release of confidential Solicitor General Office memos-- Benjamin Civiletti. During his 1979 confirmation hearings to be Attorney General--and I

was there in the Senate Judiciary Committee at the time--the Senate did not request materials that he had prepared previously as a Department of Justice official. Rather, it simply sought assurances that Civiletti would cooperate with the Senate's oversight of the Justice Department in the future. Mr. Civiletti never specified which documents he would be willing to turn over or which documents would be privileged.

During his 1978 hearings to be Deputy Attorney General, the Senate obtained documents related to allegations that Mr. Civiletti had interfered with an investigation of an alleged kickback scheme involving Members of Congress. The documents related to specific charges of misconduct. Unlike during Mr. Civiletti's confirmation, there have been no allegations that Mr. Estrada engaged in any improper behavior or otherwise failed to discharge his duties.

As I recall it, Mr. Civiletti was not found to be wanting in that area either. None of the Civiletti materials were amicus, certiorari, or appeal recommendations. Indeed, Mr. Civiletti never served in the Solicitor General's Office.

Now let's turn to Brad Reynolds. The Senate sought and received materials in the course of pursuing specific allegations that Mr. Reynolds, while Assistant Attorney General for Civil Rights, failed to enforce the Voting Rights Act and the Civil Rights Act. As with Mr. Civiletti, the Department's disclosure was limited to specific cases of alleged misconduct. There have been no allegations that Mr. Estrada engaged in any improper behavior or failed to discharge his duties while working at the Solicitor General's Office. Significantly, although Mr. Reynolds had previously served as assistant to the Solicitor General, and it was a very-hard fought confirmation, the Senate never suggested that his appeal, certiorari, or amicus recommendations should be divulged--never. Nobody would have stooped to that level at the time.

Another alleged example that our friends have brought up is Jeffrey Holmstead. In 2001, the Senate requested 41 files that Mr. Holmstead created during his service as Associate Counsel to the first President Bush. The White House declined. After Mr. Holmstead's hearing, the Senate, based on its particularized concerns about one specific subject, requested documents related only to that matter. Because of the specificity of the Senate's concerns, the White House accommodated the committee by permitting review of documents related to that one subject matter while expressly preserving all privileges. Mr. Holmstead is no precedent for the current set of sweeping requests for every appeal, certiorari, or amicus recommendation that Estrada prepared during his years in the Solicitor General's Office.

The criticism that Miguel Estrada is refusing to provide the Senate with insight into his personal views does create a double standard. My Democratic colleagues did not require nominees of President Clinton to answer questions of this sort. In fact, many Clinton circuit court nominees refused to answer such questions. President Clinton's appeals court nominees routinely testified as to their judicial approach without discussing specific issues or cases that could come before them as a judge. A few examples illustrate the point.

Each of the nominees I am talking about was confirmed to one of the circuit courts of appeals.

First we have Merrick Garland. In the nomination of Merrick Garland to the DC Circuit, Senator Specter asked him:

Do you favor, as a personal matter, capital punishment?

Judge Garland replied only that he would follow Supreme Court precedent:

This is really a matter of settled law now. The Court has

held that capital punishment is constitutional and lower

courts are to follow that rule.

Senator Specter also asked him about his views of the independent counsel statute's constitutionality, and Judge Garland responded:

Well, that, too, the Supreme Court in Morrison v. Olsen

upheld as constitutional, and, of course, I would follow that

ruling.

Another example is Judith Rogers. In the hearings on Judge Rogers' nomination to the DC Circuit, she was asked by Senator Cohen about the debate over the evolving Constitution. Judge Rogers responded:

My obligation as an appellate judge is to apply precedent.

Some of the debates which I have heard and to which I think

you may be alluding are interesting, but as an appellate

judge, my obligation is to apply precedent. And so the

interpretations of the Constitution by the U.S. Supreme Court

would be binding on me.

My gosh, where is that any different from Miguel Estrada's answers? They are the same. Why the double standard? Why are we now demanding of Miguel Estrada something we didn't demand of the Clinton nominees?

She then was asked how she would rule in the absence of precedent and responded this way:

When I was getting my master's in judicial process at the

University of Virginia Law School, one of the points

emphasized was the growth of our common law system based on

the English common law judge system. And my opinions, I think

if you look at them, reflect that where I am presented with a

question of first impression, that I look to the language of

whatever provision we are addressing, that I look to the

interpretations of other State courts, and it may be

necessary, as well, to look to the interpretations suggested

by commentators. And within that framework, which I consider

to be a discipline, that I would reach a view in a case of

first impression.

Where is that different from Miguel Estrada's answers? Miguel Estrada answered basically the same way.

Judge Rogers also was asked her view of mandatory minimums and stated:

I am aware, Senator, of some of the debate on the pros and

cons, and certainly before I was a judge I was engaged in

comment on them. But as a judge, I have been dealing with

them strictly from the point of view of legal challenges to

them. I have sat on a case where a mandatory minimum sentence

was challenged, and we upheld it.

Finally, she was asked her view of the three-strikes law and stated:

As an appellate judge, my obligation is to enforce the laws

that Congress passes or, where I am now, that the District of

Columbia Council passes.

Why is there a different standard for Miguel Estrada? Those are the same answers, basically, that Miguel Estrada gave to these similar types of questions.

Let's take another example: Kim Wardlaw. In the hearing on Judge Wardlaw's nomination to the Ninth Circuit, she was asked about the constitutionality of affirmative action. She stated, in an answer similar to Miguel Estrada's answer to the same question:

The Supreme Court has held that racial classifications are

unconstitutional unless they are narrowly tailored to meet a

compelling governmental interest.

Why is there a double standard with regard to this Hispanic nominee when it was not utilized against these other nominees? These answers were perfectly all right and acceptable for these other nominees.

Now let's turn to Marsha Berzon and Robert Katzmann. In a hearing on their nominations to the Ninth and Second Circuits, Senator Smith asked each whether legislation to prohibit partial-birth abortion was unconstitutional. Judge Katzmann responded as follows:

I would say that that is an issue that--Senator--that is a

very important issue, and that as a judge, I would really

have to evaluate that issue in the context of a law that is

actually passed, and then in terms of a case or controversy.

In terms of adjudication, there are restrictions on judges

rendering advisory opinions on particular pieces of

legislation in the advance of passage. And then even after

passage, I think what a judge has to do is to evaluate the

case in the context of a real case or controversy.

Judge Berzon responded with the following:

And I essentially agree with that answer. . . . .It would

obviously be inappropriate to say anything further on that

precisely because the issue might come before a court on

which Mr. Katzmann or I could be sitting.

Why the double standard? Why aren't the answers Mr. Miguel Estrada gave given the same credibility as the answers of these two Clinton judges? Why is there a double standard? Why is he being treated differently?

I have heard countless colleagues get up over here and complain and moan and groan and try to come up with excuses for their vote against Miguel Estrada and for their filibustering for the first time in history a Hispanic judge, the first ever nominated to the Circuit Court of Appeals for the District of Columbia.

I have heard a lot of complaining. But there has not been one statement

of substance. Why is he being treated differently? Why should a Hispanic judicial nominee be treated differently than all these other non-Hispanic judges? It seems to me that he ought to be treated similarly, afforded respect. This is a man who has fulfilled the American dream as an example to countless Hispanic young people that you can make it in this society. But can a Hispanic who is deemed to be not only a Republican but a conservative--can that type of Hispanic make it? Well, I sure hope so.

Now, back to this Berzon and Katzmann matter, I interrupted Senator Smith's questioning on partial-birth abortion and noted to Senator Smith:

Well, Senator, if I could interrupt, you have asked some

very appropriate and good questions. . . Both of them have

said, in my opinion that they are not sure how they would

decide the case, and that they wouldn't want to give the

opinion that they have now without hearing all the facts and

evidence. . . . But they both say that that could likely come

before them and that they are going to have to decide it at

that time.

Now, those two Clinton judicial nominees, Judge Berzon and Judge Katzmann. Some might say that they provided nonanswers to important questions they were asked. But I think they provided legitimate answers for the important reason that those questions might come before them someday in the event of their confirmation.

Why should Miguel Estrada be treated any differently by my colleagues on their side when I personally counseled one senator on my side that the answers of these Clinton judges were sufficient?

They were appropriate answers that they gave because they shouldn't have been talking about cases that could possibly come before them.

Let me go to Judge Maryanne Trump Barry.

I am now talking about circuit judges who made it through the system without any of this rig marole that has surrounded trying to defeat Miguel Estrada.

In the hearing on Judge Barry's nomination to the Third Circuit, Senator Smith asked whether ``an unborn child at any stage of pregnancy is a human being.''

Senator Smith is not an attorney. But anybody on the committee can ask any question they want to ask. He asked whether ``an unborn child at any stage of pregnancy is a human being.''

That was a loaded question--no question about it.

Judge Barry responded:

Casey is the law that I would look at. If I had a personal

opinion--and I am not suggesting that I do--it is irrelevant

because I must look to the law which binds me.

My goodness. Why is Miguel Estrada being treated differently than Judge Barry, or any of these other circuit court of appeals judges who were not Hispanic? Why is he being treated differently? Why isn't he accorded the same respect? Why is he expected to do more? Why is it that it is tough for him? Why is it that my friends on the other side of the aisle who claim to be for civil rights and who claim to be for equal rights and who claim to be helpers to minorities are treating this man this way?

I hope everybody in America is asking that question--because I don't think they can answer it. I have to say that a lot of political things are done for political reasons. We are fighting for a Hispanic nominee to the circuit court of appeals. And you saw virtually every Republican in the Chamber last night fighting for Miguel Estrada.

Where were the Democrats? Backbiting, raising false issues, raising lousy issues, raising I think sometimes immature issues, raising irrelevant issues, raising red-herring issues, treating him totally different from the way they wanted their caucasian nominees to be treated.

Why is this different? Is it because Mr. Estrada is Hispanic? I don't believe that. I don't believe my colleagues are prejudiced against Hispanics. But I believe they don't want a Republican Hispanic to serve on the Circuit Court of Appeals for the District of Columbia no matter who is President, but especially when there is a Republican President. I don't think you can conclude anything else.

After watching these proceedings and after listening to these statements, where is one point of substance against that nominee? In all of this debate, where is it? It isn't there.

Why do they think his answers are insufficient when they are virtually identical to their non-Hispanic nominees' answers? Is it because they are trying to do a better job for the judiciary than the Republicans were trying to do? I don't think so--no better than this Republican was trying to do, I will tell you that. I was in a position to do a lot.

How about Raymond Fisher? In the hearing on Judge Raymond Fisher's nomination to the Ninth Circuit, Senator Sessions asked about Judge Fisher's own personal views on whether the death penalty was constitutional.

He had a right to do that. But Judge Fisher also had a right to respond. He responded:

My view, Senator, is that, as you indicated, the Supreme

Court has ruled that the death penalty is constitutional. As

a lower appellate court judge, that is the law that I am

governed by. I don't want in my judicial career, should I be

fortunate enough to have one, to inject my personal opinions

into whether or not to follow the law. I believe that the

precedent of the Supreme Court is binding and that is what my

function is.

That is exactly, in essence, the language that Miguel Estrada used. Yet he is being criticized. Why? Is it because, as some of the Hispanic Caucus in the House said, he is just not Hispanic enough; or that he hasn't done enough for the Hispanic community? What more can a young man do than to rise to the top of his profession as a Hispanic and as an example to every young Hispanic in this country--man and woman?

They are telling us what a Hispanic has to do to be accepted by the Democratic Hispanic Caucus in the House which is so partisan that they are undermining the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia. I think they should be ashamed.

As for Congressman Menendez asking me for an apology--is he kidding? I think the apology is owed to the whole Hispanic community by the Democrat Hispanic Caucus over in the House which is undermining every Hispanic judicial nominee in the future, if they are saying--if they did, if I recall it correctly--because he has no judicial experience he should not have the privilege of sitting on the Circuit Court of Appeals for the District of Columbia.

I have previously gone through more than two dozen Clinton nominees who had no prior judicial experience and who are now sitting on the circuit court of appeals.

In the joint hearing on Judge Fisher and Judge Barry, Senator Smith asked whether the nominees would have believed that there was a constitutional right to abortion without the Roe v. Wade precedent.

This is very similar to questions that Senator Schumer of New York asked certain nominees.

But I interrupted Senator Smith to say--to my own colleague on my own side, one of my close friends in the Senate--as chairman, I said: ``That is not a fair question to these two nominees because regardless of what happened pre-1973, they have to abide by what has happened post-1973 and the current precedents that the Supreme Court has.''

Think about that. I basically told my own colleague that he was out of line in asking that question, even though he had a right to do it.

Everybody knows I am pro-life. Nobody doubts that. I have stood up for that, and I will always stand up for it because it is the right thing to do. It is the moral, upright thing to do as well. To have 39 million abortions in this society and millions more around the world primarily because of Roe v. Wade is something that every American ought to be analyzing and asking, What is going on here?

When we find that so many on the other side of the aisle support even partial-birth abortion where a full-of-life baby capable of being born outside of the mother's womb and living is basically killed by a doctor by ramming scissors into the back of its skull before that baby is pulled out so they can suck the brains out--and then say that is not a human being?

I don't see how anybody can stand up with that kind of barbaric practice, but it has been done.

Every time I think of one of these judges and how well we treated them

and how fairly we treated them, and then I see the contrast of how they are treating Miguel Estrada, I want the American people to know this. This is pure bunk on their side. Where is the substance? Why would they be filibustering for the first time in history and establishing this dangerous precedent where both sides can require 60 votes for anybody to become a judge in this country? And the Presidents will no longer control this process. Presidents will have to succumb to the almighty Senate if that becomes the rule.

That is what they are playing with over there. It is unbelievable. Presidents will no longer control the nomination process in any respect. They will have to do whatever the Senate says.

I cannot think of a worse thing that could happen to this country, because the judiciary is one-third of the separated federal powers in this country.

My gosh, let me go to Richard Tallman, since we are going through to show how they treated their nominees a lot differently than they are treating this Hispanic nominee.

I hope every Hispanic in this country is listening because it affects every Hispanic in the country, Democrat, Independent, and Republican.

Richard Tallman. In followup questions to his hearing on his nomination to the Ninth Circuit, Senator Smith asked Judge Tallman whether ``there are any questions that you feel are off limits for a Senator to ask?''

Judge Tallman's response:

A Senator may ask any question he or she wishes. Judicial

nominees are limited by judicial ethical considerations from

answering any question in a manner that would call for an

``advisory opinion'' as the courts have defined that or that

in effect would ask a nominee to suggest how he or she would

rule on an issue that could foreseeably require his or her

attention in a future case or controversy after confirmation.

Senator Smith also asked Judge Tallman several questions regarding how he would have decided certain Supreme Court cases, including Brown v. Board of Education and Roe v. Wade. Judge Tallman's answer to the Roe question was as follows. His answer to the other question was the same:

It is entirely conjectural as to what I would have done

without having the opportunity to thoroughly review the

record presented on appeal, the briefs and arguments of

counsel, and the supporting legal authorities that were

applicable at that time. I would note that the Supreme Court

has since modified Roe v. Wade, in Planned Parenthood v.

Casey.

Look, that is an answer no different than the answers for which they are criticizing Miguel Estrada. Why is that? Why is it they are not being fair to this Hispanic nominee? Why is it they do not care about fairness? Why is it they are not being fair to the nominees of the President of the United States? Why is it they are not observing the Senate practice of not filibustering nominees to the Federal courts of this country? Why is it Miguel Estrada's answers, which were basically the same as these answers, are considered nonanswers when these were considered substantive answers? Why is there a double standard? I do not understand this. Why is there a double standard?

I got off on this because of the comments of the distinguished Senator from Iowa that I have set a double standard. I defy him to show where I have, because I have been fair. Again, I will repeat, the all- time confirmation champion was Ronald Reagan, with 382 confirmed Federal judges. That was amazing. Everybody thought that was amazing. Democrats have been mad ever since, that we could have confirmed 382 Reagan nominees to the Federal bench, almost all of whom have served with distinction in the best interest of this country, working with Democrat judges as well.

Reagan had 6 years of a Republican Senate to help him get those 382 through. President Clinton got virtually the same number, and he had 6 years of an opposition party in control of the Senate. He did not have 6 years of his own party helping him. He actually had 6 years of an opposition party. I was chairman, and he got virtually the same number--astounding. He was treated fairly.

And for anybody to walk on this floor and criticize me because we were unable to get through some of the judges at the end of the session is disingenuous. There were much fewer left over at the end of President Clinton's tenure than there were at the end of Bush 1. We did not complain that there were 54 judges left over at the end of Bush 1 and, in essence, only 42 left over at the end of Clinton.

But I do bitterly resent anybody coming in here and saying I had a double standard, when I worked so hard, and had to overrule a number of my colleagues--not a big number, but a small number of colleagues--who wanted, yes, some of them wanted to filibuster, and I helped to overrule that. And they all realize today why they should have never even contemplated that. And this has helped to bring it into even greater focus.

I am calling on my colleagues on the other side to bring it into focus and realize this is dangerous stuff they are playing with here. It is dangerous. It could cost this country and all future Presidents control of the nominations process.

Now, they do not control it completely. We have an obligation, too. Our obligation is to advise and consent. Now, advise and consent does not mean advise and filibuster. It does not mean advise and obstruct. It does not mean advise and help some people but treat others with a different standard, like Miguel Estrada is being treated here. It does not mean that. And advise and consent does not mean advise and filibuster, to go back to that point.

If they succeed in this, they will have established, I believe, an unconstitutional precedent I am not sure we can get rid of afterwards. And I believe you are talking about upwards of 60 votes needed for every future judge of any quality and, I have to say, taking away a great deal of the President's power to nominate these judges, to select these judges, because no President would be able to have the right to select judges, not without the absolute blessing of the Senators. It is almost that bad now anyway.

Well, Mr. President, I think I have more than made a case that there is a double standard here. I think I have more than made the case that a lot of these Democrat judges have been treated differently from the way Miguel Estrada is being treated, and that is even not considering the filibuster.

When you consider the filibuster, that is like throwing nuclear waste all over the judiciary process, because that really is going to cause problems around here like we have never even dreamed of before.

It is inadvisable, it is wrong, it is constitutionally unsound. And it is a travesty. And it is--to use a very important word--unfair, unfair to Miguel Estrada, unfair to the President, who has nominated him, unfair to this process, unfair to Republicans on this side who treated Clinton judges fairly and well. It is unfair to our procedures around here.

With that, I yield the floor.

Will the Senator yield on that one point? I have some new information.

And we do have mutual friendship.

I have done some checking on this, and I thought I would bring it do the attention of the Senator. They tell me at the White House that they have never, the Justice Department has never given out these materials requested by the Democrats--not in the Bork case, not in any other case.

Now, in the Bork case they did give materials that pertained to his dismissal of Archibald Cox during Watergate, specific materials, but not a widespread fishing expedition. And there is a reason they do not want to give these documents up--because they are privileged, they are a work product of the Solicitor General's Office, they are crucial to the Solicitor General's Office functioning well.

I bring that to my friend's attention because the arguments that have been brought up have been not persuasive, they are not accurate, and frankly in the other people beside Judge Bork, there is no record at all that the Justice Department ever gave those documents to those people. Somebody may have leaked them, but the Justice Department did not give them.

I thank the Senator. I just wanted to tell the Senator that I think this is a red herring.

If I could ask one question, and of course I will listen to the Senator.

It is my understanding that the Democrats have asked for memoranda of appeals, certiorari petitions, and amicus curiae. Does the Senator have any indication that any documents pertaining to recommendations of appeals, certiorari, or amicus curiae have ever been given by the Justice Department?

Mr. President, I have been listening to this day after day after day. It is clear this is a game. It is a bad game. If they don't like the answers Mr. Estrada has given, vote against him. That is the remedy here. Don't filibuster. Don't explode this body into always having filibusters on any judge who may be controversial on one side or the other. Vote against him. Talk against him, like we have had plenty of. Then you have an absolute right to vote against him if you want to.

Now, let me go back through some of the things we were talking about. On May 15, 2002, Senator Leahy sent the following letter to Attorney General Ashcroft:

In connection with the nomination of Miguel Estrada to the

United States Court of Appeals for the D.C. Circuit, I write

to request that the Department of Justice send to the

Judiciary Committee appeal recommendations, certiorari

recommendations, and amicus recommendations Mr. Estrada

worked on while at the Department of Justice. This should

assist the Committee in considering this nomination.

On June 5, in a letter from the Department of Justice, they answered the then-Chairman Leahy's letter:

Dear Mr. Chairman:

This is in response to your letter dated May 15, 2002,

requesting appeal recommendations, certiorari

recommendations, and amicus recommendations that Miguel

Estrada worked on when he was employed at the Department of

Justice.

The categories of documents you have requested are among

the most highly privileged and deliberative documents

generated within the Department of Justice. The Solicitor

General must have the benefit of candid and confidential

advice in order to discharge his critical responsibility of

deciding what appeals the Government will take and what

positions the Government will adopt in pending litigation.

Attorneys like Mr. Estrada who serve as Assistants to the

Solicitor General are asked to render candid, unbiased, and

professional advice about the merits of potential appeals.

They do so by preparing exactly the kinds of recommendation

memoranda you have requested. These documents review the

substantive legal issues in a case, the broader

jurisprudential implications of the case, policy

considerations, the strength of the factual record, and the

overall likelihood of success on appeal.

If highly privileged and deliberative documents of this

kind are not shielded from disclosure, the Department will

face the grave danger that Assistants to the Solicitor

General, and others in comparable positions, will be chilled

in the future from providing the candid and independent

analysis that is essential to high-level decisionmaking. As

the unanimous Supreme Court recognized: ``Human experience

teaches that those who

expect public dissemination of their remarks may well temper

candor with a concern for appearances and for their own

interests to the detriment of the decisionmaking process.''

United States v. Nixon, 418 U.S. 683, 705 (1974). The Court

observed that ``the importance of this confidentiality is too

plain to require further discussion.'' Simply put, the

Department cannot function properly if our attorneys write

these kinds of documents with one eye focused on the effect

that their words, if made public, might have on their

qualification for future office.

For these reasons, the Department has a longstanding

policy--which has endured across administrations of both

parties--of declining to release publicly or make available

to Congress the kinds of documents you have requested.

We trust that you will appreciate the important

institutional interests that lead us to decline your request.

In our judgment, the Committee has had ample time and

alternative means for obtaining assessments of how Mr.

Estrada's performance as an Assistant to the Solicitor

General bears on the merits of his nomination. In particular,

you have been free to inquire of the Solicitors General under

whom Mr. Estrada served their views as to his qualifications

for the position to which he has been nominated.

On January 25, 2002, you promised a Committee hearing for

Mr. Estrada this year. So that the Committee can meet our

commitment, we would request that you contact me or Judge

Gonzales as soon as possible to discuss this matter if you

have any questions or concerns.

That is the letter from the Justice Department in response to the letter Senator Leahy sent on May 15. Apparently, at the hearing this issue was raised again, and the Department of Justice responded to Chairman Leahy again on October 8, 2002:

Dear Mr. Chairman:

During the hearing on September 26, 2002, on the nomination

of Miguel A. Estrada to the U.S. Court of Appeals for the

District of Columbia Circuit, you and Senator Schumer

restated your request that the Department of Justice disclose

certain confidential and privileged appeal, certiorari, and

amicus memoranda that Mr. Estrada authored when he was a

career lawyer in the Office of the Solicitor General.

As we indicated in our letter of June 5, 2002, we must

respectfully decline your request. The relevant historical,

policy, and legal considerations implicated by your request

demonstrate that disclosure of these memoranda from the

Office of the Solicitor General would undermine the integrity

of the decisionmaking process in that Office.

The Committee's request threatens the proper functioning of

the Office of the Solicitor General. Indeed, all seven living

former Solicitors General--from Archibald Cox to Seth P.

Waxman--have written to the Committee and explained that the

Committee's broad and unprecedented request would have a

debilitating effect on the ability of the United States to

represent itself in litigation. Their letter explained that,

as Solicitors General, their ``decisionmaking process

required the unbridled, open exchange of ideas--an exchange

that simply cannot take place if attorneys have reason to

fear that their private recommendations are not private at

all, but vulnerable to public disclosure.''

That letter is quite detailed, Mr. President. It goes on to make this case as persuasively as it can, and it gives a number of charts that make the case as well, all to no avail, apparently, because our colleagues think this is a good issue to stop and stymie this Hispanic nominee.

Now, that was October 8. Not until after we noticed the markup for Mr. Estrada on January 23, 2003, did Senator Schumer write to the Honorable John Ashcroft at the Attorney General's Office, again requesting these matters. And then the Department of Justice responded immediately. We received it on January 23. Jamie E. Brown, Acting Assistant Attorney General, explained that they cannot do this. I have been informed that never have they given up appeal recommendations, amicus recommendations, and certiorari recommendations.

I ask unanimous consent that these letters be printed in the Record in that order.

Mr. President, I want to make one or two other points, and then I understand Senator Kyl is here and I hope he can be heard. I ask unanimous consent that he be recognized after me.

All right. Here we are in the middle of an unprecedented filibuster. We have heard a lot of arguments and many repeated arguments. We have heard Mr. Estrada ``has not answered the Senators' questions.'' Well, he has. They asked question after question at the hearing--one that they conducted and they controlled. Any Senator who was not satisfied, and had additional questions, had the opportunity to send additional questions. Well, they did. Two Senators--only two of them--sent Mr. Estrada followup questions. Senators Durbin and Kennedy asked multiple questions. Mr. Estrada answered these, and answered them fully.

Here is what is unfair. If they don't like the answers, as I have said, my Democratic colleagues have a remedy; they can vote against him. That is their right. If that is what they want to do, that is the proper exercise of their constitutional duty. But to simply deny the Senate a vote is unfair to the nominee, unfair to this body, unfair to the President, and unfair to a majority of Senators who want to vote for this man and exercise their constitutional duty under article II, section 2. This is an abuse of the debate privileges of this body. This is simply an abuse by the minority. It is nothing more than what some would call the tyranny of the minority. It is the first time in the history of this country that an appeals court nominee has been filibustered. It is a doggone shame the first Hispanic ever nominated to the Circuit Court of Appeals of the District of Columbia happens to be the nominee here. This is against our constitutional duty and against the spirit of what we are elected to do. We are supposed to advise and consent. Consent means Senators can vote against or they can vote for. It doesn't mean advise and filibuster. It doesn't mean advise and obstruct.

I will say it again. The Democrats have asked their questions and they have gotten their answers. If they don't like the answers, they can vote against the nominee. But don't continue to obstruct. It is simply not fair.

Mr. President, I think any fair observer who looks at the transcript of this hearing, and looks at those questions and answers, will have to admit he answered their questions. Admittedly, I suspect he did not answer them the way they wanted him to. That is, they could not dig up any dirt on him. So what are they doing now? Trying to

see if, through a fishing expedition, they can find some documents where they can. That is offensive. To ask for confidential, privileged documents from the Solicitor General's Office in spite of the warning of seven former Solicitors General, four of whom are leading Democrat attorneys who vociferously say you should not do that, that would be very harmful and detrimental to the process. They have ignored those recommendations.

Any fair observer who looks at these questions and answers will have to say he answered their questions, maybe not the way they wanted him to, but he answered them as a deliberative person would, and as most other nominees have answered the same type of questions. He answered them in a very intelligent, worthwhile fashion.

I yield the floor.

Madam President, if I may ask my colleague from Massachusetts for a moment of privilege, I want to personally praise my colleague from Missouri for his maiden speech today and for the excellent job he has been doing ever since he began here. I just wish we had him on the Judiciary Committee as well because we know the great lawyer he is, and we also know about the terrific experiences he has had over in the House and also in private practice.

I just want him to know how much we appreciate having him in the Senate and how proud I am of him every day.

I thank my colleague from Massachusetts.

Mr. President, it seems to me if the Democrats are going to filibuster, they ought to give some reasons for their filibuster. They have said they are going to filibuster, for the first time in the history of this country, a Federal circuit court nominee, and the first Hispanic nominated to the Circuit Court of Appeals for the District of Columbia.

Where are they? We have had all kinds of talks on foreign policy, on running down the President's financial plans, running down his foreign policy. I heard one Senator today talk about the real problem is North Korea. Of course, it is a real problem. So is Iraq. So is Osama bin Laden.

These are the people who watched me in the middle of the 1990s be the first one to tell President Clinton he better get on Osama bin Laden because he is going to kill Americans. I actually was the first to bring that forth.

I have been on the Senate Select Committee on Intelligence twice. They

did nothing, and now they are moaning and groaning because we have inherited a problem that has existed for a long time. Because nothing was done? Now they are saying, well, we should be concerned about North Korea. Yes, we should be. We should be concerned about everything.

It does not take many brains to realize a lot of the finances that come for the terrorist movement throughout the Middle East and throughout the world come from Iraq. They have supported virtually everybody. The Egyptian Islamic Jihad, that is where Al-Zawahri comes from. He is No. 2 to Osama bin Laden. That is where they have gotten a lot of their money. They support the Palestinian Islamic Jihad. They support virtually every Islamic terrorist group around. Now we are supposed to just stand back because some of the Democrats think we ought to concentrate our efforts on North Korea. Of course, we are concentrating our efforts there. The President is doing everything he should do. It is not quite the same. Those people are hemmed in by China, who they have to have just for food, and it is not in China's best interest to allow North Korea to have this kind of power and be able to irresponsibly use it. Nor is it in the interest of anybody in the Asian community, and it is certainly not in our interest. We have top people working on that and controlling it.

It is hard to control wild men, and we have to really look hard to find one worse than Saddam Hussein. Saddam Hussein has used weapons of mass destruction against his own people. Imagine what he would do to us if he could.

My colleagues on the other side know as much as I know about it, or at least they should, and that is before the first session of inspections, Saddam Hussein came that close to having a nuclear device. You think he is not trying to do that now, and in his country, the size of California, do you think it is hard for him to secrete his weapons of mass destruction? He can hide those in a million different ways. This is a joke.

We have to fight terrorism. We have to fight these types of people on all sides. And we are. This administration is doing everything it can, and it really needs to have a little less bellyaching and a little less criticism, a little less partisanship than what we are getting sometimes around here.

I heard other Senators get on this floor and say this court--to go back to Miguel Estrada--the first Hispanic nominated to the circuit court of appeals in this country who is being filibustered by people who, throughout the years, have said we would never filibuster when they had the Presidency, we would never use that type of a tactic. Here they are, using it. It is hypocritical. It is wrong. It is unfair. It is establishing a precedent that could hurt this country immeasurably. We could only have the least common denominator on the Federal courts if some on the other side got their way. To do it against the first Hispanic nominated to the Circuit Court of Appeals for the District of Columbia is particularly reprehensible, especially since he has every qualification a person needs to fulfill this responsibility.

The White House and the general counsel's office have been working overtime day and night to answer all the questions these people have asked over and over that are ridiculous in nature. They have made Miguel Estrada available for any Democrat who wants to talk to him. The Democrats conducted the hearing. It was all day, which is extraordinary in and of itself. They controlled every aspect of that hearing. They asked the questions that they wanted to ask. He did not answer some of them the way they would have preferred. Then they could have defeated him for sure. That is not his job to try to please the Democrats or me or anybody else. His job is to tell the truth, which is what he did. And he had an obligation to tell the truth without saying how he would vote on any given issue, or otherwise he would have to recuse himself after he gets on the bench and be less effective.

Some of the arguments we have had around here are ridiculous. The very people who are griping about getting these confidential privileged memoranda down at the Solicitor General's Office ignore the fact that of the seven former current living Solicitors General, four of them are Democrats in the Solicitor's Office. Three reviewed Miguel Estrada's memoranda.

How far do we go with these ridiculous arguments, these unfair arguments, these discriminatory and prejudicial arguments, against a person who has every qualification to be on this court? There is only one reason they are fighting like this. They think Republicans are going to back down. Or that the President will back down. He will not back down.

I don't think most Democrats feel the way some of the radicals over there do. There are some people with reasonable minds over there. I think most of them. I respect everyone on the other side, but I have to tell you, some of them are listening to the most radical people on their side in bringing this filibuster and going against one of the best nominees in history.

I have been on the Judiciary Committee almost 30 years, 27 years now. There are very few who you would rate at the level with Miguel Estrada. Every Hispanic in this country ought to be proud of it. I am calling on every Hispanic in the country, whether Democrat, Independent, Republican, whether you are liberal, moderate or conservative, you better start calling the Democrats and let them know this is not fair, this is not right. It is abysmal. Some would say abominable. I think I would be one of those.

I have seen some unfair things here from time to time, and this is a tough body, there is no question. Sometimes we do some dumb things, but I have never seen anything more unfair than what is happening here. With Senators hiding behind this, I think, phony request for documents they know they should not have a right to have and then try to represent on the floor that the few cases where somebody leaked documents to them, that were not recommendations for appeals, recommendations for amicus curiae briefs, recommendations for certiorari, none of them were, but some were leaked from the Solicitor General's Office by partisan Democrats and they have some of these.

They have not seen fit to let us have copies of them, other than what they are putting in the Record. We have asked for them, but they did not have time to give them to us. The one case they can show where the Department really did give some documentation was in the case of Robert Bork. The Department produced some documents concerning Bork's firing of Archibald Cox. It was a specialty situation. But they were not documents of recommendations of employees in the Solicitor General's Office concerning appeals, concerning certiorari appeals, and concerning amicus curiae briefs.

This is one of the phoniest excuses I have ever heard. Keep in mind, four of their former Solicitors General, Democrat Solicitors General, are on Miguel Estrada's side. And three of them reviewed every one of those documents. That is not good enough for them? They know the administration cannot give in to these requests because if they did, every time anybody is nominated from any part of the Justice Department they would have to get confidential memoranda.

The executive branch does have some rights. I know that some on the other side do not believe that, but they do. They have some rights to have their confidential documents remain confidential so they can get the best advice they possibly can to represent this country, as the executive branch should. This is one of the worst arguments I have ever heard on the floor of the Senate. And it is all done for political purposes because they believe that this Hispanic man, a Republican-- which is very tough for them to take, who they believe to be conservative--he is certainly probably moderate to conservative--I just know he is qualified. Everything about him says he is qualified. All of his experience tells me he is qualified. The fact he led the class at Harvard Law School says he is qualified. The fact he was one of the leaders of the class at Columbia University says he is qualified. The fact that he served Amalya Kearse, a Carter appointee, and she praised him says he is qualified. The fact he served for a Justice of the U.S. Supreme Court, Anthony Kennedy, says he is qualified.

But now the administration, in response to these ridiculous claims and these ridiculous statements made on the floor of the Senate, has now sent a

15-page, single-spaced letter that basically covers every one of these stupid claims that have been raised.

I guess maybe I should not say that. Anyone can raise any claim, whether it is stupid or otherwise, on the floor, and every Senator can ask even the dumbest questions of nominees if they want. That does not mean nominees have to answer them. It does not mean they have to answer them the way they want to--the dumb questioners, that is. We have all done that from time to time, and we all fit into that category, maybe, from time to time, but not consistently.

There is nothing more than prejudice going on here; nothing more than unfairness going on here; nothing more than a double standard going on here; nothing more than trying to trip up the President of the United States and make his life even more miserable than it is every day with North Korea, with Iraq, with all the other problems we have in this world, including France, Germany, and Belgium, which are acting disgracefully and deserve the condemnation of the world for their continuous disgraceful disruptions of the unity of our NATO allies and for their refusal to back Turkey, our ally who has stood up when others have not stood up. We don't need them. We will back Turkey, and we should back Turkey.

What gets me is we are in the middle of a filibuster of a Federal judge, when the Constitution says we should give advice and consent, not advice and obstruction, not advice and a filibuster, not advice and unfairness.

I have to admit there were some on our side who treated President Clinton in a shabby fashion. Not very many, but there were a few. I remember as a young Senator I criticized President Carter pretty strongly one day. Later, I was on a 3-hour television show with him, sitting right beside him. We had plenty of time to discuss and talk, and I apologized. I said I really feel badly; I felt I didn't treat you fairly. He leaned over and smiled and said, Orrin, I never knew you did it. He said, you were so fair in so many other ways, I didn't notice any unfairness. That is typical of what a fine, gracious man he is.

Bill Clinton has plenty of faults, we all know that, like all the rest of us. Maybe not like all the rest of us, but we all have faults, we will put it that way. And sometimes he wasn't treated as fairly as he should have been, but I sure tried to do so. I certainly did with regard to his judicial nominees. I will tell you one thing, we never, ever filibustered a Clinton nominee, not once. There were some cloture votes, but it wasn't part of a filibuster; it was more to move the Senate along. And nobody can claim anybody on our side actually filibustered a Federal judge, which is a disgraceful thing to do.

I have to say I care a great deal for all of my colleagues in this body. These are 100 of the greatest people on Earth. I care for my colleagues on the Democratic side. But where are they? Why aren't they telling us why? Why don't they give us a reason that is a good reason for being against Miguel Estrada, with all of the qualifications he has? Why couldn't they treat us the way they wanted us to treat their circuit court nominees, which I made sure we treated right. Why can't they be decent to this Hispanic nominee, the first ever nominated to the Circuit Court of Appeals for the District of Columbia, one of the most important courts? Why is it that Senators from the Democrat side get on the floor and act as if, because a person is conservative, that person is not going to do what is right under the law; that person is not going to make sure the law is fulfilled; that person is not going to make sure the principle of stare decisis or prior precedent is followed? Miguel Estrada says he will, and he's an honest man. He will.

Why is it they think only liberal ideas are any good? I kind of admire people who think only their point of view is correct and everybody else is wrong. But I have to tell you, some of the greatest judges in our country's history are conservatives. Some of the greatest judges are liberals. And some of the worst are liberals--and conservatives. Miguel Estrada would make one of the best, and he is the American dream personified. He would open the doors for many Hispanic people, not just in the Federal judiciary but in so many other ways throughout this society because he will set an example that will be exemplary for all of us to observe. He should have a chance to sit on this court and should not have to go through this type of unfair treatment.

No nominee to the Federal court should have to go through a filibuster. But, if the Democrats are going to filibuster, why don't they get over here and filibuster? Why don't they tell us the reasons why? If you look at their reasons, there is not a bit of substance to any of them.

I ask unanimous consent the most recent letter of the White House, this 15-page single-space typewritten letter I think answers every Democrat concern, be printed in the Record.

I yield the floor.

Mr. President, I ask unanimous consent that the distinguished Senator from Pennsylvania be allowed 6 minutes without my losing the right to the floor and that I immediately be recognized thereafter.