Floor Statements

Mr. President, here we are in the middle of an unprecedented filibuster against the first Hispanic nominee to the Circuit Court of Appeals for the District of Columbia--against a man who has a unanimously well-qualified rating by the ABA, which was the gold standard of the Democrats and something that a lot of confirmed judges did not have; a man who has all the credentials in the world-- magna cum laude from Columbia, magna cum laude from the Harvard School of Law, editor in chief of the Law Review, clerked for two Federal judges, one on the Second Circuit Court of Appeals put on the bench by President Carter, a Democrat, and, the other, Supreme Court Justice Anthony Kennedy--lots of experience, worked in the Solicitor General's Office.

We have heard a lot of arguments, and many respected arguments. We have heard that Mr. Estrada has not answered the questions of Senators on that side. Well, he has. He spent a full day when they conducted the hearings. They set the agenda. They asked any questions they wanted to ask. They were in control. They have even said on the floor during this debate that the hearings were conducted fairly by them.

Then, when the election was lost, all of a sudden they now want to ask more questions. And, by the way, they had an opportunity to ask any written questions after the full hearing. Only two Senators asked written questions--Senator Durbin from Illinois and Senator Kennedy from Massachusetts. He answered those questions.

The problem here is that he didn't answer the questions the way they wanted him to. He answered them the way he should have. We put those questions and those answers into the Record today.

It is unfair, after what this man has gone through--after all the hearings, all the questions, all the time that has elapsed--almost 2 years--that this highly qualified individual is now being filibustered on the floor of the Senate.

If the Democrat Members of the Senate do not like his answers, then they have a remedy; that is, vote against Miguel Estrada. I can live with that. That is their right. If that is what they want to do, that is a proper exercise of their constitutional duty.

But really understand that to constitutionally modify the advice and consent process of the Constitution and now require 60 votes in order to have a Presidential nominee confirmed by the Senate is unprecedented, except in one case, and that was Judge Fortas. President Nixon himself fought against that and argued against that. But it was a bipartisan filibuster, if you have to characterize it.

To simply deny the Senate a vote is unfair. It is unfair to the Senate, it is unfair to the President, it is unfair to the process, and it certainly is unfair to this Hispanic American, who, by the way, has risen to be one of the best appellate lawyers in the country even though he has the speech impediment disability. Think of it. He has a speech impediment, and yet he has argued 15 cases before the U.S. Supreme Court, winning 10 of them. I can't name many candidates for judicial office in my 27 years in the Senate who had even come close to that record.

I think this is an abuse of the process. It is an abuse of what has really been precedent through all of these years. It is an abuse by the minority. It is nothing more than what some would call the tyranny of the minority against the first Hispanic nominee in the history of this country to the Circuit Court of Appeals for the District of Columbia.

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

First, let's understand the Democratic Hispanic Caucus. They did not allow the Republican Hispanics, the three of them in the House of Representatives, to become part of that. So it is clearly a very partisan group. We have a couple of our colleagues in the Chamber from the House of Representatives watching this very carefully, people who have spoken out for the Hispanic community.

Secondly, by saying that he does not have any judicial experience, therefore, he doesn't qualify to be on the Federal

bench, what does that say to every member of the Hispanic Bar Association, none of whom, really, except current judges, have any judicial experience in the sense of having been judges. It means he is saying they cannot be judges either.

What kind of a representative of the Hispanic community would make that kind of a statement, if he really wants to help the Hispanic community? Or is that representative just making partisan remarks, which is what I believe he was doing?

The fact is, we have confirmed 26 Clinton judges who have not had judicial experience--26. That is the phoniest argument I have heard yet, and it is a disgrace to argue it in the sense that Hispanics cannot serve on the judiciary if they have not had judicial experience.

Now, let's think of one other thing. Miguel Estrada was a law clerk to Amalya Kearse, a Carter appointee, on the Second Circuit Court of Appeals. That is judicial experience. He helped write some of the opinions that she made. He was a law clerk to Anthony Kennedy on the Supreme Court of the United States of America. That is a lot more than a lot of others, than any of the 26 Clinton appointees had.

So to say that he has not had judicial expedience--but even if you do not count that as judicial experience, this is a man with every qualification, and they have not laid a glove on him. It is really very unfair, and I think we ought to all stop and think about that.

But I would also like to point out--I do not mean to take too long on this question, but I also would like to point out 108 men and women have served on the Supreme Court, and of the 108, 43 had no judicial experience at all. In the Court's history, 8 of the 16 Chief Justices-- most recently, Chief Justice Earl Warren--had no prior judicial experience when appointed to the Supreme Court. Of those Justices appointed in the last 50 years, Justices William Rehnquist, Lewis Powell, Jr., Abe Fortas, Arthur Goldberg, and Bryon White had no prior judicial experience when they were appointed to the U.S. Supreme Court.

I know that is the phoniest argument I have heard yet.

If I could first yield to the Senator from Kansas.

The nominee, Miguel Estrada, worked for the Clinton administration. He worked in the Solicitor General's Office of the Justice Department in the Clinton administration. And it is highly unlikely that he would have received the support of Seth Waxman and other prominent Democrats if he were a right-wing ideologue. In fact, Seth Waxman says he is not.

Now, Seth Waxman was a Democrat Solicitor General under Clinton. By the way, the seven living former Solicitors General are backing Miguel Estrada, four of whom are Democrats: Seth Waxman, Drew Days, Walter Dellinger, and Archibald Cox.

I ask for the regular order.

I will, without losing my right to the floor.

It is a good question. Miguel Estrada is a full partner in one of the great law firms of the country, Gibson, Dunn & Crutcher, at his young age. He has argued 15 cases before the Supreme Court, winning 10 of them. That is a pretty good record. By the way, I mentioned he did that suffering a disability.

This man has arisen above language barriers, immigration barriers, educational barriers, legal barriers, to attain to the position he has. He has lived a Hispanic dream life. And here he is being held up on the floor of the Senate--without one good reason.

I will, without losing my right to the floor.

He came to the United States at age 17, if I recall it correctly. He had a very limited knowledge of English, taught himself English, went on to Columbia University, graduating magna cum laude, and from there went on to Harvard University, where he also graduated magna cum laude and also was editor in chief of the Harvard Law Review.

Yes, he overcame a lot of problems. As I say, that is in addition to his disability that has not stopped him from reaching the heights of the legal profession.

I yield further to the distinguished Senator from New Hampshire.

The Senator is absolutely correct. Miguel Estrada is a brilliant individual.

I would never want to characterize either as being liberal or conservative. But I think people who know can very easily characterize them.

Without losing my right to the floor.

Well, keep in mind, Miguel Estrada is a partner in the very prestigious law firm of Gibson, Dunn & Crutcher. But he got there by clerking--to get a clerk's position in a Federal court is a very high honor. To be editor of the Law Review at Harvard is one of the highest honors any law school can offer. But then he becomes a clerk to Amalya Kearse on the Second

Circuit Court of Appeals, which is one of the great circuits in this country. She is a great judge. And then he later became a clerk to Justice Anthony Kennedy on the Supreme Court, and is still one of his best friends and advisers, and vice versa. And, of course, he has become a partner in one of the great law firms in this society.

He has tried all kinds of cases, 15 before the Supreme Court, winning 10.

When the ABA, which my friends on the other side have called the gold standard, did their thorough investigation of Miguel Estrada, they came to the conclusion he is unanimously well qualified, the highest rating the American Bar Association can give. That is in spite of all of the impediments this young man has had coming up through the ranks from Honduras to this country to college to law school to these various positions. By the way, I didn't mention he worked in the Solicitor General's Office giving very effective opinions for both the first Bush administration and the Clinton administration.

He did. He served as an assistant to the Solicitor General and came away with virtual raves for his work. Only one person has criticized him, and we have more than made it clear that that criticism is blown away by that person's, Professor Paul Bender from Arizona State University, raving reviews of his work when he was actually there. I think we would rely on those raving reviews rather than the political statement that was made later.

Yes, without losing my right to the floor.

If there is a greater success story, I would like to meet the person. If you were to meet Miguel Estrada, you would say this is truly a wonderful man and a great lawyer. Fourteen of his colleagues, I believe, at the Solicitor General's Office and throughout the Government, including Seth Waxman, who was Solicitor General in the Clinton administration, and I might add Ron Klain, who worked on the Judiciary Committee, was Al Gore's most faithful legal advisor, went everywhere with Al Gore, totally devoted to him, have said he would make a wonderful judge. He has the temperament and ability to do so.

Only one person has issued a negative opinion, and that was Professor Paul Bender. If you read the record--I don't want to go through it again--I think that opinion should be totally discarded when you look at the facts.

I am happy to, without losing my right to the floor.

That is true. All seven living Solicitor Generals--four Democrats, three Republicans--oppose this request. The Democrats are Archibald Cox, Seth Waxman, Drew Days, and Walter Dellinger. The Republicans are Charles Fried, Robert Bork, and Ken Starr. I might add that both the Washington Post and the Wall Street Journal oppose the demand for these memos.

There is good reason for that. When the Democrats requested the memos, they requested his recommendations on appeals, his recommendations on certiorari petitions, his recommendations on amicus curiae briefs. Never in the history of the Justice Department have those type of materials that are privileged, confidential work product materials been given to this branch of Government or any other branch.

The Democrats have said there are four or five cases where the Department of Justice materials have been given. They have scoured the Justice Department; the administration and the current Justice Department have scoured those records, and they have found in all but Bob Bork there was no evidence anybody had given up those records to anybody here. If they have records, they must have been leaked by friends of the Democrats in the administration. They were not provided by the Justice Department.

In the case of Bob Bork, they did give some special request memoranda, because it was up to the Supreme Court, affecting the area involving his decisions with regard to Archibald Cox. Certainly not the recommendations in writing, the confidential recommendations in writing of appeals, amicus curiae and certiorari petitions.

He has said that. But the Justice Department has tremendous problems. They not only consider it a matter of principle, they consider it a matter of absolute principle.

That is right. They are not his to release even if he wanted to.

Let him ask the question.

No question about it. It is a fishing expedition. And why is it? We received the last letter to produce these materials after they had been refused, in eloquent, very deliberate and straightforward letters from the White House; we received the last request, I think, the day before the hearing on Miguel Estrada. Frankly, it is clearly a fishing expedition, trying to find something because they don't have anything on this man. They just don't like the fact he is a conservative Republican Hispanic.

Without yielding my right to the floor.

Mr. President, I think we ought to give the----

I think he should be allowed to ask his question.

You are correct.

As you know, Senator, you did that. We respect your credibility. I think both sides respect your credibility, as we should. You did make a very formal and important statement on behalf of Miguel Estrada.

Mr. President, I am happy to yield for a question without losing my right to the floor.

Without question, that is so.

The Senator is correct once again.

That is correct. And three Democrat Solicitors General reviewed these materials and had access to them, and they have nothing but praise for the work of Mr. Estrada.

Well, I have to say that the Solicitor General's Office is one of the most important offices in the country. This is the advocate for our country. These opinions are extremely important. They want the best opinion they can get from the people who serve there and write the opinions, as Miguel Estrada did. By necessity, they have to be confidential and privileged because, otherwise, the Solicitor General's Office would not function as well on behalf of the American citizens.

So in all honesty, if our friends on the other side were to prevail in forcing any administration, or if we would do so later because they do so now, then that means no privileges will be respected in the executive branch of the Government. Now, if we start doing that, I have to ask you, where does it end? Does it end where the opinions our staffs give us at our request have to be given up if they are nominated?

Well, let's just be honest about it. Considering a nomination for a judgeship like it is being done here would become just a methodology for anybody. If you didn't get the papers you wanted from some source or other in the Federal Government--and it might even include the Senate--then you can hold up judges just as they are doing here. Look, that would----

Put it this way. If one of my excellent staff people was nominated to a Federal judgeship and somebody tried to pull that one over on me, I would raise such cane that it would blow the lid off this building, and I think anybody else would, too. You can imagine how the Solicitor General's Office must feel for this type of an inappropriate request for a confidential, privileged matter that they have to keep that way if they want to not chill honest discourse within the Solicitor General's Office. This is absurd. That is what they are pinning their hat on here.

Let me tell you, if that is what it comes down to, it is going to be hard to get any judge through that one or the other side has a difference with in the slightest degree. There is no reason to disagree with Mr. Estrada. I have not heard one legitimate, good reason--not one yet.

Yes, without losing my right to the floor.

It certainly looks that way to me. One argument is that he is not Hispanic enough. That is ridiculous. Others have said he hasn't had any judicial experience. I think we have more than blown that away. I don't think any reasonable person would make that argument. Yet I have heard argument after argument that he doesn't have any judicial experience.

I agree that some special interest groups, and others that have been criticizing Mr. Estrada, think all minorities have to think alike. If you are a minority, if you don't toe the liberal line, they don't want anything to do with you. That is the problem here.

I don't think my colleagues are against Mr. Estrada because he is Hispanic. No, it is because he is a Hispanic

Republican, and they think conservative, who may not agree with some of their more liberal ideas.

It seems to me that this is fundamentally un-American. I don't think there is anyplace in our system for this type of thinking. Miguel Estrada reached his views by examining all the facts and coming to his conclusions, and to suggest that he or anyone else has to arrive at a certain political bent--and one only--is simply not fair. He is not being treated fairly here. I don't think anybody who watches this or looks at it, or understands it would think he is being treated fairly. He is just not.

Yes.

Mr. President, as you can see, there is no fairness in this process. This is the first filibuster for a circuit court of appeals nominee in the history of this country. The majority leader has been very fair in granting extra time. The other side said they have debated it long enough. We have always voted up or down at this juncture, and the minority is unfairly filibustering this nominee for the first time in history, this Hispanic-American nominee who has climbed every step of the way into the American dream. They are taking an attitude and a position that takes away from that American dream.

Without losing my right to the floor.

Mr. President, I say to the Senator, that is absolutely true.

That is correct.

This is correct.

I agree, justice delayed is justice denied, and this is a very important court. The problem is our friends on the other side just do not want a conservative Hispanic appointed by a Republican President on that court.

For a question.

I agree 100 percent with the distinguished Senator from Virginia.

I will be happy to, without losing my right to the floor.

Without losing my right to the floor, I will be happy to yield.

A simple majority. It says we have the power of advising and consenting. It does not say we have the power to advise and filibuster or obstruct, which is what is going on here.

There is no question. I agree with the distinguished Senator from Texas. That is what is going on here, and they are depriving this qualified Hispanic of his right to sit on this bench without any real justification. That is what bothers me. It is a double standard. It is clearly a double standard, and it is a double standard that is unseemly. I think the Senator put it exactly right.

Two of our Hispanic Republican colleagues in the House have come over here to show their support for Mr. Estrada, Mr. Mario Diaz-Balart and Mr. Devin Nunes.

I will be happy to yield, without losing my right to the floor.

It was a disgrace.

It was a disgrace that Judge Paez had to wait that long, but Judge Paez had an up-or-down vote on this floor allowed by my colleagues at my request. There was no formal filibuster at the time. Nobody said there was going to be a filibuster. We know we have had some cloture votes in the past, but they have been for votes of convenience or the majority leader has called them for some reason or another but not because there was a filibuster.

The important thing is--and, look, I think it is time for your side to understand it. The important thing is here was a judge that, yes, I do not think was treated fairly, but in the end he had a vote. In the end he sits on the Ninth Circuit Court of Appeals even though our side, almost to a person, in fact to a person, disagreed with that nomination. But we gave him a vote.

Let me tell you something--

Let me address the Chair then in answering this question. Miguel Estrada, without one thing against him--and by the way, Judge Paez had plenty of things against him that indicated he was not only an activist judge but ruled without regard to the law. There were some legitimate concerns on our side, even though I believed he should have a vote and he ultimately did, unlike Miguel Estrada.

Let me tell you something, I have not seen one legitimate, substantive reason to not give Miguel Estrada the same privilege that, yes, it took time to do and I had to fight it through and there were all kinds of problems; some were very justified problems----

It is time to give Miguel Estrada the same privilege that we gave to Judge Paez.

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

It was not necessary. It was not necessary because I was fighting to have that happen and it did in fact happen, unlike what is happening today.

Let me make a suggestion to my colleagues on the other side. I am willing to have one cloture vote, but then let's vote up or down on Estrada. And if you win, I will live with that. If you can destroy this man's career so that he cannot be a Federal circuit court of appeals judge, I will live with that. You have a right to vote against him. But you do not have a right to filibuster this man, nor should you. It is shameful. And it is shameful to put him through this without one substantive reason to do it other than a phony request for privileged documents that everybody knows is phony.

I will be happy to abide by that, and I am happy to be corrected by the Chair. I do get a little excited in this matter, and I apologize to my colleagues on the other side, but I think what has gone on does not deserve much consideration.

Mr. KYL addressed the Chair.

I figured that the Chair would understand.

Several Senators addressed the Chair.

Yes, without losing my right to the floor.

Well, I will be happy to. As I understand it, the Democrats were in control, and they filed the cloture motion--we were in control? OK. We were in control and we filed the cloture motion. I am sorry. I am so tired I cannot think straight.

Well, that is correct, and I suspect that my colleague and friend from Illinois would not vote for cloture for Mr. Estrada as I did for Judge Paez--as we did for Judge Paez.

I will be happy to yield, without losing my right to the floor.

That is correct. I am glad the Senator reminded me of that matter.

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

Which we would have done for you.

I guarantee you it is not us. I guarantee you it is you, and if you deny it I would be happy to go to a vote right now.

Let's go to a vote. If you are not filibustering, let's vote.

Mr. President, I ask for the yeas and nays.

On this nomination.

I will be happy to yield, without losing my right to the floor.

I will be happy to yield to the distinguished Senator from Nevada for a question, without losing my right to the floor.

I did not hear the question.

Not for true filibusters. I agree we have had cloture votes but not for true filibusters. It has been because a majority leader wanted to have a cloture vote, not because we were not willing to vote on nominees on either side. Your side was willing to vote and we were willing to vote and even when they had to go to cloture on Paez, the majority of Republicans voted for cloture, and then a number of Republicans voted against. But they did give him an up-or-down vote, even though there was widespread disagreement with Judge Paez.

I voted for him, by the way.

I yield for a question, without losing my right to the floor.

No way. Nobody has ever called those a filibuster and there has never been a true filibuster against a circuit court of appeals nominee until this one, and your side has announced that this is a filibuster. No one has ever agreed that those others were filibusters. There were cloture votes, no question about it. But no circuit nominee has ever been defeated by denying cloture, none; zero; nada.

I would be glad to yield, without losing my right to the floor.

Let me answer that question. There has never been a true filibuster, until this one, against a circuit court of appeals nominee. In recent years, both sides have used cloture on various occasions other than for filibuster purposes, but there has never ever been a true filibuster against a circuit court of appeals nominee until this time. And whenever there has been a cloture vote, the nominee received his or her vote up or down.

Which is not being given here and which is being denied here by the minority.

Without losing my right to the floor.

When there is an attempt to try and stop debate, when there is an attempt to try to defeat a candidate. And in every case we have had a vote up and down and the judge has been approved.

No. No, I would not.

Technically, yes, but not because there was a filibuster. And the Senator knows that.

In recent years we have used cloture motions for almost everything. But the Senator is talking to the Senator from Utah who knows what a real filibuster is, and there has never been a true filibuster until today, until this filibuster.

I am happy to yield to my colleague without losing my right to the floor.

She was never brought to the floor. I acknowledge that. She was not. She was 1 of 41 who were left hanging at the end of that administration in contrast to the 54 left hanging when the Democrats lost the Presidency and a Republican was President. In other words, 13 less. And 9 of the 41 were put up so late there was no way anyone could get through, so we are down to 32. And with 32 we had other problems. We can have all the statistics, but we ``bettered'' the Democrats in every case.

She was not brought up so there was, naturally, no filibuster.

Without losing my right to the floor.

I thank the Senator for her very erudite question. Let me start with the last part of that.

When the Democrats were in control of the Judiciary Committee and they had a Democrat President, they said the ABA was the gold standard. I cannot remember when a nominee who had a ``unanimously well- qualified'' rating, the highest rating the American Bar Association gives, had any difficulty like this. They went through. It was that simple. There is a double standard here against this Hispanic gentleman.

I have to admit I was not very pleased with the ABA during many of the years when they made ratings that

were split all the time because of partisanship. They have cleaned that up. The ABA is doing a decent job and has done a pretty decent job in the last 4 or 5 years.

What happens is when a President decides to nominate somebody, the ABA then conducts its own investigation. They send top examiners-- lawyers, if you will--into the area from where this individual nominee is nominated. They do a complete review with the top, most ethical, highest rated lawyers in that area, and others, and then they come and meet in what is called a standing committee and then they determine what kind of a rating to give. And the ratings, generally, are ``not qualified,'' ``qualified,'' or ``well-qualified.'' Sometimes those ratings have a split rating where some will be well qualified in part and qualified in part. We have even seen some ratings, well-qualified and not qualified.

In this particular case with this Hispanic nominee, Miguel Estrada, he received the highest possible unanimously qualified rating of the American Bar Association.

Just last year, two of the Senators--the Senator from New York, Mr. Schumer, and the Senator from Vermont, Mr. Leahy--called the ABA rating the gold standard for reviewing judges. They were not the only ones. Now, all of a sudden, that standard does not seem to be good enough.

Without losing my right to the floor.

I can't think of one case. In fact, there has never been a true filibuster conducted. In the cases where they have raised the question of cloture votes, cloture votes are called for one reason or another by majority leaders, but in each of those cases, as I recall, the nominees had an up-and-down vote. I would be happy to go to a cloture vote with our friends on the other side if afterwards they allow an up-and-down vote regardless of what happens on the cloture vote--happy to do it.

They do not seem to be inclined to do that. They want to filibuster the first Hispanic nominee to the Circuit Court of Appeals for the District of Columbia, who has a ``unanimously well-qualified'' rating by the American Bar Association, their gold standard, and who has all of these other qualifications that lawyers only dream about. And he has fulfilled the American dream. He is being denied his opportunity to serve by a double standard here that is being applied by my colleagues on the other side.

It is some Members. I know all of them cannot feel that way.

I thank my colleague.

Without losing my right to the floor.

Do you have anyone specifically you are referring to.

In the case of Enrique Moreno, there was no consultation, a refusal to consult with home State Senators. That is basically something we do not allow in the Judiciary Committee. It is one of the reasons that we will use both sides--if there is not adequate consultation, it is one of the reasons we will use to not bring a nominee up. And I think the distinguished Senator from Illinois should know that. If you do not, be advised, that was the reason Enrique Moreno did not come up.

I even wrote a letter to the then-Chief Counsel of the White House. I think it was Chuck Ruff at the time, bless his memory. I wrote a letter to him saying: You will not consult--they basically admitted that--and they were going to bring this up regardless. It was not adequate or good enough and no chairman, I think, would allow that nominee to come forward without consultation--it is just that simple--Democrat or Republican.

Without losing my right to the floor.

I don't think that is accurate at all. The fact is there was no consultation. I informed the counsel at the White House there was no consultation, and we were not going to bring this nominee up without consultation with both home State Senators. And both home State Senators agreed with that. Frankly, I think any chairman would have handled it exactly the same way. And it is not the same at all.

Miguel Estrada not only had a hearing, but he came through the process. It was a difficult process for him, but he came through it and the Judiciary Committee approved the nomination of Miguel Estrada. Miguel Estrada is now on the floor, so it is completely different from that situation. There was consultation in the case of Miguel Estrada. And, frankly, we are sitting here right now in a filibuster for the first time in history of a circuit court of appeals nominee, without question.

Without losing my right to the floor.

The Senator is correct, in both Democratic control of the committee and Republican control of the committee. There are many reasons. The reason may be because of failure to consult. It may be because of further investigations that have to be conducted. It may be further FBI investigations have to be conducted. It may be because of lack of time. It may be because of holds on the Senate floor, which have been used by both sides through time.

But I can tell you this. There were less holdovers at the end of my tenure as chairman of the committee than there were in 1992, at the end of the Democrats' tenure when there was a Republican President.

Let me add one last thing to that, and that is none of us complained, to my knowledge, about Senator Biden as chairman when there were 54 holdovers and 97 vacancies. We had 41 holdovers, and nine of those were put up so late there was no way I could have gotten to them in the remaining few weeks we had. So there were really only 32 holdovers and there were a number of those

for which there were justifiable reasons for not bringing them up.

There has only been one true filibuster in the history of this country, and that was the Fortas nomination. I have to say even President Nixon was against that filibuster. But it was a bipartisan filibuster of both Democrats and Republicans, unlike what we are faced with today where a minority of Democrats are filibustering against a Hispanic nominee for the Circuit Court of Appeals for the District of Columbia, a double standard.

Without losing my right to the floor.

In an unusual hearing, which was much longer than most circuit court of appeals hearings, from 10 o'clock to 5:30 that day, he was asked question after question. He was asked question after question by Democrats as well as Republicans, but mainly Democrats, to the extent that we have this transcript that is larger than most transcripts we have, other than Supreme Court nominees, where he answered the questions. The problem with the Democrats, as I understand it, is he just didn't answer the questions the way they wanted. But he answered them and he answered them in accordance with the directions of no less than Lloyd Cutler, one of the leading Democrat lawyers in the country.

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

They have not been placed in the Record. Therefore, I ask unanimous consent the questionnaire and the answers be printed in the Record. Anybody who looks at that will realize it is a very intrusive questionnaire.

Let me yield first to the distinguished Senator from Alabama and then I will be happy to yield to my friend from Nevada without losing my right to the floor.

I believe there have been some demands that have been far in excess of what has been allowed by their own chairmen in the past, especially Chairman Kennedy and Chairman Biden. I think the Senator states it correctly.

I think the Senator is correct.

I said I would yield to the distinguished Senator from Nevada.

It wasn't very funny, but I appreciate the Senator trying to interject levity. We could use maybe a little bit around here, but this is a tough issue and we are all upset.

I respect the Senator, anyway.

I am not quite sure. I have a statement to make, and I want to get that in the Record. I would like to take any questions my colleagues have on either side of the aisle. This is an important issue. So it is 10:30 at night. It is nothing to me. I am fighting for Miguel Estrada.

Sure, without losing my right to the floor.

I am prepared to be here all night, if that is what it takes. I do not want to foreclose any questions from my colleagues. I don't know how many questions there will be. But I am here to answer them, and I would like to make a statement for the Record before we finish. I will try to expedite that, if I can.

I yield for a question.

That is generally the viewpoint around here.

The filibuster comes from the word filibustero, which is Spanish. It is a word for pirating, by taking improper control, in this case of the Senate. I hope I am saying that right. I think I am pretty close.

Without losing my right to the floor.

I did read the quote in the Wall Street Journal, and I thought it was a tremendous article. It was written by the former Democratic Congressman from the State of New York. I was privileged to hear Congressman Badillo the other day at our press conference when the Hispanic community came together to decry what is going on against Miguel Estrada. He made one of the most profound and strong statements at that press conference. I have nothing but respect for him. I respected him when he was in Congress, and he certainly has been speaking up, and he is a Democrat.

But he is not the only Democrat. Seth Waxman is one of the all time great Solicitors General--wonderful Democrat attorney who I happen to have a lot of respect for. He has spoken up for Miguel Estrada as have so many other colleagues at the Solicitor General's Office. But Mr. Badillo very firmly feels this is an injustice, that it is a double standard, that this is prejudice against this nominee. I can't speak for him, but this is what I got out of his remarks and out of his article; and that there is no justification whatsoever in fighting against Miguel Estrada, and absolutely no justification in conducting the first filibuster in the history of the country against a circuit court of appeals nominee.

I have to say I was very impressed with his article, and I appreciate the Senator reading from it.

I am delighted to, without losing my right to the floor.

I suspect that is what is worrying people on the other side.

My colleagues on the other side who don't know Miguel Estrada--there is only one person who has given their criticism, and that was Professor Bender from Arizona State University who I think has more than been rebutted here on the floor.

Could I take a moment to read a few paragraphs from the White House letter responding to the Senate Democrats' continuing action here on the notion that Mr. Estrada did not answer questions of the Members?

When asked by Senator Edwards about judicial review, Mr. Estrada answered:

Courts take the laws that have been passed by you and give

you the benefit of understanding that you take the same oath

that they do to uphold the Constitution. And, therefore, they

take the laws with the presumption that they are

constitutional. It is the affirmative burden of the plaintiff

to show that you have gone beyond your oath. If they come

into court, then it is appropriate for courts to undertake to

listen to the legal arguments, which is that the legislature

went beyond its role as a legislature and invaded the

Constitution.

That is a deliberative and very important answer to questions they claim he never answered.

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

That was my experience with the Clinton administration. I don't know of any rightwing ideolog----

He did, indeed, and he received rave reviews for his work at the Solicitor General's Office in the Clinton administration by a Democrat Solicitor General.

I certainly agree with that. Mr. Waxman, who is a highly regarded and respected lawyer, was the Solicitor General--one of them. Mr. Estrada worked under three Democrat Solicitors General who saw his work product. Mr. Waxman is highly respected. I doubt he would put his reputation on the line, as he did, by vouching for Mr. Estrada if he were not absolutely convinced he would be a fair and unbiased Federal judge. That is none other than Seth Waxman, the Solicitor General in the Clinton administration.

I don't understand all this argument by the other side and why a filibuster of this highly qualified person who has the highest rating of the American Bar Association, their gold standard. I have to say I have to admit it is a good standard at this point, too. They are doing a fair job. It isn't just because of Mr. Estrada I say that. I have been saying it for a couple of years. But one time I wasn't very pleased with it.

Without losing my right to the floor.

There is no question that this is setting a precedent. In response to my colleague's very important question, this is a very terrible precedent because if the Democrats succeed in filibustering the first Hispanic judge nominee to the Circuit Court of Appeals of the District of Columbia--the first filibuster in the history of the country, a true filibuster, then Katy bar the door. I remember there were some on our side who wanted to filibuster, and cooler minds took over and said, We are not going to do that. First of all, we think it is wrong.

Second, we think it is unconstitutional to do it.

Third, it isn't fair to the President, to the Senate, to the nominee, nor to the process. It isn't fair. And that is the position we took.

And now we have what I consider to be a very unfair process, for no good reason, because I have not heard one substantive argument against Miguel Estrada, not one in all of this debate, other than: We didn't like his answers. Well, that is tough. Vote against him if you don't like his answers. That is your right. Some of our people voted against some of their judges because they did not like their answers. That is OK. It is honorable.

But do not filibuster a circuit court of appeals nominee or a Federal judge of any stature.

Without losing my right to the floor.

Not one. Nobody could. We know how bright he is.

Yes, Paul Bender has. But he----

There have been some who have been concerned about that because of Mr. Bender's comments. But Mr. Bender, when he was his supervisor at the Department of Justice, gave him rave reviews in all categories.

Now, I think the contemporaneous rave reviews, which Mr. Bender tries to get out of now, should take precedence over his partisan comments made long after the fact.

Without losing my right to the floor.

Well, for a Federal circuit court nominee, it would be honesty, integrity, temperament, physical capacity--or ability to work--but, in addition, an FBI report that is favorable, and an ABA rating, that isn't necessarily followed but, nonetheless, is helpful if it is favorable. And in this case it is not only favorable, but it is the highest rating they could possibly give. And there are other legitimate considerations, but all of them he has passed.

Not really. Not really. Not really, other than some who relied on Mr. Bender's comments. And I might add that Mr. Bender worked for Seth Waxman, who rebutted what Mr. Bender said, and put his reputation on the line as a Democrat former Solicitor General, and speaks very favorably on all of those issues with regard to Mr. Estrada.

I would certainly give much more credibility to Mr. Waxman than I would to Mr. Bender, who I think has acted reprehensibly under the circumstances.

Without losing my right to the floor.

That is right. By the way, when the ABA does its review, it is looking for every one of those qualities. It is looking for people who would rebut those qualities. It is looking for people who both support him and are opposed to him. It is looking for people who say he does not have the right temperament, or he does not have the right intelligence, or he does not have the right integrity, or he does not have the right health. The ABA goes into all of that. So does the administration. And so do we as Senators if we want to.

In this particular case, virtually everybody who worked with him gives him high raves.

Without losing my right to the floor.

I am not aware of anyone. I have heard remarks on the floor by colleagues on the other side that they are concerned he may not uphold all of their believed decisions. But he has said he would uphold precedent, that he would abide by the law as enunciated by the Supreme Court, and that he would examine everything as thoroughly as he could, do the very best job he could to be fair. He has said exactly the right things you would want a circuit court nominee to say.

Absolutely none. And that is one reason it is a fishing expedition--because they want to see if they can find something for which they can criticize him. But not only did they wait 615 days to hold a hearing--which they controlled, they chaired, they questioned-- but they also allowed for written questions afterwards. And only two of them--the Senator from Illinois and the Senator from Massachusetts-- prepared written questions for him, which he answered, which we put into the Record today.

Frankly, I do not know of anyone who could point out any defect in this man's character and his ability to be a great circuit court of appeals judge.

To further answer that question, I would like to read from the letter the White House just sent up here today:

In some recent hearings, including Mr. Estrada's, Senator

Schumer has asked that nominees identify particular Supreme

Court cases of the last few decades----

I think the correct reference was to the last 40 years, although I have heard Senator after Senator on the other side talk about the whole jurisprudence of the country, even though the question is referring to the last 40 years. But:

In some recent hearings, including Mr. Estrada's, Senator

Schumer has asked that nominees identify particular Supreme

Court cases of the last few decades with which they disagree.

But the problems with such a question and answer were well

stated by Justice Stephen Breyer.

Of course, Justice Breyer is a Democrat, and he is now sitting on the Supreme Court.

The White House letter goes on:

As Justice Breyer put it, ``Until [an issue] comes up, I

don't really think it through with the depth that it would

require . . . so often, when you decide a matter for real, in

a court or elsewhere, it turns out to be very different after

you've become informed and think it through for real than

what you would have said at a cocktail party answering a

question.''

Senator Schumer also has asked nominees how they would have

ruled in particular Supreme Court cases. Again, a double

standard is being applied. The nominees of President Clinton

did not answer such questions. For example, Richard Tallman,

a nominee with no prior judicial service who now serves on

the Ninth Circuit, not only would not answer how he would

have ruled as a judge in Roe v. Wade--but even how he would

have ruled in Plessy v. Ferguson, the infamous case that

upheld the discredited and shameful ``separate but equal''

doctrine. So, too, in the hearing on President Clinton's

nomination of Judges Barry and Fisher, Senator Smith asked

whether the nominees would have voted for a constitutional

right to abortion before Roe v. Wade. Chairman Hatch

interrupted Senator Smith to say ``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.''

In other words, I corrected a member of my party on the committee for asking that question of a Clinton nominee.

I hate to say it, but Miguel Estrada has answered their questions. He just hasn't answered them the way they wanted because they haven't been able to find any real defects in the answers he has given.

Without losing my right to the floor.

All giants of the law and none of whom had prior judicial experience.

Yes.

The Senator is exactly right. It just goes to prove how ridiculous the accusations are that some have made against Miguel Estrada. And it also goes to show that there is a double standard with regard to this Hispanic nominee.

Without losing my right to the floor.

The Senator really raises the issue--that is why there is a double standard--when all of these great Supreme Court Justices and others never had a day of judicial experience. I will submit Miguel Estrada has had more time in the judiciary than any of them had before they came to the court because not only has he argued before the Supreme Court, he was a clerk at the Supreme Court. He knows how the Court works. He knows how it moves, thinks, and breathes. Yet he is being mistreated here. Why the double standard? I can only think of one, and that is, they don't like what they think his philosophy is. They don't like the fact that a Republican President has supported him and has nominated him. They don't like the fact that he is a Hispanic conservative Republican. They are afraid that because he is a Hispanic conservative Republican, he might upset the balance on this court. And on this court, over 90 percent of the cases are unanimously decided.

I can tell you, all of their fears are unjustified. They are incredible the way they are being made. And they are, most importantly, unfair criticisms--most importantly, unfair. That is what bothers me. Why can't we be fair to this Hispanic nominee who has fought so hard to be part of the American dream and has earned a right? Why can't we be fair to him? What is wrong over here? What is wrong?

Not only is he a Hispanic nominee, a Republican, appointed by this President, whom I can see some of my colleagues don't like. I can accept that. But Miguel Estrada is a person who suffers from a handicap as well. He has a speech impediment. And if you watched the hearings, you could see that. Yet this young man has gone to the height of the profession in spite of those things. In spite of all the blocks, all the barriers, all the glass ceilings, all of the criticisms, he has lived the American dream. He is an example to every young lawyer, not just Hispanic young lawyers--especially to them--but every young lawyer of how you can fulfill the American dream.

I haven't seen a glove laid on him by the other side. Yet they are still filibustering him. Why the double standard? I think the Senator makes a tremendous set of points there. I am personally grateful for his participation.

Without losing my right to the floor.

I am happy to have the question from my dear colleague from New York. No. 1, I didn't know she was Hispanic. That is irrelevant to me anyway. I didn't know that. And if she is, I didn't know it until today. No. 2, I did read her judicial records. She was an activist. I did vote against her. But there is a difference here: I voted. I allowed you to have a vote. We had a vote, and she is now sitting on the court.

Sure.

You asked me why this is different from--wait, let me just finish.

I will yield in just a second. Let me finish.

Let me just finish here. You asked me why should this be any different from Miguel Estrada. There is nobody who can say that Miguel Estrada would legislate from the bench. There is nobody who has one ounce of information that would indicate he would be an activist judge. He isn't a judge. In fact, your side has argued that because he doesn't have judicial experience, he should not go on this position-- some have argued. I hope it hasn't been the distinguished Senator from New York with his great knowledge of the law.

But there was a complete difference. The bottom line is this: Yes, I still think I was right on that particular vote. I may have been wrong, but I believed I was right. I did it sincerely. But she did have a vote. And she did pass, as I recall. She is now sitting as a judge. And I didn't hold her up, nor did I filibuster her, nor did I stand on this floor and say she should not have a chance for a vote, which is what your side--I should say, the Democrat side in this Chamber--is doing. I think there is a lot of difference, a world of difference, between my vote which was

cast sincerely. I have hardly voted against any judges since I have been here. I have been one of the strongest supporters of the Federal judiciary, if not the strongest supporter in this Chamber, ever since I have been here.

I can say this: I still believe my vote was right. If it was wrong, I apologize, but I didn't hold her up. I didn't filibuster her. I made sure she had a vote. And she got one, and she sits on the court today.

I can't ask a question, I guess, of the Senator, but I will just ask him to think it through. There is really a difference between Rosemary Barkett's handling and Mr. Estrada's. He is not even getting a chance for a vote. She did get her chance for a vote. I was one who helped her to get it.

Without losing my right to the floor.

No. Nor am I characterizing yours that way. I have characterized it as anti-conservative Hispanic Republican, which is different.

Yes, without losing my right to the floor.

There is no legitimate reason. It is a double standard. It is unfair. It is unfair to him and to our President, and he should be given at least a vote up or down. If my colleagues want to vote against him, that is their privilege. I would find no fault with that, even though I would disagree. It is unfair to the process and to the Senate.

What is going on here is that for the first time in history, a true filibuster is being waged against a nominee. It happens to be the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia.

Based upon the past history of this body, he deserves a vote. He is not getting it right now because of a filibuster for the first time in history. I have to say I decry that. That is not fair. It is a double standard. It is not right.

Yes, without losing my right to the floor.

Well, in essence, because he was basically accused of not being Hispanic enough. I believe he was accused of being Hispanic in name only. They even said he didn't give back enough to the community, even though this man worked his guts out to get to where he is as a Hispanic lawyer in this country and deserves credit for it, and he is an idol and will be an idol to a lot of young people who want to do the same.

Yes, without losing my right to the floor.

You should have heard the LULAC press conference this week. It was truly remarkable. He was accused by his opponents of being very unfair. LULAC happens to be the oldest Hispanic organization in the country. I believe, if I am right, the head of LULAC is a Democrat. I may be wrong. He is outraged, by the way. With this double standard that is going forth against Miguel Estrada, he is right to be outraged.

Yes, without losing my right to the floor.

Of course, he is not a judge. Rosemary Barkett was a judge and had written a number of legal opinions. Some of them I thought were whacko and, frankly, were.

I am still answering the question of the Senator from Pennsylvania.

Yes, without losing my right to the floor.

Not any. In fact, even the Democrats who have known him have been praising him and have supported him. I might add that I don't think you would get better support than Ron Klain. There should not be a Democrat on that side who doesn't believe he is an honest lawyer. There should not be a Democrat on that side who doesn't accept Seth Waxman as a great lawyer, or one who doesn't believe Walter Dellinger is an exceedingly fine law professor, lawyer, and practicing attorney. There should not be a Democrat who should disagree with the former African-American Solicitor General of the United States.

I want to say this. I don't see any comparison with Rosemary Barkett at all. This man is not a judge. In accordance with the double standard, it has been said he should not be a judge because he has no judicial experience. We just have proven there are all kinds of Clinton judges who had no prior judicial experience. Yet we put them through and they are serving well, as have literally hundreds of judges who never had a day of judicial experience. It is just unfair, plain unfair.

Yes, without losing my right to the floor.

Mr. President, I believe the Senator is being very offensive. He normally is quite partisan but quite reasonable. He is being offensive because he keeps referring to me as denying him a vote in committee when, in fact, I have explained before that there was no consultation. The Senators from Texas told me there was no consultation, which they demand on their side all the time, and which we demand on our side all the time, which I demanded of the Clinton administration, and I demand of the Bush administration.

I think the Senator is being very unfair by trying to imply that I deliberately kept Enrique Moreno, who may be all of these wonderful things, and I assume that he is--I cannot recall all those details. I have respect for him; I have tremendous respect for him. I would like to have seen him have a chance, had there been consultation. But I do respect the home State Senators, and I think I respect the Democrat home State Senators, too.

I have not even talked about the withholding of blue slips because that was not the issue. The issue was consultation and, in this case, there was zero, ``nada'' consultation.

Wait a minute, I feel I have been unfairly attacked by the Senator, by someone who knows the process and I think ought to be fair and I think normally is.

No. Look, as chairman, I can only do certain things. I will tell you this, I put through, as ranking member or chairman, 377 Clinton judges, the second most judges confirmed for a President in history. The highest confirmed happened to be through President Reagan, and there were 382, 5 more. I believe that I would have put through even more than President Reagan or President Clinton had it not been for Democrat holds on the floor against other Democrat nominees.

Let me go further because--let's be fair about it--President Reagan had 6 years of his own party in control of the Senate, in the Senate Judiciary Committee to help him get those 382 judges. President Clinton had 6 years of the opposition party, and yet we gave him virtually the same number as the all-time champion, President Reagan.

I think my record shows I have not only been fair, I have bent over backwards. I will acknowledge that I have had problems on my side, just like your chairman when he was chairman, Senator Leahy, had problems on his side with some who have always wanted to manipulate the system a little bit differently. But I was fair, and I do resent anybody implying that I was not fair.

In the case of Enrique Moreno, he would have had hearings had there been consultation, which I am sure the distinguished Senator from Illinois would be the first to raise if he was not consulted with regard to judges coming from his State.

Without losing my right to the floor.

That is right, and I wanted fairness when you asked questions.

Well, finish it then.

Is there a question there?

I will tell you again. How many times do I have to repeat it for somebody who has been on the Judiciary Committee and ought to know? If there was not consultation, you would be the first to say: I am not going to let that person go. Or you would be the first to criticize the administration.

Let me say this to the Chair. I have answered it about three times now. Let's be fair about it. As chairman, I cannot do everything. All I can do is abide by the rules of the committee, which are that there has to be consultation, not phony requests for consultation. You have to at least consult. They did not even consult.

I wrote a letter to the then-counsel, bless his departed soul, Chuck Ruff, for whom I happened to care a great deal, and there are very great reasons I do. He was a great lawyer, and I got along well with him. I said: You did not consult and they did not. He basically admitted it. Those two Senators were well within their rights to say: We are not going to have him if we are not going to get consultation. And they were within their rights.

As chairman, I had no choice other than to do that. I think the Senator knows that. That is why I believe the questions are very unfair to me.

Now, I will admit, Miguel Estrada was given a hearing by the Democrats. Senator Schumer presided over it, and there was more than one Democratic Senator present. It was a fair hearing. I believe it was. It went from about 10 in the morning to 5:30 at night, longer than most hearings. They asked every question they wanted to ask.

I assumed the Democrats believed they were going to win the election and therefore they would never have to have Miguel Estrada come up for a vote any time. When we won the election, suddenly I got a request for confidential documents of the Solicitor General. I should say the White House got that request the day before the hearing. He has had a hearing. He has had a vote in committee. He has come out of the committee.

He is now on the floor, and now we find this situation where for the first time in history, a circuit court of appeals nominee is being denied a right to an up-or-down vote. That is abysmal. And he just happens to be the first Hispanic nominee to the Circuit Court of Appeals for the District of Columbia. I think it is wrong. I think it is unfair. I think it is unfair to the President. It is unfair to him. It is unfair to the Senate. It is unfair to the Senate Judiciary Committee. It is unfair, I think, to the whole process.

Without losing my right to the floor.

There were plenty of reasons Richard Paez was held up by people on our side. He had ruled in a number of cases in ways that appeared to be, and I think was, in fact, activist judging. Without my support, Richard Paez would not be sitting on the Ninth Circuit Court of Appeals. So, again, I feel impugned by the question because without me going to bat for him, which I did, without me fighting for him on the floor, which I did, without me giving him a vote, which I did-- which you are not; I should say the Democratic side is not--he would not be sitting on the Ninth Circuit Court of Appeals, and he knows it and you know it--every Democrat on the other side knows it.

Unfortunately, I want to talk personally to my colleagues. I will do it

through the mechanism of the Chair. But the fact is, had I not supported him, he did not have a chance to be on the court because there were many people who believed he was an activist judge and, I have to confess, it was a close question.

I finally asked him to come visit with me. I sat down with him. He is a nice man. He is a good man. I have to admit, I felt he was an activist judge. But I also felt he was a good man.

Let me just finish. I told him I would support him, and I did. Unlike this particular situation, he got his vote and he passed with my support, which would never have happened without it.

Without losing my right to the floor.

Not that I know of.

I have to say we did not try to destroy the man. We did not try to ask questions that were improper. We did not try to ask him his opinions on how he was going to vote, all of which was done with Miguel Estrada, and he refused to answer those kind of questions, as he should have, as anybody who reads Lloyd Cutler would agree he should have.

I refer you to the President's letter which I am going to get to in a minute, if my colleagues will allow me to, because I want to make a statement before we finish this evening. In all honesty, Miguel has not been treated very fairly and he is certainly not being treated fairly by a filibuster--or should I say the ``filibustero''?--on the floor of the Senate.

Several Senators addressed the Chair.

That is correct.

No question about it.

That is correct. I have to say our side was fair to Mr. Paez in the end. Admittedly, I wish it did not have to be delayed that long, but in all honesty he was treated fairly in the end. I wish it had been earlier, but I have to say I had my own qualms and my own questions and there were plenty of reasons for that. There were people all over California who did not want him on the Ninth Circuit Court of Appeals, which is considered one of the most activist courts in the country, because of the ``activist'' decisions he was making in contradistinction to what California law really was. Prior to each and every cloture vote in the past which has been mentioned, the Senators in the leadership on our side agreed to provide enough votes to invoke cloture before the cloture petitions were even filed on these Democrat nominees.

I wish my colleagues on the other side would agree to that precedent in relation to the cloture votes they keep referring to. Would they assure us, as we did them, that their side will provide enough votes to invoke cloture before we even file a cloture petition for Estrada? That is what we did for Judge Paez and now Judge Berzon.

So there was no real filibuster. You cannot call that a filibuster. We provided the necessary votes for them to get votes on the floor, and they did get their votes up or down. That is something Miguel Estrada is being denied right now.

Where is the fairness? I do not see any fairness in that. Why should he be denied the same privileges we gave to two people most every Republican disagreed with, but nevertheless gave them a vote and they are now both sitting on the Ninth Circuit Court of Appeals?

I have to tell you I had much angst and many upset stomachs that occurred because of these two nominees, but I voted for both. Without me, neither of them would have made the Ninth Circuit Court of Appeals. It is just that simple.

That is my recollection. And I have to say there are those who believe at least one, if not both, are activists on the Ninth Circuit Court of Appeals, which is virtually reversed every time by the Supreme Court. It is the most reversed court of appeals in the country.

Mr. SCHUMER addressed the Chair.

Sure, without losing my right to floor.

Do you mean Judge Paez?

I believe it is within the power of each Senator on the Judiciary Committee to ask any question they want to, no matter how stupid they may be, and we have had plenty of stupid questions from both sides, to be honest with you.

I do not think those are stupid questions. Nor did I think the Senator's questions when he basically asked Miguel Estrada this question, can you think of any cases in the last 40 years with which you disagree with the Supreme Court, nor do I find fault with Mr. Estrada saying, no, I do not. You and I might. I could think of some cases where we have passed laws. I was the cosponsor of the Violence Against Women Act. I did not like to see it overturned. On the other hand, I do understand why it was and I do think it was a legitimate decision even though I may have disagreed with it at the time.

Without losing my right to the floor.

The only way we are destroying careers, in all fairness, is by having filibusters, not by having up-or-down votes. If we distort the record of people, I think that--I think both sides have done that from time to time, I am not saying deliberately, but nevertheless there have been some times where I think the Senate has not acted in the best form.

Yes, without losing my right to the floor.

I believe the Senators can ask any questions they want. Like I say, no matter how dumb or stupid or intelligent or alert they are--I have seen both. In the case of Rosemary Barkett, I confess I never knew she was Hispanic. And even if I did, it would be irrelevant to me. Nor have I accused any Democrat of being prejudiced against Miguel Estrada because he is Hispanic. I do not believe that. I do not believe there is a prejudiced bone over there. I do not believe there is over here either. But I have said I believe our colleagues on the other side are filibustering because Miguel Estrada is a Hispanic Republican conservative nominated by President Bush, a Republican President.

I have also said I believe one of the reasons why there is such a vicious fight to stop him from going on the Court of Appeals for the District of Columbia is because my colleagues on the other side believe he is conservative, and believe he might tip the balance of the court. That is what we get when we get a President. That is what we get when we vote.

If my colleagues on the other side disagree with Miguel Estrada, you have every right to vote against him. I think you shouldn't. There is no reason at all. I don't see one substantive reason so far, advanced by the minority, why he shouldn't sit on the court. Certainly, the fact he has no judicial experience in the eyes of the Democrats, that is not a valid reason.

Since we are talking about things I may have said about Clinton nominees, I have been in on hundreds, if not thousands, of judges since I have been in the Senate. Let me remind the Senator from New York what I said prior to the cloture vote on one Clinton nominee. I said: I personally do not want to filibuster Federal judges. The President won the election. He ought to have the right to appoint the judges he wants. I believe that with every fiber of my being. I think that is what you get when you get a President.

I didn't think most of President Clinton's judges--I would not have appointed most of them if I were President, but I was not President. And I submit I don't believe the distinguished Senator from New York would probably nominate the same judges as President Bush, but President Bush deserves the courtesy of having his judges voted up and down, and that is a courtesy not being granted for the first time in history.

When the minority mentions some cloture votes, we have no majority to make sure it is invoked. There was no filibuster to make sure the nominees get a vote up and down. I would be happy if my friends on the other side would do the same for this fine nominee, even if you disagree, and then vote no as some colleagues did. I voted yes on some of the most controversial judges because I start with the premise that the President deserves support, whoever the President is, as long as the nominee is qualified.

As much as I disagreed with Marsha Berzon, she was very qualified. She was one of the top labor lawyers in the country. I admit, some of my colleagues did not feel the same way as I did. I led the fight to put her on the bench. She personally came to me and thanked me, as did Judge Paez.

I would like to see the same fair treatment to Miguel Estrada. I don't see it here. I think I made a pretty good case it is not here and there is nothing fair about this process.

Without losing my right to the floor.

I cannot answer that other than to say I wish we could have. He was not named for the 11th seat on the Circuit Court of Appeals for the District of Columbia, in contrast to Mr. Estrada who was nominated for the ninth seat. There is a real difference because there was a question whether the 11th and 12th seats at that time should have been filled. But the ninth seat certainly should be filled, and everyone I know agrees with that, including people on the Democrat side.

I wish I could have gotten them all through, to be honest. To also be honest, I don't know of an end of session where any Judiciary Committee has been able to get them all through. Frankly, I think you can go back in time and find more nominees left hanging when the Democrats controlled the committee at the end of the first Bush administration than we left at the end of the Clinton administration. You could go through all the statistics and criticize all you want and some criticisms are justified.

I wish we could have done a better job back then when I was on the Judiciary Committee. I give an illustration. Tomorrow we have a markup on three circuit court of appeals nominees. Some have indicated the Democrats will filibuster the markup. One person on that markup is Mr. Roberts, who has been sitting there for 11 years. Mr. Paez sat there for 4 years, but he got a vote and he is now sitting on the Ninth Circuit Court of Appeals. Mr. Roberts has been sitting there for 11 years and has had three nominations by two different Presidents and is considered one of the two greatest appellate lawyers in the country by Supreme Court Justices and many others. There is not anything you can find against him other than he is appointed by President Bush, a Republican President, and he may be conservative. I don't know whether he is or is not, but he has been held up for 11 years through three nominations.

I have been informed that there may be a filibuster in committee tomorrow. That would be the first filibuster that I have seen in my 27 years on the Judiciary Committee. If that is true--I cannot believe it is true. I believe my colleagues would allow votes and allow them to come to the floor in an orderly fashion. I have to say that I hope that is not true. If that is true, then I think any reasonable person can conclude that my colleagues on the other side are not willing to do their constitutional duty to fill the courts with the President's nominees.

I will stay here all night and debate my record with the Senator from New York or anyone else, but this has nothing to do with the----

I am answering a question.

I will stay all night to debate my record in comparison to any Democratic record. That has nothing to do with whether or not Miguel Estrada should be confirmed. The only thing that has to do with is whether we vote. And I think it would be very unfair not to vote up or down on Miguel Estrada.

I add one last thing on that. I cannot see any reason for this action against Miguel Estrada unless,

of course, the opposition to Mr. Estrada, based upon what I have been hearing tonight, is really retribution for perceived past wrongs perpetrated against Clinton nominees when I was, in fact, one of the best assets you had in getting nominees through. I took a lot of criticism from the conservative right who I told to get lost, I have to say, in contrast to what I think is the liberal left who seem to have lockjaw control over my colleagues on the other side.

I yield for a question as long as I don't lose my right to the floor.

Of course not. Because we had a full day of hearings. Mr. Roberts was there, Mr. Sutton was there, Justice Cook was there. We went from 9:30 that morning to 9:30 at night, and I was prepared to stay all night if I had to. Any Senator could have come and asked any questions they wanted. Many Senators asked all the questions they wanted to at that time. Afterwards we kept the record open for Senators to read and review the record and submit any written questions that they wanted. We have had 2 weeks to do that.

There comes a time when you have to say let's treat these people fairly.

I know there is no reason in the world to hold up Mr. Roberts or the other two either. The fact that my colleagues spend all their time--not all their time but enough of their time interrogating Mr. Sutton, they still interrogated Mr. Roberts and Justice Cook. I think we should proceed and I think it is fair to proceed. I think the Senator said it right when he said he is a distinguished appellate lawyer, one of the best in the history of the country. I don't see any reason for the delays in these matters.

I was open, as I have always been, to any questions that the Senators from the other side wanted to ask. We stayed there for a very lengthy hearing.

Look, fair is fair. Let's treat these people fairly.

I hope my colleagues will not filibuster tomorrow because that will be the first time I recall a filibuster in the committee. If that is so, then it is clear that we have the politics of mass obstruction-- which politics were suggested by two very ultraliberal law professors at a Democrat retreat in 2001. If that is true, then this is all part of the game, to slow down everything in the judiciary no matter how many emergencies we have, and we have plenty, and to stop President Bush from having his judges confirmed.

I don't think it is fair. I don't think anybody else who watches it thinks it is fair. I call upon my good friends to be fair.

I have to say, I like everybody in this body. I care for everybody in this body. I care for my friend from New York and he knows it. I know he cares for me. But it is time to wrap it up and say, look, you have had your shot. And knowing you, you always take your shot. I should not be talking to you personally, I acknowledge to the Chair. My friend from New York is not known for shyness, but he is known as a fair person and he is known as a good lawyer, at least by me. I am asking him to help be a leader on that committee. I am asking the distinguished Senator from New York and others to be leaders on this committee, to help us do our job, to help fill these courts.

Yes, you may not like him. My colleagues on the other side might not like the nominees of President Bush any more than we liked the nominees of President Clinton. But I put them through. Like I say, President Clinton, he would have been the all-time champion in confirmation had it not been for Democratic holds on your side. So I think we were fair. I would like you to be fair to our people.

If there are no further questions, I would like to make a statement.

Without losing my right to the floor.

I thank my colleague for asking that question because everybody knows, including my friends on the other side, that I argued vociferously against the few who wanted to filibuster on our side.

I expect my colleagues in good faith to argue on their side against that. It is a dangerous thing to do. It is a wretched thing to do, filibuster a judge. It is the first time in history. If they want to filibuster some judges, why would they pick on the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia, a man who suffers from a disability yet rose to the top of his profession. He came up the hard way. He fulfilled the American dream, a man who is an example to every young Hispanic person in this country, and to me. He is an example to me, and I think everybody in this body.

Why wouldn't we let this fellow have an up-or-down vote like we always did? We always made sure that, regardless of the reason for a cloture vote, we made sure that cloture was invoked and a vote up or down occurred.

I have to say, I think there is an element of unfairness here that I have not seen in my 27 years in the Senate. It is a shame that it is happening against the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia, who has not had a glove laid on him. And because they can't find anything wrong, they want to go on fishing expeditions long after they held their hearing, and then try to justify this holdup and this filibuster for those reasons. It is unbelievable to me.

Look, I made this point before and I am going to make it one more time and I hope everybody in America watches this. The Senate Democrats held a retreat. They can't deny this. It has been reported thoroughly. They were given suggestions by at least two very liberal law professors. Once President Bush became elected, these law professors, wanting to promote only their ideology, suggested that, No. 1, bottle up the nominees in committee. If we have a filibuster tomorrow, they are fulfilling that part of their suggestions of mass obstruction.

We have a filibuster now here on the floor, but I will get to that. Then they said: If you can't bottle them up in committee, then inject ideology into the confirmation process, and that is exactly what has happened. Some of the Senators on the other side have demanded to know the ideology of the nominees, as if that is relevant. And every nominee, and especially Miguel Estrada, if you read his answers to questions, has said we will abide by prior precedent. We will observe the principle of stare decisis. We will rule in accordance with the law and with the rule of law. So there is no reason to inject ideology because they said they would put their own personal beliefs aside. Miguel Estrada said that on numerous occasions in response to questions by the Democrats.

If they can't win on injecting ideology, and we are seeing that at every step of the way here now, then seek all unpublished opinions. I will never forget Dennis Shedd. He was chief of staff to Senator Thurmond on this committee, one of the nicest people we have ever had work on this committee.

I would compare him to Ron Klain, two really nice guys, two really smart guys, two really decent people, two wonderful attorneys. Ron Klain was Al Gore's top aide, and at the time I believe he worked on the Judiciary Committee. I can't remember which Senator he worked for at the time, but he went throughout the whole campaign with Al Gore. He was one of his top advisers. He is one of the top lawyers in this city and he is a personal friend. I admire him.

But when they couldn't get Judge Shedd in any other way, they requested all his unpublished opinions. He has been serving for over 10 years. Where are those unpublished opinions? Published opinions are where the judge writes an opinion and it becomes published and printed in some law book. Unpublished opinions are stored in repositories. To get 10 years of unpublished opinions took thousands and thousands of hours, an estimated $75,000. They had to go to Atlanta, as I recall, to do this, all for the purposes of a fishing expedition, hoping to find just something to hang on Dennis Shedd, who is a well-respected Federal district court judge. That is the kind of crap they had to go through.

I understand one of these professors at that infamous retreat will be here tomorrow to speak to the Democrats and possibly continue to misguide them.

Then they said if bottling him up in committee doesn't fully work--of course it will work for a while, which we may see tomorrow if they filibuster these judges, inserting ideology into the confirmation process. If that doesn't work then, if they are judges, seek all unpublished opinions and see if you can find something to pin on them to defeat them. If that doesn't work, then do this: Seek privileged internal memoranda, which they are trying to do in this case without one ounce of justification, to try and get into the actual memoranda written by Miguel Estrada in his job, in his duty as an Assistant Solicitor in the United States Solicitor General's Office, in three areas: his recommendations on appeal, his recommendations on certiaria, and his recommendations on amicus curae matters. Never in the history of the Justice Department has the Solicitor General's Office ever been willing to give up those privileged documents; and they shouldn't. It is the phoniest, most unjustified request that I have seen in a long time, and I have seen a lot of phony, unjustified requests.

If all of that doesn't work--if bottling up doesn't work, injecting ideology, seeking all unpublished opinions, and if you can't get privileged, unpublished memoranda, then these law professors said to filibuster--for the first time in the history of the country, filibuster.

That is what we are going through right now. Isn't it a crime--well, maybe that is too harsh. Isn't it a shame and even despicable that they are filibustering the first Hispanic nominee for the Circuit Court of Appeals for the District of Columbia who has lived the American dream, who has the highest rating possible unanimously--and it is their gold standard--of the American Bar Association.

It is absolutely amazing that we are going through this. We have now been doing it for over a week. You would think this is a Supreme Court nominee. Of course, that is part of this. The whole purpose of giving Miguel Estrada a rough time is to say, Mr. Estrada, we don't want your kind on the Supreme Court.

That is really what the bottom line is here. That is why these professors are doing that--because this President has nominated some of the greatest lawyers in the history of the country on the circuit court of appeals. And every one of them has to be considered ultimately for the Supreme Court.

But this is a shot across the bow right now--that you had better darned well conform to a particular ideology or you are just not going to make it.

I hope our colleagues, those with clear minds and fair attitudes, will prevail on that side, as we had to prevail on this side against filibustering. If they don't, ``Katie bar the door,'' because I am not sure I will be around next time to stop the filibusters--not to say that I am all that important. But the fact is, I did stop them the last time. There were only a few who wanted to do that. The vast majority of the Republicans said that would be awful, and I think the vast majority of Democrats ought to say the same. I think they ought to wake up and realize what they are doing. It is wrong. It is not fair to this President. I admit many of them do not like this President, but he is the President. It is unfair to the Judiciary Committee who voted this man out of committee. It is unfair to the process, which has always had an up-or-down vote once the person has been brought up on the floor. It is unfair to Miguel Estrada.

I think I have said all that I care to say this evening.

I yield the floor.

Madam President, I have heard so much misinformation

about Mr. Estrada here on the floor of the Senate for the past few days, I hardly know where to begin to correct the record. It is simply amazing to me that some of my Democratic colleagues claim they cannot support Mr. Estrada because he lacks judicial experience or because he hasn't been a law professor or because he has not published extensively. Let me remind my colleagues there are more than a few nominees confirmed as circuit judges whose record did not include judicial experience or extensive scholarly writings but whom they managed to vote for and confirm anyway. Yesterday I listed 26 circuit court of appeals judges who had no judicial experience when they were nominated but were confirmed anyway. That is just a small fraction of all those who never had judicial experience before the last number of years.

Don't get me wrong. Even though they have had no judicial experience, these are all very qualified judges who deserved confirmation. But I don't believe any of them clerked for a Supreme Court Justice or argued 15 cases before the United States Supreme Court, as has Mr. Estrada.

Take, for example, Clinton Ninth Circuit nominee Sidney Thomas. He graduated from the University of Montana Law School in 1978 and went straight into private practice with a firm in Billings, where he remained for his entire pre-judicial career. Of the 10 writings or speeches he listed in his questionnaire, four of them consisted of outlines of presentations. The fifth was copyrighted while he was still in college and so could not possibly present his legal views. Still another appears to be a study guide for a college class he taught. Given this record, I would not have expected a review of the hearings transcript to reveal demands by my Democratic colleagues for access to internal memoranda Judge Thomas prepared at his law firm, memoranda that are commonly known as attorney work product. Instead, a review of his hearing transcript reveals a grand total of less than two pages of questions, all of them asked by a Republican committee member. The Democratic committee member declined to ask Judge Thomas any questions, despite a record that includes no judicial experience and limited published writings.

Let me read you some of the exacting questions Judge Thomas was asked at his confirmation hearing and some of the answers he gave.

He was asked:

Would you state in detail your best independent legal

judgments with regard to existing Supreme Court precedent on

the constitutionality of capital punishment?

Judge Thomas replied:

Well, I believe that the Supreme Court has spoken, I think

quite appropriately, on the death penalty. I do not possess

any moral or religious convictions which would cause me to

not apply the death penalty in an appropriate case.

This answer was apparently sufficient to satisfy the members of the committee that Judge Thomas would follow the law regardless of his personal convictions about the death penalty. But when Miguel Estrada gave similar answers to questions from Democratic committee members, he was accused of not being forthcoming. That is a double standard: We will treat President Clinton's nominees differently than we will treat President Bush's nominees.

Judge Thomas was also asked:

Do you believe the Federal Constitution contains . . . a

right to privacy?

He replied:

Well, the Supreme Court, again, has spoken on that. There

is no explicit right to privacy in the Federal Constitution.

Montana has a constitutional protection for privacy. That is

another area where I think the appellate courts have to

proceed very carefully in light of the Supreme Court

precedent in the area.

There were no followup questions demanding to know his personal opinion on whether there is a right to privacy in the Constitution. His acknowledgement of controlling Supreme Court precedent, coupled with his statement that ``courts ought to move very cautiously'' in this area, were deemed sufficient to confirm him, as I think they should have been.

I could go on to discuss other confirmed circuit judges with backgrounds similar to Judge Thomas's, but I think the point is clear: Miguel Estrada is being held to a different standard, even though his qualifications are similar to--or exceed--those of other confirmed circuit court of appeals judges.

Let me next turn to the allegation that Mr. Estrada was not sufficiently responsive to questions he was asked at his hearing.

Let's get to the heart of the matter. The real complaint of some of my Democratic colleagues is that no plausible reason to oppose Mr. Estrada's nomination exists. But instead of saying this, they complain that Mr. Estrada refused to criticize the reasoning of settled Supreme Court precedent.

Of course, if Mr. Estrada is confirmed as a lower court judge, he will be bound to follow Supreme Court precedent regardless of whether he is critical of it. This was what he testified he would do if confirmed, and this was the only responsible answer to the questions he was asked about specific Supreme Court cases.

During the course of this debate, I have already mentioned the statements Lloyd Cutler has made on this point, but I believe they are worth repeating because some of my Democratic colleagues keep resurrecting the spurious allegation that Mr. Estrada was not forthcoming at his hearing.

Mr. Cutler, as we all know, served this country well as counsel to Presidents Carter and Clinton. He also served on two national commissions that addressed problems in the confirmation process.

This chart I have in the Chamber shows what he actually said:

Candidates should decline to reply when efforts are made to

find out how they would decide a particular case.

That is the leading Democrat lawyer in this town. He has been Chief Counsel to two Presidents, two Democratic Presidents. He is highly regarded as a constitutional expert and a great lawyer not only in the area of Washington, DC, but throughout the country. He is a fine man. I have always respected him, and I do today.

So regarding judicial nominees, he stated, in unequivocal terms, that:

Candidates should decline to reply when efforts are made to

find out how they would decide a particular case.

In his opinion:

What is most important is the appointment of judges who are

learned in the law, who are conscientious in their work

ethic, and who possess what lawyers describe as ``judicial

temperament.''

Mr. Estrada's academic achievement, his professional accomplishments, the letters of support we have received from his colleagues--both Democrat and Republican--and his unanimously well-qualified, highest rating by the American Bar Association, all indicate that Mr. Estrada fits this description and deserves our vote of confirmation.

At the same hearing at which Mr. Cutler made his statements about the appropriate scope of the inquiry for confirming judicial nominees, another legal luminary, Boyden Gray, testified. Mr. Gray, of course, served as White House Counsel in the first Bush administration. During his testimony, he told us that two Democratic Senators, who are former Judiciary Committee chairmen, met with him very early in the administration to let him know in no uncertain terms that if the White House were caught asking any potential nominee any questions about specific cases, that nominee would be flatly rejected. Now, that is arrogance at its height, to tell Boyden Gray that or to have that attitude. Surely, the White House should be able to talk to their potential nominees about what their viewpoints are before they nominate them.

On the other hand, Mr. Gray, of course, is one of the most respected people in Utah. Again, Boyden Gray is one of the great lawyers in Washington; like Mr. Cutler, he is highly respected, has been in very responsible positions, and has fulfilled his service to the U.S. Government very well.

As Mr. Gray pointed out, that same philosophy is reflected in the Judiciary Committee questionnaire, which all judicial nominees must complete before the committee will act on their nominations. The questionnaire asked the following:

Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue, or question in a manner that could reasonably be

interpreted as asking or seeking a commitment as to how you

would rule on such a case, issue or question?

The clear goal of this question is to deter any White House from getting commitments from potential nominees on how they would rule on specific cases, or commitments that they would overrule certain Supreme Court decisions.

I happen to know the Republican White Houses have acted honorably with regard to this responsibility. I remember during the Reagan years, some of our friends on the other side were constantly questioning whether the White House was trying to influence its judicial nominees during the Reagan administration to vote a certain way once they got on the courts.

I happen to know that that was totally irresponsible on the part of our colleagues because the person who vetted all of these nominees happened to be a former staffer of mine who is now on the Michigan State Supreme Court and one of the great jurists of this country. I know he never asked or told people what they should be doing with regard to their future, after confirmation, on any particular court.

It now appears that some Senate Democrats want to forbid the White House from asking nominees how they would rule on specific issues while reserving that right for themselves. Call it what you will, but this is a double standard if I have ever seen one. More fundamentally, it threatens the very independence of the Federal judiciary that our constitutional system of checks and balances was designed to preserve.

I cannot believe some of the questions that have been asked and some of the statements that have been made about how unresponsive Miguel Estrada was when they were asking him questions about how he would rule when he became a member of the Circuit Court of Appeals for the District of Columbia. Now, they might say, ``We did not directly ask that,'' but that is what was behind it.

A number of Senators on the other side have indicated they need to know the philosophy of these nominees. I think that is irrelevant, as long as the philosophy is that they will uphold the precedents of the courts above them. And to be honest with you, this is going way too far in some ways.

Let's face it, too many questions in the confirmation hearings of President Bush's judicial nominees seem calculated politically to manipulate the judicial selection process and to frustrate the appointment of judges who would refuse to follow a potentially popular course when the Constitution and settled judicial precedent provide otherwise. Miguel Estrada was right not to fall into the trap of criticizing particular Supreme Court cases that he may be called upon to rely upon as a sitting Federal judge.

My colleagues should be commending him for this, not proffering it as a reason to vote against his confirmation. Unfortunately, that is basically their argument, that they should vote against his confirmation because he has abided by what really are rules that have long been time honored in the Senate.

I yield the floor.

Madam President, I suggest the absence of a quorum.

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

Is the Senator aware that Miguel Estrada has argued 15 cases before the Supreme Court?

He won 10 of them. Right?

Has the Senator from New York read any of those briefs that he filed in that court?

And he has done it on behalf of clients as an attorney should.

He did.

Is the Senator aware that the Hispanic Caucus in the House is made up of all Democrats because they would not meet the Republicans who were left out of the caucus?

Is the Senator aware that the Democratic Hispanic Caucus in the House was actually almost equally divided as to whether or not to support Miguel Estrada, but the majority made the----

Will the Senator yield again for a question?

I will try not to interrupt the Senator anymore, but the point I was making with the briefs in the Supreme Court--15 of them and more--is that there is a record from which you certainly can determine legal reasoning, as well as an extensive stack of records of the Judiciary Committee hearings. And let me say this. Those hearings were conducted by none other than the Senator's colleague from New York, Senator Schumer, and other Democrat Senators who said the hearings were fairly conducted. Is the Senator aware of all of that?

Will the Senator yield on another point?

Is the Senator aware that every Republican Hispanic member in the House is totally in support of Mr. Estrada?

And that there are four of them.

Mr. President, I will speak more to the constitutional issues later.

I have to say that I totally disagree with the distinguished Senator from New York, much as I respect her. I don't think her analysis of the Constitution is anywhere near accurate.

Second, I was told by people for whom I have great respect that when the vote came up, when they were discussing whether or not the Hispanic Caucus in the House, all Democrats, were going to oppose Miguel Estrada, there was almost an equal split of those who thought it was inadvisable to do that. Of course, after the majority makes that decision, I suppose they went along with that. But that was my understanding. If it is incorrect, I would be happy to be corrected.

I also want to make it clear that the three Republican Hispanic Members of the House--all three very outstanding individuals, who have stood up for Hispanics all of their careers, all three of them speak fluent Spanish--they were basically not allowed to meet with the Democratic Hispanic task force or caucus in the House, and they are totally in favor of Miguel Estrada.

Having said those few things, I want to take a moment to talk about what we are seeing on the nomination of Miguel Estrada. What we are seeing is just another step in a campaign to stall action on President Bush's judicial nominees. It has gotten to the point that the tactics that some of my Democratic colleagues are using are so predictable that it is as if they are working from a handbook. I suspect that this handbook had its origins in the Democrats' April 2001 retreat, where leading liberal law professors--of course, most of the law schools in this country are filled with leading liberal law professors, or at least liberal law professors--they urged the Democrats in that conference to change the ground rules on judicial confirmations. What resulted from this retreat is something that can be called--if you will notice this chart--the Senate Democrats' ``weapons of mass obstruction'' handbook.

Let's take a look at some of the weapons in this handbook. Let me turn to the first bullet on the chart. The first weapon suggested by these liberal law professors was to bottle up nominees in committee.

We have seen a lot of that in the last 2 years, is all I can say, especially with regard to circuit court nominees. They have allowed a significant number of district court nominees to go through. These are the trial courts, where it is very unlikely to get into the major questions of law that have to be decided by appellate courts, although they certainly are important.

Since the judiciary is a separate, coequal branch of government to the President and to this Congress, this is important stuff. But their first weapon in their handbook was to bottle up nominees in committee.

When control of the Senate shifted to the Democrats in June 2001, we saw an immediate halt of nomination activity in the Judiciary Committee, especially of circuit court of appeals nominees. The President was not being treated as other Presidents have been. Even though other committees held nomination hearings prior to reorganization, and even though the Judiciary Committee held other hearings, no nomination hearings were held for more than

a month, despite the fact of a looming vacancy crisis and plenty of nominees awaiting a hearing. In fact, as we stand in the Chamber right now, we have a crisis of around 25 or 26 emergency seats, most of them circuit court of appeals seats, in this country today. It is a judicial crisis where people cannot get their cases decided.

Then, once we did start considering nominees, the committee considered only one circuit court nominee at a time. When I was chairman during the Clinton administration, I considered more than one circuit nominee at 11 different hearings. But not once during the 107th Congress did the Democrats hold a hearing on more than one circuit nominee at a time. So bottling them up in committee has been a definite practice that came out of that retreat.

The point is, as I have been making it here, the first weapon in the Democrats' handbook--that of bottling up nominees in committee--was something that worked only as long as the Democrats controlled the committee. Since this is no longer the case, and we are now holding orderly hearings, fair hearings, with expedition, because the Republicans were fortunate enough to be able to take over control of the Senate, the President is now being treated fairly, as I believe I treated President Clinton in almost every instance--in fact, in every instance as far as I was concerned.

We put through 377 Clinton judges, the second highest total in the history of the country for any President, and only five less than the highest total of Ronald Reagan. And Reagan had 6 years of a Republican--his own party--Senate to help him. President Clinton had 6 years with an opposition party--the Republicans--to help him. And we did. You can point to some instances where I wish we had done better, but as far as totality, as far as getting it done, we did the job for President Clinton, and we treated him fairly. And he, I think, knows it.

Let's look at some of the other weapons they have used that came out of that retreat. One of the most potent weapons of mass obstruction has been to try to inject ideology into the confirmation process--yes, try to inject ideology into the confirmation process. Miguel Estrada's nomination is a prime example of how that has worked.

Some of my Democratic colleagues claim they oppose Mr. Estrada's nomination because he allegedly was not responsive to their questions at his hearing. I think we just heard an hour's worth of that. This is a laughable assertion. Mr. Estrada's hearing, which was held while the Democrats controlled the committee, and chaired by the distinguished other Senator from New York, Mr. Schumer, lasted all day. Mr. Estrada was asked dozens and dozens of questions, all of which he answered.

The real problem that some of my Democratic colleagues have with Mr. Estrada is not that he did not answer their questions but that his answers did not give them any reason to oppose him. That is what the real problem is here. He testified that he would follow binding precedent--what more could you ask of a circuit court of appeals nominee--that nothing in his personal views would interfere with his ability to follow the law. What more could you ask of a circuit court of appeals nominee?

For some of my Democratic colleagues, this is not enough. They want to delve into Mr. Estrada's ideology to understand his personal views on whether Supreme Court cases were correctly decided, and use those personal views as the yardstick by which they measure whether he is worthy of confirmation.

I am delighted to yield.

I sure do. I agree with that statement to this day. I agree where there are no paper trails, you should ask questions. I am sure the Senator will agree with me, the Democrats controlled the committee, they controlled the hearing that day. It was a lengthy hearing. They asked every question they wanted to ask. They weren't happy with some of the answers, but that was probably par for the course. It was, certainly, when I was chairman of the committee.

But injecting ideology into the confirmation process is misguided, at best, and down right irresponsible at worst. It is not, as some Senators have suggested, essential to executing our duty of advise and consent. But do not merely take my word for it. My goodness, Heaven forbid.

During the course of this debate, I have already mentioned the statements that Lloyd Cutler made on this point. Again, I mention Lloyd Cutler because both sides of this body respect him. We both know he has been an excellent servant of the people. We both know he is a great lawyer, not just in the District of Columbia but throughout the country.

I have participated in forums with Lloyd Cutler, and I have nothing but respect for him. I have not always agreed with him--I have to admit that--but, by and large, we have agreed on most issues.

I have already mentioned statements Lloyd Cutler has made on this point, but I believe they are worth repeating because some of my colleagues keep resurrecting the spurious allegation that Mr. Estrada was not forthcoming at his hearing.

Mr. Cutler, as we all know, served this country as counsel to President Carter, and President Clinton, by the way. He also served on two national commissions that addressed problems in the confirmation process.

He said:

Candidates should decline to reply when efforts are made to

find out how they would decide a particular case.

That is just a rule that both sides have followed even before Mr. Cutler made that very erudite statement.

Sure.

One of the Democrats on the floor said, if I recall correctly, he asked the question, what is your belief about the first amendment. Gee whiz, I could teach law school class for over 3 months on that subject alone. Another--it may have been the same Senator--said he wanted to know in his questions whether he was going to overturn all of the clean air, clean water, and environmental rules, because this court is so important.

The Senator is an excellent lawyer. I know he is. I have tremendous respect for him. He sits on the committee. I enjoy him. But when you ask questions like that, those are areas where cases come before the Circuit Court of Appeals in the District of Columbia.

No, I think the Senators on the committee can ask any questions they want to, but I think it is incumbent upon the nominee to follow Mr. Lloyd Cutler's suggestion that ``candidates should decline to reply when efforts are made to find out how they would decide a particular case.''

I suspect anybody can discuss general law, but that is not what the distinguished Senators were interested in.

I think I just gave two illustrations that certainly were questions of law that could come before the

court. I might add Mr. Estrada was asked to criticize Supreme Court cases. Here a Supreme Court advocate who has to appear before the nine Justices on the Court is asked to criticize Supreme Court cases that he will be bound to follow as a circuit court judge.

By the way, if I recall it correctly, the distinguished Senator from Illinois just a short while ago was criticizing Mr. Estrada because in the whole history of American jurisprudence, from the beginning to the end, he couldn't come up with cases like Dred Scott, Plessy v. Ferguson, but the question, if you read in the record was, in the last 40 years, could you tell us three cases you disagreed with.

I believe he could have, maybe. I don't know. But when you are under pressure and you are sitting there and you are trying to answer questions, I don't think we should hold him to a standard that he has to meet these questions head on and absolutely come up with spur-of- the-moment comments. I mean, I can come up with some, I am sure, right off the bat, but that was the last 40 years. There were three references to it, twice referring to 40 years. The middle one between the two I am sure he felt he was talking about the last 40 years, not the whole history of jurisprudence. The first case that has come to your mind perhaps would be Dred Scott; certainly Plessy v. Ferguson. Could you name a whole raft of others, perhaps. I don't know. I don't know how I would do if I was sitting there under pressure as Miguel Estrada was.

He is a young man. He has a lot of experience. He can talk about current Supreme Court law as well as anybody in our existence. The fact is, I thought it was kind of unfair to try and hold him to that particular standard. I am not criticizing my friend from Illinois, but to go back and read the record, you will find that was what the questions were.

Now, regarding judicial nominees, Mr. Cutler has stated in unequivocal terms that candidates should decline to reply when efforts are made to find out how they would decide a particular case.

I would have trouble with a nominee if the nominee did try to reply in those cases. In his opinion, that is Mr. Cutler's opinion, ``what is most important is the appointment of judges who are learned in the law''--certainly, Estrada is as learned in the law as anybody we have had before the committee--``who are conscientious in their work ethic''--my gosh, you can't find any fault with Mr. Estrada there; he is a hard worker--``and who possess what lawyers describe as judicial temperament.''

We have heard some criticize Mr. Estrada because they think he might have a temper. I think everybody in this body might have a temper. That is one heck of a poor allegation.

Mr. Estrada's academic achievement, his professional accomplishments, his letters of support we received from his colleagues, many of whom are Democrats and top Democrats at that, and his ABA rating, the highest the American Bar Association can give, ``unanimously well qualified,'' all indicate Mr. Estrada fits this description and deserves our vote of confirmation--this description of none other than Lloyd Cutler.

At the same hearing at which Mr. Cutler made his statements about the appropriate scope of the inquiry for confirming judicial nominees, another legal luminary, one of the great lawyers in this town, a man I think almost all of us look up to--certainly I do, and I think I am in a position to know great lawyers when I see them--Boyden Gray, testified for Mr. Estrada. Mr. Gray, of course, served as White House counsel in the first Bush administration.

During his testimony, he told us that two Democratic Senators who are former Judiciary Committee chairmen met with him very early in the administration to let him know in no uncertain terms that if the White House was caught asking any potential nominee any questions about specific cases, that nominee would be flatly rejected.

As Mr. Gray pointed out, that same philosophy is reflected in the Judiciary Committee questionnaire which all judicial nominees must complete before the committee will act on their nominations. It is an extensive questionnaire. The questionnaire asks:

Has anyone involved in the process of selecting you as a

judicial nominee discussed with you any specific case, legal

issue, or question in a manner that could reasonably be

interpreted as asking or seeking a commitment as to how

you would rule in such a case, issue, or question?

The clear goal of this question is to deter the White House from getting commitments from potential nominees on how they would rule in specific cases or commitments that they can overrule certain Supreme Court cases. It now appears certain Senate Democrats want to forbid the White House from asking nominees how they would rule on specific issues while reserving that right for themselves. That seems a little inconsistent to me. Call it what you will, but this is a double standard if I have ever seen one.

More fundamentally, it threatens the very independence of the Federal judiciary that our constitutional system of checks and balances was designed to preserve.

Let's face it--too many questions in the confirmation hearings of President Bush's judicial nominees seem calculated politically to manipulate the judicial selection process and to frustrate the appointment of judges who would refuse to follow a popular or politically popular course when the Constitution and settled judicial precedent provide otherwise.

Miguel Estrada was right not to fall into the trap of criticizing particular Supreme Court cases that he may be called upon as a sitting Federal judge to uphold. My colleagues should be commending him for this, not proffering it as a reason to vote against his confirmation.

Another weapon in the Democrat handbook is to, as we can see here, seek all unpublished opinions. This all came from that retreat: Bottle up the nominees as much as you can in committee. I think that even goes further--bottle them up on the floor, too. We will get to that. Inject ideology into the confirmation process so you can say this fellow just isn't what we want on the court. Seek all unpublished opinions. Let's talk about that.

For some nominees who have been judges for a decade or more, this demand has resulted in the production of hundreds of opinions and required the expenditure of a significant amount of Federal dollars, of resources, of money, of effort, and of time. All the time judges spend producing unpublished opinions meant they were not spending that time adjudicating cases before them.

While demands for unpublished opinions were outstanding, the Democrats in control of the committee had a perfect excuse for not acting on their nominations. But the fact is that these nominees had ample records on which to evaluate their qualifications for the Federal bench without seeking their unpublished opinions and diverting them from doing their job to be judges to satisfy the whim of a few Democratic Senators.

I remember in the case of, I believe, Dennis Shedd--who is now confirmed to the circuit court of appeals in his district--they asked for all of his unpublished opinions which were, as I recall, in Atlanta, GA, and what was the reason? It was only to see if they could dig up something that would be against Dennis Shedd. Unpublished opinions? My gosh, I don't ever remember when we did that. But that was a tool that was used throughout the process to delay. It was an expensive tool to the taxpayers, with no real good fruit coming from it.

I will refer to the fourth one here. Another weapon is to demand that the nominee produce internal memoranda that are not within the nominee's control. Isn't that an interesting one? We Democrats demand that you produce your internal memoranda that you made, and did the research on, and that you wrote while you served the Federal Government--even though you don't control that and even though it is tightly controlled--or should I say those memoranda are tightly controlled.

We saw the debut of this weapon to obstruct the confirmation of Mr. Estrada, and I expect we will see it again. I don't believe a day of this debate has gone by without one Democratic colleague complaining that there is an ``incomplete record'' on him without the record he offered as an Assistant Solicitor General of the United States.

This complaint ignores many facts. First, every living Solicitor General opposes the Democratic efforts to obtain these memoranda. Second, both the Washington Post and the Wall Street Journal--many would say they are on opposite sides of the fence--also oppose these efforts. Third, this demand for internal Department of Justice memoranda is unprecedented, as the Department itself has explained in a lengthy letter.

Finally, this demand for internal memoranda ignores the abundant record of Mr. Estrada. This man has argued 15 cases before the U.S. Supreme Court. He won 10 of them. In each one of those cases, he authored a brief that anybody can get ahold of. In each one of those cases, there is a transcript of the oral arguments that anyone can get ahold of. Certainly, members of the Senate Judiciary Committee can get ahold of them. Surely, my Democratic colleagues can evaluate Mr. Estrada's legal reasoning and fitness for the Federal appellate bench by examining these briefs and transcripts.

Each weapon of obstruction that I have mentioned was most potent when the Democrats controlled the Judiciary Committee. Now things have changed. Democrats no longer control the committee and, as a result, Miguel Estrada's nomination is being debated on the Senate floor. This means that the Senate Democrats must turn to their ultimate weapon of obstruction. I am going to peel off that last one. The ultimate weapon is the filibuster.

Well, filibuster is a potent but extreme weapon to rely upon for the defeat of a judicial nominee. It is potent because it requires a supermajority of 60 votes by 60 Senators to end it. It is extreme because it unduly politicizes the Federal judiciary, the one branch intended to be insulated from political pressure. Let's go through these again. At the retreat, these law professors, who should have known better but are more interested in ideology, in partisanship, Democratic Party politics, in control of the judiciary, made these recommendations: Bottle up nominees in committee. We saw a lot of that when they were in control. Now they cannot do that anymore, except that I suspect that because the Judiciary Committee has a rule that once these nominees are put on a markup, any member of the committee can put them over for a week, we will see that right exercised in every case. At least, we have so far. So bottle them up in committee. Then inject ideology into the confirmation process because, by doing that, you can say I disagree with you and maybe you think you have a right to vote against him.

Look, we don't know how any nominee is going to vote once they become a judge; it is a lifetime appointment. It is important to ask questions and try to do what we can to understand whether the nominee is capable or should be confirmed. To inject ideology into the confirmation process is a very dangerous thing. Thirdly, seek all unpublished opinions. That is the ultimate delay tactic, at a tremendous cost to the taxpayers. I don't remember in the past where that was done, except it may have been done in a case where they were critical to the final determination. But it is done today because they want fishing expeditions, or they wanted them to see if they could find some reason to oppose. Then, seek privileged internal memoranda.

Can you imagine what would happen to the Solicitor General's Office if secret memoranda that were used to determine what the Solicitor General should do would be disclosed to the public in every case? Can you imagine how that would chill getting responsible, accurate, and honest opinions, so that the Solicitor General can rely upon them? Anybody who wanted to be a Federal judge would have to think, how can I write this so it won't come back to haunt me in the future rather than, how can I write this to do it right and help my Solicitor General. And then the ultimate weapon, if you cannot do anything else, is the filibuster.

Now, to filibuster a nominee would be an unprecedented, dangerous weapon to use. As best I can tell, a true filibuster has never been used to defeat a circuit court nominee. In fact, no filibuster has been used to defeat a circuit court nominee. Its contemplated use now against Miguel Estrada's nomination has been soundly criticized. I was told a short while ago that my colleagues on the other side have decided to filibuster. I don't believe the reasonable people on the Democratic side are going to resort to that type of a weapon. But if they do, they will be following the advice of these law professors who have never been Senators and who are from the far left of the political and legal spectrum.

The filibuster is an unprecedented and very dangerous weapon, never before used to defeat a circuit court nominee. In fact, it has never been used to defeat a district court nominee either. Let me go a little bit further here.

Just last week, the Washington Post, our local newspaper--but national in scope--declared:

[A] world in which filibusters serve as an active

instrument of nomination politics is not one either party

should want.

That was February 5--last week. The Post is absolutely right. Once we go down that road, that works both ways. I would not want it to, but it naturally will.

The Wall Street Journal concurred in the Washington Post's sentiment. You can see the quote:

Filibusters against judges are almost unheard of. . . . If

Republicans let Democrats get away with this abuse of the

system now, it will happen again and again.

Mr. President, copies of these editorials have been printed in the Record.

Filibusters of judicial nominees allow a few Members of this body to block the confirmation of any Federal judge, a prospective member of our third coequal branch of Government.

I have taken to the floor time and again for Democratic and Republican nominees alike to urge my fellow Senators to end debate by voting to invoke cloture which requires the vote of 60 Senators. Most, if not all, of these occasions did not represent true filibusters but were situations in which nominees were, nevertheless, forced to overcome a procedural obstacle of a cloture vote.

I am not alone in my disdain for forcing judicial nominees to a cloture vote. The distinguished minority leader himself once said, on this double standard for the use of the weapons, Democrat leader Tom Daschle, one of my friends and a person for whom I have a lot of respect:

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.

I think that was wise advice then, and I think it is wise advice now.

The ranking member of the Judiciary Committee, my friend Senator Patrick Leahy, said:

I, too, do not want to see the Senate go down a path where

a minority of the Senate is determining a judge's fate on

votes of 41.

In other words, 41 Senators can stop any judge once that road is taken. And once we go down that path, that will be a doggone mess and a doggone tragedy to this country.

Another one of my Democratic colleagues, himself a former chairman of the Judiciary Committee and a friend of mine, Senator Ted Kennedy, had this to say:

Nominees deserve a vote. If our Republican colleagues don't

like them, vote against them. But don't just sit on them--

that's obstruction of justice.

He was right then and that quote is right today. Of course, each of my Democratic colleagues made these remarks when a Democratic President was appointing judicial nominees. It appears that if they filibuster this nominee on the thinnest of excuses--in fact, I do not think they have any reasons to, other than their fear that he is a Hispanic conservative Republican who may not rule the way they want him to rule in the future and who may some day be considered for the Supreme Court of the United States of America--it appears there must be a double standard for the use of these weapons.

Let me tell you the origin of the word ``filibuster'' because that is an important word here today. It comes from the Spanish word ``filibustero,'' meaning a pirating or hijacking. It is just one more obstruction that has never been used in the case of Federal judges, for either the circuit court of appeals or for the district court.

That is exactly what an unprecedented filibuster of this nominee would

be: A hijacking of the Senate. What it amounts to is two more simple English words: More obstruction.

There was one true filibuster in the history of the Senate--I have to acknowledge that--and that was a filibuster of a Supreme Court nominee, Abe Fortas, back in 1968, if I recall it correctly. There was a bipartisan filibuster. There were plenty of Democrats and plenty of Republicans who voted against cloture in that case. I think they were wrong, whoever voted that way. Richard Nixon was for allowing the vote to go forward without a filibuster. But the Senate wisely has never utilized a true filibuster since that day. To use it on this nominee because some have said he is not Hispanic enough, to use it on this nominee because some have said he does not have any judicial experience--although Miguel Estrada was a clerk to Amalya Kearse of the Second Circuit Court of Appeals and a clerk to Justice Anthony Kennedy on the Supreme Court of the United States of America, and has argued 15 cases before that august body and numerous cases elsewhere. It seems to me he has a lot of judicial experience, though he has not sat on the bench.

If we take that opinion, then that virtually consigns almost every Hispanic in this country, probably most African Americans--in fact, probably everybody of a minority status--to never being a Federal judge because most Hispanics have never sat on a bench. There are those who have, admittedly. Most African Americans have never sat on a bench, although there have been some on lower court benches in the State courts particularly, and even in the Federal courts. But it basically says you cannot make it if you have to have served as a judge before, no matter how brilliant you are. There are brilliant African Americans. There are brilliant Hispanics. There are brilliant Native Americans. There are brilliant Asian Americans. And we have brilliant people who have never served as a judge who might have this opportunity some day that Miguel Estrada hopefully will have.

Others have used other phony arguments against Miguel Estrada, such as he did not answer all the questions. That is par for the course. I do not know many contested judicial nomination proceedings where all the questions have been answered the way the questioners expected them to be answered.

Then they say: We cannot get hold of all these documents because he did them confidentially while he worked at the Solicitor General's Office, even though four of those seven living Solicitors General who are opposed to that type of release of documents are leading Democrats in this country. They will not even listen to their own leading Democrats, let alone leading Republicans.

I am just imploring my colleagues on the other side: Do not go down the terrible path of filibustering this nominee or any other nominee. It is not only dangerous, it would establish a precedent that literally would be offensive to the country, offensive to the Constitution, offensive to the judicial system, offensive to the third branch of Government, and offensive to any reasonable person who believes the President's nominees ought to get a fair hearing and they ought to get a vote up or down on the Senate floor. That is where we make that determination.

If the Democrats have enough votes to defeat Miguel Estrada, I am not going to complain about it. I might feel badly about it, and I might say it was the wrong thing to do, but they have a right to do that. If we have enough votes on this side, with hopefully the help of a number of our friends on the other side, then that is the way it should be. Miguel Estrada should go on that bench.

Unfortunately, I believe one of the arguments that is flitting around in the background in the penumbras and emanations of the Senate is he might some day be asked to be the first Hispanic on the U.S. Supreme Court, and that is the real reason, among a few others that are not valid as well, for the slowdown in a vote on Miguel Estrada.

Mr. President, I do not think we should have a filibuster, or a pirating or hijacking of the judicial process. I think it would be a terrific mistake for Democrats to do. Every Republican is going to vote for Miguel Estrada, and I believe a number of Democrats will as well--I hope a great number of them will--and they ought to have that right, right here on the floor.

If my colleagues who disagree do not like it, they can speak out. They can give their reasons, and they can vote no. That will be what they should do if they feel sincerely about this. Politics ought to be left out of it. The fact that they suspect Miguel Estrada may not be exactly the way they would want a judge to act on their issues--I do not know whether he will or will not, to be honest, but if the mere suspicion is enough to vote against him without any real basis otherwise, then I think we are treading on some very dangerous ground.

I believe in Miguel Estrada. I believe this President is doing everything in his power to reach out to people of color in this country. I believe we ought to help him. He certainly has indicated his desire to do so, and he certainly has been doing it. This is a President who has put a number of Democrats on the Federal bench. I think he wants to make sure we fill these seats and we get them done as best we can. Naturally, any President worth his or her salt is going to try to appoint people who, hopefully, agree with him or her. I think that is the nature of the process, and that is what we get when we elect a President; we get that President's nominations to the various Federal courts.

This President is very sincere and has approached it probably less politically than Presidents, Republican and Democrat, whom I have seen in the past. He deserves support. He deserves to be treated fairly. His nominees deserve to be treated fairly. Above all, Miguel Estrada should be treated fairly. If the ``filibustero'' occurs, I guarantee he is not being treated fairly.

Will the Senator yield for a question?

Does the Senator remember--you may or may not have been there at the time--he was asked about Roe v. Wade, and he said it was settled law and that he would apply it? Does the Senator remember that?

That is what it said in the transcript.

It is on page 128 of the transcript. Specifically asked, he said it is settled law and he would apply it. I do not know what more he could say.

I certainly do not know what more he should have said. If you go to page 128----

Well, he did. In his oral questions he was asked about Roe v. Wade, and he said it was settled law, he would apply it. Maybe he did not say exactly what you wanted him to at the time, but that is what he did say.

Will the Senator yield again?

Senator Feinstein asked him about Roe v. Wade. He basically said that he should not discuss his views on it, but he said, on page 128:

I have had no particular reason to go back and look at

whether it was right or wrong as a matter of law as I would

if I were a judge that was hearing the case for the first

time. It is there. It is the law as it is subsequently

refined by the Casey case. And I will follow it.

And Senator Feinstein said:

So you believe it is settled law?

Mr. Estrada said:

I believe so.

So maybe he did not answer exactly the way you wanted him to in the written questions, but in the oral testimony he made it very clear that he would follow the law and that he believes it is settled law. I do not know what more he should have said.

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

Mr. President, I have been on the Senate floor since the debate on the Miguel Estrada nomination commenced last week. I have stated in the strongest terms my support for his qualifications. I am not alone. Virtually anybody who knows him, anybody who has any background on Miguel Estrada, feels the same way. I have stated in the strongest terms this support. The record is replete with reasons why he would be an excellent addition to this DC Circuit and with facts dispelling the specious arguments of his detractors.

I will now address the procedural tactic that is being used against Miguel Estrada, and I am talking about a filibuster of this nomination. A filibuster of Mr. Estrada's nomination will require a cloture vote by the Senate to end debate, unless reasonable minds on the Democratic side can prevail.

I know there are some who are working to try to prevail, just like I had to work on our side to prevail over those who wanted to filibuster some of President Clinton's nominees. I am hoping reasonable people on the Democrat side will prevail. They simply must prevail because we really do not want to start down the road of a filibuster.

As I say, a filibuster of Mr. Estrada's nomination will require a cloture vote by the Senate to end debate. This means that a supermajority of 60 votes will be required to allow us to proceed to an up-or-down vote on Miguel Estrada's nomination. That is an insult to Miguel Estrada. It is an insult to the Senate. It is an insult to Hispanic people all over this country who are watching what is happening. Actually, it is an insult to this coequal branch of government, the judiciary.

I have taken the Senate floor on more than one occasion to decry the tactic of enforcing judicial nominees through a cloture vote. My position has been the same, regardless whether the nominee was appointed by a Democratic or Republican President. I am proud to say during my nearly 30 years in the Senate, I have never voted against cloture for a judicial nominee, even on the rare occasion when I opposed a judicial nomination and ultimately voted against that nomination.

An example in point is the nomination of Lee Sarokin to the Third Circuit. Even though I voted against his nomination, I voted in favor of cloture because I strongly believed his nomination deserved to succeed or fail on the basis of the votes of a simple majority of the Senate, not on the will of merely 41 Senators who vote against cloture. I argued strenuously in favor of invoking cloture on two of President Clinton's judicial nominees, Marcia Berzon and Richard Paez.

There are times when legislators must, to be effective, demonstrate mastery of politics, but there are also other times when politics, though available, must be foresworn. This is one of those times. There is a quote of Disraeli that addresses this situation perfectly. To paraphrase, next to knowing when to seize an opportunity, the most important thing is knowing when to forgo an advantage.

I hope my colleagues will forgo their perceived advantage of a filibuster of Miguel Estrada's nomination. Forcing a supermajority vote on any judicial nominee is a maneuver that needlessly injects even more politics into the already overpoliticized confirmation process. I believe there are certain areas that should be designated as off limits from political activity. The Senate's role in confirming lifetime appointed article III judges and the underlying principle that the Senate perform that role through the majority vote of its Members are such issues. Nothing less depends on the recognition of these principles than the continued untarnished respect for our third branch of Government, the one branch of Government intended to be above political influence, the Federal judiciary.

On the basis of principle, I have always tried to be fair to judicial nominees, regardless of the political affiliation of the President making the nomination. The opposition to now Judge Berzon and now Judge Paez, two Clinton nominees, was led by members of my own party. They believed very deeply that Marcia Berzon, with her very liberal philosophy, would become an activist judge. They knew, in their eyes-- and I think they were pretty right--that Judge Paez as a Federal district court judge was an activist judge, writing activist decisions. I met Judge Paez, and he said he would be very careful not to be activist in the future. It did not take him long on the Ninth Circuit Court of Appeals, in the eyes of some, to go back to his activist ways. Activism means acting as a superlegislator on the bench, making laws that should be made by those who have to stand for reelection--Members of Congress and the President.

When members of my own party fought against Judge Berzon, now Judge Berzon, and then Judge Paez, during that time I stood against the use of cloture to attempt to thwart a vote on their nominations, and I was successful. Now it is my friends across the aisle first subjecting Miguel Estrada's nomination to a cloture vote. I stand just as firmly today against the use of this tactic to prevent his nomination from coming to the floor of the Senate for an up-or-down vote, which is what the President deserves. If we are going to be fair to the President of the United States, whoever the President may be, we should always provide that opportunity to have an up-or-down vote on these nominees.

To be sure, this body has on occasion engaged in the dubious practice of filibusters of judicial nominees, but forcing the filing of cloture on a judicial nominee remains the exception rather than the rule. We have always been able to thwart the attempted filibuster by some who I think at the time did not fully realize the import of their actions.

We have always been successful. Overall, these episodes have been infrequent and they have been unfortunate in each case. I hope they will remain as such and that what we are seeing today is not the beginning of a long battle of fighting filibuster threats against President Bush's judicial nominees. There is real cause for concern that is not to be taken lightly in the wake of the November elections. Leading liberals hit the newspapers to urge my

Democratic colleagues to use the filibuster as a tool to defeat President Bush's judicial nominees.

On November 11 of last year, the Legal Times published an article: ``A Major Shift in the Battle for the Bench.'' The article was subtitled: ``With GOP steering the Judiciary Committee, liberal advocates turn to more desperate measures.'' The article reported on the plans of liberal interest groups to refocus their energies against President Bush's judicial nominees on the Senate floor where ``filibusters and legislative horse trading may give liberal interest groups their best shot at influencing the process.''

The senior legislative counsel of one liberal group called the filibuster a ``plausible weapon.''

Also on November 11, two liberal law professors published an op-ed in the Los Angeles Times entitled: ``No to a Far-Right Court: Use Filibusters.'' In an implicit nod to the rarity of the use of a filibuster to defeat a judicial nominee, the article urged ``courageous Democrats'' that a filibuster is the only way to thwart President Bush's nominees.

The New York Times on November 10 similarly urged Democrats ``not [to] be afraid to mount a filibuster,'' which, again, implicitly acknowledges the extremity of filibustering a judicial nomination.

On November 14, the Madison Capital Times reported that a Federal feminist group was targeting Wisconsin for a grassroots campaign to drum up support for the filibustering of Bush Supreme Court nominees. The paper candidly reported:

The tactic would call on Senators to filibuster in order to

block [pro-life] nominees. A filibuster is a parliamentary

technique that allows a majority of Senators to keep a vote

from being taken. Defeating a nominee requires a majority

vote in the Senate, but only 41 of the 100 Senators are

needed to sustain a filibuster.

The rallies in Madison and Milwaukee were only 2 of 12 such campaigns by this group on college campuses nationwide to drum up support for filibustering judicial nominees based on the single litmus test issue of abortion.

Madam President, I ask unanimous consent editorials be printed in the Record.

What these articles suggest is that the liberal interest groups are just as intent as ever on using every trick in the book to defeat President Bush's judicial nominees. From the start of their record, as they have tried to do with Miguel Estrada and others, by forcing a cloture vote, it appears the liberal interest groups will stop at nothing to further their agenda. What is more, it looks as if the defeat we are seeing on Miguel Estrada is

not so much about him as it is about seeing how well a filibuster works in case there is a Supreme Court nominee this summer.

It also may have a more sinister purpose: To desensitize the American people to filibustering judicial nominees so that the practice will become more acceptable and so that less outrage will be expressed over the filibustering of other circuit nominees and ultimately a Supreme Court nominee. This is all part of the strategy of changing the ground rules on judicial nominations that Senate Democrats discussed at their retreat back in April of 2001.

I am not the only one who recognized the dangerous precedent that some Democrats would set in filibustering qualified nominees. The Washington Post, hardly a bastion of conservatism, warned in a December 5, 2002, editorial that ``a world in which filibusters serve as an active instrument of nomination politics is not one either party should want.''

The Washington Post urged Democrats to ``stand down'' on any attempt to deny Miguel Estrada a vote because his nomination ``in no way deserves a filibuster.''

I couldn't agree more.

I hope I am wrong about the extent to which the liberal interests groups have had a role in orchestrating this lengthy debate on Miguel Estrada's nomination. I hope that this is not another example of an attempt by some of my Democratic colleagues to change the ground rules on judicial nominees. I hope that my Democratic colleagues will exercise the same independence that I did when I joined them to invoke cloture on the nominations of Clinton judicial nominees who were opposed by many of my Republican colleagues.

When I argued to invoke cloture on the nominations of Judge Berzon and Judge Paez, I noted several important reasons for avoiding a filibuster of judicial nominees. One is that the Senate's constitutional duty of advise and consent contemplates that a vote by a simple majority of the Senate determine the fate of a judicial nominee. There is nothing in the Constitution that gives that power to a minority of 41 Senators, just as that power should not be yielded by 10 Senators in a party-line vote in committee.

Another reason is that most of the fight over a nomination has occurred well before a nominee arrives at the Senate floor. The battles are largely fought between the White House and the Judiciary Committee, since it is our job to vet the nominees. By the time a judicial nominee reaches the Senate floor, he or she deserves a vote on the merits without having to clear the procedural hurdle of a cloture vote.

In the past, several of my Democratic colleagues have joined me in condemning the practice of forcing judicial nominees through a cloture vote. For example, during the debate on Clinton nominees, one of my Democratic friends spoke passionately about this tactic. He said:

I . . . do not want to see the Senate go down a path where

a minority of the Senate is determining a judge's fate on

votes of 41.

He continued:

I . . . took the floor on occasion to oppose filibusters to

hold . . . up [nominations] and believe that we should have a

vote up or down.

On a different occasion, the same colleague 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; that I felt

the Senate should do its duty.

And another Democratic colleague put it simply when she said:

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

down . . . If someone has an opposition to a judge, they

should come to the floor and say that.

I agree wholeheartedly with these statements.

Miguel Estrada waited more than 16 months for his confirmation hearing. He waited another 4 months for a committee vote on his nomination. And now his nomination is being subjected to yet another hurdle: Extended floor debate on his nomination with no end in sight. If we're going to debate Mr. Estrada's nomination, then let's do it, vote on it, and get on with the other important matters that are the work of this body.

I hope my colleagues are not going to the unworthy ends of filibustering the President's nominees. It is unfair to the President. It is unfair to the process. It is unfair to Miguel Estrada who has earned the right to be here.

I think it is important to remind my Democratic colleagues of statements they have made over the years opposing filibusters of judicial nominees. Of course, there was a Democratic President in the White House at the time these statements were made. I guess that is the double standard for Mr. Estrada, in more ways than one.

I remember, on the nomination of Merrick Garland, here was a statement of Senator Sarbanes, who came to the Senate the same time I did, and whom I respect, the Senator from Maryland. It was on the nomination of Merrick Garland, President Clinton's nominee to the very same court, the Circuit Court of Appeals for the District of Columbia, for which Miguel Estrada has been nominated. He said this:

It is worse than that. It is not whether you let the

President have his nominees confirmed. You will not even let

them be considered by the Senate for an up-or-down vote. That

is the problem today. In other words, the other side will not

let the process work so these nominees can come before the

Senate for judgment. Some may come before the Senate for

judgment and be rejected by the Senate. That is OK. But at

least let the process work so the nominees have an

opportunity and the judiciary has an opportunity to have

these vacant positions filled so the court system does not

begin to break down because of the failure to confirm new

judges. The Senator from Delaware, when he was chairman of

the committee, always measured up to that responsibility, I

think often taking a lot of political heat for doing it. But

he was out to make sure the system could function. He had

Republican Presidents nominating judges. He processed their

nominations. He brought them to the floor of the Senate. He

gave the Senate a chance to vote on them up or down for those

people to get confirmed. that process is breaking down.

On another occasion Senator Biden said:

So any member who is nominated for the district or circuit

court who, in fact, any Senator believes will be a person of

their word and follow stare decisis, it does not matter to me

what their ideology is, as long as they are in a position

where they are in the general mainstream of American

political life and they have not committed crimes of moral

turpitude, and have not, in fact, acted in a way that would

shed a negative light on the court. But I also respectfully

suggest that everyone who is nominated is entitled 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.

That was a statement of Senator Joseph Biden, Congressional Record, March 19, 1997 at S2540.

This is a statement of Senator Barbara Boxer on the nomination of Margaret Morrow, to the Ninth Circuit Court of Appeals:

According to the U.S. Constitution, the President

nominates, and the Senate shall provide advice and consent.

It is not the role of the Senate to obstruct the process and

prevent numbers of highly qualified nominees from even being

given the opportunity for a vote on the Senate floor.

That statement of Senator Boxer was printed in the Congressional Record, May 14, 1997 at S4420.

On the nomination of Judge Richard Paez, to the Ninth Circuit, Senator Leahy, the distinguished ranking member and Senator from Vermont, said:

I have heard rumors that some on the Republican side

planned to filibuster this nomination. I cannot recall a

judicial nomination being successfully filibustered. I do not

recall earlier this year when the Republican Chairman of the

Judiciary Committee and I noted how improper it would be to

filibuster a judicial nomination. During this year's long-

delayed debate on the confirmation of Margaret Morrow,

Senator Hatch said: `I think it is a travesty if we ever

start getting into a game of filibustering judges.' Well, it

appears that travesty was successfully threatened by some on

the Republican side of the aisle and kept the Minority Leader

from fulfilling his commitment to call up the nomination for

a confirmation vote.

That is printed in the Congressional Record, October 14, 1997 at

I would modify my unanimous consent request to 8 additional hours in addition to the 6 I have asked for.

Let me modify it to 10 additional hours.

Let me go further, let me modify it to 20 additional hours, which would probably be close to 3 more days.

Is the Senator telling me no matter what I offer that Senate Democrats are going to object?

Even if I go up to 40 or 50 hours?

I don't blame the distinguished Senator from Connecticut for having to make these objections.

I am going to keep making them because it is apparent now that we are in the middle of a filibuster. I just want to warn the Senate, that is not a good thing. It is not fair to the President. It is not fair to Miguel Estrada. It is not fair to the process. It is not fair to the judiciary. It is not fair to Senators who have been fair to Democrat nominees who were heavily contested where there were no cloture votes or no, should I say, real filibuster. It is just plain not fair.

What is so wrong with giving this Hispanic man, who may be conservative and who is Republican, an opportunity to serve, to break through that intellectual glass ceiling that suddenly seems to have been erected and give him an opportunity to serve since he has such great ability to be able to do so and has proven it?

I repeat again, he has the highest recommendations of the American Bar Association, the gold standard of my colleagues on the other side. They are the ones who said that the ABA recommendations are the gold standard, and he holds a unanimously well-qualified, highest rating of the American Bar Association. How can we stand here and filibuster somebody like that?

All I can say is that I hope everybody in America is watching us because it is just plain not fair nor is it right. If we are going to do this, it is a road I surely don't want to see the Senate go down. I am hoping that my good friend from Connecticut will talk to his friends on the other side and my friends on the other side and get some reason.

We are now at a new point in history for this body. In the confirmation of judicial nominees, this will be the first time in the history of this country and of this body that a filibuster will be conducted against a circuit court of appeals nominee, a true filibuster. I am going to keep the door open for my colleagues to see the error of their ways, and hopefully we can resolve this matter before the end of this week or in any reasonable time. I offered up to 50 hours that were objected to. I am surely hoping that my colleagues who think a little more clearly on the other side will influence all of our other colleagues who are seemingly so caught up in an ideological warfare and give this vote to Miguel Estrada who deserves it.

I notice my colleague has been patiently waiting for a long time. I apologize to him, but I had to make these comments.

I yield the floor.

Will the Senator yield on that point?

I just ask the Senator to yield on that narrow point.

I do not want to debate. I just want to make one point.

Is the Senator aware that I just went through that the Justice Department proved that these types of documents have never been given to anybody?

We go over and over it.

No, they weren't.

Is the Senator aware of the list from the Justice Department?

I agree with my colleague that what he was saying is true, as I am sure he intended it to be. He is a dear colleague and close friend. I agree he has an open mind with regard to nominees and has exhibited that through the years. He has been totally misled on these matters.

That is something that is starting to bother me. I have run into a number of Democrat Senators who have spouted the same things that are just plain not right or factual--not everything he said.

But he is correct, I did make a speech at one time where I said we should not rubber stamp these people, and I still believe that. However, this is not rubber stamping.

First, it was 516 days before Miguel Estrada even got his hearing. For those who think he did not answer any questions, take a look at this hearing record. My gosh, I can hardly lift the doggone thing. He answered question after question after question. He just did not answer questions the way they wanted. I suspect, as is very evident here today, and evident throughout this matter, they do not have anything on him.

The distinguished Senator from Vermont wanted to speak and I am prepared to turn the time over to him when he returns. I ask unanimous consent that after my remarks the distinguished Senator from New Jersey--how much time does the Senator desire?

I ask unanimous consent that the distinguished Senator from New Jersey immediately follow me for 30 minutes, the distinguished Senator from Colorado follow the distinguished Senator from New Jersey for 15 minutes, and that the distinguished Senator from Alabama be permitted then to speak.

Mr. President, I tell my dear colleague from Connecticut that I think he has been very badly misled by some of the people on his side. Mr. Estrada waited over 500 days for a hearing conducted by Democrats. Senator Schumer is no shrinking violet. We all know that. He is another friend of mine, and he is no shrinking violet.

They asked questions for a lengthy, extraordinary period of time compared to other nominees. This is the hearing transcript. My gosh. He answered question after question after question. But he just did not answer them the way he wanted them to answer. And he did not make any mistakes, apparently, and he did not give them anything to hang him with.

There is a double standard being played here. I remember the distinguished Senator from Connecticut saying he is sorry that Miguel Estrada has to be used in this way as a bad example. He is being used all right because they cannot pin anything on him that they do not like other than they claim he did not answer the questions.

Well, they had the committee. They could have asked all the questions they wanted to, and they did, and it went on for hours. I might add that he answered them. He just did not answer them the way they wanted him to answer. Talk about a double standard.

Why is this Hispanic person going through this? I will tell you why. Because he is a Hispanic conservative Republican who they are afraid will tip the balance of power on the Circuit Court of Appeals for the District of Columbia and might even be considered for the Supreme Court of the United States of America. They are going to do everything they can in their power to delay his nomination.

It is pathetic. It is shameful. I am sick and tired of it. I am tired of my colleagues being misled by their own colleagues. We go over and over the facts in this matter. The requests they were making of the Justice Department were for confidential documents.

I will take a few minutes, because it is important, after this last speech. I know my colleague would not have said some of the things he said if he had been given the true facts. I am not disagreeing with everything he said, but I certainly disagree with an awful lot of what he said.

Fact versus fiction--I will cite what has really gone on here. Their base is People for the American Way, a national abortion rights league, the Alliance for Justice--you can name 20 other far left organizations that just plain do not want any of President Bush's circuit court of appeals nominees being treated fairly. They do not

want them at all. They disagree with them because they are left wing and these nominees are moderate to conservative. At least, we hope they are. Certainly, the President hopes they are.

And I might add, the President does not tell them what to say up here, which was implied in the last remark. I know how they vote these judges. They do not ask them questions like that. We know darned well the minute they do our questionnaire would bring it up. We make it very clear in the questionnaire that is not supposed to happen, but, naturally, they help these people understand what is going on.

Let me use People for the American Way, just for one of these left- wing groups that is almost always wrong. Here is an argument against Miguel Estrada. This is in the Senate Democratic Policy Committee briefing book on the nomination of Miguel Estrada: Lack of judicial experience. Mr. Estrada has no judicial experience. He has had no publication since a banking law article he wrote in law school. He is not a distinguished legal scholar or professor and he has never taught a class. The bulk of his career has been spent in the Solicitor General's Office and in private practice.

Hey, that ain't bad right there, Solicitor General's Office and private practice. But the fact he has no judicial experience is a joke--as if that is an inhibiting factor.

This is what People for the American Way said in a letter from the president, Ralph Neas, to the Senate Judiciary Committee, dated January 29, 2003: Mr. Estrada has worked for the Justice Department for more than half of his career and has never served as a judge or a magistrate or law professor and, indeed, has not published any legal writings since law school. It is virtually the same thing in the Democratic policy books. But here are the facts. Only 3 of the 18 judges confirmed to the DC Circuit since President Carter's term began in 1977 previously had judicial experience--only 3 of them of the 18 judges.

Here is another fact. Democrat-appointed DC Circuit judges with no prior judicial experience include Harry Edwards--I think he is the current chief judge, isn't he, or he was--Merrick Garland, Ruth Bader Ginsburg, Abner Mikva, David Tatel, and Patricia Wald. They are all Democrats, of course. All were appointed by either Carter or Clinton and had no prior judicial experience.

Why is it fair for them to be on this court with no prior judicial experience but it is not fair for Mr. Estrada? Why the double standard? My gosh, they are not treating this guy fairly at all.

Let me give another fact. Several other Clinton appointees to the courts of appeals received their appointments despite having no prior judicial experience. Ninth Circuit appointees Richard Tallman, Marsha Berzon, Ronald Gould, Raymond Fisher, William Fletcher, Margaret McKeown, Sidney Thomas, and Michael Hawkins all had no judicial experience prior to taking the bench. Seven of these eight--all but Fletcher, who was a law professor--were in private practice when they were nominated by President Clinton and confirmed by the Senate.

Several Supreme Court Justices had no prior judicial experience before their first appointment to the bench. Louis Brandeis spent his entire career in private practice before he was named to the Supreme Court in 1916. Byron White, a personal friend of mine, one of the great Justices, spent 14 years in private practice and 2 years in the Justice Department. He worked for the Justice Department. I guess that was an inhibiting factor before his appointment to the Court by President Kennedy in 1962. He had no prior judicial experience.

Thurgood Marshall had no judicial experience when President Kennedy recess appointed him to the Second Circuit in 1961. Marshall served in private practice and as special counsel and director of the NAACP prior to his appointment.

Why is Miguel Estrada, this Hispanic gentleman, being treated differently? Because he is a Hispanic conservative Republican, or at least they think he is conservative. I am not sure.

Let me go back to the Democratic Policy Committee.

Sure.

He was a law clerk to Amalya Kearse on the Second Circuit Court of Appeals and law clerk to Justice Kennedy. He had lots of experience on the judiciary. I am glad the Senator pointed that out.

The Senate Democratic policy book on the nomination:

Mr. Estrada often refused to answer questions.

We are getting this bullcorn on the floor today, and we have gotten it every day we have been here. They don't seem to listen to the facts.

Mr. Estrada often refused to answer questions, or provided

extremely evasive answers during his confirmation hearing.

You should have heard all of their nominees, whom we allowed to go through. OK. It goes on to say:

He declined to answer all questions about his judicial

philosophy and his views on important Supreme Court cases.

For example, when Senator Schumer asked Mr. Estrada to name a

single case from the entire history of the Supreme Court law

that he disagreed with, Mr. Estrada refused.

My goodness. The policy statement says:

Other judicial nominees of President Bush, including some

with significant ``paper trails, have discussed their

jurisprudential views extensively in hearings before the

Senate Judiciary Committee. Just last year, Michael

McConnell--

You heard Senator Dodd bring this up--

confirmed to the 10th Circuit, thoroughly discussed his views

on such subjects as Roe v. Wade and the Supreme Court's

recent ``federalism'' decisions limiting the authority of

Congress.

Here is what People for the American Way have to say:

Mr. Estrada refused to reveal his jurisprudential views . .

. in response to questions by Senators. For example, despite

repeated attempts by Senator Schumer, he refused to identify

even a single Supreme Court decision over the past 40 years

with which he disagrees.

At least they got that right--the 40 years part--because we have had Senator after Senator come here and say he refused to talk about any decisions with which he disagreed. Wouldn't he have disagreed with Dred Scott or Plessy v. Ferguson? Those were a long time before the 40 years that Senator Schumer asked about. But let's go a little further. People for the American Way says:

Estrada refused to answer key questions at his Senate

Judiciary Committee hearing about his judicial philosophy,

such as his views on important Supreme Court decisions. For

example, he refused to name a single Supreme Court decision

in the last 50 years that he thought was wrong.

Then they go on to say this. This is again a letter from Ralph Neas.

Other judicial nominees of President Bush, including some

with significant ``paper trails have discussed their

jurisprudential views extensively in hearings before the

Senate Judiciary Committee. Just last year, Michael

McConnell, who was recently confirmed to the Court of Appeals

for the 10th circuit, thoroughly discussed his views on such

subjects as Roe v. Wade and the Supreme Court's recent

federalism or States rights decisions limiting the authority

of Congress.

That was a letter dated January 24, 2002.

Let me give you the facts to show how wrong they are. That is what is killing me, that my colleagues would misrepresent like this on the floor of the Senate and misrepresent to their own colleagues. That is what is killing me. Here are the facts.

Cannon 5A(3)(d) of the American Bar Association's Model

Code of Judicial Conduct states that prospective judges

``shall not . . . make pledges or promises of conduct in

office other than the faithful and impartial performance of

the duties of office . . . [or] make statements that commit

or appear to commit the candidate with respect to cases,

controversies or issues that are likely to come before the

court.

Justice Thurgood Marshall made the same point in 1967 when he refused to answer questions about the fifth amendment.

I do not think you want me to be in a position of giving

you a statement on the Fifth Amendment and then, if I am

confirmed and sit on the Court when a Fifth Amendment case

comes up, I will have to disqualify myself.

Or Lloyd Cutler, who is one of the great lawyers in Washington, DC, and, frankly, in the country:

Lloyd Cutler, President Clinton's former White House

Counsel, testified before the Senate Judiciary Committee last

year that ``it would be a tragic development if ideology

became an increasingly important consideration in the future.

To make ideology an issue in the confirmation process is to

suggest that the legal process is and should be a political

one. That is not only wrong, it is a matter of political

science; and also serves to weaken public confidence in the

courts.''

Think about it. Think about it. The reason Mike McConnell had to answer very carefully is that he had written so extensively that he pretty well had to acknowledge that that is what he wrote on Roe v. Wade. He was highly critical of Roe v. Wade. I respect my colleagues for accepting Professor McConnell. On the other hand, he had 305, many of whom were the most liberal law professors in the country, supporting him because he is so honest and decent and smart, rated as one of the two or three top constitutional experts in the country.

Just think about it. These kind of things bother me. Let me just talk about the SG memo, the Solicitor General memos we have heard so much about here. This is what the Democratic Policy Statement says:

Due to Mr. Estrada's almost nonexistent paper trail, the

Judiciary Committee Democrats have tried to obtain legal

memoranda he wrote while serve at DOJ. DOJ has refused to

provide these documents which presumably would show Mr.

Estrada's constitutional analysis of cases and statutes and

give members a window into his judicial reasoning.

Here is what People for the American Way said in a letter from Ralph Neas dated January 29:

As several Senators have explained, Mr. Estrada has a

limited paper trail, particularly because the Justice

Department has refused to release the legal memoranda he

wrote while serving in the Department.

Let's get the real facts. All seven living former Solicitors General of the United States--Seth Waxman, Drew Days III, Walter Dellinger, Kenneth Starr, Charles Fried, and Robert Bork--have written the Judiciary Committee defending the need to keep such documents confidential. Four of those are leading Democrats.

The letter noted that the SG, the Solicitors General:

relied on frank, honest and thorough advice from their staff

attorneys like Mr. Estrada--

And that the open exchange of ideas which must occur in such a context--

simply cannot take place if attorneys have reason to fear

that their private recommendations are not private at all,

but vulnerable to public disclosure.

I have said that on the floor of the Senate so many times I am getting sick of saying it. Yet I have had Democrats tell me today: You mean seven Solicitors General said that, four of whom are Democrats?

They were amazed to hear that.

Why did the people for the American Way say that? Because they are partisans. They are left-wing partisans. I don't blame them. They believe in that left-wing philosophy of theirs, and I respect people who believe in their philosophies. The ones I don't respect are those who distort the record. That is unfortunate. That is what they have been doing.

On May 28, 2002, the Washington Post editorialized that the committee's request for attorney work product ``would be unthinkable if the work had been done for a private client. The legal advice by a line attorney for the federal government is not fair game either.''

According to the Post editorial:

Particularly in elite government offices such as that of

the solicitor general, lawyers need to be able to speak

freely without worrying that the positions they are

advocating today will be used against them if they ever get

nominated to some other position.

These people in the Solicitor's Office are generally the top lawyers around. Many of them are going to serve in other positions in the Government. A number of them are going to be judges. We just named eight of them. There are seven former Deputy Assistants for the Solicitor General now serving on Federal circuit courts of appeals. None had any prior judicial experience, and the committee did not ask the Justice Department to turn over any confidential internal memoranda those nominees prepared while serving in the Solicitor General's Office.

Why is Miguel Estrada being treated like this? Why is he being treated so unfairly and differently from anybody else? Why is he being treated differently than those seven others, many of whom are Democrats? Is there a double standard here? You doggone right there is. It is because he is a Hispanic conservative Republican. That is why-- because they cannot pin anything on him. When you can't pin something on somebody, you do fishing expeditions to find any amount of dirt you can get. A fishing expedition into confidential memoranda in the Solicitor General's Office should not be allowed, and it has not been.

Let me go back to the Democrat policy statement:

Lack of Support From Hispanic and Other Organizations

Mr. Estrada is opposed by, among others, the following

organizations: Congressional Hispanic Caucus, Congressional

Black Caucus, Mexican American Legal Defense and Education

Fund, Puerto Rican Legal Defense and Education Fund,

Leadership Conference on Civil Rights, AFL-CIO, Sierra Club,

NOW, National Women's Law Center, NARAL and SEIU.

On January 30, People for the American Way again; this is a press release rather than a letter:

Neas noted that leading Hispanic organizations opposing

Estrada's confirmation--including the Congressional Hispanic

Caucus, Mexican American Legal Defense and Education Fund,

Puerto Rican Legal Defense and Education Fund--have been

joined in opposition by a diverse coalition of environmental

protection, women's rights, and other public interest groups.

But they don't tell you that the following groups, among others, have announced their support for Estrada: League of United Latin American Citizens (LULAC) (nation's oldest and largest Hispanic civil rights organization); U.S. Hispanic Chamber of Commerce; Hispanic National Bar Association; Hispanic Business Roundtable; the Latino Coalition; National Association of Small Disadvantaged Businesses; Mexican American Grocers Association; and the Hispanic Contractors of America, Inc.

Of course, you can see many other things. There are so many groups that support him.

I attended a press conference today where the head of LULAC was so outraged at the double standard and the way Miguel Estrada is being treated--and, I might add, LULAC is not a conservative organization but it is a respected organization, and I have always respected them. Its leader ripped into what is going on over on the other side of the floor like you can't believe. He is one of the leading Hispanics in America, and rightfully so.

Let me tell you, I think the Hispanic people are starting to catch on--that it is outrageous the way this man is being treated. He is being treated with a double standard. He is being mistreated with a double standard.

I must say that I was a little surprised when I saw the similarities between the Democrats' handbook on Mr. Estrada and the propaganda being circulate by People for the American Way. I guess it's now clear where my Democratic colleagues' talking points are coming from. Maybe my Democratic colleague should examine a little more closely the euphemistically-named People for the American Way.

Over the past two years, I have watched the war of propaganda waged against President Bush's judicial nominees. I have seen the records of good men and women distorted and smeared simply because they are the nominees of a conservative President. And I have decried the pertpetrtors of these smear campaigns who have nothing to lose by their misrepresentations but everything to gain when it come to raising money to promote their left-wing agenda.

I am taking about the liberal Washington special interest groups that are the ones manufacturing the weapons of mass obstruction.

That is what they are--weapons of mass obstruction in this case, and others as well.

One of these groups, People for the American Way, claims that ``Americans could lose fundamental rights, freedoms, and protections that they have enjoyed for decades'' if the Senate confirms Miguel Estrada. How low can you get? When I learned this, I said to myself, with a name like People for the American Way, maybe I should rethink my position on the Estrada nomination. I began thinking, Who are these folks who call themselves People for

the American Way and who want me to oppose Miguel Estrada?

Obviously, I am not a member of their organization. But, given its name, I thought to myself, maybe I should look into joining it. After all, I am a person, and I am all for the American way--which, in my book, stands for truth, civility, fidelity, and justice. So I asked around my neighborhood and, well, it doesn't appear that any of my neighbors are members. My family and friends aren't members. Nor does it appear that any of my veteran friends are members.

So who are they, these People for the American Way? I went to their Web site to find out. It appears that they are a very busy bunch of people who raise money for left-wing causes. Indeed, their Web page on President Bush's judicial nominees contained four separate solicitations for donations, four on one page. Profiting at the expense of trashing other people's reputation may qualify for the National Enquirer way--but it is not the American way. Of course, this organization should be free to raise money and exercise its first amendment rights. But the Senate is not obligated to do its bidding or jump when it says so.

Unfortunately, you can see where a lot of the language is coming from--People for the American Way over and over. It is false.

So I became more curious. Maybe if I learned who its board members are I would be convinced that they truly are people who stand for the American Way.

I did a little more surfing on this Web site and found out that People for the American Way, board members, include a Hollywood actor.

Gee, I think that is great--to have a Hollywood actor acting in politics. We certainly have a few of them, don't we?

The board members include a record executive, a Democratic lobbyist, and a former Clinton White House staffer who was the center of the FALN terrorist clemency debacle. Are these mainstream Americans? Are these people to whom we defer on what qualifies as the American way? Maybe in Hollywood or on the Upper East Side of Manhattan. But not in my neighborhood nor, would I say, in most of America.

This is something that deeply troubles me. Too many of my colleagues on the other side of the aisle appear beholden to groups such as People for the American Way. But their brand of politics includes obstructing the confirmation of qualified men and women to the Federal judiciary using any available weapon. To them, this is war, and all is fair--even if it means smearing the reputation of good, solid nominees such as Miguel Estrada.

Not qualified? Give me a break. An ABA rating, unanimously well- qualified, the highest you can have; 15 U.S. Supreme Court arguments; Columbia, and Harvard Law magna cum laude; editor of the Harvard Law Review; law clerk for the U.S. Supreme Court for Justice Kennedy; and Assistant Solicitor General for both Presidents Bush and Clinton.

That sort of politics is not the American way at all.

I hope my colleagues on the other side of the aisle will stand up to the pressure tactics of the left and recognize that only in America can a teenage immigrant from Honduras apply his intellect and talent to rise to a Presidential appointment to our Nation's highest court. That is the American way.

Only in America can someone such as Miguel Estrada come here hardly speaking English, accomplish so much and rise to the point where the President of the United States has nominated him to one of the most important courts in the country. And only in America can his record be distorted like it is being distorted by the People for the American Way, and others. They have a right, I suppose, under the first amendment to do any kind of distortions they want, but it isn't right for them to do so.

I yield the floor.

Mr. President, we are about to wrap up for this evening. I have been very disappointed with some of the debate today because it is apparent that some of our colleagues have not looked at the record, have not gotten the facts, that they are listening to People for the American Way and all the distortions that come from there. That is disturbing to me.

When I was chairman of this committee for 6 years during the Clinton administration, we put through 377 Federal judges. There were a number who gave great angst to people on my side because of the differences in philosophy, differences in judging, differences in approaches to judging, but we put them through. We did not mistreat people, at least as far as I can see, not like this.

It is important for people to realize what he has been through, because to hear this talk on the other side, one would think nobody ever even looked at this man; that they had not had a chance to question him; that he did not answer any questions.

This binder contains the hearing record. Most hearing records would be 10 pages. This is his hearing record. My gosh, the hearing was conducted by Democrats. They controlled the whole shebang. They asked every question they wanted to, and he answered them. I can see today he did not answer them the way they wanted him to, so that they could complain about him, but he did answer them. I think he answered them better than most of their judges whom I put through answered our questions.

Think about what he has been through. Before a person gets nominated, the White House does a thorough review. They do a thorough research on whether or not to nominate the person. They also interrogate the person as to whether there are any difficulties that person might have. Then if they decide they are ready to go forward, they are subject to an FBI report. They then send out the Federal Bureau of Investigation.

The Federal Bureau of Investigation does a terrific investigation. Generally on a judgeship like Estrada, it is a notebook at least this thick, where they interview the nominee's friends, neighbors, business associates, enemies, wackos, crazies. This is what you call a raw FBI report. Then assuming that goes well, the administration then makes a determination whether to submit the name. As they submit the name, they generally notify--sometimes even before they submit the name--the American Bar Association.

The American Bar Association then takes one of their examiners after all the FBI has done and their examiner generally is from the same area as the nominee. That examiner then goes and talks to the leading attorneys, the leading lawyers in the area--and others, if the person is so led--to determine ethical standards, legal ability, industriousness, health, strength, temperament, and so forth. All that is investigated by the ABA. Most nominees get a rating of ``qualified.'' That is a high rating. Anytime you can get the rating of ``qualified'' from the American Bar Association, you have done something pretty worthwhile. That means you have achieved in this life.

I used to be pretty upset at the American Bar Association when I saw partisan politics being played with the standing committee that investigated people. The perfect illustration was in the Bork case. Unanimously well qualified when he came up for the Circuit Court of Appeals for DC, the same court we are talking about here, and just a few years later, found to be ``well qualified'' by a majority of the standing committee, and ``not qualified''--one of the leading intellects in law in the history of this country? I happen to know one or two of the people on there who voted ``not qualified'' who were very partisan Democrats and did not want a conservative like Bob Bork on the court. They won in the end.

Since then we have had our problems with the ABA. When I became chairman, I took the ABA out of the process, and my argument was then, and it is still a good argument, why let one of the bar associations, even though it is the largest one, and not all the other ones, vote these people? If we let them all vote, we would never get through the process. In fact, it takes at least 2 months to 3 months for the ABA. They say they can do it in 30 days, but it is generally between 35 and 60 days to do their research. When the nominee comes up to the Judiciary Committee, all of that is submitted to the Senate Judiciary Committee.

Now, the chairman and the ranking member, in particular, have staff-- skilled, honest, decent staff on both sides--who, along with the chairman and ranking member, go through all of those materials that the FBI especially has collected. Sometimes it is extremely voluminous. If we see, in going through the materials, that something has not been answered, or something has not been investigated, then we go to the FBI and say, You have to do further investigation. We want this done. And the FBI then does it, pursuant to our rules. It is, again, a very big, arduous, difficult process.

Then, as in the case of Estrada, the Democrats controlled the committee. They took a total of 516 days--16 months--before they even had a hearing. Now, generally these hearings go 2 or 3 hours at the most. Estrada's hearing was virtually all day. It was conducted by the Democrats. In fact, Senator Schumer chaired the hearing. Senator Schumer, as I have said before, is no shrinking violet. He is a tough guy. He is a very smart lawyer. I value our friendship because he is always straightforward. We have a decent, good, workable relationship. But he, along with other Democrats, then came in and asked questions of Miguel Estrada. They asked voluminous questions. That is what this hearing transcript is all about. You do not see many hearing transcripts that big. I have been here almost 30 years and I have seen very few that large until there is some real problem. But in all of this hearing, out of it came their comments that he really did not answer the questions. But he did answer the questions. Some of the questions he did not want to answer because they may have involved issues that could come before him as a judge. And he was not supposed to answer those questions. Lloyd Cutler, whom I quoted over the last week many times, says they should not answer questions that involve matters that might come before them.

The Circuit Court of Appeals for the District of Columbia has a tremendously broad jurisdiction. It is, like the people said, the second most important court in the country and in some ways the most important court because they have thousands of cases that the Supreme Court of the United States of America will never hear because they can only take 80 to 100 cases a year. So it is a very important court. It is a court of last resort to many. Because, as I said, those cases do not go to the Supreme Court.

Not only did they ask questions all day long and ask serious questions and he gave serious answers--and if you read the transcript, you will see that--they had every crack they wanted. If they did not have it, they could have called for another day of hearing. That would have been extremely unusual for a circuit court nominee, but they could have. They controlled the committee. There would have been absolutely nothing I as ranking member on that committee could have done other than complain. I probably would not have complained. But they did not do that. They did not ask anymore questions.

Now, after the full hearing and all of this time it took to do that, and all of the questions all of the Democrats asked at that time--which he answers; maybe, I admit, he did not answer the way they wanted him to, but that is not his obligation; he didn't make any mistake--he did not give them something to feed on to destroy him with.

There has not been a good argument against him made since we have started this debate other than ``he did not answer the questions.'' Well, some questions did not deserve being answered, but he answered a lot of questions.

Then, when the hearing is closed, they do a transcript. That is what this big document is, a transcript of that hearing. That is given to the Senators who want it. And most everyone does. Then the Senators pour over that transcript and if they see questions that were not answered in that transcript, then they have a right to write written questions. And the Senators who are really interested then write written questions for him to answer. Guess how many Democrats wrote written questions? Two. And he answered those written questions. He may not have answered them the way they wanted him to do so they could attack him and try to destroy his nomination, but he answered them. Where were all of the questions they are now raising when they had every opportunity to ask those questions?

By the way, that hearing was finished in September of last year. Ordinarily when you have a hearing--not always but ordinarily--the next Judiciary Committee markup, the persons put on that Judiciary Committee markup where you can raise anything you want to. Did they put him on a markup between September and January of this year? Not on your life. They did not give him a chance. He would not have made it. And the Republicans then won control of the Senate. He would not have had a chance. So they relied on being able to kill this nomination by never calling it up. Why would they want to kill a nomination of one of the brightest young Hispanic leaders in America who is totally qualified for the Circuit Court of Appeals for the District of Columbia? I'll tell you why. It is a very simple reason, to be honest with you. It is because he is a Hispanic Republican, appointed by a Republican President. They didn't like it. And they think he is conservative. I don't know whether he is or isn't. I presume he is. I guess they think he is on the fast track to the Supreme Court, and I suspect Miguel Estrada has a chance of becoming not only the first Hispanic nominee on the Circuit Court of Appeals for the District of Columbia, but the first Hispanic on the United States Supreme Court. And he is not the right kind of Hispanic.

I am the chairman of the Republican Senatorial Hispanic Task Force. That task force is made up of Democrats, Republicans, and Independents. We didn't worry about their political ideology. We worried about getting together with them and seeing what we

could do to help the Hispanic community. That has been an amazingly successful Hispanic task force.

I can tell you I fought very hard for Hispanics my whole Senate career, and for other people of color, other minorities as well. But the reason they don't like him is because he was appointed by a Republican; a Hispanic appointed by a Republican, who is conservative, they believe, and a Republican himself. That is enough to give him this kind of a rough time here on the floor of the Senate.

But even then, they had between September of last year and January of this year. As a matter of fact, they had between September of last year and February of this year to ask even further questions if they wanted to. It would have been very improper for them to do so because he had already been questioned. They controlled, certainly right up to January, the middle of January of this year. They could have asked any questions they wanted. They could have had another hearing if they wanted. It would have been highly extraordinary and highly unusual, but that is what they could have done.

It is partisanship. That is what is showing its ugly face here.

As chairman of the Hispanic Task Force in the Senate, I can tell you the Hispanic people in this country, the Latino people, have helped to make this country what it is. The Latino people are basically conservative. They believe in families. They believe in staying together in their marriages. They believe in educating their children. They believe in hard work. They have built the railroads. They have helped mine the mines. They have helped build our buildings.

Now we have young Hispanics such as Miguel who have gone on to professional schools and they are making a difference in this country that deserves commendation. Look what Miguel Estrada is going through for all of that, a fellow who is fulfilling the dream that America makes for us.

Miguel deserves better than what he is getting. Frankly, he is being treated very unfairly. I, for one, am really disturbed by it. To filibuster Miguel Estrada with the thin line of complaints they have is, I believe, going beyond the pale; to filibuster for the first time in a true filibuster the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia because he is a Hispanic Republican who they think is conservative, appointed by a Republican President who they don't like. I am not saying all the Democrats don't like him, but the ones who are making these, I think, very unsubstantiated arguments, do not.

Time after time we have refuted their arguments in absolute terms and they come right back and keep spewing out the same stuff. The reason I went through People for the American Way is because all of that stuff has been coming from People for the American Way. That, as I have said earlier today, is not the American way, to treat a human being the way this man is being treated.

I warn my friends on the other side, if you are going to filibuster Miguel Estrada, then Katie bar the door because I know people on our side who are going to filibuster anybody they disagree with when the Democrats have the Presidency. That will be a sorry state of affairs.

As chairman of this committee, I worked very hard to make sure some of our firebrands did not get their way in wanting to filibuster Carter and Clinton judges. And I won. I was able to convince people it was not the thing to do.

I question, under the Constitution, whether you can do this. I really question it. I don't believe you can. I think it is outrageous to try. It is dangerous to try. And it is not fair to the first Hispanic nominated to the Circuit Court of Appeals for the District of Colombia, especially when they have had every chance and we are now in the 21st month for Mr. Estrada.

I guess we can learn to expect that because Mr. Roberts, who is on our markup on Thursday, who is considered one of the two greatest appellate lawyers in the country--Estrada is considered one of the top appellate lawyers, but Roberts is considered one of the two greatest in the country and that's from Supreme Court Justices themselves and many others--Roberts has been sitting here for 11 years, waiting for approval by the Senate; nominated three times by two different Presidents.

That is what we are going through. This is a big slowdown, trying to thwart the process because they don't like President Bush.

A lot of our people didn't care too much for President Clinton. I did, but a lot of the others didn't. But that didn't stop us from treating him fairly.

We have taken enough time.

Mr. President, I appreciate my colleague. I agree with him; there is a problem here. I don't think there is any question about it. There is a problem of whether we are going to treat a person fairly. I appreciate my colleague in his own characteristic quiet and cautious and decent way. He has outlined what he feels.

Think about it. Where were the questions during the time they controlled the Senate right up through the middle of January? They didn't ask any further questions. Only two Senators gave written questions. They could have held an additional hearing. They did not do it. I guess they rolled the dice, figuring they were going to win anyway, and they would kill this nomination no matter what happened. The fact is they lost, and now the Republicans are in control of the Senate, and we want to see this man get fair treatment.

I admit there is a problem. But the Constitution doesn't say the Senate should advise and filibuster these nominations. It says the Senate should advise and consent to these nominations. That is a far cry from filibustering.

I question a filibuster in the case of judges in the third branch of Government. They are a coequal branch of Government.

With regard to the memos, Mr. Estrada said it is fine with him if they give up the memos. He doesn't have anything to hide. He is proud of his work. But the Justice Department, in its wisdom, says we don't give up these kinds of memos; it is a bad precedent, and we are not going to do it. So why blame Estrada for that? Why hide behind that when Estrada isn't the one causing the problem.

I happen to agree with the Justice Department. I don't think they should give up confidential memoranda that could chill the work that goes on in the Solicitor General's Office. I don't see how anybody with a straight face could make that argument as much as it has been made with straight faces today.

Mr. President, I ask unanimous consent that the Senate now return to legislative session.

Mr. President, I ask unanimous consent that the Senate proceed to a period of morning business.

Mr. President, I ask unanimous consent that the Committee on Energy and Natural Resources be discharged from further consideration of S. 277 and that the bill be referred to the Committee on Environment and Public Works.

Mr. President, I ask unanimous consent that the Governmental Affairs Committee be discharged from further action on S. Res. 51 and that the matter be referred to the Committee on Rules and Administration.

Mr. President, I ask unanimous consent that the injunction of secrecy be removed from the following treaty transmitted to the Senate on February 11, 2003, by the President of the United States:

Amendments to the 1987 Treaty on Fisheries with Pacific Island States (Treaty Document No. 108-2).

I further ask that the treaty be considered as having been read the first time; that it be referred, with accompanying papers, to the Committee on Foreign Relations and ordered to be printed; and that the President's message be printed in the Record.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m., Wednesday, February 12. I further ask consent that on Wednesday, 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 return to executive session to resume the consideration of the nomination of Miguel Estrada to be a circuit judge for the DC Circuit.

For the information of Senators, tomorrow the Senate will resume debate on the nomination of Miguel Estrada. We have now spent 4 days, over 20 hours, debating this well-qualified and capable nominee. While my colleagues on the other side of the aisle continue to object to any time agreement, we will continue to work with them to move this nomination to a final vote.

Many Members have participated in the debate, and we appreciate their efforts. However, at some point each side will have had adequate time to make their case, and that the Senate should then vote on this nomination. At this time, we will continue to give Members the opportunity to speak. Senators should, therefore, expect a late night tomorrow.

In addition to the Estrada nomination, it is the leader's intention to also complete action on the omnibus appropriations conference report prior to the President's Day recess. Again, I remind Senators that they should expect late nights and rollcall votes throughout the remainder of the week.

Mr. President, 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, of course, there are not going to be any games played. Nobody on this side wants to play games. This is important stuff. We understand there are those on the minority side who do not agree with this nomination. They have a right to not agree. But they have a right to vote against Miguel Estrada if that is what they really think is right.

On the other hand, should there be a filibuster it will be the first filibuster in history against an inferior court, the circuit court of appeals or the district court.

With regard to the 100 nominees that made it through in the last few years, that was a very good record, primarily just for judges. I am more interested in how many are left over. I am more interested in how we reduce the number of holdovers. Let us hope we can do that. I am going to do everything in my power to do it, and I hope I will have the cooperation of those on the minority side in trying to do what is really our job; that is, to put the President's--whoever the President is--nominees through. We always have someone on both sides who wants to slow the process down. We understand that. But hopefully we can get people of goodwill to not slow the process down and to not filibuster this wonderful Hispanic judge named Miguel Estrada.

Mr. President, in that regard, I ask unanimous consent that a Washington Post editorial entitled ``Filibustering Judges'' be printed in the Record.

I would like to take a few moments this morning to respond to some of the allegations that Miguel Estrada lacks support in the Hispanic community. Nothing could be further from the truth.

Young men and women from Mexico, Central and South America, who come to the United States--sometimes with their parents, sometimes without-- have helped to build this country. There is no question about it. They have mined our mines. They have built our railroads. They have worked on the roads. They have advanced themselves in education. They are now doctors, lawyers, and filling positions in virtually every walk of life in this country, and rightly so.

They struggled in a foreign country to make a better life, and the gifts they have brought to this Nation are what has made this Nation a great nation. And they still do today. The Hispanic community leaders I have worked with over the years consider Miguel's success as their success. And they know that all young Latinos across the country-- whether they live in border town colonia, a barrio in Chicago, or Miami's Calle Ocho--need role models such as Miguel to emulate.

Miguel arrived in this country with his mother at age 14. He lived in a modest home, and his parents worked hard to send him to private schools. There is no crime in that. In fact, many Latino families work two and three jobs just to be able to send their children to private schools, which are usually Catholic schools. That is no crime. In fact, the Catholic schools are among the best schools in this country. I do not blame any parent for wanting to send their children to Catholic schools. They learn a lot of important things in Catholic schools. It is a sign of a Hispanic parent's love and dedication, and it is a manifestation of Latino values at their best.

Latino groups that oppose Miguel's confirmation--notably, the Mexican American Legal Defense and Education Fund, the Puerto Rican Legal Defense and Education Fund, and the Democratic Congressional Hispanic Caucus--argue that the courts lack Hispanic representation. That is always interesting to me. They are constantly arguing that there are not enough Hispanics on our Federal courts, but they are not looking for diversity--these three groups. They only want Hispanic judges who look, think, and act like them. That is pretty apparent in this case.

A good judge is one who understands that there are competing interests which must be balanced within the rule of law. Miguel Estrada is exceedingly capable of making that assessment. And every Latino in this country--and every person in this country--ought to appreciate that fact and ought to be very proud of what this young man has done with his life. Of course, he wants to administer the law fairly. And I know he will.

A review of the Congressional Hispanic Caucus's statement in opposition is most disappointing to me. It was issued in advance of Miguel Estrada's hearing. My colleagues in the House, who have argued persuasively for a fair process, decided that Miguel Estrada was not so entitled. They pronounced judgment beforehand. But that should not surprise us. That caucus is a Democratic machine, or a Democratic Party machine, to be a little more accurate.

The Republican members of the caucus were forced out because they did not think and act like their Democratic counterparts. So you have a purely partisan Democrat Party machine over in the House that did not even listen to Estrada before they made this pronouncement and this judgment.

There are no Republican members of the Congressional Hispanic Caucus. You would think they would want to get together with Republicans and, in a joint way, in a bipartisan way, work not only for and on behalf of the Hispanic community, but for and on behalf of everybody in this country.

The Democrat Congressional Hispanic Caucus may oppose Miguel Estrada, but the Republican Congressional Hispanic members--Lincoln Diaz-Balart, Ileana Ros-Lehtinen, Henry Bonilla, Mario Balart--they all support his confirmation, and they support him very strongly, as they should--and so should our Democratic friends in the House.

Ordinarily, I would think they would come out of their chairs in leading the charge to try to help Miguel Estrada, but, for some reason, they are not doing it. And I suspect that the reason is Miguel does not look, think, and act like they do.

There is a lesson in this, and it is a hard one to take. Hispanic Americans have fought hard to counter injustices, to demand respect and equality of opportunity. They have fought hard all these years they have been in this country. Indeed, the second oldest Hispanic organization in the country, the American GI Forum, came into existence in 1948, when a fallen war hero was refused a proper burial in Texas because he was a Mexican. Similarly, LULAC, established in 1927, and the National Council of La Raza, established in 1968, came into existence to ensure equality of opportunity for all Hispanic Americans, leaving a legacy for generations to come.

But today that legacy is threatened as this community, once united by a common vision and a shared experience--sadly, one of discrimination-- finds itself divided along party lines in what appears to be purely political purposes--at least on the side of those who oppose Miguel Estrada. In the process, it is subjecting one of their own, Miguel Estrada, to a ``Latino'' litmus test, and subjecting him to the very type of discrimination they have fought so hard to eradicate. There is no place in the judicial nomination process for single litmus tests.

I have taken that position the whole time I have been on the Senate Judiciary Committee, or at least have tried to. Others may disagree with me, but I do not believe any single litmus test should stop a person who is otherwise qualified. And Miguel Estrada is not only qualified, Miguel Estrada is one of the most qualified people we have ever seen to come before the Judiciary Committee.

I think the judicial process is one that must remain free of single- issue litmus tests and politicization, in particular. I urge groups such as MALDEF and the Congressional Hispanic Caucus to think back a couple of years to the pending nomination of Richard Paez. I was not happy with the way that was handled, and I was the one who was trying to get him through.

As chairman of the Judiciary Committee, I worked hard to ensure the process was fair. In the early stages it was not fair, in my opinion. He deserved a vote, and I made sure he got one. It took years to get it. And there were some reasons--some legitimate reasons--why some opposed Paez. I do not see one legitimate reason why anybody would oppose Miguel Estrada. Miguel deserves a vote.

Reasonable people can disagree on how one might vote in this instance, but I call upon these organizations to step forward with the same fervor and intensity that drove their campaigns to call for a vote for Richard Paez. I urge them and my colleagues to recommit to a process that is fair, that is free from double standards and partisan politics.

Look at this I have in the Chamber. Yes, there are three organizations--and there may be a few more; they are certainly all the left-wing anti-Bush judge organizations that crop up on every circuit court of appeals nominee--that are opposed to Miguel Estrada. But the Latino people are for him, and they do not like these games being played.

Some have suggested he is not Hispanic enough. That is a joke: He is not Hispanic enough; he has not been in this country long enough--even though he has been here since he was 14 years of age, and earned his way, and graduated with honors from Columbia University, and in the highest part of his class in law school at Harvard University. Not many people can claim that.

He worked for two judges, and yet one of the arguments is that he does not have any judicial experience. We, more or less, blew that away last week when we brought out how many judges, great judges in our country's history, never were judges before they were nominated and confirmed.

But what they ignore is that Miguel Estrada has been a clerk for two judges. His judicial experience is a lot more than that of most people who come through the Judiciary Committee, I will tell you that right now. But it is not critical that a person have judicial experience. It may be helpful in certain cases, but it is not critical. Some of the greatest judges in history--and I will just cite Brandeis as an illustration--never had prior judicial experience other than peripherally. And in Miguel's case, he was actually a law clerk for two major Federal judges.

He clerked for the U.S. Supreme Court. Talk about judicial experience. How many have clerked for the U.S. Supreme Court? Not very many. You can go down through the ridiculous arguments they are using against him, and it is pitiful. This man has the highest rating--I might add it is unanimously the highest rating--of the American Bar Association, which, according to my colleagues on the other side when they were upset about some of the others, was their gold standard.

I have to admit I did not think the American Bar Association did a very good job in bygone days. I have to admit today I think they are doing a better job, and I support them for it. I applaud them for it. But it is not easy to get a unanimously well-qualified, highest rating from the ABA, and that is a lot more than some of the critics would ever get.

Let's go to the Clinton circuit judges with no prior judicial experience:

Judge David Tatel, Judge Merrick Garland, both on the DC Circuit, where Miguel Estrada will go; Sandra Lynch, First Circuit; Guido Calabresi, Second Circuit Court of Appeals; Robert Sack, Second Circuit; Sonia Sotomayor, Second Circuit; Robert Katzman, Second Circuit--these are all pretty darn good judges--Thomas Ambro, Third Circuit; Blane Michel, Fourth Circuit; Robert King, Fourth Circuit; Karen Nelson Moore, Sixth Circuit; Eric L. Clay; Dianne Wood; Kermit Buye; Eighth Circuit; Sidney Thomas; M. Margaret McKowen, Ninth Circuit; William Fletcher, Ninth Circuit; Raymond Fisher, Ninth Circuit; Ronald Gould;

Marcia Berzon; Richard Talman, Ninth Circuit; John E. Rawlinson, Ninth Circuit; B. Robert Henry; Carlos Lucero; William Bryce on Federal Circuit; Arthur Gajarsa; Richard Lynn; Anthony B. Dyk.

Many of these judges were appointed by Democratic Presidents--all without judicial experience and serving well in the circuit courts of this country. That is not even talking about the Judge Brandeis, and others who have served with such distinction throughout the years.

I would like to go to the other chart. I will make one or two points there. I want to talk about those who support Miguel Estrada. These are great organizations:

League of United Latin American Citizens, the oldest Hispanic organization in the country; Hispanic National Bar Association, which works very hard to try to get good Hispanics nominated in both parties; U.S. Hispanic Chamber of Commerce, one of the oldest and most prestigious Hispanic associations in the country; Association for the Advancement of Mexican Americans--they are all important to associations--the Latino Coalition; Mexican American Grocers Association; Hispanic Contractors Association; IntraAmerican College of Physicians and Surgeons; Congregacion Cristiana y Misionera ``Fey Alabanza''; American GI Forum; Casa De Sinaloense; Cuban American National Foundation; Hispanics Business Roundtable; Nueva Esperanza, Inc.; MANA, a national Latino organization; Cuban American Voters National Community; Cuban Liberty Council; Federation of Mayors of Puerto Rico; Puerto Rican American Foundation.

I wonder why there is one Puerto Rican organization that is not for him when the rest are. It is not hard to see why the Democrat- controlled Hispanic Caucus in the House is not for him--because they are partisan, and they are controlled, in large measure, in these matters by left-wing groups in Washington and are continually unfairly interfering with President Bush's nominees. They are against everybody President Bush nominates for the circuit court of appeals--or at least almost everybody. So far, my impression is that they are against every one of his circuit court nominees, unless they have been Democrats.

This President has nominated more Democrats, as I understand it, than any Republican President in recent years, in order to reach out to Democrats and try to bring them along. They have been good people, and I have certainly supported them, as have I think all of my colleagues.

Now, it is outrageous for some of these partisan Hispanic leaders to say that Miguel Estrada is ``not Hispanic enough'' or that he has no judicial experience and therefore he should not serve. Let's just think about that. He has no judicial experience; therefore, he should not serve. What does that say to all of the Hispanic lawyers in this country who don't have any judicial experience and might want to serve in the Federal circuit courts someday? It basically says you don't have a chance, in the eyes of the people who take that attitude, because you don't have any judicial experience--in spite of the fact that many Federal judges didn't have any experience and some of the greatest judges in history have not had judicial experience.

Miguel Estrada had judicial experience in serving two Federal judges, one a Supreme Court Justice. I get a little tired of some of this ``anti-Miguel-Estrada syndrome'' that seems to be going on. I know Miguel Estrada. He is a terrific human being, and he is qualified. He has been given the highest rating the ABA gives. He has the support of virtually all the Hispanic groups in the country, except for the few I have mentioned. Miguel Estrada would make a wonderful Federal Circuit Court of Appeals judge. He would add a great deal to the Circuit Court of Appeals for the District of Columbia, which only has 8 judges of the 12 seats there right now, and they cannot keep up with the workload.

We ought to all be working hard to put Miguel Estrada on the bench. I am afraid there are those who don't want him there because they are afraid he would be on the fast track to the Supreme Court. That may be, but the fact is we are talking right now of the Circuit Court of Appeals for the District of Columbia.

I yield the floor.

Mr. President, I listened to my good friend and colleague from Massachusetts and you would think only Democrats care about clean air, clean water, the environment, workers' rights, civil liberties. I want him to know we care about them, too. But we want them to work. We don't want them all left-wing, one-sided approaches.

I have had questions in committee from some of my friends on the other side asking some of these nominees who have served in judicial positions why they have not found, always, for the worker? And actually they have been criticised because they occasionally--or many times-- found for the corporation, as if corporations can't be right and that workers are always right.

We all know, regarding workers' issues generally, the ones that are legitimate and good are generally always settled. Any attorney who has dealt in labor law knows that. The hard cases come to the courts. Many times the corporations are right. But to hear our colleagues, any case that goes against a worker, the judge has to be biased and bigoted and wrong. That just is not true. If we have to have judges just finding for one side, whether they are right or wrong--especially if they are wrong--then what kind of justice would that be in America?

I have heard this antiloitering case business. By the way, the hearing was conducted by the Democrats. They conducted it. They could have made it however long they wanted. They know there are certain questions nobody is going to answer, especially when it comes to issues that possibly could be decided by the court upon which the nominee may sit. Any nominees who do answer those kinds of questions, you really have to question whether they have the judicial standing and the judicial acumen to be able to be on the courts.

We have had top authorities from both sides, both Democrats and Republicans, say you should not be discussing in nomination hearings issues that might possibly come before the court that you will be sitting upon.

We have quoted regularly and with good reason--Lloyd Cutler is one of the great lawyers in this country. He is a Democrat. He has been chief counsel for both Jimmy Carter and Bill Clinton. He had no difficulty at all working with us up here because we all respect him. But he said, regarding judicial nominees, in unequivocal terms ``candidates should decline to reply when efforts are made to find out how they would decide a particular case.''

In Lloyd Cutler's opinion, he says: ``What is most important is the appointment of judges who are learned in the law.''

You are going to have to go a long way to be more learned than Miguel Estrada, who, by the way, has the highest rating, by their own standard, of the American Bar Association--unanimously highest rating. Normally that would put anybody through this process. But it is not good enough for this Hispanic gentleman who they are afraid, if he gets on the DC Circuit Court of Appeals, might not rule the way they want him to rule. Because, No. 1, he is a Republican and he may be conservative. He may even be critical of Roe v. Wade, the great standard that seems to be the underlying problem with all of these so- called moderate to conservative nominees. Lloyd Cutler says:

What is most important is the appointment of judges who are

learned in the law, who are conscientious in their work

ethic, and who possess what lawyers describe as judicial

temperament.

I have heard some comments about judicial temperament here. The only person who indicated even slightly that Miguel Estrada may have a temperament problem is Paul Bender, who is as far left a law professor as you can find. He is a brilliant man. I have no problems there. What I have problems with is a man who gives him the highest performance ratings while he is serving under him at the Solicitor General's office, ratings that just brag about him and then, when the chips are down and he is up for a nomination, undermines him with comments that he is an ideolog. Paul Bender is the only one I know of who has said that--from the Solicitor's office.

In fact, let me talk a little bit about temperament. I have heard some of my Democratic colleagues say allegations have been raised about Miguel Estrada's temperament. The only person I know who has raised questions about his temperament happens to be Paul Bender. We all know he lacks credibility.

But let me say a word about relying on anonymous allegations about Mr. Estrada's temperament. These allegations certainly should not be believed. These allegations violate not only a basic right to confront one's witnesses, but also longstanding committee policy that prevents the consideration of anonymous allegations against a nominee. These are also grossly inconsistent with Mr. Estrada's superiors' and colleagues' statements that Mr. Estrada's work in the Solicitor General's Office was superb and that he was a well-respected colleague.

Seth Waxman, President Clinton's Solicitor General, a Democrat, but one we all respect, wrote to us that Estrada is a ``model of professionalism and competence'' and that he had ``great respect both for Mr. Estrada's intellect and for his integrity.''

Mr. Waxman, this Democrat, former Solicitor General under the Clinton administration, continued:

In no way did I ever discern that the recommendations Mr.

Estrada made or the views he propounded were colored in any

way by his personal views, or indeed that they reflected

anything other than the long-term interests of the United

States.

But Mr. Waxman isn't the only Democrat who testified to Estrada's fairness and integrity. A bipartisan group of 14 colleagues from the Office of the Solicitor General also wrote to the committee that Estrada ``would be a fair and honest judge who would decide cases in accordance with applicable legal principles and precedents.''

I ask unanimous consent that a copy of this be printed in the Record.

Mr. President, the anonymous rumors about his temperament are just that--mean-spirited rumors that have been ginned up by liberal special interest groups that don't want to have a smart minority member of the judiciary who does not toe their special-interest line on the issues. That is exactly what is behind all of this. The fact is Mr. Estrada has overwhelming support among Hispanic organizations and the Hispanic community, and he should. I am ashamed of some of those who have just played partisan politics because they said Mr. Estrada is not Hispanic enough. Can you believe that? Some of his own fellow Hispanics say he is not Hispanic enough. He has only been here since he was 14 years of age. My gosh.

The oldest Hispanic organization, the League of United Latin American Citizens--the oldest one--is behind him. The Hispanic National Bar Association--the Hispanic lawyers in this country--is behind Estrada; the United States Hispanic Chamber of Commerce--very prestigious; the Hispanic Business Roundtable; the Latino Coalition; and many other Latino organizations strongly support Estrada.

I was surprised to see this antiloitering case stuff brought up here. I was surprised that there is a question raised here about antigang- loitering cases Mr. Estrada worked on. Although some have attempted to mischaracterize the statutes that were the crux of these cases as racially discriminatory, the exact opposite is true. These statutes were enacted to protect the quality of life of low-income minorities whose neighborhoods are too often devastated by drug violence. That is what was behind it.

For example, according to a 1997 report issued by the Clinton Justice Department, ``Gangs have virtually overtaken certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents.''

Another Reno-era Justice Department report concluded that:

From the small business owner who was literally crippled

because he refused to pay protection money to the

neighborhood gang to the families who are hostages within

their homes living in neighborhoods ruled by predatory drug

trafficking gangs, the harmful effect of gang violence is

both physically and psychologically debilitating.

At this hearing, Mr. Estrada told us he got involved in the City of Chicago v. Morales case at the request of the Democratic leadership of Chicago.

If the distinguished Senator from Massachusetts doesn't like the fact he was representing these people in this case, and decries the fact that this may have involved some first amendment principles--which I am sure it did--then he ought to go back to his Democratic friends in the City of Chicago who were concerned about these matters. He tried this case at their request. One of the primary proponents of the Chicago ordinance was none other than Democratic Mayor Richard Daley.

Let me read a few quotes about the ordinance by Mayor Daley, who the New York Times described as the ``law's fiercest advocate.'' If you are going to criticize Miguel Estrada, criticize Mayor Daley, too, except I don't think either deserves criticism. I think these quotes will dispel any notion that the law was somehow intended to hurt rather than help minority residents of Chicago. But then, again, in Miguel Estrada's case, why is it they are stooping to such a level as to criticize him on sincerely-fought cases, and especially this one where he was basically representing the Democrats in Chicago?

But here is what Mayor Daly said.

I might say that in November--we have a chart--Mayor Daley said:

I tell you one thing, those drug dealers and gangbangers

are terrorists, too.

In November 2001, Mayor Daley defended his antiloitering law in the Chicago Sun-Times by making that comment.

In October 2000, he observed:

I don't see too many gangbangers on Lake Shore Drive.

Everyone knows Lake Shore Drive is an exclusive area of Chicago.

Mayor Daley is trying to solve some problems for minorities, and here it is being criticized because Miguel Estrada tried the case at their request.

Again, in January 2000, Mayor Daley said:

[T]hese aren't middle-class communities. These are poor

communities. People want a right to survive. It is as simple

as that.

I could go on and on. But, instead, I ask unanimous consent that a list of quotes by Mayor Daley in support of the antigang-loitering ordinance be printed in the Record.

Mr. President, one of the things I like about Mayor Daley is he is a really good mayor who is trying to do the best job he can, and he will do it in a bipartisan way, if he can. And here Miguel Estrada is getting criticized for supporting him. These are ordinances that were supported by members of the minority community.

One thing I find ironic is the persons who criticize the antigang- loitering statutes rarely live in the neighborhoods plagued by chronic gang activity. I am not too sure anybody in the Senate is living in those types of areas. But the ones who complain generally have never had to live in those gang areas. These ordinances were enacted in direct response to pleas by communities that have members of gangs.

As Mayor Daley explained:

We held hearings all over the city to find out what

community leaders wanted. Their message was very clear: Do

whatever you have to do to satisfy the court, but get those

gangbangers and dope dealers off our corners.

Betty Meaks, head of the Southwest Austin Council on Chicago's West Side, lived in a neighborhood where gang members routinely sold drugs on street corners and intimidated passers-by.

According to Meaks:

If we don't use this law as a tool, how are we going to get

these guys off the corner? What about the constitutional

rights of my neighbors whose kids have to walk by that corner

every day on their way to school?

That is a resident of that gangbanger area and that drug-ridden area who is tired of it.

Another Chicago resident, 74-year-old Emmitt Moore, saw his house sprayed with bullets during a gang turf war. Referring to the anti-gang loitering law, he said:

The Constitution is supposed to protect my rights, too.

What is a more basic right than feeling safe on my property

or being able to walk on my street?

The fact these cases were lost doesn't take away from the fact these were sincere people living in gang-ridden areas and drug-ridden areas trying to do what they could to get these problems solved. And their rights were being taken away while we talk about esoteric rights of the first amendment. Nobody believes in the first amendment more than I do. But I have to tell you there are other rights involved, too, that are also first amendment rights. These poor people living in these areas have some rights, too.

The Annapolis ordinance was even a more explicit example of the underprivileged taking the initiative to combat crime in their neighborhoods.

What gets me is some of these Hispanic groups that are against Miguel Estrada say he hasn't done enough in the Hispanic community.

Think about these cases where he took them on--yes, in a losing cause, but took them on--trying to help these minority residents in these tough communities. There are not too many people who could have done it.

Under the Annapolis ordinance, an area could be designated as a ``drug loitering free zone'' only if a neighborhood association or resident first submitted a petition to the city council. Some critics have described Mr. Estrada's Annapolis case because it challenged the NAACP's standing to bring the action against the ordinance. But, as Mr. Estrada testified at the hearing, the decision to challenge the NAACP's standing was made by other lawyers--not him--before he ever got involved in the case. Yet they are trying to pin that on him. That is the kind of ``fairness'' we have had in this whole process.

I do not think anybody watching this process would say it is very fair. And you can start with Paul Bender. Either Paul Bender is right when he says Miguel is an ideologue--long after the fact--or he was right when he was ethically giving his opinion that Miguel Estrada is one of the best people who ever worked down there at the Solicitor General's Office. Which is it? I suggest to you that it was the written opinions given in the Justice Department, that are backed up by Seth Waxman and 14 other coworkers, all of whom say Miguel is great and a good person. It is amazing to me that some of these arguments are made.

Although Mr. Estrada's efforts to defend the constitutionality of these statutes were unsuccessful, he may have lost the battle but he won the war, as they say. I am referring to the Supreme Court's decision in Morales. Although the Court held that the Chicago ordinance was unconstitutionally vague, Justices O'Connor and Breyer wrote a concurring opinion that gave municipalities a roadmap on how to enact constitutionally sufficient antiloitering laws. So it was not a battle that was in vain. It was a battle that ultimately will lead to resolution of those inner-city poor people's problems. And it was Miguel Estrada who took them on, took on the gangs, took on the drug dealers--and, I might add, at the request of Mayor Daley. And Mayor Daley took them on--something any good mayor I think would do, but certainly I respect Mayor Daley.

Under Mayor Daley's leadership, in following the O'Connor-Breyer roadmap, Chicago enacted a new ordinance in the year 2000. So, yes, he lost the case before the Supreme Court but won it in the end, in helping these poor people in Chicago to have some protection from gangbangers and drug dealers. And he is being criticized by my colleagues on the other side during these nomination proceedings? No. The thing that is wrong with Miguel Estrada is he is not the right kind of Hispanic. He does not agree with them in everything, maybe. I don't know what his positions are in every degree, but I can tell you this: He is honest, he is smart, he is capable, he answered a lot of questions before our committee--even though he did not please all the Democrats--and he has the highest rating anybody can get, unanimously, from the American Bar Association.

The problem of inner-city gang violence is so pervasive that we in Congress recognized it and addressed it in 1994. Were we bad people because we tried to address this problem that might have curtailed some people's rights to do whatever they wanted to do in our society? That is what criminal laws are about.

Mr. President, 18 U.S.C. 521 mandated additional penalties of up to 10 years imprisonment for individuals convicted in certain gang-related offenses. I note that eight of my Democratic colleagues on the committee, who were Members of Congress in 1994, voted in favor of section 521.

Now, where is the beef? I have been asking that all the way through-- borrowing Walter Mondale's comment. Where is the legitimate criticism of this person other than these esoteric and, I think, unfair criticisms that I have been hearing on the floor since this debate began?

Calling for a vote against Estrada because he does not have any judicial experience--oh, he was a law clerk to two Federal judges, one a Supreme Court Justice. If that isn't judicial experience, then I don't know what is. He did not decide the cases, but he helped write the answers, and he sat there and watched all the judicial proceedings. And I have just listed 26 Democratic appointees to the Federal bench, none of whom had any judicial experience before we confirmed them, without raising that ridiculous issue. So the lack of judicial experience is a red herring, as are all of these issues. If you really get into them, if you really go through them, you realize there is not any substance to these arguments.

Now, apparently Paul Bender told Senator Feinstein's staff that he stood by his comments, that he believes Miguel Estrada is an ideologue, and that the personal reviews that he gave, that were so laudatory and commendable about Miguel Estrada, were just boilerplate that they did for everybody. And apparently, according to what he told Senator Feinstein's staff, he stopped assigning important matters to Estrada because he was too ideological.

At the request of the committee, Mr. Estrada provided copies of his annual performance evaluations during his tenure at the Solicitor General's Office. These documents cast serious doubt on Mr. Bender's allegations about Mr. Estrada. The evaluations show that during each year that Mr. Estrada worked at the Solicitor General's Office, he received the highest possible rating of ``outstanding'' in every job performance category. Either Mr. Bender was telling the truth then or he is playing politics now. The rating official who prepared and signed the performance reviews for 1994 to 1996 was none other than Mr. Bender.

I will admit Mr. Bender is a very bright and intelligent man. I will admit he has been a law professor for many years. And I will admit he has many wonderful qualities. But anybody who looks at what has happened here knows he is playing partisan politics right down the line.

Let me read a few excerpts from the evaluations Mr. Bender signed. They say that Mr. Estrada:

States the operative facts and applicable law completely

and persuasively, with record citations, and in conformance

with court and office rules, and with concern for fairness,

clarity, simplicity, and conciseness.

I do not know any lawyer in the world who would not want to have that set of accolades written about them.

He goes on to say, Miguel Estrada:

Is extremely knowledgeable of resource materials and uses

them expertly; acting independently, goes directly to point

of the matter and gives reliable, accurate, responsive

information in communicating position to others.

Or this one:

All dealings, oral and written, with the courts, clients,

and others are conducted in a diplomatic, cooperative, and

candid manner.

Or this one:

All briefs, motions or memoranda reviewed consistently

reflect no policies at variance with departmental or

governmental policies or fails to discuss and analyze

relevant authorities.

You see, Miguel Estrada was also working for the Clinton administration.

Another quote: ``is constantly sought for advice and counsel; inspires coworkers by example.''

Either Mr. Bender was telling the truth then or he isn't telling the truth now. Both of them can't be accurate.

These comments represent Mr. Bender's contemporaneous evaluation of Mr. Estrada's legal ability, judgment, temperament, and reputation for fairness and integrity. These comments unmask Mr. Bender's more recent statements made after Mr. Estrada's nomination for what they are--a politically motivated effort to smear Miguel Estrada and hurt his chances for confirmation. I am disappointed in Mr. Bender, or Professor Bender, if you want me to use those terms. I am disappointed that a law professor would play this game, which is what he is doing.

The performance evaluations confirm what other Clinton administration lawyers and virtually every other lawyer who knows Miguel Estrada have said about him--that he is a brilliant attorney who will make a fine Federal judge.

The nature of the request of my Democratic colleagues for unfettered access to the universe of Mr. Estrada's privileged attorney-client work product is really extraordinary and unprecedented. These documents were not requested for the eight previous circuit court nominees who had worked in the Solicitor General's Office. This request was opposed by all seven living former Solicitors General in a letter to the committee citing the debilitating effect it would have on how the Department of Justice does business. Democrats Archibald Cox, Seth Waxman, Drew Days, and Walter Dellinger all signed this letter--as they should have.

The Democrats have failed to show a persuasive precedent for this request. They first claimed that the Department of Justice has a history of disclosing previously confidential internal documents in connection with confirmation proceedings. This is simply not accurate. It is not fair either. In a letter dated October 8, the Department of Justice points out that since the beginning of the Carter administration, there have been 67 former Department of Justice employees, 38 of whom, like Miguel Estrada, had no prior judicial experience. Eight of these nominees had worked in the Solicitor General's Office. The Department of Justice could find no record of having produced internal deliberative materials created by the nominee while the Department of Justice lawyer in any of those cases--in any of those cases.

My Democratic colleagues have mentioned six nominees in connection with whom they claim the Department of Justice released confidential internal memoranda or documents. The Department of Justice has explained in a letter to the committee that of these nominees, the hearings of only one, Judge Bork, involved documents from his service in the Solicitor General's Office.

In that case, the Department of Justice produced a limited number of documents related to specific topics of interest to the committee. They did not allow a fishing expedition into the private memoranda of employees of the Solicitor General's Office, given with good intent to their superiors so they can make decisions on behalf of our country, something that would certainly be chilled if they knew that sometime in the future their documents or these documents with their best advice could be utilized to destroy their chances of being on one of the Federal courts.

As the Department of Justice observed:

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 to the committee did not reveal the

internal deliberative recommendations or analysis of the

assistant to the solicitor general regarding appeals,

certiorari or amicus recommendations in pending cases. This

is hardly the unfettered, unprecedented access to privileged

work product that has been argued.

In that case, the Bork case, the Department of Justice produced a limited number of documents related to specific topics of interest to the committee. As the Department of Justice observed:

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 to the committee did not reveal the

internal deliberative recommendations or analysis of the

assistant to the solicitor general regarding appeals,

certiorari or amicus recommendations in pending cases.

This is hardly the unfettered, unprecedented access to privileged work product that my Democratic colleagues now seek.

As for the claim that the Department of Justice produced internal memoranda written by Seventh Circuit Judge Frank Easterbrook, DOJ has no record of producing these documents to the committee, and there is no indication that the committee ever requested those documents. So how did they come about? Probably through leaks by people who wanted to scuttle now-Judge Easterbrook's confirmation process.

It is important to note that the Republicans have not used this tactic ever--never once--as much as there have been criticisms and questions about Democratic nominees through the years. In fact, during the last Congress, when Jonathan Adelstein, a former aide to Senator Daschle, was a nominee to the FCC, Republicans could have asked for all of the internal memoranda written by him, but we did not.

I would like to respond to a matter that deeply troubled me at Mr. Estrada's hearing which has now been resurrected. I am appealing to my colleagues, to their sense of fairness on this matter, which I think is, frankly, serious and, frankly, outrageous.

At his hearing, Miguel Estrada was asked a series of questions regarding some anonymous allegations about him that appeared in an article in the ultraliberal political magazine, The Nation. These allegations concern comments that he supposedly made to persons who came to him in search of a Supreme Court clerkship with Justice Kennedy. It is bad enough to put a witness in the impossible position of defending against anonymous allegations, but things got worse when Miguel Estrada was asked followup questions about these allegations that were so broadly worded, vague, and compound that he could not have possibly crafted a satisfactory answer under the circumstances.

It has long been the policy of the committee--that is, the Judiciary Committee--instituted under the leadership of Senator Biden, chairman at the time, that we will not subject nominees to anonymous charges. Unfortunately, that is just what happened to Miguel Estrada.

It is worth reminding my colleagues about Senator Biden's standard when it came to anonymous sources. He said:

The nominee has the right to be confronted by his accuser

so any accusation against any nominee before any committee

which I chair that is not able to be made public to the

nominee will not be made known to the Senate unless the

individual wishes to do it all by themselves. Then it is

known to the nominee. This is not a star chamber.

I surely agree with Senator Biden.

Here is another example of Senator Biden's policy on anonymous sources. In 1992, the Atlanta Journal-Constitution reported:

Committee Chair Joseph Biden, according to his staff, felt

strongly that he was not going to circulate some anonymous

charge.

This is a standard of fairness that the committee has always followed, and we have really gone way below the deck here. Some of my colleagues are bullying this nominee into a political game of gotcha. That is what it comes down to. More fundamentally, the anonymous allegations of The Nation are at odds with the overwhelming evidence of Mr. Estrada's fairness that we have received in letters of support and in examples of cases he has argued. I have mentioned letters from Seth Waxman and others.

They are simply not credible on their face, particularly when you consider Mr. Estrada's recommendation to Justice Kennedy that he hire a law clerk who was a colleague of Mr. Estrada's in the Clinton Justice Department and who now works as a staffer for Senator Leahy, or did work up until recently.

At a fundamental level, these are simply not the actions of a right- wing ideologue. That is just true. It is a shame to try to make something out of anonymous allegations that Mr. Estrada wasn't even given the privilege of trying to answer.

Mr. President, I yield the floor.

Will the Senator yield?

The Senator has been making the point that no one on his side is making this a racial problem or a Hispanic problem. Is the Senator aware of an important letter I received this morning from Jennifer Braceras, who is a commissioner on the U.S. Commission on Civil Rights? Let me bring it to the Senator's attention, because I know he is a fair Senator. He is tough but fair, and he is my friend. I found him to be honest.

We know there are those in the Congressional Hispanic Caucus of the House who have made comments that certainly have caused a lot of consternation in the Hispanic community. This is a letter I received just this morning from Jennifer Braceras, who is a commissioner on the U.S. Commission on Civil Rights, and I will tell the Senator what Ms. Braceras had to say about what she believes some Senate Democrats are doing to Miguel Estrada's nomination.

Could I ask the Senator if he is aware of this? I hope the Senator will give me some time to read this letter. It is from a leading member of the U.S. Commission on Civil Rights. The Senator has made these comments. I know he is fair, and I think this is something that is right on point.

She is Hispanic.

Will the Senator yield for a point of clarification?

I am grateful for that and I very much rely on that friendship on the committee.

The Senator is aware, is he not, that members of the House, specifically Representative Menendez of the Congressional Hispanic Caucus, has said on several occasions that Mr. Estrada is not Hispanic enough and there have been other comments made that are very similar?

I ask unanimous consent that this letter be printed in the Record at this point so that my dear friend can read it, because Ms. Braceras is not only a member of the U.S. Commission on Civil Rights but her father is a judge on the Second Circuit Court of Appeals.

I might add Ms. Braceras' father is a Clinton appointee to the Second Circuit Court of Appeals, and she is outraged at what is happening to Miguel Estrada.

I thank my colleague for giving me those few minutes.

Will the Senator yield on that point?

I thought the Senator asked me a question.

I was disappointed with the Paez nomination.

It took too long. But there were legitimate questions that were raised that had nothing to do with race. There were various questions about cases, but it took too long. I worked very hard to get him a final vote and, as the Senator knows, I voted for him. I have to say I took a certain amount of criticism from some who felt very deeply,

not against Judge Paez as a Hispanic person but because they thought he was a judicial activist, and there were a number of cases that certainly were very questionable cases and even I had problems with that.

I also found Judge Paez, who--after a lengthy period of time I asked him if he would come and see me and I was very impressed with Judge Paez as a human being. It did not hurt him a bit that his family lived in Utah, and they are very good people. That certainly was very persuasive to me, too. And he is a very good person. But there were legitimate legal questions that had been raised that had to be kind of sifted through in order for me to get to a point where we could have that vote.

I agree with my colleague; it took too long. I agree there have been faults on both sides throughout this process, as long as I have been on the Judiciary Committee, and there have always been people who have not made it who have been left over at the end, but I have to tell my colleague during my tenure we put through 377 Clinton judges, the second highest total, only five less than Reagan.

I agree.

Mr. President, I ask unanimous consent that Senator Enzi of Wyoming be recognized for up to 10 minutes immediately following the final vote in the series of votes at 5:15 p.m. to speak on the Estrada nomination and that Senator Feingold be accorded at least 10 minutes immediately following Senator Enzi.

Mr. President, I ask my dear friend if it is possible to vote on all three en bloc, with one vote being considered three separate votes?

I withdraw the request.

Mr. President, these are three excellent district court nominees. They deserve to be confirmed, as I think all of President Bush's nominees deserve to be confirmed. I recommend every Senator vote for each of these three nominees. I hope we can get other nominees to the floor as soon as possible as well.

I thank my colleagues on the other side for being willing to move to these three nominees last week in our markup and to allow them to be brought up this early. I believe we will all be pleased we can vote for such excellent nominees. I hope we can move all the other judgeship nominees this President has nominated as quickly as possible.

I yield the floor.

Will the Senator yield?

I reserve the remainder of my time. I may have a few people who wish to speak. I thank the Senator.

I yield such time as she may consume to Senator Hutchison from Texas.

Madam President, I am pleased that we have three excellent district court nominees on the floor this evening, John Adams for the Northern District of Ohio, Robert Junell for the Western District of Texas, and Judge Samuel Otero for the Central District of California. They have been nominated to fill seats considered judicial emergencies by the U.S. Judicial Conference, so our action today is especially important. I support all of them without any reservation, and I ask my colleagues to join me in confirming their nominations. Let me say a few words about each nominee.

John Adams, Jr., our nominee to the U.S. District Court for the Northern District of Ohio, has extensive experience in both the private and public sectors of the legal community. Judge Adams has 15 years of experience in private practice, and he served for 3 years as an assistant county prosecutor at the Summit County Prosecutor's Office. Since 1999, Judge Adams has served on the Court of Common Pleas for Summit County.

Robert A. Junell, nominated to the U.S. District Court for the Western District of Texas, has distinguished himself both as an advocate and a legislator. Mr. Junell has over 25 years of civil litigation experience, with a specialty in personal injury law, and he has served as a member of the Texas House of Representatives since 1988.

Our third nominee, Judge Samuel Otero, who has been nominated for the Central District of California, served as a Los Angeles deputy city attorney for 10 years, handling approximately 130 superior court and municipal court cases during his tenure. Since being nominated to the California bench in 1988, Judge Otero has served on both the Los Angeles Superior and Municipal Courts.

I am confident that all three nominees will serve with honor and distinction. I compliment the President for putting their nominations forward and I look forward to their confirmation.

I yield the floor.

I ask unanimous consent that after the first vote, the two remaining votes be no longer than 10 minutes.

Mr. President, I ask unanimous consent that on Tuesday there be an additional 6 hours for debate on the Estrada nomination; provided further, that the time be equally divided between the chairman and the ranking member, or their designees; and that following the conclusion of that time, the Senate proceed to a vote on the confirmation of the nomination, with no intervening action or debate.

Mr. President, we have had a robust debate on the nomination. I still remain very hopeful that we will reach a consent to have a vote on the nomination after some further reasonable period of time. I hope our colleagues on the other side will permit a vote on Miguel Estrada. I think it is the right thing to do.

I will be happy to yield.

I know of no other speeches.

Mr. President, I ask unanimous consent that these be the last speeches.

Madam President, I am happy to be able to take the floor this morning to argue in favor of Miguel Estrada. Miguel is one of the finest lawyers in the country. He has arrived at this position and status, where he is approved by the American Bar Association as ``unanimously well qualified,'' the highest rating that the American Bar Association can give. He has had his critics, but only in generalized terms. He has had his critics who I don't think have a leg to stand on in the criticism they are raising.

One of the more ridiculous assertions that I have heard about Miguel is that he was not especially or sufficiently responsive at his hearing and therefore we need to have a second hearing to evaluate him. Keep in mind, the Democrats were in control of the Judiciary Committee. They called the hearing, they controlled the hearing, they controlled the timing of the hearing, they controlled the time for questions by Senators. And at least one Democrat said the hearing was conducted in a fair and responsible manner, and I personally agree with that. Senator Schumer was the person who chaired that particular hearing. I give him a lot of credit because it was a fair hearing and they asked every question they wanted to ask.

Secondly, after the hearing, on the Judiciary Committee we have a right to ask questions in writing. Only two Democrats asked questions in writing. Miguel Estrada had waited 631 days before he was given the privilege of having a hearing. Then the hearing was held.

Now we are hearing the same old wornout complaints that he wasn't sufficiently responsive and that, therefore, we need a second hearing to evaluate him.

Since Mr. Estrada didn't say anything at the hearing that could be used to besmirch him--that is the real problem; they could not find anything wrong with him; there is not one thing that anybody has said, other than generalizations, that has any merit at all--since they could not find anything at his hearing that could be used to criticize him, his opponents resorted to the tactic of alleging that he did not say enough. That is ridiculous. They controlled everything. They could have asked him anything, and I think they did. Now, he didn't say enough.

The fact is that Mr. Estrada correctly refused to answer questions that called upon him to prejudge issues that may very well come before him as a judge. That is what every nominee with any brains has done from time immemorial. No nominee wants to have to recuse himself in a serious case later because of something he said before the Senate Judiciary Committee. Well, let me repeat that. The fact is that Mr. Estrada correctly refused to answer questions that called upon him to prejudge issues that may very well come before him as a judge. This includes his opinion on whether established precedent was correctly decided and how he would decide these cases if he were working from a clean slate.

Lloyd Cutler, who was the White House chief counsel in both the Carter and Clinton administrations, and one of the premier lawyers in the country--certainly in this town--and one of the great public servants of all time, in my opinion, put it best when he said:

[I]t would be a tragic development if ideology became an

increasingly important consideration in the future. To make

ideology an issue in the confirmation process is to suggest

that the legal process is and should be a political one. This

is not only wrong as a matter of political science; it also

serves to weaken public confidence in the courts. Just as

candidates should put aside their partisan political views

when appointed to the bench, so too should they put aside

ideology.

This is Lloyd Cutler, who was chief White House counsel for Presidents Carter and Clinton. He goes on to say:

To retain either is to betray dedication to the process of

impartial judging. Men and women qualified by training to be

judges generally do not wish to and do not indulge in

partisan or ideological approaches to their work.

Mr. Cutler concluded:

Candidates should decline to reply when efforts are made to

find out how they would decide a particular case.

I agree with him, and so did all the Democrats on the committee when President Clinton's nominees came before the committee. Now all of a sudden, they are applying a double standard or a different standard to Miguel Estrada and, I might add, other Republican nominees who are coming before the committee.

We should be commending Mr. Estrada for refusing to take the bait and answer these questions. Instead he is being criticized for it and, I think, in the view of any impartial observer, is being criticized unfairly for one reason: They just do not want a Republican conservative Hispanic to sit on the Circuit Court of Appeals in this country. That is wrong. We all know it is wrong, and yet that is what is behind much of the antagonism toward Mr. Estrada.

As a fundamental matter, I am perplexed by the charges that Mr. Estrada's record is blank. That is what

we call bullcorn out in Utah. The truth is, Mr. Estrada's record is replete with material we used to evaluate his qualifications for the bench and how he would go about deciding cases. He has written numerous complex and thorough briefs for the courts, and he has argued on a wide range of subjects.

His briefs, all of which are publicly available--and I know the Democrat staffers have pored over every one of them--provide tremendous insight into his legal reasoning and thinking on constitutional and statutory interpretation. His achievement of having argued 15 cases before the U.S. Supreme Court provides a record of how he has responded to focused interrogation on the most important matters to America's highest court. The transcripts from these oral arguments are also publicly available. Where is the legitimate complaint by the other side about this blank-slate business?

Still further, Mr. Estrada not only said at his hearing he would support established law, but he proved this when he wrote an amicus brief at the Solicitor General's office in support of the National Organization for Women. I do not hear any compliments from the other side on his work there. His support of a law that backed a reproductive choice side in that case indicates there is no reason to expect he would not follow Roe and Casey as a DC Circuit Court judge, and yet that has underlined many of the complaints by my friends on the other side. They are so afraid that somebody on these Circuit Courts of Appeals might possibly do something to overrule Roe v. Wade or Planned Parenthood v. Casey, two very important abortion cases.

I have not heard one President Bush nominee say he or she will not uphold the laws of this land, including Roe v. Wade and Planned Parenthood v. Casey. The truth is, many on the other side have not even liked Planned Parenthood v. Casey because it does take a more moderate position with regard to abortion. Now it is the law of the land and, of course, it is one of the cases they certainly do not want to have overruled.

Mr. Estrada's opponents are so eager to distort his record that they do not mention this case or any one of many other cases which reveal his legal reasoning and willingness to follow the law.

It needs to be explained to everybody that not only do they have access to all these briefs he has written, both in the Supreme Court and other courts of the land, but they could have asked any question they wanted of Mr. Estrada. Any member of the committee can do that. Some may be ill-advised and not very fair, but we allow them to ask any questions they want. Then they can ask any questions in writing. In almost every case, Mr. Estrada asked to meet with individual Senators beforehand so they could meet privately and ask any questions they had.

Mr. Estrada today is known all over the country by those who really understand important lawyers and understand the success of lawyers-- working with one of the most important law firms in the country as a full partner, and he has both Democrat and Republican partners. I might add, some of the leading people in support of Mr. Estrada today are Democratic attorneys--not just attorneys, but top attorneys--and we have mentioned them, from Ron Klain to Seth Waxman, Klain having been Vice President Gore's chief counsel, both as Vice President and in his campaigns. Ron Klain used to work on the Judiciary Committee as one of the top judiciary staff people. He is an excellent lawyer and a wonderful person. We all care for him. I personally care for him, and one reason I do is because he is honest, not just honest enough to say how good Miguel Estrada is and to back him, but honest in his dealings in legal matters as well. I have a lot of respect for him. Seth Waxman is one of the premier lawyers in the country, no question about it. He knows I have a lot of respect for him, and it is not just because of work on the Judiciary Committee. He is a fine lawyer, one of the best and former Solicitors General of the United States in the Clinton administration.

Some have advanced the preposterous argument that Miguel Estrada is not qualified to serve on the DC Circuit because he has no prior judicial experience. That is one of the most ridiculous arguments of all. Of all the ridiculous arguments his opponents have drummed up, to me this is the most ludicrous. There are literally hundreds of examples of judicial nominees who have gone on to serve as great Federal judges at both the Court of Appeals and Supreme Court levels despite having no prior judicial experience.

Chief Justice Rehnquist in his 2001 yearend report on the Federal judiciary noted:

The Federal judiciary has traditionally drawn from a wide

diversity of professional backgrounds with many of our well-

respected judges coming from private practice.

Such Justices included Louis Brandeis, who spent his whole career in private practice before he was named to the U.S. Supreme Court in 1916 and came to be known as ``the people's attorney'' for his pro bono work.

Supreme Court Justice Byron White--I knew Byron White very well. He was very friendly to me throughout my career. He spent 14 years in private practice and 2 years at the Justice Department before his appointment to the Court by President Kennedy in 1962. He is a wonderful man. Byron White served this country well and his memory will always be a good memory. Byron White moved from the left to the center to even a little bit to the right on the Court, and that did not please a lot of our friends on the other side.

Supreme Court Justice Thurgood Marshall had no judicial experience when President Kennedy recess-appointed him to his first judgeship in the Second Circuit Court of Appeals in 1961. Justice Marshall had served in private practice and as special counsel and director of the NAACP prior to his appointment. I do not think anybody would doubt he made a very important contribution to the jurisprudence of this country.

Several well-respected members of the DC Circuit, including two of President Clinton's three appointments to that court, arrived with no prior judicial experience.

Merrick Garland: I have a lot of regard for Merrick Garland. I helped to see him get through when there was some opposition to him. He was a Clinton appointee. He served at the Department of Justice and was in private practice. He was never on the bench prior to his appointment.

David Tatel, also a Clinton appointee, had served in private practice for 15 years prior to his appointment. In fact, only three of 18 judges confirmed to the DC Circuit before President Carter's term began in 1977 previously served as judges.

For example, Abner Mikva, appointed by President Carter, was in private practice for 16 years in Chicago, served in the Illinois Legislature and in the U.S. Congress and had no judicial experience prior to his appointment in 1979 to the Circuit Court of Appeals for the District of Columbia.

Other Democrat-appointed DC Circuit judges with no prior judicial experience include Harry Edwards, Patricia Wald, and notably Ruth Bader Ginsburg, now sitting on the Supreme Court.

Several other Clinton appointees to the Courts of Appeals received their appointments despite having no prior judicial experience: Ninth Circuit appointees Richard Tallman, Marsha Berzon, Ronald Gould, Raymond Fisher, William Fletcher--who was a law professor at Boalt Hall at Berkeley--Margaret McKeown, Sidney Thomas, and Michael Hawkins all had no judicial experience prior to taking the bench.

Seven of these eight, all but Fletcher, were in private practice when they were nominated by President Clinton.

Second Circuit appointees Robert Katzmann, Robert David Sack, and Chester Straub had no judicial experience prior to their appointments. Third circuit nominee Thomas Ambro, Fourth Circuit nominees Robert King and Blane Michael, and Sixth Circuit nominee Eric Clay and Karen Moore also had no prior judicial experience.

What is the point? Is it that it is all right for Democrat Presidents to appoint people without prior judicial experience, who become very good judges on the bench, but it is not all right for Republican Presidents to do so? Is it all right to have more moderate-to-liberal appointees who have never had any judicial experience, but it is not all right to have moderate-to-conservative appointees appointed by a Republican President? It is all right to have liberal

Hispanics appointed to the courts--I agree with that--but it is not all right to have a Republican Hispanic who, perish the thought, Democrats think may be conservative?

Given this illustrious group of former practitioners like Mr. Estrada, who were not Federal judges, I find it hard to swallow that Mr. Estrada's lack of prior judicial service should somehow be counted as a strike against him.

I noticed this morning in the New York Times--now, I read the New York Times regularly. It is a very important paper in this country, and I have a great deal of respect for most of the people who work at the New York Times, but their editorial department has been almost amazingly inaccurate--not almost amazingly, it has been amazingly inaccurate.

Today, they have an editorial dated February 6, 2003, entitled ``Steamrolling Judicial Nominees.'' They say:

The new Senate Republican majority is ushering in an era of

conveyer-belt confirmations of Bush administration judicial

nominations. No matter which party holds the gavel, the

Federal courts are too important for the Senate to give short

shrift to its constitutional role of advice and consent.

I agree with that. I do not think we should give short shrift to any degree. These are important positions. They are lifetime appointments. We ought to do a thorough examination of them.

So everybody understands, and I want the New York Times editorial board to understand, before a person even comes up to the Senate, that person has been evaluated by the White House, by the White House Counsel's Office, by the Justice Department. There has been a complete FBI review of that person's life. The FBI interviews just about everybody who wants to be interviewed and some who do not want to be interviewed. The interviews range from people who love the candidate or the nominee to people who hate his or her guts.

There are people who make scurrilous comments, all kinds of anonymous things. These are raw reports that come into the FBI file. They report it all. Then it comes to the Judiciary Committee, and the chairman and ranking member and our staffs go through those FBI reports with a fine- tooth comb.

To the credit of both the Republicans and Democrats--or Democrats and Republicans, I should say--both sides have worked very well to get rid of the chaff and to do what is in the best interest of this country and to be fair to these nominees. That is a very arduous process. The minute they decide to pick one of these people, or even maybe before sometimes, they then tell the American Bar Association--not because they have a formal role in the process but because we want to have the leading bar association in the country involved. At least the Democrats have always wanted to have them involved. I have to admit I did not want to have them involved when they were not being very fair, when there was bias and bigotry, but there is none of that now. I think they are doing a terrific job now, and as long as they do it fairly and down the middle, without bias and without being political, they are going to have my support, and I support them right now. But we then have the American Bar Association look into these people and they go right into the person's hometown. They talk to the attorneys who know him. They talk to their top attorneys whom they know are people of integrity and ability and leaders in the bar in their community. They talk to just about everybody who has any interest in the nominee, and this has all been done for Mr. Estrada. Then they sit down and they have their standing committee make an evaluation of these nominees.

These evaluations are tough evaluations, especially on those who do not come out of them very well. In this case, Mr. Estrada has a ``unanimously well-qualified'' rating from the Standing Committee of the American Bar Association--I should say from the American Bar Association because they represent the whole bar. That is something that does not always happen. In fact, it does not happen very often, to have ``unanimously well-qualified.''

All of that is unbelievably difficult for the nominee. The nominee has to sign a disclosure form that just about lays bare everything in that nominee's life. One can see why some people do not even want to become judges anymore. Some of the greatest lawyers in the country, who would serve on the bench, do not want to go through this process. The investigation of the nominee includes Finances and everything, it is all laid out; cases are laid out. They are asked questions that are very intrusive into their lives. I think the questionnaire is too strong, but it has been very difficult to change over the years. That is what they go through. Then they are nominated. The Judiciary Committee then starts its work, and we go through every one of these documents.

We go through that FBI report with a fine-tooth comb. If there is anything left undone, we then ask the FBI to follow up. We do not leave anything undone to the extent that we can. If there are some particular problems, we bring both sides of the Judiciary Committee together and tell them these are problems. We disclose it to the members of the Judiciary Committee. The ranking member will disclose it to his side. The Chairman discloses it to his or her side.

Once that is done, then we set it for a hearing. The hearings usually do not last days at a time for circuit court nominees or district court nominees. They are generally a 1-day affair, as they should be, because we have all this information. Anybody can cull through all that information, and their staffs really do. Sometimes they are looking for dirt, looking for things they can raise that might make the process better in some cases or that might scuttle a President's nominee in other cases. There is a lot of partisanship sometimes. That is not all bad because we want the best people we can get to serve on the Federal bench in this country.

This editorial indicates this is just a steamrolling of nominees. Now, that is crazy. In the case of Estrada, his nomination has been pending for 631 days, having had every aspect of his life combed over and because they cannot find anything to smear him with or find fault with--it depends on who the person is--or to criticize, all of a sudden he is being steamrolled.

Well, 631 days is almost 2 years. It is way too long. I have to admit, there were some mistakes when I was chairman during the Clinton years, but nobody should doubt for a minute that President Clinton was treated fairly. President Reagan was the all-time confirmation champion with 382 judges confirmed in his 8 years, and he had a Republican Senate to help him do it. President Clinton had virtually the same number, 377, as the all-time champion, and he had 6 years of an opposition party to help him do it. I know. I was the chairman during that time, and I did everything I could personally to help the President because he was our President. There was only one person voted down in that whole time, and I have to admit I do not feel good about that. And there were less people left holding at the end than there were when Democrats had control of the committee.

Going back to this editorial, because I want to help my friends at the New York Times to be a little more accurate--frankly, I think they can use some help because their editorials, especially in this area, have been awful. And this is a perfect illustration.

Going to the second paragraph:

Republicans on the Judiciary Committee held a single

hearing last week for three controversial appeals court

nominees.

Just for information, that was Jeffrey Sutton. That was John Roberts, and a wonderful woman named Cook--Sutton and Cook and Bill Roberts from DC Court of Appeals.

By the way, all three are well known. Sutton is one of the top appellate lawyers in the country; Roberts, who was considered if not the top, one of the two top appellate lawyers before the Supreme Court of the United States; and Cook is a Supreme Court justice in Ohio.

Republicans on the Judiciary Committee held a single

hearing last week for three controversial appeals court

nominees. There was no way, given the format, for Senators to

consider each nominee with care.

We held one of the longest hearings ever on record, from 9:30 in the morning until 9:30 that night. I was willing to stay longer. I told the Committee we would finish that hearing that day and I would stay as long as it took.

There was no way, given the format, for senators to

consider each nominee with care.

A fourth nominee had a hearing yesterday, and a fifth is

likely to have one next week.

What is wrong with that? They have been sitting there for months and months and they are high-quality people. They have gone through this horrendous process to get to where they have a hearing.

During the Clinton years, the committee took six months or

more to consider the number of appeals court nominees this

committee is hearing from in two weeks.

I would add that many nominees have been waiting longer, not 6 months or more, 2 years, in the ones we have called up.

By the way, Mr. Roberts had been sitting there since 1990 or 1991 or 1992. I know he has been sitting there for at least 11 years. He has been nominated three times. This is too much of a rush? Give me a break. They took a lot longer than 6 months to consider the Bush nominees.

The nominees being whisked through all have records that

cry out for greater scrutiny.

I have covered how scrutinizing we are in the committee. We do not miss anything. My friends on the other side do not miss anything. We don't either.

One, Jeffrey Sutton, is a leading states' rights advocate

who in 2001 persuaded the Supreme Court to rule against a

nurse with breast cancer on the ground that the Americans

With Disabilities Act does not apply to state employers.

I was one of the authors of the Americans with Disabilities Act. I was not enthused about that case. But the fact is, it was a legitimate legal matter and he had every right to represent the States in that matter. The attitude around here is, if he represented the States, it must have been wrong. Or, if he represents big corporations, he must be wrong.

Sometimes the States are right. Sometimes the corporations are right.

Apparently to the New York Times. The fact is, that case was written by the Supreme Court. He advocated, as any advocate, and he was representing, as I recall, one of the States.

Another, Deborah Cook, regularly sides, as a state judge,

with corporations.

Oh, my goodness. You mean we have somebody who will be on the Federal bench who occasionally finds corporations might be right? What a terrible thing that must be, that corporations are right? Let's be honest about it. A lot of employment cases, almost every one that is good, is settled before it gets to court. It is only the hard cases that basically have to be tried. And in many instances, those cases are not good cases. Some on the other side seem to think, well, she sides with corporations. My gosh, she sides with who is right. And that is what we should do.

Admittedly, sometimes it was a dissent, and she was known for the dissent. That is not bad. Dissenting judges play a noble role. You can disagree with cases but you cannot disagree with her integrity. No one would attack her integrity.

In one case she maintained that a worker whose employer

lied to him about his exposure to dangerous chemicals should

not be able to sue for his injuries.

That is the most oversimplification I have ever seen. It is wrong.

Jay Bybee, who was heard from yesterday, has argued that

United States senators should be elected by state

legislators, not the voters.

That is purely wrong; it is bunk. The fact is, this system we have is a good system. But we know one time Senators were elected by State legislatures. He has expounded on that.

Questions have also been raised about whether, as a White

House aide, Mr. Bybee attempted to suppress a criminal

investigation of financing of Iraqi weapons purchases.

Come on. That is totally bunk. They have not talked to Mr. Bybee and given him any consideration. That, first, should never have been disclosed. But it was. And not one person asked a question about it. I am sure they will say they were watching Colin Powell's speech. I was not. I was sitting there in committee, making sure they had a chance to ask any questions they wanted. We delayed the committee until after Colin Powell finished to enable any Democrat to come, and at least two said they would come, to come back and question. They did not come back.

The committee's new leadership showed similar recklessness

when it waved Miguel Estrada through on a straight party-line

vote.

What are we suppose to do if the other side plays politics with the judges? They did not have one good argument through the whole process, and we have had a horrendous process to begin with that took 631 days before he came to the committee. The only reason he came then was because the Republicans took control of the Senate. Thank goodness for that or he would never have come up. He would never have had a chance. We all know it around here.

``Mr. Estrada, a conservative lawyer''--who knows if he is. I don't know his ideology. I know he is a great lawyer. And I presume, as I am sure the President does, that he is probably moderate to conservative.

``Mr. Estrada, a conservative lawyer with almost no paper trail,''--I just made the case there is a paper trail on him--``refused to answer senators' questions on crucial issues like abortion.'' Give me a break. He did answer. He said that he would apply the law regardless of his personal viewpoints.

This is a man who argued the case for NOW. Who knows where he stands--I don't know. All I can say is that is a ridiculous statement. I guess editorials can be ridiculous, but this one is particularly.

Meanwhile, the White House refused to hand over memos Mr.

Estrada wrote as a government lawyer that could have shed

light on his beliefs.

They wanted memos on that side because they could not find anything else to give him a rough time about. They wanted memos on that side from the Solicitor General's office and seven former Solicitors General, four of whom are Democrats, came in and said that would be a very inadvisable thing to do because it would chill the work of the Solicitor General's office. People would not give their honest opinions if they knew that later they would be pilloried with those in the Senate of the United States.

Meanwhile, the White House refused to hand over memos Mr.

Estrada wrote as a government lawyer that could shed light on

his beliefs.

Mr. Estrada said it would have been all right with him. He is proud of his work.

I have to say that the greater approach would be to recognize that there are some things that have to be privileged. As I say, all seven living former Solicitors General have said that.

``The Bush administration is naturally going to nominate candidates for the bench who are more conservative than some Democrats would like,''--that is fair--``and the Republican majority in the Senate is going to approve them.'' That is fair. ``That does not mean, however, that the administration should be allowed to act without scrutiny,''-- that is not fair, because it is tremendously scrutinized--``and pack the courts with new judges who hold views that are out of whack with those of the vast majority of Americans.''

Now, come on.

We fear that that is what the hasty hearing process is

trying to--

Come on. Hasty--631 days before he even gets a hearing with all of that scrutinization that has gone on? It is not fair. This editorial is not fair.

I call on my friends at the New York Times: be fair about the judges. I know the paper is more liberal than I, and I expect you to be more liberal. But I expect you to be fair. This business about three judges being called at one time--they have been sitting there for 631 days or more; actually more. They have been sitting there since May 9, 2001. They have been scrutinized to death. We gave every opportunity to question and every opportunity to file additional questions.

By the way, I remember during the Carter years, when Senator Kennedy was chairman of the committee, if I recall correctly we had seven circuit

nominees on one hearing. Is it wrong for Republicans to try to move these judges after all of these delays when they have the opportunity to do so, but not wrong for the Democrats to move the judges they want moved when they have control of the White House and the Judiciary Committee? I don't think there should be a double standard. I wanted to move as many of those May 9 judges as we could. If you will take note, the next week we had only one and that was Jay Bybee. That was this week. And next week we will probably only have one more.

We are doing the best we can to try help solve judicial problems in this country. Just for the information of the New York Times, there are around 25 judicial emergencies in this country--emergencies. The Circuit Court of Appeals for the District of Columbia is one. The Sixth Circuit Court of Appeals in Ohio is another. We need to do something about that if we want justice in this country, if we want to have cases heard and tried and resolved--and that is what we want. That is what good lawyers want, fair judges who will fairly listen to their case and give them a fair trial. And these judges will. That is why they are so highly rated by the American Bar Association and that is why Miguel Estrada has the highest rating possible.

I think it is time for the New York Times to be more fair in its reporting on these judges. I noticed the day before they were reporting as though Paul Bender's opinion really amounted to something. It may in some areas, but certainly I think the opinions he gave at the Solicitor's office are more important than politically motivated opinions that he gives later as a liberal Democrat--and, I might add, a very liberal Democrat.

I have taken enough time. I yield the floor.

Mr. President, I rise today to make a suggestion about how we can work more effectively to get the engine of our economy running on all of its cylinders again.

We have heard a great deal this week about the current state of our economy and whether the President's growth plan, which he released this past Monday, will be effective in putting Americans who have lost their jobs back to work. Many of my colleagues on the other side of the aisle are questioning whether there is a link between high taxes and jobs.

The current debate has featured quotations and commentary from some of the most prominent economists and tax experts in America. Both sides rely on knowledgeable and learned authorities to make their case that the Bush growth plan will or will not be effective in creating jobs. And, as the old saying goes, you can find an expert to prove any point you wish.

But too often, I think we tend to overlook the wisdom of people on the front lines of the U.S. economy. Sometimes these people can provide answers with clarity and common sense.

A few months ago, a small business owner in Moab, UT, Jeffrey Davis, sent me a very heartfelt letter, and his sentiment has stuck in my mind. I want to share it with my colleagues here today.

Moab is a relatively small town in southeastern Utah whose economy is greatly dependent on tourism. Within just a few miles of this town lies some of the most spectacular scenery on Earth. However, the people who make Moab their home face the same economic realities with which everyone else in America deals.

Mr. Davis owns and operates a restaurant in Moab, and over the years he has tried his hand at a few other retail businesses as well. From his letter, it is obvious he has faced both good times and bad times with his businesses. Unfortunately, the recent trends have not been positive. He currently employs between 13 and 20 people, depending upon the season, and he worries that these people, who depend on him, might find themselves out of a job if conditions do not soon improve. Mr. Davis understands all too well the pressures that face all small business owners.

In his letter to me, Mr. Davis makes a point that is extremely important to the current debate on taxes and jobs--that if high taxes force the small business person to go out of business, the U.S. Government will not get any tax money.

As simple and obvious as that concept sounds, I fear it might be one who is sometimes lost on those of us in Congress. Taxes and other government requirements have a real cost on small businesses in this country, many of which are right at the edge of viability. In the case of businesses in many towns in Utah and around the country, things have been really tough for the past couple of years. The one-two punch of a slowing economy and the greatly reduced travel resulting from the events of September 11 have moved many thousands of small businesses in Utah and around the Nation right to the edge of going out of business. This is especially true of businesses in towns that depend heavily on tourism, such as Moab.

Tax cuts, such as the President is proposing, can make the difference between a small business surviving and it closing its doors. We must keep in mind that a high percentage of small businesses pay taxes at the individual rates.

As we debate the best way to deal with our slow recovery over the next weeks, we will surely hear a great deal more from economists and experts on the macro effect of various plans and how gross domestic product will be affected by enacting one idea or another.

These opinions and analyses are a very much needed and welcome part of the political process. But I urge my colleagues to not forget to also consider the wisdom of those back home in their States, who, like Jeffrey Davis of Moab, UT, face the real world effects of our decisions.