Floor Statements

Madam President, I am pleased that we have finally gotten to consider the nomination of Miguel Estrada to preside on the United States Court of Appeals for the District of Columbia Circuit, which has been pending before the Senate since May 9, 2001. I strongly support this nomination, and I hope we can vote on it soon. Also, I should say that I truly hope that news reports are inaccurate about efforts by my colleagues on the other side of the aisle to engage in a filibuster of this nominee in an effort to deny him a vote by the full Senate. To defeat this nominee in this manner would be unprecedented and a real shame for this body.

As many of us who are familiar with Mr. Estrada know, he represents a true American success story. His story can make us all proud to be members of this country, make us proud of our country. Born in Tegucigalpa, Honduras, his parents divorced when he was only 4 years old. Mr. Estrada remained in Honduras with his father while his sister emigrated to the United States with his mother. Years later, as a teenager, Mr. Estrada joined his mother in the United States. Although he had taken English classes during school in Honduras, he actually spoke very little English when he immigrated. He nevertheless taught himself the language well enough to earn a B- in his first college English course. In a matter of years, he not only perfected his English skills, but he exceeded the achievements of many persons for whom English is their native tongue. He graduated magna cum laude and Phi Beta Kappa in 1983 from Columbia College, then magna cum laude in 1986 from Harvard Law School, where he was editor of the Harvard Law Review. Those are really difficult achievements.

Mr. Estrada's professional career has been marked by one success after another. He clerked for Second Circuit Judge Amalya Kearse a Carter appointee--then Supreme Court Justice Anthony Kennedy. He worked as an associate at the law firm of Wachtell Lipton in New York City, one of the great law firms of this country. He then worked as a Federal prosecutor in Manhattan, rising to become deputy chief of the appellate division. In recognition of his appellate skills, in spite of the fact that he has a speech handicap, he was hired by the Solicitor General's Office during the first Bush administration. He stayed with the Solicitor General's Office for most of the Clinton administration. When he left that Office, he joined the Washington, DC, office of Gibson, Dunn & Crutcher, where he has continued to excel as a partner. And everybody knows that the law firm of Gibson, Dunn & Crutcher is one of the great law firms of this country.

Most lawyers are held in high esteem if they have argued even one case before the Supreme Court. Mr. Estrada has argued 15 cases before the States Supreme Court. This is an impressive accomplishment by any standard, but it is particularly remarkable when you take two additional factors into consideration. First, as I have noted, English is not Mr. Estrada's native language. He has nevertheless mastered it to such a degree that he is considered to be one of the foremost appellate lawyers in our country. Second, his oral argument skills are even more extraordinary because, as I have mentioned, he has worked to overcome a speech impediment.

Despite this disability, Mr. Estrada has risen to the top of the ranks of oral advocates nationwide. People all over this country have admiration for him.

The legal bar's wide regard for Mr. Estrada is reflected in his evaluation

by the American Bar Association. The American Bar Association evaluates judicial nominees based on their professional qualifications, their integrity, their professional competence, and their judicial temperament. They do not have an official role in the confirmation process, but Senate Democrats did identify the group's evaluations last year as the ``gold standard.''

They ask judges who have heard a nominee argue cases, lawyers on the other side of cases, and hundreds of lawyers with whom the nominee has worked. They also ask neighbors and friends and other critics, people who have axes to grind. They really go into a lot of things, but mainly with people in the profession.

Based on its exhaustive assessment of these factors, the ABA has bestowed upon Mr. Estrada its highest rating of unanimously well qualified. That is high praise indeed.

I have to say, as one who has been critical of the American Bar Association and their evaluation process in the past, in recent years I think they have been doing an excellent job. We are gaining by the work they are doing.

In the past I have seen them as a partisan organization that was not fair to Republican nominees, at least to some Republican nominees. But I don't find that bias any longer. I want to praise the American Bar Association for it.

I take the time to offer up this brief recitation of Mr. Estrada's personal and professional history because I think it illustrates that he is in fact far from some rightwing idealogue that some of the usual opposition groups have portrayed him to be. He clerked for Judge Kearse, a Carter appointee; then Justice Kennedy, a moderate by any standard. He joined the Solicitor General's office and stayed on through much of the Clinton administration. His supporters include a host of well-respected Clinton administration lawyers, including Ron Klain, former Vice President Gore's chief of staff and a former staffer on the Senate Judiciary Committee, a man we all respect; Robert Litt, head of the criminal division in the Reno Justice Department or the Clinton Justice Department; Randolph Moss, former assistant Attorney General; and Seth Waxman, former Solicitor General in the Clinton administration. All of these people are people we respect, we admire, all of them are Democrats, and all of them have been Democrat leaders, and all of them have had an awful lot of influence with the Senate Judiciary Committee and the Senate itself through the years.

Mr. Klain's letter to the committee in support of Mr. Estrada is particularly insightful. He wrote:

Mr. Estrada will bring an independent streak to his

judging, that may serve to surprise those who nominated him--

and I think will give every litigant, from any point of view,

a fair chance to persuade Mr. Estrada of the rightness of his

or her case.

Another letter from more than a dozen of Mr. Estrada's former colleagues at the Solicitor General's office states that:

. . . he is a person whose conduct is characterized by the

utmost integrity and scrupulous fairness, as befits a nominee

to the federal bench.

I ask unanimous consent to print a copy of these letters in the Record.

Mr. Estrada's supporters are not limited to prominent and well-connected Democrats and Republicans. We heard during his confirmation proceedings or hearings about Mr. Estrada's pro bono efforts before the Supreme Court to overturn the conviction of death row inmate Tommy David Strickler. His cocounsel in that case, Barbara Hartung, wrote the committee that Mr. Estrada:

. . . values highly the just and proper application of the

law. Mr. Estrada's respect for the Constitution and the law

may explain why he took on Mr. Strickler's case, which at the

bottom concerned the fundamental fairness of a capital trial

and death sentence. I should note that Mr. Estrada and I have

widely divergent political views and disagree strongly on

important issues. However, I am confident that Mr. Estrada

will be a distinguished, fair and honest member of the

federal appellate bench.

Again, that is high praise from Barbara Hartung.

Another letter in support of Mr. Estrada came from Leonard Joy, attorney in charge of the Legal Aid Society, Federal Defender Division in New York City, which is the community defender organization appointed to represent indigent defendants in Federal court at the trial and appellate levels. Mr. Joy, who frequently represented defendants whom Mr. Estrada prosecuted while he was an assistant U.S. Attorney, wrote that:

He clearly was one of the smartest attorneys in the office

which prides itself in attracting the best and the brightest.

Yet throughout he was eminently practical in the judgments he

made and he had a down-to-earth approach to his cases. I

found him to be a fair and straightforward prosecutor who did

not treat defendants unduly harshly.

It is fair to say that all lawyers in my office liked him.

Many of them are liberal in their politics and it is a credit

to Mr. Estrada that he was able to get along with people who

may have had different views than he.

The letters the committee has received from lawyers who know Mr. Estrada both personally and professionally depict him as a brilliant yet fair attorney who is willing to listen to both sides of an issue before making a decision. Inherent in this description is the necessary conclusion that Mr. Estrada is not an idealogue but instead shows great respect for persons with divergent viewpoints. Indeed, as I noted at the hearing, Mr. Estrada placed phone calls to my office to support the confirmation of two Clinton judicial nominees: Adalberto Jose Jordan, who was confirmed to the Southern District of Florida, and Elena Kagan, nominated for the DC circuit.

Beyond the letters of support we have received for Mr. Estrada, the cases he has taken on as an attorney illustrate his commitment to following the law instead of imposing any political agenda. I know that the issue of reproductive choice is one that is very important to many of my Democratic colleagues, although it is one on which we disagree. I am not sure how many of them saw the portion of the hearing when Mr. Estrada was asked about his work on the NOW--National Organization for Women--case for the Clinton administration. Even if you assume that Mr. Estrada is pro-life as a matter of politics, which even I do not know, that representation illustrates his ability to put aside his personal convictions and follow the law as a good jurist has to do.

In addition, on the NOW web site there is an article by Vera Haller of Women's E-news. Although this article criticizes several of President Bush's judicial nominees--unfairly, in my view--but that is a different story--it applauds the selection of Mr. Estrada, noting that ``[h]is presence on the list . . . was seen by some as a sign that President Bush hoped to avoid contentious confirmation battles in the Senate.''

I want to take a moment at the outset here to address a couple of issues that we are sure to hear more about as the discussion of Mr. Estrada's nomination progresses.

First, Mr. Estrada has been unfairly criticized by some for declining to answer questions at his hearing about whether particular Supreme Court cases were correctly decided. Lloyd Cutler, who was White House Counsel to both President Carter and President Clinton, put it best when he testified before a Judiciary Committee subcommittee in 2001. He said, ``Candidates should decline to reply when efforts are made to find out how they would decide a particular case.'' He further explained, ``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, and the letters of support we have received from his colleague all indicate that Mr. Estrada fits this description and deserves our vote of confirmation.

Second, several opponents of Mr. Estrada have attempted to block his confirmation by demanding that the Department of Justice release internal memoranda he authored while he was an assistant to the Solicitor General in the Solicitor General's office. First, it is important to note that Mr. Estrada told the committee that he does not object to the release of these documents. He is, rightfully, proud of his legal work. But there is a larger institutional problem. What the opponents of Mr. Estrada, or those who are continuing to demand these documents, apparently ignore is the fact that all seven living former Solicitors General--four Democrats and three Republicans--oppose this request. Their letter to the committee explains that the open exchange of ideas upon which they relied as Solicitors General ``simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure.'' These seven former Solicitors General--four Democrats, three Republicans--concluded that ``any attempt to intrude into the Office's highly privileged deliberations would come at a cost of the Solicitor General's ability to defend vigorously the United States' litigation interests--a cost that also would be borne by Congress itself.''

The Wall Street Journal and the Washington Post have also criticized attempts to obtain these memoranda--and they should. The seven former Solicitors General of the United States are right, and their wise counsel should be followed.

I ask unanimous consent that the letter of the Solicitors General, as well as the Wall Street Journal and Washington Post editorials, be printed in the Record.

Madam President, let me say this to colleagues who insist upon seeking internal memoranda Mr. Estrada wrote during his tenure at the SG's office. During the last Congress, the Senate confirmed Jonathan Adelstein, whom I fully support, to an important position on the FCC. Mr. Adelstein is a former aide to the distinguished minority leader, but the Republicans did not demand all of Mr. Adelstein's memoranda to Senator Daschle on telecommunications issues before confirming him. This is despite the fact that such memoranda probably could have been useful in determining how Mr. Adelstein would have approached his decisions as a commissioner. The reason we did not seek them was because of the obvious: To do so would have intruded into the deliberative relationship between Mr. Adelstein and Senator Daschle. This would have been an inappropriate intrusion, as all of the Solicitors General, including President Clinton's Solicitors, have warned of the Judiciary Committee's request, regardless of how valuable the memoranda would have been in deciding whether to support Mr. Adelstein.

Along the same lines, I must note the American public would probably find insightful the internal memoranda written to any of my colleagues in the Senate by their staff. How would we feel about that? Do we think we would get the most candid advice if our top counsel knew their private advice is not really private? Let's get real here.

These misguided efforts should not prevent our confirmation of a highly qualified nominee who has pledged to be fair and impartial, and to uphold the law regardless of his personal convictions. I have no doubt Mr. Estrada will be one of the most brilliant Federal appellate judges of our time. This is a picture of Miguel Estrada, who was found by the American Bar Association--unanimously--well qualified, the highest rating given to any judicial nominee. I have no doubt Mr. Estrada will be one of the most brilliant Federal appellate judges of our time, and I urge every Member of this body to join me in voting to confirm him.

Madam President, let me say just a few more things about the significance of this nomination. There have been many people who have been waiting for the confirmation vote on this nominee, and many more people who are watching today for the first time as we display our American institutions and the value we give to the independence of our judiciary.

It was no small matter that at our hearing for Mr. Estrada, we had in the audience the Honorable Mario Canahuati, the Ambassador of Honduras to the United States. The Honduran community in this country, though centered in Louisiana, is scattered throughout the U.S., from North Carolina to New York to California.

We welcomed also to our hearing the leaders of the many Hispanic communities and organizations in the U.S. who came to express support for this nomination.

In this context, I want to make a general comment on judicial confirmations. For over a year, we have had a very troubling debate over issues that we thought our Founding Fathers had settled long ago with our Constitution. I have been heartened to read the scores of editorials all across this country that have addressed the notion of injecting ideology into the judicial confirmation process, because this notion has been near universally rejected--except, of course, for a handful of well paid, special interest liberal lobbyists in Washington, and a few other diehards.

It seems to me the only way to make sense of the advise and consent role our Constitution's Framers envisioned for the Senate is to begin with the assumption that the President's constitutional power to nominate should be given a fair amount of deference, and that we should defeat nominees only where problems of character, qualifications, or inability to follow the law are evident.

As Alexander Hamilton recorded for us, the Senate's task of advise and consent is to advise and to query on the judiciousness and character of nominees, not to challenge, by our naked power, the people's will in electing who shall nominate.

To do otherwise, it seems to me, is to risk making the Federal courts an extension of this political body. This would threaten one of the cornerstones of this country's unique success--an independent judiciary. Let me say this again. Such political efforts would threaten one of the cornerstones of this country's unique success--an independent judiciary.

Let's not take my advice here, let's listen to Presidents Carter and Clinton's White House counsel, Lloyd Cutler, a person, though we disagree on many issues, for whom I have the highest regard and always have. He is a terrific human being and a wonderful lawyer, one of the best who has ever served his country.

Moreover, these are not just my views, this is our Anglo-American judicial tradition. It is reflected in everything that marks a good judge, not the least of which is Canon 5 of the Code of Judicial Conduct of the American Bar Association that expressly forbids nominees to judicial duty from making ``pledges or promises of conduct in office [or] statements that commit or appear to commit the nominee with respect to cases, controversies, or issues that are likely to come before the courts.''

I should expect no Senator would invite a nominee to breach this code of ethics, and it worries me that we are coming close, and that we now appear to complain that a nominee does not breach the code when we ask him to. I can honestly say I fear that we are getting to or crossing over dangerous lines here I have not witnessed in my 27 years in the U.S. Senate.

As I have indicated by reciting his stellar record, Miguel Estrada's nomination is before us today because it deserves to be here under any standard that any disinterested person could devise. He is qualified for the position for which President Bush has nominated him. I know it, and after our debate, I think the American people will know it as well.

But notwithstanding all of Mr. Estrada's hard work and unanimous rating of highly qualified by the ABA, he has been subjected, so far, to a pinata confirmation process with which we have all become very familiar. The extreme left-wing Washington groups go after judicial nominees like kids after a pinata. And it is not specific to Mr. Estrada. They beat it and they beat it until something comes out that they can then chew and distort.

In the case of Mr. Estrada, the ritual has been slightly different. They have been unable to find anything they can chew on and spit out to us, so they now

say that we simply do not know enough about Mr. Estrada to confirm him. And that is after more than 640 days of delay.

Well, it is not that we do not know enough. We had a full-day hearing, conducted by Senator Schumer. It was a full hearing. I commend him for conducting and allowing all Senators the opportunity to ask any and all questions they wished to ask. I believe that was last September. Mr. Estrada's nomination has been pending before us for almost 2 years. We know as much about Mr. Estrada as we have known about any nominee. Their complaint is that we know all there is and the usual characters haven't found anything to distort.

But surely we should not expect to hear it suggested today that Mr. Estrada doesn't have enough judicial experience. Only 3 of the 18 judges appointed to the DC circuit by Democrats since President Carter had any prior judicial experience before their nominations.

These include Ruth Bader Ginsburg and Abner Mikva to select two. Likewise, judicial luminaries such as Louis Brandeis and Byron White had no judicial experience before being nominated to the Supreme Court. And Thurgood Marshall, the first African American on the Supreme Court, had no judicial experience before he was nominated to the Second Circuit. I could go on and on.

I wish to address another aspect of Mr. Estrada's background. I know Miguel Estrada and I know how proud he is, in ways that he is unable to express, about being the first Hispanic nominated to the D.C. Circuit Court of Appeals. So I will express it. This nomination is a matter of pride for him for the same reason that it is for any of us, not just because Mr. Estrada is a symbol for Latinos in America, but because Miguel Estrada's story is the best example of the American dream of all immigrants. He and I are proud because we love this great country and the future it continues to promise to young immigrants. Miguel Estrada's success can make each of us love this country all the more.

In fact, I have never seen any Hispanic nominee whose nomination has so resonated with the Latino community, except for the partisans--the partisan Democrats.

As I said earlier, Miguel Estrada was born in Honduras. He was so bright at an early age that he was enrolled at a Jesuit school at the age of 5. He was raised in a middle-class family. At age 17, he came to live with his mother who had immigrated to New York, knowing very little English. Today he sits before the Senate of the United States waiting to be confirmed to one of the greatest courts in the land.

I am embarrassed, therefore, by the new lows that some have gone to attack Mr. Estrada. Detractors have suggested that because he has been successful and has had the privilege of a fine education, he is somehow less than a fullblooded Hispanic. This is the most embarrassing tactic used against this nominee. I wonder if we would tolerate saying of a woman nominee that because of this or that, she is not really a woman, or of a male nominee that because he is this or that, he is not fully a man. We would not tolerate that here, and I do not think we should tolerate it in the case of Miguel Estrada.

Even more offensive, it seems to me, are the code words that some of his detractors use about him--code words which perpetuate terrible stereotypes about Latinos--used in effect to diminish Miguel Estrada's great accomplishment and the respect he has from colleagues of all political persuasions.

As chairman and founder 13 years ago of the nonpartisan Republican Hispanic Task Force which, despite the name, is made up of both Republicans and Democrats--I have tried to achieve greater inclusion of Hispanics in the Federal Government. I have worked hard to do that. I love the Hispanic people. They know it.

I am concerned by the obstacles they face. I fear that some Democrats are creating a new intellectual glass ceiling for Hispanics. If they do not think a certain liberal way that they do, then they are not good enough for upward mobility and advancement.

Let me say that again. If they do not think a certain liberal way that they do, then they are not good enough for upward mobility and advancement. That is wrong, and this body should not perpetuate that.

Many liberals in this town fear that there could be role models for Hispanics that might be moderate to conservative--despite the fact that polls show that the great majority of Hispanics are conservative. But surely, the advancement of an entire people should not be dependent on one party being in power.

This past year I met with a number of leaders of Hispanic organizations from all across the country. I asked them what they think about the subtle prejudices that Mr. Estrada is facing and they agree. Perhaps, they are more offended than I could ever be, but I doubt it.

The best expression of this outrage was shown just last week by Congressman Herman Badillo in an article in the Wall Street Journal.

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

Mr. Badillo served four terms as a Democrat in the House of Representatives, as Deputy Mayor of New York City under Mayor Koch, as Bronx President and as Board Chairman of the City University of New York. He is the best known Hispanic public leader in New York State with five decades of public service to show for his efforts.

Mr. Badillo had this to say about how Mr. Estrada has been treated:

[It is] demeaning and unfair, not only to the nominee but

also to the confirmation process and the integrity of the

Senate.

Mr. Badillo notes that Mr. Estrada has had demands placed on him ``never made before for a non-Hispanic nominee.''

The Hispanic experience, in fact, sheds new light on the debate we have been having about ideology in judicial confirmations. Many new Hispanic Americans have left countries without independent judiciaries, and they are all too familiar with countries with political parties that claim cradle-to-grave rights over their allegiances and futures.

I have a special affinity for Hispanics and for the potential of the Latin culture in influencing the future of this country. Polls show that Latinos are among the hardest working Americans. That is because like many immigrant cultures in this country, Hispanics often have two and even three jobs. Surveys show they have strong family values and a real attachment to their faith traditions and they value education as the vehicle to success for their children.

In short, Hispanics have reinvigorated the American dream, and I expect they will bring new understandings of our nationhood, that some of us some of us, Madam President--might not fully see with tired eyes.

Without trumpeting the overused word ``diversity,'' I have made it my business to support the nominations of talented Hispanics for my entire career in the Senate. I hope that the desire for diversity that many of my Democrat colleagues say they share with me will trump the reckless and destructive pursuit of injecting ideology into the judicial confirmations process as we move forward on this particular nomination.

In Spanish-speaking churches all over this country and in every denomination, Hispanics sing a song called DE COLORES. This means OF MANY COLORS. It celebrates the many colors in which we all are created.

Hispanics know they come in many colors, with all kinds of backgrounds. They enjoy among themselves a wide diversity already. They left behind countries filled with ideologues that would chain them to single political parties. Latinos share a commonsense appreciation of each other's achievements in this country without any regard whatsoever to ideology, over which some Americans have the luxury of obsessing.

Congressman Herman Badillo said it well--in fact, he said it beautifully:

[W]hether Puerto Rican, Dominican or Honduran, Hispanics

are most united in one thing the pride we take in our

advancement as Americans regardless of where we started.

In fact, that is true for all of us.

It seems to me that any political party's attempt to control a group and to bar independent thought and belief, in effect to disallow diversity of thought within the Hispanic community, is simply wrong and no people should stand for that. That is what I have come to call and deplore as the ``intellectual glass ceiling.''

I have news for those engaging in this: Hispanic Americans--like all Americans--have liberals and conservatives. No one should be so arrogant as to demand that a whole community should think as they do. People who are demanding that all Hispanics should fit into one mold ought to be ashamed of themselves. They have sold out the aspirations of their people just to sit around schmoozing with Washington's liberal power elite.

Let's be clear, these liberal groups are only two or three in number, and they are basically surrogates for the Democrat Party. They are marginalized given the large number of Hispanic organizations that have come out in support of Mr. Estrada. I should note that Mr. Estrada's supporters include LULAC, the League of United Latin American Citizens,--the largest and oldest Latino organization in this country.

Like President Bush--I have the same feelings--I think it is high time that a talented lawyer of Hispanic descent sits on the second most prestigious court in the land. Miguel Estrada is that man.

I wish to address one last thing. I noticed that the very liberal Puerto Rican Legal Defense Fund issued a report just last spring, arguing that there were too few Hispanics on the bench and challenging the Bush administration to nominate more.

I noticed, however, that they never mentioned Miguel Estrada's nomination. In fact, though they address all the other federal circuit courts, the DC Circuit Court for which Mr. Estrada is nominated is oddly missing from their analysis arguing for more Hispanic nominations.

In this respect, I want to commend President Bush. He has already sent us 9 since he began, and we expect by the end of this week to have altogether 12 well-qualified Hispanic nominees. At this rate, if he has 8 years to serve, President Bush will have nominated close to 40 Hispanic-American judges. This will be more than any other President before him, Democrat or Republican. Already, as this chart indicates, President Bush has a greater percentage of Hispanic nominations than any President before him.

Nevertheless, I too am concerned about the few Hispanic judges we have, especially given that Hispanics are now the largest minority group in America. And I am concerned by the obstacles they face. Congressman Badillo, himself a former Democrat, describes it this way: ``Nothing'' he says, makes some people ``more frenzied than when Hispanics and African Americans go off the reservation.'' I hope that he is not talking about any Senators here.

Finally, I ask unanimous consent to have printed in the Record an editorial by The Washington Post that expresses their support for Mr. Estrada.

As one editorial puts it, his nomination is ``an easy call.''

The Post was right to point out that we who support Miguel Estrada should not do so simply because he is a Hispanic. As the Post points out there is no particularly ``Hispanic manner of deciding cases.'' They reject the diversity argument.

I agree, and as I indicated Mr. Estrada has an exemplary record as a magna cum laude of both Columbia University and Harvard Law School graduate, and his extraordinary record of public service, including 15 cases argued before the Supreme Court. This record has not been met by many of the nominees of either party over the 27 years I have been here.

In addressing why he was before us at his hearing I did not say anything about confirming Miguel Estrada because he is Hispanic. I did not have to make that argument because, as The Post points out, his record makes his confirmation ``an easy call.''

But this fact should not diminish the pride, that I have addressed, that Miguel Estrada's supporters have in the compelling story of a young immigrant who arrives from Honduras at age 17 and rises to be nominated to the second most prestigious court in the land. This is a pride I hope we can all share, Democrats and Republicans, when this Senate confirms him. It is a non-partisan pride.

I disagree with The Post, however, to the extent they minimize the significance of confirming a well-qualified Hispanic.

Confirming minority candidates, provided they are also well-qualified as Mr. Estrada is, is a positive good, in and of itself. It is important to raise role models in high office for young Hispanics in this country, indeed for all immigrants, provided they are otherwise well qualified or as in Miguel Estrada's case--unanimously well- qualified. Now, I will take a second with another chart because it is important to go through his qualifications. These are only a few qualifications, but they are very important.

Miguel Estrada not qualified? Give me a break. My friends on the other side have said the American Bar Association is the gold standard. I think the way they are doing it now is probably true. ABA rating: Unanimously well qualified.

He argued 15 cases before the U.S. Supreme Court, winning most of them; Columbia and Harvard Law, graduated magna cum laud; editor of the Harvard Law Review--there are a lot of lawyers in this body; I doubt if many have been editors of law reviews--law clerk for U.S. Supreme Court Justice Kennedy; assistant solicitor general for President Bush 1 and President Clinton.

Those are very important qualifications. There are not many who come before this body who have been confirmed, even to the prestigious Circuit Court of Appeals for the District of Columbia, that can match Miguel Estrada.

I believe he handled himself well before the committee, although some on the other side do not. Be that as it may, Miguel does work very hard with the speech impediment he has had all his life. In spite of that handicap or disability, he has argued 15 cases before the U.S. Supreme Court. It has been hardly a disability to him. He is a terrific human being. He is a very upright person. He is an example to all of what we can achieve in this great land. He certainly deserves confirmation by this body. I hope we can do that within a reasonable period of time.

I yield the floor.

I yield to Senator Schumer for a unanimous consent request.

Mr. President, I thought I would make some points here because the distinguished Senator from Vermont is mistaken in a number of accusations he makes.

I wish to list the following Hispanic groups or Hispanic-owned businesses that express their support for Miguel Estrada. One of the oldest Hispanic organizations in the country is the League of Latin American Citizens. It is well known, well respected, and bipartisan. They are firmly behind Miguel Estrada. Next is the U.S. Hispanic Chamber of Commerce; Hispanic National Bar Association; Hispanic Business Roundtable; National Association of Small Disadvantaged Business; Mexican American Grocers Association; ATL, Inc.; PlastiComm Industries, Inc.; Phoenix Construction Services; Hispanic Chamber of Commerce of Greater Kansas City; eHEBC Hispanic Engineers Business Corporation; Hispano Chamber of Commerce de Las Cruces; Casa Del Sinaloense; Republican National Hispanic Assembly; Hispanic Engineers Business Corporation; Hispanic Contractors of America, Inc.; and the Charo-Community Development Corporation.

That is to mention a few. There are dozens of organizations that support Miguel Estrada. As anybody would understand, there is a lot of pride in Hispanic organizations for this type of a nominee, who has achieved so much in his life, and has done it basically on his own and has achieved the heights that very few lawyers and people have achieved, who has not had a glove laid on him in our committee hearing--other than complaints that they don't know his philosophy. My goodness, they have had almost 2 years to learn his philosophy and they could have asked any question, and they did ask a lot of questions.

Let me say there is a double standard here on judicial qualifications. On January 30, 2003, the Senate Judiciary Committee voted 10 to 9 to approve the nomination of Miguel Estrada to the U.S. Court of Appeals for the DC Circuit. On January 24, 2003, Senator Leahy questioned Mr. Estrada's qualifications, saying he ``has no judicial experience. He has no publications since law school.''

He is not a distinguished legal scholar or professor of law.

I might add that in 1997, the distinguished Senator from Vermont praised Merrick Garland--as did I, by the way; I supported him strongly; he was another DC Circuit nominee with no judicial experience, no professional experience, no publications--as ``highly qualified for this appointment'' and someone who would make ``an outstanding Federal judge.'' That is in the Congressional Record of March 19, 1997, at S2518.

That is what was said about Merrick Garland. I agree with Senator Leahy on that point. He was an excellent candidate, an excellent judge. I supported him strongly and broke down barriers to make sure he could become a judge on the Circuit Court of Appeals.

Mr. Estrada's and Mr. Garland's credentials, or should I say Judge Garland's credentials, were exactly the same at the time. Let me go down through a list of credentials.

The age of the nominee: Miguel Estrada was 41. That was 2 years ago almost; Merrick Garland was 44.

Phi Beta Kappa: Yes for Miguel Estrada; yes for Merrick Garland.

Harvard Law School, magna cum laude: Yes for Miguel Estrada; yes for Merrick Garland.

Editor of the Harvard Law Review: Yes for Miguel Estrada; yes for Merrick Garland.

Law clerk, U.S. Court of Appeals, the Second Circuit: Yes for Miguel Estrada; yes for Merrick Garland.

Law clerk of the U.S. Supreme Court: Yes for both of them.

Private practice: 7 years for Miguel Estrada; 7 years for Merrick Garland.

Assistant U.S. attorney: 2 years for Miguel Estrada; 3 years for Merrick Garland.

U.S. Department of Justice: From 1992 to 1997 for Miguel Estrada; from 1993 to 1997 for Merrick Garland who now sits on the DC Circuit Court of Appeals.

Bipartisan support: Yes for Miguel Estrada; yes for Merrick Garland.

Race: Miguel Estrada is Hispanic. Merrick Garland is white.

Days from nomination to Judiciary Committee approval: 631 days for Miguel Estrada; only 100 for Merrick Garland. They are not quite equal there.

Seven current Judiciary Committee Democrats served in the Senate in 1997. Seven of them are current Democrats on the committee. Every one of those Democrats voted for Merrick Garland, and every one of them voted against Miguel Estrada--all seven of them.

Let me say that the statement of Senator Kennedy, our distinguished former chairman of the committee way back when, about Merrick Garland in the Congressional Record of March 19, 1997 at S2518 I think applies to Miguel Estrada. This is our distinguished colleague from Massachusetts:

No one can question Mr. Garland's qualifications and

fitness to serve on the DC Circuit. He is a respected lawyer,

a former Supreme Court law clerk, a partner at a prestigious

law firm, and has served with distinction in the Department

of Justice under both Republican and Democratic

administrations. Support for him is bipartisan.

I think that statement in every detail applies to Miguel Estrada. I do not think there is any question about it.

What is going on here? What is wrong with this tremendous lawyer who has

made it on his own under very trying circumstances; who has an ABA rating of unanimously well qualified; who has argued 15 cases before the U.S. Supreme Court--I am not sure Merrick Garland did that, although I think Merrick Garland is a terrific individual--Columbia and Harvard Law, magna cum laude; editor of the Harvard Law Review, something that is about as prestigious as it gets in law school; a law clerk for U.S. Supreme Court Justice Kennedy; Assistant Solicitor General not only for George Bush I, but for President Clinton as well, praised by the person who supervised him, who later, not knowing we had all of those praises, besmirched him. But it is pretty hard to go against what he put in writing way back when, and I will get into that before we are through.

I have been listening very carefully to some of the comments of my distinguished friend from Vermont, and I do not believe that bringing up the names of Clinton nominees who happen to be of Hispanic descent has anything to do with how this Senate should treat Mr. Estrada. However, since my Democratic colleagues have criticized my treatment of these nominees when I was chairman, I feel compelled to set the record straight.

The fact is, under Republican leadership, most of President Clinton's Hispanic nominees--14, to be exact--were, indeed, confirmed. Although my Democratic colleagues would have you believe something more nefarious was at work, the fact is the nominations of Jorge Rangel and Enrique Moreno for the Fifth Circuit stalled because there was an utter failure of consultation by the Clinton White House. There is no question about that. And neither sitting Senator in Texas was willing to return their blue slips because there was no consultation, which is a requisite.

My colleagues on the other side are certainly raising consultation questions all the time about this White House, and we have directed the White House to consult. Unfortunately, some of them, I think, take the attitude that unless the White House chooses who they want, it is not consultation. That is not a good definition of consultation.

Tenth Circuit nominee Christine Arguello has been brought up. She was not nominated until July of 2000. It was way too late in the session to effectively move her nomination under those circumstances. We did not receive her questionnaire until August of 2000 and, if my records are correct, I do not believe we ever did receive her FBI file. So to raise that is sophistry at best.

It is unfortunate for the nominee when he or she is not confirmed because of these obstacles, but none of these face Mr. Estrada. As we all know, he has been pending for 2 years now and has been rated unanimously well qualified, the highest rating by the American Bar Association.

As for Ninth Circuit Court nominee Richard Paez, I was a vocal supporter of Judge Paez in the face of harsh criticism from some in my own party. I was one of two Republicans to vote for him in this committee, and I led the effort on the Republican side to get him confirmed on the floor. I believe my Democratic colleagues know this, so I take exception when they cite his name as an example of my alleged stonewalling on Clinton nominees. There was none.

Let me talk about the hearing testimony of Mr. Estrada. Mr. Estrada repeatedly answered the questions that were put to him. Let me give some examples.

Mr. Estrada testified he was committed to following the precedents of higher courts faithfully and giving them full force and effect, even if he disagrees with them and even if he believes such precedents are erroneous. That is pretty important testimony, and it is testimony that should be in his favor.

When asked how he would decide cases presenting an issue for which there was no controlling authority, Mr. Estrada testified:

When facing a problem for which there is not a decisive

answer from a higher court, my cardinal rule would be to

seize aid from anyplace I could get it.

He testified this would include related case law and other areas of legislative history and views of academics.

When asked if he sees the local process as a political game, Mr. Estrada testified: The first duty of a judge is to self-consciously put that aside and look at each case by withholding judgment, with an open mind, and listening to the points. I think the job of a judge is to put all that aside and to the best of his human capacity to give a judgment based solely on the arguments on the law.

Miguel Estrada said: I will follow binding case law on every case, and I don't even know if I can say whether I concur in the case or not without actually having gone through all the work of doing it from scratch. He further says: I may have a personal moral philosophical view on the subject matter, but I undertake to you that I would put all that aside and decide cases in accordance with binding case law, and even in accordance with the case law that is not binding but seems instructive on the area, without any influence whatsoever from a personal view I may have about that subject matter.

Mr. President, I could go on and on. What is clear from this testimony is Mr. Estrada will be a judge who sets aside his personal convictions, whatever they may be, and follow the law. This is precisely the type of a person we want on the Federal bench.

I yield the floor.

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

Is it not true that the question the Senator asked was whether he could name three cases in the last 40 years and not in all of jurisprudence? The specific question was in the last 3 years, and he said there were cases. But that is a little different than saying in all the jurisprudence.

Could I just ask the question again? All I wanted to make sure of was the Senator said, Please tell us what three cases from the last 40 years of the Supreme Court jurisprudence you are most critical of, and just give me all of the sentences and as to why for each one. Then Mr. Estrada said, Senator, I think there are cases that I have been critical of that I can think of--and then he goes on to say more. Then you asked again on page 210, With all your legal background and legal work, you can't think of three or even one single case that the Supreme Court has decided that you disagree with. And then Mr. Estrada said he wasn't sure he was even in a position to disagree, et cetera. Then on page 211, you then asked this question.

Let me finish this one last question. You don't know a single case in the last 40 years? I will tell you that for me, I think Buckley v. Valeo. But all I am trying to say is, Isn't it true that in the last 40 years, not in all jurisprudence.

On the next page, 40 years.

Will the Senator yield again?

Will the Senator yield for one last question?

That is on the one page, the first page limited to 40 years, and on the second page it was more broad. But it wasn't clear that it meant all of jurisprudence. On the next page, again, 40 years.

That is just my point. All I am saying is in the heat of the moment someone may not be able to conjure up some cases. But be that as it may, he indicated he had some he was critical of. But I think the Supreme Court advocate, not knowing whether he will be confirmed, he probably wasn't about to antagonize anyone on the Court.

Madam President, I am one who really cares for the distinguished Senator from New York. I understand him. I know him very well, and I care a great deal for him. He is just totally wrong.

For instance, Senator Schumer, the distinguished Senator from New York, submitted no written questions to Mr. Estrada. We waited 631 days to have a hearing. They conducted the hearing. The distinguished Senator from New York conducted the hearing. He could have asked any questions he wanted. He is saying he did not get good answers. I think some are interpreting that to mean he--or other Democrats as well--did not get the answers he wanted and he could not get anything on this man.

Following Mr. Estrada's hearing, the distinguished Senator from New York did not submit any questions. That is his right. I think sometimes we do submit too many written questions, and I respect him for not doing that. In fact, only two of my Democratic colleagues submitted any written questions at all to Mr. Estrada, which, of course, he answered immediately.

I find it amusing that the Senator from New York now claims he has questions for Mr. Estrada. If he did, why not write some questions? He certainly had a right to do that. With regard to the hearing testimony, Mr. Estrada repeatedly answered the questions put to him.

Let me give some examples. Mr. Estrada testified he is committed to following the precedents of higher courts faithfully and giving them full force and effect, even if he disagrees and even if he believes the precedents are erroneous. He will follow them. That is mainstream. That is not out of the mainstream. That is mainstream. I would not support anyone who would not answer the question that way.

When asked how he would decide cases presenting an issue with no controlling authority, Mr. Estrada testified: When facing a problem to which there is not a decisive answer from a higher court, my cardinal rule would be to seize it from any place I could get it. He testified this would include related case law and other areas, legislative history and views of academics.

How do you answer better than that? I guess you can using semantics that might be better than that, but I don't think you can do so.

When asked if he sees the legal process as a political game, Mr. Estrada testified: The first duty of a judge is to self-consciously put that aside and look at each case by withholding judgment with an open mind and listening to the parties. So I think that the job of a judge is to put all that aside and, to the best of his human capacity, give a judgment based solely on the arguments on the law.

Mr. Estrada also said: I will follow binding case law in every case. I don't even know that I can say whether I concur in the case or not without actually having gone through the work of doing it from scratch. I may have a personal, moral, philosophical view on the subject matter, but I undertake to you I would put all that aside and decide cases in accordance with binding case law and even in accordance with the case law that is not binding but seems instructive on the area without any influence whatever from any personal view I may have about the subject matter.

That is a pretty good answer. I could go on and on.

What is clear from his testimony is that Mr. Estrada will be a judge who will set aside his personal convictions, whatever they may be, and will follow the law. This is precisely the type of person we want to be a Federal judge.

I have heard the comments about the Federalist Society for years. The Federalist Society does not take positions in the law, but they put on the best seminars and conferences in the country today. And in every conference they have put on that I know of since I am a member of the board of advisers, along with a lot of other very distinguished people, far more important than I am, who have been mainstream thinkers through all the years, they put on these conferences with both sides being fully represented--plenty of Democrats representing the liberal side, to be brutally honest about it.

Now, let me just put one other thing to bed. I am so doggone tired of hearing about this Professor Bender. I ask unanimous consent I be permitted to talk about Professor Bender for a few minutes.

As far as I can tell, Mr. Estrada's primary critic is Paul Bender, who supervised Mr. Estrada at the Clinton Solicitor General's office. I caution my Democratic colleagues that, before they rely too heavily on Mr. Bender to make their case against Mr. Estrada, there are many reasons why Mr. Bender's allegations lack credibility.

According to published reports, Mr. Bender himself was the source of much conflict during his tenure at the Clinton Solicitor General's office.

According to published reports, while Mr. Bender was serving as the principal deputy from 1993 to 1996, about 1/3 of the assistants, including one 16-year career veteran, left the office.

Mr. Bender is an extremist by even the most liberal standards, as his 30-year history of hostility to Federal efforts to regulate pornography illustrates.

Mr. Bender has stated publicly that sexually explicit material should not be banned ``any more than material about war, crime, housing, poetry and music.''

In 1993, Mr. Bender pressed his agenda on pornography while serving as principal deputy Solicitor General, forcing President Clinton and the United States Congress--including 9 of my 10 Democratic colleagues on the Committee--to publicly reject his views.

In a case which became a political embarrassment for the Clinton Administration and the Reno Justice Department, Mr. Bender approved a brief filed with the U.S. Supreme Court in September 1993 which sought to overturn

the conviction of a repeat child pornographer and known pedophile.

The facts of the Knox case are straightforward. Stephen Knox was convicted of receiving and possessing child pornography under the Child Protection Act after the U.S. Customs Service found in Knox's apartment several videotapes of partially-clad girls--some as young as age ten-- wearing bathing suits, leotards, or underwear in sexually seductive poses.

The brief that Mr. Bender approved sought to reverse the previous Bush Administration's policy of liberally interpreting the Child Protection Act to define as child pornography any materials which showed clothed but suggestively posed young children.

In response, on November 3, 1993, the United States Senate voted 100- 0 for a resolution to reject Mr. Bender's position in the case.

Upon learning of the Justice Department's position in the case, and after the Senate's unanimous vote denouncing it, President Clinton wrote to Attorney General Reno in November 1993 to argue that the Department's new interpretation of the Child Protection Act left the child pornography law too narrow and emphasized that he wanted ``the broadest possible protections against child pornography and exploitation.''

In 1994, the House voted 425-3 to condemn the Department's position, finding that Mr. Bender's argument would ``bring back commercial child pornography and lead to a substantial increase of sexual exploitation of children.''

Each of my Democratic colleague on the Committee who were Members of Congress at the time voted for either the Senate or House resolutions.

Bowing to congressional pressure and the rebuke by President Clinton, Attorney General Reno reversed Mr. Bender's position and filed her own brief, which restored the first Bush Administration's interpretation of the Child Protection Act.

My democratic colleagues who once condemned Mr. Bender now appear to rely on his views of Mr. Estrada's qualifications for the federal bench and continue to repeat his description of Mr. Estrada as ``an ideologue.'' I find this illogical, given that their determination in the past that Mr. Bender's views were out of the mainstream.

The Knox case is only one example of Mr. Bender's extremism.

In 1977, he testified before the Committee against tough anti-child pornography laws in a hearing entitled ``Protection of Children Against Sexual Children Against Sexual Exploitation.''

According to Mr. Bender's testimony, he rejected the notion that Congress could prohibit child pornography in order to protect children from harm because ``the conclusion that child pornography causes child abuse involves too much speculation in view of the social situation as we know it, and the fact that it seems that most kids who act in these films probably are doing these acts aside from the films anyway. . . .''

This is the hero they are quoting?

Mr. Bender testified that in order to prohibit child pornography and not run afoul of the First Amendment, ``you would have to have a finding, based on evidence, that in fact, the distribution of this type of film substantially increases the incidence of child abuse before you could possibly support the constitutionality'' of new laws prohibiting child pornography.

He noted that, in his experience, ``the estimates of the size of the pornography problem are usually much, much too large.''

Tell that to the millions of people who see child pornography all over the internet.

Mr. Bender concluded that he ``could not find any discernible harm to children from being exposed to explicit sexual materials as children . . . the harms that we found to children who were exposed to these things were harms that flowed, not from the materials, but from the social settings in which they saw them.''

Mr. Bender's testimony before this Committee exposes his ultra- liberal, pro-pornography views that are difficult to characterize as anything but out of the mainstream.

From 1968 to 1979, Mr. Bender served as the controversial Chief Counsel to the President's Commission on Obscenity and Pornography. Once again, his views were roundly rejected by the Senate.

Mr. Bender was the architect of the commission's report recommending the abolishment of all federal, state, and local laws interfering with the rights of adults to obtain and view any type of pornography, including hard-core pornography.

Dissenting members of the commission described the Bender Report as a ``Magna Carta for the pornographer.''

In 1970, the Senate vote 60-5 for a resolution rejecting the Commission's report and recommendations, with nine additional Senators announcing that if they had been present they would have supported the resolution.

No current member of the Senate supported Mr. Bender's views.

One Democratic Senator noted during the debate on the resolution that:

The Congress might just as well have asked the

pornographers to write the report, although I doubt that even

they would have had the temerity and effrontery to make the

ludicrous recommendations that were made by the Commission.

Mr. Bender's extreme views aren't limited to pornography. In 1998, he argued that convicted murderer James Hamm should be admitted to the Arizona bar. Hamm was convicted in 1974 and sentenced to 25 years to life after pleading guilty to killing a Tucson, AZ man during a drug deal. Mr. Bender, who taught Hamm constitutional law at Arizona State Law School, called him ``a poster boy for rehabilitation in prison'' and argued that he should be admitted to the bar because ``he's not going to steal from clients or file frivolous suits.''

Mr. Bender's views are certainly out of the mainstream of society in general. What's more, he appears to be out of the mainstream even among former members of the Clinton administration--hardly a conservative bunch--when it comes to Mr. Estrada.

Ron Klain, former chief of staff to Vice President Gore, praised Mr. Estrada, saying that he would be able to ``faithfully follow the law.'' Ron Klain was a former member of the Judiciary Committee. He is a wonderful Democrat and, no question, he's a wonderful attorney. We all know him and appreciate him and respect him.

Former Solicitor General Drew Days opined of Mr. Estrada, ``I think he's a superb lawyer.''

Another Clinton era Solicitor General, Seth Waxman, called Mr. Estrada an ``exceptionally well-qualified appellate advocate.'' Seth Waxman was a great Solicitor General. We all respect him. I know him personally. He's a very fine lawyer and a wonderful Democrat. I'm not calling him a wonderful Democrat because he's on our side with Estrada. I am calling him that because that's the way he is. He's a great attorney. I strongly supported him at that time.

Randolph Moss, former Chief of the Justice Department's Office of Legal Counsel, wrote the Committee:

to express my strong support for the nomination of Miguel

Estrada . . . . Although I am Democrat and Miguel and I do

not see eye-to-eye on every issue, I hold Miguel in the

highest regard, and I urge the Committee to give favorable

consideration to his nomination.

These are people who know him forward and backwards, who know what a great lawyer he is. These are mainstream Democrats calling him a mainstream person, we ought to listen to them.

And Robert Litt, Deputy Assistant Attorney General in the Clinton Justice Department, said:

Miguel has an absolutely brilliant mind. He is a superb

analytical lawyer and he's an outstanding oral advocate.

With all of this glowing support from former high-ranking, well respected Clinton administration lawyers, you have to wonder why my Democratic colleagues choose to listen instead to the unsubstantiated criticisms of Mr. Bender, a liberal extremist whose out-of-the- mainstream views have been twice condemned by the U.S. Senate.

There are many reasons to discredit Paul Bender's criticisms of Mr. Estrada. That is why I am taking this time to do it and I will try to finish so the distinguished Senator from Massachusetts can have the floor.

There are many reasons to discredit Paul Bender's criticisms of Mr. Estrada, not the least of which is the fact that he is the lone voice of criticism amid a sea of admiration and praise for Mr. Estrada.

One of Mr. Estrada's most ardent supporters from the Clinton administration is Seth Waxman, who specifically disputed Mr. Bender's criticisms of Mr. Estrada, yet they are being brought up on the floor again. There is a time to quit bringing these types of people to try to hurt Mr. Estrada. Let me read you what Mr. Waxman said in a letter to the Committee dated September 17, 2001.

I understand from published reports that . . . Paul

Bender[] has criticized Mr. Estrada's professional conduct

while in the Solicitor General's Office. I do not share those

criticisms at all. During the time Mr. Estrada and I worked

together, he was a model of professionalism and competence.

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

Estrada made or the analyses he propounded were colored in

any way by his personal views--or indeed that they reflected

any consideration other than the long-term interests of the

United States. I greatly enjoyed working with Miguel,

profited from our interaction, and was genuinely sorry when

he decided to leave the office in favor of private practice.

Much has been said about Mr. Estrada's views regarding

policy and social issues. I have never had a conversation

with Mr. Estrada about either. To my mind--and I believe Mr.

Estrada's as well--those views were entirely irrelevant to

the work we had before us in the Solicitor General's office.

I have great respect both for Mr. Estrada's intellect and for

his integrity.

Now, this is not some right-wing fanatic who is praising Mr. Estrada's intellect and integrity. This is former Clinton Solicitor General Seth Waxman. Can there be any genuine doubt about his sincerity? The answer is no.

Mr. President, I ask unanimous consent that a copy of this letter be printed in the Record.

I will put Seth Waxman up against Paul Bender any day, any time, anywhere. This is not some right-wing fanatic.

I think I will only be a few more minutes.

As I understand it, you were not here at the time and I had to make these points.

I will try to finish as soon as I can. As I understand it, I have the floor.

I will certainly try--

If I might remark, I have been a friend of the Senator from Massachusetts for a long time.

Who has the floor?

I ask for the regular order.

I have been his friend for a long time, and I am going to finish this very quickly in deference to him. But he wasn't here. I did not see him at the door. And I had to make these comments because of some of the comments that were made that I thought were improper, against Mr. Estrada. And I am going to defend Mr. Estrada on the floor when these kinds of comments are made. I think it is the right thing to do. I am certainly not trying to take advantage of the distinguished Senator from Massachusetts, but I exercise my rights as a coequal Senator. Let me just finish this, and I will do it as quickly as I can.

Mr. President, at the request of the Committee, Mr. Estrada provided copies of his annual performance evaluations during this 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 SG's Office, he received the highest possible rating of ``outstanding'' in every job performance category.

The rating official who prepared and signed the performance reviews for 1994 to 1996 was none other than Paul Bender.

Let me read a few excerpts from the evaluations that 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. . .

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 positions to others. . .

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

and others are conducted in a diplomatic, cooperative, and

candid manner.

I might add this doesn't sound like some radical rightwing fanatic some would portray Mr. Estrada as.

He goes on to say:

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. . .

Is constantly sought for advice and counsel. Inspires co-

workers by example.

These comments represent Mr. Bender's contemporaneous evaluation of Mr. Estrada's legal ability, judgment, temperament, and reputation for fairness and integrity.

In short, 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 Mr. Estrada and hurt his chances for confirmation.

The performance evaluations confirm what other Clinton Administration lawyers, and virtually every other lawyer who knows Mr. Estrada, have said about him: That is he a brilliant attorney who will make a fine federal judge.

Having said all that, I apologize to my colleague from Massachusetts for having to make these comments after the comments made by the distinguished Senator from New York. But I think I would have been remiss had I not made those comments to correct the Record to show this man Bender may be a law professor at an institution in the West, but he certainly has not been very fair to Mr. Estrada. And his own reputation would lead one to believe he is not worth listening to with regard to his opinion, which I believe and I think any fair person would believe was nothing but a politically motivated smear.

I yield the floor.

Mr. President, just a few remarks. The distinguished Senator from Massachusetts is very concerned about this court and how judges function on it, as am I. It is a very important court. In fact, next to the Supreme Court, it is the next most important court in the country--no question about it--because the decisions they make affect almost every American in many instances.

In terms of straightforward application of the law, the DC Circuit is one of the best functioning courts in the country. Recent years have seen DC circuit judges agreeing in the overwhelming majority of cases, including ones of great political significance, even when Republicans outnumbered Democrats six to four.

I might also add that the DC Circuit is in the midst of a vacancy crisis unseen in recent memory. Only eight of the court's 12 authorized judgeships currently are filled. In the past 2 years, two of the court's judges have taken senior status.

The DC Circuit has not been down to eight active judges since 1980. It is a crisis situation because it is extremely important. The vacancy crisis is substantially interfering with the DC Circuit's ability to decide cases in a timely fashion. As a result, litigants find themselves waiting longer and longer for the court to resolve their disputes. Because so many DC Circuit Court cases involve constitutional and administrative law, this means that the validity of challenged government policies is likely to remain in legal limbo.

In the 2001-2002 term, the court had to cancel several scheduled days of oral argument. As a result, cases that would have been heard in 2001-2002 will not be heard until September of 2002 at the earliest. For the 2002-2003 term, the court will be able to hear cases on just 96 days and will be able to schedule just 336 cases. Because of the limited number of sitting days, the court's oral argument calendar is already nearly full through March of 2003.

The vacancy crisis is also interfering with the operation of the court's emergency panel which hears emergency cases and various motions. Because only seven judges are now available for emergency panels, each one has to serve 6 weeks of overtime emergency duty on top of the 16 weeks he or she ordinarily serves throughout the year.

The court often has been forced to constitute emergency panels with fewer than the usual complement of three judges.

The chief judge of the DC Circuit, at a recent circuit conference said:

If the court does not have additional judges soon, our

ability to manage our workload in a timely fashion will be

seriously compromised.

He further explained that:

. . . it is clear that the Senate's inaction is coming to

jeopardize the administration of justice in this Circuit.

That is important stuff. It is really important that we put Miguel Estrada on the court.

We have had some comments about a few Latino groups that are known for liberal politics and have been opposed to Miguel Estrada. Let me list a few groups that support him. The following groups are just some that have announced support for him: League of United Latin American Citizens, LULAC, the Nation's oldest and largest Hispanic civil rights organization; U.S. Hispanic Chamber of Commerce; Hispanic National Bar Association; Hispanic Association of Corporate Responsibility; Association for the Advancement of Mexican Americans; MANA, a national Latina organization; Cuban American National Council; U.S.-Mexico Chamber of Commerce; Hispanic Business Roundtable; The Latino Coalition; National Association of Small Disadvantaged Businesses; Mexican American Grocers Association; Phoenix Construction Services; Hispanic Chamber of Commerce of Greater Kansas City; HEBC, Hispanic Engineers Business Corporation; Hispano Chamber of Commerce de Las Cruces; Casa Del Sinaloense; Republican National Hispanic Assembly; Hispanic Engineers Business Corporation; Hispanic Contractors of America; Charo, Community Development Corporation; Cuban American National Foundation.

The League of United Latin American Citizens is the oldest Hispanic civil rights organization. Established in 1927, it has more than 700 councils and more than 120,000 individual members.

The U.S. Hispanic Chamber of Commerce was established in 1979, with a network of more than 200 local chambers across the country, and it advocates on behalf of the 1.8 million Hispanic-owned businesses in the country.

The Hispanics National Bar Association was established in 1972 and has more than 25,000 members, consisting of lawyers and judges.

MANA, a national Latino organization, was established in 1974 to give a voice to the more than 20 million Hispanic women of all backgrounds and professions across the U.S.

The AAMA, Association for the Advancement of Mexican Americans, with over 30 years of service to the community, has been ranked the ninth largest Hispanic nonprofit in the country, providing education, employment and training, health care, and related services to more than 30,000 people annually.

The Cuban American National Council has served the Cuban American community of Florida for the past 23 years, through education, housing, health and human services, and employment and training.

I just thought the record needed to show that Miguel Estrada has tremendous support among Hispanic people. Now, things we've heard in the debate against Miguel have been some of the saddest things I have ever witnessed. It is akin to the lioness eating her cubs--Democratic Latino community leaders turning on one of their own because he doesn't fit their definition of ``Latino.''

Among their concerns is he is a recent immigrant, he hasn't lived in this country long enough to understand the plight of Hispanic Americans, he wasn't poor enough, his family was middle class and he attended private schools, he speaks English too well, he speaks Spanish too well--these are comments made by some of the liberal Latino groups. He is not from Mexico or Puerto Rico, he is from Honduras; he didn't do the right kind of pro bono work; he sought to protect victims of crime, not criminals. Jeepers.

His critics would have you believe that to be Hispanic you have to be poor, attend only inner city schools, work for the public defenders office, and never aspire to work for the Department of Justice, or to clerk for the U.S. Supreme Court. I don't think the vast majority of Hispanic people think that way. I think they are proud of Miguel Estrada, and they ought to be because he is a man who has really made something of his life, and he is still a very young man.

Miguel Estrada is the American dream incarnate. I think this should be celebrated by all Americans, but certainly by Hispanic Americans, and especially Hispanic mothers and fathers who dream of a bright future for their children. Tell those mothers and fathers that in order to be considered Hispanic, your children have to remain poor, forgo a quality education, and give up their dreams of succeeding in the legal profession. That is pure bunk and everybody knows it. But these are some of the arguments that have been made against Miguel Estrada.

Lest anybody think I am just saying these things because I am supporting Miguel Estrada, I have spent most of my Senate career working very closely with the Hispanic community in the United States, getting to know the issues and addressing the community's concerns through legislation. In fact, in 1986, I started the U.S. Senate Republican Conference Task Force on Hispanic Affairs to ensure that the Hispanic community had a strong voice in the Senate. Over my lifetime, I have grown to love the Hispanic culture, their people, and their history. I believe their values and culture have infused and invigorated the American dream. The Latinos I have come to know over the past 26-plus years tell me it is all about heart. It is the ``corazon.'' Frankly, I have come to feel like I personally have a Latino heart beating in my breast. That is how important this community is to me. That is how close I feel to my Hispanic brothers and sisters. I have the credentials to make that case. I happen to know Miguel Estrada. He, too, has ``corazon.''

The Hispanic community leaders I respect and admire have dedicated themselves to ensuring that people such as Miguel have the very opportunity Miguel has used to his advantage. They want Hispanics to succeed. They are not trying to force all Latinos into cookie cutter shapes. They want Hispanics to be as free to find their own way as American citizens. Organizations such as the League of United Latin American Citizens, the oldest Hispanic civil rights organization in the country, and the United States Hispanic Chamber of Commerce have existed for decades. Their mission has been to ensure that the downtrodden, the poor, the recent immigrant, and his heirs have an opportunity to succeed absent discrimination.

Hector Flores, president of LULAC, and George Herrera, the Hispanic Chamber's President, work hard to get more Hispanic kids into Columbia and Harvard, more Latino youth to clerk in at the U.S. Supreme Court, to work at the Department of Justice, and to become partners of a prestigious law firm. Miguel Estrada deserves credit, rather than this constant worry that he might be too conservative, or he might be too conservative than some of these liberal groups would like.

I have a lot more to say, but I will yield the floor at this point.

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

Mr. President, I wish to make a few points. Some of my colleagues are suggesting that we are playing what amounts to the race card on this nominee. That is ludicrous. Personally, I resent it.

Let me make one point clear: No one is suggesting that anyone in the Senate has a bigoted bone in his or her body. No one is suggesting that for a minute. No one is suggesting Mr. Estrada is being opposed because he is a Hispanic. That is just a red herring. It is a shame on anyone who is arguing that carbuncle.

What I have suggested is exactly what Herman Badillo, a former Democratic Congressman, has written publicly. Some liberal, and, yes, Democrats, show increasing intolerance to Hispanics and African Americans who do not subscribe to their left of mainstream ideology. Their intolerance is not because they are Hispanic or African American but because they are Hispanic or African American and not liberals. That is where the intolerance is.

Some people will simply not accept a Hispanic, African American, or even women who do not toe the line of the radical left of special interest groups. We are finding that all over this instance.

Herman Badillo, a former Democratic Congressman, for whom I have always had respect, has written:

Liberals and their special interest groups want to force

these minorities into one monolithic intellectual ghetto

demanding that they be of one mind.

I would think that every minority, whether liberal or conservative, would find such patronizing thought, control, and elitism demeaning and insulting. It amounts to an intellectual glass ceiling for minorities, and that is, to a degree, what is happening here.

In the hearing we held last September and in the follow-up questions, I have not heard one argument against Miguel Estrada--not one, not one valid argument. I have not heard one person make a case that the American Bar Association was wrong when they gave Miguel Estrada a unanimously well-qualified rating, the highest rating that the American Bar Association can give.

I have not heard one person indicate that this man is not of the highest intellect, the highest moral purpose, the highest qualifications, except for Paul Bender, who I think we more than explained away a few minutes ago, and it had to be done because for some reason they keep bringing up this man who has been very unfair and for partisan, cheap political reasons apparently, after having given the highest, most glowing recommendations for Mr. Estrada when he worked for him at the Justice Department.

They try to explain it away: Well, he was not talking about his ideology. Of course, he was. If there had been one indication of bad ideology or too much extreme ideology, I can guarantee you Paul Bender would never have given those glowing performance evaluations.

It is offensive. This man is a law professor in this country and, unfortunately, I hate to say it, but the law professors in this country, as a whole, are extremely to the left, and that is not too far different from many of the political science professors in this country.

I remember I went to one of the major universities a few years ago, and of the 41 members of the faculty, only one claimed to maybe be a moderate. All the rest admitted they were left wing, and yet these are the people teaching our children. That is not bad. They have a right to hear left-wing ideology and more liberal teachers, but I think they also have a right to hear people who are on the other side of the equation who may be right in many ways, not just right ideologically.

To be honest, I get a little tired of this business that we Democrats are the ones who have really done more appointments for Hispanics. Republican Presidents altogether in recent years have appointed 25 Hispanic judges. Sonia Sotomayor of New York was appointed by the first President Bush and was subsequently nominated to the Second Circuit by President Clinton and was confirmed.

The second President Bush has already nominated nine Hispanics, with three more coming up, according to press reports, for a total of 12. His chief counsel in the White House is Hispanic. There is no question he is reaching out and doing a good job. It is one of the things I love about him.

At the current rate of second President Bush, we can expect in 8 years President Bush I think will probably appoint at least 36 to 40 Hispanic judges on his own, more than all the past Republican Presidents put together and more than any single Democratic President.

To try to make the case only Democrats care for Hispanics is just ludicrous. I will say this, my colleagues on the other side are good people. I believe they are sincere in working for minorities as they have done, and I appreciate them personally, but to try to imply we are not I think is hitting below the belt in ways that should not happen on the Senate floor.

In all honesty--and I have heard arguments today that would cause anybody--I mean the bad arguments--the arguments against Miguel Estrada would cause people to vote for him. Miguel Estrada is a fine man. Miguel Estrada has made it to the top of his profession even with a disability. There are not many people who have argued 15 cases before the Supreme Court or who have the unanimously well-qualified American Bar Association rating or who have been the editor in chief of the Harvard Law Review, who have served various Federal judges.

I am a little surprised about some of my colleagues' confusion as to why Mr. Estrada, they claimed, did not address policy questions put to him. It is quite understandable. Would we policymakers want another public official, in this case a judicial nominee, to answer policy questions? A judicial nominee is not applying for a job as a policymaker. He or she is going to be a judge. Judges are not in the business of answering policy questions. It is just that simple.

When one asks the question, What is your view of the first amendment, my gosh, how does one answer that question? It is easy to say: I believe in it. I guess that is what Miguel Estrada could have said. Or if one asks, Are you going to overturn all of the environmental laws of our country, or words to that effect I heard on the floor today, first, it is offensive to ask that kind of question and, second, nobody in his or her right mind as a judicial nominee would want to give an opinion on a broad issue that might foreclose them from sitting on important cases that would come before the court later.

Yes, nominees are told on both sides, whether it is a Clinton judge or George W. Bush judge, that you should not be giving opinions that might involve what you might later have to judge when you get on the bench.

So it is a fine line and it is not an easy thing for witnesses, and frankly especially those who have not served on the Judiciary Committee and have not been through it for a long time. And even if they have, it is not easy.

The important realization in regard to Miguel Estrada is they had every opportunity to ask him any questions they wanted. They were in the majority. They held the committee hearings. I have heard Democrats on the committee say those hearings were conducted fairly and responsibly. Afterwards they had a right to submit any written questions they wanted to submit, and only two Senators submitted them and they were answered. So some of these arguments I have heard today are not arguments at all.

I think it was Walter Mondale who said: Where is the beef? What is it that makes Miguel Estrada unqualified to be on the Circuit Court of Appeals for

the District of Columbia? I do not think there has been even the slightest case made against him.

Then what is it? What is against him? What is against this fine Hispanic man who has made it on his own? I do not see any reason. Maybe we will get some in the next few days, but I do not see any reason. And I sure as heck would not rely on Paul Bender, not after what we all know he has done. He gave glowing performance evaluations when he really had the power--as an honest liberal, which we believed him to be at the time--he gave glowing performance evaluations and then later when this fine person, Miguel Estrada, is offered up as a judicial nominee by the President of the United States, he comes out and says he is an ideologue.

Who are you going to believe? I do not think I would believe Paul Bender on that issue, and I do not think anybody else should, either.

I suggest the absence of a quorum.

Let me say about Mr. Bender, I was criticized by the distinguished Senator from Massachusetts for pointing out the biases of Mr. Bender. I was accused of finding fault with him. Well, what about Mr. Bender dishonestly finding fault with Miguel Estrada? I think I more than made a case that this man has done it for partisan political purposes, and I am going to make that case over and over. If they want to keep bringing up Paul Bender, then I am going to make the case that Paul Bender has done a very bigoted, rotten thing, after having given the greatest performance reviews one could get in the Solicitor General's office.

So who would you believe? I think it is important to point that out and not let anybody get away with that.

I will mention one group because it has been mentioned by my friend-- and he is my friend--the distinguished Senator from Nevada. A review of the Congressional Hispanic Caucus' statement in opposition is most disappointing to me. It was issued in advance of Miguel's hearing. They did not even listen to him, and they issued it. My colleagues in the House, who have argued persuasively for a fair process, decided Miguel was not so entitled. They did not even wait until he testified to condemn him. They pronounced judgment beforehand. But that should not surprise us because the Democrat Congressional Hispanic Caucus is exactly that. It is a Democrat machine. The Republican members of the caucus who were members at one time were forced out because they did not think and act like their Democrat counterparts. There are no Republican members of the Congressional Hispanic Caucus, not one. They were forced out. The Democrat Congressional Hispanic Caucus may oppose Miguel Estrada, but the Republican Congressional Hispanic members, Lincoln Diaz-Balart, Ileana Ros-Lehtinen, Henry Bonilla, Mario Diaz- Balart, all support his confirmation.

Again, I say to my colleagues on the other side, where is the beef? All this speculation about what they think that Miguel Estrada will be on the court, where is the proof? There is not any. In fact, there is proof to the contrary.

So that is one reason why I have been a little bit upset today, and I think I am going to continue to be upset if these types of approaches are taken against this really fine man. We are going to defend him. We are going to defend him as the good person he is.

I ask unanimous consent that the Senate now return to legislative session and that it proceed to a period for morning business.

I am happy to yield to the distinguished Senator.

I add one thing. I believe they are entitled to their opinion but they are not entitled to their own facts. They have to live with the facts that exist.

I don't see a fairness in this process. It has not been fair. It has been quite partisan, especially on Mr. Bender's part.

I have been told by those who know, by my Hispanic friends, that the Congressional Democratic Hispanic Caucus was pretty split. But the majority prevailed. There was a real split over whether they should do this to Miguel Estrada. I personally believe that all these liberal groups persuaded them.

I point out, where are the arguments? To say he is not qualified, when their own gold standard, the American Bar Association, says he is unanimously well qualified flies in the face of any facts. That is just my point. Where are the facts?

I ask unanimous consent that a letter from Henry Bonilla, Lincoln Diaz-Balart, and Ileana Ros-Lehtinen be printed in the Record.

I cannot let that go. If they are saying because he lacks judicial experience he should not be on the court--which is what it appears to me they are saying--they are just condemning almost every nonjudge Hispanic to never have a chance to be a Federal district or circuit court of appeals judge. That is ridiculous. Every Democrat President I have served with--President Carter and President Clinton-- have appointed a wide variety of people who never served on the bench but who are highly qualified and are doing a good job as judges now.

It may be helpful to have some judicial experience, but not having judicial experience does not mean you cannot serve. If that were the case, some of the greatest judges in the history of the world would never have had a chance.

But if you interpret what they say, that means that any Hispanic who has not had judicial experience really should not be supported. That is ridiculous. That is caving in to the liberal special interest groups in this town with which they continually spend time, and is to the detriment of the Hispanic community. I say that as a chairman of the Republican senatorial Hispanic task force who has worked for the last 13 years to try to solve these problems.

I don't take second seat to anyone with regard to my love for the Hispanic community or my work on their behalf.

We have had enough debate. I ask unanimous consent that the Senate return to legislative session.

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

I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m. Thursday, February 6. I further ask unanimous consent that on Thursday, following the prayer and the 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.

I can live with that. But the letter speaks for itself and shows a lack of support for a Hispanic person who is fully qualified.

For the information of Senators, tomorrow the Senate will resume debate on the nomination of Miguel Estrada. We have had a productive debate on the Estrada nomination this afternoon, but it is my hope that we will be able to proceed to a final vote on the nomination soon. As announced earlier today, there will be no rollcall votes tomorrow, and it is anticipated that the Senate will adjourn around 12 noon. Therefore, Senators who wish to speak on the Estrada nomination during tomorrow's session are encouraged to make arrangements to do so early in the day.

That is my understanding.

That is my understanding.

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

Mr. President, it is with great pleasure that I rise today to submit a resolution to designate February 11, 2003, as ``National Inventors' Day,'' together with my colleague, the Ranking Minority Member of the Judiciary Committee, Senator Leahy. The Ranking Minority Member and I have worked together on many issues related to intellectual property, and I am pleased to be joined by him in offering this resolution designating the anniversary of perhaps America's greatest inventor, Thomas Edison, as a day to honor all of America's inventors.

Doing so is particularly fitting this year. Exactly one hundred years ago this year, on the shores of Kitty Hawk, NC, Orville and Wilbur Wright achieved what mankind had dreamed of for centuries: the first heavier-than-air, machine-powered flight in the world. While that flight covered only 120 feet and lasted only 12 seconds, it launched a revolution in air travel that continues to this day.

Throughout history, inventions have helped people discover new worlds, build communities, and cure sickness and disease. From the Wright Brothers to Philo Farnsworth, from Thomas Edison to today's high tech entrepreneurs, America's inventors have immeasurably enriched our lives. America's technological prowess and high standard of living all stems from the creativity, determination, and entrepreneurial drive of men and women who turned dreams into realities.

It is no coincidence that the United States is the most powerful technological force in history. Nor is it a coincidence that creative people from all over the world flock to our shores to pursue their dreams.

Our Founding Fathers understood that an agrarian Nation would never grow to be an economic and technological giant unless there was an incentive for inventors to create and for other inventors to study and improve upon the creations. From this foresight, enshrined in Article 1 section 8 of our Constitution, came the American system of intellectual property protection, which give inventors and authors the ability to enjoy, for a limited period of time, the exclusive economic benefits of their genius.

One of the most significant results of the Founders' foresight was the creation of the U.S. patent system, which today has issued over six million patents--from the light bulb to life-saving pharmaceuticals. What the patent system really comes down to is what President Lincoln, a patent holder himself, noted many years ago: it ``adds the fuel of interest to the spark of genius.''

Today intellectual property-based enterprises, patents, trademarks, and copyrights, represent the largest single sector of the American economy--almost 5 percent of the Gross Domestic Product--and employ over 4 million Americans. More than 50 percent of U.S. exports now depend on some form of IP protection.

America is forever indebted to our inventors. So this year, on the centennial of mankind's first flight, I hope my colleagues will join me in recognizing February 11 as ``National Inventors' Day.''

I ask unanimous consent that when the Senate receives H.J. Res. 18, the continuing resolution, if it is the same text as the resolution I send to the desk, it be read the third time and passed, that the motion to reconsider be laid upon the table, and any statements relating to it be printed in the Record.

Madam President, I thank my colleague from Hawaii for allowing me to proceed ahead of him. I certainly appreciate his kindness.

I rise today to salute the seven astronauts aboard the Space Shuttle Columbia who lost their lives as they endeavored to conquer the vast unknown of space.

I would like to take a moment to praise the work of Commander Rick Husband, Pilot William McCool, Mission Specialist Kalpana Chawla, Mission Specialist David Brown, Mission Specialist Michael Anderson, Mission Specialist Laurel Clark, and Payload Specialist Ilan Ramon.

These great heroes will always be remembered for their willingness to carry the hopes and aspirations of a country with them into space, even though they made the ultimate sacrifice for their efforts.

I know the months and years ahead will be filled with debate over many issues surrounding this tragedy.

Certainly, we will hear questions asked about the ongoing funding of NASA and the safety concerns surrounding such adventurous exploration.

The Nation will need answers to these questions.

Hearings should be held. Investigations should be conducted. But in the final analysis, let us not forget how valuable the space program is to our country and to the American spirit.

I would like to ask my colleagues, administration officials, and NASA to proceed with their investigations in a prudent manner and return our astronauts to space as soon as possible.

I would like to see a renewed focus for NASA, a focus that would rival President Kennedy's challenge to be the first Nation to send a man to the moon.

This can only be done by pressing forward with bold new space initiatives and not by prolonged critiquing and endless investigations.

Just the mention of the word ``space'' conveys so many special meanings to each of us.

Thoughts of heroes such as Buzz Aldrin and Neil Armstrong come immediately to mind. In many ways, our Nation is defined by the adventurous space program which has been a part of our national heritage for over 40 years.

Terms such as courage, bravery, and pioneer are not afforded to those who take no risk and who sit on the sidelines and watch. No, those terms are reserved for people and nations willing to take risks in order to learn and advance the knowledge of all mankind. As President Reagan said, in the face of the loss of the Space Shuttle Challenger, ``The future doesn't belong to the fainthearted; it belongs to the brave.'' The seven astronauts who piloted the Space Shuttle Columbia heard that call and will forever be remembered for their bravery.

No American relishes the loss of life and the sacrifice of those courageous astronauts. But every American is thankful for the willingness of these astronauts to press forward--even when the risks are so great--in order to provide more knowledge and nurture a new generation of scientists who are inspired to look at the universe differently every time astronauts venture into the darkness of space.

The space program is so vitally important to our Nation's science education. Every year, bright, energetic, wide-eyed students enter the Nation's school systems and are motivated by the new scientific findings in our universe. They grow to love science, a love that will stay with them throughout their lives and continue to propel our Nation's scientific discoveries into the future.

We cannot let that love die. It is our duty to push the envelope, to explore the outer reaches of our universe. Innovation and determination shape our scientific future and the space program is such a crucial part of that.

My home State of Utah has long been actively engaged in America's space program. Our own Richfield, UT native, former Senator, and my friend, Astronaut Jake Garn, left Cape Canaveral on the Space Shuttle Discovery in April 1985 and return to earth over 6 days later after having orbited the earth 110 times.

As well, ATK, a leading-edge aerospace company based in Utah provides state-of-the-art solid rocket motors which makes the idea of people being able to fly through space a reality.

Utah's contribution to the success of our Nation's space program goes on and on, but let it suffice to say, that the entire State of Utah mourns for the loss of these brave astronauts. We pray for their families and those they have left behind.

Now is not the time to take a huge step backward in our space program and send the message to the next generation of Americans that when things get hard or when plans go wrong, we should give up . . . give up and let our dreams and aspirations fall victim to a task that appears hopelessly difficult.

No, now is not that time.

Now is the time when we need to stare adversity in the face. Learn from past mistakes. Refocus our vision on what we can accomplish by working together toward a unified goal. Now is

the time to raise a new generation of heroes and teach them how to overcome difficult circumstances.

Yes, America will continue its space program. We will be more than mere spectators of the universe. We will be active participants and we will train a new generation of explorers who will build on the foundation laid by these great astronauts abroad the Space Shuttle Columbia. Who knows what this new generation may discover? With the rapid pace of technological advances and the courage to conquer the unknown, it is sure to be something great.

Elaine and I send our very strongest condolences to the families of the astronauts who have lost their lives in the service of their country. We will pray for those families and pray that somehow they will be comforted in this hour of need.

I personally know what it is like to lose a member of the family while serving our country. My older brother was killed in the Second World War at the Ploesti oil raid that helped to knock out Hitler's oil supply. It was a very difficult thing for our family, and it still is. In the last month, I have been reading the letters he wrote to my mother and I have gotten to know him better than I ever thought I would--as a person who gave his life for us and did it willingly so that we might be free.

These astronauts have given their lives for us and they have given them willingly, helping us to be free, to have a better society, to explore in this day and age, much like Lewis and Clark did in their day and age, the outreaches of the universe and help us to gain scientifically every step of the way. I am grateful to them and their families and I pray for them.

I yield the floor.

Mr. President, I rise today to pay special tribute to a wonderful Utah doctor, F. Marian Bishop, Ph.D., M.S.P.H, who has dedicated her life to the practice of family medicine. Her shining example of service and dedication to the health and well being of people across America is truly extraordinary.

Dr. Bishop was recently named the recipient of the John G. Walsh Award by the American Academy of Family Physicians, AFP, because of her dedicated, long-term commitment to furthering the development of family practice. This award is one of the highest honors presented by the Academy.

In addition, Dr. Bishop has also received the United States Public Health Service Director's Award from the National Health Service Corps in 1990; the 2001 Women Who Make A Difference Award from the International Women's Forum; and in 2000 the Society of Teachers of Family Medicine, STFM, Foundation created the F. Marian Bishop Scholars program to benefit future students.

Dr. Bishop is currently a professor and chairman emeritus of the Department of Family and Preventative Medicine at the University of Utah. The knowledge and enthusiasm she has shared with countless students have been felt by many and have helped provide the impetus for many future family practitioners.

Dr. Bishop is a tireless advocate for the development of family practice and has served in many positions to further promote this wonderful field of medicine. She has assumed leadership positions for the Department of Health and

Human Services in several areas including: peer review; Area Health Education Centers; title VII health professions; and the External Advisory Panel for Primary Care. She was instrumental in developing the Committee for the Departments of Family Medicine Grant Reviews and chaired the National Advisory Council on Health Professions Education. She is currently serving as the vice president for the Council on Graduate Medical Education for the Health Resources and Services Administration.

She has also served in many capacities in Utah State government including as: a member of the Utah Task Force on Rural Health Policy Development, chairwoman of the Rural Medical Financial Assistance Committee, and a member of the Preventive Health Care Services Technical Advisory Group for the Utah Health Policy Commission.

I am also particularly grateful for the service Dr. Bishop has given me as a member of my Utah Women's Advisory Committee. She has been a valuable asset on this committee providing me with input and excellent ideas concerning women's health issues.

Dr. Bishop can also add author to her long list of accomplishments. She has published several important articles in such prestigious publications as: the British Journal of Medical Education, the Journal of Practical Nursing, the Journal of Community Health, and the Textbook of Family Practice. She is currently serving as the chairwoman for the American Journal of Preventive Medicine.

Sadly, Dr. Bishop is now battling her own personal health crisis. I sincerely hope she is able to draw upon the strength and courage she imparted to the many people she touched throughout her medical and teaching career to ease her own pain and suffering. The service she has so unselfishly given to students, patients, and the medical community is exemplary and the contributions she made to the field of family practice will be felt for years to come. I am grateful for the opportunity today to honor this wonderful doctor, mother, and woman.

Mr. President, today I rise to introduce, along with my colleagues Senators Grassley and Kohl, S. 274, the ``Class Action Fairness Act of 2003.''

Over the past decade, it has become clear that abuses of the class action system have reached epidemic levels. In recent years, it has become equally clear that the ultimate victims of this epidemic are poorly-represented class members and individual consumers throughout the Nation. The Class Action Fairness Act of 2003 represents a modest, measured effort to remedy the plague of abuses, inconsistencies, and inefficiencies that infest our current system of class action litigation.

It is essential that we address the abuses that are running rampant in our current class action litigation system. Frequently, plaintiff class members are not adequately informed of their rights or of the terms and practical implications of a proposed settlement. Too often judges approve settlements that primarily benefit the class counsel, rather than the class members. There are numerous examples of settlements where class members receive little or nothing, while attorneys receive millions of dollars in fees. Multiple class

action suits asserting the same claims on behalf of the same plaintiffs are routinely filed in different State courts, causing judicial inefficiencies and encouraging collusive settlement behavior. And State courts are more frequently certifying national classes leading to rulings that infringe upon or conflict with the established laws and policies of other states.

Despite the mountains of evidence demonstrating the drastically increasing harms caused by class action abuses, I am sure that some will attempt to deny the existence of any problem at all. Others will try to confuse the issue with spurious claims that proposed reforms would somehow disadvantage victims with legitimate claims or further worsen class action abuses. Others may even contend that past legislative reforms have contributed to recent financial debacles and that the proposed reforms will encourage more. Such claims are nothing more than red herrings intended to divert the debate from the real issues.

In this regard let me emphasize a few points regarding S. 274. First, this bill does not seek to eliminate State court class action litigation. Class action suits brought in State courts have proven in many contexts to be an effective and desirable tool for protecting civil and consumer rights. Nor do the reforms we will discuss today in any way diminish the rights or practical ability of victims to band together to pursue their claims against large corporations. In fact, we have included several consumer protection provisions in our legislation that I feel strongly will substantially improve plaintiffs' chances of achieving a fair result in any settlement proposal.

There are three key components to S. 274. First, the bill implements consumer protections against abusive settlements by: No. 1. requiring simplified notices that explain to class members the terms of proposed class action settlements and their rights with respect to the proposed settlement in ``plain English''; No. 2. enhancing judicial scrutiny of coupon settlements; No. 3. providing a standard for judicial approval of settlements that would result in a net monetary loss to plaintiffs; No. 4. prohibiting ``bounties'' to class representatives; and No. 5. prohibiting settlements that favor class members based upon geographic proximity to the courthouse.

Second, the bill requires that notice of class action settlements be sent to appropriate State and Federal authorities to provide them with sufficient information to determine whether the settlement is in the best interest of the citizens they represent.

Finally, the bill amends the diversity-of-citizenship jurisdiction statute to allow large interstate class actions to be adjudicated in Federal court by granting jurisdiction in class actions where there is ``minimal diversity'' and the aggregate amount in controversy among all class members exceeds $2 million.

Although some critics have argued that this amendment to diversity jurisdiction somehow violates the principles of federalism or is inconsistent with the Constitution, I fully agree with Mr. Walter Dellinger, former Solicitor General, who testified at our Judiciary Committee hearing last fall, that it is ``difficult to understand any objection to the goal of bringing to the federal court cases of genuine national importance that fall clearly within the jurisdiction conferred on those courts by Article III of the Constitution.''

Last, I would like to express my appreciation to the many individuals who have shared with me the details of their experiences with class action litigation. In particular, I am grateful to those victims of various abuses of the current system who have come forward and told their stories in the hope that something positive might come out of their terrible experiences.

Among those who have come forward is Irene Taylor of Tyler, TX, who was bilked out of approximately $20,000 in a telemarketing scam that defrauded senior citizens out of more than $200 million. In a class action brought in Madison County, IL, the attorneys purportedly representing Mrs. Taylor negotiated a proposed settlement which will exclude her from any recovery whatsoever.

Martha Preston of Baraboo, WI, provides another excellent example. Ms. Preston was involved in the famous BancBoston case, brought in Alabama State court, which involved the bank's failure to post interest to mortgage escrow accounts in a prompt manner. Although Ms. Preston did receive a settlement of about $4, approximately $95 was deducted from her account to help pay the class counsel's legal fees of $8.5 million. Notably, Ms. Preston testified before my committee 5 years ago asking us to stop these abusive class action lawsuits, but it appears that, at least thus far, her plea has not been heard.

I urge my colleagues to support this modest effort to reform the abuses in the current system, abuses that are actually hurting those the system is supposed to help.

Mr. President, today I rise to introduce, along with my colleagues Senators Grassley and Kohl, S. 274, the ``Class Action Fairness Act of 2003.''

Over the past decade, it has become clear that abuses of the class action system have reached epidemic levels. In recent years, it has become equally clear that the ultimate victims of this epidemic are poorly-represented class members and individual consumers throughout the Nation. The Class Action Fairness Act of 2003 represents a modest, measured effort to remedy the plague of abuses, inconsistencies, and inefficiencies that infest our current system of class action litigation.

It is essential that we address the abuses that are running rampant in our current class action litigation system. Frequently, plaintiff class members are not adequately informed of their rights or of the terms and practical implications of a proposed settlement. Too often judges approve settlements that primarily benefit the class counsel, rather than the class members. There are numerous examples of settlements where class members receive little or nothing, while attorneys receive millions of dollars in fees. Multiple class

action suits asserting the same claims on behalf of the same plaintiffs are routinely filed in different State courts, causing judicial inefficiencies and encouraging collusive settlement behavior. And State courts are more frequently certifying national classes leading to rulings that infringe upon or conflict with the established laws and policies of other states.

Despite the mountains of evidence demonstrating the drastically increasing harms caused by class action abuses, I am sure that some will attempt to deny the existence of any problem at all. Others will try to confuse the issue with spurious claims that proposed reforms would somehow disadvantage victims with legitimate claims or further worsen class action abuses. Others may even contend that past legislative reforms have contributed to recent financial debacles and that the proposed reforms will encourage more. Such claims are nothing more than red herrings intended to divert the debate from the real issues.

In this regard let me emphasize a few points regarding S. 274. First, this bill does not seek to eliminate State court class action litigation. Class action suits brought in State courts have proven in many contexts to be an effective and desirable tool for protecting civil and consumer rights. Nor do the reforms we will discuss today in any way diminish the rights or practical ability of victims to band together to pursue their claims against large corporations. In fact, we have included several consumer protection provisions in our legislation that I feel strongly will substantially improve plaintiffs' chances of achieving a fair result in any settlement proposal.

There are three key components to S. 274. First, the bill implements consumer protections against abusive settlements by: No. 1. requiring simplified notices that explain to class members the terms of proposed class action settlements and their rights with respect to the proposed settlement in ``plain English''; No. 2. enhancing judicial scrutiny of coupon settlements; No. 3. providing a standard for judicial approval of settlements that would result in a net monetary loss to plaintiffs; No. 4. prohibiting ``bounties'' to class representatives; and No. 5. prohibiting settlements that favor class members based upon geographic proximity to the courthouse.

Second, the bill requires that notice of class action settlements be sent to appropriate State and Federal authorities to provide them with sufficient information to determine whether the settlement is in the best interest of the citizens they represent.

Finally, the bill amends the diversity-of-citizenship jurisdiction statute to allow large interstate class actions to be adjudicated in Federal court by granting jurisdiction in class actions where there is ``minimal diversity'' and the aggregate amount in controversy among all class members exceeds $2 million.

Although some critics have argued that this amendment to diversity jurisdiction somehow violates the principles of federalism or is inconsistent with the Constitution, I fully agree with Mr. Walter Dellinger, former Solicitor General, who testified at our Judiciary Committee hearing last fall, that it is ``difficult to understand any objection to the goal of bringing to the federal court cases of genuine national importance that fall clearly within the jurisdiction conferred on those courts by Article III of the Constitution.''

Last, I would like to express my appreciation to the many individuals who have shared with me the details of their experiences with class action litigation. In particular, I am grateful to those victims of various abuses of the current system who have come forward and told their stories in the hope that something positive might come out of their terrible experiences.

Among those who have come forward is Irene Taylor of Tyler, TX, who was bilked out of approximately $20,000 in a telemarketing scam that defrauded senior citizens out of more than $200 million. In a class action brought in Madison County, IL, the attorneys purportedly representing Mrs. Taylor negotiated a proposed settlement which will exclude her from any recovery whatsoever.

Martha Preston of Baraboo, WI, provides another excellent example. Ms. Preston was involved in the famous BancBoston case, brought in Alabama State court, which involved the bank's failure to post interest to mortgage escrow accounts in a prompt manner. Although Ms. Preston did receive a settlement of about $4, approximately $95 was deducted from her account to help pay the class counsel's legal fees of $8.5 million. Notably, Ms. Preston testified before my committee 5 years ago asking us to stop these abusive class action lawsuits, but it appears that, at least thus far, her plea has not been heard.

I urge my colleagues to support this modest effort to reform the abuses in the current system, abuses that are actually hurting those the system is supposed to help.

Mr. President, today I rise along with senators Campbell, Leahy, and others to introduce the ``Law Enforcement Officers Safety Act of 2003''. This bill, which permits qualified current and retired law enforcement officers to carry a concealed firearm in any jurisdiction, will help protect the American public, our Nation's officers, and their families. I would note that this bill has the overwhelming support of the Fraternal Order of Police and other law enforcement associations.

This legislation allows qualified law enforcement officers and retired officers to carry, with appropriate identification, a concealed firearm that has been shipped or transported in interstate or foreign commerce regardless of State or local laws. Importantly, this legislation does not supersede any State law that permits private persons to prohibit or restrict the possession of firearms on any State or local government properties, installations, buildings, bases or parks. Additionally, this bill clearly defines what is meant by ``qualified law enforcement officer'' and ``qualified retired, or former, law enforcement officer'' to ensure that those individuals permitted to carry concealed firearms are highly trained professionals.

Such legislation not only will provide law enforcement officers with a legal means to protect themselves and their families when they travel interstate, it will also enhance the security of the American public. By enabling qualified active duty and retired law enforcement officers to carry firearms, even if

off-duty, more trained law enforcement officers will be on the street to enforce the law and to respond to crises.

I urge my colleagues to vote in favor of the passage of this important piece of legislation to provide that extra layer of protection to current and retired law enforcement officers, their families, and the public.

Mr. President, today I rise along with senators Campbell, Leahy, and others to introduce the ``Law Enforcement Officers Safety Act of 2003''. This bill, which permits qualified current and retired law enforcement officers to carry a concealed firearm in any jurisdiction, will help protect the American public, our Nation's officers, and their families. I would note that this bill has the overwhelming support of the Fraternal Order of Police and other law enforcement associations.

This legislation allows qualified law enforcement officers and retired officers to carry, with appropriate identification, a concealed firearm that has been shipped or transported in interstate or foreign commerce regardless of State or local laws. Importantly, this legislation does not supersede any State law that permits private persons to prohibit or restrict the possession of firearms on any State or local government properties, installations, buildings, bases or parks. Additionally, this bill clearly defines what is meant by ``qualified law enforcement officer'' and ``qualified retired, or former, law enforcement officer'' to ensure that those individuals permitted to carry concealed firearms are highly trained professionals.

Such legislation not only will provide law enforcement officers with a legal means to protect themselves and their families when they travel interstate, it will also enhance the security of the American public. By enabling qualified active duty and retired law enforcement officers to carry firearms, even if

off-duty, more trained law enforcement officers will be on the street to enforce the law and to respond to crises.

I urge my colleagues to vote in favor of the passage of this important piece of legislation to provide that extra layer of protection to current and retired law enforcement officers, their families, and the public.

Mr. President, I rise to address the serious matter of pay inequity in the Federal judiciary.

As things stand now, nearly every Federal employee will receive a cost of living adjustment during 2003--every employee, that is, except Federal judges. This is because of a legislative prescription that requires Congress to authorize raises in the salaries of Federal judges. Although this COLA of roughly 3 percent may seem small and inconsequential, it makes a significant difference in light of the fact that Federal judges earn far less than many, if not most, of their counterparts in the private sector.

In his 2002 year-end report, Supreme Court Chief Justice William Rehnquist highlighted his concern that salaries of Federal judges have not kept pace with those of lawyers in private firms and in business. He observed, ``Inadequate compensation seriously compromises the judicial independence fostered by life tenure. That low salaries might force judges to return to the private sector rather than stay on the bench risks affecting judicial performance--instead of serving for life, those judges would serve the terms their finances would allow, and they would worry about what awaits them when they return to the private sector.'' The Chief Rustic lamented, ``Unless the 108th Congress acts, judges will not even receive the cost-of-living adjustment that nearly every other Federal employee will receive during 2003.'' He concluded by urging Congress and the President to ``take up this issue early in the new year.''

Today, Mr. President, the Senate is passing a bill that will allow Federal judges to receive the COLA that other Federal employees are already slated to receive this year. Although the larger issue of minimizing the gap between Federal judicial salaries and private sector salaries still remains, this small step will resolve the salary inequity between Federal judges and other Federal employees. I thank my colleagues for joining Senator Leahy and me in supporting this bipartisan measure.