Mr. President, I want to thank my dear friend, the senior Senator from Nevada, for his comments. We have served together for a long time, as he said, on the Appropriations Committee. I have been in the Senate with several hundred Senators.…
Mr. President, I want to thank my dear friend, the senior Senator from Nevada, for his comments. We have served together for a long time, as he said, on the Appropriations Committee. I have been in the Senate with several hundred Senators. I have been fortunate. Like the Senator from Nevada, I never knew I was going to be a Senator. I grew up in Montpelier, the State's capital. It had only 8,500 people. I lived almost diagonally across from the Statehouse.
I remember as a child, probably about 4 years old, riding my tricycle through the halls of the Statehouse delivering newspapers to the Governor, playing on the Statehouse lawn, sliding in the snow. Suddenly one day, at the age of 34, I was being sworn in as a Senator and I think what a thrill it was. I was the junior most member of the Senate, but then I realized the best part of it is the people you get to know and serve with.
Nobody has been more of a help, a mentor, a conscience for me, than the Senator from Nevada. Every morning when I come to work I look at the Capitol and I think this is a nation of 260 to 270 million Americans, so diverse, and there are only 100 of us who get a chance to serve at any given time. Only 100 Americans get a chance to serve and represent the whole country. Out of that 100, only 4 get to be the leaders of their party, the Republican leader and the deputy Republican leader, the Democratic leader, the deputy Democratic leader.
I have served with a number of them, but I would say the Senator from Nevada, Senator Harry Reid, is one of the most extraordinary leaders the Senate has ever had. He has kept the old-fashioned virtue that was drilled into me by the first leader I knew, Senator Mike Mansfield. Senator Mansfield said, whatever you do--and this is far more important than how you vote--always keep your word.
No Senator has a higher reputation for integrity and truth-telling than the Senator from Nevada, and that means a lot to me. I do appreciate the way he has watched the floor and brought dignity and respect to this debate. I admire him for it because, just as with the distinguished Presiding Officer, we all bring different experiences to the Senate. We all have different reasons for being here and we all have different life experiences.
The distinguished Presiding Officer was a war hero. After serving, he began a business. He gained great experience in that field in his home State of Nebraska, and then he came to the Senate.
The distinguished Senator from Nevada, of whom I was speaking, had varied experiences before coming to the Senate. He was a trial lawyer, a boxer, and a state official in Nevada. He even served as a Capitol police officer back in the days when many times they were chosen by the Senators of the congressional delegation from the particular State. All of these experiences of his he has brought to the Senate.
Many times I have asked the distinguished Presiding Officer questions on military matters, not having had the experience of serving in the military. Considering how close he came to ending his life in Vietnam, the country has benefited by the fact he was there. I know as a result of his life being spared, I had the opportunity to gain another close and dear friend in the Senate.
There are a few observations I would like to make before I go into the discussion I had earlier with both of the Senators from Utah about the administration's refusal to allow Senators to examine Mr. Estrada's writings--which, incidentally, is an unfortunate situation because Mr. Estrada told me and other members of the committee on both sides of the aisle he is perfectly willing to share and discuss his writings. He personally had no objection to his writings, his memos, his suggestions in the Department of Justice and elsewhere to be made public. He would have no objection to answering questions based upon what he wrote but, as he said, and he was very honest about this, the administration had told him he could not.
Mr. Estrada said the administration told him he could not, which in itself is too bad because when this matter has come up many times before in history in connection with nominations for lifetime appointments as well as for short-term appointments, past administrations, Democratic and Republican, have allowed memoranda by Department of Justice attorneys to be examined by the Senate Judiciary Committee.
I make this point speaking as one Senator, if Mr. Estrada were forthright and responsive to questions of Senators and if the administration sent these writings up and allowed Mr. Estrada to discuss them and answer questions about them--something Mr. Estrada himself has said he is perfectly willing to do--I may not like the candid and responsive answers, I may disagree with what is in the writings, but at that point I feel the questions have been answered, assuming he is forthcoming and we have the material, so then let us go ahead and vote for him or against him. But when my colleagues are going to vote for somebody on one of the most important courts in the country, at least we should do it knowing what is in the record and having meaningful, not evasive, answers to questions about his judicial philosophy, his views, and his feelings about legal decisions.
Republican Presidents and Democratic Presidents have faced this question before. President Reagan, President Carter, and other Presidents did, and the material was forthcoming and the Senate then went on to make a decision based on what they knew about the nominees. This is the best way to do it.
Before I discuss this precedent in more detail, I would like to note that this morning we had our third hearing in 2 weeks on the Judiciary Committee. This included the 16th nominee to receive a hearing, the fifth nominee to a circuit court in just two weeks. That is interesting because when a Democrat was President, the same Judiciary Committee chairman often took until the summer before having a hearing for these many nominees, especially this many circuit court nominees, many of whom have controversial or divisive records.
I see the distinguished senior Senator from Utah on the floor. When he was chairman under a Democratic President, when the Democrat was making the nominations to the courts, it often took until the summer to have hearings for this many nominees, especially circuit court nominees. We are talking about having hearings for five circuit court nominee hearings by early February.
In 1996, the Republican chairman did not hold hearings for five circuit court nominees all year. Of course, it was a Democrat President. Actually, no circuit court nominees were confirmed that year, and none of the four who were allowed a hearing were confirmed during that entire year.
In 1997, when President Clinton had been in office now on his fifth year, we did not reach this number if circuit court nominees getting a hearing until September. Now the Committee has done it in just 2 weeks. It is interesting because there have been questions of partisanship. Now the Senate Judiciary Committee does in 2 weeks with a Republican President, with the same chairman, what took 9 months--more than 35 weeks--to do with a Democratic President.
I think that sort of demonstrates what the partisanship is. In fact, there is a nomination hearing being held this morning for a seat that has been vacant since 1999. One part of me says good, it is about time we have had a hearing for that vacancy, but President Clinton nominated two people to that vacancy. This was to the Court of Appeals for the Tenth Circuit. One is the Honorable James Lyons who was blocked for partisan political reasons. There was an anonymous hold on the Republican side.
I mention this because also coincidentally we hear a lot about somebody getting the highest rating from the American Bar Association, actually from a screening committee which is now headed by a close friend and supporter of President Bush's. This nominee of President Clinton's had the highest rating possible. He could have easily been confirmed, but anonymous holds, not open holds but anonymous holds, on the Republican side stopped it. He was not even allowed a hearing or a vote in the committee. So the President nominated a second person, Christine Arguello, a Latina nominee. She had bipartisan support. She was supported by both her home State Senators. One would think she would get at least a hearing or a vote in the committee. No. A number of people were nominated after her and were given hearings and votes, but this Hispanic American woman was not. Under Republican control of the Senate, Professor Arguello was not even given a hearing, to say nothing about a vote.
Regarding the document request related to Mr. Estrada's nomination, he has told both Senator Hatch and myself, as well as several Members of the Senate, that he is perfectly willing to show us his writings and respond to them and answer questions about them, but he has been told by the administration that he cannot; the administration, however, would review those writings. They are the only ones who know whether this direct evidence of his views, the interpretation of law, is accurate or misleading--they are the only ones who have access to it and they say, basically: Trust us. In carrying out your constitutional duties of advise and consent: Trust us. Give someone a lifetime appointment of one of the most important posts in the country: Trust us.
I will yield on the basis that I will be allowed to retain the floor, to which I know the Senator from Utah does not object, and I want to continue then. Because of my deep respect and quarter century of friendship with the distinguished Senator from Utah, I yield.
Retaining my right to the floor, I ask the Senator from Utah to hear my speech because it may be that whoever he talked to at the White House may be new or may not be aware of this.
Here are some of the memos past White Houses have provided us. They are still in the files here. They are pretty extensive. Included in this large volume are some of the same memos written by attorneys to then-Solicitor General Bork, as well as memos related to the nominations of Justice William Rehnquist to be Chief Justice, of Bradford Reynolds, the Reagan Associate Attorney General for Civil Rights to be Associate Attorney General and other nominees to short- term or lifetime appointments.
I really do want to finish my speech, and I think that then the Senator from Utah will understand what is going on--with Mr. Reynolds, Mr. Benjamin Civiletti, in his nomination to become Attorney General, and other past nominees. I will not put them in the Record now, but if my friend from Utah will bear with me, he will see what happens on this, and I will lay out the case where this has been done over and over again in the past.
This is a case where the administration asks for the Senate to advise and consent to a lifetime appointment, something that will go on well after most of us have left the Senate, but the administration does not want to provide information and memoranda relevant to this nomination. The administration has done this in both judicial and executive nominations. Even this very administration has done so in another nomination for a short-term position, but it has refused to do so in the case of Mr. Estrada.
I wonder--and of course if the Senator wishes me to yield, I will--I wonder if he would give me the courtesy of hearing some of these points.
I do have evidence of exactly that. If the Senator would let me finish my speech, he would understand that.
The current White House has disclosed to the Senate legal memorandum writing by an attorney of President George H.W. Bush's White House Counsel's Office in connection with the nomination of Jeffrey Holmstead to be Assistant Administrator of the Environmental Protection Agency, and, interestingly enough, this was a position of far less duration and importance than a lifetime judicial appointment.
In Mr. Estrada's case, the White House will not provide any of the information sought. That bothers me. I wonder what is in there. They seem to be saying: We have looked at it; trust us, it is OK. Well, I remember the made-up Russian proverb that President Reagan speech writers came up with: Trust, but verify. Even though there was no such proverb, I thought it was a great saying, so I will use the same one.
The administration's claim that such a request is unprecedented, as the distinguished Senator from Utah suggested, is actually wrong within the administration's own knowledge, even their own history. It is also wrong with respect to prior administrations and the confirmation history of the Judiciary Committee.
What is happening is the White House seems willing to rewrite history for this case. I suspect if that is to be allowed, then the next difficult confirmation that comes up, the history will be rewritten again and the Senate will be stonewalled again.
The facts, I say to my friend from Utah, are these. The Senate has requested, and past Justice Departments have provided, similar memoranda such as memoranda related to appeals, certiorari petitions, and amicus curiae--the decision to join a case as a friend of the court--written by attorneys of the Department of Justice. They have done this in connection with the nominations of Robert Bork to become Associate Justice of the Supreme Court; William Bradford Reynolds, Assistant Attorney General for the Civil Rights Division, to become Associate Attorney General; Benjamin Civiletti, nominated by President Carter to become Attorney General; Stephen Trott, nominated to become a judge in the Ninth Circuit; and then- Justice William Rehnquist, who was nominated by President Reagan to become Chief Justice--among others.
I did not get a chance to go to the gym this morning, but I guess I can almost get as much exercise in picking up and holding some examples of the memoranda that have been provided by both Republican and Democratic administrations in the past, the exact same type of memoranda to the Solicitor General, as well as other similar legal memoranda, that we now ask for on Mr. Estrada. So the real red herring is to assert that there is no precedent and to claim that no such documents have never been shared with the Senate Judiciary Committee in past nominations, and to say therefore that the Senate cannot examine such documents and that they will not accommodate the committee's request. Mr. Estrada has stated, and I admire his candor in doing this, that he is proud of his memoranda and has no personal objection to us seeing his memoranda and he has no objection to answering questions based on what he wrote. The administration, however, says: We object. That objection is based on a complete rewriting of the history of such requests and past cooperation and accommodation. They have refused to allow Mr. Estrada to answer many questions and they have refused to allow the Senate to look at his memoranda.
The Committee's request, however, is well within the practice of the Senate in prior administrations.
What does seem to be said by the administration is we cannot ask for this because we have not asked it in relation to every judicial nominee who has ever worked at the Department. Many who worked there and who were nominated did have lengthy careers or academic writings or had no controversy about being unable to set aside deeply held beliefs, unlike the stealth candidate before us. The administration also ignored the fact that when the Senate Judiciary Committee has requested memoranda written by nominees for term and lifetime appointments who worked at the Justice Department, past Justice Departments have accommodated past Congresses upon the request.
We get a lot of paperwork on nominees. Sometimes we ask for more and sometimes we ask for less, depending on the record before us. But when we have asked for it, everybody, except this administration, has allowed it and not stonewalled us. In fact, I have been here for 29 years and I do not know of a time when the Justice Department has taken such an uncooperative approach to a request for information relating to a nomination.
History shows the Senate does not always seek information it has the power to seek. We could ask for a whole lot of things that would be relevant to entrusting a person with a lifetime appointment as a judge. Often we do not ask. Sometimes there does not seem to be a need for it because there is enough other information on the record.
But when the requests have been made, they have been honored by prior administrations that have followed a policy of accommodation in response to a request from a co-equal branch of the Government for relevant information related to constitutional responsibilities, especially related to nominations.
This administration has not taken this position. Instead, they seem to be saying: We know what is there, just trust us. Rubberstamp what we send up to you. Don't ask any questions. Be quiet little boys and girls, just approve our lifetime judges and leave us alone.
The irony with all this is that they don't want to show us this material so we could make an objective analysis and not look to second hand evaluations, but they are perfectly willing to go to some of these files and take out selective pieces and give them to the supporters of the nominee and give them to the press or leak them to the press. They want to have it both ways. They are more than happy to use anything from a confidential Government file they think will help them, but they don't want to disclose the entire record because they don't want to have it in context because then the truth may hurt.
If this is how the administration and Department of Justice approach our shared constitutional responsibility for the appointment to high office, how are we to have confidence in them in their other representations about so many things critical to how our Government functions and how they exercise the enormous power entrusted to them as a function of the public office they occupy? How are we to accept it when they say, We don't want to talk about this but trust us? Yet when we ask questions about things we legitimately believe could be looked at--nothing classified, nothing confidential--they say they still don't want to show us that.
We talked about the performance evaluation. The administration and Republican supporters of Mr. Estrada have sought to exploit his performance evaluation.
Let's go to the whole story on that. They keep saying Professor Bender gave the highest evaluation to Mr. Estrada when he was at the Department of Justice. They claim that is all you need to know. They say we can't give you anything else in the file, but we will show you this one thing.
Well, this is not quite the whole story. There is a letter received from Professor Bender this week. It was sent to Senator Hatch and the members of the committee. I assumed, since Senator Hatch had been putting so much in the Record, he would probably put this in. He somehow didn't.
This is what Professor Bender's letter says in part. I would like to have the entire letter printed. He says:
It has come to my attention that, in responding to
statements I made to the press several months ago regarding
the Estrada nomination, you [Senator Hatch] have said, both
to the Judiciary Committee and to the full Senate, (1) that I
have since changed my opinion about the nomination, and (2)
that performance evaluations of Mr. Estrada's work that I
signed in 1995 and 1996, when I was Principal Deputy
Solicitor General, are inconsistent with the views about the
nomination that I gave to the press. I am writing this to
correct those statements of yours.
No. 1. I have not changed my opinion of the nomination--
That is, the adverse opinion he had, in which he opposed the nomination of Mr. Estrada.
He said:
I have not changed my opinion of the nomination, nor have I
ever said to anyone that I had changed my opinion. . . . I
have not changed that opinion in any respect.
This is dated February 10, 2003. He can't be any more specific than that. He was opposed to his nomination before. He is opposed to his nomination since.
Then he says, speaking of the performance evaluations of Mr. Estrada, these:
. . . are not inconsistent with my published statements [of
opposition to him.] To the best of my recollection, it was
the policy of the Solicitor General's Office at the time to
give every Assistant to the Solicitor General exactly the
same performance evaluation.
These things could have been printed up a month before.
The language in the Performance Achievements portions of
Mr. Estrada's evaluations was not written by me, nor did I
fill out the Employee Appraisal Record form.
Then he goes on to say:
I believe that the Solicitor General's Office had the
policy of giving each of the Assistants exactly the same
Excellent rating each year.
And he stated why? Of course. It paid them the highest salaries permitted by the Government. Everybody they hired had those highest salaries. To keep the highest salaries, they had to have the excellent rating.
I ask unanimous consent to have the letter printed in the Record.
Mr. President, I am doing that because Professor Bender asked that this be made known to the Senate, especially as he has been quoted as having changed his mind. He still opposes Mr. Estrada. I will quote him again. He says:
I have not changed my opinion of the nomination, nor have I
ever said to anyone that I had changed my opinion.
He makes it very clear that he feels he has been misquoted on the Senate floor. He may feel it was done inadvertently. He said, ``Someone must have inadvertently given you incorrect information about this,'' making it very clear that he was misquoted.
I know what he means. It is easy to get misquoted around here. Earlier this week a Republican Senator misquoted me in the Senate Chamber. The Senator who purported to quote my words certainly could not have known that he was quoting me incorrectly. I can't believe--I would be shocked to think somebody would come here and quote me out of context or incorrectly to make a partisan point. I would be as shocked as Claude Raines was in ``Casablanca.''
So people understand, the statement I did make on June 18, 1998, was to protest the anonymous Republican hold in the consideration of the judicial nomination of Judge Sonia Sotomayor. The nomination of Judge Sonia Sotomayor was held up, as I have stated before, for months and months and months by anonymous holds. She had been nominated by President Clinton to the Second Circuit Court of Appeals. I believe she was the very first Hispanic woman to go to that court of appeals. Everybody assumed her to be a slam dunk. She had been originally appointed by President George H.W. Bush to the district court. But Republicans allowed anonymous holds and nobody on the Republican side would say who was holding her up, but they held her up.
I am saying I would never do this to a judge. What I said was I would refuse to put an anonymous hold on any judge. I never have put an anonymous hold on a judge. If I wanted to delay for whatever reason a nomination, I state it on the floor as I am doing now, in the light of day, not the cloak of secrecy.
The portion of my speech about anonymous holds--like some speeches I made in the years 1996, 1997, 1998, 1999, and 2000--were not heard on the other side of the aisle. That is probably why they now misquote it. I am sure it is an inadvertent misquote. I think it is because they didn't hear it. They certainly didn't hear it at the time because they continue to use the ``anonymous holds.'' It is a practice I put an end to when I was chairman of the Judiciary Committee. But when Republicans controlled the Senate in years past they held up scores of judicial nominees of President Clinton, and never allowed them to come to a vote by ``anonymous holds'' of a single Republican Senator or more than one.
I am not surprised that they misquote me on the floor, because they didn't hear my speech at that time. In this case, people should understand what was happening.
Judge Sonia Sotomayor's nomination was delayed by anonymous Republican holds and was on the Senate calendar for months and months. She was favorably reported by the Judiciary Committee in early March of 1998. But then
her nomination was stalled without explanation or accountability on the calendar without Senate action. Even after I made my speech criticizing anonymous holds and stating that I would never put on such an anonymous hold, her nomination continued to be delayed for several more months to the very end of the session of Congress. It was actually delayed, I think, for 7 months. When it finally came up, 29 Republican Senators voted against confirmation of Judge Sonia Sotomayor for the Second Circuit.
I went back and checked the Congressional Record. They are not required to, of course, but you would think after voting against a judge, or having anonymous holds on a judge for a long period, there would be at least one or two words in the Congressional Record explaining why this was done. They don't have any requirement to do that, but I think it would have been nice. If they carry out an anonymous hold like that for all of those months, you might say, Why?
I mention this because there seems to be a lot being overlooked. When that same Republican Senator quoted part of a colloquy between me and the then-majority leader, Trent Lott, I suspect that he did not really recall the discussion, or he would not have had it so wrong here on the floor.
I will read again what Senator Lott, the Republican leader, said at that time:
[T]here are not a lot of people saying: Give us more
Federal judges. They just are not. For us to be pontificating
about this and gnashing, how unfair, this appointment of more
Federal judges, It is just not there. . . . Some people might
argue that we have plenty of Federal judges to do the job. I
hope they will do that. I am saying to you, I am trying . . .
but getting more Federal judges is not what I came here to
do.
The distinguished Presiding Officer was not in the Senate at that time. But he may recall Justice Ronnie White came from his State.
The nomination of Ted Stewart to the District Court in Utah was also very controversial. A lot of the so-called ``liberal groups'' the distinguished chairman is fond of excoriating around here opposed Mr. Stewart. A lot of the same groups the distinguished senior Senator from Utah implies control things around here opposed Mr. Stewart.
I voted for Mr. Stewart. I was one of those Democrats who should not be lumped together. In fact, a whole lot of Democratic Senators voted for Mr. Stewart, even though he was strongly opposed by groups that are normally aligned with Democratic interests, especially those who support a clean environment in this country.
Then there was, of course, the nomination of Justice Ronnie White. He also was supported by every Democratic Senator. And every single Republican, including those who had voted for Ronnie White in committee, came down on the floor and voted against him.
I do not recall anything like that ever happening on the Senate floor.
His nomination was rejected by a party-line vote of Republics--it was quite unusual to vote down a district court nominee, especially one who had been voted out by the Judiciary Committee. Some of the same Republicans who voted for him before the committee voted against him on this floor. This superb African American jurist was humiliated and defeated.
It took several more months of hard work to obtain votes on the nomination of Judge Paez and Marsha Berzon.
Again, these anonymous Republican holds held them up until March of the following year 2000.
Again, as I said, I will always oppose such anonymous holds.
Even then, after obtaining a vote of Judge Paez's nomination to the circuit court involving overcoming several procedural hurdles and several votes before we were finally able, after more than 4 years of trying--4 years it sat here--this distinguished Hispanic jurist finally got a vote. Then 39 Republicans voted against the nomination, including a number of Republican Senators who were involved in yesterday's debate saying it would be a terrible and unique precedent if we don't immediately vote for a Hispanic who is nominated to the court of appeals, in this case, Mr. Estrada.
They were perfectly willing to block floor votes for years before. I am not sure what the difference is. They both have supporters.
I do recall the difference now. One was appointed by a Democratic President and one by a Republican President. Like I said, that seems to be all the difference in the world.
In the debate, my Republican colleagues speak of the weight of the letter from the former Solicitors General and Acting Solicitor General. They say this is definitive and assert that the Senate has no right to ask these questions.
Immediately, the independent 100 Members of the Senate say, My gosh. These guys who held these important staff positions at the Department of Justice are telling us we can't ask questions; that we should immediately run for cover, and say, of course, we will not ask questions.
I don't quite read the Constitution that way.
In fact, I frankly didn't get elected to the Senate and take my oath of office and decide at that point I will vote or take actions based upon what somebody who worked for the Attorney General tells me to do or not do as a Senator. I don't care which attorney general it might have been, Republican or Democrat. It is not in the cards.
But I was concerned. I know of these former Solicitors General from both Republican and Democratic administrations. For many of them, I was impressed with their legal abilities. So I am struck with their letter's ignorance of the precedents. I do not know who wrote the letter, but one of the people who signed it was Robert Bork. But I doubt he wrote it because his own nomination provides some of the strongest precedent for the requests we are making.
I do not fault them for seeking to maximize the secrecy of executive branch memoranda and deliberations, although I am surprised they are willing to do that at a time when we have the most secretive administration I have ever known out of the six administrations--I came here right after the Nixon administration, so I cannot speak for the Nixon administration. But this administration is certainly far more secretive than the other ones I have served with before: the Ford, the Carter, the Reagan, the first Bush, and the Clinton administrations.
This letter states a policy preference and has been misinterpreted by some as a statement of law, or privileged, which it is not. I want to emphasize that. They state what they think the policy should be. They do not state what the law should be. Therein lies an enormous difference. They are not writing this based on their legal knowledge, saying this is the law. They are saying: This is what we think the policy should be.
Well, I have always felt, on these kinds of issues, Senators should make that policy. Especially we should make the policy of what we are going to ask for in confirmation hearings. That was done at the time of our nation's first leader, President George Washington in cooperation with the Senate. I would note that in 1795, four years after the Constitution was adopted, the Senate defeated one of the judicial nominations of President Washington, that of John Rutledge and that vote was based on differences between many of the Senators and Justice Rutledge regarding ideas and policies. The Senate's consideration of judicial nominees and their views and approach to the law has been done by every Senate since.
It is especially difficult to understand, hearing the sudden urge on the other side of the aisle that: Oh, my gosh, we have to keep everything in the executive branch confidential. Well, Congress passed the Presidential Records Act to require the opposite, that memoranda and writings of advisors to the President be made public.
Additionally, I would not that some of the same Senators made demand after demand for internal documents of the Clinton administration over the last several years. They were asking for things that had never been asked for before, such as information related to on-going investigations. In fact, I think the Republican-led Senate spent tens of millions of dollars--tens of millions of dollars--of the taxpayers' money asking for document after document, many of which were probably were never read. I would be willing to bet some are still sitting in the envelopes they were transmitted in. And it was done almost every day: Let's think
of something else to ask for. And it was sent. And the taxpayers were paying for it.
Now, if you have something that is relevant to the core functions of the Senate, especially the confirmation function, then it is appropriate to ask for it. This is especially so for the only positions in our whole system of government that are for life--these judgeships are lifetime appointments. The Senate cannot amend these decisions, like a law, if we make a mistake.
The administration's assertion that the documents produced to the committee during the Bork nomination did not reveal internal deliberations is way off the mark--way off the mark. When they say this did not reveal internal deliberations, that is way off the mark. It is quite clear the Department provided the Senate with memoranda written to Mr. Bork by lower level attorneys, those who were in the exact same capacity as Mr. Estrada, making recommendations about appeals in a variety of cases.
For example, the Justice Department provided the Senate Judiciary Committee with memoranda related to the Justice Department's legal analysis of school integration cases, such as memoranda from Frank Easterbrook when he was an Assistant Solicitor General and Bork was Solicitor General. The Easterbrook legal memo and similar memos were shown as examples at Mr. Estrada's recent hearing as part of the large volume of legal memoranda provided by the Reagan Justice Department and examined by Senators and key staff.
Senator Dodd, in an excellent speech, referred to some of these materials last night in debate. Not all of the information disclosed was previously placed in the Estrada hearing record, so I ask unanimous consent, Mr. President, to have printed in the Record a sample of the correspondence between Senator Biden, who was the then-chairman of the Judiciary Committee, and the Justice Department, which demonstrates the substantial cooperation and the types of disclosures the Justice Department made to accommodate the Senate in past administrations.
I put that material in the Record because it stands in stark contrast to the total lack of cooperation by the current occupants of the Justice Department.
The administration, quite inappropriately, I believe, refuses the request of a coequal branch of Government. To quote a friend of mine, one who went to the same law school I did, at about the same time: We are not potted plants up here. The Senate has demonstrated its role in the confirmation of judges from the beginning of this country's history. After all, the Senate rejected some of President George Washington's and President Madison's judicial nominees. But let's go ahead with what has happened here. It makes me wonder if there is some kind of huge disconnect at the administration, or whether they are getting all their information based on some of the things that were wrongly stated on the Senate floor.
What happened first is, the administration claimed: We cannot send up this material, these memos of Mr. Estrada because we never provided internal legal memos in the past. Then, of course, we gave them evidence: Well, yes, previous administrations had. Then the administration says: Whoops, well, those were different. They are distinguishable. So then we show them evidence: No, it is exactly the same kind of memoranda. And they say: Prove that you received memos that contained confidential information written by attorneys. And they say, we are still not going to accommodate you. We are still not going to come forth. They, in essence, are saying we are still going to stonewall you and we will continue to deny that any precedent exists.
I am reminded of the famous story of President Lincoln's cross- examination in a case when he was a young lawyer. As the story goes, Lincoln was cross-examining a witness about how a man, who was far away from the scene of a fight, could have seen what happened. And it went something like this.
Lincoln said: Isn't it true that you were across the road from where the incident took place?
The answer was: Yes.
Then Lincoln said: Isn't it true that you are near-sighted?
The witness answered: Yes.
And then Lincoln said: Isn't it true that your view of the fight was blocked by trees?
The witness said: Yes.
So Lincoln said: Then, how can you sit there and testify under oath that the defendant bit Mr. Smith?
The witness answered: Because I saw the defendant spit Mr. Smith's ear out of his mouth.
In our case, subsequent to Mr. Estrada's hearing, we learned that most of the Bork appeal memos disclosed to the Senate were returned to the Department the year after the nomination. The proof is in a letter from Acting Assistant Attorney General Thomas Boyd to Chairman Biden in May 1988, which notes that:
[M]any of the documents provided to the Committee,
``reflect or disclose purely internal deliberations within
the Executive Branch, the work product of attorneys in
connection with government litigation or confidential legal
advice received from or provided to client agencies within
the Executive Branch. We provided these privileged documents
to the Committee in order to respond fully to the Committee's
request and to expedite the confirmation process.''
Sound familiar? Well, the requests should be familiar. It is exactly what we requested last year. The difference is, during President Reagan's administration, they responded. During this administration, they say: There is no precedent for it.
So, frankly, this is the ``ear being spit out.'' The fact is, this letter ``spits out'' that the overly partisan current occupants of the Justice Department have sought to deny the Justice Department previously provided such documents. Mr. President, those denials are false.
Surely, a copy of this letter is also in the Justice Department's files. If we had been able to get this letter earlier, even by the time of Mr. Estrada's hearing, we would have put it in the Record. It is obvious why the Justice Department probably did not want us to have it. Because it conclusively demonstrates the precedent that documents like the ones written by Mr. Estrada were provided to the Senate Judiciary Committee in the past.
The Boyd letter conclusively demonstrates the precedent that documents like the ones written by Mr. Estrada were provided to the Senate Judiciary Committee in the past. It must now be admitted beyond dispute that, as the Justice Department acknowledged back then, ``the work product of attorneys in connection with government litigation or confidential legal advice'' was provided to the Senate in connection with past nominations.
I hope that the administration and its Republican supporters will finally quit denying the precedent for the request and provide us with Mr. Estrada's memoranda. Letters from the Justice Department itself finally conclusively establish the precedent for our request.
The longstanding policy of the Justice Department, until now, and the policy of prior administrations, including the Reagan and first Bush administrations, has been a practice of accommodation with the Senate in providing access to materials requested in connection with nominations. This administration would rather deny the truth and long- standing practices. At times it is as if this administration thinks it has a blank slate and a blank check notwithstanding tradition, history, precedent or the shared powers explicitly provided by our nation's Constitution.
There is part of a pattern of hostility by this administration to requests for information by Congress acting pursuant to powers granted to it by the Constitution, regarding nominees and other important oversight matters.
Yesterday, I joined with the distinguished Democratic Leader in a letter to the President setting forth background on the stonewalling of his administration that has occurred with respect to this nomination and urging him to take action to help resolve the impasse. I thank the Democratic Leader for taking this action and seeking accommodation between the two branches of our government. I have been seeking such accommodation for the last two years with respect to judicial nominations. I hope that we can now be more successful.
I would also note that the few court cases cited by the administration about the general desirability of confidentiality for government documents are dicta and not precedential or binding on the Senate.
One of the cases relied on by the administration is United States v. Nixon, 418 U.S. 683 (1974), in which the Supreme Court ordered President Nixon to disclose his Watergate-related tape recordings of Oval Office conversations with his closest personal and legal advisors. The Supreme Court also noted in the Nixon case that it is quite unlikely ``that advisors will be moved to temper the candor of their remarks by the infrequent occasions of disclosure.'' 418 U.S. at 712.
Just as the Supreme Court observed in the Nixon case, it seems unlikely that Mr. Estrada was chilled from expressing his views in his memos following the disclosure of memos written by attorneys at the Department in the decade prior to his service there in connection with the Trott, Bork, Rehnquist, and Reynolds nominations. Ironically, memoranda by Mr. Bork assessing President Nixon's authority to refuse to disclose information was one of documents provided to the Senate in connection with the Bork nomination.
Other cases cited by the Justice Department in its second letter are inapplicable to the Senate or pre-date the Nixon decision. For example, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975), is a case brought under the Freedom of Information Act (FOIA) involving a statutory-based claim of deliberative process privilege under FOIA, not a request from the Congress. I wish this administration were more forthcoming in connection with FOIA requests, but this is not a FOIA request, nor does FOIA limit Congress' authority to seek information from the Executive Branch or its agencies. Indeed, 5 U.S.C. 552(d) expressly provides that FOIA ``is not authority to withhold information from Congress.''
During the course of this debate Republican Senators have also spoken as if these materials are somehow protected by an attorney-client privilege. First, I note that even the administration has not made that claim. The administration's refusal to cooperation is not based on any claim of a legal privilege, just recalcitrance. I believe I explained at Mr. Estrada's hearing some of the reasons a claim of attorney-client privilege would be misplaced. Until this week, only the Washington Post had gotten it wrong in asserting that privilege applies.
Unfortunately, Republican Senators are now taking up that chant. It is heartwarming to hear Republicans' devotion to concepts like the attorney-client privilege but it is that concept is inapplicable to the request for Mr. Estrada's writings.
As a legal matter, the Seventh, Eighth, and District of Columbia Circuits have ruled that government lawyers are not entitled to claim the attorney-client privilege.
Moreover, in this setting the ``client'' is the government of which the Congress is certainly a part.
This administration's own Assistant Attorney General for Legal Policy Viet Dinh flatly rejected the notion of such a privilege five years ago when he told Legal Times that a government lawyer's ``employer is not a single person but the United States of America.'' He said both the ``United States of America'' and the ``government'' obviously include the United States Senate, especially when it is fulfilling constitutional responsibilities. As conservative law professor Ronald Rotunda has noted, ``government lawyers work for the government, and not the particular individual whose offices happen to be down the hall.'' He added that ``the government cannot plead attorney-client privilege against itself.'' This is from the Legal Times of August 3, 1998.
The attorney-client privilege is designed to encourage candor by the client, not the attorney. For those who are not attorneys, I note that the attorney-client privilege is designed for litigation in courts between private parties. It is a judge-made doctrine based on policy considerations to foster an effective adversary legal system. I am a strong believer in our adversarial legal system and a strong supporter of the attorney-client privilege. It does not apply in these circumstances.
Finally, there is ample precedent that the attorney-client privilege does not apply to requests by Congress. As Senator Fred Thompson, who chaired one of the many Republican investigations into the Clinton Administration, noted: ``In case after case, the courts have concluded that allowing it [the attorney-client privilege] to be used against Congress would be an impediment to Congress' obligation and duty to get to the truth and carry out its investigative and oversight responsibilities.''
My good friend from Utah, Senator Hatch, has echoed that analysis. A few years ago, he observed: ``The attorney-client privilege exists as only a narrow exception to broad rules of disclosure. And the privilege exists only as a statutory creation, or by operation of State common law. No statute or Senate or House rule applies the attorney-client privilege to Congress. In fact, both the Senate and the House have explicitly refused to formally include the privilege in their rules.''
The Congressional Research Service has found that ``No court has ever questioned the assertion of that prerogative'' and noted that the privilege ``is not of constitutional dimensions, [and] is certainly not binding on the Congress of the United States.''
I regret that so many of our Republican colleagues have chosen to seek
comfort and concealment in a legal principle that has no application to this matter. I think that the confusion started with a Washington Post editorial that got this matter all wrong and reflects a lack of familiarity with the history of nominations and the Senate's long- standing view of the privilege. The Washington Post's editorials on these matters has been prone to err in a number of ways and they remain free to do so, but I am sorry so many were led astray on this and other matters.
This Administration's policy argument for absolute secrecy of these memoranda is undermined by other long-standing practices related to nominees. The Senate routinely receives confidential information about lifetime and term-appointed nominees by way of the FBI's background investigation of a nominee, which details their adult lives and many private matters. Thus, the Senate is not required to show a particularized need for such private information which has long been germane to a nominee's fitness for judicial office.
Moreover, the memos at issue do not involve national security. There are no state secrets in the documents Mr. Estrada has written requiring that they be sealed from congressional view forever. The memos do not relate to any on-going criminal investigation or to any matters that have not likely already been disposed of by the courts long ago. His writings are relevant to how he thinks, analyzes legal issues and makes judgement and, therefore, relevant to whether or not he should be confirmed to the second highest court in the country. Moreover, as Senator Schumer noted in his letter, anytime one of these memos is written, the writer must assume, and even hope, that his or her views will become the Department's official position. Thus, it is hard to believe the risk of disclosure on the remote chance that one might someday be selected for a judgeship would be chilling.
Further, as noted long ago by the Supreme Court in McGrain v. Daugherty, 273 U.S. 135 (1927), Congress has the power to inquire into the administration of the Department of Justice--whether its functions are being properly discharged or neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties. Even Montesquieu, the architect of separation of powers, stated that ``The legislature should have the means of examining in what manner its laws have been executed by public officials.'' In this case, whether Mr. Estrada was using his position as an Assistant Solicitor General to advance his personal political opinions or to defend faithfully the laws passed by Congress has been called into question.
In sum, there is ample historical precedent for the request made by the Senate Judiciary Committee. This Administration's refusal to cooperate obstructs Senators from fulfilling their role of giving meaningful advice regarding lifetime appointments and to give or withhold consent. The advice and consent responsibility that the Constitution entrusts to the Senate is demeaned if the Administration refuses to disclose information reasonably related to a nominee's fitness or integrity.
Public confidence in the fairness of the judiciary is eroded when the Administration hides pertinent information about a nominee sought by the Senate Judiciary Committee in seeking to fulfill its role related to the appointment power that the Constitution confers jointly on the Senate and the President. The advice and consent clause of the Constitution is part of the Constitution's checks and balances in the lifetime appointment of individuals to a co-equal third branch of the federal government, unaccountable to the normal democratic process. The public's representatives in the Senate should have an opportunity to examine the writings of Mr. Estrada in advance of entrusting him with a judicial role for life.
The influence of the courts over the lives of Americans demands that the Senate exercise its checking responsibility carefully and only after reviewing all relevant information.
I think it has to be admitted beyond dispute that, as the Justice Department acknowledged back then, ``the work product of attorneys in connection with government litigation or confidential legal advice'' was provided to the Senate in connection with past nominations. I hope the administration and their supporters here in the Senate will finally quit denying the precedent for the request and provide us with Mr. Estrada's memoranda. Letters from the Justice Department itself finally and conclusively establish the precedent for our request.
I ask unanimous consent that the letter, dated May 10, 1988, from Acting Assistant Attorney General Thomas Boyd be printed in the Record.
It is interesting to note that after I wrote the Attorney General and Mr. Estrada in May 2002, when I requested Mr. Estrada's writings, the administration didn't respond immediately. If they really believed in their own precedent, they would have come back and said: Look, we have a precedent against it. I think they realized there really was no such precedent, and they were going to try to make one up. They took weeks to respond. They could have responded in a day because the precedent was so clear. Or if they simply wanted to say, well, maybe all other Presidents did it that way, we are not going to do it that way, they could have done that in just a matter of days. But instead, it makes you wonder, did they go back and read those memoranda and say: Whoops, we don't want these to go before the Senate, they are too revealing?
Whatever it is, Mr. Estrada himself says: As far as I am concerned, you can see them, and you can ask me questions about them.
The irony is, in all likelihood we would not be here today, having this long debate on the Estrada nomination, if he had simply done that. If the administration simply said: Look, Miguel Estrada is willing to have his memoranda before the Senate Judiciary Committee and then to answer questions about what he meant, we would not be here; we would not be in the circumstance where he is asked, over the last 40 or 50 years: Is there anything that you disagreed with that the Supreme Court said? During that time, the Supreme Court has overruled itself. No, nothing.
So we really have no idea what he thinks. They simply said: Look, we nominated somebody. We were not willing to allow the nominations to go forward when President Clinton nominated people here. We blocked them for year after year after year, but take ours on faith.
Again, to the folks who made up a slogan I kind of liked, ``Trust, but verify,'' we will trust but verify. As I said, we would not even be here today, we would not be having this debate today, if this had been done.
The longstanding policy of the Justice Department until now, the policy of prior administrations, including
Reagan and the first Bush administration, has been a practice of accommodation with the Senate in providing access to materials requested in connection with nominations. But this administration wants to deny the truth and longstanding practices. You would think they believe they have a blank slate and a blank check notwithstanding tradition, history, and precedent or the shared powers explicitly provided by our Nation's Constitution.
This goes beyond hubris. This goes to a sense of entitlement. It is a ``l'etat, c'est moi'' attitude on the part of the administration. It is saying: If we say it, it happens. If we want it, it is OK. It is almost like the little kid on the playground who says: I want this one, I want this one, I want this one, and I don't care what the playground rules are.
Well, this is a lot more than a playground. This is the U.S. Senate, a place I love and revere and a place steeped in constitutional history, steeped in constitutional prerogatives; but even more so, one where we are called upon day after day to protect the Constitution of the United States. I see a pattern of hostility by this administration to requests for information by Congress, even though Congress is actively pursuing the powers granted to it by the Constitution, regarding not only nominees but important oversight matters.
Yesterday, I joined with the distinguished Democratic leader in a letter to the President. We set forth the background of the stonewalling of this administration that has occurred with respect to this nomination. We urged them to take action to help resolve the impasse. I thank the Democratic leader for taking this action seeking accommodation between the two branches of our Government. I have been seeking such accommodation for the last 2 years with respect to judicial nominations. I hope we can be more successful.
I hope that now people will step back and say: Look, let's put this on a more even keel. Let's have real hearings, not assembly line type hearings. Let's carry out our constitutional responsibilities. Let's go forward. That is the way I thought it should be when I came to the Senate 29 years ago. That is the way I think it should be now. I think that is the way it could be. It is the way it was with both Republican and Democratic administrations.
I was not here at the time of the Nixon administration. I came shortly thereafter. I don't know if this kind of stonewalling is precedent or not. In my experience, I would not know that. But I know it was not during the administrations of President Ford, President Carter, President Reagan, the first President Bush, or President Clinton.
I ask unanimous consent that a copy of the letter Senator Daschle and I sent to the President on this matter, pointing out that the precedent for what we have asked for was shown in the nominations of Robert Bork, William Bradford Reynolds, Benjamin Civiletti, Stephen Trott, and William Rehnquist, be printed in the Record.
Mr. President, I yield the floor.