Floor Statements

Mr. President, today there will be a period of morning business until the hour of 11 a.m. The first half of morning business will be under the control of the Democratic leader or his designee, and the second half will be reserved for this side of the aisle. At 11 a.m., the Senate will resume consideration of the nomination of Miguel Estrada.

As a reminder, a cloture motion was filed on that nomination yesterday. Therefore, the vote will occur sometime on Thursday morning. We will announce the precise time of that vote later today.

At 12 noon today, the Senate will begin consideration of the Moscow Treaty. Under the consent agreement reached yesterday, only amendments in order to the resolution of ratification are those that are relevant to the resolution or the treaty. It is my understanding that there will be relevant amendments offered by some of my colleagues on the Democratic side, and therefore rollcall votes are expected today. Members who desire to offer amendments to the Moscow Treaty should work with the chairman and the ranking member of the Foreign Relations Committee to set up the appropriate time for consideration of their amendments. The Senate will complete action on the Moscow Treaty this week.

I yield the floor.

Mr. President, I suggest the absence of a quorum.

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

Mr. President, the Democratic leader took to the floor recently to pay tribute to the retiring Sergeant at Arms, GEN Al Lenhardt.

I used to chair the Committee on Legislative Branch Appropriations, in which circumstance I had continual contact with the Office of the Sergeant at Arms. When I became the ranking member of that subcommittee was when Al Lenhardt was hired as the Senate Sergeant at Arms. I can report to my fellow Senators that he had no partisanship at all in the way he discharged his duties.

It was within a matter of days after he was sworn in as Sergeant at Arms that September 11 hit. His baptism into the procedures of the Senate was handling the disaster of September 11 and trying to work out security for the Senators, and then to handle security as we traveled to Ground Zero in New York. Since that time, he has been faced with the challenge of making the Capitol as secure as possible.

As he moves on to his next assignment, I want to make it clear that I, too, salute him for the service he has performed for the Senate. He has handled himself in a very professional way. He has done very significant things to make this building safer, things that most Senators do not see.

By virtue of my position on that subcommittee, I was privileged to be in a confidential, classified briefing, as he outlined for us the actions that have been taken to make this building safe.

Indeed, I now take some comfort out of the fact that if there is a biological or chemical attack on Capitol Hill, this building is the safest place to be of any place on Capitol Hill. And that is a tribute to the patriotism, professionalism, and service of Al Lenhardt.

So I join with my friends on the Democratic side of the aisle, and the Democratic leader, who chose him for that position, in wishing him the very

best in his professional service here forward.

I am happy to yield.

I thank the Senator from Nevada. I would also note that at the request of the majority leader, I was somewhat involved in the selection process to come up with a successor to Al Lenhardt. I can assure the Democratic whip and all other Senators that in the new Sergeant at Arms Pickle, we have a worthy replacement for Sergeant Lenhardt.

Now General Lenhardt. All right. I am very comfortable that the new Sergeant at Arms will carry on the same level of professionalism and provide the same level of protection for the Senators and our staffs that we have seen before.

It is a tribute to General Lenhardt that he has agreed to stay on until March 17 to see that the transition is as seamless as possible and that we do indeed maintain the level of safety we now have.

As good as the hands we have been in in the past, we will remain in good hands in the future.

Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Con. Res. 16 submitted earlier today by Senators Santorum and Specter.

Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motion to reconsider be laid upon the table, and that any statements relating to the matter be printed in the Record.

Mr. President, I ask unanimous consent that S. Con. Res. 12 be indefinitely postponed.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 9:30 a.m., Thursday, March 6. I further ask unanimous consent that 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 begin a period for morning business until the hour of 10 a.m., with the time equally divided between Senators Hagel and Dorgan. I further ask unanimous consent that at 10 a.m., the Senate return to executive session and resume consideration of the nomination of Miguel Estrada to be a Circuit Court Judge for the DC Circuit, and that the time until the hour of 10:30 a.m. be equally divided between the chairman and the ranking member of the Judiciary Committee or their designees; provided further, that at 10:30 a.m., the Senate proceed to the vote on the motion to invoke cloture on the Estrada nomination.

Mr. President, for the information of all Senators, tomorrow morning the Senate will be in a period for morning business until 10 a.m. Following morning business, the Senate will return to the Estrada nomination. At 10:30 a.m., the Senate will vote on the motion to invoke cloture on this important nomination. If cloture is not invoked on the nomination, the Senate will then resume consideration of the Moscow Treaty. Additional amendments are expected to the resolution of ratification and, therefore, Senators should anticipate votes throughout the day. The Senate will complete action on the Moscow Treaty this week.

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

Mr. President, on behalf of the majority leader, I announce the schedule for the day. This morning, there will be a period of morning business for up to 2 hours. The first 60 minutes will be under the control of Senator Alexander and Senator Murkowski, and the final 60 minutes will be under the control of the Democratic leader or his designee.

Upon the conclusion of morning business, the Senate will resume the consideration of the nomination of Miguel Estrada to be a circuit judge for the DC Circuit Court. Also, today the Senate will recess from the hours of 12:30 to 2:15 for the weekly party caucuses.

As a reminder, Senators who desire to speak on the nomination are asked to do so during today's session.

I yield the floor.

Mr. President, I ask unanimous consent that the Senate now return to legislative session and go into a period of morning business.

Mr. President, this morning's Washington Post has an especially long editorial. Indeed, it takes up the entire length of the editorial page. It is entitled ``Drumbeat on Iraq, a Response to Readers.''

I have a dear friend in Utah who wrote me. She was distraught--is distraught, I am sure--about the prospect of going to war and expressed a great many concerns. I have been in the process of constructing what I hope is a responsible and thoughtful response to her concerns. As I read the editorial in this morning's Washington Post, I found that it does a better job than I could do of summarizing many, if not most, of the issues about which she is concerned. I want to read from sections of the editorial and then ask unanimous consent that it be printed in the Record at the end of my remarks.

In the editorial they say:

The right question, though, is not, ``Is war risky?'' but

``Is inaction less so?'' No one can provide more than a

judgment in reply. But the world is already a dangerous

place. Anthrax has been wielded in Florida, New York and

Washington. Terrorists have struck repeatedly and with

increased strength over the past decade. Are the United

States and its allies ultimately safer if they back down

again and leave Saddam Hussein secure? Or does safety lie in

making clear that his kind of outlaw behavior will not be

tolerated and in helping Iraq become a peaceable nation that

offers no haven to terrorists? We would say the latter. . . .

As I say, I could not have put it better, which is why I have quoted it. I have raised the question on the floor before: What are the consequences if we do not follow through in Iraq? Some have said let's just leave the troops in place. And that means Iraq remains contained.

Leaving the troops in place is not an option. We must understand that the troops are where they are, poised to move into Iraq, because of the agreement of the governments in Qatar, Turkey, and Saudi Arabia, among others. Those governments will not allow our troops to remain on their soil indefinitely. They will not allow those troops to remain there while we contain Saddam Hussein for 6 months or 12 months or 12 years, which has been the period of ``containment'' that we have seen up until now. We must either withdraw those troops and say we are

not going to move ahead militarily or, if Saddam Hussein does not disarm in accordance with the U.N. resolutions, those troops will move forward into his territory. We have no other choice: Move forward or withdraw.

For those who say the inspectors should be allowed to do their job, we must understand that the only reason the inspectors are there is because the troops are there. So we are coming down to the decision point, that is very clear.

Again, back to the editorial:

Some argue now that, because Saddam Hussein has not in the

intervening half decade used his arsenal, Mr. Clinton was

wrong. . . .

I should say that the editorial quotes President Clinton as outlining the case against Saddam Hussein in 1998.

Some would argue now that, because Saddam Hussein has not

in the intervening half decade used his arsenal, Mr. Clinton

was wrong and the world can rest assured that Iraq is

adequately ``contained.'' Given what we know about how

containment erodes over time; about Saddam Hussein's single-

mindedness compared with the inattention and divisions of

other nations; and about the ease with which deadly weapons

can move across borders, we do not trust such an assurance.

Mr. Clinton understood, as Mr. Bush understands, that no

president can bet his nation's safety on the hope that Iraq

is ``contained.'' We respect our readers who believe that war

is the worst option. But we believe that, in this case, long-

term peace will be better served by strength than by

concessions.

There is one other issue that was raised by my friend in Utah to which the editorial does not speak. This is the issue of first strike. My friend says we cannot cross the line of having the United States be involved in a first strike against a nation that has not attacked us.

One of the arguments I have heard on this score is that if we do it, we will set a precedent that will allow other nations to do it. Other nations that we do not want to do it will say we can do it because the United States did.

If I may, without being disrespectful to that argument, I would point out that Adolph Hitler did not need a precedent from the United States to attack Poland. He made up his own excuse. He pretended that Poland had attacked him. He dressed prisoners in Polish military uniforms, murdered them, and then had them found by German soldiers on German soil who said they were shot as they tried to invade Germany.

The setting of a precedent by the United States or the not setting of a precedent by the United States will have absolutely no effect on the actions of a brutal dictator who decides to attack his neighbors in a first strike fashion. Saddam Hussein didn't quote precedent when he attacked Kuwait in the early 1990s. He went ahead and did it, and would have done it again whether he had precedent or not.

Having said that, however, I want to review a little bit of American history. It may not be history of which we are proud, for those who say we have never committed a first strike, but it is history nonetheless of which we must be aware. I have not taken the time to research all examples of this because my memory provides me with enough to make the point.

I remember when Lyndon Johnson sent the Marines into the Dominican Republic, for what purpose I cannot recall. But this was not a country that had attacked us and we sent military forces in there on the grounds that there was some American interest that had to be protected.

Ronald Reagan sent the Marines into Grenada. His reason was that the legitimate Government of Grenada requested it.

In his book, ``The Rise and Fall of the Soviet Empire,'' Brian Crozier referred to the American military action in Grenada as one of the key turning points in the cold war. He said if the United States had not moved into Grenada and removed the Communist government there, the cold war would have lasted considerably longer and been more devastating.

There was no international clamor against President Reagan when he did this. He believed it was in America's best interests, and at least one historian has said it was not only in America's best interests, it was in the world's best interests for Ronald Reagan to have done what he did in Grenada.

In the waning days of his Presidency, the first President Bush sent American troops into Somalia. Somalia had not attacked us and did not represent any threat. The troops were there presumably on a humanitarian mission, but they were sent in to deal with a military situation in that country that President Bush thought had to be dealt with. Those troops were withdrawn by the Clinton administration. But, once again, this was not a circumstance where America had been attacked but one where an American President sent American troops and there was no international outcry, no international complaint.

Shortly after I came to the Senate, President Clinton invaded Haiti. Our former colleague, Sam Nunn, was in Haiti just prior to the time when the American military entered that country, and he debriefed a number of us after he came back. He pointed out that the only reason there was not bloodshed when the American troops entered Haiti was because the former Chairman of the Joint Chiefs of Staff, Colin Powell, went with Senator Nunn and former President Jimmy Carter to Haiti and General Powell was able to convince the Haitian general in charge of their military that it was not dishonorable for the Haitian general to save the lives of his troops and allow the Americans to come in without military opposition.

As I recall it from Senator Nunn, the Haitian general was determined that it was his duty as a military man to resist any invasion of his country, no matter how hopeless that resistance might be. And he gathered his family around him, his wife and his children, hugged them together and said: This is our last night on Earth because tomorrow the Americans are invading and I will be killed.

As I say, General Powell sat down with the Haitian general, convinced him that his first duty as a military officer was to protect the lives of his troops, and that he was not doing a dishonorable thing if he did not mount a hopeless resistance against the Americans.

Once again, there was no international outcry against the American decision to send troops into Haiti. Looking back on it, it was not necessarily a wise thing to have done. We replaced a brutal dictator much beloved by American conservatives with a brutal dictator much beloved by American liberals. But the average Haitian has not seen any improvement in his or her lifestyle. Indeed, those who have been to Haiti recently tell me things are worse now than they were before the Americans invaded.

Then we have the former Yugoslavia, a country that represented no threat to the United States and had not attacked the United States, but the United States led a national coalition in war upon that nation.

Why did we do it? We did it because, under Milosevic, that nation had produced enough casualties within its borders to begin to approach 20 percent of the size of the Holocaust. They killed that many of their own people, and the Americans felt that was a serious enough challenge to require us to go ahead.

Now we have just heard a speech by the Senator from Michigan with respect to North Korea. We are being asked, Why are we not doing more with respect to North Korea? I will not respond to the Senator from Michigan or the Democratic leader in that vein. But I will point out that the attitude around the world and, indeed, here in the Senate is why the United States isn't taking care of this. If I might add one word to that question, Why isn't the United States taking care of this unilaterally? In other words, the United States should handle this all by themselves, according to speeches that are made here and in the world community.

I run through this history simply to make this point: It is not accurate to say the proposed action in Iraq is either unprecedented in American history or illegal under American or international law. The action that is proposed with respect to Iraq is in the tradition of these humanitarian missions that I have described.

Some of them have gone wrong. Some of them have turned out not to produce a humanitarian result. But in every case there was no prior complaint raised against the proposal that we do this on the ground that this was an unacceptable first strike against a

defenseless neighbor. In every circumstance, it went forward with full approval. I voted against the move into Haiti. But the President appropriately came to the Congress and got approval before he did it.

President Bush has come to the Congress, and by a 77-23 vote in this body and an equally lopsided vote in the other body, has approval before he goes into Iraq. This is not a stealth attack like Pearl Harbor under the cover of night. This is something that has been debated and laid before the United Nations. The United Nations, by a 15-0 vote in the Security Council, announced to Iraq if she did not disarm, she would face serious consequences, and serious consequences in United Nations speak means war. This is not something that is done hidden or in a corner or in the dark.

So we come back now to the fundamental question: Is it safer to go ahead with an operation in Iraq than it is to pull down the American troops and bring them home? I agree with the editorial writers of the Washington Post. This is an agonizing decision. This is not one to be made lightly, and I am sure from conversations with him that the President is not going to make it lightly. He is going to weigh all of the consequences. But I believe in the end he will come to the same conclusion that the Washington Post editorial writers have come to and that I have come to. Whatever the unknowns on either side, the present evidence suggests that the most dangerous thing we could do with respect to the situation in Iraq is to back down if Iraq does not comply with the United Nations resolution. To pull our troops out of Iraq does not comply with the demands that the world has made upon it. The safest thing to do if Iraq does not comply is to carry through with the resolution that was adopted on this floor by an overwhelming margin, adopted in the Security Council of the United Nations unanimously, and not hold back.

I yield the floor.

[From the Washington Post, Feb. 27, 2003]

``Drumbeat'' on Iraq? A Response to Readers

``I have been a faithful reader of The Washington Post for

almost 10 years,'' a recent e-mail to this page begins.

``Recently, however, I have grown tired of your bias and

endless drumbeating for war in Iraq.'' He's not the only one.

The national and international debate over Saddam Hussein's

weapons of mass destruction, and our editorials in favor of

disarming the dictator, have prompted a torrent of letters,

many approving and many critical. They are for the most part

thoughtful and serious; the antiwar letters in particular are

often angry and anguished as well. ``It is truly depressing

to witness the depths Washington Post editors have reached in

their jingoistic rush to war,'' another reader writes. It's a

serious charge, and it deserves a serious response.

That answer, given the reference to ``Washington Post

editors,'' probably needs to begin with a restatement of the

separation at The Post between news and editorial opinion

functions. Those of us who write editorials have no influence

over editors and reporters who cover the news and who are

committed to offering the fairest and most complete

journalism possible about the standoff with Iraq. They in

turn have no influence over us.

For our part, we might begin with that phrase ``rush to

war.'' In fact there is nothing sudden or precipitous about

our view that Saddam Hussein poses a grave danger. In 1990

and 1991 we supported many months of diplomacy and pressure

to persuade the Iraqi dictator to withdraw his troops from

Kuwait, the neighboring country he had invaded. When he

failed to do so, we supported the use of force to restore

Kuwait's independence. While many of the same Democrats who

oppose force now opposed it then also, we believe war was the

correct option--though it was certainly not, at the time, the

only choice. When the war ended, we supported--in hindsight

too unquestioningly--a cease-fire agreement that left Saddam

Hussein in power. But it was an agreement, imposed by the

U.N. Security Council, that demanded that he give up his

dangerous weapons.

In 1997 and 1998, we strongly backed President Clinton when

he vowed that Iraq must finally honor its commitments to the

United Nations to give up its nuclear, biological and

chemical weapons--and we strongly criticized him when he

retreated from those vows. Mr. Clinton understood the stakes.

Iraq, he said, was a ``rogue state with weapons of mass

destruction, ready to use them or provide them to terrorists,

drug traffickers or organized criminals who travel the world

among us unnoticed.''

When we cite Mr. Clinton's perceptive but ultimately empty

comments, it is in part to chide him and other Democrats who

take a different view now that a Republican is in charge. But

it has a more serious purpose too. Mr. Clinton could not

muster the will, or the domestic or international support, to

force Saddam Hussein to live up to the promises he had

made in 1991, though even then the danger was well

understood. Republicans who now line up behind President

Bush were in many cases particularly irresponsible; when

Mr. Clinton did bomb Iraqi weapons sites in 1998, some GOP

leaders accused him of seeking only to distract the nation

from his impeachment worries. Through the end of Mr.

Clinton's tenure and the first year of Mr. Bush's

presidency, Saddam Hussein built up his power, beat back

sanctions and found new space to rearm--all with the

support of France and Russia and the acquiescence of the

United States.

After Sept. 11, 2001, many people of both parties said--and

we certainly hoped--that the country had moved beyond such

failures of will and politicization of deadly foreign

threats. An outlaw dictator, in open defiance of U.N.

resolutions, unquestionably possessing and pursuing

biological and chemical weapons, expressing support for the

Sept. 11 attacks: Surely the nation would no longer dither in

the face of such a menace. Now it seems again an open

question. To us, risks that were clear before seem even

clearer now.

But what of our ``jingoism,'' our ``drumbeating''? Probably

no editorial page sin could be more grievous than whipping up

war fever for some political or trivial purpose. And we do

not take lightly the risks of war--to American and Iraqi

soldiers and civilians first of all. We believe that the Bush

administration has only begun to prepare the public for the

sacrifices that the nation and many young Americans might

bear during and after a war. And there is a long list of

terrible things that could go wrong: anthrax dispersed,

moderate regimes imperiled, Islamist recruiting spurred, oil

wells set afire.

The first question, though, is not ``Is war risky?'' but

``Is inaction less so?'' No one can provide more than a

judgment in reply. But the world is already a dangerous

place, Anthrax has been wielded in Florida, New York and

Washington. Terrorists have struck repeatedly and with

increasing strength over the past decade. Are the United

States and its allies ultimately safer if they back down

again and leave Saddam Hussein secure? Or does safety lie in

making clear that his kind of outlaw behavior will not be

tolerated and in helping Iraq become a peaceable nation that

offers no haven to terrorists? We would say the latter while

acknowledging the magnitude of the challenge, both during and

especially after any war that may have to be fought. And we

would say also that not only terrible things are possible: To

free the Iraqi people from the sadistic repression of Saddam

Hussein, while not the primary goal of a war, would surely be

a blessing.

Nor is it useful merely to repeat that war ``should only be

a last resort,'' as the latest French-German-Russian

resolution states, or that, as French President Jacques

Chirac said Monday, Iraq must disarm ``because it represents

a danger for the region and maybe the world . . . But we

believe this disarmament must happen peacefully.'' Like

everyone else, we hope it does happen peacefully. But if it

does not--if Saddam Hussein refuses as he has for a dozen

years--should that refusal be accommodated?

War in fact has rarely been the last resort for the United

States. In very recent times, the nation could have allowed

Saddam Huss- sein to swallow Kuwait. It could have allowed

Slobodan Milosevic to expel 1 million refugees from

Kosovo. In each case, the nation and its allies fought

wars of choice. Even the 2001 campaign against Afghanistan

was not a ``last resort,'' though it is now remembered as

an inevitable war of self-defense. Many Americans argued

that the Taliban had not attacked the United States and

should not be attached; that what was needed was a police

action against Osama bin Laden. We believed they were

wrong and Mr. Bush was right, though he will be vindicated

in history only if the United States and its allies stay

focused on Afghanistan and its reconstruction.

So the real questions are whether every meaningful

alternative has been exhausted, and if so whether war is wise

as well as justified. The risks should be minimized. Everyone

agrees, for example, that the United States would be stronger

before and during a war if jointed by many allies, and even

better positioned if backed by the United Nations. If waiting

a month, or three months, would ensure such backing, the wait

would be worthwhile.

But the history is not encouraging. The Security Council

agreed unanimously in early November that Iraq was a danger;

that inspectors could do no more than verify a voluntary

disarmament; and that a failure to disarm would be considered

a ``material breach.'' Now all agree that Saddam Hussein has

not cooperated, and yet some countries balk at the

consequences--as they have, time and again, since 1991. We

have seen no evidence that an additional three months would

be helpful. Nor does it strike us as serious to argue that

the war should be fought if Mr. Chirac and German Chancellor

Gerhard Schroeder agree, but not if they do not. If the war

is that optional, it should not be fought, even if those

leaders do agree; if it is essential to U.S. national

security, their objections ultimately cannot be dispositive.

In 1998, Mr. Clinton explained to the nation why U.S.

national security was, in fact, in danger. ``What if he fails

to comply and we fail to act, or we take some ambiguous third

route, which gives him yet more opportunities to develop this

program of weapons of

mass destruction? . . . Well, he will conclude that the

international community has lost its will. He will then

conclude that he can go right on and do more to rebuild an

arsenal of devastating destruction. And some day, some way, I

guarantee you he'll use the arsenal.''

Some argue now that, because Saddam Hussein has not in the

intervening half-decade use his arsenal, Mr. Clinton was

wrong and the world can rest assured that Iraq is adequately

``contained.'' Given what we know about how containment

erodes over time; about Saddam Hussein's single-mindedness

compared with the inattention and divisions of other nations;

and about the ease with which deadly weapons can move across

borders, we do not trust such an assurance. Mr. Clinton

understood, as Mr. Bush understands, that no president can

bet his nation's safety on the hope that Iraq is

``contained.'' We respect our readers who believe that war is

the worst option. But we believe that, in this case, long-

term peace will be better served by strength than by

concessions.

Mr. President, the Senate will spend the day in executive session deliberating, once again, and for the ninth day, the nomination of Miguel Estrada to be a circuit court judge for the DC Circuit. The Senate will recess from 12:15 to 2:30 for the weekly party lunches. Between now and the next recess we have a number of important issues that the majority leader would like to see addressed. Therefore, he hopes we can get passed this delay and let the Senate work its will on this nomination. Senators should be advised, therefore, that rollcall votes are possible during the day.

Madam President, I understand that the Senator from New York wishes to speak. I don't wish to delay her, but in the spirit of going back and forth, I have sought to be recognized. I will not take a great deal of time because I want to be sure the Senator from New York is given the proper opportunity to speak.

Madam President, I would object because I have the floor.

I do intend to let her speak, but I would like to give my statement first.

I thank my friend from Nevada. I sit behind him. He may not have noticed how long I was waiting.

I have been interested in this debate. It goes on. As the Senator from Nevada

has said, just about everything that can be said has been said. But at the same time the country is beginning to discover this debate. While everything may have been said on the floor, it seems that not everything has been said out in the country. It is interesting to me that we are getting more and more editorial comment throughout the Nation on this issue.

One that came to my attention just this morning is in this morning's Washington Post. Those who get upset about what they believe is the liberal bias of the newspapers usually do not include the Washington Post among the list of those publications favorable to Republicans. There are columnists in the Washington Post that are considered favorable to Republicans. Mr. Novak comes to mind. But the Post itself is considered to be part of the leftwing media, according to those on talk radio.

So when someone who is part of the establishment of the Washington Post editorial page speaks out on this issue and says something contrary to that which is normally assumed to be the party line of the mainstream media, it is worth noting and commenting on.

In this morning's Washington Post, Benjamin Wittes, a member of the editorial page staff, has an op-ed piece entitled Silence is Honorable.

I would like to quote from it at some length. This is how Mr. Wittes begins:

Asked whether the Constitution evolves over time, the

nominee to the U.S. Court of Appeals for the District of

Columbia Circuit told the Senate Judiciary Committee that,

while such debates were interesting, ``as an appellate judge,

my obligation is to apply precedent.'' Asked whether he

favored capital punishment, a nominee said only that the

death penalty's constitutionality was ``settled law now'' and

that he didn't ``see any way in which [his] views would be

inconsistent with the law in this area.''

Miguel Estrada, one of President Bush's nominees to the

D.C. Circuit, is facing a filibuster by Democratic senators

who claim that his refusal to address their questions at his

hearing--combined with the White House's refusal to release

his memos from his days at the solicitor general's office--

makes him an unreadable sphinx. Yet the careful answers

quoted above are not Estrada's. The first was given by Judge

Judith Rogers at her hearing in 1994, the second by Judge

Merrick Garland the following year. Both were named to the

bench by President Clinton. Neither was ever accused of

stonewalling the committee. And both were confirmed.

But the rules they are a-changin', and answers barely

distinguishable from these are no longer adequate. Asked

whether he thought the Constitution contained a right to

privacy, Estrada said that ``the Supreme Court has so held

and I have no view of any nature whatsoever . . . that would

keep me from apply[ing] that case law faithfully.'' Asked

whether he believed Roe v. Wade was correctly decided, he

declined to answer. While he has personal views on abortion,

he said, he had not done the work a judge would do before

pronouncing on the subject. Roe ``is there,'' he said. ``It

is the law . . . and I will follow it.''

The real difference between Estrada's questioning and that

of Garland and Rogers is not that Estrada held back. It is

that Garland and Rogers faced nothing like the inquest to

which Estrada was subjected. Both, along with Judge David

Tatel--the other Clinton appointee now on the court--faced

only a brief and friendly hearing.

I would note, outside of the article, that that brief and friendly hearing was under Republican auspices because Republicans controlled the Senate. Back to the article:

And none was pushed to give personal views on those matters

on which his or her sense of propriety induced reticence. To

be sure, there was no controversy surrounding the fitness of

any of the Clinton nominees, so the situation is not quite

parallel. When Garland, a moderate former prosecutor who had

recommended the death penalty, said he could apply the law of

capital punishment, there was no reason to suspect he might

be shielding views that would make him difficult to confirm.

By contrast, many Democrats suspect that Estrada's refusal to

discuss Roe is intended to conceal his allegedly extremist

views. But that only begs the question of why Estrada is

controversial in the first place that Democrats think it

appropriate to demand that he bare his judicial soul as a

condition of even getting a vote.

This is the conclusion of this portion of the op-ed piece:

Nothing about his record warrants abandoning the respect

for a nominee's silence that has long governed lower court

nominations.

And silence is the only honorable response to certain

questions. It is quite improper for nominees to commit or

appear to commit themselves on cases that could come before

them.

That is the end of that quote. This is the standard we followed in this body for many years. I will not pretend that members of the Judiciary Committee of both parties in Congress, controlled by both parties, would use the Judiciary Committee, the blue slip process and other patterns of senatorial courtesy to keep people from getting to the bench. That is part of our history. That has always been done. But once a hearing has been held and the committee has voted out a nominee, we have always allowed that nominee to go to a vote. That is the standard that has been established in this body. That is the standard that has been followed by Democrats and Republicans alike. And that is the standard that is being changed in this circumstance.

The Senator from Nevada talked a good bit about the Constitution and questions that have been raised about constitutionality by the Republicans. I would simply point out this obvious fact with respect to the Constitution on this question: The Founding Fathers gave the power to advise and consent in certain executive decisions to the Senate. The Founding Fathers recognized that the power to advise and consent was a very significant one, an unusual one held solely to the Senate. So they outlined those areas where the power to advise and consent would require a supermajority.

The Founding Fathers said: If you are advising and consenting on a treaty, which becomes law when it is ratified, equal to the Constitution, then you have to have a two-thirds majority. If you are amending the Constitution, you have to have a two-thirds majority. These are serious enough matters, with long-term impact, that they must have a two-thirds majority.

They could have said: The advise and consent power always requires a supermajority, but they did not. The Founding Fathers made it very clear those specific areas where a supermajority would be required and then left it to an ordinary majority on the advise and consent power with respect to Presidential nominations. And throughout the entire history of the Republic, we have followed the pattern of a simple majority for the advise and consent power to be exercised by the Senate.

Make no mistake, if the Senate sets the precedent in the Estrada case that the advise and consent power from this time forward requires a supermajority of 60 votes, they are changing forever the pattern of the Senate's relationship to the executive branch in this area. I am not one who says that is unconstitutional. I think it is within the power of the Senate. I disagree with those who are saying it violates the Constitution. I think it violates the intent of the Framers of the Constitution. I think that is very clear. But it is within the power of the Senate to do that if we want.

As I have said before, we on our side of the aisle discussed this when we were faced with those nominees from President Clinton whom we considered controversial. There were those in our conference who insisted that we must do that--change the pattern and require President Clinton's nominees to pass the 60 point bar. To his credit, my senior colleague from Utah argued firmly against that. Even though he was against the nominees in some cases, he said we must not change the historic pattern that says once a nominee is voted out of the committee, he or she gets a clear up-or-down vote by a majority. To his credit, the Republican leader at the time, the majority leader, Senator Lott, said exactly the same thing: We must not go down that road. Those in our conference who said let's do it on that particular judge agreed and backed down, and no matter how strongly people on this side of the aisle felt about a particular judge, there was never an attempt to use the filibuster power to change what we considered to be the clear intent of the Founding Fathers and change the advise and consent situation, where there was an additional supermajority required, an additional supermajority added to that which the Founding Fathers themselves wrote into the Constitution.

Now the Democrats have decided they are going to do that. It is their right. To me, it signals a determination on their part that they expect to be in the minority for a long time. One of the reasons Senator Hatch gave for us not to do it was, we will have an opportunity in the future to be voting on nominees offered by a President of our

own party, and if we do this to the other party, they will then feel comfortable in doing it to the nominees of our party; let's just not do that.

I think by deciding to do this on this nominee, the Democrats have virtually conceded the fact that they do not expect another Democratic President for long time. They believe they will be in the minority for a long time and, therefore, they must establish this weapon as one of the weapons they will use as part of the minority to obstruct the activities in the Senate for a long time to come.

I hope they decide ultimately to bet on the future. I hope they decide ultimately they do expect that there will be a Democratic President sometime in the future, that they do expect there will be a Democratic Senate sometime in the future and they want to save for the future the right that every President, Democrat or Republican, and every Senate, Democrat or Republican, has maintained since the founding of the Republic 2\1/2\ centuries ago.

Madam President, if I may go back to the article written by Benjamin Wittes in this morning's Washington Post that summarizes the implications of going in this direction and what it will do long term, he says:

Not knowing what sort of judge someone will be is

frustrating, but that is the price of judicial independence.

While it would be nice to know how nominees think and what

they believe and feel, the price of asking is too high. The

question, rather, is whether a nominee will follow the law.

Estrada has said that he will. Those who don't believe him

are duty bound to vote against him, but they should not

oblige nominees to break the silence that independence

requires.

That is what our friends on the Democratic side are doing. They have never demanded it before. We did not demand it of their nominees. They are changing the rules--``the rules they are a'changing,'' as Mr. Wittes points out. I ask my friends on the Democratic side to think long and hard about the long-term consequences of changing the rules-- changing the rules, as Mr. Wittes talks about it, in terms of what is demanded of nominees; changing the rules as we are talking about it here in terms of the supermajority that would be added to the existing constitutional requirement of the Senate as it performs its role in advising and consenting to executive nominations.

With that, I yield the floor.

I object. There is a Republican speaker coming. I would amend the UC request to say that Senator Talent, if he is on the floor, be recognized first, and then Senator Dorgan be recognized.

I am not sure what the circumstance was prior to my coming to the floor either. I was told we were going back and forth. If I might inquire as to how much time the Senator would use, perhaps there would be no problem.

I don't know that to be the case all day long. I do know that was the case earlier. Reserving the right for my friend who is anticipating to be here at 6, and was told in advance he could be here at 6, I renew my unanimous consent request that following the Senator from New York, the Senator from Missouri, Mr. Talent, would be recognized to speak, after which the Senator from North Dakota, Mr. Dorgan, would be recognized.

I thank my friend for his consideration. I say to him he caught me at somewhat of a disadvantage in that I am the only one on the floor and didn't know what was going on. I am trying to accommodate people on both sides, which is why I want to make sure the Senator from North Dakota is recognized to speak.

I would expect the Democratic leader to be sure of enforcing the same process on behalf of Senators on his side of the aisle.

I thank my friend.

Mr. President, this morning the Senate will resume consideration of the nomination of Miguel Estrada to be a circuit judge for the DC Circuit. Again, if Senators desire an opportunity to speak on the nomination, they are, of course, encouraged to do so. As announced last night by the majority leader, there will be no rollcall votes during today's session.

When the Senate completes its business today, it will stand adjourned for the Presidents Day recess until Monday, February 24. Members should expect the next rollcall vote to occur at 5:30 in the afternoon on Monday, February 24. The majority leader will have more to say regarding the schedule later today prior to today's closing.