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   NOMINATION OF MIGUEL A. ESTRADA, OF VIRGINIA, TO BE UNITED STATES CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA

   The ACTING PRESIDENT pro tempore. The Senate will now resume executive session and the consideration of Executive Calendar No. 21, which the clerk will report.

   The legislative clerk read the nomination of Miguel A. Estrada, of Virginia, to be United States Circuit Judge for the District of Columbia Circuit.

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

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

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

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

   There being no objection, the material was ordered to printed in the Record, as follows:

   Filibustering Judges

   ``Tell Senators: Filibuster the Estrada Nomination!'' cries the Web site of People for the American Way. The subject is President Bush's nomination of Miguel A. Estrada to a seat on the U.S. Court of Appeals for the DC Circuit. Democratic senators may not need much encouragement. With the Estrada nomination due to come to the Senate floor today, they are contemplating a dramatic escalation of the judicial nomination wars. They should stand down. Mr. Estrada, who is well qualified for the bench, should not be a tough case for confirmation. Democrats who disagree may vote against him. They should not deny him a vote.

   Senators have on occasion staged filibusters on judicial nominees, but none has ever prevented a lower-court nominee's confirmation, the White House says. And that's good, It's hard enough to get swift Judiciary Committee action and floor votes for judicial nominees. The possibility of a filibuster probably checks rash or overly partisan nominations; one can imagine candidates so wrong or offensive that the tactic would be justified. but a world in which filibusters serve as an active instrument of nomination politics is not the either party should want.

   Mr. Estrada's nomination in no way justifies a filibuster. The case against him is that he is a conservative who was publicly criticized by a former supervisor in the Office of the Solicitor General, where he once worked. He was not forthcoming with the committee in its efforts to discern his personal views on controversial issues--as many nominees are not--and the administration has (rightly) declined to provide copies of his confidential memos from his service in government. Having failed to assemble a plausible case against him, Democrats are now arguing that this failure is itself grounds for his rejection--because it stems from his own and the administration's discourteous refusal to arm Democrats with examples of the extremism that would justify their opposition. Such circular logic should not stall Mr. Estrada's nomination any longer. It certainly doesn't warrant further escalating a war that long ago got out of hand.

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

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

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

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

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

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

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

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

   before they made this pronouncement and this judgment.

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

   The Democrat Congressional Hispanic Caucus may oppose Miguel Estrada, but the Republican Congressional Hispanic members--LINCOLN DIAZ-BALART, ILEANA ROS-LEHTINEN, HENRY BONILLA, MARIO BALART--they all support his confirmation, and they support him very strongly, as they should--and so should our Democratic friends in the House.

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

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

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

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

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

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

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

   free from double standards and partisan politics.

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

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

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

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

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

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

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

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

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

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

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

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

   one of his circuit court nominees, unless they have been Democrats.

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

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

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

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

   I yield the floor.

   The ACTING PRESIDENT pro tempore. The Senator from Vermont is recognized.

   Mr. LEAHY. Mr. President, I have listened with interest as my friend from Utah has made arguments against the Democrats using the old thing of the straw man debate. I have heard a lot of arguments the Senator from Utah says we make against Mr. Estrada, but I have not heard them from us. I did hear some interesting things. He has expressed his support for Judge Richard Paez. After blocking it for several years, the Senator from Utah did vote for him. I commend him for that. It is interesting, however, that he does not speak of the strong opposition to Judge Paez by the Republicans. A very large number of their votes were against him, and the fact that he was blocked by the Republicans year after year after year, while the nominee was here, that, the Senator from Utah suggests, is legitimate; whereas there seems to be a strong suggestion that if Democrats were to talk only a few days about Mr. Estrada, and some may even vote against him, that is not legitimate.

   I also note that it is easy to accept the arguments if you don't put all the facts forth. For example, the charge of the distinguished Senator from Utah--take one judge, Sonia Sotomayor of the Second Circuit. He puts her down as a Clinton circuit judge with no prior judicial experience. In fact, she did have prior judicial experience. She had been appointed originally by the first President Bush as a Federal court judge.

   In an example, when time and time and time again President Clinton nominated people for the court of appeals and other judicial nominees who had been appointed by Republican Presidents--something we have never seen in this administration and probably won't--but I know of at least three members of the Second Circuit Court of Appeals who were appointed by Republican Presidents versus district court judges, two by President Bush, one by President Reagan.

   All were then elevated to the court of appeals by President Clinton.

   Judge Sotomayor, of course, was held up by Republicans for a considerable period of time, even though she had originally been appointed to be a Federal judge by President Bush, contrary to what the chart of my friends, the Republicans, says. It is in absolute contradiction to what they said. She was blocked for a very long time by Republicans, and when she finally was able to get a vote, 29 voted against her.

   Let's be honest about what happened. Judge Sotomayor, a superb judge, was appointed first by a Republican to the district court bench, not, as my friends say, someone with no experience, and President Clinton nominated her to the Second Circuit Court of Appeals. She was blocked initially by the Republicans, and they finally allowed it through, but 29 voted against her.

   With Judge Paez, 39 voted against him. In fact--this is an interesting fact on Judge Paez. I wonder if everybody is aware of the fact that initially Republicans filibustered a motion to proceed to his appointment to the Circuit Court of Appeals. I heard mention somewhere that this never happened, that there were not any kind of delaying tactics on district court or Circuit Court of Appeals nominees, but on a motion to proceed, something Democrats did not block in any way with Judge Estrada, Republicans did. Fifty-three of them voted against that motion. I am surprised the Senator from Utah does not remember that fact because he is one of the 53 who voted against proceeding to bring up Judge Paez. I say this just to make sure we have accuracy in our debate.

   Debate on this nomination began last week on Wednesday, within seconds of the Senate adopting S. Res. 45, to honor the Space Shuttle Columbia astronauts, and after we observed a moment of silence. Many of us were not on the floor Thursday because we were attending a memorial for the space shuttle astronauts at the National Cathedral.

   I thank those who did participate in the debate last week. I commend to the Senate and to the American people the remarks of Senator Reid, Senator Kennedy, and Senator Schumer, each of whom added important dimensions and perspectives to this debate.

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   I also wish to take a personal moment to commend the senior Senator from Nevada, HARRY REID. While he is not a member of the Judiciary Committee, he spoke so eloquently on this subject and was able to carry on the debate while others of us, as I said, had to be at the very sorrowful memorial service for our astronauts.

   I had hoped that at some point in the last 2 years or so we would have seen an effort on the part of the President and others to seek to unite rather than divide. Instead, we see a continuation of dividing the American people, as deeply as we have seen the 19 members of the Judiciary Committee divided. Many of us would like to know the record, would like to have a strong confidence in the type of judge Mr. Estrada will be, and be able to vote in favor of this nomination.

   Since I have been in the Senate, I have voted on hundreds of nominees--Republican nominees--to the Federal judiciary. I suspect I have voted for more Republican nominees to the Federal judiciary than most of my friends on the other side of the aisle have voted for Democratic nominees. I do not need any lectures on how we should be bipartisan. In fact, when I was chairman, we were able to get 100 nominations through the committee and to the floor, any one of which of President

   Bush's nominees could have been stopped simply by not bringing the person up for a vote. We got through 100. Whether I agreed with or was against the person, I felt that at least we had a record so we knew what this person thought. We are being asked, after all, to uphold our oath of office and vote to confirm somebody to a lifetime position. The reason we are asked to do that is the judiciary is supposed to be outside the political realm. The judiciary is supposed to be independent and is supposed to be for all Americans and is supposed to be lifetime positions, positions for which most of us who vote on them will not be in the Senate for the full terms of these judges. So we have to at least look at the nominees if we are going to answer to the American people. There are 275 million Americans. They expect an independent Federal judiciary. They know this country has a reputation of having the most independent Federal judiciary, and there are only 100 of us, however, who can represent those 275 million Americans and use our imprimatur and our vote to confirm. We put forth an imprimatur for the whole country that this is somebody who will maintain the independence of the judiciary and will not be somebody who comes to the Federal bench with an ideological agenda, and we say that because we have looked at the people.

   That is not the record before the Judiciary Committee, and it is not the record before the Senate on Miguel Estrada. I remain concerned he is going to be an activist on the court, especially when one looks at the very determined efforts, not only of the nominee but of the administration, to keep information from the Senate. It is typical of so many of these nominees. The White House has made absolutely no effort--absolutely no effort--to try to work out any kind of a bipartisan understanding on these judges. In fact, it has done just the opposite. They have stonewalled any request for information.

   Frankly, I am sorry my friends on the other side of the aisle are willing to accept this with absolutely no information, even to having a vote in the committee with several members of the committee never even having sat in on what hearing there was on Miguel Estrada. It is a case of ``don't ask because we know you won't tell, so we will just go along with it.'' ``Don't ask, you're not going to tell, we'll just go along with it.''

   There was an interesting editorial cartoon in Roll Call this morning showing, like a meatpacking business, Federal judges coming down this assembly line and the Republicans on the Senate Judiciary Committee stamping OK, OK, OK, similar to the way beef is stamped for the USDA.

   Unfortunately, that does not help the American public. People can vote for or against Mr. Estrada as they want, but they should at least have some idea of on what they are voting, not this ``don't ask because we won't tell.''

   We are being asked to consider a nominee with no judicial experience, with little relevant practical experience, who is opposed by many Hispanic leaders and organizations and many other Americans.

   While he counts Justice Scalia, former Judge Kenneth Starr, and Ted Olson among his friends and mentors, information about his decisionmaking or what his values are, what he brings to this court, are locked away from any Senate consideration.

   Last week I met with leaders of the Congressional Hispanic Caucus, the Mexican American Legal Defense and Education Fund, the Puerto Rican Legal Defense and Education Fund, Hispanic labor leaders, and they all told me they oppose this nomination. I was impressed by that because these are leaders who have come to me and other Senators over the years and have strongly backed Hispanic judicial nominees.

   We have 10 Hispanic judges on the courts of appeals now. Eight of them were appointed by President Clinton. I know they were all backed by these Hispanic leaders. In fact, there were a number of other Hispanic judges who were also nominated by President Clinton who were also backed by the organizations, and unfortunately, the Republicans would not allow them to even come to a vote in the committee, say nothing about coming to a vote on the floor of the Senate.

   Notwithstanding the number who were blocked by Republicans from ever even coming to a vote, President Clinton did appoint more Hispanics to the Federal bench than any President before him.

   I ask unanimous consent to print in the RECORD letters in opposition to Mr. Estrada from MALDEF and other Hispanic organizations.

   There being no objection, the material was ordered to be printed in the Record, as follows:

   Mexican American Legal Defense and Educational Fund and Southwest Voter Registration and Education Project,

   January 29, 2003.
Re opposition to the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals.

Hon. Orrin Hatch,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.
Hon. Patrick Leahy,
Ranking Member, Committee on the Judiciary, U.S. Senate, Washington, DC.

   Dear Mr. Chairman and Ranking Member: On behalf of the Mexican American Legal Defense and Educational Fund (MALDEF) and Southwest Vote Registration and Education Project (SVREP), we write you on a matter of great importance to not only the Latino community but all Americans--the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals. As you may know, our organizations weigh in on judicial nominations with varying frequency; although we are consistently and firmly committed to the view that the selection of federal judges for life-long appointments who will serve as the balance to the legislative and executive branches is critically important to our community. As a community, we recognize the importance of the judiciary, as it is the branch to which we have turned to seek protection when, because of our limited political power, we are not able to secure and protect our rights through the legislative process or with the executive branch. This has become perhaps even more true in light of some of the actions Congress and the executive branch have taken after 9/11, particularly as these actions affect immigrants.

   After an extensive review of the public record that was available to us, the testimony that Mr. Estrada provided before the Senate Judiciary Committee, and the written responses he provided to the Committee, we have concluded at this time that Mr. Estrada would not fairly review issues that would come before him if he were to be confirmed to the D.C. Circuit Court of Appeals. As such, we oppose his nomination and urge you to do the same.

   While the appointment to any Federal bench is important to our community, appointments to circuit courts become even more important when the Supreme Court accepts fewer than 100 cases a year to hear. Thus, circuit courts are often the last arbiters on determining the rights of individuals and communities. The D.C. Circuit is perhaps even more important than the other circuit courts because of the role it plays in reviewing an extensive amount of Federal agency actions, from regulatory actions to the orders and decisions of various Commissions and Boards. It has been reported that nearly half of the D.C. Circuit's caseload consists of appeals from federal regulations or decisions.

   In the memorandum attached, we outline a number of the areas which lead us to oppose Mr. Estrada's nomination. Our research and analysis cover a wide array of constitutional legal issues that affect not only the Latino community, but all Americans, including the First Amendment, the Fourth Amendment, the Fifth Amendment (Miranda), and due

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   MALDEF sent the full Senate Judiciary Committee and the White House a memorandum outlining these concerns prior to Mr. Estrada's hearing. We believe the burden to address the concerns we raised rested with the nominee, Mr. Estrada, and the Judiciary Committee gave Mr. Estrada ample opportunity to address them. Ultimately, Mr. Estrada had the affirmative obligation to show that he would be fair and impartial to all who would appear before him. After reviewing the public record, the transcript of the hearing, and all written responses submitted by Mr. Estrada, we conclude that he failed to meet this obligation. He chose one of two paths consistently at his hearing and in his written responses: either his responses confirmed our concerns, or he chose not to reveal his current views or positions.

   We must in good conscience oppose the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals. Based on the record available, we conclude that he would not fairly review matters before him as a judge in a number of areas that will have a great impact on our community. We urge you to oppose this nomination to a life-long appointment to the second most important court in the country. The power is too great to place in the hands of someone who has not shown that he would be fair in all cases that come before him.

   Sincerely,

--

   MEXICAN AMERICAN LEGAL DEFENSE

   AND EDUCATIONAL FUND,

   Washington, DC, January 27, 2003.

   Press Statement by Marisa J. Demeo, Regional Counsel, DC

   MALDEF EXPRESSES SERIOUS CONCERNS ABOUT STATE OF FEDERAL JUDICIAL NOMINATIONS--ANNOUNCES OPPOSITION TO NOMINATION OF MIGUEL ESTRADA TO THE DC CIRCUIT COURT OF APPEALS

   (WASHINGTON, DC).--The U.S. government system is set up as a checks and balances system, among the executive, legislative and judicial branches of our government. Since the founding of this country, the interests and rights of minorities, whether they be religious minorities, racial minorities, or other groups of people who do not have the power of the majority on their side, have been difficult to protect. During the civil rights struggle in this country, it was the courts which ensured that the values contained in our Constitution were preserved even for those who did not have equal representation or an equal voice in the legislative or executive process.

   Today, Latinos number 37 million residents in the U.S. Despite this growing demographic presence, we have never had someone serve as the President of this country, and we remain the only minority group that is underrepresented in our federal work force. We have no Latinos serving in the Senate, and only twenty-two Latinos in the House of Representatives. At the state level, we have a little more representation but still are significantly underrepresented. For example, out of all the Governors in this country, only one is Latino.

   MALDEF serves as the lawyer for the Latino community across this country in our courts. As such, we have established two major goals for our community to shape the federal judiciary--often, the only place where we have a chance to be heard and have our rights protected. The first goal is to increase the presence of Latino lawyers on the federal bench. Only about 5% of those serving as judges in our federal courts are of Hispanic background. When we number 12.5% of the population, there is a lot of room for improvement. On this score, President Bush has to do a better job.

   Our second goal, which is as important as the first, is that we want judges appointed to the federal courts who will be fair to our community and the issues we must bring before the courts. The issues we must bring to the court are often complex and controversial--including such issues as discrimination, affirmative action, racial profiling, and use of excessive force by law enforcement. We need judges who will approach these issues by objectively and fairly evaluating the law and the facts, and not judges who come to the courtroom already convinced that our arguments are without merit. President Bush has failed our community on this score as well, as too many of his nominees come to the process with set ideological beliefs that they cannot set aside.

   The most difficult situation for an organization like mine is when a President nominates a Latino who does not reflect, resonate or associate with the Latino community, and who comes with a predisposition to view claims of racial discrimination and unfair treatment with suspicion and doubt instead of with an open mind. Unfortunately, the only Latino who President Bush has nominated in two years to any federal circuit court in the country is such a person. President Bush nominated Miguel Estrada to the D.C. Circuit Court of Appeals. After a thorough examination of his record, his confirmation hearing testimony, and his written answers to the U.S. Senate, we announce today our formal opposition to his nomination. We cannot in good conscience stand on the sideline and be neutral on his nomination or others like his. We oppose his nomination and that of others that will prevent the courts from serving as the check and balance so desperately needed by our community to the actions being taken by the executive and legislative branches.

--

   WASHINGTON, DC, May 1, 2002.
Hon. Patrick Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.

   Dear Mr. Chairman: As national Latino civil rights organizations, we write on a matter of great importance to U.S. Latinos, and all Americans--the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals. Although historically we have expressed our views on judicial nominees with different levels of frequency, we are united in our view that all federal judicial appointments are important because they are life-long appointments, because they are positions of great symbolism, and because federal judges interpret the U.S. Constitution and federal laws serving as the balance to the legislative and executive branches of the federal government. While the Supreme Court is the highest court, the appellate courts wield considerable power. During its most recent term, the Supreme Court heard only 83 cases, while the circuit courts decided 57,000 cases. As a practical matter, circuit courts set the precedent in most areas of federal law.

   We are united at this time around our belief that Mr. Estrada's nomination deserves full, thoughtful, and deliberate consideration. The President proposes to place Mr. Estrada, who has no judicial experience, on arguably the single most important federal appeals court to decide a myriad of statutory and regulatory issues that directly affect the Latino community. Every appointment to a powerful court is important as we recently witnessed in the Supreme Court's 5-4 decision in Hoffman Plastics that stripped undocumented workers of certain labor law protections. This decision, which inevitably will result in increased exploitation of the undocumented, as well as weaker labor standards for all low-wage workers, underscores the importance of nominations such as this one, not just to Hispanics, but all Americans.

   This decision comes on the heels of a series of Supreme Court decisions which, in our view, have unnecessarily and incorrectly narrowed civil rights and other protections for Latinos. While we look to see if judicial nominees meet certain basic requirements such as honesty, integrity, character, temperament, and intellect, we also look for qualities that go beyond the minimum requirements. We look to see if a nominee, regardless of race or ethnicity, has a demonstrated commitment to protecting the rights of ordinary U.S. residents and to preserving and expanding the progress that has been made on civil rights, including rights protected through core provisions in the Constitution, such as the Equal Protection Clause and Due Process Clause, as well as through the statutory provisions that protect our legal rights.

   We are aware that some are demanding a commitment from you and the Judiciary Committee to announce a date certain for action on Mr. Estrada's nomination. We agree with the proposition that every nominee deserves timely consideration. For this reason, we urged the Senate to act on the nomination of Judge Richard Paez to the Ninth Circuit Court of Appeals, who was forced to wait for four years before being confirmed. We also believe, however, that if a nominee's record is sparse the Judiciary Committee should allow sufficient time for those interested in evaluating his record, including the U.S. Senate, to complete a thorough and comprehensive review of the nominee's record. We therefore respectfully request that you consider scheduling a hearing no earlier than August, prior to the scheduled recess. This leaves sufficient time for action prior to adjournment if his record is strong enough to receive substantial bipartisan support.

   In the interim, we pledge to conduct a fair and thoughtful assessment of Mr. Estrada's record, and to communicate our views on his nomination to you, Ranking Member Hatch, and other Committee members in a timely manner.

   Sincerely,

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   California LaRaza Lawyers & Mexican American Legal Defense and Educational Fund,

   September 24, 2002.
Hon. PATRICK LEAHY,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.

   DEAR MR. CHAIRMAN: On behalf of Latino legal and civil rights organizations, we write you on a matter of great importance to not only the Latino community but all Americans--the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals. As you may know, our organizations weigh in on judicial nominations with a variety of frequency; however, we are all firmly committed to the view that the selection of federal judges for life-long appointments who will serve as the balance to the legislative and executive branches is critically important to our community. As a community, we recognize the importance of the judiciary, as it is the branch to which we have turned to seek protection when, because of our limited political power, we are not able to secure and protect our rights through the legislative process or with the executive branch. This has become even more true in light of some of the actions of the legislative and executive branches after 9/11 as these actions affect immigrants in particular.

   After an extensive review of the public record that was available to us, we have concluded at this time that we have serious concerns about whether Mr. Estrada would fairly review issues that would come before him if he were to be confirmed to the D.C. Circuit Court of Appeals. While the appointment to any federal bench is important to our community, appointments to circuit courts become even more important when the Supreme Court accepts fewer than 100 cases a year to hear. Thus, circuit courts are often the last arbiters on determining the rights of individuals and communities. The D.C. Circuit is perhaps even more important than the other circuit courts because of the role it plays in reviewing an extensive amount of federal agency actions, from regulatory actions to the orders and decisions of various Commissions and Boards. It has been reported that nearly half of the D.C. Circuit's caseload consists of appeals from federal regulations or decisions.

   Some of us have stated during the previous Administration that we believe in a nominee's right to have a hearing. Many of us pushed in the past for hearings, with mixed success, for such Latino nominees as Richard Paez, Sonia Sotomayor, Enrique Moreno and Jorge Rangel. We still believe it is right to give a nominee a hearing once his or her public record has been explored to the fullest extent possible. That is why we support the Judiciary Committee's decision to have a hearing on Mr. Estrada. This public hearing will give Mr. Estrada, the Senate and the public a chance to hear from Mr. Estrada himself about the concerns that we and others have about his nomination.

   In the memorandum attached, we outline a number of the areas which lead us to have our grave concerns about Mr. Estrada's nomination. Based on our research, but is unclear whether he would be fair to Latino plaintiffs as well as others who would appear before him with claims under the First Amendment, the Fourth Amendment, the Fifth Amendment (Miranda), and the process clauses of the U.S. Constitution. Further, we found evidence that suggests that he may not serve as a fair and impartial jurist on allegations brought before him in the areas of racial profiling, immigration, and abusive or improper police practices where those practices are adopted under the ``broken window theory'' of law enforcement. We also have concerns about whether he would fairly review standing issues for organizations representing minority interests, affirmative action programs, or claims by low-income consumers. We are also unsure, after a careful review of his record, whether he would fairly protect the labor rights of immigrant workers or the rights of minority voters under the Voting Rights Act.

   We believe the burden to address these concerns lies with the nominee, Mr. Estrada. The Judiciary Committee should ask questions about these issues and give Mr. Estrada an opportunity to address the concerns. Ultimately, Mr. Estrada has the affirmative obligation to show that he would be fair and impartial to all who would appear before him. We hope you will be able to gather information at the hearing as to whether he meets this affirmative burden.

   We look forward to the hearing and anticipate we could have further recommendations to you once we have had a chance to fully evaluate the answers that Mr. Estrada provides to the Committee at the hearing and afterward.

   Sincerely,

   Mr. LEAHY. Latino labor leaders made this point: They say Mr. Estrada is a stealth candidate whose views and qualifications have been hidden from the American people and from the Senate. He has refused to answer important questions about his views and his judicial philosophy. They say it would be simply irresponsible to put him on the bench, and that is true.

   To go back to some of the judges my good friend from Utah, the senior Senator from Utah, has talked about, Judge Richard Paez was a man strongly supported by his home State Senators. He was supported by every single Hispanic organization, and he was made to wait 1,500 days for a vote. I think a lesser person would have said: I am not going to stand, I am not going to do it. But with the very strong support he had from the Hispanic community, he did not want to let them down. He did not want to let down his family.

   I talked with him many times during that time and encouraged him to stay with it. Elections came and went and he held on. Finally, he was given a vote. President Clinton had to get reelected as President to have this happen. When we hear how great it was that they put him through finally, after 5 years of total humiliation, and that is 5 years during which he was endorsed by every single Hispanic organization that spoke, he was allowed to come to a vote, but almost 40 Republicans voted against him.

   I talked about Judge Sonia Sotomayor. This is somebody who had a unanimous well-qualified rating from the ABA, the highest rating possible. One would think this would have been a slam dunk. She was supported by every Hispanic organization. She had first been appointed to the Federal bench by the first President Bush. This should have been very easy, but every time we wanted to bring her up for a vote on the floor, there was an anonymous hold on the Republican side. Nobody wanted to step forward.

   I will step up and state my opposition to Miguel Estrada. I feel that is only fair. I do not believe in anonymous holds. But every time we tried to bring up Sonia Sotomayor, a person who is listed by my friend from Utah as being one of the marks of excellence, a Republican would put on an anonymous hold, not even come forward and say, look, I want a debate against this person.

   She finally came to a vote. Twenty-nine Republicans voted against this outstanding person. To his credit, my friend from Utah voted for her. I do appreciate that, and I complimented him at that time.

   Even though President Clinton appointed 80 percent of the Hispanic circuit judges that are now on the court, there would have been more. He appointed two from Texas to the Court of Appeals for the Fifth Circuit, Jorge Rangel and Enrique Moreno of Texas. What happened? No Republican voted against them, to their credit. But why? They never received a hearing or a vote. They were never allowed to come to a vote. So nobody had to vote against them. They were backed by every single Hispanic group that I know of.

   Before we say, oh, my gosh, what are we doing to this poor Hispanic American, here are two who were backed by every single Hispanic group, had high ratings, nominated to the Court of Appeals for the Fifth Circuit, and they were never allowed to have a vote.

   Christine Arguello of Colorado was nominated to the Tenth Circuit. As I recall, she was backed by every single Hispanic

   group there was. She was never allowed to have a vote.

   What I tried to do during the slightly over a year I was able to be chairman of the Judiciary Committee, I wanted to bring back some fairness to the confirmation process. I tried to address the vacancies we inherited as a result of a refusal to have votes on President Clinton's nominees. I brought a number of them forward. I also said I would not agree to this idea of anonymous holds, something that had blocked so many of these Hispanic judges.

   Late last week President Bush nominated one more Hispanic American to the Fifth Circuit. That is good; he has now nominated two, which is, of course, a fraction, two-thirds, of those

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   It is not Senate Democrats who have created a confrontation over the Estrada nomination. It begins on the other end of Pennsylvania Avenue. I told this to the distinguished majority leader again this morning, that I have tried to work with the White House to see if there is some way we might move this process back to the kind of bipartisan process it was when I first came to the Senate, and that it was under both Republican and Democratic leadership for a long time but which it is not now.

   I have urged the White House to make an effort to unite rather than divide and then we might go somewhere, but there is a deafening silence from the other side of the Pennsylvania Avenue. I do not think they really care. I think they see court packing as being an answer to right-wing ideologues. I think they see that there should be a political move on the major Federal courts that, even though that would destroy their independence, even though that would diminish substantially the integrity of the Federal courts, they think it should be an ideological court packing.

   We see this coordinated effort to impose a narrow ideology on our Federal courts. The President campaigned saying that Justices Scalia and Thomas are his model nominees, and that is what he would use as a model for whomever he appoints. The Estrada nomination is evidence of that. Justice Scalia particularly was a nominee who is not only strident in his views but refused to share them with the Senate before his confirmation.

   Senators on both sides of the aisle stood up and said they were concerned with this stonewalling and they would not stand for it in the future. At least one side of the aisle has stuck with that.

   Now, last year there was a panel discussion at the Federalist Society luncheon in which Lawrence Silberman and others discussed the strategy of saying nothing in confirmation hearings. The report was that Judge Silberman offered the same advice he had given Antonin Scalia when Scalia was nominated to the Supreme Court in 1986: Keep your mouth shut. Mr. Estrada has followed that to the letter.

   I ask, why is the record for the Senate's consideration being kept so thin? The answer is, so the White House can have it both ways. They choose nominees based on narrow judicial ideology but insist the Senate proceed without considering it and, if possible, without knowing it. Secrecy and intimidation are the preferred methods of operation.

   Anyone who had any remaining doubt about the criteria used by the White House to select judicial nominees need only consider the admissions, including news reports over the last couple of weeks following the reports in late January of Robert Novak and White House Counsel Alberto Gonzales's role in crafting the administration's brief opposing the University of Michigan affirmative action case. There have been a series of reports of a ``loud whispering campaign'' in which right-wing conservatives touted Miguel Estrada as a safer, more reliable, conservative Hispanic for the President to nominate to the Supreme Court in lieu of Alberto Gonzales.

   Why? Pure and simple: Ideology; and a belief that you can nominate somebody who will vote not as an independent member of the Judiciary but as a Republican and--more than that--be part of the small, very conservative coterie of the Republican Party, and do it consistently and predictably.

   I went to law school. As a lawyer, I argued a lot of cases before Federal courts. You assume the judge will be independent and will not treat anyone one way or the other depending upon their political party, but that he or she will decide the case based on the facts. This apparently is no longer enough for this administration. They want a Republican judge who will vote as a Republican who will be consistent and predictable. In other words, if you are a Democrat coming before the Federal court or if you do not eschew a particular Republican ideology when you come before that court, you are not going to get independent treatment. That is wrong.

   USA Today noted that when the Bush administration did not go as far as GOP hardliners wanted in opposing the University of Michigan's affirmative action program, some blamed Gonzales. That has led to an unusually aggressive whispering campaign. Conservative activists have been successful in persuading President Bush to nominate hardline candidates, but lower courts made it clear to reporters that George W. Bush and others do not believe Gonzales is Supreme Court material. They go on to report conservatives also touting Miguel Estrada, native of Honduras and former Justice Department lawyer, who has been nominated by President Bush to serve on the U.S. appeals court in Washington, DC.

   The administration seeks to have it both ways. They want to take credit with the Federalist Society when they nominate ideological nominees, but they also want to pretend to the American public that ideology does not matter.

   I ask this: If ideology does not matter to the Republicans, why did they obstruct scores of President

   Clinton's nominees to the courts, including several to the DC Circuit? If ideology does not matter, why did Republicans vote in lockstep against Justice Ronnie White of Missouri to be confirmed to the district court? If ideology does not matter, why did Republicans filibuster the nominations of Justice Rosemary Barkett to the Fifth Circuit, Judge H. Lee Sarokin to the Third Circuit in 1994, Judge Richard Paez and Marsha Berzon to the Ninth Circuit in 2000? To say we would never do this obscures the record and blurs the rationale.

   Let me share with the Senate an account of Republican use of ideology in connection with judicial nominations. There was a column in the Wall Street Journal in the summer of 1998 explaining the anonymous Republican holds on the nomination of Judge Sonia Sotomayor to the Second Circuit Court of Appeals. I worked hard for 2 years on that nomination. It is my circuit. It is the circuit court I argued in front of when I was in private practice. I was astounded when Republicans held her up for months without a vote. I could not understand why such an outstanding nominee was being stalled by Republicans. After all, she initially was appointed to the Federal bench by a Republican President. Not only that, she had an outstanding record as a judge and, before that, an outstanding record in private practice and an outstanding record as a prosecutor.

   What was not to like about this Hispanic woman appointed initially by a Republican and now nominated by a Democrat? She had been confirmed by the Senate to the U.S. District Court for the Southern District of New York in 1992 after being nominated by the first President Bush. She started in a housing project in the Bronx. She then attended Princeton University and Yale Law School. She worked for more than 4 years at the New York District Attorney's Office as assistant district attorney. She was in private practice in New York.

   So then Mr. Gigot explained to all what was the problem behind the closed doors of the Republican Cloakroom. Republicans were fearful, if she were confirmed quickly, she could be in line to be nominated to the U.S. Supreme Court. Mr. Gigot wrote:

   If liberals do prevail, the president could turn to 43-year-old district court judge Sonia Sotomayor. She's every Republican's confirmation nightmare--a liberal Hispanic woman put on the district bench by George Bush.

   That was what the Republicans and the Wall Street Journal editorial writers said.

   Then the Wall Street Journal followed up, based on what they had been told by the Republican Cloakroom. They editorialized a few days later and issued these instructions. I recall, when we were issued instructions and the majority leader, George Mitchell, put together a plan that brought about a balanced budget, they said it would bring about economic ruin. We then had 8 years of the most spectacular rise in our economy and the highest employment we ever had.

   They issued instructions on June 8, 1998. We would like to think the Republicans may be having second thoughts and are deliberately delaying her confirmation to see whether Justice Stevens announces his retirement when the current Court term ends this month.

   The reason for the delay was confirmed by a subsequent report in the New York Times. That is just one of

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   I ask unanimous consent to have printed in the RECORD the May 29, 1998, column and the June 8, 1998, editorial in the Wall Street Journal.

   There being no objection, the material was ordered to be printed in the RECORD, as follows:

   Visible Absence of Latinos on Federal Courts

--

   Your editorials claim that Senate Judiciary Chairman Patrick Leahy is taking too long to confirm Miguel Estrada to the D.C. Circuit Court of Appeals position that is often viewed as a stepping stone to the Supreme Court (``No Judicial Fishing,'' June 11 and ``The Estrada Gambit,'' May 24).

   Yet no mention was made of the delays for Latino-nominated judicial candidates to the circuit courts during the Clinton administration under a Republican-controlled Senate. It took four years to confirm the nomination of Judge Richard Paez to the Ninth Circuit Court of Appeals, and he had to be nominated three times. In two instances, the Senate did not even schedule a hearing for two eminently qualified Latinos to the Fifth Circuit Court of Appeals: Enrique Moreno and Jorge Rangel, whose nominations languished and died in the Judiciary Committee.

    The Mexican American Legal Defense and Education Fund (MALDEF) believes it is unfortunate the federal judiciary remains predominantly white and male. Latinos are visibly absent from the Supreme Court and many of the federal appellate courts. but just being Latino is not enough. At the end of the day, the decisions made by these individuals apply to all regardless of race, ethnicity, gender or immigrant status.

   The fact that a nominee is Latino should not be a shield from full inquiry, particularly when a nominee's record is sparse, as in Mr. Estrada's case. It is vital to know more about a nominee's philosophies for interpreting and applying the Constitution and laws.

   It is also important for Latinos to raise questions about how a nominee's views might affect our community. MALDEF is not seeking to stall Republican nominees. During President Bush's first year, two Latinos whom MALDEF supported were nominated and have been confirmed. We have met with White House officials and asked them to nominate more Latinos. To date, President Bush has nominated only one Latino to the circuit court.

   We firmly believe that all judicial nominees should have hearings once their records have been adequately examined in a fair and impartial manner.

   Individuals appointed to the federal bench, a lifetime appointment, must meet basic requirements such as honesty, integrity, character and temperament.

   But the inquire must not stop there. We must also look to the nominee's record as it reflects his/her demonstrated understanding and commitment to protecting the rights of ordinary residents and to preserving and expanding the progress that has been made on civil rights, including rights protected through core provisions in the Constitution, such as the equal protection clause and the due process clause, as well as through the statutory provisions that protect our legal rights.

   Since 9/11, America has been embroiled in a serious public debate about who we are as Americans and what are the limits of our freedoms, who should enjoy the protections of our laws, and what rights are to be extended or denied to Latinos.

   When the Supreme Court recently stripped immigrant workers of important employee protections (Hoffman Plastics), Latinos inquired why their voices mattered so little when so much was at stake. Many asked why Latinos have had so little representation in a judiciary that has the power to shape their lives. Legitimate debate is integral to the judicial selection process, and therefore it is legitimate to have this debate within the context of confirming individuals who are supposed to serve as impartial referees in this public debate.

--

   Supreme Politics: Who'd Replace Justice Stevens?

   President Clinton could soon make his third Supreme Court appointment, and his political play will be to trump Senate Republicans by naming the first Hispanic justice.

   Such speculation is in high gear among Republicans because the White House is already floating the names of potential replacements should Justice John Paul Stevens pack it in when the high court's term ends in the next month.

   Retirement for the flinty, independent 78-year-old justice is no sure thing. Merely hearing such speculation could cause him to stay on, and by all accounts he's in good mental and physical health. It's also clear from his Clinton v. Jones opinion that he's no great admirer of this president.

   But friends who've spoken with Justice Stevens say that for the first time he seems like a man seriously contemplating retirement. He already spends much of his time in Florida, where his wife wouldn't mind seeing him more. He's also talked about the subject with more than one of his bench colleagues.

   The timing would certainly make ideological sense for the court's ranking liberal. By retiring this year, he'd shelter his successor's confirmation from the presidential politics that will be going strong next summer. A Clinton nominee next year would also probably face a Senate with even more Republicans than the current 55.

   If Mr. Stevens waits until the summer of 2000, he'd run the risk that his successor would be named by a conservative president. While the justice appointed by Gerald Ford likes to claim GOP credentials, you can bet he doesn't want to be replaced by another Antonin Scalia. If he wants to preserve the current court's precarious liberal-conservative balance, this is the year to depart.

   The biggest beneficiary would be Mr. Clinton, who is eager to pad his lackluster legacy. That argues for naming the first Hispanic justice, an act of symbolic politics that would enhance Democratic ties to the nation's fastest growing ethnic group.

   The move would also mousetrap Senate Republicans, who will be loathe to oppose anyone with a Hispanic surname. Still smarting from the backlash against their anti-immigration idiocy of 1994-96, some Republicans would vote to confirm Geraldo Rivera.

   And the problem is, they might have to vote on the judicial equivalent. The lineup of qualified Hispanic Democratic judges is shorter than admirers of Monica Lewinsky's lawyer William Ginsburg. A list submitted to the White House (and delivered in person to Vice President Al Gore) by the Hispanic National Bar Association contains only six mostly minor-league names.

   Voters recalled Cruz Reynosos from the California bench along with Rose Bird in 1986. Vilma Martinez has been a liberal civil-rights litigator. Gilbert Casellas ran the Equal Employment Opportunity Commission but has been passed over by Mr. Clinton for the appellate bench.

   The list's one genuine legal heavyweight is Jose Cabranes, a Puerto Rican immigrant named to the federal Second Circuit by Mr. Clinton in 1994. A former Yale general counsel, Judge Cabranes was advertised as a finalist when the president made his last Supreme Court pick. He's a judicial moderate and his confirmation would be a bipartisan breeze.

   But his very moderation is making him less acceptable to many Clintonites this time. White House aides are already telling Senate sources and others that Mr. Cabranes isn't reliably liberal enough to replace Justice Stevens. He's especially suspect on the liberal orthodoxy of classifying everyone by racial and ethnic identity. He's no conservative, but he's spoken out publicly for the ``Western civilization curriculum'' attacked by the left.

   Liberals also fret about the influence of Mr. Cabranes's daughter, whose sin is to have belonged to the Federalist Society and to have clerked for Judge Ralph Winter, a Reagan appointee. It may seem odd to blame a father for the beliefs of his daughter, but Clinton liberals believe in guilt by conservative association.

   If liberals do prevail, the president could turn to 43-year-old New York district court judge Sonia Sotomayor. She's every Republican's confirmation nightmare--a liberal Hispanic woman put on the district bench by George Bush (at the request of Democratic Sen. Pat Moynihan).

   Her willingness to legislate from the bench was apparent in her recent decision that a private group giving work experience to the homeless must pay the minimum wage. Never mind if this makes them that much harder to employ. Mr. Clinton has nominated Judge Sotomayor to join Mr. Cabranes on the Second Circuit, and she's said to be a favorite of Hillary Rodham Clinton.

   All of which means that a Stevens retirement would put a large political burden on the protean shoulders of Judiciary Chairman Orrin Hatch. His own choice would probably be Judge Cabranes. And the Utah Republican has privately explained his brisk approval of Clinton lower-court nominees as a way to gain leverage and credibility for the more significant Supreme Court pick. But Mr. Clinton has fooled Republicans before. Maybe Republicans are better off begging Justice Stevens to stay.

   Mr. LEAHY. When the Republicans now protest that the Senate can only look at where a person went to school, and the rating the newly compliant ABA provides, they are disregarding their own past practices. A young conservative activist spilled the beans quite explicitly recently on the ``Crossfire'' television program in which he said:

   ..... the second [he] gets in there he'll overrule everything you love--

   Everything moderates have worked to enact over the years.

   That seems to be the badly kept secret, as to why the White House chose Mr. Estrada for this nomination--precisely because of his ideology. Keeping that secret is apparently what motivated the strategy that resulted in his extraordinary lack of responsiveness to substantive questions regarding his views and judicial philosophy.

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   Nobody can look at opinions of the Supreme Court and believe that Justice Scalia and Justice Thomas do not have an agenda, the two stated by the President to be his model for nominees. But I am left with a fear that Mr. Estrada, likewise, comes to this nomination with a hidden agenda.

   Maybe it is the nature of the beast, but I have never seen so many crocodile tears in my life from the other side of the aisle as they ask: Why are we asking these questions? How can you possibly question this man? How can you possibly question this man?

   I am going to tell the Senate a secret as to why it is we asked for this. I know my friends on the other side may not want to let this out, so I will tell it just to those in this room where we learned to look into this. We heard it from a speech given to the Federalist Society in which the Senator speaking said:

   [T]he Senate can and should do what it can to ascertain the jurisprudential views a nominee will bring to the bench in order to prevent the confirmation of those who are likely to be judicial activists. Determining who will become activists is not easy since many of President Clinton's nominees tend to have limited paper trails ..... Determining which of the President's nominees will become activists is complicated and it will require the Senate to be more diligent and extensive in its questioning of a nominee's jurisprudential views.

   I read that speech. In a sense of bipartisanship, I want you to know that I agree exactly with what Senator Hatch said in Utah when he gave that speech to the Utah branch of the Federalist Society. When Senator Hatch said that we have to prevent the confirmation of those who are likely to be judicial activists; the Senate must be more diligent and extensive in its questioning of nominees' jurisprudential views, I think my friend from Utah had it absolutely right and, guess what, that is exactly what we are doing here.

   In fact, when a Democratic President was sending judicial nominees to the Senate, the man who would later become the principal Deputy White House Counsel for the President, the man who played a significant role in the selection of President Bush's judicial nominees, Tim Flanigan, said, the Judiciary Committee and the Senate must be extraordinarily diligent in examining the judicial philosophy of judicial nominees.

   This man, who went on to help the current President Bush pick judicial nominees, said:

   In evaluating judicial nominees, the Senate has often been stymied by its inability to obtain evidence of a nominee's judicial philosophy. In the absence of such evidence, the Senate has often confirmed a nominee on the theory they could find no fault with the nominee. I would reverse the presumption and place the burden squarely on the judicial nominee to prove that he or she has a well-thought-out judicial philosophy, one that recognizes the limited role of Federal judges. Such a burden is appropriately borne by one seeking life tenure to wield the awesome judicial power of the United States.

   I agree with that. What I do not agree with is that we say we must have a standard of impartiality on judges, that they cannot be activists, that they must answer their questions--we can say that is the standard if it is a Democrat referring them to the Judiciary Committee, but that all goes out the window when it is a Republican.

   I agree that we must ask what their judicial philosophy is and they must answer the questions. That is the standard that the Republicans set over and over again, both those who went on to serve in the White House and my friend from Utah when he was chairman of the Senate Judiciary Committee. It is a standard on which we should all agree.

   But what I do not agree on is when it is a Republican making the nomination, no standards are required--no standards are required. We can't ask about philosophy. We can't ask about temperament. We can't ask what they are going to do with this lifetime appointment.

   In this case specifically, Mr. Estrada refused to provide us the answers about the types of jurisprudential views that Chairman HATCH and Mr. Flanigan said they must--they must--answer. At least they said they must answer when it was a Democrat nominating them. But I guess if it is a Republican nominating them we get kind of a pass; that there is going to be jurisprudential purity.

   Extensive questioning of this nominee's jurisprudential views have been forestalled and short circuited. He does have a paper trail but it has been kept secret by the White House. There is a paper trail that says what his jurisprudential views are, but the White House has kept it secret.

   We want judges to be fair and impartial. That is what I believe most Americans want. An independent judiciary is a bulwark against us losing our rights and our freedoms. I say

   it again. The vast majority of people, if they go into Federal court, want to be treated fairly. They want to look at that judge and say, it doesn't make a difference whether I am Democratic or Republican, conservative, liberal, rich, poor, what my color is, or what my creed is, or anything else; I am now before the Federal courts, the most respected judicial system in the world, and I am going to be treated fairly.

   But, whether they know it or not, whether they think of it or not, they have that sense that it is going to be a fair treatment because historically the Senate has maintained that integrity and independence of the Federal judiciary.

   From the first part of our Nation's history when the Senate even turned down judges nominated by President George Washington, the most popular President in our history, the Senate has maintained the integrity and independence of the Federal judiciary.

   As I said before, I have voted on hundreds of judges. I voted for hundreds of judges of Republican Presidents--President Ford, President Reagan, former President Bush, and the current President Bush, just as I have for Democratic Presidents. I have also voted against judges, those nominated by Democratic Presidents as well as by Republican Presidents. I do this because I know it is a lifetime appointment and we want to make sure of what we do. Most I voted for confirmation.

   As I said before, we set an all-time record--certainly the record for the last 10 or 15 years--during the year and a half or so that I was chairman of the Senate Judiciary Committee, sending out 100 Federal judges, both circuit and district,

   including, I say to the Senator from Alabama and the Senator from Utah who is in the Chamber, judges from their States--not Democrats. They were Republicans. I think a lot of their philosophy is different than mine. I trusted their integrity, and they answered the questions.

   But here, the little record we have calls into question whether this person can be a neutral referee or an advocate and activist from the bench. That is really where we are.

   We have a duty to the American public to say when we give our imprimatur by voting to confirm somebody to a lifetime position on the Federal courts that we have made every effort possible to make sure we are going to maintain the integrity and the independence of the Federal judiciary; that we are not going to turn the Federal judiciary into a political arm.

   We elect Presidents. In electing them, we say they can be political. I said I wish Presidents would be uniters and not dividers. In this case, they have been a divider and not a uniter--but the nature of it is they are expected to be political.

   We elect men and women to the House of Representatives and to the Senate to carry a political agenda, but we put people on the Federal judiciary to be independent and nonpolitical. Here we are being told that we are going to fill out a political agenda.

   My friend from Alabama wishes to speak. I will speak further but give him a chance to speak.

   Mr. President, I ask unanimous consent that several editorials and letters opposing Mr. Estrada's nomination be printed in the RECORD.

   There being no objection, the material was ordered to be printed in the RECORD, as follows:

   An Unacceptable Nominee

   The Senate Judiciary Committee is scheduled to vote tomorrow on Miguel Estrada, a nominee to the D.C. Circuit Court of Appeals. Mr. Estrada comes with a scant paper trail but a reputation for taking extreme positions on important legal questions. He stonewalled when he was asked at his confirmation hearings last fall to address concerns about his views. Given these concerns, and given the thinness of the record he and his sponsors in the administration have chosen to make available, the Senate should vote to reject his nomination.

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   Mr. Estrada, a native of Honduras and graduate of Harvard Law School, has a strong legal resume. But people who have worked with him over the years, at the solicitor general's office and elsewhere, report that his interpretation of the law is driven by an unusually conservative agenda. Paul Bender, a law professor and former deputy solicitor general, has called Mr. Estrada an ideologue, and said he ``could not rely on his written work as a neutral statement of the law.'' In private practice, Mr. Estrada defended anti-loitering laws that civil rights and groups have attacked as racist.

   Unlike many nominees who are named to an appeals court after years as a trial judge or professor, Mr. Estrada has put few of his views in the public record. One way to begin to fill this gap, and give the Senate something to work with, would be to make available the numerous memorandums of law that Mr. Estrada wrote when he worked for the solicitor general's office, as other nominees have done. But the White House has refused senators' reasonable requests to review these documents.

   Mr. Estrada, now a lawyer in Washington, also had an opportunity to elaborate on his views, and assuage senator's concerns, at his confirmation hearing, but he failed to do so. When asked his opinion about important legal questions, he dodged. Asked his views of Roe v. Wade, the landmark abortion case, Mr. Estrada responded implausibly that he had not given enough thought to the question.

   Senators have a constitutional duty to weight the qualifications of nominees for the federal judiciary. But they cannot perform this duty when the White House sends them candidates whose record is a black hole. Mr. Estrada's case is particularly troubling because the administration has more information about his views, in the form of his solicitor general memos, but is refusing to share it with the Senate.

   If Mr. Estrada is confirmed, he is likely to be high on the administration's list for the next Supreme Court vacancy. The D.C. circuit is a traditional feeder to the Supreme Court, and it is widely thought that for political reasons the administration would like to name a Hispanic.

   The very absence of a paper trail on matters like abortion and civil liberties may be one reason the administration chose him. It is also a compelling--indeed necessary--reason to reject him.

--

   Bush's Full-Court Press

   There are at least two explanations--one even more cynical than the other--for President Bush's renomination last week of Judge Charles W. Pickering, a man the Senate rightly rejected last year for a seat on the federal appeals court.

   Perhaps Bush really didn't mean it last month when he denounced as ``offensive . . . and wrong'' Mississippi Sen. Trent Lott's nostalgic musings about the segregated South. The Republican Party has long tried to have it both ways on race: ardently courting minority voters while winking at party stalwarts who consistently fight policies to establish fairness and opportunity for minorities. Even Bush has not always been above such doublespeak, encouraging African Americans to vote GOP and touting his Spanish-language facility on the campaign trail as a come-on to Latino votes even as he dropped in at Bob Jones University, which, until three years ago, barred interracial couples from sharing a pizza.

   Bush's renomination of Pickering, a man whose law career is unremarkable but for his longtime friendship with Lott and his dogged defense of Mississippi's anti-miscegenation laws, throws another steak to the far right and sand in the eyes of most Americans.

   There could be another explanation for Bush's decision, just weeks after denouncing Lott, to again shove Pickering on the American people. Perhaps the president doesn't really care whether Pickering, Whom he's indignantly defended as ``a fine jurist . . . a man of quality and integrity,'' is confirmed.

   Maybe Bush calculates that Sens. Edward M. Kennedy (D-Mass.), Charles E. Schumer (D-N.Y.) and others, justly incensed that the judge is back before them, will embarrass a Republican or two into joining them and defeat his nomination a second time. The president may be figuring that if they can call in enough chits on Pickering, the Democrats won't have the votes to stop the many other men and women he hopes to place in these powerful, lifetime seats on the federal bench.

   None of those nominees can be tarred with Pickering's in-your-face defense of segregation. But many, including Texas Supreme Court Justice Priscilla Owen, lawyers Miguel Estrada and Jay S. Bybee, North Carolina Judge Terrence Boyle and Los Angeles Superior Court Judge Carolyn B. Kuhl, share a disdain for workers' rights, civil liberties guarantees and abortion rights. Their confirmations would be no less a disservice to the American people than that of Pickering, who now has been nominated two times too many.

--

   Latino Would Set Back Latinos

   It is ironic the President Bush, whose lawyers excoriated affirmative action at the University of Michigan, would nominate Miguel Estrada, an unqualified Latino, to the U.S. Court of Appeals for the District of Columbia in order to achieve diversity. The full Senate takes up the nomination this week.

   The Mexican American Legal Defense and Educational Fund, or MALDEF, and other Latino and civil rights organizations believe that in a nation of more than 37 million Latinos, the federal judiciary should not remain overwhelmingly white and male. The nation needs judges who understand us, the Latinos are visibly absent from the Supreme Court and many of the federal appellate courts. The judiciary is the branch of government to which we have turned to seek protection when, because of our limited political power, we are not able to secure and protect our rights through the legislative process or the executive branch.

   However, Estrada has neither demonstrated that he understands the needs of Latino Americans nor expressed interest in the Latino community. A thorough review of his sparse record indicates he would probably make rulings that roll back the civil rights of Latinos. Simply being a Latino does not make one qualified to be a judge.

   The decisions made by judges apply to all, regardless of race, ethnicity, gender or immigrant status. Individuals appointed to the federal branch, a lifetime appointment, must meet basic requirements such as honesty, open-mindedness, integrity, character and temperament. They must also go a step beyond that and affirmatively demonstrate that they will be fair to all who appear before them in court.

   Estrada's lack of qualifications has prompted many prominent Latino organizations and others to oppose him, including MALDEF, the Puerto Rican Legal Defense and Education Fund, the Southwest Voter Registration and Education Project, Latino union leaders, the Leadership Conference on Civil Rights and Congress' Hispanic and Black causes.

   The available record of Estrada's legal positions raises grave concerns about how he might rule on constitutional matters affecting Latinos. For example, his work in the area of criminal justice raises serious doubts as to whether he would recognize the 1st Amendment rights of Latino urban youths and day laborers, and it casts serious doubt on whether he would fairly review Latino allegations of racial profiling.

   In 1977 he worked pro bono to defend the city of Chicago's ban on loitering, which was designed to curb gangs and drug activity. Instead, the ban resulted in police harrassment of Latino and African American youths. After the Supreme Court struck down the ordinance as unconstitutional, Estrada volunteered to defend a similar one in Annapolis, Md., which was also found to be unconstitutional.

   As a government attorney, he argued that police discretion was wide, that officers could execute a search warrant in a felony drug investigation without knocking and announcing who they were. This indicates his disdain for the protections of the 4th Amendment.

   In other areas, Estrada has stated that he has never raised the issue of diversity in any of his workplaces and that he would not seek to help Latinos by hiring them as clerks, and he dismissed concerns about the lack of diversity among Supreme Court law clerks. In 2001, in the Annapolis anti-loitering case, Estrada argued that the NAACP had no standing to represent the interests of African Americans. This indicates he probably would question the right of access to the courts of groups that have historically represented the interests of Latinos.

   Our opposition is not partisan. MALDEF has supported President Bush's nomination of well-qualified Latinos who are conservative and will continue to do so. However, when a nominee, like Estrada, is an ideologue who hides his views and who is so lacking in experience, we have little choice but to oppose the nomination. The courts and the job of justice are too important.

   Mr. LEAHY. Mr. President, I yield the floor.

   The ACTING PRESIDENT pro tempore. The Senator from Alabama is recognized.

   Mr. SESSIONS. Mr. President, I believe Senator Kyl was in the line to speak next. I think probably he will be here shortly.

   I would like to say one thing about this issue of ideology. We had hearings on it. I know Senator Schumer advocated that we ought to consider ideology--I guess he meant politics--of the nominee. Some of my friends across the aisle asked: Why do Republicans nominate Republicans and Democrats Democrats, if ideology doesn't matter?

   We voted for those nominees. President Clinton had confirmed during his tenure as President of the United States 377 Federal judges. This Senate voted down one judge. That is all we voted down on the floor of the Senate. None were blocked in committee. All were voted out of committee, unless they had objections from home State Senators and came up until the last of the administration. And 41 judges had been nominated and were pending either in committee or on the floor when President Clinton left office. Comparing that to when President Bush

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   I think all of us need to take a deep breath and to remember that the judiciary is made up of human beings. They are appointed by the President. Our President believes in judicial restraint. He believes that judges should not enact political agendas from the bench. That is the criteria he has used--that and excellence and integrity. Miguel Estrada, probably as much as any nominee we have ever had, represents excellence, integrity, and experience that would qualify him for the job. Indeed, he unanimously won the highest rating from the American Bar Association, ``well qualified.''

   But I will just say that we did, in fact, vote overwhelmingly for President Clinton's judges--377, and one we voted down. Only 41 were left pending when he left office, which is well within the tradition of this Senate.

   Frankly, if people get nominated late, they don't have time for hearings. Sometimes the Senate will think, let's see how the election comes out and leave some hanging. That has always happened here. That can be criticized. But we do that. What we are seeing now is a slowdown of nominees at the beginning of the process.

   I also note that as we considered these nominees we had hearings on the burden of proof. A group of liberal professors met with the Democratic leadership soon after President Bush was elected President. They made a proposal that the ground rules of judicial nominations should be changed. They didn't propose it while President Clinton was nominating his nominees, many of which were ACLU members, and many of which were strongly pro-abortion, and those kinds of things. They didn't raise that then. But as soon as the election was over, they proposed changing the ground rules, according to the New York Times report of that event. One of the things was that they would consider ideology. Another one was that they would change the burden of proof--that for the first time in history the burden would be on the nominee to somehow prove that they were worthy of the appointment instead of having the Senate review the presumptive power of the President to make the nominee and then if disagreeing object to them. That was a big deal. We had hearings on that in the court subcommittee of the Judiciary, of which I am a member.

   Senator Schumer was an advocate of both of these positions.

   But the hearings he held were fair, and we had an interesting debate about it.

   I will just say, being the ranking Republican during that time, that the witnesses and the evidence we took to me clearly did not support changing the ground rules. People such as Lloyd Cutler, who was counsel to the White House under Presidents Carter and Clinton, opposed that. He believed that nominees should be given also the presumption of confirmation. I thought it was pretty successful in how we handled it, and that the evaluations we considered on the issue should not be changed. The rules ought not to be changed to going to a different way of considering nominations.

   Senator Hatch--I have to agree, and I think my colleague, Senator Leahy, would agree with this--set forth a principal position for evaluating judges. He said we should consider judicial philosophy. He did not say we should consider their politics. He talked about judicial philosophy and the danger. The issue that concerned him and concerned most Americans was the question of judicial activism. This was a philosophy taught in law school for many years. I think maybe hopefully that it is a little less prominent today than it was 15 or 20 years ago--that good judges shove the envelope, good judges should be activists, they should promote good causes and use the power of their office to further causes which they believe are just and to strike blows for the poor, and that kind of thing. It was a strong philosophy.

   But the truth is that is a dangerous philosophy. When you are talking about a lifetime appointment of a person to the Federal bench, they should understand that they are not empowered to render rulings that go beyond the plain meaning of the law. They should not render rulings that twist the meaning of words--giving words new and different meanings than were intended when the Congress passed legislation, or when the Constitution was written. That is a very important issue to me.

   On this question of activism, when you give an unelected judge and an unelected court lifetime appointments with no accountability to the people, the power to redefine the meaning of words and to change historic understandings of our clauses and phrases in our statutes and in our Constitution, we have diminished democracy because they are democratically accountable. If we changed the law, they can vote us out of office. The next group of Senators or Congressmen can change the law if we vote badly. But if they declare that the Constitution says you can't do this or you must do that, then it is much, much more difficult to deal with.

   Certainly, in this Congress we do not want to impeach judges because we disagree with their opinion. What we need are judges on the bench who are honorable, intelligent, capable, and who understand their role, which is to enforce the law as written.

   And that is the kind of judge we ought not have fear of, as one witness said.

   Why should we fear a judge who shows restraint? Our liberties are not at risk by a judge who shows restraint. Our liberties are at risk when we have a judge who believes they have the ability to go beyond what statutes say and to do what they think is right. You have heard them say: Well, the legislature would not act, so the judges had to act. That is not legitimate. If the legislature did not act, that is a decision of the legislature, a decision not to act. It is no less valid than a decision by a legislature to act on a matter.

   Judges ought to follow the law as written. They ought to understand the great power of that branch of Government. They ought to be independent. They should strike down laws that are unconstitutional. That is not being activist. If a law is in violation of the Constitution, a conservative or liberal judge, I hope, will strike it down. We have accepted that since Marbury v. Madison, since virtually the beginning of this country. But that is not activist.

   What is activist is to misrepresent what the Congress intended, to twist the meaning of the words of the Congress, or to alter the meaning of the words of the Constitution to promote a short-term political agenda. I really think that is our problem. Activism can be defined in a number of ways, but it is quite different from a person's political philosophy.

   To me, the high water mark of judicial activism was when we had two members of the U.S. Supreme Court dissent on every single death penalty case. Their dissent was, they believed the death penalty was cruel and unusual punishment and the Constitution prohibits the imposition of cruel and unusual punishment. They said, according to the changing standards they live in today, this was no longer compatible with humane or legal systems or modern thought, and therefore they just found it cruel and unusual to execute anyone by any means, and therefore the whole death penalty statute should be struck down.

   The reason that was particularly ill advised, in my view, is that at the time the Constitution was adopted, it had the cruel and unusual punishment language in it but it also had six or eight references in an approving way to a death penalty. They talked about capital crimes and what the rules should be in a capital crime. And capital crimes are death penalty cases. They said life, liberty, and property cannot be taken without due process of law--you can't take life. That means a death penalty.

   Every State in the Union at the time the Constitution was written had a death penalty, and so did the Federal Government have death penalties. So for those two judges to actually dissent in case after case after case, to me, was merely imposing their personal views at one moment in time over the established will of the legal system that had been from the beginning. It is also contrary to the views of the majority of the States in the United States. And the polls have shown--if they want to go to evolving standards of decency that the American people oppose the death penalty--that, in fact, overwhelmingly they favor the death penalty. So I think we do need to watch that.

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   (Mr. CHAMBLISS assumed the chair.)

   Mr. SESSIONS. One of the big issues we have before us, as we consider President Bush's nominees, is: Are we looking to have people on the bench to further our political agenda, or are we just looking for a neutral arbiter, someone who can

   evaluate the cases between litigants and make a fair and just rendering of an opinion on it? That is what it is all about.

   One of the things that was raised in complaint about Miguel Estrada was he would not answer all their questions about his views on cases and lawsuits, and so forth. They said he would not produce his internal memoranda when he was a part of the Solicitor General's Office of the Department of Justice. Every living former Solicitor General of the United States, Republican and Democrat, to my knowledge, has written that he ought not to do that. Lawyers ought to be encouraged to write to their clients, the Department of Justice superiors, and give their opinions.

   Let me add one thing about that issue. The memoranda that he wrote were not to John Mitchell. The memoranda that he wrote were for Janet Reno and the Clinton Department of Justice. He was in the Solicitor General's Office during that time. And he was evaluated and given the highest possible evaluation by the Clinton Department of Justice attorneys. One of them specifically noted in that evaluation that he followed the procedures and policies of the Clinton Department of Justice. So I do not see how it can be suspected that he was writing right-wing extremist memoranda within that Department of Justice while having the kind of respect and high evaluations that he had. So I believe that is important.

   There is a real reason that judicial nominees--and I know the Presiding Officer is a lawyer and understands these issues--why someone thrown into a hearing ought to be reluctant to answer questions about complex cases when we have a hearing on the confirmation of a nominee to the Federal courts of the United States. If they are confirmed, they will be given important cases on which to rule. I hope and I pray they will spend many hours reading the briefs of the parties, reading personally the major cases in the country that deal with that issue, and they give it sincere thought and prayerful consideration before they render a verdict. That is what we want.

   To throw somebody in a hearing and to start asking them how they are going to rule on this matter or that matter is improper. And asking them that would bind them, if they got in. In other words, let's say that they said: Well, I favor this, Mr. Senator; I hope that makes you happy; and I agree with you. And then they become a judge, and they get a stack of briefs, and they start reading the opinions, and they come back out with the belief that that is wrong. What have they done then? No. The history of our confirmation process and the strong opinion of the American Bar Association, an independent arbiter in these matters, is that they should not be lured into expressing opinions on cases that are likely to come before them on the bench. That is so fundamental and so sound a principle that I cannot imagine anyone would suggest it be changed.

   Lloyd Cutler, White House Counsel to Presidents Clinton and Carter, wrote this:

   Candidates should decline to reply when efforts are made to find out how they would decide a particular case.

   That was his testimony in our hearing as we discussed these issues in the Judiciary Committee. That certainly is correct to me. I believe that is sound policy, whether we have a Republican President or a Democratic President. I do not recall that Senator Hatch ever insisted a judge tell him how he was going to rule.

   My good friend Senator Leahy, he likes to talk about the Federalist Society and Senator Hatch making a speech at the Federalist Society. They take no position over any of these legal issues. They are a forum for debate. Most of the members, perhaps, believe in a restrained judiciary, but they have a lot of different ideas and vigorous debate, and they publish articles that disagree with one another.

   But we confirmed a host of Federal judges under President Clinton who were members of the American Civil Liberties Union. You may say: Well, you know the American Civil Liberties Union. They do some good work. I don't think we should just vote against them for that reason.

   And we didn't. We confirmed almost all of them. As a matter of fact, I am not sure any of them who were members did not get confirmed.

   Look at the Web site of the ACLU. It takes positions on issues. The ACLU believes there should be total separation of church and State. I am sure they agree with the proposal that we ought to take ``under God'' out of the Pledge of Allegiance. They believe in the legalization of drugs. They believe pornography laws should not be on the books and are unconstitutional. They believe even that child pornography laws are unconstitutional. That is a stated position.

   Out of deference to President Clinton's nominees and his power and prerogative of appointment, we confirmed a bunch of them who were members of the ACLU, one of whom was a litigation committee chairman for the ACLU. Others had been State directors of the ACLU.

   What did we do? We asked them in the hearing: Do you personally support all those views? They would usually say they didn't.

   We would say: Well, whether you agree or not on drug legalization, let me ask you this: If we pass a law that says drugs are illegal, will you enforce it? Will you take your office as judge and use it to undermine the established law of the land? And they would all say: We will enforce the law.

   That is how they came to be confirmed. I hope and trust to this day they are complying with that. Our system would not work were it otherwise.

   I reiterate my growing admiration for Miguel Estrada's capabilities. He came here as a teenager, was an honors graduate, the highest possible honors at Columbia College. He went to Harvard Law School where he finished at the top of his class and was chosen editor of the Harvard Law Review. For a graduating law senior from a law school to be editor of the Law Review is one of the highest, probably the highest, honor that can be received. He was chosen that by his fellow members.

   He didn't clerk for a Second Circuit Court of Appeals judge. They say he doesn't have judicial experience. He sat at the right hand of a Federal circuit judge, doing the kind of work he will be doing as a judge today, for 2 years. Not only that, he was such an astoundingly qualified and capable young lawyer, he was chosen to be a law clerk for Justice Anthony Kennedy on the Supreme Court of the United States. Anybody who knows anything about the legal profession knows being chosen as a law clerk by a Supreme Court judge is a great honor, something very few people ever get the opportunity to do. It is considered a matter of great significance.

   Of course, Justice Kennedy is considered one of the swing justices on the Supreme Court, not one my colleagues like to talk about as an extreme conservative. That is who he clerked for, and remains close to Justice Kennedy to this day. He is admired by him.

   Then he went to the Department of Justice to the Solicitor General's office. The Solicitor General's office is the law firm for the United States before the Supreme Court. It is within the Department of Justice. They prepare the arguments before the Supreme Court, the appellate courts. Of course, that is what Miguel Estrada will be considered for, an appellate court judge, not a trial judge, but an appellate court judge. He did a remarkable job there, receiving the highest possible evaluations by the Department of Justice.

   After that, he went into practice with one of the premier law firms in the world in Washington, DC, and was

   evaluated by the American Bar Association. The American Bar Association takes its evaluation seriously. They do an independent background check. They make the nominee submit a list of their most significant cases. They have to give the names and addresses of the judge who tried the case, names and addresses of the opposing counsel, and maybe even cocounsel, and to summarize the case.

   When that is done, the ABA interviews them. They don't interview just their friends. They interview the lawyers on the other side of the cases.

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   We are proud of his achievements. President Bush has nominated an extraordinary judge. As I study more about Miguel Estrada and see more of his record, the more confident I am he will be not just a good justice but a great one. I believe that strongly.

   I see Senator Kyl is here. We have been going back and forth, so if you were able to allow him to speak at this time, that would be good.

   Mr. LEAHY. Mr. President, if the Senator from Arizona has something else, of course, I will be here a lot longer, I believe. If it would accommodate him, I would be more than happy to do that. And then if we could go back to this side, I would appreciate it.

   Mr. SESSIONS. I thank Senator Leahy. I yield to the Senator from Arizona.

   The PRESIDING OFFICER. The Senator from Arizona.

   Mr. KYL. I thank Senator Leahy. I was hoping I would be able to speak a little bit earlier because there are specifically some things the Senator from Vermont said, so I am pleased he is here and I can respond to couple of comments he made. He is someone who, as chairman of the committee and now as ranking member, has important remarks about this process. I want to specifically relate to some of the things he did have to say.

   There are two aspects of this nomination of Miguel Estrada that should catch our attention. The first has to do with the qualifications of this extraordinary American. The second has to do with the process by which he is being considered. If we are not careful, this body could set a very bad precedent. If Senators actually decide to filibuster the nomination of Miguel Estrada, something I understand is being considered by the leadership on the other side, if the decision were made to filibuster him and his nomination failed as a result, it would be the first time in the history of the Senate. It would drastically change the way nominations for high judicial office are considered by the Senate, essentially substituting a 60-vote majority required for confirmation for the 50-vote majority that has heretofore been the standard.

   We can talk later about situations in which motions for cloture have been filed for one reason or another, but there has only been one real filibuster in the Senate in the past, and that was the filibuster of Justice Abe Fortas. His nomination was withdrawn after a cloture petition failed. In other words, debate was not cut off. The filibuster did continue. But that was a bipartisan filibuster, almost evenly divided between Republicans and Democrats. It was not a concerted effort by one side or the other to galvanize their members into speaking as long as it took to cause the withdrawal of the nomination by the leader.

   If the minority leadership decides to engage in that tactic with respect to Miguel Estrada, it would be not just unfortunate but permanently damaging to the relationship between the Senate and the executive and to the process by which we confirm nominations.

   It is both a matter of tradition and comity. I know there are some who make the argument that there is a requirement the Senate's confirmation process be by majority vote. I don't think that case has been definitively established, but it certainly has been a matter of tradition.

   There is a reason for it. That goes to the second. It has been a matter of comity. The way our separation of powers works is each branch respects the power of the other.

   Now, when the Founding Fathers set it up, they were clear to provide jurisdiction, but they left a lot of gray area between the jurisdiction of the three branches; and over the course of 200-plus years, the three branches of Government have accommodated to each other's jurisdiction in a way with which the Supreme Court has infrequently, but importantly, dealt.

   The Supreme Court, as a matter of fact, exercising that degree of judgment and comity, generally has stayed out of what it calls political issues, for example. Part of that comity is that the Senate has always believed it important to consider the most important nominees of a President and that the votes on those nominees be determined by a majority vote rather than extraordinary majorities or special procedures of the Senate.

   That is because, in the modern idiom, ``what goes around comes around,'' which is a crude way of saying we know that, over the long haul, all of us are going to be in the majority and in the minority and each will serve under Presidents of different parties. If we are to cooperate over the long haul in the Government to ensure that the judiciary is made up of people who are the very best qualified candidates and that we respect the judgment of the American people in electing a President, the Senate is required to give those nominees its very best judgment, thorough consideration, but at the end of the day a vote to confirm by 51 rather than a supermajority.

   In fact, no less an expert in the area than the distinguished Senator from Vermont, the former chairman and now ranking member of the committee has been among what I would call the very responsible members of his party who have spoken out on this issue in the past and have urged against the use of filibuster as a technique for holding up the nomination of judicial nominees; in fact, have even voted for cloture but against the nominee on the merits. I have done the same thing with respect to two nominees President Clinton nominated. It is quite possible to oppose someone on the floor but to understand that we should never get the Senate in a position where filibustering a judge is the order of the day and, therefore, a 60-vote majority is required for confirmation.

   Since Senator Leahy is here, because I think he said it very well, in two different contexts, I will quote his own words on the subject. On June 18, 1998, Senator Leahy said:

   I have stated over and over again on this floor that I would object and fight against any filibuster on a judge, whether it is somebody I have opposed or supported.

   I think that is the essence of the tradition of this body: That while we may have disagreements sometimes and we are each free to cast a vote against a nominee, we understand that a filibuster to prevent a nominee from being voted on would be very wrong; it would set a very bad precedent.

   I think Senator Leahy was exactly correct when he uttered those words. In fact, he also said a year later, on September 16, 1999:

   I do not want to get into having to invoke cloture on judicial nominations. I think it is a bad precedent.

   He said it more succinctly than I have tried to say it here, but I agree with the distinguished ranking member of the committee that a filibuster on a judge, whether you oppose or support a nominee, is wrong and it should be fought. I hope Senator Leahy will fight it. Many in his party would like to see a filibuster. Nobody disagrees that everybody should have a complete say on the matter. I agree with that. We are willing to talk about Miguel Estrada for as long as it takes. Because he is so well qualified, it is fun to talk about him, and it is

   going to be good to get him confirmed. When the talking is over, we need to have a vote up or down.

   May I also turn to a couple of other things the Senator from Vermont said. He talked about uniting and not dividing. I don't think there is anything divisive about Miguel Estrada. He is one of the kindest appearing people you can ask for. The ABA has given him a unanimous well-qualified rating. They take into account judicial temperament as well as qualifications. He has a great life story. He is certainly not a controversial person. So I personally don't think words such as ``narrow, ideological court-packing'' and the like are the way to describe the President's approach to this.

   The President is certainly not trying to divide the country in nominating a very well qualified Hispanic judge such as Miguel Estrada. Actually, I think the concern is more to another point the Senator from Vermont made, which is that, in some people's view, there is not enough of a record on Miguel Estrada, that maybe he is a

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   I also note that the Judiciary Committee itself, then including under the leadership of the Senator from Vermont, has always submitted a questionnaire to our judicial nominees. One of the questions goes right to the point of trying to determine whether or not anybody is applying a litmus test to the nominee. I can remember back in Ronald Reagan's days there were opponents of President Reagan who said: You are applying a litmus test on the abortion issue. Reagan said: I never asked anybody their view on the question.

   The Judiciary Committee wanted to make sure nobody was trying to find out what a nominee's positions were on issues they would be confronting on the court. That would be wrong. Therefore, one of our questions to every judicial nominee is: Has anybody ever asked you about your specific views on issues or about cases and how you might rule on cases that might come before you? And, if so, please state the circumstances and the names.

   The committee, in other words, wanted to make sure nobody was trying to find out from candidates how they would rule on particular issues, or what their particular ideology was, because we didn't believe that to be appropriate in judging nominees. Now it appears that there are some who believe exactly the opposite, that indeed we must find out everything we can about the ideology of a candidate, and if it is not considered ``mainstream enough'' by some, that would be grounds for denying the confirmation of the candidate. That has never been the test and should not be now.

   I hope we can continue to apply the questionnaire from the Judiciary Committee and ensure that candidates are not punished for not answering questions that we ourselves don't think it appropriate to ask.

   The Senator from Vermont made one rather astonishing claim, and that was that--I believe I have the quotation--Miguel Estrada has had ``little relevant experience.'' My goodness, if it hasn't been put in the RECORD, I ask unanimous consent that the op-ed in the New York Post today by Rudolph Giuliani be printed in the RECORD.

   There being no objection, the material was ordered to be printed in the Record, as follows:

   An Ugly Stall

   A 17-year-old named Miguel Estrada immigrates to this country from Honduras, speaking only a few words of English. He attends Columbia College, making Phi Beta Kappa and graduating magna cum laude, then Harvard Law School, becoming editor of the Law Review.

   Next, he serves as a clerk first to U.S. Court of Appeals Judge Amalya L. Kearse (a President Carter appointee), and then to Supreme Court Justice Anthony M. Kennedy. From there, he joins the Solicitor General's Office, serving as assistant to the solicitor general of the United States for a year under President George H.W. Bush and for four years under President Clinton.

   Then Estrada becomes a partner in a prestigious private law practice--yet finds the time to perform significant pro bono service, including some four hundred hours representing a death row inmate before the Supreme Court.

   In recognition of his special abilities and achievements, President Bush nominates Miguel Estrada to the U.S. Court of Appeals for the D.C. Circuit. He is supported by no fewer than 16 Hispanic groups, who express enormous pride at the prospect of the first Hispanic joining one of America's most prestigious courts. Also supporting him are numerous prominent Democrats, including President Clinton's solicitor general and Vice President Gore's counselor and chief of Staff.

   Sounds pretty good? Well, here's where this story run the risk of a most unhappy--and unfair--ending.

   For nearly two years, Senate Democrats have delayed action on the nomination of Miguel Estrada.

   Citing no specific issues, Democratic senators vaguely alluded to Estrada being ``way out of the mainstream.'' Others raised equally hollow charges--all of which have not only kept Estrada from getting the vote he deserves, but denied the American people of a talented and effective jurist.

   Obviously, the fact that the Judiciary Committee was controlled by the Democrats until this year helped delay action. Last week, the committee finally voted to approve Estrada's nomination, hewing strictly to party lines. But now a few Dem