[Congressional Record Volume 149, Number 26 (Wednesday, February 12, 2003)]
[Senate]
[Pages S2232-S2266]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
The Bush Budget
Mr. CORZINE. Mr. President, I come to the floor to make a statement
with respect to something I believe is vital that the American public
get focused on. Last Monday President Bush proposed a budget to the
American people that, if it were adopted, would basically dramatically
change the landscape, reshape the future of our Nation in a lot of
different ways. I would like to speak about that in the context of a
few ideas today.
I hope I can come here every day, as long as is necessary, to make
sure we raise up this, I think revolutionary document, radical
document, with regard to what the shape of our economy and the shape of
our participation of the Federal Government in our life in America is
about.
Perhaps because of its release so soon after the tragic Columbia
shuttle tragedy, the budget has not received the public attention it
deserves. Frankly, we had unbelievably revealing testimony by the
Chairman of the Federal Reserve yesterday with respect to how that
budget fits into the overall concept of fiscal responsibility and
fiscal prudence that is so important for Americans to understand. But
even with that, even with such dramatic statements coming from the
Chairman of the Federal Reserve, the budget has not received the
public's attention. I think we need to raise up the debate that is
embedded in many of the propositions that are made in the President's
budget.
I do not think this is a run of the mill--these are the revenues,
these are the expenses. By the way, we are going to have a $307 billion
budget deficit, but that is not so important. This is a radical change
from the direction that we in this country have been moving for a very
long time. I don't think we are talking about it in those contexts, and
I think the American people should understand the huge implications of
its many far-reaching proposals.
There are so many significant elements in this budget that it is
difficult for me to actually even know where to start. The big picture
is clear. The Bush budget is fiscally reckless, in my view, and
imprudent in the extreme in the macroeconomic context, and would
substantially reduce the security of America's working families for
decades to come. I will try to go through some of that.
But at the biggest level, when President Bush came to office we were
projecting budget surpluses of $5.6 trillion over 10 years. We just
preceded that with 3 years of budget surpluses. Since then that figure
has declined by almost $8 trillion. We had projected $5.64 trillion in
surpluses. Now in the same timeframe, until 2011, we are projecting $1
trillion-plus in deficits. Where I come from in the private sector, if
you have an $8 trillion negative cashflow, somebody would ask some
questions about what is driving it, what is making such an overwhelming
difference in the context of our financial posture with respect to
fiscal affairs in this country. That is extraordinary.
By the way, take that a step further. It was projected at the same
time that we were going to pay down, for all practical purposes, the
publicly held debt of the U.S. Government. That was in 2001, early
2001--going down to $36 billion.
Today, out to 2008, we are expecting a $5 trillion publicly held
debt. That is extraordinary. That is an extraordinary amount of debt
that will go on, not just to be financed by current generations of
Americans. The view that we are not going to transfer to our kids and
our grandkids future responsibilities to pay for what we are doing
today, as we benefit from those expenditures--we are transferring it
on. That is $5 trillion.
By the way, it is a heavy burden not only in the debt that the
current generation is transferring to future generations, but it is
also an extraordinary expense. We are going from a $622 billion cost of
our debt under the projections that were established in 2001 to, get
this, $2.3 trillion we are going to spend--$2.3 trillion we are going
to spend just to finance that debt, that change in that $8 trillion
that comes across. That is what it is going to cost us over 10 years to
finance the bad fiscal policies we are taking on.
I don't know about most Americans, but I think they can figure out
that we have lots of important things in this country that we could
spend $2.3 trillion on, relative to this $622 billion, that we would
have been able to spend if those changes had not occurred such as Leave
No Child Behind, such as making sure our health care systems are
properly funded, or that the Social Security trust fund is in place so
Social Security can be in place. And maybe most importantly, we could
protect Americans with something other than duct tape. We could
actually put real protections in our ports, on our highways. We could
make sure that the security surrounding our chemical plants across this
country was in place. There are lots of things that this country could
do if we had that $2.3 trillion that we are going to now give out in
interest expense, many of those dollars going offshore, not even to
Americans.
I think it is absolutely irresponsible that we are putting ourselves
in a position that we are going to run the kinds of deficits we are
talking about. In fact, I think that was the overwhelming weight of the
conversation we had with the Chairman of the Federal Reserve Board
yesterday. If we do not get our fiscal house in order, we are going to
put ourselves into a position where the United States is going to have
not just small deficits and not just $2.3 trillion worth of interest
expense, but we are going to see that explode in the years well beyond
the next decade because that is when the baby boomers retire. We will
go from 40 million retired Americans to 75 million retired Americans on
Medicare and Social Security and that will put unbelievable pressures
on what we have as a nation in our fiscal responsibility.
So I find this a hard budget, at a macro level, for us to take on. I
hope the American people can understand that we are burdening our
children and our grandchildren as we go forward; that we really are
putting at risk Medicare and Social Security as we understand it today
as we go forward. Frankly, I think without a full discussion and
without creating a full understanding in the minds of the American
people, we are not doing our jobs. I think it is almost a question of
ethics, about what our responsibility is to raise up this discussion so
those choices are understood by the American people and not buried in
some document of hundreds and hundreds of pages of numbers that really
do not translate into the practical impact that the individuals need.
I go back to it again. It is basic economics.
We have had an $8 trillion swing in the cashflow of this government.
There is no one I know who would think that is a positive way for us to
approach the financial management of this country.
To carry on with slightly more detail, as economists would say, this
budget calls for a dramatic reduction in national savings. When you are
borrowing all this money, that money isn't going into the private
sector. It isn't going into areas of productivity and growth in this
country.
That is what we saw happen in the 1990s. We saw 22.5 million new jobs
created, and we saw productivity rise from very low levels to the kind
of high levels that are driving the successes of the economy in the
late 1990s and continue to be the only really positive element we see
in the economy today.
When you have that capital going off to the Federal Government, it
means less capital to be available to invest in plant and equipment and
less capital to implant new technologies and new inventions, and to do
research and medical advances. The end result almost inevitably will be
lower economic growth in the future, if you carry those kinds of debt
burdens into the future. That is not a conclusion based on partisanship
or ideology. It is economics 101. Less savings means less investment
which means lower growth.
It is just that those are the truisms defined by the basic laws of
economics. Less savings means less investment which means lower growth.
By the way, when you are borrowing money at the $8 trillion level at
the Federal Government, you are having less savings.
That is just by definition. I guess that is why the 10 Nobel
economists
[[Page S2246]]
yesterday put out the statement they thought we were on the wrong track
with regard to our fiscal policy; that we were putting ourselves into a
grave position with regard to our longrun fiscal structure. It is
absolutely essential, in my view, that we stand back and get hold of
the budget mess I think we are putting in place, if we go forward.
Unfortunately, many administration officials have lately been denying
the laws of economics, as far as I can tell, dismissing the importance
of fiscal discipline. As OMB Director Mitch Daniels put it, while we
have returned to an era of deficits, ``We ought not hyperventilate
about this issue.''
I guess we are just taking off the board all that discussion about
balanced budget amendments, the No. 1 issue, and the Contract With
America, all that discussion we had through the 1990s, all that
discussion that the private sector has tried to impart to the public
sector; that there really is competition for funds out in the
marketplace; that deficits really do drive up long-term interest rates
which, by the way, Chairman Greenspan once again reiterated very
clearly and unequivocally yesterday; and that we hear consistent
conversation about deficits do not matter to the investment function of
the economy.
It is hard to believe we are so blind to the fundamentals of
economics. Supply and demand do matter. When there is demand for the
credit in the marketplace for the Federal Government, it does impact on
the private sector and the savings function.
Comments like these--the one about hyperventilating about deficits--
make it seem like we are living in a strange twilight zone, in my view.
As I said, we just came through a heavy period of discussion--
actually before I got into political life--about amending the United
States Constitution to establish a rigid Balanced Budget Act. I do not
know where that discussion went. I guess we had a change of heart and a
change of mind at some particular point. But it really is hard for me
to understand. I almost find it humorous, although I don't, really.
We hear comments with regard to my Democratic colleagues that we are
concerned about rising deficits. One of the leaders in the House
dismissed the importance of fiscal discipline, arguing that ``The
Soviet Union had a balanced budget.''
I am not exactly how sure that fits into the overall structure of our
debate. But I think it demonstrates we are making so light of this $8
trillion--I repeat, $8 trillion--negative cashflow swing this
government is now burdening our people with. It is serious.
I come from a part of the world where you can tolerate some negative
income for a short period of team, but, after a while, you go bankrupt.
It undermines the reality of your financial success. It will for our
Government. It may not go bankrupt, but we will be living with higher
interest rates than we need be, and we will be losing the ability to
see our private sector invest appropriately and basic saving functions
as defined by economics.
Think about it. Perhaps the most powerful Member of the other body,
in effect, was comparing fiscal discipline to a failed regime on how
operations work.
I am really troubled about how light we are making this issue of our
fiscal responsibility.
Why are the administration and its supporters abandoning fiscal
discipline? Quite simply because their overriding priority is to
provide huge new tax breaks to those who are doing the best, I guess.
There is no other basis of understanding. It looks to me like political
policy as opposed to economic policy.
Let us look at these tax breaks. As many of my Democratic colleagues
have pointed out, they would provide relatively few benefits to working
Americans. But, more importantly, they would do virtually nothing to
create jobs or stimulate our economy. In fact, the Bush plan could well
cost jobs, and I believe very clearly it is bordering on antigrowth.
That is true for at least four reasons I would like to expand on.
First, very simple, very little impact of that initiative the
President has laid out--less than 5 percent of the growth package--
would kick in right away in 2003, and very little of it in 2004. Most
of its impact would be delayed into the future, undermining the long-
term structure of our fiscal health, but doing little for the current
package.
By the way, those 10 Nobel economists yesterday also talked about
temporary, short-term stimulus was needed to create demand in our
economy--create demand now so we can pump-prime the economy and help
get it going. And then we will see the growth of revenues be the basis
of how we reestablish the cashflow to the Federal Government.
By the way, we don't need to have all of these long-term cash cuts
unless you are going to do it in a tax reform package. And, by the way,
I totally agree with Chairman Greenspan. Double taxation on dividends
is a bad idea. It ought to be done from a comprehensive, revenue-
neutral position of tax reform. No one would argue there is very little
in tax difference. But it ought to be done with a comprehensive set of
tax reforms. The American people understand that. They understand
companies are paying only about one half of what they report on their
income statements to the public when they try to sell their stock as
taxable income. They are doing all kinds of things--some legitimate,
some not so legitimate--to try to shelter income.
We need to have a reform package that actually works--to raise
revenues but also to make sure we don't have inhibition on American
business in formation of capital such as taxes on dividends. But it
ought to be on a comprehensive, revenue-neutral basis.
I think most people, when they are honest and step back, will see the
logic of that. Certainly the American people do.
Second, the President's tax proposals provide, as I said, most of the
benefit for those at the very highest incomes. These are the people
least likely to spend a tax break. I think a better approach, as I have
advocated with Senator Landrieu--and as Senator McCain talked about a
``payroll tax holiday''--would target tax relief to middle-class
working Americans who need help.
By the way, I happen to think this ``payroll tax holiday'' and what
Senator Landrieu and I talked about is really fundamental to how we can
stimulate the economy today. Three out of four Americans pay more in
payroll taxes than they do in income taxes. It is also the people who
are stretched the hardest in trying to keep their budget together at
home. By the way, individuals have to balance their budgets. So it is
not exactly like they can walk away from running their debts up. We can
do that in the Federal Government, but you cannot do that at the
individual level. Otherwise, your creditors will come and see you and
say it is time for you to sell your house.
Third, the Bush plan to exempt most dividend income from taxation
would have the effect of taking cash off the balance sheets of American
corporations. That would mean less money to invest in plants and
equipment and less money to hire new workers and retain old ones. In
other words, it will depress the economy further as opposed to
stimulating it.
If you want to deal with double taxation on dividends, you do it at
the corporate level. It might not be as politically attractive, but it
would certainly be more rational that you would treat dividends as the
equivalent of interest, and it would allow for the basic judgment of
corporations as to whether they wanted to invest, pay dividends, hire
new workers, or do whatever the economic, advantageous element of
managing their business is about. But if you take the cash off the
balance sheet, and pay it out in dividends, because you have an
incentive to do that, you end up with far less of an incentive to grow
the economy. And, in fact, you may very well get an incentive to stifle
growth in the economy. I think it is very dangerous.
Finally, whatever stimulative impact--and very few people think it is
significant at all--the budget would have in the short-term, it is
likely to be offset by those higher long-term rates, as projected
future deficits shoot through the roof.
I know the administration likes to claim there is no connection
between deficits and interest rates, as I suggested, but the economic
evidence is overwhelming that expectations of future deficits--that is,
more Government competition for a limited pool of
[[Page S2247]]
capital--almost inevitably leads to higher interest rates.
It was actually refreshing yesterday at the Senate Banking Committee
to hear someone--who I do not necessarily always see eye to eye with,
with respect to economic policy--make a clear and unequivocal statement
that deficits do matter with respect to interest rates and the
performance of the economy, and particularly with respect to the
performance of the investment activities of this Nation. This is,
again, simple supply and demand. If you have $8 trillion worth of
deficits that you would not have had otherwise--or $5 trillion--it is
going to compete with the private sector for capital. That, ultimately,
is going to have something to do with the shape of our economy in the
future, and it is absolutely the most important element of the savings
function in the country.
So the administration's tax breaks, in my view, for all of those
reasons, are antigrowth as much as they are anything else. Again, I
reemphasize that I think it is a political proposal, not an economic
one. They have the effect of starving the Government of resources
needed to protect the security of working families, while we are
basically rewarding those who I think are doing reasonably well.
The last I checked, in the 1990s, people did pretty well
economically. There were more millionaires made in the 1990s, while we
were creating 22.5 million jobs than I think we are doing so far in the
new century. I wonder why it is that we think we need to have all these
structural changes when, in fact, if we just get some demand going,
taking up some of that overhang of excess production we have in our
country, that we could get going.
There are, though, some issues in this budget that go beyond these
macroeconomic issues. And they are really important. I do not want to
make light of them in and of themselves.
I think budget deficits and whether you have a stimulus program or
growth program are all fair questions, but are we going to continue as
a nation to participate in helping protect the security of working
families, protect the security of Americans everywhere?
I think what is really radical about this budget is that it is
beginning the process to undermine whether we are really going to
provide that kind of support. Because we have to make choices, we are
going to have to make choices whether we are going to run those
deficits, driven in at least a significant part by the kinds of tax
cuts we have, or whether we are going to retain some of those resources
to be able to invest in the security of working families.
I will take a few examples from the President's budget.
First, the budget fails to provide funds that are badly needed to
protect our Nation against the threat of terrorism. This is maybe the
most important domestic issue. While there is some funding for some
homeland security programs, we have really turned our back on a lot of
the critical priorities, such as port security and border patrols.
I heard today that actually we will have fewer people at border
crossings, based on this budget, than we had prior to 9/11. I just
visited the New York/New Jersey Port a weekend ago. The fact is, we are
inspecting less than 2 percent--less than 2 percent--and that has not
changed. We have been using that same number in debates on the floor of
the Senate. It was not changed in our port at all.
The resources are not being made available to check containers, and
we are doing nothing to improve the safety and security of the American
people--certainly the people in New Jersey and New York--with regard to
our ports. We are doing nothing with regard to improving the security
surrounding our chemical production facilities in this country. And all
this just keeps going on and on, without putting our money where our
mouth is with regard to homeland security. We talk about it as our top
priority, and we do not put the resources with it.
Time and time again, we have asked to try to increase the budget
appropriations in this area and have not been able to do it. I think
maybe it is the most important domestic issue. It is certainly on the
minds of the people of New Jersey, and I suspect it is for most
Americans.
Second, the budget reneges on the President's promise to provide a
meaningful prescription drug benefit for our seniors. Instead, the
administration, in effect, forces millions of seniors to drop their own
doctor and move to a private sector approach in order to secure a
prescription drug. It moves away from fee-for-service plans. This
amounts to a backdoor attempt, in my view, to privatize Medicare.
We have not seen all the details, so it is a little hard to be as
specific as I would like to be, but I have to tell you, if it is
anything similar to the headlines we have heard in the State of the
Union speech, there are a lot of us who are going to fight this tooth
and nail. This is not the promise we have given to the individuals who
have been paying payroll taxes for years and years with the expectation
there will be a serious Medicare benefit at the end of the day. As you
know, if anybody does any analysis, not only are the payroll taxes that
go to Social Security being used to finance tax cuts for those who are
already doing well, we are now using payroll taxes for Medicare to also
do that. And we have gone through all those numbers. It is very hard to
understand how we are putting this together.
Many of my constituents say: What is going on with those payroll
taxes that we are paying every day? We go to work with the expectation
that we are going to get Medicare benefits and Social Security benefits
at the end of the day when we retire. It is really wrong, and I hope,
as we discuss this budget, that becomes clear and more clear to the
American public.
Third, the budget process proposes to gut health care coverage for
the most disadvantaged Americans. Under the administration's plan,
Governors, in effect, would be--I was going to say bribed--encouraged
to leave the current Medicaid system and move to an alternative that
probably would end up with poor and disabled Americans losing coverage.
I tell you, I know in New Jersey that we have to cut the number of
people who are accessing this, particularly kids in the Children's
Health Insurance Program, because we do not have the resources to be
able to deal with bringing them into these programs which have long
been something that has provided broader health care.
There is big, bipartisan support for a concept around here called
Start Healthy, Stay Healthy, which is to bring prenatal care to a lot
of our less economically enabled citizens. And it is through the
Medicaid system and State programs. We are having to cut all of those
kinds of programs because the resources are not available.
I have to ask--anyone has to ask--is that what the administration
means by ``compassionate conservatism''?
I could go on and on with the misplaced priorities, from my point of
view, of the administration's budget: Its underfunding or complete
elimination of so many education programs, including afterschool care;
its cuts in environmental protection--the riders included in the
omnibus bill that is coming over which doesn't have to do with the 2004
budget, is a mind-boggling way to legislate environmental laws--its
abandonment of a program to put police officers on the streets, the
COPS program--there are law enforcement officials who are enraged about
their ability to continue to protect the public; again, it sort of
relates to homeland security--its cuts for children's health insurance;
its abolition of the HOPE VI homeownership initiative, which is one of
the great programmatic efforts to try to get people to buy into their
communities, to be a part of the community, a whole host of other
housing programs.
I could go on, and I probably will as the days go on, because these
issues need to be identified in the mind of the American public. This
is a budget that is changing the shape of what the role of the Federal
Government is. Maybe that is what people want. Maybe they don't want
afterschool programs for kids. Maybe they don't want the COPS programs.
Maybe they don't want Leave No Child Behind underfunded. Maybe they do
want it underfunded. Maybe they want no increase in affordable housing.
Maybe they don't want them, but we ought to tell them what they are
getting as opposed to piling it up into a whole host of numbers and
covering it up with other things that
[[Page S2248]]
don't make it clear why we are doing what we are doing.
I also want to talk about the administration's proposal to
fundamentally change the tax treatment of investment income, another
area where--a little bit of my background--it strikes me as really
debilitating to the longrun fiscal posture of this country. I know
proposals to allow sheltering of investment income sound attractive to
many. I used to promote a few of them myself. I think we all agree
about the value of expanding opportunities for all Americans to save,
to better prepare for retirement. But when you look at the
administration's proposal, it has little to do with promoting
retirement security for working families.
In fact, there are a whole series of these. For most Americans, these
proposals are much more likely to undermine retirement security, and
they will apply to a very narrow segment of American retirees or future
retirees. Most Americans are not using all the tax-supported programs
we have today. They are only using about 25 percent of them, if memory
serves. And these programs will drain resources critical to the Federal
budget to protect Social Security and Medicare in the future--again, as
we go from 40 million retired seniors to 75 million. They represent a
dramatic shift in the tax burden, a redistribution of wealth, to speak
bluntly, to the benefit of those who have substantial investment income
and to the detriment of people who depend on wages and support
themselves and, by the way, pay payroll taxes.
Once again, those people who are paying payroll taxes are funding tax
breaks in the income tax system--really hard to understand.
These new tax proposals are not merely radical in their
redistribution of the tax burden, they are fiscally irresponsible and
reckless in the context of our overall budget situation. There are a
few elements of this program that need the light of day. They need the
focus of the American people, whether it is homeland security, taking
care of our kids' educational system, our health care, but probably
most important, the longrun ability to fulfill the promise of Social
Security and Medicare. That is what this debate is about. Are we really
going to have the resources to do the kinds of things the American
people have been promised?
It is not enough to say: We don't want to do this. We have promised
the American people they will at the end of the day have their Social
Security benefits, guaranteed benefits. We need to make sure we have
the fiscal structure that is in place that allows that to happen.
This budget will not allow for that to take place. It needs lots of
debate from the American people, lots of debate by the Senate, and a
lot of debate in general until we get to a conclusion that is a long
way from where we are starting.
There is too much at risk here, too many jobs in the first instance,
too much in the longrun investment in our economy, to grow our
productivity, too much investment to protect the American people with
regard to homeland security and the war on terrorism, too much risk
with regard to health care and disparities, the ability to provide a
meaningful prescription drug benefit to seniors, too much at risk with
regard to Social Security.
I hope we can truly flush out what the choices are being made through
the context of this budget.
I appreciate the opportunity to speak. It will be one of many times I
would like to come to the Chamber to make sure the American people
understand we have a radical reshaping of America's priorities through
this budget. Frankly, it is a political statement, not an economic
program. Nothing less than the future of our country is at stake. We
need a real and serious debate about it.
I yield the floor.
Mr. REID. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Hagel). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, a number on the other side, in the majority,
have lamented the fact that to get this man, Miguel Estrada, approved
to be a circuit judge, it is going to take 60 votes. They ask, why
can't we just have an up-or-down vote? Both Senators from Utah have
talked about that today. Senator Bennett indicated it would be a
tremendous change if we required 60 votes for Mr. Estrada. There are
cartoons around the country today in support of our position--cartoons
that have indicated nominees are coming through here and no one is
asking any questions that are answered, and that there should be some
answers forthcoming. But the issue is that in fact Mr. Estrada hasn't
answered many important questions. That is one of the big problems.
I found my colleagues' remarks very curious, lamenting the idea that
it would take 60 votes to approve Mr. Estrada's nomination. They have
lamented this, but I find this interesting because when President
Clinton sat in the White House, his nominations were subject to
anonymous holds by one or more Senators. Many were not provided
hearings. Many were provided no votes. That is, rather than needing at
least 41 votes to delay or block consideration of a nominee,
Republicans allowed one Senator or a handful to block many of President
Clinton's judicial nominees from getting hearings or votes.
Mr. President, I have a list of nominees, and I ask unanimous consent
that it be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Clinton Judicial Nominees Not Confirmed in Congress First Nominated
(31 Circuit/48 district--59 of these never allowed votes by Republican-
controlled senate)
31 circuit court nominees (22 blocked from getting vote or being
confirmed)
Merrick Garland, D.C. Circuit. Allen Snyder, D.C. Circuit,
never given a vote by Republicans/not confirmed. Elena Kagen,
D.C. Circuit, never given a vote by Republicans/not
confirmed.
Robert Cindrich, 3rd Circuit, never given a vote by
Republicans/not confirmed. Stephen Orlofsky, 3rd Circuit,
never given a vote by Republicans/not confirmed. Robert
Raymar, 3rd Circuit, never given a vote by Republicans/not
confirmed.
James Beatty, 4th Circuit, never given a vote by
Republicans/not confirmed. Andre Davis, 4th Circuit, never
given a vote by Republicans/not confirmed. Elizabeth Gibson,
4th Circuit, never given a vote by Republicans/not confirmed.
Roger Gregory, 4th Circuit, never given a vote by
Republicans/not confirmed. J. Rich Leonard, 4th Circuit,
never given a vote by Republicans/not confirmed. James Wynn,
4th Circuit, never given a vote by Republicans/not confirmed.
H. Alston Johnson, 5th Circuit, never given a vote by
Republicans/not confirmed. Enrique Moreno, 5th Circuit, never
given a vote by Republicans/not confirmed. Jorge Rangel, 5th
Circuit, never given a vote by Republicans/not confirmed.
Eric Clay, 6th Circuit. Kent Markus, 6th Circuit, never
given a vote by Republicans/not confirmed. Kathleen McCree
Lewis, 6th Circuit, never given a vote by Republicans/not
confirmed. Helene White, 6th Circuit, never given a vote by
Republicans/not confirmed.
Bonnie Campbell, 8th Circuit, never given a vote by
Republicans/not confirmed.
Marsha Berzon, 9th Circuit. James Duffy, 9th Circuit, never
given a vote by Republicans/not confirmed. William Fletcher,
9th Circuit. Barry Goode, 9th Circuit, never given a vote by
Republicans/not confirmed. Ronald Gould, 9th Circuit.
Margaret McKeown, 9th Circuit. Richard Paez, 9th Circuit.
Christine Arguello, 10th Circuit, never given a vote by
Republicans/not confirmed. James Lyons, 10th Circuit, never
given a vote by Republicans/not confirmed.
Timothy Dyk, Fed. Circuit. Arthur Gajarsa, Fed. Circuit.
(Helene White waited more than 1,500 days, never to be
allowed a hearing or a vote.)
(Richard Paez waited more than 1,500 days to be confirmed.)
48 District Court Nominees (37 blocked from getting vote or being
confirmed)
Steven Achelpohl, District Court, never given a vote by
Republicans/not confirmed. Ann Aiken, District Court. Richard
Anderson, District Court, never given a vote by Republicans/
not confirmed. Joseph Bataillion, District Court, never given
a vote by Republicans/not confirmed. Steven Bell, District
Court, never given a vote by Republicans/not confirmed. John
Bingler, District Court, never given a vote by Republicans/
not confirmed. David Cercone, District Court, never given a
vote by Republicans/not confirmed `02. Patricia Coan,
District Court, never given a vote by Republicans/not
confirmed. Jeffrey Colman, District Court, never given a vote
by Republicans/not confirmed. Valerie Couch, District Court,
never given a vote by Republicans/not confirmed. Legrome
Davis, District Court, never given a vote by Republicans/not
confirmed `02.
Rhonda Fields, District Court, never given a vote by
Republicans/not confirmed. S.
[[Page S2249]]
David Fineman, District Court, never given a vote by
Republicans/not confirmed. Robert Freedberg, District Court,
never given a vote by Republicans/not confirmed. Dolly Gee,
District Court, never given a vote by Republicans/not
confirmed. Melvin Hall, District Court, never given a vote by
Republicans/not confirmed. William Hibbler, District Court.
Faith Hochberg, District Court, never given a vote by
Republicans/not confirmed. Marian Johnston, District Court,
never given a vote by Republicans/not confirmed. Richard
Lazzara, District Court, never given a vote by Republicans/
not confirmed. J. Rich Leonard, District Court, never given a
vote by Republicans/not confirmed. Stephen Lieberman,
District Court, never given a vote by Republicans/not
confirmed.
Matthew Kennelly, District Court. James Klein, District
Court, never given a vote by Republicans/not confirmed. John
Lim, District Court, never given a vote by Republicans/not
confirmed. Harry Litman, District Court, never given a vote
by Republicans/not confirmed. Frank McCarthy, District Court,
never given a vote by Republicans/not confirmed. Donald
Middlebooks, District Court. Jeffrey Miller, District Court.
Margaret Morrow, District Court. Sue Myerscough, District
Court, never given a vote by Republicans/not confirmed.
Lynette Norton, District Court, never given a vote by
Republicans/not confirmed.
Susan Oki Mollway, District Court. Virginia Phillips,
District Court, never given a vote by Republicans/not
confirmed. Robert Pratt, District Court. Linda Riegle,
District Court, never given a vote by Republicans/not
confirmed. Anabelle Rodriguez, District Court, never given a
vote by Republicans/not confirmed. Michael Schattman,
District Court, never given a vote by Republicans/not
confirmed. Gary Sebelius, District Court, never given a vote
by Republicans/not confirmed. Kenneth Simon, District Court,
never given a vote by Republicans/not confirmed. Christina
Snyder, District Court. Clarence Sundram, District Court,
never given a vote by Republicans/not confirmed.
Hilda Tagle, District Court. Thomas Thrash, District Court.
Cheryl Wattley, District Court, never given a vote by
Republicans/not confirmed. Wenona Whitfield, District Court,
never given a vote by Republicans/not confirmed. Ronnie
White, District Court, never confirmed by floor vote.
Frederic Woocher, District Court, never given a vote by
Republicans/not confirmed.
Mr. REID. They had mysterious holds and were not provided with votes
of any kind and were simply not allowed to have their matters brought
before the Senate. We would have liked the opportunity to even see if
we could have stopped a filibuster, if that was what they wanted, but
they simply would not bring them forward.
I will name a few circuit court nominees. Out of 31 submitted who
were not confirmed in the first Congress they were nominated, 22 were
blocked by the Republicans from ever being confirmed. Allen Snyder, DC
Circuit, never given a vote by Republicans, certainly not confirmed;
Elena Kagen, DC Circuit, never given a vote by the Republicans; Robert
Cindrich, Third Circuit, never given a vote; Steven Orlofsky, Third
Circuit, never given a vote; Robert Raymar, Third Circuit, never given
a vote; James Beatty, Fourth Circuit, never given a vote by the
Republicans; Andre Davis, Fourth Circuit, never given a vote; Elizabeth
Gibson, Fourth Circuit, never given a vote by the Republicans; Roger
Gregory, Fourth Circuit, never given a vote by the Republicans, but
finally, Mr. President, because President Clinton, in a recess
appointment, appointed him, as a sitting judge, he was eventually
confirmed; J. Richard Leonard, Fourth Circuit, never given a vote by
the Republicans; James Wynn, Fourth Circuit, never given a vote by the
Republicans; H. Alston Johnson, Fifth Circuit, never given a vote by
the Republicans; Enrique Moreno--a Latino nominee--never given a vote
by the Republicans; Jorge Rangel, Fifth Circuit, never given a vote--he
is also Hispanic--Eric Clay, Sixth Circuit, and nothing happened with
him; Kent Markus, Sixth Circuit, never given a vote by the Republicans;
Kathleen McCree Lewis, Sixth Circuit never given a vote; Helene White,
Sixth Circuit, never given a vote; Bonnie Campbell, Eighth Circuit,
never given a vote; James Duffy, never given a vote; Barry Goode, Ninth
Circuit, never given a vote; and Christine Arguello and James Lyons,
Tenth Circuit, never given a vote.
I just note that Helene White waited more than 1,500 days, never to
be allowed a hearing or a vote. Richard Paez waited more than 1,500
days, but there is good news there: He was finally confirmed. I spoke
to that good man on a number of occasions during his time in ``legal
limbo,'' or wherever he was, never being given a vote. But, finally, he
had a hearing and he was confirmed after more than 1,500 days, more
than 4 years.
Mr. President, we submitted 48 district court nominees who were
blocked in the first Congress they were nominated, and 37 were blocked
from ever getting a vote or being confirmed. So for my friends to
lament the fact that we are in the light of day, where we have told
everybody here we are not going to allow Miguel Estrada to be confirmed
unless he submits to proper questioning--I should not say proper
questioning, how about proper answers--and unless we are allowed to
review the Solicitor's memoranda that have been given to us on other
occasions and unless he is forthcoming in answers to questions.
These are not anonymous holds. We are telling the world that we will
not allow Miguel Estrada to become a DC Circuit Court judge unless he
does that. If he doesn't do that, the majority leader has three
options: Pull the nomination, go forward to invoke cloture, or have
this on the floor forever, which is something--boy, they are really
giving it to us tonight. They are going to make us work late.
That is what the leader said. We are going to work late. I said
everything has been said about Miguel Estrada, just not everyone has
said it. So we are going to have other people come and say the same
things that have been said by approximately 20 Senators, and they will
try to say it a little differently, but everything has been said.
If the majority leader wants to take the time of the Senate and go
forward on this nomination, not trying to invoke cloture, then that is
his prerogative. He runs the floor. But there is other business we need
to do. I know the omnibus bill should be here tomorrow. There are other
judges we could approve perhaps. We approved three on Monday including
Judge James Otero of California. So there is other business that could
be done, but if he wants to have us stay late and keep talking about
this person--we on this side believe there is a problem, and we feel it
is our constitutional prerogative and duty to ask questions and have
them answered.
When we have someone who has a track record like this, where there is
not much in the way of legal information other than some cases he
handled, we should be able to review his legal memoranda he wrote when
he was a member of the Solicitor General's Office.
There were 48 district court nominees who did not get through the
Senate in the Congress first nominated; 37 were blocked from getting a
vote or being confirmed:
Steven Achelpohl, district court, never given a vote by Republicans;
Joseph Bataillon, district court, never given a vote by Republicans;
Steven Bell, district court, never given a vote by Republicans; John
Bingler, district court, never given a vote by Republicans; David
Cercone, district court--once in a while there is some good news. David
was not given a vote but eventually was confirmed.
Patricia Coan, district court, never given a vote by Republicans;
Jeffrey Colman, district court, never given a vote by Republicans;
Valerie Couch, district court, never given a vote by Republicans;
Legrome Davis, district court, never given a vote by Republicans
finally allowed a vote once Democrats became the majority; Rhonda
Fields, district court, never given a vote by Republicans; S. David
Fineman, district court, never given a vote by Republicans; Robert
Freedberg, district court, never given a vote by Republicans; Dolly
Gee, district court, never given a vote by Republicans; Melvin Hall,
district court, never given a vote by Republicans; Marian Johnston,
district court, never given a vote by Republicans; Richard Lazzara,
district court, never given a vote by Republicans; J. Rich Leonard,
district court, never given a vote by Republicans; Stephen Lieberman,
district court, never given a vote by Republicans; James Klein,
district court, never given a vote by Republicans; John Lim, district
court, never given a vote by Republicans; Harry Litman, district court,
never given a vote by Republicans; Frank McCarthy, district court,
never given a vote by Republicans; Sue Myerscough, district court,
never given a vote by Republicans; Lynette Norton, district court,
never given a vote by Republicans; Virginia
[[Page S2250]]
Phillips, district court, never given a vote by Republicans; Linda
Riegle, district court, never given a vote by Republicans. This is very
familiar to me because she is a bankruptcy judge from Nevada, still
serving on the bankruptcy court. I nominated her. It simply did not
move forward. I had a couple judges who did move forward and was very
happy about that. Senator Hatch allowed me to move those nominations.
Anabelle Rodriguez, district court, never given a vote by
Republicans; Michael Schattman, district court, never given a vote by
Republicans; Gary Sebelius, district court, never given a vote by
Republicans; Kenneth Simon, district court, never given a vote by
Republicans; Clarence Sundram, district court, never given a vote by
Republicans; Cheryl Wattley, district court, never given a vote by
Republicans; Wenona Whitfield, district court, never given a vote by
Republicans; Ronnie White, this is a fine man. He was defeated in a
surprise strict party-line vote, but his nomination at least was done
in the light of day, and I appreciate that. That is better than all
these anonymous holds and nothing never happens.
Frederick Woocher, district court, never given a vote by Republicans.
My friend, and he is my friend, Senator Bennett from Utah, a
neighboring State--I have great admiration for him. He comes from a
wonderful family. His father served in the Senate. He was very
honorable. His wife is a friend. She is quite a musician. So I have
only good thoughts about my friend, Senator Bennett, but I do say to
the distinguished Senator from Utah that he should not come here and
talk about what a terrible thing it is for us to require that Mr.
Estrada answer these questions and submit the memos. This is something
we are doing openly. We are not trying to hide what is happening in any
way.
I want to say one thing, I wanted to say it to him before he left the
floor this morning, that I have been very honored to serve in the
Senate. It is something I never dreamed could happen. I am every day
aware of what an honor it is to serve in the Senate, and to serve with
other Senators is an honor for me. This is unique.
The two Senators from Vermont are in the Chamber. One just walked in.
The senior Senator from Vermont has been in the Senate approximately 30
years, and I have watched a magician--I say that in the most positive
sense--perform his duties. I have the honor of serving with a senior
member on the Appropriations Committee and the ranking member of the
Judiciary Committee. I have so much admiration and respect for the work
he does. He has been so fair. When people were saying, Don't do this,
the senior Senator from Vermont stepped above the political fray and
did what was right on many judges.
I have come to the Chamber many times telling the Senator what a good
job he has done, but I have not done it recently. I want the Senator to
know the people of Vermont are so well served by his public service.
The Senator from Vermont could go anyplace in America and make a
fortune, literally, because of his legal skills and his experience in
the Senate, but he has taken the more difficult path, and that is
serving the Senate because of his love of public service.
The people of Vermont are well served, but so are the people of
Nevada. The people of Nevada benefit every day from the service of the
Senator from Vermont.
I am very grateful he is here helping us--not helping us, this is his
committee. He is leading us on this most important matter to bring
about some direction and responsiveness to the process which we are now
going forward with.
I see the other Senator from Vermont who is such a fine man. I want
him to know how much I respect his service to the country, especially
the work he does on the Environment and Public Works Committee. The
environment is better because of the junior Senator from Vermont.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I want to thank my dear friend, the senior
Senator from Nevada, for his comments. We have served together for a
long time, as he said, on the Appropriations Committee. I have been in
the Senate with several hundred Senators. I have been fortunate. Like
the Senator from Nevada, I never knew I was going to be a Senator. I
grew up in Montpelier, the State's capital. It had only 8,500 people. I
lived almost diagonally across from the Statehouse.
I remember as a child, probably about 4 years old, riding my tricycle
through the halls of the Statehouse delivering newspapers to the
Governor, playing on the Statehouse lawn, sliding in the snow. Suddenly
one day, at the age of 34, I was being sworn in as a Senator and I
think what a thrill it was. I was the junior most member of the Senate,
but then I realized the best part of it is the people you get to know
and serve with.
Nobody has been more of a help, a mentor, a conscience for me, than
the Senator from Nevada. Every morning when I come to work I look at
the Capitol and I think this is a nation of 260 to 270 million
Americans, so diverse, and there are only 100 of us who get a chance to
serve at any given time. Only 100 Americans get a chance to serve and
represent the whole country. Out of that 100, only 4 get to be the
leaders of their party, the Republican leader and the deputy Republican
leader, the Democratic leader, the deputy Democratic leader.
I have served with a number of them, but I would say the Senator from
Nevada, Senator Harry Reid, is one of the most extraordinary leaders
the Senate has ever had. He has kept the old-fashioned virtue that was
drilled into me by the first leader I knew, Senator Mike Mansfield.
Senator Mansfield said, whatever you do--and this is far more important
than how you vote--always keep your word.
No Senator has a higher reputation for integrity and truth-telling
than the Senator from Nevada, and that means a lot to me. I do
appreciate the way he has watched the floor and brought dignity and
respect to this debate. I admire him for it because, just as with the
distinguished Presiding Officer, we all bring different experiences to
the Senate. We all have different reasons for being here and we all
have different life experiences.
The distinguished Presiding Officer was a war hero. After serving, he
began a business. He gained great experience in that field in his home
State of Nebraska, and then he came to the Senate.
The distinguished Senator from Nevada, of whom I was speaking, had
varied experiences before coming to the Senate. He was a trial lawyer,
a boxer, and a state official in Nevada. He even served as a Capitol
police officer back in the days when many times they were chosen by the
Senators of the congressional delegation from the particular State. All
of these experiences of his he has brought to the Senate.
Many times I have asked the distinguished Presiding Officer questions
on military matters, not having had the experience of serving in the
military. Considering how close he came to ending his life in Vietnam,
the country has benefited by the fact he was there. I know as a result
of his life being spared, I had the opportunity to gain another close
and dear friend in the Senate.
There are a few observations I would like to make before I go into
the discussion I had earlier with both of the Senators from Utah about
the administration's refusal to allow Senators to examine Mr. Estrada's
writings--which, incidentally, is an unfortunate situation because Mr.
Estrada told me and other members of the committee on both sides of the
aisle he is perfectly willing to share and discuss his writings. He
personally had no objection to his writings, his memos, his suggestions
in the Department of Justice and elsewhere to be made public. He would
have no objection to answering questions based upon what he wrote but,
as he said, and he was very honest about this, the administration had
told him he could not.
Mr. Estrada said the administration told him he could not, which in
itself is too bad because when this matter has come up many times
before in history in connection with nominations for lifetime
appointments as well as for short-term appointments, past
administrations, Democratic and Republican, have allowed memoranda by
Department of Justice attorneys to be examined by the Senate Judiciary
Committee.
[[Page S2251]]
I make this point speaking as one Senator, if Mr. Estrada were
forthright and responsive to questions of Senators and if the
administration sent these writings up and allowed Mr. Estrada to
discuss them and answer questions about them--something Mr. Estrada
himself has said he is perfectly willing to do--I may not like the
candid and responsive answers, I may disagree with what is in the
writings, but at that point I feel the questions have been answered,
assuming he is forthcoming and we have the material, so then let us go
ahead and vote for him or against him. But when my colleagues are going
to vote for somebody on one of the most important courts in the
country, at least we should do it knowing what is in the record and
having meaningful, not evasive, answers to questions about his judicial
philosophy, his views, and his feelings about legal decisions.
Republican Presidents and Democratic Presidents have faced this
question before. President Reagan, President Carter, and other
Presidents did, and the material was forthcoming and the Senate then
went on to make a decision based on what they knew about the nominees.
This is the best way to do it.
Before I discuss this precedent in more detail, I would like to note
that this morning we had our third hearing in 2 weeks on the Judiciary
Committee. This included the 16th nominee to receive a hearing, the
fifth nominee to a circuit court in just two weeks. That is interesting
because when a Democrat was President, the same Judiciary Committee
chairman often took until the summer before having a hearing for these
many nominees, especially this many circuit court nominees, many of
whom have controversial or divisive records.
I see the distinguished senior Senator from Utah on the floor. When
he was chairman under a Democratic President, when the Democrat was
making the nominations to the courts, it often took until the summer to
have hearings for this many nominees, especially circuit court
nominees. We are talking about having hearings for five circuit court
nominee hearings by early February.
In 1996, the Republican chairman did not hold hearings for five
circuit court nominees all year. Of course, it was a Democrat
President. Actually, no circuit court nominees were confirmed that
year, and none of the four who were allowed a hearing were confirmed
during that entire year.
In 1997, when President Clinton had been in office now on his fifth
year, we did not reach this number if circuit court nominees getting a
hearing until September. Now the Committee has done it in just 2 weeks.
It is interesting because there have been questions of partisanship.
Now the Senate Judiciary Committee does in 2 weeks with a Republican
President, with the same chairman, what took 9 months--more than 35
weeks--to do with a Democratic President.
I think that sort of demonstrates what the partisanship is. In fact,
there is a nomination hearing being held this morning for a seat that
has been vacant since 1999. One part of me says good, it is about time
we have had a hearing for that vacancy, but President Clinton nominated
two people to that vacancy. This was to the Court of Appeals for the
Tenth Circuit. One is the Honorable James Lyons who was blocked for
partisan political reasons. There was an anonymous hold on the
Republican side.
I mention this because also coincidentally we hear a lot about
somebody getting the highest rating from the American Bar Association,
actually from a screening committee which is now headed by a close
friend and supporter of President Bush's. This nominee of President
Clinton's had the highest rating possible. He could have easily been
confirmed, but anonymous holds, not open holds but anonymous holds, on
the Republican side stopped it. He was not even allowed a hearing or a
vote in the committee. So the President nominated a second person,
Christine Arguello, a Latina nominee. She had bipartisan support. She
was supported by both her home State Senators. One would think she
would get at least a hearing or a vote in the committee. No. A number
of people were nominated after her and were given hearings and votes,
but this Hispanic American woman was not. Under Republican control of
the Senate, Professor Arguello was not even given a hearing, to say
nothing about a vote.
Regarding the document request related to Mr. Estrada's nomination,
he has told both Senator Hatch and myself, as well as several Members
of the Senate, that he is perfectly willing to show us his writings and
respond to them and answer questions about them, but he has been told
by the administration that he cannot; the administration, however,
would review those writings. They are the only ones who know whether
this direct evidence of his views, the interpretation of law, is
accurate or misleading--they are the only ones who have access to it
and they say, basically: Trust us. In carrying out your constitutional
duties of advise and consent: Trust us. Give someone a lifetime
appointment of one of the most important posts in the country: Trust
us.
Mr. HATCH. Will the Senator yield on that one point? I have some new
information.
Mr. LEAHY. I will yield on the basis that I will be allowed to retain
the floor, to which I know the Senator from Utah does not object, and I
want to continue then. Because of my deep respect and quarter century
of friendship with the distinguished Senator from Utah, I yield.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. And we do have mutual friendship.
I have done some checking on this, and I thought I would bring it do
the attention of the Senator. They tell me at the White House that they
have never, the Justice Department has never given out these materials
requested by the Democrats--not in the Bork case, not in any other
case.
Now, in the Bork case they did give materials that pertained to his
dismissal of Archibald Cox during Watergate, specific materials, but
not a widespread fishing expedition. And there is a reason they do not
want to give these documents up--because they are privileged, they are
a work product of the Solicitor General's Office, they are crucial to
the Solicitor General's Office functioning well.
I bring that to my friend's attention because the arguments that have
been brought up have been not persuasive, they are not accurate, and
frankly in the other people beside Judge Bork, there is no record at
all that the Justice Department ever gave those documents to those
people. Somebody may have leaked them, but the Justice Department did
not give them.
I thank the Senator. I just wanted to tell the Senator that I think
this is a red herring.
Mr. LEAHY. Retaining my right to the floor, I ask the Senator from
Utah to hear my speech because it may be that whoever he talked to at
the White House may be new or may not be aware of this.
Here are some of the memos past White Houses have provided us. They
are still in the files here. They are pretty extensive. Included in
this large volume are some of the same memos written by attorneys to
then-Solicitor General Bork, as well as memos related to the
nominations of Justice William Rehnquist to be Chief Justice, of
Bradford Reynolds, the Reagan Associate Attorney General for Civil
Rights to be Associate Attorney General and other nominees to short-
term or lifetime appointments.
I really do want to finish my speech, and I think that then the
Senator from Utah will understand what is going on--with Mr. Reynolds,
Mr. Benjamin Civiletti, in his nomination to become Attorney General,
and other past nominees. I will not put them in the Record now, but if
my friend from Utah will bear with me, he will see what happens on
this, and I will lay out the case where this has been done over and
over again in the past.
This is a case where the administration asks for the Senate to advise
and consent to a lifetime appointment, something that will go on well
after most of us have left the Senate, but the administration does not
want to provide information and memoranda relevant to this nomination.
The administration has done this in both judicial and executive
nominations. Even this very administration has done so in another
nomination for a short-term position, but it has refused to do so in
the case of Mr. Estrada.
[[Page S2252]]
I wonder--and of course if the Senator wishes me to yield, I will--I
wonder if he would give me the courtesy of hearing some of these
points.
Mr. HATCH. If I could ask one question, and of course I will listen
to the Senator.
It is my understanding that the Democrats have asked for memoranda of
appeals, certiorari petitions, and amicus curiae. Does the Senator have
any indication that any documents pertaining to recommendations of
appeals, certiorari, or amicus curiae have ever been given by the
Justice Department?
Mr. LEAHY. I do have evidence of exactly that. If the Senator would
let me finish my speech, he would understand that.
The current White House has disclosed to the Senate legal memorandum
writing by an attorney of President George H.W. Bush's White House
Counsel's Office in connection with the nomination of Jeffrey Holmstead
to be Assistant Administrator of the Environmental Protection Agency,
and, interestingly enough, this was a position of far less duration and
importance than a lifetime judicial appointment.
In Mr. Estrada's case, the White House will not provide any of the
information sought. That bothers me. I wonder what is in there. They
seem to be saying: We have looked at it; trust us, it is OK. Well, I
remember the made-up Russian proverb that President Reagan speech
writers came up with: Trust, but verify. Even though there was no such
proverb, I thought it was a great saying, so I will use the same one.
The administration's claim that such a request is unprecedented, as
the distinguished Senator from Utah suggested, is actually wrong within
the administration's own knowledge, even their own history. It is also
wrong with respect to prior administrations and the confirmation
history of the Judiciary Committee.
What is happening is the White House seems willing to rewrite history
for this case. I suspect if that is to be allowed, then the next
difficult confirmation that comes up, the history will be rewritten
again and the Senate will be stonewalled again.
The facts, I say to my friend from Utah, are these. The Senate has
requested, and past Justice Departments have provided, similar
memoranda such as memoranda related to appeals, certiorari petitions,
and amicus curiae--the decision to join a case as a friend of the
court--written by attorneys of the Department of Justice. They have
done this in connection with the nominations of Robert Bork to become
Associate Justice of the Supreme Court; William Bradford Reynolds,
Assistant Attorney General for the Civil Rights Division, to become
Associate Attorney General; Benjamin Civiletti, nominated by President
Carter to become Attorney General; Stephen Trott, nominated to become a
judge in the Ninth Circuit; and then- Justice William Rehnquist, who
was nominated by President Reagan to become Chief Justice--among
others.
I did not get a chance to go to the gym this morning, but I guess I
can almost get as much exercise in picking up and holding some examples
of the memoranda that have been provided by both Republican and
Democratic administrations in the past, the exact same type of
memoranda to the Solicitor General, as well as other similar legal
memoranda, that we now ask for on Mr. Estrada. So the real red herring
is to assert that there is no precedent and to claim that no such
documents have never been shared with the Senate Judiciary Committee in
past nominations, and to say therefore that the Senate cannot examine
such documents and that they will not accommodate the committee's
request. Mr. Estrada has stated, and I admire his candor in doing this,
that he is proud of his memoranda and has no personal objection to us
seeing his memoranda and he has no objection to answering questions
based on what he wrote. The administration, however, says: We object.
That objection is based on a complete rewriting of the history of such
requests and past cooperation and accommodation. They have refused to
allow Mr. Estrada to answer many questions and they have refused to
allow the Senate to look at his memoranda.
The Committee's request, however, is well within the practice of the
Senate in prior administrations.
What does seem to be said by the administration is we cannot ask for
this because we have not asked it in relation to every judicial nominee
who has ever worked at the Department. Many who worked there and who
were nominated did have lengthy careers or academic writings or had no
controversy about being unable to set aside deeply held beliefs, unlike
the stealth candidate before us. The administration also ignored the
fact that when the Senate Judiciary Committee has requested memoranda
written by nominees for term and lifetime appointments who worked at
the Justice Department, past Justice Departments have accommodated past
Congresses upon the request.
We get a lot of paperwork on nominees. Sometimes we ask for more and
sometimes we ask for less, depending on the record before us. But when
we have asked for it, everybody, except this administration, has
allowed it and not stonewalled us. In fact, I have been here for 29
years and I do not know of a time when the Justice Department has taken
such an uncooperative approach to a request for information relating to
a nomination.
History shows the Senate does not always seek information it has the
power to seek. We could ask for a whole lot of things that would be
relevant to entrusting a person with a lifetime appointment as a judge.
Often we do not ask. Sometimes there does not seem to be a need for it
because there is enough other information on the record.
But when the requests have been made, they have been honored by prior
administrations that have followed a policy of accommodation in
response to a request from a co-equal branch of the Government for
relevant information related to constitutional responsibilities,
especially related to nominations.
This administration has not taken this position. Instead, they seem
to be saying: We know what is there, just trust us. Rubberstamp what we
send up to you. Don't ask any questions. Be quiet little boys and
girls, just approve our lifetime judges and leave us alone.
The irony with all this is that they don't want to show us this
material so we could make an objective analysis and not look to second
hand evaluations, but they are perfectly willing to go to some of these
files and take out selective pieces and give them to the supporters of
the nominee and give them to the press or leak them to the press. They
want to have it both ways. They are more than happy to use anything
from a confidential Government file they think will help them, but they
don't want to disclose the entire record because they don't want to
have it in context because then the truth may hurt.
If this is how the administration and Department of Justice approach
our shared constitutional responsibility for the appointment to high
office, how are we to have confidence in them in their other
representations about so many things critical to how our Government
functions and how they exercise the enormous power entrusted to them as
a function of the public office they occupy? How are we to accept it
when they say, We don't want to talk about this but trust us? Yet when
we ask questions about things we legitimately believe could be looked
at--nothing classified, nothing confidential--they say they still don't
want to show us that.
We talked about the performance evaluation. The administration and
Republican supporters of Mr. Estrada have sought to exploit his
performance evaluation.
Let's go to the whole story on that. They keep saying Professor
Bender gave the highest evaluation to Mr. Estrada when he was at the
Department of Justice. They claim that is all you need to know. They
say we can't give you anything else in the file, but we will show you
this one thing.
Well, this is not quite the whole story. There is a letter received
from Professor Bender this week. It was sent to Senator Hatch and the
members of the committee. I assumed, since Senator Hatch had been
putting so much in the Record, he would probably put this in. He
somehow didn't.
This is what Professor Bender's letter says in part. I would like to
have the entire letter printed. He says:
[[Page S2253]]
It has come to my attention that, in responding to
statements I made to the press several months ago regarding
the Estrada nomination, you [Senator Hatch] have said, both
to the Judiciary Committee and to the full Senate, (1) that I
have since changed my opinion about the nomination, and (2)
that performance evaluations of Mr. Estrada's work that I
signed in 1995 and 1996, when I was Principal Deputy
Solicitor General, are inconsistent with the views about the
nomination that I gave to the press. I am writing this to
correct those statements of yours.
No. 1. I have not changed my opinion of the nomination--
That is, the adverse opinion he had, in which he opposed the
nomination of Mr. Estrada.
He said:
I have not changed my opinion of the nomination, nor have I
ever said to anyone that I had changed my opinion. . . . I
have not changed that opinion in any respect.
This is dated February 10, 2003. He can't be any more specific than
that. He was opposed to his nomination before. He is opposed to his
nomination since.
Then he says, speaking of the performance evaluations of Mr. Estrada,
these:
. . . are not inconsistent with my published statements [of
opposition to him.] To the best of my recollection, it was
the policy of the Solicitor General's Office at the time to
give every Assistant to the Solicitor General exactly the
same performance evaluation.
These things could have been printed up a month before.
The language in the Performance Achievements portions of
Mr. Estrada's evaluations was not written by me, nor did I
fill out the Employee Appraisal Record form.
Then he goes on to say:
I believe that the Solicitor General's Office had the
policy of giving each of the Assistants exactly the same
Excellent rating each year.
And he stated why? Of course. It paid them the highest salaries
permitted by the Government. Everybody they hired had those highest
salaries. To keep the highest salaries, they had to have the excellent
rating.
I ask unanimous consent to have the letter printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Arizona State University,
Tempe, AZ, February 10, 2003.
Renomination of Miguel A. Estrada to the United States Court
of Appeals for the District of Columbia Circuit.
Hon. Orrin Hatch,
U.S. Senate,
Hart Senate Office Building,
Washington, DC.
Dear Senator Hatch: It has come to my attention that, in
responding to statements I made to the press several months
ago regarding the Estrada nomination, you have said, both to
the Judiciary Committee and to the full Senate, (1) that I
have since changed my opinion about the nomination, and (2)
that performance evaluations of Mr. Estrada's work that I
signed in 1995 and 1996, when I was Principal Deputy
Solicitor General, are inconsistent with the views about the
nomination that I gave to the press. I am writing this to
correct those statements of yours.
1. I have not changed my opinion of the nomination, nor
have I ever said to anyone that I had changed my opinion.
Someone must have inadvertently given you incorrect
information about this. When asked by reporters what I
thought of the nomination when it was first made (I assume I
was asked because I have been one of Mr. Estrada's
supervisors in the Solicitor General's Office), I stated my
honest opinion, to the best of my ability. I have not changed
that opinion in any respect.
I have declined to keep stating the same views to the
press, over and over again, because I am not engaged in, and
do not wish to seem to be engaged in, any kind of campaign or
crusade against Mr. Estrada. I did not volunteer my negative
comments to anyone, either in the press, the government, or
elsewhere. I was asked my opinion and I gave it. Having done
so, I did not see any reason to keep repeating it to
reporters who called. My opinion has not changed.
2. The ``Excellent'' performance evaluations of Mr. Estrada
that I signed in 1995 and 1996 are not inconsistent with my
published statements about the nomination. To the best of my
recollection, it was the policy of the Solicitor General's
Office at the time to give every Assistant to the Solicitor
General exactly the same performance evaluation. The language
in the Performance Achievements portions of Mr. Estrada's
evaluations was not written by me, nor did I fill out the
Employee Appraisal Record form. You will notice, in examining
the Performance Appraisal Record form, that the language in
the Performance Achievements portion was taken, word for
word, from the printed Performance Standards that precede
each part of the evaluation form. As far as I can remember,
an administrator in the Solicitor General's Office prepared
identical ``Excellent'' evaluations for each Assistant each
year, taking the language directly from the printed
performance standards. I do not think this practice is an
unusual one in the government.
When these filled-out-forms came across my desk, I believe
that I asked the Solicitor General what to do with them, and
that he asked me to sign them, as written, as the Rating
Official. I did as he requested. He then signed them as the
Reviewing Official. No actual individual written evaluation
was done by me--or, so far as I know, by anyone else--in
connection with these evaluations for any Assistant to the
Solicitor General. They were boilerplate.
I believe that the Solicitor General's Office had the
policy of giving each of the Assistants exactly the same
Excellent rating each year because it hired only the most
highly qualified lawyers and it paid them the highest
salaries permitted by the government. ``Excellent'' ratings
were necessary to justify these salaries. I signed the
already filled-out Performance Evaluation forms, as they were
give to me, as part of that policy.
Since my views seem to be relevant to the Senate's
consideration of the nomination, I would appreciate it if you
would share this information with your colleagues who are
considering the nomination. I thank you in advance for this
consideration.
Sincerely,
Paul Bender,
Professor of Law.
Mr. LEAHY. Mr. President, I am doing that because Professor Bender
asked that this be made known to the Senate, especially as he has been
quoted as having changed his mind. He still opposes Mr. Estrada. I will
quote him again. He says:
I have not changed my opinion of the nomination, nor have I
ever said to anyone that I had changed my opinion.
He makes it very clear that he feels he has been misquoted on the
Senate floor. He may feel it was done inadvertently. He said, ``Someone
must have inadvertently given you incorrect information about this,''
making it very clear that he was misquoted.
I know what he means. It is easy to get misquoted around here.
Earlier this week a Republican Senator misquoted me in the Senate
Chamber. The Senator who purported to quote my words certainly could
not have known that he was quoting me incorrectly. I can't believe--I
would be shocked to think somebody would come here and quote me out of
context or incorrectly to make a partisan point. I would be as shocked
as Claude Raines was in ``Casablanca.''
So people understand, the statement I did make on June 18, 1998, was
to protest the anonymous Republican hold in the consideration of the
judicial nomination of Judge Sonia Sotomayor. The nomination of Judge
Sonia Sotomayor was held up, as I have stated before, for months and
months and months by anonymous holds. She had been nominated by
President Clinton to the Second Circuit Court of Appeals. I believe she
was the very first Hispanic woman to go to that court of appeals.
Everybody assumed her to be a slam dunk. She had been originally
appointed by President George H.W. Bush to the district court. But
Republicans allowed anonymous holds and nobody on the Republican side
would say who was holding her up, but they held her up.
I am saying I would never do this to a judge. What I said was I would
refuse to put an anonymous hold on any judge. I never have put an
anonymous hold on a judge. If I wanted to delay for whatever reason a
nomination, I state it on the floor as I am doing now, in the light of
day, not the cloak of secrecy.
The portion of my speech about anonymous holds--like some speeches I
made in the years 1996, 1997, 1998, 1999, and 2000--were not heard on
the other side of the aisle. That is probably why they now misquote it.
I am sure it is an inadvertent misquote. I think it is because they
didn't hear it. They certainly didn't hear it at the time because they
continue to use the ``anonymous holds.'' It is a practice I put an end
to when I was chairman of the Judiciary Committee. But when Republicans
controlled the Senate in years past they held up scores of judicial
nominees of President Clinton, and never allowed them to come to a vote
by ``anonymous holds'' of a single Republican Senator or more than one.
I am not surprised that they misquote me on the floor, because they
didn't hear my speech at that time. In this case, people should
understand what was happening.
Judge Sonia Sotomayor's nomination was delayed by anonymous
Republican holds and was on the Senate calendar for months and months.
She was favorably reported by the Judiciary Committee in early March of
1998. But then
[[Page S2254]]
her nomination was stalled without explanation or accountability on the
calendar without Senate action. Even after I made my speech criticizing
anonymous holds and stating that I would never put on such an anonymous
hold, her nomination continued to be delayed for several more months to
the very end of the session of Congress. It was actually delayed, I
think, for 7 months. When it finally came up, 29 Republican Senators
voted against confirmation of Judge Sonia Sotomayor for the Second
Circuit.
I went back and checked the Congressional Record. They are not
required to, of course, but you would think after voting against a
judge, or having anonymous holds on a judge for a long period, there
would be at least one or two words in the Congressional Record
explaining why this was done. They don't have any requirement to do
that, but I think it would have been nice. If they carry out an
anonymous hold like that for all of those months, you might say, Why?
I mention this because there seems to be a lot being overlooked. When
that same Republican Senator quoted part of a colloquy between me and
the then-majority leader, Trent Lott, I suspect that he did not really
recall the discussion, or he would not have had it so wrong here on the
floor.
I will read again what Senator Lott, the Republican leader, said at
that time:
[T]here are not a lot of people saying: Give us more
Federal judges. They just are not. For us to be pontificating
about this and gnashing, how unfair, this appointment of more
Federal judges, It is just not there. . . . Some people might
argue that we have plenty of Federal judges to do the job. I
hope they will do that. I am saying to you, I am trying . . .
but getting more Federal judges is not what I came here to
do.
The distinguished Presiding Officer was not in the Senate at that
time. But he may recall Justice Ronnie White came from his State.
The nomination of Ted Stewart to the District Court in Utah was also
very controversial. A lot of the so-called ``liberal groups'' the
distinguished chairman is fond of excoriating around here opposed Mr.
Stewart. A lot of the same groups the distinguished senior Senator from
Utah implies control things around here opposed Mr. Stewart.
I voted for Mr. Stewart. I was one of those Democrats who should not
be lumped together. In fact, a whole lot of Democratic Senators voted
for Mr. Stewart, even though he was strongly opposed by groups that are
normally aligned with Democratic interests, especially those who
support a clean environment in this country.
Then there was, of course, the nomination of Justice Ronnie White. He
also was supported by every Democratic Senator. And every single
Republican, including those who had voted for Ronnie White in
committee, came down on the floor and voted against him.
I do not recall anything like that ever happening on the Senate
floor.
His nomination was rejected by a party-line vote of Republics--it was
quite unusual to vote down a district court nominee, especially one who
had been voted out by the Judiciary Committee. Some of the same
Republicans who voted for him before the committee voted against him on
this floor. This superb African American jurist was humiliated and
defeated.
It took several more months of hard work to obtain votes on the
nomination of Judge Paez and Marsha Berzon.
Again, these anonymous Republican holds held them up until March of
the following year 2000.
Again, as I said, I will always oppose such anonymous holds.
Even then, after obtaining a vote of Judge Paez's nomination to the
circuit court involving overcoming several procedural hurdles and
several votes before we were finally able, after more than 4 years of
trying--4 years it sat here--this distinguished Hispanic jurist finally
got a vote. Then 39 Republicans voted against the nomination, including
a number of Republican Senators who were involved in yesterday's debate
saying it would be a terrible and unique precedent if we don't
immediately vote for a Hispanic who is nominated to the court of
appeals, in this case, Mr. Estrada.
They were perfectly willing to block floor votes for years before. I
am not sure what the difference is. They both have supporters.
I do recall the difference now. One was appointed by a Democratic
President and one by a Republican President. Like I said, that seems to
be all the difference in the world.
In the debate, my Republican colleagues speak of the weight of the
letter from the former Solicitors General and Acting Solicitor General.
They say this is definitive and assert that the Senate has no right to
ask these questions.
Immediately, the independent 100 Members of the Senate say, My gosh.
These guys who held these important staff positions at the Department
of Justice are telling us we can't ask questions; that we should
immediately run for cover, and say, of course, we will not ask
questions.
I don't quite read the Constitution that way.
In fact, I frankly didn't get elected to the Senate and take my oath
of office and decide at that point I will vote or take actions based
upon what somebody who worked for the Attorney General tells me to do
or not do as a Senator. I don't care which attorney general it might
have been, Republican or Democrat. It is not in the cards.
But I was concerned. I know of these former Solicitors General from
both Republican and Democratic administrations. For many of them, I was
impressed with their legal abilities. So I am struck with their
letter's ignorance of the precedents. I do not know who wrote the
letter, but one of the people who signed it was Robert Bork. But I
doubt he wrote it because his own nomination provides some of the
strongest precedent for the requests we are making.
I do not fault them for seeking to maximize the secrecy of executive
branch memoranda and deliberations, although I am surprised they are
willing to do that at a time when we have the most secretive
administration I have ever known out of the six administrations--I came
here right after the Nixon administration, so I cannot speak for the
Nixon administration. But this administration is certainly far more
secretive than the other ones I have served with before: the Ford, the
Carter, the Reagan, the first Bush, and the Clinton administrations.
This letter states a policy preference and has been misinterpreted by
some as a statement of law, or privileged, which it is not. I want to
emphasize that. They state what they think the policy should be. They
do not state what the law should be. Therein lies an enormous
difference. They are not writing this based on their legal knowledge,
saying this is the law. They are saying: This is what we think the
policy should be.
Well, I have always felt, on these kinds of issues, Senators should
make that policy. Especially we should make the policy of what we are
going to ask for in confirmation hearings. That was done at the time of
our nation's first leader, President George Washington in cooperation
with the Senate. I would note that in 1795, four years after the
Constitution was adopted, the Senate defeated one of the judicial
nominations of President Washington, that of John Rutledge and that
vote was based on differences between many of the Senators and Justice
Rutledge regarding ideas and policies. The Senate's consideration of
judicial nominees and their views and approach to the law has been done
by every Senate since.
It is especially difficult to understand, hearing the sudden urge on
the other side of the aisle that: Oh, my gosh, we have to keep
everything in the executive branch confidential. Well, Congress passed
the Presidential Records Act to require the opposite, that memoranda
and writings of advisors to the President be made public.
Additionally, I would not that some of the same Senators made demand
after demand for internal documents of the Clinton administration over
the last several years. They were asking for things that had never been
asked for before, such as information related to on-going
investigations. In fact, I think the Republican-led Senate spent tens
of millions of dollars--tens of millions of dollars--of the taxpayers'
money asking for document after document, many of which were probably
were never read. I would be willing to bet some are still sitting in
the envelopes they were transmitted in. And it was done almost every
day: Let's think
[[Page S2255]]
of something else to ask for. And it was sent. And the taxpayers were
paying for it.
Now, if you have something that is relevant to the core functions of
the Senate, especially the confirmation function, then it is
appropriate to ask for it. This is especially so for the only positions
in our whole system of government that are for life--these judgeships
are lifetime appointments. The Senate cannot amend these decisions,
like a law, if we make a mistake.
The administration's assertion that the documents produced to the
committee during the Bork nomination did not reveal internal
deliberations is way off the mark--way off the mark. When they say this
did not reveal internal deliberations, that is way off the mark. It is
quite clear the Department provided the Senate with memoranda written
to Mr. Bork by lower level attorneys, those who were in the exact same
capacity as Mr. Estrada, making recommendations about appeals in a
variety of cases.
For example, the Justice Department provided the Senate Judiciary
Committee with memoranda related to the Justice Department's legal
analysis of school integration cases, such as memoranda from Frank
Easterbrook when he was an Assistant Solicitor General and Bork was
Solicitor General. The Easterbrook legal memo and similar memos were
shown as examples at Mr. Estrada's recent hearing as part of the large
volume of legal memoranda provided by the Reagan Justice Department and
examined by Senators and key staff.
Senator Dodd, in an excellent speech, referred to some of these
materials last night in debate. Not all of the information disclosed
was previously placed in the Estrada hearing record, so I ask unanimous
consent, Mr. President, to have printed in the Record a sample of the
correspondence between Senator Biden, who was the then-chairman of the
Judiciary Committee, and the Justice Department, which demonstrates the
substantial cooperation and the types of disclosures the Justice
Department made to accommodate the Senate in past administrations.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Department of Justice,
Office of Legislative Affairs
Washington, DC, May 10, 1998.
Hon. Joseph R. Biden, Jr.,
Chairman, Senate Judiciary Committee, U.S. Senate,
Washington, DC.
Dear Chairman Biden: This letter requests that the
Committee return to the Justice Department all copies of
documents produced by the Department in response to Committee
requests for records relating to the nomination of Robert
Bork to the Supreme Court. As Assistant Attorney General John
Bolton noted in an August 24, 1987, letter to you, many of
the documents provided the Committee, ``reflect or disclose
purely internal deliberations within the Executive Branch,
the work product of attorneys in connection with government
litigation or confidential legal advice received from or
provided to client agencies within the Executive Branch.'' We
provided these privileged documents to the Committee in order
to respond fully to the Committee's request and to expedite
the confirmation process.
Although the Committee's need for these documents has
ceased, their privileged nature remains. As we emphasized in
our August 24, 1987, letter, production of these documents to
the Committee did not constitute a general waiver of claims
of privilege. We therefore request that the Committee return
all copies of all documents provided by the Department to the
Committee, except documents that are clearly a matter of
public record (e.g., briefs and judicial opinions) or that
were specifically made a part of the record of the hearings.
Please contact me if you have any questions. Thank you for
your cooperation.
Sincerely,
Thomas M. Boyd,
Acting Assistant Attorney General.
____
U.S. Department of Justice, Office of Legislative and
Intergovernmental Affairs,
Washington, DC, September 2, 1987.
Hon. Joseph R. Biden, Jr.,
Chairman, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: Attached is one set of copies of
documents assembled by the Department in response to your
August 10, 1987 request for documents relating to the
nomination of Robert Bork to the Supreme Court of the United
States, and provided in response to requests made to date by
Committee staff. These documents are being provided under the
conditions stated in my August 24, 1987 letter to you.
Sincerely,
John R. Bolton,
Assistant Attorney General.
Attachments.
____
U.S. Senate,
Committee on the Judiciary,
Washington, DC, August 10, 1987.
Hon. Edwin Meese III,
Attorney General, Department of Justice,
Washington, DC.
Dear General Meese: As part of its preparation for the
hearings on the nomination of Judge Robert Bork to the
Supreme Court, the Judiciary Committee needs to review
certain material in the possession of the Justice Department
and the Executive Office of the President.
Attached you will find a list of the documents that the
Committee is requesting. Please provide the requested
documents by August 24, 1987. If you have any questions about
this request, please contact the Committee staff director,
Diana Huffman, at 224-0747.
Thank you for your cooperation.
Sincerely,
Joseph R. Biden, Jr.,
Chairman.
____
Request for Documents Regarding the Nomination of Robert H. Bork to Be
Associate Justice of the United States Supreme Court
Please provide to the Committee in accordance with the
attached guidelines the following documents in the
possession, custody or control of the United States
Department of Justice, the Executive Office of the President,
or any agency, component or document depository of either
(including but not limited to the Federal Bureau of
Investigation):
1. All documents generated during the period from 1972
through 1974 and constituting, describing, referring or
relating in whole or in part to Robert H. Bork and the so-
called Watergate affair.
2. Without limiting the foregoing, all documents generated
during the period from 1972 through 1974 and constituting,
describing, referring or relating in whole or in part to any
of the following:
a. any communications between Robert H. Bork and any person
or entity relating in whole or in part to the Office of
Watergate Special Prosecution Force or its predecessors- or
successors-in-interest;
b. the dismissal of Archibald Cox as Special Prosecutor;
c. the abolition of the Office of Watergate Special
Prosecution Force on or about October 23, 1973;
d. any efforts to define, narrow, limit or otherwise
curtail the jurisdiction of the Office of Watergate Special
Prosecution Force, or the investigative or prosecutorial
activities thereof;
e. the decision to reestablish the Office of Watergate
Special Prosecution Force in November 1973;
f. the designation of Mr. Leon Jaworski as Watergate
Special Prosecutor;
g. the enforcement of the subpoena at issue in Nixon v.
Sirica;
h. any communications on October 20, 1973 between Robert H.
Bork and then-President Nixon, Alexander Haig, Leonard
Garment, Fred Buzhardt, Elliot Richardson, or William
Ruckelshaus;
l. any communications between Robert H. Bork and then-
President Nixon, Alexander Haig and/or any other federal
official or employee on the subject of Mr. Bork and a
position or potential position as counsel to President Nixon
with respect to the so-called Watergate matter;
m. any action, involvement or participation by Robert H.
Bork with respect to any issue in the case of Nader v. Bork,
366 F. Supp. 104 (D.D.C. 1975), or the appeal thereof;
n. any communication between Robert H. Bork and then-
President Nixon or any other federal official or employee, or
between Mr. Bork and Professor Charles Black, concerning
Executive Privilege, including but not limited to Professor
Black's views on the President's ``right'' to confidentiality
as expressed by Professor Black in a letter or article which
appeared in the New York Times in 1973 (see Mr. Bork's
testimony in the 1973 Senate Judiciary Committee hearings on
the Special Prosecutor);
o. the stationing of FBI agents at the Office of Watergate,
Special Prosecution Force on or about October 20, 1973,
including but not limited to documents constituting,
describing, referring or relating to any communication
between Robert H. Bork, Alexander Haig, or any official or
employee of the Office of the President or the Office of the
Attorney General, on the one hand, and any official or
employee of the FBI, on the other; and
p. the establishment of the Office of Watergate Special
Prosecution Force, including but not limited to all documents
constituting, describing, referring or relating in whole or
in part to any assurances, representations, commitments or
communications by any member of the Executive Branch or any
agency thereof to any member of Congress regarding the
independence or operation of the Office of Watergate Special
Prosecution Force, or the circumstances under which the
Special Prosecutor could be discharged.
3. The following documents together with any other
documents referring or relating to them:
a. the memorandum to the Attorney General from then-
Solicitor General Boark, dated August 21, 1973, and its
attached ``redraft of the memorandum intended as a basis for
discussion with Archie Cox'' concerning ``The Special
Prosecutor's authority'' (typeset copies of which are printed
at pages 287-288 of the Senate Judiciary Committee's 1973
``Special Prosecutor'' hearings);
[[Page S2256]]
b. the letter addressed to Acting Attorney General Bork
from then-President Nixon, dated October 20, 1973., directing
him to discharge Archibald Cox;
c. the letter addressed to Archibald Cox from then-Acting
Attorney General Bork, dated October 20, 1973, discharging
Mr. Cox from his position as Special Prosecutor;
d. Order No. 546-73, dated October 23, 1973, signed by
then-Acting Attorney General Bork, entitled ``Abolishment of
Office of Watergate Special Prosecutor Force'';
e. Order No. 547-73, dated October 23, 1973, signed by
then-Acting Attorney General Bork, entitled ``Additional
Assignments of Functions and Designation of Officials to
Perform the Duties of Certain Offices in Case of Vacancy, or
Absence therein or in Case of Inability or Disqualification
to Act'';
f. Order No. 551-73, dated November 2, 1973, signed by
then-Acting Attorney General Bork, entitled ``Establishing
the Office of Watergate Special Prosecution Force'';
g. the Appendix to Item 2.f., entitle ``Duties and
Responsibilities of Special Prosecutor'';
h. Order No. 552-73, dated November 5, 1973, signed by
then-Acting Attorney General Bork, designating ``Special
Prosecutor Leon Jaworski the Director of the Office of
Watergate Special Prosecution Force'';
i. Order No. 554-73, dated November 19, 1973, signed by
then-Acting Attorney General Bork, entitled ``Amending the
Regulations Establishing the Office of Watergate Special
Prosecution Force''; and
j. the letter to Leon Jaworski, Special Prosecutor, from
then-Acting Attorney General Bork, dated November 21, 1973,
concerning Item 2.i.
4. All documents constituting, describing, referring or
relating in whole or in part to any meetings, discussions and
telephone conversations between Robert H. Bork and then-
President Nixon, Alexander Haig or any other federal official
or employee on the subject of Mr. Bork's being considered or
nominated for appointment to the Supreme Court.
5. All documents generated from 1973 through 1977 and
constituting, describing, referring or relating in whole or
in part to Robert H. Bork and the constitutionality,
appropriateness or use by the President of the United States
of the ``Pocket Veto'' power set forth in Art. I, section 7,
paragraph 2 of the United States Constitution, including but
not limited to all documents constituting, describing,
referring or relating in whole or in part to any of the
following:
a. The decision not to petition for certiorari from the
decision of the United States Court of Appeals for the
District of Columbia Circuit in Kennedy v. Sampson, 511 F.2d
430 (1947);
b. the entry of the judgment in Kennedy v. Jones, 412 F.
Supp. 353 (D.D.C. 1976); and
c. the policy regarding pocket vetoes publicly adopted by
President Gerald R. Ford in April 1976.
6. All documents constituting, describing, referring or
relating in whole or in part to Robert H. Bork and the
incidents at issue in United States v. Gray, Felt & Miller,
No. Cr. 78-00179 (D.D.C. 1978), including but not limited to
all documents constituting, describing, referring or relating
in whole or in part to any of the exhibits filed by counsel
for Edward S. Miller in support of his contention that Mr.
Bork was aware in 1973 of the incidents at issue.
7. All documents constituting, describing or referring to
any speeches, talks, or informal or impromptu remarks given
by Robert H. Bork on matters relating to constitutional law
or public policy.
8. All documents constituting, describing, referring or
relating in whole or in part either (i) to all criteria or
standards used by President Reagan in selecting nominees to
the Supreme Court, or (ii) to the application of those
criteria to the nomination of Robert H. Bork to be Associate
Justice of the Supreme Court.
9. All documents constituting, describing, referring or
relating in whole or in part to Robert H. Bork and any study
or consideration during the period 1969-1977 by the Executive
Branch of the United States Government or any agency or
component thereof of school desegregation remedies. (In
addition to responsive documents from the entities identified
in the beginning of this request, please provide any
responsive documents in the possession, custody or control of
the U.S. Department of Education or its predecessor agency,
or any agency, component or document depository thereof.)
10. All documents constituting, describing, referring or
relating in whole or in part to the participation of
Solicitor General Robert H. Bork in the formulation of the
position of the United States with respect to the following
cases:
a. Evans v. Wilmington School Board, 423 U.S. 963 (1975),
and 429 U.S. 973 (1976);
b. McDonough v. Morgan, 426 U.S. 935 (1976);
c. Hills v. Gautreaux, 425 U.S. 284 (1976);
d. Pasadena City Board of Education v. Spangler, 427 U.S.
424 (1976);
e. Roemer v. Maryland Board of Public Education, 426 U.S.
736 (1976);
f. Hill v. Stone, 421 U.S. 289 (1975); and
g. DeFunis v. Odegaard, 416 U.S. 312 (1975).
GUIDELINES
1. This request is continuing in character and if
additional responsive documents come to your attention
following the date of production, please provide such
documents to the Committee promptly.
2. As used herein, ``document'' means the original (or an
additional copy when an original is not available) and each
distribution copy of writings or other graphic material,
whether inscribed by hand or by mechanical, electronic,
photographic or other means, including without limitation
correspondence, memoranda, publications, articles,
transcripts, diaries, telephone logs, message sheets,
records, voice recordings, tapes, film, dictabelts and other
data compilations from which information can be obtained.
This request seeks production of all documents described,
including all drafts and distribution copies, and
contemplates production of responsive documents in their
entirety, without abbreviation or expurgation.
3. In the event that any requested document has been
destroyed or discarded or otherwise disposed of, please
identify the document as completely as possible, including
without limitation the date, author(s), addressee(s),
recipient(s), title, and subject matter, and the reason for
disposal of the document and the identity of all persons who
authorized disposal of the document.
4. If a claim is made that any requested document will not
be produced by reason of a privilege of any kind, describe
each such document by date, author(s), addressee(s),
recipient(s), title, and subject matter, and set forth the
nature of the claimed privilege with respect to each
document.
(Mr. TALENT assumed the Chair.)
Mr. LEAHY. I put that material in the Record because it stands in
stark contrast to the total lack of cooperation by the current
occupants of the Justice Department.
The administration, quite inappropriately, I believe, refuses the
request of a coequal branch of Government. To quote a friend of mine,
one who went to the same law school I did, at about the same time: We
are not potted plants up here. The Senate has demonstrated its role in
the confirmation of judges from the beginning of this country's
history. After all, the Senate rejected some of President George
Washington's and President Madison's judicial nominees. But let's go
ahead with what has happened here. It makes me wonder if there is some
kind of huge disconnect at the administration, or whether they are
getting all their information based on some of the things that were
wrongly stated on the Senate floor.
What happened first is, the administration claimed: We cannot send up
this material, these memos of Mr. Estrada because we never provided
internal legal memos in the past. Then, of course, we gave them
evidence: Well, yes, previous administrations had. Then the
administration says: Whoops, well, those were different. They are
distinguishable. So then we show them evidence: No, it is exactly the
same kind of memoranda. And they say: Prove that you received memos
that contained confidential information written by attorneys. And they
say, we are still not going to accommodate you. We are still not going
to come forth. They, in essence, are saying we are still going to
stonewall you and we will continue to deny that any precedent exists.
I am reminded of the famous story of President Lincoln's cross-
examination in a case when he was a young lawyer. As the story goes,
Lincoln was cross-examining a witness about how a man, who was far away
from the scene of a fight, could have seen what happened. And it went
something like this.
Lincoln said: Isn't it true that you were across the road from where
the incident took place?
The answer was: Yes.
Then Lincoln said: Isn't it true that you are near-sighted?
The witness answered: Yes.
And then Lincoln said: Isn't it true that your view of the fight was
blocked by trees?
The witness said: Yes.
So Lincoln said: Then, how can you sit there and testify under oath
that the defendant bit Mr. Smith?
The witness answered: Because I saw the defendant spit Mr. Smith's
ear out of his mouth.
In our case, subsequent to Mr. Estrada's hearing, we learned that
most of the Bork appeal memos disclosed to the Senate were returned to
the Department the year after the nomination. The proof is in a letter
from Acting Assistant Attorney General Thomas Boyd to Chairman Biden in
May 1988, which notes that:
[M]any of the documents provided to the Committee,
``reflect or disclose purely internal deliberations within
the Executive Branch, the work product of attorneys in
connection with government litigation or confidential legal
advice received from or provided to client agencies within
the Executive Branch. We provided these privileged documents
to the Committee in order to respond fully to the Committee's
request and to expedite the confirmation process.''
[[Page S2257]]
Sound familiar? Well, the requests should be familiar. It is exactly
what we requested last year. The difference is, during President
Reagan's administration, they responded. During this administration,
they say: There is no precedent for it.
So, frankly, this is the ``ear being spit out.'' The fact is, this
letter ``spits out'' that the overly partisan current occupants of the
Justice Department have sought to deny the Justice Department
previously provided such documents. Mr. President, those denials are
false.
Surely, a copy of this letter is also in the Justice Department's
files. If we had been able to get this letter earlier, even by the time
of Mr. Estrada's hearing, we would have put it in the Record. It is
obvious why the Justice Department probably did not want us to have it.
Because it conclusively demonstrates the precedent that documents like
the ones written by Mr. Estrada were provided to the Senate Judiciary
Committee in the past.
The Boyd letter conclusively demonstrates the precedent that
documents like the ones written by Mr. Estrada were provided to the
Senate Judiciary Committee in the past. It must now be admitted beyond
dispute that, as the Justice Department acknowledged back then, ``the
work product of attorneys in connection with government litigation or
confidential legal advice'' was provided to the Senate in connection
with past nominations.
I hope that the administration and its Republican supporters will
finally quit denying the precedent for the request and provide us with
Mr. Estrada's memoranda. Letters from the Justice Department itself
finally conclusively establish the precedent for our request.
The longstanding policy of the Justice Department, until now, and the
policy of prior administrations, including the Reagan and first Bush
administrations, has been a practice of accommodation with the Senate
in providing access to materials requested in connection with
nominations. This administration would rather deny the truth and long-
standing practices. At times it is as if this administration thinks it
has a blank slate and a blank check notwithstanding tradition, history,
precedent or the shared powers explicitly provided by our nation's
Constitution.
There is part of a pattern of hostility by this administration to
requests for information by Congress acting pursuant to powers granted
to it by the Constitution, regarding nominees and other important
oversight matters.
Yesterday, I joined with the distinguished Democratic Leader in a
letter to the President setting forth background on the stonewalling of
his administration that has occurred with respect to this nomination
and urging him to take action to help resolve the impasse. I thank the
Democratic Leader for taking this action and seeking accommodation
between the two branches of our government. I have been seeking such
accommodation for the last two years with respect to judicial
nominations. I hope that we can now be more successful.
I would also note that the few court cases cited by the
administration about the general desirability of confidentiality for
government documents are dicta and not precedential or binding on the
Senate.
One of the cases relied on by the administration is United States v.
Nixon, 418 U.S. 683 (1974), in which the Supreme Court ordered
President Nixon to disclose his Watergate-related tape recordings of
Oval Office conversations with his closest personal and legal advisors.
The Supreme Court also noted in the Nixon case that it is quite
unlikely ``that advisors will be moved to temper the candor of their
remarks by the infrequent occasions of disclosure.'' 418 U.S. at 712.
Just as the Supreme Court observed in the Nixon case, it seems
unlikely that Mr. Estrada was chilled from expressing his views in his
memos following the disclosure of memos written by attorneys at the
Department in the decade prior to his service there in connection with
the Trott, Bork, Rehnquist, and Reynolds nominations. Ironically,
memoranda by Mr. Bork assessing President Nixon's authority to refuse
to disclose information was one of documents provided to the Senate in
connection with the Bork nomination.
Other cases cited by the Justice Department in its second letter are
inapplicable to the Senate or pre-date the Nixon decision. For example,
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975), is a case
brought under the Freedom of Information Act (FOIA) involving a
statutory-based claim of deliberative process privilege under FOIA, not
a request from the Congress. I wish this administration were more
forthcoming in connection with FOIA requests, but this is not a FOIA
request, nor does FOIA limit Congress' authority to seek information
from the Executive Branch or its agencies. Indeed, 5 U.S.C. 552(d)
expressly provides that FOIA ``is not authority to withhold information
from Congress.''
During the course of this debate Republican Senators have also spoken
as if these materials are somehow protected by an attorney-client
privilege. First, I note that even the administration has not made that
claim. The administration's refusal to cooperation is not based on any
claim of a legal privilege, just recalcitrance. I believe I explained
at Mr. Estrada's hearing some of the reasons a claim of attorney-client
privilege would be misplaced. Until this week, only the Washington Post
had gotten it wrong in asserting that privilege applies.
Unfortunately, Republican Senators are now taking up that chant. It
is heartwarming to hear Republicans' devotion to concepts like the
attorney-client privilege but it is that concept is inapplicable to the
request for Mr. Estrada's writings.
As a legal matter, the Seventh, Eighth, and District of Columbia
Circuits have ruled that government lawyers are not entitled to claim
the attorney-client privilege.
Moreover, in this setting the ``client'' is the government of which
the Congress is certainly a part.
This administration's own Assistant Attorney General for Legal Policy
Viet Dinh flatly rejected the notion of such a privilege five years ago
when he told Legal Times that a government lawyer's ``employer is not a
single person but the United States of America.'' He said both the
``United States of America'' and the ``government'' obviously include
the United States Senate, especially when it is fulfilling
constitutional responsibilities. As conservative law professor Ronald
Rotunda has noted, ``government lawyers work for the government, and
not the particular individual whose offices happen to be down the
hall.'' He added that ``the government cannot plead attorney-client
privilege against itself.'' This is from the Legal Times of August 3,
1998.
The attorney-client privilege is designed to encourage candor by the
client, not the attorney. For those who are not attorneys, I note that
the attorney-client privilege is designed for litigation in courts
between private parties. It is a judge-made doctrine based on policy
considerations to foster an effective adversary legal system. I am a
strong believer in our adversarial legal system and a strong supporter
of the attorney-client privilege. It does not apply in these
circumstances.
Finally, there is ample precedent that the attorney-client privilege
does not apply to requests by Congress. As Senator Fred Thompson, who
chaired one of the many Republican investigations into the Clinton
Administration, noted: ``In case after case, the courts have concluded
that allowing it [the attorney-client privilege] to be used against
Congress would be an impediment to Congress' obligation and duty to get
to the truth and carry out its investigative and oversight
responsibilities.''
My good friend from Utah, Senator Hatch, has echoed that analysis. A
few years ago, he observed: ``The attorney-client privilege exists as
only a narrow exception to broad rules of disclosure. And the privilege
exists only as a statutory creation, or by operation of State common
law. No statute or Senate or House rule applies the attorney-client
privilege to Congress. In fact, both the Senate and the House have
explicitly refused to formally include the privilege in their rules.''
The Congressional Research Service has found that ``No court has ever
questioned the assertion of that prerogative'' and noted that the
privilege ``is not of constitutional dimensions, [and] is certainly not
binding on the Congress of the United States.''
I regret that so many of our Republican colleagues have chosen to
seek
[[Page S2258]]
comfort and concealment in a legal principle that has no application to
this matter. I think that the confusion started with a Washington Post
editorial that got this matter all wrong and reflects a lack of
familiarity with the history of nominations and the Senate's long-
standing view of the privilege. The Washington Post's editorials on
these matters has been prone to err in a number of ways and they remain
free to do so, but I am sorry so many were led astray on this and other
matters.
This Administration's policy argument for absolute secrecy of these
memoranda is undermined by other long-standing practices related to
nominees. The Senate routinely receives confidential information about
lifetime and term-appointed nominees by way of the FBI's background
investigation of a nominee, which details their adult lives and many
private matters. Thus, the Senate is not required to show a
particularized need for such private information which has long been
germane to a nominee's fitness for judicial office.
Moreover, the memos at issue do not involve national security. There
are no state secrets in the documents Mr. Estrada has written requiring
that they be sealed from congressional view forever. The memos do not
relate to any on-going criminal investigation or to any matters that
have not likely already been disposed of by the courts long ago. His
writings are relevant to how he thinks, analyzes legal issues and makes
judgement and, therefore, relevant to whether or not he should be
confirmed to the second highest court in the country. Moreover, as
Senator Schumer noted in his letter, anytime one of these memos is
written, the writer must assume, and even hope, that his or her views
will become the Department's official position. Thus, it is hard to
believe the risk of disclosure on the remote chance that one might
someday be selected for a judgeship would be chilling.
Further, as noted long ago by the Supreme Court in McGrain v.
Daugherty, 273 U.S. 135 (1927), Congress has the power to inquire into
the administration of the Department of Justice--whether its functions
are being properly discharged or neglected or misdirected, and
particularly whether the Attorney General and his assistants were
performing or neglecting their duties. Even Montesquieu, the architect
of separation of powers, stated that ``The legislature should have the
means of examining in what manner its laws have been executed by public
officials.'' In this case, whether Mr. Estrada was using his position
as an Assistant Solicitor General to advance his personal political
opinions or to defend faithfully the laws passed by Congress has been
called into question.
In sum, there is ample historical precedent for the request made by
the Senate Judiciary Committee. This Administration's refusal to
cooperate obstructs Senators from fulfilling their role of giving
meaningful advice regarding lifetime appointments and to give or
withhold consent. The advice and consent responsibility that the
Constitution entrusts to the Senate is demeaned if the Administration
refuses to disclose information reasonably related to a nominee's
fitness or integrity.
Public confidence in the fairness of the judiciary is eroded when the
Administration hides pertinent information about a nominee sought by
the Senate Judiciary Committee in seeking to fulfill its role related
to the appointment power that the Constitution confers jointly on the
Senate and the President. The advice and consent clause of the
Constitution is part of the Constitution's checks and balances in the
lifetime appointment of individuals to a co-equal third branch of the
federal government, unaccountable to the normal democratic process. The
public's representatives in the Senate should have an opportunity to
examine the writings of Mr. Estrada in advance of entrusting him with a
judicial role for life.
The influence of the courts over the lives of Americans demands that
the Senate exercise its checking responsibility carefully and only
after reviewing all relevant information.
I think it has to be admitted beyond dispute that, as the Justice
Department acknowledged back then, ``the work product of attorneys in
connection with government litigation or confidential legal advice''
was provided to the Senate in connection with past nominations. I hope
the administration and their supporters here in the Senate will finally
quit denying the precedent for the request and provide us with Mr.
Estrada's memoranda. Letters from the Justice Department itself finally
and conclusively establish the precedent for our request.
I ask unanimous consent that the letter, dated May 10, 1988, from
Acting Assistant Attorney General Thomas Boyd be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, May 10, 1988.
Hon. Joseph R. Biden, Jr.,
Chairman, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
Dear Chairman Biden: This letter requests that the
Committee return to the Justice Department all copies of
documents produced by the Department in response to Committee
requests for records relating to the nomination of Robert
Bork to the Supreme Court. As Assistant Attorney General John
Bolton noted in an August 24, 1987, letter to you, many of
the documents provided the Committee, ``reflect or disclose
purely internal deliberations within the Executive Branch,
the work product of attorneys in connection with government
litigation or confidential legal advice received from or
provided to client agencies within the Executive Branch.'' We
provided these privileged documents to the Committee in order
to respond fully to the Committee's request and to expedite
the confirmation process.
Although the Committee's need for these documents has
ceased, their privileged nature remains. As we emphasized in
our August 24, 1987, letter, production of these documents to
the Committee did not constitute a general waiver of claims
of privilege. We therefore request that the Committee return
all copies of all documents provided by the Department to the
Committee, except documents that are clearly a matter of
public record (e.g., briefs and judicial opinions) or that
were specifically made a part of the record of the hearings.
Please contact me if you have any questions. Thank you for
your cooperation.
Sincerely,
Thomas M. Boyd,
Acting Assistant Attorney General.
Mr. LEAHY. It is interesting to note that after I wrote the Attorney
General and Mr. Estrada in May 2002, when I requested Mr. Estrada's
writings, the administration didn't respond immediately. If they really
believed in their own precedent, they would have come back and said:
Look, we have a precedent against it. I think they realized there
really was no such precedent, and they were going to try to make one
up. They took weeks to respond. They could have responded in a day
because the precedent was so clear. Or if they simply wanted to say,
well, maybe all other Presidents did it that way, we are not going to
do it that way, they could have done that in just a matter of days. But
instead, it makes you wonder, did they go back and read those memoranda
and say: Whoops, we don't want these to go before the Senate, they are
too revealing?
Whatever it is, Mr. Estrada himself says: As far as I am concerned,
you can see them, and you can ask me questions about them.
The irony is, in all likelihood we would not be here today, having
this long debate on the Estrada nomination, if he had simply done that.
If the administration simply said: Look, Miguel Estrada is willing to
have his memoranda before the Senate Judiciary Committee and then to
answer questions about what he meant, we would not be here; we would
not be in the circumstance where he is asked, over the last 40 or 50
years: Is there anything that you disagreed with that the Supreme Court
said? During that time, the Supreme Court has overruled itself. No,
nothing.
So we really have no idea what he thinks. They simply said: Look, we
nominated somebody. We were not willing to allow the nominations to go
forward when President Clinton nominated people here. We blocked them
for year after year after year, but take ours on faith.
Again, to the folks who made up a slogan I kind of liked, ``Trust,
but verify,'' we will trust but verify. As I said, we would not even be
here today, we would not be having this debate today, if this had been
done.
The longstanding policy of the Justice Department until now, the
policy of prior administrations, including
[[Page S2259]]
Reagan and the first Bush administration, has been a practice of
accommodation with the Senate in providing access to materials
requested in connection with nominations. But this administration wants
to deny the truth and longstanding practices. You would think they
believe they have a blank slate and a blank check notwithstanding
tradition, history, and precedent or the shared powers explicitly
provided by our Nation's Constitution.
This goes beyond hubris. This goes to a sense of entitlement. It is a
``l'etat, c'est moi'' attitude on the part of the administration. It is
saying: If we say it, it happens. If we want it, it is OK. It is almost
like the little kid on the playground who says: I want this one, I want
this one, I want this one, and I don't care what the playground rules
are.
Well, this is a lot more than a playground. This is the U.S. Senate,
a place I love and revere and a place steeped in constitutional
history, steeped in constitutional prerogatives; but even more so, one
where we are called upon day after day to protect the Constitution of
the United States. I see a pattern of hostility by this administration
to requests for information by Congress, even though Congress is
actively pursuing the powers granted to it by the Constitution,
regarding not only nominees but important oversight matters.
Yesterday, I joined with the distinguished Democratic leader in a
letter to the President. We set forth the background of the
stonewalling of this administration that has occurred with respect to
this nomination. We urged them to take action to help resolve the
impasse. I thank the Democratic leader for taking this action seeking
accommodation between the two branches of our Government. I have been
seeking such accommodation for the last 2 years with respect to
judicial nominations. I hope we can be more successful.
I hope that now people will step back and say: Look, let's put this
on a more even keel. Let's have real hearings, not assembly line type
hearings. Let's carry out our constitutional responsibilities. Let's go
forward. That is the way I thought it should be when I came to the
Senate 29 years ago. That is the way I think it should be now. I think
that is the way it could be. It is the way it was with both Republican
and Democratic administrations.
I was not here at the time of the Nixon administration. I came
shortly thereafter. I don't know if this kind of stonewalling is
precedent or not. In my experience, I would not know that. But I know
it was not during the administrations of President Ford, President
Carter, President Reagan, the first President Bush, or President
Clinton.
I ask unanimous consent that a copy of the letter Senator Daschle and
I sent to the President on this matter, pointing out that the precedent
for what we have asked for was shown in the nominations of Robert Bork,
William Bradford Reynolds, Benjamin Civiletti, Stephen Trott, and
William Rehnquist, be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record as follows:
U.S. Senate,
Washington, DC, February 11, 2003.
The President,
The White House,
Washington, DC.
Dear Mr. President: We are writing in reference to your
nomination of Miguel Estrada to the U.S. Court of Appeals for
the District of Columbia Circuit. Pursuant to the
Constitution, the Senate is to act as a co-equal participant
in the confirmation of judges to the Federal bench. Unlike
nominations made by a President for Executive Branch
appointments, judicial nominees are reviewed by the Senate
for appointment to lifetime positions in the Judicial Branch.
The Senate has often requested and received supplemental
documents when it is considering controversial nominations or
when evaluating a candidate with a limited public record. The
Chairman of the Senate Judiciary Committee wrote to your
Administration on May 15, 2002 to request such supplemental
documents to assist in Senate consideration of the Estrada
nomination. In particular, the request was made for appeal
recommendations, certiorari recommendations, and amicus
recommendations that Mr. Estrada worked on while at the
Department of Justice.
Prior Administrations have accommodated similar Senate
requests for such documents. Such documents were provided
during Senate consideration of the nominations of Robert H.
Bork, William Bradford Reynolds, Benjamin Civiletti, Stephen
Trott, and William H. Rehnquist.
Your Administration has refused to accommodate the Senate's
request for documents in connection with the Estrada
nomination. That refusal was a matter of inquiry at the
confirmation hearing held on this nomination on September 26,
2002. Following the hearing, Senator Schumer wrote to the
Attorney General on January 23, 2003, to follow up on the
request.
In addition to requests for documents, Senators frequently
question judicial nominees during their confirmation hearings
to determine their judicial philosophy, views and
temperament. For example, then-Senator John Ashcroft asked
nominees: ``Which judge has served as a model for the way you
would conduct yourself as a judge and why?'' Mr. Estrada
refused to answer a similar question.
During consideration of President Clinton's judicial
nominees, Republican Senators asked repeated questions
regarding nominees' judicial philosophy, views on legal
matters, and approaches to interpreting the Constitution.
They insisted on and received answers. During his
consideration before the Senate Judiciary Committee, Mr.
Estrada failed to answer these kinds of questions. These
questions have not only been routinely asked by the Senate,
they have been routinely answered by other nominees--
including other nominees from your Administration.
For the Senate to make an informed decision about Mr.
Estrada's nomination, it is essential that we receive the
information requested and answers to these basic legal
questions. Specifically we ask:
1. that you instruct the Department of Justice to
accommodate the requests for documents immediately so that
the hearing process can be completed and the Senate can have
a more complete record on which to consider this nomination;
and
2. that Mr. Estrada answer the questions that he refused to
answer during his Judiciary Committee hearing to allow for a
credible review of his judicial philosophy and legal views.
We would appreciate your personal attention to this matter.
Sincerely,
Tom Daschle.
Patrick Leahy.
Mr. LEAHY. Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Coleman). The Senator from Utah.
Mr. HATCH. Mr. President, I have been listening to this day after day
after day. It is clear this is a game. It is a bad game. If they don't
like the answers Mr. Estrada has given, vote against him. That is the
remedy here. Don't filibuster. Don't explode this body into always
having filibusters on any judge who may be controversial on one side or
the other. Vote against him. Talk against him, like we have had plenty
of. Then you have an absolute right to vote against him if you want to.
Now, let me go back through some of the things we were talking about.
On May 15, 2002, Senator Leahy sent the following letter to Attorney
General Ashcroft:
In connection with the nomination of Miguel Estrada to the
United States Court of Appeals for the D.C. Circuit, I write
to request that the Department of Justice send to the
Judiciary Committee appeal recommendations, certiorari
recommendations, and amicus recommendations Mr. Estrada
worked on while at the Department of Justice. This should
assist the Committee in considering this nomination.
On June 5, in a letter from the Department of Justice, they answered
the then-Chairman Leahy's letter:
Dear Mr. Chairman:
This is in response to your letter dated May 15, 2002,
requesting appeal recommendations, certiorari
recommendations, and amicus recommendations that Miguel
Estrada worked on when he was employed at the Department of
Justice.
The categories of documents you have requested are among
the most highly privileged and deliberative documents
generated within the Department of Justice. The Solicitor
General must have the benefit of candid and confidential
advice in order to discharge his critical responsibility of
deciding what appeals the Government will take and what
positions the Government will adopt in pending litigation.
Attorneys like Mr. Estrada who serve as Assistants to the
Solicitor General are asked to render candid, unbiased, and
professional advice about the merits of potential appeals.
They do so by preparing exactly the kinds of recommendation
memoranda you have requested. These documents review the
substantive legal issues in a case, the broader
jurisprudential implications of the case, policy
considerations, the strength of the factual record, and the
overall likelihood of success on appeal.
If highly privileged and deliberative documents of this
kind are not shielded from disclosure, the Department will
face the grave danger that Assistants to the Solicitor
General, and others in comparable positions, will be chilled
in the future from providing the candid and independent
analysis that is essential to high-level decisionmaking. As
the unanimous Supreme Court recognized: ``Human experience
teaches that those who
[[Page S2260]]
expect public dissemination of their remarks may well temper
candor with a concern for appearances and for their own
interests to the detriment of the decisionmaking process.''
United States v. Nixon, 418 U.S. 683, 705 (1974). The Court
observed that ``the importance of this confidentiality is too
plain to require further discussion.'' Simply put, the
Department cannot function properly if our attorneys write
these kinds of documents with one eye focused on the effect
that their words, if made public, might have on their
qualification for future office.
For these reasons, the Department has a longstanding
policy--which has endured across administrations of both
parties--of declining to release publicly or make available
to Congress the kinds of documents you have requested.
We trust that you will appreciate the important
institutional interests that lead us to decline your request.
In our judgment, the Committee has had ample time and
alternative means for obtaining assessments of how Mr.
Estrada's performance as an Assistant to the Solicitor
General bears on the merits of his nomination. In particular,
you have been free to inquire of the Solicitors General under
whom Mr. Estrada served their views as to his qualifications
for the position to which he has been nominated.
On January 25, 2002, you promised a Committee hearing for
Mr. Estrada this year. So that the Committee can meet our
commitment, we would request that you contact me or Judge
Gonzales as soon as possible to discuss this matter if you
have any questions or concerns.
That is the letter from the Justice Department in response to the
letter Senator Leahy sent on May 15. Apparently, at the hearing this
issue was raised again, and the Department of Justice responded to
Chairman Leahy again on October 8, 2002:
Dear Mr. Chairman:
During the hearing on September 26, 2002, on the nomination
of Miguel A. Estrada to the U.S. Court of Appeals for the
District of Columbia Circuit, you and Senator Schumer
restated your request that the Department of Justice disclose
certain confidential and privileged appeal, certiorari, and
amicus memoranda that Mr. Estrada authored when he was a
career lawyer in the Office of the Solicitor General.
As we indicated in our letter of June 5, 2002, we must
respectfully decline your request. The relevant historical,
policy, and legal considerations implicated by your request
demonstrate that disclosure of these memoranda from the
Office of the Solicitor General would undermine the integrity
of the decisionmaking process in that Office.
The Committee's request threatens the proper functioning of
the Office of the Solicitor General. Indeed, all seven living
former Solicitors General--from Archibald Cox to Seth P.
Waxman--have written to the Committee and explained that the
Committee's broad and unprecedented request would have a
debilitating effect on the ability of the United States to
represent itself in litigation. Their letter explained that,
as Solicitors General, their ``decisionmaking process
required the unbridled, open exchange of ideas--an exchange
that simply cannot take place if attorneys have reason to
fear that their private recommendations are not private at
all, but vulnerable to public disclosure.''
That letter is quite detailed, Mr. President. It goes on to make this
case as persuasively as it can, and it gives a number of charts that
make the case as well, all to no avail, apparently, because our
colleagues think this is a good issue to stop and stymie this Hispanic
nominee.
Now, that was October 8. Not until after we noticed the markup for
Mr. Estrada on January 23, 2003, did Senator Schumer write to the
Honorable John Ashcroft at the Attorney General's Office, again
requesting these matters. And then the Department of Justice responded
immediately. We received it on January 23. Jamie E. Brown, Acting
Assistant Attorney General, explained that they cannot do this. I have
been informed that never have they given up appeal recommendations,
amicus recommendations, and certiorari recommendations.
I ask unanimous consent that these letters be printed in the Record
in that order.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, June 5, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This responds to your letter dated May
15, 2002, requesting appeal recommendations, certiorari
recommendations, and amicus recommendations that Miguel
Estrada worked on when he was employed at the Department of
Justice.
The categories of documents that you have requested are
among the most highly privileged and deliberative documents
generated within the Department of Justice. The Solicitor
General must have the benefit of candid and confidential
advice in order to discharge his critical responsibility of
deciding what appeals the Government will take and what
positions the Government will adopt in pending litigation.
Attorneys like Mr. Estrada who serve as Assistants to the
Solicitor General are asked to render candid, unbiased, and
professional advice about the merits of potential appeals.
They do so by preparing exactly the kinds of recommendation
memoranda that you have requested. These documents review the
substantive legal issues in a case, the broader
jurisprudential implications of the case, policy
considerations, the strength of the factual record, and the
overall likelihood of success of appeal.
If highly privileged and deliberative documents of this
kind are not shielded from disclosure, the Department will
face the grave danger that Assistants to the Solicitor
General, and others in comparable positions, will be chilled
in the future from providing the candid and independent
analysis that is essential to high-level decisionmaking. As
the unanimous Supreme Court recognized: ``Human experience
teaches that those who expect public dissemination of their
remarks may well temper candor with a concern for appearances
and for their own interests to the detriment of the
decisionmaking process.'' United States v. Nixon, 418 U.S.
683, 705 (1974). The Court observed that ``the importance of
this confidentiality is too plain to require further
discussion.'' Id. Simply put, the Department cannot function
properly if our attorneys write these kinds of documents with
one eye focused on the effect that their words, if made
public, might have on their qualification for future office.
For these reasons, the Department has a longstanding
policy--which has endured across Administrations of both
parties--of declining to release publicly or make available
to Congress the kinds of documents you have requested.
We trust that you will appreciate the important
institutional interests that lead us to decline your request.
In our judgment, the Committee has had ample time and
alternative means for obtaining assessments of how Mr.
Estrada's performance as an Assistant to the Solicitor
General bears on the merits of his nomination. In particular,
you have been free to inquire the Solicitors General under
whom Mr. Estrada served their views as to his qualifications
for the position to which he has been nominated.
On January 25, 2002, you promised a Committee hearing for
Mr. Estrada this year. So that the Committee can meet your
commitment, we would request that you contact me or Judge
Gonzales, as soon as possible to discuss this matter if you
have any questions or concerns.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.
____
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, October 8, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: During the hearing on September 26,
2002, on the nomination of Miguel A. Estrada to the United
States Court of Appeals for the District of Columbia Circuit,
you and Senator Schumer restated your request that the
Department of Justice disclose certain confidential and
privileged appeal, certiorari, and amicus memoranda that Mr.
Estrada authored when he was a career lawyer in the Office of
the Solicitor General.
As we indicated in our letter of June 5, 2002, we must
respectfully decline your request. The relevant historical,
policy, and legal considerations implicated by your request
demonstrate that disclosure of these memoranda from the
Office of the Solicitor General would undermine the integrity
of the decisionmaking process in that Office.
The Committee's request threatens the proper functioning of
the Office of the Solicitor General. Indeed, all seven living
former Solicitors General--from Archibald Cox to Seth P.
Waxman--have written to the Committee and explained that the
Committee's broad and unprecedented request would have a
debilitating effect on the ability of the United States to
represent itself in litigation. Their letter explained that,
as Solicitors General, their ``decisionmaking process
required the unbridled, open exchange of ideas--an exchange
that simply cannot take place if attorneys have reason to
fear that their private recommendations are not private at
all, but vulnerable to public disclosure.'' Thus, ``[a]ny
attempt to intrude into the Office's highly privileged
deliberations would come at the cost of the Solicitor
General's ability to defend vigorously the United States'
litigation interests--a cost that also would be borne by
Congress itself.''
Longstanding historical Senate practice reinforces the
position of the former Solicitors General that confidential,
deliberative documents from the Office of Solicitor General
have been, and should remain, confidential during
confirmation hearings. As the attached charts demonstrate,
since the beginning of the Carter Administration in 1977, the
Senate has approved 67 United States Court of Appeals
nominees who previously had worked in the Department of
Justice. Those 67 nominees--of whom 38 had no prior judicial
experience--include eight former lawyers with the Office of
the Solicitor General. Our review of each of these 67
nominees' hearing records establishes that in none of
[[Page S2261]]
these cases did the Department of Justice produce internal
deliberative materials created by the nominee while a
Department lawyer. In fact, we could find no nominee for whom
the Senate Judiciary Committee even requested that the
Department produce such materials. The Committee's request
with respect to Mr. Estrada therefore is unprecedented.
Of particular relevance are the appellate-court nominees
who previously had been Assistants to the Solicitor General
or Deputy Solicitors General, and had not served as judges as
the time of their nomination--the same position Mr. Estrada
occupies now. The nominees, nominated by Presidents of both
political parties and confirmed by Senates controlled by both
political parties, are:
Samuel A. Alito Jr. (Assistant to the Solicitor General,
1981-85; confirmed to the Third Circuit, 1990);
Danny J. Boggs (Assistant to the Solicitor General, 1973-
75; confirmed to the Sixth Circuit, 1986);
William C. Bryson (Assistant to the Solicitor General,
1978-79; Deputy Solicitor General, 1986-94; confirmed to the
Federal Circuit, 1994);
Frank H. Easterbrook (Assistant to the Solicitor General,
1974-77; Deputy Solicitor General, 1978-79; confirmed to the
Seventh Circuit, 1985);
Daniel M. Friedman (Assistant to the Solicitor General,
1959-68; Deputy Solicitor General, 1968-78; confirmed to the
appellate division of the Court of Claims (later the Federal
Circuit), 1982);
Richard A. Posner (Assistant to the Solicitor General,
1965-67; confirmed to the Seventh Circuit, 1981); and
A. Raymond Randolph (Deputy Solicitor General, 1975-77;
confirmed to the D.C. Circuit, 1990).
In none of these cases did the Department of Justice
provide to the Committee the nominees' appeal, certiorari, or
amicus recommendations. And in none of these cases did the
Committee request that the Department do so.
The policy considerations implicated by the Committee's
request underscore the strength of the Department's position
and demonstrate that previous Senate Judiciary Committees
have recognized the essential, long-term interest of the
United States in protecting the integrity of such memoranda.
The need to ensure the integrity of the process by which the
Solicitor General makes litigation decisions for the United
States is extraordinarily important. As the former Solicitors
General explained, the interest in receiving honest, candid
assessments of possible litigation positions, agency
interests, and Supreme Court opinions would be severely
compromised by disclosure in this context. It is important
to add, furthermore, that memoranda written by Assistants
to the Solicitor General present legal arguments
supporting the litigation position of the United States,
not their personal views. These memoranda seek to
determine the legal arguments that are appropriate in
government briefs, not the legal or policy preferences of
their author.
Furthermore, the committee's need to assess a nominee's
performance, intellect, and integrity can be accommodated in
ways other than introducing into the deliberative process of
the Office of the Solicitor General. For example, the
Committee can review the nominee's written briefs and oral
arguments, consider the opinions of others who served in the
Office at the same time, and examine the nominee's written
performance reviews. In Mr. Estrada's case, for example,
there is a substantial body of information about his tenure
in the Office of the solicitor General. Former Solicitor
General Seth Waxman, who supervised Mr. Estrada, has written
to the Committee in support of his nomination. Mr. Waxman
wrote: ``During the time Mr. Estrada and I worked together,
he was a model of professionalism and competence. In no way
did I ever discern that the recommendations Mr. Estrada made
or the analyses he propounded were colored in any way by his
personal views--or indeed that they reflected anything other
than the long-term interests of the United States.''
Moreover, 14 of Mr. Estrada's former colleagues in the
Office of the Solicitor General have written the Committee to
emphasize his ability, collegiality, and integrity: ``We also
know Miguel to be a delightful and charming colleague,
someone who can engage in open, honest, and respectful
discussion of legal issues with others, regardless of their
ideological perspectives. Based on our experience as his
colleagues in the Solicitor General's office, we are
confident that he possesses the temperament, character, and
qualities of fairness and respect necessary to be an
exemplary judge. In combination, Miguel's exceptional legal
ability and talent, his character and integrity, and his deep
and varied experience as a public servant and in private
practice make him an excellent candidate for service on the
federal bench.''
Finally, Mr. Estrada has sent the Judiciary Committee
copies of his performance evaluations from his tenure in the
Office. These documents indicate that Mr. Estrada's
supervisors gave him ratings of ``outstanding''--the highest
possible score--in every category for every evaluation
period.
It bears emphasis that the long-standing historical
practice, policy considerations and views of the former
Solicitors General are fully supported by applicable legal
principles. At the outset, it is important to note that the
memoranda sought by the Committee are indisputably within the
scope of the deliberative process, attorney-client, and
attorney working-product privileges. The Supreme Court has
recognized ``the valid need for protection of communications
between high Government officials and those who advise and
assist them in the performance of their manifold duties.''
Houchins v. KQED, 438 U.S. 1, 35 n.27 (1978). Indeed, the
Court has explained that ``the importance of this
confidentiality is too plain to require further discussion.
Human experience teaches that those who expect public
dissemination of their remarks may well temper candor with a
concern for appearances and for their own interests to the
detriment of the decisionmaking process.'' Id. (internal
quotation omitted). The deliberative process privileges's
ultimate purpose is to prevent injury to the quality of
agency decisions by allowing government officials freedom to
debate alternative approaches in private. NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 151 (1975). Based on these
principles, courts have long recognized the Executive
Branch's authority to protect the integrity of documents and
other materials which would reveal advisory opinions,
recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated. See In re Sealed Case, 121 F.3d 729, 737 (D.C.
Cir. 1997).
As a matter of law and tradition, these privileges can be
overcome only when Congress establishes a ``demonstrably
critical'' need for the requested information. Senate Select
Committee on Presidential Campaign Activities v. Nixon, 498
F.2d 725, 731 (D.C. Cir. 1974) (en banc). It is insufficient
for the requested material merely to ``have some arguable
relevance'' to appropriate Congressional function. Id. at
733. In assessing whether Congress' possesses a
``demonstrably critical'' need for the material in question,
one crucial consideration is whether Congress can obtain
reasonably equivalent information from alternative sources
that would satisfy its legitimate needs. In this instance, we
again note that the Committee has full access to Mr.
Estrada's briefs and oral arguments, to the information
provided by Mr. Waxman, to the letter from former colleagues
in the Solicitor General's office, and to his performance
reviews. The Committee also is free to contact any of Mr.
Estrada's former supervisors and colleagues in the Office of
the Solicitor General to seek further information about Mr.
Estrada's temperament, fairness, analytical skills and
abilities or any other matters the Committee appropriately
deems relevant to its inquiry. Because the Committee has
adequate sources of information about Mr. Estrada, among
other reasons, it cannot establish the ``demonstrably
critical'' need for the deliberative materials in question.
None of the seven examples cited during Mr. Estrada's
hearing as precedent for the Committee's request--the
nominations of Judge Frank Easterbrook to the Seventh
Circuit, Judge Robert Bork and Chief Justice William
Rehnquist to the Supreme Court, Benjamin Civiletti to be
Attorney General and Deputy Attorney General, William
Bradford Reynolds to be Associate Attorney General, Judge
Stephen Trott to the Ninth Circuit, and Jeffrey Holmstead to
be Assistant Administrator at the Environmental Protection
Agency--supports the Committee's request in this matter.
Of the seven cited nominees, the hearings of only two--
Judge Bork and Judge Easterbrook--involved documents from
their service in the Office of Solicitor General. Senator
Schumer placed into Mr. Estrada's hearing record a single,
two-page amicus recommendation memorandum that Judge
Easterbrook authored as an Assistant to the Solicitor
General. The official record of Judge Easterbrook's
confirmation hearing contains no references to this document,
and based on a comprehensive review of the Department's
files, we do not believe that the Department authorized its
release in connection with Judge Easterbrook's nomination.
Senator Schumer's possession of this memorandum does not
suggest that the Department waived applicable privileges and
authorized its disclosure in connection with Judge
Easterbrook's or any other nomination.
The hearing record of Judge Bork's nomination to the
Supreme Court demonstrates that the Committee received access
to a limited number of documents related to three specific
subjects of heightened interest to the Committee, two of
which were related to Judge Bork's involvement in Watergate-
related issues and triggered specific concerns by the
Committee. The vast majority of memoranda authored or
received by Judge Bork when he served as Solicitor General
were neither sought nor produced. And the limited category of
documents that were produced to the Committee did not reveal
the internal deliberative recommendations or analysis of
Assistants to the Solicitor General regarding appeal,
certiorari, or amicus recommendations in pending cases.
The remaining five nominations cited at the hearing
similarly do not justify the disclosure of deliberative
material authored by Mr. Estrada. None of the limited
documents disclosed in the hearings for those five
nominations involved deliberative memoranda from the Office
of the Solicitor General. The Committee with respect to those
five nominations requested specific documents primarily
related to allegations of misconduct or malfeasance
identified by the Committee. Moreover, as noted above, with
respect to
[[Page S2262]]
the nomination of Judge Trott, the Committee requested
documents wholly unrelated to Judge Trott's service with the
Department. Again, the vast majority of deliberative
memoranda authored or received by these nominees where never
sought or received by the Committee. In sum, the existence of
a few isolated examples where the Executive Branch on
occasion accommodated a Committee's targeted requests for
very specific information does not in any way alter the
fundamental and long-standing principle that memoranda from
Office of Solicitor General--and deliberative Department of
Justice materials more broadly--must remain protected in the
confirmation context so as to maintain the integrity of the
Executive Branch's decisionmaking process.
In conclusion, we emphasize that the Department of Justice
appreciates and profoundly respects the Judiciary Committee's
legitimate need to evaluate Mr. Estrada's qualifications for
the federal bench. We again suggest, however, that the
information currently available is more than adequate to
allow the Committee to determine whether Mr. Estrada is
qualified to be a federal judge.
Thank you for considering the Department's views on this
matter. Mr. Estrada's nomination for a position on an
important federal court of appeals has now been pending for
518 days. There is no disagreement about the fact that he is
a talented, experienced and exceptionally well-qualified
nominee with strong and widespread bipartisan support. In
fact, after an intensive investigation, the American Bar
Association found Mr. Estrada to be unanimously well-
qualified for a judgeship on the District of Columbia
Circuit. We sincerely hope that the Committee and the Senate
will approve Mr. Estrada's nomination before the close of the
107th Congress.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.
____
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, Jan. 23, 2003.
Hon. Charles E. Schumer,
U.S. Senate,
Washington, DC.
Dear Senator Schumer: I am responding to your letter dated
January 23, 2003, in which you once again requested that the
Department disclose the confidential and privileged appeal,
certiorari and amicus memoranda that Miguel Estrada authored
when he was a career lawyer in the Office of the Solicitor
General. You continue to insist that disclosure of this
sensitive material is necessary to allow you adequately to
address Mr. Estrada's nomination to the United States Court
of Appeals for the District of Columbia Circuit--a nomination
that has been pending for some 624 days. As you know, Mr.
Estrada has received a unanimous ``well qualified'' rating
from the American Bar Association, the ABA's highest rating.
We addressed fully the assertions made in your most recent
correspondence in our previous letters to you dated June 5,
2002, and October 8, 2002 (attached herewith). Our previous
explanations remain equally applicable today, and we
therefore must again respectfully decline your request. As we
have explained, the relevant historical, policy and legal
considerations implicated by your request establish that
disclosure of these memoranda from the Office of Solicitor
General would undermine the integrity of the decision making
process in that Office. Notwithstanding our previous letters,
several specific items in your letter merit discussion.
At Mr. Estrada's hearing, you asserted that the Department
disclosed memoranda written by Judge Easterbrook in
connection with his confirmation hearing. In response to that
claim, as we noted in our letter of October 8, 2002, we
comprehensively reviewed the Department's files and the
public record of Judge Easterbrook's confirmation hearing and
we found absolutely no evidence that the Department
authorized the release of these memoranda in connection with
Judge Easterbrook's nomination. Your most recent letter now
asserts that the Easterbrook documents ``apparently'' were
provided to the Committee in connection with Judge Bork's
nomination. However, the public record of Judge Bork's
confirmation hearings contains no mention of the Easterbrook
memoranda you reference. As we explained previously, your
mere possession of these documents does not suggest that the
Department waived applicable privileges nor authorized their
disclosure in connection with either nomination.
You also suggest in your letter that the Administration's
decision to disclose legal memoranda from the White House
Counsel's Office in connection with the nomination of Jeffrey
Holmstead to serve as Assistant Administrator of the
Environmental Protection Agency serves as precedent for
disclosing Mr. Estrada's highly privileged work product. As
you may be aware, the White House initially declined to
provide all of Mr. Holmstead's files as requested by the
Senate Environment and Public Works Committee, on the basis
of the deliberative process, attorney-client and work product
privileges. In response, the Environment Committee, based on
its particularized concerns and allegation of misconduct
regarding one specific subject, requested a small subset of
documents related only to that matter. Because of the
specificity of the Environment Committee's concerns, the
White House permitted the Committee to review that limited
subset of materials, which answered the allegation in
question. This example, if anything, further demonstrates the
overbreadth and impropriety of the current request--a request
that some have characterized as a fishing expedition
requesting all documents authored by Mr. Estrada about all
subjects during his entire tenure in the Office.
Finally, we respectfully submit that, despite your view to
the contrary, your request threatens the proper functioning
of the Office of the Solicitor General. All seven living
former Solicitors General, including Archibald Cox, Drew
Days, Walter Dellinger and Seth Waxman, have written to the
Senate Judiciary Committee and explained the debilitating
impact your request would have on the ability of the Office
to represent the United States in litigation. The letter--
authored by distinguished lawyers of both parties--noted that
their ``decisionmaking process required the unbridled, open
exchange of ideas--an exchange that simply cannot take place
if attorneys have reason to fear that their private
recommendations are not private at all, but vulnerable to
public disclosure.'' While we respect your right to disagree
with these seven former Solicitors General, we must defer to
their considered judgments about the impact of disclosure
based on their collective experience of decades heading the
Office. Thus, we respectfully adhere to our previous decision
to protect these highly privileged documents from disclosure.
Thank you for considering the Department's views on this
matter. As we have noted previously, the public record is
more than adequate for the Committee to evaluate Mr.
Estrada's qualifications to be a Circuit Judge on the D.C.
Circuit. We look forward to Mr. Estrada's prompt
consideration by the Committee and confirmation by the full
Senate.
Sincerely,
Jamie E. Brown,
Acting Assistant Attorney General.
Mr. HATCH. Mr. President, I want to make one or two other points, and
then I understand Senator Kyl is here and I hope he can be heard. I ask
unanimous consent that he be recognized after me.
Mr. REID. Objection.
The PRESIDING OFFICER. Objection is heard.
Mr. HATCH. All right. Here we are in the middle of an unprecedented
filibuster. We have heard a lot of arguments and many repeated
arguments. We have heard Mr. Estrada ``has not answered the Senators'
questions.'' Well, he has. They asked question after question at the
hearing--one that they conducted and they controlled. Any Senator who
was not satisfied, and had additional questions, had the opportunity to
send additional questions. Well, they did. Two Senators--only two of
them--sent Mr. Estrada followup questions. Senators Durbin and Kennedy
asked multiple questions. Mr. Estrada answered these, and answered them
fully.
Here is what is unfair. If they don't like the answers, as I have
said, my Democratic colleagues have a remedy; they can vote against
him. That is their right. If that is what they want to do, that is the
proper exercise of their constitutional duty. But to simply deny the
Senate a vote is unfair to the nominee, unfair to this body, unfair to
the President, and unfair to a majority of Senators who want to vote
for this man and exercise their constitutional duty under article II,
section 2. This is an abuse of the debate privileges of this body. This
is simply an abuse by the minority. It is nothing more than what some
would call the tyranny of the minority. It is the first time in the
history of this country that an appeals court nominee has been
filibustered. It is a doggone shame the first Hispanic ever nominated
to the Circuit Court of Appeals of the District of Columbia happens to
be the nominee here. This is against our constitutional duty and
against the spirit of what we are elected to do. We are supposed to
advise and consent. Consent means Senators can vote against or they can
vote for. It doesn't mean advise and filibuster. It doesn't mean advise
and obstruct.
I will say it again. The Democrats have asked their questions and
they have gotten their answers. If they don't like the answers, they
can vote against the nominee. But don't continue to obstruct. It is
simply not fair.
Mr. President, I think any fair observer who looks at the transcript
of this hearing, and looks at those questions and answers, will have to
admit he answered their questions. Admittedly, I suspect he did not
answer them the way they wanted him to. That is, they could not dig up
any dirt on him. So what are they doing now? Trying to
[[Page S2263]]
see if, through a fishing expedition, they can find some documents
where they can. That is offensive. To ask for confidential, privileged
documents from the Solicitor General's Office in spite of the warning
of seven former Solicitors General, four of whom are leading Democrat
attorneys who vociferously say you should not do that, that would be
very harmful and detrimental to the process. They have ignored those
recommendations.
Any fair observer who looks at these questions and answers will have
to say he answered their questions, maybe not the way they wanted him
to, but he answered them as a deliberative person would, and as most
other nominees have answered the same type of questions. He answered
them in a very intelligent, worthwhile fashion.
I yield the floor.
The PRESIDING OFFICER (Mrs. Dole). The Senator from Arizona.
Mr. KYL. I thank the Chair.
Madam President, I wish to expand on what the Senator from Utah was
just talking about. To put this in context, I remind my colleagues we
are talking about the nomination of a very distinguished lawyer, Miguel
Estrada, by President Bush to serve on the DC Circuit Court of Appeals.
There have been two primary objections recently raised by Members of
the other side of the aisle to this nomination. The first includes a
recitation of a long list of nominees of previous Presidents--I presume
primarily President Clinton--who allegedly were not considered by the
Republicans. I do not have the information. It has not been given to
me, so I cannot vouch for its authenticity. But if that is the basis
for denying a vote to Mr. Estrada, then it is nothing more than
retribution or spite.
I cannot believe that is the motivation of any of my colleagues on
the other side. I refuse to believe that. So of what relevance is it
that in previous Congresses some other President's nominee was or was
not given a vote? What is the relevance to this individual, Miguel
Estrada, who, by everyone's admission, is an extraordinarily well
qualified lawyer? It has no relevance at all.
The other line of thought is that he has not answered questions, and
that is what Senator Hatch was just talking about. He answered every
question that was asked of him. He was in a hearing from 10:06 a.m.
until 5:25 p.m. There were other candidates on the panel with him, but
hardly any questions were asked of them. Almost all of the questions
were asked of Miguel Estrada. He answered them all, until there were
not any more to be asked.
Then there was the questionnaire. Senator Hatch noted the questions
that have been asked by Senators in writing, in addition to the others.
There was the questionnaire from the Judiciary Committee with 25 pages
of answers. They are all right here. I will not suggest they be printed
in the Record because I presume they already have. Every question was
answered fully and satisfactorily, as far as I am concerned.
I think one of them is especially interesting. It used to be there
was not a litmus test for judges. When President Reagan was nominating
judges, some people on the other side thought President Reagan was
asking these nominees their opinions on how they might rule on a case.
They said that was a litmus test and that would be wrong. They were
wrong. He never had such a litmus test. But the committee has had a
question in its file ever since--and I think even before then--that has
been asked of every single nominee, and this is one of the questions to
which Miguel Estrada responded.
Let me read the question and his answer. The question is: Has anyone
involved in the process of selecting you as a judicial nominee
discussed with you any specific case, legal issue, or question in a
manner that could reasonably be interpreted as asking you how you would
rule on such case, issue, or question? If so, please explain fully.
Answer: No.
Mr. President, that is just about all he got in the hearing by the
members of the other side of the aisle in the Judiciary Committee on
how he would rule and what he felt about certain specific cases, legal
issues, or questions. Specific cases were mentioned by name. Specific
hypothetical questions were asked of him. Apparently, it is not OK for
the President to find out how a candidate might feel about an issue,
but Senators, by golly, we have the right and, in fact, it is so
important to us, or to some of the body, that we are going to deny a
nominee a vote even; we are going to deny the other Senators to have
the opportunity to vote yes or no if we did not like the way he
answered one of those questions.
Senator Hatch is right; it is not that he did not answer the
questions. It is that some people did not like his answers to the
questions. If so, vote no, but do not deny everyone else the
opportunity to vote, and that is what is going on here. It is called a
filibuster.
Our friends on the Democratic side have acknowledged that is exactly
what they are engaged in: a filibuster of a judge. That is
fundamentally wrong. It destroys the comity between the three branches
of Government. It seeks to modify the majority vote confirmation
process to an extra-majority requirement. It is going to poison the
consideration of nominees of every President from here on, Democrat or
Republican. This is one of those issues which, when once let out, you
can never bring back; the horse will have been out of the barn.
Never in the history of the Senate has a partisan filibuster
succeeded in preventing the confirmation of a judge. That is what is at
stake here. Of course, also at stake is the confirmation of a very
decent, very fine, very forthright, and highly qualified candidate for
judge.
There was one other criticism I noticed early on, but I have not
heard it recently, and that is he had no prior judicial experience.
Senator Hatch pointed out the literally scores of Federal judges who
became a judge when they were a lawyer. Not everybody can be born a
judge, you see. First, you have to be a lawyer, and then somebody has
to appoint you judge. So not everybody has experience as a judge when
they are asked to be a judge.
Current members of the U.S. Supreme Court, in fact, five out of the
nine members of the DC Circuit Court of Appeals, the court to which Mr.
Estrada is being nominated, were not judges before they were nominated.
Mr. Estrada is a Hispanic lawyer. Are we going to create a new bar
for minority lawyers? You have to be a judge before you can be elevated
to the next level of the court? Not very many minority lawyers have
been appointed or nominated as judges. President Bush is nominating a
lot of them, that is true, but they are not judges now; they are
lawyers. Are we going to create a bar that says if you are not already
a judge, you cannot become a judge in the next level of the court?
I do not want to see us setting a glass ceiling for minorities just
because not as many of them have gotten to be judges. I think that is a
very pernicious argument made with respect to Miguel Estrada. Five of
the nine members of the court were not judges before they were
nominated to serve. Why does it matter with respect to Miguel Estrada?
I did not hear arguments made from the other side with respect to those
nominees, so why with regard to Miguel Estrada? It is not right.
I quoted yesterday, when the Senator from Vermont was on the floor,
his own words, so I feel it appropriate to mention them again. He
himself, the former chairman, now ranking member, of the Judiciary
Committee said what many of the other leaders on the other side of the
aisle have said: That filibustering a judge is wrong. And the Senator
from Vermont said he would oppose--strongly oppose, I believe were his
words--any filibuster of a judge regardless of whether he supported the
nominee. You can always vote yes or no, but you should at least vote to
invoke cloture.
Madam President, I will give you an example. Twice I voted to invoke
cloture so we could come to a vote on two of President Clinton's
nominees. I supported one; I opposed the other. That is our right. I
have good reasons for opposing the judge I opposed, but I believed my
colleagues needed or had the right to vote on both of the candidates,
and so I voted for cloture in both cases. That is the same point the
Senator from Vermont made earlier: That we should vote for cloture and
have an up-or-down vote.
I will later bring to the floor the literally scores of statements by
my colleagues on the other side of the aisle
[[Page S2264]]
over the years who have made the point over and over that filibustering
a judge is wrong, that they would oppose it regardless of how they felt
about the nominee, and that they would vote to invoke cloture.
What has changed with Miguel Estrada? Why is he different? Why all of
a sudden has their strongly held opinion, which was expressed before,
changed? It is not that my colleagues are not consistent. Obviously,
they want to be consistent. So it must be something else. It must be
that in this nominee they see something very bad. They must see a
reason why we should not even be allowed to vote on the nominee. It is
so bad with Miguel Estrada that they are not willing to put it to a
vote. They have to prevent the vote from occurring.
What is it about Miguel Estrada that is so dangerous or so bad? If my
colleagues say it is not about Miguel Estrada, it is the process, he
would not answer the questions, Senator Hatch and I have already
responded to that. He answered every question he was asked. Any more
questions?
As Senator Hatch said, the problem is they do not necessarily like
all the answers. That is their right. We do not all agree with each
other. That is why we have votes and the majority wins.
I get back to the question, Why is it different with Miguel Estrada?
There were 30 questions asked in the hearing that was held, and he
answered them all. Maybe they did not like the answers. So vote no. But
why would the other side deny the right of the Senators to cast a vote
on the nominee?
At the end of the day, the American people are going to look at this
and wonder what is going on, what is this all about. Why will a
minority of the Senate not agree to let the others vote? Is it because
the candidate is not well qualified? No. This candidate had the highest
rating that the American Bar Association can give a candidate.
Is it that he does not have any experience? No. He is one of the most
experienced lawyers in the country. In fact, he has argued at least 15
cases to the U.S. Supreme Court. I practiced law for 20 years and only
went to the Supreme Court three times, which is pretty good. Most
lawyers never get there. Fifteen times he has argued cases.
He answered every question that was asked of him. He has been
strongly recommended by members of the bench and bar all over the
country, Democrats and Republicans, including members of the former
Democratic administration.
There has been a question raised about when he was an Assistant
Solicitor General and was providing advice to his seniors, should his
confidential memos be released to the public? For the first time, our
colleagues on the other side say, oh, yes, we want to see all of that.
Now, I would kind of like to see the staff memos going to the
Senators on the other side. Would that be fair? Would that be right?
No, it really would not. Much as I would like to see what kind of
advice they are getting, that would not be right.
What about someday when very highly qualified staff of some of our
colleagues on the other side of the aisle are going to be nominated for
the court? That happens actually fairly frequently. Staff of the
Judiciary Committee have been nominated to various courts. In fact, one
of them serves no less than on the U.S. Supreme Court. How about asking
for the memos that he sent to his boss advising his boss on various
issues prior to his confirmation? What would we get there? I think we
would get pushed back by Members saying, wait a minute, I was asking
for his personal advice. I was asking for his judgment. I was not
asking him for what he necessarily believed personally, and what he
told me cannot be taken as something he personally believed but rather
what he thought was the best advice for me on this particular issue.
That is why our employees are protected from having to disclose all of
the information they give us as their best judgment on different
issues, because we are not asking them necessarily what they believe in
their head or their heart. We are asking them for what the law is on
this, what their recommendation is as to what I should do on this,
knowing my views, not theirs.
So to ask a young lawyer in the Solicitor General's Office to
disclose all of the advice that he gave his bosses is nothing more than
an unprecedented fishing expedition.
I ask my colleagues on the other side of the aisle, is this the
precedent that they want to create? When they seek to have one of their
staff members nominated to a high court, do they expect to see a
request for all of the memos that this staff person gave to them
because they just might be useful in opposing the nomination? Maybe he
said something that we could pick apart somehow or another.
That is what is going on, and that is why four Democratic Solicitors
General and three Republican Solicitors General, those who are living
today, all wrote a letter unanimously saying this should not be done
and all of them would have recommended against it.
I happened to work for one of the Solicitors General who is no longer
alive. One of the things he told me over and over again was that this
is an office considered by some to be the tenth Justice on the Court.
The Solicitor General is literally almost a member of the Court in a
sense because of the objectivity and forthrightness with which he or
she represents the views of the Government before the Court.
The Court often solicits a brief from the Solicitor General saying,
we have heard from both sides in this case but we would like to hear
from the lawyer for the Government, the Solicitor General, who is
supposed to be a very honest, forthright, and objective person. That is
the office in which Miguel Estrada was working.
If we ever get to the point where the decisions made by the Solicitor
General, based upon the advice from the lawyers that work for him, do
not represent the best objective advice, do not represent the best
truth and the proper reading of the law as they can bring forth but,
rather, now must take into consideration political considerations that
arise from the fact that these memos and this advice would be disclosed
publicly, the Solicitor General is no longer going to be deemed the
``tenth Justice.''
The Government is no longer going to be solicited for its advice to
the Court on these important matters because the consideration would
be, well, what did they have to consider politically since the whole
world is going to read these memos and is going to know what the advice
was that was given. It does not work that way. It cannot. That is why
it would be wrong.
Many of my colleagues on the other side know that it would be wrong.
They know they are never going to get the memos. They know they should
not get the memoranda. But because they can ask for it knowing that it
is not going to come, they have an excuse to be able to say, gee, we do
not have all the information we need.
I do not think that is the motivation of any of my colleagues on the
other side of the aisle because I think they realize this is not
something that historically has been requested and should be requested.
So when you parse out all of the different objections to Miguel
Estrada, it all boils down to abstract process and, from some of the
outside groups anyway, retribution. It has nothing to do with his
qualifications. It seems to me that common decency and fairness would
cause each one of the 100 of us to look deep within ourselves and say
maybe we vote yes, maybe we vote no on his nomination, but we should
not deny him a vote. That is partisanship and negativity and
obstructionism that is not worthy of the Senate. So we should not do
that.
We should agree to let this nominee be voted on, cast the vote we
believe is appropriate, and then move on with the Nation's business. At
a time when we may well be on the brink of engaging in military
conflict, and the President has a great many issues on his agenda to
deal with in that regard, I think it is unseemly for the Senate to be
holding up, filibustering, one of his highly qualified nominees to the
DC Circuit Court of Appeals.
As the Senator from Nevada said earlier today, everything has been
said, it is just that everybody has not said it. Fine. Come on down and
say it so we can get on with the vote, confirm Judge Miguel Estrada,
and move on with the Nation's business.
The PRESIDING OFFICER. The Democratic whip.
[[Page S2265]]
Mr. REID. Madam President, if this were a matter of retribution, it
would have started a long time ago.
Senator Daschle came to the floor after we took the majority in the
Senate and said that as it related to judicial nominations this was not
payback time; we were not going to treat the then-minority, the
Republicans, as we were treated when we were in the minority. To show
that we were true to our word, we approved 100 nominees during the
short time we had the majority of the Senate.
I read into the Record earlier today the scores of judicial nominees
who did not receive hearings, who waited and never got a vote on their
nominations. They are out practicing law someplace. This is not
retribution.
Madam President, once in a while I try to come up with something that
has not been said on the Senate floor during the last several days. My
friend from Arizona said: Everything has been said, but not everyone
has said it. I have come up with something that has not been said, in
response to what my friend from Utah and others have said about this
ABA rating that Estrada has. The Republicans thought so much of the ABA
rating that when they had the majority, they decided to do away with
it. But now they have decided it is a good thing.
It is true, Estrada received a well-qualified rating from the
American Bar Association. I think everyone acknowledges that the ABA
should not completely supplant the Senate's role. Those on the other
side have indicated the ABA rating of Mr. Estrada should be afforded
great weight. I think it should be afforded some weight. Some have
implied it should take the ABA's word for it when it comes to Estrada
and simply limit our role in reviewing his record because he got a
well-qualified rating from the ABA.
The American Bar Association rating is a useful tool for the Senate.
But that is all it is, a tool. It is not a replacement for the Senate
exercising its own independent judgment regarding a nominee's
suitability for the second highest court in the land. There are good
reasons for that. The best reason is the Constitution, Mr. President.
I am sorry, I referred to the Presiding Officer as a ``Mister.'' I
have the greatest respect for the Senator from North Carolina, having
one of the most distinguished records of any Senator who has come to
the Senate, having served in so many different Cabinet positions that
they are difficult to name; and, in addition, the highly visible role
the Senator from North Carolina has held in different administrations.
She has been head of one of the greatest organizations in the history
of the world, the American Red Cross. I know who is presiding, and I
was just reading from my notes and apologize for referring to the
Senator as ``Mr. President.''
The best reason we do not agree with the majority is the
Constitution. The Constitution assigns the role of evaluating a nominee
to the Senate--not to the American Bar Association. In addition, if you
look at the ABA process, it is far from perfect. The ABA delegates the
review of potential nominees to one individual member of the ABA
committee for each circuit. In effect, these nominations that the
President gives us, no matter what party, go to one lawyer in the ABA,
and that lawyer makes a recommendation. The ABA delegates that review
to one individual who nominates each nominee and appoints to the ABA a
recommended rating of that nominee's qualifications.
In this instance, a man by the name of Fred Fielding was in charge of
evaluating potential nominees for the DC Circuit at the time Miguel
Estrada was under consideration by the White House. In this role, Mr.
Fielding was in charge of evaluating Mr. Estrada's qualification and
was in charge of recommending a rating to the ABA. He recommended well-
qualified. The ABA places heavy reliance upon the recommendation of
people such as Mr. Fielding and approved Fielding's recommendation
unanimously.
There have been some concerns about how this ABA process works and
how it will work in this case. In this case, Mr. Fielding, at the same
time he was evaluating DC Circuit Court nominees such as Miguel
Estrada, continued to be heavily involved in partisan politics. He was
counsel to the Republican National Committee for the Republican
National Convention of 2000 and served on the Bush-Cheney transition
team in 2000. At the same time he was serving on the ABA committee that
evaluated DC nominees, Mr. Fielding cofounded, with C. Boyden Gray,
something called the Committee for Justice.
We all know C. Boyden Gray has been a long-time, very partisan
Republican. There is nothing wrong with that. But that is a fact of
life. This organization was founded to help the White House with the
public relations effort to pack the Federal bench with extreme judges.
They also founded it to run ads to intimidate Democrats from exercising
their constitutional duty to scrutinize the President's judicial
nominees. Ads are now run to that effect, saying Senate Democrats are
really bad. The ads are paid for by the Committee for Justice, which is
this front that has been established by Fred Fielding and Boyden Gray.
Their ads label Members of this Chamber as ``liberal extremists'' and
``anti-Hispanic'' even though the Hispanic Caucus has said Miguel
Estrada should not be placed in the DC Circuit.
These ads run by this organization that is led by Fielding and Gray
are unfortunate. It is a right that Fielding and Gray have to engage in
these activities to mislead the American people. They have that right.
But it does call into question whether someone so heavily steeped in
partisan activities can objectively and impartially evaluate nominees'
qualifications to the second highest court in the land.
This man, Fred Fielding, was the person who gave Estrada the
recommendation while he was doing this. He was forming a committee he
calls Committee for Justice, with Boyden Gray, another partisan
Republican, and the purpose was to pack the bench with right-wing
conservative judges. They also raised money so that if someone
disagreed with them, they would run ads and intimidate them into
agreeing with them. It does call into question whether someone so
heavily steeped in partisan activities can objectively and impartially
evaluate the qualifications of the nominees of the second highest court
in the land.
The Senate is not privy to Mr. Estrada's ABA report, and we have no
way to evaluate how Mr. Fielding arrived at his recommendation, but I
think at the very least his partisan activities at the time he was
charged with independently evaluating Mr. Estrada create the appearance
of a conflict of interest and should embarrass the American Bar
Association.
People expect the ABA reviews to be conducted by independent,
nonpartisan individuals, not by partisans who are the President's foot
soldiers in the effort to pack the Federal courts. The circumstances of
Estrada's ABA evaluation are very serious--very serious. These
circumstances underscore the need for the Senate to independently
evaluate Mr. Estrada's record.
It would be somewhat shallow for people to say that this man,
Fielding, who evaluated this judge to be, was fair and independent. I
said the ABA should be embarrassed. What we are talking about here is
Estrada. This has made an independent review impossible. I am not
willing to delegate my constitutional duty to Mr. Fielding, the
cofounder of a group designed to attack Members of this body who do not
agree with him.
Earlier today, I had a chart here that outlined Mr. Estrada's
assistance to this body so we could come up with answers to Judiciary
Committee questions. Some people called in and said the chart was small
and they could not read it. I want to make sure they can read this
chart. It is titled ``Miguel Estrada's answers to the Judiciary
Committee's questions.'' Here are his answers.
There weren't any. Those from the other side can come here and talk
and show us visual aids about all the answers given to this committee
that fill volumes when, in fact, as Senator Durbin so well described,
his answers were evasive.
Mr. Estrada, give us the name of a Supreme Court Justice
that you would like to be.
I don't have an opinion.
Give us a case you disagree with.
I don't have an opinion.
These were his answers to the Judiciary Committee's questions.
I had some other charts here, and they said the writing was too
small.
[[Page S2266]]
Here is one about Miguel Estrada's legal memoranda. Here is the
information we have regarding Miguel Estrada's legal memoranda. The
writing this morning was too small. But here is what it says:
Miguel Estrada's legal memoranda.
Here is what we have: Nothing.
My friend from Arizona said this would be chilling; why would we want
to set a precedent like this?
It has been set in the past. We have had Chief Justice Rehnquist, for
beginners. When he came before this body and we wanted to look at a
memo, we got it. I don't have all the names here, but we know Civiletti
and Roberts and others--it has happened on other occasions. This is no
dangerous, misleading, scary precedent.
We have, by virtue of the Constitution of the United States, an
obligation to make sure that we advise and consent to the nomination of
the President. Article II, section 2, says that is our obligation, and
that is what we are doing. We have an obligation that is in the depths
of the Constitution to do just that.
If they, the majority, believe this man is as good as they say he is,
let us share in the information, let us look at his legal memoranda,
and let us also have him answer questions.
You would think we would want to know, as part of our constitutional
duties, what a person's legal philosophy is. As the Senator from
Illinois, Mr. Durbin, and I this morning indicated in an exchange, Mr.
Durbin, the distinguished Senator from Illinois, the senior Senator
from Illinois, he said to Miguel Estrada: Give us the name of a case in
the Supreme Court that you disagreed with.
As Senator Durbin and I said: You know, we have been to law school. I
will bet it is not too hard of a press to come up with a case about
which you think the U.S. Supreme Court was wrong. How about Dred Scott?
Maybe Dred Scott was wrong.
Not him. He wouldn't tell us. No.
I have no opinion on that.
Miguel Estrada's legal philosophy--that is it. And because that is
it, this blank, we are going to make a decision? No.
The majority leader is the one here who has to make a decision. He
can go on like we are today, tonight, tomorrow. In fact, I read in a
publication here that one of the Republican leaders says:
If [Democrats] want to stay through the weekend, we'll stay
through the weekend.
Boy, is that a threat that just chills me. We may have to work here
over the weekend? That would be terrible. Is that supposed to take away
our constitutional duties, because they are going to make us work? I
work whether I work here or go home.
The leader has to make a choice: Are they going to pull this
nomination or do they think enough of this man to give us his legal
memoranda and have him answer questions? Or he could do something that
is done a lot around here: File cloture. See if he can stop the debate.
As I have said before, we are in harmony over here. We believe what
we are doing is principled and right. No matter how many times the
other side says there is no problem, all they have to do is see what is
going on here. There is a problem. If they want to resolve that
problem, all the cards are in their hands and they can decide how they
want to handle it. Otherwise, if they want us to stay here, we will
stay in quorum calls or we will talk.
I have suggested to some of the Senators here if we get past the
morning hour when we have to be fairly germane to what is being talked
about, I think it would be an excellent time, as the Senator from West
Virginia did yesterday, I think we should have a little discussion
about what is going on in the world. We are very close to going to war.
That is what I am told. I think it would be very important to the
people of Nevada to have a discussion about that. I think we are going
to win the war, but are we going to win the peace in Iraq? That should
be a subject. If they want to keep us here all weekend, we could talk
about that at some length.
Mr. BYRD. Madam President, will the Senator yield?
Mr. REID. I am happy to yield for a question without losing the
floor.
Mr. BYRD. Are we likely to be in session this weekend?
Mr. REID. That is a decision they have to make. I am just reading
from one of the publications. One of the Republican leaders said they
are really going to get us on this. They are not filing cloture, but
what they are going to do is talk all night tonight and all night
tomorrow night, to get a vote on the Estrada nomination by the weekend.
Let me just say to everyone within the sound of my voice, that will
not get them a vote on Estrada. We have told them what we believe is
appropriate.
People may disagree with us. This is the Senate. We have certain
rules. We are not dealing from under the deck. We are not holding any
cards up our sleeves. We have said openly what we are doing. We are not
going to allow a vote on this until we get the information we want. So
it is up to them. If they want to threaten us, we could also--we could
talk about the war, as the distinguished Senator from West Virginia did
yesterday.
I think it is also important to think about this economic plan that
has been suggested, the one the President has put forward that the
Chairman of the Federal Reserve says is not a good plan. The chairman
of the Ways and Means Committee in the House says it is not a good
plan. We could talk and elaborate on how some of the Republicans feel
about their own plan. That would take a little bit of time.
We could talk about the President's Medicare fix, which the Speaker
of the House of Representatives said is a really bad idea.
We can talk about a lot of things. This is the Senate rules. We do
not have to talk about Miguel Estrada. I said to everyone yesterday and
I have said it today, everything has been said about Miguel Estrada,
for and against him. But not everyone has said it. So we can be here,
we can continue rehashing Miguel Estrada.
But the President said--I think I am quoting almost verbatim when he
was told there is a filibuster--the game is over.
I don't know what that means. That is a term he used a lot. He said
the game is over in Iraq. The game is over on Estrada. This is not a
game; this is something we are doing based upon principle.
I think, for the good of the country, unless they are going to give
us the information we want, this nomination should be pulled. Then we
can get on to other things that I think are very pressing that we
should get on to.
I want to make sure I was right. I want to make sure I said this
right.
Senate Judiciary Committee Chairman Orrin Hatch . . .
scoffed the Democrats' demand for more information about
Estrada.
I said the President said: The game is over.
Senator Hatch said that. He is quoting what the President said on
other things.
That game is over.
The game is over--this is not a game. This is not something that was
arrived at in a short period of time. In fact, the Democratic leader
waited a number of days before the decision was made, after he
conferred literally with every Democratic Senator about how he felt
about this. This is not an arbitrary decision made by the Democratic
leader. This is a decision made by Senator Daschle after having
conferred with every Democratic Senator, on more than one occasion in
most instances. That is what the body over here desired to do, and that
is what we are doing. We hope everyone understands this is not a game.
We are very serious about what we are doing. We believe what we are
doing is principled.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BYRD. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.