Robert Bennett

Mr. BENNETT

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

Mr. BENNETT

Mr. BENNETT. Now General Lenhardt. All right. I am very comfortable that the new Sergeant at Arms will carry on the same level of professionalism and provide the same level of protection for the Senators and our staffs that we have seen before. It is a tribute to General Lenhardt that he has agreed to stay on until March 17 to see that the transition is as seamless as possible and that we do indeed maintain the level of safety we now have. As good as the hands we have been in in the past, we will remain in good hands in the future.

Mr. BENNETT

Mr. BENNETT. Mr. President, on behalf of the majority leader, I announce the schedule for the day. This morning, there will be a period of morning business for up to 2 hours. The first 60 minutes will be under the control of Senator Alexander and Senator Murkowski, and the final 60 minutes will be under the control of the Democratic leader or his designee. Upon the conclusion of morning business, the Senate will resume the consideration of the nomination of Miguel Estrada to be a circuit judge for the DC Circuit Court. Also, today the Senate will recess from the hours of 12:30 to 2:15 for the weekly party caucuses. As a reminder, Senators who desire to speak on the nomination are asked to do so during today's session. I yield the floor.

Mr. BENNETT

Mr. BENNETT. In the editorial they say: The right question, though, is not, ``Is war risky?'' but ``Is inaction less so?'' No one can provide more than a judgment in reply. But the world is already a dangerous place. Anthrax has been wielded in Florida, New York and Washington. Terrorists have struck repeatedly and with increased strength over the past decade. Are the United States and its allies ultimately safer if they back down again and leave Saddam Hussein secure? Or does safety lie in making clear that his kind of outlaw behavior will not be tolerated and in helping Iraq become a peaceable nation that offers no haven to terrorists? We would say the latter. . . . As I say, I could not have put it better, which is why I have quoted it. I have raised the question on the floor before: What are the consequences if we do not follow through in Iraq? Some have said let's just leave the troops in place. And that means Iraq remains contained. Leaving the troops in place is not an option. We must understand that the troops are where they are, poised to move into Iraq, because of the agreement of the governments in Qatar, Turkey, and Saudi Arabia, among others. Those governments will not allow our troops to remain on their soil indefinitely. They will not allow those troops to remain there while we contain Saddam Hussein for 6 months or 12 months or 12 years, which has been the period of ``containment'' that we have seen up until now. We must either withdraw those troops and say we are not going to move ahead militarily or, if Saddam Hussein does not disarm in accordance with the U.N. resolutions, those troops will move forward into his territory. We have no other choice: Move forward or withdraw. For those who say the inspectors should be allowed to do their job, we must understand that the only reason the inspectors are there is because the troops are there. So we are coming down to the decision point, that is very clear. Again, back to the editorial: Some argue now that, because Saddam Hussein has not in the intervening half decade used his arsenal, Mr. Clinton was wrong. . . . I should say that the editorial quotes President Clinton as outlining the case against Saddam Hussein in 1998. Some would argue now that, because Saddam Hussein has not in the intervening half decade used his arsenal, Mr. Clinton was wrong and the world can rest assured that Iraq is adequately ``contained.'' Given what we know about how containment erodes over time; about Saddam Hussein's single- mindedness compared with the inattention and divisions of other nations; and about the ease with which deadly weapons can move across borders, we do not trust such an assurance. Mr. Clinton understood, as Mr. Bush understands, that no president can bet his nation's safety on the hope that Iraq is ``contained.'' We respect our readers who believe that war is the worst option. But we believe that, in this case, long- term peace will be better served by strength than by concessions. There is one other issue that was raised by my friend in Utah to which the editorial does not speak. This is the issue of first strike. My friend says we cannot cross the line of having the United States be involved in a first strike against a nation that has not attacked us. One of the arguments I have heard on this score is that if we do it, we will set a precedent that will allow other nations to do it. Other nations that we do not want to do it will say we can do it because the United States did. If I may, without being disrespectful to that argument, I would point out that Adolph Hitler did not need a precedent from the United States to attack Poland. He made up his own excuse. He pretended that Poland had attacked him. He dressed prisoners in Polish military uniforms, murdered them, and then had them found by German soldiers on German soil who said they were shot as they tried to invade Germany. The setting of a precedent by the United States or the not setting of a precedent by the United States will have absolutely no effect on the actions of a brutal dictator who decides to attack his neighbors in a first strike fashion. Saddam Hussein didn't quote precedent when he attacked Kuwait in the early 1990s. He went ahead and did it, and would have done it again whether he had precedent or not. Having said that, however, I want to review a little bit of American history. It may not be history of which we are proud, for those who say we have never committed a first strike, but it is history nonetheless of which we must be aware. I have not taken the time to research all examples of this because my memory provides me with enough to make the point. I remember when Lyndon Johnson sent the Marines into the Dominican Republic, for what purpose I cannot recall. But this was not a country that had attacked us and we sent military forces in there on the grounds that there was some American interest that had to be protected. Ronald Reagan sent the Marines into Grenada. His reason was that the legitimate Government of Grenada requested it. In his book, ``The Rise and Fall of the Soviet Empire,'' Brian Crozier referred to the American military action in Grenada as one of the key turning points in the cold war. He said if the United States had not moved into Grenada and removed the Communist government there, the cold war would have lasted considerably longer and been more devastating. There was no international clamor against President Reagan when he did this. He believed it was in America's best interests, and at least one historian has said it was not only in America's best interests, it was in the world's best interests for Ronald Reagan to have done what he did in Grenada. In the waning days of his Presidency, the first President Bush sent American troops into Somalia. Somalia had not attacked us and did not represent any threat. The troops were there presumably on a humanitarian mission, but they were sent in to deal with a military situation in that country that President Bush thought had to be dealt with. Those troops were withdrawn by the Clinton administration. But, once again, this was not a circumstance where America had been attacked but one where an American President sent American troops and there was no international outcry, no international complaint. Shortly after I came to the Senate, President Clinton invaded Haiti. Our former colleague, Sam Nunn, was in Haiti just prior to the time when the American military entered that country, and he debriefed a number of us after he came back. He pointed out that the only reason there was not bloodshed when the American troops entered Haiti was because the former Chairman of the Joint Chiefs of Staff, Colin Powell, went with Senator Nunn and former President Jimmy Carter to Haiti and General Powell was able to convince the Haitian general in charge of their military that it was not dishonorable for the Haitian general to save the lives of his troops and allow the Americans to come in without military opposition. As I recall it from Senator Nunn, the Haitian general was determined that it was his duty as a military man to resist any invasion of his country, no matter how hopeless that resistance might be. And he gathered his family around him, his wife and his children, hugged them together and said: This is our last night on Earth because tomorrow the Americans are invading and I will be killed. As I say, General Powell sat down with the Haitian general, convinced him that his first duty as a military officer was to protect the lives of his troops, and that he was not doing a dishonorable thing if he did not mount a hopeless resistance against the Americans. Once again, there was no international outcry against the American decision to send troops into Haiti. Looking back on it, it was not necessarily a wise thing to have done. We replaced a brutal dictator much beloved by American conservatives with a brutal dictator much beloved by American liberals. But the average Haitian has not seen any improvement in his or her lifestyle. Indeed, those who have been to Haiti recently tell me things are worse now than they were before the Americans invaded. Then we have the former Yugoslavia, a country that represented no threat to the United States and had not attacked the United States, but the United States led a national coalition in war upon that nation. Why did we do it? We did it because, under Milosevic, that nation had produced enough casualties within its borders to begin to approach 20 percent of the size of the Holocaust. They killed that many of their own people, and the Americans felt that was a serious enough challenge to require us to go ahead. Now we have just heard a speech by the Senator from Michigan with respect to North Korea. We are being asked, Why are we not doing more with respect to North Korea? I will not respond to the Senator from Michigan or the Democratic leader in that vein. But I will point out that the attitude around the world and, indeed, here in the Senate is why the United States isn't taking care of this. If I might add one word to that question, Why isn't the United States taking care of this unilaterally? In other words, the United States should handle this all by themselves, according to speeches that are made here and in the world community. I run through this history simply to make this point: It is not accurate to say the proposed action in Iraq is either unprecedented in American history or illegal under American or international law. The action that is proposed with respect to Iraq is in the tradition of these humanitarian missions that I have described. Some of them have gone wrong. Some of them have turned out not to produce a humanitarian result. But in every case there was no prior complaint raised against the proposal that we do this on the ground that this was an unacceptable first strike against a defenseless neighbor. In every circumstance, it went forward with full approval. I voted against the move into Haiti. But the President appropriately came to the Congress and got approval before he did it. President Bush has come to the Congress, and by a 77-23 vote in this body and an equally lopsided vote in the other body, has approval before he goes into Iraq. This is not a stealth attack like Pearl Harbor under the cover of night. This is something that has been debated and laid before the United Nations. The United Nations, by a 15-0 vote in the Security Council, announced to Iraq if she did not disarm, she would face serious consequences, and serious consequences in United Nations speak means war. This is not something that is done hidden or in a corner or in the dark. So we come back now to the fundamental question: Is it safer to go ahead with an operation in Iraq than it is to pull down the American troops and bring them home? I agree with the editorial writers of the Washington Post. This is an agonizing decision. This is not one to be made lightly, and I am sure from conversations with him that the President is not going to make it lightly. He is going to weigh all of the consequences. But I believe in the end he will come to the same conclusion that the Washington Post editorial writers have come to and that I have come to. Whatever the unknowns on either side, the present evidence suggests that the most dangerous thing we could do with respect to the situation in Iraq is to back down if Iraq does not comply with the United Nations resolution. To pull our troops out of Iraq does not comply with the demands that the world has made upon it. The safest thing to do if Iraq does not comply is to carry through with the resolution that was adopted on this floor by an overwhelming margin, adopted in the Security Council of the United Nations unanimously, and not hold back. I yield the floor. [From the Washington Post, Feb. 27, 2003] ``Drumbeat'' on Iraq? A Response to Readers ``I have been a faithful reader of The Washington Post for almost 10 years,'' a recent e-mail to this page begins. ``Recently, however, I have grown tired of your bias and endless drumbeating for war in Iraq.'' He's not the only one. The national and international debate over Saddam Hussein's weapons of mass destruction, and our editorials in favor of disarming the dictator, have prompted a torrent of letters, many approving and many critical. They are for the most part thoughtful and serious; the antiwar letters in particular are often angry and anguished as well. ``It is truly depressing to witness the depths Washington Post editors have reached in their jingoistic rush to war,'' another reader writes. It's a serious charge, and it deserves a serious response. That answer, given the reference to ``Washington Post editors,'' probably needs to begin with a restatement of the separation at The Post between news and editorial opinion functions. Those of us who write editorials have no influence over editors and reporters who cover the news and who are committed to offering the fairest and most complete journalism possible about the standoff with Iraq. They in turn have no influence over us. For our part, we might begin with that phrase ``rush to war.'' In fact there is nothing sudden or precipitous about our view that Saddam Hussein poses a grave danger. In 1990 and 1991 we supported many months of diplomacy and pressure to persuade the Iraqi dictator to withdraw his troops from Kuwait, the neighboring country he had invaded. When he failed to do so, we supported the use of force to restore Kuwait's independence. While many of the same Democrats who oppose force now opposed it then also, we believe war was the correct option--though it was certainly not, at the time, the only choice. When the war ended, we supported--in hindsight too unquestioningly--a cease-fire agreement that left Saddam Hussein in power. But it was an agreement, imposed by the U.N. Security Council, that demanded that he give up his dangerous weapons. In 1997 and 1998, we strongly backed President Clinton when he vowed that Iraq must finally honor its commitments to the United Nations to give up its nuclear, biological and chemical weapons--and we strongly criticized him when he retreated from those vows. Mr. Clinton understood the stakes. Iraq, he said, was a ``rogue state with weapons of mass destruction, ready to use them or provide them to terrorists, drug traffickers or organized criminals who travel the world among us unnoticed.'' When we cite Mr. Clinton's perceptive but ultimately empty comments, it is in part to chide him and other Democrats who take a different view now that a Republican is in charge. But it has a more serious purpose too. Mr. Clinton could not muster the will, or the domestic or international support, to force Saddam Hussein to live up to the promises he had made in 1991, though even then the danger was well understood. Republicans who now line up behind President Bush were in many cases particularly irresponsible; when Mr. Clinton did bomb Iraqi weapons sites in 1998, some GOP leaders accused him of seeking only to distract the nation from his impeachment worries. Through the end of Mr. Clinton's tenure and the first year of Mr. Bush's presidency, Saddam Hussein built up his power, beat back sanctions and found new space to rearm--all with the support of France and Russia and the acquiescence of the United States. After Sept. 11, 2001, many people of both parties said--and we certainly hoped--that the country had moved beyond such failures of will and politicization of deadly foreign threats. An outlaw dictator, in open defiance of U.N. resolutions, unquestionably possessing and pursuing biological and chemical weapons, expressing support for the Sept. 11 attacks: Surely the nation would no longer dither in the face of such a menace. Now it seems again an open question. To us, risks that were clear before seem even clearer now. But what of our ``jingoism,'' our ``drumbeating''? Probably no editorial page sin could be more grievous than whipping up war fever for some political or trivial purpose. And we do not take lightly the risks of war--to American and Iraqi soldiers and civilians first of all. We believe that the Bush administration has only begun to prepare the public for the sacrifices that the nation and many young Americans might bear during and after a war. And there is a long list of terrible things that could go wrong: anthrax dispersed, moderate regimes imperiled, Islamist recruiting spurred, oil wells set afire. The first question, though, is not ``Is war risky?'' but ``Is inaction less so?'' No one can provide more than a judgment in reply. But the world is already a dangerous place, Anthrax has been wielded in Florida, New York and Washington. Terrorists have struck repeatedly and with increasing strength over the past decade. Are the United States and its allies ultimately safer if they back down again and leave Saddam Hussein secure? Or does safety lie in making clear that his kind of outlaw behavior will not be tolerated and in helping Iraq become a peaceable nation that offers no haven to terrorists? We would say the latter while acknowledging the magnitude of the challenge, both during and especially after any war that may have to be fought. And we would say also that not only terrible things are possible: To free the Iraqi people from the sadistic repression of Saddam Hussein, while not the primary goal of a war, would surely be a blessing. Nor is it useful merely to repeat that war ``should only be a last resort,'' as the latest French-German-Russian resolution states, or that, as French President Jacques Chirac said Monday, Iraq must disarm ``because it represents a danger for the region and maybe the world . . . But we believe this disarmament must happen peacefully.'' Like everyone else, we hope it does happen peacefully. But if it does not--if Saddam Hussein refuses as he has for a dozen years--should that refusal be accommodated? War in fact has rarely been the last resort for the United States. In very recent times, the nation could have allowed Saddam Huss- sein to swallow Kuwait. It could have allowed Slobodan Milosevic to expel 1 million refugees from Kosovo. In each case, the nation and its allies fought wars of choice. Even the 2001 campaign against Afghanistan was not a ``last resort,'' though it is now remembered as an inevitable war of self-defense. Many Americans argued that the Taliban had not attacked the United States and should not be attached; that what was needed was a police action against Osama bin Laden. We believed they were wrong and Mr. Bush was right, though he will be vindicated in history only if the United States and its allies stay focused on Afghanistan and its reconstruction. So the real questions are whether every meaningful alternative has been exhausted, and if so whether war is wise as well as justified. The risks should be minimized. Everyone agrees, for example, that the United States would be stronger before and during a war if jointed by many allies, and even better positioned if backed by the United Nations. If waiting a month, or three months, would ensure such backing, the wait would be worthwhile. But the history is not encouraging. The Security Council agreed unanimously in early November that Iraq was a danger; that inspectors could do no more than verify a voluntary disarmament; and that a failure to disarm would be considered a ``material breach.'' Now all agree that Saddam Hussein has not cooperated, and yet some countries balk at the consequences--as they have, time and again, since 1991. We have seen no evidence that an additional three months would be helpful. Nor does it strike us as serious to argue that the war should be fought if Mr. Chirac and German Chancellor Gerhard Schroeder agree, but not if they do not. If the war is that optional, it should not be fought, even if those leaders do agree; if it is essential to U.S. national security, their objections ultimately cannot be dispositive. In 1998, Mr. Clinton explained to the nation why U.S. national security was, in fact, in danger. ``What if he fails to comply and we fail to act, or we take some ambiguous third route, which gives him yet more opportunities to develop this program of weapons of mass destruction? . . . Well, he will conclude that the international community has lost its will. He will then conclude that he can go right on and do more to rebuild an arsenal of devastating destruction. And some day, some way, I guarantee you he'll use the arsenal.'' Some argue now that, because Saddam Hussein has not in the intervening half-decade use his arsenal, Mr. Clinton was wrong and the world can rest assured that Iraq is adequately ``contained.'' Given what we know about how containment erodes over time; about Saddam Hussein's single-mindedness compared with the inattention and divisions of other nations; and about the ease with which deadly weapons can move across borders, we do not trust such an assurance. Mr. Clinton understood, as Mr. Bush understands, that no president can bet his nation's safety on the hope that Iraq is ``contained.'' We respect our readers who believe that war is the worst option. But we believe that, in this case, long- term peace will be better served by strength than by concessions.

Mr. BENNETT. Mr. President, this morning's Washington Post has an especially long editorial. Indeed, it takes up the entire length of the editorial page. It is entitled ``Drumbeat on Iraq, a Response to Readers.'' I have a dear friend in Utah who wrote me. She was distraught--is distraught, I am sure--about the prospect of going to war and expressed a great many concerns. I have been in the process of constructing what I hope is a responsible and thoughtful response to her concerns. As I read the editorial in this morning's Washington Post, I found that it does a better job than I could do of summarizing many, if not most, of the issues about which she is concerned. I want to read from sections of the editorial and then ask unanimous consent that it be printed in the Record at the end of my remarks.

Mr. BENNETT

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

Mr. BENNETT

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

Mr. BENNETT

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

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

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

Mr. BENNETT. I thank my friend.

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

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

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

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

Mr. BENNETT. I thank my friend from Nevada. I sit behind him. He may not have noticed how long I was waiting. I have been interested in this debate. It goes on. As the Senator from Nevada has said, just about everything that can be said has been said. But at the same time the country is beginning to discover this debate. While everything may have been said on the floor, it seems that not everything has been said out in the country. It is interesting to me that we are getting more and more editorial comment throughout the Nation on this issue. One that came to my attention just this morning is in this morning's Washington Post. Those who get upset about what they believe is the liberal bias of the newspapers usually do not include the Washington Post among the list of those publications favorable to Republicans. There are columnists in the Washington Post that are considered favorable to Republicans. Mr. Novak comes to mind. But the Post itself is considered to be part of the leftwing media, according to those on talk radio. So when someone who is part of the establishment of the Washington Post editorial page speaks out on this issue and says something contrary to that which is normally assumed to be the party line of the mainstream media, it is worth noting and commenting on. In this morning's Washington Post, Benjamin Wittes, a member of the editorial page staff, has an op-ed piece entitled Silence is Honorable. I would like to quote from it at some length. This is how Mr. Wittes begins: Asked whether the Constitution evolves over time, the nominee to the U.S. Court of Appeals for the District of Columbia Circuit told the Senate Judiciary Committee that, while such debates were interesting, ``as an appellate judge, my obligation is to apply precedent.'' Asked whether he favored capital punishment, a nominee said only that the death penalty's constitutionality was ``settled law now'' and that he didn't ``see any way in which [his] views would be inconsistent with the law in this area.'' Miguel Estrada, one of President Bush's nominees to the D.C. Circuit, is facing a filibuster by Democratic senators who claim that his refusal to address their questions at his hearing--combined with the White House's refusal to release his memos from his days at the solicitor general's office-- makes him an unreadable sphinx. Yet the careful answers quoted above are not Estrada's. The first was given by Judge Judith Rogers at her hearing in 1994, the second by Judge Merrick Garland the following year. Both were named to the bench by President Clinton. Neither was ever accused of stonewalling the committee. And both were confirmed. But the rules they are a-changin', and answers barely distinguishable from these are no longer adequate. Asked whether he thought the Constitution contained a right to privacy, Estrada said that ``the Supreme Court has so held and I have no view of any nature whatsoever . . . that would keep me from apply[ing] that case law faithfully.'' Asked whether he believed Roe v. Wade was correctly decided, he declined to answer. While he has personal views on abortion, he said, he had not done the work a judge would do before pronouncing on the subject. Roe ``is there,'' he said. ``It is the law . . . and I will follow it.'' The real difference between Estrada's questioning and that of Garland and Rogers is not that Estrada held back. It is that Garland and Rogers faced nothing like the inquest to which Estrada was subjected. Both, along with Judge David Tatel--the other Clinton appointee now on the court--faced only a brief and friendly hearing. I would note, outside of the article, that that brief and friendly hearing was under Republican auspices because Republicans controlled the Senate. Back to the article: And none was pushed to give personal views on those matters on which his or her sense of propriety induced reticence. To be sure, there was no controversy surrounding the fitness of any of the Clinton nominees, so the situation is not quite parallel. When Garland, a moderate former prosecutor who had recommended the death penalty, said he could apply the law of capital punishment, there was no reason to suspect he might be shielding views that would make him difficult to confirm. By contrast, many Democrats suspect that Estrada's refusal to discuss Roe is intended to conceal his allegedly extremist views. But that only begs the question of why Estrada is controversial in the first place that Democrats think it appropriate to demand that he bare his judicial soul as a condition of even getting a vote. This is the conclusion of this portion of the op-ed piece: Nothing about his record warrants abandoning the respect for a nominee's silence that has long governed lower court nominations. And silence is the only honorable response to certain questions. It is quite improper for nominees to commit or appear to commit themselves on cases that could come before them. That is the end of that quote. This is the standard we followed in this body for many years. I will not pretend that members of the Judiciary Committee of both parties in Congress, controlled by both parties, would use the Judiciary Committee, the blue slip process and other patterns of senatorial courtesy to keep people from getting to the bench. That is part of our history. That has always been done. But once a hearing has been held and the committee has voted out a nominee, we have always allowed that nominee to go to a vote. That is the standard that has been established in this body. That is the standard that has been followed by Democrats and Republicans alike. And that is the standard that is being changed in this circumstance. The Senator from Nevada talked a good bit about the Constitution and questions that have been raised about constitutionality by the Republicans. I would simply point out this obvious fact with respect to the Constitution on this question: The Founding Fathers gave the power to advise and consent in certain executive decisions to the Senate. The Founding Fathers recognized that the power to advise and consent was a very significant one, an unusual one held solely to the Senate. So they outlined those areas where the power to advise and consent would require a supermajority. The Founding Fathers said: If you are advising and consenting on a treaty, which becomes law when it is ratified, equal to the Constitution, then you have to have a two-thirds majority. If you are amending the Constitution, you have to have a two-thirds majority. These are serious enough matters, with long-term impact, that they must have a two-thirds majority. They could have said: The advise and consent power always requires a supermajority, but they did not. The Founding Fathers made it very clear those specific areas where a supermajority would be required and then left it to an ordinary majority on the advise and consent power with respect to Presidential nominations. And throughout the entire history of the Republic, we have followed the pattern of a simple majority for the advise and consent power to be exercised by the Senate. Make no mistake, if the Senate sets the precedent in the Estrada case that the advise and consent power from this time forward requires a supermajority of 60 votes, they are changing forever the pattern of the Senate's relationship to the executive branch in this area. I am not one who says that is unconstitutional. I think it is within the power of the Senate. I disagree with those who are saying it violates the Constitution. I think it violates the intent of the Framers of the Constitution. I think that is very clear. But it is within the power of the Senate to do that if we want. As I have said before, we on our side of the aisle discussed this when we were faced with those nominees from President Clinton whom we considered controversial. There were those in our conference who insisted that we must do that--change the pattern and require President Clinton's nominees to pass the 60 point bar. To his credit, my senior colleague from Utah argued firmly against that. Even though he was against the nominees in some cases, he said we must not change the historic pattern that says once a nominee is voted out of the committee, he or she gets a clear up-or-down vote by a majority. To his credit, the Republican leader at the time, the majority leader, Senator Lott, said exactly the same thing: We must not go down that road. Those in our conference who said let's do it on that particular judge agreed and backed down, and no matter how strongly people on this side of the aisle felt about a particular judge, there was never an attempt to use the filibuster power to change what we considered to be the clear intent of the Founding Fathers and change the advise and consent situation, where there was an additional supermajority required, an additional supermajority added to that which the Founding Fathers themselves wrote into the Constitution. Now the Democrats have decided they are going to do that. It is their right. To me, it signals a determination on their part that they expect to be in the minority for a long time. One of the reasons Senator Hatch gave for us not to do it was, we will have an opportunity in the future to be voting on nominees offered by a President of our own party, and if we do this to the other party, they will then feel comfortable in doing it to the nominees of our party; let's just not do that. I think by deciding to do this on this nominee, the Democrats have virtually conceded the fact that they do not expect another Democratic President for long time. They believe they will be in the minority for a long time and, therefore, they must establish this weapon as one of the weapons they will use as part of the minority to obstruct the activities in the Senate for a long time to come. I hope they decide ultimately to bet on the future. I hope they decide ultimately they do expect that there will be a Democratic President sometime in the future, that they do expect there will be a Democratic Senate sometime in the future and they want to save for the future the right that every President, Democrat or Republican, and every Senate, Democrat or Republican, has maintained since the founding of the Republic 2\1/2\ centuries ago. Madam President, if I may go back to the article written by Benjamin Wittes in this morning's Washington Post that summarizes the implications of going in this direction and what it will do long term, he says: Not knowing what sort of judge someone will be is frustrating, but that is the price of judicial independence. While it would be nice to know how nominees think and what they believe and feel, the price of asking is too high. The question, rather, is whether a nominee will follow the law. Estrada has said that he will. Those who don't believe him are duty bound to vote against him, but they should not oblige nominees to break the silence that independence requires. That is what our friends on the Democratic side are doing. They have never demanded it before. We did not demand it of their nominees. They are changing the rules--``the rules they are a'changing,'' as Mr. Wittes points out. I ask my friends on the Democratic side to think long and hard about the long-term consequences of changing the rules-- changing the rules, as Mr. Wittes talks about it, in terms of what is demanded of nominees; changing the rules as we are talking about it here in terms of the supermajority that would be added to the existing constitutional requirement of the Senate as it performs its role in advising and consenting to executive nominations. With that, I yield the floor.

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

Mr. BENNETT

Mr. BENNETT. Mr. President, this morning the Senate will resume consideration of the nomination of Miguel Estrada to be a circuit judge for the DC Circuit. Again, if Senators desire an opportunity to speak on the nomination, they are, of course, encouraged to do so. As announced last night by the majority leader, there will be no rollcall votes during today's session. When the Senate completes its business today, it will stand adjourned for the Presidents Day recess until Monday, February 24. Members should expect the next rollcall vote to occur at 5:30 in the afternoon on Monday, February 24. The majority leader will have more to say regarding the schedule later today prior to today's closing.

Mr. BENNETT

Mr. BENNETT. Mr. President, I have been watching these proceedings on television in my office. I have heard some of the presentations that have been made. It seems that emotions are running high on this issue on both sides, and I can understand that, and maybe, given the stakes we are playing with, applaud the fact that people feel strongly enough to come to the floor and express themselves. I wish to make a few comments simply in reaction to some of the statements I heard this afternoon, however. Perhaps no one will notice, but in my own mind I will have done something to set the record straight. The Democratic leader talked at some length about Miguel Estrada's supervisor at the Department of Justice, a supervisor who has now publicly stated that he does not think Mr. Estrada should be confirmed. That is obviously that supervisor's right, and it is something I think we should appropriately take into consideration. That which I would point out, however, is that while Mr. Estrada was working there, that same supervisor gave him the highest possible ratings in his annual performance reviews. We are told there is no paper trail on Mr. Estrada, but there is a paper trail in terms of the written performance reviews of his activities while he was in the Department of Justice, and those reviews are unanimously and unchangingly glowing, giving us the indication, at least in the written opinion of his supervisors filed for the record in a situation where there was no political pressure one way or the other, that Mr. Estrada is certainly qualified in every way for the assignment he had at the Department of Justice and the implication, of course, is that he would be qualified for further assignments later in his career. I should also like to point out that this was not the Ed Meese Justice Department, this was not the Richard Kleindienst Justice Department, those who have been attacked as being unduly partisan because of the nature of the particular Attorney General and his closeness to the President. This was the Janet Reno Justice Department, and Mr. Estrada was there not for a week or two in transition but he was there for a matter of years. If he is part of the vast right-wing conspiracy, as some have suggested, why did the people of the Reno Justice Department speak so highly of him and retain him for so long? There can be only one logical answer. Either the people involved in the hiring of the Justice Department under Janet Reno were incredibly blind to Mr. Estrada's ideological bent or they saw in him a lawyer of incredible and significant ability and wanted his services and retained his services. The Democratic leader made a great point out of the fact that none of Mr. Estrada's memos, while he was at the Justice Department, is being supplied to the committee for review. He did not tell us that Mr. Estrada's supervisor, the Solicitor General of the United States, appointed by President Clinton and serving under Attorney General Reno, says those memos should not be made public. The Solicitor General, not Mr. Estrada, was the client. The client who received the memos is the one saying the memos should not be made public, and yet the lawyer who prepared the memos, in confidentiality for his client, is being attacked for not violating his client's request. I think it is fairly clear that the client is right in this case and that Mr. Estrada is acting in the highest levels of his profession to see to it that those memos are not made public. If they were made public, I do not think they would find anything in them that would expose Mr. Estrada as part of the vast right-wing conspiracy. I think they would find the excellent work of a superb lawyer so that it would probably help Mr. Estrada's case if those memos were brought forth in establishing his competence and his ability. But professional ethics say that a lawyer does not disclose that which he has prepared for a client, particularly in the case where the client says: Do not do it. Mr. Estrada has not done it and is being attacked now on the floor of the Senate for what, in my opinion, is his appropriate professional stance. So we have the circumstance where a man who is responding to his professional requirements, a man whose career is fully open and clear for everyone to see, a man who has hidden nothing and has no holes at any point in his chronological resume, is being held up and being denied a vote on the floor of the Senate. As I have said before, we do not really know why. We do not know what particular test is being applied to this confirmation. We know there are others whose rating by the American Bar Association is not as good as Mr. Estrada's who have gone through without any difficulty. We know there are those whose ``lack of judicial experience'' is exactly the same as Mr. Estrada's, others for whom the lack of judicial experience made no difference but which in his case suddenly is touted as making all the difference in the world. We know these are straw arguments because we can find plenty of cases where others in exactly the same situation as Mr. Estrada did not have them raised against them. So what we have is a situation where an additional test, unannounced and therefore unknown, is being applied in this case. I have tried to figure it out. I have asked Senator Leahy to disclose what particular test he is applying in this situation. I have been unable to find a satisfactory answer. As I have said, perhaps facetiously but with some seriousness, I have come to the conclusion that the test that is being applied is passing muster with the editorial board of the New York Times. If the New York Times editorial board decides Mr. Estrada is not to be accepted, that means he must be turned down because the New York Times is the voice of what I call the responsible left in this country. We have the irresponsible left, but we have the responsible left. There are those who claim the New York Times is completely middle of the road, the New York Times has no ideology. Those who are making that claim do not read the New York Times, or if they do, they do not understand it. It is the voice of the left in this country, the responsible left. If its editorial board has decided that Miguel Estrada must not be confirmed, there are those who say we cannot cross the editorial board of the New York Times, we must follow their dictates, and therefore, without announcing it, we recognize that Estrada has failed that test and therefore must be opposed, and we will make up these other reasons to oppose him, even though we cannot apply these same reasons to other candidates for whom we have voted. I hope I am wrong. Some will say: That is a facetious, almost capricious, statement on your part, Senator Bennett. But I renew the request. I ask those who have determined in advance the test that Estrada must pass, and who have determined that he has failed to pass that test, to do us the courtesy of telling us what that test is, telling us in advance what hoop the nominees must pass through in order for them to allow the nominees a vote on the floor of the Senate. Until they tell us, this whole process we are going through will remain somewhat of a mystery. I yield the floor.

Mr. BENNETT

Mr. BENNETT. If I could comment on the question, I find it interesting for those who supported Janet Reno for Attorney General and supported President Clinton's Presidential nominees in that office, which nominees, after confirmed, are saying Estrada's notes should not be made public, are saying those nominees are wrong.

Mr. BENNETT. Is it not then the case that some of these papers the committee is demanding are papers that were submitted to a Clinton Presidential appointee who acted as Solicitor General; is that not the case?

Mr. BENNETT. So is it not true that it is a Clinton appointee, former Solicitor General, who is now saying it would be inappropriate for Mr. Estrada's material to be made public?

Mr. BENNETT. Mr. President, I have been an observer of all of these debates about judges because I am not a lawyer and I don't sit on the Judiciary Committee, but I have been interested to note that when President Bush became the President, he announced he would not allow the American Bar Association to, in effect, veto Presidential nominees. He said the Constitution doesn't give the American Bar Association any right to determine who should be on the Federal bench and who should not, and that he would not bow to the American Bar Association for their recommendations. Our friends on the Democratic side of the aisle, in the popular phrase of the teenagers, went ballistic. They said the American Bar Association was the gold standard by which everybody should be judged. And Senator Leahy, when he was chairman of the Judiciary Committee, made it very clear that even though a recommendation from the American Bar Association is extraconstitutional, he would apply that extraconstitutional test to everyone who came up; and if they did not pass that test--extraconstitutional though it is--they could not be confirmed. He made that very clear. I am grateful to him for his candor. I appreciate the fact he was open with this body and the American public that that particular test was being added to the constitutional test that a nominee should pass. Now we have someone before us who passes not only the constitutional test but the extraconstitutional test laid down by the Democrats. He is not only qualified--according to the American Bar Association, ``well qualified''--he was found unanimously well qualified by the American Bar Association. Yet Senator Leahy is leading a form of filibuster against this nominee that gives rise to this question, which I have asked on the floor before and, undoubtedly, in this extended debate I will ask again. I would ask Senator Leahy, Senator Kennedy, and the others: What additional, extraconstitutional test have you devised that you are applying to nominees for the judiciary? You have told us the first one. You have been very up front about it and tell us what additional, extraconstitutional test you have determined must be passed by a nominee because there is no obvious reason this nominee should be objected to; there is no obvious reason every single Democrat on the Judiciary Committee should have voted against him and we should see the coming of a filibuster against his nomination. The Senators are exercising their rights. I do not object to them exercising their rights, but I do ask them very respectfully to tell us the nature of the test they are applying to these nominees so that we can know in advance in future circumstances which nominees will not pass their test, which nominees will fail that test. In order to do that, we need to know what that test is.

Mr. BENNETT. It is my understanding that Mr. Estrada was employed during the Reno Justice Department; is that the Senator's understanding?

Mr. BENNETT. I recall in the last Congress where the Democratic members of the Judiciary Committee, and particularly the Democratic leader, then majority leader, along with the then-chairman of that committee, Senator Leahy, attacked Republicans for being insufficiently supportive of nominees who were women or members of minorities. We were given quotas, if you will, at least the language of quotas, that we should have so many women and so many minorities, and we were attacked in the strongest possible language. Indeed, it came close to violating Senate rules, of implying that everyone on this side of the aisle was either sexist or racist because we did not support a sufficient number of minority nominees or female nominees.