Orrin Hatch

Mr. HATCH

Mr. HATCH. Well, I believe it can be, and I believe there is some from the outside groups. I do not think there is any question. I would not want to attribute that to any of my colleagues on the Judiciary Committee, although I have to admit this issue of abortion is becoming a litmus test issue to Democrats, that is pro-abortion. I think that is wrong. I remember what the media did to Republicans during the Reagan administration, continually trying to say there was a litmus test. I know there was not because the person who vetted all the judges is a former staffer of mine who is now on the Michigan Supreme Court. I know it is not being done by this administration. But literally, Democrats are making abortion a litmus test issue. The Democrats are fond of saying, yes, but we have passed all kinds of Bush judges, 140 of them so far. Well, they cannot stop them all. So they selectively pick people like General Pryor who clearly has very strongly held views but who clearly has abided by the law. They ignore that he abided by the law and attack him on his strongly held views. In large measure, it comes down to the issue of abortion because he differs with them on the policy issue of abortion.

Mr. HATCH. Without losing my right to the floor.

Mr. HATCH. Well, the Senator is right. He is a very serious practicing Catholic. He despises Roe v. Wade. He makes very strong and principled arguments against it. He did not mince any words when he was asked, Did you call it an abomination? And he said: Yes, I did, sir. When they asked why, he said he called it an abomination because, words to the effect, he believes that it led to the deaths of millions of unborn children. Yet when it came down to enforcing the law on partial-birth abortion, that he despises, he enforced the law, and he directed his prosecutors in the State to do likewise. I do not know whether we can find any better people than that. There are a lot of politicians who have been attorneys general who I do not think would have done that in the face of their personal beliefs, but he did because he is dedicated to the law. He knows if one does not uphold the law, even if they disagree with it, it would not be long until we would not have any laws. The Constitution would go itself, and he understands that. He is a brilliant man, graduated magna cum laude from Tulane, which is a fine law school, and was editor in chief of the Law Review, something that very few people have the privilege of doing, and that is because he was one of the best students in his class. Frankly, he has more than shown an aptitude to the law and an ability to follow the law.

Mr. HATCH. I just saw it tonight, so I am familiar. I have not read it in detail, but I am familiar with it.

Mr. HATCH. I will be glad to yield without losing my right to the floor.

Mr. HATCH. Mr. President, as my colleague knows, I had to stand up to some in my own caucus. Not many. There were some, one or two, who wanted to filibuster President Clinton's nominees. As the Senator will recall, I stood up to that and said we are not going to filibuster judicial nominees. It is not right, and I believe it is constitutionally unsound. Some of the outside groups were sincere but they wanted to--I believed them to be sincere but wrong--distort some of these matters, and I refused to allow them to do it. They demanded to testify in a variety of cases, and I told them no, we are not going to denigrate the judicial process with that type of stuff.

Mr. HATCH. I am happy to yield without losing my right to the floor.

Mr. HATCH. This article reads in part: I have never met Mr. Pryor, but his political life is a matter of public record. He has served the State of Alabama with distinction, enforcing its laws and court decisions fairly and consistently. This is why President Bush nominated him to the 11th U.S. Circuit Court of Appeals, and why the Senate Judiciary Committee approved him last Wednesday for consideration by the full Senate. But the committee debate on Pryor was ugly, and the vote to advance his nomination split exactly along party lines. Why? Because Mr. Pryor believes that Catholic teaching about the sanctity of life is true; that the 1973 Supreme Court Roe v. Wade decision was a poorly reasoned mistake; and that abortion is wrong in all cases, even rape and incest. As a result, Americans were treated to the bizarre spectacle of non-Catholic Senators Orrin Hatch and Jeff Sessions defending Mr. Pryor's constitutionally protected religious rights to Mr. Pryor's critics, including Senator Richard Durbin, an ``abortion-rights'' Catholic. He concludes with: Some things change, and some things don't. The bias against ``papism'' is alive and well in America. It just has a different address. But at least some people in Alabama now know where he local Catholic church is--and where she stands--even if some people in Washington apparently don't. I ask the Senator from Utah if he has seen that article.

Mr. HATCH. I will be happy to yield for another question without losing my right to the floor.

Mr. HATCH. After the Supreme Court's decision in Stenberg v. Carhart, he upheld that law by ordering state officials not to enforce the conflicting Alabama partial-birth abortion law. Earlier, he had enforced Alabama's partial-birth abortion law narrowly, to ensure consistency with Supreme Court's dictates in Planned Parenthood v. Casey. Even though he disagrees violently with both of those cases from a personal religious standpoint, but he enforced and upheld those laws, in the face of criticism from many of his conservative friends in Alabama. Let me read one other item. At his hearing, I asked him this question: So even though you disagree with Roe v. Wade, you would act in accordance with Roe v. Wade on the Eleventh Circuit Court of Appeals? This was his answer: Mr. Pryor. Even though I strongly disagree with Roe v. Wade, I have acted in accordance with it as attorney general and would continue to do so as a Court of Appeals judge. Chairman Hatch. Can we rely on that? Mr. Pryor. You can take it to the bank, Mr. Chairman. To be honest with you, that is the way he is, and he is being condemned for that. I have to say that some of my colleagues on the other side have become tremendously annoyed and hurt by the issue of religion being brought up in this matter, but the attacks on personal beliefs came originally from these inside-the-Beltway groups. They are well heeled, with money coming out of their ears, hiring all kinds of far left liberal lawyers to make these smear attempts and, frankly, that is what is distorting this whole process. I suggest to my friends on the other side, they are going to have to start some day standing up to these people, but they do not seem to be able to do it. Frankly, during the Clinton years, I stood up to some of the right wing groups that were occasionally trying to distort somebody's record. We did not see anywhere near what we are seeing today but I stood up. I am not asking them to do something I did not do.

Mr. HATCH. First, I have seen the letter dated July 30, 2003, which I believe the Senator has put into the Record. The first time I have seen it is tonight.

Mr. HATCH. Right. I am concerned about this. I know some of these outside groups have been doing this regularly. I personally do not believe the distinguished Senator from California is--and I hope none of the other Democrat Senators on the committee are--against Mr. Pryor because of his religious beliefs. But I have to admit that people all over the country have been calling me and talking to me and saying, how could it be anything else? People are drawing that conclusion, and I will be honest with you, I am concerned about it.

Mr. HATCH. I ask unanimous consent that the distinguished Senator from California be recognized for 15 minutes.

Mr. HATCH. There is no question about that. We all have to agree that our Constitution states no religious test shall ever be required as a qualification to any office of public trust in the United States. I don't believe any Senator would intentionally impose a religious test on the President's judicial nominees. I do not think any Senators are guilty of anti-religious bias. However, I am deeply concerned that some are indirectly putting at issue the religious beliefs of several judicial nominees. I will give you one illustration. During the Pryor hearing, General Pryor's religion was an issue--and this is why I have raised it, which I have never done before. One Senator accused General Pryor during the hearing of ``asserting an agenda of your own, a religious belief of your own.'' In his opening statement, another Senator stated: ``In General Pryor's case, his beliefs are so well known, so deeply held that it is very hard to believe that they are not going to deeply influence the way he comes about saying `I will follow the law,' and that would be true of anybody who had very deeply held views.'' The only deeply held views that I know outside of belief in the law would be his own personal religious beliefs. I will just say this on another point. On the subject of Roe v. Wade, Senator Schumer said, ``I for one believe that a judge can be pro-life, yet be fair, balanced, and uphold a woman's right to choose. But for a justice to set aside his or her personal views, the commitment to the rule of law must clearly supersede his or her personal agenda. . . . But based on the comments Attorney General Pryor has made on the subject, I have some real concerns that he cannot because he feels these views so deeply and so passionately.'' I don't know how you read it any other way. Another Senator told General Pryor: I think the very legitimate issue at question with your nomination is whether you have an agenda, and that many of the positions you have taken do not reflect just an advocacy, but a very deeply held view and a philosophy, which you are entitled to have, but you are also not entitled to get everyone's vote. As you know, General Pryor is openly pro-life.

Mr. HATCH. You cannot object.

Mr. HATCH. I cannot speak to that. All I can say is that I will take the Senator's statement at face value, as I know he is a practicing member of the Catholic faith, and I respect him for that. I know he is very sincere, and I know he has even written about it. But I am concerned. Three of the people we have been told will be filibustered are traditional pro-life, Catholic conservatives. Certainly, Pryor is one of them. Kuhl is another. Holmes is another. It is a matter of great concern. I have to say that these inside-the-Beltway outside groups will use anything; they will distort a person's record. It is abysmal what they are doing, and they are well heeled to the tune of millions of dollars, which they spend spreading this bile all over the Senate. Unfortunately, I believe there are some in this body who do not decry what they are doing.

Mr. HATCH. Yes. I am so advised. I have studied the Catholic faith and I respect it deeply, as I do all religions.

Mr. HATCH. Mr. President, reserving the right to object.

Mr. HATCH. Parliamentary inquiry.

Mr. HATCH. Could I ask how much time the distinguished Senator from California desires?

Mr. HATCH. My personal belief is we ought to let her go ahead, and I would encourage my colleague to do that.

Mr. HATCH. I ask unanimous consent that we----

Mr. HATCH. Reserving my right to object, Mr. President, it is not unusual to have multiple matters heard by the Senate. It is certainly not unusual to have cloture votes on judges, especially under the current situation. I would be happy to quit debating General Pryor tonight, even though there has been probably close to an hour of the Senate's time utilized on this debate, and just go to the cloture vote tomorrow, quit playing around with the Energy bill that we know is being slow-walked, and try to finish the Energy bill before the end of this week. There is no excuse for not having a cloture vote on Judge Pryor or Judge Kuhl on Friday.

Mr. HATCH. I yield to the distinguished Senator from California, and I intend to take the floor as soon as she is through.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak on the nomination of Miguel Estrada for the United States Court of Appeals for the District of Columbia Circuit. It is truly a sad record that the Senate is now being obstructed by multiple filibusters on judicial nominees and that we are required to conduct an unprecedented seventh cloture vote on this particular extremely qualified nominee. Let me state that a clear majority of this body supports this nomination, as has been demonstrated in the past six cloture votes. So it is regrettable that a minority number of Senators have followed their script of extraordinary obstructionism to prevent the Senate from concluding the debate on this nomination and proceeding to a final vote. It has now been 6 months since Mr. Estrada's nomination was reported by the Judiciary Committee and placed on the Senate Executive Calendar. It has been nearly 8 months since he was renominated by President Bush. It has been more than 10 months since his hearing before the committee, and I has been more than 2 years since he was first nominated by President Bush on May 9, 2001. In all of that time my Democratic colleagues have had unlimited opportunities to make their case. Some of them oppose him; others support him. But one thing has remained clear through this debate: There is no good reason to continue this route of obstruction by denying Mr. Estrada an up-or-down vote. We are at a troubling point in Senate history. Over the past few months I have spoken frequently on the calculated effort to stall action on President Bush's judicial nominees. There have been efforts to bottle up nominees in committee, to inject ideology into the confirmation process, to delay by demanding production of all unpublished opinions of nominees who are sitting Federal judges and making demands for answers to questions that are unanswerable. And, in the case of Mr. Estrada, opponents have demanded he produce confidential internal memoranda that are not within his control. When these tactics have failed, opponents have turned to their ultimate weapon--the filibuster. Filibusters of judicial nominees allow a vocal minority to prevent the majority of Senators from voting on the confirmation of a Federal judge, a prospective member of our third, coequal branch of Government. It is tyranny of the minority, and it is unfair to the nominee, to the judiciary, and to the majority of the Members of this body who stand prepared to fulfill their constitutional responsibility by voting on Mr. Estrada's nomination. I am not alone in my disdain for delaying or defeating judicial nominees through a cloture vote. I think that it is appropriate at this point to note that many of my Democratic colleagues argued strenuously on the floor of the Senate for an up-or-down vote for President Clinton's judicial nominees. The distinguished minority leader himself once said, ``As Chief Justice Rehnquist has recognized: `The Senate is surely under no obligation to confirm any particular nominee, but after the necessary time for inquiry it should vote him up or vote him down.' An up-or-down vote, that is all we ask. . . .'' The ranking member of the Judiciary Committee echoed these sentiments when he said, ``. . . I, too, do not want to see the Senate go down a path where a minority of the Senate is determining a judge's fate on votes of 41.'' Another one of my Democratic colleagues, Senator Kennedy, himself a former chairman of the Judiciary Committee, had this to say: ``Nominees deserve a vote. If our Republican colleagues don't like them, vote against them. But don't just sit on them--that's obstruction of justice.'' The distinguished Senator from California, Senator Feinstein, who also serves on the Judiciary Committee, likewise said in 1999, ``A nominee is entitled to a vote. Vote them up; vote them down.'' She continued, ``It is our job to confirm these judges. If we don't like them, we can vote against them. That is the honest thing to do. If there are things in their background, in their abilities that don't pass muster, vote no.'' My other colleague from California, Senator Boxer, said in 1997, ``It is not the role of the Senate to obstruct the process and prevent numbers of highly qualified nominees from even being given the opportunity for a vote on the Senate floor.'' My colleague from Delaware, Senator Biden, also said in 1997, ``I . . . respectfully suggest that everyone who is nominated is entitled to have a shot, to have a hearing and to have a shot to be heard on the floor and have a vote on the floor.'' The qualifications of Miguel Estrada are well known to the Senate. However I would like to briefly remind my colleagues of his outstanding record of accomplishment. Miguel Estrada represents an American success story. Born in Honduras, he immigrated to the United States as a teenager to join his mother. Overcoming a language barrier and speech impediment, he graduated magna cum laude and Phi Beta Kappa in 1983 from Columbia College. At Harvard Law School he was an editor of the Harvard Law Review and graduated magna cum laude in 1986. Mr. Estrada's professional career has been marked by one success after another. After graduation he clerked for Second Circuit Judge Amalya Kearse--a Carter appointee--then Supreme Court Justice Anthony Kennedy. He worked as an associate at the distinguished firm of Wachtell Lipton in New York. He then worked as a Federal prosecutor in Manhattan, rising to become deputy chief of the appellate division. In recognition of his appellate skills, he was hired by the Solicitor General's Office during the first Bush administration. He stayed with the SG's Office for most of the Clinton administration. When he left the SG's Office, he joined the D.C. office of Gibson, Dunn & Crutcher, where he has continued to excel as a partner and has risen to the top of the ranks of oral advocates nationwide, having argued fifteen cases before the Supreme Court. The legal bar's wide regard for Mr. Estrada is reflected in his evaluation by the American Bar Association. The ABA evaluates judicial nominees based on their professional qualifications, their integrity, their professional competence, and their judicial temperament. Based on its assessment of these factors, the ABA has bestowed upon Mr. Estrada its highest rating of unanimously well qualified. His supporters include a host of well-respected Clinton administration lawyers, including Ron Klain, former Vice President Gore's chief of staff; Robert Litt, head of the Criminal Division in the Reno Justice Department; Randolph Moss, former Assistant Attorney General; and Seth Waxman, former Solicitor General. I have, on previous occasions, placed letters of support in the record. I would refer my colleagues to previous statements regarding Mr. Estrada's qualifications and endorsements. Yet, despite the superb record, qualifications, temperament and experience of Mr. Estrada, he continues to be blocked in his nomination. In support of their obstruction, our Democratic colleagues have repeatedly raised red-herring issues with two demands that Mr. Estrada answer their questions, and that the administration release confidential memoranda he authored at the Solicitor General's Office. With regard to the first demand, the record is clear that Mr. Estrada spent hours during a day-long hearing answering my Democratic colleagues' questions. He answered written questions submitted after the hearing. He gave answers to questions that were substantially similar to answers given by Clinton nominees who were confirmed. Yet my Democratic colleagues still complain that he has not answered their questions. Really, their complaint is that, in answering their questions, Mr. Estrada did not say anything that gives them a reason to vote against him. Simply put, they are not interested in his answers to their questions--they are interested in defeating his nomination. This is why every effort to make Mr. Estrada available to answer additional questions has gone virtually unacknowledged. He has been made available to answer written questions and to meet with individual senators. There has even been an offer to make Mr. Estrada available to answer questions in a second hearing. But only one Democratic Senator has met with Mr. Estrada since these offers were extended, and only one has submitted written questions since the floor debate began, to which Mr. Estrada has responded. We have met our Democratic colleagues more than halfway on this, but they insist on continuing down this path of obstructionism. Their second demand, for the Solicitor General memoranda, has been fully debated. The short response is that never before has a Presidential administration released confidential appeal, certiorari, and amicus recommendations on the scale that my Democratic colleagues seek for Mr. Estrada. This is a full-scale fishing expedition, pure and simple, and the Justice Department is right to oppose it. Despite these supposed reasons for denying an up-or-down vote on Mr. Estrada's nomination, I think there are other factors. Last fall a Democratic staffer on the Judiciary Committee was quoted in The Nation magazine as saying, ``Estrada is 40, and if he makes it to the circuit, then he will be Bush's first Supreme Court nominee. He could be on the Supreme Court for 30 years and do a lot of damage. We have to stop him now.'' So it appears that the real reason for this filibuster is the threat of a Justice Estrada on the Supreme Court. An editorial appearing in the Atlanta Journal-Constitution said it best: ``The fear with Owen and Estrada is that one or both will be nominated to the U.S. Supreme Court should a vacancy occur. Senate Democrats are determined to keep off the Circuit Court bench any perceived conservative who has the credentials to serve on the U.S. Supreme Court.'' There is an additional factor that is not based on any substantive objection to his nomination. I believe that some Senate Democrats do not want the current President, a Republican President, to appoint the first Hispanic as United States Circuit Judge for the District of Columbia Circuit. Let me read from an editorial published by the Dallas Morning News addressing this point. On February 17, 2003, the News wrote, ``Democrats haven't liked Mr. Estrada from the beginning. Part of that is due to his ideology which is decidedly not Democratic. But part of it also has to do with the fellow who nominated him. Democrats don't relish giving President Bush one more thing to brag about when he goes into Hispanic neighborhoods during his reelection campaign next year. They are even less interested in putting a conservative Republican in line to become the first Hispanic justice on the Supreme Court.'' Miguel Estrada will be an excellent Federal judge. Today, once again, we have a choice either to continue to block another highly qualified nominee for partisan reasons or to allow each Senator to decide the merits of the nomination for himself or herself. I choose to vote against obstructionist tactics and permit an up-or-down vote on the nominee. I urge my colleagues to do likewise. I ask unanimous consent the Atlanta Journal-Constitution editorial to be printed in the Record.