Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce a bill designed to provide assistance to vulnerable Medicare beneficiaries: the Medicare Improvements for Special Needs Beneficiaries Act of 2003. This legislation will improve access to health care for frail and elderly Medicare beneficiaries who reside in nursing homes or their local communities. Approximately 6 million Medicare beneficiaries are eligible for both Medicare and Medicaid coverage. Known as ``dual eligibles,'' these beneficiaries are the most vulnerable group of Medicare recipients. They are elderly or disabled and poor. Many have serious health concerns and complex medical, social, and long-term care needs. As a result, dual eligibles represent a disproportionate share of Medicare spending. To address the concerns of dual eligibles, a small number of health plans specialize in providing quality coordinated care to frail, elderly Medicare beneficiaries through demonstrations and the Medicare+Choice Program. These specialized plans include innovative clinical models of care that improve care and health outcomes while reducing medical costs. Today, approximately 25,000 Medicare beneficiaries, most of whom reside in nursing homes, receive their health care through these specialized plans. Through these plans, physicians and nurse practitioners work together to provide as much primary, preventive, and acute care as possible on site--in a nursing home facility or in the patient's home. For those beneficiaries residing in nursing homes, this means fewer trips to the emergency room; for those still living at home, it delays nursing home placement. If enrollees can be treated successfully without a trip to the hospital or placement in a nursing home, they remain healthier and costs to the Medicare Program are reduced. Currently, these specialized plans are facing regulatory barriers that prevent them from becoming permanent Medicare+Choice Program options. The Medicare Improvements for Special Needs Beneficiaries Act provides improved beneficiary access to Medicare+Choice plans by removing these barriers and allowing plans to specialize in serving dual eligible, institutionalized, and other frail beneficiaries. Specifically, the bill would allow a special Medicare+Choice program designation so these plans may continue to target enrollment to the frail elderly and provide appropriate health care to this vulnerable population. Both the President and Members of Congress have stated their commitments to improving services provided to Medicare beneficiaries. In fact, when President Bush visited Minneapolis last July, he expressed his strong support for the Evercare program by saying that ``government should act to strengthen these private health insurance options, not replace them. By relying on competition and patient's choice and innovative programs like Evercare, we will protect our seniors now, and offer many new lifesaving services to seniors in the future and preserve our private health care system.'' These specialized programs are fulfilling the original promise of the Medicare+Choice Program to not only protect our Medicare beneficiaries but, in addition, these program improve health care quality and lower health care costs. This legislation is a no-cost way to continue this effort. Evercare plans serve a unique and valuable purpose for a vulnerable segment of our society. I hope my colleagues will join me in supporting this important bill.

Mr. HATCH

Mr. HATCH. Mr. President, during the course of the debate on Miguel Estrada, there have been many serious misrepresentations of the record on Mr. Estrada. I want to address in some detail one of the more serious distortions which concerns the answers Mr. Estrada gave during his extensive hearing, one of the longest hearings for a circuit court of appeals nominee, to questions members of the Judiciary Committee asked him. The charge being leveled against Mr. Estrada is that he did not answer questions put to him in general and did not answer questions about his judicial philosophy in particular. That charge is pure bunk. It is important to remember the circumstances under which this hearing took place. The hearing was held on September 26, 2002. It was chaired by my Democratic friend, the senior Senator from New York, Mr. Schumer. It lasted all day, which was unusual in and of itself. Both Democratic and Republican Senators asked scores of questions which Mr. Estrada answered. If any Senator was dissatisfied with Mr. Estrada's answers, every member of the committee had the opportunity to ask Mr. Estrada followup questions, although only two of my Democratic colleagues did. Now, a number of the questions Mr. Estrada was asked sought directly or indirectly to pry from him a commitment on how he would rule in a particular case. Previous judicial nominees confirmed by the Senate have rightly declined to answer questions on that basis, just as Mr. Estrada did. Virtually every Clinton nominee refused to answer questions about how they would decide cases or what they would do in certain circumstances. I will give some examples. In 1967, during his confirmation hearing for the Supreme Court, Justice Thurgood Marshall responded to a question about the fifth amendment by stating: I do not think you want me to be in a position of giving you a statement on the fifth amendment and then if I am confirmed and sit on the court when a fifth amendment case comes up I will have to disqualify myself. During Justice Sandra Day O'Connor's confirmation hearing, the Senator from Massachusetts, Mr. Kennedy, the former chairman of the Judiciary Committee, defended her refusal to discuss her views on abortion. He said: It is offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential Justice must pass the litmus test of any single interest group. Senator Kennedy was concerned perhaps Justice O'Connor might possibly have difficulty with the conservative side or the pro-life side because she may have been pro-choice. The fact is nobody really knew, and there were some concerns about that, but Senator Kennedy was right when he said: It is offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential Justice must pass a litmus test of any single-issue interest group. He was right then. But why is there today a different standard for Miguel Estrada? Why the comments and remarks by some on the committee who are saying Mr. Estrada should have answered these types of questions? Likewise, I will give another. Justice John Paul Stevens testified during his confirmation hearing for the Supreme Court: I really don't think I should discuss this subject generally, Senator. I don't mean to be unresponsive but in all candor I must say there have been many times in my experience in the last 5 years where I found that my first reaction to a problem was not the same as the reaction I had when I had the responsibility of decisions and I think that if I were to make comments that were not carefully thought through they might be given significance that they really did not merit. It was an excellent answer, but it was basically the same answer that Miguel Estrada gave to similar questions, and that almost every other nominee of Democrat and Republican administrations, since I have been on the committee, have given. Why the double standard for Miguel Estrada? Why are we expecting him to answer questions that we did not expect leading Democrat judges, or other leading judges, to answer? Justice Ruth Bader Ginsburg, now sitting on the Supreme Court, also declined to answer certain questions, stating: Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on some questions, I would act injudiciously. Like these previous nominees, all of whom the Senate confirmed, Mr. Estrada refused to violate the code of ethics for judicial nominees by declining to give answers that would appear to commit him on issues he will be called upon to decide as a judge. Again and again, he provided answers in direct response to questions that make his judicial philosophy an open book. I will share some specific examples. Responding to a question to identify the most important attribute of a judge, Mr. Estrada answered that it was to have an appropriate process for decision-making. That, he said, entails having an open mind, listening to the parties, reading their briefs, doing all of the legwork on the law and facts, engaging in deliberation with colleagues, and being committed to judging as a process that is intended to give the right answer. Now, these are not extreme views. I do not think we could ask more from any nominee for a judgeship. When asked about the appropriate temperament of a judge, he responded that a judge should be impartial, open minded, and unbiased, courteous yet firm, and one who will give ear to people who come into his courtroom. These are the qualities of Miguel Estrada. He testified that he is and would continue to be that type of a person who listens with both ears and who is fair to all litigants. Mr. Estrada was asked a number of questions about his views and philosophy on following legal precedent. Let me highlight a little of those exchanges. Question: Are you committed to following the precedents of higher courts faithfully and giving them full force and effect even if you disagree with such precedents? Answer: Absolutely, Senator. Question: What would you do if you believed the Supreme Court or the court of appeals had seriously erred in rendering a decision? Would you apply that decision or would you use your own judgment of the merits or the best judgment of the merits? Answer: My duty as a judge and my inclination as a person and as a lawyer of integrity would be to follow the orders of the higher court. Question: And if there were no controlling precedent dispositively concluding an issue with which you were presented in your circuit, to what sources would you turn for persuasive authority? Answer: In such a circumstance, my cardinal rule would be to seize aid from anyplace where I could get it, related case law, legislative history, custom and practice and views of academics on analysis of law. Pretty good answers. These are better answers than most of the judgeship nominees who have come before the committee over the last 27 years. These exchanges illustrate clearly Miguel Estrada's respect for the law and his willingness and ability to faithfully follow the law. He further testifies in response to other questions: I will follow binding case law in every case, even in accordance with the case law that is not binding but seems instructive on the area, without any influence whatever from my personal view I may have about the subject matter. This is what we expect good judges to do. I can see no reason anyone would be opposed to a nominee who promised to follow the law. When asked about the role of political ideology and the legal process, Mr. Estrada replied with a response that, in my view, was entirely appropriate and within the mainstream of what all Americans expect from their judiciary. He said: Although we all have views on a number of subjects from A to Z, the first duty of the judge is to self- consciously put that aside and look at each case with an open mind and listen to the parties, and to the best of his human capacity to give judgment based solely on the arguments on the law. I think my basic idea of judging is to do it on the basis of law and to put aside whatever view I might have on the subject, to the maximum extent possible. Pretty good answer. Why isn't that answer good enough for my colleagues on the other side? It is better than most answers given by their nominees when their President controlled the White House and the nomination process. Mr. Estrada was asked about his views on interpreting the Constitution. Mr. Estrada was forthright and complete in his responses. For example, in an exchange regarding the literal interpretation of the words of the Constitution, Mr. Estrada responded: I recognize that the Supreme Court has said on numerous occasions, in the area of privacy and elsewhere, that there are unenumerated rights in the Constitution, and I have no view of any sort, whether legal or personal, that would hinder me from applying those rulings by the court. But I think the court has been quite clear that there are unenumerated rights in the Constitution. In the main, the court has recognized them as being inherent in the right of substantive due process and the liberty clause of the 14th amendment. That is a pretty good answer, a lot better answer than many of the Clinton nominees made, although I am not meaning to criticize them. It is just that there is a different standard being applied here, a double standard. They were not expected to give these great answers he has given, that my colleagues on the other side have said he didn't give. Read the record. It is replete with decent, good, honorable, and intelligent answers to their questions. Mr. Estrada was asked questions about the appropriate balance between Congress and the courts. His answers made clear his view that judges must review challenges to statutes with a strong presumption of the statute's constitutionality. For example, in responding to a question about environmental protection statutes he stated: Congress has passed a number of statutes that try to safeguard the environment. I think all judges would have to read those statutes when they come to court with a strong presumption of constitutionality. At the same time, he recognized that as a circuit court judge he would be bound to follow the precedents established by Lopez and other Supreme Court cases. Now, some of my colleagues do not like Lopez and they wish he would be an activist judge and not follow it. But he said he would be bound by it, as he would the other Supreme Court pronouncements. That is all you can ask of a nominee. Why the double standard? Why is it that Miguel Estrada is being held to a different standard than the Clinton judgeship nominees were? Mr. President, it is clear from the record that Mr. Estrada did answer the questions put to him at his hearing. His judicial philosophy is an open book. But if my Democratic colleagues are still inclined to vote against him, as misguided as I believe that choice to be, they should do so in an up-or-down vote. Vote for him or vote against him or do whatever your conscience dictates. Just vote. And stop this unfair filibuster. It is unfair. Let me make one more point. Even if my colleagues believed, despite the facts and precedent, that Mr. Estrada should answer more questions, well, they have had that chance. And in a February 27 letter, White House Counsel Al Gonzales made an offer. A copy of Mr. Gonzales' letter has already been printed in the Record. I don't know what more the administration can do other than say we will make him available to you, you ask him whatever questions you want, and you can find out for yourself whether you want to support him or not. To my knowledge, not one of our colleagues on the other side has taken advantage of this offer. Not one. How interested are they in getting the real story? Not one. Yet we had Senators on the floor yesterday saying all he has to do is answer our questions. Here is an offer: He will come right to your office and answer the questions for you. Not one has asked him to come to the office, which makes me question how serious they are about the merits of Mr. Estrada's nomination. That brings me to another point. Mr. Estrada's hearing was held under Democratic control of the committee on September 26, 2002. If there was any question about the quality of Mr. Estrada's testimony, they could have held another hearing, they could have extended the hearing, and they could have held another hearing since they controlled the committee for another 3 months. Why didn't they hold another hearing? Why didn't they ask these questions that are so crucial? Because they thought they could kill the nomination by never bringing it up. Unfortunately for them and fortunately for the country, the election turned the other way and Mr. Estrada, of course, was nominated by the new President. I think there is some hypocrisy, especially with regard to these responses that Mr. Estrada gave, because they are deemed sufficient for Clinton judges but they are not good enough now. Why this double standard for this Hispanic man? Some Democrats have railed against Estrada for his responses to questions from the Judiciary Committee, as I have said. The fact is, however, the Democrats routinely voted in favor of Clinton nominees who gave similar responses, maybe not as good but similar responses. These were nominees who had never been judges and had few published writings. In their responses to questions they acknowledged the law, said they would follow it, and confirmed that they would not let their personal views get in the way--responses just like Miguel Estrada gave. Not one of these nominees, however, was denied a vote on the floor, not one. Take, for example, Blane Michael, a Clinton nominee for the Fourth Circuit. He was asked what he would do if his personal beliefs and the law collided. He said he would uphold the Constitution and the law without question. As to whether he would follow Supreme Court precedents, he said: It is not my job to circumvent or shade what the Supreme Court has done. Was he asked to expound on his favorite or least favorite Supreme Court cases? No. The record is less than four pages on his questioning. Sid Thomas was another Clinton nominee not subjected to the same level of interrogation as Estrada. In fact, none of them were. Thomas, who had never been a judge or even a judicial clerk, was asked what he thought about the constitutionality of capital punishment. He said: I believe the Supreme Court has spoken . . . on the death penalty. That was it. Thomas, who I should add had very few published writings, added: I do not possess any personal convictions which would cause me to not apply the death penalty in an appropriate case. The Thomas hearing takes up less than 2 pages in the Record. Why were they treated differently by my colleagues on the other side than Miguel Estrada? Why is it? I don't see any reason, unless they are just not going to allow this President to nominate, as all Presidents in the past have done, the people he thinks are best for these jobs; or unless they just do not want to have a conservative Hispanic nominee appointed to this important court; or maybe they just do not want Miguel Estrada to get confirmed because they believe he is on the fast track to the Supreme Court and could be the first Hispanic nominated and confirmed to the Supreme Court; or maybe it is because he is Hispanic, but he is conservative; or maybe it is because he is Hispanic and he is Republican and he is conservative; or maybe it is because he is Hispanic, he is Republican, he is conservative, and they think he may be pro-life. It is one of those. I personally do not believe there is racism involved, although there are those who do--but I am not one of them. I believe there is a double standard being applied to this Hispanic nominee, the first Hispanic nominee to the Circuit Court of Appeals for the District of Columbia, and I think it is a crying shame. Merrick Garland, a Clinton nominee to the Fourth Circuit, was asked if he personally favored the death penalty. I personally was very much in favor of Merrick Garland, but there were some on our side who were not very much enthused about him. He was a controversial nominee, as were these others. But he was a Clinton nominee to the Fourth Circuit. He was personally asked if he favored the death penalty. He responded by saying it is a matter of settled law. When asked about the independent counsel law, Garland said that, too, was settled and that he would follow that ruling. These sound an awful lot like the responses of Miguel Estrada, the ones he gave, responses that Democrats say do not give them enough information. These Clinton nominees were all not only voted out of committee but were allowed an up-or-down vote on the floor, regardless of the fact that some of them were controversial--to borrow some of the language of my colleagues on the other side. My colleague from New York has stated that according to an article that appeared in the Legal Times in April 2002, DC Circuit Judge Laurence Silberman has advised President Bush's judicial nominees to ``keep their mouths shut.'' As the rest of the article explains, in fact, Judge Silberman simply explained that the rules of judicial ethics prohibit nominees from indicating how they would rule in a given case or on a given issue--or even appearing to indicate how they would rule. As the same article reported, Judge Silberman stated: It is unethical to answer such questions. It can't help but have some effect on your decisionmaking process once you become a judge. A copy of this article has also been printed in the Record. Yet I heard my colleagues on the other side yesterday blowing smoke over there, using a quote out of context to try to indicate that Judge Silberman was giving them radical advice. The fact is, he gave them advice that every Democrat President and every Democrat President's Justice Department has given to the Democrat nominees for these courts. It is proper advice. This advice is consistent with Canon 5A(3)(d) of the ABA's Model Code of Judicial Conduct, which states that prospective judges: [S]hall not . . . make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of office . . . [or] make statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court. Justice Thurgood Marshall made the same point in 1967 when he refused, as I mentioned before, to answer questions about the fifth amendment during his confirmation hearing for the Supreme Court. I referenced that quote earlier. Let me go to this letter from Seth Waxman, on behalf of Seth Waxman, Walter Dellinger, Drew S. Days, Kenenth W. Starr, Charles Fried, Robert Bork, and Archibald Cox. That is seven of the living former Solicitors General. Seth Waxman, Walter Dellinger, Drew Days, and Archibald Cox are Democrat former Solicitors General. Here is what they said, and they said it in response to the Democrats, who have been saying we have to get these privileged materials because we do not know enough about Miguel Estrada, even though we have had a full day of hearings conducted where we could have asked any questions we wanted to, where we could have held additional hearings, we could have filed written questions--only two of them did-- we could have asked additional questions, only two of them did. They even said the hearing was fair and fairly conducted. But this is a letter. Let me just go back. They are hiding behind this red herring, demanding papers they know no self-respecting administration can give because it would interrupt, disturb the flow, and make it more difficult for the Solicitor General of the United States to do his or her job. I think this letter says it all. It was a letter written to the Honorable Patrick J. Leahy on June 24, 2002, better than 18 months ago: Dear Chairman Leahy: We write to express our concern about your recent request that the Department of Justice turn over ``appeal recommendations, certiorari recommendations, and amicus recommendations'' that Miguel Estrada worked on while in the Office of the Solicitor General. As former heads of the Office of Solicitor General--under Presidents of both parties--we can attest to the vital importance of candor and confidentiality in the Solicitor General's decisionmaking process. The Solicitor General is charged with the weighty responsibility of deciding whether to appeal adverse decisions in cases where the United States is a party, whether to seek Supreme Court review of adverse appellate decisions, and whether to participate as amicus curiae in other high-profile cases that implicate an important Federal interest. The Solicitor General has the responsibility of representing the interests not just of the Justice Department, nor just of the executive branch, but of the entire Federal Government, including Congress. It goes without saying that, when we made these and other critical decisions, we relied on frank, honest and thorough advice from our staff attorneys like Mr. Estrada. Our 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. Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosure. High-level decisionmaking requires candor, and candor in turn requires confidentiality. Any 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 U.S. litigation interests--a cost that also would be borne by Congress itself. Although we profoundly respect the Senate's duty to evaluate Mr. Estrada's fitness for the Federal judiciary, we do not think that the confidentiality and integrity of internal deliberations should be sacrificed in the process. Four of those former Solicitors General were Democrat Solicitors General. Mr. Estrada served three of those Democrat Solicitors General because he served, as I recall, 4 years in the Clinton administration in the Solicitor General's Office without any bad reaction. Then he served 1 year in the Bush administration. Most people would say Archibald Cox is a person of the highest legal integrity and highest legal abilities. Knowing him personally, I have to say that is true. Most people would say Drew Days is one of the fine lawyers and law professors in this country. Most people would say--in fact, I think everybody would say with regard to these Democrat former Solicitors General who have said these records should be privileged, that Walter Dellinger was one of the great law professors at Duke, also a great public servant, and now one of the leading lawyers in one of the major law firms in the country, himself mentioned for the Supreme Court from time to time, a man I have to admit I have gained increasing respect for through the years. It is pretty hard to find a better lawyer than Seth Waxman. He is a great lawyer. And he is somebody on whom I think the Democrats could rely. Have those colleagues on the other side asked those four people? The fact is those four people have basically said Miguel Estrada did a great job at the Solicitor Generals's Office. In fact, Seth Waxman, in particular, said he did a fine job there. The performance evaluations that described Mr. Estrada's work there are of the highest laudatory evaluation of staff. The only person who has raised any conflict is Professor Paul Bender, who gave those glowing performance evaluations at a time closest to the service of Miguel Estrada, but who is a very left-wing liberal Democrat law professor who has entered into this debate--and in an improper way, in my opinion--to try to smear Mr. Estrada, which he has done. He is the only one they can point to who has any real criticism of Miguel Estrada's work at the Solicitor General's Office. I think those Democrat Senators on the other side of the floor would do very well to talk to Seth Waxman, Walter Dellinger, Drew S. Days, III, and Archibald Cox to say what is wrong with Mr. Estrada. I think they won't do it because they know these people will say Mr. Estrada is an exceptionally fine lawyer, which he, of course, is. This is a man who has the highest rating from the American Bar Association--the gold standard of our friends, the Democrats--and, of course, he has all the credentials in the world as one of the leading appellate lawyers in the country. Even though he suffers from a disability, a speech impediment, he has still risen to the top of the appellate court. I know my colleague from Vermont is waiting. So I yield the floor at this time.

Mr. HATCH

Mr. HATCH. Mr. President, I join my colleagues, the distinguished minority floor leader from Nevada, who is a dear friend of the distinguished Senator from Kansas, and my dear friend from Kansas, in paying tribute to Victor Baird. That is one of the most miserable, tough jobs I think in the whole Senate. As both of them have said, there is not a lot of thanks for doing it. I personally thank him for the efforts he has put forward, and those who worked with him, because this is a very difficult job. He has always been straightforward, honest, and decent in all of the experiences I know about. I join my colleagues in their remarks and ask that I be associated with their remarks. I wish him the very best.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce a bill designed to provide assistance to vulnerable Medicare beneficiaries: the Medicare Improvements for Special Needs Beneficiaries Act of 2003. This legislation will improve access to health care for frail and elderly Medicare beneficiaries who reside in nursing homes or their local communities. Approximately 6 million Medicare beneficiaries are eligible for both Medicare and Medicaid coverage. Known as ``dual eligibles,'' these beneficiaries are the most vulnerable group of Medicare recipients. They are elderly or disabled and poor. Many have serious health concerns and complex medical, social, and long-term care needs. As a result, dual eligibles represent a disproportionate share of Medicare spending. To address the concerns of dual eligibles, a small number of health plans specialize in providing quality coordinated care to frail, elderly Medicare beneficiaries through demonstrations and the Medicare+Choice Program. These specialized plans include innovative clinical models of care that improve care and health outcomes while reducing medical costs. Today, approximately 25,000 Medicare beneficiaries, most of whom reside in nursing homes, receive their health care through these specialized plans. Through these plans, physicians and nurse practitioners work together to provide as much primary, preventive, and acute care as possible on site--in a nursing home facility or in the patient's home. For those beneficiaries residing in nursing homes, this means fewer trips to the emergency room; for those still living at home, it delays nursing home placement. If enrollees can be treated successfully without a trip to the hospital or placement in a nursing home, they remain healthier and costs to the Medicare Program are reduced. Currently, these specialized plans are facing regulatory barriers that prevent them from becoming permanent Medicare+Choice Program options. The Medicare Improvements for Special Needs Beneficiaries Act provides improved beneficiary access to Medicare+Choice plans by removing these barriers and allowing plans to specialize in serving dual eligible, institutionalized, and other frail beneficiaries. Specifically, the bill would allow a special Medicare+Choice program designation so these plans may continue to target enrollment to the frail elderly and provide appropriate health care to this vulnerable population. Both the President and Members of Congress have stated their commitments to improving services provided to Medicare beneficiaries. In fact, when President Bush visited Minneapolis last July, he expressed his strong support for the Evercare program by saying that ``government should act to strengthen these private health insurance options, not replace them. By relying on competition and patient's choice and innovative programs like Evercare, we will protect our seniors now, and offer many new lifesaving services to seniors in the future and preserve our private health care system.'' These specialized programs are fulfilling the original promise of the Medicare+Choice Program to not only protect our Medicare beneficiaries but, in addition, these program improve health care quality and lower health care costs. This legislation is a no-cost way to continue this effort. Evercare plans serve a unique and valuable purpose for a vulnerable segment of our society. I hope my colleagues will join me in supporting this important bill.

Mr. HATCH

Mr. HATCH. I thank my dear colleague from Oregon for his leadership in this area. When he was in the House, he was one of the great leaders on health care issues. He is repeating that leadership in the Senate. It is a privilege to work with him because you can rely on him. When he says he will do something, he does it. He is very intelligent in health care matters. I have a lot of respect for him, and it is a privilege to work with him. I hope people will listen to the bill that we will present because it is the way to at least move us off the dime and get us to do what we should be doing on health care. I thank him and pay tribute to him this morning.

Mr. HATCH

Mr. HATCH. Madam President, I rise today as a longstanding proponent of free international trade. I am confident that if given the chance, U.S. companies that operate in the global market-place will set the standard by which all international business will be conducted. This fact has been proven over-and-over again. Many great American owned companies are conducting business all over the world. I am a strong believer that these U.S. companies that operate in the global marketplace have a direct and positive impact world wide on consumers by allowing them competitive pricing and variety of choices in an increasingly discerning global market. This benefit to society, however, is only as good as the business practices employed by foreign-owned companies. U.S. companies must operate in a competitive market that requires them to continue to innovate, cut costs, and effectively market their products. This is not always the case in certain industries in some foreign markets. In particular, I'd like to point out an important problem facing one of the largest employers in my State of Utah. Micron Technologies, the largest U.S. producer of D-RAM semiconductors, long has been plagued with unfair competition from its principal Korean competitor, Hynix, a company that has time and time again employed illegal government financed bail-out schemes to keep them in business. This is not the first time that Micron has faced difficulties due to unfair trade practices. In the mid-1980s, Micron almost went out of business because of dumping by Japanese companies. Several of us in the Senate worked successfully to help put a stop to the illegal dumping. Ultimately, the Department of Commerce imposed duties that offset this dumping and Micron was not only able to survive, but eventually to become the second largest producer of semiconductors in the world today. Micron has a very large facility in Lehi, Utah, that has employed over 500 of Utah's skilled laborers. This facility has the capacity of employing well over 5,000 people--a feat that will never be realized if the Korean Government is allowed to continue to subsidize Hynix. It is important to point out that, just last December, Hynix received yet another direct financial bailout from the government of Korea. This practice must simply not be allowed to continue. Companies that operate in the global marketplace must be assured that they will be able to compete on a level playing field--and not against government-subsidized companies that may produce a substandard product, but are allowed to continue their operations because of an artificial infusion of operating capital. These illegal subsidies are costing the U.S. jobs and are weakening our technology base. Let's examine the underlying facts about the trade distorting practices that Micron faces when competing in the world market. Since October 2000, the government of Korea, acting through the banks that it owns and controls, has provided an astounding $16 billion in subsidies to Hynix, a Korean producer of D-RAM semiconductors and the principal global competitor to Micron Technologies. Hynix is a company with massive debts resulting from the easy lending practices of Korean banks during the late 1990s. With these preferential loans, Hynix built substantial new capacity and became the third largest D-RAM producer in the world. Starting in late 2000, Hynix became unable to repay the principal and interest on these loans and bonds. Rather than letting Hynix undergo formal bankruptcy, which would have resulted in substantial asset sales and restructuring, the Government of Korea orchestrated no less than five separate bailouts. These subsidies have permitted Hynix to stay in business and that company continues to run all its D-RAM labs full out, flooding the market with subsidized products. Despite all these subsidies, Hynix continues to lose money--by all accounts, roughly $8 billion over the past three years. And yet, the Korean government continues to pour money into this company. Just two month ago, there was another bailout amounting to $4.1 billion. This is almost twice Hynix's revenues in all of 2002, which only amounted to $2.4 billion. The Korean government must not be allowed to continue to underwrite the horrendous operating losses of this company as it has done for the past three years. In the highly competitive D-RAM market, subsidies of this sort act as a trade distorting measure. Every other D-RAM company in the world is being crippled by the subsidized D-RAM that Hynix floods the market with. This has resulted in the worst and longest downturn the D-RAM sector has ever experienced. Just last week, Micron announced that it was laying off ten percent of its worldwide workforce. This translates into 1,800 lost jobs in the United States. Hynix subsidies have had a real impact on Micron's bottom line as well--the subsidies have impacted pricing to such an extent that even Micron, one of the most efficient D-RAM producers in the world, has lost two billion dollars over the past two years. We cannot afford to see an important technology like D-RAMs lost in the United States, because of foreign government subsidies. These sorts of subsidies have absolutely no place in today's global economy, particularly as we are engaged in a new round of trade talks aimed at further liberalizing trade regimes around the world. All indications are that Hynix will use the debt forgiveness to continue to expand capacity. Just last week, Hynix announced that it would begin work on a new fabrication line to produce D-RAMs on state- of-the-art 300 mm wafers, which will result in even more subsidized D- RAM from Hynix. Now, we read in the papers that Hynix and other Hyundai companies are being investigated for illegally transferring about $500 million to North Korea in 2000, in return for lucrative contracts, and it did so with the help of South Korean banks and with the approval of the President of South Korea. This is the country that plans to reactivate its nuclear arms program. In closing, I feel it incumbent upon me to point out that many Members of the United States Senate are paying close attention to the Korean Government's business practices as they relate to Hynix. Korea is one of the most developed economies in Asia and is a good friend to the United States in a wide variety of ways. But the government of Korea must realize that this type of illegal subsidy runs contrary to all the rules in the WTO and is not permitted under U.S. trade law. I call upon the Secretary of Commerce and the U.S. Trade Representative to help put an end to these illegal acts.

Mr. HATCH

Mr. HATCH. Madam President, I rise today to introduce the CLEAR ACT, which is short for the Clean Efficient Automobiles Resulting from Advanced Car Technologies Act of 2003. Joining me in this effort are Senators John Rockefeller and Jim Jeffords, who have been my partners in this legislation and its earlier versions since the 106th Congress. We are also being joined by an impressive and bipartisan lineup of original cosponsors, which includes Senators Olympia Snowe, John Kerry, Gordon Smith, Joe Lieberman, John Ensign, Hillary Clinton, Mike Crapo, Byron Dorgan, Susan Collins, and Lincoln Chafee. I believe the CLEAR ACT is the most comprehensive and effective plan we have seen in this country to accelerate the transformation of the automotive marketplace toward the widespread use of fuel cell vehicles. And it does so without any new Federal mandates. Instead, it offers powerful market incentives to promote the combination of advances we must have in technology, in infrastructure, and in alternative fuels if our goal of bringing fuel cell vehicles to the mass market is to become a reality. As many of my colleagues know, fuel cell vehicles are the most promising long-term automotive technology, offering breakthrough fuel economy of up to three times today's levels with zero emissions. For a variety of reasons, the commercial production of fuel cell vehicles is a number of years away. Many things need to change in the automotive marketplace before widespread use of these vehicles of the future becomes a reality. With the CLEAR ACT, we can achieve this goal much faster, while in the meantime we can reap the benefits of cleaner air and a reduced dependency on foreign oil. Bridging the gap between today's conventional vehicles and the day when all of us will be driving fuel cell vehicles are alternative fuel and advanced technology vehicles, such as hybrid electrics. These vehicles are available today, but not yet widely accepted in the marketplace. Currently, consumers face three basic obstacles to accepting the use of these alternative fueled and advanced technology vehicles. These obstacles are the higher cost of these vehicles as compared with their conventional counterparts, the cost of the alternative fuel, and the lack of an adequate infrastructure of alternative fueling stations. Mr. President, the CLEAR ACT would lower all three of these barriers. First, we provide a tax credit of 50 cents per gasoline-gallon equivalent for the purchase of alternative fuel at retail. This would bring the price of these cleaner fuels much closer in line with conventional automotive fuels. And, to give customers better access to alternative fuel, we extend an existing deduction for the capital costs of installing alternative fueling stations. We also provide a 50- percent credit for the installation costs of retail and residential refueling stations. Finally, we offer CLEAR ACT credits to consumers who purchase alternative fuel and advanced technology vehicles. These credits would lower the price gap between these cleaner and more efficient vehicles and conventionally fueled vehicles of the same type. To make certain that the tax benefit we provide translates into a corresponding benefit to the environment, we split the vehicle tax credit into two. The amount the consumer receives in a CLEAR ACT credit would depend, first, on the level of technology used in the vehicle and, second, on the fuel efficiency and emissions reduction of the vehicle. In this way, we are confident that the CLEAR ACT will create the greatest social benefit possible for every tax dollar. The transportation sector in the U.S. accounts for nearly two-thirds of all oil consumption, and we are 97-percent dependent on petroleum for our transportation needs. Is it any wonder that 50 percent of our urban smog is caused by mobile sources? If we want to clean our air and address our Nation's energy dependency, we must focus on the transportation sector. And we must focus first on those technologies and alternative fuels that are already available and abundant domestically. The CLEAR ACT is the shortest path to achieving these goals. Air pollution and energy independence are issues of critical concern in my home State of Utah. According to a study by Utah's Division of Air Quality, on-road vehicles in Utah account for 22 percent of particulate matter. This particulate matter can be harmful to citizens who suffer from chronic respiratory or heart disease, influenza, or asthma. Automobiles also contribute significantly to hydrocarbon and nitrogen oxide emissions in my State. These two pollutants react in sunlight to form ozone, which in turn reduces lung function in humans and hurts our resistance to colds and asthma. In addition, vehicles account for as much as 87 percent of carbon monoxide emissions. Carbon monoxide can be harmful to persons with heart, respiratory, or circulatory ailments. While Utah has made important strides in improving air quality, it is a fact that each year more vehicular miles are driven in our State. It is clear that if we are to have cleaner air, we must encourage the use of alternative fuels and technologies to reduce vehicle emissions. Another key aim of the CLEAR ACT is greater energy independence. Whether during the energy crisis in the 1970s, during the Persian Gulf war, or during our current energy challenge, every American has felt the sting of our dependence on foreign oil. And I might add that our dependency on foreign oil has steadily increased to the point where we now depend on foreign sources for about 60 percent of our oil. When enacted, the CLEAR ACT will play a key role in helping our Nation improve its energy security by increasing the diversity of our fuel options and decreasing our dependency on gasoline. Our Nation's energy strategy will not be complete without an incentive to increase the use of alternative fuels and advanced car technologies. In the future we will not use gasoline-fueled vehicles to the same extent we do today. The technology is here today to help transform us to the benefits of the future much sooner. We just need to find a way to lower those barriers to widespread consumer acceptance, which will in turn put the power of mass production to work to lower the incremental cost of this technology. In short, our legislation would bring the benefits of cleaner air and energy independence to our citizens sooner. I am very proud to offer this groundbreaking and bipartisan legislation. It represents the input and hard work of a very powerful and effective coalition the CLEAR ACT Coalition. This coalition includes the Union of Concerned Scientists, Ford Motor Company, the Natural Resource Defense Council, Toyota, Environmental Defense, Honda, the Alliance to Save Energy, the Natural Gas Vehicle Coalition, the Propane Vehicle Council, the Methanol Institute, and others. The CLEAR ACT reflects the untiring effort and expertise of the members of this coalition, and for this we owe them our gratitude. I urge my colleagues in the Senate to join me, the CLEAR ACT's cosponsors, and this coalition in this forward-looking approach to cleaner air and increased energy independence. I ask unanimous consent that a summary of the CLEAR ACT be inserted in the Record.

Mr. HATCH

Mr. HATCH. Madam President, I rise today to introduce the CLEAR ACT, which is short for the Clean Efficient Automobiles Resulting from Advanced Car Technologies Act of 2003. Joining me in this effort are Senators John Rockefeller and Jim Jeffords, who have been my partners in this legislation and its earlier versions since the 106th Congress. We are also being joined by an impressive and bipartisan lineup of original cosponsors, which includes Senators Olympia Snowe, John Kerry, Gordon Smith, Joe Lieberman, John Ensign, Hillary Clinton, Mike Crapo, Byron Dorgan, Susan Collins, and Lincoln Chafee. I believe the CLEAR ACT is the most comprehensive and effective plan we have seen in this country to accelerate the transformation of the automotive marketplace toward the widespread use of fuel cell vehicles. And it does so without any new Federal mandates. Instead, it offers powerful market incentives to promote the combination of advances we must have in technology, in infrastructure, and in alternative fuels if our goal of bringing fuel cell vehicles to the mass market is to become a reality. As many of my colleagues know, fuel cell vehicles are the most promising long-term automotive technology, offering breakthrough fuel economy of up to three times today's levels with zero emissions. For a variety of reasons, the commercial production of fuel cell vehicles is a number of years away. Many things need to change in the automotive marketplace before widespread use of these vehicles of the future becomes a reality. With the CLEAR ACT, we can achieve this goal much faster, while in the meantime we can reap the benefits of cleaner air and a reduced dependency on foreign oil. Bridging the gap between today's conventional vehicles and the day when all of us will be driving fuel cell vehicles are alternative fuel and advanced technology vehicles, such as hybrid electrics. These vehicles are available today, but not yet widely accepted in the marketplace. Currently, consumers face three basic obstacles to accepting the use of these alternative fueled and advanced technology vehicles. These obstacles are the higher cost of these vehicles as compared with their conventional counterparts, the cost of the alternative fuel, and the lack of an adequate infrastructure of alternative fueling stations. Mr. President, the CLEAR ACT would lower all three of these barriers. First, we provide a tax credit of 50 cents per gasoline-gallon equivalent for the purchase of alternative fuel at retail. This would bring the price of these cleaner fuels much closer in line with conventional automotive fuels. And, to give customers better access to alternative fuel, we extend an existing deduction for the capital costs of installing alternative fueling stations. We also provide a 50- percent credit for the installation costs of retail and residential refueling stations. Finally, we offer CLEAR ACT credits to consumers who purchase alternative fuel and advanced technology vehicles. These credits would lower the price gap between these cleaner and more efficient vehicles and conventionally fueled vehicles of the same type. To make certain that the tax benefit we provide translates into a corresponding benefit to the environment, we split the vehicle tax credit into two. The amount the consumer receives in a CLEAR ACT credit would depend, first, on the level of technology used in the vehicle and, second, on the fuel efficiency and emissions reduction of the vehicle. In this way, we are confident that the CLEAR ACT will create the greatest social benefit possible for every tax dollar. The transportation sector in the U.S. accounts for nearly two-thirds of all oil consumption, and we are 97-percent dependent on petroleum for our transportation needs. Is it any wonder that 50 percent of our urban smog is caused by mobile sources? If we want to clean our air and address our Nation's energy dependency, we must focus on the transportation sector. And we must focus first on those technologies and alternative fuels that are already available and abundant domestically. The CLEAR ACT is the shortest path to achieving these goals. Air pollution and energy independence are issues of critical concern in my home State of Utah. According to a study by Utah's Division of Air Quality, on-road vehicles in Utah account for 22 percent of particulate matter. This particulate matter can be harmful to citizens who suffer from chronic respiratory or heart disease, influenza, or asthma. Automobiles also contribute significantly to hydrocarbon and nitrogen oxide emissions in my State. These two pollutants react in sunlight to form ozone, which in turn reduces lung function in humans and hurts our resistance to colds and asthma. In addition, vehicles account for as much as 87 percent of carbon monoxide emissions. Carbon monoxide can be harmful to persons with heart, respiratory, or circulatory ailments. While Utah has made important strides in improving air quality, it is a fact that each year more vehicular miles are driven in our State. It is clear that if we are to have cleaner air, we must encourage the use of alternative fuels and technologies to reduce vehicle emissions. Another key aim of the CLEAR ACT is greater energy independence. Whether during the energy crisis in the 1970s, during the Persian Gulf war, or during our current energy challenge, every American has felt the sting of our dependence on foreign oil. And I might add that our dependency on foreign oil has steadily increased to the point where we now depend on foreign sources for about 60 percent of our oil. When enacted, the CLEAR ACT will play a key role in helping our Nation improve its energy security by increasing the diversity of our fuel options and decreasing our dependency on gasoline. Our Nation's energy strategy will not be complete without an incentive to increase the use of alternative fuels and advanced car technologies. In the future we will not use gasoline-fueled vehicles to the same extent we do today. The technology is here today to help transform us to the benefits of the future much sooner. We just need to find a way to lower those barriers to widespread consumer acceptance, which will in turn put the power of mass production to work to lower the incremental cost of this technology. In short, our legislation would bring the benefits of cleaner air and energy independence to our citizens sooner. I am very proud to offer this groundbreaking and bipartisan legislation. It represents the input and hard work of a very powerful and effective coalition the CLEAR ACT Coalition. This coalition includes the Union of Concerned Scientists, Ford Motor Company, the Natural Resource Defense Council, Toyota, Environmental Defense, Honda, the Alliance to Save Energy, the Natural Gas Vehicle Coalition, the Propane Vehicle Council, the Methanol Institute, and others. The CLEAR ACT reflects the untiring effort and expertise of the members of this coalition, and for this we owe them our gratitude. I urge my colleagues in the Senate to join me, the CLEAR ACT's cosponsors, and this coalition in this forward-looking approach to cleaner air and increased energy independence. I ask unanimous consent that a summary of the CLEAR ACT be inserted in the Record.

Mr. HATCH

Mr. HATCH. I reserve my time.

Mr. HATCH. Mr. President, I yield 2 minutes to the distinguished Senator from Alaska.

Mr. HATCH. Mr. President, I compliment the distinguished Senator from Alaska for her work in this regard and for getting so many cosponsors in such a short period of time. A panel in the Ninth Circuit declared the Pledge of Allegiance to be unconstitutional. This is so, two of the three judges decided, because it contains the words ``under God.'' It did not matter to the judges that these two words endorse no particular religion or denote any specific being. Nor did it matter to the majority that no student is required to recite these words--much less any other portion of the Pledge of Allegiance. And worse yet, the majority completely failed to explain how its remarkable ruling could be squared with out government's long-established reference to God in other areas. The United States Supreme Court begins each session with the phrase: ``God save the United States of America and this Honorable Court.'' ``God Bless America'' is routinely sung at many Government functions. And this body not only elects a Chaplin, but also has begun every session for 207 years with a prayer. This activist ruling is--as so many of the Ninth Circuit's rulings have been--bad law. It is flatly inconsistent with a unanimous, decade- old ruling of the Seventh Circuit, where the court held that ``schools may lead the Pledge of Allegiance daily, so long as pupils are free not to participate.'' The Ninth Circuit disagreed, citing the supposed ``coercive effect'' on a child from being required to listen every day in school to the phrase ``one nation under God.'' And from this purported coercion, the Ninth Circuit went on to divine unconstitutionality. This is truly a remarkable feat of judicial activism. This country was founded on religious freedom by founders, many of whom were deeply religious. For this reason, the first amendment does not prohibit religion, but an ``establishment'' of religion. In fact, it also plainly guarantees to each American the freedom of religion and the free exercise of religion. As every court prior the Ninth Circuit's decision has recognized, the mere reference to a higher being does not amount to a religious act or a formal religious observance. The Ninth Circuit is the biggest and most ungainly federal circuit court of appeals. It is also a court that is seriously out of balance, with 17 of its 24 active judges appointed by Democratic Presidents. The Ninth Circuit is also the most reversed circuit court of appeals in the nation--by a wide margin. I would like to say that rulings like Newdow represent an anomaly, but I can't do that because there have been so many other recent rulings in the Ninth Circuit that were unanimously reversed by the Supreme Court. I fully expect the Supreme Court to review this decision and, yet again, reverse the Ninth Circuit and set this ludicrous ruling right. While we wait for that to happen, however, millions of students in the Ninth Circuit will be prevented from pledging allegiance to our flag and our Nation. It is truly regrettable that they will be prevented from doing so at a time when our Nation is under attack by terrorists and when we particularly need everyone to come together and support our President and our troops all over the world. It is about time we let the Ninth Circuit Court of Appeals know, as the most reversed court in the country, that they really ought to think twice before they do something like this. Just think about it. The Constitution does not prohibit religion; it prohibits the establishment of religion. In fact, it plainly guarantees to each American the freedom of religion and the free exercise of religion. As every court prior to the Ninth Circuit decision has recognized, the mere reference to a Higher Being does not amount to a religious act or a formal religious observance. The Ninth Circuit is the largest and most ungainly Federal circuit court of appeals. It is also a court that is seriously out of balance, with 17 out of its 24 active judges appointed by Democratic Presidents. Thirteen of those 17 were appointed by President Clinton. And the Ninth Circuit is also the most reversed circuit court of appeals in the Nation--by a wide margin.

Mr. HATCH. Mr. President, I see the distinguished Senator from Alaska is in the Chamber.

Mr. HATCH. Let me just say, this is a very important resolution. It shows how important it is to have good judges on the bench rather than activists. This decision was made by activists.

Mr. HATCH

Mr. HATCH. To my knowledge, no Senators have taken advantage of this offer, which makes me question how serious they are about the merits of Mr. Estrada's nomination, which brings me to another point. Mr. Estrada's hearing was held under Democratic control of the committee on September 26, 2002. If there was any question about the quality of Mr. Estrada's testimony, they could have held another hearing, since they controlled the committee for another 3 months. My colleague from New York has stated that, according to an article that appeared in the Legal Times in April 2002, D.C. Circuit Judge Laurence Silberman has advised President Bush's judicial nominees to ``keep their mouths shut.'' In fact, as the rest of the article explains, Judge Silberman simply explained that the rules of judicial ethics prohibit nominees from indicating how they would rule in a given case or on a given issue--or even appearing to indicate how they would rule. As the same article reported, Judge Silberman stated: It is unethical to answer such questions. It can't help but have some effect on your decisionmaking process once you become a judge. Mr. President, I ask unanimous consent that a copy of this article be printed in the Record.

Mr. HATCH. This advice is consistent with Canon 5A(3)(d) of the ABA's Model Code of Judicial Conduct, which states that prospective judges: shall not . . . make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of office . . . [or] make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court. Justice Thurgood Marshall made the same point in 1967, when he refused to answer questions about the Fifth Amendment during his confirmation hearing for the Supreme Court. He said: I do not think you want me to be in the position of giving you a statement on the fifth amendment, and then, if I am confirmed and sit on the Court, when a fifth amendment case come up, I will have to disqualify myself. Mr. President, my remarks make it very clear that they were controversial nominees and these arguments are not worth the time they have taken to make them. I think it is time to quit making the very same type arguments and start talking about the truth. The truth is, we have a filibuster on our hands. One of the Democratic Senators even said on network TV 2 weeks ago they are not filibustering. Well, now we know they are. So let's let everybody in the country know that a double standard is being applied to Miguel Estrada.

Mr. HATCH. Give me a break.

Mr. HATCH. Will the Senator yield?

Mr. HATCH. Mr. President, all I can say is the Pharisees of the meridian of time would have loved these arguments. In fact, they are very worthy of that type of reasoning that existed during the meridian of time of our society. To stand here and talk like they are supporting and sustaining the Constitution when they are saying Republicans think the President should have the sole power, nobody is arguing that. That is what you call another red herring along with their requests for documents that they know no self-respecting administration will give, as evidenced by the seven former Solicitors General, four of whom are Democrats, who said those documents should not be given because they would interfere with the work of the Solicitor General, the people's representative. The fact of the matter is that the Founding Fathers--and I have enjoyed this wonderful discussion by the Pharisees of modern times, because to say we are arguing that only the President has some role here is not only ridiculous, it is ridiculously sublime. It is almost unbelievable for me to hear this as constitutional argument. Why, they would be thrown out of the Supreme Court and asked never to come back again by the liberals on the Supreme Court. Madison himself offered a resolution to have a supermajority vote by the Senate, and it was rejected 6 to 3--rejected 6 to 3. The appropriate language is right here in article II of the Constitution. If we are going to talk about the Constitution, let's talk about the Constitution, not a bunch of gibberish. It says, talking about the President: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur;-- That is a supermajority vote written in the Constitution, where supermajority votes should show up. and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by Law vest the Appointment. . . . But it says, ``by and with the advice and consent of the Senate.'' Here are my colleagues acting holier than thou, acting as constitutional experts, who are arguing that they should be able to sustain a filibuster that would require a supermajority vote out of that clause, which says advice and consent, which very clearly made it clear they are talking about an up-or-down vote. When Madison tried to get a supermajority vote, he was voted down. Madison, the Founder of the Constitution, was voted down 6 to 3. These specious arguments, in my opinion, are not worthy of the Senate. There is a lot more I have to say, and I will complete my remarks after the majority leader takes the floor to make a unanimous consent request. I have never heard such arguments before as have been made throughout this afternoon, and I intend to answer some of them. It is not worthy of our time to answer all of them, but I am certainly going to answer some of them. I respect my colleagues. It can be truthfully said I love my colleagues. People know that. And especially these two who have been arguing back and forth. But, again, they would have made wonderful Pharisees in the meridian of time because they would beat an issue to death even though the issue does not exist. In this particular case, some of these arguments never existed in constitutional law or principle.

Mr. HATCH. That is the only name you can come up with?

Mr. HATCH. Mr. President, the majority leader is here to propound a request. Let me make a couple of remarks, and I ask unanimous consent that I be able to retain the floor after he finishes with his request.

Mr. HATCH. Will the Senator yield?

Mr. HATCH. Name one. Name one person. Give me a name.

Mr. HATCH. Who? Bender?

Mr. HATCH. Mr. President, one thing it does establish is that there really is a filibuster by our colleagues on the other side. They have been denying this right up to now, so that is why we have to have a cloture vote to show that there is a filibuster; for the first time in history, a true filibuster against a circuit court of appeals nominee. That is a constitutional issue and it is an important constitutional issue. I was really blown away by my colleague's assertion that we are trying to just make an imperial President. That is not at all the case. We know the Senate has an obligation to look at these judges. As a matter of fact, whenever we say we treated their judges better than they are treating Miguel Estrada, they are using a double standard on Miguel Estrada, and they say their judges were not controversial. Give me a break. I will be willing to ask Miguel Estrada to give detailed answers to every question that was asked of Marsha Berzon, every question that was asked of Judge Paez, every question that was asked of Margaret Morrow. Those hearings lasted minutes. This lasted a solid day, more than most nominees in the history of the country for the Circuit Court of Appeals. By the way, for those on the other side who keep trying to imply--I was interested in my words that were put up. What was wrong with those words? They were absolutely true. We should not have activist judges on the bench. I disagree with their characterization that activist means anything but activist. I agree with Senator Schumer's discussion on activism. I don't like activism from the left and I don't like it from the right. I don't think it is right in either case. Activism is ignoring the law; using your judicial position to make laws from the bench that you were never nominated and confirmed to make. Judges are not elected to make laws. The purpose of judges is to interpret the laws made by those of us who have to stand for reelection. We are the ones who make the laws. The President and the executive branch also can make laws. But where in the Constitution, or in anything said by the Founding Fathers, does it say that a minority of the Senate has a right to prevent a vote up or down on a President's nominee? Nowhere. In that provision I read, where does it say you can have a supermajority vote? In fact, the only supermajority vote mentioned in article II is the clause I read from, that is a two-thirds vote for the ratification of treaties. But in that same paragraph it said the Senate has a right to advise and consent on nominees. Those words they put up of mine regarding activist judges, I don't see anything wrong with those words. They apply today, and I have always gone by them. But to imply that their judges were not treated properly when we put through 377 Clinton judges, the second all-time record in the history of the Senate, in the history of the nomination process, 5 less than the all-time champion Ronald Reagan, while 6 years the Judiciary Committee was in the control of the Republicans, the opposition party, where President Reagan had 6 years of his own party to assist him--and to act like that was not a remarkable job of fairness to President Clinton, again makes my point that these are modern-day Pharisees who would distort anything in order to make their arguments. I would like to get to a couple of things that have really been a little irritating to me. I have heard a lot of whining about last week's Judiciary Committee markup where I had to rule we are not going to filibuster in committee and we were going to have votes up and down on the circuit court nominees. I have also heard arguments that to have three nominees in one hearing is just awful. It has never been done before. I am going to talk about those two things just for a minute or two, because I think it is important to understand. First of all, on that rule, I checked with our parliamentarians, two of them, in this body. They upheld me and told me I was right in the interpretation of the rules that I made. But the rule they are hiding behind is rule 4. They are saying that rule 4 prevented me from being able to call for a vote unless I got at least one member of the other side to agree. By the way, each one of those judges had at least two members of the other side in agreement, so there is nothing to complain about, even then. But the text of rule 4 says this: The chairman shall entertain a nondebatable motion to bring a matter before the committee to a vote. A nondebatable motion. There was no motion made. There was a point of order raised which I overruled. There was an objection raised, which I overruled. Listen to this again: The chairman shall entertain a nondebatable motion to bring a matter before the committee to a vote. There has to be a motion. That didn't happen. If there is objection to bringing the matter to a vote, without further debate a rollcall vote of the committee shall be taken and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with 10 votes cast in the affirmative, one of which is cast by the minority. That is the rule that allows any Senator to make a motion to bring any matter to a vote, so long as that Senator has all of his own party and one, at least one from the other. It is not a rule that can be used to stop the chairman from having a vote and from ending debate, which had clearly ended, and to stop a filibuster in the committee. So all this whining and crying about that is a total misinterpretation of the very expressly worded rule. You would think they were mistreated. Not at all. They were treated very fairly. They just want to be able to slow down this process so President Bush's judges do not get hearings, they don't get markups in committee, and when they come to the floor they are going to filibuster some of them-- maybe all of them, for all I know. By the way, their argument there is specious. It is wrong. It is irrelevant. It is a misinterpretation of the very rule they are citing. And it is unworthy because I happen to know that they checked with the parliamentarians who said I was right in what I did. And I was right in what I did. With regard to their other argument attacking me for putting three circuit court of appeal nominees on one hearing, I put those three up in the spring of 2001. I was told by the Democrats they didn't want to go forward, that they would like me to give them a little more time. I agreed. In the intervening time, Senator Jeffords decided to go independent and vote with the Democrats, and the committee chairmanship changed. So I was unable to bring them up at that time. They will have been sitting here for almost 2 years. These are some of the top appointees in the history of the judiciary. I might add that John Roberts has been sitting there for 12 years, three nominations by two different Presidents. It just plain is not right. I might also add that, having been attacked for holding what a number of Members on the other side of the aisle called an unprecedented hearing because the agenda included three circuit court nominees, you might be interested to hear I have subsequently found out that January 29 hearing was the 13th time since President Carter's administration that this committee has considered more than two circuit nominees in a single hearing. The 13th time--not unprecedented, I would say. Hardly at all. But that is not all I learned. One of those 13 hearings was chaired by Senator Kennedy, who was then the committee chairman, on June 25, 1979. I was there. That included seven circuit judges. What they throw out is: Well, they weren't controversial. I assure you that every Carter circuit judge was controversial. But there was a comity in the Senate then and there was also a 62-vote majority of the Democrats in the Senate versus 38 Republicans. But there was a comity, that people just didn't raise the kind of ridiculous arguments that are being raised today in the Judiciary Committee. I assure you, those were controversial nominees, but nobody complained about that because of the comity and also because of the overwhelming control of the Democrats. They knew they could get away with it, and they did. And nobody really raised a fuss about it. They were all nominated by President Carter and all for the same circuit court of appeals. Talk about balance, which is what we are hearing right now from the other side. Three weeks later, on July 18, 1979, Chairman Kennedy held another hearing with four more Carter circuit nominees--all controversial-- maybe not all but controversial ones again. Then, on September 21 of that year, he held yet another multiple circuit hearing that included three circuit nominees. All three hearings occurred within a 4-month period. So it is all right for them to hold multiple circuit court nominee hearings, but it is an unprecedented thing for us. I agree, it probably is, because I do not know that we have ever been in charge long enough to do that before we held three. But I know this, I held, I think, 11 or 13 two-nominee hearings when I was chairman, and Mr. Clinton, their President, was President. I certainly do not mean to single out my friend Senator Kennedy, so I should also point out that when Senator Biden was chairman of this committee, he held two hearings that included three circuit nominees each; one on July 21, 1987, another on October 5, 1990. Senator Thurmond held five such hearings when he was chairman. And Senator Eastland, back in November 1977, who was chairman at that time, held a hearing for three circuit judges in one hearing. So much for the precedented. Senator Kennedy's advice and consent argument, while interesting, is wrong on the law and wrong on the facts. His argument ignores the basic underpinnings of the Senate's role in the advise and consent process. In fact, I would submit that the other side's effort to demand Mr. Estrada's personal views on certain legal issues is itself an unconstitutional threat to the separation of powers inherent in our system of government and to the Framer's desire to maintain an independent judiciary. It has never been the case that the Senate is constitutionally entitled to an answer to any question it chooses to ask a nominee while exercising its advise and consent responsibility. The reason for this is clear: the Framers sought to ensure that the judicial branch would remain independent of the legislative branch. According to Federalist Papers 78, judicial independence ``is an excellent barrier to the despotism of the prince'' and ``in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.'' For this reason, the Constitution prohibits Congress from reducing Federal judges' salaries, guarantees that judges will remain on the bench ``during good Behavior,'' and allows Congress to remove them only by impeachment. These protections were born of the Framers' fear that the federal legislature, like King George III before it, would pressure judges into reaching outcomes of which it approved, or that otherwise were consistent with its interests. The Framers' intent to insulate Federal judges from the political influence of the legislative branch also informed their decision to restrict the role of the Senate in the confirmation process. The Senate's limited function is apparent from the Constitution's very text. To state the obvious, the President holds the power to nominate candidates to the Federal bench, while the Senate's role is restricted to providing ``advice and consent.'' The Constitution assigns the Senate a limited role in the selection of judicial nominees; it simply allows that body to ratify the President's choices, or decline to do so. Put simply, the President selects, then the Senate reviews and reacts. As Alexander Hamilton explained in the Federalist No. 66: There will, of course, be no exertion of choice on the part of the senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose--they can only ratify or reject the choice he may have made. This is not to say that the Senate must act as a ``rubber stamp'' to a President's choices for the judiciary. As has been the case throughout history, the Senate is entitled to detailed information about a nominee's background, career and qualifications for the bench. And Mr. Estrada has provided ample information to allow the Senate to determine his qualifications. First, it bears repeating that the American Bar Association unanimously rates Mr. Estrada ``Well qualified'' for this position. The Democrats' ``gold standard.'' Second, Mr. Estrada testified for a full day in the Senate Judiciary Committee on a range of subjects, and then answered within followup questions for committee members. It should be mentioned that only two members of the committee decided to pose such questions. Third, Mr. Estrada has received broad bipartisan support from lawyers who know him best, including former Clinton Solicitor General Seth Waxman, Vice President Gore's former Chief of Staff Ron Klain, former Clinton Justice Department officials Randolph Moss and Bob Litt, as well as 14 former colleagues of his in the Solicitor General's Office. All have written glowing recommendations of Mr. Estrada. Fourth, the Senate is free to review the briefs and other publicly available written work Mr. Estrada performed on behalf of clients in the more than 15 Supreme Court cases he has handled during his career. The record is voluminous. All of this information is more than adequate to address Mr. Estrada's qualifications. however, this body must, in order to maintain the proper constitutional balance, refrain from seeking just the sort of information Mr. Estrada's opponents now demand: his personal views on legal issues. Many distinguished Democrats have themselves noted that seeking personal views simply is inappropriate: Justice Thurgood Marshall made this point in 1967, when he refused to answer questions at his confirmation hearing about the Fifth Amendment: I do not think you want me to be in the position of giving you a statement on the fifth amendment, and then, if I am confirmed and sit on the Court, when a fifth amendment case comes up, I will have to disqualify myself. Lloyd Cutler, President Clinton's former White House Counsel who also was at the other end of Pennsylvania Avenue at the same time as the Senator from New York, disagrees with efforts to discern a nominee's ideology during the confirmation process. According to Mr. Cutler: It would be a tragic development if ideology became an increasingly important consideration in the future. To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one. That is not only wrong as a matter of political science; it also serves to weaken public confidence in the courts. Just as candidates should put aside their partisan political views when appointed to the bench, so too should they put aside ideology. To retain either is to betray dedication to the process of impartial judging. Former Senator Albert Gore, Sr. also believed that efforts to discern a nominee's personal views was inappropriate. Former Senator Gore noted the following in connection with the 1968 nomination of Abe Fortas: [A] judge is under the greatest and most compelling necessity to avoid construing or explaining opinion of the Court lest he may appear to be adding to or subtracting from what has been decided, or may perchance be prejudging future cases. The Senate Judiciary Committee agreed with Senator Gore, noting the following in a Committee Report on the Fortas nomination that year: Although recognizing the constitutional dilemma which appears to exist when the Senate is asked to advise and consent on a judicial nominee without examining him on legal questions, the committee is of the view that Justice Fortas wisely and correctly declined to answer questions in this area. To require a Justice to state his views on legal questions or to discuss his past decisions before the committee would threaten the independence of the judiciary and the integrity of the judicial system itself. It would also impinge on the constitutional doctrine of separation of powers among the three branches of Government as required by the Constitution. Finally, the ABA's Model Code of Judicial conduct also prohibits a nominee from discussing his personal views. Canon 5A(3)(D) of the ABA's Model Code of Judicial Conduct states that prospective judges ``shall not . . . make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of office . . . [or] make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.'' Mr. Estrada's opponents in essence are asking him to violate this ethical cannon. Mr. Estrada possesses an excellent record--one which merits confirmation. Efforts by the other side to deny him confirmation in the face of this excellent record are unfair and degrading to the confirmation process. The arguments made by the other side are not constitutional, they are political. The other side knows that the Constitution prohibits this body from intruding on the independence of the judiciary, and from forcing candidates to provide us with their personal views on legal issues. I hope the Senate will reject these unconstitutional efforts and that we will vote soon to confirm Miguel Estrada. During the course of this debate, there have been many serious misrepresentations of the record on Mr. Estrada. I want to address in some detail one of the more serious distortions, which concerns the answers that Mr. Estrada gave to questions that members of the Judiciary Committee asked him. The charge being leveled against Mr. Estrada is that he did not answer questions put to him in general, and did not answer questions about his judicial philosophy in particular. This charge is pure bunk. It is important to remember the circumstances under which this hearing took place. The hearing was held on September 26, 2001. It was chaired by my Democratic friend, the senior Senator from New York. It lasted all day. Both Democratic and Republican Senators asked scores of questions, which Mr. Estrada answered. And if any Senator was dissatisfied with Mr. Estrada's answers, every member of the committee had the opportunity to ask Mr. Estrada followup questions--although only two of my Democratic colleagues did. Now, a number of the questions Mr. Estrada was asked sought, directly or indirectly, to pry from him a commitment on how he would rule in a particular case. Previous judicial nominees confirmed by the Senate have rightly declined to answer questions on that basis, just as Mr. Estrada did. Let me give you some examples. In 1967, during his confirmation hearing for the Supreme Court, Justice Thurgood Marshall responded to a question about the Fifth Amendment by stating: I do not think you want me to be in a position of giving you a statement on the Fifth Amendment and then, if I am confirmed and sit on the Court, when a fifth amendment case comes up, I will have to disqualify myself. During Justice Sandra Day O'Connor's confirmation hearing, the Senator from Massachusetts, the former chairman of the Judiciary Committee, defended her refusal to discuss her views on abortion. He said: It is offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential justice must pass the litmus test of any single- issue interest group. Likewise, Justice John Paul Stevens testified during his confirmation hearing: I really don't think I should discuss this subject generally, Senator. I don't mean to be unresponsive but in all candor I must say that there have been many times in my experience in the last five years where I found that my first reaction to a problem was not the same as the reaction I had when I had the responsibility of decisions and I think that if I were to make comments that were not carefully thought through they might be given significance that they really did not merit. Justice Ruth Baker Ginsburg also declined to answer certain questions, stating: Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative Chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. Like these previous nominees, all of whom the Senate confirmed, Mr. Estrada refused to violate the code of ethics for judicial nominees by declining to give answers that would appear to commit him on issues that he will be called upon to decide as a judge. But again and again, he provided answers, in direct response to questions, that make his judicial philosophy an open book. Let me share some specific examples. Responding to a question to identify the most important attribute of a judge, Mr. Estrada answered that it was to have an appropriate process for decision making. That, he said, entails having an open mind, listening to the parties, reading their briefs, doing all of the legwork on the law and facts, engaging in deliberation with colleagues and being committed to judging as a process that is intended to give the right answer. These are not extreme views. I don't think we could ask more from any judge. When asked about the appropriate temperament of a judge, he responded that a judge should be impartial, open minded and unbiased, courteous yet firm, and one who will give ear to people that come into his courtroom. These are the qualities of Miguel Estrada. He testified that he is and would continue to be the type of person who listens with both ears and be fair to all litigants. Mr. Estrada was asked a number of questions about his views and philosophy on following legal precedent. Let me highlight a bit of that exchange: Question: Are you committed to following the precedents of higher courts faithfully and giving them full force and effect even if you disagree with such precedents? Answer: Absolutely, Senator. Question: What would you do if you believe the Supreme Court or the Court of Appeals had seriously erred in rendering a decision? Would you apply that decision or would you use your own judgment of the merits, or the best judgment of the merits? Answer: My duty as a judge and my inclination as a person and as a lawyer of integrity would be to follow the orders of the higher court. Question: And if there were no controlling precedent dispositively concluding an issue with which you were presented in your circuit, to what sources would you turn for persuasive authority? Answer: In such a circumstance my cardinal rule would be to seize aid from any place where I could get it--related case law, legislative history, custom and practice, and views of academics on analysis of the law. This exchange illustrates clearly Miguel Estrada's respect for the law and his willingness and ability to faithfully follow the law. He further testified, in response to other questions: I will follow binding case law in every case. Even in accordance with the case law that is not binding, but seems instructive on the area, without any influence whatsoever from any personal view I may have about the subject matter. This is what we expect judges to do. I can see no good reason why anyone would be opposed to a nominee who promised to follow the law. When asked about the role of political ideology in the legal process, Mr. Estrada replied with a response that, in my view, was entirely appropriate and within the mainstream of what all Americans expect from their judiciary. He said: [A]lthough we all have views on a number of subjects from A to Z, the first duty of a judge is to self-consciously put that aside and look at each case with an open mind and listen to the parties. And, to the best of his human capacity, to give judgment based solely on the arguments on the law. I think my basic idea of judging is to do it on the basis of law and to put aside whatever view I might have on the subject to the maximum extent possible. When asked about his views on interpreting the Constitution, Mr. Estrada was forthright and complete in his responses. For example, in an exchange regarding the literal interpretation of the words of the Constitution, Mr. Estrada responded: I recognize that the Supreme Court has said on numerous occasions in the area of privacy and elsewhere that there are unenumerated rights in the Constitution. And I have no view of any sort, whether legal or personal, that would hinder me from applying those rulings by the Court. But I think the Court has been quite clear that there are unenumerated rights in the Constitution. In the main, the Court has recognized them as being inherent in the right of substantive due process and the Liberty Clause of the 14th Amendment. Mr. Estrada was asked questions about the appropriate balance between Congress and the courts. His answers make clear his view that judges must review challenges to statutes with a strong presumption of the statutes' constitutionality. For example, in responding to a question about environmental protection statutes, he stated: Congress has passed a number of statutes that try to safeguard the environment. I think all judges would have to greet those statutes when they come to court with a strong presumption of constitutionality. At the same time, he recognized that, as a circuit court judge, he would be bound to follow the precedent established by Lopez and other Supreme Court cases. So, it is clear from the record that Mr. Estrada did answer the questions put to him at his hearing. His judicial philosophy is an open book. But if my Democratic colleagues are still inclined to vote against him--as misguided as I believe that choice to be--they should do so. Vote for him or vote against him; do what your conscience dictates. Just votes. And stop the unfairness of this filibuster. And let me make one more point. Even if my colleagues still believe, despite the facts and precedent, that Mr. Estrada should answer more questions, well they have their chance. In a February 27 letter, White House Counsel Al Gonzales made the following offer. Mr. President, I ask unanimous consent that a copy of this letter be printed in the Record.

Mr. HATCH. I say I am hardly going to bring him back just on the speculation he is going to answer questions the way you think he ought to answer them when in fact he answered questions the way all of his predecessors have answered them. Basically, they were answered this way: With regard to Roe v. Wade, he basically said regardless of my personal feelings, I am going to uphold the law. That is the law. That is what everybody has said who appeared before my committee when I was chairman during the 6 years of the Clinton administration. They didn't come out and say yes, I am for Roe v. Wade. If they had, I would not have held that against them because I presumed they were, anyway. But the fact of the matter is virtually every one of them basically said: Regardless of my personal views, I am going to uphold the law, which is what he said. I guess what I am asking is--if you will give me a list of your questions that you asked, that you feel there was not a forthright answer--I don't know of any where there wasn't a forthright answer; it may not have been what you wanted--I will be happy to take those back to him again and get you answers that would be more detailed, if that is what you want. Or, as an alternative, would it be possible for us to have 1 day of hearings where we encourage him to answer questions in more detail, because that is what you appear to want--even though I thought his answers were more than adequate--and I would attempt to do that. Of course, with the approval of my side; if I can. I would work in good faith to do that. But I would certainly want to have the filibuster ended, because this is a damaging thing to this institution, and it would be my way--if I could do it and pull it off--of saying, look, we'll try to accommodate our friends on this side, but let's be fair and let us have a vote up or down. It may be that vote will go the way you want it to go. You may vote for him in the end. I don't know. But the point is, I would try to do that in order to get this off of this filibuster, which I find extremely dangerous, and even beyond consideration of Miguel Estrada. It is something I had to stop, as chairman during my 6 years, because we had a few on our side who felt we should filibuster people like Marsha Berzon and Judge Paez and even Margaret Morrow. As you know, as much as I have been maligned by at least one Senator on your side, they would not have been sitting on the Ninth Circuit Court of Appeals if it hadn't been for me, and I think some of the accusations that have been made have been very unfair about the time I was chairman.