Orrin Hatch

Mr. HATCH

Mr. HATCH. Will the Senator yield on that point?

Mr. HATCH. I have been listening to the Senator, and I will rebut his earlier remarks later. Is the Senator aware of Mr. Zarqawi, who is in Iraq right now, who is definitely connected with the al-Qaida people?

Mr. HATCH. He is an operative working within Iraq----

Mr. HATCH

Mr. HATCH. As far as I know, none of the Senators who have sought more information about Mr. Estrada have availed themselves of any of these sources. This brings to mind the story of the young man who killed both his parents, then threw himself on the mercy of the court because he was an orphan. Here, my Democratic colleagues who are complaining the loudest about not having enough information about Mr. Estrada are the very ones who are apparently not interested in finding out more about him through readily available means. Meanwhile, the filibuster goes on and on. Another significant letter was circulated on Wednesday of last week, this one signed by more than 50 of our colleagues in the House. This, too, is a powerful letter. Let me read the letter: Washington, DC, February 26, 2003. Senator Tom Daschle, Senator Harry Reid, Senator Patrick Leahy, U.S. Senate, Washington, DC. Dear Senators: It is our understanding that the major objection raised by the Senate Democratic Leadership and many members of the Senate Democratic Caucus to the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit is that you have not been provided sufficient information about his legal views. Specifically, we understand that you are opposing his nomination because of the Administration's failure to provide you with internal memoranda prepared by Mr. Estrada while he served as Assistant to the Solicitor General. We are deeply concerned that your objection to the Administration's refusal to produce these memoranda not only breaks with precedent but is also a threat to the ability of Executive Branch Officials, members of the Judiciary, and Members of Congress to receive confidential legal advice. As you are no doubt aware, the Clinton Administration memoranda you are requesting in the case of Mr. Estrada were not requested for the seven previous nominees to the Courts of Appeals who had worked in the Solicitor General's office. Understandably, the improper appearance of a double standard for this particular nominee has been created. In addition, every living former Solicitor General--Democrat and Republican--signed a joint letter to the Senate Judiciary Committee, stating that the memoranda request would have a debilitating effect on the ability of the Department of Justice to represent the United States before the Supreme Court. Forcing the disclosure of confidential memoranda in this instance would do serious institutional harm to all three branches of government. For example, should legal memoranda prepared for you by one of your staff be available for review by future senators (or by the Administration) in the event that the staff member were to be nominated or be considered to a judicial or other post? This appears to be the precedent you are attempting to set. As we trust you understand, such a precedent would no doubt impact the type and quality of advice we seek and receive from our staff. We strongly urge you to reconsider your objections and drop your request for the confidential memoranda of the Clinton Justice Department.

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH. Mr. President, as in legislative session, I understand H.R. 534 is at the desk and is due for its second reading.

Mr. HATCH. I object to further proceeding.

Mr. HATCH. Mr. President, I ask we now go back into executive session.

Mr. HATCH. Mr. President, it has now been nearly 4 weeks since we began debating the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit. We have heard all of the arguments for and against his nomination. What we have not heard is a good reason why this filibuster should continue. We have not heard any good reason why his nomination should not be brought for an up or down vote. One of the reasons that some of my Democratic colleagues say they oppose Mr. Estrada is because he allegedly did not answer their questions at his hearing. I do find this complaint unpersuasive, particularly given that (1) the hearing was chaired by a Democratic Senator, (2) the hearing lasted all day, (3) Mr. Estrada answered question after question on a broad variety of topics, and (4) every committee member had the right to ask Mr. Estrada follow-up questions in writing but only two did. Nevertheless, in a letter dated last Thursday, February 27, 2003, White House Counsel Alberto Gonzales sent a letter to all 100 Senators directing them to additional sources of information on Miguel Estrada. This is an important letter, and I will take a moment to read the letter: Dear Senator Frist, Senator Daschle, Senator Hatch, and Senator Leahy: I write in connection with the nomination of Miguel Estrada. Some Democrat Senators have indicated that they would like to know more about Mr. Estrada's record before a vote occurs. As I stated in my letter of February 12 to Senator Daschle and Senator Leahy, we believe that the Senate has had sufficient time and possesses sufficient information to vote on Miguel Estrada. More important, a majority of Senators have indicated that they posses sufficient information and would vote to confirm him. But if some Senators believe they must have more information before they will end the filibuster of this nomination, we respectfully suggest that there are three different and important sources of information that have been and remain available and that would appropriately accommodate the request for additional information. We ask that you encourage interested Senators to avail themselves of these sources as soon as possible. First, as I have written to you previously, individual Senators who wish to meet with Miguel Estrada may and should do so immediately. We continue to believe that such meetings could be very useful to Senators who wish to learn more about Mr. Estrada's record and character. Second, Senators who have additional questions for Mr. Estrada should immediately pose such questions in writing to him. We propose that additional questions (in a reasonable number) be submitted in writing to Mr. Estrada by Friday, February 28. Mr. Estrada would endeavor to answer such questions in writing by Tuesday, March 4. He would answer the questions forthrightly, appropriately, and in a manner consistent with the traditional practice and obligations of judicial nominees, as he has before. Third, Senators who wish to know more about Mr. Estrada's performance and approach when working in the United States Government--and, in particular, how that relates to his possible future performance as a Circuit Judge--should immediately ask in writing for the views of the Solicitors General, United States Attorney, and Judges for whom Mr. Estrada worked and ask them to respond by Tuesday, March 4. In particular, interested Senators could immediately send a joint letter to each of the following individuals for whom Mr. Estrada has worked in the United States Government: Judge Amalya Kearse, Justice Anthony Kennedy, former United States Attorney Otto Obermaier, former Solicitor General Ken Starr, former Solicitor General Drew Days, former Solicitor General Walter Dellinger, and former Solicitor General Seth Waxman. In our judgment, these men and women could provide their views on Mr. Estrada's background and suitability to be a Circuit Judge by March 4 without sacrificing the integrity of the decisionmaking processes of the Judiciary, United States Attorney's office, and Solicitor General officer. And their views could assist Senators who seek more information about Mr. Estrada. We believe that these sources of information, which have been available for some time, would readily accommodate the desire for additional information expressed by some Senators who have thus far supported the filibuster of a vote on this nominee. We ask that you encourage Senators who have objected to the scheduling of a vote to avail themselves of these sources of information. And we respectfully ask that the Senate vote up or down as soon as possible on Mr. Estrada's nomination, which has been pending for nearly two years. Please do not hesitate to contact me with any questions. Sincerely, Alberto R. Gonzales, Counsel to the President.

Mr. HATCH

Mr. HATCH. I object.

Mr. HATCH

Mr. HATCH. Mr. President, I compliment my colleague from Idaho. He has called it exactly the way it is. What is going on is a matter of unfair competition. It is a matter of improper governmental subsidization in competition with a company that is doing it all without government subsidization. I personally thank him for his good remarks; I agree with them and I would like to be associated with them.

Mr. HATCH. Mr. President, I ask unanimous consent that I be given 1 minute. I do have the approval of the distinguished Senator from New Mexico.

Mr. HATCH

Mr. HATCH. This nominee's integrity has never been in question. I think my colleagues on the other side have acknowledged that. His integrity is totally intact. He is an honest, decent, honorable man who, in spite of a disability, a speech impediment, has risen to the top of the legal world, who is a partner in one of the major law firms in this country, who has the highest rating of the American Bar Association, unanimous, well-qualified rating. This man's integrity has never been called into question, to my knowledge, and I would be very ashamed of anybody who tried to call his integrity into question. I have been very passionate this evening, and I apologize to my colleagues if I have offended anybody, but I have to say this is really important stuff. We cannot allow this type of treatment to go on. We are talking about a breakdown in the Senate, if a filibuster for the first time in history is maintained to defeat a nominee, any nominee, let alone the first Hispanic ever nominated to the Circuit Court of Appeals for the District of Columbia. I have not wanted to antagonize or offend any of my colleagues, and I apologize if I have, but what I have said tonight is true. I have to say, I am really disturbed by the obstructive tactics that are being used. I would be equally upset if they were used on our side, but they have not ever been used in this fashion on our side. I see the majority leader is in the Chamber, but first I forgot to put these letters in earlier, my letter to Senators Leahy and Schumer, with regard to the Easterbrook document. I ask unanimous consent that they be printed in the Record.

Mr. HATCH. That has been my experience.

Mr. HATCH. I have been an attorney for a long, long time. I know a fishing expedition when I see one. I have been a Senator for 27 years. I have seen fishing expeditions before but never one as blatantly as this one, or exploiting a red herring issue like they are trying to do on this one. I compliment the Senator. Let me read from the editorial in the Savannah Morning News just a couple of paragraphs. The Democrats are upset because they haven't found a ``gotcha'' moment in Mr. Estrada's testimony or scholarship that would embarrass or contradict him, and thus provide them ammunition to defeat his nomination. Then they went on to quote saying what the Senator from Georgia quoted. They want to continue trolling further. This is trolling like you have never seen before. Then the next paragraph says: The problem is, they've already had ample opportunities. If they weren't happy with his answers at his hearing last September, Democrats could have demanded another hearing. They did not. Nor did they take full advantage of normal procedure and submit written follow-up questions to Mr. Estrada after the hearing--only two of the 10 committee Democrats did so. Because they lack the votes to defeat the nomination on the Senate floor they have resorted to manipulating the process by any means necessary--not, mind you, because they have evidence to oppose him, but because they don't. Boy, I agree with that editorial. Then they conclude by saying: Mr. Estrada's nomination deserves an up-or-down vote in the Senate and not be held hostage by bipartisan parliamentary games. I tell you, that sentence: Because they lack the votes to defeat the nomination on the Senate floor, they have resorted to manipulating the process by any means necessary, not, mind you, because they have evidence to oppose him, but because they don't. This editorial writer and these writers get it accurately. They have not laid a glove on Miguel Estrada. Here we are in the third week of a filibuster against the only Hispanic nominee in the history of the country nominated to the Circuit Court of Appeals for the District of Columbia. I ask unanimous consent that the Savannah Now editorial be printed in the Record.

Mr. HATCH. Without losing my right to the floor, I yield to the Senator from Colorado.

Mr. HATCH. I yield to the distinguished Senator from Georgia.

Mr. HATCH. I am aware.

Mr. HATCH. I am aware of those editorials. And I am also aware, and I want my colleagues to know, that there are more than 50 editorials throughout the country expressing the same matters. I hold in my hand this binder of editorials in favor of Miguel Estrada--just editorial after editorial after editorial, saying how unfair this process really is, how unfair my colleagues on the other side have been, how they have ignored principles of just plain common decency, how they are obstructing--obstructing, in an unfair way--of course, obstruction, I guess, is always unfair--but how they have been obstructing this nominee. Why? Because, as the editorial writers say, they do not have anything on him.

Mr. HATCH. Does the Senator have a question for me?

Mr. HATCH. Let me answer in this way. Nobody has previously asked for appeal recommendations in the Solicitor General's Office--some of the most important work that is done; certiorari recommendations in the Solicitor General's Office; some of the most important work done by that office; or amicus curiae recommendations, some of the most important work done in that office. Let me read from the letter from the Department of Justice about what it has to say about this in response to this type of allegation by the Democrats. Of the seven cited nominees-- Remember. We hear all about all of these people who got Department of Justice materials. Let us look at the facts. I hope my colleague will listen to some. I hope my other colleagues will listen because we have had these false arguments made day in and day out. So I am going to put them to bed right now. Of the seven cited nominees, the hearings of only two, Judge Bork and Judge Easterbrook, involved documents from their service in the Office of the Solicitor General. Senator Schumer placed into Mr. Estrada's hearing record a single, two-page amicus recommendation memorandum that Judge Easterbrook authorized as an Assistant to the Solicitor General. The official record of Judge Easterbrook's confirmation hearing contains no references to this document and based on a comprehensive review of the department's files we do not believe that the department authorized its release in connection with Judge Easterbrook's nomination. Senator Schumer's possession of this memorandum does not suggest that the department waived applicable privileges and authorized its disclosure in connection with Judge Easterbrook's or any other nomination. In other words, someone leaked that document illegally. And my colleagues have an illegal document leaked. At least that seems to be the glaring thing that happened here. The Justice Department goes on to say: The hearing record of Judge Bork's nomination to the Supreme Court demonstrates that the committee received access to a limited number of documents related to three specific subjects of heightened interest to the committee, two of which were related to Judge Bork's involvement in Watergate- related issues and triggered specific concerns by the committee. We have not had specific concerns here. All we have is a fishing expedition. These are with specific concerns. Let us go further with what the Justice Department says: The vast majority of memoranda authored or received by Judge Bork when he served as Solicitor General were neither sought nor produced. And the limited category of documents that were produced for the committee did not reveal the internal deliberative recommendations or analysis of assistants to the Solicitor General regarding appeal, certiorari, or amicus recommendations in pending cases. The remaining five nominations cited at the hearings similarly do not justify the disclosure of deliberative material authored by Mr. Estrada. None of the limited documents disclosed in the hearings for these five nominations involved deliberative memoranda from the Office of Solicitor General. The committee, with respect to these five nominations, requested specific documents primarily related to allegations of miscondcut or malfeasance identified by the committee. Moreover, as noted before with respect to the nomination of Judge Trott, the committee requested documents wholly unrelated to Judge Trott's service at the department. Again, a vast majority of deliberative memoranda authored or received by these nominees were never sought nor received by the committee. In sum, the existence of a few isolated examples where the executive branch on occasion called for very specific information does not in any way alter the fundamental and long-standing principle that memoranda from the Office of the Solicitor General and deliberative Department of Justice materials more broadly must remain protected in the confirmation context so as to maintain the integrity of the executive branch's decision-making process. In conclusion, we emphasis that the Department of Justice appreciates and profoundly respects the Judiciary Committee's legitimate need to evaluate Mr. Estrada's qualification for the Federal bench. We again suggest, however, that the information currently available is more than adequate to allow the committee to determine whether Mr. Estrada is qualified to be a Federal judge. I might just add again that this is more than adequate. This is more than has been asked of any nominee in history. Why the obstruction? Why the unfairness? Why are we so unfair to this Hispanic man who has all these qualifications that normally would blow people's minds--and do blow people's minds he is so qualified. Yet here he is being filibustered by my colleagues. I call on my colleagues of goodwill to quit playing games and start doing what is right.

Mr. HATCH. Can I correct the Senator? They were not Solicitor General memoranda. They had nothing from the Solicitor's Office.

Mr. HATCH. It is a fact that they were in control. They chaired the hearings. Senator Schumer chaired the hearing at the direction of Chairman Leahy, the chairman. It was one of the longest hearings for a Circuit Court of Appeals nominee I can recall. They asked every question they wanted to. He answered them, and he answered them fairly and well, as I have been showing here tonight, and as the distinguished Junior Senator from Tennessee, I think, showed in detail earlier in the evening. I commend him and ask everybody to read that. In all honesty, they controlled the whole doggone process. They even said on the floor, even during this debate, that the hearing was fair-- because they conducted it. If it was fair, that means they covered all the questions they wanted answered. Then we have these phony arguments that he didn't answer the question. Read the remarks of the distinguished Senator from Tennessee, Senator Alexander, this evening and read the transcript. Read the answers to these written questions. I only read a few of them because it more than blew away those phony arguments. Why the double standard? Why the obstruction? Why are we going through this? I said I would yield to my friend and colleague from Nevada, without losing my right to the floor.

Mr. HATCH. Let me yield for one final question by the distinguished minority whip, and then I will yield to someone on this side.

Mr. HATCH. I want to do this in fairness.