Orrin Hatch

Mr. HATCH

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

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. Without losing my right to the floor.

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. I yield to the distinguished Senator from Georgia.

Mr. HATCH. That has been my experience.

Mr. HATCH. I sure do agree with that. There has not been one substantive argument against this man other than the phony arguments like getting these privileged documents that everyone knows the administration cannot get. There are two reasons for that: They want to embarrass the administration by trying to make the administration look like they are trying to withhold documents that they should give, when they should not give them; and they are trying to defeat Miguel Estrada on what is really a red herring issue. That particular editorial of the Winston-Salem Journal said: The truth is, the Democrats oppose Estrada because they believe he is too conservative; an unsavory implication is that they believe Hispanics should be liberal. I think the editorial got it right on the money. Another truth is, as the Senator said: The Constitution gives Presidents the right to nominate judges and the Presidents usually choose nominees they believe share their political views. If Democrats have a substantive reason for opposing Estrada's nomination, it is past time to produce it. If not, they should let the Senate vote. I ask unanimous consent the Winston-Salem Journal article be printed in the Record.

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. I am happy to yield to the Senator from Virginia without losing my right to the floor.

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

Mr. HATCH. Even though I think it was probably the right word to use.

Mr. HATCH. I was not aware of that. But I have to say, I served with Senator Harry Byrd. He is a marvelous human being. He was an Independent who voted mainly with the Democrats, but a very fair, honorable, decent man, one of the finest people who ever served. I agree with the editorial 100 percent.

Mr. HATCH. I withdraw the word. I ask unanimous consent that that word be withdrawn.

Mr. HATCH. Not at this point. I would like to finish what I am saying.

Mr. HATCH. Without losing my right to the floor, I am happy to yield for a parliamentary inquiry.

Mr. HATCH. What I do want to make clear is I believe the distinguished Senator from Illinois and others have been saying that Mr. Estrada did not answer the questions. Let me recall, in case it might have slipped the mind of the distinguished Senator, ``Follow-up Questions for Miguel Estrada, Senator Richard J. Durbin, Senate Judiciary Committee.'' Let me read a few of these. One: During your nominations hearing, Senator Edwards asked whether you consider yourself a ``strict constructionist'' when it comes to interpreting the Constitution. You described yourself instead as a ``fair constructionist.'' How do you distinguish these two concepts? In what ways are they similar? In what ways are they different? That is an intelligent question. I commend my colleague.

Mr. HATCH. The response: I do not believe that a legal text, such as the Constitution, should be construed ``strictly'' (i.e., grudgingly) or ``loosely'' (i.e., without careful regard to the text's language so as to achieve a meaning beyond that which the text will fairly bear). In my view, the Constitution, like other legal texts, should be construed reasonably and fairly, to give effect to all that its text contains. Although the phrase ``strict construction'' is often used to reflect a legal philosophy that simply gives appropriate consideration to the text of the Constitution, the phrase is also sometimes used in a pejorative fashion to describe an approach to interpretation that does not fairly reflect the meaning that the words, history, and background of the text will fairly bear. For that reason, I avoided using that phrase in response to Senator Edwards' question. The distinguished Senator from Illinois asked if the current members of the Supreme Court--this is written because he did not ask oral questions during the hearing: Of the current members of the Supreme Court, who would you characterize as a strict constructionist? Who would you characterize as a fair constructionist? How would you characterize the remaining Justices? Response: Although the current members of the United States Supreme Court sometimes emphasize different interpretive tools-- giving, for example, greater or less prominence to text, history or precedent in a particular case--I believe each of them attempts in good faith to give a fair reading to the constitutional provisions that come before the Court. For that reason, I would characterize each member of the current Court as a ``fair constructionist.'' The question again from the distinguished Senator from Illinois: In terms of judicial philosophy, please name several judges, living or dead, whom you admire and would like to emulate on the bench. This is what Mr. Estrada responded: There is no judge, living or dead, whom I would seek to emulate on the bench, whether in terms of judicial philosophy or otherwise. If I am fortunate enough to be confirmed, I hope to seek aid from whatever legal materials may shed light on the problem before me, and thus to reach the correct answer to that problem to the best of my abilities, without any preconception about how some other judge might approach the question. I have been fortunate to know several great judges and justices in my lifetime. I admire Judge Amalya Kearse and Justice Anthony Kennedy, for whom I was a law clerk. During my time as a law clerk for Justice Kennedy, I also got to work with retired Justice Lewis F. Powell, Jr., for whom I developed a great deal of affection and admiration. Amalya Kearse was a Carter appointee to the Second Circuit Court of Appeals. In other words, this man has admired a Democratic judge. Anthony Kennedy is, of course, considered a moderate conservative on the Supreme Court. He served him as a clerk, and admires him. Then he admires Lewis F. Powell, Jr., who is considered one of the leading moderate judges during his lifetime on the Court. I could read all of these questions and answers, and I think any fair person would say he gave some very good answers that would pass almost any professorial, jurisprudential, legal, or other analysts' reviews. I ask unanimous consent that the followup questions for Miguel Estrada by Senator Richard J. Durbin and his answers be printed in the Record.

Mr. HATCH. Mr. President, I do not want to read them all, but I will if I have to, and I think the distinguished Senator from Illinois ought to be fair. These answers are very competent, good answers by a very competent, well-qualified, terrific nominee for the Circuit Court of Appeals for the District of Columbia, the first Hispanic nominee in the history of this country. I suggest you read your own answers to your own questions, and I think you will be pretty impressed with him. (Mr. ENSIGN assumed the Chair.)

Mr. HATCH. I am not accusing my colleague from Illinois of anything other than based upon whatever he said on the floor.

Mr. HATCH. I recall that they were lengthy, and I recall that Senator Schumer from New York chaired the hearing. I did not chair the hearing. He could have set up any kind of rounds he wanted to, and, as I understand it, everybody had a full opportunity to ask the questions they wanted, both Democrats and Republicans.

Mr. HATCH. If I can just continue, the Senator himself said Mr. Estrada has not answered any questions, and the Senator from Illinois at least implied that from time to time.

Mr. HATCH. Mr. President----

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

Mr. HATCH. No one before this nominee, to my knowledge--and I believe I am accurate, and we have checked it--no one has ever asked for appeal recommendations, certiorari recommendations, and amicus curiae recommendations. The reason they never have is that it is--I will use the term--despicable to ask for them because they know they cannot be given; that no self-respecting Attorney General or President would allow that to happen because that is a direct intrusion into the deliberative process of the Solicitor General's Office, the attorney for the people. Nobody else has ever done that before. So we have to ask, why is it being done? And why would seven former Solicitors General, four of whom are Democrats, come out and say this cannot be done? Because they are right and my colleagues on the other side are wrong. They know they are wrong. I think that was geared to try to create a red herring issue so they could say, oh, my goodness, we do not know enough about him. It took them 505 days to hold a hearing. I presume in that 505 days, knowing how the Judiciary Committee works--and I really know how it works--every Democrat staffer assigned to that was going through every document this man has ever had anything to do with. They scrutinized him like they scrutinize any criminal, and certainly he is not that. But they scrutinized him. That is not a bad thing. I am not criticizing them for that. They know everything about Miguel Estrada that is knowable, and there is a lot. The transcript of the hearing is that big. Gee whiz, they act like there were not any questions or answers. Are you kidding? I think they think sometimes they can say these things and the American people are just going to buy it. Well, we are going to make sure they do not buy it because it is not true. That is what is killing me, is that my colleagues are saying things that just simply are not true if one looks at the Record. Never before have those three areas of recommendations been asked for. They cite Robert Bork. They cite Justice Rehnquist. Those materials that were given were very limited. They were not anywhere near as sensitive as these. They were not necessarily privileged, although I believe some of them were given just because they were very limited requests. These are broad requests of documents that literally should never be given to any other branch of government, if we want a functioning Solicitor General's Office. This is a game being played. It is a double standard and very unfair to this nominee. I think my colleagues are pointing that out in no uncertain terms.